text:
    SPECIFIC PERFORMANCE
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Plenry, JJ.
    Felix Kamarsic v. J. A. Smith, Trustee.
    Specific Performance of Contract Denied When.No Meeting of Minds Reached as to Consideration,
    In an action for specific performance, when the evidence discloses that there was no meeting of the minds as to the amount of the purchase price, specific performance will be refused, but the court will decree the repayment of the purchase, money already received by the vendor.
    Appeal.

      H. Remington, for plaintiff.

      Smith <& Taft, for defendant.
   MARVIN, J.

Suit was brought by Kamarsic against Smith, as trustee, setting out that the plaintiff had purchased two certain lots belonging to Van DeBoe, Haeger & Co., and that Smith was the trustee in whom the title stands; that plaintiff has performed all that he was to do except to pay $18 which he tenders, and he asks for a specific performance of the contract.

The case has given us no small amount of difficulty. The plaintiff testifies that prior to the making of the written contract, which was finally made between the parties on June 9, 1902, he went upon the property accompanied by a man who is now in the penitentiary, whose name I do not remember, and by a Mr. Shimman, an agent of Van DeBoe, Haeger & Co.; that the price then fixed upon the two lots was $165. He produces, also, as a witness one Martin Locan, who says he was present, and that the price fixed for one lot was $80 and for the other, $85.

That this last witness is very likely to be mistaken as to the price fixed is manifest from the fact that he failed to remember the numbers of the lots. He says they were 124 and 125, whereas they were 624 and 625. It is not at all remarkable that he should have forgotten those numbers or misunderstood them, but it is no more remarkable that he should have misunderstood the amount of money; that he understood $165 when $265 was mentioned.

The prices that had been fixed upon these lots was $140 for the corner lot and $125 for the other lot, making $265. But we are not satisfied that that was said at the time they were upon the property. This was in April, 1902. Afterwards, in June, a written contract prepared by the vendor was signed by the two parties. That reads in words: “The said party of the first part agrees to pay for said lands the sunn of two hundred and sixty-five dollars,” and then immediately follows, “$165.”

A book was given to the plaintiff, a pass-book, I suppose it is called, which he was to take with him and again produce at the office of Van DeBoe, Haeger Co., when he made his payments. On that book, on the outside and at the top of the book wherein the payments were to be made are the figures $165. The plaintiff could read figures; he could not read words.

We are of the opinion that there never was a meeting of minds of these parties on the price of the lots. When the contract was signed the vendor supposed that the price was $265 as written in words, and the vendee that it was $165 as appears in figures. That being true, there never was a contract, and that being true, then the plaintiff is entitled to have repaid to him all he had paid, together with interest on such payments from the time of the payment up to the time wheh it is repaid, and the costs of this proceeding are assessed one-half against the plaintiff and one-half against the defendant.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    STREET RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    November 11, 1905.]
    Marvin, Winch and Henry, JJ.

      Cleveland Electric Ry. v. Edward J. Kenna.
    Whipping His Team, of Horses Over Street Car Tracks at Street Intersection Instead of Turning Them Off Tracks, Not Contributory Negligence.
    After a driver of a team of horses had been placed in a situation of danger on street railway tracks through the negligence of the motorman of street car approaching a street crossing at excessive speed, he is only required to do that which a reasonably prudent man under like circumstances would do in escaping from the danger, and in doing it he is nqt guilty of contributory negligence, even though it may not have been the wisest course to pursue.

      Squire, Sanders & Dempsey, for plaintiff.

      L. A. Bussell, for defendant.

      Affirmed no opinion, Cleveland Electric Ry. v. Kenna, 75 Ohio St. 625.

   MARVIN, J.

This is a proceeding in error. The parties here are the reverse of what they were in the court of common pleas, but they are here spoken of as they were in that court.

On September 7, 1903, about 6 o’clock a. m., plaintiff was driving a span of horses harnessed to a wagon loaded with bread, which he was delivering to families who were his customers in the city of Cleveland. When driving to the west on Astor avenue he approached Dunham avenue, which runs north and south at right angles with Astor avenue, his intention being to turn to the south on Dunham.

The defendant owns and operates a street railroad on Dun-ham, and to drive to the south on Dunham on the right-hand of the tracks of the railroad it was necessary that he cross over these tracks from the east side where he would reach them as he came out from Astor, to the west side. In an attempt to do this his wagon was struck by a car of the defendant running to the north, and the plaintiff was thrown from his wagon and injured. He sued the defendant in the court of common pleas to recover damages for such injuries. The result of the trial was a verdict and judgment for the plaintiff in the sum of $3,-000. To reverse this judgment the present proceeding is prosecuted. It is claimed that there were numerous errors to the prejudice of the defendant during the progress of the trial which should cause this court to reverse the judgment.

The plaintiff in his petition charged that the defendant was negligent in running its cars at a high rate of speed, to wit, 25 to 30 miles an hour, and in violation of the ordinances of the city of Cleveland regulating the speed of such cars; that the defendant failed to give any signal of the approach of its car to Astor avenue, as required by the ordinance of the city, and without applying any brake to retard the speed of such car as it was approaching Astor avenue, all in violation of its duty to exercise ordinary care to avoid accident and injury to persons and property.

The defendant by its answer denied that plaintiff was injured by it, and averred that if he was injured, his own negligence contributed to his injury.

A bill of exceptions is filed in this court, containing all the evidence offered on the trial below.

On the trial the plaintiff testified that he was familiar with the place where the accident occurred, had been accustomed to drive there for a long time; that there was a building on the southeast corner of Astor and Dunham coming clear up to the line of each street at the corner; that there were trees along the east side of Dunham, south of Astor, and that by reason of such building and trees his view along Dunham was so obstructed that he could not see a car approaching from the south until he was within a short distance of the railroad tracks; that he was upon the seat of his wagon, and though it was a covered wagon, there was nothing about the wagon to interfere with his view on either side, but only at his back; that his seat was about fifteen feet back from the head of his horses, and that before he was far enough to the west to see a car coming from the south, his horses’ heads were over the east rail and their front feet either close up to or over the rail; that just before he got to Dunham he checked up his team and listened, but heard no bell or car; that he drove forward and when he got to where he could see, he saw a car coming rapidly from the south. His horses were on the track, and he hurried them by slapping the lines upon them, trying to get across before the car should reach them. He also testified that the car was approaching at from 25 to 30 miles an hour; that when he first saw the car the motorman was looking down and not toward the front; that the ear struck the rear part of his wagon; that he was thrown out and injured.

William Kuppy was examined as a witness on the part of the plaintiff. He saw the accident. He was on Dunham avenue and about twenty feet south of Astor. The car passed him before the collision. He says no bell was sounded or other signal given. He says the car was going fast, but will not undertake to say how fast. He says the car ran one hundred feet after the accident before it stopped.

Remie Rich saw the car just before it struck plaintiff’s wagon. He thinks it was going 25 or 30 miles an hour. No bell or other alarm was sounded.

It was admitted by the defendant that the maximum rate of speed allowed by the ordinance at the time of this accident was twelve miles an hour. The ordinance of the city required a bell or gong to be sounded one hundred feet from street intersections and to be continually sounded while passing the same, and that ordinance required the person in charge of each car to keep a vigilant watch for all teams or persons on the track.

At the close of plaintiff’s evidence defendant moved the court to direct the jury to return a verdict for defendant. This motion was overruled, and it is claimed that there was error in that ruling.

It is urged that the plaintiff was clearly negligent in driving on when he saw the car, and that he could have avoided the accident by at once turning his team. It may be true that he could have turned the team so as to avoid the accident. It may be true that he did not pursue the wisest course that could have been pursued; he was only required to do that thing which a reasonable man .under the circumstances would do, and this is not necessarily to do that which on the whole, upon an examination afterward, might have turned out to be the Wisest thing to do under the circumstances. He should do that which one of ordinary prudence would deem under the circumstances to be the wisest thing to do. There was no error in refusing to direct a verdict for the defendant nor any error in refusing to grant a motion for a new trial on the ground that the verdict was against and not supported by the evidence.

If the jury believed the evidence offered by plaintiff, it was justified in finding negligence on the part of the defendant and that plaintiff did not contribute to his injury by his own negligence.

