Volume 13 — Ohio Appellate Reports

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

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

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

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

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

<p>Public contracts — Statutory requirements strictly construed, when — Certificate of clerk that funds available — Sections jóóo and 5661, General Code — Separate certificate for each contract necessary, when.</p> <p>1. Under the provisions of Section 5660, General Code, when money for a public building is to be derived.from the sale of lawfully authorized bonds, a contract for such improvement, or any part thereof, is void unless the auditor or clerk of the board first certifies that the money required for the payment of such obligation or appropriation is in the treasury to the credit of the fund from which it is to be drawn.</p> <p>2. Where there is only one bond 'issue authorized, but several separate contracts are entered into with separate contractors, the auditor or clerk must file 'a separate certificate for each of such contracts.</p> <p>3. The restrictive statutes of the state are enacted for the general good, and for the protection not only of the contractor but also of the taxpayer, and their provisions will be strictly adhered to, and it devolves upon those who deal with public officials to see for themselves that the statutes have been complied with.</p>

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

<p>Sales — ■Installment contract — 'Delivery and payment concurrent, when — Buyer fails to pay— Seller discontinues shipments — Questions for jury — Nonpayment as breach justifying avoidance— Offer to resume shipment — Reasonable time of delivery — Evidence — War conditions affecting performance — Sections 8422, 8423 and 8423, General Code.</p> <p>Plaintiff and defendant entered into a contract whereby defendant was to make for plaintiff 400,000 specified castings at nine cents per pound, f. o. b., deliveries to be made as early as possible after January 2, 1917, nothing being said as to manner or time of payment. Defendant began deliveries of the castings which were accepted and paid for by plaintiff. The last installment, the value of which was $20.82, was delivered by defendant to the carrier March 20, 1917, but never received or,paid for by the plaintiff. Plaintiff later complained of non-delivery of the remaining installments and demanded immediate delivery, whereupon defendant replied that it would be unable to make any deliveries before January 1, 1918. In an action by plaintiff for breach of contract, Held:</p> <p>1. By the language of the contract and conduct of the parties it was the intention to make deliveries by installments, and by virtue of Section 8422, General Code, delivery and payment are concurrent. Under paragraph 2, Section 8425, General Code, whether the failure to make payment for the last installment was such' a breach as to justify defendant to refuse to proceed further is a mixed question of law and fact to be submitted to the jury under proper instructions.</p> <p>2. Defendant having denied a breach on its part, .and alleged its willingness to proceed with deliveries under the contract, it was error for the court to charge as a matter of law that the statement of the defendant that it could not resume deliveries before January 1, 1918, was a breach of the contract by the defendant.</p> <p>3. Under Section 8423, General Code, the question whether the offer to deliver January 1, 1918, was an unreasonable time under the terms of the contract was for the jury.</p> <p>4. What is reasonable time must be considered in the light of the surrounding circumstances, and it was error for the court to exclude evidence offered by defendant tending to show that after March, 1917, war conditions made it impossible to get necessary labor and materials; that defendant was hampered by shipping conditions; that the plant which furnished defendant .power broke down; and that strikes and wages interfered with shipments.</p>

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

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

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

<p>Constitutional law — Municipal corporations — Assessments and bond issues — Street improvements — Replacement or reconstruction of street railway tracks, etc. — Sections 3812-2 and 3812-3, General Code (108 O. L., 215) — Section 6, Article VIII, Constitution — Lending public credit to private corporation.</p> <p>Sections 3812-2 and 3812-3, General Code (108 O. L., pt. 1, 215-218), which provide for the replacement or repair of worn out or defective rails, ties, etc., of street railway companies in streets of municipalities, when such streets are to be paved, repaired, improved, etc., and in case the railroad companies fail to do so authorize municipalities to make such replacements, repairs, etc., and to assess the cost against the railway companies, and issue bonds in anticipation of their collection,- are invalid, being in contravention of Section 6, Article VIII of the Constitution of Ohio, which prohibits municipalities from raising money for or loaning their credit to any joint stock companies, corporations or associations.</p>

