text:
    No. 9247.
    City of Toledo v. Lalond.
    (Decided October 23, 1906.)
    Error to Circuit Court of Lucas County.

      Mr. U. G. Denman; Mr. Charles K. Friedman and Mr. Frank G. Crane, for plaintiff in error.

      Mr. Alonso G. Duer and Messrs. Kohn & North-up, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    No. 9303.
    Claypool et al. v. Claypool et al., Exrs.
    (Decided October 23, 1906.)
    Error to Circuit Court of Fairfield County.

      Mr. W. K. Martin and Mr. C. W. McCleery, for plaintiffs in error.

      Mr. C. D. Martin and Mr. M. A. Daugherty, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9331.
    Zimmerman v. The Baltimore & Ohio Railroad Co.
    (Decided October 23, 1906.)
    Error to Circuit Court of Fayette County.

      Mr. Frank A. Chaffin and Mr. Mills Gardner, for plaintiff in error.

      Mr. F. A. Durban and Mr. °H. B. Maynard, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9351.
    W. J. O'Dell & Co. v. Rumbach et al.
    (Decided October 23, 1906.)
    Error to Circuit Court of Belmont County.

      Messrs. Shay & Cogan; Mr. A. W. Kennon and Mr. N. K. Kennon. for plaintiff in error.

      Messrs. Tallman & Armstrong, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9601.
    The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company v. Whitmore.
    (Decided October 23, 1906.)
    Error to Circuit Court of Harrison County.

      Messrs. Dunbar & Szveeney and Mr. A. 0. Barnes, for plaintiff in error.

      Mr. D. A. Hollingsworth and Mr. W. T. Perry, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9616.
    The Edson Reduction Machinery Co. v. Orton, Jr.
    (Decided October 23, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Smith, Taft & Arter, for plaintiff in error.

      Mr. Oscar J. Horn and Messrs. Bemis & Calfee, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9624.
    German American Insurance Co. v. Wagner.
    (Decided October 23, 1906.)
    Error to Circuit Court of Seneca County.

      Mr. Willis Bacon and Mr. J.' W. Mooney, for plaintiff in error.

      Messrs. Platt & Black and Mr. G. B. Keppel, for defendant in error.
    Judgment reversed. Grounds stated in journal entry.
   It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby’ is, reversed for error in affirming the judgment of the court of common pleas of said Seneca county, and the judgment of said court of common pleas is reversed for error in overruling the motion for a new trial upon the grounds that the court erred in the admission of evidence, in refusing to charge, and in its general charge to the jury; it appearing from the plaintiff’s evidence that Lillis, the mortgagee, is a real and not a fictitious person, he is a necessary party to the action, or a valid release of the mortgage must be proven. It appearing from the plaintiff’s evidence that the mortgagee, neither signed the release nor authorized it, it was error to admit in evidence the release on the mortgage record. The verdict is set aside and the case remanded to said court of common pleas for a new trial.

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


text:
    No. 9655.
    Shale et al v. Ostendorf et al.
    (Decided October 23, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Meyer & Mooney, for plaintiffs in error.

      Messrs. Foran, McTighe, Pearson & Marvin, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9689.
    Fluhart v. Overholser et al.
    (Decided October 23, 1906.)
    Error to Circuit Court of Montgomery County.

      Messrs. Van Deman, Burkhart & Shea, for plaintiff in error.

      Mr. E. Thompson and Messrs. Mattern & Routzohn, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9706.
    Hempstead et al. v. Fisher, Auditor, et al.
    (Decided October 23, 1906.)
    Error to Circuit Court of Clinton County.

      Mr. D. K. Hempstead, for plaintiffs in error.

      Mr. Joe T. Doan and Mr. G. P. Thorpe, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9402.
    The Ohio Central Traction Co. v. Stewart, Admr.
    (Decided October 30, 1906.)
    Error to Circuit Court of Richland County.

      Mr. Dan Babst and Messrs. Cummins, McBride & Wolfe, for plaintiff in error.

      Messrs.' Douglass & Mengert, for defendant in error.
   Judgment affirmed.

Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 9406.
    The Board of Education of La Carne Special School District v. The Board of Education of Erie Township.
    (Decided October 30, 1906.)
    Error to Circuit Court of Ottawa County.

      Mr. George A. True, for plaintiff in error.

      Mr. William Gordon and Mr. Malcolm Kelly, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crfw, Summers and Spear, JJ., concur.


text:
    No. 9407.
    Thompson, Admr., v. Lashley.
    (Decided October 30, 1906.)
    Error to Circuit Court of Belmont County.

      Messrs. Danford & Danford and Messrs. Driggs & H'einlein, for plaintiff in error.

      Mr. James C. Tollman, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9425.
    The Loveland & Cincinnati Traction Co. v. Hosbrook et al.
    (Decided October 30, 1906.)
    Error .to Circuit Court of Hamilton County.

      Messrs. Burch & Johnson, for plaintiff in error.

      Messrs. Ireton, Collins, Schoenle & Poor, county solicitors, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9604.
    Pavey v. Pavey.
    (Decided October 30, 1906.)
    Error to Circuit Court of Fayette County.
    , Messrs. Gardner & Chaffin, for plaintiff in error.

      Mr. John Logan, for defendant in error.
   Judgment affirmed.

Shauck,- C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9620.
    Eberling et al. v. Cole.
    (Decided October 30, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Mr. O. W. Broadwell; Mr. L. Z. Tanney and Mr. B. J. Satvyer, for plaintiffs in error.

      Mr. Walter C. Ong, for defendant in error.
    Judgment reversed and original petition dismissed. Grounds stated in journal entry.
   It is ordered and adjudged by this court that the judgment of said circuit court be and the same hereby is reversed for the reason that said judgment is contrary to law, because (1) the defendant in error, A. J. Cole, at the time of the making of the contract with J. B. Eberling for the transfer and exchange of the lots described in the petition, had no title or interest in said lots except as beneficiary under a naked and void trust. (2) The deeds tendered to J. B. Eberling because of their defective execution were insufficient to convey to him a merchantable title to the premises therein described. (3) Because upon the undisputed facts the claim of the defendant in error is shown to be without equity or merit. This court proceeding to render the judgment the circuit court should have rendered, it is considered and adjudged by the court, that the defendant in error, A. J. Cole, is not entitled to the relief prayed for in his petition, and said petition is therefore dismissed.

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


text:
    No. 9634.
    The Glenmont Village School District et al. v. Hartz.
    (Decided October 30, 1906.)
    Error to Circuit Court of Holmes County.

      Mr. W. Stilzvell, for plaintiffs in error.

      Messrs. Stilzvell & Bailey and Mr. W. F. Garver, for defendant in error.
   Judgment affirmed.

Shauck, C.'J., Price, Crew, Summers, and Davis, JJ., concur.


text:
    No. 9659.
    The Baltimore & Ohio Railroad Co. v. Milan.
    (Decided October 30, 1906.)
    Error to Circuit Court of Erie County.

      Messrs. King & Ramsey and Mr. F. A. Durban, for plaintiff in error.

      Messrs. Kinney, O’Farrell & Rimelspach and Mr. John F. McCrystal, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9700.
    Becker et al. v. Thierwechter.
    (Decided October 30, 1906.)
    Error to Circuit Court of Ottawa County.

      Mr. William Gordon and Mr. Charles A. Thatcher, for plaintiffs in error.

      Mr. John Duff; Mr. Scott Stahl and Mr. George A. True, for defendant in error. .
   Judgment affirmed.

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


text:
    No. 9726.
    Coe v. Coe.
    (Decided October 30, 1906.)
    Error to Circuit Court of Morrow County.

      Mr. J. W. Barry and Mr. L. K. Powell, for plaintiff in error.

      Mr. Thomas B. Duncan, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10382.
    The State, ex rel. Jordan v. Rolsen et al., Board of Deputy State Supervisors and Inspectors of Elections.
    (Decided October 30, 1906.)
    Mandamus.
    • Messrs. Burch & Johnson; Mr. J. M. Dawson and Mr. Joseph W. O’Hara, for relator.

      * Mr. Wade H. Ellis, attorney-general; Mr. L. B. Sawyer and Mr. F. F. Dinsmore, for respondents.
   Petition dismissed. State, ex rel. Springer, v. Hadley et al., 50 Ohio St., 167, and State, ex rel. Attorney-General, v. Spiedel, 62 Ohio St., 156, are authority for the conclusion that there is no vacancy in the office of the prosecuting attorney of Plamilton county. Other questions not considered.

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


text:
    No. 9439.
    Osborn v. City of Columbus.
    (Decided November 2, 1906.)
    Error to Circuit Court of Franklin County.