It is urged that the court erred in refusing to charge the jury, as requested by the defendant, the following:

“If the plaintiff voluntarily left the east side of the street and drove onto the track at a rapid trot, when the car was only ninety feet away, there can be no recovery in this case and you should return a verdict for the defendant. ’ ’

If this had been given the jury might have found that the defendant was guilty of all the negligence complained of; that the plaintiff checked up or stopped his team just before he reached Dunham avenue; that he listened for a signal and heard none; that he then drove forward until his horses had actually reached the track before he could see a car; that, then seeing the car approaching rapidly, he, in the exercise of the best judgment he could exercise in that perilous position, urged his horses into a rapid trot across the track, as in his judgment being more likely to save him from accident than to try to back or turn them, and yet that he could not recover. This surely is not the law and ought not to be the law. There was no error in refusing this charge.

It is complained that the court erred in giving the following charge to the jury:

“The plaintiff complains that the defendant was guilty of negligence in that it did not give the signals required by the ordinances; that they violated the speed allowed by the ordinances. The ordinances of the city, it iis agreed, require that the speed at that place shall not exceed twelve miles an hour, and the ordinances also require that signals shall be given at all crossings and 100 feet before coming to them. Of course, it is no element in this case whether the ordinances were violated or not, unless that violation contributed to the injury. All must see that that is true. A motorman, for instance, might not have given signals, or might have been running at an unnecessary speed a little this side of where the accident happened, and might have subjected himself to arrest and punishment for violating the ordinances, but that could have no bearing on this case. So the question whether or not he was running at too high a rate of speed, at a higher rate of speed than twelve miles an hour, whether he give or did not give signal is Important only if the exceeding rate or not giving the signal contributed in any way to this accident. The plaintiff did have a right to assume that that car would be run according to city rules and laws, if I may use those terms. The plaintiff had a right to assume that the car would not run over twelve miles an hour, and he had a right to assume that the signals required would be given; that is, until his senses discovered that there was a violation and that he would have to act in accordance with the conditions that there existed. For instance, he says that the car was running at thirty miles an hour. From the moment that he saw that and knew that or ought to have known that it was running at that high rate of speed, he must act in accordance with that high rate of speed.
“Now, it is upon the plaintiff to establish by a preponderance of the evidence, by the greater weight of evidence, that this accident was caused by the negligence of the defendant, by the failure of the defendant’s agent or'agents to exercise ordinary care under those circumstances.”

It is said this language was in effect to say that the violation of the ordinance as to speed and the violation of the ordinance as to giving the alarm each constituted negligence per se. We do not so understand the language, nor do we think the jury were likely to so understand the language used. There was no error in that part of the charge.

Error is also claimed in the giving of the following to the jury:

“If it be true that the plaintiff without his fault was in a place of danger, then he should only be required to exercise ordinary carefulness to get out of that danger, then, though his acts as determined by subsequent consideration were not of the wisest at that time and place, that would not determine his rights. For instance, it has often happened that in a railroad collision or in some other position of danger, people have jumped out of vehicles or something of that kind and have been injured, whereas, if they had remained in the vehicle they would not have been hurt, as shown by that fact; but the law only requires that there, as everywhere, that one come up to the ordinary standard of human prudence. You can see that must be a reasonable test, and that all that is required of the plaintiff; if in a position of danger he is only required to exercise ordinary prudence under those circumstances. ’ ’

It is complained that this is misleading; that to illustrate by the case of a railroad passenger, to whom the highest degree of care is due, is calculated to impress the jury with the idea that the same degree of care was due to the plaintiff in this case. The criticism is not sound. The court was using the illustration to show that one finding himself suddenly in a place of danger by an unforeseen emergency, for which he was not in fault, was not required to do more than one of ordinary prudence and care, under the same circumstances, would do. The illustration was apt and was not misleading.

Other complaints as to the charge are made, but we find none of them well founded.

Complaint is made that the verdict was for too much. "We have examined the record and we find that the plaintiff was a young man in the best of physical health, and seemed to be a man of extraordinarily fine physical manhood — that as a result of this accident, apparently, certainly immediately following this accident, he suffered greatly. His right shoulder is considerably shrunken. It is true that one of the medical men testified after the accident, that he found that his left shoulder was injured. The evidence is such that we are not prepared to say that the jury must have been influenced by passion or prejudice to have brought in the verdict that they did. That being true, we find no error in this record that would justify a reversal, and the judgment of the court of common pleas is affirmed.

Winch and' Henry, JJ., concur.


text:
    MASTER AND SERVANT
    [Cuyahoga (8th) Circuit Court,
    June 21, 1907.]
    Winch, Henry and Marvin, JJ.
    Guy & Ralph Gray Co. v. Alec Larson.
    Use of Rope Improperly Repaired Held Negligence.
    When the owners of a vessel use a rope which has been repaired by “marrying” the broken ends together, instead of splicing them, and in raising a sail the ends part and allow a pulley to fall upon an employe, they are guilty of negligence,
   MARVIN, J.

On July 25, 1904, .the plaintiff was injured by the falling of a pulley block upon his head, on the lake vessel “Plymouth.” By this accident the plaintiff was greatly injured. He brought suit to recover damages for this injury. The result was a verdict and judgment in his favor.

In this opinion, the word “plaintiff” and the word “defendant” will be used as the parties stood in the court of common pleas. The claim of the plaintiff was that at the time of the injury he was an employee of the defendant, who owned the “Plymouth”; that he was on the vessel as such employe when the mate, who was in charge of the vessel at the time, was using a 1% inch rope through three heavy sheaved wooden blocks. That for this work a rope was used passing over the pulleys in three pulley blocks; that the rope in use on these pulleys had become rotten and unfit for use, so that it became necessary to repair it; that in making the repairs the rope was cut, a part of it taken out, and then the two ends left by the removal of this part so taken out, were fastened together by a process called “marrying,” which consists in sewing together the two ends of the rope by means of cord; that this marrying having been done, the rope was used to raise or swing out the gaff on one of the sails of the vessel. To perform this work two of the pulley blocks were fastened above, or ‘' aloft ” as it is expressed in the petition, and the other pulley was down toward the deck; that in attempting to draw the rope thus married over one of the pulleys, the parts which had been married, separated, allowing the lower pulley, which should have been, as alleged in the petition, near the deck, to fall or swing against the plaintiff, and cause the injury complained of.

The negligence charged in the petition is that the defendant was negligent and careless in not having fastened said lower block to the deck or to some portion of the vessel below, and that it was negligent and careless in not splicing said rope, as said mate knew or ought to have known by the exercise of ordinary care that sewing together the two ends of the ropes would not be sufficient to bear the weight that would be put upon it.

It is not denied that plaintiff was severely injured, but it is claimed that under the facts the jury should not have found that he was an employe of the defendant.

The evidence shows that the vessel came into the port of Cleveland on Friday, July 22; that on the trip which was then ended, the plaintiff was a sailor on this vessel; that on that Friday morning the crew was paid off, including the plaintiff. The plaintiff was then asked if he would go on the next trip, and he answered that he would. He was told that he might be absent from the vessel a part of Saturday. He did leave the vessel and was absent till the evening of that day. When he returned to the place where the vessel was at the time he left it, which was at the lumber dock, she was pulling out, and he called to some one on board to know where she was going, and was told that she was going round to the Ellsworth coal dock. Thereupon he went to that dock, and he says that when the vessel drew up to the dock, a line was thrown out which he caught, and he helped the crew to make the boat fast. He says that he went on deck that night; that he then left the boat and was gone until Monday; that on Monday he returned to the boat, about half past seven o’clock in the morning; that during all of that time he left his clothing on board, that he had no intention of abandoning his employment; that he went on board for the purpose of carrying out Ms contract of employment, which it is admitted was made on the morning that he was paid off; that he started to get his overalls to wear during the performance of his work on the boat, stopping to talk with a fellow sailor, when the accident occurred.

On the other hand it is testified that on Sunday he went upon the boat to pack his clothing, as though to take it from the boat, although it is not claimed that he actually took his clothing away. This he denies.

The jury found that at the time of this accident he was an employe of the company.

As has already been stated, it is admitted that what took place on Friday morning about his returning to the boat, constituted a contract of employment. This contract continued to run until he was either discharged by his employer, or he abandoned his employment. If the jury believed him, they might well have found that he did not abandon his employment, and it is not claimed that he was ever notified by the defendant that he was no longer in its employ; the mate who had charge of the vessel saw him when he was there on Monday, and if the plaintiff is to be believed, must have seen that he was there apparently to go to work on the boat, yet he said nothing to him intimating that his services would not be required.