<p>Arbitration — Award of arbitrators final, when — Mistake justifying setting award aside — Arbitrator not disqualified, when — Knowledge of relationship at time of submission.</p> <p>1. An award rendered in a common-law arbitration, which conforms in all respects to the requirements of the submission, is binding upon the parties where the parties have agreed that the award shall be final and conclusive upon them and there is no fraud or such manifest mistake as naturally works a fraud.</p> <p>2. In order to warrant a court in setting aside an award of an arbitrator on the ground of manifest mistake, it must appear that there is a mistake of such a character that the arbitrator would have corrected it himself had it been called to his attention.</p> <p>3. An award of an arbitrator, who had been selected by plaintiff and defendant to settle a controversy, will not be set aside or corrected on the ground that the arbitrator became disqualified by the fact that defendant had employed one A as attorney, the said A being a client of the arbitrator, where the facts show that A had been appointed one of the receivers of a railroad company, whose principal counsel was one B, who was a law partner of the arbitrator, and that B exclusively handled the receivership matters in the federal court. The relation of attorney and client between defendant and A was merely nominal.</p> <p>4. In such case counsel for plaintiff having been aware of the relation between defendant and A cannot on that ground later complain of the award in the arbitration to which they voluntarily submitted with knowledge of the relation.</p>

<p>Criminal law — Evidence — Attempts by defendant’s counsel to bribe witnesses, etc. — Inadmissible on trial of defendant, when.</p> <p>In a criminal prosecution it is error to admit evidence of an attempt by the attorney for the accused to bribe witnesses or suppress evidence against the accused, where it is not proven that the accused was connected with such attempt.</p>

<p>Negligence — Injuries necessitate operation — Evidence — Statements of surgeons to patient — Exclamations or opinion of pain and suffering — Expert testimony and hypothetical questions — Argument to jury.</p> <p>1. In an action for damages for personal injuries due to defendant’s negligence, in which plaintiff alleges that as a result of the injury received she was compelled to and did undergo an operation, it is. error for the trial court to permit the plaintiff to state to the jury what operation the doctors told her they had to perform and what its effect would be.</p> <p>2. In such an action, a lay witness may testify to exclamations of pain and suffering made by the injured person in the presence of such witness, but he can not give his opinion as to the suffering and injuries received by the plaintiff.</p> <p>3. A witness called as an expert may answer hypothetical questions when the questions embody a statement of facts that there is soma evidence in the record tending to establish, but in answering such questions he may not combine with statements of fact in the record matters known to him personally and not testified to.</p> <p>4. It is improper for counsel, in his argument to the jury, to make statements of fact concerning which no evidence was offered at the trial.</p>

<p>Wills — Construction — Absolute devise to children — Later clause forbidding alienation — Children take fee simple, when.</p> <p>Where testator by will devises to his children certain specified realty in absolute language without words of limitation, and later in the same item attempts to limit or qualify the estate by providing “all of which real estate I give and bequeath unto the said Jane and Harvey unto them and their children, which real estate I design for their use, not to be disposed of by sale, neither by them nor their immediate children; in case either of the above children should die then the other to possess the whole,” there arises a repugnancy, the language forbidding alienation is void, such qualifying provision is in the nature of a precatory declaration, and the devisees take a fee simple estate.</p>

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

<p>Service of summons — Foreign corporations — Section 11290, General Code — President or managing agent may be served, when — Service upon president attending convention, insufficient, when — Error proceedings — Final order — Sustaining motion to quash service.</p> <p>1. Service of summons upon a foreign corporation whose place of business is outside of the state, having no agents in Ohio and transacting its business in the different states by mail, is controlled exclusively by Section 11290, General Code.</p> <p>2. Service upon such foreign corporation to be good must be made upon the managing agent, and when the sheriff’s return shows service only upon the president, it not appearing what the duties of the president are, nor that he is managing agent, it is incumbent upon the plaintiff to prove that such president is the managing agent.</p> <p>3. Where the president of such foreign corporation is in Ohio for the sole purpose of attending a national convention, his presence is merely temporary and incidental, and he is not doing business within the meaning of the law to afford a sufficient basis for service of summons.</p> <p>4. Error proceedings may be prosecuted from a judgment sustaining a motion to quash service of summons, on the ground that a foreign corporation is not amenable to suit in Ohio. (Towne v. National Machinery Co., 10 Ohio App., 265, distinguished.)</p>

