text:
    Bloomfield v. State of Ohio.

      Act to regulate liquor traffic — (100 O. L., 8g) — Dean character law — Not repugnant to state or federal constitutions.

    The act of March 12, 1909, (100 O. L., 89), to amend and supplement section 5 of an act entitled: “An act providing against the evils resulting from the traffic in intoxicating liquors,” is a valid exercise of legislative power not repugnant to the state or federal constitutions.
    No. 13343
    Decided June 27, 1912.
    Error to the Circuit Court of Stark county.
    At the January term, 1911, plaintiff in error was indicted by the grand jury in the common pleas of Stark for falsely answering the fourth question enumerated in the act of March 12, 1909, known as the Dean character law, 100 Ohio Laws, 89. A demurrer was filed to the indictment on the ground that it did not state facts sufficient to constitute an offense. The demurrer was overruled, trial was had, ‘and the defendant below found guilty as charged in the indictment. A motion in arrest of judgment was filed by the defendant for the reason that the facts stated in the indictment did not constitute an offense because the statute under which the indictment was laid was unconstitutional. This motion was overruled, sentence pronounced and judgment entered. That judgment was affirmed by the circuit court, and this proceeding is brought to reverse the judgments below.

      Messrs. Craine & Snyder, for plaintiff in error.
    We contend that this act of the legislature is null and void as being in conflict with: (1) Section 18 of the Schedule to the Constitution of Ohio; (2) As being in conflict with Sections 1 and 2 of Article I of the Constitution of Ohio; (3) As being in conflict with the Fourteenth Amendment to the Constitution of the United States.
    This court in State v. Hipp, 38 Ohio St., 199, laid down the principle that a statute which required the doing of some act as a condition precedent was in effect a license. This case has never been reversed, but has on numerous occasions been cited with approval. It was approved in the syllabus of Butzman v. Whitbeck, 42 Ohio St., 223, and State v. Sinks, 42 Ohio St., 345. It has been commented upon with approval in State v. Frame, 39 Ohio St., 412; King v. Cappellar, 42 Ohio St., 218; Adler v. Whitbeck, 44 Ohio St., 559; Anderson v. Brewster, 44 Ohio St., 576; Friend v. Levy, 76 Ohio St., 50. It is also in accord with Sherlock v. Stuart, 96 Mich., 193.
    Our supreme court has repeatedly held that while Section 2 of Article I of the Ohio Constitution does not in express words prohibit discrimination between persons, yet the section should have such a construction, and that a discrimination between persons is prohibited by these sections of the Constitution. We cite in illustration of the above,,the following: State v. Gardner, 58 Ohio St., 599; Coal Co. v. Rosser, 53 Ohio St., 12; State, ex rel., v. Ferris, 53 Ohio St., 314; Harmon v. State, 66 Ohio St., 249; Miller v. Crawford, 70 Ohio St., 207.
    By Article XIV of the amendments to the Constitution of the United States, it will be noticed that there are two classes recognized, viz., citizens and persons.
    The supreme court of the United States in Yick Wo v. Hopkins, 118 U. S., 356, held that the word “person” as used in this article meant everybody, whether a citizen of the United States or a subject of the emperor of China.
    Now, does this article -deny to any person within the jurisdiction of the state of Ohio, the equal protection of the laws?
    An examination of the act in question shows that an ■ alien or unnaturalized resident of the United States cannot engage in the sale of intoxicating liquors in the state of Ohio' irrespective of how the question propounded might be answered by him. There is no reason why this distinction should be made, and it is a perfectly arbitrary distinction and discrimination, and we think the statute in question, for that reason is in conflict with the said Fourteenth Amendment. We cite the following authorities, which we think support our contention: Ex parte Virginia, 100 U. S., 356; Barbier v. Connolly, 113 U. S., 31; Missouri Ry. Co. v. Mackey, 127 U. S., 210; Soon Hing v. Crowley, 113 U. S., 703; State v. Montgomery, 94 Me., 192; State v. Mitchell, 97 Me., 66.

      Mr. A. J. Freiberg and Prosecuting Attorneys Charles Krichbaum and H. C. Pontius, for defendant in error.
    The somewhat curious provision in our Constitution against license is chargeable largely to the feeling of the zealot that a certificate of license from the state is a “partnership with the devil;” that it is an affirmative character given by the state to sin. Other less fanatical, but none the less ardent temperance reformers believed that a license to a limited number of persons specifically granted would make the traffic respectable, a thing regarded as baneful.
    The main object, however, was to destroy the saloon, perhaps eventually to insure complete prohibition. Adler v. Whitbeck, 44 Ohio St., 539; State v. Frame, 39 Ohio St., 422.
    A license granted before 1851 was looked upon as a privilege not a restraint. 2 Constitutional Debates of 1873 (part 3), 3035.
    How does a law like the Dean character law differ according to the modern idea from a license system ?
    The approval of the modern idea is based upon the very same foundation upon which the “no-license” people of old based their objections. The idea is, by the process of personal selection on the part of the licensing authority, to give to the limited few, of high character, a franchise which will render the occupation immune from social attack. The holder of a license not merely by disobedience of positive law, but by obnoxious conduct of any sort easily renders his franchise subject to revocation. What is the result? The result is inevitable that the licensee will have every incentive to obey not only the law but the prevailing social morality — all the more so because he with a few others will have a complete monopoly. That is the purpose of a license law.

      The Dean law under consideration produces no such result. Although it' may have the effect of excluding from the business gamblers, felons and foreigners, it leaves the door open to thousands of others who are neither foreigners nor ,yet felons nor gamblers, to the untrammeled right to carry on the business. To be sure the Dean law ap proaches to a limited extent some of the purposes which a license law would insure. By keeping out gamblers, foreigners and felons, it limits the businéss, to some extent, to that part of the population from which undoubtedly a licensing board would or should choose its licensees. But that is true of any regulatory liquor law. If it is one purpose of a license law to prevent drunkenness on the premises (Section 12813, General Code), riotous conduct (Section 4261), vicious assemblages (Section- 12806), gambling in saloons (Section 13057), selling to minors (Section 12961), or keeping a place where liquor is illegally sold (Section 13195), so it is the purpose of all the sections of the statutes herewith referred to, to prevent the same thing. And yet no- one has ever contended that these punitive laws constitute the lawful traffic a licensed traffic. The Dean law, through the medium of a severe penalty, seeks to accomplish to some extent the same purpose, but it falls far short of being a positive and affirmative license law.
    Counsel then cite and comment upon the following authorities: State v. Hipp, 38 Ohio St., 199; Butzman v. Whitbeck, 42 Ohio St., 223; State v. Sinks, 42 Ohio St., 345; Anderson v. Brewster, 44 Ohio St., 576; Rowland v. State, 80 Ohio St., 711; Hayner v. State, 83 Ohio St., 178; License Tax Cases, 5 Wall., 462; Yick Wo v. Hopkins, 118 U. S., 356; Slaughter-House Cases, 16 Wall., 36; Brannon on Fourteenth Amendment, 315; Bell’s Gap Rd. Co. v. Pennsylvania, 134 U. S., 232; People, ex rel., v. Murray, 149 N. Y., 367; Commonwealth v. Hana, 195 Mass., 262; Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch, 602; Chirac v. Chirac, 2 Wheat., 259; State v. Travelers Ins. Co., 70 Conn., 590; Blair v. Kilpatrick, 40 Ind., 312; In re Watson, 92 N. Y. Supp., 197; Templar v. Barbers’ Bd. of Examiners, 131 Mich., 258; 4 Ency. U. S. Sup. Ct. Rep., 358, 362, 363; Bachtel v. Wilson, 204 U. S., 36; Quong Wing v. Kirkendall, 223 U. S., 59; St. John v. New York, 201 N. Y, 633.
   Johnson, J.

The law whose validity is challenged is now included in Sections 6083 and 13219, General Code.

In addition to the statement required by the statute providing for a tax on the business of trafficking in intoxicating liquors, it is now further provided that the person conducting the business shall answer certain questions.

1. Are you, or if a firm, is any member of your firm an alien or an unnaturalized resident of the United States?

2. Have you, or any member of your firm or any officer of your corporation, ever been convicted of a felony?

3. Have you, within the past twelve months, knowingly permitted gambling to be carried on in, upon or in connection with your place of business?

4. Have intoxicating liquors been sold at your place of business to minors, except on the written order of their parents, guardians or family physician, or to persons intoxicated or in the habit of getting intoxicated, within the past twelve months, with your knowledge?

5. Have you knowingly permitted improper females to visit your place of business within the past twelve months?

Section 13219 provides a penalty for false answers to those questions, and Section 13221 enacts that if the questions are answered in the affirmative and the person thereafter engages in the sale of such liquors he shall be fined, etc.

Plaintiff in error suggests three reasons why the law is invalid.

1. That it is in conflict with Section 18 of the Schedule of the Constitution of Ohio, because it is a license law.

2. That it is in conflict with Section 2 of Article I, Constitution of Ohio.

3. That it is in conflict with the Fourteenth Amendment to Constitution of the .United States.

The sole purpose of the enactment of the statute which is attacked is obvious. The desire of the legislature was to prevent the persons referred to in the questions from engaging in the traffic.

The original law touching the general subject, was passed in 1882, and that law as well as succeeding ones relating to the same subject, were thoroughly considered by this court, in a number of cases, beginning with State v. Hipp, 38 Ohio St., 206.

The validity of the law in its form known as the Dow law, was finally upheld in the case of Adler v. Whitbeck, 44 Ohio St., 539, and we do not think it necessary or profitable at this late day, to engage in discussion as to whether the liquor tax laws of Ohio, are license laws, and, therefore denied validity by Section 18 of the Schedule.

It is, however, urged against the statute in question here that the necessary legal effect of the exclusion of the persons referred to, from the business, is to license those not included among those referred to, to engage in the business.

Of course, it is not contended that the legislature intended the statute to be a license law. Its manifest and sole purpose is to exclude certain persons from the business.

Section 18 of the Schedule of the Constitution of Ohio reads: “No license to traffic in intoxicating liquors shall hereafter be granted in this state, but the general assembly may by law provide against the evils resulting therefrom.”