We think that the jury might welThave found that he was, at the time of this accident, an employe of the defendant.

This brings us to a consideration of the question of whether there was negligence on the part of the defendant causing the injury complained of. The evidence shows that the injury naturally followed from the breaking of this rope, or rather the separation of the parts which had been “married” together.

Was that separation such as should reasonably have been anticipated?

As a part of the bill of exceptions in the case we find a rope with two ends fastened together by the captain of the vessel, upon the trial, for the purpose of showing how parts of rope are married together.

Surely the jury were warranted in finding that this marrying was done as well as marrying would usually be done when it was desired to fasten together parts of rope. Indeed, it was done in the presence of the jury to show what the situation of the rope was after the marrying had taken place. The rope separated at the point where it was married, and allowed the lower block to drop or swing away in such a way as to injure the plaintiff. This separation occurred, so far as can be learned from the evidence, at the time when the married part of the rope was sought to be drawn through the block. For some reason the rope failed to pass over the pulley freely; thereupon the men doing the pulling, under the direction of the mate of the vessel, applied greater power to pulling the rope over the pulley. We think the jury was justified in finding that the separation might have been anticipated. It is said that this marrying was for a temporary purpose only, and that it was customary to so fasten ends of rope to each other for temporary purposes. On the point last named, there is a conflict in the evidence. The fact that the ends were fastened together so that the rope might be used for a temporary purpose did not in any wise relieve the employer from anticipating danger during such use, except as to time. That is to say if this manner of putting the ends of the rope together was unsafe and dangerous, and one which was likely to result in the separation of the two ends of the rope by drawing it over a pulley, then it was dangerous to use it for temporary purposes.

The case was properly given to the jury by the trial judge in his charge. The principles of law by which the verdict should be rendered were clearly announced, and the result was not such as to justify the court in sustaining a motion for a new trial, and the judgment is therefore affirmed.

Winch and Henry, JJ., concur.


text:
    WILLS — WORDS AND PHRASES
    [Cuyahoga (8th) Circuit Court,
    January 28, 1907.]
    Marvin, Winch and Henry, JJ.

      Elizabeth A. Campbell v. Jane C. McCue et al.
    1. Word “Distribution” Held to Refer to the Tim.e Assets were Available.
    A testator directed his executors, after the termination of a life estate, to sell certain real estate and divide the proceeds, one-fourth each to four devisees, subject to the conditions and restrictions thereafter mentioned in the will; another clause in the will provided that if any of the heirs and legatees, mentioned in the will should die before distribution of his estate and without leaving children, their shares would revert bach to the estate and be equally divided amongst the remaining legatees; another clause provided that the share of certain legatees should be held in trust by his executors with power to invest the same in real estate, of which the legatees were to have the use during their' natural lives and at their deaths to pass to their children in such manner as they, by will, or as the law might direct. The executors having sold the'real estate at the termination of the life estate, divided the proceeds, and invested the share of two of thé devisees jointly in other real estate, and one of the devisees on whose behalf said last named real estate was purchased having died without children but leaving a will by which she attempted to .dispose of her interest in said property; Held: The word distribution-as used in testator’s will did not mean the final settlement of the estate, but referred to the time when the assets became available through being divided at the termination of the life estate, and the devisees acquired title at that time.
    2. Right of One to Whom wás Devised an Absolute Estate, Subject to be Divested, to Make Will.
    Under the third item of the will an absolute estate was granted to each of the devisees named therein subject to be divested as to each by their death leaving children; therefore one of them dying without children had a right to dispose of her interest by will.
    Error.

      Affirmed no opinion, Campbell v. McCue, 78 Ohio St. 427; former judgment adhered to no opinion, 79 Ohio St. 445.

   MARVIN, J.

The plaintiff represents that she is the owner of an undivided one-sixth part of certain real estate, described in the petition, and that the several defendants are owners of the remaining five-sixths parts of the same. The defendant, Charles Thomas Manahan, by his cross-petition claims to be the owner of one-sixth of the same premises, and both of these parties pray for a partition of the premises.

The fact is, that the rights of all the parties depend upon the true construction of the will of Charles M. Campbell, deceased. He died testate in 1872, leaving his widow, Ann Campbell, and three children, to wit, Henry M. Campbell, Elizabeth Campbell and Jane Cecelia McCue, and a grandson, the defendant, Charles Thomas Manahan, who was the only child of a deceased daughter of the testator. The son of the testator, Henry M. Campbell, .is not now living, and the plaintiff is his only heir at law, and is entitled, if entitled to anything, to whatever rights her father would be entitled to, were he now living. The said Charles M. Campbell by his will disposed of a considerable estate, including real estate in the city of New York. By the second item of his will he provided among other things the following:

“My beloved wife Ann shall have all my New York real estate for her own use and benefit so long as her natural life shall last.”

The third item of his will reads:

“It is my will that my executors, hereinafter named, at the death of my said wife, Ann, sell all my New York real estate * * # and divide the proceeds of the sale in the manner following, viz: one-fourth part to my son Henry M. Campbell and one-fourth part to my daughter Elizabeth Campbell and one-fourth part to my daughter Jane Cecelia McCue and one-fourth part to my grandson Charles Thomas Manahan, with the restrictions and conditions hereinafter mentioned.”

The testator’s widow died in 1881 and the son, Henry M., died in 1888. The daughter, Elizabeth, died testate and without issue in 1903. After the death of Ann, the executors sold the New York real estate and delivered to Henry M. his one-fourth part of the avails of such sale, and invested for Charles Thomas Manahan in some property (not that described in the petition), une-fourth part of the estate which was to be held for him, and the remaining one-half of the avails of such sale was invested in the real estate described in the petition, for the defendant, Jane Cecelia McCue, and her sister, now deceased, Elizabeth Campbell, to tbe extent that each had an interest in the avails of this sale. The deed to this property was made to John D. Thompson, trustee, he being the only executor who qualified.

In 1895, Thompson resigned as such executor and the defendant, Thomas W. McCue, was appointed to succeed to the trust, and Thompson, as trustee, conveyed to the said Thomas W. McCue, as trustee, the real estate in question. By the terms of the will of the said Elizabeth Campbell, her interest in this real estate was devised to the defendant, Jane Cecelia McCue, for life and at her death to her children. The real question in issue here is whether Elizabeth Campbell had any such interest in this real estate as that she could dispose of it by will, and as has already been said, this depends upon the construction of the will of Chas. M. Campbell.

As bearing upon the question here under consideration attention is called to the fifth item of said last named will which reads:

• “It is my will that if any of my heirs and legatees herein mentioned shall die before distribution of my estate and without children, their shares revert back to my estate and be divided equally amongst the remaining legatees.”

Contention is made here that the word “distribution” as. used in this item, refers to the time when the estate shall be finally settled, and each legatee and devisee shall receive his or her share of the estate. We do not understand the word to be used in this sense, but rather in the sense of referring to the time when the avails of the sale of the .New York real estate should be divided, as provided in the sixth item of the will. This item reads in part, as follows:

“It is my will that my executors herein named hold in trust or invest the bequests herein made to my two daughters Elizabeth and Jane Cecelia and my grandson Charles Thomas Manahan, as follows: They may invest each of said legatees’ share of my estate in any real estate that they may think advantageous and prudent for the use and benefit of each one respectively of said legatees to have and to use the same during their natural life and at their death said real.estate to pass to their children in such a manner as my said legatees may will or as the law may direct as the case may be. ” 1

It will be noticed that it was not contemplated by the testator that joint investment for these three parties was necessarily intended, but they were authorized to invest the share of each in such wise as they should think most advantageous and prudent for the use of each. As a matter of fact they did not invest for the three jointly, but invested in the real estate here in dispute for the benefit of Jane Cecelia and Elizabeth only. If this construction of the word “distribution” as used in this item is correct, nothing more need be said as to this item, and we come then to consider the rights of the legatees and devisees under the' third and sixth items. But for the concluding clause in the third clause there can be no doubt that each of the parties named in that item would have an absolute estate in the property therein named, but this concluding clause “with restrictions and conditions, hereinafter mentioned,” draws our attention to the sixth item to ascertain what those restrictions and conditions are, and we find that the property in which the investment was to be made, they were to have and use during their natural life and at their death said real estate was to pass to their children in such manner as the law may direct, as the case may be.

