Volume 3 — Ohio Circuit Court Reports, New Series

<p>DOW TAX OMISSIONS.</p> <p>Dow Tax — Complaint of Failure to Pay Assessment — Action of Prodate Court Thereon — Ministerial in Character — And Not Reviewadle on Error — Judicial and Ministerial Power.</p> <p>The action of tbe probate court upon a complaint that the assessment upon the liquor traffic, commonly known. as the “Dow tax,” is being evaded is ministerial in character, and the finding of such court upon the complaint is not reviewable on error.</p>

<p>AGREEMENT AS TO ATTORNEY’S FEES.</p> <p>Attorney’s Fees — Strict Proof Required to Establish a Change of Contract as to the Amount to be Paid.</p> <p>Where an attorney claims a change of contract was made as to the amount he was to receive for his services in a given matter, the burden is upon him and strict proof will he required, notwithstanding by a quantum meruit he would receive a much larger amount.</p>

<p>BENEFICIAL INSURANCE.</p> <p>Insurance — In the Ancient Order United Workmen — Officers of Can Not Waive Constitutional Provision — Denying Membership to One Engaged in the Sale of Intoxicating Liquors — Modification of Special Charges — Estoppel or Waiver, Though Not Pleaded, Available, When.</p> <p>1. Where the constitution of a fraternal order provides that no person shall be admitted to beneficial membership who is engaged in the sale at retail of intoxicating liquors, the officers of the order are without power to waive this provision.</p> <p>2. In a reviewing court a party may avail himself of the legal effect of facts which, though'not pleaded, constitute an estoppel or waiver, and which appeared in the trial below.</p> <p>8. Complaint can not be made of the modification of special charges, where the only reference to such modification in the bill of exceptions is the exception of counsel thereto, and his statement as to wherein they were modified.</p>

<p>MEASURE OF LOSS THROUGH MISTAKE IN A TELEGRAPH MESSAGE.</p> <p>Contract — Can Be No Breach of — Where Never Fully Entered Into Because of a Misunderstanding of Terms — Due to a Mistake in a Telegraph Message — Measure of Damages Against the Telegraph Company.</p> <p>There can be no breach of a contract which, because of a misunderstanding between the parties as to its terms, was never made; and where the misunderstanding was due to a mistake in the transmission of a telegraph message, the measure of damages against ■the telegraph company is not the amount of loss sustained by the sender of the message through failure to fix prices as he had intended, hut the amount of loss actually sustained by him in connection with the negotiation.</p>

<p>LANDLORD AND TENANT.</p> <p>Landlord and Tenant — Damages Resulting from, Collapse of Building— Knowledge of Latent Defects — Doctrine of Caveat Emptor Applicable.</p> <p>Where a tenant has equal opportunity with his landlord for discovering latent defects in the building he is occupying, the doctrine of caveat emptor applies, and knowledge of such defects can not be charged to the landlord more than to the tenant.</p>

<p>DAMAGES TO PROPERTY FROM THE BREAKING OF A WATER. MAIN.</p> <p>Damages — From the Bursting of a Water Main, Flooding Residence Property — Proximate Cause not Faulty Construction of House— Erroneous Charge of Court as to Contributory Negligence — Pleading as to Former Recovery — Defense of Res Judicata.</p> <p>1. A property owner in constructing a building or maintaining service pipes ist not bound to anticipate tbe contingency of tbe bursting of a water pipe in the street, and in an action against the municipality for damages on account of a rush of water over his premises from such a break, it is erroneous to charge that he can not recover if his own acts or omissions contributed in any degree to the injury, where no issue has been made either in the pleadings or evidence as to contributory negligence.</p> <p>2. A former recovery relied upon as an estoppel should be pleaded; but if not pleaded, the judgment is still admissible in evidence, though it is not a conclusive bar to the action.</p> <p>3. Whether actually determined or not, every question which might have been litigated in a former suit will be deemed to be at rest.</p> <p>4. Other errors are immaterial, if a defense of res judicata is sustained by the evidence.</p>

<p>REQUIREMENTS BY BUILDING ASSOCIATIONS AS TO INSURANCE.</p> <p>Building Associations — By-Law Requiring that Insurance Policies shall he Kept on Deposit with the Company — Covering'All Property on which Mortgages are Held — Policy Expires and Property Burns— Company Liable for the Loss — Agency.</p> <p>The by-laws of the defendant building association provided that all property upon which mortgages were held should be kept insured and the policy deposited with the association, and in the event of the failure of a borrowing member to procure insurance or secure a renewal, this was to be done by the association at his expense. Upon obtaining a loan from the association, G procured insurance and deposited the policy as required by its by-law. He had no notice of the expiration of the policy, and the association failed to secure a renewal, and the property having thereafter been partially destroyed by fire, he sued the association for the loss thus sustained. Held: That this provision of the by-laws made the association as to the matter of insurance the agent of the- mortgagor, charged with the duty of holding the policy and renewing it if a renewal became necessary, at the mortgagor’s expense, and having failed so to do, the association became liable to the mortgagor for the loss sustained.</p>

<p>Heard on error.</p>

Heard on error. This was a suit in attachment before a justice of the peace, and upon the overruling of the motion to discharge the attachment it was appealed to the court of common pleas under amended Section 6494, Revised Statutes (93 O. L., 141), which permits an appeal to be made upon the overruling of a motion to discharge an attachment.

