author: Johnson, J.

text:
    The State, ex rel. Walton, v. Edmondson, Auditor of Hamilton County. The State, ex rel. Brennan, Treasurer of State, v. Benham, Treasurer of Franklin County. The State, ex rel. Grant, v. Sayre, Auditor of Franklin County.

      Constitutional law — Blind relief pension laws — Amended Sections 2962 to 2970, General Code, constitutional — Act of April 28, 1913 (103 O. I,., 833), unconstitutional — Repealing clause of unconstitutional act inoperative, when■ — Section 5, Article XII, Constitution.

    1. The act of April 2, 1908 (99 O. L., 56), “To provide for the relief of needy blind,” now included in Sections 2962 to 2970, General Code, as amended February 18, 1913 (103 O. L., 60), is a valid exercise of legislative power not repugnant to the federal or state constitutions.
    2. The act of April 28, 1913 (103 O. L., 833), “To create an insti- _ tution for the relief of the needy blind,” requires the expenditure of public funds raised by taxation, for a private purpose and also violates Section 5, Article XII of the Constitution. It is, therefore, unconstitutional and void.
    3. Where ,an unconstitutional statute contains a clause repealing a prior valid law, for which the later statute was a substitute, the repealing clause will also be held inoperative, in the absence of an expressed intention to repeal the prior law without regard to the substitute. •
    (No. 14247
    — Decided September 30, 1913.)
    (Nos. 14433 and 14434
    — Decided February 3, 1914.)
    Error to the Court of Appeals of Hamilton county.
    Error to the Court of Appeals of Franklin county.
    In Mandamus.
    Practically the same subject-matter being involved in the three cases as above entitled, they are considered together.
    In cause No. 14247 the relator Walton sought to compel the auditor to pay him the quarterly payment due him from the blind-relief fund of Hamilton county, in accordance with the provisions of the statute now included in Sections 2962 to 2970, General Code.
    It is conceded that the relator is entitled to the writ prayed for unless the statute referred to is unconstitutional. The common pleas court and the court of appeals both held the statute unconstitutional and judgment was accordingly entered. The proceeding here is to reverse the judgments of the lower courts.
    In the case of The State, ex rel. Brennan, v. Benham, County Treasurer, No. 14433, the relator sought to compel the county treasurer of Franklin county .to transfer and pay over to the state treasurer all moneys in the former’s possession arising out of levies made in Franklin county, by the commissioners thereof, for the relief of the needy blind. Defendant answered, alleging the unconstitutionality of the act under which the demand was made, the existence of outstanding orders for the relief of needy-blind persons issued under authority of preexisting law, by proper officers, and that there were claims against the funds in the hands of the defendant which should be provided for and paid out of said fund before any part should be transferred. The relator interposed a general demurrer, which? was overruled by the court of appeals and judg-, ment was entered in favor of the defendant.
    The case of The State, ex rel. Grant, v. Sayre, Auditor, No. 14434, is an original action brought in this court on the relation of John M. Grant, a blind person, holder of an order for relief under the blind-relief law of 1908. The relator prayed for a writ of mandamus to compel the issuance of the proper warrant to him under that statute. The order covered a period prior to the 12th of August, 1913, to a date subsequent thereto, that date being that on which the statute for the relief of needy blind (103 O. L., 833) became effective.
    The respondent auditor answered setting up the repeal of the statute under which the respondent was formerly authorized to issue warrants of the kind whose issuance is sought to be compelled, and also, by way of separate defense to the entire claim of relator, the making of the demand by the treasurer of state upon the treasurer of Franklin county for the ' payment and transfer of the entire blind-relief fund of Franklin county to said treasurer of state.
    To this answer a g'eneral demurrer has been interposed here.

      Mr. Alfred Bettman, for plaintiff in error in No. 14247.

      Mr. Frank L. Pogue, prosecuting attorney; Mr. John V. Campbell and Mr. Charles A. Groom, for defendant in error in No. 14247.

      Mr. T. S. Hogan, attorney general; Mr. H. S. Ballard and Mr. C. D. Laylin, for plaintiff in error in No. 14433, and for respondent in No. 14434.

      Mr. Edward C. Turner, prosecuting attorney; Mr. J. M. McGillivray; Mr. H. C. Sherman and Mr. M. B. Earnhart, for defendant in error in No. 14433.

      Mr. Edward C. Turner, prosecuting attorney; Mr. J. M. McGillivray and Mr. H. C. Sherman, for relator in No. 14434.
   Johnson, J.

The constitutionality of two statutes is involved in these cases, viz: The act of April 2, 1908, now included in Sections 2962 to 2970, General Code, with the amendments thereto, and the act of April 28, 1913 (103 O. L., 833), which became effective August 12, 1913. As to the first statute the Hamilton county courts held it to be unconstitutional. They entertained the view that the case was ruled by Auditor of Lucas County v. State, ex rel. Boyles, 75 Ohio St., 114. In that case there was an effective expression of the invalidity of legislation requiring the expenditure of public funds raised by taxation, for a purely private purpose. The statute involved in that case provided that all male blind persons over the age of 21 years and all female blind persons over the age of 18 years, who had been residents of the state for five years and of the county for one year and had no property or means with which to support themselves, should be entitled to and receive not more than $25 per capita quarterly, from the county treasury, on the warrant of the county auditor authorized by the probate judge, and that under no condition or circumstance should the beneficiary lose his or her benefits or residence by or through removal to any home or institution for the blind not maintained by said county or state. In the analysis of that statute, the court held it to be not a statute making-provision for public relief to poor persons, but really an act providing for the giving of a bounty to a certain selected class of persons. It is pointed out in the opinion “that no provision is made in the act to insure the application of the money to the support of the individual, or to prevent him from becoming a public charge, or in any manner to control its use by him. The act does not direct that the payments shall continue during the lifetime of the beneficiary, nor does it limit the time, needs of the donee, or provide for any subsequent inquiry. It is an indeterminate gratuitous annuity, a gift pure and simple, and, being so, the legislature is without authority to make it from the public funds.”

In the law, which is included in Sections 2962 to 2969, General Code, whose validity is here in question, the creation of a blind-relief commission is provided for, whose powers have, by amendment passed February 18, 1913, been conferred upon the commissioners of the several counties. Under this law any person of either sex who, by reason of loss of eyesight, is unable to provide himself with the necessities of life, who has not sufficient means of his own to maintain himself, and who, unless relieved as authorized by these provisions, would become a charge upon the public or upon those not required by law to support him, is entitled to its benefit, if he has become blind while a resident of the state and has been a resident of the county for one year. The law further provides for the surgical removal of blindness, where it is possible. Section 2967 provides that if the commission is satisfied upon testimony that the applicant is entitled to relief thereunder, it shall issue an order therefor, in such sum as it finds needed, not to exceed $150 per annum, and “such relief shall be in place of all other relief of a public nature.”

Section 2968 provides that the commissioners may at any time during the year inquire into the qualifications, examine as to the disability and needs of any person theretofore placed on such blind list, and increase or decrease the amount within the limits prescribed; and in case the board finds that any person is not qualified to draw further relief, or that such disability has been removed, in whole or in part, then the board may, at any time thereafter during such year, modify or change the amount theretofore found necessary for such relief, or remove such person from the list of those qualified to draw any money for relief. It will, therefore, be seen that this statute seems to have been drawn for the purpose of carefully avoiding the defects in the statute of 1904 pointed out by the court in Lucas County v. State, supra. The relief provided for in the later statute is limited to those who are, or will become, charges upon the public or upon those not required by law to support them,, and is the only public relief that may be given to them. The provision for surgical removal of blindness, where possible, is one to prevent the person from becoming such charge. The entire matter is left to the continuing and imperative supervision of the board of county commissioners. Every safeguard has been adopted to secure the application of the money to the support of the individual and to prevent him from becoming a public charge. It is not an indeterminate annuity, unlimited in time or uncertain in its application.

The express object, and the practical provision, of the enactment is to furnish relief to the blind who are poor and needy, and to avoid the public burden.

It is not questioned that the relief of the poor is a proper public purpose.

Judge Cooley in his work on taxation (3 ed.), page 204, declares that “the support of paupers and the giving of assistance to those who, by reason of age, infirmity, or disability, are likely to become such, is, by the practice and common consent of civilized countries, a public purpose.” The power to tax for a public purpose is part of the inherent sovereignty of the state. It is a legislative power which by Section 1, Article II of the Constitution is vested in the general assembly. The determination of the public purpose and objects to which it is applicable must rest in the discretion of the general assembly except as limited by the restrictions imposed by the constitution. Gholson, J., in Baker v. Cincinnati, 11 Ohio St., 542, says: “It will be observed that the provision is not, that the legislative power, ‘as conferred by the constitution’ shall be vested in the general assembly, but that the legislative power of this state shall be vested. That includes all legislative power which the objects and purposes of state government may require and we must look to other provisions of the constitution to see how far and to what extent legislative discretion is qualified or restricted.” See also Mason v. State, 58 Ohio St., 49. The court will only intervene to prevent an unreasonable or arbitrary exercise of this discretion, or a result in contravention of the fundamental law.

Mr. Justice Miller in Loan Assn. v. Topeka, 20 Wall., 655, in which case it is held that the right to tax can only be used in aid of a public object, says: “And in deciding whether, in the given case, the object for which taxes are assessed falls upon the one side or the other of the line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long usage of legislation levied.” Outdoor relief of the poor, as distinct from relief in institutions, was fixed as part of the policy and practice of Ohio one hundred years ago.