Had Elizabeth Campbell died intestate, leaving one or more children, or had she died testate, leaving one or more children, to any one or more of whom she had devised her interest in this property, there would be no difficulty in this case, but, as has already been stated, she died without children and she devised this estate to another. Had she any estate to devise? If not, it is clear that the heirs at law of Charles M. Campbell became at the death of Elizabeth, the owners of one-half of this real estate, that is to say of the one-half which during the life-time of Elizabeth was to be used for her sole use and benefit, and in that event, the plaintiff would be entitled to the partition which she asks, as would also the defendant, Charles T. Manahan. The contention on the part of the plaintiff and Manahan, is that as to this fractional part, what remains after the death of Elizabeth, is not'disposed of by the will of Charles M. Campbell. It is said that it is clear that Elizabeth had only a life estate in the property in any event. The property itself was never owned by Charles M. Campbell, but it was purchased with the avails of the sale of property which he owned, and which he by will had directed to be so invested, and which so far as the rights of the parties here are concerned, must be treated as property of which he was the owner at the time of his death, and the question still remains whether Elizabeth had anything but a life estate in the property.

Section 5970 E. S. (Sec. 10580 G. 0.) reads:

“Every devise of lands, tenements, or hereditaments in any will hereafter made, shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate. ’ ’

It is a well settled rule that the presumption is that where one undertakes to dispose of his estate by will he did not intend to die intestate as to any of his property, unless it is clear by the terms of the will that such was his intention. Can it be doubted here that the testator intended by this will to dispose of his entire estate? So far as his New York property is concerned, and it is that with which we have to deal, he has provided that it shall be sold, that the avails shall be disposed of in the manner pointed out in the will, and as to the parties who are to be benefited by the avails of such sale, it is provided, that aside from the share of Henry, it may be invested. As to Elizabeth’s portion, it was invested in the undivided one-half of the real estate in question. By the terms of the sixth item of the will, she was in any event to have a life estate. She would have had an absolute estate but for the last clause of the third item, and but for the provision made as to what should be done with her property in case she died leaving children. No provision is made as to what shall be done with her part in ease she died without children as she did, and we think that so dying the estate was a fee simple in her. "We think so because the testator seems clearly to have undertaken to dispose of his entire estate, and unless she had an estate in fee simple, he did not dispose of his entire estate. We think so because the entire scheme of the will seems to be to provide for his several children and their descendants, providing they shall leave children, and he does not seem to have concerned himself as to what should become of the share of any one of them who died without children.

In the case of Davis v. Corvine, 25 Ohio St. 669, as to certain personal property which was bequeathed to a widow, in these words, “I give, devise and bequeath unto my beloved wife, Caziah Davis, all my personal property and real estate, wheresoever situated of which I shall be seized and possessed, or to which I shall be entitled at the time of my decease, to have and to hold the same unto her the said Caziah Davis, and to her use for and during her natural life,” the court held that this gave to Caziah Davis not only the absolute ownership of the real estate but also of the personal property. On page 675, in the opinion the court uses this language:

“He makes a disposition of enough of his estate to pay debts, funeral expenses, and costs of administration, and then declares that he gives, devises and disposes of the ‘residue of his estate and property as follows.’ * * * Unless the wife took an absolute property in the personal estate, the testator utterly failed to do what he professed and intended to do. And this could hardly have happened from mere forgetfulness or inadvertance; for, in the subsequent parts of the will, he makes particular and detailed dispositions of the remainders in the real estate, but makes no mention of any remainder, or other interest in expectancy, in the personal property.”

So here, this testator made no disposition of any remainder of the avails of the sale of the New York property, except where the first taker died,' leaving children. And surely it can not be said that this was because of forgetfulness, for he remembered all about the property, and he knew and directed just what should be done with it, not only during the lifetime of any one of the parties named, but also upon the death of such one as should die leaving children.

It seems to us that by fair construction of the whole terms of this will it must be held that under the third item of the will an absolute estate was granted to each of the parties named therein, subject to be divested as to each of the three, Manahan, Mrs. MeCue and Elizabeth Campbell, upon the death of either, leaving children. Miss Campbell having died without issue, her estate was never divested. She was, therefore, the absolute owner of it at the time of her death, and could dispose of it by will. It follows that the petition of the plaintiff, and the cross-petition of Charles T. Manaban must be dismissed.

Winch and Henry, JJ., concur.


text:
    CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    February 4, 1907.]
    Marvin, Winch and Henry, JJ,
    O. T. Emerich v. People’s Coal Co.
    Constitutional Provision Concerning Stockholder’s Liability Self-Executing.
    The provision of the Ohio Constitution as to the liability of stockholders in corporations is self-executing and the liability of the stockholder is fixed by it.
   MARVIN, J.

We reach the conclusion, after a careful consideration of these cases, that was reached by the referee, that the provision of the constitution in reference to the liability of stockholders in corporations, as it existed prior to the recent amendment, is self-executing. Whether that be so or not, we reach the conclusion that the legislation of 1903, whereby it was sought to relieve a stockholder from liabililty, is in contravention to the provisions of the constitution, that the act is therefore invalid, including the repealing clause, so that the liability of the stockholder is governed by the statutes as they were prior to that amendment. An opinion has not been prepared on all of the propositions, although every one of them that are involved in this case have been carefully considered.

On this matter of the constitutionality of the law, attention is called in our own state to the ease of State v. Sherman, 22 Ohio St. 411, from which I will not stop to read, and ontside of Ohio, to the case of Willis v. St. Paul Sanitation Co., 48 Minn. 140 [50 N. W. 1110; 16 L. R. A. 281; 31 Am. St. 626], where it is held that Art. 10, paragraph 3, of the constitution of Minnesota providing that each stockholder in any corporation (excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business), shall be liable to the amount of stock held or owned by him, is self-executing.

In Woodworth v. Bowles, 61 Kans. 569 [60 Pac. 331], it is held that the provision of the constitution of Kansas, Art. 12, Sec. 2, thereof which provides that dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law, is not self-executing.

But in Whitman v. Oxford National Bank, 176 U. S. 559 [44 L. Ed. 587; 20 Sup. Ct. 477], in the opinion delivered by Justice Brewer of Kansas in considering this same provision of the constitution of Kansas, he says that the words in this constitutional provision “shall be secured” are not merely directory to the Legislature to make provision for such liability, but themselves declare it. To this extent the Constitution is self-executing.

In Farmers’ Loan & Trust Co. v. Funk, 49 Neb. 353 [68 N. W. 520], it is held that Art. 11, Sec. 7, of the constitution of Nebraska, which provides that every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors over and above the amount of stock by him held to an amount equal to his respective stock or shares so held, for all liabilities accruing while he remains such stockholder, etc., is self-executing.

We reach the conclusion, therefore, that the liability of the stockholders to the creditors is exactly as it was prior to the statute of 1902. The subscription made by all those persons who subscribed to the blanks made them stockholders.

We reach the conclusion that was reached by the referee as to each of the parties in the case, and a decree will be drawn accordingly and exceptions noted.

Winch and Henry, JJ., concur.


text:
    INTOXICATION
    [Cuyahoga (8th) Circuit Court,
    February 11, 1907.]
    Winch, Henry and Marvin, JJ.

      Henry Flandermeyer v. Helena Urbanowitz et al.
    One Drunken Companion Not Liable for Carelessness of Another Drunken Companion Driving.
    An intoxicated person is not liable for an injury caused by the negligent driving of a horse and buggy by a drunken companion with whoml he had spent the day riding and drinking; they are not engaged in a joint undertaking.
    Error.

      Affirmed no opinion, Urbanowitz v. Flandermeyer, 79 Ohio St. 450.

   MARVIN, J.

Helena Urbanowitz, a minor, by her next friend brought suit against Henry H. Flandermeyer and Henry Wolkensdorfer, charging that the defendants by their negligence on May 2, 1905, on Clifton street, in the city of Cleveland, drove a horse attached to a buggy in such wise as to collide with and greatly injure her, and she prays for judgment against them.

