Volume 33 — Ohio Circuit Court Decisions

<p>REFORMATION OF INSTRUMENTS</p> <p>1. Clear and Convincing Evidence Required to Reform Written Instrument.</p> <p>Reformation of a written instrument can only be had on the production of clear and convincing evidence of the intention of the parties and of the mutuality of that intention with regard to some phase of their contract which their writing fails properly to express.</p> <p>2. Interpretation of Written Instrument Open to Two or More Interpretations.</p> <p>In construing a written instrument which is open to more than one interpretation such effect will be given to it as the conduct of the parties at the time of its execution indicates they intend it should have.</p>

<p>CORPORATIONS</p> <p>Corporations — Stockholder’s Liability — Limitations—Voluntary Dissolution.</p> <p>The voluntary dissolution of a corporation under the provisions of - Sec. 5674a R. S. (Sec. 8740 G. C. et seq.) does not cause the eighteen months to begin to run within which an action upon the liability of stockholders must be brought, as provided in Sec. 3258a, R. S. (Sec. 8688 G. C.)</p>

<p>SALES</p> <p>Loss of Engine Sold but Destroyed by Fire Pending Delivery.</p> <p>Delivery is not essential to pass title to specific personal property sold, when nothing remains to be done to identify it or put it into a deliverable condition, unless a contrary intention is shown in the words or conduct of the parties. But when delivery by the seller at a stipulated place other than that of sale is customarily implied, or is expressly stipulated for an entire consideration which includes the purchase price payable on delivery, title and risk ordinarily remain with the seller, and he can not have his action for the price until such delivery is made.</p>

<p>INSANE PERSONS</p> <p>Implied Authority of Wife of Imbecile to Enter Into Express Contract for His Benefit.</p> <p>The wife of an imbecile has implied authority to enter into an express contract to engage the services of an adult member of the family in the care of him and his household.</p>

<p>RAILWAYS</p> <p>Act Relating to Railway and Highway Crossings at Grade Held Valid. Section 4, Act 99 O. L. 58, to provide how railroad and highway crossings may he constructed, is constitutional and valid.</p>

<p>ACCOUNTS — PAYMENTS</p> <p>No Demand for Repayment Necessary when Overpayments on Open Account Made by Mistake.</p> <p>In an action on an account, with counterclaim for overpayments, when it appears that the overpayments were not voluntary, but were made by mistake, while the account was still open, no demand for their repayment is necessary to entitle the defendant to enforce repayment.</p>

<p>CORPORATIONS — -PRINCIPAL AND AGENT</p> <p>Implied Authority of Agent of Brewing Company to Purchase Bowling Alley for Saloon.</p> <p>There is no implied authority in the manager of a brewing company to order a bowling alley installed in connection with a saloon.</p>

<p>CARRIERS</p> <p>Liability of Sleeping Car Company for Jewelry Left in Berth.</p> <p>A verdict against a sleeping car company for the value of jewelry left in a berth by a passenger and alleged to have been stolen by the porter, will be set aside when the only evidence that the porter stole tbe jewelry is tbe fact that be, in common with passengers on tbe.car, bad an opportunity of stealing it.</p>

<p>BENEFICIAL ASSOCIATIONS</p> <p>Trustees of Fraternal Order not Personally Liable for its Debts.</p> <p>The provision of Sec. 3261 R. S. (Sec. 8666 Gr. C.), that the trustees of a corporation created for a purpose other than profit shall be personally liable for all debts of the corporation by them contracted, has no application to fraternal orders incorporated under the laws of the state.</p>

<p>COVENANTS</p> <p>Uniform Restrictions as to Lots in Allotment Enforcible Against Aiioters.</p> <p>The rights of a purchaser of a lot in an allotment as to which the owners have adopted a uniform scheme of restrictions and limitations, made binding upon her by covenant in her deed, but not therein expressly covenanted to be binding upon the allotment owners, to compel said owners to impose similar restrictions upon all lots sold by them does not rest in contract, nor consist of an estate or easement in other lots, but flows from the inequity of allowing the abandonment of a uniform scheme of restrictions after the owners of the allotment have sold part of the lots on the faith of its enforcement as held out by them to the particular purchaser or the public at large.</p>

<p>INSURANCE</p> <p>Waiver of Prompt Payment of Premium by Negligence of Company’s Agent.</p> <p>There may he a recovery on a fire insurance policy, though the premium was not paid to the company’s agent until after due and after the fire, when it is shown that the company’s agent received the premium and remitted it to the company, which returned it to the agent with instructions to refund it to the insured, hut the agent failed to tender it to the insured until six or eight months after the fire and long after suit brought, such tender then being refused.</p>

<p>HUSBAND AND WIFE — NEGLIGENCE</p> <p>Married Woman Whose Husband Has Deserted Her may Recover for Loss of Her Own Services.</p> <p>In an action for damages resulting from personal injuries, a married woman, whose husband has deserted her, may recover for loss of her own services.</p>

<p>JUDGMENTS AND DECREES</p> <p>Vacating Judgment Obtained by Fraud on Motion Filed More Than Three Days After Next Term Erroneous.</p> <p>It is error to vacate a judgment for fraud in obtaining it on motion filed more than three days after the beginning of the next term of court.</p>

<p>MASTER AND SERVANT — NEGLIGENCE</p> <p>1. Causal Sequence of Allegations of Physical Disability in Negligence Case Determinable by Jury.</p> <p>In an action for damages resulting from personal injuries received as a result of the defendant’s negligence, whether the causal sequence in fact includes all that the petition claims in the way of physical disability from the injury, is a question for the jury.</p> <p>2. Fact of Physical Disabilities Directly Traceable to Injury Gist of Negligence Case, not Causes Antecedently Improbable or Facilitated by Concomitant Circumstances.</p> <p>The fact that the results alleged from the cause alleged are unusual and therefore antecedently improbable, is not the true criterion. Neither is it any test that the cause was small and the effect great, nor that the particular result claimed was facilitated by concomitant circumstances. The real question is whether the plaintiff’s disabilities are directly traceable to the injury received, or whether they were brought about by the active intervention of a new and distinct cause such as some injurious act or conduct of the plaintiff.</p> <p>3. Instructions that “Injuries that Result from Negligence .of Master are not Assumed” and Rule of Assumed Risk Presupposes Exercise of Due Care by Master, Erroneous.</p> <p>Unless the distinction is pointed out between the kindred doctrines of employe’s risk, as applied to the ordinary hazards incident to the employment, on the one hand, and on the other hand to the defects and dangers which are not naturally incident to the employment but of which the employe has notice, it is misleading to charge that “injuries that result from the negligence of the master are not assumed,” or that the rule of assumed risk “presupposes that the master has exercised due care, in providing a reasonably safe and proper place to work, and reasonably safe machinery for the performance of the required services.”</p> <p>4. Misconduct of Counsel.</p> <p>It is misconduct of counsel, for which a judgment will be reversed, to say to the jury: “And the first thing this defendant did when this suit was brought was to compel this poor girl to give security for costs. This girl worked at this shop at a dollar a day. No wonder men become millionaires when them employ girls at such niggardly wages. You should give something as a wholesome example to this defendant in this case. Let your verdict be so large that it will he a lesson and punishment to this defendant to obey the law.”</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Dedication Carries Right for Reasonable Grade.</p> <p>When land is dedicated for a street, the dedication carries with it the right to improve to a reasonable grade.</p>

<p>CONTRACTS</p> <p>Action on Advertising Contract for Part Performed and on Breach for Balance on Notice to Discontinue.</p> <p>In an action on a contract for publication of advertising matter, when it appears that tbe defendant notified the publisher to discontinue the publication, the publisher is entitled to recover for advertising published up to the date of the notice and damages for breach of the balance of the contract; he can not disregard the notice, continue the publication and thereafter recover full compensation as provided in the contract.</p>

<p>EMBEZZLEMENT</p> <p>Officer of State Bank Withdrawing Shares of Stock Hypothecated as Security for His Debt.</p> <p>An officer of a state bank, incorporated under the free banking act, who withdraws from its custody certain certificates of partially paid up shares of its capital stock, owned by him and by him hypothecated to it as additional security for an antecedent debt due from him to said bank, can not be convicted under Sec. 3821-85 R. S. (Sec. 12474 G. C.) of abstracting property of said bank.</p>

<p>MASTER AND SERVANT — NEGLIGENCE</p> <p>Instructions as to Contributory Negligence Proper when Issue In Pleadings and Evidence._</p> <p>In a personal Injury damage case It is not error to charge upon the subject of contributory negligence, when that is made an issue by the pleadings, and there is evidence tending to establish the fact that the injury was received wholly as the result of the plaintiff’s negligence, not partly by reason of his contributory negligence.</p>

<p>INJUNCTION — PARTY WALLS</p> <p>Painting Sign on Side Wail of Building Extending over Adjoining Line Enjoined.</p> <p>One whose side wall has been erected over a few inches on the land of another without seasonable objection by the other, will yet be enjoined from thereafter painting a sign upon said side wall, upon complaint of such other.</p>

<p>DEATH — INFANTS</p> <p>Verdict of $1,800 for Death of Child Five Years Old not Set Aside.</p> <p>In an action for the wrongful death of a child five years old, a judgment for $1,800 will not be set aside, though there is some evidence that the mother, one of the beneficiaries, was negligent, and that the father had deserted the mother and child.</p>

<p>APPEAL — JUDGMENTS</p> <p>Judgment of Dismissal on Appeal no Bar to Another Action.</p> <p>Upon judgment in favor of plaintiff by a justice of the peace, defendant appealed the case to the common pleas court and there obtained a dismissal of the case for failure of plaintiff to file a petition. Thereupon the plaintiff brought another action on the same claim before a justice of the peace. Meld: The ' judgment of dismissal of the former action was no bar to the maintenance of the latter action.</p>

<p>RECEIVERS</p> <p>Receiver Appointed Ancillary to Other Relief Only.</p> <p>A receiver will not be appointed for a corporation except as ancillary to the working out of other relief to which the plaintiff is entitled.</p>

<p>ELEVATORS</p> <p>1. Same Degree of Care Required by Owner of Elevator as of Common Carrier.</p> <p>In an- action for damages for injuries received by a passenger through the alleged negligence of an owner and operator of an elevator, it is not error to charge that the same degree of care is required of such owner and operator as of a common carrier of passengers, it being explained that the care so required is of the highest degree.</p> <p>2. Rule of Highest Degree of Care Applicable to Elevators.</p> <p>The owner and operator of an elevator, like the common carrier of passengers, is not bound to use the highest degree of care for all who come to its stations, yet, when it holds out the invitation to “step aboard,” its duty to afford the highest degree of care to him who accepts the invitation, and undertakes to step aboard, has begun.</p>

<p>PATENTS — SALES</p> <p>1. Covenant of Sole Ownership of Patent Rights Rendered Effective by Repurchase of Interest Sold.</p> <p>It is immaterial if one contract to sell a one-half interest in certain dies and patent rights, covenanting that he is the sole owner of all interests therein, whereas in fact he had previously sold a one-half interest, provided that he obtains a reconveyance thereof at or about the time he makes such covenant.</p> <p>2. Patent Right Applied for Equivalent to Statement of Ownership.</p> <p>One who has applied for a patent upon an invention of which he is the owner, while his application is pending and before it is issued may declare that he is the owner of “patent rights” and sell an interest therein.</p> <p>3. Extravagant Representations as to Merits of Ice Cream Freezer.</p> <p>Representations that an ice cream freezer is the best ever; that whoever saw it would want it; that hardware dealers would take it as soon as they saw it; that his price for a half interest in the invention would be much higher to any one else than the plaintiff, but that owing to the plaintiff’s especial adaptability to exploit an ice cream freezer, he would let him in cheap, etc., made in order to induce the plaintiff to purchase an interest in the invention, and upon which he acts, are a kind of bragging and flattery, but though false, do not constitute that kind of fraud which is recognized by the law.</p> <p>4. Representations that Sales of ice Cream Freezer Hold Good Cause for Setting Aside Sale.</p> <p>Representations that an ice cream freezer is selling well; that it is giving excellent satisfaction and is doing the work intended in a perfectly satisfactory manner are material and if relied upon in purchasing an interest in the invention, and turn out false, will give ground for setting aside the sale.</p>

<p>CRIMINAL LAW — WEIGHTS AND MEASURES</p> <p>1. Police Court Takes Judicial Notices of Ordinances.</p> <p>The police court of a municipal corporation may take judicial notice of its ordinances, but the common pleas and circuit court may not do so.</p> <p>2. Reviewing Court Assumes Validity of Ordinance not Appearing In Record.</p> <p>Upon conviction in a police court for violation of a municipal ordinance of which that court took judicial notice, the bill of exceptions failing to show the terms of the ordinance, the higher courts will assume the existence of a valid ordinance authorizing the conviction, if the offense charged in the affidavit is one as to which the municipality has power to legislate.</p> <p>3. Ordinance against Exposing for Sale Turnips in Receptacle not Tested and Sealed by City Sealer, Invalid.</p> <p>Municipal corporations are not vested with power to make it an offense “to expose for sale turnips in a receptacle not tested, marked and sealed by the city sealer,” and a conviction by a police court on such a charge will be set aside.</p>

<p>DAMAGES — SPECIFIC! PERFORMANCE</p> <p>Dismissal of Petition for Specific Performance not Bar to Action for Damages.</p> <p>A judgment of dismissal of a petition for the specific performance of a contract for the sale of lands is no bar to an action for damages for failure to perform said contract.</p>

<p>STREET RAILWAYS</p> <p>Electric Railways Crossings Act Constitutional.</p> <p>Section 9118 G. C., which provides that the court of common pleas shall have jurisdiction to fix the manner and mode of crossing streets in a municipality by electric street railroads and the compensation, if any, to be paid therefor, is constitutional.</p>

<p>ATTORNEY AND CLIENT</p> <p>Attorney’s Fees Allowed Only for Services In Case In Which Fund Recovered.</p> <p>Attorneys fees for services rendered in one case, may not he ordered paid out of funds recovered in another case, or for any services rendered, except in the case in which the fund was recovered.</p>

<p>EEEOE</p> <p>Reversal of Order of J. P. Refusing Motion to Correct Judgment Erroneous.</p> <p>It is error for the common pleas court to reverse on error proceedings from a justice of the peace, the order of the justice overruling a motion to corrct his record so as to show the actual date on which he entered judgment in the case, there being no bill of exceptions from the justice showing all the evidence given and offered on the hearing of said motion before him and no provision of law for the perfecting of a bill of exceptions in such matters.</p>