      Mr. EE. Safer and Mr. Fred C. Rector, for plaintiff in error.

      Messrs. Butler, Marshall & Keating, city solicitors, for defendant in error. "
   Judgment affirmed.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9454.
    The Cleveland Salt Co. v. Lamson et al., Receivers.
    (Decided November 2, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Garfield, Howe & Westenhaver and Messrs. Ford & Snyder, for plaintiff in error.

      Mr. A. W. Lams on and Messrs. Kline, Tolies & Goff, for defendants in error.
   Judgment affirmed on authority of Trowbridge v. Holcomb, 4 Ohio St., 38.

Shauck, C. J., Price, Crew, Summers,-Spear and Davis, JJ., concur.


text:
    No. 9477.
    The American Contracting Co. v. Sammon et al.
    (Decided November 2, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Kline, Tolies & Goff, for plaintiff in error.

      Messrs. Kerruish, Chapman & Kerruish, for defendants in error.
   Judgment reversed on authority of The Cleveland, Painesville & Eastern Railroad Company v. Pritschau, 69 Ohio St., 438.

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


text:
    No. 9619.
    Platt v. City of Toledo.
    (Decided November 2, 1906.)
    Error to Circuit Court of Lucas County.

      Mr. Harvey Scribner; Mr. Carnell Schreiber and Mr. W. H. A. Read, for plaintiff in error.
    Mr, U. G. Denman and Mr. Charles S. Northup, city solicitors, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9640.
    The Board of County Commissioners v. Howett.
    (Decided November 2, 1906.)
    Error to Circuit Court of Shelby County.

      Mr. H. W. Robinson and Mr. John F. Wilson, for plaintiff in error.

      Mr. J. D. Barnes and Mr. Hugh Doorley, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Price, Crew, Summers and Davis, JJ., concur.


text:
    No. 9651.
    City of Cleveland v. Connelly, Doing Business as The Cleveland Steam Boiler Works.
    (Decided November 2, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Mr. Newton D. Baker, city solicitor, for plaintiff in error.

      Messrs. Blandin, Rice & Ginn, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Price, Crew and Summers, JJ., concur-


text:
    No. 9458.
    Village of Napoleon v. Durbin.
    (Decided November 13, 1906.)
    Error to the Circuit Court of Henry County.

      Mr. F. M. Hall, city solicitor; Mr. James P. Ragan and Mr. John C. Ragan, for plaintiff in error.

      Mr. W. W. Campbell, for defendant in error.
   Judgment affirmed.

Price, Summers and Spear, JJ., concur.


text:
    No. 9491.
    Osburg, an Infant, by etc., v. Anshutz.
    (Decided November 13, 1906.)
    Error to Circuit Court of Clermont County..

      Mr. W. J. Davidson; Messrs. Nichols & Nichols and Mr. Prescott Smith, for plaintiff in error.

      Messrs Burch & Johnson; Mr. Charles J. Inott and Mr. Eli H. Speidel, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9610.
    Smith v. Patterson, a Taxpayer, et al.
    (Decided November 13, 1906.)
    Error to Circuit Court of Columbiana County.

      Messrs. Billingsley, Clark & DeFord, for plaintiff in error.

      Messrs. Smith & Lones, for defendants in error.
   Judgment reversed and judgment for plaintiff in error. ' •

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


text:
    No. 9654.
    Schumacher v. Wilson et al., Partners.
    (Decided November 13, 1906.)
    Error to Circuit Court of Monroe County.

      Messrs. Mallory, Jeffers & Sears, for plaintiff in error.

      Mr. W. E. Moore, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9657.
    The Pittsburg, Ft. Wayne & Chicago Railway Company et al. v. The Incorporated Village of East Palestine.
    (Decided November 13, 1906.)
    Error to Circuit Court of Columbiana County.

      Messrs. Carey & Mullins, for plaintiffs in error.

      Mr. C. P. Rothwell, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9668.
    Frazier v. The Board of County Commissioners.
    (Decided November 13, 1906.)
    Error to Circuit Court of Shelby County.

      Mr. J. D. Barnes, for plaintiff in error.

      Mr. H.. W. Robinson and Mr. John F. Wilson, for defendant in error.
   Judgment affirmed.

Sriauck, C. J., Crew, Spear and Davis, JJ., concur.


text:
    No. 9714.
    The Sidney S. Wilson Co. v. The Cleveland Electric Railway Co.
    (Decided November 13, 1906.)
    Error to Circuit Court of Cuyahoga County:

      Mr. John Fd. Smart, for plaintiff in error.

      Messrs. Squire, Sanders & Dempsey and Messrs. Wood, Hitchcock & Morgan, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur. ■


text:
    No. 9730.
    The O'Dell Commission Co. v. Norton.
    (Decided November 13, 1906.)
    Error to Circuit Court of Hamilton County.

      Messrs. Shay & Cogan, for plaintiff in error.

      Messrs. Cobb, Howard & Bailey and Mr. Charles E. Tenney, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9518.
    Barleyoung v. The Wheeling & Lake Erie Railroad Co.
    (Decided November 20, 1906.)
    Error to Circuit Court of Stark County.

      Messrs. Craine & Snyder, for plaintiff in error.

      Messrs. Lynch, Day & Day, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9519.
    Edgerton, Admr., et al. v. Hunt, Trustee.
    (Decided November 20, 1906.)
    Error to Circuit Court -of Stark County.

      Mr. J. A. Welker and Messrs: Craine & Snyder, for plaintiffs in error.

      Mr. R. H. Day and Messrs. Lynch, Day & Day, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9672.
    York et al. v. Warner, Admr., de bonis non.
    (Decided November 20, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Mr. William M. Raynolds, for plaintiffs in error.

      Messrs. Carr, Stearns & Chamberlain, for defendant in error.
   Judgment affirmed, 29 Ohio St., 230, not applying.

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


text:
    No. 9680.
    Cable et al. v. The Pennsylvania Co. et al.
    (Decided November 20, 1906.)

    Error to Circuit Court of Jefferson County.

      Mr. Henry Gregg and Mr. P. P. Lewis, for plaintiffs in error.

      Messrs. Carey & Mullins, for defendants in error.
   Judgment affirmed.

Price, Crew, Summers and Davis, JJ., concur.


text:
    No. 9691.
    Keister v. City of Akron.
    (Decided November 20, 1906.)
    Error to Circuit Court of Summit County.

      Mr. I. H. Phelps and Messrs. Tibbals & Frank, for plaintiff in error.

      Mr. Clyde F. Beery and Mr. S. D. Kenfield, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew, Summers and Davis, JJ., concur.


text:
    No. 9698.
    Hayes v. Dennis.
    (Decided November 20, 1906.)
    Error to Circuit Court of Fayette County.

      Mr. Humphrey Jones, for plaintiff in error.

      Mr. Frank A. Chaffin, for defendant in error.
   Judgment affirmed on authority of Lee v. Smith, 42 Ohio St., 458.

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


text:
    No. 9731.
    Ransom v. Taylor et al., Exrs.
    (Decided November 20, 1906.)
    Error to Circuit Court of Erie County.

      Mr. George E: Reiter and Mr. H. L. Peeke, for plaintiff in error.

      Messrs. Mackey & Hoxsey, and Andrews Brothers, for defendants' in error.
   Judgment affirmed.

Sliauck, C. J.,- Crew and Spear, JJ., concur.:: •


text:
    No. 9757.
    Stoeckley, an Infant, by etc., v. Hirzel et al.
    (Decided November 20, 1906.)
    Error to Circuit Court of Lucas County.

      Mr. Orville S. Brumback and Mr. Frederick W. Sturdivant, for plaintiff in error.

      Messrs. Eezvis & Doyle and Mr. J. W. Schaufelberger, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9494.
    National Biscuit Co. et al. v. Douglass et al., Partners.
    (Decided November 27, 1906.)
    Error to Circuit Court of Richland County.

      Merrs. Jenner & Weldon, for plaintiffs in error.

      Messrs. Donnell, Marriott & Bissman, for defendants in error.
   On rehearing. Former judgment adhered to.

Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 9505.
    County Auditor of Hardin County et al. v. Rumbaugh et al.
    (Decided November 27, 1906.)
    Error to Circuit Court of Hardin County.

      Mr. Hamilton E. Hoge and Messrs. Johnson & Johnson, for plaintiffs in error.

      Mr. F. C. Dougherty and Mr. J. R. Stillings, for defendants in error.
   On rehearing. Former judgment adhered to.

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


text:
    No. 9528.
    The Cleveland, Terminal & Valley Railroad Co. v. Carran.
    (Decided November 27, 1906.)
    Error to Circuit Court of Summit County.

