Volume 28 — Ohio Circuit Court Decisions

<p>RELIGIOUS SOCIETIES.</p> <p>Shields, Powell and Houck, JJ.</p> <p>1. Section 13145 G. C. Prohibiting Practicing Astrology, etc., Held Constitutional.</p> <p>Section 13145 G. C. providing that “whoever, not having been legally licensed so to do, represents himself to be an astrologer, fortune teller, clairvoyant, or palmister, shall he fined, etc.,” does not violate Art. 1, Sec. 7 of the hill of rights of the constitution of Ohio hut is a valid enactment and is constitutional.</p> <p>2. Religious Freedom of Spiritualist Church not Interfered with by Statute.</p> <p>Section. 13145 G. C. is a rule of conduct having reference to an individual unlawfully representing himself to he a fortune teller, clairvoyant, etc., not being legally licensed so to do; it is the nature of the business of the accused, not the tenets of her church that is prohibited. Laws cannot interfere with mere religious beliefs and opinions but may with unlawful practices.</p> <p>3. Not Error to Exclude Exhibits Showing Tenets of Church.</p> <p>This statute not being aimed against any church or society but against the accused as an individual, it was not error for the trial court to exclude exhibits offered on her behalf which exhibits tended to show that the actions of the accused were not contrary to the Ohio Spiritualist Association.</p>

<p>RAILWAYS.</p> <p>Jones, E. H., Jones, O. B., and Gorman, JJ.</p> <p>1. Locomotive Engineer Momentarily Sitting on Another Track Not Trespasser.</p> <p>A locomotive engineer, who leaves his engine for a few moments and walks a short distance to another track where he sits down on the end of a tie, does not thereby become a trespasser upon such other track, nor cease to be acting in the course of his employment.</p> <p>S. Duty of a Railway Company Toward Locomotive Engineer on its Track Before an Approaching Train.</p> <p>Railways will be held, to at least as high a degree of care in the avoidance of injury to human beings as in the case of live stock trespassing upon their right-of-way; hence, where it appears that the engineer of the train, which killed the decedent while running at very high speed, failed to blow his whistle as soon as he discovered the decedent, is sufficient to send the case to the jury.</p>

<p>ACTIONS — PRINCIPAL AND SURETY.</p> <p>Shields, Powell and Houck, JJ.</p> <p>1. Joinder of Action on Note with Action on Bond Securing Payment not Prejudicial to Sureties.</p> <p>The rights of sureties on a bond, executed to secure payment of a promissory note, are not prejudiced by uniting an action on the bond with the action for recovery on the note.</p> <p>2. Rejecting Evidence of Violation of Terms of Bond Given to Secure Note Erroneous.</p> <p>In view of the express stipulation of a bond securing payment on a promissory note that the proceeds of the loan were to be used by the defendant in his business, one-half of the profits derived therefrom to be retained by the defendant as his compensation, and the denial of the answer that this agreement was carried out, refusal to permit the introduction of testimony as to the alleged violation of the terms of the bond is erroneous.</p>

<p>CORPORATIONS — EQUITY.</p> <p>Houck, Pollock and Spence, JJ.</p> <p>(Judges Pollock and Spence of the 8th Appeals sitting in place of Judges Shields and Powell.)</p> <p>1. Relation of Employe to Employing Corporation in Which He Has Purchased Stock.</p> <p>A .fiduciary relation is' created where an employe, having great confidence in the integrity and ability of the officers of a corporation for whom he has keen employed for many years, purchases stock from the corporation at the solicitation of such officers in a new corporation organized by such officers for the purpose of purchasing the property of the old corporation and continuing its business under the same corporate control, and gives his note, secured by such stock, in which it is recited that the dividends of the new company shall be applied to its payment; if the confidence so reposed is abused the company would be liable, however no liability would arise for losses growing out of changes in business conditions or from mistakes in judgment on the part of those in control.</p> <p>2. Equity, without Fraud Shown, Cannot Order Corporation Dividends.</p> <p>A court of equity is without power, in the absence of fraud or abuse of discretion, to require a board of directors to declare dividends, and it follows ttíat no authority exists for declaring paid a note given by an employe for stock, which note was to have been satisfied by application of dividends on the stock but was not so paid because of failure to declare dividends.</p> <p>3. Oral Evidence in Explanation of a Written Contract Inadmissible.</p> <p>The rule which, permits the giving of oral testimony in explana- ■ tion of the circumstances surrounding the making of a written contract, does not authorize the varying of the plain terms of the written contract by such oral testimony, unless it be shown that the contract was made through mistake, fraud, surprise or accident; hence, since the plaintiff is not claiming fraud, or asking that the contract be set aside, but rather that it be enforced in his favor, such oral testimony is inadmissible.</p>

<p>WILLS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. The Words, “Misrepresentation,” “Deception,” “Coercion,” “Threats” in Instructions Held Prejudicial in Will Contest.</p> <p>The use- of such words as “misrepresentation,” “deception,” “coercion,” “threats,” in instructions to the jury in a proceeding to contest a will, is prejudicial, in the absence of evidence upon which the use of such words might fairly be inferred.</p> <p>.2. Porters, Janitors, Waiters, incompetent Witnesses to Show Mental Disability of Deceased Employer to Make Will.</p> <p>While the testimony of a family physician as to the ability of testator to understand and decide large and complicated business propositions is competent in a will contest proceeding, the rule is otherwise as to like evidence by lay witnesses such as porters, janitors and waiters, employees about his place of business. Bahl v. Byal, 90 Ohio St. 129, distinguished.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Shields, Powell and Houck, JJ.</p> <p>Municipality Liable for Injury From Explosion of Peanut Roaster on Street.</p> <p>A petition alleging that through the negligence of the defendant municipality the operation of a peanut roaster on the streets of said city was permitted, that such roaster exploded and a part thereof struck plaintiff to his injury states a cause of action; hence, if there is evidence tending to establish the truth of the allegation, it is error to arrest the case from the jury and give judgment for the municipality.</p>

<p>APPEAL — WORKMEN’S COMPENSATION.</p> <p>Meals, Carpenter, Grant, JJ.</p> <p>Workman Employed by One Not Complying with Compensation Act Cannot Appeal from State Liability Board of Awards.</p> <p>A workman who suffers an injury while in the employ of one who has not complied with the provisions of the workmen’s compensation act has no right of appeal from the determination of the state liability board of awards on his application for compensation on account of such injury.</p>

<p>BENEFICIAL ASSOCIATIONS.</p> <p>Winch, Meals and Grant, JJ., of Eighth district sitting by designation.</p> <p>1. Judgment Against individual Member Enforcible in Action Against Beneficial Association.</p> <p>A beneficial organization membership subscription is equivalent to a power of attorney to the association to appear and act and be bound in the place of the said member in respect to the corporate functions of the association; hence, a judgment against an individual member for unpaid assessments to pay death losses, obtained against the association by a beneficiary acting for herself and all other beneficiaries similarly situated and entitled, is a valid judgment until met by the defense that the alleged debtor was not a member of the association at the time the liability arose, or that he has paid the assessment, or has a set-oil against it.</p> <p>2. Denial of Day in Court Does not Lie by Member of Beneficial Association Haled Into Court Without Defense.</p> <p>The expression “a day in court” means simply that there has been due process of law with respect to notice to defendant and an opportunity to be heard, and complaint of denial of his right to a day in court does not lie in the mouth of one who has been haled into court and given an opportunity to present a defense, but had none to offer which went to the merits of the case pending against him.</p>

