author: Price, J.

text:
    Beverstock, a Taxpayer, v. The Board of Education et al.

      School board may pay teachers — For attendance on county institute, when — Section 4091, Revised Statutes — School laws— Teachers’ institutes.

    Where a board of education has employed teachers for the public schools of the district for the school year next ensuing thereafter, and such teachers, during vacation and after their employment, attend the county institute during the week it is held in the same county, said board is authorized by the provisions of Section 4091, Revised Statutes, to pay them for the institute week as an addition to their first month’s salary as . fixed by the terms of their employment, and at the same rate, on presentation of the certificates prescribed by said section.
    (No. 9827
    Decided October 16, 1906.)
    Error to the Circuit Court of Wood County.
    On the 24th day of August, 1905, the plaintiff in error, as a taxpayer resident of the city of Bowling Green, and also resident of the Bowling Green school district of Wood county, Ohio, filed his petition in the court of common pleas of that county, in which he asked an injunction against said board of education, forbidding it to pay certain persons who had been employed to teach in its schools, for the time they occupied in attending the county institutes, and forbidding the clerk of said board issuing an order for their payment for said period.
    The more particular averments of the petition are, that annually, in the month of August, there is held in Wood county, a county institute, at which a great many of the teachers employed throughout the county attend for the purpose of more efficiently preparing themselves for the occupation of a teacher; that said county institutes are usually held from the 20th day of August to the 25th day of the same month.
    Prior to the 20th day of August each year, the said board of education employs all teachers, superintendent and principals necessary for the instruction of the pupils of the schools in said district, for the year beginning on the first Monday in September following the holding of said county institute in August; and that on the 21st day of August, 1905, the said board of education authorized its clerk to issue an order to all teachers who present certificates of attendance at the institute held August 21 to August 25, 1905, for the payment of such sum due them for one week’s pay, according to the rate for which said board hired them for the ensuing year, and. also authorized the clerk to issue orders to such of the teachers as presented certificates for attendance at the institute held in August, 1904.
    The petition further alleges that at the time of holding said county institute, the schools in said district were not in session and had not been in session for more than two months prior thereto, and for the year 1904 did not convene for about two weeks thereafter, and will not, for .the year 1905, convene for about two weeks thereafter, and that said schools, within said district, were not dismissed for the purpose of attending such institute, and that all the teachers who are proposed to be paid by the order of the board of education so passed on August '21, 1905, were, at the time of attending said institute, duly and regularly employed as teachers, by the board, both during the time of the institute held in August, 1904, and during the time of the institute being held in August, 1905.
    It is alleged that the payment of said teachers so authorized is illegal and contrary to law, and is a diversion and misappropriation of the funds raised by taxation for the purpose of conducting the schools of said district, and that, unless restrained by the court, said funds will be unlawfully withdrawn from the treasury and so diverted and misappropriated, to the irreparable damage, loss and injury of this and other taxpayers of said district. This action is brought on behalf of the plaintiff as a taxpayer of said district and of the other taxpayers of said district, and that by the action of said board there will be unlawfully paid out of the funds so raised by taxation, about $800. A temporary injunction is prayed against said acts of the board and its clerk, and that on final hearing the injunction be made perpetual.
    The defendants demurred generally to the petition, and the court overruled the demurrer and made the injunction perpetual.
    On error to the circuit court, that court sustained the demurrer, dissolved the injunction and dismissed the petition.
    Error is prosecuted in this court to reverse the judgment of the circuit court.

      Mr. Edward Sever stock, for plaintiff in error.

      Mr. J. W. Grabiel and Mr. James 0. Troup, for defendants in error.
   Price, J.

The decision of the present controversy depends upon a proper understanding of Section 4091, Revised Statutes, which provides: “All teachers of the public schools within any county in which a county institute is held may dismiss their schools for one week for the purpose of attending such institute, and when such institute is held while the schools are in session the boards of education of all school districts are required to pay the teachers of their respective districts their regular salary for the week they attend the institute upon the teachers presenting a certificate of full regular daily attendance at said institute signed by the president and secretary thereof; the same to be paid as an addition to the first month’s salary after said institute by the board of education by which said teacher is then employed, or in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes.”

This section is a part of our school laws, and should be construed with reference to the part it is to perform in the common school system of the state. At first the provision was not so broad, for we find that in Section 117 of the act entitled, VAn act for the reorganization and maintenance of common schools,” passed May 1, 1873, the General Assembly said that: “Any teacher in any public school is hereby authorized to dismiss the school under his or her charge for the week in which is held the county teachers’ institute, for the purpose of attending the same, and such, teacher shall not forfeit his or her pay for such week; provided, such teacher shall deposit with the clerk of the board a certificate from the secretary of the institute that he or she has been present at such institute for not less than four days; * * * See 70 O. L., p. 227. With some changes in phraseology pertaining to school districts like the one here, this section was carried into the revision of our statutes in 1880 as Section 4091.

It is not important to search out what if any changes were made on this subject after the revision and prior to the present school code enacted April 25, 1904. The section under consideration is part of that code, and it is sufficient to say that it was clearly the purpose of the present provision to enlarge the former and extend its benefits to other classes of teachers, who are not in charge of schools when the institute is being held. As to such teachers who dismiss schools that are in session, they not only do not forfeit their pay for such week, as provided in the former law, but in such cases the boards are required to pay them their regular salary for the week they attend the institute.

But the present law goes further and attempts, at least, to provide for certain other teachers who are not in charge of schools while the institute is being held, and this requires a consideration of the latter part of the section which reads: “The same to be paid as an addition to the first month’s salary after said institute by the board of education by which said teacher is then employed, or in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes.”

In the case at bar, the teachers of the Bowling Green school district had been employed for the ensuing school year, prior to the meeting of the institute, which was held from the 20th to the 25th of August. But the schools were not then in session, and their terms did not begin until the first Monday in September thereafter. Therefore, their case is governed, if at all, by that part of the section last quoted.

It is urged,for plaintiff in error that its language is vague and uncertain, and so much so, that it is not susceptible of reasonable interpretation, and therefore furnishes no authority to the board of education to make the allowance to the teachers complained of in the petition. That is the equivalent of asserting that that part of the section is void for uncertainty.

This view does not meet with our approval. It is true that the provision is imperfectly, and even bunglingly drawn, ■ and exhibits negligence and perhaps ignorance in its phraseology, but these marks should not defeat the operation of the statute, if we can, by the fair use of its language, arrive at the true legislative purpose. There are no contradictory or conflicting terms used, and the omission of clearer words, even relating to substantial matters, will not render the provision void or invalid. It is the duty of the court when called upon to deal with the legislation of a coordinate department of our government, to so construe a statute, if possible, as to give it a sensible effect and make it of binding force. A statute can not be held void for uncertainty, if any reasonable and practical construction can be given to its language. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible of different interpretations, will not render it nugatory. Doubts as to its proper construction will not justify us in disregarding it. It is the bounden duty of courts to endeavor by every rule of construction to ascertain the meaning of, and give full force and effect to, every enactment of the General Assembly not obnoxious to constitutional prohibition. This proposition is advanced and upheld in The Pennsylvania Co. v. State, 142 Ind., 428-434; St. Louis Dalles Improvement Co. v. Nelson Lumber Co., 43 Minn., 130-132; Lewis’ Sutherland Statutory Construction, Volume I, Section 86, “But if, after exhausting every rule of construction, no sensible meaning can be given to the statute, or, if it is so incomplete that it can not be carried into effect, it must be pronounced inoperative.”

This court has often applied similar rules. See Lessee of Cochran’s Heirs v. Loring, 17 Ohio 409; State, ex rel., v. Commissioners, 35 Ohio St., 458, where it is held that an act will not be declared void for uncertainty, if by resort to the recognized aids in the construction of statutes, it is possible to ascertain its meaning. And in Gordon v. State, 46 Ohio St., 607-27, it is said that uncertainty will not render a statute void if possible of execution.

Guided by these rules, we must determine, if possible, what the provision contained in the latter part of Section 4091 means. We think the task is not difficult of performance. In the first part, where the teachers dismiss their schools for one week for the purpose of attending an institute, and they' do attend such institute during that week, the boards of education are required to pay the teachers their regular salary for the week upon presentation of the proper certificate of their attendance at the institute. In other words, the salaries continue during that week. Then it is said: “The same to be paid as an addition to the first month’s salary after said institute by the board of education by which said teacher is then employed, or, in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes.” “The same to be paid” — that is, salary at the same rate, is to be paid for the institute week to the teachers who then are under employment for the ensuing school year, that they will receive after service under such employment begins, and this rate of salary is to be paid as an addition to the first month’s salary after the institute closes. Or, to put it in other words, the teacher shall be paid for the week spent at the institute on the basis of the salary agreed upon for teaching in the schools thereafter, and this shall be paid as an addition to the first month’s salary earned after said institute.