      Messrs. Allen, Waters & Andress, for plaintiff in error.

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

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


text:
    No. 9530.
    Spencer et al. v. Herrick.
    (Decided November 27, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Henderson, Quail & Siddall and Messrs. Squire, Sanders & Dempsey, for plaintiffs in error.

      Messrs. Kline, Tolies & Goff; Messrs. Elliott & Elliott and Messrs. M. B. & H. H. Johnson, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9555.
    Parker, Treasurer, v. Kirkley, Trustee.
    (Decided November 27, 1906.)
    Error to Circuit Court of Lucas County.

      Mr. William G. Ullery and Mr. James S. Martin, for plaintiff in error.

      Mr. B. A. Hayes, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9573.
    The Pennsylvania Co. v. Glaser.
    (Decided November 27, 1906.)
    Error to Circuit Court of Columbiana County.

      Messrs. Carey & Mullins, for plaintiff in error.

      Mr. P. M. Smith, for defendant in error.
   Judgment affirmed.

Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 9699.
    Hart et al., County Commissioners, et al, v. Brown.
    (Decided November 27, 1906.)
    Error to Circuit Court of Hancock County.

      Mr. William L. David, prosecuting attorney, for plaintiffs in error.

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

Shauck, C. J., Price, Crew and Summers, JJ., concur.


text:
    No. 9724.
    Clare v. Nichols et al., Admrs., et al.
    (Decided November 27, 1906.)
    Error to Circuit Court of Clermont County.

      Mr. W. A. Hicks, for plaintiff in error.

      Mr. John Nichols; Messrs. Davis & Woodlief and Mr. Frank Davis, Jr., .for defendants'in-error. ■
   Judgment affirmed.

Shauck, C. J., Price, Crew,' Summers and Spear, JJ., concur..- . ' ./ •


text:
    No. 9737.
    Jacobs v. The State of Ohio, by etc. (Charles S. Willis, a taxpayer.)
    (Decided November 27, 1906.)
    Error to Circuit Court of Jackson County.

      Mr. A. E. Jacobs and Mr. S. F. White, for plaintiff in error.

      Mr. Elmer C. Powell, for defendant in error.
   Judgment affirmed.

Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 9775.
    The Cincinnati, Dayton & Toledo Traction, Co. v. Ervin.
    (Decided November 27, 1906.)
    Error, to Circuit Court of Butler County.

      Mr. W. C. Shepherd, for plaintiff in error.

      Mr. Aaron Wesco and Mr. Alex. F. Hume, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10397.
    Madigan, Treasurer, v. The State, ex rel. Beyer.
    (Decided November 27, 1906.)
    Error to Circuit Court of Cuyahoga County.
    ■ Messrs. Blandin, Rice & Ginn, for plaintiff in error.

      Mr. R. A. Wilbur, for defendant in error.
   Judgment reversed and original petition dis- ■ missed, the act relied upon being upon a general subject, and not of uniform operation. Gaylord v. Hubbard, 56 Ohio St., 25.

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


text:
    No. 9543.
    Kinsey, Admx., et al. v. Seasongood.
    (Decided December 4, 1906.)
    Error to Circuit Court of Hamilton County.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiffs in error.

      Mr. C. B. Matthews and Messrs. Worthington & Strong, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew, Summers and Spear, JJ., concur.


text:
    No. 9600.
    Rinehart et al. v. Chittenden.
    (Decided December 4, 1906.)
    Error to Circuit Court of Franklin County.

      Messrs. Pugh & Pugh-, for plaintiffs in error.

      Messrs. Merwine & Schumacher, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9734.
    Burke v. City of Cleveland et al.
    (Decided December 4, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Mr. Sterling Parks; Mr. Frank J. Cowdrey and Mr. Will I. King, for plaintiff in error. •

      Messrs. Herrick & Hopkins and Mr. Newton D. Baker, city solicitor, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9755.
    Neth et al. v. The Recording & Computing Machines Co.
    (Decided December 4, 1906.)
    Error to Circuit Court of Montgomery County.

      Mr. R. J. McCarthy; Messrs. Dickson & Clark, and Messrs. Young & Young, for plaintiffs in error.

      Messrs. Sprigg, Fitzgerald ■& Sprigg, for defendant in error.
   Judgment affirmed.

Price, .Summers and Davís, J.J.-, concur.


text:
    No. 9770.
    Village of Wadsworth et al. v. Billman, a Taxpayer, etc.
    (Decided December 4, 1906.)
    Error to Circuit Court of Medina County.

      Mr. W. S. Kerr; Mr. W. 0.- Johnston and Mr. Frank Fleath, for plaintiffs in error.

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

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


text:
    No. 9772.
    Yeiser, Admr., et al. v. United States Board & Paper Co.
    (Decided December 4, 1906.)
    Error to Circuit Court of Butler County.

      Mr. C. B. Matthews and Messrs.,Pogue & Pogue, for plaintiffs in error.

      Messrs. Roettinger & Gorman and .Messrs. Dempsey, Mallon & Vordenberg, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9773.
    . Field v. Burt et al.
    (Decided December 4, 1906.)
    Error to Circuit Court of Franklin County.

      Messrs. Merwine & Schumacher and Mr. John M. Sheets, for plaintiff in error. ;

      Mr. Will J. Dusenbury and Mr. Charles E. Carter, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9987.
    The Lake Shore & Michigan Southern Railway Co. v. Kearns, Admx.
    (Decided December 4, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Cook & McGowan, for plaintiff in error.

      Mr. Harold Remington; Mr. E. Jay Pinney; Mr. C. W. Dille and Mr. E. H. Tracy, for defendant in error.
   Judgment affirmed.

Price, Crew and Spear, JJ., concur.


text:
    No. 10147.
    The State, ex rel. Shank, v. Gard.
    (Decided December 4, 1906,)
    Error to Circuit Court of Butler county.

      Messrs. Andrews, Harlan & Andrews; Messrs. Shank & Shank and Messrs. Neilan & Neilan, for plaintiff in error.

      Mr. R. N. Shott; Mr. Warren Gard and Mr: W. C. Shepherd, for defendant in error.
   Judgment affirmed.

Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 10311.
    Eyre, a Taxpayer, v. City of Norwood et al.
    (Decided December 4, 1906.)
    Error to Circuit Court of Hamilton County.

      Messrs. Kinkead, Rogers & Ellis, for plaintiff in error.

      Mr. O. F. Dwyer, city solicitor, and Mr. John V. Campbell, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9599.
    The Coney Island Co. v. Mitsch, Admr.
    (Decided December 11, 1906.)
    Error to Superior Court of Cincinnati.

      Mr. Robert Ramsey and Mr. J. R. Schindel, for plaintiff in error.

      Messrs. Shay & Cogan, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9614.
    The Pennsylvania Company v. Mehaffey.
    (Decided December 11, 1906.)
    Error to Circuit Court of Allen County.

      Mr. S. S. Wheeler and Mr. Allen Zollars,■ for plaintiff in error.

      Messrs. Sprague & Lippincott and Mr. I. S. Motter, for defendant in error.
   Judgment reversed and judgment for plaintiff in error. (See page 432, supra. — Reporter;)

Shauck, C. J., Crew, Summers and Spear, JJ., concur.


text:
    No. 9615.
    The Ohio Telephone & Telegraph Co. v. Graham.
    (Decided December 11, 1906.)
    Error to Circuit Court of Franklin County.

      Messrs. Williams, Taylor & Pretzman, for plaintiff in error.

      Mr. Fred C. Rector, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Si-iauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9617.
    The Diamond Rubber Co. v. McClurg.
    (Decided December 11, 1906.)
    Error, to Circuit Court of Summit County.

      Mr. E. K. Wilcox, for plaintiff in error:

      Mr. George■ M. Anderson and .MV. F. ■"V. Owen, for defendant in error. ' •
   Judgment vacated and cause remanded'to the circuit court with direction to consider .the bill of exceptions, ■' • ; 1 7

Shauck, C. J., Price, Crew, Summers and Davis, JJ., concur.


text:
    No. 9622.
    The Pennsylvania Co. v. Day et al.
    (Decided December 11, 1906.)
    Error to Circuit Court of Seneca County.

      Messrs. Marshall & Fraser and Mr. J. C. Royer, for plaintiff in error.

      Messrs. Dore '& Dore, for defendants in error.
   Judgment reversed on authority of Klunk v. Hocking Valley Railway Co., 74 Ohio St., 125, and for error in giving request No. rof the plaintiff below. "

Si-iauck, C. J., Price, Crew, Summers and Davis, JJ., concur.


text:
    No. 10309.
    The Toledo Railways & Light Co. v. Rippon, Admx.
    (Decided December 11, 1906.)
    Error to Circuit Court of Lucas County.