The facts are that on the day named Flandermeyer and Wolkensdorfer started out together with a horse and buggy belonging to said Wolkensdorfer. They drove about the city of Cleveland, stopping at various places to drink intoxicants until they both became intoxicatecL At the drinking places where they stopped each treated the other to liquor. All of the driving was done by Wolkensdorfer, the owner of the horse and buggy. Flandermeyer rode with him in his buggy. Flandermeyer had no control of the turnout in any wise. Wolkensdorfer drove as a drunken man would be likely to drive and, by his careless and negligent driving, drove against and injured this girl. Flandermeyer was in no condition to have bettered the manner of driving if he had interfered. As a matter of fact he did not interfere. In the court below a recovery was had against both Flandermeyer and Wolkensdorfer, and it is urged here that this judgment should be sustained, because Flandermeyer is not excused from the performance of any duty by reason of his intoxication. Suppose this to be true, what duty did he owe to this girl for the failure to perform which he would be liable in damages to her if she was injured ? It may be that if one sees another in a place of peril from which he can rescue such other, and he fails to do it, he may become liable. On this we express no opinion; but even though that be true, yet if the party who sees the one in peril and who is thus in peril through no fault of his, is too drunk to render assistance, it can hardly be claimed that he thereby becomes liable for the injury to such other person. Suppose a child falls into a pool of water in the presence of a bystander, through no fault of such bystander but under such circumstances as that the bystander, if in possession of all his faculties could readily rescue the child, and he does nothing to effect such rescue, possibly he would be liable in damages. Can it be said that if such bystander is so drunk that he is without the power to rescue the child, he should be held liable in damages for failure to make the rescue?

True, for any injury inflicted by himself upon the child his drunkenness is no excuse, but can it be held that his failure to rescue the child because of drunkenness is not excused?

The court in this case charged the jury that if the defendants were engaged in a joint enterprise, then the act of each was the act of both, in so far as the acts were performed in pursuance of this joint enterprise.

If the facts had warranted such a charge as this, the law was doubtless properly stated, but it had no application to this case. These parties were not in contemplation of law engaged in a joint enterprise simply because Flandermeyer was riding with Wolkensdorfer in Wolkensdorfer’s buggy and they each contributed to the drunkenness of the other, so that they both became drunk, and Wolkensdorfer negligently drove his horse to the injury of this child.

The judgment of the court of common pleas against Flandermeyer is reversed, because the verdict was against the evidence, and because the charge was misleading, in so far as it discussed the liability of those engaged in a joint enterprise. The motion for a new trial should have been sustained on both of these grounds.

Winch and Henry, JJ., concur.


text:
    MORTGAGES
    [Cuyahoga (8th) Circuit Court,
    February 18, 1907.]
    Winch, Henry and Marvin, JJ.

      Ohio Savings & Loan Co. v. Ada Weber.
    Grantee of Purchaser at Judicial Sale Bound by Agreement to Assume Mortgage.
    When real estate is sold by an administrator under an order of the probate court in a proceeding to sell lands to pay the debts of a decedent, and it is stated both in the administrator’s report of the sale made to the court and in his deed to the purchaser, that the purchaser takes the land subject to a mortgage which she assumes and agrees to pay, the grantee of such purchaser will take the property subject to such mortgage, even though the mortgagee did not set up its mortgage upon these particular premises in the action to sell them and there was no finding of the probate court of the amount due him.

      A. W. Barber, for plaintiff.

      Solders & Solders, for defendant.

      Judgment modified, Leist v. Ohio Savings & Loan Co. 79 Ohio St. 472.

   MARVIN, J.

The facts in this case are that on May 3, 1892, Tbomas Franklin was tbe owner of certain real estate described in the petition in this action; that the defendant, Ada Weber, was then the wife of said Thomas Franklin; that at the date last named this husband and wife executed and delivered to the plaintiff in this action a certain written obligation, whereby they undertook and agreed to pay to said plaintiff the sum of $880 of principal and $440 premium. These payments were to be made in one hundred and twenty monthly installments of $11 each. To secure the payment of this obligation the said Thomas and Ada Franklin executed and delivered to the plaintiff their mortgage deed upon the premises described in the petition; the money undertaken to be paid by this obligation, and the payment of which was secured by this mortgage, has not all been paid.

Subsequent to the execution of this obligation and mortgage the said Thomas Franklin died, leaving Ada, his widow, who has since inter-married with one Charles Weber, who is made a defendant in this action. After the death of the said Thomas Franklin one F. A. Sarstedt was appointed administrator of his estate and as such he filed in the probate court of this county a petition for the sale of the land described in the petition herein, for the purpose of paying debts of the deceased. To that petition the plaintiff herein was made a party and this allegation in relation to it is made in the petition:

“The defendant, the Ohio Savings, Loan & Building Company, have or claim to have some lien on or in said premises; plaintiff therefore prays that said defendant may be notified of the pendency hereof according to law, and the defendant lien-holder be required to answer and set up its claim and liens, if any, on said premises.”

In the schedule of debts attached to said petition to sell the real estate are these words: “Mortgage of $850 due Ohio Savings & Loan Association at the time Thomas Franklin died.”

No answer was filed by the savings and loan company to this petition, but an entry of appearance was made in these words:

“We, the undersigned parties defendant to the petition in this case waive the issuing on service of summons and voluntarily enter our appearance as such defendants, and we do hereby consent to the sale of real estate described in said petition as therein prayed for. * * *
“Ohio Savings, Loan & Building Co.,
“Henry Grumbacher,
“Sec. and Treas.”

This petition was filed on May 5, 1896, and on the same day the court found the allegations of the petition to be true and ordered the premises to be sold.

Thereafter a sale was made by the administrator at private sale, to the defendant, Ada Franklin (now Weber), and on September 1, 1897, a return of such sale was made to the court in these words:

‘ ‘ In obedience to the command of the within order of sale, I did on the 13th day of May, 1896, offer said property at private sale, and Ada Franklin having offered therefor the sum of $1,200, $600 being cash and assumes mortgage of $600 and the same being not less than the appraised value of said property, I sold the same to said Ada Franklin for that sum.
“Frank Sarstedt.”

This sale was confirmed by the probate court and the administrator was ordered in these words:

“And directs the administrator to execute and deliver to the purchaser a good and sufficient deed of said property.”

Thereupon the administrator executed and delivered to Ada Franklin (now Weber) a deed to the premises which recites the proceedings in the probate court and proceedings in these words:

“Whereas the said Frank A. Sarstedt, as aforesaid sold said premises to Ada Franklin, for the sum of $1,200, $600 paid in cash, and mortgage for $600 assumed, and the said Ada Franklin having complied with the terms of said sale, * * * now, therefore, I, the said Frank A. Sarstedt, as aforesaid, in consideration of the premises, and by virtue of the powers in me vested by law and the orders of said court, do hereby give, grant, bargain, sell and convey unto said Ada Franklin, all the right, title and interest of said deceased and of the several defendants named in said petition in and to the real estate aforesaid.”

Subsequent to the giving of this deed the defendant, Ada Weber, mortgaged this property to the defendant, Otto I. Leisy, and thereafter suit was brought in the court of common pleas to foreclose this mortgage, in which proceeding the premises were sold, and purchased by said Otto I. Leisy. The plaintiff in this action was not made a party in said proceeding to foreclose the Leisy mortgage. >

The plaintiff in the present action prays for a foreclosure of the mortgage given to it by Thomas and Ada Franklin. The defendant, Leisy, sets up the proceedings had upon the foreclosure of the mortgage given to him and prays that his title may be quieted as against the plaintiff. The claim of Leisy is that the plaintiff having failed to answer in the probate court in the proceedings to sell the real estate, and no finding having been made in such proceedings that it had a lien on this property by virtue of its mortgage, and the deed made in pursuance of the order of the court in that case, expressly conveying, not only all the interest of the deceased, Thomas Franklin, but also of the interest of the lienholders in the premises the mortgage here sought to be foreclosed is in law canceled and is now of no effect.

It will be noticed that in the petition to sell real estate filed by the administrator, .it does not distinctly appear that the plaintiff here had a mortgage upon the premises sought to be sold, although it does appear that there was a mortgage debt owing by the decedent to the plaintiff in the action, but for all that appears in the petition that debt may have been secured upon some other real estate of the decedent and not upon the real estate sought in that action to be sold. If this petition to sell be considered to mean that the mortgage debt scheduled was a mortgage upon the property sought to be sold, then there was a finding to this extent that the court found the allegations of the petition to be true; but surely this was not a finding of any certain amount due to this plaintiff upon that mortgage. It can not be denied that the proceedings in the probate court were very carelessly conducted. The plaintiff should have answered in that action if it claimed a lien on these premises, and should not have contented itself with the statements in the schedule attached to the petition that the decedent owed a mortgage debt to it.