There can be no difficulty in ascertaining the amount to be paid in the present case, because the teachers, prior to the holding of the institute, had been employed for the ensuing school year, and, of course, the terms of compensation had been agreed upon. This being the evident purpose of the Legislature attempted to be expressed in the language quoted, there can be no difficulty in its enforcement. The same observation applies to the payment of the teachers for the institute week of 1904. The facts for that year are the same that pertain to 1905,- for that was the first time the law became applicable in that district after its passage.

The same construction of language will control cases where a teacher is not under employment at the time the institute is held. In his case, he is to be paid by the board next employing him after such institute, provided the term of said employment begins within three months after such institute closes. When he so becomes employed, his rate of compensation is fixed, and on presentation of the proper certificate, showing that he had attended the preceding institute for a week, his compensation for. that week is ascertainable and his right to receive it complete, if his term of employment begins within three months after said institute closes.

It seems the board of education, defendant in error, readily and easily comprehended this statute and was proceeding to comply with it, when a doubting Thomas appealed to the court to prevent it. We have nothing to do with the expediency of the law, but it is our duty to enforce it if it is susceptible of enforcement, and it certainly is. The motive and intent of the Legislature is discernible in the language employed when the whole section is read and considered together, and it was to promote the thoroughness and efficiency of the teachers in our schools, and through them the successful- advancement of the schools themselves.

The case was properly decided by the circuit court and its judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Shauck, C. J.

license: Public Domain

text:
    The Cleveland Punch & Shear Works Company v. The Consumers Carbon Company.

      Action to recover damages — For failure of vendor to deliver machinery — Defense that plant was not ready for machinery— Question of injury for breach of contract — Measure of damages —Implied warranty in contract — Law of contracts.

    1. In an action to recover damages for failure of the vendor to deliver machinery according to the terms of his contract it is proper to allege that the machinery was intended to be used in a manufacturing plant in process of erection, and that the vendor was so informed, such facts making it appear that the loss of the use of the plant was, within the contemplation of the parties, an injury to result from a breach of the contract by the vendor, and, therefore, a proper element of recovery.
    2. When, in a contract for the sale of machinery, its power and capacity are expressly described,' there is no implied warranty that it will be adequate to the purpose for which it is to be itsed, though that purpose is known by the vendor at the time of making the contract.
    (No. 9817
    Decided October 16, 1906.)
    Error to the Circuit Court of Fairfield County.
    Plaintiff in error is a corporation engaged in the manufacturing of machinery at Cleveland, and the defendant is a corporation formed for the purpose of manufacturing at Lancaster carbons such as are used in arc electric lights. The contractural relations of the parties out of which the present controversy arose were founded upon the following proposition made by the plaintiff and accepted by the defendant:

      “Cleveland, Ohio, August 25, 1900.
    The Consumers Carbon Co., Lancaster, Ohio:

      Gentlemen — We propose to furnish you three of our Hydraulic Upright Mold Presses, as shown in our blue prints, which you now have, for $850.00 each, making the item of presses $2,-
    550.00, and one of our Six Plunger Horizontal Pumps, as shown on blue prints which you have, $975.00, and one Accumulator of capacity of power and dimensions to take care of this set of pumps, for $385.00, making a total of $3,-910.00.
    “We are to complete the entire above-mentioned machinery ready for shipment in three months. Two of three presses (together with the Pumps and Accumulators) we agree to have ready in seventy-five days; the Accumulator, Pump and one Press in sixty days.
    “We guarantee the above machinery to have capacity to make 336 impressions per hour on each press, and of ample strength to stand the pressure of 6,000 pounds per square inch. It is understood that the effective strokes of these presses is to be one inch.
    “Terms of payment to be one-half of the total amount upon receipt of the machinery, and the balance in 60 days thereafter. It is understood that this proposition is accepted, and thanking you for the same, we remain, etc.”
    The defendant had previously informed the plaintiff that it was engaged in the erection of a large plant for the prosecution of the business for which it was formed, and had solicited propositions to furnish the machinery which it required.

      After the acceptance of the plaintiff’s proposition, the machinery was sent to the defendant and received by it, and the sum of $2,000.00 was paid on the contract price before there was an opportunity to test the- machinery. A dispute having arisen as to the quality of the machinery and its compliance with the contract, the defendant refused payment of the balance of the purchase price, and suit was brought by the plaintiff. The first cause of action counted upon the accepted proposal, alleged generally and specifically compliance by the plaintiff and the failure of the defendant to pay the balance of $1,910.00. There was a second cause of action which needs not to be stated, as it gives rise to no question which is of present importance. Pleading to the first cause of action, the defendant admitted the making of the contract, the delivery of the machinery and the payment of $2,000.00 as alleged in the petition, but denied that the machinery was of the quality, power or capacity required by the contract, and further alleged that it was unfit for use and that the payment had been made before the defendant could test the machinery and before it was advised of its worthless character. By way of cross-petition, the defendant made the following allegations:
    “At the date of the agreement named in the petition and evidenced by Exhibit ‘A,’ the defendant was engaged in constructing and equipping a factory designed for the manufacture of carbons such as are used in arc electric lights, arid was investing a large amount of capital in grounds and buildings and the purchase of suitable machinery for said purpose, and had employed at large expense a sufficient number of expert operatives, and also a clerical force necessary to conducting said business of manufacturing and selling said carbons in large quantities, all of which was at the time well known to the plaintiff. And at said time the defendant further required certain presses and pumps and like machinery for the effective manufacture of said carbons, and without which said factory could not be operated, and the plaintiff professed to be able to manufacture and supply such machinery to defendant for said purpose, and said written agreement was thereupon made between said parties, the plaintiff at the time knowing that defendant’s said plant was dependent upon the furnishing of said machinery to be put in operation. And plaintiff, professing to comply with said agreement, sent certain items of machinery to defendant, which it represented to defendant would comply with’ said terms, viz.: three presses, one pump and one accumulator; and defendant, relying upon plaintiff’s representations, placed the same in position and undertook to operate the same arid expended large sums of money in such attempts, but in fact said machinery was wholly unfit for said purpose and worthless; said pump was wholly ineffective and was not made according to said blue print; said accumulator was likewise unfit for said purpose, and was of imperfect material and manufacture; said machinery did not have the capacity to make 336 impressions per hour on each press, nor half that number, and was not of ample strength to stand the -pressure of 6,000 pounds per square inch, and said accumulator was not of capacity of power and dimensions to take care of said pumps. And defendant was put to great expense of time and labor and money in setting up said machinery, and fully testing the same, and was induced by plaintiff’s representations aforesaid to pay and did pay the sum of $2,000.00 to plaintiff upon the price of the same before said machinery was thus tested, and by the failure of said machinery as aforesaid defendant’s said plant could not be fully operated, and defendant lost in large part the use and service thereof; all to the injury of this defendant in the sum of twenty thousand dollars, for which as damages the defendant now prays judgment against said plaintiff.”
    The plaintiff moved the court to strike from the cross-petition the following allegations:
    First: “The defendant was engaged in constructing and equipping a factory designed for the manufacture of carbons such as are used in arc electric lights, and was investing a large amount of capital in grounds and buildings and the purchase of suitable machinery for said purpose, and had employed at large expense a sufficient number of expert operatives, and also a clerical force necessary to conducting said business of manufacturing and selling said carbons in large quantities, all of which was at the time well known to the plaintiff.”
    Second: “And at said time the defendant further required certain presses, pumps and like machinery for the effective manufacture of said carbons and without which said factory could not be operated, and the plaintiff professed to be able to manufacture and supply such machinery to defendant for said purpose, and said written agreement was thereupon made between said parties, the plaintiff at the time knowing that defendant’s said plant was dependent upon the furnishing of said machinery to be put in operation.”
    Third: “And plaintiff professing to comply with said agreement sent certain items of machinery to defendant which it represented to defendant would comply with said terms, viz.: three presses, one pump and one accumulator, and defendant relying upon plaintiff’s representations, placed the same in position and undertook to operate the same and expended large sums of money in such attempt.”
    Fourth: “Accumulator was likewise unfit for said purpose.”
    Fifth: “And defendant was put to great expense of time, labor and money in setting up said machinery and fully testing the same.”
    Sixth: “And by the failure of said machinery as aforesaid, defendant’s said plant could not be fully operated and defendant lost in large part the use and service thereof.”
    This motion was overruled and the plaintiff excepted. Plaintiff thereupon by reply denied the new matter alleged in the cross-petition. On the trial evidence was offered to show that the machinery was defectively constructed and of defective material, and that it lacked the power and capacity required by the express terms of the contract. Against the objection of the plaintiff the defendant was permitted to show that it had informed the plaintiff of the nature and extent of the plant it was constructing, of the expense it was incurring therein and in the employment of workingmen and salesmen to operate it, and to the extent to which the plant was idle in consequence of the defects of the machinery, and the plaintiff’s failure to correct them. In the charge the jury was instructed to regard the loss of the use of the plant resulting from the plaintiff’s failure to comply with its contract as a proper subject for compensation.
    The plaintiff in writing requested several instructions to the jury, among them the following:
    “The first cause of action in the petition of the plaintiff is founded upon a written contract, a copy of which is attached to the petition. The execution of this agreement 'is admitted by the defendant, and there is no claim here asking to have the same set aside or reformed, and the said agreement is binding upon both parties to it. But it will be an implied term in the said contract that the said goods shall be' free from defect, either in material or workmanship.”
    This the court refused to give for the reason, as stated in the record, that said requests were handed to the court and made after two arguments had been made in the case. With reference to the defendant’s rights to recovery on its cross-petition the court charged: “If the machinery was defective and worthless, as the cross-petition states, and ineffective as a part of the equipment of this plant, and further if the plaintiff sold it to the defendant for the express and special pum. pose of equipping this carbon plant and understood it was for that purpose as alleged, and it was bought for that purpose, and it failed to do its work in manner and form as alleged in the cross-petition, then defendant is entitled to dam-