We cannot give assent to the view that a statute which affirmatively prevents certain described persons from engaging in the business, thereby licenses those not within the description.

The term “license” is not one whose meaning is involved in uncertainty or doubt. The object of a license is to confer a right that does not exist without a license. It is a permission to do something which without the license would not be allowed. This definition is in substance that given in a number óf cases. Youngblood v. Sexton, 32 Mich., 406, Cooley, J.; Home Ins. Co. v. Augusta, 50 Ga., 530; State v. Hipp, 38 Ohio St., 206; 5 Words and Phrases, 4133. And Judge McIlvaine in State v. Frame, 39 Ohio St., 399, defines it: “A license is essentially the granting of a special privilege to one or more persons not enjoyed by citizens generally, or at least, not enjoyed by a class of citizens to which the licensee belongs. A common right is not the cr-eation of a license.”

We think the framers of the Constitution used the word with this 'view of its meaning. The language is “No license, * * * shall hereafter be granted.” It contemplates the license as an affirmative act. A positive actual grant, which shall secure to the grantee a specific, definite right, not a negative, undefined thing which may survive, or may be claimed to survive, after a process of exclusion of other things. A person cannot become a grantee by such a process.

The clause providing for no license in Schedule 18, must be read .and considered, in connection with the concluding clause of the section, “but the general assembly may by law provide against the evils resulting therefrom.”

The presence of this clause, following the no-license clause, would seem to indicate, that while the state was not willing to give such approval to the traffic, as would be implied by an affirmative grant of license, yet it recognized the existence of the business itself, and desired 'to clothe the general assembly with power to legislate concerning it.

An interesting recital of the state of the law on the general subject, and the popular conception of it, at the time of the adoption of the Constitution, is contained in the brief of Judge West in the case of State v. Hipp, supra.

Acting under the regulatory clause of Section 18, the legislature has from time to time, passed many laws to provide against the evils, etc. Laws to prevent sale of liquor in a brothel, against its sale within a certain distance of the Soldiers’ Home, or near certain meetings, to prevent sale to an intoxicated person, and many similar laws.

It would be a strange process of reasoning, which should conclude, that the effect of such laws, would amount to a license of such part of the traffic as is not conducted in the manner condemned, although the laws were passed under the power given in the last clause of the same section of the Constitution which prohibits the license.

The court in State v. Frame, 39 Ohio St., 409, say: “We are inclined to think this clause was inserted for the purpose to repel an inference (from the. facts that no restraint was imposed on the traffic by the Constitution, and legislative restraint by license was inhibited) that the intention was, to withdraw the traffic from legislative control.”

While some of the statutes which have been passed under the regulatory clause, deny the right to conduct the business, to those who come within the prescribed class, and while those who do not come within that class, or who have not violated some provision of such laws, are suffered to engage in the business, yet such statutes do not by implication, grant a license to such persons, within the meaning of the term, as included in Section 18 of the Schedule.

It is also contended by plaintiff in error, that the statute denies the equal protection of the laws, in violation of Section 2 of Article I, Constitution of Ohio, that, the act discriminates between persons engaged in the sale of intoxicating liquors, because only persons who are engaged in the business, when the assessor makes his rounds, are required to make the certificate, and answer the questions referred to.

This objection goes merely to the administrative part of the law. We suppose, that in no case, can the mere ministerial or administrative agency, provided by the terms of a statute, to secure its enforcement, be complete in its action and operation. Under Section 2, Article XII, of the Constitution it is required that all property shall be taxed by a uniform rule at its true value in money. But the laws passed under that section, necessarily fix a certain day, on which the amount and value of the property shall be assessed. After that day, property comes and goes, and in the course of the administration of the tax laws, some escapes taxation. But the law does not exempt it. It is simply not listed.

It is also seriously urged that the law under examination is invalid, because under it an alien cannot engage in the business referred to, and that this is in contravention of the Fourteenth Amendment to Constitution of United States.

The case of Yick Wo v. Hopkins, 118 U. S., 356, it is insisted rules legislation such as involved here. In that case, an ordinance of the city of San Francisco provided, that it should be unlawful for any person to engage in the laundry business, without first obtaining consent of the board of supervisors. The court held that the Fourteenth Amendment of Constitution of United States, applies as well to aliens, as to citizens of the United States, and -that, a law which in its operation arbitrarily forbids aliens to engage in ordinary kinds of business, to earn a living, was unconstitutional and void. In that case, the exclusion was purely arbitrary, and on account of race hatred. There was no pretense that the discrimination was made in the exercise of the police power, which was justified by the peculiar character of the business.

In the Slaughter-House Cases, 16 Wall., 36, it was held that the state of Louisiana, in the exercise of its police power, might lawfully grant to a company, for a specific term, the exclusive privilege of maintaining slaughter houses in a certain defined district, including the city of New Orleans.

. It was recognized that while the business of a butcher is of great value and necessity, it is likely to endanger public health, under some circumstances, and was subject to regulation.

The state is necessarily invested with that which is called the police power, and which will be, and should be, put forth as an expression of the popular conception of the necessities of social and economic conditions. Under it may be done, and should be done, that which will best secure the peace, morals, health and safety of the community.

The supreme court of the United States has forcibly stated the duty of upholding state police regulations, when enacted in good faith. Noble State Bank v. Haskell, 219 U. S., 104; Mugler v. Kansas, 123 U. S., 623.

It is not doubted that the state may classify persons, and objects, for the purpose of legislation, if the classification is based on proper and justifiable distinctions, considering the purpose of the law. The Fourteenth Amendment was not designed to prevent all exercis'e of judgment by a state legislature, of what the interests of the state require, nor to compel it to run all of its laws in the channels of general legislation. Bachtel v. Wilson, 204 U. S., 36; St. John v. New York, 201 U. S., 633.

In Brannon on Fourteenth Amendment, it is said, at page 324: “The amendment permits special legislation in all its varieties. Minneapolis & St. Louis R. R. Co. v. Herrick, 127 U. S., 210; Duncan v. Missouri, 152 U. S., 377. In other words, the state may distinguish, select and classify objects of legislation, and necessarily its power must have a wide range of discretion. Clear and hostile discrimination against particular persons and classes, especially such as are of unusual character, unknown to the practice of our government, might be obnoxious to the Constitution.”

In People, ex rel. Einsfeld, v. Murray, 149 N. Y., 367, the validity of a liquor tax statute (somewhat similar to the one involved here) was attacked, one of the grounds being that it was contrary to the Fourteenth Amendment to the Constitution of United States, but the court sustained the law, however, without giving special notice to that objection.

In Commonwealth v. Hana, 195 Mass., 262, it was held that a requirement that a license as hawker and peddler shall be granted only to a person who is, or has declared his intention to become, a citizen of the United States, is constitutional and a reasonable exercise of the police power. The court say: “It is clear that a statute arbitrarily forbidding aliens to engage in ordinary kinds of business to earn their living would be unconstitutional and void. * * * The business of peddling furnishes such opportunity for the practice of fraud that it is a proper subject for legislative regulation. * * * If in the same interest the legislature deems it important that licenses shall be granted only to citizens of the United States, it can hardly be said that they have exceeded their constitutional right in passing a law to that effect.”

In Trageser v. Gray, 73 Md., 250, the law in question invested a board with power of granting licenses to sell liquors by retail only, to citizens of the United States of temperate habits and good moral character. The court held the law to be a valid exercise of the police power and not repugnant to the Fourteenth Amendment of the Constitution of United States.

Other cases in which these principles are declared are, Blair v. Kilpatrick, 40 Ind., 312; Templar v. Barbers’ Board of Examiners, 131 Mich., 258.

We do not think the statutes of Ohio, and of other states, which have barred aliens from the liquor traffic in the manner stated have arisen from a spirit of race hatred or inhospitality, or a purpose to deny the equal protection of our laws or equal opportunity under our institutions. But they are based on the belief, that an alien cannot be sufficiently acquainted with our institutions, and our life to enable him to appreciate the relation of this particular business to our' entire social fabric. When he has become more familiar with the spirit of the American people and their laws and has become a citizen, he will easily and readily (in the conduct of the business) assist in the furtherance of the policy of the state.

The judgments of the courts below will for this reason be affirmed.

Judgment affirmed.

Davis, C. J., Spear, Shauck and O’Hara, JJ., concur.


source: Caselaw Access Project

author: Shaucic, J.

license: Public Domain

text:
    Rankin, Receiver, v. The United States Fidelity & Guaranty Company.

      Terms of bond — Construed to be effective — Rather than defeat the intention — Bond for year to indemnify bank — Against dishonesty of cashier — Continuation of bond for another year — Construed as executed for two years, when — Bank cashier wrongfully extends credit to depositor — Bondsmen liable to bank — Question of notice of liability toAiondsmen — Law of indemniñcation.

    1. When the terms of a bond clearly indicate the intention of the obligor and obligee that there shall be an indemnity to the latter oh account of the default of an employe, doubtful terms will be so construed as to effectuate rather than to defeat that intention.
    2. A bond being executed for one year to indemnify a bank against the dishonesty of its cashier occurring during the term of the bond, or any renewal thereof, and discovered within six months of such term, or renewal, and there being a subsequent instrument to continue the former in force for another year according to its terms and conditions, the instruments will be construed as though the bond had been originally executed for two years, there being no terms employed in either instrument to indicate the intention that an act of dishonesty occurring in the first year must be discovered within six months from the expiration of that year.

