Volume 34 — Ohio Circuit Court Decisions

<p>CORPORATIONS</p> <p>1. Enforcement of Liability of Stockholders in Foreign Corporation.</p> <p>Ohio courts have jurisdiction in an action brought against resident stockholders to'enforce stockholders’ statutory liability in a foreign corporation.</p> <p>2. Court will not Determine Solvency of Nonresident Stockholders.</p> <p>A court can not pass upon the solvency of stockholders who are not before it, and the amount stockholders in court will be required to pay will be based upon the assumption that all stockholders are solvent.</p> <p>3. Creditors Bound by Terms of Certificate Taken in Settlement.</p> <p>Creditors of an insolvent bank who, in order to allow it to resume business, agree to accept certificates of deposit calling for interest, but accept certificates which do not provide for interest, are bound by the terms of the certificates accepted.</p>

<p>CHARGE TO JURY — CONTRACTS—TRIAL</p> <p>1. Right of Parties to Instructions before Argument.</p> <p>Either party has the right to have instructions given to the jury before argument, provided they are proper under the law applicable to the case, and giving substantially the instructions asked for after argument does not cure the error of refusing them before argument.</p> <p>2. Necessary Evidence to- Prove Waiver of Condition of Building Contract Relative to Extras.</p> <p>When a condition in a building contract provides that the owner shall not be liable for extras or for work not provided for in the contract unless the changes in the plans are indorsed upon the back of the contract, the plaintiff can not recover for such extras or for labor outside of the contract, without proving by clear and convincing evidence that the owner waived the condition.</p> <p>3. Interpretation of Written Contract is for Court.</p> <p>Interpretation of a written contract is for the court, and when an issue is made as to whether or not certain items are provided for in a written building contract or a certain notice required, it was error for the court to instruct the jury to determine those facts from an inspection of the contract.</p>

<p>NEW TRIAL</p> <p>New Trial Granted when Verdict of Jury Inconsistent.</p> <p>When in an action upon a building contract plaintiff asks judgment for money spent in completing a building after defendant had abandoned his contract, and defendant in a cross-petition asks for judgment for money spent by him under a contract which he alleges was made but which was entirely different from that alleged by the plaintiff to have been made between the parties, the jury having returned a verdict in favor of plaintiff for an amount in excess of that claimed by him, and for the defendant for the amount he claimed, the verdicts of the jury are so inconsistent as to indicate that they did not comprehend the issues and a new trial will be granted.</p>

<p>BILLS AND NOTES — CONTRACTS</p> <p>Evidence not Received to Show Parol Collateral Contract to Action on Promissory Note Based on Written Contract.</p> <p>When a settlement of claims for rent and other matters growing out of the terms of a lease, containing a provision for the removal by the lessee of buildings and machinery especially adapted for the manufacture of mineral wool by a patented process owned by the lessee, was made by the lessee giving the lessor a promissory note and a conveyance of said buildings and machinery and the terms and conditions of said settlement were evidenced by a contract in writing; in an action on the note between the original parties evidence will not be received that at the time said written contract was enterd into, a parol agreement was made between' the parties that the lessor should not use said buildings and machinery for the manufacture of mineral wool by said patented process.</p>

<p>MUNICIPAL CORPORATIONS</p> <p>1. Removal of Ashes by Municipality is Government Function.</p> <p>The removal of ashes by a municipality from business houses and the residences of private citizens is an exercise of a governmental function, and not of a private or proprietary duty.</p> <p>2. Municipal Ash Cart Employe cannot Recover for Injuries Resulting from Insufficient Help.</p> <p>But were a contrary holding to be made, no cause of action would arise in the case of one employed on an ash cart and with experience in that class of work, who complains that he injured himself lifting receptacles containing ashes because not enough help was provided for the work.</p>

<p>ERROR — PARTIES—PLEADING</p> <p>1. Misjoinder Waived by not demurring Specially or Pleading It.</p> <p>When a defendant files a general demurrer which is overruled, but does not demur on the special ground of misjoinder of parties defendant and files an answer which does not raise the question of misjoinder, it is thereby waived.</p> <p>2. Joint Judgment against Several Defendants cannot be Affirmed as to Part and Reversed as to Others.</p> <p>When a joint judgment was obtained against several defendants who were improperly joined, and upon proceedings in error in a higher court it is determined that the judgment was improper as to one of them, it can not be affirmed as to one and reversed as to another but must be reversed as an entirety.</p> <p>3. Petition in Error not Dismissed for Misjoinder of Plaintiffs in Error.</p> <p>A motion to dismiss a petition in error on the ground of misjoinder of parties plaintiff in error will be overruled when, had separate petitions in error been filed, a reversal as to one plaintiff in error would set aside the judgment as to all the plaintiffs in error.</p> <p>4. Exceptions to Refusal to Grant Non-Suit Waived by Introducing Evidence.</p> <p>When a defendant, at the close of plaintiff’s evidence, moves to dismiss the complaint, and the motion being denied excepts to' the ruling and then proceeds with the case and puts in evidence on his part, he thereby waives the exception.</p>

<p>CONTRACTS</p> <p>When Buyer Is Sole Judge as to Whether Thing Bought is “Satisfactory.”</p> <p>When it is agreed that the subject-matter of a, contract shall be “satisfactory” to the purchaser, if the subject-matter of the contract is such that the satisfaction stipulated for must be held to apply to quality, workmanship, salability and other like considerations, rather than to personal satisfaction, as in the painting of a portrait, an agreement that it shall be satisfactory means that it shall be reasonably satisfactory; but if the subject of the contract, such as one to paint a pastel portrait, involves personal taste or feeling, an agreement that it be satisfactory to the buyer necessarily makes him the sole judge whether it answers that condition.</p>

<p>LIMITATIONS</p> <p>1. Statute of Limitations in Force when Action Accrues Prevails.</p> <p>The statute of limitations which is in force at the date when the cause of action accrues must be applied.</p> <p>2. Cause of Action does not Accrue until Right has Matured.</p> <p>A cause of action does not accrue until the claim or right upon which it is founded has matured, so that an action can be brought upon it.</p> <p>3. Effect of Change in Statute in Barring Action Against Administrators.</p> <p>Where an action is based upon the promise of a decedent, that plaintiff should be paid for services from his (decedent’s) estate, the action is barred by the lapse of more than two years between the qualification of the administratrix and bringing of the action even though the statute of limitation at the time the promise was made was four years.</p>

<p>JUDGMENTS — MORTGAGES</p> <p>1. Court in Foreclosure Proceedings may Render Personal Judgment against One Assuming Payment of Mortgage.</p> <p>In an equitable action for the foreclosure of a mortgage, when the court has secured jurisdiction of the person of one who has assumed the payment of the mortgage by'means of process duly served in another county, it may give equitable relief by enforcing the payment of the obligation by means of a personal judgment.</p> <p>2. Fraud which Would be Defense to Original Action, not Ground for Setting Aside Judgment.</p> <p>Fraud in the instrument or transaction upon which a judgment at law is founded, does not furnish sufficient ground for an action to set aside the judgment, as the fraud constitutes a good defense to the action at law and must be set up at that time.</p> <p>3. Representation that Plaintiff would Forward Copy of Petition not Ground to Set Aside Judgment.</p> <p>A representation on the part of a plaintiff that it will forward a copy of its petition to a defendant, is not ground for setting a judgment against that defendant aside when he was properly served with summons.</p>

<p>COMPENSATION TO COUNTY AUDITOR</p> <p>1. County Auditor Entitled to Four Per Cent, on Omitted Tax Collected though Tax inquisitor Employed.</p> <p>The county auditor is entitled to four per cent, of the tax collected and paid into the county treasury on property omitted and placed by him upon the duplicate, even though a tax inquisitor has been employed to aid him and furnish him with evidence in the performance of his duty and is paid a percentage by the county.</p> <p>2. County Auditor Entitled to Fees for Indexing Commissioners Records.</p> <p>The county auditor is entitled to such fees for indexing the records of county commissioners, as other officers receive for like services.</p> <p>3. County Auditor Entitled to Compensation for Assessor’s Blanks.</p> <p>The county auditor is entitled to compensation for preparing and supplying to assessors necessary blanks as provided in Sec. 1029 R. S. (Sec. 2577 G. C.)</p> <p>4. Action on Bond of an Officer not Maintainable to Recover Money Illegally Drawn from County Treasury. .</p> <p>Section 1277 R. S. (Sec. 2921 G. C.), authorizing the county prosecutor, sua sponte to begin an action to recover back public moneys illegally drawn out of the county treasury, does not permit him to sue on the bond of the officer who has drawn the money.</p>

<p>DAMAGES — POWERS—SALES</p> <p>1. Power of Attorney to Sell does not Authorize Exchange of Property.</p> <p>A power of attorney granting to the attorney the right to “sell and dispose of” certain premises does not authorize him to exchange them for other real estate.</p> <p>2. Property Exchanged not Cash Sale.</p> <p>When property is exchanged for other property it can not be treated as a cash sale even though the deed recites a certain money consideration.</p> <p>3. Measure of Damages when Property is Wrongfully Disposed of.</p> <p>When an agent has exceeded his authority by exchanging his principal’s property for other property, title to which he has caused to be taken by certain relatives, but without any bad faith on his part, upon suit by the principal for damages, the measure of damages will be the actual value of the property disposed of and not the consideration recited in the deed.</p>

<p>WATERCOURSES</p> <p>One Erecting Dam Liable for Injury to Land Water-Soaked though not Overflowed.</p> <p>One who dams a water-course, thus raising the level of the water farther up stream, is liable in damages to a riparian owner whose land thereby becomes water-soaked and unproductive, even though the dam caused no actual overflow of water upon the land.</p>

<p>TRIAL</p> <p>Court May not Direct a Verdict for Plaintiff.</p> <p>In a case when the plaintiff depends upon the testimony of witnesses to establish his case, and defendant makes no motion to have the case taken from the jury, it is error for the court to direct a verdict for the plaintiff.</p>

<p>FRAUDS, STATUTE OF</p> <p>Promise to Pay for Personal Services Being Rendered Another Must be in Writing.</p> <p>A promise by the officers of a corporation made, to a physician, who is treating an injured employe of the corporation, that the corporation will pay for the services of the physician, is a promise to pay the debt of another, within the meaning of the statute of frauds, and must be in writing.</p>

<p>RAPE</p> <p>Evidence must Show Resistence of Woman to Constitute Rape.</p> <p>In a prosecution for rape, when the evidence discloses that the hands of the prosecuting witness were both free, and that people were in the room above that where the act occurred and no outcry was made; BelcL: Not sufficient to support a conviction.</p>

<p>ASSIGNMENTS — INSURANCE</p> <p>Rights of Assignee of insurance Policy not Delivered.</p> <p>Where a party takes out a policy of insurance on his life, on the tontine savings fund plan, and thereupon borrows money, to secure which, he executes a third mortgage on real estate and assigns his policy as collateral security; the mortgage proving worthless, leaving the assignment of the policy as the only security, it is prior as against a later assignee having possession of the policy, as the first assignee stands in the shoes of the person making the assignment and is entitled to be first paid.</p>

<p>OFFICERS</p> <p>Increasing Salary of Election Officer during Tenure of Office Held Unconstitutional.</p> <p>The proviso of Sec. 2 of act 96 O. L. 13 excludes deputy state supervisors of elections in Hamilton county from the operation of Sec. 1 thereof fixing compensation of such officers, in order to give effect to act 95 O. L. 328, and, in so far as it affects the salary of such officers is unconstitutional.</p>

<p>ACTIONS</p> <p>Action on Injunction and Appeal Bonds Improperly joined.</p> <p>A cause of action upon a bond given in injunction and another upon an appeal bond is given in the same suit with different sureties do not affect all the parties within the provisions of R. S. 5059 (G. C. 11306) and are not properly joined.</p>

<p>APPEAL — DISMISSAL AND NONSUIT</p> <p>Court may Dismiss Case Appealed from Justice by Defendant When Plaintiff is in Default for Petition.</p> <p>When a defendant has appealed from a judgment rendered by a justice of the peace, and the plaintiff has failed to file his petition within the time prescribed by law after the filing of the transcript from the justice, the court may enter a judgment • of dismissal.</p>

<p>JUDGMENTS AND DECREES</p> <p>Sufficiency of Affidavit to Support Motion to Set Aside Default Judgment.</p> <p>An affidavit, filed with a justice of the peace in support of a motion to set aside a judgment rendered in the absence of the defendant, which states that the defendant could not be present at the time set for trial and had instructed his attorney to be present and attend to the matter and that the attorney was actually engaged in the trial of a case in another court at that hour and could not be present, is sufficient to support an order setting aside said judgment.</p>