      The jury found for the defendant on its cross-petition in the sum of $4,000.00, and that there was due it a balance of $3,377.71. Judgment was rendered on the verdict and a motion for a new trial was overruled. On petition in error to the circuit court, the judgment was affirmed.

      Messrs. Carpenter, Young & Stocker;'Mr. J. S. Sites and Mr. C. W. McCleery, for plaintiff in error.
    The contract was not for the manufacture of machinery generally to satisfy a required purpose, but for the manufacture and delivery of specific articles- of machinery of specified sizes and dimensions, and this was the essential matter of the contract.
    The following authorities are relied upon: Leake on Contracts, 404; Hadley et al. v. Baxendale et al., 9 Exch., 341; Chanter v. Hopkins, 4 M. & W., 399; Ollivant v. Bayley, 5 Q. B., 288; Brown v. Edgington, 2 M. & G., 279; Jones et al. v. Just, L. R., 3 Q. B., 197; Jones v. Bright et al., 5 Bing., 533; Goulds et al. v. Brophy, 42 Minn., 109; McGraw et al. v. Fletcher, 35 Mich., 104; Shepard v. Gilroy, 46 Ia., 193; Case Plow Works v. Niles et al., 90 Wis., 590; Seitz v. Brewers Refrigerating Machine Co., 141 U. S., 510; Curran & Wolfe v. Hauser, Kramer & Co., 6 N. P., 281; 51 Ohio St., 587; Hauser, Kramer & Co. v. Curran, 61 Ohio St., 641; I Sedgwick on Damages, 8th edition, Sec. 159; Smeed v. Foord, 1 E. & E., 602; British Columbia, etc., Lumber & S. M. Co. v. Nettleship, L. R., 3 C. P., 499; Booth v. Spuyten-Duyvil R. M. Co., 60 N. Y., 487; Clark v. Moore et al., 3 Mich., 55-61; Champion

      Ice Manufacturing & Cold Storage Co. v. Pennsylvania Iron Works Co., 68 Ohio St., 229.
    . We contend that the guaranties expressed in the contract are descriptive of the machinery, and have no other or more enlarged effect than dimensions or quality would have. Certain it is that the language of the contract does not extend the guaranties to the use of the machinery in defendant’s plant or in any particular place, or to any particular use, and inasmuch as the plaintiff did not sell, or agree to provide a mode or principle to effect the defendant’s purpose, and the guaranties are limited in their application exclusively to the operation of the machinery as an entirety, how could the plaintiff be held to have contemplated, or reasonably be supposed to have been able to foresee, the special damages claimed by defendant? In order to recover, defendant must establish such a fact. The contract being silent as to defendant’s purpose, it, therefore, must prove it by parole testimony, and inasmuch as the contract is for certain definitely described articles, the law will not allow this. The rule that parole testimony may not be introduced to vary or add to the terms, certainly obtains, and is applicable here. De Witt v. Berry, 134 U. S., 306; McCormick & Bro. v. Vanatta, 43 Ia., 389; Frohreich v. Gammon, 28 Minn., 481, 256; Wilson v. Reedy et al., 32 Minn., 256; Case Threshing-Machine Co. v. Haven, 65 Ia., 359; 2 Sedgwick, Section 767.
    We contend further that before parole testimony is admissible to show the purpose for which defendant purchased the machinery, there must be something in the terms of the contract which shows an intention on the plaintiff’s part to assume an enlarged engagement, and knowledge must be brought home to plaintiff to such an extent by the terms of the instrument as to show that the defendant’s purpose must have formed the basis of the contract. In support thereof, reference is made to the case of Clark v. Moore et al., 3 Mich., 55, cited with approval in 1 Sedgwick on Damages, 8th Edition, Section 159.

      Mr. W. K. Martin and Mr. M. A. Daugherty, for defendant in error.
    The plaintiff seeks to limit the defendant’s damages to the difference between the value of the machinery actually furnished and the value of the machinery contracted to be furnished or contract price.
    The defendant claims no such rule would afford it compensation and that the plaintiff’s contention on that question is manifestly and radically wrong. The whole argument of counsel for plaintiff falls because:
    First. It assumes that the contract provides only and solely for the manufacture and sale of certain well-known and definitely described articles, while in truth and in fact the contract is for the manufacture and sale by the plaintiff to defendant of certain stipulated machinery yet to be made by the plaintiff and not then in existence, machinery not well known, but almost wholly unknown, and which was to be made in accordance with blue prints and models designed by the plaintiff to answer the specific purpose for which the defendant, before and at the time the contract was entered into,- advised the plaintiff it required and intended to use the same.
    Second. The contract contains an express warranty so comprehensive in its terms that it clearly covers every item of damage asserted by defendant in its cross-petition and allowed by the court in its charge.
    Third. If there was no express warranty in the contract, still, in this state an implied undertaking would be inferred that the machinery was reasonably fitted for the intended purpose.
    The defendant contended for three items of damage and the charge of the court carefully limited its recovery to them and they are:
    1st. The recovery back of the $2,000 it paid for the worthless machinery before it was tested.
    2d. The expenses it incurred and wages it paid out while attempting to operate the worthless machinery.
    3d. The loss of the use of its factory occasioned by the same cause.
    No testimony was received that was not responsive to these three elements of damage, and therefore no incompetent testimony was admitted.
    All the cases cited by counsel for plaintiff in error relate to the purchase and sale of articles in the open market or so well known that they would be so classified. But no one can carefully read the contract and warranty involved in this' case and not see the difference. This was a contract for the manufacture and sale of certain machinery according to designs of the plaintiff with express warranty to do certain things.
    The plaintiff not only knew the purpose for which the machinery was purchased by the defendant, but it Undertook by its special contract to manufacture the machinery to answer that purpose. In other words, it undertook to equip the defendant’s factory with machinery of its (the plaintiff’s) design and construction. The plaintiff can not and does not attempt to avoid the legal effect of notice of the purposes for which the machinery was intended and purchased by the defendant. 1 Sutherland on Damages, Sections 79 and 90.
    I11 this case the plaintiff knew the special circumstances under which the contract was made, and the special purpose for which the machinery was purchased and intended, the same having been communicated to the plaintiff both verbally and in writing at and before the contract was made; and the plaintiff at the same time and in the same manner was advised in no uncertain language that the operation of the defendant’s plant was and would he wholly dependent upon the successful working of the machinery contracted for. This brings this case clearly within the rule laid down' in Hadley v. Baxendale, 9 Exch., 353, and the plaintiff must therefore be held answerable for the damages claimed in defendant’s cross-petition.
    The measure of damages for breach of warranty is the difference between the actual value of the defective articles, and their value had they been in accordance with the warranties — to which may be added compensation for the trouble and expense suffered, and any other special damages. Beach, Modern Law of Contracts, Volume I, Section-291; Am. & Eng. Ency. of Law (2d Ed.), Volume VIII, p. 637.