<p>Accident insurance — Death by freezing — Voluntary exposure to cold — "A ccident” construed.</p> <p>A foreman, while walking from the factory to his home with the thermometer 20 degrees below zero, found that his face was frozen, and stopped at the home of his daughter, where he died a few minutes later. His physician testified that he was “frozen to death from exposure,” and the record showed no antecedent physical injury. The company defended on the ground that even if it were true that he died as a result of freezing, no liability attached, for the reason that he voluntarily exposed himself to the cold, and his death, therefore, was not due to an accident.</p> <p>Held: That upon reason and authority his death was due to “accident” within the meaning of the policy.</p>

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

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

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

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

<p>Court of appeals — Jurisdiction on appeal — Exceptions to inventory in probate court — Reviewed by common pleas court on appeal — Section 10640, General Code.</p> <p>The proceeding provided for in Section 10640, General Code, authorizing an appeal to the court of common pleas from an adjudication by the probate court of exceptions to an inventory of an estate in the course of administration, is purely statutory and appeal therefrom cannot be taken to the court of appeals.</p>

<p>Workmen’s compensation — Civil liability of employer — Failure to comply with lawful requirement — Section 12593, General Code, inapplicable, when — Improper ladders or scaffolding — "Lawful requirement” construed — Section 1465-76, General Code.</p> <p>1. Section 12593, General Code, providing for liability of an employer for furnishing to employes improper ladders, scaffolding, etc., is not a “lawful requirement” within the meaning of Section 29 of the Workmen’s Compensation Act (Section 1465-76, General Code), which imposes upon the employer liability for injuries due to his failure to comply with “lawful requirements” for the protection and safety of his employes.</p> <p>2. An employer’s duty to protect the lives and safety of his employes, in order to come within the meaning of the term “lawful requirement” as used in Section 1465-76, General Code, must arise by reason of either a statute, ordinance, or order of the industrial commission requiring him to adopt specific safety devices or safeguards or to do a specific act. A general duty not to be negligent is not within the meaning of the term.</p>

<p>Fraternal insurance — False statements by applicant■ — •Section P3pi, General Code, inapplicable, when.</p> <p>The provisions of Section 9391, General Code, relating to answers to interrogatories in an application for life insurance, do not apply to fraternal insurance.</p>

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

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

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

<p>Landlord and tenant — Statute of frauds — Section 8621, General Code — Oral cancellation of lease — Future surrender of possession — Parol evidence inadmissible, when.</p> <p>An oral agreement between a lessor and lessee, regarding premises of which the lessee has possession under a valid lease, to the effect that if the lessee should vacate the premises in the future before the expiration of the written lease the lessor would cancel the lease and release the lessee from the further payment of rent, there being no present agreement to surrender accompanied by a change of possession, is an oral contract' concerning an interest in lands, within the meaning of Section 8621, General Code, and inoperative to destroy the lease or excuse the nonpayment of rent.</p>

<p>Common pleas court — Appellate jurisdiction — ■Appointment of administrator by probate court.</p> <p>The General Code of this .state does not give a right of appeal to the common pleas court from an order of the probate court appointing an administrator.</p>

<p>Landlord and tenant — Leases — Breach of covenants — Subletting by lessee and sublessee — Keeping premises in repair — Forfeiture denied, when.</p> <p>1. The original lessee being now in possession and tendering payment of rent in full, a lease of a residence property for a term of ten years will not be forfeited for breach of covenants for the payment of monthly rentals and not to sublet without lessor’s consent, where, at the end of the third year the premises, with the consent of the lessor, are sublet for one year by written lease containing substantially the same terms as the original lease, the lessor being made agent to collect the rents from the sublessee, the sublessee later reletting the premises without the knowledge or consent of either lessor or lessee, if the lessor upon learning of the subletting by the sub-lessee accepts rents from the tenant then in possession.</p> <p>2. Such lease will not be forfeited for a technical breach of covenant to keep in repair where the breach complained of was damage to hardwood floors and wall decorations, the time when the repairs were to be made and to what extent giving rise to a difference of opinion and being largely a matter of discretion, it not appearing that the failure to make repairs had caused serious or permanent damage to the premises and that by proper repair of the floors and the payment of rents due the lessor will be fully compensated and made whole.</p>