<p>STREET RAILWAY.</p> <p>Powell, Houck and Shields, JJ.</p> <p>Duty of an Electric Railway Company Toward Passengers Who Are Attempting to Alight.</p> <p>In an action by a woman who was injured by the premature starting of a car from which she was alighting, a request by the defendant company for the special charge before argument, that if the jury found</p> <p>“ — that the car remained standing for a space of time sufficient for her to alight and then started, that there was nothing to prevent her alighting while the car was so standing, that she remained standing on the platform step for that period of time, and then started to alight as the car started to move forward, and was thrown and injured thereby, she can not recover”— was properly refused, where the testimony establishes that the place where the accident occurred was a regular stop at which passengers were in the habit of boarding and leaving the cars, that the conductor knew the plaintiff desired to alight at that time and place and was encumbered with bundles, and there was testimony tending to show that she had started to alight when the car was started forward.</p>

<p>INSURANCE.</p> <p>Shields, Powell and Houck, JJ.</p> <p>1. Reservation of Right to Settle Claim for Indemnity for Injury 'to Employe is Inherent and Absolute. -r</p> <p>Under a provision in a contractors’ employers’ liability policy, indemnifying insured against loss for liability for damages imposed by law for injury to an employe caused by negligence, that the insurer “reserves the right to settle any claim or suit,” the right to settle claims or suits, meritorious or otherwise is inherent and absolute; hence the defense that the injury for which claim was made and settlement effected, was not caused by any negligence by insured cannot avail against an action to recover from insured a stipulated sum of money expressly conditioned to be paid before recourse could be had upon .the insurer for indemnity.</p> <p>2. Policy Provision Against Waiver Except by Proper Written En-' dosement Precludes Insured's Defense of Waiver Without Such Endorsement.</p> <p>Failure of insured’s 'answer to' show written endorsement of waiver of the conditions of a policy, expressly providing that no condition or provision of the policy shall he waived except by written endorsement, signed by the proper managers, and further providing that knowledge possessed by an agent shall not be held to effect a waiver, precludes the insured from asserting that if the claim in question was paid or settled the responsibility and loss would he upon the insurer.</p>

<p>WILLS.</p> <p>Powell, Houck and Shields, JJ.</p> <p>Trust Estate Descends Upon its Termination and Failure of Trustee to Convey Land for Some Years Thereafter Does not Affect Validity •of Trustee’s Deed.</p> <p>Where a will devised to a son of testatrix a life estate in certain land and then created a trust in the remainder to one of three grandsons, providing if he die without children surviving him, the fee shall go to the other two grandsons or their survivor, the fee is vested in and the land descends to the surviving grandson, upon termination of the trust estate even without a deed from the said trustee as provided by will. The fact that the trustee made a settlement of the trust estate some years prior to the execution of the deed to such survivor does not affect the validity of the deed. Hence, a trustee of the surviving grandson being appointed after the original trust had expired and the estate descended has no right to recover possession of the premises in question.</p>

<p>ACCOUNTING-MUNICIPAL CORPORATIONS-OFFICERS.</p> <p>Richards, Chittenden and Kinkade, JJ.</p> <p>Fees Paid Clerk of Council for Serving Notices not illegal.</p> <p>Municipal officers, in the absence of fraud alleged, having paid . out corporation money for services rendered by the clerk of council in serving notices of improvements contemplated, will be presumed to have discharged their duties in a legal way and with authority of council, notwithstanding the records of the council do not show that compensation was fixed by said council for such services, and especially since the record shows that the municipality paid nothing but what it should have paid and the clerk received nothing but, what he was entitled to receive from the municipality.</p>

<p>FALSE IMPRISONMENT.</p> <p>Chittenden, Richards & Kinkade, JJ.</p> <p>Village Officials not Liable for False Imprisonment Under Invalid Ordinance.</p> <p>Village officials are not liable to respond in damages for false imprisonment because of the alleged infirmity of the ordinance under which the arrest was made, where they acted in good faith and with an honest belief in its validity.</p>

<p>CARRIERS.</p> <p>KInkade, Chittenden and Richards, JJ.</p> <p>Demurrage on Car of Coal Refused by Consignee Limited to Rea-' sonable Period. ,</p> <p>Where a consignee refuses to accept a car load of freight, the railway company must make disposition thereof within a reasonable time, and a demurrage charge on the car so detained can be made only for a reasonable time.</p>

<p>CARRIERS — DEAD BODIES — UNDERTAKERS.</p> <p>Grant, Carpenter and Leighley, JJ.</p> <p>1. Express Company not Liable for Failure of Shipping Undertaker to Secure Deposit for his Charges in Preparing Corpse for Express Transportation.</p> <p>An express company is a commorí carrier and, being prohibited by interstate commerce regulations from shipping corpses, C. O. D. unless deposit is made' therefor at destination, express office, is not liable for failure to collect .amount of undertaker’s bill accompanying the body, especially since -the undertaker, shipping the body, is equally liable with the express company in not securing the deposit to meet his charges.</p> <p>2. Corpse Means Body in Coffin, not Body, Shroud and Coffin Separately.</p> <p>A corpse accepted by a common carrier for transportation means a dead body in its coffin. To segregate the one from the other violates ordinary thought and offends against decency and health; hence evidence, the effect of which is to show that a corpse' encased in a coffin was dresséd in a shroud and cast upon an express company transporting it an obligation to strip the body of its cerements and put them on the market in fulfillment of an assumed obligation to realize on an undertaker’s hill therefor sent C. O. D., is inadmissible.</p> <p>[Syllabus approved by the court.]</p>

<p>WILLS.</p> <p>Shields, Powell and Houck, JJ.</p> <p>Devise to Sister and Her Husband, Charged With Bequest to Bible! Society Lapses as to Sister's Undivided Share at her Death Without Issue and Interstate or Equitable Election Requires Payment Out of Her Share and Husband Deemed to Elect to Accept his Share.</p> <p>The will of M devised certain real estate to his sister and her husband jointly, burdened with a bequest of $10,000 to the American Bible Society. The sister died without issue prior to the death of the testator. The husband survived the testator, but died before a sale of the land had been effected or he had made an election under the will. Held:</p> <p>1. The bequest to the sister of an undivided one-half of said property lapsed, and said interest thereby became intestate property.</p> <p>2. The other undivided one-half passed under the will to the husband of said sister, subject to his right of election to accept benefits and assume the obligations thereby conferred, with the privilege of postponing his election until he could determine whether acceptance of the bequest would prove a benefit or a detriment; and inasmuch as there will be something over after payment of the legacy to the bible society together with costs, he will be presumed to have elected to take.</p> <p>3. If the devise to the sister did not lapse, it became subject to the equitable rule of election, and in either event should be applied to payment of the disappointed donee, the bible society, whose legacy was general and not special, and as intestate property this lapsed bequest should be exhausted in payment of costs and the bible society legacy before resort is had to the remainder of the estate.</p> <p>4. The residue of the legacy to the bible society with accrued interest should be paid out of the other half of the estate, the balance over going to the heirs of the deceased devisee.</p> <p>[Syllabus by the court.]</p>