It was early decided in Ohio that the whole subject of relieving the poor, where it is done in pursuance of law, is of statutory origin and depends on statutory regulations. Trustees of Cincinnati Tp. v. Ogden, 5 Ohio, 23; Trustees v. White, 48 Ohio St., 577-8.

In Trustees v. Ogden it was held that the overseers of the poor of the proper township are bound to support a casual pauper if found within the limits of the township and requiring support, and an individual furnishing a necessary supply, after notice to the overseers to do so, may recover the amount. Judge Hitchcock, in announcing- the decision, said: “The supreme power, of the state, by legislative enactment, has imposed the obligation." The statute involved in that case was passed in February, 1816.

In Lucas County v. State, supra, the court remarks that “Section 1 of Article VII, which provides that institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state, is neither a grant nor a limitation of power, but a recognition of the fact that by enlightened people such classes are treated as wards of the state." Such institutions have been fostered and supported for blind children, in order that they may be there trained, educated and fitted to assist in their own support, as well as to enable them to have in some degree the pleasures and advantages of intellectual development. But there has been no law providing for the maintenance of adult blind persons in such institutions.

These suggestions would seem to indicate the conception of duty, the public policy and the general course and usage of our state touching the subject. Since the constitution has included the blind among those who shall be the objects of the solicitous consideration of the state, and since it has ever been the policy of the state to give assistance to' the poor, infirm and disabled, legislation which defines and classifies poor or needy blind persons as beneficiaries of its provisions and which does not make a capricious, arbitrary or unreasonable provision, should not be denounced by the courts as an unauthorized classification repugnant to the constitutional requirement of uniformity and equality in the operation of laws. The constitution contains no provision requiring that the relief of the poor shall be conducted and provided for in institutions, nor does it prohibit outdoor relief of the poor.

In fact, the entire system for the' establishment and maintenance of benevolent institutions and benevolent works of the state has proceeded upon the idea that the legislature in the exercise of its general legislative power was vested with authority to do whatever in its judgment the public welfare demanded, always provided that the thing done should be for a public purpose and should not take public money for the advancement of a purely private object.

This brings us to a consideration of the statute passed in April, 1913 (103 O. L., 833). In this act it is provided that there shall be established and maintained in the city of Columbus a state , institution, to mean under the act a board for the relief and benefit of the needy blind, the members of which shall be appointed by the governor.

Under Section 5 it is provided that “Any person who becomes blind while residing in this state and. who has continuously resided in this state for five years prior to his application for the relief herein provided, who, by reason of loss of eyesight, is unable to provide himself or herself with the necessaries of life and has not sufficient means of his or her own so to do, shall be deemed entitled to the benefits and support of the said institution - as herein provided.”

Section 6 provides for the application by the person claiming the relief to the probate court, and Section 7 provides that the application shall be heard and determined by the probate court, that the probate judge shall thereupon determine the amount of the relief that the applicant is entitled to under said proof, not exceeding the sum of $240 per annum, and “his findings upon said facts shall be final and conclusive unless reviewed, set aside or modified by the board at their discretion.”

Section 8 provides for the levying of taxes for the purpose of creating a fund for the blind as in the act provided, and also contains the following clause: “After the passage of this act and on the demand of the state treasurer the treasurers of the respective counties shall transfer and pay over to the state treasurer all monies in their possession or that may thereafter come into their possession under present levies. for the relief of the blind.” Section 10 repeals Sections 2962 to 2970 of the General Code, which constitute the act of 1908, hereinbefore discussed.

We think it clear that by the use of the word “institutions” in Section 1 of Article VII of the Constitution it was intended to designate the places where, and the means by which, the afflictions of the persons referred to may be relieved, although the term “institution” is sometimes used as descriptive of the establishment where the operations of an association are carried on and at other times it is used to designate the organized body. Gerke v. Purcell, 25 Ohio St., 244. We do not think that the use of the term “institution,” in the statute under examination here, in connection with the board which shall administer the relief provided for, contributes anything to the validity of the law. An examination of the law of 1913 will disclose that it is open to many of the objections pointed out by this court in Lucas County v. State, as well as others.

There is a broad provision in Section 5 that any person, who, by reason of loss of eyesight, is unable to provide himself or herself with the necessaries of life and has not sufficient means of his or her own so to do, shall be entitled to the benefits of the law. Therefore, such a person, although he might have children who would be able ‘and be compelled by law to support him, or who actually would be supporting him, or who might have friends or relatives who would be willing to support him, or who would be actually doing so at the time, would still be entitled to receive payment under the law. In such a case the payment of the money could not be said to be a public object, but would be, as said in the Lucas County case, the giving of a bounty pure and simple to one who had no real need for it in order to prevent his becoming a charge upon the public. Concerning the provision in Section 7, that the findings of the probate judge shall be final and conclusive unless reviewed, set aside or modified by the board at their discretion, it might well be doubted whether the legislature has power to confer on an administrative board, the authority to review a final order made by a court of record. Of course, if the order of the probate court can be regarded as a judicial order, the provision for review would be invalid, for such a board cannot exercise judicial functions. But in any event the provision does not furnish a definite method of adjusting the relief to the changing conditions and needs of the beneficiary. It is not continuing in its duration and it in no way provides a proper safeguard. The legislature cannot be said to have the right to exercise the taxing power for the accomplishment of such a result. It would not be such a purpose as the state is authorized to take property^.of the citizens by tax to carry out. But there is another material infirmity in the law of 1913. Section 8 of this act requires that on the demand of the state treasurer the treasurers of the respective counties shall transfer and pay over to the state treasurer all moneys in their possession or that may thereafter come into their possession under present levies for the relief of the blind. It is conceded in the cases at bar that the county treasurer has in his possession moneys raised under the act of 1908, which were raised by taxation^ specifically for the relief of the blind, in accordanee with the provisions of that law.

In the consideration of this provision we are confronted with the plain mandate in Section 5 of Article XII of the Constitution thai “No tax shall be levied, except in. pursuance of law; and every law imposing a tax, shall state, distinctly, the object of the same, to which only, it shall be applied.” The taxes in the county treasuries, which' were paid under the levies provided for in the act of 1908, can manifestly be applied only to the objects distinctly stated in the law providing for their levy. The portion of Section 8 of the law of 1913, above referred to, is in direct conflict with Section 5 of Article XII. Each county of the state has raised a fund of its own under the law of 1908 to be applied for the relief of its own blind. Necessarily the amount and the proportionate amount which each county would raise would be different from each of the other counties, and different from its proportion if originally raised by the state for state purposes. To require that this money should be turned over to the state treasurer and used as a part of a fund which belonged to the entire state to be expended for the purposes of the entire state, although the object would be similar, would produce the very inequality and injustice which the constitution intended to prevent.

Section 10 of this act repeals the sections of the General Code which constitute the act of 1908. The provision in Section 8, above referred to, for the transfer of county funds to the state treasury, was an essential provision in the law of 1913, made to prevent postponement of the relief provided for. There is no ground for the opinion that the legislature would have passed the statute without the inclusion of the section referred to.

Where an amendatory and repealing act is a substitute for the law repealed and the body of the act is unconstitutional, the repealing clause is inoperative and the old law remains in force. The State, ex rel., v. Buckley, 60 Ohio St., 273-297.

For these reasons we conclude that the act of 1913 is not constitutional, and that the act of 1908 is in full force as a valid exercise of the legislative power.

Judgments of the courts below in No. 14247 will be reversed and judgment entered for the plaintiff in error. ^

The judgment in No. 14433 will be affirmed and judgment for defendant in error, and in No. 14434 the writ of mandamus prayed for will be allowed.

Judgment accordingly.

Nichols, C. J., Donahue, Wanamaker and Newman, JJ., concur in Nos. 14247 and 14434.

Nichols, C. J., Shauck, Donahue, Newman and Wilkin, JJ., concur in No. 14433.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    The Petersburg Fire Brick & Tile Co. v. The American Clay Machinery Co.

      Contracts — Sale of several articles for gross sum — Indivisible contract, when — Seller cannot recover until complete performance, when — Delivery of part not substantial compliance with contract, when — Rights of parties under contract stipulations as to delivery — Delivery to common carrier, deposit of bill of lading and requesting notes — Do not constitute delivery, when.

    1. A written contract for the sale of several articles of personal property for a sum in gross is indivisible except by subsequent agreement of the parties, and the seller cannot recover the contract price or any part thereof unless he substantially performs or tenders performance of all the terms of the contract \ on his part to be performed.

      2. Under such a contract the delivery of a part of the personal property sold, equal in value to about one-third of the total contract price, is not a substantial performance on the part of the seller.
    3. Where a contract for the sale of personal property specifically provides for the manner and method of delivery, the seller has no right or authority to impose other or further conditions precedent to delivery than those named in the contract.
    4. Delivery of personal property to a common carrier, the bill of lading being taken in the name of the seller, and forwarded to a bank in a city other than the purchaser’s place of business, with the demand upon the purchaser that he execute and deliver to this bank for the seller, notes covering the entire purchase price before the bill of lading will be de'ivered to him, does’ not constitute a delivery or a sufficient tender ol delivery under a contract of sale of personal property, which provides for delivery f. o. b. car's at shipping point for shipment to the purchaser, and which further provides for the payment of one-fourth of the purchase price within thirty days after the arrival of the property on the cars at its destination, the residue thereof to be paid in four, eight arid twelve months respectively, deferred payments to be evidenced by notes of even date with the bill of lading.
    (No. 13530
    — Decided February 10, 1914.)
    Error to the Circuit Court of Lawrence county.
    On the 8th day of March, 1906, The Petersburg Fire Brick & Tile Company accepted, in writing, a written proposition of The American Clay Machinery Company to furnish one two-mould dry-press brick machine, one eight-foot dry pan, and one agitating clay feeder, of certain styles and numbers as shown by the catalogue of the machinery company. This contract was approved on the 10th day of March, 1906, by' the secretary and manager of The American Clay Machinery Company.