      Messrs. Smith & Baker, for plaintiff in error.

      Mr. C. A. Thatcher, for defendant in error.
   Judgment affirmed by consent.


author: Spiauck, C. J., and Crew, J.,

text:
    No. 10418.
    The State, ex rel. McClelland, v. Harris, Governor, et al.
    (Decided December 11, 1906.)
    Mandamus.

      Mr. J. M. Sheets; Mr. C. R. Painter and Mr. J. 0. Troup, for relator.

      Mr. Wade H. Ellis, attorney-general; Mr. W. H. Miller and Mr. Cyrus Huling, for respondents.
   Demurrer sustained and petition dismissed on authority of State v. Brewster, 39 Ohio St., 653.

Price, Summers, Spear and Davis, JJ., concur.

Spiauck, C. J., and Crew, J.,

concur in the judgment upon the ground that the form of ballot furnished by the board of elections can not be questioned after the election if the voters’ intention clearly appears, in which view Price and Spear, JJ., also concur.


text:
    No. 9633.
    Great China Tea Co., a Partnership, v. The Norfolk & Western Railway Co.
    (Decided December 18, 1906.)
    Error to Circuit Court of Hamilton County.

      Messrs. Moulinier, Bettman & Hunt, for plaintiff in error.

      Mr. Thomas Hollister; Mr. Walter A. DeCamp; Mr. Burton P. Hollister; Mr. Ralph E. Clark; Mr. Joseph I. Doran and Messrs Hollister & Hollister, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9662.
    Albaugh et al. v. Rannells.
    (Decided December 18, 1906.)
    ■ Error to Circuit Court of Miami County.

      Mr. W. S. Kessler and Messrs. Long & Kyle, for plaintiffs in error.

      Mr. J. A. Kerr and G. T. Thomas, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9667.
    Oil Well Supply Co. v. Davidson.
    (Decided December 18, 1906.)
    Error to Circuit Court of Wood County.

      Mr. Edward Beverstock, for plaintiff in error.

      Messrs. Baldwin & Harrington, for defendant in error. ®
   Judgment affirmed.

Price, Crew, Spear and Davis, JJ., concur.


text:
    No. 9670.
    The John Shillito Co. v. Fox.
    (Decided December 18, 1906.)
    Error to Superior Court of Cincinnati.

      Messrs. Maxwell & Ramsey, for plaintiff in error.

      Mr. Judson Harmon and Mr. Charles B. Wilby, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9750.
    Liebschutz v. Black et al., Trustees.
    (Decided December 18, 1906.)
    Error to Superior Court of Cincinnati.

      Mr. Samuel Wolf stein and Messrs. Pogue & Pogue, for plaintiff in error. .

      Mr. L: C. Black; Mr. C. C. Archer and Mr. Robert L. Black, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9988.
    The New York, Chicago & St. Louis Railroad Co. v. McDowell.
    (Decided December 18, 1906.)
    Error to Circuit Court of Ashtabula County.

      Mr. John F. Clarke and Messrs. Hoyt, Munsell & Hall, for plaintiff in error.

      Mr. D. F. Anderson; Mr. R. B. Newcomb; Mr.

      H. E.'Starkey; Messrs. Anderson, McNab'& Anders ons and Mr. Frank M. Cobb, for defendant in error.
   Judgment reversed on authority of Klunk v. Hocking Valley Railway Co., 74 Ohio St., 125.

" Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9629.
    Baird et al. v. Langenbach et al.
    (Decided December 21, 1906.)
    Error to Circuit Court of Harrison County.

      Mr. D. A. Hollingsworth, for plaintiffs in error.

      Mr. C. C. Bow and Mr. R. H. Minteer, for defendants in.error.
   Judgment affirmed on' ground stated in journal entry in the circuit court.

Price, Summers and Spear, JJ., concur.


text:
    No. 9635.
    The United States Coal Co. v. Ekey et al.
    (Decided December 21, 1906.)
    Error to Circuit Court of Jefferson County.

      Messrs. Henderson, Quail & Siddall, and Mr.', A. C. Lewis, for plaintiff in error.
    . Mr. E. E. Erskine; Mr. J. W. Jordan and Mr. Dio Rogers, for defendants in error.

      Judgment modified as shown in journal entry.
   It is ordered and adjudged by this court, that the judgment of said circuit court be, and the same hereby, is, modified so as to allow and permit plaintiff, the United States Coal- Company, to erect and maintain upon and across the premises of defendants, or along the line of the premises of the defendants and the adjacent land-owners, such number of service poles as shall be reasonably required for the proper support of the power-transmitting wires of said coal company necessary to be used by said company in the proper and convenient mining by electricity of the coal now owned by it in Smithfield and Wells Townships, Jefferson County, Ohio. And it is ordered and adjudged by this court that this case be, and the same hereby is remanded to the circuit court of Jefferson county with instructions to that court to hear evidence and determine and establish a line upon or across the premises in the petition described, or along the lines of the premises of the defendants and adjacent land-owners, upon which said poles may be erected and said wires may be strung at such places and in such manner as will enable the coal company to properly, conveniently and economically carry on its business of mining as aforesaid, and as will not necessarily interfere with or impair the convenient use of defendants of their said premises.

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


text:
    No. 9636.
    The United States Coal Co. v. Graham.
    (Decided December 21, 1906.)
    Error to Circuit Court of Jefferson County.

      Messrs. Henderson, Quail & Siddall and Mr. A. C. Lewis, for plaintiff in error.

      Mr. E. E. Erskine; Mr. J. W. Jordan and Mr. Dio Rogers, for defendant in error.
    Judgment modified as shown in journal entry.
   It is ordered and adjudged by this "court, that the judgment of said circuit court be, and the same hereby is, modified so as to allow and permit plaintiff, the United States Coal Company, to erect and maintain upon and across the premises of defendant, or along the line of the premises of the defendant and the adjacent land-owners, such number of service poles as shall be reasonably required for the proper support of the power-transmitting wires of said coal company necessary to be used by said company in the proper and convenient mining by electricity of the coal now owned by it in Smithfield and Wells Townships, Jefferson County, Ohio. And it is ordered and adjudged by this court that this case be, and the same hereby is, remanded to the circuit court of Jefferson county with instructions to that court to hear evidence and determine and establish a line upon or across the premises in the petition described, or along the lines of the premises of the defendant and adjacent land-owners, upon which said poles may be erected and said wires may be strung, at such places and in such manner as will enable the coal company to properly, conveniently and economically carry on its business of mining as aforesaid, and as will not necessarily interfere with or impair the convenient use of defendant of his said premises.

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


text:
    No. 9637.
    The United States Coal Co. v. Burriss et al.
    (Decided December 21, 1906.)
    Error to Circuit Court of Jefferson County.

      Messrs. Henderson, Quail & Siddall and Mr. A. C. Lewis, for plaintiff in error.

      Mr. E. E. Erskine; Mr. J. W. Jordan and Mr. Dio Rogers for defendants in error.
    Judgment modified as shown in journal entry.
   It is ordered and adjudged by this court, that the judgment of said circuit court be, and the same hereby is, modified so as to allow and permit plaintiff, the United States Coal Company, to erect and maintain upon and across the premises of defendants, or along the line of the premises of the defendants and the adjacent land-owners, such number of seiwice poles as shall be reasonably required for the proper support of the power transmitting wires of said coal company necessary to be used by said company in the proper and convenient mining by electricity of the coal now owned by it in Smithfield and Wells Townships, Jefferson County, Ohio. And it is ordered and adjudged by this court that this case be, and the same hereby is, remanded to the circuit .court of Jefferson county with instructions to that court to hear evidence and determine and establish a line upon or across the- premises in the petition described, or along the lines of the premises of the defendants and adjacent land-owners, upon which said poles may be erected and said wires may be strung, at such places and in such manner as will enable the coal company to properly, conveniently and economically carry on its business of mining as aforesaid, and as will not necessarily interfere with or impair the convenient use of defendants of their said premises. . .

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


text:
    No. 9638.
    The United States Coal Co. v. Hoyle et al.
    (Decided December 21, 1906.)
    •Error to Circuit Court of Jefférson County.

      Messrs. Henderson, Quail & Siddall and Mr. A. C. Lewis,, for plaintiff in error.