<p>NEGLIGENCE.</p> <p>Powell, Houck and Shields, JJ.</p> <p>1. Evidence of Shortening of Leg Admissible in Action for Mangling and Breaking Same Leg.</p> <p>An averment that the plaintiff was injured permanently, his right limb mangled and both bones broken between the ankle and knee, is sufficient to warrant admission of evidence to the effect that as a result of the accident his right leg was shortened.</p> <p>2. Erroneous instruction Cured by Subsequent Correct Instruction.</p> <p>An erroneous instructoin to the jury that if they find for the plaintiff they will assess his damages at such, a sum as “in their opinion” would be reasonable and -just, is cured by a subsequent instruction which directs the jury, in estimating the amount of damages to be awarded, to take into consideration the nature of the injury sustained and any impairment in earning power.</p> <p>[Syllabus by the court.]</p>

<p>RELIEF AFTER JUDGMENT.</p> <p>Powell, Houck and Shields, JJ., of the fifth appellate district sitting by designation.</p> <p>1. Allegations of Conspiracy and False Testimony Sufficient to Support Petition for yacation of Judgment.</p> <p>A petition containing allegations of a conspiracy to secure judgment by means of false testimony, which false testimony was given at the trial and a judgment obtained which was based thereon, states a good cause of action for vacation of said judgment and the award of a new trial, “for fraud practiced by the 'successful party in obtaining a judgment or order.”</p> <p>2. Material Newly Discovered Evidence not Obtainable With Reasonable Diligence at Trial.</p> <p>Evidence of detectives of a transfer company against which an action was brought and judgment obtained by alleged fraudulent conspiracy of plaintiff and her associates averring and on trial fraudulently proving the negligence of one of the company’s chauffeurs, describing their visits to the scene of the accident and detailing conversations and acts of plaintiff and her companions (the newly discovered evidence partaking of the nature of confessional statements), while it should be received with caution, is material and its weight determinable by a jury; hence, where it appears that the superintendent of the company immediately after the accident, vainly sought interviews with, parties and witnesses at the scene of the accident, and after the death of one of. the company’s chauffeurs whom after his death plaintiff first disclosed as the one 'in fault (denied by the company), interviewed doctors, nurses and internes at the hospital where he died as to any statements made by deceased as to his participation in the accident, shows that the newly discovered evidence could not with reasonable diligence have been discovered and produced at the trial, and an order for new trial, will be affirmed.</p> <p>[Syllabus approved by the court.]</p>

<p>NEGLIGENCE — WORDS AND PHRASES1</p> <p>Hughes, Kinder and Crow, JJ.</p> <p>1. Perpendicular Wash Bank, Defined.</p> <p>When a wash bank is eight feet high in the perpendicular, — r-that is, eight feet between the plane of its top and the plane of its base, it is then a perpendicular wash bank within, the meaning of the statute.</p> <p>2. “Wash Bank” Defined.</p> <p>The term “wash bank” is used to indicate a bank with its top lying adjacent to or connected with the surface of a road and running down therefrom to its base, in contradistinction from a hank whose base is in the plane of the surface of the road and running upward; . .</p> <p>[Syllabus by the court.]</p>

<p>DIVORCE AND ALIMONY.</p> <p>Jones, Gorman and Hamilton, JJ.</p> <p>Cross Petition Improperly Dismissed for Failure of Service With Copy of Cross Petition In Absence of Unreasonable Delay.</p> <p>Dismissing a cross petition in an action for divorce on the ground that there has been no service thereon with a copy of the cross petition is erroneous, there being no showing or unreasonable delay in procuring service on such cross-petition.</p>

<p>INJUNCTION — NUISANCES.</p> <p>Carpenter, Grant and Meals, JJ., of eighth district sitting by designation.</p> <p>«Owner of Residence Denied Injunction Against Operation of Factory when Trend of Business and Manufacturing Foreseen in Locality.</p> <p>Injunction will not lie to restrain the operation of a manufacturing plant because the noise from it is offensive to nearby residents when the business is lawful, useful and necessary to the community, the plant not a nuisance per se, carried on in an up-to-date manner, and located on two lines of railway which were there long before plaintiffs’ residences were built, and especially since plaintiffs might have foreseen that manufacturing and business would follow the railways and the land adjacent thereto would he devoted to such uses.</p>

<p>CHARGE TO JURY — NEGLIGENCE.</p> <p>Femeding, Kunkle and Allread, JJ., of the second district sitting by designation.</p> <p>Instruction as to Contributory Negligence Presumed Justified where Bill of Exceptions Contains Only Part of Evidence.</p> <p>Where the bill of exceptions contains only a part of the evidence, and it is complained that the court erred in making any reference in its charge to the jury to the subject of contributory negligence as to which the pleadings tendered no issue, a reviewing court will presume that the evidence justified an instruction on that subject.</p>

<p>INSURANCE.</p> <p>Pollock, Metcalf and Spence, JJ.</p> <p>tCondition of the Policy with Reference to Lighting Held to Have Been Waived by Agent Writing Application.</p> <p>When the agent of a fire insurance company, who is authorized to make contracts of insurance, collect the premium and deliver the policy, knew at the time he made the contract, received the premium and delivered policy, that the store room in which the stock of merchandise insured was kept was lighted by gas generated on the premises, the insurer is bound, in case of a loss which was covered by the policy, notwithstanding the policy contained a condition that “this entire policy (unless otherwise provided by agreement endorsed thereon or added thereto) shall be void * * * if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use thereof,” and there was no agreement endorsed thereon, permitting the generation of gas on the premises for such purposes.</p> <p>[Syllabus by the court.]</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>Voorhees, Powell and Shields, JJ.</p> <p>1. Failure of Gas Engine to Fulfill Guaranties of Power and Efficiency does not Constitute Fraud in Contract of Sale upon Which Attachment can be Sustained.</p> <p>Attachment upon an averment, that defendant had fraudulently contracted and incurred an obligation to sell a gas engine of guaranteed power and efficiency, cannot be sustained under . Sec. 11819 G. C., where the action was brought for unliquidated damages accruing from failure of the engine and its attachments to fulfill the guarantees made for it.</p> <p>2. Intention to Remove Engine to and Resale In Another County After Rejection for Failure of Engine to Conform to Guaranty not Ground for Attachment Though Defeating Jurisdiction for Determining Damages to Purchaser. ,</p> <p>The seller’s removal from the building of the purchaser at the . latter’s request, of a gas engine upon its failure to perform in. accordance with the guarantees of sale, the seller intending to return it to another county in which is located the shops of the seller, and the seller’s subsequent resale to another purchaser in the latter county, do not constitute a removal or disposition of the property with intent to defraud the original purchaser upon which to base jurisdiction in attachment in an action to recover unliquidated damages for breach of contract. It is not sufficient to show merely an intent to defeat a particular Jurisdiction.</p>

<p>OFFICE AND OFFICERS.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>Procedure When Subordinate Is Suspended by Chief of Police.</p> <p>When suspension is any part of the punishment inflicted upon one of his subordinates by the chief of police, he must forthwith certify that fact in writing to the director of public safety, for trial and judgment.</p> <p>[Syllabus by the court.]</p>