      3. When, the cashier of a bank, by a certificate which he knows to be false, extends to one as a depositor of the bank a credit to which he is not entitled, and this is done pursuant to an arrangement that the cashier shall derive financial benefit from the transaction, and loss to the bank results, there arises a liability upon a bond to indemnify the bank for all losses arising “from the fraud or dishonesty of the cashier amounting to embezzlement or larceny.”
    4. A provision in .a bond of that character requiring the obligee upon the discovery of an act which may create a liability under the instrument to give notice thereof to the obligor at “the earliest practical moment” contemplates such and only such delay as in view of all circumstances may be reasonably necessary for the directors to acquire precise information respecting the default of the cashier and to enable them to determine whether it is of the grave character contemplated by the terms of the bond; and whether the giving of a notice 45 days after the first information of the bailie’s condition is a compliance with the provision should be determined by the jury under proper instructions.
    No. 12558
    Decided June 27, 1912.
    Error to the Circuit Court of Lorain county.
    The Citizens National Bank of Oberlin passed into the hands of a receiver, and he brought suit to recover from the defendant in error on its bond to indemnify the bank against loss which it might sustain by reason of the fraud or dishonesty of its cashier, A. B. Spear. It was alleged that the loss of the bank in consequence of his misconduct largely exceeded the amount of the bond, $15,000, and the prayer of the petition was for that sum with interest. By its terms the original bond was effective from February 5, 1903, to February 5, 1904. Its obligatory terms, in so far as they are material to questions to be determined in the present case, are as follows :

      “Now, Therefore, This Bond Witnesseth, That for the consideration of the premises the Company shall, during the term above mentioned or any subsequent renewal of such term, and subject to the provisions and conditions herein contained, at the expiration of three months next, after proof satisfactory to the Company, as hereinafter mentioned, make good and reimburse to the said Employer, such pecuniary loss as may be sustained by the Employer by reason of the fraud or dishonesty of the said Employe in connection with the duties of his office or position, amounting to embezzlement or larceny, and which shall have been committed during the continuance of said term, or of any renewal thereof, and discovered during said continuance or any renewal thereof, or within six months thereafter, or within six months from the death or dismissal or retirement of said Employe from the service of the Employer within the period of this Bond, whichever of these events shall first happen; the Company’s total liability on account of said Employe under this Bond or any renewal thereof not to exceed the sum of Fifteen Thousand Dollars.

      “Provided, That on the discovery ' of any act capable of giving rise to a claim hereunder, the Employer shall, at the earliest practical moment, give notice thereof to the Company, and any claim made under this Bond shall be in writing, addressed to the Company at its head office in the City of Baltimore.”
    On December 18, 1903, the company executed to the bank the following continuance of said original bond:

      “In Consideration of the sum of Thirty Seven & 50-100 Dollars, The United States Fidelity & Guaranty Company hereby continues in force bond No. 286619 in the sum of Fifteen Thousand Dollars on behalf of A. B. Spear in favor of Citizens Natl. Bank, Oberlin, Ohio, for the period beginning the 5th day of February, 1904, and ending on the 5th day of February, 1905, subject to all the covenants and conditions of said original bond heretofore issued on the 5th day of February, 1903.
    “Witness the signatures of the 2nd Vice-President and 4th Ass’t Secretary this 18th day of December, 1903.
    “Albert H. Buck, “4th Ass’t Secretary.

    Edw. J. Peniman, 2nd Vice-President.”

    The breach of the bond was alleged in the petition as follows:
    “Plaintiff says that the Citizens National Bank, of Oberlin, has suffered a pecuniary loss in the sum of $150,500.00 by reason of the fraud and dishonesty of A. B. Spear, in connection with the duties of his office and position as cashier of said bank, amounting to embezzlement or iarceny, in that said A. B. Spear conspired with, aided and assisted one C. L. Chadwick in unlawfully obtaining from the Citizens National Bank, of Oberlin, on August 12, 1903, $12,500.00; on October 2, 1903, $2,400.00; on October 14th, 1903, $5,000.00; on November 1st, 1903, $15,600.00; on December 7, 1903, $5,000.00; on February 23, 1904, $10,-000.00; by certifying as good, checks offered by the said Chadwick on the Citizens National Bank, of Oberlin, at the time and for the amounts mentioned, and on August 24', 1903, the sum of $80,000.00 by issuing to the said Chadwick two of the bank’s drafts upon its Depository in New York, payable to the order of the said Chadwick, one for $30,000.00 and the other for $50,000.00, when as a matter of fact the said Chadwick had no funds in said bank and the bank was not indebted to her in any way or in any sums whatsoever, nor had the directors or officers of said bank authorized the said Spear to loan said Chadwick the sums aforesaid, or any part thereof, all of which was well known to the said A. B. Spear and C. L. Chadwick at the time; and furthermore, in that the said A. B. Spear on or about the 28th day of September, 1903, unlawfully, without any right so to do, appropriated to his own use the sum of $20,000.00, being the property of the Citizens National Bank, of Oberlin. <
    “Plaintiff says that the fraud and dishonesty of said A. B. Spear, as aforesaid, was suspected by the Citizens National Bank, of Oberlin, and its representative, the Receiver thereof, on or about the 2nd day of January, 1905, and immediately thereupon notice thereof was given to the United States Fidelity & Guaranty Company, in writing, addressed to the Company’s head office in Baltimore, that the character of the transactions and the amount of the shortage were not discovered until February 2nd, 1905, and that Robert Lyons, Receiver of the Citizens National Bank, on behalf of said bank, on February 13, 1905, furnished the United States Fidelity & Guaranty Company reasonable particulars and proofs of the correctness of said claim, as herein set out, verified by affidavit.” • ■
    • The evidence substantially established the misconduct of Spear as alleged in the petition and a resulting loss to the bank greatly exceeding the penal sum of the bond, all occurring during the year following the execution of the original bond.
    Serious embarrassment of the bank which resulted from the transactions between Spear and Chadwick were under consideration at a meeting of the directors held November 30, 1904, and Spear then admitted that in the methods alleged he had wrongfully extended the credit of the bank to Chadwick with the expectation that it would result in benefit to himself and one Beckwith, who was president of the bank. It also appeared in evidence that at meetings of the directors they permitted Spear to read the records of the bank’s transactions instead of examining them themselves, and that he omitted to read the record of these transactions with Chadwick. There was also in evidence a letter from Chadwick to Spear concerning one of these transactions, in which she requested him to falsely certify a check for $15,500, and as an inducement said: “Now, I will pay you and Mr. B. well for this favor, and I am sure it will be safe.” There was no direct evidence that Spear actually received money for his part in the transaction.
    With reference to questions now controverted, the view which prevailed in the court of common pleas throughout the trial was, that the continuance executed by the company extended for one year the requirement that the fraudulent conduct should be discovered within six months; that the default of Spear was within the terms of the bond and that whether timely notice of the default had been given to the guaranty company was a question to be determined by the jury in view of the circumstances of tjie case. The jury returned a verdict for the bank for the amount of the bond. A motion for a new trial was overruled and a judgment followed the verdict. On a petition in error the circuit court reversed the judgment of the court of common pleas and rendered final judgment in favor of the guaranty company upon the ground that the conceded facts of the case showed, as a matter of law., that timely notice of the default had not been given to the company.

      Messrs. E. G., H. C. & T. C. Johnson and Messrs. Squire, Sanders & Dempsey, for plaintiff in error.
    The position taken by the receiver was that the renewal certificate continued in force the original bond of one year over the period of two years, and, that since the time for discovery was (by the language of the bond) “during said continuance or any renewal thereof or six months thereafter,” the maximum time for the discovery of acts committed during the first year of the bond was extended to six months after the expiration of the year covered by the continuation certificate. First Nat. Bank v. U. S. Fidelity & Guaranty Co., 110 Tenn., 10, 75 S. W. Rep., 1076; Fidelity & Deposit Co. v. Champion Ice Mfg., etc., Co., 133 Ky., 74, 117 S. W. Rep., 393.

      Were the acts of Spear such as were insured against? Do they amount to embezzlement or larceny within the meaning of the bond? Ger-mania Fire Ins. Co. v. Schild, 69 Ohio St., 136; Livingston & Taft v. Deposit Co., 76 Ohio St., 264; Bryant v. American Bonding Co., 77 Ohio St, 99; Stearns on Suretyship, 450; 19 Cyc., 5.18; City Trust, etc., Co. v. Lee, 107 Ill. App., 263, 204 Ill., 69, 68 N. E. Rep., 485; American Bonding & Trust Co. v. New. Amsterdam Casualty Co., 125 Ill. App., 33; American Bonding & Trust Co. v. Milwaukee Harvester Co., 91 Md., 733, 48 Atl. Rep., 72.
    Under all the circumstances existing at the time of the failure of the bank and subsequent thereto, the notice given January 13 was timely within the meaning of the bond; and, undoubtedly was not so long delayed as to establish, as a matter of law, a failure of performance of the requirement. Ætna Indemnity Co. v. I. R. Crowe Coal & Mining Co., 154 Fed. Rep., 545; Perpetual Building & Loan Assn. v. U. S. Fidelity & Guarantee Co., 118 la., 729; Fidelity & Deposit Co. v. Courtney, 18U. S., 342. 6

      Messrs. Stearns, Chamberlain & Royon, for defendant in error.
    The contract in question contains the ordinary safeguards which surety companies employ in their bonds of indemnity known as “fidelity risks.”
    The only safeguard provided for timely notice is that “discovery” of default must be within a certain time, and the effect of this' is that if the bank which has access to its own books and the means of discovery (the surety having none of these means of discovery) neglects to avail itself of its opportunities within the time limit, then it waives recovery on its bond.
    This arrangement must commend itself as eminently fair to the banks and reasonably safe to the surety if the time limit is not too long extended.
    The contract provides for a renewal or extension of the bond from year to year, with a provision that the penalty shall not be cumulative; that is, the penalty for one year shall not be added to the penalty of another year, and the combined penalty of all the years shall not be greater than that of any one year.
    If the covenant was capable of two distinct and reasonable meanings and the bank had adopted one of them and acted upon it, the surety could not complain that the interpretation which the bank had reasonably made and acted upon was held to prevail, but such is not the situation in this case. Coghlan v. Stetson, 19 Fed. Rep, 727.
    ' Whenever the courts have undertaken to construe the covenant involved in the case at bar they have always held the interpretation contended for by the plaintiff in error to be unreasonable. De-Jernette v. Fidelity & Casualty Co., 98 Ky, 558; Mayor of Brunswick v. Harvey, 114 Ga, 733; Proctor Coal Co. v. U. S. Fidelity & Guaranty Co., 124 Fed. Rep, 424; U. S. Fidelity & Guaranty Co. v. Williams, 96 Miss, 10, 49 So. Rep, 742; Germania Fire Ins. Co. v. Schild, 69 Ohio St, 136; Trustees v. Fidelity & Deposit Co., 76 Ohio St, 253.