The probate court should have made a finding as to whether the plaintiff in this action had any interest in the property sought to be sold in the proceeding to sell real estate, but for some reason, the proceeding went through without any such finding by the court.

As a matter of fact the report made to the probate court of the sale, which states that the sale is made to Ada Franklin for the sum of $1,200, $600 cash, and assumes a mortgage for $600, meant, and was understood to mean, that the purchaser assumed the mortgage debt then owing to this plaintiff in the sum of $600, and that the sale so reported and meaning such assumption of this mortgage, was approved by the probate court. It ought not to have been, but it was; and the deed made to the purchaser showing that as a part of the purchase price a mortgage for $600 was assumed by the purchaser, meant that she assumed the payment of the mortgage sought in this action to be foreclosed, to the amount of $600.

Ada Franklin understood that she was assuming this mortgage debt; that is, that she not only assumed to pay the debt, but that she received the property with the mortgage still upon it to this amount.

This being so, she is estopped from denying the validity of this mortgage.

In argument of the case here attention is called to the distinction between the assumption on the part of a purchaser of real estate of a debt secured by mortgage, and the taking title subject to a mortgage, and there is clearly a distinction. In the one case the purchaser becomes bound to pay the entire amount of the debt thus secured; in the other, it is only the equity of redemption which is conveyed, and the creditor may subject the mortgaged property to the payment of his debt, but can have no further claim against the purchaser, but the assumption of the mortgage debt by the purchaser in no wise lessens the right of the creditor to subject the mortgaged premises to the payment of the debt. See Lawrence v. Fox, 20 N. Y. 268.

In the case of Riley v. Rice, 40 Ohio St. 441, it is held, that where a husband and wife to secure their joint note executed and delivered a defective mortgage on land, which was the general property of the wife, and afterwards sold and conveyed the same land, subject to the mortgage, supposing it to be perfect, the holder of the debt secured by the defective mortgage had a lien superior to that of the holder of a claim secured by a mortgage executed by the purchaser of the premises, whose deed excepted the mortgage which was in fact defective.

The court says in reference to a deed given by the husband and wife, and after the execution of the defective mortgage, “the recitals are particular and style it a mortgage, and recognize it as an incumbrance and lawful claim on the premises for the full amount. ’ ’

And further on the court says, speaking of the grantee in the deed containing the exceptions:

“He surely understood the land was bound for it, and it presumably entered into the consideration of his purchase, * * * he took title subject to plaintiff’s claim and is estopped to deny the due execution of the mortgage.”

In the case of Scanlan v. Grimmer, 71 Minn. 351 [74 N. W. 146; 70 Am. St. 326, 329], the court in its opinion uses this language :

“A vendee who accepts a conveyance of land subject to a mortgage thereon and containing a covenant whereby such vendee assumes and agrees to pay said mortgage, is estopped from asserting that the obligation secured thereby is usurious. The whole title of such vendee rests upon the conveyance, and the continued existence of the mortgage as an encumbrance forms a part of it. The conveyance is evidence of title, and when proven, as such evidence, the existing mortgage and the assumption thereof is also proven. A grantee can not be permitted to claim title both under and against the same deed; to insist upon its efficacy to confer a benefit and rephdiate a burden with which it has qualified it; to affirm a part and reject a part.”

In Gibson v. Lyon, 115 U. S. 439 [29 L. Ed. 440; 6 Sup. Ct. 129], it is held:

“The sanction of the court to a conveyance under proceedings and judgment for foreclosure of a mortgage in the Orphans’ Court of Philadelphia being a judicial act, such a deed describing the estate as conveyed subject to an outstanding mortgage, estops the grantee from denying the validity of the mortgage.”

In this last named case one Sarah A. Jermon had title vested in her by conveyance by one Rice, and Rice’s title was acquired by a conveyance approved and confirmed by the Orphans’ Court of Philadelphia. Each of these conveyances contains a recital that it is made under and subject to the payment of a mortgage. The court, at pages 446-447, says:

“It is true that the statute of Pennsylvania, by which the sale ordered by the Orphans ’ Court was authorized, act of April 18, 1853, provides that ‘by every such public sale the premises sold shall be discharged from all liens;’ and it is also true that the sale prayed for in this instance was of the premises, ‘clear, and discharged of all liens in the hands of the purchaser,’ and that the sale to Rice, approved and confirmed by the court, was for the sum of $10,500, the full price and consideration of the purchase; yet it is equally true, as appears from the recitals in the deed to Rice, which was duly acknowledged before the Orphans’ Court, that of the consideration, as finally agreed upon between the parties, there was actually paid in cash only $5,500, the remainder being represented by the existing mortgage to the Reliance Mutual Insurance Company, under and subject to which the conveyance was made, approved and accepted. ’ ’

Ip the present case it does not appear that conveyance by mortgage to Leisy was made subject to the mortgage to the plaintiff here, but when Leisy took his mortgage he was put upon inquiry as to what title the mortgagor had in the premises, and had he made examination of such title, he would have found that the deed to Ada was subject to a mortgage to this plaintiff ; that she assumed to pay the mortgage debt, as has already been said. The land was no less-bound for the payment of that debt because Ada took a deed in which she assumed to pay it. Her liability was greater than it would have been had she taken a deed subject to the mortgage, but the right to subject the land to the payment of the debt was the same in each case, that is, whether she assumed to pay the debt, or simply took the land subject to the mortgage debt. So then Leisy, deriving whatever title he has from Ada, and having notice by the deed to her and the proceedings in the probate court that she held the land subject to this mortgage to the present plaintiff, his title was subject to that mortgage, and the plaintiff is entitled here to a decree of foreclosure, its lien being superior to any rights which Leisy has in the premises.

Winch and Henry, JJ., concur.


author: SHIELDS, J.

text:
    CHARGE TO JURY — MUNICIPAL CORPORATIONS
    Delaware (5th) Court of Appeals,
    1914.
    Voorhees, Shields and Powell, JJ.
    Delaware (City) v. Metropolitan Construction Co.
    1. Whether Contractor’s Work on Street Improvement Delayed to His Damage by City Question for Jury.
    Whether or not a contractor was hindered, to his damage, in the completion of a street improvement by the action of the city engineer in suspending the work at times and by obstruction of the street by the building of a bridge and failure to cause railway tracks to be removed, are questions for the jury under the evidence, and a finding by the jury in favor of the contractor upon such an issue will not be disturbed by a reviewing court when not manifestly against the weight of the evidence.

      2. Judge Referring Pro and Con to Evidence Not Erroneous if Not Made In Argumentative Way.
    It is not error for a trial judge in giving proper instructions upon material issues with the application of the law thereto, to refer to the evidence pro and con and. the claims of the contending parties with reference to the issues joined, if such reference is not made in an argumentative way.
    Error.

      Arthur J. White, City Solicitor, and Berne J ones, for plaintiff in error.

      Marriott & Freshwater and Overturf & Rough, for defendant in error.
   SHIELDS, J.

This was an action for damages growing ont of an alleged breach of a contract entered into on August 10, 1905, between one J. F. Gantz and the city of Delaware, Ohio, the plaintiff in error, for the improvement of certain streets in said city. After-wards the said Gantz, for a valuable consideration, assigned and transferred said contract, and all his interest in and rights thereunder to the Metropolitan Construction Company, defendant in error.

In the court below several causes of action were originally set out in the plaintiff’s amended petition, all of which it appears have been determined and adjudicated except what is designated as the plaintiff’s amended second cause of action, which forms the subject of controversy here and which is now before this court.

It appears from said amended petition that said contract was for the improvement of Sandusky street from University avenue to the north line of the Free Public Library lot and Winter street from Sandusky street to the west line of Franklin street in said city, by grading, under-draining, curbing and paving the same, for which the said contractor was to receive from said city certain prices named in said contract for the labor and material for the improvement of said streets as set forth in said amended petition.