<p>ARBITRATION AND AWARD</p> <p>1. Declaration that Party Will not Stand.by Award does not Amount to Revocation.</p> <p>The mere declaration of a party to an arbitration agreement, communicated to one or more of the arbitrators, that he will not stand by any decision they may make, is not alone sufficient to revoke the agreement to arbitrate.</p> <p>2. Parol Award Sufficient, When.</p> <p>If the arbitration submission does not expressly direct that the award be in writing, an oral award is sufficient, there being no statute requiring a written award.</p> <p>3. Creditor of Party not Disqualified to Act as Arbitrator.</p> <p>The mere fact that one of the arbitrators named in an arbitration agreement is a creditor of one of the parties to it, is not sufficient to disqualify the arbitrator from serving as such and does not, of itself, require that the award made be set aside.</p>

<p>DIVORCE AND ALIMONY</p> <p>Alimony Pendente Lite Allowed on Petition Alleging Failure to Provide Suitable Clothing.</p> <p>In the absence of a motion to make it more definite and certain, a petition for divorce and alimony will authorize an order allowing alimony pendente lite when it alleges extreme cruelty on the part of the husband, specifying that he failed to resent insults offered to her by another in his presence, and gross neglect of duty, specifying failure to provide her suitable clothing.</p>

<p>ELEVATORS — MASTER AND SERVANT</p> <p>Sudden Starting of Elevator Due to Negligence of Fellow-Servant, or Intruder Imposes No Liability on Owner.</p> <p>There can be no recovery by a fireman in a business building who was injured when he stepped off an elevator in the building by its sudden starting, he having operated the elevator himself, with knowledge that other employes were permitted to do the same thing, no defect in the construction or operation being shown and the only reasonable explanation of the accident being that some other employe, or fellow-servant, or some intruder upon the premises, started the elevator without warning.</p>

<p>TAXES</p> <p>Remainderman Paying Taxes on Death of Life Tenant not Volunteer and May Recoup from Executor.</p> <p>Plaintiff was entitled to the remainder in certain real estate, subject to a life estate in another. The life tenant died October 24, leaving a will of which defendant was executor. Before December 20, 1909, plaintiff requested defendant to pay the taxes for 1909, payable at that time, which defendant refused to do, the same remaining unpaid until March 16, 1910, when plaintiff paid all the taxes for 1909 and penalty attached for nonpayment of the part due December 20, 1909, and presented his claim therefor to the executor who rejected it. Suit being brought upon the claim, Held: The taxes were a debt of the estate of the life tenant, and it was the duty of her executor to pay the same; the remainderman was not a volunteer in paying them and was entitled to recover.</p>

<p>ASSESSMENTS</p> <p>Actual Knowledge of Work on Street Improvement not Substitute for Notice of Declaratory Resolution.</p> <p>In an action to restrain the collection of a special assessment admitted to be excessive, no notice of the passage of the resolution declaring the necessity of the improvement contemplated having been served upon the plaintiff, it is no defense that plaintiff had knowledge of a former petition for and remonstrance against the improvement, nothing having been done thereunder, nor that she had knowledge of operations on the street after the passage of the resolution and ordinance under which the work was finally let and done.</p>

<p>SALES</p> <p>1, Acceptance of Part Held Acceptance of Whole of Articles of Same Quality.</p> <p>In an entire contract for the sale of a certain number of articles, all alike and of the same quality, acceptance of part is acceptance of all, though delivered at different times.</p> <p>2. Acceptance of Articles Sold Subject to Test Question for Jury.</p> <p>When the question of whether the defendant had had time to test articles sold and delivered to him before accepting them is contested, and he claims that the articles could only be tested in use and that he had sent them to a customer for that purpose, the matter of acceptance is peculiarly for the jury, and it is error to charge the jury that the undisputed testimony shows that the articles had been accepted.</p>

<p>LANDLORD AND TENANT</p> <p>Failure of Landlord to Repair Premises Injured by Fire Relieves Tenant from Rent.</p> <p>While a tenant was in possession of a storeroom under a lease which provided, “if the premises be slightly damaged by fire they shall be promptly repaired by the party of the first part,” a fire occurred and the premises were damaged by fire and also by water used in its extinguishment. The fire occurred on the fifth of the month, on the twenty-first the tenant gave notice that he would move out if the premises were not repaired, and nothing substantial being done in that respect, he moved out on the last day of the month, Held: The tenant was not liable for rent thereafter.</p>

<p>ELEVATORS — MASTER AND SERVANT</p> <p>Assumption that Failure to Signal of Lowering Elevator was Negligence of Fellow Servant Erroneous.</p> <p>In an action for personal injuries resulting from failure to give a signal before an elevator was lowered in a shaft where plaintiff was compelled to work, it is error to assume that the failure to give the signal was due to the negligence of a fellow-servant, and to render judgment on the pleadings for the defendant, when the pleadings do not state the specific employe whose duty it was to give the signal.</p>

<p>CONTRACTS — DAMAGES</p> <p>Measure of Damages in Case of Architcet Wrongfully Discharged.</p> <p>The rule that one wrongfully discharged from his employment will be entitled to recover the agreed wages or salary for the whole time, but reduced by the amount which he has or might have earned by engaging in other employment during the time of the breach, does not apply to an architect retained to draw plans of a building and superintend its construction, who is wrongfully discharged after furnishing the plans and so prevented from superintendence, for his employment does not intend that he shall devote all his time to it, and is not inconsistent with the pursuit of his profession.</p>

<p>DEATH — NEGLIGENCE</p> <p>Knowledge of Defect In Scaffold within Express or Implied Knowledge of Deceased Precludes Recovery.</p> <p>In an action for wrongful death of a workman, killed by the falling of a scaffold upon which he was working, due to alleged defective construction thereof, in the absence of a statute otherwise providing, in order that plaintiff may recover it must be shown that the construction of the scaffold was defective, that the defendant had knowledge of the defect, or ought to have had, and that the deceased did not know of the defect and had not equal means of knowing with the defendant.</p>

<p>LANDLORD AND TENANT</p> <p>Implied Warranty of Landlord’s Title Goes with Assignment of Lease.</p> <p>An implied warranty as to the lessor’s title or right to demise, goes with an assignment of a lease.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>1. Power of Municipal poundl to Try Officers Charged With Certain Offenses.</p> <p>Section 4263 G. C. reserves to the council of a municipal corporation the right to try and remove both elected and appointed officers of the municipality (other than police and fire department officers and those under civil service rules), charged with bribery, nonfeasance in office, misconduct in office other than that specified in Sec. 4670 G. C., gross neglect of duty, gross immorality or habitual drunkenness.</p> <p>2. Council Can Not Try Marshal on Charge of Malfeasance In Office.</p> <p>A village council can not try the village marshal on charges of malfeasance in office filed by the mayor of the village.</p>

<p>WITNESSES</p> <p>Party not Necessary not Excluded as Witness on Account of Objector Claiming under Deceased Party.</p> <p>One who is not a necessary party to a case can not be excluded as a witness on the ground that the party objecting claims under a deceased former owner.</p>

<p>ELEVATORS — INFANTS—MASTER AND SERVANT</p> <p>1. Master’s Hiring Minor not Proximate Cause of Injury to Him.</p> <p>The fact that the owner of a building was negligent in employing a minor, who was too young to run an elevator, may render him amenable to fine under the statutes, but can not be the proximate cause of an injury to the boy himself.</p> <p>2. Defect in Petition Cured by Receiving Evidence without Objection.</p> <p>Although a petition in a personal injury damage case is faulty in not alleging that the defendant had knowledge of the defects in certain machinery which are alleged to have caused the injury, if, without objection, evidence is introduced on this subject and the case tried as though the petition contained the proper allegations, the defect in the petition is cured.</p> <p>3. Minor Under Fourteen Presumed Not to Foresee Danger.</p> <p>The presumption is that a minor under fourteen years of age has not capacity to foresee and avoid danger.</p>

<p>BUILDING AND LOAN ASSOCIATIONS</p> <p>Building and Loan Association when Corporate Capacity and Power Denied Must Make Proof.</p> <p>When a building and loan association sues to foreclose a mortgage and for the collection of usurious interest on the debt thereby secured, to which it claims a right under special provisions of the statutes, and its corporate capacity is denied in the answer, ■ it must prove that it is a corporation possessing the powers it claims, and upon its failure to make such proof judgment as to excess interest claimed should be directed against it.</p>

<p>Motion to dissolve restraining order.</p>

<p>CORPORATIONS — EVIDENCE—PLEADINGS</p> <p>1. Right of Stockholder to Intervene and Defend Case for Corporation.</p> <p>A stockholder who alleges that his company has a valid defense to a suit brought against it, but which managing officers wilfully and fraudulently refuse to make, will be allowed to intervene in the suit and defend for the company upon his tender of an answer stating valid matters of defense to the action and the making of a showing by evidence of reasonable grounds to believe that such defense can be finally proved upon a trial of the case, and that the officers whose duty it is to make it are wrongfully and fraudulently refusing to do so.</p> <p>2. Professional Statements by Reputable Attorneys Admissible Regarding Pleadings.</p> <p>Professional statements by reputable attorneys are sufficient evidence of good faith and warrant the granting of leave to become a party to a suit and to file or amend pleadings.</p> <p>. 3. Pleading not Struck from Files because Demurrable.</p> <p>Because a pleading is demurrable is no ground for striking it from the files; the proper practice is to consider the motion as a demurrer, grant it and then give leave to amend, if desired and proper.</p>

<p>CORPORATIONS — FRAUD</p> <p>Fraud Pleadable In Action for Unpaid Stock Subscriptions.</p> <p>Fraud may be pleaded as a defense in an action to recover unpaid stock subscriptions, even ofter bankruptcy of the corporation, if no debts of the corporation were contracted after the subscription.</p>

<p>INJUNCTIONS — SCHOOLS</p> <p>1. Power of School Boards to Try and Dismiss Teacher Constitutional.</p> <p>The power conferred upon school boards, by Sec. 7701 G. C., to dismiss any appointee or teacher for cause, after hearing, is administrative and not judicial in its nature, and so not unconstitutional.</p> <p>2. Injunction Denied to Prevent Trial and Dismissal of Teacher fay School Board.</p> <p>A court of equity is without jurisdiction to interfere by injunction to prevent the trial and dismissal of a school teacher by a school board because to do so in advance of its action would be to invade the functions of the executive or administrative department, and after such action the remedy for erroneous proceedings lies with a court of law.</p>

<p>PLEADING — PRINCIPAL *AND SURETY — REPLEVIN</p> <p>1. Replevin Bond Liability Extends to Final Determination of Case In Court of Review.</p> <p>A surety on a redelivery bond in replevin is bound until “the final determination of the action,” and this means until the action and all reviews of it authorized by law, have been finally determined.</p> <p>2. Pleading Wrong Interpretation as to Liability on Replevin Bond as Estoppel Denied.</p> <p>A wrong interpretation of the legal liability of a surety on a bond given by a justice of the peace to the surety, before he signs the bond, in the presence of the person for whose benefit the bond is given, and to which interpretation said person assents, can not be pleaded in an action on the bond as an estoppel or bar to said action.</p>

<p>BILLS AND NOTES</p> <p>1. Individuals Signing Promissory Note as Syndicate Managers, Liable Personally.</p> <p>A promissory note reading: “we promise to pay,” etc., and signed, “H. E. Everett, David Morrison, R. E. McKisson, as syndicate managers of the Cleveland Hippodrome Company,” is the joint note of the individuals named.</p> <p>2. Collateral Security Must First be Applied to Payment of Note Secured.</p> <p>A note with collateral security which provides, “In default of payment of this note, said collateral shall he applied on the payment of said note, or any part thereof, by the then owner of this note,” requires the holder of the note to sell the stock, or apply it in reduction of the debt, if the debt is not paid at maturity, before bringing suit against the makers of the note.</p>

<p>BROKERS — INFANTS</p> <p>Purchase of Stock on Commission not Purchase from Brokers.</p> <p>An action to recover money paid by a minor to defendants for stock sold him by them is not sustained by evidence that the defendants, as brokers, purchased the stock for him, on commission, from others.</p>

<p>EMINENT DOMAIN — LANDLORD AND TENANT</p> <p>1. Separate Findings Required for Landlord and Tenant in Condemnation Proceedings.</p> <p>In an appropriation proceeding brought by a municipal corporation against a landlord and his tenant, each is entitled to a separate finding and a separate review of that finding.</p> <p>2. Map Evidence of Possible Special Benefits to Balance of Property not Condemned.</p> <p>A map which shows that by reason of the contemplated improvement new lines of travel past a store will be opened up, which may offset some loss of trade from the old travel, is sufficient evidence to warrant a charge that the measure of damages to property not taken may be reduced by special benefits, if any, which may be found to accrue from the improvement.</p> <p>3. Value of Tenant’s Buildings on Property not Taken Admissible.</p> <p>In an appropriation of a tenant’s interest in lands, value of the buildings on the part not taken may be given in evidence, though the tenant has a right to remove them at the termination of the lease.</p>

<p>ERROR — EVIDENCE—RAILROADS</p> <p>1. Injury to Eye Caused by Gravel Thrown by Fast Train.</p> <p>A laborer on a railroad may recover damages for injuries to his eye caused by a stone or cinder thrown or shot into it by a fast passenger train, from a pile negligently left between the rails where he was working.</p> <p>2. Inconsistencies in Evidence Reconcilable by Jury.</p> <p>Inconsistencies may occur in the testimony of truthful witnesses; it is for the jury to reconcile them.</p> <p>3. Right of Trial Judge to Correct Gill of Exceptions.</p> <p>A trial judge may make such annotations and corrections on a bill of exceptions as, in his judgment, it requires.</p>

<p>BUILDINGS — DAMAGES—TRIAL</p> <p>1. Exemplary Damages Allowable for Malicious Destruction of Property.</p> <p>In an action for removing fixtures from a house, whereby the house itself was damaged, the evidence showing malice, lawlessness and unnecessary damage and a malevolent spirit, exemplary or punitive damages may be awarded.</p> <p>2. Measure of Damages to Real Property Difference In Values Before and after Injury.</p> <p>When damage has been done to real property, the measure of damages is the difference in the value of the property before and immediately after the injury occurred.</p> <p>3. Consent to Erroneous Statement In Charge not Bar to Exceptions to Misleading Charge.</p> <p>The consent of the parties in one instance to an erroneous statement of the law, by the court, to the jury, does not bar one of them from complaining of other parts of the charge when the same incorrect statement was made, if the context shows that the charge as a whole was misleading.</p>