      On the 8th day of May, 1906, the dry pan mentioned in the contract was shipped to Coal Grove, Ohio. The bill of lading, being in the name of the machinery company, was transferred by it to the brick company, by endorsement thereon, and forwarded to the brick company by mail. The brick company received this dry pan, put it in place in its factory and continued to use same.
    On the 28th day of July, 1906, the machinery company shipped to its own order to Coal Grove, Ohio, the dry-press brick machine and agitating clay feeder described in the contract, forwarding the bill of lading with four unsigned promissory notes covering the entire purchase price of all the machinery to The First National Bank of Ironton, Ohio. That bank was instructed upon the execution and delivery of these notes by the brick company to turn over to that company the bill of lading covering this shipment. The brick company refused to accept the shipment or to execute the notes, and thereupon the dry-press brick machine and the agitating clay feeder were returned to the machinery company. The dry pan still remained in the possession and use of the brick company.
    On the 29th day of November, 1909, the machinery company filed its petition in the common pleas court of Lawrence county, Ohio, seeking to recover the value of the dry pan. The pleadings in the case are voluminous, consisting of petition, answer and cross-petition, reply to answer and answer to cross-petition, reply to answer to the cross-petition, amendment to petition, answer to petition and amendment thereto and cross-petition, answer to cross-petition and reply, and reply to the answer to the cross-petition.
    The plaintiff pleads a contract and full performance on its part, and an averment that the defendant failed, neglected and refused to comply with the terms of the contract and refused to accept the dry-press machine and the agitating clay feeder, and that at the request of the defendant it took back these two pieces of machinery and credited it with $1,600 on the contract price. The defendant denies that plaintiff complied with the contract ■on its behalf, and avers that plaintiff failed to deliver the goods within the time specified in the contract; denies that plaintiff ever did deliver to it the press brick machine or agitating clay feeder, and denies that plaintiff took same back at the request of the defendant, or that it credited the contract price with $1,600 at the request of the defendant. By cross-petition, defendant asks $10,237 damages for breach of contract by the plaintiff in failing to ship this machinery within the time stipulated in the contract. In answer to this claim for damages, made by the defendant in its cross-petition, the plaintiff pleads a waiver on the part of defendant as to the time of shipment. It also recites certain other provisions of the contract with reference to delays that might be occasioned by specific causes named therein, and avers that these causes did occasion the delay in shipment. It also pleads the provisions of the contract in reference to exemption from liability on the part of plaintiff for failure to ship within the time specified. The defendant denies any waiver of the terms of the contract on its part as to the time in which this machinery was to be shipped or as to damages resulting from failure to ship the same. It also avers that the dry pan is of no value to it without the other machinery and not worth to exceed $700 in any event; that the contract was an entirety and contemplated each piece of machinery fitting in and becoming an integral part of the other in operating the plant,; and further avers that certain. terms and provisions now appearing to have been printed in the contract were not known to the defendant at the time it signed the same; that the manager of the brick company, by reason of failing eyesight and not having his spectacles at hand, was unable to read it, and relied upon the reading by the agent of the machinery company, and that the contract as read to him and as discussed and agreed upon by himself and the agent of plaintiff, contained no provision with reference to delay in shipment, no provisions releasing plaintiff from liability therefor, no provisions that the property should be insured against loss by fire, loss, if any, payable to plaintiff, and no agreement or understanding that the agent had no authority to contract for and on behalf of the company, and no provisions that the title to the machinery should remain in the plaintiff, and that it did not learn of such matters until recently, but avers that in any event the delays were not occasioned by any of the causes named in the contract, nor were they due to delay of the goods in transit, but were caused solely and alone by the neglect and default of the plaintiff.
    The petition contains a second cause of action in which it is sought to recover $24 for certain items of merchandise furnished to defendant, claimed not to be included in the contract. This is denied by the answer, but no controversy arises in this record now as to these items.
    Upon the issue so joined the case was submitted to the court without the intervention of a jury, and the court found on all the issues joined for the plaintiff, rendering judgment for the full amount on both causes of action, and denied the defendant any damages on its cross-petition. This judgment was affirmed by the circuit court, and error is now prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the circuit court affirming the same.

      'Mr. A. R. Johnson and Mr. Dan C. Jones, for plaintiff in error.

      Messrs. Cooper & Russell and Messrs. Finley & Gallinger, for defendant in error.
   Donahue, J.

The evidence material to the issues joined in this case is the written contract and the correspondence between the parties touching the subject-matter of the contract. This contract, in brief, provides that plaintiff shall furnish f. o. b. cars at Bucyrus, Ohio, or Willoughby, Ohio, or at factory where made, one two-mould dry-press brick machine; one eight-foot dry pan; and one No. 1 agitating clay feeder within thirty days, or sooner if possible. .For these three articles, to be delivered in the manner and at one of the places specified, the defendant was to pay $2,450. Six hundred dollars of this purchase price was to be .paid in thirty days after arrival of machinery on the cars at Coal Grove, Ohio, and the balance in three equal payments, due in four, eight and twelve months from date of the bill of lading. Bankable notes bearing legal rate of interest were to be given for deferred payments, these notes to be secured, if required by plaintiff, by personal or collateral security satisfactory to plaintiff. The contract further provided that deliveries should be made subject to delays caused by fires, strikes, accidents and causes beyond the control of the plaintiff, and that plaintiff assumed no liability for delays in shipment or while goods are in transit, and that the receiving of the material and machinery by the defendant would operate as a waiver of all claims for damages by reason of any delay in delivery however caused. It further provided that the title to the material and machinery should remain in the plaintiff until the full purchase price was paid in cash, with full right of access thereto until such payment was made, that such machinery was to remain the personal property of plaintiff and not be' attached as a fixture, and on payment of the full purchase price plaintiff agreed to transfer title to defendant. It further provided that the defendant should keep this machinery insured against fire in an amount sufficient to protect the plaintiff, the policies to contain a clause making them payable to the plaintiff as its interests might appear at time of loss, and in event such insurance was not obtained then the defendant to assume and pay all loss sustained by the plaintiff by fire from any cause.

The claim made by the defendant in its cross-petition that it was not fully advised of all the terms of this contract when it signed the same is not important at this time. Nor do we think it was error for the trial court to reject evidence in reference thereto. It appears from the record that a copy of this contract remained with the defendant during all the time it was insisting upon performance. If the manager of the defendant could not, for the reason assigned, read this contract at the time he executed the same on behalf of the defendant, he could have read it and should have read it within a much shorter time thereafter than the date of the last demand by the defendant that plaintiff fully comply therewith.

In the absence of an action to reform for mutual mistake or to rescind the contract for fraud on the part of plaintiff, the terms of this contract must fix the rights and liabilities of both parties thereto.

That this contract is indivisible except by subsequent agreement of the parties is too plain for dispute. The delivery of part of the merchandise agreed to be delivered by the plaintiff is not a compliance with the contract, and, nothing else appearing, would not authorize plaintiff to .recover the value of any part of the merchandise furnished substantially less than named in the contract.

It is, therefore, important to determine, first, whether plaintiff performed the conditions and covenants of the contract on its part to be performed; or, if it did not, was its failure to do so justified by the conduct of the defendant? This machinery was to be furnished within a time certain named in the contract. It is claimed that this provision as to the time of shipment was waived by the defendant. Upon this question there is a conflict of evidence, and, therefore, the judgment of the common pleas court in that behalf will not . be disturbed by this court. Upon the question of the delivery, however, the facts are not in dispute. On this subject there is no conflict in the evidence whatever, and it becomes solely a question of law whether delivery was made or tendered at any time before the bringing of this action to -recover the purchase price.

The contract provides for the delivery f. o. b. cars Bucyrus, or Willoughby, Ohio, or factory where made, for shipment to the defendant at Coal Grove, Lawrence county, Ohio. The dry pan that was shipped on the 8th day- of May was not consigned to the brick company. The bill of lading was taken in the name of the machinery company, endorsed by it and mailed to the brick company at Coal Grove, Ohio. This was not a serious departure from the provisions of the contract. It worked no inconvenience to the defendant-Even if it did, the purchaser accepted it without protest or complaint as to the manner of delivery. If the shipment of the dry-press machine and the agitating clay feeder had been so made, then if the time of delivery was in fact waived there would have been a substantial, if not a literal, compliance with the terms of the contract. When this second shipment was made the bill of lading was taken in the name of the machinery company, but it was never endorsed, delivered or tendered unconditionally to the brick company, as was done with the bill of lading for the dry pan. This merchandise was not delivered f. o. b. cars at Bucyrus, or Willoughby, or factory where made, for shipment to the brick company at Coal Grove, but was delivered to the common carrier for shipment to the machinery company at Coal Grove. The delivery to the common carrier was not actual or constructive delivery to the purchaser. There was no time in the history of this transaction when the machinery company parted with the possession or right of possession of this machinery, nor was there a time when the brick company had a right to demand or require the common carrier to deliver this machinery to it.