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

<p>Account stated — What constitutes — ■ Conclusiveness as between parties and surety — Evidence — Admissibility and weight — Surety may disprove, when.</p> <p>1. A statement sent by one of two contracting parties to the other showing the total indebtedness of the latter to the former, with credits for remittances, showing indebtedness as per ledger account, and a written certification by the latter that the statement is correct, constitutes an account stated and is conclusive upon the parties unless impeached for fraud or mistake.</p> <p>2. Such written certification by one of the contracting parties that the statement is correct is an admission against his surety that he has made default of his obligation, and is receivable in evidence as against the surety, but is not conclusive.</p> <p>3. An account stated between two contracting parties, of their mutual dealings and transactions under a certain contract, is not binding upon the sureties to a bond of one of the contracting parties, conditioned upon the faithful performance of the contract. Such sureties, under a general denial, may introduce evidence to disprove the net amount due as given in the account stated.</p>

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

<p>Quo warranto — Right of trial by jury.</p> <p>In a proceeding in quo warranto neither party is entitled as a matter of right to a trial by jury.</p>

<p>Negligence — Last clear chance inapplicable, when — Proof of discontinuance of negligence essential — Street car and vehicle collide — •Charge to jury.</p> <p>When a street car and vehicle approach a certain point at right angles and collide upon reaching that point, the doctrine of the last clear chance is not applicable where the driver of each had an equal opportunity of seeing the other approaching, and could see the other while at a distance, though the view was obstructed just before the vehicle arrived at the point of collision, if there was no evidence to prove that the negligence of the driver of the vehicle in driving upon the track had ceased prior to the accident.</p>

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

<p>Workmen’s compensation — Evidence' on appeal — Exception to hearsay rule — Statement of employe after injury — ■ Injuries in course of employment — Taking refreshments, rest or smoke.</p> <p>1. On appeal from the finding of the Industrial Commission of Ohio, denying the right of a claimant to participate in the state insurance fund, evidence of the statement by the party injured declaring the circumstances of the injury, where the statement is made immediately after the injury, in the presence of the person testifying, who asserts the circumstances as observed by him, constitutes an exception to the hearsay rule, and is admissible.</p> <p>2. Where a workman does such things as are usually and reasonably incidental to the work of the employer, including the taking of refreshment, rest and smoke, which are not forbidden by the employer, and in so doing is injured, it cannot be said as a matter of law that the injury was received outside the course of his employment.</p>

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

<p>Municipal corporations — Gas franchises — Quality of gas tor be stipulated, when — Section 3989, General Code — Public utilities statutes inapplicable, when — Section 487 et seq., General Code.</p> <p>1. A franchise ordinance granting to a gas. company the right to furnish gas to the inhabitants of a municipality for a certain stipulated price, but which fails to specify or make any reference to the quality of gas to be furnished, in contravention of Section 3989, General Code, is invalid and its performance may be enjoined.</p> <p>2. The provisions of Section 3989, General Code, to the effect .that municipalities shall not contract for the furnishing of gas to their inhabitants unless the agreement shall specify the exact quality of the gas to be furnished, are not affected or rendered inoperative by the statutes relating to the Public Utilities Commission.</p>

<p>Contracts — Advertising space — Personal and unassignable, when —Refusal of demand to perform — Evidence — Obligee’s statement to one not in privity.</p> <p>1. A publishing company purchased material of plaintiff,, an engraving company, for which it paid part cash, the remainder to be paid by advertising space “to be taken and used by the plaintiff” in a laundry journal published by the publishing company. Subsequently the engraving company, having no use for the advertising space to which it was entitled under the agreement, negotiated with another company for the sale of the space. Held: Such contract was personal in its nature and not assignable.</p> <p>2. A statement by an obligee under a contract, made to a third person not a party to the agreement, that he would not perform the contract if assigned, does not constitute a refusal of a demand to perform.</p>

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

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

<p>Landlord and tenant — Leases — Defective execution — Estate of lessee — Title of purchaser- of property.</p> <p>1. A lease of real property for a term of five years, properly signed by both parties, but acknowledged by the lessee only, operates to create an equitable estate in the lessee.</p> <p>2. One who purchases realty which at the time is in the possession of a lessee under a defectively executed lease, and who at the time of the purchase is aware of the possession of the premises by such lessee, acquires the ownership from the vendor subject to the equitable rights of the lessee in possession.</p>