<p>MASTER AND SERVANT</p> <p>Provision for Guarding Saws not Extended to Prevent Particles Being Thrown Therefrom.</p> <p>While Sec. 4364-89e R. S. (Sec. 1027 G. C.) requires owners and operators of factories and workshops to make suitable provisions for guarding all saws and wood-cutting and wood-shaping machinery so as to prevent injury to persons who may come in contact with them, it does not require that such machinery be so guarded as to prevent material or párticles being thrown off from such machinery, to the injury of workmen using it.</p>

<p>COURTS — MECHANICS’ LIENS</p> <p>1. Jurisdiction of Common Pleas in Foreclosure of Mechanic’s Lien for Less than $100.</p> <p>When an action is brought in the common pleas court to foreclose a mechanic’s lien for less than $100, said court may retain the case and enter judgment for the amount claimed, although it adjudicates that the lien is invalid.</p> <p>2. Material Man May Obtain Judgment against Husband and Wife on Joint Undertaking.</p> <p>One who upon the order of a husband furnishes material for the construction of a house upon land the title to which stands in the wife, may have judgment therefor against both, if it appears that the whole project was a joint and family undertaking, to which both contributed of their means as far as they could, and in the benefits of which both parties were to share.</p>

<p>ANIMALS</p> <p>Sufficient Averments to Show Cause of Action for Bite by Vicious Dog.</p> <p>A petition which states that the plaintiff was lawfully on the defendant’s premises and while there was bitten, without his fault, by defendant’s dog while it was running at large thereon in the day time, unmuzzled, shows a cause of action.</p>

<p>SALES</p> <p>Breach by Purchaser Relieves Seller from Contract.</p> <p>A garment company being indebted to a silk company for silk furnished it, agreed to pay its bills when due, if the silk company would furnish it further silk, “up to twenty-five pieces, as many as you can at once.” Accordingly the silk company shipped two more pieces of silk but the garment company, instead of paying its bills when due, sent on a check for only part of the amount keeping' out a certain sum, as it claimed, “for the purpose of protecting it and guaranteeing that the silk company would perform its contract in the future.” Held: By so doing the garment company gave good excuse to the silk company to terminate the contract.</p>

<p>CORPORATIONS</p> <p>1. Authority of Holdover Board to Elect Officers on Failure of Stockholders’ Annual Meeting to Elect Directors.</p> <p>In the event oí failure at the annual stockholders’ meeting to elect a new board of directors, the hold-over board has authority to proceed with the election of officers of the corporation, when the code of regulations of the company provides that officers and directors shall be elected for one year.</p> <p>2. Notice of Directors’ Meeting to Elect Officers when Time is Fixed for Annual Meeting.</p> <p>When there is a fixed time for the holding of the annual meeting of the board of directors of a corporation, each director will be assumed to have notice thereof, and failure to notify all the directors that a meeting is to be held does not invalidate action taken at such meeting.</p>

<p>ASSESSMENTS</p> <p>Assessing Cost of Water Pipes Upon Abutting Property Held Constitutional.</p> <p>Section 3812 G. C., which provides that municipal corporations may assess upon the abutting lots any part o£ the entire cost and expense connected with the improvement of any street by constructing water mains or laying water pipe, is constitutional.</p>

<p>COUNTERCLAIM AND SET-OFF — PLEADING</p> <p>1. Counterclaim for Finding Letter Causing Discharge from Employment not Proper in Action on Account.</p> <p>In an action on an account for goods sold and delivered, the defendant can not set up as a counterclaim, a cause of action in tort, growing out of the sending of a letter by plaintiff’s attorney to defendant’s employer, whereby the defendant lost his job.</p> <p>2. Objection to Counterclaim Raised by Objection to Introduction of Evidence Notwithstanding no Demurrer Filed.</p> <p>Objection to such a counterclaim may be taken at the trial, by objection to the introduction of any evidence under the counterclaim, even though no' demurrer was filed to it and an answer was filed.</p>

<p>WILLS</p> <p>Domicile of Testator' Determined by Judgment of Probate Court Conclusive.</p> <p>The judgment of a probate court of this state as to the domicile of a testator whose will is probated in said court is conclusive upon the courts of this state, though not binding upon the courts of other states.</p>

<p>RAILROADS</p> <p>Discretion in Permitting Grade Crossing to be Constructed.</p> <p>A judgment of the common pleas permitting a village to construct a crossing at grade over a railroad, will not be set aside, unless it appears that the trial judge has clearly abused his discretion in so ordering.</p>

<p>APPEAL</p> <p>Appeal Construed as Entering an Appearance.</p> <p>A partnership being sued in its firm name before a justice of the peace and judgment there being rendered against it, appealed the case to the common pleas court, where the case was properly-docketed as against the partnership, but the plaintiff filed a petition therein entitling the case as one against certain individuals doing business under said firm name, but no service was had thereon. Afterwards default judgment was rendered against the partnership in its firm name. Upon motion to set aside said judgment for want of service on the individuals and because they did not compose the firm, Held: The appeal by the firm entered its appearance in the common pleas court and the judgment against it is valid.</p>

<p>PAYMENTS</p> <p>Buyer Bound by Application of Payments Made by the Seller.</p> <p>Upon a single contract for 10,000 barrels of cement to be delivered at one place, by direction of the buyer shipments of part were made to different places where it went into buildings and for which, by reason of the failure of the buper, the seller was obliged to file mechanic’s liens, whereupon it applied previous payments on the entire contract in its discretion, upon the several liens, having no direction from the buyer as to the application of payments. In an action against one who had assumed one of the contracts where the buyer had used cement for which a lien had been filed, Held: It was bound by the application of payments made by the seller.</p>

<p>WEIGHTS AND MEASURES</p> <p>Rectangular Boxes not Sealable.</p> <p>The city sealer can not be required to seal rectangular wooden boxes having exactly twice the cubic contents of the standard half bushel.</p>

<p>EXECUTORS AND ADMINISTRATORS</p> <p>Buyer of Stock Belonging to Estate May Require Proof that Seller is Administrator and Has Order to Sell.</p> <p>One who has agreed to buy stock belonging to an estate has a right to refuse to accept it until he is furnished proof that the person agreeing to sell it is administrator of the estate and has obtained an order of the proper court fixing the price at which the sale may be made.</p>

<p>BIRDS, FISH AND GAME LAWS</p> <p>Law Relating to Seines and Fish Traps, Constitutional.</p> <p>Section 1426 G. C., making it an offense to have in possession a fish trap in the inland fishing district of the state, when considered in connection with subsequent sections making exceptions thereto, is constitutional.</p>

<p>BANKS AND BANKING — BILLS AND NOTES</p> <p>Deposits of Maker of Note Held by Bank Set-Off Against Assignee of Note.</p> <p>When husband and wife are jointly indebted to a bank upon a promissory note and one of them deposits money to his own credit in the bank and it, after maturity of the note, assigns the same to another, of which assignment the makers of the note have no notice, and one of them continues to make deposits in the bank which later become insolvent, upon suit being brought upon the note, the deposits made in the bank both before and after the assignment of the note may be set off against the amount due thereon.</p>

<p>BILLS AND NOTES</p> <p>Burden of Proof as to Note Negotiated After Consideration Therefor Had Failed.</p> <p>In an action upon a promissory note by an endorsee thereof, when it is shown that consideration for the note has failed, the burden is then upon the plaintiff to show that she had no notice of such failure of consideration at the time she became the holder of the note.</p>

<p>COUNTIES — COSTS—PRISONS</p> <p>1. Coupty Comim!ss¡otiers May Contract for Care of Prisoners in Workhouse.</p> <p>The county commissioners may contract for the care of persons convicted of misdemeanors, in a workhouse of a municipality within the county.</p> <p>2. Prisoners in Workhouse Pay Fines by Labor.</p> <p>The provision in Sec. 4151 G. C. for sentencing a prisoner to the workhouse “until he be discharged at the rate of sixty cents per day for each day of confinement,” means that the prisoner pays his fine, at the rate of sixty cents a day, by his labor.</p> <p>3. Clerk May Collect Fees on Treasurers’ Credit of Prisoners' Earnings in Workhouse.</p> <p>When it appears that the amount to he paid by the county for the care of prisoners in the city workhouse is decreased by the amount realized from the work of the prisoners, the clerk of . courts may collect of the county treasurer his fees in cases in which said prisoners were convicted.</p>

<p>TRIAL</p> <p>Verdict Erroneously Directed Against Defendant on Counterclaim for Nominal Damages Not Prejudicial.</p> <p>A verdict was erroneously directed against a defendant on a counterclaim under which he had shown himself entitled to nominal damages only; Held: No prejudice arose therefrom because it affected the question of costs only, and the costs were properly assessed against: the defendant on the plaintiff’s claim, set up in the petition.</p>

<p>DAMAGES — SALES</p> <p>1. Option to Return Horse Sold Under Warranty or Recover Damages for Breach.</p> <p>When a horse is sold under warranty and one of the conditions of the sale is that the purchaser if not satisfied with the horse after trial thereof, might return him the next day and receive his money back, the purchaser has his election, upon breach of the warranty, to return the horse and have his money back, or keep the horse and sue for damages arising from breach of the warranty.</p> <p>2. Measure of Damages for Breach of Warranty is Difference between Actual and Sale Values.</p> <p>In an action for breach of warranty of a horse, the measure of damages is the difference between the value of the horse, if it had been as represented, and its value as it actually was.</p> <p>3. Special Damages to Vehicles by Horse Sold Under Warranty.</p> <p>In an action for damages for breach of warranty of a horse, the plaintiff may show special damages suffered by reason of his carriages being injured by the actions of the horse, and expenses in attempting to cure the horse of distemper.</p>

<p>EMINENT DOMAIN — RAILROADS</p> <p>Residence Restrictions in Deed not an Interest in Land Requiring Appropriation by Railroad.</p> <p>A restriction by covenant in deeds for lots to their use for residences only, under a general plan of the original grantor, is not such an interest in the lots as requires its appropriation before a railroad company owning the lots can construct a railroad upon them.</p>

<p>LIBEL AND SLANDER — TRIAL</p> <p>1. Retraction to be Available as Defense in Libel Suit Must be Unequivocal.</p> <p>A retraction of a libel, to be available as a defense, must be unequivocal and refer distinctly to the original article.</p> <p>2. Excessive Verdict in Libel Case.</p> <p>A verdict for $500 in a libel case is too much in absence of a showing of malice. Remittitur of $350 ordered.</p>

<p>DEEDS — MORTGAGES</p> <p>1. Deed Absolute Construed Mortgage.</p> <p>A deed absolute, with contract for reconveyance will be construed as a mortgage, rather than as a conditional sale, if the equities of the case require it.</p> <p>2. Heir on Deed Construed Mortgage Obtains Relief by Payment of Mortgage Debt.</p> <p>An administrator of the deceased grantor of such. a deed, may maintain an action to have it construed as a mortgage, but the relief granted will be a conveyance of the property to the heir or devisee, upon payment of the mortgage debt, such conveyance to be subject to the debts of the 'decedent.</p>

<p>WILLS</p> <p>Life Estate and Expenses of Last Sickness and Funeral Granted Widows.</p> <p>The will of Jacob Henry White, after providing for the payment of his just debts and funeral expenses and one dollar to each of his three children, willed his property as follows:</p> <p>“Third. All the rest of my property and estate I give and devise and bequeath to my beloved wife, Frances S. White, giving her full right and power to adjust and settle all claims due me at my death.</p> <p>“Fourth. At the death of my said wife, Frances S. White, I will that all property and estate remaining after settling all claims due, such as expenses of last sickness and funeral expenses, and all that remains of my estate, to be divided equally between my son William White, Dora Stock, and the heirs of my son John White. That is to say, one-third of the remaining parts of my estate to William White, and one-third part of my estate to Dora Stock, and one-third part of my estate to the children of my son John White.”</p> <p>Held: The widow took a life estate in the fund left by her husband, from which should be paid the expenses of her last sickness and funeral expenses and the remainder to those named in her husband’s will.</p>

<p>WITNESSES</p> <p>1. Refusal to Permit Recall of Witness Whose Answers Ambiguous.</p> <p>It is an abuse of discretion to refuse to permit a witness to be recalled for the purpose of re-examination on matters she has already testified to, when her original answers are ambiguous and it is desired to make them definite, if possible, so as to lay the ground for putting an hypothetical question to an expert witness.</p> <p>2. Refusal to Permit Witness to Express Opinion to Proper Hypothetical Question Erroneous.</p> <p>Upon the putting of a proper hypothetical question to a medical expert witness the court, before passing upon objections to the question said to the witness: “Could you answer that question, if under the law it were competent?” to which the witness replied: “It would be a very hard question to answer.” Whereupon counsel asked: “Have you an opinion — could you give an opinion, that is the question,” to which the witness replied: “I could possibly give my own personal opinion,” whereupon the court sustained the objection to the hypothetical question, not only as to this witness, but as to other expert witnesses, to whom it was afterwards put.</p> <p>Held: error.</p>

<p>INTOXICATING LIQUORS</p> <p>1. Designated Rail of Traction Line Boundary of Residence District, Sufficient.</p> <p>The east rail of an electric railway company is a sufficiently recognized line to serve as a boundary of a proposed dry district under the residence district’ local option law.</p> <p>2. Evidence Determining Qualifications of Signers of Residence District.</p> <p>In determining whether a petition for a dry district is signed by the requisite number of qualified electors within it, the judge with whom the petition is filed need not himself verify it from the pollbooks and registration lists, but may take the testimony of another who has done so.</p> <p>3. Street not “Cross or Intersecting Street.”</p> <p>A street which enters but does not cross another street, is not a cross or intersecting street,” within the intendment of the residence district local option laws.</p>

<p>LIBEL AND SLANDER</p> <p>1. Words to be Slanderous to Business Must Refer to Business,</p> <p>To make words actionable because of their effect upon one’s business or office, they must be said with reference to something connected with such business or office.</p> <p>2, Vile Name and Assertion “Tried to Cheat Brothers” not Slanderous per se.</p> <p>The words, “He was a son of a bitch; he had his farm given to him and then he tried to cheat his brothers out of everything they had,” are not slanderous per se.</p>