<p>APPEAL</p> <p>Action to Cancel Stock Appealable.</p> <p>An action by a stockholder in a corporation against the corporation, its officers and other stockholders, wherein one relief asked is the cancellation of stock alleged to have been wrongfully issued, is not an action for money only and is appealable.</p>

<p>EMINENT DOMAIN — ERROR</p> <p>View of Premises Treated as Evidence Precludes Review upon Weight of Evidence.</p> <p>When all parties acquiesce in a court’s instructions that the view of the premises is evidence in an appropriation case, it is impossible to include all the evidence in a bill of exceptions and a reviewing court can not therefore pass upon the weight of the evidence.</p>

<p>EXECUTORS AND ADMINISTRATORS — WILLS</p> <p>Executors can not Contract to Sell Land Except In Manner Provided in Will.</p> <p>When a will directs the executors to have an appraisal made of all the property belonging to the estate at a certain date and gives to any devisee the right to take any one parcel of property, not exceeding his share in the estate, at its appraised value, the executors can not at a date subsequent to that fixed in the will contract to sell a certain parcel to a third person, without first having the appraisal made and offering the property to the devisees.</p>

<p>DEATH — NEGLIGENCE—RAILROADS</p> <p>1. Facts Establishing “Last Chance" Must be Pleaded.</p> <p>Plaintiff can not recover for negligence which warrants the application of the rule of “last chance” without alleging it in his petition.</p> <p>2. In Death by Wrongful Act Suggestion of Contributory Negligence must be Removed.</p> <p>In an action for death by wrongful act if the evidence of the plaintiff suggests contributory negligence on the part of the deceased, then it becomes the duty of the plaintiff, before he can recover, to remove that suggestion of contributory negligence.</p> <p>3. Laborer on Adjoining Railroad Track Required to Exercise Greater Diligence because of Noise from Passing Train.</p> <p>When one is engaged in labor upon a railroad track, the fact that a long noisy freight train is passing upon an adjoining track would make it necessary for him to be more careful in keeping a lookout for trains approaching on the track upon which he is working.</p>

<p>ACTIONS</p> <p>Defendant may Maintain Independent Action on Subject for Counterclaim.</p> <p>When a defendant has a counterclaim against the plaintiff, he is not obliged to set it up in that action as a defense, but may institute an independent action upon it.</p>

<p>BILLS AND NOTES</p> <p>Liability of irregular Indorser Similar to Regular Indorser.</p> <p>Under Secs. 3173ft, 3173i and 31737c R. S. (Secs. 8168, 8169, 8171 G. C.) of the uniform negotiable instruments law, the liability of an irregular indorser is the same as that of a regular indorser, and he can not be held without demand having been made upon the maker and notice of dishonor given.</p>

<p>ARREST — CRIMINAL LAW</p> <p>Mayor’s Seal Necessary to Validate Warrant for Arrest.</p> <p>A warrant for arrest issued by the mayor of a municipality without affixing to it his official seal, as provided in Sec. 1536-773» R. S. (Sec. 4549 G. C.), is invalid.</p>

<p>ERROR — INTOXICATING LIQUORS</p> <p>1. Petition in Error not Refused for Failure to File in Thirty Days because Court not in Session to Grant Leave to File.</p> <p>When a motion for leave to file a petition in error is presented to the clerk of the circuit court, within the time prescribed by law, the court will not refuse to allow the petition to be filed on the ground that leave was not obtained within thirty days, when the court was not in session during that time.</p> <p>2. Judge Issuing Warrant for Violation of Liquor Laws not Disqualified to Try Accused.</p> <p>The judge who has issued a warrant for one accused of violating any local option law is not thereby disqualified to try the accused under the provisions of Sec. 4364-30 R. S. (Sec. 13231 G-. C.)</p> <p>3. Status of Local Option District Fixed by Earliest Legal Finding.</p> <p>When a petition to declare a certain residence district “dry” territory has been properly filed, with a common pleas judge, a hearing had, and a finding made that the territory is “dry,” the status of the territory will not be changed by a later finding by a mayor of the municipality that the territory is “wet,” even though the petition upon which the mayor acted was filed at an earlier date than that upon which the judge acted.</p>

<p>FRAUD AND DECEIT — JUDICIAL SALES</p> <p>Purchase by Wife of Sheriff of Property Formerly Sold at Sheriff’s Sale not Per Se Fraudulent.</p> <p>The mere fact that the wife of a sheriff, has at some subsequent time purchased property sold at a sheriff’s sale does not establish the existence of fraud in the sale.</p>

<p>ATTACHMENT AND GARNISHMENT</p> <p>Attachment Bondsmen Liable only for Value of Property Taken.</p> <p>The signers of a bond given in an attachment proceeding under the provisions of Sec. 6513 R. S. (Sec. 10287 G. C.), are liable only for the value of the property attached and not to the extent of the judgment which may be secured in the case.</p>

<p>ASSIGNMENTS</p> <p>Equitable Assignment can only be Made of an Existing Fund not of Commissions thereafter to be Earned.</p> <p>A fund, to be the subject of equitable assignment, must have an actual or potential existence; hence, a promise in writing to divide with the promisee a commission thereafter to be earned, can not be treated as an equitable assignment of such commission, whieh may not be revoked by the promisor at any time before actual payment.</p>

<p>OFFICE AND OFFICERS</p> <p>1. Resignation from Office Need not be in Any Particular Form.</p> <p>It is not necessary that a resignation from a public office be couched in any particular words; it is only necessary that the incumbent evince a purpose to relinquish the office; that this purpose be communicated to the proper authority; and that this resignation be accepted, either in terms, or something tanamount thereto.</p> <p>2. Accepted Resignation can not be Withdrawn.</p> <p>A resignation from office, to become effective at some future time, can not be withdrawn without the consent of the accepting party.</p>

<p>ATTORNEY AND CLIENT</p> <p>1. Burden of Proving Damages in Action for Neglect of Attorney is on Client.</p> <p>In an action brought by a client against his attorney for damages caused by neglect of the attorney to defend an action against the client, the burden is upon the client to prove the extent of his damages, and before he will be entitled to anything more than nominal damages he must affirmatively show what defense he proposed to make and that it would have availed.</p> <p>2. Information of Nature of Defense Prerequisite to Liability of Attorney.</p> <p>If an attorney employed to defend a suit fails to do so, and as a result judgment is rendered against his client, before he can be made liable for the whole amount of the judgment thus recovered, he must have been informed by his client what was the nature of the defense he was expected to make.</p> <p>3. Discharge of Attorney before Appeal Effected not Liable for Failure to File Appeal Bond.</p> <p>When an attorney has been directed to appeal a case to a higher court, but before the appeal had been perfected he was discharged, he is not liable in damages to his client for failure to file an appeal bond, if the time for filing the bond had not expired at the date he was discharged.</p> <p>4. Attorney can not Recover for Service when he Disregards Instructions.</p> <p>When an attorney under specific instructions from a client appeals a case from a justice court to the court of common pleas and then consents to the entry of a judgment against his client, he can not recover for services rendered in the case.</p>

<p>CONTRACTS</p> <p>Mode of Proof only Distinction between Contracts Express and Implied.</p> <p>The' only difference between an express and an implied contract is as to the mode of proof, and it is as essential that there be .a meeting of the minds of the contracting parties in one as in the other.</p>

<p>PARTIES — PROCESS</p> <p>Resident Having Fraudulently Induced Plaintiff to Purchase Stock in Nonresident Corporation, Property Party in Action to Rescind and Summons Issuable to Joint Defendant in Other County.</p> <p>When one by false and fraudulent representations has induced another to purchase of a third person stock in a certain corporation, in an action whereby it is sought to annul the entire transaction and recover the money paid from the person making the representations and the person to whom it was paid, the person making the representations is a proper party within the meaning of Sec. 11255 G. C., and when service has been had upon him, summons may issue to another county for the party to whom the money was paid and the corporation whose stock was purchased.</p>

<p>TRIAL</p> <p>Verdict for "Defendant” Liberally Construed to Include “Defendants.”</p> <p>In construing the verdict of a jury the utmost favor should be extended to it by giving it a liberal construction, and when, in a case in which there were two defendants, the jury returns a verdict in favor of the defendant, the. court properly may enter judgment in favor of both defendants.</p>

<p>CARRIERS — STREET RAILWAYS</p> <p>1. Passenger Entitled to Reasonable Time to Produce Ticket or Pay Fare. '</p> <p>A passenger on a street car or railway train is entitled to a reasonable time in which to pay his fare or produce his ticket, and, if he is acting in good faith, the conductor has no right to eject him without affording him such reasonable time to pay his fare or find his ticket, if it is mislaid.</p> <p>2. Facts Applied.</p> <p>When a passenger has left his ticket in the custody of another passenger in a remote part of a crowded street car, and the conductor forcibly ejects him within a minute or two after having first demanded his fare, he has not been given a reasonable opportunity to secure and present his ticket and the carrier is liable in damages.</p>

<p>AS TO VALIDITY OF AN ANCIENT DEDICATION</p> <p>No Dedication of Road Under Act of March 3, 1831, Without Acknowledgment by Owners.</p> <p>No dedication of a parcel of land for street purposes can he established under the act . of March 3, 1831, providing for the recording of town plats, when the records do not show any acknowledgment by the owners of the plat as made by the county surveyor.</p>

<p>MANDAMUS — MUNICIPAL CORPORATIONS</p> <p>1. Contracts with Utility Companies for Laying Conduits Which may be Terminated or Modified.</p> <p>An ordinance granting the right to a telephone company to construct and maintain underground conduits in the streets, avenues and public ways of a municipality, but imposing conditions of so meager and indefinite a character as to necessarily imply that the real conditions are vested in the discretion to be exercised by the director of public service, and which ordinance had not been accepted by the company or acted under by it, is subject to revocation, and the revoking ordinance under consideration in the present case is held valid.</p> <p>2. Rights under Municipal Grant not Determinable in Mandamus.</p> <p>A controversy between a municipality and a telephone company as to the right of the latter to be granted a permit to lay conduits in certain streets can' not be determined in a mandamus proceeding.</p>

<p>BILLS OF EXCEPTIONS</p> <p>Bill of Exceptions Filed before Overruling Motion for- New Trial but not Until Eighty Days after Judgment too Late.</p> <p>There is no warrant for considering a bill of exceptions which was not filed in the court of appeals until eighty days after the entering of the judgment in the common pleas court, notwithstanding said judgment was entered more than a month before the overruling of the motion for a new trial. and the .bill of exceptions was within proper time allowed and filed in the trial court within seventy-seven days. Had it been filed in the court of appeals on the same day as in the common pleas court it might have been considered.</p>

<p>APPEAL — -FRAUD—VENDOR AND PURCHASER</p> <p>1. False Representations as to Rental Value Ground for Rescission of Contract.</p> <p>In a contract for the sale of real estate, false representations as to the rental value of the property and as to the existence of a sewer connection in a house, constitute fraud, for which a rescission of contract will be granted.</p> <p>2. Reviewing Court on Appeal in Action for Rescission Heard on Transcript will Follow Trial Court on Weight of Evidence.</p> <p>In an action in equity for the rescission of a contract, heard upon a transcript of the evidence in the court below when there is some uncertainty as to the weight of the evidence, an appellate court will accept the conclusions of the trial court which saw the witnesses face to face, and had better opportunity to judge of their credibility.</p>

<p>BANKRUPTCY — PARTNERSHIP</p> <p>Discharge in Bankruptcy of Individuals Doing Business as Partners Discharges from Individual Liability.</p> <p>When partners have all signed a bankruptcy petition individually, setting up that they have surrendered their property individually as well as a partnership, were all adjudicated bankrupts individually as well as a partnership, but the final order of the court, was that they were discharged from provable claims against them as partners, the discharge relieved them from any individual liability for the debts of the partnership.</p>

<p>MUNICIPAL CORPORATIONS — WATERS AND WATERCOURSES</p> <p>Municipal Corporation Liable for Increasing Flow of Surface Water.</p> <p>A municipal corporation is liable to a land owner for damages resulting from an increased flow of surface water upon his land, caused by a change in street grades by which water is brought from another street to that upon which the land abuts and from which it flows upon the land.</p>

<p>VENDOR AND PURCHASER</p> <p>Validity of Contract for Sale of Real Estate.</p> <p>A written contract for the sale of certain real estate which is definite as to the subject-matter of the .contract, the amount to be paid and the dates of payment, shows a meeting of the minds on all the material parts of the contract and it is not rendered unenforceable by the fact that a blank space was left to be filled in with a list of second mortgages to be taken as collateral to secure the payment of the purchase money when due.</p>