The petition avers that the defendant company is a corporation, with its office and place of business located at Coal Grove, Lawrence county, Ohio. This contract does not provide for any conditions precedent to the delivery of this machinery, yet the defendant in error, instead of making delivery as contemplated in the contract, shipped the goods in its own name to Coal Grove, and sent the bill of lading with four unsigned promissory notes to evidence the purchase price thereof to The First National Bank of Ironton, Ohio, and notified the defendant, as a condition precedent to its receiving this bill of lading, that its officers must travel to Ironton, Ohio, and there execute these notes and deliver them to the bank at Iron-ton, and upon that condition and not otherwise the bank would deliver to the defendant the bill of lading. These facts appear from the evidence offered by the machinery company in support of the averment of its petition that it delivered the property to the purchaser. This was not a compliance with the terms of this contract. It was not the delivery contemplated in the contract. It was merely a conditional tender of delivery, and a condition that the machinery company had no right to impose. It was demanding payment in advance, while the fair construction of the contract, is -that the merchandise shall be delivered at one of the points named to a common carrier for shipment to the brick company, and that the brick company shall thereupon pay $600 thirty days after the arrival of the machinery on cars at Coal Grove, Ohio, and the balance in three equal payments, due in four, eight and twelve months from date of bill of lading, bankable notes, bearing legal rate of interest, to be given for deferred payments, bearing the same date as bill of lading. Applying to this transaction the same rule that would apply to a cash sale, under the provisions of this contract payment before delivery could not be demanded, nor could the purchaser be required to travel to Ironton and there make payment to the bank either before or after delivery. The fact that Ironton is not many miles distant from Coal Grove is not important. The petition avers that the purchaser’s place of business is Coal Grove, Ohio. It follows that if the seller could demand that payment be made at Ironton it could have demanded that payment be made in Columbus, Cincinnati of New York. The brick company had the full legal right to refuse any delivery other than the delivery provided for in the contract itself. The machinery company had no right to demand performance of any conditions precedent to delivery other than provided in the contract.

j; In answer to this contention made by counsel on 'behalf of the plaintiff in error, counsel for defendant in error call our attention to paragraph 6 of the contract, in which paragraph it is agreed that the title to the material and machinery furnished shall remain in the machinery company until the full purchase price is paid, and insist that it is of no importance whether the machinery was delivered to the common carrier consigned to the brick company or consigned to the machinery company, as the machinery company had by the terms of the contract reserved to itself the ownership of this property. But with this contention we cannot agree. The brick company was to have possession, at least, of this property, and the possession of the property was never delivered to it, either in the manner provided for in the contract or in any other manner. On the contrary, delivery of possession was tendered to the brick company at a place and under circumstances not contemplated in the contract and upon its doing and performing certain things prior to the delivery that the contract did not require it to do.

I/ It is also insisted that delivery was complete j under the contract when the machinery was placed ’on cars at Bucyrus or Willoughby ready for shipment. That would have been true had the goods been consigned to the purchaser as the contract provided; but even if that had been done, under no possible construction of this contract would the purchaser have been required to travel to Bucyrus or Willoughby to deliver these notes before or even at the time of the consignment. A fair construction of the contract is that the notes were to be delivered at Coal Grove, Ohio, or mailed from Coal Grove, Ohio, upon the arrival of the machinery there subject to the purchaser’s order, or at the very earliest, after they had been delivered to the common carrier unconditionally, consigned to the purchaser.

It is also urged that the brick company made no objection to the manner of shipment or to the demand that it should execute these notes and deliver them to the bank at Ironton and there receive the transfer of the bill of lading, but that defendant’s objection was based solely upon a claim it made for damages, and which it insisted must be allowed' before it would receive the property. We do not consider this of any importance whatever if plaintiff was not misled thereby. The burden is on the plaintiff to show compliance on its part. Defendant did refuse to execute and deliver these notes to the bank at Ironton. In its letter of August 22, 1906, in reply to the letter of the machinery company under date of August 21, 1906, it used this language: "We decline to accept the machinery upon the terms you state, and you had just as well order the machinery back.” If there was any reason why it had a right to refuse to accept the terms of delivery then proposed by the machinery company, that reason is now available to it. If it were willing to comply with the conditions proposed by the machinery company upon the condition that certain allowances be made it, it had the right to make such a proposition, but there is nothing in all this correspondence or any of this evidence that shows any waiver as to the manner and method of delivery provided in the contract itself. The machinery company cannot claim that it was misled by the conduct of the defendant, for the account, dated August 31, 1906, was disapproved and returned to it. An explanation was demanded. The brick company answered : “The reason your statement is not correct is that we never received the machinery up to this date and not according to contract.” It is very evident from the record that they were then dealing at arms’ length, and there appears absolutely nothing to show that either was induced by the other to depart from the express terms of the contract itself.

Not only does it appear from this contract that the machinéry company had no right to demand the execution and delivery of these notes prior to the delivery of this machinery to a common carrier consigned to the brick company, or at a place other than the defendant’s place of business, but it also appears that by the terms of this contract the purchaser was not required to give a note for the first six-hundred-dollar payment to be made in thirty days. It is true that the contract provides that notes shall be given for deferred payments. It is also true that a payment to be made in thirty days is, in the absence of language expressing a contrary intention, a deferred payment, but it is very clear from the terms of the contract that it was not so considered by the parties and not intended to be evidenced by any promissory note whatever, but was in fact reckoned as a cash payment, and those payments that were to be deferred for four, eight and twelve months were considered the deferred payments within the meaning and intent of the contract. This is made to appear from the fact that this $600 was to be paid in thirty days after the arrival of machinery on cars at Coal Grove, Ohio, while the notes that were to be given for the deferred payments should bear the same date as the bill of lading, even though the goods were delayed a fortnight in transit. If the payment of the $600 that was to be made in thirty days was intended to be included as one of the deferred payments, for which a note was to be given, then that note would be required under the language of the contract to bear the date of the bill of lading, notwithstanding the further terms of the contract provided for the reckoning of this thirty days from the date of the arrival of the machinery on cars at Coal Grove. A. note for thirty days bearing the same date as the bill of lading would not allow the purchaser thirty days in which to pay the same after the arrival of the machinery on cars at Coal Grove. In fact, under some circumstances of extraordinary delay occasioned by disastrous floods or other destructive agencies, the larger portion or the whole of the thirty days might expire between the date of the bill of lading and the arrival of the shipment at its place of destination. It is clear that this contract distinguishes between this $600 to be paid in thirty days after delivery and these payments to be made in four, eight and twelve months after date of bill of lading, and it is equally evident that it was not intended that any note should be given for the $600, or that this amount should bear any interest whatever; otherwise the contract would not have fixed a different date from which to reckon the time of payment of this particular sum. Upon this construction of the contract the machinery company had no right to demand a note for this $600 prior to or after the delivery of the machinery sold.

It is averred in the petition that the plaintiff took back this dry-press brick machine and agitating clay feeder from defendant at its request and credited the defendant with the sum of $1,600 on the full contract price. There is no evidence whatever in support of this averment except the refusal of the defendant to accept delivery and to comply with the conditions precedent imposed by the plaintiff to a delivery of this machinery. Under the terms of this contract the plaintiff upon default in payment was entitled to take this machinery, but it was not entitled to. take part and leave part. In the absence of an agreement to that effect, it was not authorized to divide this contract and leave the dry pan with the defendant at a price fixed by it and retake the dry-press brick machine and agitating clay feeder, crediting an amount, also fixed by plaintiff, as the value of these two articles.

By the express terms of this contract defendant in error is still the owner of this dry pan. If it had fully performed the conditions of this contract, it would have the right to sue for the contract price, notwithstanding the provisions of the contract that it is to remain the owner of this property until the purchase price is fully paid, but a court can afford no relief to a plaintiff in a suit to recover upon a contract when it appears that the plaintiff did not substantially perform the terms of the contract on his part to be performed.

In the absence of a subsequent agreement waiving the actual delivery of the balance of these goods or authorizing the defendant to retake them after delivery and credit the contract price with the value of the goods so retaken, the rights of the defendant in error as owner of this dry pan must be asserted in some other way than by an action predicated upon the contract to recover the portion of the contract price represented by its value.

The judgment of the circuit court affirming the judgment of the common pleas court on the first cause of action is reversed, and the judgment of the common pleas court on the first cause of action is reversed, and judgment here rendered for plaintiff in error on the first cause of action. The judgment of the circuit court affirming the judgment of the common pleas court on the second cause of action is affirmed.

Nichols, C. J., Shauck, Newman and Wilkin, JJ., concur.


author: By the Court.

text:
    Ausdenmoore et al., Executors, v. Holzback.

      Evidence — Privileged communications — Physician and patient— Admissibility of testimony as to examination of injuries — Consent by patient — Section 11494, General Code.

    (No. 13656
    — Decided February 10, 1914.)
    Error to the Circuit Court of Hamilton county.

      Mr. William Sander and Mr. Stanley Matthews, for plaintiffs in error.

      Mr. Herbert Jackson, for defendant in error.'
   By the Court.

We have examined the errors complained of as a ground for the reversal .of the judgment below.

Upon each of the contentions, save one, the law is well settled against the plaintiff in error. That one contention is the question of the admissibility of the evidence of certain physicians touching the nature and seriousness of the injuries of the plaintiff below.