<p>RAILROADS</p> <p>1. Evidence that Railroad is Operating Trains.</p> <p>It is sufficient evidence that one railroad company is operating trains over the line of another railroad company, as lessee, or otherwise, that it issued a bill of lading for freight consigned to it at a station on the line, published and issued a time table of trains thereon, representing them to be its own trains, and hired and paid a doctor to treat a person injured thereon.</p> <p>2. Driving Noisy Wagon Preventing Hearing of Train and Knowing He Cannot See Trains Held Contributory Negligence.</p> <p>One who drives into a deep cut leading to a railroad crossing with a lumber wagon which makes so much noise that he can not hear an approaching train, and who knows that he can not see one while in the cut, is guilty of contributory negligence if he does not slow down his horses as he emerges from the cut upon the track, to see if a train is approaching.</p>

<p>INSURANCE</p> <p>Tender of Settlement Amount Prerequisite to Action for Recovery of Full Proceeds of Insurance Policy.</p> <p>A petition which recites that the plaintiff was entitled to receive the sum of $3,000 from an insurance company on a policy for that amount issued on the life of her father, but that by the fraud of the company she was induced to accept $2,000 in full for her claims under the policy, and asking judgment against the company for the balance of $1,000, does not present a case in tort, for damages arising from the fraud, but is on the contract of insurance and can not be maintained until the $2,000 paid by the insurance company has been returned or tendered to it.</p>

<p>RAILROADS</p> <p>Jury Declaring Inability to Determine If Train Crew Used Reasonablé Effort to Prevent Accident to Person Walking Track Defeats Recovery.</p> <p>In an action for damages against a railroad company for negligently running down and injuring a person walking on the track, when the case turned upon the question whether the crew in charge of the engine, after they discovered that the plaintiff was in danger of being struck by the engine used all reasonable efforts to prevent the accident to him, or not, and that question was submitted to the jury for a special finding thereon and the jury answered, “We can not tell,” the plaintiff is not entitled to a recovery.</p>

<p>INTOXICATING LIQUORS</p> <p>1. Necessary Averments to Impeach Sale, of Intoxicating Liquor on Prescription.</p> <p>In the prosecution of a druggist for violating the municipal local option law of 1902 (95 O. L. 87), it is not sufficient to charge that he sold intoxicating liquor upon a written prescription and that the sale was not made by him in good faith for medicinal purposes, without alleging that it was known to him that the liquor would be used for other than the purpose the prescription called for, or some other fact tending to show that it was not sold in good faith.</p> <p>2. Repeating Prescription for Intoxicating Liquor.</p> <p>In such a case, where the charge is that the druggist sold the liquor upon a prescription which had been used before, it must also be stated that he knew the prescription had been used before and liquor obtained upon it.</p> <p>3. Failure to Cancel Prescription.</p> <p>In such a case, where the druggist is charged with failure to cancel the prescription upon its first use, it must be stated that it was first used with him.</p> <p>4. Act 95 O. L. 87, Municipal Local Option Law, Held Constitutional.</p> <p>The municipal local option law of 1902 (95 O. L. 87), is constitutional.</p>

<p>FRAUDULENT CONVEYANCES — HOMESTEAD</p> <p>Fraudulent Conveyance Not Exceeding Homestead Exemption Not Set Aside. Equity Courts Will Not Decree a Vain Thing.</p> <p>In an action to set aside a conveyance, alleged to be in fraud of creditors, a decree will not be granted when it appears that the interest of the judgment debtor in the property does not exceed the amount to which he would be entitled in lieu of a homestead, and when the only result of such a decree would be to increase the costs in the case.</p>

<p>CONTRACTS — WORDS AND PHRASES</p> <p>1. Ambiguous Word's in Contract May be Explained by Parol Evidence.</p> <p>Ambiguous words used in a written contract may be explained by parol evidence as to what was said at the time the words claimed to be ambiguous were used.</p> <p>2. “Ship at Once,” “Rush” on Printed Order Stating “Orders Filled at Earliest Possible Date,” Held Ambiguous.</p> <p>When a printed order form provides that orders will be filled at the earliest possible date, writing on the order “ship at once,” “rush,” indicates a special agreement as to shipment and creates ambiguity.</p>

<p>SPECIFIC PERFORMANCE</p> <p>Specific Performance of Contract Denied When.No Meeting of Minds Reached as to Consideration,</p> <p>In an action for specific performance, when the evidence discloses that there was no meeting of the minds as to the amount of the purchase price, specific performance will be refused, but the court will decree the repayment of the purchase, money already received by the vendor.</p>

<p>STREET RAILWAYS</p> <p>Whipping His Team, of Horses Over Street Car Tracks at Street Intersection Instead of Turning Them Off Tracks, Not Contributory Negligence.</p> <p>After a driver of a team of horses had been placed in a situation of danger on street railway tracks through the negligence of the motorman of street car approaching a street crossing at excessive speed, he is only required to do that which a reasonably prudent man under like circumstances would do in escaping from the danger, and in doing it he is nqt guilty of contributory negligence, even though it may not have been the wisest course to pursue.</p>

<p>MASTER AND SERVANT</p> <p>Use of Rope Improperly Repaired Held Negligence.</p> <p>When the owners of a vessel use a rope which has been repaired by “marrying” the broken ends together, instead of splicing them, and in raising a sail the ends part and allow a pulley to fall upon an employe, they are guilty of negligence,</p>

<p>WILLS — WORDS AND PHRASES</p> <p>1. Word “Distribution” Held to Refer to the Tim.e Assets were Available.</p> <p>A testator directed his executors, after the termination of a life estate, to sell certain real estate and divide the proceeds, one-fourth each to four devisees, subject to the conditions and restrictions thereafter mentioned in the will; another clause in the will provided that if any of the heirs and legatees, mentioned in the will should die before distribution of his estate and without leaving children, their shares would revert bach to the estate and be equally divided amongst the remaining legatees; another clause provided that the share of certain legatees should be held in trust by his executors with power to invest the same in real estate, of which the legatees were to have the use during their' natural lives and at their deaths to pass to their children in such manner as they, by will, or as the law might direct. The executors having sold the'real estate at the termination of the life estate, divided the proceeds, and invested the share of two of thé devisees jointly in other real estate, and one of the devisees on whose behalf said last named real estate was purchased having died without children but leaving a will by which she attempted to .dispose of her interest in said property; Held: The word distribution-as used in testator’s will did not mean the final settlement of the estate, but referred to the time when the assets became available through being divided at the termination of the life estate, and the devisees acquired title at that time.</p> <p>2. Right of One to Whom wás Devised an Absolute Estate, Subject to be Divested, to Make Will.</p> <p>Under the third item of the will an absolute estate was granted to each of the devisees named therein subject to be divested as to each by their death leaving children; therefore one of them dying without children had a right to dispose of her interest by will.</p>

<p>CORPORATIONS</p> <p>Constitutional Provision Concerning Stockholder’s Liability Self-Executing.</p> <p>The provision of the Ohio Constitution as to the liability of stockholders in corporations is self-executing and the liability of the stockholder is fixed by it.</p>

<p>INTOXICATION</p> <p>One Drunken Companion Not Liable for Carelessness of Another Drunken Companion Driving.</p> <p>An intoxicated person is not liable for an injury caused by the negligent driving of a horse and buggy by a drunken companion with whoml he had spent the day riding and drinking; they are not engaged in a joint undertaking.</p>

<p>MORTGAGES</p> <p>Grantee of Purchaser at Judicial Sale Bound by Agreement to Assume Mortgage.</p> <p>When real estate is sold by an administrator under an order of the probate court in a proceeding to sell lands to pay the debts of a decedent, and it is stated both in the administrator’s report of the sale made to the court and in his deed to the purchaser, that the purchaser takes the land subject to a mortgage which she assumes and agrees to pay, the grantee of such purchaser will take the property subject to such mortgage, even though the mortgagee did not set up its mortgage upon these particular premises in the action to sell them and there was no finding of the probate court of the amount due him.</p>

<p>BENEFICIAL ASSOCIATIONS</p> <p>In Mutual Benefit Societies Delinquency as to Dues does not Work Forfeiture. ,</p> <p>Where a suspension for nonpayment of dues is provided for in the laws of an association, the fact of delinquency alone, does not, ipso facto, work a forfeiture; a suspension by formal proceedings is necessary.</p>

<p>JURY — TRIAL</p> <p>New Trial Granted for Attempt to Influence Juryman by Intimidating Letter.</p> <p>The receipt by a juryman of an anonymous letter in which it is sought to intimidate him and influence his verdict, requires that a new trial should he granted, even though it does not appear that the juryman was influenced by the letter or that it was written by the successful party, his council, friend or anyone connected with the case.</p>

<p>ACTIONS — DAMAGES</p> <p>Action for Damages for Personal Injuries does not Abate by Death of Plaintiff.</p> <p>An action for damages for personal injuries caused by wrongful act, does not abate by the death of the plaintiff, even though wrongful act complained of was the direct cause of death, but may be revived in the name of the administrator.</p>

<p>LANDLORD AND TENANT</p> <p>One Contracting for Lease of Premises May not Rescind because Use for Purpose Contemplated is Illegal.</p> <p>When the owner of premises agrees to equip them in a certain manner and rent them to plaintiff, the discovery that it will be illegal to use them for the purpose contemplated because of the manner of equipment, furnishes no ground for rescission of contract by plaintiff, when he has had full and exclusive control of the mode and method of making the equipment.</p>

<p>MASTER AND SERVANT — WITNESSES</p> <p>1. Cross-Examination of Witness Hostile to Party Calling Discretionary.</p> <p>It is within the sound discretion of the trial court to allow, or refuse to permit the cross-examination of a witness upon the ground that he is hostile to the party calling him.</p> <p>2. Assumption of Risk Applies when Employe has Knowledge Express or Implied.</p> <p>The doctrine of assumed risk applies when an employe either has knowledge of his employer’s alleged negligence, or has equal means .of knowing of the alleged dangerous condition, and it is error to charge that the doctrine does not apply unless he had both knowledge and equal means of knowing.</p> <p>3. Employe Assumes Risks of Which He has Knowledge, Express or Implied.</p> <p>An employe assumes the risks of which he knows or with which he is chargeable with knowledge, irrespective of whether they are ordinarily and usually incident to the employment.</p> <p>4. Want of Knowledge of Employe not Presumed.</p> <p>The mere fact that a certain condition is new to that locality raises no presumption that an employe is ignorant of its dangers.</p>

<p>ASSAULTS — EVIDENCE</p> <p>Infirmities Presumed to Result from Only Cause in Evidence.</p> <p>When it is shown that plaintiff was assaulted and that he after-wards suffered infirmities which might have resulted either from external violence or from disease, there being no evidence of plaintiff’s having been diseased, it will be presumed that his injuries resulted from the assault proven.</p>

<p>MASTER AND SERVANT — PLEADING</p> <p>Plaintiff Must Plead Ignorance of Defects or Dangerous Conditions.</p> <p>In an action for death by wrongful act, caused by a defect in the appliances, places or ways which the employer has furnished for his employe, it is necessary to aver want of knowledge of such defect or danger on the part of the employe, and an averment that the employe did not know or appreciate the danger of the particular casualty by which he was in fact overtaken is not sufficient.</p>

<p>LANDLORD AND TENANT — NUISANCE</p> <p>1. Tenant Liable for Nuisance of Continued Existence.</p> <p>When there has been a nuisance of continued existence both the lessor and lessee of the premises may be liable therefor, and in an action against the lessee for damages it is no defense that the premises were received from the lessor in the same condition.</p> <p>2. Two Years Tenant Charged With Notice of Defective Coal Hole.</p> <p>When a tenant has been in possession of premises for two years, he will be charged with constructive notice of a defect in the covering of a coal hole in the sidewalk which has existed during all of that time.</p>

<p>APPEAL-TIME</p> <p>Time for Filing Appeal Bond Expiring Sunday, Next Day too Late,</p> <p>Section 4951, R. S. (Sec. 10216 G. C.), does not apply to practice in justices’ courts, and when the date upon which an appeal bond may be filed falls upon Sunday it can not be filed on the following day.</p>

<p>MORTGAGES</p> <p>1. Doctrine of Inverse Order of Alienation Purely Equitable.</p> <p>The doctrine of ‘‘inverse order of alienation” as applied to the subjection of mortgaged property to the payment of a mortgage, is purely equitable and not applicable to a case when equity and natural justice would be defeated by so doing.</p> <p>2. Mortgagee May Enforce Mortgage on Two Lots One-Half against Each Property Regardless of Order of Alienation.</p> <p>When a father had devised houses of equal value to each of his two daughters and later executed deeds of the properties to the daughters; Reid: That the husband of one daughter, to whom the father had given a mortgage prior to the execution of the deeds, might enforce the mortgage, one-half as against each property, and the fact that the deed to his wife had been delivered subsequent to that to the sister did not compel him to subject the properties in the inverse order of their alienation.</p>

<p>HIGHWAYS — NEGLIGENCE</p> <p>No Duty of Pedestrian to Stop, Look and Listen for Vehicles.</p> <p>There is no duty on the part of a pedestrian to stop, look and listen for vehicles before crossing a highway.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>Municipal Corporation Liable for Injury Caused by Dangerous Condition of Streets, Notwithstanding Plaintiff’s Knowledge.</p> <p>When a dangerous condition exists in a street due to repairs of pavement being made by the city, and plaintiff, who has knowledge of the conditions, while alighting from a car at night thinking he was alighting upon a crosswalk a short distance from the place being repaired, is injured by stepping into a hole which he could not see by reason of the city’s neglect to place red lights or to keep an arc light overhead burning, the city will be liable.</p>

<p>DEATH — RES ADJUDICATA</p> <p>Action for Wrongful Death not Barred by Prior Action for Personal Injury.</p> <p>Although it appears that an action for wrongful death is based upon the same state of facts upon which a former action by dev : cedent for personal injuries was based, the doctrine of res adjudioata does not apply unless it further appears that the issues are identical in the two actions.</p>

<p>PLEADING — RAILROADS</p> <p>1. Admission of Ownership of Railroad Includes Appurtenances.</p> <p>An admission by a defendant that it owns and operates a certain steam railway as alleged in the petition includes an admission of the ownership of side-tracks, ears and appurtenances mentioned in the petition.</p> <p>2. Knowledge of Defective Door of Car on Siding not imputed. ■</p> <p>A brakeman riding in the open door of a through train, injured by a defective door of a car standing on a siding of which he had no notice and no opportunity of discovering it except 'When riding by when the instinct of self-preservation would impel him to avoid, raises no inference of negligence on his part and justifies an instruction that he had neither actual knowledge nor equal means with his employers of knowing of such defect.</p>