<p>CONTRACTS — GIFTS—MORTGAGES</p> <p>1. Mutual Promises to Make Gifts or Contribute to Payment of Another’s Debt, without Consideration, not Enforcible.</p> <p>Mutual promises to mate gifts can not be enforced by the donee,' even if some of the donors complete their gifts, unless the donee is an educational, religious or philanthropic institution, or has expended money or incurred obligations arising from the acceptance of the promise; hence, mutual promises to contribute toward the payment of the debt of another furnish no consideration for the promise of one of the number, under no obligation to the promisee, who relinquished no rights and incurred no obligations by accepting such promise.</p> <p>2. Deed Executed to Secure Payment Treated as Mortgage.</p> <p>A deed executed to secure the payment of money will be treated in equity as a mortgage and not as an absolute conveyance, and when the grantor retains possession of the land such deed is voidable in so far as it was given to secure the payment of an obligation not the grantor’s and for which the grantor received no consideration.</p>

<p>ASSESSMENTS — COMPENSATION AND SALARIES</p> <p>1. Prosecutor cannot Recover from County Auditor Fees for Collecting Municipal Special Assessments, not Being County Funds.</p> <p>A county prosecuting attorney has no authority under Sec. 2921 G. C., to bring an action to recover from a county auditor fees alleged to have been wrongfully retained by him from the collection of special assessments levied in municipalities, as such assessments are not funds belonging to the county.</p> <p>2. County Auditor Entitled to Fees for Collection of Municipal Special Assessments.</p> <p>Under Sec. 1069 R. S. (Sec. 2624 G. C.), a county auditor was entitled to five-tenths of one mill on all moneys collected by the treasurer on special assessments, even though as a matter of convenience to the treasurer, such special assessments had been transferred to the grand duplicate instead of to a special duplicate.</p>

<p>ASSESSMENTS</p> <p>Special Sewer Assessments in Farm Land District Levying Same Amount per Acre not in Proportion to Benefits.</p> <p>Wheré in a sewer assessment district consisting wholly of farm lands, some of the lands are very remote from the sewer, while others are in close proximity to it and would be enabled to use the sewer as an outlet by making a short éxtension, an assessment which levies the same amount per acre upon the remote lands as upon those in close proximity to the sewer, is not levied in proportion to the benefits, and its collection will be enjoined.</p>

<p>CORPORATIONS</p> <p>Stockholder’s Liability for Unpaid Subscriptions not Defeated by Any Device Short of Payment.</p> <p>Capital stock or shares in a corporation, especially the unpaid subscriptions to such stock, constitute a trust fund for the benefit of creditors, which can not be defeated by simulated payment of the stock subscription or by an device short of actual payment; hence, where a subscriber to stock in a corporation pays only 80 per cent, of its par value and a board of trade is credited with a commission of 20 per cent, for procuring the purchaser, which 20 per cent, is immediately assigned by the board of trade to the purchaser, according to a pre-existing agreement, such transaction is not a valid payment of the 20 per cent, as against creditors of the corporation or a trustee in bankruptcy.</p>

<p>AUTOMOBILES</p> <p>Disregard of Statutory Regulations in Operation of Automobile.</p> <p>The operation of a motor vehicle in violation of Secs. 12603 and 12604 Gr. C., is prima facie evidence of negligence, when such operation of the motor vehicle caused a pedestrian, in order to avoid it, to step bach in front of a moving street car which strikes and 'hills her.</p>

<p>DIVORCE AND ALIMONY</p> <p>Decree Providing Monthly Payment of Alimony Held Adjudging Property of Husband to Wife Divorced for Her Aggression, Hence not Subject to Modification.</p> <p>When a divorce is decreed a husband because of the aggression of the wife, the further jurisdiction of the court in respect to the property rights of the parties is determined by Sec. 5700 R. S. (Sec. 11993 G. C.), and when in such case the decree provides for a monthly payment of alimony by the husband extending through a term of years, such payments are in fact not alimony, but property of the husband adjudged to the wife, and are not subject to modification.</p>

<p>EXECUTORS AND ADMINISTRATORS — QUIET TITLE</p> <p>1. Debtor Heir does not Inherit When His Debt Exceeds His Distributive Share.</p> <p>A debtor heir, who makes claim for distribution, is required to account to the estate for the debt he owes, the amount he is to' receive depending on the accounting, and when his indebtedness to the estate exceeds his distributive share in the estate, he inherits no interest in the real estate.</p> <p>2. Action to Quiet Title Against Claim of Debtor Heir Maintainable.</p> <p>When the distributive share of a debtor heir is less than the amount which he owes to the estate, an action to quiet title may be maintained by the other heirs to the real estate, to remove any cloud upon the title through the claim of the debtor heir or anyone claiming under' him.</p>

<p>INSURANCE</p> <p>Performance of Condition as to Appraisal Prerequisite to Action on Policy of Insurance.</p> <p>When a policy of fire insurance provides that in case of disagreement as to the amount of loss, the amount shall be determined by arbitration, such provision makes the obtaining of an award, or at least an attempt in good faith to obtain an award, a condition precedent to a right of action on the policy; hence, in an action upon such policy the burden is upon the insured to show that he has, on his part performed, or offered to perform, the condition as to the appraisal.</p>

<p>DAMAGES</p> <p>Measure of Damages for Failure to Take Entire Issue of Capital Stock.</p> <p>When there has been a breach of a contract for the purchase of all the capital stock of a corporation, the measure of damages to which the seller is entitled is the difference between the contract price and the market price of the stock at the time of the breach; and when there has been no acceptance of the stock or transfer of the same on the books of the company, the seller is not entitled to recover the full contract price.</p>

<p>ADVERSE POSSESSION — DEEDS</p> <p>1. Rule of Construction of Deeds as to Intention.</p> <p>A deed should be construed according to the intention of the parties, and if its language is clear and unambiguous and does not require construction, the court will loot only to the deed to ascertain the intention of the parties; but in case of doubt, the court may and should consider not only the language, but also the circumstances surrounding the transaction and the situation of the parties.</p> <p>2. Variance in Terms of Deeds and Plat of Lots Adjoining Railroad Right of Way Question for Jury.</p> <p>When in an action of ejectment from a strip of land ten feet wide adjoining a railroad right-of-way, it appears that the owners of a parcel of land, which was subject to a forty foot right-of-way allotted it, but the plat filed with the county recorder, through an error, described the right-of-way as sixty feet instead of forty, while deeds for lots sold recited that all lots are situated on the west line of the railroad right-of-way, the question of whether or not the grantors intended to include the ten feet when they deeded the lots is one for the jury.</p> <p>3. Adverse Title Acquired.</p> <p>When one remains in actual, visible, exclusive, hostile and continuous possession of land for a period of twenty-one years, he thereby acquires title to the land.</p>

<p>ASSESSMENTS — MUNICIPAL CORPORATIONS— STATUTES</p> <p>1. Construction of Municipal Code of 1902 as to Times of Taking Effect.</p> <p>When an act providing a new form of government for municipalities provided that, for the purpose of carrying into effect the powers and duties conferred and imposed upon present councils, the act should take effect at a certain date and for all other purposes, including the repeal of existing laws, at a later date, the powers and duties referred to are new powers and duties conferred and imposed by the act and not new methods or a different manner of exercising powers and duties previously conferred : hence, a special assessment, levied after the first mentioned date and before the last mentioned date, will be enjoined to the extent that it exceeds the limit allowed for such assessments by the pre-existing laws.</p> <p>2. Additional Assessment to Complete Street Improvement Controlled by Act Governing Original Assessment.</p> <p>An additional assessment, levied under Sec. 2300 R. S. (Sec. 3909 G. C.), to complete an improvement for which the original assessment proved insufficient, is an incident of the original assessment and governed by the law in force when the improvement proceedings were begun.</p>

<p>CORPORATIONS</p> <p>1. Holder of Proxy for Particular Purpose may not Vote on Other Questions.</p> <p>A restricted proxy, which authorizes the holder thereof to vote for certain men for directors at the annual meeting of a corporation or at any adjourned meeting, does not give the holder , thereof the right to vote upon any other question coming before the meeting, and a motion to adjourn the meeting carried by counting the votes cast by the holder of such proxy is of no effect.</p> <p>2. Impossibility of Determining which Four of Five Candidates were ■ Elected Directors, Defeats All.</p> <p>When five persons are voted for to fill four vacancies upon a board of directors and it is impossible to determine which of the five were elected, none of them can hold office as the result of the election.</p> <p>3. Directors of Corporations must be Bona Fide Stockholders.</p> <p>It is an essential qualification for holding the position of director in a corporation, that the person elected be a bona fide stockholder in such corporation; hence, one to whom one share of another’s stock has been transferred for the sole purpose of making him eligible as a director, but who has no financial interest in the corporation, is ineligible to the position of director.</p>

<p>INSURANCE</p> <p>Beneficiary may be Related by Affinity after Dissolution of Marriage on Which it Depends.</p> <p>The grandniece of the husband of a member of a fraternal benefit society is a person related by- marriage within the meaning of Sec. 3631-16 R. S. (Sec. 9467 G. C.), which provides that anyone so related may be the beneficiary of a fraternal insurance certificate, and such relationship continues after the death of the husband upon whom the relationship depends.</p>

<p>ATTORNEY AND CLIENT</p> <p>Fraudulently Inducing Juror to Visit Prosecutor’s House at Midnight Held Unprofessional Conduct in Interfering with Administration of Justice.</p> <p>When an attorney approves of and aids in the execution of a plan to discredit a juror and the prosecutor in a criminal case then on trial, hy creating a false situation by causing the juryman, by means of a protended message from the prosecutor, to visit the prosecutor’s home at midnight, such attorney is guilty of unprofessional conduct, in interfering with the proper administration of justice, and such misconduct is not excused by an honest belief that the prosecutor had an unfair advantage in criminal trials which the attorney was seeking to expose.</p>

<p>INFANTS</p> <p>Mayor can not Render Judgment against Infant Defendant without Guardian Ad Litem. Appointed.</p> <p>A mayor, who has obtained jurisdiction of an infant defendant more than fourteen years of age by means of personal service, has no authority to render judgment against the infant without first appointing a guardian ad Mtem to defend the suit.</p>

<p>LANDLORD AND TENANT</p> <p>1. Grant of Exclusive Right to Sell Cigars in Building of Lessor Enforceable.</p> <p>A provision in a lease of a store room that the lessee shall have the exclusive right to sell cigars and tobacco in the building of the lessor, is not in the nature of a restriction but rather in the nature of a grant, is not against public policy, and is enforceable as against the lessor and his assignees who take with notice of the grant.</p> <p>2. Recording of Lease Notice of Exclusive Rights of Lessor.</p> <p>The recording of a lease containing a grant of the exclusive right to sell cigars and tobacco in the lessor’s building is notice to the lessees of other rooms in the building of the exclusive character of the rights granted in that lease.</p>

<p>MASTER AND SERVANT — PLEADING</p> <p>What Sufficient Averment of Failure to Enclose Machinery.</p> <p>In an action for personal injuries caused by a servant coming in contact with exposed cog-wheels, an averment that the defendant permitted said cog-wheels to be exposed without any enclosure and without any protection of any kind, sufficiently alleges defendant’s failure to enclose with substantial railings, etc., as required by statute.</p>

<p>EVIDENCE — PRINCIPAL AND AGENT</p> <p>Affidavit Introduced to Establish Plaintiff’s Agency not Evidence of Facts Stated Therein.</p> <p>In an action to recover a real estate commission alleged to have been earned in securing a lessor for certain property, an affidavit of the lessee, executed at the time of making the lease and in which it was stated that the lease was the result of direct negotiations with the owner and not as a result of an interview had with plaintiffs, when introduced by the plaintiff as evidence of an agency, can not be used by defendant as evidence of the facts contained in the affidavit.</p>

<p>INJUNCTION — NUISANCE</p> <p>Landowner Enjoined from Contaminating Percolating Waters Feeding Adjoining Landowner's Well or Spring.</p> <p>A landowner is liable, if, by the accumulation of filthy or contaminating matter upon his own land, he contaminates the waters percolating therein to the injury of a neighboring landowner whose well or spring subsequently receives the percolating waters so contaminated, and an injunction will be granted to prevent such contamination.</p>

