Volume 6 — Ohio Circuit Court Reports, New Series

<p>REMOVAL OF GOODS WITHOUT CONSENT ENDORSED ON POLICY.</p> <p>Fire Insurance — Removal of Goods Without Consent — Renders Policy Void — Promise of Agent to Make the Proper Entries Without Avail.</p> <p>Where goods insured “while located and contained as described herein, and not otherwise” under a standard form policy, are removed to another location without the written consent of the company to such removal indorsed upon the policy, there can be no recovery under the policy for loss by fire sustained after such removal, notwithstanding the insured notified the agent of the company of .the proposed removal, and the agent said he would attend to the matter and see that the proper entries were made so that the insurance would be preserved. Ohio Farmers Insurance Go. v. Burget, 17 C.'C., — , distinguished.</p>

<p>Error to the Court of Common Pleas of Portage County.</p>

<p>TESTIMONY OF ATTORNEY AS TO COMMUNICATION BY CLIENT.</p> <p>Attorney and Client — When Communication by Client to Attorney— Is Admissible as Evidence — Election as to Liability for Debt — Ms-Between Principal and Agent — Charge of Court — Repetition of Special Charge in General Charge.</p> <p>1. The provision of Section 5241 that an attorney shall not testify in certain respects “concerning a communication made to him by his client in that relation, or his advice to .his client,” is applicable only where the communication is of such a character that it would not have been made except for that relation.</p> <p>2. The appropriation-, otherwise than by attachment or execution, of furniture or other property found in demised premises, in part satisfaction of a claim for unpaid rent, does not amount to añ election to hold the tenant rather than his principal for the balance of the claim, nor does the rendering of the account to the agent, or the charging of. him with it upon the hooks, of the landlord amount to such an election.</p> <p>3. The repetition in the general charge to the jury of a special charge properly given either before or after argument, is not necessarily erroneous. Rupp v. Schaffer, 21 C. C., 643, disti-n- ■ guished.</p>

<p>Heard on error.</p>

<p>NATURALIZATION.</p> <p>Office and Officer — Jurisdiction—As to Qualifications for Office of Councilman — Naturalisation—Declaration of Intention — The Required Oath — Quo Warranto.</p> <p>1. A court has jurisdiction to determine the right of a councilman to hold the office to which he has been elected.</p> <p>2. One foreign born, who appeared before a court of record prior to reaching the age of twenty-one years and made oath that it was his hona fide intention to become a citizen of the United States, and to renounce forever all allegience or fidelity to any foreign prince, potentate, state or sovereign whatsoever, and particularly to Victoria, Queen of Great Britain, whose subject he then was, did not thereby become a citizen of the United States or entitled to the privileges of an elector upon attaining his majority; and where such an one has been elected to the office of councilman and has taken his seat, a judgment of ouster will be entered against him.</p>

<p>QUESTIONS ARISING ON TRIAL FOR. EMBEZZLEMENT.</p> <p>Criminal Laio — Embezzlement—Swearing of Jury on their Voir Dire —Jury not Under Duress, When — Embezzlement Complete, When —Repeal of Statute before Embezzlement is Complete.</p> <p>1. Where, in a trial' for embezzlement, the prosecuting attorney has upon request furnished a bill of particulars- of the several transactions which the state proposes to prove to maintain its case, the evidence should be restricted to such transactions.</p> <p>2. Jurymen need not be sworn upon their voir dire in a criminal case until challenged for cause.</p> <p>3. The mere fact that the jury is required' to consider a case for forty-eight hours, including a part of Thanksgiving day, does not show duress; and the permitting of the jury to exercise upon the street during such time, in the custody of the sheriff, is not an irregularity requiring a reversal of the judgment.</p> <p>4. The crime -of embezzlement is not complete until the agent or servant, who has lawfully received different sums at different times, finally refuses or is unable to account for the aggregate amount; .and it is not error to overrule a motion to compel the state to elect upon which item it will rely for conviction, where the indictment charges in one count the embezzlement of the aggregate sum on a particular dav.</p> <p>5. Where ahe statute defining embezzlement is- repealed during th-e period when the amounts- were received, and a new statute is enacted, it is error to admit evidence of the alleged embezzlement of the sums- received p-rio-r to the enactment of the new statute; and where confessions of the accused are so lacking as to time and amount as to render it impossible to determine whether reference is made to sums received before- or after the change in the statute, the confessions are incompetent.</p>

