Volume 10 — Ohio Appellate Reports

<p>Negotiable instruments — Defense of set-off by surety — Holder indebted, to principal debtor — Section 8224, General Code.</p> <p>In an action on a promissory note against two defendants, both of whom are “primarily liable” on the instrument, but one of whom is in fact a surety, it is competent for the surety to plead as a set-off an indebtedness existing in favor of the principal debtor against the holder of the note.</p>

<p>Negligence — Charge to jury — Accident as evidence of negligence — Anszvers to special interrogatories — Error in. charge cured, when.</p> <p>While it is error for the court to charge the jury that the fact that an accident happened is evidence tending to prove negligence, such charge is not prejudicial if the jury in. answer to special interrogatories find that defendant’s negligence was the proximate cause of plaintiff’s injury.</p>

<p>Liens — Vendor of steam shovel — Furnished to sub-contractor — Head contractor supplying gravel and dirt — Engaged in "construction” of railroad, when — Sections 8343 to 8351, General Code.</p> <p>A contractor who is employed to furnish gravel and dirt to a railroad company for the maintenance and repair of its roadbed is ■ engaged in the “construction” of a railroad, within the meaning of Section 83S1, General Code, and one who furnishes a steam shovel to a sub-contractor of such contractor is entitled to a lien upon the funds in the hands of the railroad company due to the head contractor, under Sections -8343 to 8351, General Code.</p>

<p>Sheriff — Liability on official bond — Failure to levy execution — Sufficiency of indorsement by clerk of courts — Funds deposited for foreign writ — Sections 2882 and 12105, General Code.</p> <p>Where a clerk of courts issues a writ of execution in a civil action to another county for service and return by the sheriff of such other county, and indorses on such writ, “Fees on deposit for the service of this writ,” and signs his name thereto, such indorsement is a sufficient compliance in that regard with the requirements of Sections 2882 and 12105', General Code, and a sheriff’s failure to levy an execution in obedience to such writ renders him and his sureties liable to respond in damages for any loss resulting from' such failure.</p>

<p>Error : Court of Appeals for Hamilton county.</p>

<p>Criminal law — Indictment for blackmail — Charge as to threat or menace sufficient, when — Joint indictment — Conspiracy need not be alleged, when — Testimony of conspirator admissible, when —One defendant may be acquitted and other convicted, •when — Evidence — Similar facts and circumstances admissible, •when.</p> <p>1. Art indictment for blackmail need not set forth that the threat or menace was to- do an unlawful act or unlawful thing, but it is • sufficient to charge therein that the threat or menace was to injure one in his property or reputation, or to humiliate him so that he might be induced thereby to give money rather than be subjected to a charge that might have a tendency to affect him, or to humiliate him, in his rights, his property or his reputation.</p> <p>2. It is not necessary to allege a conspiracy in order to sustain a joint indictment for blackmail.</p> <p>3. If the evidence establishes a conspiracy beyond a reasonable doubt, the testimony of one conspirator is admissible against his co-conspirator.</p> <p>4. Where two are jointly indicted for blackmail, the fact that one defendant takes the stand in his own behalf and denies having uttered statements attributed to him while the other defendant remains silent, is sufficient to justify the jury in finding the former not guilty and the latter guilty.</p> <p>5. Evidence of similar facts and circumstances is admissible to prove scienter, guilty knowledge or intent, but not for the purpose of proving guilt of the charge under trial.</p>

<p>Executors and administrators — Wrongful death• — Action lies for whose benefit — -Sections 10770 and 10772, General Code — Death of wife before suit instituted.</p> <p>When the death of a person- is caused by -the wrongful act -of another, Sections 10770 and 10772, General Code, do not give a right of action for the benefit of the parents and his next of kin, if such person died without children, but leaving a wife surviving him, although the wife died without an action having been begun for her benefit.</p>

Appeal: Court of Appeals for Butler county. The plaintiff brought an action in the common pleas court of Butler county, Ohio, against the defendants, ;to declare a trust in certain personal property, consisting of a stock of groceries, alleged to have been purchased by the defendant, Blanche Faucett, from the defendants, Lotta Elcook and Edwin Elcook. The case is here on appeal from the judgment rendered by the common pleas court.

<p>Vendor’s lien— Waiver — Acceptance of cognovit note and mortgage — Sale of realty.</p> <p>Where the vendor- of land who has taken a mortgage oni the premises conveyed, to secure the debt, takes a cognovit note signed by the vendee and his wife, in addition to the mortgage, and after-wards cancels the mortgage of record, the taking of the cognovit note and release of mortgage show an unequivocal intention on his part not to rely on the land for security, and constitute a waiver of the vendor’s lien.</p>

<p>Insurance — Fraternal or beneficial — Failure to pay assessments — Ipso facto bars recovery by beneficiaries, when — Issue of fact as to default — Judgment on pleadings erroneous, when.</p> <p>1. A provision of the constitution and by-laws of a fraternal1 or beneficial association, that upon failure of a member to pay a death-benefit assessment within a stipulated time his beneficiaries can not recover benefits in case of such member’s death, is self-executing and requires no action on the part of the association in order to bar the right to benefits.</p> <p>2. Where, in an action to recover death benefits from a fraternal or beneficial association, an issue of fact is made by the pleadings as to whether or not the insured was in default, it is error for the court to enter judgment on the pleadings.</p>

<p>Parties — Actions in rem and in personam — Attachment — Bonds — Non-resident owner — Ohio bank negotiating sale — Suit by judgment creditor — Sections 11262, 11292, 11297, 11850 and 11851, General Code.</p> <p>Richardson, a resident of Texas, and the owner of a railway in Texas, entered into an agreement with Hazzard, of Cleveland, Ohio, by which Richardson agreed to sell and Hazzard agreed to buy said railway. As security for the performance of the contract, Richardson obtained from Hazzard thirteen bonds of the Brooklyn Heights Cemetery Association of Cleveland. There was a breach of this contract by both parties and Richardson sold said bonds to McGowan, a resident of Texas, who arranged for a sale of the bonds in Cleveland. In order to consummate the sale McGowan forwarded the bonds through the San Antonio^ National Bank to the Cleveland National Bank to be delivered to the purchasers upon the payment of the purchase price. After the alleged breach of the contract, The Burroughs Land Company began an action against Hazzard in Cleveland and garnisheed the bonds in the hands of The Cleveland National Bank as the property of Hazzard. The Land Company then instituted action against The Cleveland National Bank to subject the bonds to the payment of the judgment against Hazzard. The bank filed a motion to dismiss said action for the reason that McGowan was a necessary party and was a non-resident, which motion was overruled. Summons was served «pon McGowan in Texas, although he was not a party defendant. A demurrer to said petition was sustained as to McGowan. Upon final hearing the bonds were determined to be the property of Hazzard and were ordered delivered to the sheriff to be sold for the purpose of paying said judgment against Hazzard. Held:</p> <p>1. That in order to determine the ownership of the bonds it was necessary to adjudicate the controversy between Richardson and Hazzard involving rights and obligations arising out of the contract for the purchase of the railroad, and the court below should have dismissed the action without prejudice, under Section 11262, General Code, and for want of jurisdiction and of necessary parties.</p> <p>2. Sections 11850 and 11851, General Code, relating to disposition of attached property and proceedings against a garnishee, do not authorize a plaintiff to convert an- action in personam into an action in rem by electing to claim the answer of the garnishee unsatisfactory.</p> <p>3. Section 11297, General Code, authorizing personal service outside of this state, should be construed with reference to Sections H262 and 11292, General Code, relating to absent parties and providing for service by publication; and Section 111297 can not be invoked unless the party sought to be served is a party de- . fendant to the action.</p>