<p>CREDITORS’ BILLS — JUDGMENTS AND DECREES</p> <p>Lien of Creditor’s Bill Dates from Service of Summons and Prior to Judgment Liens in Actions Subsequently Instituted.</p> <p>A lien upon equitable interests, resulting from an action in the nature.of a creditor’s bill brought under favor of Sec. 11760 G. C., dates from the date of service of summons upon the trustees, and is prior to liens of creditors who have secured judgments and instituted proceedings in aid of execution while the first mentioned áetion was pending.</p>

<p>BANKS AND BANKING</p> <p>Bank Knowingly Receiving Check Deposited with Another Bank Fifteen Minutes before Closing for Insolvency; Takes it with Notice of Defenses.</p> <p>A check on a Newport (Ky.) bank was deposited by E in the Metropolitan Bank of Cincinnati fifteen minutes before its doors were closed not again to be reopened. The check was turned over by the Metropolitan to the Second National, which credited the amount of the check on an overdraft of the Metropolitan. The president of the;Second National had full knowledge of the condition of the Metropolitan. E stopped payment on the check, and the Second National sued him. Held,: That the Second National had notice of the defective title of the endorser of the check, and moreover did not take the check for value but for collection, and- its claim against the maker of the check fails on both grounds.</p>

<p>CORPORATIONS — EXECUTORS AND ADMINISTRATORS</p> <p>1. Stock Dividends on Stock are Capital and Belong to Remainderman not Income for Life Tenant.</p> <p>When a will gives the income from an estate to a certain person for life, a stock dividend issued upon certain stocks belonging to the estate is capital and not income and does not go to the life-tenant, but to the legatees in remainder.</p> <p>2. Stock Dividends do not Increase Interests of Shareholders of Corporation.</p> <p>A stock dividend does not increase the interests of the shareholders in the property of a corporation; it is only new evidence of their interests.</p>

<p>JUDGMENTS — NEGLIGENCE—PLEADINGS</p> <p>1. Amendments of Pleadings to Conform to Proof, not Prejudicial to Adverse Party, Permitted.</p> <p>The allowing of amendments to a petition to make it conform to the proof rests in the sound discretion of the court, and, when it does not appear that the defendant was taken by surprise, or that he was unprepared to meet the issue tendered by the amendment, he is not prejudiced thereby.</p> <p>2. Recovery against One of Two Sued for Joint Tort.</p> <p>When two or more are sued and a joint tort is alleged, a recovery may be had against one of the defendants only.</p> <p>3. Defendant Liable for Negligence Though Other Causes Contribute to the Injury.</p> <p>An action for injuries resulting from defendant’s negligence is not defeated by the fact that other agenceis operated in concurrence with .defendant’s negligence to put the forces in motion which resulted in plaintiff’s injuries.</p>

<p>CONTRACTS — EVIDENCE</p> <p>Parol Evidence of Conversations Preceding the Making of Written Contract Admissible to Interpret but not Alter Written Terms.</p> <p>When words in a written contract are susceptible of more than one meaning and are open to more than one reasonable construction, depending upon the sense in which they were used by the parties, parol evidence of conversations preceding the making of the contract, which neither alter nor add to the written contract, but merely enable the court to ascertain the subject-matter referred to therein, are admissible in evidence.</p>

<p>MASTER AND SERVANT — NEGLIGENCE</p> <p>1. Failure to Provide Proper Means of Communication between Operatives and Workers around Machinery Question for Jury.</p> <p>When an engineer whose duty it is to oil machinery is not provided with any means of keeping the machinery stationary while oiling it, nor with speaking tubes, telephones or other means of communication with those in another room who control the machinery, and no rules are promulgated relative to such communication, and the engineer is injured while oiling a machine, whose operator to his knowledge had left the premises, but which was started by the operator of another machine; the question of whether or not the employer was negligent in failing to provide proper means of communication between the engine room and the operating room and in failing to formulate reasonable rules to protect the engineers against the starting of the machinery, is for the jury.</p> <p>2. Masters’ Negligence Question for Jury, When.</p> <p>The master’s negligence is a question for the jury, whenever it is warrantable to infer from the evidence that the injury would not have been received if a certain instrumentality or method had been substituted for that actually adopted by the defendant, and that this alternative instrumentality or method was one commonly used by other employers in the same line of business under similar circumstances.</p> <p>3. Evidence of All Circumstances Attendant upon Accident Admissible in Personal Injury Case.</p> <p>It is not prejudicial error in a personal injury case to admit evidence of all the circumstances attendant upon the accident even though it does not tend to prove qny fact in issue and presents a gruesome detail of the accident to the jury.</p> <p>4. Qualification of Expert Preliminary Question Discretionary to Court.</p> <p>The competency of a witness to qualify as an expert is a preliminary question for the trial court and rests in the discretion of the court, and, unless founded on some error of law or on serious mistake, or abuse of discretion, the ruling is not reversible.</p> <p>5. Cross Examination as to Usage or Custom not Precluded by Party Calling Witness Failing to Examine.</p> <p>The fact that the party calling a witness did not examine him as to a usage or custom which would be material to the case on trial, does not preclude the other party from cross-examining him as to the existence of such usage or custom.</p>

<p>INSURANCE — TRIAL</p> <p>1. Conditions Making Policy Void Matter of Defense.</p> <p>In an action upon a life insurance policy, the conditions precedent, the performance of which the plaintiff is required to plead, include only those affirmative acts which are necessary in order to perfect his right of action on the policy, such as giving notice and making proof of loss, furnishing the certificate of a magistrate when required by the policy, and, it may be, other acts of like nature. Conditions which provide that the policy shall become void, or inoperative, or the insurer relieved wholly or partially from liability upon the happening of some event, or the doing, or omission to do some act, are matters of defense, and to be available must be pleaded and their breach alleged.</p> <p>2. Statement in Renewal Application not Defense unless Fraudulently Made, Wilfully False and Material.</p> <p>A statement in an application for a revival of an insurance policy which has lapsed is within the purview of Sec. 9391 G-. C., and is not a defense to an action on the policy, unless the statement was wilfully false, fraudulently made, and material, and induced the company to renew the policy.</p> <p>3. Refusal, not Failure, to Give Proper Instructions Constitutes Error.</p> <p>Error consists not in the failure, but in the refusal to give instructions to which a party is entitled.</p> <p>4. Statement in Physician's Affidavit for Proof of Death not Competent for Other Purposes.</p> <p>Statements in a physician’s affidavit introduced in an action upon an insurance policy to make proof of loss, are not competent as evidence to establish an affirmative defense, as that the disease from which the insured died existed before the renewal of her policy.</p>

<p>DAMAGES — PLEADING</p> <p>1. Punitive Damages Awarded Only for Reckless Disregard of Rights of Injured.</p> <p>Punitive damages may be awarded when one in committing a wrong has so conducted himself with regard to another as to show a reckless disregard of such other’s right.</p> <p>2. Malice Pleaded by Facts Showing Reckless Disregard.</p> <p>When the facts set forth in a petition show a reckless disregard of plaintiff’s rights on the part of the defendant, malice is sufficiently pleaded to support an award of punitive damages.</p>

<p>LANDLORD AND TENANT — PRINCIPAL AND AGENT</p> <p>One About to Terminate Agency may Secure for Himself Lease of Building Used by His Principal.</p> <p>A lease of a building used as a place of business by his employer, taken by one about to retire as manager of that business, will not be decreed to be held for the benefit of the employer when it was agreed between the employer and manager that upon his retirement the manager might re-engage in the same line of business, and that that particular neighborhood should be fair and free territory for both, and the landlord was fully informed as to the situation when the lease was made.</p>

<p>INJUNCTION — JUDGMENT—PARTIES—PLEADING</p> <p>1, Proper Party in Injunction against Enforcement of J. P. Judgment.</p> <p>In an action to enjoin enforcement of a judgment rendered by a justice of the peace, the only party which good practice requires should be made a defendant is the plaintiff who is seeking to enforce the judgment.</p> <p>2. Variance in Petition to Enjoin Enforcement of J. P. Judgment because of Failure to Enter on Docket.</p> <p>In such an action, in which it was alleged that the judgment was fraudulently obtained, the testimony disclosed that while a judgment appeared on the transcript of the proceedings before the justice no judgment was ever entered upon his docket. Held: The variance was immaterial and the defendants had not been misled thereby, and that the plaintiff should be given leave to amend his petition forthwith and judgment thereupon entered enjoining proceedings for enforcement of the alleged judgment.</p>

<p>COURTS</p> <p>Jurisdiction of Municipal Court of Cleveland.</p> <p>When personal service has been secured in the city, the municipal court in the city of Cleveland has jurisdiction in an action on contract against a householder and resident of another township or municipality within the county, where the amount claimed is less than $2,500.</p>

<p>CRIMINAL LAW — HOMICIDE—ROBBERY</p> <p>1. Indictment not Required to Follow Statutory Definition.</p> <p>The identical words of a statute need not be used in an indictment charging an offense in violation of it, but it is sufficient if the offense charged is brought substantially within the provisions of the statute defining it.</p> <p>2. Circumstantial Evidence Definedi by Illustrations.</p> <p>In defining circumstantial evidence, it is not error for the court in its charge to the jury to use illustrations drawn from common experience or based upon familiar events in everyday life.</p> <p>3. Every Essential Link in Chain of Circumstances Proven beyond Reasonable Doubt, Sufficient.</p> <p>In a criminal prosecution, it is not essential that every fact and circumstance be proven beyond a reasonable doubt, if every essential link in the chain of circumstances necessary to prove each or any of the charges, is so proven.</p> <p>4. Failure to Define Attempt to Perpetrate Robbery not Erroneous in Homicide.</p> <p>In the trial of one accused of having committed murder while attempting to perpetrate a robbery, the failure of the court to define an attempt to perpetrate a robbery is not error when no such definition is requested.</p> <p>5. Instruction as to Assault and Battery Omitted in Homicide not Prejudicial.</p> <p>In the trial of one indicted for first degree murder it is not prejudicial error on the part of the court to fail to charge the jury that they might find defendant guilty of assault and battery, when under the charge as given the jury might have found the defendant guilty of a crime of lesser degree than that of which they did in fact find him guilty.</p> <p>6. Misconduct of Jury not Proven by Affidavit of Juror.</p> <p>Misconduct on the part of the jury can not be proven by the affidavit of one of the jurors.</p>

<p>CONTRACTS — DAMAGES—SALES</p> <p>Repudiation of Entire Contract of Purchase Precludes Construction of Provision for Resale of Goods.</p> <p>When a contract for the sale of goods contains a provision that should the goods be resold the seller agrees to use care and diligence in selling in those markets that will, in his judgment, net tlie best figures, charging therefor a certain commission, such provision contemplates an act of reselling under a subsisting contract and does not apply so as to affect the measure of damages when the purchaser has repudiated the entire contract.</p>

<p>ESTOPPEL</p> <p>Acquiescence in Wrongful Conduct Insufficient to Work Estoppel.</p> <p>Acquiescence in the wrongful conduct of another by which one’s rights are invaded, in order to preclude the injured party from obtaining equitable relief to which he would be otherwise entitled, must be voluntary, with knowledge of the wrongful acts and their injurious consequences, and it must last for a reasonable length of time, so that it will be inequitable to the wrongdoer to enforce equitable remedies against him.</p>

<p>CONTRACTS — EVIDENCE—TRIAL</p> <p>1. Duress by Threats to Have Son Arrested for Defalcation Avoids Guaranty by Parent.</p> <p>A contract in order to be valid and binding must be the result of the free assent of the parties making it, and when a father is coerced into signing an instrument guaranteeing the payment of the amount of a defalcation by his son, by threats of the arrest and prosecution of the son for embezzlement if such guaranty is not given, the guaranty may be avoided on the ground of duress.</p> <p>2. Defendant Has Right to Open and Close when Answer Admits Averments of Petition and Sets up New Defense.</p> <p>When’ an answer admits all the avermeilts of a petition which are necessary to state a cause of action and sets up new matter as a defense, the burden of proof rests upon the defendant, and it is his right to open and close. •</p> <p>3. Testimony as to Effect of Acts Alleged to be Duress Competent.</p> <p>In an action upon a written instrument, to which the defendant alleges his signature was secured by duress by threats to have his son arrested, the effect of the threats upon the defendants was a question of fact and it was competent for him to testify that he would not have signed the instrument sued upon if the threats had not been made.</p>