      As to the meaning of the words, “amounting to embezzlement or larceny,” we cite: Reed v. Fidelity & Casualty Co., 189 Pa. St., 596; U. S. Fidelity & Casualty Co. v. Overstreet, 27 Ky. L. Rep., 248; U. S. Fidelity & Guaranty Co. v. Egg Shippers’, etc., Co., 148 Fed. Rep., 353; Guarantee Co. of N. A. v. Mechanics’ Sav. Bank & Trust Co., 100 Fed. Rep., 559; American Bonding & Trust Co. v. Milwaukee Harvester Co., 91 Md., 733; Williams, Recr., v. U. S. Fidelity & Guaranty Co., 105 Md., 490.
    Upon the question of notice, we refer to: Martin v. Webb, 110 U. S., 7; Orme v. Baker, 74 Ohio St., 337.
   Shaucic, J.

For three independent reasons counsel for the guaranty company insist that the court of common pleas erred in rendering-judgment against it. Although the judgment was reversed by the circuit court for but one of these reasons, counsel insist here, as they may, that the reversal should have been upon all of the grounds of error alleged. They urge that the action could not be maintained because the time limited by the terms of the indemnifying contract for the discovery of the defaults had been exceeded. The stipulation of the bond is that the company shall make good “such pecuniary loss as may be sustained by the employer by reason of the fraud or dishonesty of the said employe in connection with the duties of his office or position amounting to embezzlement or larceny, and which shall have been committed during the continuance of said term or any renewal -thereof and discovered during said continuance or any renewal thereof, or within six months thereafter.”

The acts of Spear which resulted in loss to the bank were committed prior to February 5, 1904, that is, within the period covered by the original bond, and they were not discovered until more than six months after that date. It is entirely clear that if the question involved a consideration alone of the terms of the original bond, the time limited for the discovery has been exceeded. But the terms of the original bond show that when it was executed, a renewal or continuation thereof was contemplated, and an instrument was executed whereby the company continued in force “the original bond subject to its covenants and conditions until- February 5, 1905.” It is obvious that these instruments are to be construed together; not only because they relate to the same subject-matter, but because each in terms refers to the other. On this point counsel are agreed. In favor of the obligee it is insisted that the instruments thus construed are, in legal effect, the same as though the original bond had been executed for two years instead of one, and that this view must determine all questions respecting the rights and liabilities of the parties, so that the company shall be liable for a single penalt)'-, and there is a continuance for a year of the period in which Spear’s default might create a liability for that penalty, as well as for the time of its discovery.

In favor of the obligor it is insisted that however it would be as to other questions which might arise, .there should, with resnect to the question presented, be such construction as would be required by an express stipulation that notwithstanding the continuance, a liability on account of a default occurring within the first year should be conditioned upon the discovery of that default within six months after the end of that year. There being no such express stipulation we have to inquire whether it is implied in the natural meaning of the words used and their grammatical and logical relation. It might be conjectured that the parties regarded the word “renew” used in the first instrument as synonymous with the word “continue” used in the second. But there need be no resort to conjecture since what the parties did in the second instrument was “to continue in force the former instrument for the period beginning the 5th day of February, 1904, and ending on the 5th day of February, 1905, subject to all the covenants and conditions of said original bond.” By the material stipulations of the original bond the obligor undertook to make good any loss which the obligee might sustain by reason of the fraud or dishonesty of its cashier “committed during the continuance of said term or any renewal thereof and discovered during said continuance or any renewal thereof, or within six months thereafter.” Here are no words of severalty or discrimination respecting the time of the discovery, and since it would not be within the proper function of interpretation to supply such words, the terms of the stipulation must be regarded as within the same construction. This view is enforced by the consideration that the term during whose continuance a default was contemplated by the original instrument is the term which was continued by the express terms of the second. No terms are used to suggest that any difference in the relation of the parties was intended by the second instrument than such as would have existed if the original bond had been for two years. It is conceivable that if this question had been anticipated by the parties at the time of the execution of these instruments, clearer terms would have been used to express their intention with respect to it. But certainly in view of their stipulations, nothing more favorable to the obligor can be concluded than that an interpretation against it is doubtful. ■It being entirely clear that within the contemplation of both parties their stipulations were for the purpose of affording indemnity to the obligee, all substantial doubts with respect to the meaning of the terms they employ should be so resolved as to effectuate that obvious intention. That rule of interpretation is familiar and it is illustrated in cases cited in the briefs.

Coupsel for the obligor further insist that the default of the cashier was neither embezzlement nor larceny, and that, therefore, it was not within the terms of its obligation to make good “such pecuniary loss as may be sustained by the employer by reason of the fraud or dishonesty of said employe * * * amounting to embezzlement or larceny.” The parties were stipulating for the indemnity of the obligee. They were not concerned with the enforcement of the criminal laws of the state. It was not intended to indemnify against loss from the cashier’s negligence or bad judgment. They adopted as descriptive of the misconduct contemplated, the phrase fraud or dishonesty amounting to embezzlement or larceny. If only indemnity on account of conduct amounting to technical embezzlement or larceny had been intended that intention would have been naturally expressed more clearly in fewer words. Certainly we should not reach the correct conclusion with respect to this question if we should deny all effect to the words “fraud or dishonesty amounting to,” which denial is involved in the argument of counsel for the obligor. It is very likely true that the cashier did not expect or intend that- the bank should suffer loss from his transactions with Chadwick. She had doubtless quickened the pulsation of his 'venerable heart with dazzling stories of her enormous wealth, and he reached the conclusion, usual in such cases, that he could fraudulently and dishonestly exercise his authority as cashier to his own pecuniary advantage, and without loss to the bank. The fraud, dishonesty and misuse of his authority as cashier were intended. That his conduct was for gain is the only motive suggested by the circumstances. If his own admission to that effect is not properly shown in the record, or if it is not competent in this case, that motive is clearly shown by the letter of Chadwick presented in the record, in which, during these transactions she effectively solicited the false certification of a check for a large amount, proposing as an inducement “I will pay you and Mr. B. well for this favor — and I am sure it will be safe.” To this the.only answer from counsel is, that there is no evidence that Spear ever realized any financial gain from these transactions. The reply may be as brief as the answer. Motive and intention may be as well shown by the hope of illicit gain' as by its realization. A decision in favor of the guaranty company upon this ground would imply that its business in this state consists in the collection of premiums.

A third proposition made by counsel for the obligor, if it is sound, justifies not only the reversal of the judgment' of the court of common pleas, but also the final judgment in favor of the guaranty company which the circuit court rendered. The proposition is that the facts which were conclusively established upon the trial showed that the obligee had failed to comply with the terms of the bond imposing upon it a duty in the following terms: “Provided that on the discovery of any act capable of giving rise to a claim hereunder the employer shall, at the earliest practical moment give notice thereof to the company.” The parties did not see fit to fix a definite date, or the time within which notice should be given to the company. In lieu of such precise stipulation they fixed the day for the giving of the notice by the flexible phrase “at the earliest practical moment.” By this they doubtless meant that the notice should be given as soon as it would be practicable to give it.- In determining the effect of this stipulation it must be assumed that the parties contemplated every consideration by which the minds and conduct of those representing the bank would naturally be affected, the character of the misconduct of the cashier which would create liability upon the bond, a precise comprehension of the requirement that it must be fraud or dishonesty amounting to embezzlement or larceny, the caution which prudent men would exercise in making so grave a charge against one who had been highly esteemed for integrity, as well as the confusion and doubt which would arise from the intervention by the Federal authorities to perform their duties, as prescribed by the law, under which the bank was organized and conducted. Obviously flexible terms were used because it was at the time of making the contract impossible to foresee all of the considerations which would naturally and, therefore, properly, determine the time when notice should be given. While counsel for the obligor claim too much from the evidence respecting discoveries made by the directors on November 30, 1904, it does appear that upon the evening of that day, which was Sunday, one of the directors called a meeting at his office. Fie called the meeting in view of the fact that upon the previvous day depositors had withdrawn money from the bank in unusual amounts and the cashier had upon that day expressed to him the opinion that the bank had become insolvent from the transactions with Chadwick. The object of the meeting was to determine whether the bank should open on the following day. No other purpose was contemplated in the call. At that meeting there was submitted the admission of the cashier to one of the directors that credit amounting to $240,000 had been extended to Chadwick, not upon collateral security furnished by her, but in reliance upon her ownership of more than two millions of securities which she represented she had on deposit in Cleveland, the expectation of the cashier and president that they would profit by these transactions, and that in his opinion the bank had become insolvent in consequence thereof. The correspondence with Chadwick at the time of these transaction was not present, nor was there conclusive evidence of the falsity of her representations as to her wealth. On the following day the condition of the bank was reported to the Comptroller of the Currency, who promptly took possession of the bank. Investigations by experts followed, the facts now known were conclusively ascertained, and on January IS, notice was given to the guaranty company. The attention of the directors at the meeting of November 30, was naturally confined to the only question they were called to consider, whether the bank should be opened on the following day. That question pressed for immediate determination. They were not then informed of the inculpating evidence contained in the subsequently discovered letters of Chadwick, nor of the details of the Chadwick transactions, nor of the later ascertained certainty that they had rendered the bank hopelessly insolvent. Even’ if all these facts had been known and considered at that meeting it would be natural, and, therefore, within the contemplation of the parties to the bond, that the directors by seeking the advice of counsel, and otherwise should exercise great caution before making so grave a charge as the notice would imply. These views are entirely consistent with those,relating to similar stipulations as construed in cases cited in the briefs. The obvious sincerity with which counsel for the company, even in the light of all that is now known, insist that there was no “act capable of creating a liability” under the bond, strongly suggests that the course taken by the directors was reasonable and natural. The rights and liabilities of the parties to this action are fixed by contract, and we need not advert to any of the cited cases which have been determined by a consideration of rules governing the relation of officers of banks to their stockholders and depositors. For the reasons stated the trial judge properly regarded the question of timely notice as one to be determined by the jury. It would not have been more obviously so if the stipulation had been for notice within a reasonable time.