<p>Reversals on weight of evidence— Trial court to submit case to jury, when — Procedure where evidence same on retrial.</p> <p>1. Where a case has been reversed and remanded by the court of appeals on the ground that the judgment is against the weight of the evidence, it is the duty of the trial court upon retrial to submit the case to the jury if there ¡9 a scintilla of variation in the evidence offered upon retrial in addition to that presented at the preceding trial.</p> <p>2. Whether or not the reversal by the court of appeals on the ground that the evidence was insufficient would control the retrial of the case, where the evidence upon retrial is without variation: Quere.</p>

<p>Railroads — Duty to maintain fences — Section 8913, General Code — Liability for damages resulting from failure to maintain — Limited to injury or loss on right oj way.</p> <p>Where a railroad company neglects or refuses to construct and maintain fences along its right of way, under Section 8913, General Code, its liability to respond in damages is limited to such loss or injuries as occur upon its right of way, and not elsewhere, and an adjoining landowner can not recover the cost of herding his cattle or other animals upon abutting pasture lands, where such company has neglected or refused to fence its right of way along the same; nor can he recover for loss of profits from dairy cows by reason of their not being permitted to remain in such abutting pasture lands during the night season.</p>

<p>Court of appeals — Jurisdiction on appeal — Mandamus — 'Chancery cases — Sealer of weights and measures — ■Mayor may discontinue office, when — Term of appointee of former mayor — Section 4318, General Code.</p> <p>1. A proceeding in mandamus is not a chancery case, and therefore can not be reviewed on appeal by the court of appeals under the provisions of Section 6, Article 4, Constitution, 1912.</p> <p>2. The office of sealer of weights and measures may be discontinued by a mayor by refusing to name a successor and -by removing a holdover appointee of a previous administration, notwithstanding the fact that council has fixed the compensation and bond of such officer, who has passed a non-competitive civil service examination, since Section 4318, General Code, leaves it optional •with a mayor whether or not there shall be a sealer of weights and measures and makes his term coextensive with that of the mayor appointing him.</p>

<p>Wills — Construction — Residuum devised to wife — Codicil — Life estate in after-acquired property — Undevised remainder passes under residuary clause, when.</p> <p>Where a testator, after making specific bequests', devises the residuum of his estate to his wife and by codicil devises to her a life estate in after-acquired propertj', without disposing of the remainder upon the termination of the life estate, the remainder passes- to the wife under the residuary clause of the original will.</p>

<p>Evidence — Witnesses—Competency — Executor as defendant■— Section 11495, General Code — Cross-examination by adverse party — Section 11497, General Code — Disqualification removed and zvitness competent, zvhen.</p> <p>If a party in an action, who is prevented from testifying by reason of the provision of Section 11495, General Code, is examined as a witness on certain issues in the case by the adverse party, under Section 11497, he then becomes a competent witness in the case, and may testify in his own behalf in regard to all the issues in the case.</p>

<p>Constitutional lazv — Trial by jury — Cincinnati municipal court — Section 1558-15, General Code — Demand to be made before case assigned.</p> <p>L There can be no abridgment of the right of trial by jury in courts created by the constitution, but in courts inferior to the courts of appeals which the legislature is authorized to create by Section 1, Article IV of the Constitution as amended in 1912, there may be trials without jury or trials by jury of less than twelve.</p> <p>2. Section 1558-15, General Code, providing that actions in the municipal court of Cincinnati shall be tried to court unless a party-demands a jury “before the day assigned for the trial of such case,” does not deprive a party of his constitutional right to a jury trial or violate Section 26, Article II of the Constitution, requiring all laws of a general nature to have uniform operation.</p>

<p>Guardianship — Failure to pay taxes- — ■ Who may purchase at tax sale — -Guardian can not acquire title, when — Rights and duties of tenants in common.</p> <p>It is the duty of the guardian of a tenant in common who is under mental disability to pay the taxes on the ward’s property, and such guardian can not acquire title to the common property by allowing the taxes to become delinquent and then purchasing the property at a tax sale; and the same rule applies to a tenant in common who is in possession of the property.</p>

<p>Municipal corporations — Assessments — Water mains — Corner lots —■Limited to special benefits — Sections 3812, 3819 and 3911, General Code.</p> <p>In view of the requirements of Sections 3819 and 3911, General Code, tha-t assessments are to be limited to benefits conferred and that limitations on assessment of private property are to be strictly construed, an assessment by the foot front plan can not be levied against the entire frontage of a corner lot for the laying of water mains.</p>

<p>Negligence — Boat deck used for dancing — Passenger injured in boarding boat- —Error to exclude evidence, when — Non-occurrence of similar accidents.</p> <p>In an action to recover damages for injuries received in boarding a boat, on the ground of negligence in requiring passengers to pass over a deck which was waxed and polished' for dancing purposes and not provided with a rubber mat or anti-slipping device, evidence of the non-occurrence of a similar accident is admissible for the purpose of showing defendant not guilty of negligence in not apprehending the accident, where the danger was not obvious.</p>

<p>Criminal law — Indictment—Duplicity — Two offenses not charged, when — Bribery of councilman — To influence vote on ordinances — Voir dire examination — Acquaintance of juror with councilman— Also charged with same offense.</p> <p>1. An indictment which charges that the defendant, while acting as councilman of a municipal corporation, received money for the purpose of influencing his vote as such councilman with respect to “An ordinance to authorize The Workman’s Transit Co., a corporation, to operate automobile buss lines over and along the public streets of the City of Youngstown, aforesaid, or as to a matter that might legally come before him, the said Wm. F. Mehlo, as such officer, and the said city council of which said, Wm. F. Mehlo was a member as aforesaid, to-wit, an ordinance regulating the use of the public streets and thoroughfares of said City of Youngstown aforesaid,” is not bad for duplicity.</p> <p>2. On the trial, on an indictment charging the defendant as member of the council of a municipal corporation with bribery in receiving money to influence his vote as councilman, it is not error to permit the prosecuting attorney to inquire of a prospective juror whether he was acquainted with the other members of the same council who were charged with 'the same offense.</p>

<p>Error: Court of Appeals for Cuyahoga county.</p>

<p>Surety bonds — Road improvement contractor — Section 1208, General Code (jo6 O. L., 634) — Liability of surety — Gasoline and oil for motor trucks.</p> <p>A surety upon- the bond of a contractor for road improvement, given under Section 1208, General Code (106 O. L., 634), is liable for gasoline and oil furnished the contractor for use in motor trucks engaged in transporting material for the construction of the road under the contract.</p>

