author: Spear, C. J.

text:
    Scheinesohn v. Lemonek.

      Attorney to have a percentage of an account for collectioii — Entitled to agreed amount where client takes account from attorney — Attorney’s right of action on contract — Error for court to instruct jury — It may consider• nature of attorney’s services— Contract law.

    1. Where an attorney at law accepts an account for collection with • an agreement that he is to have as compensation twenty-five per cent, of the amount collected, and the client, without sufficient cause, and without giving .the attorney a reasonable time to make collection, wrongfully takes the account out of the hands of the attorney, a right of action for such breach of contract accrues at once in favor of the attorney, and upon establishing by proof that the account was a collectible claim, is entitled to recover damages. The measure of damages is not what is finally collected on the claim by some one else, but is the rate of compensation fixed by the contract.
    2. In a suit to recover generally for attorney’s fees for professional services claimed to have been rendered by plaintiff for defendant, it is error for the court to instruct the jury that if they “find the plaintiff rendered services for defendant at his request, and the service was of value to him you can take into consideration in that matter the nature of the service, and benefits that he has derived therefrom, or might have derived therefrom.”

      (No. 12010
    Decided June 30, 1911.)
    Error to the Circuit Court of Hamilton county.
    The controversy out of which the present proceeding in error arises was commenced in the court of a justice of the peace of Hamilton county, by the defendant in error against the plaintiff in error, and thence appealed to the court of common pleas of that county. The petition on appeal declared in general terms upon a claim for professional services alleged to have been rendered as an attorney at law of the value of three hundred dollars, without stating what the services were. The answer admitted that defendant below employed plaintiff below to do some work for him for which he agreed to pay plaintiff one dollar and a half, which he offered to pay and is willing to pay, but which plaintiff refused to accent, and. denied that defendant is indebted to plaintiff in any other sum. The allegations of the answer with respect to agreement that defendant was to pay plaintiff the sum of one dollar and a half, and that such a sum was offered, were denied by the reply.
    At the trial evidence was given by plaintiff tending to show that services were rendered by him in three matters, one known as the Glassmeyer matter of the value of twenty-five dollars, the same relating to the completion of a building contract. Another known as the Toohy matter, the evidence tending to show that a claim for two hundred and sixty dollars against Sarah Toohy was placed in plaintiff’s hands for collection by defendant, but that the same was taken out of his hands by defendant before plaintiff had collected any of said sum, and defendant had agreed to pay plaintiff twenty-five per cent, of the amount he should collect. In the third matter, known as the Adams matter, plaintiff’.s evidence tended to show that plaintiff had rendered services in relation to a certain alleged blackmailing letter received by defendant; that he had consulted with defendant for several hours on different days and had obtained an affidavit from the writer exonerating defendant.
    On defendant’s part evidence was given tending to show that the only service rendered by plaintiff in the Glassmeyer matter was to write a letter, for which he offered plaintiff a dollar, but the same was refused on the ground that defendant was a regular client. Also testimony tending to show that in the Toohy matter- plaintiff did not collect any of the amount due and that he gave up the account and refused to collect it. Also, that in the Adams matter, he had consulted plaintiff only in reference to a collection demanded from Adams, a letter having been received by defendant to the effect that if credit were not given the writer, trouble would be made defendant; that defendant did not employ plaintiff to secure any affidavit from Adams, but that plaintiff suggested the obtaining of a statement from Adams which he said would cost one dollar, and forty cents notary’s fee; that defendant offered plaintiff one dollar and a half, but plaintiff then demanded five hundred dollars.
    The jury returned a verdict for the plaintiff below in the sum of one hundred and eighty-six dollars. Judgment was thereupon entered for plaintiff which was affirmed by the circuit court. Scheinesohn brings error.

      Messrs. Hoffman, Bode & LeBlond, for plaintiff in error.
    When a court charges, or attempts to' charge on any matters which are at issue in the pleadings, it should charge fully on that, subject and not leave the charge misleading or misdirecting so that a jury would fail to get a full understanding of the law in the case, and that in this charge the court should have pointed out to the jury what constituted a reasonable opportunity to perform the employment for which he was hired. It should have charged that the jury should consider what services were performed in the matter, what benefit the client received by reason of those services, and having touched on the point in part it was an error for the court to fail to properly . instruct the jury on all the law applicable to the case. Haish v. Payson, 107 Ill., 365; Savings & Loan Co. v. Haley, 8 N. P., 557; Gas Co. v. Wiler, 1 N. P., N. S., 277; Christy v. Douglas, Wright, 485; Selover v. Bryant, 54 Minn., 434; Holmes v. Holland, 29 W. L. B. 115; Kittredge v. Armstrong, 28 W. L. B., 249; 3 Am. & Eng. Ency. Law (2 ed.), 419; People v. Supervisors, 45 N. Y., 202; Reves v. Hyde, 14 Daly (N. Y.), 431.
    We submit on authority of these decisions that the court having attempted to charge on the facts, should have charged fully, and that having failed to do so; and having, included in his charge that the attorney was. entitled to receive fees accord? iñg to the benefit to be derived therefrom by the client, or which he might have derived therefrom, has put a purely speculative case to the jury whereby 'they were misled, and it makes no difference whether in fact they were misled or not, the charge is erroneous. Lowe v. Lehman, 15 Ohio St., 179; Insurance Co. v. Reed, 33 Ohio St., 283; Insurance Co. v. Sherlock, 25 Ohio St., 50; Jones v. Bangs, 40 Ohio St., 139; Rapp v. Becker, 4 C. C., N. S., 139.

      Mr. Frank Seinsheimer, for defendant in error.
    ■ There being no question in the case- as to the fact that services were rendered as 'appears- from the pleadings, the court was correct in its statement to the jury that “as there is no question made as to the plaintiff’s rights-to sue, or that the services were rendered, you will direct your áttention,” etc.
    The plaintiff in error has contended in his brief that there was a • question' as to whether ' or not services were • rendered; but the pleadings show to the contrary and as there is no bill of exceptions here containing the evidence, we are left to judge this from the pleadings alone.
    The entire contention made befóte this court is that there was error in the charge of the court; no bill of exceptions containing the evidence, is before the court.’ Lalond v. Toledo, 6 C. C., N. S., 241.
    Unless therefore the court was in error in its statement of some abstract principle of. law, this, court will not. review .the charge for the reason that no evidence being before this court the chargécan not be applied to the facts which were shown to exist.
    Again it will be noted that parts of the charge only are taken and considered, while it is a rule of law that the charge must be taken as a- whole. Church v. Wilson, 9 C. C., N. S., 636; Railroad Co. v. Weinstein, 16 O. F. D., 365.
    It has been held in a long line of decisions that if an erroneous instruction is given it must have been prejudicial to warrant á reversal. Berry v. State, 31 Ohio St., 219; Banning v. Banning, 12 Ohio St.; 437; Fuller v. Coats, 18 Ohio St., 343; Railroad Co. v. Strader & Co., 29 Ohio St., 448; Baird v. Telephone Co., 10 C. C., N. S., 163; Way & Co. v. Langley, 15 Ohio St., 393.
   Spear, C. J.

Objection is made by defendant in error that the bill of exceptions in the record does not contain and does not purport to contain all the evidence given at the trial, and that therefore there is nothing in the record that a reviewing court can review. We think the conclusion does not follow. There appears to be enough in the bill of exceptions to raise the questions of law which are sought to be raised, although the bill is not of such character as to warrant a review of the case upon the evidence.

The principal error urged in this court relates to the charge of the court to the jury. Among other instructions the court gave to the jury the following:

• “As there is no question made as to the plaintiff’s right to sue or that the services were rendered }mu will direct your attention as to what if any agreements were made between the plaintiff and the defendant as to the amount of compensation for the first and third items and as to the second item as to whether the plaintiff abandoned the collection or whether the defendant took it out of his hands.
“If you believe from the evidence that the plaintiff performed' for, or rendered to the defendant legal services and that there was an agreement between them either before or after they were performed as to the price of compensation for such services then the plaintiff has a right to recover for. such services at- the agreed price and no other. If the defendant took a claim out of the plaintiff’s hands without giving him a reasonable opportunity to collect the same he is entitled to recover the agreed price on the sum collected by the defendant or any other person.
“If a client employs an attorney of a specific action, that is an entire contract. And if you find that the attorney broke the contract himself or acted in such a manner as to make the relation of attorney and client no longer possible, you must find that the attorney is not entitled to any compensation for such items of service.
“On the other hand, if you find that the plaintiff rendered services to the defendant at his request and that that service was of value to him you can take into consideration in that matter the nature of the services or benefits that he has derived therefrom, or might have derived therefrom, also the amount involved in fixing the amount if you find that the plaintiff is entitled to recover.”

In at least three particulars we think the foregoing embodies erroneous instructions. The record shows nothing to justify the statement to the jury that there is no question but that the services were rendered. The answer admits that some services were rendered, but it does not admit that the services claimed by the plaintiff to have been rendered were in fact'rendered. The petition is so general in its terms as to give no information respecting* plaintiff’s, claim other than that he rendered service as an attorney of the value of three hundred dollars. The answer is scarcely more definite, but it is definite enough to put in issue the demand of the plaintiff and put the plaintiff to his proof. It is not to be assumed, therefore, in support of the charge, that there was evidence given at the trial as to any admission by defendant with respect to the rendering of service inconsistent with the answer. Therefore the court should not have said to the jury that there was no question made that the services were rendered.

2. Referring to the pleadings and the statement in the bill as to the evidence, it is ■ clear that the testimony respecting the Toohy claim was a manifest variance from the petition, that pleading being a statement of a demand for services rendered and the testimony respecting the Toohy claim tending to support a declaration for a breach of contract by which plaintiff was prevented from rendering service. Such evidence was clearly inr competent, but the question of error as to that feature of the case seems not to have been saved. It is adverted to here because it seems to throw" light upon the entire proceeding.

■' The court’s instruction that if the defendant took a claim out of the plaintiff’s hands without giving him a reasonable opportunity to collect the- same he is entitled to recover the agreed price on the sum collected by the defendant or any other person is not, we think, an accurate statement of the law. The case .made’by the record presents a new question, one not .exactly paralleled by any case to which our attention has been called. The case is differentiated from many to be found in the books where attorneys have been discharged after entering upon the work by the fact that in this case no service had been rendered while in the other class of cases the attorney had rendered service and was allowed to recover on a quantum meruit. It is held in French v. Cunningham, 149 Ind., 632: “It is well" settled that, where the complete performance of an attorney’s service had been rendered impossible, or otherwise prevented, by the client, the attorney may as a rule recover on a quantum meruit for the services rendered by him,” citing numerous authorities. Also, that, “if the compensation agreed upon is contingent on the successful result of the suit, the measure of damages is not the ’.contingent fee, but the reasonable value of the ■services rendered,” citing additional authorities. The court adds: “But, whatever may be the rule as to other contracts, the rule as to contracts employing attorneys, is as we have shown, that if the same is broken by-’ the client the attorney may recover on a quantum meruit for the reasonable •value of the services, or he may sue on the contract. and recover damages for its breach.” The latter observation seems to have in view the loss by the attorney of whatever-value there is in-the' contract and to indicate that he may, by a suit for the breach, recover whatever damage he can prove he suffered including the loss of a valuable contract.