      Defendant alleges that at the date of the contract, it was building' and equipping a certain factory, and that it required certain machinery of the kind described in the written contract, in order to put and maintain the plant in operation; and that plaintiff, well knowing this, offered and engaged to furnish this described machinery for the agreed price and within a certain time; and that the warranty contained in the contract was made with special reference to this use and this situation; and that the failure of plaintiff to deliver the described machinery and thus make good its warranty, caused the enforced idleness of the factory for a considerable period, as plaintiff all the time -well knew that it must. The defendant’s claim is that the value to it, at this time, and the described machinery, must be computed with reference to its use as a part of this factory, as an essential factor in this integral establishment, and that defendant’s loss because it was deprived of the stipulated machinery, must be considered with reference to this relation. This “is to be considered in arriving at the rental value, though not constituting the measure of damages.”
    It will be observed that this claim does not seek to vary the terms of the written contract; nor does it add any implied warranty to the express one contained in the instrument; nor does it impose any obligation upon plaintiff other than those which the contract distinctly defines.
    In such a case as this it is proper to look into the situation of the parties with respect to which the contract was made, in só far as this was known to both parties at the time, and thus to learn the use and purpose for which the machines were purchased and to which they were to be applied. By this rule such damages will be ascertained as must have been within the contemplation of the parties when the contract was executed. No hardship is thereby inflicted upon either party; because both are held to such damages only as both could foresee as the natural result of a breach of the contract.
    The parties, therefore, left the subject of damages to legal construction and interpretation. In this view of the matter, the law becomes a part of the contract, and this, of course, applies quite as much to the law of special damages as to the law of general or of nominal damages.
    It can not be said that the allowance 'of damages for a breach of a written, contract changes the'contract because it is silent as to damages; that thereby the written instrument is altered or enlarged by parol. .And this can no more be said in case the damages are nominal or are general in character.
    In the great majority of cases the parties to a written contract make no mention in it of the damages to be allowed for a breach of it, and most of the leading cases upon special damages arise from such contract.
    As has been stated, the claim made by the cross-petition is founded upon the express warranties contained in the written contract. If, however, there were no express warranty in the written contract, yet there would be an implied warranty that the machinery would be fit for the purpose intended by the parties, and for which blue prints were designed by plaintiff. The machinery was not purchased in the open market and visible to the purchaser. It was yet to be manufactured and the contract was executory. In the absence therefore of an express warranty, the law would imply one as above indicated. Rogers & Co. v. Niles & Co., 11 Ohio St., 48; Byers et al. v. Chapin, 28 Ohio St., 300; Hooglund, v. Dayton, 39 Ohio St., 671; Curran & Wolf v. Hauser, Kramer & Co., 6 N. P., 284.
    Since the trial of this case in the common pleas court, this court has announced ah opinion which subsequently covers the present. The Champion Ice Manufacturing & Cold Storage Co. v. The Pennsylvania Iron Works Co., 68 Ohio St., 229:
    Where an article, desired for a specific purpose, known to the vendor, is sold with a warranty that it is of a certain necessary quality, which it is not, there may be a recovery not simply for the difference between the value of the article sold and its value as represented; but for any damage which naturally results from the contemplated use of the article sold.
    According to the principle stated, evidence of knowledge of special circumstances tending to enhance the damages in actions for damages for breach of contract is always deemed to be relevant: Am. & Eng. Ency. of Law, Volume VIII, p. 586 (2d Ed.) ; 1 Sedgwick on Damages, 128 (8th Ed.); 2 Sutherland on Damages, 403; Leonard et al. v. New York, etc., Telegraph Co., 41 N. Y., 544; Maryland Ice Co. v. Arctic Ice Machine Manufacturing Co., 29 Atl. Rep., 69; Actien-Gesellschafft v. Armstrong, L. R., 9 Q. B., 473; Kramer & Son v. Messner & Co., 101 Ia., 88; Goodloe et al. v. Rogers, 9 La. Ann., 273;
      Richardson et al. v. Chynoweth, 26 Wis., 656; Hammer v. Schoenfelder, 47 Wis., 455; Hutchinson Manufacturing Co. v. Pinch, 91 Mich., 156; Liman v. Pennsylvania Railroad Co., 24 N. Y. Supp., 824; Poposkey v. Munkwitz, 32 N. W., 35; Logemann v. Pauly, 76 N. W., 604; Brown v. Edgington, 2 M. & G., 279; Bell v. Reynolds & Lee, 78 Ala., 511.
   Shauck, C. J.

It is urged that the motion to strike from the cross-petition the averments recited. in the statement of the case should have been sustained because the plaintiff was bound only as by the terms of the accepted proposal it had agreed to be bound. The view urged by counsel for plaintiff is that by the terms of the written contract the vendor was bound to furnish, and the purchaser to accept, machinery of the character and capacity which were definitely stated in the contract and that there can, therefore, be, no implied obligation on the former to furnish machinery which would meet the requirements of the defendant’s business. The admission that this view is correct would not justify the conclusion that the motion should have been sustained. The averments to which the motion was addressed, related not wholly to the ground, but chiefly to the measure, of recovery. They presented circumstances which would lead to substantial loss by the defendant if the machinery should not be furnished according to the contract, and the plaintiff’s knowledge of those circumstances. They, therefore, justified the introduction of evidence to show that the defendant had expended large sums of money in the construction of this plant and in the employment of workingmen and salesmen for the conduct of its business, and, these circumstances being known, the loss to be sustained by the defendant from inability to prosecute its business was within the contemplation of the parties as a result likely to follow a breach of the contract, and, therefore, a proper element of recovery. The Champion Ice Manufacturing & Cold Storage Co. v. The Pennsylvania Iron Works Co., 68 Ohio St., 228.

Although the motion was properly overruled because the averments had legal relation to the measure of recovery, they appear to have been regarded by the trial judge as suggesting a ground of recovery. The substance of the plaintiff’s first request for instruction to the jury was that the written agreement should be taken as the measure of the rights and obligations of both parties with no term implied except that the machinery should be free from defects in either material or workmanship. This request was refused for the reason, as the record informs us, that it was not made until two arguments had been addressed by counsel to the jury. As the literature of the case informs us of neither reason nor authority for refusing an instruction upon that ground,- we adhere to the view generally recognized that such a request is timely if made before the cause is submitted to the jury. Not only did the court refuse to give the instruction so requested, but in the instruction actually given there was expressed the view that if the plaintiff furnished the machinery with the understanding that it was to be used in operating the defendant’s plant there was an implied undertaking that it should be adequate for that purpose. The case affords no reason or opportunity for such implied term. The contract into which the parties entered expressly defined the capacity of the machinery, and the defendant bore the chance of its adequacy to meet the requirements of its business. The conclusive effect which the law gives to the written undertaking of parties would compel the conclusion that the obligations of the plaintiff were fully discharged if, within the time specified, it furnished the machinery of the .designated power and capacity and free from defects. Much evidence was adduced, important parts of it coming from witnesses called by the plaintiff, to show that it had in all of these respects failed to perform the terms of the contract into which it had entered, and that serious loss to the defendant had resulted therefrom. But we are not permitted to conjecture that no part of the damages awarded to the defendant was because of the instruction that the plaintiff must answer for the inadequacy of the machinery to perform the duties which the defendant’s business required of it, even though it might be of the character and capacity designated in the contract. ■ The case seems, therefore, to fall within the general rule that, there being substantial error in the refusal to instruct and the instructions given with respect to the ground of recovery, and it not appearing affirmatively in the record that the error did not operate prejudicially as to the amount of the defendant’s recovery, the judgment must be

Reversed.

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


author: Davis, J.

text:
    The Cincinnati Traction Co. v. Stephens, Administrator.

      Action to recover damages for wrongful death — Defense that defendant not guilty of negligence — Error to charge jury on subject of contributory negligence — Qziestion of parent’s testimony as to value of child’s services — Prior statements of impeached witness — Law of evidence.