The contention of counsel for the obligor is rather that the facts relating to the subject of notice were, as to their existence and significance, so clearly established that it was the duty of the court to decide that timely notice had not been given, which view we think erroneous for the reasons already given. It does not seem to be, nor could it well be claimed, that in the submission of this question to the jury the court erred to the prejudice of the obligor. It was said in the charge “earliest practical moment does not mean instantly, but it does mean very soon. , If the bank on November 30, knew of such acts of Spear as required notice to be given under the foregoing instructions, then notice in January would not be at the earliest practical moment. Whenever any discovery was made, which required notice, the. representative of the bank should have acted promptly and quickly and reasonably under all the circumstances, and it is for you to determine from all the evidence in the case just when the discovery was made, when notice was given, and whether or not notice was given at the earliest practical moment after the discovery.” Certainly the obligor could not complain of the terms in which the obligation of the bank was thus stated.

Upon these views we conclude that the judgment of the circuit court was not justified by the reasons which it gave, nor for any other reasons apparent upon the record.

The judgment of the circuit court will be reversed and that of the common pleas affirmed.

Judgment reversed.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


author: Spear, J.

text:
    Hilsinger et al. v. Trickett.

      Requirement of statute as to statement of facts in petition of plaintiff — Effect where plaintiff offers evidence differing from petition — Suit against bank to recover money — Alleged to be lost by bank’s negligence — In collecting certificate of deposit— Question of evidence and pleadings — Choice of bank as collecting agent — Implies agency may be performed according to prevailing usage — Bank usage presumed to be reasonable — Law of bank deposits and collections.

    1. The requirement of the statute that the petition of the plaintiff must contain a statement of facts constituting a cause of action, is not satisfied where material facts essential to a recovery are omitted from the petition, and the plaintiff seeks to rely as a basis of recovery upon averments in the answer and a mere denial thereof by reply. And if at the trial the plaintiff offers evidence to support a ground of recovery substantially different from that set up in the petition, and the same is objected to as incompetent because of variance from the allegations of the petition, proper practice requires that such evidence shall be excluded until the plaintiff has amended his pleading and an issue is made up respecting the new matter incorporated in such amendment.
    Hence, in a suit against a bank to recover upon an allegation that at a date named the plaintiff deposited with the bank a sum of money named which sum was deposited under a verbal contract by which the bank was to safely keep said money and pay such checks as plaintiff should draw and repay any balance thereof to plaintiff, evidence showing that no money was in fact deposited but that a certificate of deposit for the amount named issued by a distant bank to the plaintiff was at that time indorsed by plaintiff to the defendant bank, and evidence seeking further to show that by the negligence of the bank in its effort to collect such certificate the debt was lost, and the bank was therefore liable because of such negligence, is incompetent under the pleadings and its admission over the objection of defendant prejudical error.
    2. One who chooses a bank as a collecting agent impliedly agrees that the agency may be performed in accordance with such reasonable methods prevailing at the place of collection as have ripened into usage, not in conflict with the general law, although he has no actual knowledge of their existence.
    3. Where a bank receives by mail from the payee, a certificate of deposit issued by a distant bank, the payee stating in the accompanying letter that it is for deposit to his credit, and asks for a deposit slip and two or three checks, the said payee never before having had any account or dealings with the bank, and the bank responds by mail acknowledging receipt of the certificate and advising that credit has been given his account, and a slip is enclosed showing that the certificate has been deposited ■ to the payee’s credit, and also enclosing two or three checks, and no other request is made or answer given, the transaction does not in law amount to a purchase of the certificate by the bank, but as a receipt of the same for collection only.
    4. Usage of banks prevalent in the vicinity, and generally followed, are presumed to be reasonable, and the burden of showing them unreasonable is upon the one who assails them, the question being not is the custom reasonable but has it been shown to be unreasonable.
    5. A deposit with a bank of a certificate of deposit issued by a distant bank, by the payee, with request to credit same, no other request or instruction being given, implies that the proceeds of the certificate, when collected, are to be deposited to the party’s credit, and then subject to his check, and not remitted otherwise to the depositor.
    6. It is not negligence per se for a bank which has received a certificate of deposit for collection to send it by mail to the bank issuing the same, with a request for payment, where such is the custom among banks, and there is no other bank in the town where the certificate was issued.
    7. It is not negligence per se for a collecting bank, in the absence of instructions to the contrary, to accept in conditional payment of a certificate of deposit a draft or check of the issuing bank where such is the custom of banks in the vicinity.
    8. One who seeks to recover of another on the ground of negligence on the-part of that other assumes the burden of maintaining not only the negligence complained of but that "such negligence has occasioned him loss.
    No. 12882
    Decided June 27, 1912.

      Error to the Circuit Court of Jefferson county.
    The plaintiffs in error, L. EL and J. C. Elilsinger, were, during the month of September, 1906, and later, engaged in the banking business as a partnership under the name of the Bank of Toronto, in the village of Toronto, Jefferson county, Ohio. The defendant in error, J. A. Trickett, was then a resident of the village of Middleport, Meigs county, Ohio.
    On February 20, 1908, Trickett began a suit in the common pleas of Jefferson county against the Elilsingers, to recover upon a claim expressed in the petition “that on the 22d of September, 1906, plaintiff deposited with said Bank of Toronto the sum of $1,400, which sum was deposited under a contract, not in writing, by which the said Bank of Toronto was to safely keep said money and out of the same pay such check or checks as the plaintiff would draw upon the same and repay said money, or any balance thereof, to the said plaintiff on demand.”
    The answer filed shortly thereafter admitted the formal parts of the petition, and, as a first defense, denied every other allegation, thus denying the making of the deposit alleged. As a second defense the answer alleged that on the day named the plaintiff, then living at Middleport, Ohio, forwarded to the Toronto bank a certificate of deposit for fourteen hundred dollars on the Middleport bank of Middleport, Ohio, for the purpose and with the intention of leaving the same for collection, and when so collected to be subject to the check of plaintiff; also, in substance alleging, with some detail as to the steps taken to collect the certificate, that the same was not collected because of the insolvency of the bank issuing the certificate, said bank having made an assignment for the benefit of creditors. There followed a third defense which it is not necessary to further notice here. The reply averred that plaintiff did not leave the certificate of deposit for collection, but that the same was left with said defendants for deposit.
    At the trial the plaintiff offered no evidence in support of the allegation of the petition that he had deposited money with the Toronto bank, but offered evidence respecting the certificate of deposit and for the purpose of showing that the bank was negligent in and about the effort to collect the certificate, and because of such negligence the certificate was not collected from the Middleport bank, and further to show that the defendants were liable to him for the amount of the loss.
    ■ This evidence was objected to by the defendants as an attempted departure from the allegations of the petition, and as not competent under the reply, there being no allegation whatever in that pleading of negligence against the defendants, but on the contrary a repetition of the claim of the petition which bases a right of recovery on an alleged deposit. Defendants’ objection was overruled and the evidence admitted. The trial resulted in a judgment for the plaintiff, which judgment was affirmed by the circuit court. The defendants, plaintiffs in error, seek a reversal of both judgments. Further material facts will be found stated in the opinion.

      Mr. P. P. Lewis and Mr. Dio Rogers, for plaintiffs in error.
    Checks, drafts, and other bills of exchange are the means of transferring the money in nearly all commercial transactions, and in authorizing an agent, whether a bank or individual, to make collections, it may be assumed in the absence of instruction to the contrary that the authority is to be executed in the manner usual and customary in the commercial world. While the agent may not accept anything but the actual cash in satisfaction of the claim, he may receive a check or draft, negotiable and payable on demand, which he has good reason to believe will be honored upon presentation, as a ready and more convenient means of obtaining the money in conditional satisfaction of the debt. Griffin v. Erskine, 131 la., 444, 109 N. W. Rep., 13; Weller Co. v. Gordon & Co., 7 C. C, N.S., 303, 70 Ohio St., 489; Ford v. Osborne, 45 Ohio St.. 3; Potter v. Potter, 27 Ohio St., 84.
    There is nothing whatever in this record to show that the draft sent to the First National Bank of Pittsburg was sent and received in satisfaction of the certificate of deposit, and yet the rule is that such satisfaction should be clearly proven.
    Now, what we are claiming is that according to the case of Weller Co. v. Gordon & Co., supra, the other side cannot simply assume that when the Pittsburg bank received the draft by letter, that it thereby took it at its own risk and in absolute payment of the claim for collection, nor can such fact be found Dy a mere preponderance of the evidence; but it comes squarely within the rule, well established by this court, that where clear proof is required, the supreme court will look into the evidence to see whether the' rule has been disregarded. Boughman v. Boughman, 69 Ohio St, 273.
    The plaintiff nowhere charged negligence. Indeed the reply simply and squarely supports and avers the same right of recovery as that stated in the petition. So that, unless they had the right to abandon their case entirely, and stand upon the averments of the answer as to the right of recovery on the ground of negligence, they clearly failed. We claim it was incumbent upon the plaintiff, at the trial, to prove his own case, and that until he averred negligence, he had no right to introduce evidence to prove negligence, and that failing to prove his own case on contract, he cannot stand on the answer, and on his proof of negligence outside of any averment of any pleading in the case.
    A plaintiff basing his right to recover upon a special contract cannot in support of his claim, rely upon the evidence introduced by the defendant, which shows a different contract, but must prove his own case. Cremer v. Miller, 56 Minn., 52.
    To aver a contract, and prove negligence In the performance of a different contract, as a basis for recovery, is certainly a failure of proof. Dean v. Yates, 22 Ohio St., 397.
    The burden of proof is on plaintiff to show that the paper was collectible, that the bank was negligent in not collecting, and that an actual loss has followed. The measure of damages is the actual loss resulting from the collector’s omission of duty. 5 Cyc., 511; Sahlien v. Bank, 90 Tenn., 222; Bruce v. Baxter, 7 Lea (75 Tenn.), 477.
    Can a bank in making a collection receive checks and drafts? Kirkham v. Bank, 165 N. Y., 132; Smith v. Miller, 43 N. Y., 171, 52 N. Y., 545; Noble v. Doghten, 72 Kans., 336, 83 Pac. Rep., 1048; Citizens Bank v. Houston, 98 Ky., 139; Farmers’ Bank & Trust Co. v. Newland, 97 Ky., 464; Kershaw v. Ladd, 34 Ore., 375; Jefferson Co. Sav. Bank v. Commercial Nat. Bank, 98 Tenn., 337; Union Nat. Bank v. Citizens’ Bank, 153 Ind., 44.
    Is it negligence for a collecting bank to send paper by mail to the drawee bank for payment? The authorities are divided on the question, but there being no other bank at Middleport, Ohio, the authorities seem to be substantially agreed that in such case it is proper. Bolles Modern Law of Banking, 548.
    Once it was the universal custom to send checks and other instruments directly by mail to the drawee bank for collection; and this practice still prevails in some states. On the other hand it has been condemned by many of them unless there is no other bank in the place; or instructions or other circumstances attending the deposit justified the bank in sending to the drawee for payment. Indig v. Nat. City Bank, 80 N. Y., 100; Briggs v. Central Nat. Bank, 89 N. Y., 182; People v. Merchants & Mech. Bank, 78 N. Y., 269; Corn Exch. Bank v. F. N. Bank, 118 N. Y., 443; National Revere

      Bank v. Nat. Bank, 172 N. Y., 102; Hutchinson v. Manhattan Co., 150 N. Y., 250; Farwell v. Curtis, 7 Biss., 160; Ripley Nat. Bank v. Latimer, 64 Mo. App., 322.