<p>MOTION FOR NEW TRIAL AND APPEAL IN ATTACHMENT.</p> <p>Attachment — Motion for a New Trial — Does not Extend Time for Filing Bill of Exceptions — Appeal of Motion to Dissolve Attachment — Constitutionality of Section 6494.</p> <p>1. There is no provision of law authorizing the filing of a motion for a new .trial, after a ruling on a motion to dissolve an attachment; hence the filing of such motion for a new trial is a nullity and does not operate to extend the time within which a bill of exceptions to such ruling may be file’d.</p> <p>2. That part of Section 6494, Revised1 Statutes, which authorizes the defendant in attachment to appeal his motion to dissolve the attachment .to the common pleas court, when the same is overruled by the justice of the peace, is no.t void because the right of appeal is not given the plaintiff in attachment, when such motion is sustained by the justice.</p>

<p>CONVEYANCE OF GARBAGE THROUGH THE STREETS.</p> <p>Garbage — Ordinance Defining — And Delating to Conveyance of Through the ¡streets — Forfeiture of Articles Condemned — Police Power— Constitutional Law.</p> <p>A municipal ordinance defining garbage as in this case, and forbidding ifts removal tbrougb the streets by others than the city contractor, or the placing of it upon private property, contravenes ■the Fourteenth Amendment of the Constitution of the United States, and is void.</p>

<p>Error to tbe court of common- pleas.</p>

<p>COVENANTS OF WARRANTY.</p> <p>Deed — Covenants of Warranty — Refer to the Right and Title of Grantor — And not to the Lands Described — Incumbrances—Unpaid Taxes.</p> <p>A covenant of warranty is limited to the interest of the grantor in the land conveyed at the time of the conveyance, and if the property is burdened! with an incumbrance, or with unpaid .taxes which become a lien by operation -of 1-aw, the grantee takes it subject thereto.</p>

<p>APPLICATION OF THE FELLOW-SERVANT ACT.</p> <p>Negligence — The Fellow-Servant Buie — Applied as Between Bricklayers and a Common Laborer — Uncertainty as to Whose Act Caused the Injury.</p> <p>1. Bricklayers are fellow-servants -of a common laborer over wkom they have no further control than to signal when he shall send ’ them brick or mortar.</p> <p>2. But were this not true, a common laborer could- not recover from h-i-s employer for an injury resulting from being struck ’ by a brick which fell from a high -scaffold-, unless it should- appear that th-e brick was dislodged by a bricklayer, and not by his helper.</p>

<p>Appeal from Common Pleas Court of Mahoning County.</p>

<p>QUESTIONS IN A SUIT TO CONTEST A WILL.</p> <p>Wills — Charge of Court — Belief of Testatrix in Spiritualism — Evidence — Where Incompetent hut not Prejudicial.</p> <p>1. In a suit to contest a will, it is not error to refuse to give a special charge to the effect that the fact of the testatrix’s belief in spiritualism does not afford ground for setting the will aside, where the charge as requested does not embrace all the facts brought out at the trial concerning the belief .and practice of spiritualism by the testatrix.</p> <p>2. An exception to the admission of evidence will not avail on review, where it relates to the mode or order of proof rather than to the substance, and the plaintiff in error was not prejudiced thereby.</p> <p>3. Declarations of a witness which tend to show the state of mind of the witness, andi which afford circumstantial evidence of her purpose and design in treating the testatrix as she did in her last illness with apparent kindness and affection, are admissible.</p>

<p>REFORMATION OF A PROMISSORY NOTE.</p> <p>Reformation of Instruments — Promissory Rote — Evidence as to Mistake in Date of Maturity.</p> <p>In a suit for reformation of a promissory note, where it is claimed wrong dates for the maturity of different installments have been inserted, it is not necessary to show the mistake by other evidence than that afforded by the note itself, if an inspection of the note establishes in a clear and convincing manner that a mistake has been made.</p>