The question we have is by no means without its difficulties. It seems, as before stated, to be practically new so far as the books are concerned, although there are cases which possibly reach it in principle. It is not proposed to enter upon a review of all the cases treating of the general question, but a brief reference to a few may be useful.

Hochster v. De Latour, 20 E. L. & Eq., 157, was an action by a courier on a contract of employment for three months beginning June 1, 1852, for specified monthly wáges. Averment of readiness and willingness to enter upon the employment and perform the service. Breach that defendant, before said first of June, discharged the plaintiff and wholly broke and put an end to his promise. Held, that after the refusal by defendant plaintiff was entitled to bring action immediately, and that the jury might take into account all that had happened to the day of trial to increase or mitigate the loss.

Howard v. Daly, 61 N. Y., 362, approaches our case closely. The plaintiff was an actress and made a contract with Daly, a theatrical manager, to perform at the Fifth Avenue theater, for the season commencing September 15, 1870, and ending July 1, 1871, at a stipulated salary per- week. She was ready and willing to perform on her part, but the defendant repudiated the contract and refused to allow plaintiff to enter upon the service. It appeared that she had endeavored to obtain like employment at other theaters, but failed. The opinion is exhaustive and able, reviewing a great number of decisions. The holding is that plaintiff’s remedy was not an action for wages but for damages for breach of contract and that the damages were prima facie the amount of the wages for the full term.

In Baldwin v. Bennett, 4 Cal., 392, which was for breach of contract with an attorney for legal-services for an agreed compensation, where the client settled the claim without knowledge or consent of plaintiff, a recovery for the contract price was had, the court holding: “The general rule as to the measure of damages, in an action for the breach of contract, is the actual loss sustained. But where from the nature of the contract no possible mode is left of ascertaining the damage, we adopt the only measure of damages which remains, and that is the price agreed to be paid.”

Coffee v. Meiggs, 9 Cal., 363, was a suit brought to recover damages for the breach of an agreement to employ plaintiff to make certain alterations on a steam engine, he to furnish all material; the compensation to be $1,000 provided the alterations produced the desired result-; otherwise nothing. In the progress of the work the defendant stopped it. Plaintiff had judgment for the amount named in the contract. This judgment was affirmed, the court following the case in 4th California, supra, and holding that: “Where, from the nature of the contract it is not practicable to ascertain the amount of damages sustained by a breach of contract, the measure is the price agreed to be paid.”

Kersey v. Garton, 77 Mo., 645, was a suit for attorney’s fees. Plaintiff was employed by defendant to bring suit for certain land for a fee contingent upon success. The suit was brought and. was being prosecuted when defendant refused to have the cause proceed. Plaintiff had judgment. This judgment was affirmed, the court holding that: “If an attorney is' prevented by his client from completing his employment, he will be entitled to recover his fees as if the contract was fully performed.”

Webb v. Trescony, 76 Cal., 621, was for attorney’s fees. Plaintiff was employed to defend certain suits at an agreed compensation of $950. Plaintiff appeared and did all things necessary for over a year when defendant discharged him. Plaintiff recovered $950 and costs. This was affirmed, the court following earlier cases and holding that: “When an attorney at law is employed to defend certain suits' at an agreed price,- and is discharged from employment without cause before the suits are concluded, having fully performed the contract upon his part until discharged, the measure of damages for breach of the contract of employment is the full contract price agreed upon by the parties.”

After considerable reflection, and search of authorities, the majority of the court is led to the-conclusion that a cause of action accrued to plaintiff, for breach of contract, so soon as the claim was wrongfully taken out of his hands. If, then, at the trial, he established that the account was a collectible'-claim, á right to recover followed, and that right did not depend at all on whether the claim was afterward in fact collected by some one else. ■ Proof of such fact might establish the collectibility of the claim, but it was not essential to plaintiff’s right to recover. Then, what was the measure?- No rule seems wholly free from objection. The attorney had performed no service; hence the rule of 'quantum meruit does not apply; nor does it appear that the defendant had been in any way benefited. But the value of the attorney’s anticipated services had been fixed by the agreement of the parties. In the absence of any other ascertained rule of damage why may not this sum be taken as the one nearest in contemplation of the parties, and the one nearest a fair solution? The majority think it is, and that a recovery on that basis, properly ascertained, might attain a result not involving injustice and at the same time afford reasonable recompense to the party who, by the wrong of the other party, has lost the advantage of a valuable contract. Contracts such as the one before us are in their nature dissimilar from the ordinary contract of employment. Peculiar and confidential relations are often formed, and it not infrequently happens that in the relations thus brought about the attorney obtains private information respecting his client’s business which he may not afterwards divulge. This consideration would prevent in some cases which might be easily supposed, the discharged attorney from taking employment from the opposite party. Such instances would be rare, still they occasionally occur, and a rule of damage which would entirely ignore this consideration would hardly meet with general approval. These considerations, and the fact of the impracticability of ascertaining a satisfactory measure of damage sustained by the attorney from such breach differentiates the case presented from that involved in a case of ordinary employment, and. it is believed, justify fixing the measure of damages at the rate of compensation agreed to be paid.

3. The instruction that in case the jury should find that the plaintiff was entitled to recover for services, the jury might take into account the benefits defendant might have derived therefrom, is also erroneous. This instruction introduces the element of speculation, guesswork that is, and is necessarily misleading and prejudicial. Haish v. Payson, 107 Ill., 365.

The judgments below will be reversed and the cause remanded.

Reversed.

Davis, Price, Johnson and Donahue, JJ., concur. Shauck, J., concurs in the reversal of the judgment and in the second paragraph of the syllabus.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11642.
    The Ingersoll Amusement Co. v. Stiles.
    Decided March 14, 1911.
    Error to Circuit Court of Mahoning county.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in'error. Mr. George Edwards and Mr. D. F. Anderson, for defendant in error.
    Judgment reversed. Grounds stated in journal entry.
   • It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming, and in not reversing the judgment of the court of common pleas of Mahoning county in the case of Marietta Stiles v. The Ingersoll Amusement Company. And proceeding to render the judgment which said circuit court should have rendered,

It is considered and adjudged that the judgment of said court of common pleas in the said cause be, and the same ’is hereby, reversed for error in the admission of evidence and for overruling the motion for new trial, there being a fatal variance between the allegations of negligence in the amended petition and the evidence given at the trial, and for failure of proof to support the averments of negligence in said amended petition.

Spear, C. J.," Sh'auck,' Price," Johnson and Don api ue, JJ., concur.


text:
    No. 11678.
    Jones v. The Mahoning Valley Railway Co.
    Decided March 14, 1911.
    Error to Circuit Court of Mahoning county.

      Mr. T. H. Gillmer and Messrs*- W. S. Anderson & Son, for plaintiff in error. Messrs. Arrel, Wilson & Harrington, ■ for defendant in error.
   Judgment affirmed. because of error in refusing the "tenth request to charge.

Spear,. C. J., Si-iauck, Price and Donai-iue, JJ., concur.


text:
    No. 11686.
    The Toussaint Shooting Club v. Schwartz et al.
    Decided March 14, 1911.
    Error to Circuit Court of Ottawa, county.

      Messrs: Lynch & Day and Messrs. True & Crawford, for plaintiff in error. Mr. William Gordon, for 'defendants in error.
    Judgment reversed and judgment for plaintiff in error. Grounds stated in journal entry.
   This cause came on to be heard upon the transcript of the record of the circuit court of Ottawa county, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court, that the judgment of said circuit court be, -and the same hereby is, reversed for error of the circuit court in its conclusions of law upon the facts found by that court. And that said plaintiff' in error recover from the defendants in error its costs herein expended, and that the defendants pay their own. costs.

And it appearing that the circuit court has found in ‘its second finding of fact that the lessors of the defendants in error never owned to exceed one-fourth interest in the premises in dispute; and it further appearing that the lease found in the third finding of fact to have been executed to the defendants in error by the owners of this one-fourth interest was riot executed and acknowledged as required by law, was not recorded and was not a paper entitled to record, and, therefore, did not convey an estate in said lands, or any part thereof, for a term of ten years or for a term of five years, but only from year to year at the will of the parties; this court coming now to render the judgment upon such findings of fact that should have been rendered by the circuit court,

It is further ordered and adjudged that the defendants in error be, and they hereby are, perpetually enjoined and restrained from trespassing upon the property described in plaintiffs petition and from interfering, in any manner, with the exclusive rights of the plaintiff in error in its possession of said land for the purposes set forth in the petition of plaintiff.

It is further ordered and adjudged that the plaintiff in error recover from the defendants all its. costs expended in this action and that defendants pay their own costs, for which execution is awarded.

Davis, Price, Johnson and Donahue, JJ.,' * concur.


text:
    No. 11690.
    Davies, Jr., Auditor, et al. v. Acklin.
    Decided March 14, 1911.
    Error to Circuit Court of Lucas county.

      Mr. H. C. Webster, prosecuting attorney, and Mr. James S. Martin, for plaintiffs in error, Mr. B. A. Hayes, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 11705.
    The City of Urbana v. Maggert.
    Decided March 14, 1911.
    Error .to Circuit Court of Champaign county,
    ikfr. G. P. Seibert and Mr. C. B. Heiserman, for plaintiff in error. Mr. G. V. FrommeMr. A. C. Bolinger and Messrs. Waite & Deaton, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11711.
    Bond v. Harding et al.
    Decided March 14, 1911.
    Error to Circuit Court of Harrison county.

      Messrs. Hollingsworth & Worley, for plaintiff in error. Messrs. Perry & Rowland, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 11712.
    The Wheeling & Lake Erie Railroad Co. v. Calcott et al.
    Decided March 14, 1911.
    Error to Circuit Court of Harrison county.

      Messrs. Hollingsworth & Worley and Messrs. Squire, Sanders & Dempsey, for plaintiff in error. Mr. R. H. Minteer, for defendants in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11725.
    The Lake Shore Electric Ry. Co. v. Mills.
    Decided March 14, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. M. B. & H. H. Johnson and Mr. T. H. Hogsett, for plaintiff in error. Messrs. R. B. & A. G. New-comb and Messrs. Skiles, Green & Skiles, for defendant in error.
   Judgment affirmed, the errors complained of not being prejudicial.

Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur.


text:
    No. 11790.
    The East Ohio Sewer Pipe Co. v. Adams.
    Decided March 14, 1911.
    Error to Circuit Court of Jefferson county.

      Mr. A. C. Lewis and *Mr. J. O. Nayler, for plaintiff in error. Mr. P. P. Lewis and Mr. J. W. Porter, for defendant in error.
   Judgment affirmed.

Davis, Shauck, - Price, Jopinson and Donahue, JJ., concur.


text:
    No. 12817.
    The State, ex rel. Scobie, v. Cass et al., County Building Commission, et al.
    Decided March 14, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Smart, Marvin & Ford, for plaintiff in error. Mr. John A. Cline; Mr. Walter D. Meals; Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews; Mr. Ferdinand Jelke, Jr., and Mr. James G. Stezvart, for defendants in error.

    Judgment affirmed. Grounds stated in journal entry.
   The judgment of the circuit court of Cuyahoga county having been affirmed generally by entry of March 14, 1911, the following supplementary entry under date of March 28, 1911, was made:

■ ' The judgment of affirmance. of the'judgment of the circuit court of Cuyahoga county,, entered at page 591 of .this journal, is/based upon' the proposition that the work of ’ building the court house became and was a “proceeding” within the meaning of Section 26 of the General Code, as illustrated by the reasoning of the circuit court, in its opinion, 32 C. C, 208, and was not affected by the provision of Section 2338 of the Code.