<p>THE ACT LICENSING STEAM ENGINEERS.</p> <p>Constitutional Law — The Act Licensing Steam Engineers Invalid— Because of the Arbitrary Exemption of a Particular Class.</p> <p>Section 4364-891 (94 O. L., 33), providing for the licensing of stationary engineers, contravenes Section 2 of Article I .of the Bill of Rights, and Section 36 of Article II of the Ohio Constitution, in that it arbitrarily exempts from its operation those who have been continuously employed as engineers for three years next-preceding its passage, and excludes all others not within the time limit therein designated.</p>

<p>RIGHT OF ONE ACCUSED TO AN INQUIRY AS TO HIS SANITY.</p> <p>'Criminal Law — Defense of Insanity• — Section 7240 Mandatory — Denial of Bight thereunder is Beversihle Error.</p> <p>1. The provisions of Section 7240, relating to the submission of the question of the sanity of an accused person to a special jury, are mandatory.</p> <p>2. Where one accused of homicide sets up the defense of insanity, he is entitled to a trial on that issue before a jury impanneled for that purpose only, and if found insane his trial on the truth of the indictment shall not proceed.</p>

<p>DOWER.</p> <p>Dower Interest — May Be Subjected to Payment of Debt, Though XJnasssigned — Findings of Fact not Subject to Review, When — Section 5464.</p> <p>1. The dower interest of a judgment debtor may, under Section 5464, be subjected to the payment of his debts, although not yet assigned.</p> <p>2. Findings of fact and conclusions of law- not made a part of the record by journal entry can not be considered on review.</p>

<p>THE OHIO RULE AS TO CONTRIBUTORY NEGLIGENCE.</p> <p>Negligence — Contributory Negligence Defeats Recovery — Notwithstanding Negligence of Defendant.</p> <p>1. Failure by the exercise of ordinary care to discover the peril of one who was thereby injured, or failure to use ordinary precautions for preventing the accident, do not create liability, where the one injured was himself guilty of negligence in placing himself in the perilous position.</p> <p>2. Where one approaches a railroad track at a point where a train could be seen for a great distance, and without looking steps upon the track and is struck by a train and killed, there is no liability on the part of the railroad company, notwithstanding the failure of the engineer to give the statutory signals. Railway Company v. Schade, 15 C. C., 424, not followed.</p>

<p>ACCOUNTS OF EXECUTORS.</p> <p>Widow — First Tear’s Support of — Bar of the Statute as to — Presumption in Case of Failure to File Claim — First Tears Support for Children — Agreed Statement of Facts Not Made Part of the Record.</p> <p>1. The first year’s support of widow falls within Section 6113, Revised Statutes, limiting the time for bringing an action against the estate to two years from the appointment of the personal representative; but this limitation runs as to an account against the estate paid by the executrix, from the date of the allowance and confirmation of her account as executrix. • .</p> <p>2. Failure by a widow acting as executrix of her husband’s estate to file a claim against his estate raises the presumption that she intended the amount of the claim should inure to the benefit of her children.</p> <p>3. The provision under Section 6040 for the allowance of a year’s support for children under fifteen years of age applies to the estate of their deceased mother as well as that of their deceased father.</p> <p>4. Where the judgment entry indicates that the case was submitted to the court below upon an agreed statement of facts, the failure to enter such agreed statement of facts formally on record or to file a bill of exceptions, does not deprive a reviewing court of jurisdiction to review the findings of the trial judge.</p>

<p>TRUST ESTATES.</p> <p>Pleading — Motion for Judgment not Available, when — Trust Estate— Suit for Accounting — Partnership Interests — Power of Trustees as to Disposition of.</p> <p>1. A motion for judgment on tbe pleadings is not available to settle important questions of law, or to dispose of tbe merits of tbe case; under sucb circumstances resort must be bad to demurrer.</p> <p>2. Where tbe petition in a suit for an accounting as to a trust estate does not aver in wbat particular, if any, tbe estate was injured by tbe compromise complained of, tbe plaintiffs are not entitled to tbe relief prayed for.</p> <p>3. Trustees authorized by will to continue a partnership business have, by implication, power to settle tbe affairs of tbe partnership at tbe time' appointed for its dissolution, or earlier if clearly in the interest of tbe trust.</p>

<p>CONSTRUCTION OF WILLS.</p> <p>Wills — Words “Next of Kin” Construed — Bequests to Charitable Institutions not Accurately Named in Will.</p> <p>1. In construing a will tide words “next of kin” will be taken in their technical sense unless from the context it clearly appears that a different meaning is intended.</p> <p>2. If bequests are made to charitable institutions under defective appellations which are not generic, ambiguity may be removed by extrinsic evidence.</p>

The plaintiffs are assignees of a finding of court that the assignors were the owners of a valid claim against the unincorporated Catholic congregation known as the Church of the Atonement.