      Mr. Hollis C. Johnston and Mr. J. O. Naylor, for defendant in error.
    Taking up the question as to whether there is a variance between the allegations of the petition and the evidence, we believe that this question is entirely controlled by Sections 11556, 11557 and 11364, General Code.
    A defect in | the petition may be cured by the allegations in- the answer and reply: 1 Bates Pleading and Practice, 543; Union Ins. Co. v. McGookey, 33 Ohio St., 555; Dayton Ins. Co. v. Kelly, 24 Ohio St., 345.
    Averring a money consideration and proof of a note is not even a variance, for the note was treated as money. 1 Bates Pleading and Practice, 515; Hadley v. Boro, 62 Vt., 285.
    There is no variance unless the other party is misled. Section 5294, Revised Statutes; 1 Bates Pleading and Practice, 517, 527; C. H. V. & T. Ry. Co. v. Gaffney, 65 Ohio St, 104; Ralston v. Kohl’s Admr., 30 Ohio St., 92; Barnett v. Ward, 36 Ohio St., 107; Banta v. Martin, 38 Ohio St., 534.
    We contend that the Pittsburg bank was the agent of the Bank of Toronto, and not the sub-agent of Trickett, and think that our contention is entirely borne out by all authorities: Reeves, Stephens & Co. v. State Bank, 8 Ohio St., 466;
      First Nat. Bank v. Mansfield Sav. Bank, 10 C. C., 233; Young & Pomeroy v. Executors, etc., 2 Dis., 485.
    As to the negligence of the Toronto bank, we cite: 5 Cyc., 504; Exchange Nat. Bank v. Third Nat. Bank, 112 U. S., 288; Allen v. Merchants’ Bank, 22 Wend., 215, 34 Am. Dec., 289; Gallipolis First Nat. Bank v. Butler, 41 Ohio St, 519, 52 Am. Rep., 94; Merchants’ Nat. Bank v. Goodman, 109 Pa. St., 422, 58 Am. Rep., 728; German Nat. Bank v. Burns, 12 Col., 539, 13 Am. St. Rep., 247; Fabens v. Mercantile Bank, 23 Pick., 330, 35 Am. Dec., 59; Isham v. Post, 141 N. Y., 100, 38 Am. St. Rep., 766; Thompson v. State Bank, 3 Hill (S. Car.), 77, 30 Am. Dec., 354; 3 Am. & Eng. Ency. Law (2 ed.), 805; 2 Randolph on Commercial Paper, sec. 1106.
    We claim that the Pittsburg bank was negligent in accepting from the Middleport bank a Cincinnati draft in payment of the certificate of deposit. An agent for collection cannot accept part payment without special authority, and can receive money only. 5 Cyc., 505; 1 Am. & Eng. Ency. Law (2 ed.), 1027; Graydon v. Patterson, 13 la., 256, 81 Am. Dec., 432; Bank of Antigo v. Union Trust Co., 149 Ill., 343, 36 N. E. Rep., 1029; Nat. Bank of Commerce v. Amer. Exchange Bank, 151 Mo., 320, 74 Am. St., 527; Midland Nat. Bank v. Brightwell, 148 Mo., 358, 71 Am. St., 608; Pepperday v. Citizens Nat. Bank, 183 Pa. St., 519, 63 Am. St., 769.
    We claim the Pittsburg bank was negligent in presenting the certificate for payment direct to the drawer instead of sending it to a nearby bank, for instance one of the three Pomeroy banks, any one of which was not more than two miles from the Middleport bank, and within as close reach of it, as if it had been in the same town. Minneapolis Sash & Door Co. v. Metropolitan Bank, 76 Minn., 136, 77 Am. St., 609; Drovers Nat. Bank v. Anglo-American Packing Co., 18 Ill. App., 191.
   Spear, J.

It is shown by the record that the certificate of deposit issued by the Middleport bank to Trickett, and mailed by him to the Toronto bank on September 20, 1906, was received by the Toronto bank on September 22, 1906. The letter accompanying the certificate stated that it was “for deposit in your bank to my credit,” and requested that the bank send deposit slip and two or three checks. The deposit slip which the bank sent Trickett on September 22 contained this: “Deposited by J. A. Trickett checks as follows $1,400.00,” and the accompanying letter acknowledged receipt of the certificate (mistakenly called a check), “for which we have given your account credit.” The amount ($1,400.00) was then placed to the credit of Trickett on the bank’s book. On September 22, 1906, the bank mailed the certificate to the First National Bank of Pittsburg, Pennsylvania, that bank being a regular correspondent of the Toronto bank and being a bank in a city where, under the banking laws, the Toronto bank was required to keep its reserve, and the nearest reserve city. The Toronto bank had no correspondent bank at Middleport, and the sending of the certificate to the Pittsburg bank for collection was the usual and customary way of making such collections by banks in the locality of the Toronto bank. The certificate was received by the Pittsburg bank, by regular course of mail, on Monday, September 24, and on the same day that bank mailed the certificate to the Bank of Middleport for payment, along with other claims for collection. September 26 the Bank of Middleport mailed to the Pittsburg bank a draft on a Cincinnati bank covering the certificate and other claims, which draft, on presentation for payment, was dishonored. September 27, 1906, the Middleport bank made an assignment for the benefit of creditors, and in October following bankruptcy proceedings were commenced against it and its affairs subsequently settled in the bankruptcy court. Dividends amounting to $419.61 were paid on a claim based on the certificate. Other than this amount the certificate remains unpaid. Two checks drawn by Trickett on the Toronto bank were paid by that bank, one dated September 29 by New York draft on October 1, 1906, for $250, and one, later, for $5. The amount of the certificate was.charged back to Trickett soon after learning of the failure of the Middleport bank, which crediting in the first instance and charging back was the customary and ordinary method of keeping such accounts by banks in that vicinity. Trickett’s checks ($250 and $5) were paid by the bank, apparently supposing the certificate to be good and supposing Trickett to be good, and that he would make it right. The bank had never before done business with Trickett, although the firm was somewhat acquainted with him personally. Being advised by the bank of the dishonor of the certificate Trickett, under date of October' 5, 1906, wrote the bank this: “I have used up all the draft you sent me and will try and think some way to pay you back,” undoubtedly referring to the draft received for his $250 check of 29th September.

Coming now to some legal aspects of the case, the first question relates to the admission over objection of evidence offered by plaintiff at the trial for the purpose of showing that the bank, or its alleged agent the Pittsburg bank, had been guilty of negligence which prevented collection of the certificate, and that plaintiff had been prejudiced thereby. We are of opinion that the evidence was incompetent and that its admission was prejudicial' error. No such claim was made in the ■ petition, nor, indeed, is such allegation contained in the reply, that pleading seeming to still adhere to the averment of • the petition with respect to a deposit, the language being that plaintiff did not leave the certificate for collection, but for deposit. Many changes have been made as to pleadings by legislation enacted since the code of 1853 was adopted and marked liberality is shown by legislative enactments in the matter of amendments. But all the ancient landmarks have not been swept away. It still remains the duty of the plaintiff to state his case in his petition, and it still remains the right of the defendant to be apprised by the petition of the facts which are believed to constitute the plaintiff’s cause of action. If the statement of the petition of plaintiff be true, the charge of negligence was wholly irrelevant; if plaintiff had a cause of action .based upon negligence he should have stated in his petition the facts justifying such claim in order that defendants might have opportunity to traverse such allegations; and the admission in the reply that it was a certificate and not money that he forwarded to the bank did not change the issue, nor even intimate a charge of negligence. It must be borne in mind at the outset of the inquiry respecting liability that the question is not whether or not the Pittsburg bank, in case it was negligent, would be liable to the Toronto bank, but whether or not the Toronto bank is liable to Trickett. Had there been in fact a deposit of money, as alleged, the relation of debtor and creditor would have been at once established. But the delivery of the certificate in the manner shown by the admitted facts was a delivery for collection; of course to result in liability on the part of the bank in case of collection, and imposing the duty of reasonable diligence in efforts to collect. In short the plaintiff, by the act of sending the certificate, made the bank his agent for the collection of the certificate. In doing so he must be held to have assented to the usual procedure of banks in making such collections, provided such procedure is reasonable, and the burden of proving the usual methods unreasonable is upon the party complaining. It is the rule of reason, sustained by sufficient authority, that the party is charged with knowledge of the general custom of banks in the matter of collection of commercial paper, and must be assumed, in the absence of other instructions, to have intended that the bank will perform the duty imposed upon it in the usual and customary way. Farmers’ Bank v. Newland, 97 Ky., 464; 5 Cyc., 504. Indeed this principle is so well recognized that courts will take judicial notice that nearly all the banks of the country transact money affairs by exchange with other banks by the use of checks, drafts, and certificates, and without the actual handling of banknotes or coin, and this is so well known that no business, man should be allowed to profit by pleading ignorance of it. But aside from the rule of judicial notice of the general customs and usages of banks, the record in this case shows that it was the general custom for banks in the vicinity of Toronto to send commercial paper for collection to their correspondents at Pittsburg. Therefore there could not reasonably be any charge of negligence against the Toronto bank because of the transmission of the certificate to the Pittsburg bank. A leading case on this proposition is Savings Bank v. National Bank, 98 Tenn., 337, where it is held that: “One who chooses a bank as a collecting agent impliedly agrees that the agency may be performed in accbrdance wi^h such reasonable methods prevailing at the place of collection as have ripened into usage, not in conflict with the general law, although he has no knowledge of their existence.” The plaintiff, having constituted the Toronto bank his agent for the collection of the certificate, imposed no other obligation on that bank than to select a proper agency to effect such collection. It certainly cannot be assumed that the plaintiff expected, or had a right to expect, that the Toronto bank would send a messenger to Middleport, a place two hundred miles away, to demand payment of the certificate over the counter of the Middle-port bank. This proposition is distinctly held in Wilson v. Bank, 187 Ill., 222, and in a number of other cases, and if it be correct then there is nothing in the record to show that the sending of the certificate to the Pittsburg bank was not a reasonable and prudent act done in proper time and in conformity with bank usages.