The trial court sustained the objection of the plaintiff below to certain physicians testifying for the defendant below as to a diagnosis they had made of the plaintiff’s physical condition. The objection was based on Section 11494, General Code, which reads: “The following persons shall not testify in certain respects: * * * or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient.”

We hold that a communication by the patient to the physician may be not only by word of mouth but also by exhibiting the body or any part thereof to the physician for his opinion, examination or diagnosis, and that that sort of communication is quite as clearly within the statutes as a communication by word of mouth.

The same section (11494) contains the following language: “But the attorney or physician may testify by express consent of the client or patient; and if the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject.”

This qualifying clause we hold to mean that there cannot be a waiver except in two ways: First, by an express consent of the patient, or by the patient taking the stand and voluntarily testifying as to the things and matters communicated to his physician, the latter being held to be in effect an express waiver as to that physician. There being no express waiver nor any testimony by the plaintiff, touching the things and matters communicated to such physicians, whose testimony was excluded, we find there was no error.

Judgment affirmed.

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


author: Wanamaker, J.

text:
    The State of Ohio v. Rose.

      Criminal law — Jeopardy—Prosecution for contributing to delinqtiency — Not bar to indictment for rape, when — Sections 1654 and 12413, General Code — Affidavit and indictment do not charge same offense, when — Section 10, Article I, Constitution.

    1. Where a person has been in jeopardy upon an information or affidavit charging that he contributed to the moral delinquency of a female person in violation of Section 1654, General Code, such jeopardy cannot be successfully pleaded as a bar to a prosecution by indictment on a charge of rape under Section 12413, General Code.
    2. The provision of the constitution relating to jeopardy is in the following words: “No person shall be twice put in jeopardy for the same offense.” The offense charged in the information is not the same offense and does not include the offense charged in the indictment, and hence the defense of jeopardy must fail.
    (No. 14187
    — Decided February 3, 1914.)
    Exceptions by the Prosecuting Attorney to ithe Decision of the Court of Common Pleas of Ross county.
    The defendant, Albert Rose, in September, 1912, was tried under favor of Section 1654, General Code, in the probate court of Ross county upon a charge of contributing to the delinquency of' one Z. S., by having illegal sexual intercourse with her on July 4, 1911.
    The jury in this case disagreed after considering the case a little over three hours. Whereupon they were discharged by the probate judge, and the following entry was made upon the court record:
    “This day this cause coming on for trial to jury, the evidence and argument of counsel were heard by said jury which was thereupon charged by the court. Upon consideration said jury failed to agree and were thereupon discharged by the court. To which action of the court in discharging the jury the defendant at the time excepted.”
    Subsequently, at the October term, 1912, this said defendant was indicted on the charge of rape without consent upon the same Z. S. on the same date, which charge involved substantially the same transaction as that charged in the probate court by affidavit and information as aforesaid.

      To this indictment the defendant, Rose, filed his plea in bar, setting up former jeopardy. To the plea in bar a demurrer was filed by the state. Upon hearing the court overruled the demurrer and sustained the plea. The defendant was discharged and the state filed its exceptions in this court.

      Mr. Walter W. Boulger, prosecuting attorney, for the exceptions.

      Mr. James I. Boulger, against the exceptions.
   Wanamaker, J.

The sole question in this case is whether or not the defendant, by this indictment in the court of common pleas, is twice put in jeopardy in violation of his constitutional rights.

The 1912 constitution of the state of Ohio, Article I, Bill of Rights, Section 10, dealing with the subject of former jeopardy as a defense, reads as follows: “No person shall be twice put in jeopardy for the same ,offense.”

This same provision, in the same identical words, is contained in the state constitutions of 1851 and 1802, and the same identical words appear in our federal constitution of 1787.

The indictment to which the plea of former jeopardy was interposed charged the defendant, pursuant to Section 12413, General Code, with rape upon Z. S., on July 4, 1911. The case in the probate court was a prosecution upon affidavit and information, pursuant to Section 1654, General Code, charging that the defendant, Albert Rose, contributed to the delinquency of Z. S.

Since we have no common-law crime in the state of Ohio, we must look to the statutes for the declaration and definition of a crime. The constitutional provision uses the word “offense.” Layman and lawyer alike understand the word “offense” to here mean simply a crime. Bouvier’s Dictionary; Words and Phrases Judicially Defined. An offense or crime in Ohio is an act prohibited by statute law, for the violation of which a penalty is provided.

Now, who will dare to say that the information in the probate court charged the same offense as the indictment in the court of common pleas? A few of the radical differences between these two offenses will be specially noted:

1. The information charged a misdemeanor; the indictment a felony.

2. The information charged a moral delinquency upon the part of Z. S., which the state, before it was entitled to a conviction, was required to prove beyond a reasonable doubt. Fisher v. State, 84 Ohio St., 369, of the opinion of Judge Donahue. This was no part of the charge contained in the indictment.

3. The probate court was wholly without jurisdiction to try the charge of rape, hence the defendant could never have been in jeopardy on the charge of rape in the probate court; for to be in jeopardy there must not only be a sufficient legal charge, but a sufficient jurisdiction to try the charge.

The words “same offense” mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation. There is but one offense that is the same offense as “rape,” and that is “rape.” We have no trouble with the plain purpose and manifest meaning of these words of the constitution. He who runs may not only read but clearly understand.

We hold that there is nothing here for this court to construe. Where there is no doubt, no ambiguity, no uncertainty as to the meaning of the language employed by the constitution-makers, there is clearly neither right nor authority for the court to assume to interpret that which needs no interpretation and to construe that which needs no construction.

It is not enough that some single element of the offense charged may have a single element of some other offense as to which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the “same offense.” The usual test accepted by the text-writers on criminal law and procedure is this: If the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.

Some courts have greatly expanded the natural and ordinary meaning of the words “same of?tense” to include all lesser degrees that may be fairly included within the major charge.

In all offenses against the person there must be in the first instance an assault. To such lengths have some courts gone as to hold that if the defendant had been in jeopardy of a simple assault upon another person and subsequently such assault proved to be fatal, by reason of which he was subsequently indicted charged with murder, the defendant might thereupon successfully plead a former jeopardy, because necessarily included within the charge of murder or manslaughter was the charge of assault or assault and battery, with which he had been previously charged and as to which he had previously been in jeopardy. This doctrine, however, has not found favor in the decisions of the supreme court of this state.

True, it is clear that the proceedings had in the probate court were such that the defendant was in jeopardy of the offense there charged and could not again be tried upon the same offense, for the jury was discharged over his objection and the court made no finding that there was no probability of the jury being able to agree in accordance with the statute. But to say that he had been in former jeopardy as to the charge in the probate court and to say that he had been in former jeopardy as to the charge now in the common pleas court is an entirely different proposition.

Numerous decisions can be cited to sustain the contention of the defendant as to his former jeopardy. Some of these decisions may be accounted for by a difference in the constitutional provisions, but more of them are accounted for by the fact that the courts have usurped the power of the law-maker and the constitution-maker and have added something to or subtracted something from the plain provisions of the laws and constitution.

Case law is fast becoming the great bane of the bench and bar.

Our old-time great thinkers and profound reasoners who conspicuously honored and distinguished our jurisprudence have been succeeded very largely by an industrious, painstaking, far-searching army of sleuths, of the type of Sherlock Holmes, hunting some precedent in some case, confidently assured that if the search be long enough and far enough some apparently parallel case may be found to justify even the most absurd and ridiculous contention.

Case after case is piled, Ossa on Pelion, and about an equal number can be found on each side; then the court is expected to strike the balance and decide according to the preponderance of cases, rather than the preponderance of reason and justice. Courts too frequently fall into the very common error of assuming to interpret every thing in the line of legal language. The utter folly and wholesale abuse of construing words that need no construction and of interpreting language that needs no interpretation has led to much of the judicial confusion and most of the irreconcilable diversity of court decisions. There can be no stability about law until there be certainty about law, and when the constitution-maker of statute-maker uses a plain phrase, a simple sentence and a work-a-day word, with a clear, simple and unmistakable meaning, it is almost criminal in a court to scramble what is simple and confuse what is clear, under the mask of its right to construe.

Exceptions sustained.

Nichols, C. J., Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    The State of Ohio v. Reineke.

      Criminal law — Sexual crimes — Evidence of prior and subsequent acts admissible, when.

    In sexual crimes with consent, including incest, other and similar adulterous or licentious acts or conduct by the defendant toward the prosecutrix, whether prior or subsequent to the date of the specific act charged in the indictment, are, if not too remote, admissible for the purpose of showing the adulterous or incestuous disposition of the defendant toward the prosecutrix and the illicit and continuous sexual relations existing between them. (Rasor v. State, 78 Ohio St., 449, distinguished.)
    (No. 14343
    — Decided February 3, 1914.)
    Error to the Court of Appeals of Shelby county.
    The defendant in error, Charles Reineke, was indicted at the January term, 1913, of the court of common pleas of Shelby county, Ohio, under Section 13023, General Code, for the crime of incest with his daughter, H. R., a minor fourteen years of age. Upon trial had he was found guilty as charged. Motion for a new trial was overruled, sentence impose^, and error prosecuted to the court of appeals.
    The court of appeals affirmed the judgment, and a rehearing was thereupon granted on the authority of the unreported case of Rasor v. State, 78 Ohio St., 449.
    The error of the trial court found by the court of appeals upon rehearing was as follows: That the trial court erred in permitting the state to offer evidence over the objection of the defendant of other and similar acts of incestuous conduct occurring subsequent to the act charged, in the indictment.
    The state has. now prosecuted error to this court for a: reversal of the judgment of the court of appeals and the affirmance of the judgment of the court of common pleas.