<p>Error to Court of Common Pleas of Geauga County.</p>

<p>LIABILITY FOR INJURY AS BETWEEN PRINCIPAL AND INTERVENING CONTRACTOR.</p> <p>Corporations — Use of Second Corporation as a Subterfuge — Liability as Between Principal and Intervening Contractor — Evidence— Conduct of Counsel in Argiment to Jury — Excessive Verdict— Remittitur — Discretion of Court.</p> <p>1. Where the evidence supports an allegation of the petition to the effect that the company executing the contract was in fact a mere tool of another company which was the principal contractor, and both companies are joined as defendants in a suit.for damages on account- of an injury sustained during the progress of the work, the principal company can not escape liability by reason of the second company being an independent contractor, and evidence against the principal company is competent.</p> <p>2. In such a case the second company against whom a verdict was returned, can- not complain of the introduction of testimony the ■tendency of which was- to place the responsibility for the accident upon the principal company.</p> <p>3. The conduct of counsel for the plaintiff in his argument to the jury does not constitute prejudicial error, where it appears that what counsel said, taken in connection with what the court said to him in the presence of the jury, could not have prejudiced the jury in his favor, but was rather calculated to prejudice the jury -against him.</p> <p>4. Where it is not certain that the court would have sustained' the motion for a new trial but for the remittitur which was allowed, the case on review comes within the rule that where the damages assessed are excessive, but not in a degree to necessarily imply the influence of passion or prejudice in their finding, the court in.the exercise of a sound discretion may make the remittitur of the excess the condition of refusing to grant a new trial.</p>

<p>Error to Fairfield Common Pleas Court.</p>

<p>ASSIGNMENTS OF UNEARNED WAGES.</p> <p>Executory Contracts — Transfer of Title to the Thing Sold — Assignment of Unearned Wages — Under Existing Employment — Homestead Exemption.</p> <p>An assignment of wages or salary to be earned' under an existing employment, made in good faith and for a valuable consideration, is valid where the relation between the employe and his employer is such that the employe may reasonably be expected .to earn the wages covered by the contract, and against such a contract a claim for homestead exemption can not prevail.</p>

<p>Error to Hamilton Common Pleas Court.</p>

<p>FORGERY OF WILL.</p> <p>Wills — Contest of — Executor Need not Necessarily he a Party to— Testator's Declarations of Intention — Disputed Will Competent Evidence, When — Other Forged Wills or Papers Competent for Purpose of — Where Will is Clearly a Forgery — Judgment will not he Reversed for Errors — Charge of Court.</p> <p>1. A defect of parties does not necessarily arise in a will contest from failure to make the executor or administrator a party thereto.</p> <p>2. The legal presumption that a will once known to exist and to ■ have been in the possession of the testator, but which can not be found after his death, was- destroyed by the testator -with the intention of revoking it, may be eiher fortified or weakened by evidence as to declarations by the testator subsequent to the making of the w.iíl.</p> <p>3. Where the ‘Controlling issue is as to whether the alleged wilí is a forgery or genuine, any competent evidence tending to prove either fact is admissible; and to this end it is competent to introduce the disputed will in evidence for comparison with other written documents in evidence which have been proved to be - genuine, or to introduce forged papers where such papers will tend to show the*evil puipose of the parties who'may 'have, forged the will in suit.</p> <p>4. Where in a suit to contest a will the evidence conclusively shows that the alleged will is a forgery, a verdict and judgment to that effect will not be set aside by a reviewing court for errors at the trial or in the charge of the jury.</p>