<p>CORPORATIONS — ERROR</p> <p>1. All Promoters of Corporation Liable for Fraudulent Representations of One of Their Number.</p> <p>When several persons engage in business jointly, and, to facilitate such business, use a corporate name and issue stock, and in the promotion of the scheme, false representations are made by those holding themselves out as promoters and managers of the business as to material facts of inducement and as to matters peculiarly within the knowledge of all the associates or their agents, all those engaged in the promotion of the business as associates of those making false representations are liable to those, who, relying upon such representations, purchased stock to their injury.</p> <p>2. Latitude Allowed Attorney In Argument.</p> <p>Every argument has for its aim the convincing of the jury of the justice of the cause of action or defense advocated by counsel, and considerable liberality should be allowed counsel in drawing inferences and even in indulgence in invective, when there is any support thereof in the evidence.</p>

<p>ASSOCIATIONS-COURTS — STATUTES</p> <p>1. Later and Special Statutes Prevail.</p> <p>When two statutes are irreconcilable the one last enacted must prevail, and where there is a conflict between a general law and a special act the special act will prevail.</p> <p>2. Law Libraries not Entitled to Fines Collected in Municipal Courts.</p> <p>Section 3056 G. C., giving to law library associations fines and penalties collected in police courts in certain cases, does not give to such associations the fines and penalties collected in those cases in a municipal court, which has been created by special act, and to which jurisdiction of all cases formerly exercised by police courts has been transferred, when the act creating the municipal court expressly directs the clerk of that court to pay all moneys collected to the city treasurer.</p>

<p>HEALTH</p> <p>Board of Health ■ Regulation Forbidding Sale of Ice Cream in Public Places except in Certain Receptacles, Valid.</p> <p>An order or regulation of a city board of health, forbidding the sale of ice cream on highway or public grounds of the city unless contained in sealed or locked cans or other containers approved by the board of health, is a valid exercise of police power, and is constitutional.</p>

<p>BUILDINGS — COVENANTS—ESTOPPEL</p> <p>1. A Porch is Part of Building and Subject to Building Restrictions.</p> <p>A porch, built upon a brick foundation, roofed and permanently attached to the whole width of the front of a house, is an integral part of the building within the meaning of a building restriction in a deed providing that all buildings shall be erected not less than a certain distance back from the line of the street.</p> <p>2. Plaintiff not Estopped from Enforcing Building Restriction because of Trifling Violation of It by Herself and Neighbors.</p> <p>The fact that plaintiff and other lot owners have violated the building restrictions in an allotment by building porches nearer to the street than is permitted by such restrictions, will not, when such violations are slight, estop her from enjoining the construction by her neighbor of a porch of a different type from those theretofore built and which would seriously obstruct her easement of light and view.</p>

<p>CONTRACTS</p> <p>1. In Public Contracts Awarded to Lowest Bidder Sample Need not Conform to Specifications.</p> <p>When a public contract is let to the lowest bidder and the specifications on file are made a part of the contract, it is immaterial that a sample submitted does not conform to specifications.</p> <p>2. Awarding Contract to Lowest Bidder does not Permit Acceptance According to More Expensive of Two Samples Submitted.</p> <p>Where a statute governing the awarding of a public contract provides that the contract shall be let to the lowest responsible bidder, and the lowest bidder has submitted two samples with a different price upon each sample, but both of which are lower than the prices submitted by any other bidder, the public officers may award the contract to the lowest bidder, but not for the goods made according to the more expensive sample.</p>

<p>RECEIVING STOLEN GOODS</p> <p>In Prosecution for Receiving Stolen Property Evidence of Other Like Offenses at about Same Time Admissible.</p> <p>A conviction for receiving stolen property will not be set aside because the evidence received at the trial tended to prove the receipt of several other similar pieces of stolen property at about the same time as those for the receiving of which the defendant was on trial, without making it certain which of the several pieces were the ones upon which the prosecution was based.</p>

<p>CONTRACTS</p> <p>1. Prejudice Caused by Reference to Judgment Below Cured by Explanation that Judgment was by Default.</p> <p>Any error caused by plaintiff, while on'the witness stand, speaking of the> judgment secured in the justice court, is cured by the court explaining in its charge to the jury that no trial was had in the justice court and that the judgment there was by default.</p> <p>2. Duty of Court to Interpret Written Contract in Light of Evidence.</p> <p>It is the duty of the court to interpret a written contract; and hence, when the evidence makes it clear that the parties did' not intend to make the contract which the ordinary meaning given to the language used would indicate, it is not error for the court to so interpret it as to give it the meaning intended.</p>

<p>INSURANCE</p> <p>Commission of Unlawful Act no Defense to Insurance When not Cause of Death or Injury.</p> <p>The fact that the insured was killed or injured while in the commission of an unlawful act is no defense to an action upon a life or accident insurance policy, unless the wrongful act was the proximate cause of the death or injury.</p>

<p>PRINCIPAL AND AGENT</p> <p>Acceptance of Order Secured by Agent at Less than Authorized Price Gives Him Right to Commissions.</p> <p>When an agent has been authorized to sell goods on commission, the fact that he has sold them at a lower price than authorized by his principal does not defeat his right to commissions, the principal having accepted and filled the order.</p>

<p>ASSIGNMENTS — BILLS AND NOTES</p> <p>Assignor of Nonnegotiable Instruments not Liable as Endorser.</p> <p>The assignor of a nonnegotiable bond and coupons does not incur liability as an endorser.</p>

<p>MINES AND MINERALS — WORDS AND PHRASES</p> <p>“Adjacent” in Oil and Gas Lease not Extended to Cover Eight Farms or Distant Two Miles.</p> <p>When the conditions of an oil and gas lease are that the lease is-to be null and void if the lessee does not drill on land adjoining or adjacent to that leased within a certain time, drilling upon land two miles distant and separated by eight farms from the land leased does not prevent forfeiture of the lease, as that is not adjacent within the meaning of the lease:</p>

<p>DAMAGES</p> <p>When Provision in Surety Bonds for Liquidated Damages Treated as •Penalty.</p> <p>When a contract contains a large number of stipulations of varying degrees of importance, to be performed, and for the breach of some of which the damages are readily ascertainable, while as to others they are not, a single sum stipulated as damages for a breach, and applicable alike to each of the covenants, will be treated as a penalty, and in an action for a breach only the actual damages proved are recoverable.</p>

<p>ASSESSMENTS — DAMAGES</p> <p>1. Damages Directly Accruing from Street Improvement only Considered.</p> <p>In an action under Sec. 3828 G. C., providing for the assessment of damages to property owners occasioned by the improvement of a street, only damages which would result from the improvement as actually authorized by the council can be considered.</p> <p>2. Reasonable and Proper Grade of Street Basis of Damages Allowable.</p> <p>When the owner of property, abutting upon a street upon which a grade has not been established, builds upon the property without reference to any reasonable or proper grade of the street which the city may thereafter establish, he is not thereby precluded from recovering damages resulting to his property from the establishment of an unreasonable and improper grade of the street; and the measure of his damages in such case will be the difference between damages which would have resulted to his property from the establishment of a reasonable and proper grade and that resulting from the grade as actually established.</p> <p>3. Damages for Change of Grade Attach to Vacant Lots Adjoining Homestead.</p> <p>When an owner uses three adjoining lots in one inelosure as a homestead, he is entitled to damages to all of them caused by the establishment of an unwarranted and unreasonable grade of the street, even though there are no buildings upon two of the lots.</p>

<p>GUARANTY</p> <p>Notice of Acceptance of Absolute Guaranty not Necessary.</p> <p>When, in consideration of credit to be extended to a third person, one signs a writing by which he agrees to become responsible for the payment of all bills incurred by that person and states that the guaranty is to be good at any and all times, on any and all bills or balances due or to become due, such writing constitutes an absolute guaranty and notice of its acceptance and extension of credit is not necessary.</p>

<p>NEGLIGENCE</p> <p>1. Negligence of Plaintiff Directly Contributing to Injury in Slightest Degree Bars Recovery. ,</p> <p>In a collision case no recovery can be had for injuries resulting from defendant’s negligence when it appears that plaintiff’s own negligence directly contributed, in the slightest degree, to the injuries complained of.</p> <p>2. Contributory Negligence not Defense when Not Proximate Cause of Injury.</p> <p>Contributory negligence of the plaintiff, in order to bar a recovery, must have been so far an efficient cause of the injury that unless he had been negligent the injury would not have happened, and although there may have been negligence on the part of the plaintiff, yet unless he could, by the exercise of ordinary care have avoided the consequences of the defendant’s negligence, he is entitled to recover.</p>

<p>MUNICIPAL COBPOBATIONS</p> <p>Municipality without Power to Reissue Lost Bond.</p> <p>A municipality is without power to reissue one of its negotiable bonds which has been lost by the owner, and such power can not be conferred by decree of court.</p>

<p>AUTOMOBILES — STREET RAILWAYS</p> <p>1. Comparative Care Required of Motormen and Chauffeurs in Joint Use of Streets.</p> <p>Street cars have no superior rights in streets over automobiles; chauffeurs and motormen are both bound to exercise ordinary prudence when street railway tracks are to be crossed. The degree of care required of motormen between street intersections is not as great as at street crossings, while drivers of other vehicles should exercise greater care in crossing street car tracks between intersections than at street crossings.</p> <p>2. Question of Negligence of Chauffeur and Motorman Held for Jury.</p> <p>Whether a chauffeur exercised ordinary care in driving out of private grounds upon the street in the face of an approaching car, with the result that his machine was struck by the car and his employer injured, is for the jury to determine in view of all the circumstances surrounding the case.</p> <p>3. Relative Value of Testimony of Witnesses Having Equal Opportunity to Notice Warning Signals.</p> <p>It would be error to charge a jury that “if you find the witnesses are of equal credibility, then I charge you that the affirmative testimony of the witness who says that he heard the gong sounded is of greater value than the testimony of the other witnesses,” unless the qualification be added that “they had equal opportunity to hear.”</p> <p>4. Assignment to Wife of Husband’s Claim for Expense of Physician and Nurse in Personal Injuries.</p> <p>When a husband testifies that he has assigned to his injured wife the claim on account of services of a physician and nurse, he estops himself from asserting such a claim in a future action, and these items may be submitted to the jury to be included in the damages awarded notwithstanding the assignment was not in writing.</p>

<p>RELEASE</p> <p>1. Release of Claim for Wrongful Death Terminated by Failure of Defendant to Carry Out One of Its Essential Features.</p> <p>An agreement to pay a widow a specified sum of money in full settlement of her claim for the wrongful death of her husband, and also to pay her lawyer a stipulated sum under his agreement with her when he took the case or to protect her against the claim of the lawyer, is so far repudiated by a subsequent refusal to settle with the lawyer as to justify the party of the first part in tendering back the amount she had received and declaring the whole agreement at an end.</p> <p>2. Rescission of Release Settlement for Repudiation of Integral Part Effected by Tender of Amount Paid.</p> <p>When one of the parties to an agreement of settlement has repudiated an integral part of it, and the other party has thereupon elected to disavow the whole of it with an offer to restore the status quo ante, the rescission is an accomplished fact and requires no judicial declaration of the result thereby accomplished.</p>

<p>ADVERSE POSSESSION</p> <p>1, Policy of Law with Reference to Prescriptive Title to Land Dedicated for Street Purposes.</p> <p>A private person, claiming title to land which originally belonged to the public for street purposes, should base his claim on estoppel rather than the statute of limitations, and recognition will hardly be given to a claim by prescription unless in regard to land upon which valuable improvements* have been erected.</p> <p>2. Character of the Improvements Which will Create Estoppel Against the Public.</p> <p>When the grade of an unimproved street was such that it could not be used by vehicles until improved, the inclosure by an abutting owner of a part of the dedicated strip by a fence for a period of less than twenty-one years does not afford ground for enjoining its improvement on a claim of title by adverse possession.</p>

<p>PLEADING — QUIET TITLE</p> <p>Right to Drill for Oil not Affected by Alleged Membership in Oil Trust.</p> <p>An allegation that the defendant is a member of an unlawful conspiracy in restraint of trade, designed to create and perpetuate a monopoly in the business of producing, transporting and manufacturing petroleum and its products, is not ground for quieting the title of plaintiff in certain land on which the defendant claims the right to drill for oil.</p>

<p>CONTEMPT OF COURT</p> <p>Libel of Judge Touching Proceedings Which have been Terminated, not Contempt.</p> <p>A libelous attack upon a judge can not be made tbe basis of a charge of contempt, unless it has a tendency to impede or hinder the court in the administration of justice by having reference to the action or conduct of the judge in a pending case or proceeding.</p>