<p>Negligence — Liability — Municipality or abutting owner — Injury to pedestrian — Cave-in along sidewalk — Notice of condition or nuisance — Primary and secondary liability — Accord and satisfaction.</p> <p>1. Where the owner of property abutting upon a city street has a pipe running underground from a boiler on his premises to the sewer in the street, and there is a leak in such pipe under the sidewalk causing the subsoil to be washed away, leaving a pool of hot water, a pedestrian who steps off the sidewalk onto a narrow strip of land about a foot wide between the walk and fence which is the boundary line of the abutting lot, and breaks through the crust of earth over the pool and is scalded, cannot recover damages from the city for such injury where there is no evidence tending to show that the city had or should have had notice of the condition of the subsoil, or the existence of the hot water, and there is nothing to lead a reasonable person to suspect that there might be hot water beneath the surface which might cause, injury to pedestrians.</p> <p>2. In such case the abutting property owner who actively created the nuisance is primarily liable, and a recovery against him is a bar to an action against the city for the same injury. The city’s liability, if liable at all, is statutory.</p>

<p>Landlord and tenant — Termination of tenancy — Notice of intention .to continue — Acceptance of rent waiver of forfeiture.</p> <p>A provision in a lease that upon the happening of a certain contingency during the term of the lease “this lease, at the option of the lessee, shall cease and terminate” at the time the contingency takes effect, but that if' the lessee desires to continue to occupy the premises after such contingency has happened he shall give to the lessor ten days notice before it takes effect, is a condition subsequent, and, when the lessee has continued to Occupy the premises after the contingency has taken effect, without giving notice as provided for in the lease, the acceptance of rent thereafter by the lessor is a recognition of the continued existence of the lease and constitutes a waiver of the right of forfeiture.</p>

<p>Criminal law — New trial — Time for filing motion — Section 13746, General Code — Refusal of clerk to issue commitment — Remedy of prosecutor — Mandamus or annulment of order granting new trial,</p> <p>1. By virtue of (he provisions of Section 13746, General Code, a motion for a new- trial in a criminal case must be filed at the term the verdict is rendered, and, except for the cause of newly-discovered evidence, within three days after the verdict is rendered, unless unavoidably prevented.</p> <p>2. Mandamus will not lie against the clerk of the common pleas court to require him to issue commitment papers and ignore a judgment of the common pleas court granting a new trial, even though the motion therefor was not filed within the statutory time, the appropriate remedy being against the trial judge to procure an annulment of the order granting a new trial.</p>

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

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

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

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

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

<p>Error : Court of Appeals for Mahoning county,</p>

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

<p>Schools — Transfer of territory — Section 4692, General Code — Parol evidence of notice — Duty to distribute funds and indebtedness, when — Decentralisation within three years — Section 4727, General Code — Annexation of territory to centralized district.</p> <p>1. In a proceeding in which the validity of a transfer of one school district to another is questioned, parol evidence is admissible to show that proper notices had been posted as provided for in Section 4692, General Code%</p> <p>2. The transfer of a school district under the provisions of Section 4692, General Code, is not invalidated because of the failure to make a contemporaneous distribution of the funds and indebtedness of the transferred district.</p> <p>3. The transfer of a village school district to a township centralized school district within three years after the centralization of the township district has no decentralizing effect on the schools and is not a violation of -Section 4727, General Code, prohibiting, centralization to be discontinued within three years.</p>

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

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

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

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

<p>Criminal lava — Malicious destruction of property — Husband and wife — Marital relation no defense, when.</p> <p>Where a husband is charged with malicious destruction of the separate property of the wife, the existence of the marital relation is no defense where it is shown that at the time of the criminal act the husband and wife had separated or were in the act of separating. (State v. Phillips, 85 Ohio St., 317, distinguished.)</p>

<p>Equity — Jurisdiction in injunction — Forcible entry and detainer • — Landlord and tenant — Forfeiture for nonpayment.</p> <p>A court of equity may relieve against the forfeiture of a lease for nonpayment of rent when equity will be subserved thereby, and in granting such relief may enjoin the issuance and service of a writ of restitution in an action of forcible entry and detainer.</p>

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

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

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

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

<p>Guard rails for county bridges — Purpose of erecting and maintaining— Section 7563, General Code — Duty of county commissioners — Not relieved by state highway law.</p> <p>1. The principal purpose of requiring guard rails to be erected at the ends of certain county bridges and on each side of the approaches thereto, as required by Section 7563, General Code, is to warn drivers of the location of danger.</p> <p>2. The duty enjoined on county commissioners by the provisions of such sections was not relieved by the passage of the state highway law (106 O. L, 623-666) or any later amendment thereof.</p>