      Mr. E. E. Erskine; Mr. J. W. Jordan and Mr. Dio Rogers for defendants in error.
    Judgment modified as shown in journal entry.
   It is ordered and adjudged by this court, that the judgment of said circuit court be, and the same hereby is, modified so as to allow and permit plaintiff, the United States Coal Company, to erect' and maintain upon and across the premises of defendants, or along the line of the premises of the defendants and the adjacent land-owners, such number of service poles as shall be reasonably required for the proper support of the power transmitting wires of said coal company necessary to be used by said company in the proper and convenient mining by electricity of the coal now owned by it in Smithfield and Wells Townships, Jefferson County, Ohio. And it is ordered and adjudged by this court that this case be, and the same hereby is, remanded to the circuit court of Jefferson county with instructions to that court to hear evidence and determine and establish a line upon or across the premises in the petition described, or along the lines of the premises of the defendants and adjacent land-owners, upon which said poles may be erected and said wires may be strung, at such places and in such manner as will enable the coal company to properly, conveniently and economically carry on its business of mining as aforesaid, and as will not necessarily interfere with or impair the convenient use of defendants of their said premises.

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


text:
    No. 9652.
    The Lake Shore Electric Railway Co. et al. v. Cleverdon, Admx.
    (Decided December 21, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Mr. Thomas H. Hogsett; Mr. M. B. Johnson and Mr. H. H. Johnson, for plaintiffs in error.

      Mr. Willis Vickery and Messrs. Parkhurst & Vickery, for defendant in error.
   Judgment affirmed.

Price, Summers and Spear, JJ., concur.


text:
    No. 9673.
    Deacon, Mayor, et al. v. The State, ex rel. Winn.
    (Decided December 21, 1906.)
    Error to Circuit Court of Muskingum County.

      Mr. Harry C. Pugh, for plaintiffs in error.

      Mr. W. J. Massey, for defendant in error.
   Judgment of circuit court reversed and that of common pleas affirmed, upon the ground that, though the relator was entitled to relief, mandamus is not the proper remedy.

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


text:
    No. 9697.
    The Lake Shore & Michigan Southern Railway Co. v. Pomranke.
    (Decided December 21, 1906.)
    Error to Circuit Court of Ottawa County.

      Mr. George E. Reiter; Mr. C. P. Wickham; Mr. John H. Immel; Mr. George C. Greene; Mr. F. J. Jerome; Mr. N. D. Doughman and Mr. D. G. Jaeger, for plaintiff in error.

      Mr. E. B. King and Mr. Scott Stahl, for defendant'in error.
   Judgment affirmed.

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


text:
    No. 9694.
    The Northern Ohio Railway Co. v. The Akron Canal & Hydraulic Co.
    (Decided December 21, 1906.)
    Error to Circuit Court of Summit County.

      Messrs. Tibbals & Frank, for plaintiff in error.

      Messrs. Allen, Waters & Andress, for defendant-in error.
   Judgment, affirmed.

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


text:
    No. 9762.
    Wheeler et al. v. Dunham et al.
    (Decided December 21, 1906.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Kline, Tolies & Goff; Mr. E. F. Voris and Mr. C. R. Bissel, for plaintiffs in error.

      Mr. Stephen A. Persons; Mr. C. R. Bissell and Messrs. Johnson & Dunlap, for defendants'in error.
   Judgment affirmed.

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


text:
    No. 9774.
    Benton v. Benton et al.
    (Decided December 21, 1906.)
    Error to Circuit Court of Lorain County.

      Messrs. Laubscher & Kees, for plaintiff in error.

      Mr. Willis E. White; Messrs. Kline, Tolies & Goff; Messrs. Garñeld, Howe & Westenhaver and Mr. Otis B. Benton, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9788.
    Hall, Admx., v. The Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.
    (Decided December 21, 1906.)
    Error, to Superior Court of Cincinnati.

      Messrs. Hoffman, Bode & Le Blond and Mr. B. H. Stites, for plaintiff in error.

      Messrs. Maxwell & Ramsey, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9793.
    The A. G. Blair Co. v. Geisel, Jr., doing business as The Harrisburg & Steelton Coal & Lumber Co.
    (Decided December 21, 1906.)
    Error to Circuit Court of Lucas County.

      Messrs. Sumner, Tucker, Mulholland & Hartman, for plaintiff in error.

      Messrs. Marshall & Fraser, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9837.
    Holcomb et al., Assignees, et al. v. Daehler.
    (Decided December 21, 1906.)
    Error to Circuit Court of Scioto County.

      Messrs. Holcomb & Millar, for plaintiffs in error.

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

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


text:
    No. 9663.
    The German Insurance Co. of Freeport, Ill., v. Cleckner.
    (Decided January 8, 1907.)
    Error to the Circuit Court of Shelby County.

      Messrs. Van Pelt, Dale & Ferneding and Mr. C. C. Flail, for plaintiff in error.

      Mr. J. D. Barnes and Messrs. Wickoff, Emmons, & Needles, for defendant in error.
    Judgment modified as shown in journal entry.
   It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, modified for the reason that defendant in error should be adjudged to recover herein from plaintiff in error only its proportionate amount of the award of $682.49 rendered by the appraisers, as appears by the record. And, thereupon, this court proceeding to render the judgment which the circuit court of Shelby county should have rendered, it is hereby ordered and adjudged that the judgment of $619.48 so rendered against plaintiff in error herein, be reduced to $153.37, its proportionate amount of the award aforesaid; for which amount of $153.37, together with interest from the 8th day of January, 1907, judgment is hereby rendered against said plaintiff in error.

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


text:
    No. 9664.
    The Spring Garden Insurance Co. of Philadelphia, Pa., v. Cleckner.
    (Decided January 8, 1907.)
    Error to the Circuit Court of Shelby County.

      Messrs. Calhoun & Gunther, and Mr. C. C. Hall, for plaintiff in error.

      Mr. J: D. Barnes and Messrs. Wickoff, Emmons, & Needles, for defendant in error.
    Judgment modified as shown in journal entry.
   It is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, modified for the reason that defendant in error should be adjudged to recover herein from plaintiff in error only its proportionate amount of the award of $682.49 rendered by the appraisers, as appears by the record. And, thereupon, this court proceeding to render the judgment which the circuit-court of Shelby county should have rendered, it is hereby ordered and adjudged that the judgment of $619.48 so rendered against plaintiff in error herein, be reduced to $153.37, its proportionate amount of- the award aforesaid; for which amount of $153.37, together with interest from the 8th day of January, 1907, judgment is hereby rendered against said plaintiff in error. ■

Sháucic, C. J\, Price, Summers and Davis, JJ., concur.


text:
    No. 9798.
    Coale v. Eatwell.
    (Decided January 8, 1907.)
    Error to Circuit Court of Trumbull County.

      Mr. Washington Hyde and Messrs. Gillmer & Gilhner, for plaintiff in error.

      Mr.-T. H. Gillmer, for defendant in error.
   Judgment affirmed.

Price, Crew and Spear, JJ.,-concur.


text:
    No. 9877.
    Byrket v. The Lake Shore & Michigan Southern Railway Co.
    (Decided January 8, 1907.)
    Error to Circuit Court of Lucas County.

      Mr. C. A. Thatcher, for plaintiff in error.

      Messrs. Doyle & Lewis and Messrs. Potter & Potter, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9914.
    Shrader, Admr., v. Bline, Admx.
    (Decided January 8, 1907.)
    Error to Circuit Court of Licking County.

      Messrs. C. & C. H. Follett, for plaintiff in error.

      Mr. John M. Swarts and Messrs. Hunter & Hunter, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9983.
    The Cleveland Electric Railway Co. v. Kenna.
    (Decided January 8, 1907.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Mr. L. A. Russell, for defendant in error.
   Judgment affirmed.

Si-iauck, C. J., Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 10088.
    Lawson, Exr., v. Lawson.
    (Decided January 8, 1907.)
    Error to Circuit Court of Columbiana County.

      Mr. J. G. Moore and Mr. Charles Boyd, for plaintiff in error.

      Mr. P. M. Smith, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9279.
    Worthington v. The Cleveland City Railway Co.
    (Decided January 15, 1907.)
    Error to Circuit Court of Cuyahoga County.

      Mr. W. W. Boynton, for plaintiff in error.

      Messrs. Squire, Sanders & Dempsey, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Price, Crew, Summers and Davis, JJ., concur.


text:
    No. 9294.
    German American Insurance Co. of New York v. Johns.
    (Decided January 13, 1907.)
    Error to Circuit Court of Butler County.

      Mr. J. W. Mooney and Mr. Samuel D. Fitton, Jr., for plaintiff in error.

      Mr. Ben JJarwitz and Messrs. Andrews, Harlan & Andrews, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9429.
    Mack v. Eckerlin.
    (Decided January 15, 1907.)
    Error to Circuit Court of Hamilton County.

      Messrs. Closs & Luebbert, for plaintiff in error.