    1. In an action to recover damages for wrongful death, in which there is no issue of contributory negligence in the pleadings, and in which, on the trial, the defense is wholly that the defendant was hot guilty of negligence, it is prejudicial error to charge the jury at length upon the subject of contributory negligence, and that there was such an issue, and that the burden lay upon the defendant to establish it.
    2. Upon the trial of such action it is error to permit the plaintiff, the parent of the deceased, to give his opinion as to the value of his child’s services to him and his family at the time of her death and thereafter, that being for the determination of the jury upon the facts given in evidence.
    3. Where upon the trial of a case a witness is shown to have made statements of fact contradictory to those made by him on the trial, it is error to permit an attempt to rehabilitate the impeached witness by proving that he had made prior statements similar to those made on the trial.
    (No. 10070
    Decided October 30, 1906.)
    Error to the Circuit Court of Hamilton County.
    The plaintiff below, Darwin Stephens, administrator of the estate of Emily Stephens, deceased, brought this action in the Common Pleas Court of Hamilton County against the Cincinnati Traction Company, asking for damages in the amount of $10,000 for the benefit of the next of kin of his intestate, under Section 6135, Revised Statutes, alleging that his said intestate met her death upon the 23d day of December, 1902, through the negligence of the defendant company in the operation of its street cars in the city of Cincinnati and in the .vicinity of what is known as “Wright’s Crossing” upon Liston avenue in said city. The defendant below answered with a general denial.
    The case came to trial before the court and jury on the 26th day of May, 1905, and resulted in a verdict for the plaintiff.
    The undisputed facts were that Emily Stephens, at that time a young girl of eight or nine years of age, met her death by being struck by a westbound-car of the Cincinnati Traction Company, upon Liston avenue, at the time, and at or near the place, mentioned in the petition; that shortly before the accident she was upon the north sidewalk of Liston -avenue in company with several other children returning from school; and that Wright’s Crossing consisted of a flagging, running from the sidewalk on the north side, of Liston avenue to the .tracks of the steam railroad which were immediately adjacent to the street on the south and thence the way led across the tracks to the decedent’s home. There was at that point what was known as a “flag” stopping-place for street cars, but the street was level, straight and there was there no intersecting street. The testimony was also uncontradicted that there were no carriages or wagons upon the street and that the cars made but few stops through that portion of the city.
    The judgment of the court of common pleas was affirmed by the circuit court. Other facts material to the consideration of the assignments of "error appear in the petition.

      Messrs. Outcalt & Foraker and Mr.' Smith Hickenlooper, for plaintiff in error, cited and commented upon the following authorities:

      Pletcher v. Scranton Traction Co., 39 Atl. Rep. (Pa.), 837; Holdridge v. Mendenhall, 83 N. W. Rep. (Wis.), 1109; Culbertson v. Crescent City Railroad Co., 48 La. Ann., 1376; Lavin v. Second Ave. Railroad Co., 42 N. Y. Supp., 512; Fenton Admr. v. Second Ave. Railroad Co., 126 N. Y., 625; Stabenau v. Atlantic Ave. Railroad Co., 2 Am. Neg. R., 19; Rack v. Chicago City Railway Co., 3 Am. Neg. R., 19; Barnes v. Shreveport City Railroad Co., 47 La. Ann., 1218; Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1; Baltimore & Ohio Railroad Co. v. Lockwood, 72 Ohio St., 586; Aetna Insurance Co. v. Reed, 33 Ohio St., 283; Taylor v. Leith, 26 Ohio St., 428; Baltimore & Ohio Railroad Co. v. Whittaker, 24 Ohio St., 642; Marietta & Cincinnati Railroad Co. v. Picksley, 24 Ohio St., 654; Pittsburg, Fort Wayne & Chicago Railway Co. v. Krichbaum’s Admr., 24 Ohio St., 119; Erie Railroad Co. et al. v. McCormick, Admx., 69 Ohio St., 45; United States v. Breitling, 20 How. (U. S.), 254; Texas & P. Railway Co. v. Ludlam, 57 Fed. Rep., 483; Moffitt v. Cressler, 8 Ia., 125; Andrews v. Smithwick, 20 Tex., 111; Swank v. Nichols’ Admr., 24 Ind., 199; Galena, etc., Railroad Co. v. Jacobs, 20 Ill., 487; Frantz v. Rose, 89 Ill., 590; Howe Sewing Machine Co. v. Layman et al., 88 Ill., 39, 42; Manwell, Admx., v. Briggs, 17 Vt., 176; Duggin v. Watson, 60 Am. Dec. (Ark.), 560; Winter v. Hannibal & St. Joseph Railroad Co., 39 Mo., 468; Webster College v. Tyler, 35 Mo., 268; Atkins v. Nicholson, 31 Mo., 488; State v. Hildreth, 51 Am. Dec. (N. C.), 369; Cothran v. State, 39 Miss., 541; Barnes v. Meeds, 49 Am. Dec. (N. C.), 390; Henderson v. Western Marine, etc., Ins. Co., 43 Am. Dec. (La.), 176; Altgelt, Exrx., v. Brister, 57 Tex., 432; Herdic v. Bilger, 47 Pa. St., 60; Dickerson v. Johnson, 24 Ark., 251; Perkins v. State, 5 C. C., 597; Hartford Protection Insurance v. Harmer, 2 Ohio St., 456; Baltimore & Ohio Railroad Company v. Schultz, 43 Ohio St., 270; Wesson v. Washburn Iron Company, 13 Allen, 100; Fairbanks v. Fitchburg, 110 Mass., 224; Burt v. Wigglesworth, 117 Mass., 306; Hayes v. Smith, 62 Ohio St., 161; Cleveland & Pittsburg Railroad Co. v. Ball, 5 Ohio St., 568; Atlantic & Great Western Railroad Co. v. Campbell, 4 Ohio St., 583; Hurt v. St. Louis, etc., Railroad Co., 94 Mo., 255; Central Railroad & Banking Co. v. Kelley, 58 Ga., 107; Ohio Trial Evidence, Section 282; Phil. Ev. (Cow. H. & Edwards Notes), Volume I, 780; 3 Sedgwick on Damages (8th Ed.), 1290; Little Rock, etc., Railway Co. v. Haynes, 47 Ark., 497; Lincoln v. Saratoga & Schenectady Railroad Co., 23 Wend., 425; Hastings v. Steamer Uncle Sam, 10 Cal., 341; Dushane v. Benedict, 120 U. S., 647; Norman v. Wells, 17 Wend., 136; Ohio & Mississippi Railway Co. v. Nickless, 71 Ind., 271; Tenney v. Rapid City (S. Dak.), 96 N. W., 96; Alexander et al. v. Jacoby et al., 23 Ohio St., 358; Shepherd v. Willis, 19 Ohio, 142; Ohio & W. Va. Railway Co. v. Gardner, 45 Ohio St., 309; Wilcox v. Leake, 11 La. Ann., 179; Bain v. Cushman, 60 Vt., 343; Chicago & Alton Railroad Co. v. Springfield & Northern Railroad Co., 67 Ill., 142; Anderson v. Ogden Union Railway & Depot Co., 8 Utah, 128; Blair v. Milwaukee, etc.,

      Railroad Co., 20 Wis., 262; Tefft v. Wilcox, 6 Kan., 46; DeWald v. Ingle, 31 Wash., 616; Rajnowski, Admx., v. Detroit, etc., Railroad Co., 74 Mich., 20; Temperance Hall Association v. Giles, 33 N. J. Law, 260; Sawyer v. Arnold Shoe Co., 90 Me., 369; Reed v. Spaulding, 42 N. H., 114; Mason v. Vestal, 88 Cal., 396; Munson v. Hastings, 12 Vt., 350; Craig v. Craig, 5 Rawle, 97; Commonwealth v. Jenkins, 10 Gray, 488; Stewart v. People, 23 Mich., 74; Nichols v. Stewart, 20 Ala., 358; People v. Doyell, 48 Cal., 85; State v. Taylor et al., 134 Mo., 109; Head v. State, 44 Miss., 731; Jones v. State, 107 Ala., 93; Conrad v. Griffey, 11 How., 480; Lavigne v. Lee, 71 Vt., 167; Kipp v. Silverman et al., 25 Mont., 296; Robb et al. v. Hackley & Welton, 23 Wend., 50; Dudley v. Bolles, 24 Wend., 465; Reed v. New York Central Railroad Co., 45 N. Y., 577; Rex v. Parker, 3 Doug., 242; State v. Cady, 46 La. Ann., 1349; Railway v. Strickland, 116 Ga., 439; McCord v. State, 83 Ga., 521; Hewitt v. Corey, 150 Mass., 445; State v. Coates, 22 Wash., 601; State v. Hendricks et al., 172 Mo., 654; Ewing et al. v. Keith et al., 16 Utah, 312; Builders Supply Co. v. Cox, 68 Conn., 380; Ellicott v. Pearl, 10 Pet., 412; State v. Vincent, 24 Ia., 570; 1 Greenleaf on Ev., Section 469; Section 5298, Revised Statutes.

      Messrs. Harrison & Aston, for defendant in error, cited and commented upon the following authorities:

      Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1; Bellefontaine & India Railroad Co. v. Snyder, 18 Ohio St., 399; Cleveland, etc., Railroad.