<p>Wills — Devise in trust — Disposition of residue — Death of residuary legatee — Balance passes under will, when — Testate and intestate property.</p> <p>A testatrix, after providing for certain specific legacies, devised the undivided one-half of the residue of her estate to her son H, absolutely, and the other to him in trust for her other son" W, •to be paid by H to W in installments and in case of the death of W before the entire one-half in trust had been paid to him the balance was to go to H. The death of H preceded that of W. Held: The testatrix died testate as to all her property, and the balance remaining in trust upon the death of W passed to the estate of H, and did not pass to the next of kin of testatrix as intestate property under the statutes of descent and distribution.</p>

<p>Contracts —Sale of realty — Acceptance or rejection of written offer — Specific performance lies, when — Co-tenant agreeing to sell entire tract — Must convey his undivided interest — Although another co-tenant refuses to convey, when.</p> <p>1. An- acceptance of a written offer for the sale of real estate must be unconditional in order to become binding upon the party offering to sell.</p> <p>2. A conditional acceptance, or proposing a different contract, is a rejection of the offer.</p> <p>3. Courts of equity will not decree specific performance of a written contract for the sale of real estate unless the remedy under the contract is mutual.</p> <p>4. Where the owner of an undivided interest in land enters into a contract for the sale of the entire tract, representing that he had authority from his co-tenants to make the sale, he, on failure to secure a conveyance from his co-tenants of their interest, can not refuse to convey his undivided interest, although the vendee can not be required to accept less than a conveyance of the entire tract.</p> <p>5. In such a case, a court of equity will at the suit of the vendee against the vendor, decree specific performance of the undivided interest of the vendor, with an equitable abatement in the purchase price in proportion to the interest of the co-tenants in said premises.</p>

<p>Criminal law — Arson — Burning insured property — Indictment defective, when — Failure to allege ownership — Grand jury — Membership not fixed by law — Since amendment of Section 10, Article I, Constitution, 1912.</p> <p>1. An indictment under Section' 13434, General Code, for burning property with intent to prejudice the insurer, must contain a clear and positive charge of some ownership in the building by the defendant, and an indictment is insufficient which merely identifies the building and alleges that it was insured by the defendant in several named insurance companies.</p> <p>2. The fact that the general assembly has not passed a law fixing the number of persons necessary to constitute a grand jury since the adoption in 1912 of the amendment to Section 10, Article I, of the Constitution of Ohio, does not render void an indictment returned subsequent to that date.</p>

<p>Wills — Devise in fee simple — Not lessened by later clause, when — Devisee to take at arriving of age — Subsequent clause anticipating devisee’s death during minority — Torrens land registry act.</p> <p>1. Where an estate in fee simple is devised in clear and unequivocal terms, such estate will not be cut down or limited by a subsequent clause less conclusive.</p> <p>2. Where the primary devise in fee simple takes effect upon such devisee arriving at majority, and the secondary contingent estate is to the children of the first devisee upon his death, the latter estate will be limited to the contingency of the death of the first devisee during his minority and before the fee simple devise to him becomes effective.</p>

<p>Quiet title — Appeal lies to court of appeals, when — •Collateral attack — Former decree in action to enforce lien — ■Failure to serve defendants on cross-petition — Life estate conveyed by deed — Placed in escrow until judgment satisfied — No title passes to grantee or remaindermen, when.</p> <p>1. An action to quiet title to real estate, brought by the parties in possession thereof, which does not seek the recovery of possession of the property, is a chancery case and may be appealed to the court of appeals under Section 6, Article IV, Constitution, 1912.</p> <p>2. Defendants who are duly served with summons on a petition in an action to enforce a lien upon real estate are in' court for such purposes of the case as in any way affect the title to the real estate in controversy and are bound by the decree rendered in such proceeding, and such defendants can not, im a subsequent action to quiet title, challenge the jurisdiction, of the court rendering such former decree on the ground that they were not served with summons on certain cross-petitions under which judgment creditors shared in the distribution.</p> <p>3. A executed a deed conveying a life estate to B, the wife of a judgment creditor of A, which deed was to be held in escrow and delivered to B upon payment bv her of her husband’s obligation. to A. B having failed to pay such debt, an action) was instituted by the judgment creditor to enforce his lien against the property, which property B purchased at judicial sale. Held: B never having discharged her husband’s debt and the deed never having been delivered to her, no title passed to her or to remaindermen: upon the termination of the life estate conveyed to her by such deed. B acquired title to the property by her purchase at judicial sale.</p>

<p>Error: Court of Appeals for Jefferson county.</p>

<p>Wills — Construction — After-acquired realty passes, when — Sufficiency of description — Unnecessary to anticipate nature and origin of property, when.</p> <p>1. ' Where a testatrix in describing the estate devised uses interchangeably the terms “all my real estate” and “all the real estate of which I die seized,” the same is- sufficient to include after-acquired real property.</p> <p>2. Where such after-acquired real estate came to- the testatrix by descent from her husband, the effect of the words- so employed in describing the estate devised will not be limited by the fact that the will upon its face does not disclose that the testatrix anticipated the prior death of her husband.</p> <p>3. Where the descriptive terms employed in- the will include after-acquired real property it is not necessary to give effect to such descriptive words that the testatrix actually anticipated the exact nature and origin of the property to be acquired.</p>

<p>Negotiable instruments — Note executed by partnership — Renewal note given after partner retires — Liability of retiring partner — Cross-examination — Defaulting defendant may be called by plaintiff, when■ — Section 11497, General Code.</p> <p>1. A partnership consisting of three members gave a note in payment of an account for materials furnished in the construction of a building. Subsequently one of the partners retired and one of the remaining partners signed the partnership name to a renewal note which was accepted by the original creditor. Held: The retiring partner is liable on the renewal note, as the remaining partner had authority to sign the partnership nlame and the original creditor was without notice of the 'dissolution of the partnership. (Palmer v. Dodge, 4 Ohio St., 21, distinguished.)</p> <p>2. A defendant in a civil action, who files no pleading or answer and makes no defense, may be called by plaintiff for cross-examination, under Section 11497, General Code.</p>