      Mr. Norwood J. Utter, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9903.
    The Dayton & Troy Electric Railway Co. v. Burner.
    (Decided January 15, 1907.)
    Error to Circuit Court of Miami County.

      Messrs. McMahon & McMahon; Mr. A. F. Broomhall and Mr. E. FI. Kerr, for plaintiff in error.

      Mr. H. F. MacCracken and Messrs. Long & Kyle, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9912.
    Mack v. Eckerlin.
    (Decided January 15, 1907.)
    Error to Superior Court of Cincinnati.

      Messrs. Closs & Luebbert, for plaintiff in error.

      Mr. Norwood /. Utter, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10022.
    Loftus v. The State of Ohio.
    (Decided January 15, 1907.)
    Error to Circuit Court of Hamilton County.

      Mr. E. M. Ballard, for plaintiff in error.

      Mr. Rulison, Morris, Sawyer & Rose, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10132.
    The Cincinnati Traction Co. v. Kress.
    (Decided January 15, 1907.)
    Error to Circuit Court of Hamilton County.

      Messrs. Outcalt & Foraker and Mr. J. W. Heintsman, for plaintiff in error.

      Mr. D. D. Woodmansee and Mr. Fred. Hertenstein, for defendant in error.
   Judgment affirmed.

Prtce, Summers and Davis, JJ., concur.


text:
    No. 9508.
    Erie Railroad Company v. Hine, Admr.
    (Decided January 22, 1907.)
    Error to Circuit Court of Portage County.

      Messrs. Cushing & Clarke and Mr. I. T. Sid-doll, for plaintiff in error.

      Mr. C. D. Ingell and Mr. R. S. Webb, for defendant in error.
   Judgment of the-circuit court reversed and that of the common pleas affirmed.

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


text:
    No. 9602.
    Beeson v. Baker, Guardian.
    (Decided January 22, 1907.)
    Error to Circuit Court of Hancock County.

      Messrs. Me Cónica & D wig gins, for plaintiff in error.

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

Price, Summers and Davis, JJ., concur.


text:
    No. 9611.
    Hepburn v. Firestone.
    (Decided January 22, 1907.)
    Error to Circuit Court of Columbiana County.

      Messrs. Billingsley, Clark & DeFord and Mr. Lodge Riddle, for plaintiff in error.

      Messrs. Potts & Wells, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9613.
    Watts et al. v. Reynolds et al.
    (Decided January 22, 1907.)
    Error to Circuit Court of Adams County.-

      Mr. C. C. W. Naylor and Messrs Bay less & McCoy, for plaintiffs in error.

      Messrs. Stephenson & Vance, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9648.
    Francis et al. v. Bough et al.
    (Decided January 22, 1907.)
    Error to Circuit Court of Columbiana County.

      Messrs. Smith & Lones, for plaintiffs in error.

      Messrs. Potts & Wells, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9660.
    Jacobs v. Frechtling, Jr.
    (Decided January 22, 1907.)
    Error to Circuit Court of Butler County.

      Mr. W. J. Davidson and Mr. Clarence Hart'koff, for plaintiff in error.

      Mr. Alex. F. Hume and Messrs. Murphy & Williams, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9747.
    The Wheeling & Lake Erie Railroad Co. v. The Toledo Railway & Terminal Co.
    (Decided January 22, 1907.)
    Error to Circuit Court of Lucas County.

      Messrs. Squire, Sanders & Dempsey and Mr. C. A. Seiders, for plaintiff in error.

      Messrs. Hamilton & Kirby; Messrs. Brozvn, Geddes, Sclvmettau & Williams and Messrs King & Tracy, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Davis, JJ., concur.


text:
    No. 9802.
    Village of Winton Place et al. v. The Cincinnati Street Railway Co. et al.
    (Decided January 22, 1907.)
    Error to Circuit Court of Hamilton County.

      Mr. Lawrence Maxwell, Jr.; Mr. Charles P. Mackelfresh and Mr. Jesse Lowman, for plaintiffs in error.

      Mr. Joseph Wilby and Mr. John W. Warring - ion, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9816.
    Beal, Admr., v. Lauer.
    (Decided January 22, 1907.)
    Error to Circuit Court of Lorain County.

      Mr. L. B. Gardner and Mr. F. M. Stevens, for plaintiff in error.

      Mr. John C. Conaway and Mr. Charles A. Metcalf, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9862.
    Lutz v. Godfrey et al.
    (Decided January 22, 1907.)
    Error to Circuit Court of Richland County.

      Messrs. Douglass & Workman, for plaintiff in error.

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

Price, Summers and Davis, JJ., concur.


text:
    No. 9887.
    Gernhard v. Graves.
    (Decided January 22, 1907.)
    Error to Circuit Court of Ottawa County.

      Mr. William Gordon, for plaintiff in error.

      Mr. George A. True, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10001.
    The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Beer, Admr.
    (Decided January 22, 1907.)
    Error to Circuit Court of Crawford County.

      Mr. Dan Babst and Messrs. Cummings, McBride & Wolfe, for plaintiff in error.

      Mr. Thomas Beer and Mr. William C. Beer, for defendant in error.
   Judgment affirmed.

Price, Summers and Spear, JJ., concur. ■


text:
    No. 9484.
    Zurhorst v. Judson.
    (Decided January 29, 1907.)
    Error to Circuit Court of Erie County.

      Mr. H. C. Deran, for plaintiff in error.

      Mr. H. L. Peeke, for defendant in error.
   Judgment affirmed.

Price, Crew, Spear and Davis, JJ., concur.


text:
    No. 9511.
    Ellis et al., Partners, v. The Champion Iron Co. et al.
    (Decided January 29, 1907.)
    Error to Circuit Court of Washington County.

      Mr. Louis J. Dolle; Mr. J. C. Brencm and Mr. Constant Southworth, for plaintiffs in error.

      Mr. A. D. Follett; Mr. George E. Crane and Mr. W. H. Sheldon, prosecuting attorney, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9621.
    Kirkbride et al. v. Griffith et al.
    (Decided January 29, 1907.)
    Error to Circuit Court of Hancock County.

      Messrs. Phelps & David and Mr. John E. Priddy, for plaintiffs in error.

      Messrs. Ross & Kinder and Messrs. Grimm & Wether aid, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9628.
    Timlin v. Carnegie Steel Company.
    (Decided January 29, 1907.)
    Error to Circuit Court of Mahoning County,

      Messrs. Moore & Craver and Mr. Edmond H. Moore, for plaintiff in error.

      Messrs. Hine, Kennedy & Robinson, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9650.
    Bounds et al. v. Holtzberry.
    (Decided January 29, 1907.)
    Error to Circuit Court of Licking County.

      Mr. S. M. Hunter and Messrs. Kibler & Kibler, for plaintiffs in error.

      Mr. I. Howard Jones and Messrs. Thompson & Slabaugh, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9658.
    Welsh Hills Baptist Church et al. v. Wilson et al.
    (Decided January 29, 1907.)
    Error to Circuit Court of Licking County.

      Mr. A. A. Stasel and Mr. Gil. C. Daitgherty, for plaintiffs in error.

      Messrs. Kibler, Kibler & Montgomery and Messrs. Hunter & Hunter, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9661.
    Shepherd, Admr., v. Noland, Exr., et al.
    (Decided January 29, 1907.)
    Error to Circuit Court of Madison County.

      Messrs. Murray & Emery, for plaintiff in error.

      Mr. G. W. Wilson, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, Jj., concur.


text:
    No. 9839.
    The National Cash Register Co. v. Cervone.
    (Decided January 29, 1907.)
    Error to Circuit Court of Mahoning County.

      Mr. W. W. Zimmerman, for plaintiff in error.

      Mr. W. J. Williams, for defendant in error.
   Judgment affirmed. (Reported in 76 Ohio St. — ■ Reporter.)

Price, Crew and Spear, JJ., concur.


text:
    No. 9843.
    The Nypano Railroad Co. et al. v. The Cleveland & Southwestern Traction Co.
    (Decided January 29, 1907.)
    Error to Circuit Court of Wayne County.

      Messrs. Cushing & Clarke and Mr. John McSweeney, for plaintiffs in error.

      Messrs. Collister & Halle; Mr. M. L. Smyser and Messrs. Blandin, Rice & Ginn, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Price, Crew and Summers, JJ.. concur.

Spear, J., dissents.


text:
    No. 9849.
    Washer et. al. v. Iler.
    (Decided January 29, 1907.)
    Error to Circuit Court of Summit County.

      Messrs. Rogers, Rozvely & Rockwell, for plaintiffs in error.