<p>INSANE PERSONS — INSURANCE</p> <p>Insanity of Degenerate with Paranoidal Delusions Evidenced by Egor mania and Megalomania Established by Alienists, Defeating Change of Beneficiaries of Insurance Policy.</p> <p>An insane degenerate with paranoidal tendencies and delusions which take the form of egomania and megalomania, may continue in the pursuit of his daily business and exercise such self-restrain that those associated with him will not be aware of his condition, so that, when two alienists after an exhaustive examination unqualifiedly declare a person to have been suffering with that form of insanity, their testimony will be of more weight than that of numerous associates who came In contact with him in a business way.</p>

<p>TRIAL</p> <p>Court may Resubmit Case to Jury When Verdict is Plainly Mistake.</p> <p>When a jury after returning a verdict in a replevin case were discharged, and certain members of the jury having inquired of the court as to the effect of their verdict and upon being informed that it was in favor of the defendant, protested that that was not their intention, it was not error for the court to reassemble the jury and after ascertaining that all of them were mistaken as to the effect of their verdict, resubmit the case to them after further instructions.</p>

<p>PARTNERSHIP</p> <p>Notice of Dissolution of Partnership with Fictitious Name not Necessary to Protect Retiring Partner.</p> <p>When a partnership name does not disclose the names of the individuals who constitute the firm, no general notice of dissolution is necessary to protect a retiring partner from the claim of one who .becomes a creditor after the dissolution and who had no knowledge that the retiring partner had been a member' of the firm.</p>

<p>CHARGE TO JURY — STREET RAILWAYS — TRIAL</p> <p>1. Indefinite and Uncertain Terms as to Speed of Street Car.</p> <p>It is not error to strike out answers which are in terms so general as to be indefinite and uncertain, as that a car was moving “fast” or “very fast” or “at an awful rate of speed.”</p> <p>2. Competent Witness as to Speed of Street Car.</p> <p>A witness who has been accustomed to riding upon street cars and whose observatoins and experience has been such as to make his judgment reliable, may testify as to the rate of speed a car upon which he was riding was traveling.</p> <p>3. Negligence in Crossing Street Tracks.</p> <p>One about to cross a street car track, is bound to use his senses to ascertain whether a car is about to cross or is approaching a crossing, and if he fails to see or hear anything, when a careful and prudent man by using his eyes, and ears with ordinary care would have discovered a car in so close proximity to the crossing that he could not safely drive across, he is guilty of negligence and can not recover for his injuries.</p> <p>4. Violation of Ordinance by Street Car Operation.</p> <p>Violation of a city ordinance in the operation of its street cars is not per se negligence which makes the company liable to one injured at a street crossing.</p> <p>5. Not Error to Fail to Amplify Instructions not Requested.</p> <p>When what was said by the court to the jury in the charge was clearly the law, if the plaintiff desired the court to charge further on the subject in question, a request for such further charge should have been made, and none having been made, the court did not err in failing to give any other proposition on the subject, whether such other proposition would have been warranted or not.</p>

<p>DIVORCE AND ALIMONY</p> <p>Delay of Twenty-four Years in Asking Alimony Makes Claim Stale.</p> <p>A delay of twenty-four years after a husband has secured a divorce in another state, before applying for alimony, during all of which time the husband was the owner of real estate situated in the county which might have been subjected to the payment of alimony and during which time the wife has remarried, makes a claim for alimony stale.</p>

<p>ATTORNEY AND CLIENT</p> <p>Party to Illegal Contract for Attorney Fees Cannot Invoke Aid of Court to Secure Division of Profits.</p> <p>A plaintiff who has knowledge of, and is party to, an agreement between an attorney and a client by which it is agreed that the attorney shall have one-half of all the money he succeeds in obtaining from the husband of the client as alimony or otherwise, is party to an illegal contract, working a fraud upon the court, and can not invoke the aid of the court to recover from the attorney one-half of the sum obtained in the transaction and which the attorney had agreed to divide with plaintiff for recommending him to the client as an attorney.</p>

<p>CONTRACT — EQUITY</p> <p>Subscriber of Stock in Violation of Pooling Agreement Cannot Insist on Performance by Others Without Participating Himself.</p> <p>When the subscribers to a stockholders pooling agreement have never done anything to put the agreement into effect and for a term of years have ignored its existence, one of the subscribers, who has himself purchased stock in violation of the agreement can not afterwards insist upon the carrying out of the agreement by the others while refusing to surrender to the pool the stock which he, himself, had purchased.</p>

<p>INSURANCE</p> <p>Condition as to Forfeiture for Nonpayment of Premium may be Waived.</p> <p>An insurance company may waive any of the conditions in its favor in a policy, including a provision that a failure to pay a premium when due shall work a forfeiture of the policy, and such waiver may be proven by proving a known custom of its agent to deliver its policies before receiving the first premium, although the policy contains a provision that only certain officers can extend time of payments.</p>

<p>INTEREST AND USURY — MORTGAGES</p> <p>Vendor Liable for Usurious Interest in Excess of Amount of Obligation Assumed by Vendee.</p> <p>When a building company which has given a bond at a usurious rate of interest together with a mortgage upon certain premises to secure its payment, sells the premises so mortgaged upon a land contract for a definite amount and later, in the performance of that contract, conveys the premises to the purchaser, and in its deed, stipulates that the purchaser assumes and agrees to pay a mortgage of a certain definite amount, such building company is liable to the purchaser for the difference between the amount which the purchaser agreed to pay, together with legal interest, and the amount called for by the usurious bond.</p>

<p>COURTS — ERROR</p> <p>1. Common Pleas cannot Reverse Probate Court in Error Proceedings when no Bill of Exceptions is Filed.</p> <p>When error is prosecuted from an order of the probate court to the common pleas, but no bill of exceptions is filed showing upon what evidence the probate court acted, it will be presumed that it acted upon proper evidence, and it is error for the common pleas court to reverse the order of probate court.</p> <p>2. Probate Court without Power to Require Deposit of Special Fund with Court.</p> <p>The probate court is without power upon the final settlement of an estate to order the deposit of a certain amount of money in the name of the court to await the outcome of an attempt to collect a note from the distributee.</p>

<p>BENEFICIAL ASSOCIATIONS</p> <p>1. Issuing Certificate Naming Beneficiary of Class not Mentioned in Constitution, Valid.</p> <p>When the constitution of a fraternal order states that the object of the- endowment fund of the order is for the better and sufficient support of the widows and orphans of its members, but the laws of the state under which it is organized permit 'the > payment of benefits to the mother of a deceased member, as well as to the widow and orphans, the fact that the order has issued to a member a certificate in which his mother is made beneficiary, after he had surrendered one in which his wife was named as beneficiary, will be construed as an exercise on the part of the order of the power granted by the state and as a waiver of the constitutional provision, and in case of the member’s death the mother will be entitled to the insurance.</p> <p>2. Member May Change Beneficiary, no Vested Interest Reserved.</p> <p>The naming of one as a beneficiary gives him no vested interest in the insurance fund of a fraternal order, as the right is reserved to the member to change his beneficiary at any time.</p>

<p>COURTS</p> <p>Effect of Change of Venue on Jurisdiction as to Existing Orders.</p> <p>By the transfer of a case froih the court of common pleas of one county to the court of common pleas of another county, the court in the county to which the case is transferred acquires exclusive jurisdiction of all matters pertaining to the case, including the enforcement of the orders already made in the case, as well as the granting of new orders and final judgment.</p>

<p>ELEVATORS</p> <p>Liability of Owner of Passenger Elevators not Increased by .Employment of Minor as Operator.</p> <p>The liability of the owners of an office building to tenants in the use of its passenger elevators is that of a carrier of passengers, and such liability is not altered by the employment of a minor as an operator; hence in an action by a tenant for personal injuries resulting from the negligent operation of an elevator, an allegation that the laws of the state make it unlawful to employ a minor, such as the one operating the elevator at the time of the accident, should, on motion, be stricken from the petition.</p>

<p>CONTRACTS — VENDOR AND PURCHASER</p> <p>Two Contracts for Sale of One Parcel of Property are Regarded as One.</p> <p>When a real estate company sells lots upon an installment plan and gives the purchaser a land contract signed by a trustee in whose name the title appears, in which the trustee agrees to convey upon the receipt of the final payment; and also gives the purchaser another contract signed by the company in which it agrees to convey the property to the beneficiary of the purchaser in case of the death of the purchaser before final payment has been made, both of the contracts are to be construed together as one contract, and the real estate company, by accepting payments after they were past due, waived any forfeiture provided for in the contract signed by the trustee.</p>

<p>BILLS AND NOTES — PRINCIPAL AND AGENT</p> <p>Qualification Statement Following Signature of Note, Held Personal Obligation of Signer.</p> <p>When one signs a promissory note and after his signature adds the statement that he is signing it for another, he nevertheless becomes personally liable upon it.</p>

<p>TRIAL</p> <p>Dismissal of Pending Action on Motion of Plaintiff is not Failure in Action.</p> <p>When an action which has been commenced in due time, is dismissed by the plaintiff after the time limited for the commencement of such action has expired, even though such dismissal was made to avoid being forced into a trial for which the plaintiff was unprepared, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action within the purview of Sec. 4991 R. S. (Sec. 11233 G. C.)</p>

<p>BUILDINGS — CONTRACTS—TRIAL</p> <p>1. Contractor Entitled to Extra Compensation for More Expensive Materials.</p> <p>When a contractor is putting in concrete according to the specifications in his contract, and complies with a request of the one for whom he is performing the work to use a larger proportion of cement in mixing the concrete, this is in addition to his original contract, and he is entitled to recover for the additional cost of such concrete.</p> <p>2. Exception to Refusal to Charge before Argument must Specify that it is as to Time of Charge.</p> <p>When a party submits requests for certain charges before the argument of a case and takes exception to the court’s refusal to give the charges as requested, but does not specify that his exception is to the refusal to charge at that time, no error results if the court in its charge after argument charges all of the propositions contained in the requests which it was proper to give.</p>

<p>BROKERS — CONTRACTS</p> <p>Broker Contracting to Guarantee Stipulated Sum to Contractor not Bound to Complete Option for Larger'Sum.</p> <p>When a proposal is made to plaintiff that if he will procure $80,-000 for a contractor to be used by him in the completion of a certain part of his contract, a certain commission will be paid to plaintiff, and for any amount secured or guaranteed in excess of $80,000 for the completion of the entire contract a like commission will be paid, plaintiff having procured the $80,000 and received his commission thereon, is under no legal obligation to furnish or guarantee funds for the completion of the contract, and has no lien upon bonds issued by the company for which the contractor is working and placed in trust to secure the payment of funds advanced or guaranteed to the contractor, nor any right of action against the company for wrongfully forfeiting the contract with the contractor.</p>

<p>APPEAL</p> <p>An Appeal from Probate Court Transcript must be Filed before Second Day of Term Next After Notice of Appeal Given.</p> <p>Under the provisions of Sec. 6409 R. S. (Sec. 11210 G. C.), when an appeal is taken from the decision of a probate judge, the transcript of the docket or journal entries and of the order, decree or decision appealed from, must be filed with the clerk of the common pleas court on or before the second day of the term of that court next after the undertaking or notice of appeal is given, and not of the term of court next after the expiration of twenty days allowed for perfecting the appeal.</p>

<p>JUDGMENTS AND DECREES</p> <p>To Set Aside Judgment for Want of Service Evidence must be Conclusive.</p> <p>When the defendant in an action seeks to avoid a judgment taken before a justice of the peace against him, in all respects regular as shown by the record, for the reason that no service of summons was served upon him, it must conclusively appear that no service was made.</p>

<p>PARTIES</p> <p>Defect of Parties can not be Determined by Examination of Bond Attached- to Petition.</p> <p>Exhibits attached to a petition are not a part thereof; hence, when the petition states a good cause of action, the court can not, upon demurrer, examine a bond attached as an-exhibit, to determine whether there is a defect of parties defendant.</p>

<p>ASSIGNMENTS</p> <p>1. Intent Determining Factor in Assignment Pro tanto of Money in Order.</p> <p>In determining whether an order, given by a contractor for the payment of a certain sum out of the amount due or to become due to him upon his contract is an assignment pro tanto of money in the hands of the drawee, the intent of the drawer and drawee is the determining factor.</p> <p>2. Presumption from Order Given by Contractor for Labor and Materials.</p> <p>When orders are given by a contractor to parties who have furnished labor and materials for the performance of the particular work which he was under contract to perform for the drawee, there is a strong presumption that the orders so given were understood to be payable only to the extent that there were funds in the hands of the drawee which would become due the drawer.</p> <p>3. Fund Consisting of Amounts Due upon Severa! Distinct Contracts Does not Affect Assignment Pro tanto.</p> <p>The fact that the fund, from which a contractor directs the drawee to pay certain orders, consists of the amount due him upon four several and distinct contracts will not prevent such orders being regarded as assignments pro tanto when such was the evident intention of the parties.</p>