<p>Negligence — Railroads — Wrongful death — Charge to jury — Damages — • Future parental care, guidance, etc. — Federal Employers’ Liability Act — Comparative negligence — Contributory negligence — Burden and degree of proof — Excessive verdict— Flusband and 'wife living apart.</p> <p>1. In an action to recover damages for death by wrongful aot, it is not error to charge the jury that they could take into consideration the care, attention, instruction, training, advice and guidance, if any, which, the evidence shows the decedent reasonably might have been expected to give his children during their minority, and include the pecuniary value thereof in the damages assessed, if any.</p> <p>2. Under the Federal Employers’ Liability Act, where the negligence of the decedent contributed directly to his own death, the damages are to be diminished in proportion to the amount of negligence attributable to him as compared with the combined negligence of both employer and employe.</p> <p>3. When the inference of contributory negligence does • not arise from evidence offered by the plaintiff, the burden rests on the defendant to show the same by a preponderance of the evidence, and it is not established by evidence which only “equals ini weight that offered by the plaintiff.”</p> <p>4. Where, in an action to recover damages for death by wrongful' act, a judgment of $16,500 has been rendered, and it appears from the evidence that the husband and wife had been living apart and a divorce suit pending and that he was not voluntarily contributing to the support of the family, and the jury was not instructed as to the effect of these facts, and the amount >of the judgment appears to be greater than the pecuniary loss suffered1 when these facts are given due weight, the judgment will be reversed unless the defendant in error will consent to a remittitur.</p>

<p>Schools — Boards of education — Resignation of member — Vacancy lilted, hozo —Section 4748, General Code — Provisions directory, when.</p> <p>The provision of Section 4748, General Code, that upon resignation of a member of a board of education such vacancy shall be filled by the board “at its next regular or special meeting” is directory and not mandatory. A vacancy so created may be filled at the same meeting at which a member resigns.</p>

<p>Insurance — •Mutual benefit societies — Answers of applicant — Considered as a whole, when— Truth or falsity ■ — ■ Question for jury — Verdict — Review on weight of evidence.</p> <p>1. A beneficial association-, in resisting payment of a death claim, can not rely on part of the answers made by the decedent in his application for membership and ignore his answers to other questions, but the answers must be taken as a whole in determining their truth or falsity.</p> <p>2. Whether or not the decedent answered falsely is a question for the jury, and it is not within the province of a reviewing court .to set aside the verdict of the jury on such an issue upon the weight of the evidence unless the verdict is clearly and manifestly against the weight of the evidence.</p>

<p>Divorce and alimony--Petition good as to alimony — Although demurrable as to divorce — Section 11980, General Code.</p> <p>It is error to sustain a general demurrer to a petition1 praying for a divorce and alimony, where the petition sets forth facts constituting a good cause of action for alimony alone, although it is fatally defective as one for divorce in that it appears from the allegations of the petition that the plaintiff had1 not been a resident of the state for the full period of one year before filing her petition.</p>

<p>Error: Court of Appeals for Warren county!</p>

<p>Negligence — Pleading negligent acts of defendant— Overruling motion to make definite, etc. — Not prejudicial error, when — Negligence per se — Obstructed headlight on engine — Section 8945-1, General Code.</p> <p>1. While it may be error to overrule a motion to make a petition for-damages definite and certain by specifying the defendant’s negligent acts causing the injury, such error is not prejudicial where the only persons present at the time of the accident were defendant’s employes whose undisputed evidence showed negligence on the part of the defendant in operating its locomotive and train of cars.</p> <p>2. The operation of a locomotive with its headlight obstructed by a box-car or caboose which was being pushed by such engine, is a violation of Section 8945-1, General Code, requiring the equipment of locomotives with headlights, and constitutes negligence per se, which negligence, if the proximate cause of an injury, would make a defendant railway company liable.</p>

<p>Intoxicating liquors — Keeping place where liquors unlawfully sold — Sufficiency of affidavit — Irregularities waived, when — Liquor licensee — Effect of failure to demand jury trial — Defenses — Proof of instructions to barkeepers — Sales to minors — Single sale sufficient to convict, when — Evidence — Sections 1261-69 and 13195, General Code.</p> <p>1. In a criminal prosecution before a mayor, neither the omission of the mayor’s official seal on the affidavit and warrant, nor the absence of a file-mark thereon, nor the insertion of the original affidavit in the warrant instead of a copy or a statement of the substance thereof, affects the validity, of the proceedings, and such irregularities are waived by a plea of not guilty.</p> <p>2. A liquor licensee, prosecuted under Section 13195, General Code, for keeping a place where intoxicating liquors are unlawfully sold, can not complain that no preliminary examination has been had under Section' 1261-69, General Code (103 O. L., 239, Section 54), where he made no demand therefor, nor any claim of a previous conviction, nor that a conviction would operate to revoke his license, where he went to trial on the merits before the magistrate without demanding a jury.</p> <p>3. Proof that the defendant had given directions in good faith to his barkeepers not to make unlawful sales of intoxicating liquor is no defense in a prosecution under Section 13195', General Code, for keeping a place where intoxicating liquors are sold contrary to law.</p> <p>4. Evidence of a single sale of intoxicating liquor to a minor, in a room equipped with bar fixtures and conducted as a saloon, justifies a conviction under Section 13195', General Code, for keeping a place where intoxicating liquors are unlawfully sold.</p>

<p>Appeal : Court of Appeals for Hamilton county.</p>

<p>Wills — Life estate — Vested remainder — When divested by death — Deed or will conveys no interest, when — Acknowledgment of legitimacy under favor of Section 8591, General Code, what is — Status of heir — Sufficiency of proof • — •Birth within lawful wedlock raises presumption of heirship, when — Right to take under provisions of will arises, when.</p> <p>1. Where by will a testator devises all of his real estate to his wife for the remainder of her natural life, or so long as she remains unmarried, and provides that in the event of her remarriage she should have such portion of the estate as the law fixes for a surviving widow, and that the remainder be equally divided among his four children named in said will, and, further, that if any of them be deceased at the time of such remarriage, leaving no issue, such share or shares be equally divided among his other children, and in a further item provides that at the death of his said wife, should she remain unmarried until that time, all of his estate real and personal should be then equally divided among his “sons aforesaid,” and in the event that any were deceased at the death of his said wife fhen the share of such deceased son should go to his children, and if no children- living then such share should be equally divided among his remaining children, or their heirs, such will vested in each child his proportionate share of said estate at the death of the testator, subject to being divested by the death of such child before the death of the widow, and a deed or will made by such child for his share in said estate prior to the death of -the widow will not convey any title or interest in and to such share.</p> <p>2. Where a man marries a pregnant woman who ha9 preferred a bastardy charge against him, and later a child is born in lawful wedlock, and the putative father visits the mother and child soon after birth, and afterwards makes a bequest to said child in his last will and testament, such' recognition is a sufficient acknowledgment under favor of Section. S591, General Code, to render such son legitimate.</p> <p>3. To establish status as heir, or heirship^ of one begotten out of but ■born in lawful wedlock, it is not required that the proof be clear and convincing; such claim need be shown affirmatively only; that is, by a preponderance of the evidence, the burden being upon the one asserting such claim.</p> <p>4. Where a man marries a woman having a son born out of lawful wedlock, and such son is taken into their home and treated as one of the family, is given and known by the family name, is referred to in the last will and tesfámerft of the husband as one of his children, and as his son, and such will further provides that if, at the death of his surviving widow, who is bequeathed a life estate in his realty, any of his sons shall be deceased the children of such son are to have his share, such recognition- and testamentary provision are sufficient to entitle the son of such person born out of lawful wedlock, his father being dead, to take directly under the provisions of said will.</p> <p>5. Proof of birth within lawful wedlock raises the presumption of the right of heirship or the right to inherit through the father.</p>