<p>ERROR — JUDGMENTS</p> <p>1. Collection of Judgment not Enjoined unless Good Defense Shown.</p> <p>To maintain an action to set aside a judgment it is necessary to allege and prove that there is a good defense to the cause of action.</p> <p>2. Error to Review Order Dissolving Temporary Injunction. Quaere.</p> <p>Whether or not error may be prosecuted to reverse an order of the court of common pleas dissolving a temporary restraining order, quaere.</p>

<p>MORTGAGES — RECORD</p> <p>1. Recorded with County Recorder Valid.</p> <p>Mortgages of real and personal property of telegraph, telephone or other like companies are valid when filed with the county recorder in counties in which the property intended to be covered thereby is situate, according to the provisions of Sec. 3256. R. S. (Sec. 8683 G. C. et seq.) and a mortgage so recorded operates as a valid lien upon the property of the company from the date the law became effective, notwithstanding the fact that the recording was at an earlier date.</p> <p>2. Provision for Recording Certain Class of Mortgages Constitutional.</p> <p>Section 3256a R. S. (Sec. 8706 G. C.), providing for the recording of mortgages of the real and personal property of telegraph, telephone and other like companies with the county recorder, is not class legislation and is constitutional.</p>

<p>INJUNCTIONS — COMPENSATION AND SALARIES</p> <p>Equity will not Enjoin Payment of Salaries Equitably Due but not Legally Collectible.</p> <p>Where county employes continue to perform labor after the law-under which they were employed was so changed as to discontinue their employment unless they should be re-employed in a particular manner, the county commissioners having passed a resolution appropriating money to pay the sums to which they would have been entitled if they had regularly re-employed, equity will not interfere to enjoin such payment, but leave the parties as it finds them.</p>

<p>CRIMINAL LAW — TELEGRAPHS AND TELEPHONES</p> <p>1. Criminal Statutes must be Restricted to Their Descriptive Terms.</p> <p>A statute defining a crime or offense can not be extended by construction to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.</p> <p>2. Molesting or Destroying Telephone Wires Not a Violation of Law Regarding Telegraph Wires.</p> <p>Section 3471 R. S. (Sec. 9191 G. C.), does not extend the operation of Sec. 3461-3 R. S. so as to make the intentional injuring, molesting and destroying of telephone wires a criminal offense within the provisions of that statute.</p>

<p>GIFTS — LIENS</p> <p>Donor of Real Estate with Interest Reserved has an Eqiutable Lien.</p> <p>"When one buys real estate and causes it to be deeded to another under a verbal agreement that the donee shall pay to the donor interest on his investment during his natural lifetime; Held: That the donor has an equitable lien upon the real estate to enforce payment of interest as agreed.</p>

<p>CONTRACTS — SALES</p> <p>Sale of Contract Benefits Includes Right of Action on Account.</p> <p>A sale by an individual of all the tangible property of the business of that individual and all “outstanding contracts” transfers to the purchaser the right to bring an action on account of services performed by the individual.</p>

<p>MALICIOUS PROSECUTION</p> <p>Proof that no Evidence in Support of Criminal Charge was Offered Competent in Malicious Prosecution.</p> <p>In an action for malicious prosecution founded upon a criminal proceeding before a magistrate, it is competent to prove by any competent witness who was present that no evidence in support of the criminal charge was offered or given by defendant.</p>

<p>SALES — TRIAL</p> <p>Question of Acceptance One for Jury on Issue of not Conforming to Specifications.</p> <p>Upon an action for the purchase price of fixtures when the defense is made that the fixtures were not according to specification and were not accepted, the question of acceptance or nonacceptance is one for the jury.</p>

<p>LANDLORD AND TENANT</p> <p>Tenant Knowing Condition at Leasing may not Surrender Premises because Untenantable.</p> <p>A tenant may not surrender premises under Sec. 4113 R. S. (Sec. 8521 G. C.), because unfit for occupancy, wben tbe only change in the premises is from natural wear and decay, and tbe condition of tbe premises was fully known to bim at tbe timie tbe lease was made.</p>

<p>PAYMENTS</p> <p>1. Creditor has Right to Apply Involuntary Payments.</p> <p>Creditors have the same right to apply involuntary payments that they have to apply voluntary payments when the debtor makes no designation as to method of application.</p> <p>2. Assignment of Securities Generally does not Deprive Creditor of Right of Application.</p> <p>The mere fact that securities had been assigned to a creditor as “security generally for any indebtedness that might be owing to it,” does not mfean that any sum realized from those securities must be applied pro rata to reduce the various claims but it may apply such sums as it sees fit.</p>

<p>ASSIGNMENTS — PAYMENTS</p> <p>An Order for Payment of Money Generally not Assignment.</p> <p>An order given by a contractor on the owner of a building which the contractor was erecting, requesting the owner to pay a certain sum to a certain person “and charge the same to me” is not an assignment of the money due him, but a mere order for the payment of money, which must be accepted before it becomes binding on the drawee.</p>

<p>INSURANCE</p> <p>In Mutual Benefit Insurance False Warranties in Application Whether Material or Immaterial Voids Policy.</p> <p>When a party in order to effect insurance upon his life, states that the answers and declarations made by him in his application to participate in a benefit fund of a fraternal society and in his medical examination are true, and agrees that they are to he treated as warranties and made a part and parcel of the contract and that if untrue the policy shall be void; Held: That the society is not liable if any of the statements are untrue and that the agreement of the parties removes the question of the materiality of the warranties from the consideration of the jury.</p>

<p>RAILROADS</p> <p>Railway not Liable for Injuries at Crossing to Driver Obstructing His Own View.</p> <p>When it appears that the intestate, a driver who was killed at a railway crossing, was walking beside his wagon, which was between him and the railway track and was piled high with lumber so as to obstruct the view of an approaching train, and .there is evidence that the whistle was blown for the crossing, it is error in an action for damages on account of his death to overrule a motion to direct a verdict for the railway company.</p>

<p>CORPORATIONS — SALES</p> <p>Sale and Option to Purchase Stock Distinguished.</p> <p>When the owner of shares of stock enters into an agreement with another wherein that party agrees to take over the stock at a certain price on or before a certain date and the owner agrees that he will transfer the stock at any time before the date mentioned upon .the tender of the amount specified, the transaction is an option to purchase and not a sale and the owner can not, upon the failure of the other to pay for and take the stock, maintain an action for the purchase price.</p>

<p>NUISANCE — RES AD JUDICATA</p> <p>1. Res Adjudícala no Bar Unless Issues are Identical.</p> <p>In an action for nuisance the issue of res adjudicata is not raised by averments that the property involved and the nuisances complained of are identical with those involved in a former suit without averment of the identity of issues joined.</p> <p>2. City Liable for Maintaining Defective Sewer.</p> <p>A municipality is liable in damages for maintaining a defective sewer in such condition that sewage is allowed to seep or percolate through the subsoil, and into the cellar of an adjoining property owner.</p>

<p>INTOXICATING LIQUORS</p> <p>1. “Jones Law” Constitutional.</p> <p>The “Jones law” providing for local option in residence districts is a valid exercise of legislative power and is constitutional.</p> <p>2. Bill of Exceptions, Perfected in Mayor’s Court within Ten Days.</p> <p>In proceedings under the “Jones law,” hills of exceptions in a mayor’s court must he taken pursuant to the provisions of Sec. 6565 R. S. (Sec. 10359 G. C. et seq.) and must he presented to the mayor for allowance within ten days.</p>

<p>COURTS — CREDITORS BILLS</p> <p>Insolvency Court has no Jurisdiction to Entertain Creditor’s Bill, When.</p> <p>The insolvency court has no jurisdiction under Sec. 548-35 R. S. (Sec. 1637 G. C.) to entertain a creditors’ bill for the purpose of subjecting a distributive share of assets assigned and being administered by the court.</p>

<p>EQUITY</p> <p>Prior Assignment of Security Prevails Over Later Assignment of Same Security.</p> <p>When two equities are equally strong that which is prior, in part of time will prevail. Hence, when a pledge to one has been made of a note and mortgage securing it, and subsequently another purchases a note, executed. by the same maker, to which the former note and mortgage were intended as collateral security, the former pledge will be given priority in the proceeds of the mortgage.</p>

<p>GUARDIAN AND WARD</p> <p>Jurisdiction of Probate Court to Appoint Guardians for Inebriate under Application for Imbecile.</p> <p>The probate court has no jurisdiction to find one an intemperate and appoint a guardian for him under favor of Sec. 6317 R. S. (Sec. 11011 G. C.) where the application for the appointment of a guardian alleges imbecility and is made under favor of Sec. 6302 R. S. (Sec. 10998 G. C.)</p>

<p>BILLS AND NOTES — COUNTERCLAIM AND SET-OFF</p> <p>Existence of Counter Claiml no Defense to Action on Cognovit Note.</p> <p>That the payee of a cognovit note has released the endorsers of another note held as collateral, hy negligently failing to protest it for nonpayment, is no defense in an action on the cognovit note.</p>

<p>ERROR — NEW TRIAL</p> <p>Motion for New Trial Necessary to Prosecute Error to Judgment Non Obstante Veredicto.</p> <p>When a trial court has entered judgment non obstante veredicto upon the ground that a special finding of the jury is inconsistent with its general verdict, a reviewing court can not set aside the judgment on the ground that the special finding was not sustained by sufficient evidence, when no motion for a new trial was filed by the party against whom Judgment was entered.</p>

Error. The plaintiff below recovered a judgment against the city for $1,600, on account of permanent injuries from being thrown from his wagon on Spring Grove avenue, near Terrace Place. It was alleged that the accident was due to a hole in the street, which he did not see although he was driving carefully.

<p>ASSIGNMENTS — PARTIES</p> <p>Lessee and His Assignee may be Sued Jointly and Summons Issue to One Outside County.</p> <p>When action is brought upon the covenants of a lease which are binding on both the lessee and his assignee, they may be sued jointly, and when one is found in the county summons may issue to an adjoining county for the other.</p>

<p>REPLEVIN</p> <p>No Damages Allowed when Plaintiff Elects to Take Value of Property.</p> <p>In an action of replevin when the plaintiff elects to take the value of the property as found by the jury, he can not also recover damages for its wrongful detention, and his recovery is limited to the value of the property thus found together with interest on that amount from the date of the wrongful detention.</p>

<p>ERROR — TRIALS</p> <p>Jury Determines Weight of Evidence not Court to Direct Verdlot for Plaintiff.</p> <p>It is the province of the jury to say whether or not the one npon whom the burden of proof has been cast has sustained it, and is error for the court to direct a verdict for plaintiff though his uncontradicted evidence makes a prima -fade case.</p>

<p>COVENANTS</p> <p>Building Restrictions Enforceable in Modo et Forma.</p> <p>When one has purchased a lot subject to general restrictions which were part of a general plan in opening up a street, or which were represented to him and the public to be part of such a plan, he is entitled, having relied upon and conformed to those restrictions, to have the same enforced, in modo et forma, against his vendor and all purchasers from the vendor with notice of the general plan..</p>

<p>NEGLIGENCE — TRIAL</p> <p>1. Evidence of Prior Accidents Admissible to Show Dangerous Condition.</p> <p>In an action for personal injuries, evidence of a prior accident of similar character is admissible for the purpose of showing a dangerous condition, even though plaintiff relies upon notice and a promise to repair.</p> <p>2. Participation of Judge in Trial.</p> <p>It is a matter of taste how much a judge shall talk or ask questions from the bench, but it is not misconduct for him to do so, unless lie asks questions which call for evidence that is inadmissible, and objections are made and exceptions are saved.</p>

<p>CRIMINAL LAW — FORGERY</p> <p>1. Affidavit of Prejudice Filed on Day of Tria!, too Late.</p> <p>An affidavit of prejudice filed on the day of trial and immediately before its start, is too late and may be disregarded by the trial judge.</p> <p>2. Absence of Accused's Endorsement on Forged Instrument, Immaterial Variance.</p> <p>The uttering and publishing of a forged instrument is complete when it is presented for payment, and the omission of defendant’s indorsement from the back of the copy of the instrument as set out in the indictment is an immaterial variation as the offense charged was complete when the indorsement was made.</p> <p>3. Trial of Accused when Absent.</p> <p>If after the trial of a criminal cause has commenced, the prisoner absents himself, the trial may continue whether the case be one of felony or misdemeanor, though sentence may not be pronounced in the prisoner’s absence, except in cases of misdemeanor.</p>

<p>HUSBAND AND WIFE — RECORD</p> <p>1. Covenant to Stand Seized Creates no Legal Estate in Ohio.</p> <p>The statute of uses is not in force in Ohio and an antenuptial agreement to stand seized of certain property creates no legal estate therein.</p> <p>2. Recording of a Nonrecordable Instrument not Notice.</p> <p>When tile statutes of the state only provided for the recording of instruments by which “lands, tenements or hereditaments are conveyed or otherwise affected or incumbered in law,” placing an antenuptial covenant to stand seized upon record in the recorder’s office will not act as notice to purchasers for value.</p>

<p>DAMAGES</p> <p>Damages to Railway Trestle from City's Negligence does not Include Railway Supervising" Officer’s Salary.</p> <p>Damage to a railway trestle by reason of the sliding of a bank of earth, due to negligence in the construction of a street for which the municipality is liable, can not be made to include the full salary of one of the officers of the company, who was compelled . to devote much of his time during the period of repair to overseeing the work.</p>

<p>AUTOMOBILES — STREET RAILWAYS</p> <p>Chauffeur Turning Automobile into Narrow Street and Striking Street Car before Crossing Curb Line, Negligent.</p> <p>When a chauffeur In attempting to turn into a narrow street collided with a slowly moving street car before he had crossed the curb line, it is evident he did not exercise the care and prudence required by law, and a judgment recovered by him for damages to his machine will be reversed.</p>

<p>DAMAGES — EXCAVATIONS</p> <p>1. Excavations to Nine Feet exempt from Damages Regardless of Depth of Adjoining Walls.</p> <p>The statutes of Ohio permit an excavation to the full depth of nine feet without incurring liability, regardless of the depth of adjoining foundation walls.</p> <p>2. Damages for Greater than Nine Foot Excavation Limited to Excess.</p> <p>When an excavation is made to a greater depth than nine feet, liability for resulting damages to adjoining property is limited to that caused by going below nine feet, and not that caused by the whole excavation.</p>