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

<p>ERROR: Court of Appeals for Summit county.</p>

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

<p>Trusts — Deposits in bank for another’s benefit — Voluntary, express trust created, when — Effect of partial withdrawal of. funds.</p> <p>1. Where one declares aft intention to deposit money in a savings account for the benefit of another, and makes the deposit in his own name in trust for such other, and subsequently declares that fact, then, although the person making the deposit retains the passbook and withdraws from the account certain sums by check, such declarations, coupled with the deposit in praesenti, creates a voluntary, express trust, which is completed by the deposit and the designation of the one making the deposit as trustee.</p> <p>2. It is not necessary to a completion of such trust that the settlor part with the possession of the trust property.</p> <p>3. The withdrawal by the settlor of certain sums by check from the money on deposit does not annul such trust, there being no power of revocation reserved in the creation of the same.</p>

<p>Corporations — Dissolution upon petition of stockholders — Section 11938, General Code — Grounds for dissolution.</p> <p>A corporation will be dissolved by proceedings brought for that purpose under Section 11938, General Code, where it is shown that the corporation has no legal directorate, there being but four members on the board; that no meetings of the board of directors or stockholders are called or held; that no dividends were ever declared, the business being conducted by the two principal stockholders, who divided the profits equally between them; that one of the two principal stockholders has deserted the business and is conducting a similar business of his own; and that the company has no place in which to do business, the lease on the building in which it operates having expired.</p>

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

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

<p>Municipal corporations — Assessments—Section 3812, General Code — Street and water main improvements— Ordinance may include both, when — Limitation of assessment — Effect of signing petition — Estoppel — Section 3836, General Code.</p> <p>1. A single ordinance may include both a provision for paving a street and the laying of water mains, by virtue of Section 3812, General Code, which provides, among other improvements, for the laying of water mains, paving, grading, etc., and that the legislation may include any one or all of these things.</p> <p>2. Where an improvement is made under Section 3836, General Code, upon a petition subscribed by over three-fourths in interest of the owners of property abutting said improvement, an assessment for said improvement may be made against the property subscribed by the petitioners in excess of one-third the valuation thereof, or in excess of the benefits conferred, especially where the request for the improvement was made with knowledge of the legislation, the plans, and estimates of cost.</p> <p>3. Property owners who petition for street improvements and obtain the improvements asked for are estopped to deny the validity of the assessment, where, when they filed their petition, they knew the method of improvement, the plans and estimated cost, and the improvements were made in compliance with the petition.</p>

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

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

<p>Error: Court of Appeals for Hamilton -county.</p> <p>On Application for rehearing.</p>

<p>Error proceedings — Necessary parties and summons — Non-resident next of kin — Review of refusal to probate will.</p> <p>Next of kin, non-resident in the state, are required to be made defendants in error and served with summons, or publication made, in a proceeding in error to reverse a judgment refusing to admit a will to probate, notwithstanding the fact that notice to them of the hearing on the application to probate the will is dispensed with by statute.</p>

<p>Executors and administrators — Personal liability — Failure to pay claims — Knowledge of existence — Claim presented and payment promised.</p> <p>An executor’s knowledge of the existence of a claim against the decedent’s estate is not sufficient to render him liable for its payment where he disposes of the estate without paying it; but he is liable where the claim was presented at a time when there were funds in his hands sufficient to meet the obligation and he promised to pay it. <•'</p>

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

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

<p>Negligence — Safety gates at railroad crossing — Evidence of operation immaterial, when — Laws of foreign jurisdiction — Pleading and proof — Lex loci delicti applies, when — Presumptions — Common-law rules apply, when — Kentucky tort and Ohio trial.</p> <p>1. The refusal of a trial court to admit evidence with reference to the negligent operation of safety gates at a railroad crossing is not error in an action for personal injuries sustained by being struck by a train, where undisputed facts show that the plaintiff did not rely in any way on the safety gates as a warning. In such case it is not material whether the plaintiff was within the class for whose protection the gates should be maintained.</p> <p>2. The law of a foreign jurisdiction is a matter of fact and should be pleaded and proved.</p> <p>S. Evidence tending to impose a liability relates to the right of action and is governed by the lex loci delicti.</p> <p>1 An action for an alleged tort committed in Kentucky, being tried in Ohio, in the absence of proof of the laws of that state, the -presumption arises that the rule of negligence in Kentucky is the common-law rule.</p>