/ .Whether the work of interior decoration was or not competitive work is not passed upon.

Spear, C. J., Davis, Spiauck, Price and, Donahue, JJ., concur.


text:
    No. 11704.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Moon et al., Trustees of Brown Township.
    Decided March 21, 1911.
    Error to Circuit Court of Miami county.

      Mr. C. B.' Heiserman, for plaintiff in error. Mr. Alva-B. Campbell; Mr.- William H. Gilbert and Mr. -Leonard H. Shipman, for defendants in error.
   Judgment reversed on authority of Railroad Co. v. Village of Roseville, 76 Ohio St., 108, and judgment for plaintiff in error on the undisputed facts.

Spear, C. J., Davis, Spiauck and Price, JJ., concur.


text:
    No. 11720.
    Mazelin et al. v. Mazelin et al.
    Decided March 21, 1911.
    Error to Circuit Court of Licking county.

      Mr. .Frederic M. Black and Messrs: Kibler & Montgomery, for plaintiffs in error. Messrs. Smythe & Smythe; Messrs. Fulton & Fulton and Mr. T. B. Fulton, for defendants in error.
    Judgment reversed: Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming and in not reversing the judgment of the court of common pleas of Licking county. And proceeding to render the judgment which said circuit court should have rendered, it is considered and adjudged by this court that the judgment of the court of common pleas of Licking county in said cause be and the same is hereby reversed for error in excluding and in not admitting in evidence the agreement of'March 14, 1904, the said agreement being, in the judgment of this court, competent -as contradictory evidence or impeaching evidence; that it was material, and that its exclusion was prejudicial error.

" Spear, C. J., Davis, Sitaucic, Price and Johnson, JJ., concur. Donahue, J., not participating.


text:
    No. 12434.
    The Board of Commissioners of Crawford County et al. v. Denzer.
    Decided March 21, 1911.
    Error to Circuit-Court of Crawford county.

      Mr. C. FI. Henkel and Messrs. Finley & Gallinger, for plaintiffs in error. Mr. I. C. Tobias and Mr. R. V. Sears, for defendant in error.
   Judgment'affirmed, there not being enough of the record printed to show the error complained of.

Spear, C. J., Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12473.
    Germond et al. v. The Conneaut Mutual Loan & Trust Co. et al.
    Decided March 21, 1911.
    Error to Circuit Court of Ashtabula county.

      Mr. Allen M. Cox and Mr, H. G. Kingdom, for ' plaintiffs in error. Messrs. Perry & Hitchcock, for defendants in error.
   Judgment affirmed.

Davis, Shauci-c, Price and Johnson, JJ., concur.


text:
    No. 12474.
    Federal Glass Co. v. Petruschke.
    Decided March 21, 1911.
    Error to Circuit Court of Franklin county.

      Messrs. Arnold, Morton & Irvine and Mr., C. E. Blanchard, for plaintiff in error. Messrs. Watson, Stouffer & Davis, for defendant in error.
   Judgment affirmed.

Shauck, Price and Johnson, JJ., concur.


text:
    No. 12617.
    The City of Cincinnati v. Hynicka, Treasurer, et al.
    Decided March 21, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Edward M. Ballard, city solicitor, and Mr. Geoffrey Goldsmith, assistant city solicitor, for plaintiff in error. Mr. Henry T. Hunt, prosecuting attorney; Mr. Alfred Bettman and Mr. Stanley W. Merr ell, assistant prosecuting attorneys, and Mr. Louis A. I ret on, for defendants in error.
   Judgment affirmed on authority of City of Cincinnati v. Lewis, Auditor, 66 Ohio St., 49.

Spear, C. J., Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12623.
    Harmon, Receiver, v. Brown.
    Decided March 21, 1911.
    Error to Circuit Court of Lucas county.

      Mr. Julian H. Tyler and Mr. Morison R. Waite, for plaintiff in error. Messrs. Marshall & Fraser and Mr. George C. Bryce,' for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Price, Joi-inson and Donahue, JJ., concur.


text:
    No. 12771.
    The State, ex rel. The Sentinel Co., v. Sockman et al., Commissioners, et al.
    Decided March 21, 1911.
    Error to Circuit Court of Wood county.

      Mr. N. R. Harring-' ton and Messrs. McClelland & Bowman, for plaintiff in error. Mr. William Dunipace and Mr. Benjamin F. James, for defendants in error.
    Judgment affirmed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby affirmed on the ground that the circuit court of Wood county found the facts in issue in the case between the parties against the plaintiff in error and in favor of the defendants in error, and that said finding of facts by the circuit court is controlling in this court with respect to the facts of the case, and it appearing to the court that there were reasonable grounds for this proceeding in error, it is ordered that no penalty be assessed herein.

Davis, Spiauck, Jopinson and Donahue, JJ., concur.


text:
    No. 11726.
    The State, ex rel. West, v. Wright, Auditor.
    Decided March 28, 1911.
    Error to Circuit Court of Cuyahoga county.
    Mr.. William C. Rogers and Mr. A. Lawrence, for plaintiff in error. Mr. John A. Cline, prosecuting attorney; Mr. Walter D. Meals and Mr. Fielder Sanders, assistant prosecuting attorneys, and Mr. John L. Cannon, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 11739.
    Timlin v. Munnelly et al.
    Decided March 28, 1911.
    Error to Circuit Court of Mahoning county.
    Mr. Charles Koonce, Jr., and Mr. Thomas McNamara, Jr., for plaintiff in error. Messrs. Arrel, Wilson & Harrington, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Sitauck, Price, Jopinson and DonAi-iue, JJ., concur.


text:
    No. 11755.
    Baughn et al. v. Coil et al.
    Decided March 28, 1911.
    Error to Circuit Court of Fayette county.
    Mr. Frank A. Chaffin; Mr. John N. Baughn and Mr. Humphrey Jones, for plaintiffs in error. Mr. John Logan, for defendants in error.
   Judgment affirmed.

Davis, Price and Donapiue, JJ., concur.


text:
    No. 11758.
    Gaston v. The Youngstown & Ohio River Railroad Co. et al.
    Decided March 28, 1911.
    Error to Circuit Court of Columbiana county.

      Mr. .P. M.. Smith, for plaintiff ,in error. Messrs. Squire, Sanders & Dempsey; Mr. Wm. M. Duncan and. Messrs. Metzger & Smith, for defendants in .error.
    Judgment. modified. Grounds stated in journal entry.
   This court, proceeding to give construction to the decree'and judgment of said circuit court of November 2, 1908, finds and adjudges that the order directing the plaintiff in error to execute and deliver to the said railroad company a deed of the premises requires . only a deed of a right of way, and does not require the delivery of a deed conveying title in fee simple.

This court further finds and adjudges that the true construction of that portion of said judgment and decree whereby the clerk of the court is directed to enter on the record in the office of the recorder of the county, a transfer of title to said premises to the railroad company, ought to be and is that the entry shall show, and the effect of the record so made will be, the transfer of title to a right of way only over said premises.

Giving further construction to said judgment and decree, this court finds and adjudges that the -same contains nothing preventing. plaintiff in error from insisting upon the stopping at the platform of a reasonable number of cars daily and from enforcing such right in all proper and legal ways, which right is hereby expressly reserved to him. And the judgment of the circuit court, as here modified, is affirmed.

Spear,- C. J., Davis, Erice and Johnson, JJ., concur. . .


text:
    No. 11766.
    York v. Champion Iron Company.
    Decided March 28, 1911.
    Error to Circuit Court of Scioto county.

      Mr. T. C. Anderson, for plaintiff in error. Mr. George E. Crane and. Mr. Henry Bannon, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12460.
    The Wm. Heffron Construction Co. et al. v. Coleman, Sr.
    Decided March 28, 1911.
    Error to Circuit Court of Hamilton county.

      Messrs. Littleford, Frost & Foster, for plaintiffs in error. Mr. Thomas L. Michie, for defendant in error.
   Judgment affirmed.

Price, Johnson and Donahue, JJ., concur.


text:
    No. 12476.
    The State, ex rel. Mathews, v. Fitzgerald et al., Deputy State Supervisors and Inspectors of Elections, et al.
    Decided March 28, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. P. L. A. Lieghley and Mr. M. W. Beacon, for plaintiff in error. Mr. John H. Price and Mr. U. G. Denman, attorney general, for defendants in error.
   Petition in error dismissed because of the fact that the expenses of the primary election have been paid, and the question involved is now a mere moot question.

Spear, C. J., Davis, Shaúck, Price, ' Johnson and Donahue, JJ., concur.


text:
    No. 12492.
    McAlister v. Hagan et al.
    Decided March 28, 1911.
    Error to Circuit Court of Stark county.

      Mr. W. O. Werntz and Messrs. Shields & Pomerene, for plaintiff in error. Messrs. Welty & Albaugh and Messrs. Webber & Turner, for defendants in error.
   Judgment affirmed.

Davis, Shaucic, Price and Johnson, JJ., concur. Donahue, J., not participating.


text:
    No. 12493.
    Sturges et al. v. Lutz.
    Decided March 28, 1911.
    Error to Circuit Court of Rich-land county.

      Mr. W. H. Gilford and Mr. H. B. Dirlam, for plaintiffs in error. Messrs. Lutz & Lutz and Mr. W. S. Kerr, for defendant in error.
   Judgment affirmed.

Davis, Shaucic, Price and Johnson, JJ., concur. Donahue, J., not participating.


text:
    No. 12498.
    Lothamer et al. v. McAllister.
    Decided March 28, 1911.
    Error to Circuit Court of Stark county.

      Mr. E. L. Mills and Mr. W. J. Piero, for plaintiffs in error. Messrs. Shields & Pomerene and Mr. W. O. Werntz, for defendant in error.
   Judgment affirmed.

Davis, Si-iauck, Price and Johnson, JJ., concur. Donahue, J., not participating.


text:
    No. 12499.
    Snyder v. McCoy.
    Decided March 28, 1911.
    Error to Circuit Court of Wayne county.

      Mr. Celsus Pomerene and Mr. W. S. Hanna, for plaintiff in error. Mr. L. R. Critch

      Held, Sr., and Mr. L. R. Critchñeld, Jr., for defendant in error.
   Judgment affirmed.

Si-iauck, Price and Johnson, JJ., concur. Donahue, J., not° participating.


text:
    No. 12503.
    Van Buskirk, Admx., v. The New York, Chicago & St. Louis Railroad Co.
    Decided March 28, 1911.
    Error to Circuit Court of Putnam county.

      Mr. A. A. Slaybaugh and Messrs. Bailey & Leasure, for plaintiff in error. Mr: John H. Clarke and Messrs. Watts & Moore, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12709.
    General Railway Signal Co. v. Valois, Admr.
    Decided March 28, 1911.
    Error to Circuit Court of Lucas county.

      Messrs. Smith & Baker, for- plaintiff in error. Mr. Stephen Brophy,' for 'defendant in error.
   Judgment affirmed.

■ Spear, C. J., Davis, Price, Johnson and Donai-iue, JJ., concur.


text:
    No. 11716.
    Chapman v. Mahoning Valley Railway Co.
    Decided April 11, 1911.
    Error to Circuit Court of Mahoning county.