<p>EXCAVATION — DAMAGES</p> <p>Damages for Excavation Limited to Excess over Nine Feet.</p> <p>The phrase “by such excavation” in Sec. 2676 R. S. (Sec. 3782 G. C.), construed with Sec. 2677 (3783), limits the recovery of damages to depths greater than nine feet without reference to depth of adjoining foundation walls.</p>

<p>Appeal.</p> <p>Henry, J.; Winch, J., and Marvin, J., concur.</p>

<p>CHARGE TO JURY — ERROR—TRIAL</p> <p>1. Objection to Improper Counter-Claim may be Waived.</p> <p>When several defendants file answers setting up, as against each other, cross-demands in the nature of counterclaims which are within the original jurisdiction of the court, and all parties without objecting thereto join issues and the case proceeds to trial and judgment, the various parties will be considered as having waived the question whether such cross-demands were the proper subject of counterclaim.</p> <p>2. Error in General Charge not Cured by What is Said Colloquolly by Court to Counsel.</p> <p>When the court has erroneously charged as to the burden of proof and upon the request of counsel that he correct his charge in that respect says, addressing himself to counsel, “Very well, if you insist I will charge that the burden of proof was on plaintiff as to both defendants” without addressing the jury or modifying or withdrawing his original charge, the error committed therein is not cured.</p>

<p>MUNICIPAL CORPORATIONS — NEGLIGENCE-PLEADING</p> <p>1. Village Liable to Tenant of Municipally Owned Building for Loss by Fire Negligently Caused by Village.</p> <p>When a village through its council contracts with a natural gas company for the installation, as an experiment, of certain heating apparatus in a municipally owned opera house building, such apparatus to be paid for by the village if found satisfactory otherwise to be removed by the gas company, and members of council directed the location of the heater and supervised its installation, the village is liable to a tenant of the building for loss of goods destroyed by the burning of the building caused by a gas explosion.</p> <p>2. Gas Company Installing Heating Apparatus Subject to Approval not Independent Contractor Liable to Tenant of Building for Fire Loss.</p> <p>A gas company installing certain heating apparatus in a municipally owned building under the direction and supervision of village officers, to be paid for by the village if found satisfactory, otherwise to remove it, is not an independent contractor. Hence, under the rule of respondeat superior the gas company, as a codefendant with the village in an action brought by a tenant of the building for loss of goods destroyed by fire resulting from a gas explosion, is properly dismissed.</p> <p>3. Verdict for Less than Total Fire Loss Indicates Protection by Court and Consideration by Jury of Owner's Rights as to Tenant’s Negligence in Preventing Removal of Property.</p> <p>In an action against a village by a tenant of a municipally owned</p> <p>• building for loss of goods negligently caused by fire, destroying the building and contents, a verdict for less than the value of the goods destroyed indicates that the rights of the village were protected by the charge of the court with reference to alleged negligence of the tenant in locking his door and failing to use due diligence in the removal of his goods.</p> <p>4. Sending Petition to Jury without Objection with Instructions to Disregard Averments Regarding Dismissed Defendant not Erroneous.</p> <p>While it is the better practice to file an amended petition from which a defendant who has been dismissed from the case has been eliminated, yet when this has not been done and the original petition is sent to the jury room without objection being made thereto, and the jury is instructed to disregard all averments regarding the defendant who has been dismissed, a reviewing court will not treat the sending of the original petition to the jury room as error.</p>

<p>MORTGAGES — PAYMENT</p> <p>Decree Finding Conditions of Mortgage Performed is Bar to Action on Note.</p> <p>When the holder and assignee of a mortgage note and mortgage brings suit for foreclosure of the mortgage in the county where the land is situated without asking for personal judgment,, and the defendant by answer and cross-petition asks for cancellation of both note and mortgage on the ground that the amount of the note and mortgage has been paid to an agent of the plaintiff, a decree of the court finding that the conditions of the mortgage has been performed supports a plea of res adjucUcata when interposed as a defense to an action on the note begun in another county.</p>

<p>ABATEMENT</p> <p>Abatement of Action to Cancel Certificate of Insurance Company.</p> <p>When the only relief which plaintiff could, in any event, have had is rendered obsolete by the lapse of time since the petition was filed, the petition will be dismissed.</p>

<p>MECHANICS’ LIENS</p> <p>Mechanic’s Lien not to be Antedated by Judicial Decree.</p> <p>A court has no'jurisdiction to amend by judicial decree a mechanic’s lien, by antedating the first item of the account as filed to mate it conform to the actual date of the furnishing of material.</p>

<p>JUDGMENTS</p> <p>No Property Right can be Acquired under Judgment Subsequently Reversed.</p> <p>No property rights as between tbe parties thereto can be acquired under a judgment wbieb is subsequently reversed, even though the proceedings relied upon are had under a mandate from the Supreme Court affirming the judgment.</p>

<p>TAXES — WORDS AND PHRASES</p> <p>"Taxes Levied” Means Taxes on Duplicate.</p> <p>In a covenant regarding taxes thereafter “levied” it is presumed that the parties meant taxes thereafter to be ascertained upon the preparation of the county auditor’s-tax duplicate.</p>

<p>COURTS — TRUSTS AND TRUSTEES</p> <p>1. Probate Court Has no Jurisdiction to Supervise Testamentary Trusts.</p> <p>The probate court has no jurisdiction conferred upon it by law, to supervise or control the administration of a testamentary trust.</p> <p>2. Jurisdiction Cannot be Conferred in Testamentary Matters to Probate Court.</p> <p>Jurisdiction can not be conferred upon the probate court by will or any other private appointment, or by consent, empowering it to act as a court in supervising the administration of a testamentary trust.</p> <p>3. Probate Court Acts as Arbiter Only Under Will Conferring Supervisory Powers.</p> <p>When the probate court assumes to act under the provisions of a will conferring upon it supervisory powers over the administration of a testamentary trust, its action is that of a mere arbitrator from which error will not lie.</p>

<p>ERROR — WITNESSES</p> <p>1. Witnesses May Give Expert Testimony Concerning Machines when Familiar with Similar Machines.</p> <p>Witnesses may give expert evidence concerning the construction and operation of a certain machine, where it appears that they have operated similar machines of a slightly different size or in a slightly different position.</p> <p>2. Reviewing Court can not Pass Upon Weight of Evidence when Object Illustrating Evidence in Trial Court is not before It.</p> <p>When it appears from the bill of exceptions that witnesses in testifying used a photo-engraving and a piece of tin in explaining the construction and operation of a machine, such testimony being plain and patent to the jury but more or less unintelligible to a reviewing court, it can not be said without such photoengraving and piece of tin before it, that the reviewing court has all of the evidence which was before the jury, and the court will not be able to determine whether the verdict is sustained by the weight of the evidence.</p>

<p>CORPORATIONS — SALES</p> <p>1. Signature of Manager of Vendee Corporation Sufficient.</p> <p>When it appears in the body of a conditional contract of sale that the vendee is a certain corporation, and the contract is signed by the purchaser in such manner as to comply with the provisions of Sec. 4155-2 R. S. (Secs. 8568 G-. C. et sect.), if signed by and in the name of its manager thereunto lawfully authorized, it is binding although the name of the corporation is not signed.</p> <p>2. Vendor under Conditional Salei at Common Law may Retake without Tendering Repayment.</p> <p>At common law where title is expressly retained in the vendor of chattels until the purchase price is paid, upon default by the vendee, the vendor can retake them either from the vendee or any one having possession, without first tendering repayment of the sums paid by the vendee.-</p>

<p>TRUSTS AND TRUSTEES</p> <p>Trust Unenforceable for Uncertainty in Determining Amount of Funds. When evidence discloses that funds in the hands of an assignee are impressed with a trust, but nothing from which the amount of such funds can be determined, the trust is unenforceable.</p>

<p>MANDAMUS — TAXES</p> <p>1. Holder of Certificate of Tax Sale with Vague Description can not Compel Execution of Tax Deed.</p> <p>A certificate of tax sale which described the property sold as being “5-121 A. in forks of road” is so indefinite that any deed made therefor would be void for uncertainty and the court will not do a vain thing by ordering the execution of such a deed.</p> <p>2. Mandamus can not be Invoked to Control Discretion of County Auditor Allowing Redemption of Property Sold for Taxes.</p> <p>Courts will not attempt to control by mandamus, or set at naught the discretion of the county auditor, when, upon an application of a party claiming an interest in property sold for taxes, he has decided that the party has an interest and allowed him to redeem the property.</p>

<p>JUDGMENTS</p> <p>Default Judgment not Set Aside on Error, when no Abuse of Discretion is Shown.</p> <p>A default judgment rendered after two answers had been stricken from the files, will not be set aside on error where the only claim is that at the time the default was taken defendant did not have accurate information as to what defense he had.</p>

<p>BANKS AND BANKING — ESTOPPEL—PRINCIPAL AND AGENT</p> <p>1. Dealer with Agent must Act In Good Faith Respecting Restriction on Authority.</p> <p>It is an obvious limitation upon the liability of the principal that he who deals with the agent must act in good faith, respecting every restriction upon the agent’s authority of which he may have notice.</p> <p>2. Bank Estopped to Deny Apparent Authority of Employe Receiving Deposit.</p> <p>When a prospective patron goes to the “New Accounts” window in a bank and asks for a certain employe of the bank with whom she is acquainted, and he is called from the rear portion of the bank to the place at the window and there accepts a deposit and issues to her a pass-book of the bank showing that such a deposit has been made by her, the bank is estopped from denying the receipt of the deposit or the authority of the employe to receive it.</p> <p>3. Bank Employe Showing Withdrawal of Deposit Misappropriated not Defense to Action for Amount by Depositor.</p> <p>The fact that an employe of a bank, who has received from a depositor a sum which he had appropriated to his own use, later makes an entry in the pass-book he had issued the depositor showing the withdrawal of a certain amount which he represents the bank had invested for the depositor, is no defense to the bank in an action by the depositor for the amount of the deposit.</p>

<p>MASTER AND SERVANT</p> <p>Employe Injured while Removing Cement from Pile.</p> <p>It is not negligence on the part of an employer to pile sacks of cement in two stable piles and fill in the space between the two piles with other sacks not so securely piled, and an employe who aids in removing the sacks from one of the retaining piles and thus allows the other sacks to fall upon him has no cause of action.</p>

<p>PARITES — PRINCIPAL AND SURETY — TRUSTS AND TRUSTEES</p> <p>1. Promiscuous Use of Incorrect Appellations of Party not Mistaken identity.</p> <p>The promiscuous use in the papers in the case and on the docket of the court of the names American Bonding Co. and American Bonding & Trust Co. as that of the plaintiff in the case, does not indicate uncertainty as to the identity of the party or that the court was not properly advised with reference thereto, when the correct name was used in the judgment and the motion for a new trial without objection on the part of the defendant.</p> <p>2. Purchase of Highest Form of Investment by Trustee, Confirmed by Court Held Regular.</p> <p>When a trustee purchases with funds in his hands bonds constituting the highest form of investment known to the law, and the investment is reported to the court in his account which is confirmed in due course, such confirmation operates as an approval of the investment as fully as though a prior formal order had been made.</p> <p>3. Bank Purchasing Bonds from Trustee1 Charged with Knowledge of Trust.</p> <p>There is no presumption in law of authority on the part of a trustee to sell bonds held by him in trust, and those purchasing from him without a showing of authority to sell will be charged with knowledge that he was probably violating his trust; hence, a bank making such a purchase with knowledge that the bonds were held in trust will be held liable for the loss resulting from conversion of the proceeds, notwithstanding it paid full value for the bonds and was in no way in collusion with the trustee in his breach of trust.</p> <p>4. Payment of Surety of Trustee for Conversion of Bonds no Abatement of Action Against Bank Purchasing Bonds.</p> <p>The successor in the trust having brought an action against the bank for the loss thus sustained, payment of the loss by the surety during the pendency of the suit does not abate the action but it continues in favor of the surety by subrogation, and the substitution of the surety as the party plaintiff when made relates back to the commencement of the action, which in the present case saves the claim of the surety from the bar of the statute.</p>

<p>APPEAL — PAYMMENT</p> <p>Surety on Bond for Appeal not Perfected Paying Judgment, Mere ■ Volunteer.</p> <p>When the surety upon an appeal bond in a case wherein no appeal was ever perfected, pays the amount of the judgment and costs in the justice court, he is a mere volunteer and can not recover the amount so paid from his principal who failed to perfect the appeal.</p>

<p>SPECIFIC PERFORMANCE</p> <p>1. Specific Performance not Decreed when Inequitable.</p> <p>The equitable remedy of specific performance of contracts even when they are valid and binding at law is not a matter of course, and is so completely governed by equitable considerations that it is never granted unless it is entirely in accordance with equity and good conscience.</p> <p>2. Parol Evidence of Mistake in Defense to Action for Specific Performance.</p> <p>In actions for specific performance of written agreements, the defendant may show by parol evidence that, through the mistakes of both or either of the parties the writing does not express the real agreement, or that the agreement itself was entered into through a mistake as to its subject-matter or as to its terms.</p>

<p>ASSIGNMENTS</p> <p>Priorities of Assignments Determined by Notice and Acceptance.</p> <p>An assignment of a fund, of which the debtor has notice and which he accepts and agrees to pay to the assignee, has preference as against an earlier assignment of which the debtor had no notice.</p>

<p>DIVORCE AND ALIMONY</p> <p>Alimony Pendente Lite in Discretion of Court.</p> <p>An award of alimony pendente lite is in the discretion of the court wherein the action is pending, and when there has been no abuse of discretion no appeal lies to the higher courts.</p>

<p>MERCHANICS’ LIENS</p> <p>Material-Man may Rely on Ostensible Price to be Paid Contractor,</p> <p>When a material-man who has furnished material to a contractor, relying upon the ostensible price the contractor is to receive, has perfected his lien under Sec. 3201 R. S. (Sec. 8332 G. C.), he is entitled to payment as against the grantee of the original owner, who upon default of the contractor, has furnished money necessary to complete the buildings to an amount in excess of the actual price but less than the ostensible price the contractor was to receive.</p>

<p>ATTACHMENT AND GARNISHMENT — COURTS</p> <p>1. Personal Service Effected, Property Taken or Found In Hands of Creditor, Essential to J. P. Jurisdiction in Attachment,</p> <p>To confer jurisdiction on a justice of the peace in an attachment case it must appear, either that personal service was had upon the defendant, or that property of the-defendant has been taken in attachment, or found in the hands of a garnishee, or that a garnishee is indebted to the defendant.</p> <p>2. Jurisdiction, of Person or Property must' Appear of Record, no Presumption of J. P. Jurisdiction.</p> <p>There is no presumption favoring the correctness of a judgment of a justice of the peace, and to support a judgment of his court it must affirmatively, appear by the record that it had obtained jurisdiction over the person or property of the defendant.</p>