      Co. v. Crawford, Admr., 24 Ohio St., 631; Pittsburg, Ft. Wayne & Chicago Railway Co. v. Krichbaum’s Admr., 24 Ohio St., 119; Baltimore & Ohio Railroad Co. v. Whittaker, 24 Ohio St., 642; Cincinnati Street Railway Co. v. Snell, 54 Ohio St., 197; Baltimore & Ohio Railroad Co. v. Whitacre, 35 Ohio St., 627; Lake Erie & Western Railroad Co. v. Mackey, 53 Ohio St., 383; Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St., 283; Schmidt v. Milwaukee & St. P. Railway Co., 23 Wis., 186; McGeary v. Eastern Railroad Co., 135 Mass., 363; Jones v. State, 20 Ohio, 34; Doll v. State, 45 Ohio St., 452; Columbus Railway Co. v. Ritter, 67 Ohio St., 63; Ohio & Indiana Torpedo Co. v. Fishburn et al., 61 Ohio St., 608; Cleveland, etc., Railroad Co. v. Terry, 8 Ohio St., 570; Lovett v. City of Chicago, 35 Ill. App., 570; West Chicago Street Railroad Co. v. Musa, 180 Ill., 131; Chicago City Ry. Co. v. Tuohy, 196 Ill., 410; McDonald v. Brooklyn Heights Railroad Co., 51 N. Y., App. Div., 186; Erie Railroad Co. et al. v. McCormick, Admx., 69 Ohio St., 45; 2 Thompson’s Neg., Sec. 1424; Cincinnati Street Ry. Co. v. Altemeier, Admr., 60 Ohio St., 10; Cincinnati Traction Co. v. Stephens, Admr., 7 O. C. C. (N. S.), 454; Baltimore & Ohio Railroad Co. v. Shultz, 43 Ohio St., 270; Rajnowski, Admx., v. Detroit, etc., Railroad Co., 74 Mich., 20; Hurst, Admr., v. Lake Shore, etc., Railway Co., 84 Mich., 539; Cooper, Admr., v. Railway Co., 66 Mich., 262; Pennsylvania Co. v. Lilly, 73 Ind., 252; Little Rock, etc., Railway Co. v. Barker et al., 33 Ark., 350; Pennsylvania Railroad Co. v. Henderson, 51 Pa. St., 315; 6 Thompson Neg., Section 7078; Kinkead’s Code Pleading, Volume II, 973; Cen

      tral Railway Co. v. Allmon, 147 Ill., 471; Chicago City Railway Co. v. McLaughlin, Exrx., 146 Ill., 353; Ency. of Evidence, Volume III, 737; Jones v. Jones, 80 N. C, 246; State v. George, 8 Ire., 324; Hoke’s Exrs. v. Fleming, 10 Ire., 469; March et al. v. Harrell, 1 Jones, 329; State v. Laxton, 78 N. C., 564; State v. Parish, 79 N. C., 610; United States v. Neverson, 1 Mackey (D. C.), 153; Cooke v. Curtis et al., 6 Har. & J. (Md.), 93; Insurance Company v. Davidson, 30 Md., 91; Hobbs et al. v. State, 133 Ind., 404; Henderson v. Jones, 10 Serg. & R., 322; State v. Dodoussat, 47 La. Ann., 977; Hester et al. v. Commonwealth, 85 Pa. St., 140; Zell v. Commonwealth, 94 Pa. St., 258; Stewart v. People, 23 Mich., 76; Commonwealth v. Wilson, 1 Gray (67 Mass.), 338; Commomvealth v. Jenkins, 10 Gray (Mass.), 489; Farrell v. Boston, 161 Mass., 106; Craig v. Craig, 5 Rawle, 91; Baltimore City Pass. Railway Co. v. Knee, 83 Md., 77; Lessee of Parker v. Gonsalus, 1 Serg. & Rawl, 536; Lessee of Wright v. Deklyne, 1 Peters Cir. Ct. Rep., 203; People v. Vane, 12 Wend., 78; Dailey v. State ex rel, 28 Ind., 285; Brookbank v. State et al., 55 Ind., 169; Hodges v. Boles, 102 Ind., 494; Dodd & Moore, 92 Ind., 397; Carter v. Carter, 79 Ind., 466; State v. Hendricks, 32 Kan., 559; Coffin v. Anderson, 4 Blackf., 395; Hotchkiss v. Germania Fire Ins. Co., 12 N. Y., S. C. (5 Hun.), 90; Jackson v. Etz, 5 Conn., 314; Dossett v. Miller, 3 Sneed, 72; State v. Dennin, 32 Vt., 158; Wigmore on Evidence, Section 1129 and notes; Thompson on Trials, Section 576; Ency. of Evidence, Volume III, p. 736; 1 Greenleaf on Evidence (10th Ed.), Section 253; Section 5298, Revised Statutes.
   Davis, J.

The petition in this case contains an averment that the defendant so negligently and unskillfully ran one of its cars at a dangerous rate of speed, by omitting to- keep a proper lookout,. by omitting proper signals and by omitting to apply brakes to check the speed of the car, that the car struck the plaintiff’s decedent, without any fault or negligence on her part, so forcibly and violently that she was thereby killed. Excepting the allegation of corporate capacity and proprietorship and the allegation that the deceased sustained injuries which caused her death on the date alleged, the defendant' denied each and every allegation contained in the plaintiff’s petition. There was, therefore, no issue of contributory negligence 'in the pleadings; and in a careful reading of the evidence in the bill of exceptions we have not been able to discover any attempt on the part of the defendant to prove contributory negligence. The defense was apparently conducted on the theory that the death of this little girl resulted from an accident pure and simple; that the defendant was guilty of no actionable negligence in operating the car; and that under the circumstances the injuries to the deceased could not have been avoided. Whether or not this defense was made good on the trial does not concern us now. It is enough for our present purpose that there was no claim of contributory negligence asserted in the pleadings or in the evidence.

The defense of contributory negligence is inconsistent with a defense entirely upon the ground that the defendant was guilty of no negligence whatever; because the very definition of contributory negligence implies that there was some negligence on the part of the defendant. It is not necessary to say more upon- this aspect of the case, since the. recent opinion of this court in Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1.

The trial court, almost at the beginning of the charge to the jury, said: “The action, therefore, is one of negligence, and the issue raised is one charging the defendant traction company with negligence, and, on the other hand, charging the deceased child with contributory negligence.” This was a misstatement of the issues and of itself was liable to mislead the jury. But it was followed by an elaborate discussion of the doctrine of contributory negligence, making that the chief feature of the case; and this was finally emphasized by the following instruction: “The burden of proving contributory negligence on the part of the child is upon the defendant, the trac-i tion company, to establish the same by a pre-. ponderance of the evidence.” Under such a charge, what would be more natural than for the jury to conclude, when it found no evidence whatever of contributory negligence and no insistence upon such a defense, that the defendant had failed in its defense, and that the plaintiff’s claim had been made out. In this respect we regard the charge to the jury as irrelevant, prejudicial and misleading.

During the trial the plaintiff, who is the father of the deceased, testified to the health, mental condition and age of the deceased and that she helped her mother in washing dishes, running errands and going to the grocery. He also testified that he himself was a common laborer, earning from one dollar and a half to one dollar and ■ seventy-five cents a day. He was then permitted, over the objection of defendant, to testify as to what he would say the services of the deceased were worth to him and his family at the time of her death, and how much she would probably have been worth to him and his wife, and her sisters and brothers, for the next two or three years after her death, had she lived; and also as to what she would have been worth per week to him and his wife, and to her brothers and sisters, from the time that she was fourteen or fifteen years of age until she was eighteen years of age. It was error to permit the plaintiff to give his opinion as to the probable value of his child’s services to him and his family; because the value of her services was one of the things to be determined by the jury from the facts in evidence, in arriving at the amount of damages, and because the opinion of a witness is not a fact. It was ruled by this court in Cincinnati Street Railway Co. v. Altemeier, 60 Ohio St., 10, that the pecuniary injury to the survivors must be determined by the jury from the evidence and not by guess. The case neither called for expert testimony to aid the jury, nor did the plaintiff qualify or offer his tesr timony as an expert.

Also during the trial one Julia Nicholson was sworn as a witness on behalf of the plaintiff, and testified, on her examination in chief, that she did not see the deceased at the moment when she was struck by the car, but that when she last saw the deceased before she was stiuick, she was standing at the crossing in the street about two or three feet from the track and looking straight across the street. On cross-examination the witness was shown a written statement purporting to have been made by her on the day after the accident, and she admitted that it had been written as she had related the circumstances; and that it was first read over to her in the presence of her mother, after which she signed it. The paper contained this statement: “And there was an eastbound car which had just passed, and this little girl in the rear of me did not notice the westbound car which was coming along, and sha started to run across the street, and as the car was almost in the act of' passing her at the time that she attempted to cross the street, and she run right into the front right-hand. corner of the car and was thrown to the street and had, her legs badly hurt. The car was about ten feet away when the little girl ran off the pavement.” On re-direct examination, the witness said that she was a witness before the coroner on December 27th, which was four days after the accident and three days after she had signed the written statement. She was then asked whether she had testified before the coroner that the deceased was standing near the track waiting to go over when the west-bound car came along and struck her. This question was objected to by the counsel for the defendant. The objection was overruled and the witness answered that she did make the same statement before the coroner. This is assigned as error.