      Mr. Frank Jacobs and Mr. D. J. Hartwell, for plaintiff in error. ■ Messrs. Arrel, Wilson & Harrington, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Si-iauck, Johnson and Donahue, JJ.,' concur.


text:
    No. 11718.
    Butler v. Morris et al.
    Decided April 11, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Solders, Thayer & Mans-held, for plaintiff in error. Messrs. Westenhaver, Boyd, Rudolph & Brooks, for defendants in error.
   Judgment affirmed.

Davis, Sitauck and Price, JJ., concur.


text:
    No. 11729.
    Preusser v. Dikob et al.
    Decided April 11, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. Herman Preusser and Mr. Francis J. Wing, for plaintiff in error.. Mr. M. P. Mooney; Mr. L. I. Litzler; Messrs. M. B. & H. H. Johnson and Mr. S. A. Grossner, for defendants in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 11746.
    Holland, Admr., v. Maxwell et al., Exrs.
    Decided April 11, 1911.
    Error to Circuit Court of Greene county.

      Mr. M. R. Snodgrass, for plaintiff in error. Mr. Charles L. Spencer and Messrs. Maxwell & Maxwell for defendants in error.
   Petition in error dismissed on authority of Collins v. Davis, 33 Ohio St., 567; and Andrews v. City of Youngstown, 35 Ohio St., 218.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11750.
    Allen et al. v. Blaser et al.
    Decided April 11, 1911.
    Error to Circuit Court of Franklin County.

      Mr. J. W. Coulter; Messrs.

      Mitchell & Bruce; Mr. R. V. Sears; Mr. R. W. Johnston; Mr. O. W. Aldrich and Mr. S. ~M. Bennett, for plaintiffs in error. Mr. M. R. Patterson, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur.


text:
    No. 11768.
    Wolfe, Jr., et al. v. The Junction City Sewer Pipe Co.
    Decided April 11, 1911.
    Error to Circuit Court of Perry county.

      Messrs. Abernethy & Folsom, for plaintiffs in error. Messrs. Donahue & Spencer, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Price and Jopinson, JJ., concur.


text:
    No. 11776.
    The City of Dayton v. Goldsberry.
    Decided April 11, 1911.
    Error to Circuit Court of Montgomery county.

      Mr. Philo G. B run gam, city solicitor; Mr. Walter V. Snyder, Mr. Charles J. Brennan and Mr. William A. Pohlman, assistant city solicitors, for plaintiff in error. Mr. D. B. Van Pelt and Messrs. Fitzgerald & Sprigg, for defendant in error.
    Judgment affirmed. Grounds stated in journal entry.
   This court is of opinion that the evidence offered at the trial with respect to plaintiff forgetting about the condition of the timbers of the bridge was properly excluded, and that the circuit court in holding that ruling to be error was in itself in error as to that matter. But this court being further of opinion that the cause should have been submitted by the court of common pleas to the jury, and that that court therefore erred in sustaining the motion to direct a verdict for all the defendants, the judgment of the circuit court reversing the judgment of the court of common pleas and remanding the cause to that court for further proceedings with respect to the claim of the plaintiff below against the city of Dayton is affirmed.

Spear, C. J., Johnson and Donahue, JJ., concur.


text:
    No. 11784.
    Blackwell v. The Ohio Consolidated Oil Co.
    Decided April 11, 1911.
    Error to Circuit Court of Harrison county.

      Mr. R. H. Minteer, for plaintiff in error. Messrs. Hollingsworth & Worley, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 12504.
    Homer, Exr., v. Ross.
    Decided April 11, 1911.
    Error to Circuit Court of Holmes county.

      Messrs. W. & Wayne Stillwell, for plaintiff in error. Mr. W. J. Weirick, for defendant in error.
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 12509.
    The Chris Holl Hardware Co. v. The Logan Brick Supply Co.
    Decided April 11, 1911.
    Error to Circuit Court of Hocking county.

      Mr. Harley M. Whiter aft, for plaintiff in error. Mr. C. V\ Wright, for defendant in error.
   Judgment affirmed ■ on authority of Davis v. Turner, 69 Ohio St., 101.

Davis, Si-iauck, Price and Johnson, JJ., concur.


text:
    No. 12735.
    Hamburger v. The Cincinnati Traction Co.
    Decided April 11, 1911.
    Error to Circuit- Court of Hamilton county.

      Messrs. Horstman & Horstman, for plaintiff in error. Mr. Miller Outcalt and Mr. J. W. Heintzman, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11456.
    Cavey, Admx., v. Iliff et al.
    Decided April 18, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. W. W. Symmes and Mr. Tlios. L. Michie, for plaintiff in error. Mr. Drausin Wulsin and Mr. Fred W. Keam, for defendants in error.
    Judgment of reversal affirmed. Final judgment reversed and cause remanded. Grounds stated in journal entry.
   This court, finding from the record that the judgment of the circuit court is in effect an adjudication that the judgment of the court of common pleas is against the weight of the evidence, the judgment of reversal is affirmed. But this court being of opinion that the cause should be submitted to a jury, the final judgment, rendered by the circuit ■ court is hereby reversed.

■. Spear, C. J., Davis, Shauck, Price, Johnson and Donai-iue, JJ., concur. •


text:
    No. 11701.
    Hurlbut v. Jones.
    Decided April 18, 1911.
    Error to Circuit Court of Sandusky county.

      Mr. J. D. Finch; Mr. W. J. Mead and Mr. Lester Wilson,.for plaintiff in error. Messrs.' Finefrock, Garver & Bogue; Messrs. Garver, Garver & Garver and Mr.'L. /.' Turley,, for defendant in error.
    Judgment affirmed. Ground stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of said circuit court.be, and the same, is hereby affirmed on the ground only that paragraph six on page 225 of the printed record, while a fair statement of the law generally, is .not correct as applied to the facts and circumstances of-this case as disclosed by the evidence with respect to the confidential relation existing between the parties.

The question of the right to amend the bill of exceptions is not passed upon.

Spear, C. J., Price, Johnson and Donahue, JJ-, concur.


text:
    No. 11769.
    Metzger et al. v. The Trust Company of America et al.
    Decided April 18, 1911.
    Error to Circuit Court of Lucas county.'

      Messrs. Goeke &' Anderson; Messrs. Kohn & Northup and Messrs. King, Tracy, Chapman & Welles, for plaintiffs in error. Messrs'. Smith & Beckwith, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur. •


text:
    No. 11813.
    Van Ostran et al. v. The Dennison Foundry & Engineering Co. et al.
    Decided April 18, 1911.
    Error to Circuit Court of Tuscarawas county.

      Mr. J. G. Patrick; Mr. W. B. Stevens and Mr. P. S. Olmstead, for plaintiffs in error. Mr. T. H. Loller; Messrs. Voorhees & Voorhees; Messrs. Carpenter & Voorhees and Messrs. Pomerene & Pomerene, for defendants in error.
   Judgment affirmed.

Spear, C. J., Si-iauck and Johnson, JJ., concur.


text:
    No. 12041.
    McNamara v. O’Neil et al.
    Decided April 18, 1911.
    Error to Circuit Court of Summit county.

      Messrs. Miller & Wilson; Messrs. Slabaugh, Seiberling & Huber and Mr. S. A. Deck'er, for plaintiff in error. Messrs. Allen, Waters, Young & Andress, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur.


text:
    No. 12331.
    The Wills Creek Coal Co. v. Brown, Admx.
    Decided April 18, 1911.
    Error to Circuit Court of Guernsey county.

      Mr. Charles S. Turnbaugh and Mr. Robt. T. Scott, for plaintiff in error. Mr. J. H. Mackey, for defendant in error.
   Judgment affirmed.

Si-iauck, Price, Johnson and Donaitue, JJ., concur.


text:
    No. 12630.
    The Northern Ohio Traction & Light Co. v. Carr, by etc.
    Decided April 18, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Ford, Snyder & Tilden, for plaintiff in error. Mr. Wm. B. Beebe and Mr-. A. W. Lams on, for defendant in error.
   Judgment affirmed.

Spear, C. J., Price, Johnson and Donahue, JJ., concur;


text:
    No. 12700.
    The State, ex rel. Ellis, Attorney General, v. The Union Central Life Insurance Company.
    Decided April 18, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. U. G. Denman, attorney general; Mr. T. S. Hogan, attorney general; Mr. W. FI. Miller, assistant attorney general; Mr. A. I. Vorys; Mr. Ellis G. Kinkead and Mr. Challen B. Ellis, for relator. Messrs. Maxwell & Ramsey and Mr. L B. Foraker, for respondent.
    Judgment affirmed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby, affirmed for the following reasons, tp-wit:

1. There is testimony tending to prove each and all of the controverted facts found by the circuit court.

2. That, therefore, this court will not weigh the evidence in this case and will accept the findings of fact as declared by the circuit court.

3. That, as found by the circuit court, the defendant in error made no separation of its receipts and expenditures, profits and losses, as they pertained to participating and to non-participating policies, from the time it began the life insurance business up to the first day of January, 1908, and that, in such conduct of its business, it accumulated a surplus, which, on December 31, 1907, amounted to $2,422,184-.25, of which a sum largely in excess of $400,000 was derived from, non-participating policies; and that the surplus derived from the nonparticipating policies of the defendant for the years 1908 and 1909 was in excess of $400,000.

4. That the defendant in error had a lawful right, and was not estopped, to make the said issue of $400,000 of capital stock and was entitled to apply toward the payment of said stock $400,000 out- of the surplus on hand December 31, 1907, •theretofore derived from non-participating business, as was done.

. 5. 'That, upon the facts found, relator is not entitled to the relief prayed 'for.

Spear, C. J., Davis, Shaucic and Price, JJ., concur. Johnson and Donahue, JJ., not participating.


text:
    No. 11798.
    Neal, Exrx., v. The Cleveland, Painesville & Eastern Ry. Co.
    Decided April 25, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Neal & Hyde and Mr. J. C. Hutchins, for plaintiff in error. Messrs. Squire, Sanders & Dempsey, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Si-iauck, Price, Joi-inson and Donapiue, JJ., concur.


text:
    No. 11808.
    Baldwin v. The J. A. Fay & Egan Co. et al.
    Decided April 25, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Charles

      B. Wilby and Mr. Mitchell Wilby, fór plaintiff in error. Mr. Moris on R. Waite and. Mr. John R. Schindel, for defendants in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.-


text:
    No. 11815.
    Mitz et al. v. Friedman et al.
    Decided April 25, 1911.
    Error to Circuit Court-of Richland county;

      Mr. A. A. Douglass and Messrs. Reed & Beach,- for plaintiffs in error. Messrs. Cummings, McBride & Wolfe, for defendants in error.
    Judgment affirmed.
    Davis, Price and Johnson, JJ., concur.


text:
    No. 12171.
    Mauk, Trustee, v. Shellabarger et al.
    Decided April 25, 1911.
    Error to Circuit Court of Mercer county.

      Mr. H. G. Richie and Mr. C. S. Mauk, for plaintiff in error. Mr. C. S. Younger; Mr. Frank V. Short and Messrs. Ford & Raudabaugh, for defendants in error.
   Judgment reversed and judgment of the common pleas court affirmed on authority of Sears v. Sears, 77 Ohio St., 104.