<p>ATTORNEY AND CLIENT — COSTS</p> <p>Costs and Attorney’s Fees not Taxable Against Defendant Railroad in Unsuccessful Action for Occupation of Land.</p> <p>When an action is brought in the probate court under See. 6448 R. S. (Sec. 11084 G. C.), for the value of land used and occupied by a railroad company, and results in a judgment for the defendant company, attorney’s fees and the costs in the case can not be taxed against the defendant company under Sec. 6438 R. S. (See. 11066 G. C.)</p>

<p>CRIMINAL LAW</p> <p>Leave to File Petition in Error in Common Pleas not Necessary.</p> <p>It is not necessary to obtain leave to file petition in error in common pleas court, to review the judgment of a police court in a criminal case.</p>

<p>MALICIOUS PROSECUTION</p> <p>Malice not to be Inferred from Want of Probable Cause In Malicious Prosecution.</p> <p>In every action for malicious prosecution, malice is a necessary element to be proven as a fact and does not necessarily follow from the want of probable cause, though it may be inferred from it.</p>

<p>SPECIFIC PERFORMANCE</p> <p>Circumstances Surrounding Parties to be Considered in Action for Specific Performance against Parents.</p> <p>In an action brought against a parent upon an alleged promise to convey certain real estate to a child in consideration of the child’s promise to live upon and improve the same, there being direct conflict in the evidence as to the making of the alleged promise, the facts and circumstances surrounding the parties, including the apparent scheme of the parent for parcelling his real estate among his various children, will be considered.</p>

<p>NEW TRIAL</p> <p>Date for Filing Motion for New Trial.</p> <p>The time within which a motion for a new trial may be filed, dates from the rendition of the verdict and not from the overruling of a motion for judgment upon special findings of the jury.</p>

<p>ACKNOWLEDGMENT — EVIDENCE</p> <p>1. Certificate of Acknowledgment Entitled to Great Weight.</p> <p>The certificate of an officer that he has taken the acknowledgment of a grantor is entitled to great weight; the burden.of proof cast upon those disputing the acknowledgment is not sustained by the evidence of the grantor and her husband that she did not acknowledge the instrument.</p> <p>2. Misdescription of Officer Taking Acknowledgment not Material.</p> <p>The fact that a certificate of acknowledgment describes the officer before whom an acknowledgment was taken as “a notary public” when as a matter of fact he was a justice of the peace and signed as such, does not invalidate the acknowledgment.</p>

<p>CORPORATIONS — PROCESS</p> <p>Service Outside County can not be Made upon Secretary of Ohio Corporation.</p> <p>Service of summons can not be made upon an Ohio corporation in a county, other than that in which its principal place of business is located, by serving the secretary of the corporation.</p>

<p>JUDGMENTS — NEGLIGENCE</p> <p>1. One of Two Innocent Parties that Must Suffer Loss.</p> <p>When one of two innocent parties must suffer loss, it is put upon the one who by his act or failure to act has enabled a third party to create the situation which must result in loss to one of them.</p> <p>2. Assignee of Judgment, Failing to Record Assignment until Judgment Creditor Proceeds to Collect Judgment, cannot Collect from Judgment Debtor.</p> <p>When the assignee of a judgment fails to give notice of such assignment, and does not record the assignment until the judgment creditor is in the process of collecting his judgment by having it set off against the Claim of the judgment debtor in a suit in another county, such assignee can not collect the judgment from the judgment debtor.</p>

<p>BUILDINGS — COVENANTS</p> <p>When Substantial Compliance, Coupled with Neglect to Object to Breach of Building Covenant Held Defense.</p> <p>When it appears that the plaintiff has had full knowledge of the facts and made no protest while the defendant was incurring expense in constructing a porch on his house in such a manner as to be a slight violation of a covenant not to build any part of the house nearer than thirty feet to the street line, and it also appears that other lot owners in the same allotment have violated the same covenant to the same, or a greater degree than the defendant, a court of equity will not enjoin the completion and maintenance of the porch.</p>

<p>CHATTEL MORTGAGES</p> <p>Mortgage Executed by Signing Correct Name Valid though Mortgagor is Known by Another Name.</p> <p>When the owner of personal property is known by different names, a chattel mortgage executed by her and signed by her With her correct name but with a slight variation in spelling, is, when recorded, notice to a subsequent mortgagee of the property, though the name signed is not the one by which she was commonly known.</p>

<p>OFFICERS</p> <p>Power Given to Head of Department to Remove Officer Includes Power to Reduce Rank.</p> <p>The power conferred by Sec. 1545-24 R. S. (Sec. 4379 G. C.), upon the head of a department of a municipal corporation to remove or suspend any officer or employe of that department, includes a' power to reduce in rank as it is the exercise of a power of the same inherent nature as the power granted.</p>

<p>FRAUD</p> <p>Burden upon Fiduciary to Show Fairness of Transaction.</p> <p>If it appear that a fiduciary or confidential relationship exists between the parties to a transaction, or if it be established by evidence that one of the parties possessed a power or influence over the other, or that one was of very weak mind by reason of sickness or mental decline, the burden of proof lies upon the party filling the position of active confidence or possessing the power or influence, as the case may be, to establish, beyond all reasonable doubt, the perfect fairness and honesty of the transaction.</p>

<p>CONSTITUTIONAL LAW — NUISANCE</p> <p>Law Requiring Consent of Nearby Resident to Building of Boarding Stable, Valid.</p> <p>A statute providing that before one can secure a license to build or operate a livery or boarding stable in a residence neighborhood in certain cities he must secure the written consent of the property owners and lessees within a distance of 300 feet from the proposed building, is not a delegation of legislative power and does not discriminate in favor of a certain class, but is a valid exercise of the police power and is constitutional.</p>

<p>LANDLORD AND TENANT</p> <p>Tenant May Lose Right to Avoid Forfeiture by Laches.</p> <p>When a tenant has acquiesced in a forfeiture of his lease for a period of three months, during which time portions of the premises h'ave been leased to other lessees and by them subleased, it is then too late to ask the aid of a court to avoid the forfeiture.</p>

<p>RESCISSION — VENDOR AND PURCHASER</p> <p>Vendee May Recover Purchase Money Paid Under Voidable Contract.</p> <p>When a vendor elects to rescind a contract which is voidable under the statute of frauds, the vendee may maintain an action to recover from the vendor any purchase money which he may have paid under the contract without alleging that he himself is ready and willing to perform.</p>

<p>MECHANIC’S LIENS — PRINCIPAL AND AGENT</p> <p>1. Presumption of Agency from Acts of Parties.</p> <p>An agency may be implied from the relationship and dealings of the parties; hence, when a son has permitted his father to have charge of certain property, collect rents, make repairs and alterations, without protest on his part, an agency to purchase materials for other repairs and alterations will he presumed.</p> <p>2. Mechanic’s Lien Valid Though Affidavit does not State True Owner of Property.</p> <p>An affidavit for a mechanic’s lien which states that the ownership of the property is in someone other than the real owner, does not thereby make the lien invalid when the property is properly described.</p>

<p>SALES</p> <p>Contract of Sale Repudiated by Billing at Advance in Price.</p> <p>When a vendor ships goods to a vendee and bills the goods so shipped at a price in excess of that specified in. the contract of sale, and refuses to correct the invoice or recognize the existence of a contract to sell at the price actually agreed upon, he thereby repudiates the contract made, and if the vendee refuses to accept the goods there can be no recovery even at the agreed price.</p>

<p>CORPORATIONS</p> <p>Director of Corporation Chargeable with Notice as to Financial Condition of Company and Its Business.</p> <p>A director of a corporation is conclusively presumed to have knowledge of the financial condition of the company and of the existence and non-performance of a contract of the company which he has guaranteed; he, therefore, can not defend an action upon such guaranty, upon the grounds that he was not given notice of default on the part of the company until it had become insolvent, or that the time for the performance of the contract had been extended without his knowledge or consent.</p>

<p>CONSTITUTIONAL LAW</p> <p>Law to Compensate an Individual Not Law of General Nature.</p> <p>Laws passed iu the fulfillment of an obligation of the state or any of its agencies to an individual with respect to past transactions, are not laws of a general nature controlled by Art. 2, Sec. 26 of the Constitution of Ohio.</p>

<p>FALSE PRETENSES</p> <p>1. Payer’s Being Engaged' in Unlawful Business not Defense to Prosecution of Payer for Obtaining Money Under False Pretenses.</p> <p>That the person from whom money was obtained by false pretenses was engaged in an unlawful business and that the money paid was for the purpose of securing immunity from police prosecution, is no defense to a criminal prosecution for obtaining the money by the false pretense that the defendant was an officer of the law.</p> <p>2. That Representations as to Present Fact is Coupled with One as to Future Performance Immaterial.</p> <p>In a criminal prosecution for obtaining money by false pretenses it is immaterial that the false representation as to an existing fact is coupled with a representation that the one making the representation will perform some service in the future.</p> <p>3. Evidence of Like Representations to Others not Admissible in Prosecution for Obtaining Money under False Pretenses.</p> <p>Evidence that one accused of obtaining money by false representations, had made like representations to other persons from whom he had attempted to obtain money, is not admissible.</p>

<p>WILLS</p> <p>Admissibility of Declarations of Testator.</p> <p>Declarations of a testator, made before or after the making of the will, if made near such time, are admissible to prove the state of mind of the testator, but not to prove the fact of undue influence.</p>

<p>CARRIERS — SALES</p> <p>Goods Forwarded under Privilege of Purchase Lost in Transit.</p> <p>When goods are sent to a prospective purchaser from which he is to select such as he desires to purchase and return the others to the owner upon demand, and the prospective purchaser elects not to keep any of them, apd after waiting a reasonable length of time ships the goods to the owner without demand having been made, he is not liable for the loss of the goods in transit.</p>

<p>WILLS</p> <p>1. Property Devised to Widow not “Undisposed” of by Her Rejection of Will but Inherited by Her as Next of Kin.</p> <p>When a testator has, by two different items in a will, made specific bequests to his widow, who is also his next of kin, and by a later item gives her an interest in all the residue of his estate not already disposed of by the will; upon the widow’s election not to take under the will, the property specifically given to the widow by the first two items of the will is not thereby transferred to the class of property mentioned in the will as property not otherwise disposed of, but is to be treated as intestate property and as such inherited by the widow as next of kin.</p> <p>2. Widow not Entitled to Distributive Share in Proceeds of Real Estate Converted into Personalty in Violation of Terms of Will.</p> <p>A widow who has rejected the provisions made for her in her husband’s will and elected to take under the law, is not entitled to a distributive share in the proceeds of real estate, which by the terms of the will was not to be sold until her death, but which, upon order of the probate court has been sold before that time.</p>

<p>VENDOS. AND PUECHASEK</p> <p>' Joint Purchaser Loaning Purchase Money to Copurchaser Has no Lien on that Share.</p> <p>While it is true that the payment of an excess of purchase money in a joint purchase is sufficient to create an equity in the nature of a trust in favor of the paying purchaser against the other share, such is not the case when the purchaser does not pay the purchase money but loans it to the joint purchaser to be used by him in paying for his share.</p>

<p>LANDLORD AND TENANT</p> <p>1. Liability for Rent Where Premises Become Uninhabitable through Natural Decay.</p> <p>Section 4113 R. S. (Sec. 8521 G. C.), is for the relief of ignorant and indifferent lessees who fail to protect themselves through a special provision in their lease, and does not relieve the lessee from liability for rent, when the premises become uninhabitable through gradual decay resulting from the ordinary action of natural or human agencies.</p> <p>2. Charging Repudiation of Contract on Refusal to Perform not Erroneous.</p> <p>It is not error to charge the jury that defendant had repudiated his contract, when he had refused to perform his contract and claimed that through the operation of law the contract was no longer in effect.</p>

<p>BRIDGES — COURTS—NAVIGABLE WATERS</p> <p>1. Hand Draw Bridge over Navigable Stream not Reasonable.</p> <p>A draw bridge which is operated by hand and which requires the efforts of thirty men to move it, resulting in long delays for vessels seeking to pass it, is not a compliance with a decree ordering the construction of a “suitable” draw bridge at that point.</p> <p>2. Jurisdiction of State Courts over Navigable Stream.</p> <p>Until the United States assumes jurisdiction over navigable waters wholly within a state, the state has jurisdiction over them and the state courts may make and enforce decrees regarding the use of them.</p> <p>3. Suitability of Draw Bridge Judicial Question.</p> <p>The fact that plans for a draw bridge were approved by the Secretary of War and by the state board of public works, does not prevent the court from requiring a different motive power from that supplied, when the plans submitted and approved did not disclose the motive power for moving the draw.</p>