      Mr. Charles C. Hall, prosecuting attorney, and Mr. I. D. Barnes, for plaintiff in error.

      Mr. Charles C. Marshall and Mr. Percy R. Taylor, for defendant in error.
   Wanamaker, J.

The sole question in this case is as to the admissibility of other and similar acts of incestuous conduct occurring subsequent to the act charged in the indictment.

It is an elementary proposition of law, both sound and humane, that a person may not be convicted of the crime charged upon a certain date by showing that upon other dates, previous or subsequent, he committed other crimes and offenses. But this rule has many exceptions in certain particular lines of cases as to prior acts:

1. Where a specific intent to defraud is charged, other fraudulent acts may be offered to show fraudulent intent between the same parties, and in some cases as between different parties by the same defendant.

2. Where scienter or guilty knowledge is a necessary element of the offense, other criminal acts may be shown of the same or similar nature, as in the sale of adulterated foods.

3. Where the various acts show a general scheme or system of criminal conduct.

4. In what are known as “sexual crimes,” such as a continuous adultery or fornication, criminal conversation, incest and the like.

The authorities are overwhelming that acts prior to the act charged in the indictment or information may be offered in evidence to prove the adulterous disposition of the defendant and the sexual relations between the parties, and also for the purpose of rendering it more probable that the act of sexual intercourse charged was actually committed as charged.

One of the latest cases in Ohio supporting this doctrine is that of Boyd v. State, 81 Ohio St., 239. The syllabus of the case reads as follows:

“On the trial of an indictment charging defendant with having carnally known and abused a female person under sixteen years of age with her consent, evidence of similar prior acts of sexual intercourse between the accused and the prosecutrix within a period of two months immediately preceding the date laid in the indictment, is admissible for the purpose of showing the relation and intimacy of the parties, and as corroborative of the testimony of the prosecutrix touching the particular act relied upon for a conviction.”

This syllabus, as all others should, relates, of course, to the particular facts of the particular case.

Judge Crew in his opinion uses this language: “The doctrine must now be considered as fairly well settled by the weight of authority, that in prosecutions for adultery, seduction, rape upon one under the age of consent, and incest, acts of sexual intercourse between the parties prior to the act charged in the indictment may be given in evidence as tending to sustain the principal charge, by showing the relations between the parties.”

The exact question involved in this case, however, has not been decided by this court, unless the unreported case of Rasor v. State, supra, should involve the question raised here.

Being an unreported case, we are compelled to rely largely upon defendant in error’s brief as* to the history of this case. It seems that Rasor was indicted in Defiance county on two counts, the first of which contained a charge of rape on one G. S., with her consent, while said G. S. was under the age of sixteen years. The second count was for the same act, but was alleged to have been with force, and against her will. There was no election required of the state, and the case went to the jury upon both counts. The jury returned a verdict of not guilty on the first count — that is, the consent count — and found the defendant guilty of assault under the second count — that is, the count charging rape with force and against her will. No error, of course, could be complained'of on the first count, for on that count the defendant, Rasor, was acquitted.

Was this evidence as to subsequent acts admissible as against Rasor under the second count of the indictment ? The supreme court of Ohio found that it was not admissible, and we believe this judgment is sustained by the great weight of authority as well as by good reason and sound policy.

These sexual crimes, which are an exception to the general rule as to other similar acts being admissible in evidence, may be characterized as crimes in continuando. The law recognizes as a matter of common knowledge that where a single act of that character arises, there is great probability of other similar acts, either before or after, or both, and therefore the sexual conduct of the parties in question toward each other, especially the lecherous and bestial disposition of the defendant toward the prosecutrix, is a proper fact for the consideration of the jury, not to prove some other and independent offense, but for the purpose of making more probable the specific and distinct offense charged.

The crime of rape by force is generally excluded from this class of sexual crimes, and soundly so, because it would be an extraordinarily rare case where the defendant would for a second time commit rape by force upon the same prosecutrix.

In the Rasor case, supra, the indictment by its second count charged rape by force, and that being a distinct and generally acknowledged exception to the rule in the other sexual-consent crimes above referred to, the supreme court of Ohio was right in holding that such evidence under such a charge was incompetent.

It is as impossible as it is unnecessary to reconcile the diverse decisions in the many states upon the question whether or not subsequent acts may be admitted to prove the specific act charged for the purpose of showing the adulterous disposition of the defendant toward the prosecutrix and of showing the sexual relations between the parties.

Prior or subsequent acts are admissible in cases involving adultery, fornication, criminal conversation, and incest; cases involving seduction, bastardy, and breach of promise of marriage; and cases involving rape. 1 Wigmore on Evidence, Section 398.

“Improper familiarities and adulterous acts between the same parties prior, or subsequent to, the act charged, but not too remote, or, if remote, connected with it so as to form a part of a continuous course of conduct, may be shown for the purpose of bringing out the relation and adulterous disposition of the defendant.” Underhill on Criminal Evidence (2 ed.), Section 381.

“At the time of the present writing, this doctrine — namely, that subsequent familiarities and adulteries between the same parties, equally with the prior ones, are admissible — may be deemed to be established in all our courts, as respects alike the divorce suit and the indictment.” Bishop on Statutory Crimes (3 ed.), Section 682.

“Evidence of acts of illicit intercourse between the parties subsequent to the act specifically under trial is admissible when indicating continuousness of illicit relations.” 16 Am. & Eng. Ency. Law, (2 ed.), 139.

This same doctrine is sustained in People v. Kohler, 142 Cal., 621; State v. King, 117 Iowa, 484; State v. Way, 5 Neb., 283; State v. Fetterly, 33 Wash., 599; Lanphere v. State, 114 Wis., 193; State v. Robertson, 121 N. C., 551; Smith v. Commonwealth, 109 Ky., 685; Sykes v. State, 112 Tenn., 572; Lawson v. State, 20 Ala., 65; State v. Witham, 72 Me., 531; Crane et al. v. People, 65 Ill. App., 492.

The contrary doctrine is approved in 1 Wharton’s Criminal Evidence (10 ed.)> 170 et seq.

“And so it has been repeatedly held that, upon a trial of a charge of having committed any of the crimes known as ‘sexual offenses,’ evidence of prior acts of the same character is admissible, although such prior act is, in and of itself, a crime. There are also decisions to the effect that evidence, not only of prior, but also of those committed subsequent, to the act charged, is admissible, although showing a distinct, independent-crime. These are, however, believed to be in the minority, and, besides, are lacking the strong reason which is given for the admission of evidence of the prior act.”

This doctrine is followed in People v. Clark, 33 Mich., 112, and in State v. Hilberg, 22 Utah, 27, and in Gross v. State, 61 Tex. Crim., 176; State v. DeMasters, 15 S. D., 581; Lovell v. State, 12 Ind., 18, and some other states, unnecessary to mention, have also adhered to this latter doctrine.

It is elemental that any fact is competent that makes more or less probable the fact in the controversy.

Now, if these sexual crimes, excepting rape by force, are not ordinarily single, isolated acts, but are only a part of the sexual relation of the defendant and prosecutrix, then these other acts are relevant for the exclusive purpose of showing the adulterous disposition of the defendant toward the prosecutrix and his sexual relations with her. Why do they not tend to prove the specific act charged, which after all is in the common knowledge of men only a part of the course of sexual conduct of the parties ofttimes during the period of months or years ? Now it is admitted that -as to the prior acts the rule is and should be to admit them, but that as to subsequent acts the rule should be otherwise.

We believe that there is a misapprehension here of the real purpose of admitting this kind of evidence. Its relevancy is to get before the court and jury the sexual relations of the parties covering the date of the indictment. If the sexual relations of the parties at the time of the indictment be a proper question, then certainly their relation for a reasonable time before, as well as a reasonable time thereafter, is equally competent, notwithstanding the fact that the prior acts may have more probative force and effect than the subsequent acts; but this all goes only to the weight of the evidence and not to its competency.

But in the case at bar there are special reasons why the subsequent acts were competent. The prosecutrix testified to kindred acts of the most revolting and licentious nature of the defendant toward this prosecutrix before the date charged in the indictment.

If, now, you have the adulterous and licentious acts of the defendant toward the prosecutrix before the date charged in the indictment, and also the adulterous and licentious acts of the defendant toward the prosecutrix subsequent to the date charged in the indictment, you have then a series of acts or arches bridging the entire period of his sexual relations with prosecutrix, rendering much-more probable the commission of the act charged in the indictment.

The second special reason is this: The evidence overwhelmingly shows the systematic, persistent and habitual conduct of this defendant, not only toward the prosecutrix but toward her sisters, so that we have here a series of like offenses, like conduct upon the part of the father toward three of his own daughters, showing a system of criminal conversation and conduct that is almost incredible in a human being.

If the sexual relation be by consent of the parties, or under some coercion between a father and his own child living in the same house, the strong probabilities would be that, unless there were an immediate exposure of the same, there would be a repetition of similar acts between the same parties. If under all circumstances there were nc such repetition where there was opportunity so to do, and no exposure, the very fact that the state could only show one act, might lead the jury to seriously consider whether or not such act was not fabricated or perjured.