<p>Pleading — Bill of particulars and petition distinguished — Municipal court of Cincinnati — Section 1558-12, General Code — Action on account or on contract lies, when— Sales — Defective goods — Rights of buyer — Section 8449, General Code.</p> <p>1. A bill of particulars differs from a petition in that the former is an account of the items of a claim, while in the latter it is necessary to describe, in legal language, an application to the court.</p> <p>2. There is no authority under Section 1'55'8-12, General Code, for the filing of a petition in the municipal court of Cincinnati.</p> <p>3. Where a contract of sale and the delivery of goods are fully performed and the items of the account are stated, an action on account may be maintained or plaintiff may elect to plead . specially on the contract.</p> <p>4. Where the seller delivers goods which are defective in quality, the buyer has a right under Section 8449, General Code, to' refuse to accept the goods, or he may seasonably return them after discovering the defect, but if the buyer retains the goods he can not refuse all payment for the same.</p>

<p>Error proceedings — Pinal order — Motion to quash service — Summons— Officers of corporation — Non-resident president — Who may be served — Sections 11272 and 11288, General Code— Venue of action — Personal injuries.</p> <p>1. An order of the court of common pleas quashing on motion the service of summons is not a final order or judgment to which error can be prosecuted.</p> <p>2. On the death of the first vice president of a corporation the second vice president becomes ipso facto the first vice president and may take the place and perform the duties of the president in his absence.</p> <p>3. The president of an Ohio corporation being a non-resident of the state, and absent therefrom, service of summons on the corporation may be made, by virtue of the provisions of Sections 11272 and 11288, General Code, on the vice president, such, officer being a chief officer within the meaning of said sections.</p> <p>4. An action for personal injuries may be brought against an Ohio corporation in any county of the state in which service of summons can be made on a chief officer of the corporation. •</p>

<p>Contracts — Intent of parties — Ambiguous written provisions — Evidence— Conversations before signing admissible, when — Uncommunicated intentions inadmissible, when — Breach of contract — Error to deny plaintiff nominal damages, when.</p> <p>1. Parol evidence of conversations between parties prior to- or at the time of signing a written agreement are admissible to explain mutual intention as to ambiguous terms, but it is prejudicial error to admit testimony as to unexpressed or secret intentions of one party which are not communicated to the other party.</p> <p>2. Where an agent establishes a breach of contract by his principal but is unable to°prove substantial loss, the agent is at least entitled to nominal damages; and since a judgment for the principal would carry costs a failure to grant nominal damages constitutes reversible error. •</p>

<p>Special assessments — Injunction lies, when — Excess cost over special benefits.</p> <p>Since exact equality of taxation is not always attainable, a court of equity will not restrain the enforcement of a special assessment , unless the excess cost of the improvement substantially and materially exceeds the special benefits conferred.</p>

<p>Burden of proof — Charge io jury — Not prejudicial error, when — Verdict favoring party complaining.</p> <p>Where a jury finds for the plaintiff upon one of three theories which are submitted by the charge of the court and by forms of verdict, an incorrect charge as to the burden of proof is not available to the plaintiff as a ground of prejudicial error.</p>

<p>Board of health — Abatement of nuisances — Sufficiency of notice to owner or occupant of premises — Prosecution for failure to obey order — Sufficiency of affidavit and proof — Sections 4413, 4414 and 4420, General Code — Constitutional law.</p> <p>1. A violation of a statutory offense may be charged ini the language of the statute.</p> <p>2. In a prosecution for the violation of an order of the board of health the following must be proved: first, venue; second, the ■service of an order upon the defendant as owner or otherwise; third, a failure on his part to comply therewith; and, fourth, that at the time there in fact existed a nuisance to which the order was directed and which he failed to obey.</p> <p>3. Sections 4413' and 4414, General Code, relating to orders and regulations by a board of health of a municipality and prescribing a penalty for violations thereof, must be construed with Section 4420, General Code, authorizing the abatement of nuisances, and-an order of a board of health to- abate a nuisance need not be accompanied with the proceedings referred, to ini the second sentence of Section 4413, General Code.</p> <p>4. Section 4414, General Code, is constitutional.</p>

<p>Contracts — Exclusive sales agency — Specific performance — 'Terms too indefinite to enforce, when — Injury to good-will of trade name — Agent can not recover damages, when.</p> <p>1. A contract of exclusive agency for the sale of goods, -which is so indefinite in terms as to duration, price and quantity that a court is unable to ascertain the intention of the parties, will not be enforced.</p> <p>2. A contract which provides that the agent should have the exclusive sale of goods “as long as he gives us a reasonable volume of business,” is too uncertain to be enforced.</p> <p>3. An agent can not recover damages for injury to the good-will of a trade name of a product sold under such a contract in the absence of a property interest in the agent; and such property interest does not exist where such contract depends upon the continued acquiescence of the principal, who- could withdraw the agency at will.</p>

<p>Pleading — Counterclaim by automobile owner — In action by street car passenger — For injuries received in collision — Section 11317, General Code.</p> <p>The owner of an automobile who has been joined with a traction company as defendant in an action for damages for injuries received by a street car passenger as the result of a collision, can not under Section 11317, General Code, file a counterclaim against the traction company and thus litigate his rights as against the traction company in such action.</p>

<p>Negligence — Error to direct verdict, when — Questions for jury-— Proximate cause of death — Substantial compliance with statute — Section 4658, General Code — Exits in tenement houses — Death in attempting io escape from tire.</p> <p>Plaintiff’s intestate was a tenant in defendant’s apartment house in which access to the only fire escape available to the deceased was through a hallway. Fire in the hallway prevented her from reaching the fire escape, and she dropped from- a window and was killed. Action was then brought, it being predicated upon a claimed violation of Section 46S'8, General Code, which requires among other things that tenement houses more than two stories in height be provided with exits from the upper stories easily accessible in case of fire. At the close -of plaintiff’s testimony a motion to direct a verdict for the defendant was sustained. Held:</p> <p>1. That such action of the court was erroneous, for whether or not there had been a substantial compliance with such statute and whether or not the failure to so comply was the proximate cause of the death of the deceased were questions for the jury.</p> <p>2. The fact that there were exits did not determine compliance with such statute. Substantial compliance is required and is to be decided as a matter of fact from all the circumstances.</p>

<p>Attorney and client — Champ ertous agreement — Dismissal of action on zvritten contract — Suit for quantum meruit not barred, when.</p> <p>Although a contract between an attorney and client may be void for champerty, if the agreement and the services are not otherwise illegal, an attorney may recover ■ reasonable compensation for services rendered; and the dismissal not on the merits of an action on a written contract does not bar a subsequent suit by n attorney to recover in quantum meruit.</p>