<p>CARRIERS — STREET RAILWAYS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Passenger on Summer Car Injured by Unnecessarily Stepping on Wheelguard Presents No Case of Negligence by Railway.</p> <p>A woman’s turning her ankle, and in falling being otherwise ' injured, by unnecessarily stepping on the wheelguard of a summer car, knowing of its existence and location, does not present a case of negligence on the part of the traction company or of lack of contributory negligence on her own part.</p> <p>2. Appliance May be Continued in Use Without Imputation of Negli gence, When.</p> <p>An appliance not obviously dangerous, wihich has been in daily use and has uniformly proved safe, may be continued in use without an imputation of negligence.</p>

<p>ARMY AND NAVY.</p> <p>State Court without Jurisdiction to Release by Habeas Corpus Minor Enlisted Soldier in National Guard.</p> <p>A state court under Sec. 1117 U. S. Rev. Stat. is given no jurisdiction of an application for release by habeas corpus of a member of the national guard notwithstanding when he enlisted he was between sixteen and eighteen years of age, and that his enlistment was without the consent of his parents.</p>

<p>EMINENT DOMAIN — MUNICIPAL CORPORATIONS.</p> <p>1. Referendum Should be on the Ordinance to Condemn and not ort Preliminary Resolution.</p> <p>In proceedings for condemnation of land by a municipality, the ordinance to appropriate is the controlling act and it and not the preliminary resolution is the measure on which a referendum should be taken where the referendum vote of the people is desired.</p> <p>2. Repeal of Earlier Ordinance not Precedent to Operation under Later Ordinance Identical Except as to Overlapping Boundaries of Land to be Condemned.</p> <p>Where two or more ordinances have been passed by a municipal council appropriating strips of land to open a street between, substantially the same points, such strips not being identical but in part overlaying each other, the fact that the earlier ordinance has not been expressly repealed would not be sufficient reason to prevent proceedings under the last ordinance-</p>

<p>BILLS OF EXCEPTIONS — RECEIVERS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Leaving Bill of Exceptions with an Unauthorized Clerk — Not a, “Filing” of the Bill.</p> <p>The leaving of a bill of exceptions with some deputy in the-employ of the cleric of courts not authorized to receive it, with instructions to said deputy to place it on file, does not amount, to a filing of the hill, and a motion to require the clerk to-stamp the bill as “filed” does not lie where not made until, subsequent to the statutory time for the filing of a bill.</p> <p>2. Receivership Ancillary Relief not Primary Appointment.</p> <p>To grant a prayer for appointment of a receiver where the appointment appears to be an end in itself, and is not ancillary to other and ultimate relief within the provisions of Secs.. 1 11894 and 11398 G. G., is erroneous.</p>

<p>GAS AND OIL.</p> <p>Voorhees, Powell and Shields, JJ.</p> <p>Words “Completed Well” Mean Productive Well to Reduce Annual Rental Prior to Such Completion.</p> <p>In a lease of land for exploration for gas and oil, wherein it is stipulated that the lessee shall pay $200 each year in advance for the product of each well from the time of its completion, and in case no well is completed within a specified time the lessee shall pay a rental of $580 for each year such completion is delayed thereafter, and each completed well shall only reduce the land rental $200, the words “completed well” have reference to a productive well and not to a dry hole, and the lessee is not entitled to a reduction of $200 in his rental because of the completion of an unproductive well.</p>

<p>BANKS AND BANKING.</p> <p>Swing, Jones and Jones, JJ.</p> <p>Depositor Charged Individually by Bank with Checks of Partnership Given by Him for Firm.</p> <p>Where a bank had charged a depositor against his account checks issued in payment of the expenses of a partnership of which he was a member, and where his bank book was balanced and his checks returned several times subsequent thereto and no protest was ever made until suit had been brought against him on a note which was renewed after the canceled checks had been returned to him. Held: That a jury was justified in a verdict against him.</p>

<p>EVIDENCE — MUNICIPAL CORPORATIONS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Previous Accident at Same Place and from Same Cause Competent to Show Knowledge of Municipality that Dangerous Condition Existed.</p> <p>Evidence in an action against a municipality for injuries from falling into a manhole, alleged to have been covered with a lid which tilted when stepped upon to the effect that other persons had fallen into the same hole, previous to the accident to plaintiff is admissible for the purpose of showing constructive notice to the city of the defective and dangerous condition of said lid, and its exclusion is prejudicial.</p>

<p>CONTRACTS — REFORMATION.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Reformation Denied when Contract is Fuil and Complete.</p> <p>Before a contract can be reformed the evidence establishing a, mistake must be clear and convincing and must show that the mistake was not that of one of the parties alone but was mutual; hence, when a contract in writing appears to be full and complete and no other plans or specifications are shown to have been intended to be made part thereof by reference or attachment, reformation will be denied.</p>

<p>CHARGE TO JURY.</p> <p>Henry, Winch and Marvin, JJ.</p> <p>1. Refusal to Give Request to Find Specifically Upon Particular Questions of Fact Sustained.</p> <p>When what is intended to be a request that the court "direct the jury to give a special verdict in writing upon certain issues” amounts to nothing more than “a request to instruct the jury to find specifically upon particular questions of fact,” and is not couched in such terms as to require being given as the latter, there is no error in refusing to give it at all.</p> <p>2. Submitting Jury Interrogatories to Determine Negligence of Both Parties Proper.</p> <p>When the court in his charge to the jury in an employer’s liability case defines negligence as the want of ordinary care, it is not improper to submit to the jury interrogatories to be answered by it which require it to state whether or not the plaintiff, as well as the defendant, were negligent.</p> <p>[Syllabus by the court.]</p>

<p>PRINCIPAL AND AGENT-VENDOR AND PURCHASER.</p> <p>Henry, Winch and Marvin, JJ.</p> <p>:Real Estate Commissions not Collectible When Purchaser Introduced Was Without Desire to Purchase at Time.</p> <p>In an action by a hotelkeeper against a real estate agent to recover on a contract whereby the latter agreed to pay to the former one-half of all commissions on sales made “to customers desirous of purchasing real estate who should be introduced by the plaintiff to the defendant,” it is not error for the court to charge that should the jury find that a person to Whom the agent subsequently sold real estate was not, at the time of introduction to defendant by plaintiff, desirous of purchasing real estate, then the plaintiff has failed to establish the performance of the contract on his side.</p>

<p>STREET RAILWAYS.</p> <p>Jones, Gorman and Jones, JJ.</p> <p>1. Pedestrian Crossing Street Struck by Street Car Running at Excessive Speed Negligent if he Could Have Seen and Heard it Approaching,</p> <p>If a pedestrian at a street intersection saw or heard approaching street car in front of which he stepped and was struck, or could have seen and heard it had he looked and listened as an ordinarily prudent person would have done under the circumstances, his own contributory negligence will defeat recovery, notwithstanding the defendant company was negligent in running the car at a high and dangerous rate of speed.</p> <p>2. Instruction as to Last Chance Doctrine Erroneous When not Applicable.</p> <p>Por a trial judge to assume in his charge to the jury that an accident occurred at a given point, when there is uncertainty as.to the point at which it occurred and the question should have been left to the jury to determine is prejudicial; so also to Charge that decedent had a right to assume the motorman would not. approach the crossing in a negligent manner, when he could have seen had he used his eyes that the car was approaching at a very high rate of speed; to fail to charge on the subject of contributory negligence when a request so to do had been made; or to charge on the 'doctrine of “last chance” when there was no evidence showing that the doctrine was applicable.</p>