      Messrs. Holloway & Charhberlin, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9873.
    Sonner v. Laser et al.
    (Decided January 29, 1907.)
    Error to Circuit Court of Richland County.

      Mr. H. T. Manner, for plaintiff in error.

      Messrs. Laser, Huston & Marquis, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9893.
    The National Supply Co. et al. v. Snyder et al.
    (Decided January 29, 1907.)
    Error to Circuit Court of Hancock County.

      Messrs. Phelps & .David and Messrs. Taber & Clapp, for plaintiffs in error.

      Messrs. Cole, Williams & Cole and Mr. C. W. Bish, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9905.
    The Bookwalter Wheel Co. v. Mitchell.
    (Decided January 29, 1907.)
    Error to Circuit Court of Montgomery County.

      Messrs. Van Deman, Burkhart & Shea, for plaintiff in error.

      Messrs McMahon & McMahon .and Mr. W. A. Reiter, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9908.
    Challen v. Martin et al.
    (Decided January 29, 1907.)
    Error to Circuit Court of Wood County.

      Mr. Edward Beverstock, for plaintiff in error.

      Mr. Franklin F. Riegle and Mr. James 0. Troup, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9693.
    Cordray v. Cordray et al.
    (Decided February 5, 1907.)
    Error to Circuit Court of Muskingum County.

      Messrs. Vandenbark & Vandenbark; Mr. S. M. Winn and Mr. John C. Bassett, Jr., for plaintiff in error.

      Mr. C. C. Lemert, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9701.
    C. H. Happer & Co. v. Morrison.
    (Decided February 5, 1907.)
    Error to Circuit Court of Hancock County.

      Mr. Alfred Graber and Messrs. J. A. & E. V. Bope, for plaintiff in error.

      Mr. Beecher W. Waltermire, for defendant in-error.
   Judgment affirmed.

Shaucic, C. J., Crew and Spear, JJ., concur.


text:
    No. 9789.
    Williamson v. Bennett et al.
    (Decided February 5, 1907)
    Error to Circuit Court of Hamilton County.

      Mr. C. B. Matthews; Mr. ■Miller Outcalt and Mr. J. W. Warrington, for plaintiff in error.

      Mr. Albert Bettinger, for defendants in error.
   Judgment affirmed.

Price, Summers and Spear, JJ., concur.


text:
    No. 9910.
    The Akron Engineering Co. et. al. v. Nevin.
    (Decided February 5, 1907.)
    Error to Circuit Court of Summit County.

      Messrs. Young & Wanamaker and Mr. P. B. Treash, for plaintiffs in error.

      Mr. Rial M. Smith and Messrs. Grant & Sieber, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9911.
    The Akron Engineering Co. et al. v. Nevin.
    (Decided February 5, 1907.)
    Error to Circuit Court of Summit County.

      Messrs. Young & Wanamaker and Mr. P. B. Treash, for plaintiffs in error.

      Mr. Rial M. Smith and Messrs. Grant & Sieber, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9938.
    Paramuthia Lodge, No. 25, Free and Accepted Masons of Athens et al. v. Dana.
    (Decided February 5, 1907.)
    Error to Circuit Court of Athens County.

      Messrs. Grosvenor, Jones & Worstell and Mr. PI. G. Stalder, for plaintiffs in error.

      Messrs. Jewett & Wood; Messrs. Addison, Sinks & Babcock; Messrs. Lents, Fritter & Belcher and Mr. James N. Linton, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9941.
    Leman, Receiver, v. Maclennan.
    (Decided February 5, 1907.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Smith, Beardsely & Morgan, for plaintiff in error.

      Messrs. Hoyt, Dustin & Kelley, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9942.
    The Park National Bank v. The Traveler's Insurance Co.
    .(Decided February 5, 1907.)
    Error to Circuit Court of Cuyahoga County.

      Messrs. Carr, Stearns & Chamberlain, for plaintiff in error.

      Messrs. Hoyt, Dustin & Kelley, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9957.
    The Upson Coal & Mining Co. v. Williams.
    (Decided February 5, 1907.)
    Error to Circuit Court of Perry County.

      Mr. J. B. Jones, for plaintiff in error.

      Mr. T. D. Price and Messrs. Donahue & Spencer, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9965.
    McComas et al. v. Hanlon.
    (Decided February 5, 1907.)
    Error to Circuit Court of Belmont County.

      Messrs. Driggs, Heinlein & Armstrong, for plaintiffs in error.

      Mr. J. M. Lessick and Messrs. Kennon & Kem non, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10157.
    The Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Walcutt, Admr.
    (Decided February 5, 1907.)
    Error to Circuit Court of Miami County.

      Mr. C. B. Heiserman, for plaintiff in error.

      Messrs. Davy & St. John and C. A. Thatcher, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


author: Davis, J.

text:
    The Fire Association of Philadelphia v. Appel, Administrator.

      Disagreement as to amount of loss — Under insurance policy— Agreement between insurer and insured to determine loss— Failure to complete appraisement by action of one party — Other party not bound to new appraisement, when — Conditions of insurance policy — Law of insurance.

    1. When in the event of a disagreement as to the amount of a loss, a fire insurance company and the insured have entered into an agreement to determine the amount of the loss by appraisers, and appraisers are chosen thereunder who also select an umpire, all of whom enter upon the work of appraisement, if such appraisement is brought to a close before completion, or the final award is made invalid by the default of one of the parties to such agreement, the other party is not bound to enter into a new appraisement, there being no stipulation therefor in the policy.
    2. When in such case one of the appraisers withdraws from the appraisement, without the fault of either party, and refuses to proceed with the appraisement, such conduct on his part does not revoke the appraisement; and it is the right and duty of the party who appointed such appraiser to choose another in his place, and where in such case the insurer refuses to choose another appraiser or to proceed further with the appraisement and demands and insists upon a new appraisement instead, such conduct of the insurer amounts to a waiver of the condition in the polity.
    (No. 9955
    Decided February 26, 1907.)
    . Error to the Superior Court of Cincinnati, General Term.
    Emily Appel, who is now deceased, was doing business as a wholesale and retail dealer in millinery in the city of Cincinnati on the 9th day of September, 1901, when a fire occurred, destroying a large amount of her merchandise and property. Among other policies, she held a policy of insurance, issued by the plaintiff in error, which contained, among other things, the following conditions:
    “This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper reduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.”
    “If the fire occur the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further dam-, age, forthwith separate the damaged and undamaged personal property, put it in the best possible order,, make a complete inventory of*the same, stating the quality and. cost of each article and the amount claimed thereon.”
    “In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separate sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss;” * * *
    “And the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.”
    The said Emily Appel gave immediate notice of the loss, as required by the policy, and she and the plaintiff in error immediately entered into negotiations for settlement. Thereupon there arose a disagreement as to the amount of loss, and pursuant to the policy, an agreement for submission to appraisers was entered into between Mrs. Appel and the Insurance Company. They each selected a competent and disinterested appraiser, and the two appraisers so chosen selected a competent and disinterested umpire. Thereupon the appraisers proceeded under the terms of the policy to estimate and appraise the loss. ' While they were in prosecution of the estimate and appraisement of the loss, and when they had more than half completed the same, the appraiser who had been selected by the Insurance Company refused to proceed further, or to conclude the estimate or appraisement of the said loss. This refusal was without any cause or act upon the part of the insured, and was solely on account of differences between him and the other appraiser and the umpire. Thereupon the insured and her attorney also requested the appraiser so selected by the Insurance Company to proceed with the appraisement, which he refused to do. The insured then notified the said appraiser that' the appraisement would proceed at three o’clock in the afternoon of September the 27th, 1901, and notified him to appear and proceed with the appraisement, which he failed to do. The insured, through her attorney, then notified the Insurance Company that the appraiser selected by it had refused to continue and that the remaining appraiser and umpire would proceed on October the 2d, 1901, at one o’clock, with the appraisement; and requested the Insurance Company to have its appraiser or some other appraiser present to continue and conclude the appraisement. The Insurance Company refused to, or at least did not, comply with this request, and, by correspondence, in effect made demand for a new appraisement by new appraisers, which the insured refused to agree to, but stated her willingness to continue and complete the appraisement already entered into. The appraiser appointed by Emily Appel, the insured, acting with the umpire previously appointed by the two appraisers, continued and concluded the estimate and appraisement and made an award in writing and signed the same, and thereafter, and within sixty days after the fire, the insured made due proof of loss without, however, attaching any award as made by the appraisers. The Insurance Company objected to the proof of loss because there should have been attached thereto an award under a new appraisement. 'The amount of the direct loss occasioned to the property by the fire is shown by the award, and also by the evidence included in the record, to have been $9,725.08. The said Emily Appel having in the meantime died, Harry Appel was appointed administrator with the will annexed of her estate, and the Insurance Company having refused to pay the amount of the loss, the said administrator filed a petition against the company, setting up in usual form the insurance and damage by fire within the terms of the policy, ownership of the property, proof of loss and performance on her part of the conditions and requirements of the policy, specifically setting up, however, that there was a direct loss and damage by fire to the said property insured under the policies to the amount of $9,725.08, and specifically setting up the demand for an ap-. praisement on the part of the Insurance Company, the appointment of the appraisers and umpire, the refusal of the appraiser appointed by the Insurance Company to proceed, the failure and refusal of the Insurance Company to appoint another appraiser in his place, and the further proceedings of the appraiser appointed by Mrs. Appel and the umpire, and the making of an award showing the direct loss and damage amounting to $9,725.08, and prayed judgment against the Insurance Company for its pro rata amount of the loss, there being several concurrent policies on the said property. Issue was joined upon these averments, and the case was submitted to Hon. Rufus B. Smith, as referee, for the trial of the issues both of law and fact arising thereon, and upon the report by the referee the facts were found as above stated, and the referee found as conclusions of law as follows: “1. That one-of two results necessarily followed when the appraiser appointed by the defendant refused to continue, and the defendant refused to appoint another appraiser in his place; either the appraiser appointed by the plaintiff and the umpire had to complete it, as was done, or the plaintiff was justified in regarding the right'to an appraisement under the policy as having been abandoned by the defendant, and the plaintiff was therefore entitled to sue for and have the amount of the same fixed by the court. 2. That the defendant was not entitled to a new appraisement, and that therefore its objection to the proof of loss, as made, is not well taken; and, as it made no other objection to the proof of loss, it has thereby waived all other objections. 3. That the said plaintiff is entitled to recover from the said defendant the sum of $555.72, with interest from the 10th day of December, 1901.” The report of the referee was subsequently approved and confirmed by the Superior Court, and judgment rendered against the Insurance Company for the amount found due. Thereupon the case was taken on error to the General Term of the Superior Court, in which court the .judgment of the court in special term was affirmed. The cause is now prosecuted in this court on error to reverse the said judgments of the court below.