<p>CORPORATIONS</p> <p>1. Action of Stockholder to Restrain Action of Other Stockholders not Maintainable.</p> <p>A minority stockholder can not maintain an action to restrain the other stockholders from exchanging their stock in the corporation for stock in another corporation when the action so complained of is the action of individuals and not of the corporation.</p> <p>2. Exchange of Stock in Violation of Statute not Ground to Enjoin Transfer.</p> <p>The fact that the exchange of stock by stockholders in one cor- ■ poration for stock in another may- result in- a violation: of-the state anti-trust law to which the state might object, gives a dissenting stockholder no right to enjoin such exchange.</p>

<p>EXECUTORS AND ADMINISTRATORS</p> <p>Heir as Administrator Securing Low Appraisal to Evade Taxes Estopped to Complain of Widow’s Election to Take Property.</p> <p>When one who was both administrator and heir has instructed the appraisers to return a low appraisal of the property of the estate in order to minimize taxes thereon, he can not later, after the widow has elected to take a large portion of the property at its appraised value, ask for a reappraisal.</p>

<p>RAILROADS</p> <p>Failure of Electric Gong to Work at Railway Crossing Raises no Presumption of Negligence.</p> <p>The mere fact that an electric gong at a railroad crossing fails to ring raises no presumption of negligence on the part of the railroad company.</p>

<p>CRIMINAL LAW — INTOXICATING LIQUORS</p> <p>1. Burden of Proof in Criminal Prosecutions on State,</p> <p>Upon the trial of criminal causes the law presumes the party charged with crime to be innocent, and the burden is on the prosecutor, unless a different rule has been provided by statute.</p> <p>2. Burden of Proof in Liquor Prosecutions Changed by Statute.</p> <p>Where the legislature has provided, as in Sec. 4364-20y R. S. (Sec. 6102 G. C.), that the keeping of intoxicating liquors in dry territory in any place except a drug store or private residence shall be prima facie evidence that such liquors are kept for unlawful sale, furnishing or giving away, the burden of proof is changed and a conviction will be sustained upon evidence of this fact alone.</p>

<p>CONTRACTS — JUDGMENTS—PARTIES</p> <p>1. Judgment Rendered against One or More Defendants Sued on Joint Contract.</p> <p>When two or more are sued upon an alleged joint contract, judgment may be rendered against one or more of the several defendants.</p> <p>2. Judgment against Answering Defendant when Two or More Sued, Erroneous.</p> <p>When two are sued jointly and one is in default for answer, as between the two defendants it is error to render, judgment against the answering defendant alone.</p>

<p>ATTACHMENT AND GARNISHMENT</p> <p>One Creditor may Garnishee Ten Per Cent. Notwithstanding Debtor Paying Statutory Amount to Another.</p> <p>A voluntary payment by a debtor of ten per cent, of his monthly earnings to one creditor for necessaries is no bar to a garnishment of ten per cent, by another creditor, under the provisions of Sec. 6501 R. S. (Sec. 10269 G. C. et seq.)</p>

<p>FRAUDS, STATUTE OF</p> <p>Modification of Land Contracts not Subject to Statute of Frauds.</p> <p>When a contract for the sale of land has. been properly executed in writing, subsequent agreements between the vendor and vendee, as to the pecuniary liabilities growing out of the transaction, which do not take away or confer any interest in the land, but only determine the time when the purchase money becomes due, are not affected by the statute of frauds.</p>

<p>INTOXICATING LIQUORS</p> <p>N,o Recovery for Injury to Third Person if Sale of Intoxicants was Lawful.</p> <p>No recovery can be had under Secs. 4357 and 4358 R. S. (Secs. 6203 to 6205 G. C.), from one who has sold liquor to another who injured plaintiff while intoxicated, unless the sale of liquor was unlawful.</p>

<p>ACCOUNTS — EVIDENCE</p> <p>Proof of Account by Means of Sale Slips Carrying Balance.</p> <p>Slips upon which all sales are written with the balance carried ' forward from one slip to another are admissible in evidence as original entries when no other books are kept, but a balance upon a slip obtained from a prior slip since destroyed is not admissible.</p>

<p>ACTIONS — DEATH—RES ADJUDICATA</p> <p>Action for Wrongful Death Barred by Action for Personal Injuries by Decedent.</p> <p>When an action for personal injuries had been begun by a decedent and prosecuted to judgment by his administrator after his death, it is a bar to another action by the administrator for wrongful death of decedent resulting from the same injuries as those upon which the previous suit was predicated.</p>

<p>NEGLIGENCE — WITNESSES</p> <p>1. Witness must Qualify as Expert before Giving Opinion Evidence.</p> <p>It is error to. permit a witness who has. not qualified as an expert to express an opinion as to whether or not a certain appliance • is dangerous.</p> <p>2. Mode of Using Highway Competent in Defense for Personal Injuries.</p> <p>When an action is for personal injuries to plaintiff while upon a highway' caused by defendant’s alleged negligence, it is competent for the jury to consider the defendant’s mode of using the highway.</p> <p>3. Duty to Employ Reasonably Competent Men and Safe Appliances.</p> <p>It is error to charge that it is defendant’s, duty to employ reasonably competent men and reasonably safe appliances when there is no allegation in the petition as to the incompetence of defendant’s employes, other than the allegation that they were negligent on this occasion.</p> <p>4. Contributory Negligence not Burden of Defendant not Raising Issue.</p> <p>It is error to charge that the burden of proving contributory negligence is upon the defendant, when that issue is not.:raised ■ by the pleadings and an averment in the answer that the injury . was caused by plaintiff’s ■ negligence is not an averment of contributory negligence.</p>

<p>TRIAL</p> <p>Jury May Amend Verdict upon Direction of Court.</p> <p>When a jury has attempted to return a verdict in which they have included improper items of damage they may, upon the direction of the court, amend their verdict.</p>

<p>LIBEL AND SLANDER</p> <p>Corporation can not Recover Damages for Libel When Sole Injury Is In Sale of Stock.</p> <p>A corporation can not maintain an action for a libel where the sole damage shown is the hindrance of subscriptions to its capital stock, even though that may result in its being unable to carry out the objects for which it was organized.</p>

<p>WILLS</p> <p>No Action for Destruction of Will.</p> <p>Beneficiaries under a will can not maintain an action for its wrongful destruction during the testator’s lifetime.</p>

<p>RECEIVERS</p> <p>Rent of Property Occupied by a Receiver not a Preferred Claim.</p> <p>There is no preference in favor of the landlord of premises upon which a receiver is conducting the business for which he is receiver as against creditors of the receiver who have sold materials to him to be used in continuing the' business under the court’s order.</p>

<p>APPEAL — ATTACHMENT AND GARNISHMENT</p> <p>Creditor may Subject Appeal Bond of Garnishee by interpleader.</p> <p>One who has garnished a judgment debtor in an action which has been appealed from a justice court, may, upon the bankruptcy of the garnishee, intervene in that case and by filing a cross-petition subject the appeal bond to the payment of his claim.</p>

<p>CRIMINAL LAW — LARCENY</p> <p>1. Prosecutor's Prejudicial Remark before Trial in Hearing of Certain Jurors.</p> <p>A prejudicial remark of the prosecuting attorney made before the trial in the presence of certain jurors, furnishes no ground for excusing all the jurors.</p> <p>2. Value of Substituted Article not Considered to Reduce Grade of Offense.</p> <p>In a larceny case the value of a substituted article left in the place of the one stolen can not be considered to reduce the offense from grant to petit larceny.</p>

<p>REFORMATION OF WRITTEN INSTRUMENTS</p> <p>Evidence must be Clear and Convincing to Reform Contract.</p> <p>To entitle plaintiff to the reformation of a written contract the evidence of fraud or mistake must be clear and convincing.</p>

<p>EVIDENCE — NEGLIGENCE</p> <p>1. Evidence of Particular Ailment Admissible Under General Averment of Permanent Injuries.</p> <p>Evidence that plaintiff had become afflicted with neurasthenia and curvature of the spine as a result of injuries is admissible under an allegation that she “was greatly and permanently injured, in that her head was cut open and she was made sick, sore and lame.”</p> <p>2. Averment of Simulation of Injuries Imposes no Burden to Prove Malingering.</p> <p>The burden is upon the plaintiff in a personal injury suit to show the reality as well as the cause and nature of the injuries of which she complains, and in a case in which it is claimed that she has simulated injuries it is error for the court to charge that the burden is upon the defendant to prove malingering upon the part of the plaintiff.</p>

<p>CHARGE TO JURY — EVIDENCE—NEGLIGENCE</p> <p>1. Charge to Jury Should State Law by Spoken Word.</p> <p>In charging a Jury the law should be stated by the spoken word of the Judge himself, and not by reference to any paper which may have been filed in the case.</p> <p>2. Physician Treating Plaintiff may Testify that Accident Caused Injuries Described.</p> <p>It is competent for the physician who treated the plaintiff for the injuries complained of and who saw the marks on her body to testify that the accident of which she' told him and the marks of which he had seen on her person caused the condition which he had described.</p>

<p>ERR OR — TRIAL</p> <p>General Verdict for Plaintiff not Vitiated by Error in Charge as to One Branch of Case.</p> <p>When a jury has returned a general verdict in favor of the plaintiff and there was an erroneous charge as to one branch of her claim, but no error as to another branch of the case which of itself would entitle her to recover the judgment which she obtained, the judgment will not be disturbed.</p>

<p>PAYMENTS</p> <p>Creditor Bound by His Bookkeeper's Application of Payments.</p> <p>When a creditor through his bookkeeper has made a certain application ofi payments received from his debtor, he will not be ■permitted later to make an application different from that indicated upon his books.</p>

<p>COMPENSATION AND SALARIES — PHYSICIANS AND SURGEONS</p> <p>Physician Has no Right to Compensation for Performing Autopsy.</p> <p>Section 1305 R. S. (Sec. 2495 G. C.), creates no liability on the part of the county in favor of a physician or surgeon who has made a post mortem examination at the instance of the coroner if the county commissioners refuse to allow him compensation.</p>

<p>BILLS OF EXCEPTIONS — CONTRACTS—NEW TRIAL</p> <p>1. Motion for New Trial Filed Three Day» from Entry of Judgment on Journal.</p> <p>A motion for a new trial is in time if filed within three days from the entry on the journal of the judgment of the court. Oineinnati v. Kilgour, 33 O. C. C. 415 (13 N. S. 415), modified.</p> <p>2. Bill of Exceptions Relates Back to Real Date of Filing as Corrected by Court.</p> <p>Under the power given to courts to correct mistakes in furtherance of justice or to supply omissions in hills of exceptions, a trial court has authority to correct a mistake in the number which has been given a bill of exceptions and to make a notation of the real date of the filing thereof, and when such a correction is made it relates back to the real date of the filing.</p> <p>3. Contractor Writing Proposition on Proposal Sheet not in Printed Form, Held Defect Waivable.</p> <p>The fact that a bidder for the construction of a public building wrote one proposition on the proposal sheet, which he did not find in the printed form, is a defect which the building commission has power to waive, and when its waiver has the effect of saving money for the people it will not be condemned by the courts.</p> <p>4. Separate Trades Placed on Same Footing as Entire Job Bidders.</p> <p>The purpose of Secs. 2363 and 2364 G. 0. is to extend the opportunities for competition by giving separate trades an opportunity to bid separately for their separate branches and receive the same consideration as those who bid for the entire work, and these sections permit a bidder for a part of the work to make his bid cover more than one kind of work or materials, even to the extent of bidding for all branches of the work except one.</p>

<p>MANDAMUS</p> <p>1. Ordinance Regulating Street Assemblies, Construed in Reasonable Manner.</p> <p>An ordinance pertaining to street processions and assembly in the streets must be regarded as merely regulatory, its chief purpose being to advise the city authorities when, where, and in what manner it is proposed to assemble or parade; and the action of the authorities in granting or refusing permits for such use of the streets must be reasonable, and not arbitrary or governed by whim or caprice.</p> <p>2. Mandamus to Compel Permit for Use of Streets for Public Assembly.</p> <p>When, in an action for a writ of mandamus to compel the mayor of a city to grant a permit for public meetings on the streets, evidence is adduced sustaining the allegations of the petition that the action of the mayor in refusing the permit was not based upon an exercise of discretion but was arbitrary, whimsical and actuated by bias and prejudice toward the relator or the cause advocated by him; and when the evidence furnishes no basis for fear of disturbance, or public inconvenience from the holding of such meetings and shows that permits for like meetings are freely and frequently granted to other persons and organizations, such evidence, uncontradicted, furnishes ground for the issuance of the writ.</p> <p>3. Absence of Respondent in Mandamus Construed as Admission of Truth of Grounds Alleged in Petition.</p> <p>It is always incumbent upon respondent in a mandamus action to appear in obedience to the command of the court and to show cause why a peremptory writ should not issue. And, when he fails to appear, without explanation or reason for his absence given, such absence on his part lends added proof that the complaint of relator is true and that no reasonable ground exists for denying to relator the desired permit.</p>

<p>APPEALS</p> <p>1. Action for Reconveyance and Judgment for Value of Property not Reconveyed not Appealable.</p> <p>When an action was brought against several parties ashing reconveyance of property as to certain parties and a judgment for the value of the property as against others in case reconveyance could not be decreed, and the parties against whom reconveyance is asked are dismissed from the case before its submission to the court. Held: That what remained was an action for money only and not appealable.</p> <p>2. Designation of Action as One for Accounting does not make it Appealable.</p> <p>The fact that an action is designated an action for accounting and equitable relief will not make it appealable, when it is in effect an action for money only.</p>

<p>HUSBAND AND WIFE</p> <p>1. Husband not Liable for Goods Purchased by Wife on His Credit from Stranger.</p> <p>A husband who suitably supplies his wife with necessaries, or with the money to purchase them, will not be held liable, on the ■ basis of a presumption of authority or of an implied agency, for goods purchased by her on his credit, without his knowledge or consent, of one with whom he had no. previous dealings, though the goods be of the quality of necessaries.</p> <p>2. Tradesman Supplies Goods to Wife at Peril.</p> <p>A tradesman supplies goods to the wife at his peril when the husband is guilty of no neglect of duty in the premises, and when, consequently, there can be no necessity for her purchasing on his credit.</p>