<p>ERBOB — REFEREES</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Motion for New Trial Refused and Bill of Exceptions Required to Review Findings pn Error.</p> <p>In order to review the findings of a referee on the evidence, a motion for a new trial must he filed and when overruled a hill of exceptions prepared and filed with the referee for his allow' anee and signature thereto, and a motion lies to strike from the files a hill of exceptions purporting to embody proceedings before a referee but in no way authenticated by him or by the judge of the court in which the referee was appointed.</p> <p>2.' Bill of Exceptions Struck from Files for Lack oF Authentication by Referee Does not Authorize Dismissal of Error Proceedings.</p> <p>The fact that the granting of such a motion leaves no bill of exceptions before- the court, does not authorize a dismissal of the petition in error, but the record as it stands, with the bill of exceptions excluded, showing no substantial error, the judgment will be affirmed.</p>

<p>WILLS.</p> <p>Henry, Winch and Marvin, JJ.</p> <p>Devise <5f Real Estate with Power of Disposal Vests Fee.</p> <p>A will devising real estate to one person generally and with absolute power of disposal, invests that person with a fee simple estate, notwithstanding the fact that the will further provides that whatever may be left of such real estate upon the death of such devisee shall pass to someone else.</p>

<p>PARTNERSHIPS — STATUTES.</p> <p>Henry, Winch and Marvin, JJ.</p> <p>1. Presumption that interpretation of Similar Statute of Another State same as in Ohio.</p> <p>Where it is shown that the statutes of a state in which a contract was made are the same as the statutes of Ohio, it will he presumed, in the absence of any evidence on the subject, that the decisions under those statutes are the same as the decisions in Ohio.</p> <p>2. A Partnership Agreement to Deal in Oil and Gas Leases Must Be in . Writing.</p> <p>In. Ohio a partnership agreement made for the purpose of operating in oil and gas leases is -within the statute of frauds and must be in writing.</p> <p>3. Statute of Frauds Complied With if all the Terms of an Agreement Appear in Signed Correspondence.</p> <p>Several writings, though made at different times in the form of letters, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in writing.</p>

<p>BILLS AND NOTES — INTEREST AND USURY.</p> <p>Marvin, Winch and Niman, JJ.</p> <p>' 1. Verba! Agreement That Note May Be Discharged Otherwise Than' by Payment not Enforcible.</p> <p>A verbal agreement made contemporaneously with the execution of a promissory note that it may be discharged in some other way than by the payment of money, while it remains executory, is no defense to an action on the note, but when fully executed it operates as payment,,or accord and satisfaction.</p> <p>, 2. Judgment for Ten Per Cent invalid for Usury.</p> <p>It is error to enter judgment on a promissory note for. 10 per cent interest, though the note was executed and delivered in another state, unless there is proper evidence before the court that such interest is allowable under the laws of such other state.</p> <p>[Syllabus by the court.]</p>

<p>NEGLIGENCE.</p> <p>Henry, Marvin and Winch, JJ.</p> <p>Liability for Leaving Heavy Piece of Furniture in Street Which' Overturns on Child.</p> <p>One who leaves a heavy article in the public streets in unstable equilibrium and in such manner as would be likely to attract children, is liable in damages to a child who has been attracted to it and is injured by having it fall upon him while playing' about it.</p>

<p>CHARGE TO JURY — NEGLIGENCE.</p> <p>Henry, Winch and Marvin, JJ.</p> <p>1, Opportunity to Know Not Equivalent to Knowledge in Fixing Liability for Negligence.</p> <p>In an action for injuries caused by defendants’ negligence in which it is alleged that defendants’ neglect occurred after they had knowledge of plaintiff’s position, it is error to charge that defendants are liable if they knew or had opportunity to know of plaintiff’s presence and proximity.</p> <p>S. Charging Fact in Issue Proved Unless Admitted Improper.</p> <p>It is error to charge the jury that any given fact in issue has been proved, even though the oral testimony in support of that fact is wholly uncontradicted, unless it amounts to an admission by the opposite party.</p>

<p>MUNICIPAL CORPORATIONS — OFFICE AND OFFICERS.</p> <p>Henry and Marvin, JJ.</p> <p>Winch, J., not sitting.</p> <p>1. Residence Required of City. Councilmen is That of Elector.</p> <p>The residence which is required by Sec. 1536-613 R. S. (Sec. 4207 G. C.),i to qualify one to hold the office of city councilman, is the residence which iS required to qualify one as an elector.</p> <p>2. Office of Councilman Removing from State Without Intent to Stay or Return Not Vacant.</p> <p>Where a councilman removes outside the state to accept employment, without any fixed intent either to stay or return, the office which he has held does not thereby become vacant.</p>

<p>BUILDINGS — EREOS—NEGLIGENCE.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>1, Unlighted Areaway in Apartment House Held Negligence.</p> <p>It Is negligence on the part of the owner of an apartment house not to maintain a light at an areaway leading down to the janitor’s door in the basement, when he invites the public to call there to inspect rooms for rent.</p> <p>2. Council Reading From Law Book Not Erroneous.</p> <p>It is not per se prejudicial error for counsel to read to the jury from a law book, as part of his argument.</p>

<p>EMINENT DOMAIN.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>Failure to Give Opportunity For Agreement in Appropriation Proceeding.</p> <p>In an appropriation case, the jurisdictional fact that the corporation was unable to agree with the owners of the property sought to he appropriated as to compensation therefor is not shown by like propositions made to all the owners of different parcels of varying size and value, mailed to them the evening before suit was begun, without opportunity on their part to consider the propositions.</p>

<p>STREET RAILWAYS,</p> <p>Winch, Henry and Marvin, JJ.</p> <p>Company Liable if Motorman Makes No Effort to Stop His Car to Prevent Accident.</p> <p>Although the driver of a wagon may he negligent in attempting to cross a street car track in front of an approaching street car which he sees, still the motorman who saw the driver’s position, is negligent, and the company liable, if he fails to use reasonable efforts to stop his car in time to avoid a collision.</p>

<p>CHARGE TO JURY.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>1..BÍII of Exceptions Necessary to Review Charge.</p> <p>A claim that a charge to the jury is erroneous because It gives mere abstract propositions of law inapplicable to the case can not be considered without a bill of exceptions exhibiting the evidence in the case.</p> <p>' 2. Error Not Predicated on Erroneous Sentences In Charge Taken by Themselves.</p> <p>Where concededly correct sentences in a charge modify other sentences claimed to be erroneous, the charge as a whole being correct, no reversible error can be predicated upon the erroneous sentences, taken by themselves.</p> <p>3. Recalling .Jury and Emphasizing Parts of Charge Not Prejudicial.</p> <p>It is not prejudicial error to recall the jury and emphasize certain portions of the charge previously given, if the circumstances of the trial warrant it.</p>

<p>ELECTIONS.</p> <p>Wildman, Haynes and Parker, JJ.</p> <p>No Liability by County For Cost of Election Booths.</p> <p>A county is not liable for the cost of election booths constructed for use within a municipality located in that county.</p>