Spear, C. J., Davis, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12459.
    The National Masonic Provident Assn. v. Barnes.
    Decided April 25, 1911.
    Error to Circuit Court of Licking county.
    Messrs-. Cummings, McBride & Wolfe and Messrs. Kibler & Montgomery, for plaintiff in error. Mr. A. A. Stasel, -for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price,' JJ., concur.


text:
    No. 12523.
    Main v. The Cummins Wild West Exhibition Co. et al.
    Decided April 25, 1911.
    Error to Circuit Court of Ashtabula county.

      Mr. A. J. Trunkey and Mr. Charles Lawyer, for plaintiff in error. Mr. H. E. Starkey and Mr. W. W. Woodbury, for defendants in error.
    Judgment affirmed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, affirmed,' it appearing from the certified transcript of journal entries in the court of common pleas in said cause, that the final judgment in the said court of common pleas was entered on the journal of said court December 18, 1909, and that the appeal bond was filed in said court more than 30 days thereafter, to-wit: January 22, 1910, no correction of that record having been made or prayed for in said court of common pleas, being the only court possessed of power to make such correction.

Davis, Johnson and Donahue, JJ., concur.


text:
    No. 12555.
    Stasel, Receiver, v. Pugh, Receiver.
    Decided April 25, 1911.
    Error to Circuit Court of Licking county.

      Messrs. Flory & Flory and Mr. A. A. Stasel, for plaintiff in error. Messrs. Kibler & Montgomery, for defendant in error.
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 12683.
    Sayler, Exr., v. Thrailkill.
    Decided April 25, 1911.
    Error to Circuit Court of Wood county.

      Mr. Ar. R. Harrington and Mr. J. E. Shatzel, for plaintiff in error. Messrs. Wilson, Hunt & Gam; Mr. E, P. Reigle and Mr. Edward Beverstock, for defendant in error.
   Judgment of the circuit court reversed and judgment of the common pleas affirmed.

Spear, C. J., Shauck, Price and Donahue, JJ., concur.


text:
    No. 12833.
    The Cleveland Short Line Railway Co. v. Duncan et al.
    Decided April 25, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Kline, Tolies & Morley, for plaintiff in error. Mr. H. Melvin Roberts, for defendants in error.
    Judgment reversed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit' court be, and the same hereby is, reversed for error in its conclusions of law and in making the decree on the facts found, it being found by the circuit court (finding 14) : “ever since the spring and summer of 1907 it has been a matter of general public notoriety, and the plaintiffs, and each of them, have had notice that defendant had acquired its right of way through said allotments for the purpose of constructing and operating a railroad thereon, and also knew where said right of way was located; that defendant was making preparation to let contracts to various contractors for the construction of its tracks, switches, etc., thereon and that said contracts necessarily involved very large sums of money; that during the years 1908 and 1909 defendant negotiated publicly with the officials of the Village of East Cleveland as to the manner of crossing the streets within said village, and the mode of crossing these -streets was the principal issue in the municipal campaigns of 1907 and 1909 in that village. The defendant finally agreed with the Village of East Cleveland, Ohio, as to the manner of crossing the streets and other public places in said village on December 28, 1909.”

The circuit court further found as a fact that: “soon after acquiring its right of way, defendant let the necessary contracts, and, between the years 1906» and 1909, completed the construction of the west half of its railroad, from Rockport to New-burgh, in Cuyahoga county, Ohio, and, in the meantime, defendant let contracts involving several million’dollars for the completion of its said road from Newburgh to Collinwood in said county, ificluding the portion thereof through said two allotments. W ork was forthwith commenced under said contracts, and at the commencement of this action (May 2, 1910) had progressed as far as the south line of said allotments, and work was in progress over practically the whole line, from Newburgh to said allotments, including a bridge over Eddy Road.”

The court further found, that: “On April 19, 1910, the contractor entered upon the right of way of said allotments and erected on Block ‘A’ a large barracks for housing his workmen; also, two or three days before this suit was begun, on one of the lots near Eddy Road he erected an office,’and on another lot near the office he commenced the erection of a large frame building for storing materials. . This building was about-two-thirds completed when this action was commenced. .

“This action was commenced on May 2, 1910. At the time of the commencement -.of this action work on its railroad south and west of said allotments had progressed so far-that it was then practically impossible for said defendant to change its line through said allotments.”

On the above facts so found by the circuit court, the plaintiffs below are chargeable with such laches, in deferring their suits for almost three years after knowing the defendant’s purpose in acquiring said right of way, that they are not entitled to an injunction against defendant company to prevent the further work and expenditures in completing its line of railroad on said right of way.

On account of such laches, and the character of the alleged interests which plaintiffs below allege they own in said allotments and the several lots thereof, ’to-wit: a restriction by covenant in the deeds for said lots to their use for residences only, under a general plan of the original grantors, the plaintiffs are not entitled to the injunction prayed for, especially against the defendant below in' its attempt to exercise the right of eminent domain, under the facts as above found, although the 'defendant may have had knowledge of said restricting covenants when it acquired its right of way.

The remedy, if any, is at law and not in equity.

It is therefore considered and adjudged by this court, that the judgment’ and decree of the circuit court be and the same is hereby reversed,- the injunctions heretofore granted dissolved, and all the petitions embraced in this record, on which injunction was granted, in whole or in part, are dismissed.

Davis, Shauck, Price and Johnson, JJ., concur.


text:
    No. 11785.
    The Ohio Central Traction Co. v. Kruger.
    Decided May 2, 1911.
    Error to Circuit Court of Crawford county.

      Messrs. Cummings, McBride & Wolfe, for plaintiff' in error. Mr. H. R. Shuler and Mr. J. G. Meuser, for defendant in error.
    Judgment reversed and cause remanded. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court affirming the judgment of the common pleas court be, and the same hereby is, reversed, and the judgment of the common pleas court be, and the same hereby is, reversed for error of said common pleas court in the admission of evidence as to floods subsequent to the time of the injury complained of in the petition; for the admission of opinion evidence as to the cause of the water backing up on plaintiff’s lands, and for the refusal of the court to give in charge to the jury the third request of the defendant in that court, and that plaintiff in error recover of the defendant in error his costs expended in this court and the circuit court of Crawford county, and that said defendant in error pay his own costs in both of said courts.

Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur. •


text:
    No. 11791.
    Sharp, Admr., v. The Lake Shore Electric Ry. Co.
    Decided May 2, 1911.
    Error to Circuit Court of Lucas county.

      Mr. John Q. Adams and Mr. 'Curtis T. Johnson, for plaintiff in error. Messrs. M. B. & H. H. Johnson; Mr. T. H. Hogsett; Messrs. King, Tracy, Chapman & Welles and Messrs. Lloyd & Rettig, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ.-, concur.


text:
    No. 12395.
    Downs v. Miller et al.
    Decided May 2, 1911.
    Error to Circuit Court of Ross county'.

      Mr. John P. Phillips, for plaintiff’ in error. Mr. Silas F. Garrett; Mr. Elijah Cutright, Jr., and Mr. Peter J. Blosser, for defendant in error.
   Judgment affirmed.

Spear, C. J., Shauck and Price, JJ., concur.


text:
    No. 12396.
    Gilfillan v. Bower et al.
    Decided May 2, 1911.
    Error to Circuit Court of Ross county.

      Mr. John P. Phillips, for plaintiff in error. Mr. Silas F. Garrett; Mr. Elijah Cut-right, Jr., and Mr. Peter J. Blosser, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shauck and Price, JJ., concur.


text:
    No. 12467.
    Rider et al. v. Stasel, Trustee, et al.
    Decided May 2, 1911.
    Error to Circuit Court of Licking county.

      Messrs. Fulton & Fulton and Messrs. Wilson & Rector, for plaintiffs in error. Mr. A. A. Stasel and Mr. Carl Nor pell, for defendants' in-error.
   'Judgment affifmed on' authority of Drake v. Tucker, 83 Ohio St., 97.

Spear, C. J., Spiauck and Jopinson, JJ., concur.


text:
    No. 12516.
    Valentine v. The City of Circleville.
    Decided May 2, 1911.
    Error to Circuit Court of Pickaway • county.

      Mr. George W. Lindsay, for plaintiff in error.. Mr. Meeker Terwilliger, city solicitor, for defendant in error.
   Judgment affirmed.

Davis, Spiauck and Price, JJ,, concur.


text:
    No. 12524.
    Renner, Jr., v. Kirkner.
    Decided May 2, 1911.
    Error to Circuit Court of Mahoning county.

      Mr. Emery F. Lynn; Mr. W. S. Anderson and Mr. John Schlarb, for plaintiff in error. Mr. Horace T. Smith; Mr. Theodore A. Johnson and Mr. M. C. McNab, for .defendant in error.
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 12552.
    The Wolf Run Coal Co. v. Baysinger.
    Decided May 2, 1911.
    Error to Cir-cuit Court of Jefferson county.

      Mr. P. P. Lewis, for plaintiff in error. Messrs. Erskine & Smith, for defendant in error.
   Judgment affirmed.

Davis, Price, Johnson and Donai-iue, JJ., concur.


text:
    No. 12559.
    Babcock v. Shook.
    Decided May 2, 1911.
    Error to Circuit Court of --Franklin county.

      Mr. Frederick N: Sinks, for plaintiff in error. Messrs. Bolin & Bolin, for defendant in error.
   Judgment affirmed.

Spiauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12724.
    The Cincinnati Traction Co. v. Zeitschick.
    Decided May 2, 1911.
    Error tó Circuit Court of Hamilton county.

      Messrs. Kinkead & Rogers, for plaintiff in error. Mr. Max B. May, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12742.
    In re Contest of Election Petitioned for by H. F. Rauh et al.
    Decided May 2, 1911.
    Error to Circuit Court of Putnam county.

      Mr. C. S. Malone; Mr. B. S. Griffiths; Mr. E. R. Eastman; Mr. James A. White and Mr. W. B. Wheeler, for plaintiff in error. Messrs. Straman & Straman; Messrs. Henry & Robert Newbegin; Messrs. Watts & Moore, for defendants in error.
   Judgment affirmed on authority of Heidlebaugh, Probate Judge, v. Recker, 81 Ohio St., 514, and The State, ex rel. Conrad, v. Patterson, ante, 89.

Spear, C. J., Davis, Spiauck, Price, Johnson and Donapiue, JJ., concur.


text:
    No. 12831.
    Scott v. The State of Ohio.
    Decided May 2, 1911.
    Error to Circuit Court of Miami county.

      Mr. Thomas B. Kyle, for plaintiff in error. Mr. J. Guy O’Donnell and Mr. W. E. Lytle, for defendant in error.
   Judgment affirmed. Execution fixed for June 23, 1911.

Spear, C. J., Shauck, Price and Johnson, JJ., concur.


text:
    No. 11822.
    Stearns v. The John H. Hibben Dry Goods Co.
    Decided May 9, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. H. D. Peck and Messrs. Peck, Shaffer & Peck, for plaintiff in error. Mr. Walter A. De Camp, for defendant in error.
   Judgment affirmed.

Davis, Price and Donapiue, JJ., concur.


text:
    No. 11827.

    Heafield v. The Columbus Chain Co.
    Decided May 9, 1911.
    Error to Circuit Court of Franklin county.