      Messrs. Cabell & Kohl and Messrs. Paxton & Warrington, for plaintiff in error.

      Mr. Frank Seinsheimer and Mr. John R. Sayler," for defendant in error.
   Davis, J.

The counsel on both sides of this case have discussed several propositions which relate to the validity of the award,- which was made by one of the appraisers and the umpire, and to the insufficiency of the proof of loss, there being no award attached thereto as required by the terms of the policy. As we view the case, these questions aré not necessarily involved. The real question is whether or not the insured was, by the conduct of the insurer, absolved from the obligation of the precedent condition relating to appraisal as written in the policy.

It is the clearly announced doctrine of this court that provisions such as are contained in this policy constitute a condition precedent, which imposes an obligation on the insured, in the event of disagreement as to the amount of loss, to procure an award or ascertainment of the loss by appraisers, or to show a legal excuse therefor, before he can maintain a suit on the noljcv to recover the loss. Phoenix Ins. Co. v. Carnahan.. 63 Ohio St., 258; Graham et al. v. German-American Ins. Co., 75 Ohio St., 374. Do the conceded facts here show a legal excuse for thé plaintiff below, in not strictly performing on her part, the stipulations of the contract which are thus made a condition precedent? Do the undisputed facts justify her in proceeding to recover the loss in a suit upon the policy, instead of first fixing the amount of the loss by an appraisal and .then proceeding to recover upon the award? The contract did not require the insured to perform this condition more than once; and therefore if she entered upon its performance and was carrying it out in good faith, she can not be held to a full and complete performance, if that consummation was prevented by the act of the adverse party.

“The law is settled that where a precedent condition was to have been performed by the plaintiff, but its performance has been prevented by the defendant, such prevention may be averred as an excuse for. the non-performance.” Ruble v. Massey, 2 Ind., 636, citing Hotham et al. v. The East India Company, 1 T. R., 638, and Heard, Assignee, v. Wadham, Exr., 1 East, 619. So also in the leading case of Fleming v. Gilbert, 3 Johns., 528, it was said: “The plaintiff’s conduct can be viewed in no other light than as a waiver of a compliance with the condition of the bond. It is a sound principle that he who prevents a thing being done shall not avail himself of the non-performance he has occasioned.” Citations might be easily multiplied upon this point; but we quote one more terse statement of the law: “No party can insist upon a condition precedent when its non-performance has been caused by himself. Such non-performance would not prevent the vesting of an estate, nor can it prevent the accruing of a right, or its enforcement by action. It, in effect, amounts to a waiver.” Mayor of New York v. Butler, 1 Barb., 337, 338.

It does not appear that the Insurance Company was at fault in the refusal of the appraiser, chosen by it, to proceed with the appraisal; and we may assume that it was not in any way responsible for his conduct. But his refusal to go on with the appraisement was not the thing which prevented the insured from carrying out her agreements in respect to appraisal of the loss. That was the result solely of the refusal of the insurer to proceed with the appraisement. The insurer not only refused to select another appraiser to act in the place of the refractory appraiser, but it refused to proceed at all, except- upon a new submission to wholly different appraisers and a new umpire. Unless the Company had the strict legal right to-do this, and unless this conduct on its part was not a waiver of strict compliance with the condition precedent, the counsel for the plaintiff in error are wholly wrong in their contention that the insurer was without-fault in thus refusing to further participate in the appraisal.

As we said in Insurance Co. v. Carnahan, 63 Ohio St., 258, 273, “good faith is required of both parties in the conduct of such an appraisement when once entered upon;” and this implies that neither party would have the right to abandon the appraisement, or to obstruct it in any way, without just cause, otherwise the party so doing might obtain an unfair advantage over the other. Morse on Arbitration and Award, 156. For this reason, one of the parties can not revoke, or annul the agreement of submission- and have a new appraisement when there has been no fraud or unfairness on the part of the other. I11 this case, neither the policy nor the agreement of submission, which is in conformity with the policy, requires-that both of the appraisers and the umpire must concur in the award. It is true that the umpire could act only in case of difference, but the provision of both policy and submission is that the-award “of any two” shall determine the amount of the loss. This can only mean that the two appraisers may make the award, or that when they do not agree, either of the appraisers and the umpire may do so. Hence where the Insurance Company’s appraiser withdrew, neither party appearing to have been in fault, his withdrawal did not ipso facto revoke the submission to appraisement; and when the insured insisted upon continuing the appraisement and requested the insurer to select another appraiser and go on with the appraisement, and the latter refused to do so, and demanded a new appraisement, it put itself irretrievably in the wrong, because the insurer thereby made it impossible for the insured to comply with the condition precedent as it was written in the contract of insurance. The policy requires the insured to do her duty under that condition only once. Without fault on her part, it was sought to compel her to twice perform her obligation to submit the controversy to arbitration, or it might be as many times as the insurer might be dissatisfied with the progress of the appraisement. But, conversely,. when one of the parties to the agreement to appraise, acts in bad faith, or, which is tantamount thereto, unreasonably refuses to carry out the agreement, the other party is absolved from compliance therewith; and so, as held in Uhrig v. Williamsburg City Fire Ins. Co., 101 N. Y., 362,, “When one arbitration fails from default of one of the parties, the other is not bound to enter into a new arbitration agreement.”. See also, 4 Joyce on Ins., sec. 3255, and American Central Ins. Co. et al. v. Landau, 62 N. J. Eq., 73; O’Rourke v. German Ins. Co., of Freeport, Ill., 104 N. W. Rep. (Minn.), 900.

For the reasons which we have stated, and upon the authorities which we have cited, we think it entirely clear that the defendant in error has shown a legal excuse for non-performance of the condition precedent, in conduct of the insurer which amounts to a waiver of the condition; and that the defendant in error was thereby entitled to sue for the loss, under the policy, and have the amount thereof ascertained and adjudged by the court, as was done.

Counsel for the plaintiff in error have cited, among others of the same import, a recent case in which it is held that a mere attempt to have the loss determined by arbitration, which failed without the fault or misconduct of either party, did not constitute a compliance with the condition, and did not entitle the assured, in the absence of a waiver thereof, to sue on the policy without compliance with a further demand for new arbitration. Grady v. Home Fire & Marine Ins. Co. (R. I.), 63 Atl., 173. If we have not made it apparent that in this instance the arbitration did not fail without the fault or misconduct of either of the parties, but on the contrary by the fault of the plaintiff in error, then the foregoing discussion has been in vain. The judgment of the Superior Court in General Term is

Affirmed.

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