<p>ELEVATORS — NEGLIGENCE.</p> <p>Swing, Jones and Jones, JJ.</p> <p>Merely Finding Deceased at Bottom of Elevator Shaft Not Negligence-Per Se.</p> <p>The mere finding of the decedent employe fatally hurt at the bottom of an elevator shaft in the building in which he was at work, does not make out a case of negligence in the lighting and guarding of the shaft, where no one saw the decedent fall into the shaft or knew how the accident happened which resulted in his death.</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>Claim for Rent Is One for Necessaries.</p> <p>Rent due under a contract of lease of apartments as a place of residence, is a claim for necessaries, even though the tenant surrenders the premises before the beginning of the final month and the landlord rerents the premises for a portion of that month.</p> <p>[Syllabus by the court.]</p>

<p>CONTRACTS — EQUITY.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Payment for Maintenance for Life in a Home for the Aged En-forcible.</p> <p>Courts will treat as a binding contract an agreement whereby a home and maintenance for life are promised by a home for the aged to one who has paid a specific sum in consideration for such promise.</p> <p>2. Hardships Resulting from Expelling Aged Woman from Home in Breach of Contract for Maintenance.</p> <p>Where an inmate of an institution under a contract for maintenance is expelled therefrom, free latitude in showing resulting hardship and damage together with the nature thereof shall not be refused.</p> <p>3. irregularities in Order of Expulsion Provable.</p> <p>To deny to an inmate who has been expelled the privilege of showing any irregularity or defect in the proceedings leading to the order of expulsion, including the nature of the charges, the hearing thereon, and all things connected with the order of expulsion is erroneous.</p> <p>[Syllabus approved by the court.]</p>

<p>CARRIERS.</p> <p>Powell, Houck and Ferneding, JJ. Judge Ferneding of the second district sitting in place of Judge Shields.</p> <p>Degree of Care Due an Intending Passenger by Carrier Question for Jury.</p> <p>The question whether an intending passenger, who is in and about the depot awaiting the arrival of the train he desires to take, is a passenger and therefore entitled to the highest degree of care, is one which should he submitted to the jury under proper instructions; hence, to charge the jury that one injured under such circumstances was a passenger at the time of his injury constitutes prejudicial error.</p>

<p>APPEAL — RECEIVERS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Receiver May Appeal Without Bond.</p> <p>A receiver may appeal a cause in which he is interested without giving an appeal bond. It is doubtful if a receiver needs leave of the court which appointed him, to appeal a case.</p> <p>[Syllabus by the court.]</p>

<p>ADMIRALTY.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>State Courts Have no Admiralty Jurisdiction.</p> <p>The courts of Ohio have no admiralty jurisdiction and can not apply the federal statute limiting the liability of an owner of a vessel in a negligence case.</p> <p>[Syllabus by the court.]</p>

<p>WILLS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. After-Acquired Real Estate Passes Under Residuary Clause of Will.</p> <p>Section 5969 R. S. (Sec. 10579 G. C.) provides that after-acquired real estate, as well as personal property, shall pass under the will “if such shall clearly and manifestly appear by the will to have been the intention of the testator.” While this intention must “appear by the will,” still testator’s circumstances and surroundings may be considered, but they must be the circumstances surrounding her at the date of the will, and not long-afterward.</p> <p>.2. Residuary Devise Passes After-Acquired Real Estate.</p> <p>A disposition by will of “all the rest and residue of my estate and property,” makes it “clear and manifest” that the testator intended that any real estate she might acquire after making the will, should pass under it.</p> <p>[Syllabus by the court.]</p>

<p>CHARGE TO JURY — ERROR—EVIDENCE.</p> <p>Marvin, Taggart and Donahue, JJ.</p> <p>1. Judgment not Set Aside on Weight of Evidence not Contradicted But Contradictory and.Inconsistent.</p> <p>Where the evidence of a witness as to the instructions he had given plaintiff’s decedent, although uncontradicted by any other witness, is in other particulars so contradictory and inconsistent with itself as to indicate that his testimony is from impressions rather than from distinct recollections, a judgment will not he set aside as against the weight of the evidence.</p> <p>2. Charge as Whole Correctly Given not Erroneous Because Paragraphs not Complete Statements.</p> <p>A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will reasonably enable them to understand the rules of law which they are-to apply to the evidence before them, the charge will not he held erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead.</p>

<p>INTOXICATING LIQUORS.</p> <p>Marvin, Winch, and Henry, JJ.</p> <p>Absence of Complete Bill of Exceptions Prevents Review of Action on Jones Law Petition.</p> <p>No review of the finding of the mayor on the merits of the case, in passing upon a Jones law petition can he had, where the bill of exceptions does not contain all of the evidence adduced before the mayor.</p> <p>[Syllabus by the court.]</p>

<p>ERROR — INSURANCE.</p> <p>Kinkade, Chittenden and Richards, JJ.</p> <p>1. Court of Appeals not Precluded from Reversing on Weight of Evidence Because Trial Court Refused to Set Aside Verdict.</p> <p>Refusal by a trial court to set aside, on the weight of evidence, a verdict on retrial in that court after having set aside upon ' that ground a verdict in a former trial, does not preclude the court of a.ppeals under Sec. 11577 C. C., from reversing the judgment on second trial on the woight of evidence.</p> <p>.2. Rule of Two Reversals on Weight of Evidence Limited to Each Court.</p> <p>While Sec. 11577 G. C. denies the right to set aside a verdict a second time by the same court, yet it does not follow that a reviewing court may hot reverse on that ground, the case never having been reversed on that ground in the higher court.</p> <p>3. Evidence of Insurance Written by Agent Competent in Defense in Action for Compensation.</p> <p>Evidence of the total amount of insurance written by an agent is competent in an action by him against an insurance company for salary claimed to be due, as bearing upon the question of whether the allegations of the petition that he had fully performed all of the conditions of his conduct were true and, particularly with respect to his loyalty thereto.</p> <p>4. Statements by Employe Against Interest Competent to Show Manner of Performance of Contract.</p> <p>Statements against his interest made by an insurance agent in the office of his counsel are competent evidence to show the manner of performance of his contract.</p> <p>[Syllabus approved by the court.]</p>

<p>ADVERSE POSSESSION.</p> <p>Swing, Jones and Jones, JJ.</p> <p>Statutory Provision Permitting Adverse Title to Control Unopened Streets Applicable Only to Municipalities.</p> <p>Section 11220 G. C., permitting title to an unopened street or alley to ripen through adverse possession for more than twenty-one years, applies only to streets and alleys located within municipalities, and cannot be enforced against the state or any of its subdivisions other than municipalities.</p>

<p>COMPENSATION AND SALARIES — COURTS.</p> <p>Swing, Jones and Jones, JJ.</p> <p>1. City Solicitor Held Prosecutor in Municipal Court.</p> <p>It is the duty of a city solicitor to act as the prosecuting attorney of the municipal court of such city.</p> <p>2. County Commissioners Required to Recompense City Solicitors for Services in Municipal Court.</p> <p>It is the duty of county commissioners to make a proper allowance to a city solicitor for his services in state cases before a municipal court.</p>