      Messrs. Addison, Sinks & Babcock, for plaintiff in error. Mr. Barton Griffith; Mr. S. A. Webb and Mr. Cyrus Huling, for defendant in error.
    Judgment affirmed. Grounds stated in journal entry.
   This court finding from the record that the circuit court, in passing upon the record of the court of common pleas, and in reviewing the evidence given in that court at the trial of Heafield v. The Columbus Chain Company, found that, by the manifest weight of the evidence, the transaction commenced with the acquisition of the stock certificates by plaintiff in error, Heafield, and the consideration for the eight thousand dollar note was a gambling contract within the meaning of Section 4269, Revised Statutes; and this court being of opinion that such -an infirmity may be taken advantage of by the said chain company, it is considered and adjudged that the judgment of the circuit court be and the same is hereby-affirmed.

'Spear, C. J., Price, Johnson and Donahue, JJ., concur.


text:
    No. 11845.
    Holmes v. Marvin.
    Decided May 9, 1911.
    Error to Circuit Court of Hancock county.

      Messrs. Squire, Sanders & Dempsey and Mr. E. V. Bope, for plaintiff in error. Mr. George F. Pendleton and Mr. Alfred Graber, for defendant in error.
   Judgment affirmed.

Davis, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11867.
    Trauger v. Holben et al.
    Decided May 9, 1911.
    Error to Circuit Court of Stark county,
    ikfr. D. F. Reinoehl, for plaintiff in error. Mr. R. W. McC'aughey and Messrs. Webber & Turner, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Si-iauck and Price, JJ., concur. Donai-iue, J., not participating.


text:
    No. 11871.
    Albery, Exr., v. Pritchard, Exr., et al.
    Decided May 9, 1911.
    Error to Circuit Court of Franklin county.

      Mr. F. F. D. Albery, for plaintiff in error. Mr. Walter S. Page, for defendants in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 11872.
    Albery, Exr., v. Pritchard, Exr., et al.
    Decided May 9, 1911.
    Error to Circuit-Court of Franklin County.

      Mr. F. F. D. Albery, for plaintiff in error. Mr. Walter S'. Page, for defendants in error.
   Judgment affirmed.

Davis, Price and Donai-iue, JJ., concur.


text:
    No. 11878.
    Foster v. The City of Portsmouth.
    Decided May 9, 1911.
    Error to Circuit Court of Scioto county.

      Messrs. Evans & Crazvford, for plaintiff in error. Mr. FI or ace L. Small, city solicitor, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 11880.
    Miller v. Hall, Exr., et al.
    Decided May 9, 1911.
    Error to Circuit Court of Plenry county.

      Mr. P. C. Prentiss, for plaintiff in error. Messrs. Donovan & Dittmer, for defendants in error.
   Judgment affirmed.

Spear, C. J., Si-iaucic and Joitnson, JJ., concur.


text:
    No. 11883.
    Owings v. Jennings et al.
    Decided May 9, 1911.
    Error to Circuit Court of Athens county.

      Messrs. Belcher & Conner; Mr. G. J. Marriott and Messrs. Lezziis & Sayre, for plaintiff in error. Messrs. Grosvenor, Jones & Worstell,. for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Shaucic and Price, JJ., concur.


text:
    No. 11891.
    Peterson et al. v. Van Ingen et al.
    Decided May 9, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Charles W. Baker and Mr. Thorne Baker, for plaintiffs in error. Mr. Chas. B. Wilby; Mr. Mitchell Wilby ■ and Messrs. Morse, Tuttle & Harper, for defendants in error.

   Judgment affirmed.

Spear, C. J., Shauck- and Johnson, JJ., concur.


text:
    No. 12037.
    Hardesty et al., Admrs., v. Osborn.
    Decided May 9, 1911.
    Error to Circuit Court of Franklin county.

      Messrs. Warner & Halterman and Messrs. Pugh & Pugh, for plaintiffs in error. Messrs. Williams, Williams, Taylor & Nash and Mr. Charles J. Pretzman, for defendant in error.
   Judgment affirmed.

Davis', Price and Donahue, JJ., concur.


text:
    No. 12176.
    Rackle et al., Partners as George Rackle & Sons, v. Connors et al.
    Decided May 9, 1911.
    Error- to Circuit Court of Cuyahoga county.

      Mr. Charles J. Estep and Mr. Frank M. Cobb, for plaintiffs in error. Mr. L. F. McGrath and Mr. Joseph L. Stern, for defendants in error.
    Judgment reversed. Grounds stated in journal entry.
   This court being of'opinion that in the original action the cause had not, prior to the trial thereof by the court of common pleas, and entry of judgment therein, been specially assigned for trial out of its regular order within the meaning of Section 5134, Revised Statutes, nor assigned for trial to a jury in series, and the trial thereof by said court was before the action regularly stood for trial; and the court being further of opinion that the plaintiff in error’s contention in the present action is not res adjudicata because of the overruling of his motion to vacate judgment to be found at page 86 o.f the printed record, and marked “Defendants’ Exhibit 3.”

It is considered and adjudged that the judgment of the circuit court be, and the same hereby is, reversed, for error in affirming and not reversing the judgment of the court of common pleas of Cuyahoga county in this case of Rackle et al. v. Connors et al.

And proceeding to render the judgment which the said circuit court should have rendered, it is considered and adjudged that the said judgment of the court of common pleas be, and the same is hereby reversed, and said cause is ordered remanded to said court of common pleas of Cuyahoga county for further proceedings according to law.

Spear, C. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 12528.
    The City of Zanesville et al. v. Hillier et al.
    Decided May 9, 1911.
    Error to Circuit Court of Muskingum county.

      Mr. T. F. Thompson, for plaintiffs in error. Mr. H. E. Buker, for defendants in error.
   Judgment affirmed.

Spear, C. J., Price and Johnson, JJ., concur. Donahue, J., not participating.


text:
    No. 12562.
    Laws v. Heucks Opera House Co.
    Decided May 9, 1911.
    -Error to Circuit Court of Hamilton county.

      Messrs. Maxwell & Ramsey and Mr. Joseph 'S. Gray don, for plaintiff in error. Messrs. Jones & Jones, for defendant in error.
   Judgment affirmed.

Price, Johnson and Donahue, JJ., concur.


text:
    No. 12568.
    Baker v. Laver et al.
    Decided May 9, 1911.
    Error to Circuit Court of Henry county.

      Mr. W. P. Duffy and Messrs. Donovan & Dittmer, for plaintiff in error. Mr. W. W. Campbell, for defendants in .error.
    Judgment reversed. Grounds stated in journal entry.
   This court being of opinion that the new matter set up in the answer and cross-petition of the defendants below, and the reply thereto, presented an issue of an equitable nature, and properly triable before the determination of the issue tendered by the petition, and the cause, therefore, was triable to the court and not to a jury, and was, therefore, appealable,

It is considered and adjudged that the judgment of the circuit court, dismissing said appeal, be, and the same is, hereby reversed, and said cause is remanded to said circuit court with direction to overrule said motion to dismiss the appeal, and for further proceedings according to law.

Spear, C. J., Spiauck, Price, Jopinson and -'Donapiue, JJ., concur.


text:
    No. 12571.
    Murphy v. Brown et al.
    Decided May 9, 1911.
    Error to Circuit Court of-. Montgomery county,

      Mr. O. C. Snipe, for plaintiff in error. ■ Mr. -R. Otto Bauman; Mr. O. Cl Snipe; Messrs. Van Deman, Burkhart & Smith and Messrs. McConnaughey & Shea, for defendants in error.
   Judgment affirmed.

Davis, Si-iauck, Price and Johnson, JJ.,. concur.


text:
    No. 12573.
    Keller v. Wilson.
    Decided May 9, 1911.
    Error to Circuit Court of Lawrence county.

      Mr. Julius L. Anderson, for plaintiff in error. Mr. J. C. Riley and Mr. O. E. Irish, for defendant in error.
   Judgment affirmed.

Davis, Si-iauck, Price and Johnson, JJ., concur.


text:
    No. 12586.
    The Michigan Mutual Life Insurance Co. v. Whitaker, Admr.
    Decided May 9, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. A. H. Wilkinson; Mr. J. C. Voorheis and Mr. Robert Ramsey, for plaintiff in error. Mr. Charles W. Baker and Mr. Thorne Baker,.for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Si-iauck Price, Jopinson and Donai-iue, JJ., concur.


text:
    No. 12613.
    The Belmont Coal Mining Co. v. McFarland, Admr.
    Decided May 9, 1911.
    Error to Circuit Court of, Belmont county.

      Mr. Gordon D. Kinder; Mr. Albert W. Kennon and Mr. Newell K. Kennon, for plaintiff in error.
      Messrs. Danford & Danford and- Mr. Fred Spriggs, for defendant in error.
   Judgment affirmed.

Price, Johnson and Donahue, JJ., concur.


text:
    No. 12637.
    The State of Ohio v. Badgley.
    Decided May 9, 1911.
    Error to Circuit Court of Columbiana county:

      Mr. Lewis P. Metzger, prosecuting attorney, for plaintiff in error. Mr. 'C. S. Speaker, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Spear, C. J., Davis, Shauci-c, Price, Johnson and Donahue, jj., concur.


text:
    No. 12759.
    The Board of Education of Lake Township, etc., v. The Board of Education of Special School District of Uniontown et al.
    Decided May 9, 1911.
    Error to Circuit Court of Stark county.

      Messrs. Craine & Snyder, for plaintiff in error. Messrs. Braticher & Sweitzer, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Price and Johnson, JJ., concur. Donahue, J., not participating.


text:
    No. 12805.
    Kilbourne v. The State of Ohio.
    Decided May 9, 1911.
    Error to Circuit Court of Franklin county.

      Messrs. Badger & Ulrey and Mr. M. B. Earnhart, for plaintiff in error. Messrs. Webber, McCoy, King & Game; Mr. Edward C. Turner, prosecuting attorney,.and Mr.,

      H. T. Ballard, assistant prosecuting attorney, for defendant in error.
    Judgment reversed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed and the judgment of the common pleas court is reversed for error of the common pleas court in its charge to the jury with reference to the testimony of an accomplice, and said cause is remanded to the common pleas court for further proceedings according to law.

Davis, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11802.
    The Eberhard Manufacturing Co. v. Clarke, Admx.
    Decided May 16, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Ford, Snyder &■ Tilden, for plaintiff in error. Mr. Frank A. Scott and Messrs. Foran & Powell, for defendant in error.
    Judgment .reversed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the, judgment of'the said circuit court be, and the same hereby is, reversed for error in affirming and iri not reversing the judgment of the court of common pleas in the case of Ann Clarke, Admx., v. The Eberhard Manufacturing Company. And proceeding to render the judgment which the said circuit court should have rendered, it is considered and adjudged that the said judgment of the court of common pleas of Cuyahoga county be and the same herebv is reversed for error in giving in charge to the jury plaintiff’s request No. 7 on page 446 of said' record. Also, for refusing to give to the jury defendant’s request No. 35, to be found on page 456 of the printed record.

Spear, C. J., Davis, Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 11913.
    Felt v. Lowe, Exrx.
    Decided May 16, 1911.
    Error to Circuit Court of Lucas county.

      Mr. Albert P. McKee and Mr. Claude R. Banker, for plaintiff in error. Mr. Glenn R. C. Faling, for defendant in error.
   Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur.


text:
    No. 11924.
    The Edward E. Fisher Co. v. Wheeler et al.
    Decided May 16, 1911.
    Error to Circuit Court of Franklin county.

      Mr. Fred C. Rector, for plaintiff in error. Mr. Harry A. Clark and Mr. George H; Jones, for' defendants in error.
   Judgment affirmed.