We believe the good morals of the state, the safety and security of its virtue, the protection of the home and the relation of parent and child, brother, sister, and all others within the incest statute, demand at our hands the admission of subsequent acts as well as prior acts for the purpose aforesaid.

But if we were persuaded that there was error upon the part of the trial judge in the admission of this evidence, we would be constrained upon a careful reading of the whole record of this case to reverse the court of appeals and affirm the court of common pleas, for the reason that, excluding the subsequent transactions, the evidence of the prosecutrix, the corroborating evidence of her sisters, as well as the evidence of the defendant, satisfy this court of his guilt to a moral certainty. In that view of the case then, if it were error, which we hold it is not, it would be at best harmless error. Substantial justice was done both to the state and the defendant.

Our attention has been specially challenged to the State v. Lawrence, 74 Ohio St., 38. An examination of the syllabus of the case as well as the opinion discloses the fact that the subsequent acts in question which were offered in evidence occurred (in the language of the syllabus) “more than two years after the time of the alleged commission of the offense for which he is being tried, and after prosecutrix had attained the age of sixteen years.”

These are the two reasons the court gives for its holding, neither of which obtains in the case at bar,

In this case the subsequent acts occurred as follows: The first one some three days after the act charged in the indictment; the second, an attempt made some two weeks later; the third occurred about a year after, and the fourth about fourteen months. But it will be remembered from the record that prosecutrix herself testified as follows:

“Q. All this time your father never bothered you? A. Yes, he told me, but then I would not do it; I got away from him.”

This simple-minded, inexperienced girl, with her very limited knowledge of English, told a story, corroborated by her sisters, which must have very strongly convinced the court and jury of the truth of her testimony. And, if she is to be believed at all, and the jury and the court below most evidently did believe her, there was an illicit, bestial sexual relation existing between her and her father covering a period of several years. And that is only a part of the story, for the record discloses that the same relation was at least attempted by him toward his other daughters, and that this was also continuous though not all the while successful.

We hold that this evidence 'was competent as it was qualified by the trial court, and that the defendant was guilty beyond a reasonable doubt, and that therefore the judgment of the court of appeals should be reversed and the judgment of the court of common pleas affirmed.

Judgment of the court of appeals reversed and that of the common pleas affirmed.

Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13451.
    The Ohio Electric Ry. Co. v. Martin.
    Decided October 21, 1913.
    Error to Circuit Court of Darke county.

      Mr. D. W. Bowman, for plaintiff in error.

      Mr. John F. Maher and Mr. O. R. Krickenberger, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13555.
    Flowers v. Board of County Commissioners of Richland County et al.
    Decided October 21, 1913.
    Error to Circuit Court of Rich-land county.

      Mr. L. C. Mengert and Mr. W. H. Gifford, for plaintiff in error.

      Messrs. Huston & Marquis and Mr. J. W. Galbraith, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Nichols, C. J., Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 14028.
    Brown, Admr., v. Dusha.
    Decided October 21, 1913.
    'Error to Court of Appeals of Lucas county.

      Mr. Alonso G. Duer, for plaintiff in error.

      Messrs'. Friedman, Taylor & Foster, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donai-iue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13350.
    The Baltimore & Ohio Railroad Co. v. Johnson.
    Decided October 21, 1913.
    Error to Circuit Court of Licking county.

      Mr. F. A. Durbin and Mr. Robert J. King, for plaintiff in error.

      Messrs. Earnhart & Bates, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur. Wanamaker, J., dissents.


text:
    No. 13338.
    The Bennington Oil & Gas Co. et al. v. DeCrow et al.
    Decided October 21, 1913.
    Error to Circuit Court of Licking county.

      Mr. Park B. Blair and Mr. F. V. Ozven, for plaintiffs in error.

      Messrs. Flory & Flory, for defendants in error.
   Judgment affirmed.

Nicitols, C. J., Shauck, Johnson, Wanamaker, Newman and Wilkin, JJ., concur. Donahue, J., not participating.


text:
    No. 13317.
    The Bostwick Steel Lath Co. v. Sarver & Ames.
    Decided October 21, 1913.
    Error to Circuit Court of Trumbull county.

      Messrs. Fillius & Fillius, for plaintiff in error.

      Mr. Joseph Smith and Mr. Charles A. Locke, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13385.
    The Abbott Manufacturing Co. et al. v. Cottrell et al., County Commissioners.
    Decided October 28, 1913.
    Error to Circuit Court of Lake county.

      Messrs. Green, Zmunt & Zmunt, for plaintiffs in error.

      Mr. Homer Harper and Mr. Harry E. Hammer, for defendants in error.
   Judgment affirmed.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13389.
    The City of Salem v. Woodworth.
    Decided October 28, 1913.
    Error to Circuit Court of Columbiana county.

      Mr. John E. Scott and Mr. S. W. Ramsey, for plaintiff in error.

      Mr. K. L. Cobourn, for defendant in error.

      Mr. Frank C. Hubbard and Mr. Ellis B. Gregg, for Ohio Federation of Humane Societies.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13404.
    The Board of Trustees of Northwest Township v. Gordon et al.
    Decided October 28, 1913.
    Error to Circuit Court of Williams county.

      Mr. D. A. Webster, prosecuting attorney, and Messrs. Nezvcomer & Gebhard, for plaintiff in error. Mr. Edward Gaudern, for defendants in error.
   Judgment affirmed.

Nichols,. C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13438.
    Cook et al., Partners as S. A. Cook & Co., v. Callahan.
    Decided October 28, 1913.
    Error to Circuit Court of Columbiana county.

      Messrs. Metzger & Smith, for plaintiffs in error.

      Mr. K. L. Cobourn, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13964.
    Erie Railroad Co. v. Solomon.
    Decided October 28, 1913.
    Error to Circuit Court of Mahoning county.

      Messrs. Hine, Kennedy & Manchester, for plaintiff in error.

      Messrs. Anderson, Cook & Mathews, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 14050.
    Baschang v. The State of Ohio.
    Decided October 28, 1913.
    Error to Court of Appeals of Hamilton county.

      Mr. Wm. Thorn-dyke and Mr. Louis H. Capelle, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Mr. Thomas L. Pogue, prosecuting attorney, and Mr. Coleman Avery, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13462.
    Brooks et al., Partners as T. C. Brooks & Sons, v. The Village of Columbus Grove.
    Decided November 11, 1913.
    Error to Circuit Court of Putnam county.

      Messrs. Bailey & Leasure and Mr. C. C. Rimer, for plaintiffs in error.

      Messrs. Handy & Unverferth and Mr. H. S. Core, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13468.
    The United States Coal Co. v. Robinson.
    Decided November 11, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Henderson, Quail & Siddall, for plaintiff in error.

      Messrs. David & Heald and Messrs. Brewer & Hall, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Nichols, C. J., Shauck, Johnson, Donahue and Newman, JJ., concur.


text:
    No. 13559.
    Pfahler v. Kaler et al.
    Decided November 11, 1913.
    Error to Circuit Court of Crawford county.

      Messrs. Finley & Gallinger, for plaintiff in error.

      Mr. Benjamin Meek, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Shauck, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13589.
    Bixler et al. v. Schell et al.
    Decided November 11, 1913.
    Error to Circuit Court of Stark county.

      Mr. John W. Burris, for plaintiffs in error.

      Messrs. Webber & Turner and Mr. George B. Eggert, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Donahue and Wilkin, JJ., concur.


text:
    No. 13603.
    Fergus, Admr., v. McClure, Exr.
    Decided November 11, 1913.
    Error to Circuit Court of Franklin county.

      Mr '. Arlington C. Harvey, for plaintiff in error.

      Messrs. Pugh & Pugh and Mr. Wm. T. McClure, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13607.
    The Whitman Co. v. The Ohio Brass Co.
    Decided November 11, 1913.
    Error to Circuit Court of Richland county.

      Mr. Jesse E. LaDow, for plaintiff in error.

      Mr. Wm. McE. Weldon, for defendant in error.
   Judgment affirmed.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 13613.
    White et al., Partners, v. Farmers & Producers National Bank et al.
    Decided November 11, 1913.
    Error to Circuit Court of Monroe county.

      Mr. F. L. Blackman and Mr. Fred Spriggs, for plaintiffs in error.

      Mr. F. A.

      Jeffers and Messrs. Mats & Kremer, for defendants in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur. Nichols, C. J., not participating.


text:
    No. 14054.
    The City of Cincinnati v. Reuss, Admx.
    Decided November 11, 1913.
    Error to Court of Appeals of Hamilton county.

      Mr. Alfred Bettman, city solicitor, and Mr. Stanley W. Merrell, assistant city solicitor, for plaintiff in error.

      Mr. Charles W. Baker, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Wanamaker and Newman, JJ., concur.


text:
    No. 14055.
    The Donovan Wire & Iron Co. v. Lee.
    Decided November 11, 1913.
    Error to Court of Appeals of Lucas county.

      Messrs. Doyle & Lewis, for plaintiff in error.

      Messrs. Sala & Carabin and Mr. L. W. Morris, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 13357.
    Erie Railroad Co. v. The Northern Ohio Traction & Light Co. et al.
    Decided November 18, 1913.
    Error to Circuit Court of Portage county.

      Messrs. Cushing, Siddall & Palmer, for plaintiff in error.

      Mr. C. H. Howland and Mr. A. S. Cole, for defendants in error.
   Judg-ments of the circuit and common pieas courts modified as per journal entry.