The statements of the witness on the trial and the statements made in the paper which she admitted she had signed, knowing its contents, are flatly contradictory. "To this extent her credibility was impeached. It could not tend to rehabilitate the damaged reputation of the witness for veracity, in any degree, to show that the witness had repeated a hundred times the later story which she now gave on the trial. The contradiction still would remain, and it would remain unexplained, notwithstanding the fact of repetition. Under the circumstances of this case, the .making of the inconsistent statements being admitted by the witness, proof of prior statements consistent with the statement of the witness on the trial, for the purpose of corroborating and sustaining the credit of the witness, is irrelevant; because it would not prove the truthfulness of the witness, nor the reliability of her recollection, nor that there was no inconsistency between the two statements. 1 Greenl. Ev., 16th Ed., Section 469ft.

Judgment reversed.

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


author: Spear, J.

text:
    Tafel, Executor, v. Lewis, Auditor, et al.

      Taxation of bonds — In possession of resident executor — Under will executed and probated in foreign country — Taxation—Wills.
    Bonds coming in this state into the possession of a resident executor who derives his authority under the will by appointment of the probate court of the county of his residence, are taxable in this state, notwithstanding that the will was executed and probated in a foreign country and the testator was at the time of his decease a non-resident of this state, and all beneficiaries are likewise non-residents.
    (No. 9155
    Decided October 30, 1906.)

      Error to the Superior Court of Cincinnati.
    The plaintiff in error, as executor of one Reuter, deceased, commenced action in the superior court of Cincinnati against Lewis, auditor of Hamilton county, and Roth, treasurer, seeking to perpetually enjoin those officers from enforcing taxation of certain bonds held by him as such executor. It was averred that the .plaintiff was appointed and qualified as executor of the last will and testament of said Reuter by the probate court of Hamilton county, the said will being executed and probated in Cassel, Germany, and duly admitted to record by the said probate court of Hamilton county; that Reuter at the time of the probate was and for many years had been a resident of Cassel, Germany; that all the beneficiaries under, the will are non-residents; that at the time of his death Reuter was the owner of certain bonds deposited in a deposit company in the city of Cincinnati which came into the possession of the plaintiff in the course of the administration of the affairs of his trust. The ward assessor, against the protest of plaintiff, returned the bonds to the value of $6,210 for taxation, and the defendants threaten and are about to place the said assessment upon the county tax duplicate and collect the tax upon the same.
    A demurrer to the petition was sustained by the superior court at special term and judgment for defendants rendered, which judgment ' was affirmed by that court at general term. To reverse those judgments the executor brings this error proceeding in this court.

      Mr. Gustav Tafel, for plaintiff in error.
    Our contention is that the law of Ohio does not authorize the defendants to levy a tax upon the bonds in question for the following reasons:
    1. It is the settled law of Ohio not to tax the personal property of non-residents.
    2. Property exempt from taxation during the lifetime of the owner,.for the reason of his being a non-resident of the state, does not change its character in passing from him to heirs or legatees who are also non-residents.
    3. An executor is in every sense the representative of his testator.
    This court is called upon to construe the meaning and effect of the statutes bearing upon the question whether the personal property of a nonresident decedent is taxable at the residence of his executor when the heirs and legatees also are nonresidents.
    In Section 2731, Revised Statutes, at the very outset, the broad principle is laid down that none but residents of the state shall be called upon to contribute to the expense of ministering to the wants of its citizens. • Besides, it has always been the policy of Ohio to encourage outside capital to come into the state for investment.
    The bonds in question did not “belong” to the executor. Webster defines the word “belong” to mean “to be the property of.”
    In Section 2734, Revised Statutes, it is emphasized that every person shall list the personal property of which he is the owner, and moneys invested, loaned or otherwise controlled by him as agent or attorney, shall be listed.

      The plaintiff did not invest or loan the bonds in question. The investment was made by the testator, who resided in Germany. The plaintiff, as the executor of his decedent, does not “control” the bonds. Webster defines the word “control” to mean “to have the governing influence over a thing.”
    The governing influence, in this instance, is reposed in the court, whose appointee the plaintiff is, in connection with the provisions of the will.
    No mention is made here or anywhere else of the status of the estates of non-resident decedents. These are neither expressly included in nor excluded from the rule laid down. In a general way only are executors and administrators directed to list the property of deceased persons. Brown v. Noble, 42 Ohio St., 405; Sommers v. Boyd, Treas., 48 Ohio St., 648; Todd v. Hughes, 3 O. L. J., 206; Hawk et al., Exrs., v. Bonn, Auditor, 6 C. C. R., 452; Sims, Treas., v. Best et al., 1 C. C. R. (N. S.), 41.
    There is no lack of decisions in other states affirming the question that the residence of the testator is the one that determines the liability of his estate to taxation, and not the domicile of his executor or administrator, although the additional fact of the beneficiaries also being non-residents does not affirmatively appear in any reported case.
    Care has been taken to examine the tax laws of the respective states,- and they have been found to practically cover the same ground as the laws of our own state.
    From amongst the many we cite the following: City of Staunton v. Stout’s Exrs., 10 S. E., 5; McGregor’s Executor v. Vaupel, 24 Ia., 436; San Francisco v. Lux et al., Exrs., 64 Cal., 481; Millsaps v. City of Jackson, 30 So., 756; McDougal et al. v. City of Brazil, 83 Ind., 211; Stephens, Admr., v. Booneville, 34 Mo., 323.
    The law in Ohio does not tax the personal property of non-residents. It taxes all the personal property of a resident of the state wherever situate. It is logical, therefore, to conclude that there never was any intention on the part of the Legislature to tax personal property belonging to nonresidents which is in transitu as it were — in the process of transition from a non-resident decedent to his non-resident heirs, and which property is only temporarily and for a restricted purpose, in the custody of a resident representative.
    Legislatures are presumed to enact laws applicable to circumstances that obtain in every-day life.-’ Ordinarily a decedent’s place of residence is the same as that of his executor or administrator, and also as that of his heirs or legatees; and it is this presumption that underlies the enactment of these laws. The impossibility is recognized of providing by statute for all possible exceptions to common usage: of providing for conditions arising from unforeseen circumstances. Section 2735, Revised Statutes.
    An executor is not required to list non-taxable bonds, be they government bonds or any other kind of bonds exempt from taxation held by the decedent owner.
    Property rights, both real and personal, pass from the decedent to his heirs instantly at his death, though they may be in several different states at the time. The property itself remains unmoved. The rights continue in the widely separated heirs in their respective jurisdiction. Street Railroad Co. v. Morrow, 87 Tenn., 438.
    So far as property is concerned, and for the purpose of collecting and paying debts, and doing justice by others, the acts and doings of a deceased person while in life still continue to affect the living. In a certain legal sense, therefore, and for certain purposes, he still lives, and will continue to live until those purposes are fully accom'plished. As he is incapable of acting for himself, the executor represents him. Cornwall, Exr., v. Todd, 38 Conn., 446.
    In the case at bar it is sought to tax the property, not only of the non-resident decedent, but also of the non-resident beneficiaries, merely because the person through whom the title passes happens to be domiciled here. There is no law for such contention and certainly no equity.
    The manner of dealing with the estates of nonresident decedents, therefore, seems to have been left open by the Legislature advisedly, to be acted on by the courts according to the circumstances of each particular case.
    This view of the law is strengthened if we consider the provisions contained in the law levying .an inheritance tax, which expressly makes it applicable to the interests of non-residents in estates situated within the state. Section 2731-1, Revised Statutes.
    There are no decisions by our courts directly in point. No case presenting facts like the one at bar has ever been adjudicated in this state.

      Whenever the question arose in this state, whether property belonging to an estate should be subject to taxation at the residence of the administrator or executor, it appears that the decedent, as well as the beneficiaries were residents of the state, and the contention arose only between, the officers of different counties where such administrators or executors happened to reside. State ex rel. v. Mathews, Auditor, 10 Ohio St., 431.