<p>PLEADING</p> <p>Several Cross>-Petltions may not be Filed when Relief Sought is Substantially Same.</p> <p>Several cross-petitions may not he filed under favor of Sec. 5008 R. S. (Sec. 1125 G. C.), when the only relief demanded therein different from that demanded by the plaintiff in the original petition is a demand for the respective shares of the petitioners in a fund impounded and in course of distribution under order of court.</p>

<p>WILLS</p> <p>1. Effect of Ascendency of Wife on Legality of Husband’s Will in Her Favor.</p> <p>The fact that a wife guides or even dominates her husband in the ordinary affairs of life, or has acquired an ascendency over him, does not render his will made in her favor invalid.</p> <p>2. Insufficient Evidence to Establish Existence of Spoliated or Lost Will.</p> <p>Offers to show that testator, before his death, spoke of having revoked one will and made a new will, that witnesses had seen a paper writing, signed by testator and witnesses, are not sufficient, if proven, to establish the existence of a will revoking the will probated especially, if the witnesses fail to recall any testamentary phrases.</p>

<p>DEEDS — DESCENT AND DISTRIBUTION</p> <p>1. Property Conveyed by Husband to Trustee and by Trustee to Wife Not Ancestral.</p> <p>When a husband conveys real estate to a trustee to hold for the benefit of the wife of the grantor and the trustee upon the same date and for a nominal consideration conveys the property to the wife without describing himself as trustee, the property so conveyed to the wife is acquired by her by purchase and not by deed of gift.</p> <p>2. Deed by Insane Person Voidable.</p> <p>A deed of conveyance made by a person of unsound mind is voidable only and not void.</p> <p>3. Conveyance by Deceased Insane Person may be Ratified by Husband as Heir.</p> <p>When the husband who is the only heir of a deceased insane wife, places on record a deed of conveyance from her to him he thereby ratifies such conveyance.</p>

<p>DAMAGES — INFANTS—PLEADING—TRIAL</p> <p>1. Defects in Title and Verification of Petition Waived by Answer.</p> <p>When defendant files an answer she thereby waives any formal defects in the petition such as failure to use her Christian name in the caption or the proper verification of the petition.</p> <p>2. Objection to Introduction of Any Evidence for Insufficiency of Petition.</p> <p>Objection to the introduction of any evidence on the ground that the petition does not state a cause of action does not operate as an objection to evidence in support of an allegation in the petition which might have been eliminated from the petition by motion.</p> <p>3. Statutes Authorizing Suits for Infants by Next Friend, Constitutional.</p> <p>Sections 4998 R. S. et seq. (Secs. 7477 G. C. et seq.), providing that actions may be brought on behalf of án infant by its next friend are constitutional even though such next friend has not been designated or appointed by the infant or the court and is not responsible financially.</p> <p>4. Damages in Suit by Next Friend for Injury to Infant.</p> <p>Damages which may be recovered on behalf of an infant in an action by its next friend may not include' care and medical attendance or other items for which the parent is responsible.</p> <p>5. When Damages Erroneously Allowed not Cured by Remittitur.</p> <p>When the court has erroneously permitted the jury to include certain items of damages in their verdict the error is not cured by a remittitur when there is nothing to show that the amount remitted was the amount which the jury may have awarded because of those items.</p>

<p>CORPORATIONS</p> <p>1. Dissolution of Corporation for Failure to Discharge Charter' Object.</p> <p>To justify the dissolution of a) corporation on the ground that it has never discharged its charter objects, a plain violation of its charter must be proven.</p> <p>2. Failure to Make Pecuniary Profits not Deviation of Charter Object.</p> <p>The fact that a corporation organized under Sec. 3262 R. S. (Sec. 8698 G. C.), as a corporation for profit, has never been so managed as to attempt to make a pecuniary profit for its stockholders, may not in itself be a deviation from its corporate object.</p> <p>3. Corporation Organized for Recreation Owning Building and Renting Part not Real Estate Corporation.</p> <p>A corporation organized for “musical, artistic and gymnastic purposes” which owns a building where societies meet for those purposes, but part of which is rented, does not because of such ownership become a real estate corporation.</p>

<p>EXECUTORS AND ADMINISTRATORS — -TAXATION</p> <p>Surety Bond Given to Secure Payment of Bequests Not Taxable.</p> <p>When a testator makes a bequest payable in monthly installments and the executors of his will in order to settle up his estate set aside certain real estate from the rentals of which the monthly installments are to be paid and execute a bond which is deposited with the probate court securing the payment of the bequest, such bond is not subject to taxation.</p>

<p>BILLS OF EXCEPTIONS</p> <p>Bills of Exceptions Must Show Trial Judge Settled, or Allowed it.</p> <p>When the trial judge signs a certificate that a hill of exceptions has been prepared, submitted to the attorney for the appellee and to the court for signature within the required time, but nowhere says that he has allowed it or settled it, there is no hill of exceptions which a reviewing court can consider.</p>

<p>CORPORATIONS</p> <p>False Representation of President of Corporation as to Performance of Duties by Employes will Invalidate Fidelity Bond.</p> <p>When a fidelity bond states that it is a condition that the obligee’s business shall continue to be conducted and the duties and remuneration of the employes remain in accordance with the statements in the application, and the bond of the secretary of a corporation is renewed upon the certificate of the president that each of the employes named in an accompanying list had faithfully and satisfactorily performed his duties and promptly and correctly rendered his accounts during the year preceding, when as a matter of fact all the other officers had delegated their duties to the secretary, thus enabling him to conduct the business of the company in violation of law and the by-laws of the company, and cover up his defalcations, such renewal bond is secured upon false representations and is invalid.</p>

<p>MECHANICS’ LIENS</p> <p>Mechanic’s Lien upon Several Distinct Houses and Lots can not be Foreclosed upon One Parcel Only.</p> <p>When liens have been filed upon several distinct lots and the buildings upon them, for labor performed and materials furnished for all of them, but not under one general contract concerning those buildings only, the liens can not under favor of Sec. 3184 R. S. (Sec. 8308 G. C.), be foreclosed as against one lot only.</p>

<p>GIFTS</p> <p>Intention of Donor to Make Gift a Necessary Element.</p> <p>Proving the delivery of a fund which was reduced to possession, without proving an intention to make a gift, does not establish a gift.</p>

<p>GAMING AND GAMBLING</p> <p>1. Landlord of Premises Used for Gambling Proper Defendant in Action for Money Lost.</p> <p>In an action for money lost at gambling the landlord who owned the building is a proper party defendant with his tenants who operated the place where the gambling was carried on.</p> <p>2. Landlord Seeing Men Play for Lunches and Drinks Liable for Money Lost at Gambling.</p> <p>Admissions of landlord that he had seen men playing for lunches and drinks in the premises, and that he had not thereafter either served notice upon the tenants to vacate or sued them, is sufficient to sustain a judgment against him for money lost at gambling.</p>

<p>APPEAL — ASSIGNMENTS FOR CREDITS — PLEADING</p> <p>1. Pleading on Appeal from J. P. Asking More than Jurisdictional Amount Stricken from Files.</p> <p>In an action appealed from a justice of the peace, a cross-petition which asks for an amount in excess of the amount of which the justice would have had jurisdiction, should be stricken from the files.</p> <p>2. Assignment of Plaintiff during Pendency of Suit not Defense.</p> <p>An assignment by plaintiff for the benefit of creditors during the pendency of a suit is not a matter of defense and application of defendant for leave to file a supplemental answer setting up that fact is properly refused.</p>

<p>MECHANICS’ LIENS</p> <p>. Time for Filing Mechanic’s Liens can not be Extended by Custom of Trade as to Making Repairs.</p> <p>When the roof on a building has been substantially completed and the property sold, the purchaser making what repairs were necessary at that time, the contractor can not by making repairs to the roof ten months later, during the owner’s absence and without his consent, extend the time for filing his mechanic’s lien; and no custom of the trade by which slate-roofers repair roofs after all other workmen have finished with the building will operate to give validity to a lien filed more than ten months after such substantial completion.</p>

<p>NEGLIGENCE — VEHICLES</p> <p>Violation of Revised Statutes and Traffic Ordinance by Negligent Driving Make Case for Jury.</p> <p>When the defendant was driving upon the wrong side of the street in violation of See. 3490 R. S. (See Sec. 6310 G. C.), and at a speed of ten or twelve miles an hour in violation of the city ordinances, and plaintiff’s intestate, a child of seven, after dodging from behind other vehicles going in the right direction, was knocked down by the front legs of defendant’s horses and killed by being run over by defendant’s wagon the question of whether or not defendant’s negligence in driving so fast that he could not stop in time to avoid running over the child was the proximate cause of its death is a question for the jury.</p>

<p>ADJOINING LANDOWNERS</p> <p>1. Lateral Support Sufficient to Maintain Building on Adjoining Lot.</p> <p>A deed of general warranty does not carry with, it by way of easement a right of lateral support sufficient to maintain the building on the lot so conveyed.</p> <p>2. Failure to Give Notice of Intention to Excavate on Adjoining Lot.</p> <p>But when the owner of an adjoining lot excavates upon it without giving notice of his intention so to do as required by Secs. 3782, 3783 G. C., he becomes liable under the common law for damages resulting to the land itself.</p>

<p>HUSBAND AND WIFE</p> <p>Wife after Death of Husband may Maintain Action for Breach of Ante-nuptial Contract.</p> <p>When a husband had by an antenuptial contract, agreed to set aside a certain sum to be paid to his wife, or in the event he should not have the money then, to set aside lands of eaual value, and died intestate without having set aside either money or lands and with insufficient personal property to pay the amount, the wife, having fully performed, may maintain an action against the administrator of her husband’s estate for breach of contract.</p>

<p>INFANTS — NEGLIGENCE</p> <p>Boy of Sixteen Guilty of Contributory Negligence in Striking Torpedo.</p> <p>An intelligent boy of sixteen who has been employed in railroad shops for a period of six weeks, and who, in the course of his employment finds a torpedo upon the floor of an engine cab, which, through curiosity he struck with a coal pick, is, as a matter of law, guilty of contributory negligence.</p>

<p>CORPORATIONS — FRAUD—PARTIES</p> <p>1. When Transaction is Joint Plaintiffs are Properly Joined.</p> <p>When a fair construction of the language of a petition shows that what plaintiffs did in the transaction complained of was done by them jointly, there is no misjoinder of parties plaintiff.</p> <p>2. False Representations that Worthless Stock Sold Plaintiff is Treasury Stock not Actionable.</p> <p>No action for damages for inducing plaintiff to purchase worthless stock through false and fraudulent representations can be maintained, when the only false representation was that the stock in question was treasury stock when as a matter of fact it was defendant’s own personal stock.</p>

<p>PARENT AND CHILD</p> <p>No Recovery can be Had from One in Loco Parentis for Services Performed by Child after Becoming of Full Age.</p> <p>When a child from an orphanage is taken into a home upon an agreement that she is to receive a good common school education, be cared for, and treated as a daughter: If, after she becomes of full age, she continues to reside in the family and perform the same household duties as before, without any agreement as to compensation, it will be presumed that it was a continuance of the earlier relationship and she can not recover for the value of such services.</p>

<p>WITNESSES</p> <p>1. Qualification of Witness as Expert Based on Whole Testimony.</p> <p>Although the preliminary examination of a witness may not qualify him as an expert, all of his testimony in chief together with the facts brought out on cross-examination may have that effect.</p> <p>2. Exclusion of Hypothetical question Answerable in but One Way not Erroneous.</p> <p>When a hypothetical question is so framed that it could only be answered in one way and the jury without any assistance from an expert would know that it must be answered in that way its exclusion is not prejudicial error.</p> <p>3. Hypothetical Questions as to Testator's Mentality Asked only of Expert.</p> <p>Hypothetical questions as to a testator’s mental condition can not be ashed a witness who is not an expert, even upon cross-examination.</p>

<p>LANDLORD AND TENANT</p> <p>Landlord Liable to Tenant for Injury Caused by Explosives of Another Tenant in Adjoining Building.</p> <p>When a landlord knows, or ought to have known, that a tenant is engaged in the manufactúre of dangerous explosives, and rents adjoining premises to plaintiff as a residence, representing the business carried on in the adjoining building as of a harmless character and of a totally different nature from that which he knows it to be, he is liable for damages to plaintiff caused by an explosion in the adjoining premises.</p>

<p>HUSBAND AND WIFE — MORTGAGES</p> <p>1. Doctrine of Subrogation Applies when Wife Pays Debts of Husband to Protect Her Own Rights.</p> <p>When a wife who is a joint owner with her husband of property and has with him executed a joint note and mortgage upon the property, pays the note and mortgage to protect her interest in the property, she is thereby subrogated to the rights of the mortgagee.</p> <p>2. How Homestead Rights in Property Owned Jointly by Husband and Wife Determined.</p> <p>When a husband is the owner of a three-eighths interest and his wife the owner of a five-eighths interest in property from which it is impossible to set off a homestead by metes and bounds, the rights of the parties must be worked out under Sec. 5439 R. S. (Sec. 11735 G. C. et seq.), the rental value of the property appraised, and if it exceeds $100 per annum, then three-eighths of the excess above that sum will be subject to the demands of the husband’s creditors.</p>

<p>EXECUTORS AND ADMINISTRATORS</p> <p>Exceptions may be Taken to Appraisement.</p> <p>An appraisal when one is made, is an essential part of an inventory filed by an executor or administrator, and under the provisions of Sec. 6024 R. S. (Sec. 10639 G. C. et seq.), exceptions may be taken to that, as well as to any other part of the inventory.</p>

<p>FRAUDS, STATUTE OF</p> <p>1. Contracts not to be Performed within One Year Include Agreements that do not Admit of Performance Therein.</p> <p>Contracts “not to be performed within one year,” only include agreements which by a fair and reasonable interpretation of the terms used by the parties and in view of all the circumstances existing at the time do not admit of performance according to the language and intention within a year from the time of the making.</p> <p>2. Promissor Handing Promisee Money for First Year of Service</p> <p>Promising to Pay Like Amount for Next Year not in Statute.</p> <p>When the promissor agrees to furnish money to pay the salary of a person for a period of two years and thereupon hands the promisee- an amount sufficient to pay the first year’s salary accompanied with a statement that she will pay a like amount “next year,” such promise is not within the statute of frauds.</p>