Davis, Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 11930.
    Frasier et al. v. The Village of Bridgeport.
    Decided May 16, 1911.
    Error to Circuit Court of Belmont county.

      Mr. John B. Driggs; Mr. J. C. Heinlein; Mr. James C. Tail-man; Mr. W. V. Campbell and Mr. Hunter S. Armstrong, for plaintiffs in error. Mr. C. L. Weems; Mr. George C. McKee and Mr. Gordon D. Kinder, for 'defendant in error.
   Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur.


text:
    No. 11943.
    Myers v. The Massillon Loan & Building Co.
    Decided May 16, 1911.
    Error to Circuit Court of Stark county.

      Mr. D. F. Reinoehl, for plaintiff in error. Mr. W. E. N. Hemperly and Messrs. Shields & Pomerene¡ for defendant in error.
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 11959.
    The Cleveland, Akron & Columbus Ry. Co. et al. v. Jones.
    Decided May 16, 1911.
    Error to Circuit Court of Holmes county.

      Messrs. Allen, Waters, Young & An-dress for plaintiffs in error. Mr. Wellington Stilwell, for defendant in error. '
   Judgment affirmed.

Davis, Price and Johnson, JJ., concur.


text:
    No. 12397.
    Gallenstein et al. v. The City of Portsmouth.
    Decided May 16, 1911.
    Error to Circuit Court of Scioto county.

      Messrs. Evans & Crawford, for plaintiffs in error. Mr: Horace L. Small, city solicitor, for defendant in error.
   Judgment affirmed.

Davis, Siíauck and Joi-inson, JJ., concur.


text:
    No. 12398.
    Prediger v. The City of Portsmouth.
    Decided May 16, 1911.
    Error to Circuit Court of Scioto county.

      Messrs. Evans & Crawford, for plaintiff in error. Mr. Plorace L. Small, city solicitor, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Donahue, JJ., concur.


text:
    No. 12442.
    Pennsylvania Company v. Suntala.
    Decided May 16, 1911.
    Error to Circuit Court of Ashtabula county.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in error. Mr. D. F. Anderson, for defendant in error.
   Judgment, affirmed.

Davis, Shauck and Johnson, JJ., concur.


text:
    No. 12577.
    The Columbus Railway & Light Co. v. Grooms.
    Decided May 16, 1911.
    Error to Circuit Court of Franklin county.

      Messrs. Booth, Keating, Peters & Pomerene, for plaintiff in error. Mr. F. S. Monnett, for defendant in error.
   Judgment affirmed.

Price, Johnson and Donapiue, JJ., concur.


text:
    No. 12584.
    Streuber, Trustee, v. Pancake et al.
    Decided May 16, 1911.
    Error to Circuit court of Lawrence county.

      Mr. T. C. Anderson, for plaintiff in error. Mr. A. R. Johnson; Mr. Dan C. Jones and Mr. Wm. J. Meyer, for defendants in error.
   Judgment affirmed.

Davis, Shauck, Price and Johnson, JJ., concur.


text:
    No. 12594.
    The Board of Commissioners of Shelby County et al. v. Partington et al.
    Decided May 16, 1911.
    Error to Circuit Court of Shelby county.

      Mr. Charles C. Marshall and Mr. Percy R. Taylor, for plaintiffs in error. Messrs. Barnes & Mills, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 11577.
    The State of Ohio v. Parmenter.
    Decided May 23, 1911.
    Error to Circuit Court of Ashtabula county.

      Mr. C. L. Taylor, prosecuting attorney, and Mr. IT. I. Redmond, for plaintiff in error. Mr. Charles Lawyer and Mr. C. W. Appleby, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed on authority of The State of Ohio v. Young, 77 Ohio St., 529.

Spear, C. J., Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11931.
    The Cleveland Dredge & Dock Co. v. Smith et al.
    Decided May 23, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Kline, Tolies & Morley, for plaintiff in error. Mr. IT. L. Peeke and Mr. H. H. lohnson, for defendants in error.
   Judgment affirmed.

Davis, Price and Donai-iue, JJ., concur.


text:
    No. 11933.
    The Fredericktown Oil & Gas Co. v. Scott.
    Decided May 23, 1911.
    Error to Circuit Court of Knox county.

      Messrs. Waight & Moore, for plaintiff in error. Messrs. Wm. M. Koons & Sons, for defendant in error.
   Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur.


text:
    No. 11953.
    The Incorporated Village of Menden et al. v. Smith et al.
    Decided May 23, 1911.
    Error to Circuit Court of Mercer county.

      Mr. Frank V. Short, city solicitor, and Mr. Robert L. Mattingly, for plaintiffs in error. Mr. James D. Johnson, for defendants in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 11983.
    Giacin v. The French Bros. Dairy Co.
    Decided May 23, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Scott Bonham, for plaintiff in error. Mr. Albert Bettinger and Mr. J. Shroder, for defendant in error.
   Judgment affirmed.

Davis, Price and Donai-iue, JJ.-, concur.


text:
    No. 12168.
    The Kelley Island Lime & Transport Co. v. Kahler.
    Decided May 23, 1911.
    Error to Circuit Court of Erie county.

      Mr. Roy H. Williams; Mr. H. E. McKeehan; Messrs. Williams & Steinemann and Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews, for plaintiff in error. Messrs. Bentley & McCrystal, for defendant in error.
   Judgment affirmed.

Price, Jopinson and Donahue, JJ., concur.


text:
    No. 12444.
    Toledo, St. Louis & Western Railroad Co. v. Peery.
    Decided May 23, 1911.
    Error to Circuit Court of Henry county.

      Mr. Clarence Brown; Mr. Lloyd T. Williams and Mr. W. W. Campbell, for plaintiff in error. Mr. James P. Ragan, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Si-iauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12566.
    The Mahoning Valley Railway Co. v. Hill.
    Decided May 23, 1911.
    Error to Circuit Court of Mahoning county.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in error. Mr. D. F. Anderson, for defendant in error.
   Judgment affirmed.

Spear, C. J., Price and Donahue, JJ., concur.


text:
    No. 12680.
    The Columbus Citizens Telephone Co. v. Hunter, an Infant, by etc.
    Decided May 23, 1911.
    Error to Circuit Court of Franklin county.

      Messrs. Daugherty, Todd & Rarey, for plaintiff in error. Messrs. Wilson & Rector, for' defendant in error.
   Judgment affirmed.

Spear, C. J., Spiauck, Price, Jopinson and Donahue, JJ., concur.


text:
    No. 11974.
    Kelly v. Vannatta et al.
    Decided May 31, 1911.
    Error to Circuit Court of Knox county.

      Messrs. Owen & Carr, for plain- • tiff in error. Mr. Columbus Ewalt and Mr. Park B. Blair, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur.


text:
    No. 11979.
    Hague v. Hague et al., Exrs.
    Decided May 31, 1911.
    Error to Circuit Court of Muskingum county

      Messrs. Winn & Bassett, for plaintiff in error. Mr. John R. Stonesipher and Mr. John J. Adams, for defendants in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 12413.
    The Toledo Railways & Light Co. v. Vreeland.
    Decided May 31, 1911.
    Error to Circuit Court of Lucas county.

      Messrs. Smith & Baker, for plaintiff in error. Mr. G. B. Keppel, for defendant in error.
    Judgment affirmed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit, court be, and the same is, hereby affirmed, without passing upon the question of whether or not the court erred in' its charge to the jury in paragraphs numbered 1, 2 and 3, to be found on pages 88 and 89 of the printed record, the court being of opinion that, considering the character and effect of the undisputed evidence in the case, the charge thus given to the jury cannot have been prejudicial.

Spear, C. J., Davis, Shauck, Joi-inson and Donahue, JJ., concur.


text:
    No. 12567.
    The Metzger Seed & Oil Co. v. Berg.
    Decided May 31, 1911.
    Error to Circuit Court of Lucas county.

      Messrs. Smith & Baker, for plaintiff in error. Mr. Orville S. Brumback, for defendant in error.
    Judgment reversed and judgment for plaintiff in error. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming the judgment of the common pleas court, and the court finds that there is error in the record and the proceedings of the court of common pleas in this, that said court erred in overruling the motion of defendant at the close of the evidence in the case to arrest the evidence from the jury and to direct 'a verdict in favor of the defendant, for which error it is ordered and adjudged that said judgment of the court of common pleas be, and the same is, hereby reversed; and coming now to render the judgment that the court of common pleas should have rendered, it is ordered and adjudged that the petition of plaintiff, the defendant in error herein, be, and it is hereby, dismissed.

Davis, Si-iaucic, Price, Johnson and Donapiue, JJ., concur.


text:
    No. 12570.
    The Ohio Oil Co. v. Welling.
    Decided May 31, 1911.
    Error to Circuit Court of Wood county.

      Mr. J. W. Schaufelberger and Mr. Frank P. Reigle, for plaintiff in error. Messrs. Wilson, Hunt & Gam and Mr. N. R. Harrington, for defendant in error.
   Judgment of the circuit court reversed and judgment of the common pleas affirmed.

Spear, C. J., Davis, Shauck, Price, Johnson and Donapiue, JJ., concur.


text:
    No. 12599.
    Dean v. The W. J. Hamilton Coal Co. et al.
    Decided May 31, 1911.
    Error to Circuit Court of Franklin county.

      Mr. W. G. Brossman and Mr. W. PL Jones, for plaintiff in error. Messrs. Addison, Sinks & Babcock, for defendants in error.
   Judgment affirmed.

Si-iauck, Price, Jopinson and Donapiue, JJ., concur.


text:
    No. 12603.
    Hogue et al. v. Elliott et al.
    Decided May 31, 1911.
    Error to Circuit Court ■of Montgomery county.

      Messrs. Gottschall & Tiirner, for plaintiffs in error. Messrs. Powell & Howell, for defendants in error.
   Judgment affirmed.

Sitaucic, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12610.
    Wilkoff v. Hartenstein, Doing Business as Grand Rapids Furniture Co.
    Decided May 31, 1911.
    Error to Circuit Court of Mahoning county.

      Mr. Frank Jacobs and Mr. D. J. Hartwell, for plaintiff in error. Mr. D. F. Anderson, for defendant in error.
   Judgment affirmed.

Si-iauck, Price, Johnson and Donai-iue, JJ., concur.


text:
    No. 12628.
    Brewer v. The P. Hayden Saddlery Hardware Co.
    Decided May 31, 1911.
    Error to Circuit Court of Franklin county.

      Mr. Claude L. Brewer, for plaintiff in error. Mr. Lemuel D. Lilly, for defendant in error.
   Judgment affirmed.

Sriauck, Price, Jorinson and Donariue, JJ., concur.


text:
    No. 12629.
    Frey, Exr., et al. v. Handwork et al.
    Decided May 31, 1911.
    Error to Circuit Court of Wood county.

      Mr. tF. P. Riegle and Mr. Edward Beverstock, for plaintiffs in error. Mr. Emery F. Lynn; Messrs. Gillmer & Gillmer; Messrs. Dunipace & Solether and Mr. C. W. Wat
      kins, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Si-iaucic, Price, Joi-inson and Donahue, JJ., concur.


text:
    No. 12631.
    The Cincinnati, Georgetown & Portsmouth Railroad Co. v. Knabb.
    Decided May 31, 1911.
    Error to Circuit Court of Clermont county.

      Mr. W. J. Thompson and Mr. O. B. Young, for plaintiff in error. Mr. W. C. Bishop and Mr. Louis Hicks, for defendant in 'error.
   Judgment affirmed.