<p>Negligence — Infant injured in meat grinding machine — Directed verdict — Failure of evidence — Knowledge of presence of child in room.</p> <p>In an action against the proprietor of a butcher ■ shop for damages for personal injuries received by an infant while playing with an electric meat grinding machine, which it is alleged was being operated while unguarded, unprotected and unattended, it is error for the trial court to overrule a motion to direct a verdict for the defendant, where the evidence fails to show that the proprietor had knowledge of the presence of the infant in the shop. (Ziehm, by etc., v. Vale, 98 Ohio St., 306, distinguished.)</p>

<p>Wills — Not signed at end, when — Signature by mark — Contest of will — Question of law for court — Due execution and attestation— Directed verdict proper, when. — Interested parties— Creditors of heirs.</p> <p>1. A will is not signed at the end thereof, as required by the statute, where the testator’s name and the words “his mark” appear, in the handwriting of the scrivener, on the line where the signature of the testator is customarily inserted at the end of the testimonium clause and the space between the words “his” and “mark” is blank, but an X appears between the given name and surname of the testator on the first line of the attestation clause.</p> <p>2. Upon motion by plaintiffs to direct a verdict in an action to contest a will, in the absence of ambiguity appearing on the face of the will, it becomes the duty of the court to determine as a matter of law from the will itself whether or not it has been executed and attested in compliance with the requirements of the statute.</p> <p>3. Where in an action to contest a will, filed by creditors of a son of the deceased, the court finds that the will was not signed- at the end, the court should grant the motion of the plaintiffs to direct a verdict invalidating the will, even though answers were filed denying generally the claims of plaintiffs that they are interested parties.</p>

<p>Taxation — Membership in New York Stock Exchange — Taxable in Ohio, when — Constitutional duty of legislature — Statutory construction.</p> <p>1. A membership in the Neiv York Stock Exchange is property in the nature of a chose in action.</p> <p>2. Such property is taxable at the domicile and residence of the owner, and the laws of Ohio subject it to taxation.</p> <p>3. The constitution of Ohio imposes on the general assembly the ' duty to pass laws taxing all property with certain named exceptions. This réquires the enactment of laws to carry it into effect.</p> <p>4. In construing a statute passed pursuant to such provisions the court imputes to the general assembly the intention to comply with the constitutional requirement.</p>

<p>Court procedure — Motion for directed verdict overruled — Motion to be renewed, when — Negligence — Duty to submit case to jury, when — Sleeping-car company — Loss of passengers baggage and effects — Ordinary care required of company.</p> <p>1. It is necessary when a motion for an instructed verdict is. made and overruled at the conclusion of plaintiff’s evidence that such motion should be renewed at the conclusion of all the evidence, and if there is no evidence of negligence appearing in the case up to its conclusion it is the court’s duty as a matter of laiw to instruct a verdict; but if evidence appears which tends in any degree to establish negligence by the defendant the court must submit the question to the jury.</p> <p>2. A sleeping-car company is not liable as insurer of a passenger’s baggage or effects, nor is its obligation that of a common carrier or innkeeper, but it is liable for negligence only in failing to exercise ordinary care. \</p>

<p>Presumptions — Death after seven years' absence — Descent of property to absent heir.</p> <p>Where a person mysteriously disappears and is not again ¡heard from, a legal presumption of his death does not arise until seven years from the date of his disappearance, and in the absence of any proof showing his death the property of an ancestor dying within the seven-year period will be presumed to have descended to such absent heir.</p>

<p>Parties defendant — Who may be joined by cross-petition — Principal of surety or agent — Sections 11255,11262 and 12206, General Code.</p> <p>1. Persons who are made defendant under Sections 1H255 and 1'1'262, General Code, must be those whose presence is essential to the determination of the controversy before the court, and a defendant can not by cross-petition bring in new parties in order to litigate matters wholly between themselves and which can not affect the right of the plaintiff to recover on his petition.</p> <p>2. Section 12206, General Code, contemplates an original action by a surety against his principal to discharge the debt or liability, and a defendant who claims he was acting as agent and that his principal agreed to protect him from liability is not entitled to have his principal made a party defendant by cross-petition.</p>

<p>Public contracts — Advertisement for bids — “Two consecutive weeks" construed — Statutory provisions mandatory — State highway commissioner.</p> <p>1. A statute requiring the state highway commissioner, before letting a contract to build an improved road, to “advertise for bids for •two consecutive weeks,” is mandatory and must he strictly complied with.</p> <p>2. The term “two consecutive weeks,” as used in such, statute, means two full calendar weeks.</p>

<p>Negligence — Charge to jury — Violation of municipal ordinance — Effect of failure to plead or prove ordinance — Evidence — Photograph of automobile admissible, when — Doctrine of last chance applies, when — Depositions —Notice to adverse party insufficient, when — Section 11534, General Code.</p> <p>1. In an action to recover damages for wrongful death resulting from the operation of an automobile in violation of a municipal ordinance, it is error to charge the jury that a verdict should be returned for defendant if the evidente showed’ that plaintiff violated a section of the ordinance requiring pedestr.ians to cross streets or highways at right angles and at regularly designated crossings, where such section of the ordinance was not pleaded or offered in evidence.</p> <p>2. A photograph correctly representing the condition of an automobile after an accident is admissible in evidence.</p> <p>3. The duty imposed upon a defendant under the doctrine of last chance arises only after the discovery of plaintiffjs' peril; but the doctrine does not apply where the negligent a.cj:s of the plaintiff are concurrent with th'e negligent acts of the defendant.</p> <p>4. A notice to the adverse party that depositions of witnesses would be taken “at Camp Hancock, Georgia, in the County of Richmond, in the State of Georgia,” is not a sufficient compliance with the provisions of Section 11534, General Code, which requires that the notice shall state “the place where” depositions are to be taken.</p>

<p>Railroads — Interurban and steam — Crossing — Construction and maintenance — Contracts — Consideration — Right .to cross — Nudum pactum.</p> <p>Since an interurban railroad may, without paying compensation, cross the tracks of a steam railroad located in the center, and in the grade, of a highway, a contract obligating an interurban railroad to construct and maintain a crossing is a nudum pactum, where the only consideration for such contract is the right granted the interurban railroad to cross the tracks of the railroad company.</p>

<p>Workmen’s compensation — Injury received in another state — Employe not entitled to compensation, when — Witnesses—Impeaching one’s own zvitness — Scope of rule.</p> <p>1. An employe who is denied an award from the workmen’s compensation fund and prosecutes appeal from the decision of the industrial commission under favor of Section 1*465-90, General Code, can not recover compensation in the absence of a showing that such employe was employed in Ohio or employed to work in this state.</p> <p>2. Whether an injured employe can recover compensation from the industrial commission where he is employed in Ohio to do work entirely without the state, or employed outside Ohio to do work partly within and partly without the state: Qucre.</p> <p>3. A party calling a witness is not thereby precluded from proving • the truth of a relevant fact by another witness whose testimony may incidentally reflect upon the person previously testifying as to such fact.</p>