It is assumed by counsel for defendant in error that, by transmission of the certificate to the Pitts-burg bank, that bank was constituted the agent only of the Toronto bank and not of the payee of the certificate, the plaintiff. This proposition is supported by the case of Reeves v. State Bank of Ohio, 8 Ohio St., 465, but the view we take of other features of the case, to be treated later, renders it unnecessary to further consider either the proposition or the case cited. On the strength of this authority the defendant in error contends that the Pittsburg bank was the agent of the Toronto bank only. But that question is not of importance, as we have already found that the Toronto bank was not guilty of negligence in forwarding the certificate to the Pittsburg bank, and only in case the latter bank itself is found to have been guilty of negligence, is the question of any consequence.

It is insisted by counsel for defendant in error that the mailing of the certificate by the Pittsburg bank direct to the Middleport bank for payment was itself negligence, and there are authorities which condemn the practice. But it is proven to be customary among banks, and a number of authorities sustain the custom. Among many we cite Indig v. Bank, 80 N. Y., 100; Wilson v. Bank, supra; Kershaw v. Ladd, 34 Ore., 375; 5 Cyc., 506, 507; Bolles Moderó Law of Banking, 548-9. • And so in this case the usages and customs availed of by the ‘plaintiff justified the sending of the certificate direct to the bank which issued it, there being no other bank at that point. The plaintiff having knowledge there was but one bank in Middleport, and that- the certificate was to be collected without .expense to him through the medium of business usages and customs in force between banks, ought not to be permitted to accept the facilities thus afforded by the bank for his accommodation, and then insist that compliance with such customs by the bank should constitute negligence. We think the claim that the custom was unreasonable, as applied to the -situation where there is but one bank in the place of payment, is not sustained by the record.

It appeared that there were banks at Pomeroy, a few miles distant, to which the certificate-might have been sent. It doesn’t appear that any such bank, had it received the certificate, would have done other than the Pittsburg bank did; and, irrespective of that, if such rule is to be applied, what would be the limit as to distance? Manifestly the point lacks force. And, speaking of the Pomeroy banks, one cannot but wonder why the plaintiff did not avail himself of facilities afforded by one of those banks in making deposit of his money and obtaining a certificate, if that was the form of indebtedness he desired, instead of sending the certificate to a bank with which he had never done business, located two hundred miles away from his home, and thus impose upon such bank the responsibility of collecting the certificate, rather than to impose that responsibility upon one of the nearby banks. The transaction was unusual at least.

It is insisted that it was negligence for the Pittsburg bank to receive in satisfaction of the check a draft on another bank in lieu of the money. There appear to be two answers to this. One that the record does not show that the Cincinnati draft was received in satisfaction of the certificate. On the contrary, the draft was received, as shown by the entire evidence, in accordance with the usual custom of banks, as conditional payment only; although the term “payment” is used by the witness; that is, in satisfaction provided the draft should be paid. Such is the custom and such is the law. Checks do not operate as payment only by express agreement. In the absence of such agreement a worthless check or draft does not pay a debt Fleig v. Sleet, 43 Ohio St., 53.

It was incumbent upon the plaintiff below to establish by evidence not only that the Toronto bank, or some agent of that bank responsible to plaintiff, had been guilty of negligence in its effort to collect the certificate, but also that such negligence worked loss to him. In this we think the record shows that he failed. In the examination of the affairs of the Middleport bank in the bankruptcy proceeding it was disclosed that the bank was, not only when the assignment was made (September 27), but for some time before, in fact insolvent. There is, therefore, nothing to show that the certificate would have been paid in money had it been presented in person by a messenger, for, in the ordinary course of business the messenger would have been tendered, and would have accepted, a draft such as was sent to the Pittsburg bank. The fact that the bank doors were still open on the 26th September does not warrant the conclusion that it then had funds sufficient to pay the certificate in money. It must be remembered that the burden of proving his .loss by negligence is upon the plaintiff. We think he did not sustain it.

Applying the severest test, it is this: was it understood between the parties that a sub-agent was to be employed by the Toronto bank in effecting a collection? It certainly was so understood by the bank or it would not have sent the certificate to the Pittsburg bank, and it was equally so understood by Trickett, or he would not, as he did, immediately on learning that the certificate had not been paid, have promised the bank to make good to the amount of the two hundred and fifty dollar check which the bank had advanced to him in the form of a New York draft. This establishes that if the Toronto bank pursued, as we find it did, the usual course, no negligence on its part is shown, and, as we have found, the Pittsburg bank was not negligent in its efforts to collect the certificate.

For error in admitting incompetent evidence and in applying the wrong rule of law to the facts, the judgments below will be reversed and the cause remanded to the court of common pleas for further proceedings according to law.

Reversed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12354.
    The Pinkerton Tobacco Co. v. Heller.
    Decided February 20, 1912.
    Error to Circuit Court of Darke county.

      Messrs. Robeson & Yount and Mr. Stanley J. Crew, for plaintiff in error. Mr. Martin B. Trainor, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12361.
    The State, ex rel. Rulison, Prosecuting Attorney, v. The Western German Bank.
    Decided February 20, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. Henry T. Hunt, prosecuting attorney, and Mr. Alfred Bettman and Mr. Stanley W. Merrell, assistant prosecuting attorneys, for plaintiff in error. Mr. Hiram D. Peck and Mr. Lawrence W. Maxwell, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Price, JJ., concur.


text:
    No. 12362.
    The State, ex rel. Rulison, Prosecuting Attorney, v. The Western German Bank.
    Decided February 20, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. Henry T. Hunt, prosecuting attorney, and Mr. Alfred Bettman and Mr. Stanley W. M err ell, assistant prosecuting attorneys, for plaintiff in error. Mr. Hiram D. Peck and Mr. Lawrence W. Maxwell, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Price, JJ., concur.


text:
    No. 12363.
    The State, ex rel. Rulison, Prosecuting Attorney, v. The First National Bank of Cincinnati.

      Decided February 20, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. Henry T. Hunt, prosecuting attorney, and Mr. Alfred Bettman and Mr. Stanley W. Merrell, assistant prosecuting attorneys, for plaintiff in error. Mr. Hiram D. Peck and Mr. Lawrence W. Maxwell, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Price, JJ., concur.


text:
    No. 12380.
    Hamilton v. Turner et al.
    Decided February 20, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. Alexander H. Martin, for plaintiff in error. Messrs. Westenhaver, Boyd, Rudolph & Brooks, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12402.
    Waddle v. Crawford et al.
    Decided February 20, 1912.
    Error to Circuit Court of Jefferson county.

      Mr. Fred A. Stone, for plaintiff in error. Messrs. Mansfield & Merryman, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12451.
    Dotts et al. v. Lahr et al.
    Decided February 20, 1912.
    Error to Circuit Court of Wyandot county.

      Messrs. Carey & Carey and Messrs. Finley & Gallinger, for plaintiffs in error. Messrs. Carter, Carter & Carter and Messrs. Carter & Goodrich, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12510.
    Daniels v. Taylor.
    Decided February. 20, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Paxton, Warrington & Seasongood; Messrs. McLaughlin, Russell, Coe & Sprague; Mr. Robert S. Marx and Mr. Guernsey Price, for plaintiff in error. Messrs. Harmon, Colston, Goldsmith & Hoadly; Mr. Charles H. Rodes and Mr. George E. Stone, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12517.
    John Amicon Brother & Co. v. The William M. Roylance Co.
    Decided February 20, 1912.
    Error to Circuit Court of Franklin county.

      Mr. Fred C. Rector, for plaintiff in error Mr. Fred H. Schoedinger and Mr. Plarry S. Wonnell, for defendant in ‘ error.
   Judgment affirmed, the errors complained of not being prejudicial.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12519
    Murray, Executrix, etc., v. The Masonic Temple Co. et al.
    Decided February 20, 1912.
    Error to Circuit Court of Mahoning county.

      Mr. Charles Koonce, Jr., for plaintiff in error. Mr. W. T. Gibson; Mr. L. H. E. Lowry and Mr. E. N. Brown, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12600.
    Schauer v. Josse.
    Decided February 20, 1912.
    Error to Circuit Court of Miami county.

      Mr. Leonard H. Shipman and Mr. A. B. Campbell, for plaintiff in error. Messrs. Broomhall & Broomhall, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12601.
    Babcock, Guardian, v. Monypeny, Executor, etc.
    Decided February 20, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Addison, Sinks & Babcock, for plaintiff in error. Messrs. Booth, Keating, Peters & Pomerene, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12611.
    Wahl v. Wahl.
    Decided February 20, 1912.
    Error to Circuit Court of Brown county.

      Messrs. Young & Barnes, for plaintiff in error. Messrs. Tarbell & Bagley, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12612.
    The Pond Creek Mill & Elevator Co. v. The Youngstown Macaroni Co.
    Decided February 20, 1912.
    Error to Circuit Court of Mahoning county.

      Mr. S. L. Clark and Messrs. Miller & Huxley, for plaintiff in error. Mr. Edmond H. Moore, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12632.
    Bowlus, Trustee, v. Cadwallader.
    Decided February 20, 1912.
    Error to Circuit 'Court of Seneca county.

      Mr. John B. Stahl, for plaintiff in error. Mr. Charles A. Strauch, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12776.
    The City of Ashtabula v. Burrows.
    Decided February 20, 1912.
    Error to Circuit Court of Ashtabula county.