Price, Johnson and Donahue, JJ., concur.


text:
    No. 12684.
    Lee v. The Donovan Wire & Iron Co.
    Decided May 31, 1911.
    Error to Circuit Court of Lucas county.

      Messrs. Sala & Carabin and Mr. Lindley W. Morris, for plaintiff in error. Messrs. Doyle & Lewis, for defendant in error.
   Judgment affirmed.

Davis, Sitauck and Donahue, JJ., concur.


text:
    No. 12689.
    The Erie Stone Co. v. Place.
    Decided May 31, 1911.
    Error to Circuit Court of Van Wert county.

      Messrs. Blachly & Kerns, for plaintiff in error. Mr. H. L. Conn and Mr. W. H. Dailey, for defendant in error.
   Judgment of the circuit court reversed and judgment of the common pleas affirmed.

Spear, C. J., Davis, * Shauck and Price, JJ., concur.


text:
    No. 12841.
    Hart v. Poor et al.
    Decided May 31, 1911.
    Error to Circuit Court of Hamilton county.

      Messrs. Cohen & Mack and Mr. Milton Hurtig, for plaintiff in error. Mr. Frank F. Dins-more, for defendants in error.
   Judgment affirmed.

Davis, Siiauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11729.
    Preusser v. Dikob et al.
    Decided June 6, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. Herman Preusser and Mr. Francis J. Wing, for plaintiff in error. Mr. M. P. Mooney; Mr. L. I. Litsler; Messrs. M. B. & H. H. Johnson and Mr. S. A. Grossner, for defendants in error.
   On rehearing; former judgment adhered to.


text:
    No. 11826.
    The State of Ohio v. The Covington & Cincinnati Bridge Co.
    Decided June 6, 1911.
    Error to Circuit Court of Franklin county.

      Mr. U. G. Denman, attorney general, and Mr. Seth L. McMillan, for plaintiff in error. Messrs. Paxton, Warrington & Seasongood, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12046.
    Buehler v. Cook et al.
    Decided June 6, 1911.
    Error to Circuit Court of Jefferson county.

      Mr. E. De Witt Erskine and Mr. J. C. Bigger, for plaintiff in error. Mr. P. P. Lewis
      and Mr.' Dio Rogers, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shauck and' Johnson, JJ., concur.


text:
    No. 12201.
    George W. Carmichael & Co. v. Race.
    Decided June 6, 1911.
    Error to Circuit Court of Lake county.

      Messrs. Seaton & Paine, for plaintiff in error. Mr. B. C. Shepherd and Mr. H. E. Hammar, for .defendant in .error.
   Judgment affirmed.

Shauck, Price and Donai-iue, JJ. concur.


text:
    No. 12294.
    Rockefeller v. McIntire, Admr.
    Decided June 6, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Lqwrence, Russel & Eichelberger and Messrs. Goulder, Holding & Masten, for plaintiff in error. Mr. James J. Hogan and Mr. Benjamin Parmely, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas .affirmed.

Spear, C. J., Davis, Shauck, Price and Johnson, JJ., concur.


text:
    No. 12635.
    Eckert v. Shaffer.
    Decided June 6, 1911.
    Error to Circuit Court of Wood county.

      Mr. A. W. Eckert and Mr. F. P. Reigle, for plaintiff in error. Mr. N. R. Harrington, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Price, ■ Johnson and Donai-iue, JJ., concur.


text:
    No. 12638.
    Powell v. Powell.
    Decided June 6, 1911.
    Error to Circuit Court of Mahoning county.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in error. Mr. Charles Koonce, Jr., for defendant in error.
   Judgment of the circuit court reversed and judgment of the common pleas affirmed.

Spear, C. J., Davis, Si-iauck, Johnson and Donapiue, JJ:, concur.


text:
    No. 12639.
    The Lake Erie & Western Railroad Co. v. Schwartz, Admx.
    Decided June 6, 1911.
    Error to Circuit Court of Allen county.

      Mr. John B. Cockrum; Messrs. Richie & Richie and Mr. W. H. Leet'e, for plaintiff in error. Mr. Fred France and Messrs. Half hill, Qiiail & Kirk, for defendant in error.
   Judgment affirmed.

Shaucic, Price, Johnson and Donahue, JJ., concur.


text:
    No. 11691.
    Raymond et al. v. Butts.
    Decided June 13, 1911.
    Error to Circuit Court of Portage county.

      Mr. I. T. Siddall and Mr. S. F. Flanselman, for plaintiffs in error. Mr. R. S. Webb and Mr. R. J. Webb, for defendant in error.
   On rehearing. Former judgment adhered to.


text:
    No. 11980.
    Cornell, Admr., et al. v. Cornell, a Minor, by etc.
    Decided June 13, 1911.
    Error to Circuit Court of Columbiana county.

      Messrs. Metzger & Smith, for plaintiffs in error.
      Messrs. Taylor & Harris, for defendant in error.
    Judgment modified. Grounds stated in journal entry.
   It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is modified by allowing to the said Sampson P. Cornell a further credit in addition to those allowed him by the circuit court of the sum of $214.43 for expenses paid by him in repair and betterment of the property sought to be partitioned in this action; and there being no other or further error appearing on the record of this case to the prejudice of plaintiff in error, it is hereby ordered and adjudged that said judgment as so modified be, and the same hereby is, affirmed.

Spear, C. J., Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12020.
    The Cleveland & Mahoning Valley Ry. Co. v. Board of Commissioners of Mahoning County et al.
    Decided June 13, 1911.
    Error to Circuit Court of Mahoning county.

      Messrs. Hine, Kennedy & Manchester, for plaintiff in error. Mr. M. A. Norris; Mr. S. S. Conroy and Mr. W. R. Graham, for defendants in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 12021.
    Campbell et al. v. Euchenhofer et al.
    Decided June 13, 1911.
    Error to Circuit Court of Montgomery county.

      Messrs. Young &

      Young, for plaintiffs in error. Messrs. Van Deman, Burkhart & Smith and Messrs. Gottschall & Turner, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shauck and Johnson, JJ., concur..


text:
    No. 12073.
    Golner et al. v. Meeker.
    Decided June 13, 1911.
    Error to Circuit Court of Cuyahoga county.

      Mr. Jas. W. Stezvart and Messrs. White, Johnson & Cannon, for plaintiffs in error. Messrs. Gage, Wilbur & Williams and Messrs. David & Heald, for defendant in error.
   Judgment affirmed.

Davis Price and Donahue, JJ., concur.


text:
    No. 12529.
    The Interurban Railway & Terminal Co. v. Hines, Admr.
    Decided June 13, 1911.
    Error to Circuit Court of Clermont county.

      Mr. Frank F. Dinsmore and Mr. Charles M. Leslie, for plaintiff in error. Mr. Prescott Smith; Mr. Hugh L. Nichols and Mr. D. W. Murphy, for defendant in error.
   Judgment affirmed.

Spear, C. J., Shauck, Price. Johnson and Donahue, JJ., concur..


text:
    No. 12586.
    The Michigan Mutual Life Insurance Co. v. Whitaker, Admr.
    Decided June 13, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. A. H. Wilkinson; Mr. J. C. Voorheis and Mr. Robert Ramsey, for plaintiff in error.
      Mr. Charles W. Baker and Mr. Thorne Baker, for defendant in error.
   On rehearing. Former judgment adhered to.

Spear, C. J., Price, Jopinson and Donahue, JJ., concur.


text:
    No. 12640.
    The Bakewell Coal Co. v. Roberts, Trustee, et al.
    Decided June 13, 1911.
    Error to Circuit Court of Belmont county.

      Mr. Fred Spriggs; Mr. Albert W. Kennon and Mr. Newell K. Kennon, for plaintiff in error. Mr. Charles J. Lynch, for defendants in error.
   Judgment affirmed.

Spear, C. J., Price, Johnson and Donai-iue, JJ., concur.


text:
    No. 12641.
    Dudley et al., Partners, v. The Board of Education of Leipsic Village School District et al.
    Decided June 13, 1911.
    Error' to Circuit Court of Putnam county.

      Messrs. Bailey & Leasure, for plaintiffs in error. Mr. A. A. Slaybaugh; Messrs. Watts & Moore and Messrs. Risser & Smith, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shaucic, Price, Joi-inson and Donapiue, JJ., concur.


text:
    No. 12647.
    Chilcote, Sheriff, v. Dickerson.
    Decided June 13, 1911.
    Error to Circuit Court of Morrow county.

      Mr. T. B. Mateer and Mr. M. R. Patterson, for plaintiff in error. Mr. W. J. Geer, for defendant in error.
   Judgment affirmed.

Davis, Sitauck and Jopinson, JJ., concur.


text:
    No. 12648.
    The Central Union Telephone Co. v. Campbell.
    Decided June 13, 1911.
    Error to Circuit Court of Huron county.

      Messrs. C. P. & R. D. Wickham, for plaintiff in error. Mr. J. R. Me Knight and Mr. A. V. Andrews, for defendant in error.
   Judgment affirmed.

Price, Johnson and Donapiue, JJ., concur.


text:
    No. 12941.
    White, Admr., et al. v. Bailey et al.
    Decided June 13, 1911.
    Error to Circuit Court of Gallia county.

      Mr. Roscoe J. Mauck; Mr. Hollis C. Johnston and Mr. Evan D. Davis, for plaintiffs dn error. Mr. John H. Summers; Mr. C. H. D. Summers and Mr.- R. M. Switzer, for defendants in error.
   Judgment affirmed.

Spear, C. J., Shauck, Price, Jopinson and Donahue, JJ., concur.


text:
    No. 11909.
    The Hamilton Lumber Co. v. The Hamilton Homestead & Loan Co. et al.
    Decided June 20, 1911.
    Error to Circuit Court of Butler county.

      Mr. Sam. D. Pitton, Jr., for plaintiff in error. Mr. M. O. Burns; Messrs. Beckley & Beckley and Mr. Nelson Williams, for defendants in error.
   Judgment affirmed.

Davis, Shauck, Price and Jopinson, JJ., concur.


text:
    No. 11984.
    Welsh v. The Sleepy Eye Milling Co.
    Decided June 20, 1911.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Plidy, Klein & Harris, for plaintiff in error. Mr. R. H.

      Lee and Mr. F. H. Crew, for defendant in error.
   Judgment affirmed.

Davis, Price and Donahue, JJ., concur.


text:
    No. 12465.
    Koellner v. The Eight Hour Tobacco Co.
    Decided June 20, 1911.
    Error to Circuit Court of Hamilton county.

      Mr. Thorne Baker, for plaintiff in error. Messrs. Robertson & Buchwalter and Mr. T. C. Jung, for defendant in error.
   Judgment reversed and judgment of the common pleas affirmed.

Spear, C. J., Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12478.
    Welsch v. Riley, Auditor, et al.
    Decided June 20, 1911.
    Error to Circuit Court of Licking county.

      Messrs. Jones & Jones, for plaintiff in error. Mr. U. G. Denman, attorney general; Mr. Phil B. Smythe, prosecuting attorney; Mr. Carl Norpell; Mr. John A.. Alburn and Mr. Clarence D. Laylin, for defendants in error.
   Judgment affirmed on authority of Adler v. Whitbeck, 44 Ohio St., 539.

Spear, C. J., Davis, Shauck, Price and, Johnson, JJ., concur.