<p>Assignment — Balance due contractor to be paid materialman — Agreement not unconditional assignment, when — Workmen’s compensation — Lien of judgment for azvard by industrial commission — Priorities—■Section 1465-77, General Code.</p> <p>1. An agreement whereby a firm of contractors1 2pledged to a company from which they were receiving material, for the purpose of guaranteeing payment for said material, the sum of $2,000 then due under the contract and any further sums to become due on account of material so received, does not constitute a valid assignment of the full amount called for under the contract, where the full amount was largely in excess of the sum then due and the amount which would become due for the material in the future was uncertain, as was also the amount which would become due to the contractors, because of the fact that they might not complete the work, and there was an express provision that the balance over was to be paid to the contractor^ and the checks to be sent to the pledgee were to be made out to the contractors and endorsed over by them.</p> <p>2. No valid assignment having been made of the whole amount to become due under the contract, it follows that the lien of a judgment of an injured employe, which by provision of the Workmen’s Compensation Act covers all the assets of his employers, is prior to that of the company which furnished the material.</p> <p>3. Whether a party who secures the assignment of the proceeds of an improvement contract takes it subject to the provisions of the Workmen’s Compensation Act: Quere.</p>

<p>Negligence — Doctrine of last chance applies, when — Concurrent negligence.</p> <p>The doctrine of last chance has no application in a case where the negligence of plaintiff was concurrent with that of the defendant, but applies only after the discovery by defendant of plaintiff’s peril.</p>

<p>Habeas corpus — Not writ of error — Minor convicted of felony — Failure to challenge jurisdiction of common pleas court — Minor not taken before juvenile court — Section 1659, General Code.</p> <p>1. Proceedings in habeas corpus will not be allowed to take the place of proceedings in error. If a judgment in a criminal case is erroneous, but not absolutely void, it can not be collaterally attacked.</p> <p>2. Habeas corpus will not lie to secure the discharge of a minor who was indicted for a felony and convicted in the court of common pleas, but did not challenge the jurisdiction of 'the court until motion for new trial, or prosecute error, on the ground that he was under eighteen years of age and should have been first taken before the juvenile court, in accordance with the provisions of Section 1659, General Code.</p>

<p>Municipal corporations — Street improvement — Damages for change of grade — Failure to file claim — Abutting owner may sue, when — Defense available to city, when — Unreasonable grade determined, hozo- — -Charge to jury — Measure of damages — Misconduct of counsel —- Argument to jury — Sections 3833 and 3830, General Code.</p> <p>1. Section 3830, General Code, relating-to filing claim's for damages resulting from an improvement by a municipality, does not purport to extinguish the cause of action, but is merely procedural; and was designed to give the city an opportunity to investigate or settle and adjust the claim without cost.</p> <p>2. In an action for damages resulting from a change of grade in making a street improvement the question of the effect of failure of plaintiff to comply with Section 3830, General Code, must be raised by plea or motion by the city at the outset of the trial, and a failure to make the objection until -the court comes to charge the jury constitutes a waiver.</p> <p>3. Section 3823, General Code, provides a defense to a cause of action for damages resulting from an improvement to the abutting owner upon the giving of a proper notice and upon failure of an owner to present a’ claim, and such defense may be made by an amended answer the right to file which is within the court’s discretion.</p> <p>4. The question whether a grade established by a city council is unreasonable must be determined as of the time of its establishment.</p> <p>5. A charge that the jury may take into consideration on the issue of the unreasonableness of an established grade an unofficial survey of the city engineer made many years prior to the establishment of such grade, and that if the buildings upon the lot were constructed to a reasonable grade at the time of their construction the owner was entitled to damages if the established grade was found unreasonable, is misleading and prejudicial.</p> <p>6. The measure of damages in cases where the established grade is unreasonable is the difference between the amount of damages which would have resulted to the property from the establishment of a reasonable and proper grade and that resulting from the grade actually established.</p> <p>7. Statements of a trial court in a general charge which would reasonably lead the jury to the conclusion that the measure of damages was the difference between the value of the property before the establishment of the grade and the'value subsequent thereto are erroneous and misleading.</p> <p>8. Where the trial court in different portions of the charge states a correct and also an incorrect rule upon the measure of damages and where from the whole charge in connection with the evidence it is uncertain which rule the jury adopted, the verdict and judgment should be set aside.</p> <p>9. The latitude allowed counsel in the argument of the case is in some measure a matter of discretion with the trial court. A reviewing court should not reverse upon the ground of misconduct of counsel in the argument of the case unless from the whole record it is clear that the trial court abused its discretion to the prejudice of the complaining party.</p>

<p>Embezzlement — Public funds — Failure to pay money into' treasury — Section- ¿Sp — Intent a question for jury- — -Charge to jury — Section 12873, General,Code.</p> <p>1. Intent is a necessary ingredient in the crime of embezzlement.</p> <p>2. The' holding of public money by an official and his failure to pay • the same into the treasury each twenty-four hours, as required by Section 289, General Code, are facts to be considered by the jury as evidence of an intention to convert such money to his own use and thereby embezzle it, and, under Section 13674, General Code, the failure to pay over such money constitutes prima facie evidence of its embezzlement.</p> <p>3. On the trial of an official whose duty it is to pay public funds received by him into the treasury each twenty-four hours, it is prejudicial error to charge the jury that the mere keeping of public money in such custodian’s house for a period of time, thus depriving the county of the use of such money, would be a conversion thereof and constitute embezzlement under Section 12873, General Code.</p>

<p>Accident insurance- — -Written notice of injuries — Policy provisions liberally construed — Latent injuries — Loss of eyesight follows slight accident — Notice given insurer within time, when.</p> <p>1. Under a policy of accident insurance which provides that no claim shall be valid “unless written notice is given * * * within thirty days from the date of sustaining any injuries, fatal or otherwise (unless such notice shall be shown not to have been reasonably possible),” is open to the construction that a policyholder will not be required to give notice within thirty days after an accident if no serious injury was indicated at the time of its occurrence; and where the injury was to the eyesight, and did not become apparent until tern months later, liability attaches if notice was given as soon as the injury developed.</p> <p>2. Under a policy which provides that notice shall be given at the home office of the company within ten days from the date of the accident, but which contains the further provision that the full amount of the policy shall become payable in case of irrecoverable loss of the entire sight within two hundred weeks, a policyholder sustaining an injury to his eyesight, which did not appear ■immediately, but existed in a latent condition for a considerable period, will be held to be protected.</p>

<p>Bailments — Contributory negligence of bailee — Not bar to recovery by bailor — For negligence of third person — Automobile damaged while driven by gratuitous bailee.</p> <p>The owner of property in the hands of a bailee may recover from a third person damages caused to such property by the negligence of the third person, even though the bailee be guilty of contributory negligence in the handling of the property, and even if the bailee, in an action brought by him1, might be met with the defense of contributory negligence.</p>