<p>ESTOPPEL — PRINCIPAL AND AGENT.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Agent to Sell Can Not Exchange But Acquiescence Estopped Principal.</p> <p>Power to an agent or trustee to sell, does not authorize him to exchange, but acquiescence therein until the other party to the exchange has changed his position and the status quo can not be re-established estops the principal from taking advantage of this lack of power.</p> <p>2. Acquiescence of Principal in Exchange Estops Principal from Asserting Agent’s Power.</p> <p>Where all the stockholders in a corporation except the plaintiff have acquiesced in certain transactions, such conduct on the plaintiff’s part as would estop him from maintaining an action for his own benefit, to have said transactions set aside, will estop him from maintaining such an action for the benefit of the corporation.</p>

<p>EXECUTORS AND ADMINISTRATORS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Administrator's Action to Sell Lands Fraudulently Caused To Be Conveyed.</p> <p>An administrator may bring his action in the common pleas court ■ for the sale of lands to pay his decedent’s debts and include in such action lands to which the decedent never held title, but for which he paid and fraudulently caused to be conveyed to another with intent to defraud his creditors.</p>

<p>SALES.</p> <p>Taggart, Donahue and Marvin, JJ.</p> <p>Judge Marvin of the eighth circuit sitting in place of Judge Voorhees..</p> <p>Sale of Merchandise in Bulk Void as to Creditors Notwithstanding-Exempt.</p> <p>A sale of merchandise in hulk contrary to the provisions of Sec. 6343 R. S., (Secs. 11102 G-. C. et seq.), as amended April 30, 1908 (99 O. L.,.241), is void.as to creditors of the vendor, notwithstanding all the property sold might have been, claimed as. exempt by the vendor.</p>

<p>APPEAL — MECHANICS’ LIENS.</p> <p>Henry, Winch and Marvin, JJ.</p> <p>•Action to Foreclose Mechanic’s Lien and for Money Judgment Ap-pealable.</p> <p>An action to foreclose a mechanic’s lien in which a personal judgment is asked in connection therewith, is not an action for money only and is appealable.</p>

<p>APPEAL.</p> <p>Winch, Henry and Taggart, JJ.</p> <p>Judge Taggart of the fifth circuit sitting in place of Judge Marvin.</p> <p>Grantee of Owner May Appeal from Foreclosure of Mechanic's Lien.</p> <p>In an action to foreclose a mechanic’s lien and for personal judgment against the owner at the time the work was done, to which action the grantee of the owner was made-party defendant, the latter may appeal the action to the circuit court.</p>

<p>APPEAL — MECHANICS ’ LIENS.</p> <p>Jones, Jones and Gorman, JJ. •</p> <p>No Appeal In Actions To Enforce Mechanics’ Liens.</p> <p>An action to foreclose a mechanic’s lien is not cognizable in equity and therefore not appealable.</p>

<p>SALES.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Contract for Sale Of Goods, Title To Remain In Vendor, Conditional Sale.</p> <p>An agreement for the sale of chattels with a provision that the title is to remain in the vendor until they are fully paid for, is a conditional sale and within the provisions of Sec. 4155-2. R. ' S., (Sec. 8568 G. C.), and whether or not the contract provides for payment in installments is immaterial.</p> <p>2. Vendor Seeking Return of Chattels Must Prove Return of Payments.</p> <p>A vendor seeking the recovery of goods sold on a contract of conditional sale must allege and prove that he had paid or tendered the vendee the amount of the purchase price he had received less a reasonable amount (not exceeding fifty per cent.) for their use.</p>

<p>EVIDENCE — PAYMENT.</p> <p>Marvin and Henry, JJ.</p> <p>Burden of Proof That Claim Is Not Barred By The Statute On Plaintiff..</p> <p>Where alleged payments are relied upon to take a cause out of the operation of the statute of limitations, the burden is upon the-plaintiff to show that the payment was made by the defendant, or under his direction.</p>

<p>EJECTMENT — RECEIVERS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Receivers May Be Appointed in Actions Of Ejectment.</p> <p>Receivers may be appointed in actions of ejectment where it appears that the plaintiff has a good prima facie title and that there is imminent danger of the loss of rents and profits through the mismanagement of an insolvent defendant.</p>

<p>APPEAL — ATTACHMENT—ERROR.</p> <p>Winch, Henry and Jones, JJ.</p> <p>1.-Error Lies to Order of Common Pleas Overruling Motion to Discharge Attachment.</p> <p>Error lies to the circuit court from an order of the common pleas court overruling a motion to discharge an attachment appealed to the latter court from a justice of the peace.</p> <p>2. Attachment Not Discharged for Failure of Service on Garnishee.</p> <p>An attachment will not he discharged on the ground that there was no service upon the garnishee in the attachment proceedings.</p> <p>■3. Overruling Motion to Dissolve Attachment for Want of Authority of Corporation Officer Signing Bond.</p> <p>A judgment overruling a motion to dissolve an attachment on the ground that the attachment bond was given by a corporation, the name of which was signed by an officer who had no authority to sign its name to such bond, will not be reversed where there is no bill of exceptions showing the evidence acted upon in sustaining the bond and attachment.</p>

<p>ATTACHMENT.</p> <p>Winch, Henry and Taggart, JJ.</p> <p>Judge Taggart of the fifth circuit sitting in place of Judge Marvin.</p> <p>Attachment Lies for Commissions On Sales.</p> <p>An attachment will lie on the ground that the claim is for work: and labor, when it appears that the attaching creditor’s claim is for commissions under an arrangement whereby plaintiff was to he allowed a certain percentage in sales made by him, although he had no employment requiring him to devote any part of his time to the business of making sales.</p>

<p>BILLS AND NOTES — HUSBAND AND WIFE.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>1. Endorsee In Due Course, But Without Consideration, May Recover.</p> <p>Payment of a note at maturity to the payee thereof, without requiring a surrender and cancellation of the note, will not prevent recovery on the note by an endorsee in due course, although no consideration for the transfer of the note to the en-dorsee appears.</p> <p>2. No Presumption Of Fraud Attaches To Contract Relations Of Husband and Wife.</p> <p>Although in transactions between husband and wife, their conduct towards each other is to be scrutinized in the light of the general rules which control the actions of persons occupying confidential relations to each other, that does not warrant a charge that the relationship of husband and wife is such as to afford every facility for fraud.</p>

<p>BILLS AND NOTES — ESTOPPEL.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>'1. Memorandum of Extension Not Competent Against Accommodation Endorsee Told That Note Had Been Paid.</p> <p>In a suit by a bank against an accommodation endorsee of a note who defends on the ground that he went to the bank to pay the note when it was due and was told that it had been paid, it is not competent for the bank to introduce in evidence a memorandum in writing made by its secretary and treasurer and pinned to the note, to the effect that extension of time of payment had been consented to and reduction of interest had been made.</p> <p>2. Showing of Prejudice Required to Work Estoppel.</p> <p>To work an estoppel there must be prejudice to the party setting-up the estoppel, as well as fraud or bad faith, or their equivalent. —gross negligence — in the party to be estopped.</p> <p>3. Presumption That Accommodation Endorsee Paying Note Would Proceed To Recoup From Maker.</p> <p>The presumption is that an accommodation endorsee of a note, who offered to pay it when due and was told that it had been paid, would have proceeded against the makers of the note to recoup himself, if he had been required to pay the note, and this is so even though the makers of the note were his sons.</p>