      Mr. H. R. Hill,_city solicitor, and Messrs. McGiffert & Ullman, for plaintiff in error. Mr. H. E. Starkey; Messrs. Sargent & Sargent and Mr. E. P. Hall, for defendant in error.
   Judgment affirmed, the question presented being simply on the weight of the evidence.

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


text:
    No. 12804.
    The United States Health & Accident Insurance Co. v. Cushing.
    Decided February 20, 1912.
    Error to Circuit Court of Lake county.

      Mr. Joseph L. Stern, for plaintiff in error. Mr. Harry E. Hammar, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12991.
    Harmon, Receiver, v. Purdy, Admx.
    Decided February 20, 1912.
    Error to Circuit Court of Allen county.

      Mr. Morison R. Waite; Mr. Jay Leach and Mr. I. R. Longsworth, for plaintiff in error. Messrs. Cable & Parmenter, for defendant in error.
   Judgment affirmed.

Spear, Price and Donahue, JJ., concur.


text:
    No. 13016.
    The Ohio & Pennsylvania Coal Co. v. Simpson.
    Decided February 20, 1912.
    Error to Circuit Court of Columbiana county.

      Messrs. Billingsley, Clark & Moore, for plaintiff in error. Messrs. White & Crosser and Mr. Charles S. Speaker, for defendant in error.
   Judgment affirmed.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 13296.
    Diegle v. The State of Ohio.
    Decided February 20, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Belcher & Connor; Mr. Con J. Mattern and Mr. John E. Egan, for plaintiff in error. Mr. Timothy S. Hogan, attorney general; Mr. Joseph McGhee, assistant attorney general, and Mr. Edward C. Turner, prosecuting attorney, for defendant in error.
   Judgment affirmed.

Shauck, Price, Jopinson and Donahue, JJ., concur. Davis, C. J., dissenting:

I assume that the jury may have found correctly upon the facts. But I do not concur in this judgment for the following reasons: First, misconduct by one of the prosecuting counsel in argument to the jury and in direct violation of the statute prohibiting comment on the failure of the accused to testify; not being of the opinion that any admonition by the court could take the prejudice created by such comments out of the mind of the jury; and, second, because I cannot concur, in the breadth with which it seems to be adopted by the majority, in the doctrine of enticement by the state. The attorney general and prosecuting attorney insisted that the unreported case of Fox v. The State, 53 Bull., 28, which was heard upon a motion for leave to file a petition in error, is in all its essential facts identical with this case. In that I agree. But I did not concur in the judgment in Fox v. The State, and see no additional reason to do so now.


text:
    No. 12334.
    Berghegger, Admr., v. Oelschlager et al.
    Decided February 27, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Gloss & Luebbert and Messrs, Dempsey & Nieberding, for plaintiff in error. Mr. Louis J. Hoppe and Mr. J. L. Kohl, 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 of the court in the admission in evidence of extracts from the testimony of defendant in error given in a proceeding in the probate court to establish a claim of defendant in error, who was the administrator of Louisa Oelschlager, against said estate, as appears on page 30 of the bill of exceptions, and for error of the court in overruling the motion of plaintiff to strike out such evidence as appears on page 31 of the bill of exceptions.

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


text:
    No. 12340.
    Burk v. The United Surety Co.
    Decided February 27, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Marriott, Belcher & Connor, for plaintiff in error. Messrs. Butler & Carlile and Mr. H. E. Miles, for defendant in error.
   Judgment affirmed on the reasoning of the circuit court.

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


text:
    No. 12414.
    Iams et al., Partners, v. Schweck.
    Decided February 27, 1912.
    Error to Circuit Court of Ottawa county.

      Mr. George A. True and Mr. Ruel H. Crawford, for plaintiffs in error. Mr. Scott Stahl and Mr. Charles H. Graves, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12427.
    Grossner v. The State of Ohio.
    Decided February 27, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. Hermann Preusser and Mr. Francis J. Wing, for plaintiff in error. Mr. M. P. Mooney and Mr. John A. Cline, for defendant in error.
   Judgment affirmed.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12554.
    Cole, Crane & Co. v. Beatty.
    Decided February 27, 1912.
    Error to Circuit Court of Lawrence county.

      Mr. C. M. Humes, for plaintiff in error. Mr. A. R. Johnson; Mr. Dan C. Jones and Mr. Wm. J. Meyer, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12602.
    Crater et al. v. The Home Fire Insurance Co. of New York.
    Decided February 27, 1912.
    Error to Circuit Court of Tuscarawas county.

      Mr. P. S. Olmstead and Mr. Henry Bowers, for plaintiffs in error. Mr. J. G. Patrick; Mr. J. W. Mooney and Mr. R. M. Edmonds, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Jopinson, JJ., concur.


text:
    No. 12634.
    Burnham Stoepel & Co. v. Craven.
    Decided February 27, 1912.
    Error to Circuit Court of Defiance county.

      Mr. Henry B. Harris, .for plaintiff in error. Messrs. Winn & Hay, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12643.
    The Swetland & Sons Co. v. The Bronx Realty Co.
    Decided February 27, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Carpenter, Young & Stocker, for plaintiff in error. Messrs. Beckerman & Deutsch, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12646.
    Sorg et al. v. Fetzer et al.
    Decided February 27, 1912.
    Error to Circuit Court of Butler county.

      Messrs. Andrews, Harlan & Andrews, for plaintiffs in error. Mr. B. F. Harwitz; Mr. W. C. Shepherd and Messrs. Shotts & Millikin, for defendants in error.
   Judgment affirmed.

Spear, Johnson and Donahue, JJ., concur.


text:
    No. 12663.
    Rowell et al. v. The Township Trustees of Norwalk Township.
    Decided February 27, 1912.
    Error to Circuit Court of Huron county.

      Mr. A. V. Andrews; Mr. W. R. Pruner; Mr. A. M. Beattie and Messrs. C. P. & R. D. Wickham, for plaintiffs in error. Mr. G. Ray Craig, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12677.
    The Mosler Safe Co. v. Norman.
    Decided February 27, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Shotts & Millikin and Messrs. Waite & Schindel, for plaintiff in error. Messrs. Mackoy & Mackoy, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12679.
    Lutz et al. v. Hartman et al.
    Decided February 27, 1912.
    Error to Circuit Court of Lucas county.

      Messrs. Fell & Schaal, for plaintiffs in error. Mr. Herbert J. Chittenden
      and Mr. Harry W. Lloyd, for defendants in error.
   Judgment affirmed.

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


text:
    No. 12690.
    Craig, Guardian, v. Michael.
    Decided February 27, 1912.
    Error to Circuit Court of Fayette county.

      Messrs. Post & Reid, for plaintiff in error. Mr. Frank A. Chaffin, for defendant in error.
   Judgment reversed. Grounds stated in journal entry.

The court find that said court erred in affirming the judgment of the court of common pleas and that the court of common pleas erred in its first conclusion of law on the findings of fact in said cause and did not err in its second conclusion of law on said findings of fact. It is therefore ordered and adjudged by this court that the judgments of the courts below be, and the same are hereby, reversed. And coming now to render the judgment which the court of common pleas should have rendered, it is hereby ordered and adjudged that the petition of defendant' in error, Elva M. Michael, plaintiff in said cause in the court of common pleas be, and the same is hereby, dismissed.

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


text:
    No. 12691.
    Craig, Guardian, v. Rowe.
    Decided February 27, 1912.
    Error to Circuit Court of Fayette county.

      Messrs. Post & Reid, for plaintiff in error. Mr. Frank A. Chaffin, for defendant in error.
   Judgment reversed. Grounds stated in journal entry.

The court find that said court erred in affirming the judgment of the court of common pleas and that the court of common pleas erred in its first conclusion of law on the findings of fact in said cause and did not err in its second conclusion of law on said findings of fact. It is therefore ordered and adjudged by this court that the judgments of the courts below be, and the same are hereby, reversed. And coming now to render the judgment which the court of common pleas should have rendered, it is hereby ordered and adjudged that the petition of defendant in error, Hazel M. Rowe, plaintiff in said cause in the court of common pleas be, and the same is hereby, dismissed.

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


text:
    No. 12692.
    Craig, Guardian, v. Rowe.
    Decided February 27, 1912.
    Error to Circuit Court of Fayette county.

      Messrs. Post & Reid, for plaintiff in error. Mr. John Logan, for defendant in error.
   Judgment reversed. Grounds stated in journal entry.

The court find that said court erred in affirming the judgment of the court of common pleas and that the court of common pleas erred in its first conclusion of law on the findings of fact in said cause and did not err in its second conclusion of law on said findings of fact. It is therefore ordered and adjudged by this court that the judgments of the courts below be, and the same are hereby, reversed. And coming now to render the judgment which the court of common pleas should have rendered, it is hereby ordered and adjudged that the petition of defendant in error, David J. Rowe, plaintiff in said cause in the court of common pleas be, and the same is hereby, dismissed.

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


text:
    No. 12693.
    Craig, Guardian, v. Rowe.
    Decided February 27, 1912.
    Error to Circuit Court of Fayette county.

      Messrs. Post & Reid, for plaintiff in error. Mr. John Logan, for defendant in error.
   Judgment reversed. Grounds stated in journal entry.

The court find that said court erred in affirming the judgment of the court of common pleas, and that the court of common pleas erred in its first conclusion of law on the findings of fact in said cause and did not err in its second conclusion of law on said findings of fact.' It is therefore ordered and adjudged by this court that the judgments of the courts below be, and the same are hereby, reversed. And coming now to render the judgment which the court of common pleas should have rendered, it is hereby ordered and adjudged that the petition of defendant in error, Clarence Rowe, plaintiff in said cause in the court of common pleas be, and the same is hereby, dismissed.

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


text:
    No. 12799.
    Schauss v. Miller.
    Decided February 27, 1912.
    Error to Circuit Court of Defiance county.

      Messrs. Rheinfrank & Ohlinger and
      Messrs. Henry & Robert Newoegin, for plaintiff in error. Messrs. Kline, Tolies & Morley and Messrs. Winn & Hay, for defendant in error.
   Judgment affirmed.

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