It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, modified to read as follows: It is hereby ordered, adjudged and decreed that the said Erie Railroad Company and its successors, assigns, agents, servants and employes be, and they are hereby, restrained and forever enjoined from taking, pumping, diverting or using for any purpose, any water of the Cuyahoga river above the property of the plaintiff in excess of 250,000 gallons per day, or in any manner interfering with or diminishing the natural flow of the Cuyahoga river above the property of the plaintiff, or withholding, checking or stopping the natural flow of the Cuyahoga river above said property, except in such manner as may be necessary to supply the said 250,000 gallons per day and no more.

Nichols, C. J., Johnson, Donahue and Wilkin, JJ., concur.


text:
    No. 13466.
    Klockenbrink v. The Franklin Bank et al.
    Decided November 18, 1913.
    Error to Circuit Court of Hamilton county.

      Messrs. Dolle, Taylor & O’Donnell, for plaintiff in error.

      Mr. Wallace Burch and Mr. Simeon M. Johnson, for defendants in error.
   Judgments of the circuit and common pleas courts reversed.

Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13488.
    Wilk v. Robert.
    Decided November 18, 1913.
    Error to Circuit Court of Mahoning county.

      Mr. David Steiner and Mr. David G. Jenkins, for plaintiff in error.

      Messrs. W. S. Anderson & Son, for defendant in error.
   Judgments of the circuit and common pleas courts reversed. Cause remanded.

Nichols, C. J., Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13502.
    The Lake Shore & Michigan Southern Ry. Co. v. Teachout.
    Decided November 18, 1913.
    Error to Circuit Court of Lucas county.

      Messrs. Doyle & Lewis, for plaintiff in error.

      Messrs. Bryce & Slagle, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur. Wanamaker, J., dissents.


text:
    No. 13503.
    Griffin v. Burgoon.
    Decided November 18, 1913.
    Error to Circuit Court of Henry county.

      Mr. W. W. Campbell and Messrs. Ragan & Ragan, for plaintiff in error.

      Messrs. Donovan & Warden, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13571.
    Steiner, Admr., et al. v. Glock.
    Decided November 18, 1913.
    Error to Circuit Court of Hardin county.

      Mr. George E. Crane and Messrs. Smick & Hoge, for plaintiffs in error.

      Messrs. Stickle & Cessna and Mr: Thomas C. Ma-hon, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur.


text:
    No. 13617.
    Carll v. The Little Miami Railroad Co. et al.
    Decided November 18, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. H. S. Stevenson and Messrs. Dolle, Taylor & O’Donnell, for plaintiff in error.

      Mr. Robert P. Hargitt; Mr. Charles W. Hoffman and Mr. Gideon C. Wilson, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13621.
    Maryland Casualty Co. v. The Indiana, Columbus & Eastern Traction Co.
    Decided November 18, 1913.
    Error to Circuit Court of Clark county.

      Messrs. Reed & Eichelberger and Mr. Louis D. Johnson, for plaintiff in error.

      Messrs. Booth, Keating, Peters & Pomerene and Messrs. Martin & Martin, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur. Nichols, C. J., not participating.


text:
    No. 14060.
    The Cincinnati Traction Co. v. Avard.
    Decided November 18, 1913.
    Error to Court of Appeals of Hamilton county.

      Mr. Joseph Wilby; Messrs. Kittredge & Wilby and Mr. R. E. Simmonds, Jr., for plaintiff in error.

      Mr. Samuel Wolf stein, for defendant in error.
   Judgment affirmed.

Shaucic, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13476.
    The Bryson-Bedwell-Brubacher Co. v. Archer et al.
    Decided November 25, 1913.
    Error to Circuit Court of Franklin county.

      Messrs. Huggins, Huggins & Hoover, for plaintiff in error.

      Mr. J. W. Mooney and Mr. R. M. Edmonds, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13477.
    The Bryson-Bedwell-Brubacher Co. v. Lewis et al.
    Decided November 25, 1913.
    Error to Circuit Court of Franklin county.

      Messrs. Huggins, Huggins & Hoover, for plaintiff in error.

      Mr. J. W. Mooney and Mr. R. M. Edmonds, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13478.
    The North American Mutual Fire Insurance Co. v. Becker.
    Decided November 25, 1913.
    Error to Circuit Court of Richland county.

      Messrs. Reed & Beach; Messrs. Cummings, McBride & Wolfe, and Mr. T. R. Robinson, for plaintiff in error.

      Mr. Jesse E. LaDow, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13495.
    The City of Cincinnati v. Olshewitz et al.
    Decided November 25, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Alfred Bettman, city solicitor, and Mr. Coleman Avery, assistant city solicitor, for plaintiff in error.

      Messrs. Little ford, James, Ballard, Frost & Foster, and Mr. George E. Mills, for defendants in error.
   Judgments of the common pleas and circuit courts reversed and cause remanded, on authority of Pennsylvania Co. v. Files, 65 Ohio St., 403.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13517.
    Daulton, County Auditor, et al. v. The State, ex rel. Naylor, Prosecuting Attorney.
    Decided November 25, 1913.
    Error to Circuit Court of Adams county.

      Messrs. McCoy & Scott and Messrs. Stephenson & Mahaffey, for plaintiffs in error.

      Mr. F. A. Shiveley and Mr. C. E. Robuck, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13538.
    Knapp v. Heckert et al.
    Decided November 25, 1913.
    Error to Circuit Court of Lucas county.

      Mr. George H. Phelps; Mr. Walter G. Kirkbride and Mr. Allen J. Seney, for plaintiff in error.

      Mr. Clayton W. Everett and Mr. F. G. Crane, for defendants in error.
   Judgment of the circuit court affirmed on grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is, hereby affirmed. This court finds that the plaintiff in error was entitled to offer oral evidence (in addition to the transcript of testimony that had been introduced in the court below) on the hearing before said circuit court on the-trial of said cause on appeal, notwithstanding the existence of any rule to the contrary, but this court finds from the conceded facts that the plaintiff in error waived the right to offer such testimony by proceeding to the trial of said cause without tendering evidence.

Nichols, C. J., Shaucic, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13573.
    The Bank of Mansfield v. Koch et al.
    Decided November 25, 1913.
    Error to Circuit Court of Richland county.

      Messrs. Brucker & Voegele, for plaintiff in error.

      Messrs. Alden, Knapp & Magee; Mr. W. C. McCullough and Mr. Jas. W. Galbraith, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13601.
    Smith et al. v. Ammon et al.
    Decided November 25, 1913.
    Error to Circuit Court of Darke county.

      Mr. Elijah Devor and Mr. D. P. Irwin, for plaintiffs in error.

      Mr. George W. Mannix, Jr., and Mr. D. W. Bowman, for defendants in error.
   Judgments of the circuit and common pleas courts reversed and original petition dismissed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 14125.
    The City of Cincinnati, by etc., v. The Baltimore & Ohio Southwestern Railroad Co.
    Decided November 25, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Alfred Bettman, city solicitor, for plaintiff in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadley, for defendant in error. Messrs. Gordon, Morrill & Ginter; Mr. Geoffrey Goldsmith and Mr. John C. Hermann, amici curiae.

   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13402.
    O’Bleness v. Pilcher.
    Decided December 2, 1913.
    Error to Circuit Court of Athens county.

      Messrs. Lewis & ICeenan, for plaintiff in error,
    ikfr. A. E. Price, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Donai-iue, Wanamaker, Newman and WilkiRt, JJ., concur.


text:
    No. 13472.
    Newman v. Portsmouth Steel Co.
    Decided December 2, 1913.
    Error to Circuit Court of Scioto county.

      Mr. Oscar W. Newman, for plaintiff in error.

      Messrs. Bannon & Bannon, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker and Wilkin, JJ., concur. Newman, J., not participating.


text:
    No. 13489.
    Edgar v. Singhaus et al.
    Decided December 2, 1913.
    Error to Circuit Court of Harrison county.

      Mr. T. J. Russell, for plaintiff in error.

      Mr. John B. Busbey, for defendants in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13526.
    Stewart, by etc., v. The Gendron Wheel Co.
    Decided December 2, 1913.
    Error to Circuit Court of Lucas county.

      Mr. George E. Seney and Mr. Irvin E. Austin, for plaintiff in error.

      Messrs. Smith & Baker, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Shauck, Donahue and Newman, JJ., concur. Wanamaker, J., dissents.


text:
    No. 13532.
    Ohio Valley Electric Railway Co. v. Willis.
    Decided December 2, 1913.
    Error to Circuit Court of Lawrence county.

      Mr. A. R. Johnson and Mr. Dan C. Jones, for plaintiff in error.

      Mr. L. K. Cooper and Mr. M. W. Russell, for defendant in error.
   Judgment affirmed.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13582.
    The Gratiot & Brownsville Telephone Co. v. The Brownsville Farmers’ Telephone Co.
    Decided December 2, 1913.
    Error to Circuit Court of Licking county.

      Mr. John C. Bassett and Mr. Robert Ramsey, for plaintiff in error.

      Messrs. Fits gibbon & Montgomery, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Donapiue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13587.
    Gims v. Tatman.
    Decided December 2, 1913.
    Error to Circuit Court of Scioto county.

      Messrs. Milner, Miller & Searl, for plaintiff in error.

      Messrs. Bannon & Bannon, for defendant in error.
   Judgment affirmed.

Nichols, C. J., Johnson, Donapiue, Wanamaker and Wilkin, JJ., concur. Newman, J., not participating.