<p>MASTER AND SERVANT — OFFICERS</p> <p>No Extra Compensation Recoverable when Employment Is at Yearly Salary.</p> <p>In the absence of any express provision in the contract of employment, an employee, who is employed in a certain capacity at a yearly salary, can not maintain an action to recover extra compensation for time spent in excess of eight hours per day.</p>

<p>DESCENT AND DISTRIBUTION — WILLS</p> <p>1. Deceased Husband not Ancestor of Relict.</p> <p>Within the meaning of the statutes of descent, Secs. 8573 to 8577 G. C., inclusive, a deceased husband can not be the ancestor of his relict.</p> <p>2. Ancestral Property Descended to Deceased Husband, Devised to Relict Looses Ancestral' Quality.</p> <p>Property which came to a deceased husband of a relict as ancestral property by descent, devise or deed of gift, and is devised by him to his widow, ceases to be ancestral property in her hands, and if she should die intestate, such property would not pass under the provisions of Sec. 8573 G. C., to the blood of the original ancestor from whom the estate came.</p> <p>3. Next of Kin of Husband of Relict Devises cannot Contest Will of Latter. •</p> <p>When such relict of a deceased husband dies testate seized of property which was ancestral in her deceased husband, but came to her by devise from said husband, those who are of the blood of the husband and of the ancestor from whom the estate came and the next of Inn of the deceased husband have no such interest in the property, as entitles them to maintain an action to contest her said will.</p>

<p>ERROR</p> <p>Jury’s Finding on Evidence Sustained on Error.</p> <p>When the significance and meaning of a conversation regarding compensation in securing certain options, embodied in the testimony submitted to the jury, depends upon the emphases which was placed on certain words and particularly on the pronoun “I,” a reviewing court will give it a construction consistent with the finding of the jury.</p>

<p>GUARANTY</p> <p>1. Construction of Written Contract of Guaranty.</p> <p>The situation of the parties and the object sought to be accomplished are competent evidence to aid a court in construing a guaranty, but it is not permissible by the aid of such evidence to modify or alter the written contract entered into between the parties.</p> <p>2. Guaranty of Credit of $100 not Continuous.</p> <p>A request to “extend credit to the extent of $100 to my nephew I. B., for which I will stand responsible,” is not a continuing guaranty, but is limited to the first $100 worth of goods purchased.</p>

<p>GAME</p> <p>Game Laws do Not Apply to Tamed Animals.</p> <p>A statute, making it unlawful to have in one’s possession certain animals, was intended to protect wild game animals, and does not apply to a case where the animals had been reclaimed and tamed and were in one’s possession at the date the law was enacted.</p>

<p>TAXES</p> <p>Sewer District Tax Legal.</p> <p>Taxes may be levied at a uniform rate upon territory not constituting a political district or subdivision of a political district; hence, taxes for sewer purposes levied uniformly upon a sewer district are lawful.</p>

<p>BANKS AND BANKING — PRINCIPAL AND AGENT</p> <p>Liability of Bank to Insurance Company for Amount of Premium Checks Drawn on Other Banks Cashed for Agent.</p> <p>Authority of an insurance broker to collect premiums from policy holders, raises no presumption of authority on his part to endorse and collect checks, and a bank which cashes them upon the endorsement of the agent and then collects them from the banks upon which they were drawn is liable to the principal as for conversion of the checks.</p>

<p>LANDLORD AND TENANT</p> <p>Clause In Lease Regarding Delay in Giving Possession Construed as Postponement, not Limitation on Damages Recoverable.</p> <p>When a clause in a lease provides that the lessor shall not be liable in damages for any failure on its part to complete the building leased in time for occupancy under the terms of the lease, but will endeavor to have it completed at that time and in case of failure so to do, the lessee shall be entitled to a proportionate rebate of rent, such clause postpones the date when the lease becomes effective, in case the building is not completed, and is not a mere limitation of damages on the part of lessor for nondelivery, and gives lessee no right to repudiate the contract of lease because the premises are not ready for occupancy.</p>

<p>COSTS</p> <p>Right to Have Costs Retaxed Lost by Laches.</p> <p>A motion to have costs retaxed should be made within a reasonable time after the judgment awarding them, and one who has waited four years before making such a motion has been guilty of laches.</p>

<p>DIVORCE AND ALIMONY — INSANE PERSONS</p> <p>Trustee Should be Appointed for Insane Party.</p> <p>When an insane party is sued for divorce the court should appoint a trustee to defend the suit, as in other cases.</p>

<p>APPEALS — MORTGAGES</p> <p>■ . Personal Judgment on Mortgage Note not Appealable though Joined in Foreclosure.</p> <p>When an action is brought to foreclose a mortgage and personal judgment is asked upon the mortgage note, the union of legal and equitable causes of action does not prevent the submission to a jury of the issues raised as to the note, and the case on the note is not appealable.</p> <p>2. Equitable Defense to Note Not Appealable.</p> <p>An answer setting up an equitable defense to an action on a note does not make the case appealable when the answer, if sustained, would not extinguish plaintiff’s demand but only result in allowing certain credits.</p>

<p>EXECUTORS AND ADMINISTRATORS — GIFTS</p> <p>Deed of Gift from Widow to Brother of Intestate, Acting as Administrator, Scrutinized.</p> <p>Although as to the title to real estate, no legal fiduciary relationship exists between the administrator of an estate and the widow of his intestate, a de facto relationship of that character may exist; hence where the administrator is the brother of the intestate and accustomed to doing business and the widow is illiterate and not accustomed to doing business, a deed of gift from the latter to the former could only be made after full disclosure to the donor of her rights in the property, and when such conveyance is sought to be set aside it is the duty of the court to scrutinize jealously the conduct of the donee and the comprehension of the donor in respect to the entire transaction.</p>

<p>CORPORATIONS</p> <p>Stockholder Primarily must Redress Wrongs Through the Corporation.</p> <p>A stockholder in a corporation can not maintain an action to redress wrongs done the corporation, whereby he has suffered in his stockholding interest, unless he alleges an effort to secure redress through the corporation, its officers, assignee or receiver, and neglect or refusal on their part to act.</p>

<p>BROKERS — SALES</p> <p>Tender of Stock is Necessary before Action for Breach of Contract of Sale by Broker.</p> <p>When a stock broker contracts with another broker to sell him certain stock at a certain price, delivery to be made at any time within ninety days, and then makes an assignment for the benefit of creditors without having any of the stock in question with which to make tender, in the absence of any rules of the stock exchange governing the transaction the assignee has no right as against the other broker for the difference between the contract price of the stock and the price at which he purchased it in the open market within the ninety days.</p>

<p>CONVICTS — MUNICIPAL CQEPOEATIONS</p> <p>Municipality not Liable for Injury to One at Work Under Prison Sentence.</p>

<p>TRUSTS AND TRUSTEES</p> <p>Evidence to Engraft Trust on Deed Absolute, Must be Clear and Convincing.</p> <p>The evidence necessary to engraft a trust on lands conveyed by deed absolute must be clear and convincing and where the plaintiff has allowed eight years to elapse before seeking to establish the trust, the evidence of one prejudiced witness as to declarations of the original grantee, since deceased, will not be sufficient to meet that requirement.</p>

<p>SERVICE UPON A GARNISHEE</p> <p>Nonresident Defendant not Subject to Personal Service.</p> <p>A civil action against a garnishee under favor of Sec. 5551 R. S. (Sec. 11851 G. C.), brought for the purpose of reaching credits in the hands of the garnishee, is not an action for the recovery of specific property which would authorize personal service upon a nonresident defendant under Sec. 5049 and 5045 R. S. (Secs. 11292, 11297 G. C.)</p>

<p>INSURANCE</p> <p>1. Notice of Loss to Soliciting Insurance Agent not Notice to Company.</p> <p>Section 3644 R. S. (Sec. 9586 G. C.), making the agent who solicits insurance the agent of the company, does not make him the agent of the company for all purposes, but only those connected with the negotiation of the contract, and notice of loss given to such agent will not constitute notice to the company.</p> <p>2. Question of Giving Notice of Loss to Insurance Company for Jury.</p> <p>When an insurance policy provides that immediate notice of loss shall be given the company, it is a question for the jury to determine, whether, under all the circumstances in the case, the insured has complied with that requirement in giving notice of a loss.</p> <p>3. Parol Evidence of Local Custom as to Notice of Loss not Admissible to Vary Policy Requirements.</p> <p>In determining whether or not the insured has complied with the condition of a policy that immediate notice of loss be given the company, evidence of a local custom by which notice of loss is given to the agent soliciting the insurance, is not admissible.</p>

<p>PLEADING — PRINCIPAL AND AGENT — TRIAL</p> <p>1. Action upon Express Contract and upon Quantum Meruit not Inconsistent.</p> <p>An action upon an express contract for real estate commissions and a second cause of action set forth in the same petition, based upon the same transaction and in which recovery upon a quantum meruit is sought, are not inconsistent and the court may, in its discretion, overrule a motion to compel plaintiff to elect between them.</p> <p>2. Dual Agency as Defense Specially Pleaded.</p> <p>Dual agency as a defense can not be shown under a general denial, but must be specially pleaded, and when so pleaded the burden of proof is upon the defendant to establish it.</p> <p>3. Instructions Directing Jury to Use Sense of Fair Play, Held Misleading.</p> <p>A charge to the jury which directs them to use their sense of fairness, fairplay and good conscience, and not be influenced by anything, but a desire to do what is right and fair between the parties, is misleading, when no reference is made to the law and facts in the case.</p>

<p>FORTUNE TELLING</p> <p>Pretending to be Spirit Medium not Violation of Law, against Fortune Telling.</p> <p>A representation that the accused is a spirit medium, made to one person only, does not constitute a violation of Sec. 7017-4 R. S. (Sec. 13145 G-. C.), making it a misdemeanor for one to represent himself to be an astrologer, a fortune teller, a clairvoyant or a palmister.</p>

<p>GOOD WILL — INJUNCTION</p> <p>Solicitation of Old Customers by Vendor of Good-Will.</p> <p>The vendor of the good-will of a business may be enjoined from soliciting the trade of known customers of the old firm, or from improperly using his knowledge of the old business for the purpose of attracting customers to his new business, notwithstanding he retained the right to engage in such new business.</p>

<p>ELECTIONS — MUNICIPAL CORPORATIONS</p> <p>1. Finding in Election Contest Proceeding Final.</p> <p>A proceeding to contest an election, under Sec. 572-573 R. S. (Secs. 5162, 5163 G. C.), being a special proceeding before a special tribunal, the finding of that tribunal is final and not reviewable on error.</p> <p>2. Acceptance by Ordinance Pre-requisite to Annexation.</p> <p>The annexation by county commissioners of part of a village to an adjacent city, upon application of the city council and the written request of two-thirds of the voters of the territory to be annexed, is not completed until the city council has, by ordinance or resolution, accepted the annexation as provided in Sec. 1591 R. S. (Sec. 3553 G. C.)</p>

<p>EVIDENCE</p> <p>Declarations of Deceased Maker of Note as to Relations with Wife, Payee, not Admissible.</p> <p>In an action upon a promissory note brought by a widow against the administrator of her deceased husband’s estate, in which the only issues are as to the execution of, and consideration for, the note sued upon, declarations of the deceased husband made to third parties in the absence of the wife, as to the relations existing between himself and his wife at that time, are not competent evidence.</p>

<p>STREET RAILWAYS</p> <p>Street Railway Compelled to Comply with Grant as to Grade.</p> <p>A street railway company may be compelled in a proper action to comply with the terms of its grant, notwithstanding there is an injunctoin in force against compliance with such terms, and the public interest does not require it.</p>

<p>DAMAGES — NEGLIGENCE</p> <p>Damages Recoverable by Trespasser for Wilful Injuries Causing Injury.</p> <p>Verdict assessing damages for injuries to a boy stealing a ride on a delivery wagon will not be set aside when it appears that the injuries resulted from fear induced by the driver’s striking him in the face with a whip.</p>

<p>BILLS OF EXCEPTION — MANDAMUS</p> <p>Bill of Exceptions may be Effected by Mandamus.</p> <p>Mandamus is the remedy to compel a trial court to function in settling and signing a bill of exceptions.</p>