It is averred in said amended second cause of action that the contract mentioned in the first cause of action, in addition to the provisions therein recited, which are referred to and adopted, provided that the work should be commenced at such point as the civil engineer of said city might designate, and that not more than two adjoining squares in length should be torn up at one time; that said engineer might from time to time suspend the work at certain places if in his opinion the public needs required it, but that said engineer should not have the right to stop the work altogether for more than one week at a time, except when in the opinion of said engineer the weather was not suitable for doing the work he might cause the work to be suspended. That the said Gantz fully performed said contract on his part and completed said improvement about November 27, 1906, when the defendant, the city of Delaware, accepted said improvement; that during the performance of said contract said Gantz worked under the supervision and direction of the said defendant and complied with its various orders and requirements. It is further averred in said second amended second cause of action that for the purpose of enabling the said Gantz to carry out said contract he ordered and purchased large amounts of material and hired a large number of skilled and other workmen, and transferred and shipped a large number of tools and suitable equipment for street paving work to said city and expended large sums' of money in anticipation of the performance of said contract, and that he could easily with such provision made have executed and completed said improvements by December 1, 1905, under the terms of said contract, except for the negligent acts, unreasonable and wrongful orders and failures of the said defendant, in this, that the said defendant unreasonably, wrongfully and negligently hindered and delayed said contractor in the performance of his said contract by wrongfully permitting parties to occupy and use said streets to the hinderance and delay of said contractor in the performance of his said contract; that said city through its engineer ordered suspension of work many times, in both 1905 and 1906, for longer periods than one week, at a time for causes other than weather conditions, as provided in said contract; that said city failed to grant said contractor possession of said streets to be improved, two squares at a time or even one square at a time, as provided in said contract; that said city through its engineer many times during the working season of 1905 ordered the said contractor to begin work at a certain point on said streets, and by the time the material, tools and workmen were moved to that point said city through its engineer arbitrarily, wrongfully and without just cause ordered either a suspension of the work at that point or a renewal of the work at another point; that by reason of such arbitrary, unreasonable, wrongful, negligent, continuous and repeated hinderances and repeated delays during the season of 1905, the said contractor was prevented from completing and was unable to complete said improvement and said contract during said season of 1905; that by reason of such wrongful acts of the said city said contractor was at divers times during said season of 1905 compelled to discharge his workmen and teams, and when ordered to proceed with said work he was put to great expense in securing other workmen and teams, for office rent and salaries, for loss of time and railroad expenses of himself and foreign workmen; that during the year 1905 he was put to further extra expense in obtaining labor, teams and material, the prices of which had advanced, and that by reason thereof the labor and material cost $12,913.33 more than it would have cost if said contractor had been permitted to have had possession of said streets and had been permitted to perform said contract during the year 1905; that by reason thereof said contractor was compelled to pay additional amounts for salaries, to wit: for bookkeeper, the sum of $1,000; for two foreman, the sum of $2,000; for traveling expenses and loss of time of said contractor the sum of $3,000; for interest on the amount invested in said contract, the sum of $600; for office rent, fuel and light, the sum of $250, in all the sum of $6,850 and an additional sum to replace the paving brick that had been broken, the sum of $147.50, all to the amount of $19,910.83, to said contractor’s and now plaintiff’s damages in said sum of $19,910.83, with interest thereon from January 1, 1907.

It is further averred that from the time said contract was entered into and while said contractor was engaged in the performance of said work, said Sandusky street was occupied by a street railroad companjq operating an electric street railroad thereon, with double tracks on a part thereof, under a franchise by the council of said city; by the terms and conditions of which said city reserved the right at any and all times to improve said streets by paving and repaving, and that whenever said city deemed it proper to so improve said streets, said railroad company by the express terms and conditions of said franchise was required to pave between its tracks and for one foot on each side thereof, and if deemed proper by the city to take up and remove from said streets its tracks and rails so as to allow said streets to be so improved, and give to the city free and unobstructed use of the streets during said improvement; that when the contractor entered into the contract herein sued upon for the improvement of said streets, and when said defendant city entered into said contract, it was with the knowledge of the terms and conditions of said franchise, and with the understanding and agreement that said city would require compliance with the conditions of said franchise on the part of the said railroad com-party in the removing of its tracks while said improvement was being carried on; and but for said knowledge, understanding and agreement said contract would not have been entered into by said contractor; that it was the duty of the defendant city in order to enable the contractor and said construction company to perform said contract of paving, to require said railroad company to comply with the provisions of said franchise and to take up and remove its tracks entirely from the streets and to so move and shift its tracks as to enable said contractor to occupy and have possession of said streets for the purpose of carrying out its contract without hinderance or obstruction; that said defendant city wrongfully and negligently refused to perform its duty in that respect, and negligently refused to require said railroad company to give plaintiff possession of the streets, and by reason of said neglect and refusal said contractor was prevented from having possession of said streets and was hindered and delayed in the work of grading and paving said streets under said contract, and was not given possession of the whole of said streets or a part of two blocks thereof at any one time, or of one block, and thereby and by reason whereof said contractor was greatly hindered and unreasonably and wrongfully obstructed as hereinbefore shown in the performance of his said contract, and thereby suffered the expense and loss hereinbefore complained of.

It is further averred in said amended second cause of action that after entering into the contract for the improvement of said streets, the said city wrongfully entered into a subsequent contract with one Hazleton to enter upon Sandusky street, where the Delaware run crosses the same, and tear out the bridge and walls of the bridge and to build a large arch over said Delaware run while said contractor was in the performance of his said contract, said city through the said Hazleton had the possession of said Sandusky street at that point, and prevented the said contractor from having the use of said street for the purpose of fulfilling his contract, and delayed him for the space of more than thirty days in the performance of his work, to his great damage as hereinbefore complained of.

That by reason of the facts stated herein the said Metropolitan Construction Co. says there is due it from the said city of Delaware the sum of $19,910.83, with interest from the 1st day of January, 1907.

To the foregoing amended second cause of action, the city of Delaware by its answer admitted said contract and that the said J. F. Gantz performed said contract on his part to be performed and that said improvements were completed on or about November 27, 1906, and were accepted by said city, bnt said city denied the other allegations of said amended second cause of action not specifically admitted in said answer to be true.

Upon the issues made up by the foregoing pleadings, said cause was submitted to a jury resulting in a verdict for the plaintiff. A motion for new trial was overruled and judgment was entered upon the said verdict. A bill of exceptions was taken containing the evidence introduced upon the trial, including the charge of the trial court to the jury, and said cause by a petition in error filed by the plaintiff in error is before this court for review.

Numerous grounds of error are alleged for the reversal of the judgment of the court below, but four of which only were urged upon the attention of this court:

First, that the court below erred in overruling the objection of plaintiff in error to the admission of any testimony on the part of the defendant in error on the ground that the allegations of the amended second cause of action were insufficient in law, and did not constitute a cause of action against the plaintiff in error.

Second, that the court erred in overruling the motion of the plaintiff in error made at the close of defendant in error’s testimony to arrest the testimony from the jury and render judgment for the plaintiff in error.

Third, that the verdict of the jury is not sustained by the weight of the evidence and the law.

Fourth, that the court erred in its charge to the jury. It appears that the sufficiency of the allegations of this amended second cause of action, in this action, or a cause of action containing in substance the same allegations as in the cause of action before us, was passed upon by the circuit court of this county at a former term thereof; that proceedings in error were prosecuted to the Supreme Court to reverse the said judgment of the said circuit court; that said judgment was by the Supreme Court affirmed, and the cause remanded for further proceedings. In view of this, the duty of this court is plain, and we therefore hold that the first ground of error alleged is not well taken.

For a like reason the second ground of error alleged is also held not to be well taken.

The ground of recovery as claimed by said contractor was based upon the allegations in said amended second cause of action of the defendant in error that said contractor was unnecessarily and wrongfully obstructed, delayed and hindered in the prosecution of carrying out said contract within a reasonable time by the action of the plaintiff in error, and that as a result thereof said contractor suffered loss and damage as claimed in said cause of action. It need scarcely be remarked that the rights of the parties hereto are to be governed by the provisions of said contract, of which the specifications attached thereto form a part. As is usual in such cases, the specifications point out the manner in which the work of the improvement shall be done, the bind of material to be furnished and the prices to be paid therefor, and in this instance no time limit was named for the completion of said improvement. One of the streets to be improved was represented to be one of the main thoroughfares of said city and it was undoubtedly the intent and purpose of the contracting parties that the work thereon should be done in a reasonable time after the work was commenced to avoid inconvenience to .the traveling public and other resulting disadvantages to the inhabitants of said city. It is sufficient to say that in the absence of a time limit being fixed for the performance of the contract the implication is that a reasonable time for performance is intended. 2, Page, Contracts, Sec. 1154, and authorities cited.