<p>Wills — Lost or spoliated — Evidence to establish — One subscribing witness sufficient, when — Contest — Prima facie evidence — Order of probate — Presumptions — Animo revocandi — Original' will deposited with probate court.</p> <p>1. The contents of a lost or spoliated will may be established by the-testimony of one witness.</p> <p>2. When no evidence was offered on the trial to show when the will' was lost or destroyed, whether before or after the death of the testator, the order of probate admitting the will to record is-sufficient evidence of the existence"^ of the will after such death' to justify a verdict sustaining the will.</p> <p>3. The -presumption that a will once proven to exist, and to have-■been in the custody of the testator, and which can not be found' after his death, was destroyed by the testator animo revocandi, does not arise when such will was deposited in the office of the probate court and was never called for thereafter by the testator and could not be found a few days after his death or at any subsequent time.</p>

<p>Negligence■ — -Automobile and infant — Pedestrian may cross street, where — -Question for jury — Exercise of care — Evidence — Custom of children in crossing street — Charge to jury.</p> <p>1. For a pedestrian to attempt to cross the street at a point other than where there is a regular crossing for pedestrians is not negligence as a matter of law in the absence of an ordinance forbidding such use of the streets.</p> <p>2. Whether reasonable care was used by a child ten years of age, who was struck by an automobile while attempting to cross a street midway between crossings, is a question for -the jury, depending somewhat on the age, intelligence and experience of the one so injured.</p> <p>3. While the driver of an automobile is bound to use special caution at street crossings to avoid striking pedestrians, he is bound at all times to keep within the speed limits and to use due care to prevent striking persons who may be in the street.</p> <p>4. To admit testimony to the effect that school children were in the habit of taking a short cut across the street at the point where the accident complained of occurred, is not prejudicial to one whose machine struck a child at that point, where the jury are charged that such testimony is without effect upon him unless the practice of children so to do had been brought to his knowledge.</p>

<p>Court of appeals — Appellate jurisdiction — Petition for money and foreclosure of lien — Amount due only issue raised by answer.</p> <p>Where a petition sets forth an amount due for labor and material furnished for the construction of a house for the defendant, and a mechanic's lien to secure the same, and prays for a personal judgment and foreclosure of the lien, and the answer raises an issue only as to the amount due, the action is not appealable.</p>

Error: Court of Appeals for Pike county. This was an action to appropriate private property for right of way of plaintiff — averred to be a corporation organized under the laws of Kentucky- — in constructing a railroad from Edgington, Kentucky, to Waverly, Ohio. The original judgment of the probate court in favor of the plaintiff was affirmed by the court of common pleas, reversed by this court, and the cause remanded to the court of common pleas for a new trial.

<p>Brokers — Action for. commission — Pleading — Sale of realty — ■ Ability of owner to perform contract — Title to property.</p> <p>1. A petition alleges:</p> <p>(a) That the plaintiff, a broker, entered into a contract with defendant, the owner of an interest in certain lands, whereby defendant authorized plaintiff to procure a purchaser for such lands at a given price;</p> <p>(ft) And that such broker secured a purchaser who was ready, willing and able to buy the said real estate upon the terms specified in said contract;</p> <p>(c) And that defendant failed and refused to contract with such purchaser for the sale of said lands or cause the same to be sold or conveyed upon the terms -specified in such contract of employment.</p> <p>Held: Such petition states a cause of action and is'not subject to demurrer.</p> <p>2. In making such contract of employment the broker, in the absence of any showing.to the contrary, has the right to assume that the owner of the said interest in said real estate is able to perform the contract so entered into and to complete the sale so authorized.</p>

<p>Contract to sell realty — Wives decline to sign deed — Specific performance refused — But damages may be 'assessed, when — Breach of contract.</p> <p>1. Where the plaintiff enters into a written contract for the purchase of real estate with the owners thereof, and knows that such owners are married, hut the wives of such owners do not sign the contract although it was contemplated by the parties that the title should be conveyed free from the dower rights of the wives, and where the wives, without fraud or collusion with their husbands, refuse to execute deeds conveying such real estate, a decree of specific performance will not be granted against the owners, with a provision for an abatement from the purchase price of the value of the inchoate right of dower of the wives, but the plaintiff will be remitted to his claim for damages for breach of the contract.</p> <p>2. Where an action is brought in good faith for specific performance, and the court declines to grant that relief, damages may be awarded to the plaintiff in the same action for a failure on the part of the defendant to perform the terms of the contract.</p>

<p>Ditches — Jurisdiction of county commissioners — Route over existing township ditch — Unnecessary for trustees to refuse to act, when — Sections 6517, 6443 and 6453, General Code.</p> <p>1. The provisions of Section 6517, General Code, are cumulative, and are intended to afford petitioners for the alteration and repair of ditches an additional remedy after refusal by the township trustees to act.</p> <p>2. This section does not limit or qualify the right of county commissioners to proceed under Sections 6443 and 64’52, General Code, and refusal by the township trustees to act as provided in Section 6917, supra, is not necessary to give county commissioners the authority to do the things specified in Sections 6443 and 6452, supra.</p> <p>3. County commissioners may alter, improve or repair a ditch located in part over the line of a township ditch without any prior refusal by the trustees to act in respect to such improvement.</p>

<p>Carriers — Railroads — Free special baggage car — For twenty-five passengers at regular fares — Eirror of agent in dividing party of thirty-five — Excess fare not recoverable, when.</p> <p>A railway company, whose ticket agent sold at full regular tariff two tickets for two parties of sixteen and nineteen men, respectively, and agreed to furnish a special baggage car free, can not recover further compensation in excess of the service actually rendered for the transportation of one of such parties because of a transportation rule to furnish a special baggage car free with a party of not less than twenty-five adults, holding tickets at regular tariff rates; especially, since the issuing of the tickets and the division of the party were determined by the ticket agent and no misquotation of fare rates was made.</p>

<p>Conveyances — Real estate — Gift to defraud creditors — Husband and zvife — Constructive fraudulent intent — Sections 8618, 11104 and 11105, General Code — Release of dower insufficient consideration, when — Bankruptcy — Liens — Action to set aside conveyance— Rights of judgment creditor.</p> <p>1. A conveyance of real estate by a husband to his wife as a gift will be set aside as having been made, in fraud' of creditors where it is disclosed that the husband has not sufficient assets to permit him to make a gift but is unable to pay his debts.</p> <p>2. Section 11105, General Code, making knowledge of 'fraudulent intent material, applies only to Section 1!1104, General Code, relating to transfers in contemplation of insolvency or to prefer . creditors, and not to Section 8618, General Code, invalidating gifts to defraud creditors. Hence, the transfer by a husband of all his unencumbered property to his wife, thereby providing a home in which he can live and thus defeating'.the rights of his existing creditors, is constructively fraudulent and void, even though no actual fraud was intended.</p> <p>3. The act of a wife in releasing her dower interest in other property is not a sufficient consideration to support such a conveyance, where the value of the property received by the wife is unreasonably disproportionate to the dower interest released by her.</p> <p>4. An action to set aside a fraudulent conveyance, instituted four months before defendant petitioned in. bankruptcy, does not create a lien upon the property of the bankrupt; but the lien of a judgment creditor is superior to that of a trustee ini bankruptcy, and the discharge of the debtor being a personal defense does not defeat the rights of the lienholder in the property.</p>