<p>SALES — WARRANTY.</p> <p>Marvin, Winch and Voorhees, JJ.</p> <p>Judge Voorhees of the fifth circuit sitting in place of Judge Henry.</p> <p>Trade Terms Not Implying Warranty.</p> <p>In an order for “first quality brick” and “second quality brick” the words “first and second quality” are merely descriptive, and import no warranty.</p>

<p>Error to Cincinnati superior court.</p>

<p>CREDITOR’S BILLS — LIENS.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>Creditor’s Bill Held not Maintainable by General Creditor Having no Interest in nor Lien on Fund.</p> <p>One who has no interest in nor lien upon a particular fund can not apply for a receiver, of it and a marshalling of claims thereto, though he brings in other parties who might maintain such an action.</p> <p>[Syllabus by the court.]</p>

<p>EQUITY — JURY.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>Jury Trial Impossible In Complicated Three Cornered Suit.</p> <p>Where A orders merchandise of B who has already sold his entire stock to C, and B assigns the order to C who assumes and fills it upon the guaranty of B that he will pay the freight and dray-age, which is done, and A refuses to pay for the goods; in an action by C for the purchase price in which A and B are made defendants, B files a cross petition asking for judgment against A for the amount of the freight and drayage, and A files a cross petition asking judgment against B for breach of contract, the rights of parties are so involved, as to make a jury trial impossible.</p>

<p>‘FRAUDULENT CONVEY ANDES.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>Deed Absolute Given By Debtor To Creditor, Treated As Mortgage.</p> <p>When a deed absolute in form was given by a debtor who was execution proof, to a creditor whose claim amounted to only a small portion of the value of the land deeded, the conveyance will be regarded as a security and treated in equity as a mortgage and not as a sale.</p>

<p>INSURANCE.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Insurance Company Not Estopped By Custom Of Its Agent.</p> <p>Where a policy of insurance provided that premiums should be payable at the home office of the company on a certain date in each year but that they might be paid to any agent of the company producing receipts therefor signed by the president, a vice-president, actuary or secretary of the company, and a policy holder paid to an agency of the company his yearly premhim, receiving therefor a receipt which was not signed by any of the specified officers. Held: That the company would not be bound by any custom prevailing at the agency in question in receiving premiums and issuing receipts other than the receipts specified in the policy unless it had actual notice of the custom, or that the custom had continued so long and the manner of doing business was such as that in the nature of things the insurance company should and would have Known of it by the exercise of reasonable care.</p> <p>2. When Question Of Agency Should Be Submitted To Jury.</p> <p>Where an agency of an insurance company receives a premium and issues a receipt therefor, other than the official receipt provided for In the policy, if it does so for the purpose of forwarding the premium received to the home office or to the agencv through which the policy was issued, it thereby becomes the agent of the insured and not the insurer, and the question of whether or not It is so acting should be submitted to the jury where the company denies the receipt of a premium.</p>

<p>ANIMALS.</p> <p>Winch, Henry and Jones, JJ.</p> <p>Cruelty to Animals Statute Held Constitutional.</p> <p>Section 13376 G. C„ providing for the punishment of one found guilty of cruelty to animals, as therein specified, is constitutional.</p>

<p>SALES.</p> <p>Norris, Winch and Marvin, JJ.</p> <p>Puffing Of Wares Not Guaranty.</p> <p>A clause in a contract for the sale of two hundred packages of china whereby “the defendant agreed with and guaranteed to plaintiff that said two hundred packages of china should and would be sold to customers of the plaintiff within ninety days from the date of said contract” is not a contract of guaranty, is a mere puffing of wares, and furnishes no basis for a lawsuit, if plaintiff fails to sell the china within the ninety days.</p>

<p>MASTER AND SERVANT.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>¡Employe Hurt by Falling of-Window Sash Assumes Risk.</p> <p>A stick, with which a window is held open, is a simple device, and a laborer who crawls through a window so held open, forty or fifty times, with the stick in plain view, and finally knocks it out with his hand or foot and is injured by the falling sash, will be held to know the dangers attendant upon the situation and can not recover in an action against his employer for the latter’s alleged negligence in using the stick to keep the window open.</p>

<p>HIGHWAYS.</p> <p>Winch, Henry and Marvin, JJ.</p> <p>Road Districts and Commissioners’ Act Valid.</p> <p>Section 7695 G-. C. et seq., providing for road districts and the appointment of road commissioners and defining their duties, are constitutional.</p>

<p>BUILDINGS — EXCAVATIONS—FLOODS.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Nine Foot Excavation Rule Creates Liability Regardless of Skill.</p> <p>Where the owner of a lot in a municipality excavates and constructs a cellar to a greater depth than nine feet below the curb grade of the street on which such lot abuts, as proscribed by See. 3782 G. C., and such excavation causes any damage to any wall, house or other building upon the lots adjoining thereto, such owner is liable in a civil action to the property injured to the full amount of such damage without regard to the care or skill with which said cellar may have been constructed or maintained.</p> <p>2. One Excavating More than Nine Foot Cellar Bound to Protect Adjacent Buildings.</p> <p>The duty of one who digs such cellar beyond the statutory depth is not only to protect the adjoining property while the work is in progress but during the entire time he continues to maintain such excavation.</p> <p>3. Owner of Buildings in Flood, District Governed by Nine Foot Excavation Statute.</p> <p>This rule applies equally to lands within what is known as a flooded district subject to customary periodical overflow from back water from a river at flooded seasons and such conditions must be- considered and provided for in the construction and maintenance of the walls and concrete floors of such cellar so as to prevent the passage into it of the soil from under the foundation walls of adjoining structures and their consequent undermining.</p> <p>4. Proximate Cause of Undermining Building, Whether Flood or Loss of Lateral Support, Question for Jury.</p> <p>The question whether the proximate cause of the damages arising from the undermining and collapse of a house was the withdrawal of proper lateral support by reason of the maintenance of an adjoining excavation more than nine feet below curb grade or was the result of an extraordinary and’ unprecedented flood, regardless of such excavation, is a question of fact to be determined upon evidence by the jury and is not a question of law to be decided at first instance by the court.</p> <p>[Syllabus by the court.]</p>

<p>CONVERSION — MUNICIPAL CORPORATIONS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Liability for Conversion of Water Pipes Laid by Owner of Subdivision and Subsequently Appropriated by Municipality.</p> <p>Where the owner of a subdivision lays pipes in the streets under a license from the municipality, and such pipes are afterwards appropriated by the municipality and made a part of its water works system, an action in conversion for their value'will lie.</p> <p>[Syllabus by the court.]</p>

<p>APPEAL — MECHANICS’ LIENS.</p> <p>Henry, Winch and Marvin, JJ.</p> <p>Action to Foreclose Mechanic’s Lien Appealable.</p> <p>An action to foreclose a mechanic’s lien and for a personal Judgment for its amount is appealable.</p> <p>[Syllabus by the court.]</p>

<p>PLEADING — SALES.</p> <p>Henry, Marvin and Winch, JJ.</p> <p>Sale and Receipt Are Issues Raised by General Denial In Action for Goods Sold and Delivered.</p> <p>In an action for goods sold and delivered, to which a general de- ■ nial is pleaded, the only questions for the jury are the sale and receipt of the goods and their value.</p>