Here the evidence shows that the improvement on Winter street was completed in some eighteen days after said contract was signed, possibly about September 1, 1905, and that the improvement on Sandusky street which covered about three times the distance as that covered on Winter street was not completed until November 27, 1906. Of course the physical conditions may have been different on the two streets, which would not permit of like progress being made on both of said streets; the weather conditions, too, are not to be overlooked, but taking the conditions as the contractor found them on commencing said work, it is contended that said city wrongfully permitted parties to occupy said Sandusky street, and refused and failed to give the contractor possession of said streeet, or parts thereof, as provided by said contract, so that instead of completing said improvement on said Sandusky street during the year 1905, as he could and would have done but for such action on the part of said city, he was obliged to return to said city and finish said work the following year, to his damage as alleged in said amended second cause of action. All liability on this ground was denied by said city, hence the burden was upon the contractor to make proof of his claim in the respects mentioned, and if so made, was said city liable ? As already stated, no time limit having been fixed in said contract for the completion of said work, said city would have reason to expect that said improvement would be completed within a reasonable time, and in the absence of intervening causes over which the contractor had no control, the contractor would be liable for a breach of such contract, and, on the other hand a corresponding obligation would rest upon said city not to unreasonably delay the contractor in the prosecution of his said work, for one party to a contract may make it impossible to perform the contract, or may delay the performance, or if a contractor has himself suffered damage by reason of such delay he may recover damages. Page, Contracts, Sec. 1444-1445, et seq.; Langford v. United States, 95 Fed. 935; Toledo v. Libbie, 8 Circ. Dec. 589 (19 R. 704).

An examination of the bill of exceptions with reference to this assignment of error, without going into the details of the evidence, tends to show that the contractor in carrying on the work of this improvement was more or less embarrassed and hindered by delays occasioned by various causes, among which was the action of the street railroad company operating an electric railroad on said Sandusky street, and the action of said city in causing to be constructed a bridge over what is known as Delaware run, over both of which said city had control. Under the law said city had the supervision and control of its streets, and it also had the power under the terms and conditions of the franchise granted by it to said railroad company to compel said railroad company to remove its tracks to permit of said improvement being made on said Sandusky street, and refusing, it had the right to seek the aid of the courts to compel observance of its rights by injunction. Other causes of delay existed as shown in said bill of exceptions, all of which were questions of fact for the determination of the jury.

Under the question of notice to said city that the work of the contractor was being interfered with and delayed by obstructions put in his way by the action of said city and that such delays were to his disadvantage and to his damage, we think the evidence shows that said city was repeatedly given such notice by the contractor. We further think that the principle laid down in the case of Westwater v. Scioto Valley Pool Co., 32 O. C. C. 121 (12 N. S. 382), is not applicable to the case at bar.

Under a full and careful examination of the evidence offered and introduced upon the trial in respect to the suspension of this work by the engineer of said city in respect to said city failing to grant said contractor possession of said Sandusky street for the carrying on of said improvement on said street as contemplated by the terms and provisions of said contract, bearing in mind that the jury are the judges of the weight of the evidence, and that reviewing court should be slow to disturb their finding unless for good and sufficient reasons, we are unable to say that the evidence in this case is manifestly against the weight of the evidence or contrary to law.

It is also urged that the court below in its charge to the jury was not impartial or fair, so much so, that said charge was prejudicial to the rights of plaintiff in error in this, that said court unduly emphasized the proposition of unreasonable delay on the part of said city as claimed by said contractor and laid undue stress and emphasis upon the necessity of said city performing those things reserved to it under said contract to be performed, especially to the related action of the city to said street railroad company in reference to the furnishing and putting down rails for the street railroad on said street, and the alleged delay occasioned thereby. We have examined said charge with reference to this objection and we fail to find anything that indicates partiality, bias or prejudice in defining or describing unreasonable delay therein when said court referred to the effect of the alleged refusal and neglect of the street car company to furnish such rails as said city ordered to be furnished. Having power to compel said street railroad company under the terms and conditions of said city ordinance granting said franchise to remove its rails for the paving and repaving of said street if its failure to do so resulted in causing unreasonable delay to the contractor in carrying on Ms work on said street whereby he was damaged, such unreasonable delay would be chargeable to said city. It is urged by plaintiff in error that because of the foregoing and other like instructions in the court’s charge to the jury said trial court erred, to the prejudice of the plaintiff in error. We certainly approve the citation by counsel for plaintiff in error of Washington Mut. Ins. Co. v. Merchants & Manfrs. Mut. Ins. Co., 5 Ohio St. 450-482:

“A court, in charging a jury, may very properly call the attention of the jury to the evidence, in order to show the application of the law governing the case, or the legal purpose and effect of the testimony, but the statement of the evidence by the court argumentatively so as to give the jury the manifest conclusion of the court as to the fact submitted to their determination, is uniformly condemned as improper.”

And further, that the trial court should not first argumentatively state to the jury the circumstances shown in the proof of a case and after intimating to the jury the views of the court upon such proof, then state to the jury “but you are the sole judges of the facts,” etc.

We also fully subscribe to the doctrine quoted from Weiss v. Bethlehem Iron Co., 88 Fed. 23, wherein the court held C

“ It is error for the court to submit the evidence and theory of one party prominently and fully to the jury and not call their attention to the main points of the opposite parties of the case. ’ ’

Both of the foregoing propositions are good sense and sound law. They contain the elements of fairness and nothing short of this is justice to litigants. Courts are created to administer the law — to all alike — and nothing short of this will satisfy the aim of the law. Hence it is that courts in their charge to the jury should not arrogate to themselves the province of the jury by assuming to determine the facts in the case, or to state the law applicable to the facts on one side in a case, only, but should state the law fairly and fully as applied to all the material facts in a ease. Here it is claimed by the plaintiff in error that the major part of the charge of the court below was devoted to the theory upon which the defendant in error might recover, and that undue prominence was given by said court to the jury of the alleged unreasonable delays claimed to have been suffered by the defendant in error on account of the action or non-action of the plaintiff in error. An examination of said charge shows that said court called the attention of the jury to the claims of both the plaintiff in error and the defendant in error and instructed the jury in reference to each and every material issue thereof, not argumentatively, but simply called.the attention of the jury to so much of the evidence as seemed necessary to show the application of the law in the case. Of course the charge is to be considered as a whole, and not any particular portion of it as if standing alone. No special requests in writing were submitted to be charged, nor were any requests made orally to be charged, only a general exception being taken to the charge at the conclusion thereof. As was said by the court in the case of Toledo v. Radbone, 23 O. C. C. 268 (3 N. S. 382) :

“It is not competent for one who has filed a general exception to the charge of the court to afterwards select a single sentence or paragraph for complaint where the court was not asked to charge specifically upon that point. He must take the whole charge together.”

And upon the subject of showing the trend of judicial thought in cases where prejudicial error has not intervened in the charge of a trial court, we refer to the holding of the court in the case of Baird v. Burton Telephone Co., 30 O. C. C. 107 (10 N. S. 163), wherein said court while finding there was error in the charge of the court below found that such error was not prejudicial and further held:

“Where the whole evidence adduced upon the trial is made part of the record by a bill of exceptions, the court in determining whether the judgment should be reversed will examine the evidence as well as the charge with a view to determine whether under all circumstances substantial justice has been done, and if it has the judgment will not be reversed for error in the charge. ’ ’

Again in Kauther v. Vigransky, 32 O. C. C. 650 (12 N. S. 48), it is held:

“Errors of law, if any occurred during the trial of the case are not prejudicial where the verdict is fully sustained by the evidence. ’ ’

Upon the whole ease, we are of the opinion that said ease was fairly tried; that the charge of the court below fairly stated the law applicable to the issues raised upon the pleadings and the evidence in the case, and although there may have been technical errors in said charge we are of the opinion that they were not prejudicially erroneous to the rights of the plaintiffs in error and do not justify a reversal of the judgment of the court below.

We have also examined said bill of exceptions with reference to the other assignments of error contained in said petition in error and we find no such error therein as to justify a reversal of the judgment of the court below.

The judgment of the court of common pleas will therefore be affirmed, with costs. Exceptions may be noted.

Voorhees and Powell, JJ., concur.