      Messrs. Ireton, Collins, Schoenle & Poor, for defendants in error.
    The question of law presented is:

      Are bonds which have their actual situs in this state and in possession of an executor appointed by the Probate Court of Hamilton County, exempt from taxation, because the beneficiaries are nonresidents and the deceased died a resident of a foreign countryf

    The actual situs of these bonds has always been the city of Cincinnati, which is also the residence of the executor, and the same county where the executor was appointed. Cooley on Taxation (3d Ed.), 664; Constitution of Ohio, Section 2, Article XII.
    In pursuance of this mandate, the Legislature has taxed these bonds in the possession of the executor at his place of residence. Sections 2730, 2734, 2735 and 2836, Revised Statutes.
    The statutes of Ohio therefore demand of the executor to list “all the personal property” “of every estate of a deceased person” “in his possession or under his control” at his own place of residence. It then follows that the bonds of the non-resident deceased, actually held by the plaintiff as executor in Hamilton county, are returnable there for taxation.
    That the beneficiaries are non-residents can have no bearing ' whatsoever on this question. That fact may often be the case, but the property is in possession and control of the executor by operation of law, and no right or title to this property accrues to the beneficiaries until the executor has completed his duties and the time for distribution has come.
    The question presented in this case has, we claim, been adjudicated in this state. Grant v. Jones, 39 Ohio St., 507; S. & C., page 1439.
    The case of Sommers v. Boyd, Treas., 48 Ohio St., 648, in reviewing these sections of the statutes comes to the same conclusion.
    To the same effect are: Brown v. Noble, 42 Ohio St., 405; Hawk et al., Exrs., v. Bonn, Auditor, 6 C. C. R., 452; In re Estate of John Robb, 5 N. P., 52.
    The Circuit Court of Appeals of this circuit had occasion to review these same statutes, when holding taxable in Ohio, bonds of a foreign corporation deposited at Columbus with the Superintendent of Insurance. Western Assurance Co. v. Holliday et al., 61 C. C. A., 271; Hubbard, Treas., v. Brush, 61 Ohio St., 252.
    And it was so held in the recent case of Heintz et al., Receivers, v. Cameron et al., 70 Ohio St., 491, and reported by the circuit court in 25 C. C. R., 149, that the bonds of foreign corporations deposited as a security with the state treasurer are taxable in Ohio.

      If bonds of a non-resident, held by the state officers as a mere deposit without title, are taxable in Ohio, then assuredly are bonds taxable in the possession of an executor appointed by a probate court of this state, in whom there is both possession and title.
    Plaintiff claims that as these bonds were not taxable when Conrad Reuter lived, they should not be taxed when he died. It appears that no taxes were paid on these bonds when Reuter lived, but these bonds were taxable then, for the allegations of the petition show that these bonds were in the hands of his agent, to-wit: “deposited in a deposit company in the city of Cincinnati, Hamilton county, Ohio.”
    Under the provisions of Sections 2730, 2734, 2735 and 2736, Revised Statutes, and the foregoing authorities, these bonds were taxable in the hands of his agent, the deposit company of Cincinnati, when Reuter lived. Baldwin v. Shine, 84 Ky., 502.
    The laws of Kentucky do not, as in Ohio, specifically provide for the taxation of personal property in the hands of an executor or administrator. Therefore, if the statutes of this state, requiring the taxation of all personal property xin the possession of guardians, trustees, executors or administrators, were not on the statute books, nevertheless this property would be taxable in their hands, the samé as in the hands of an absolute owner.
    Some of the states that have statutes on this subject, like our own, have held personal property in possession of an executor or administrator taxable to them at their residence.

      In New Jersey, the law provides (Nix. Dig., 951) that “every person shall be assessed in the township or ward where he resides for all personal estate in his possession, or under his control, as trustee, guardian, executor or administrator.” State, Ely, Prosecutor, v. Collector of Holmdel Township, 39 N. J. L., 79. See Sections 803 and 805, McClain’s Annotated Statutes of Iowa (1882).
    The Supreme Court of Iowa in Cameron v. City of Burlington, 56 Ia., 320, decided that promissory notes held by an executor are taxable to him at his residence, and not at the residence of the deceased.
    And it was held in Dorris, Exr., v. Miller, 105 Ia., 564, that where the testator died a resident of Pennsylvania, the personal property in possession of the executor appointed by the I.owa court was taxable at the residence of the executor. Statutes of Oregon, Section 19, 895; Johnson et al., Exrs., v. Oregon City, 2 Ore., 327; Kent v. Exeter, 68 N. H., 469; Wood v. Torrey, 97 Mass., 321.
    Plaintiff claims that' these bonds are non-taxable, because at Reuter’s death the title vested in the beneficiaries and not in him as executor of Conrad Reuter’s will. Where plaintiff finds such a principle, we are unable to discover. It was the common law and now the law everywhere, except perhaps where modified by statute, that the personal property of a decedent vests immediately in the executor or administrator and the real estate in the heirs. Sommers v. Boyd, 48 Ohio St., 648.

      To the same effect are: Orlopp v. Schueller. Admr., 72 Ohio St., 41; Tobias v. Richardson et al., 26 O. C. C., 81.
    The will of the non-resident decedent was admitted to probate and the executor appointed by virtue of our laws. Since the year 1896 this property has been administered and protected by our laws, and will be distributed accordingly. Whoever wishes the protection of his property held within the jurisdiction of this state, should pay the state in taxes. Sections 5944, 5938, 5940,. 5941 and 6044, Revised Statutes.
   Spear, J.

The record presents the question whether or not bonds coming in this state into the possession of a resident executor who derives his authority under the will by appointment of the probate court of the county of his residence, are taxable in this state, notwithstanding that the will was executed and also probated in a foreign country, and the testator was at the time of his decease a non-resident of this state, and all beneficiaries are likewise non-residents.

It is not necessary to follow the able arguments of the learned counsel by a discussion of the principles upon which the power of taxation rests under our system of government, nor attempt to notice the many limitations which have been declared to exist upon the legislative exercise of that power. It will suffice to direct inquiry respecting the proper answer to the specific question above stated, and, as it seems to us, the tenor of that answer can not admit of serious doubt.

The mandate of section 2, article XII, of our constitution is the warrant for taxation of property in this state. That is: “Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money.” Conformably with the requirement the general assembly, by sections 2730 to 2736, inclusive, of the Revised Statutes, has made provision that property, including bonds, “held by persons residing in this state whether for themselves or others,” shall be subject to taxation; that every person of full age and sound mind shall list the personal property of which he is owner, and moneys invested, loaned or otherwise controlled by him on account of any person or persons; that the property of every estate of a deceased person shall be listed by the executor or administrator; that property so held shall be listed in the same township, city or village in which such person is required to list his own property; that every person required to list property shall, annually, make out and deliver to the assessor a statement of all personal property, including bonds in his possession or under his control, on the day preceding the second Monday of April of that year, either as owner or holder thereof, or as-executor or administrator. Thus property to be taxed, the person who is to list it, the place where it is to be listed, and the time when to be listed, are all distinctly and definitely provided for. It results from this that it is the duty of the holder to list where he is (1) the owner, (2) where he holds for others, .and (3) where he holds as executor.

Taking these several provisions together can there be any doubt that the legislative intent is to include bonds held by an executor? We think not. Not only are they held, speaking in general terms, “for others,” that is, in. the interest of others, but they are under the dominion, the control, of the executor, subject only to the orders of the probate court. The general rule is, that where such property is held here in the possession and under the control of the one so having the possession, it is taxable here, although where held here subject to the control of a non-resident owner it may not be. It is conceded that in general the situs of a debt is at the residence of the creditor, although this rule is subject to exceptions (Hubbard, Treasurer, v. Brush, 61 Ohio St., 252). But in the present case the legal title is in the executor; and in this sense he is the owner. And, if this view be correct, then the estate was annexed to his person and thereby had an actual situs in this state. It may be that these provisions were not necessary to fix the liability to so list on the executor, because of the specific provision applying in terms to executors, but they serve to show the scope and intent of the statute, and leave its real meaning relieved of rational doubt.

It is insisted that these, bonds are liable to taxation in Germany, and that to tax them here would result in double taxation. The proposition is not tenable. The power of taxation conferred by our constitution can not be made to depend upon the operation of laws of a foreign jurisdiction.

It is further urged that these bonds should not be taxed in Ohio because the property right in them passed to the testator’s heirs instantly at his death, and that, as they reside outside the state, their property is not subject to our tax laws. No fact in support of the assumption that the property in the bonds passed at once to any beneficiary or beneficiaries under the will appears by the petition. It is not shown or claimed that these specific bonds were bequeathed to anybody. Hence the title vested in the executor and the question attempted to be made by this proposition is not fairly in the case.

We have not overlooked the cases of Grant v. Jones, 39 Ohio St., 506, or McNeill, Assignee, v. Hagerty, Auditor, 51 Ohio St., 255. Neither case-controls, or materially affects, the case" at bar.

As conclusion, we are of opinion that, notwithstanding the fact that the will was executed in a foreign country, and that at his decease the testator' was a resident of that country, and that the beneficiaries under the will are all non-residents of the state, the bonds were properly taxable in Hamilton county, and it was the duty of the executor to return them for taxation because the statute, in plain terms, so directs.

Judgment affirmed.

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