<p>Appeal by plaintiff.</p>

<p>COUNTY COMMISSIONERS AND GRADE CROSSINGS.</p> <p>Oounty Commissioners — Powers of, in the Elimination of Grade Grossings — 'Limited to Existing Grossings — Township Trustees■ — • Highways — Injunction.</p> <p>1. The power of county commissioners with reference to> the elimination of dangerous railway crossings over highways is limited to existing crossings, and can not be exercised with reference to a proposed crossing over a railway which has not yet been constructed.</p> <p>2. Neither does the power to change or alter the course of a highway, and to vacate a portion thereof for the purpose of doing ¡away with a crossing at grade, permit the commissioners to also change the course and vacate a portion of an adjacent highway intersected by the railway by a crossing not at grade.</p> <p>3. Owners of lands abutting upon that portion of a highway which it is proposed to vacate or change the course of, may enjoin such change. where the injury which they will suffer thereby is different from or in excess of that which will be suffered by the general public.</p> <p>4. The authority of township trustees is not repealed or abridged with reference to crossings over railways by the later act of April 27, 1893, conferring power upon county commissioners “to provide for the abolition of dangerous grade crossings.”</p>

<p>THE DUTY TO PRESERVE NISI PRIUS TRIALS FROM ERROR..</p> <p>Reviewing Courts — And Nisi Prius Trials — Duty of Counsel — Playing for Error — In the Event a Reversal is Desired.</p> <p>1. The forum of a reviewing court is noit; a place where, for the first time, a point which has not been deemed of essence at the nisi prius trial, and Which has not been seriously pressed to the attention of the court, is to be brought to the front for the mere technical purpose of a securing a reversal of a judgment which the reviewing court feels substantially just and correct.</p> <p>2. It is the professional duty of counsel to endeavor themselves and assist the trial court in preserving the nisi prius trial from error.</p>

<p>THE MALT LIQUOR. KNOWN AS “SWANKEY” AN INTOXICATING LIQUOR..</p> <p>Local Option Law — Constitutionality .of Beal Act — Jurisdiction of Mayor of Municipality — Keeping Place and Belling Distinct Offenses — BwamJoey ■ an Intoxicating Liquor.</p> <p>1. The mayor of the city of Youngstown has jurisdiction to hear and finally determine misdemeanors notwithstanding the act of April 26th 1904 (97 O. L., 623), where .no imprisonment is part of the penalty, and of such character is a charge under Section 4364-20« for the first offense.</p> <p>2. The trial court having determined that a malt liquor is intoxicating, the judgment of such court will not he reversed unless such finding and judgment is manifestly against the weight of the evidence; • and in the case of a malt liquor known as 'Swankey it floes not so manifestly appear, but on the contrary it clearly appears in this ease, -that such malt liquor is an intoxicating liquor under the statute.</p>

<p>DETACHING FARM LANDS FROM CITIES AND VILLAGES.</p> <p>Constitutional Law — Unplatted Farm Lands — Act Detaching Them from Cities and Tillages — Does not Confer Legislative Power Upon the Judiciary — Local Government — Words and Phrases— Discretion.</p> <p>1. The act of April 23, 1902 (95 O. L., 259), providing f.or detaching unplatted farm lands from cities and incorporated villages, and for attaching them to adjacent townships, is -not in conflict with any provision of the Constitution of the state of Ohio.</p> <p>2. This act does not confer legislative powers upon the judiciary, nor does it impair the system of local self-government guaranteed by ■the Constitution.</p> <p>3. The phrase “in. his discretion” contained in said act, refers to the judicial discretion of the court, and not to the legislative discretion.</p>

<p>ALLOWANCE OF ATTORNEYS’ FEES AND EXPENSES IN APPROPRIATION PROCEEDINGS.</p> <p>Constitutional Law — Sections 6434 and, 6435 — Relating to Condemnation Proceedings Abandoned After Verdict — Attorneys’ Fees and Expenses to Land Owner — Corporation Estopped — From Denying Validity of the Aot in Part — Authority of Probate Court to Impannel Jury — Prosecution of Error — Legislature may Determine what Shall be Regarded as Costs — Amendments of Acts — Evidence.</p> <p>1. Where a corporation abandons proceedings for the appropriation of .property after verdict, the probate court is authorized to include in defendant’s expenses his reasonable attorney’s fees, and the judgment of that court in that behalf will not be disturbed unless for a manifest abuse of discretion.</p> <p>2. On motion by the defendant for judgment for attorneys’ fees and expenses, evidence may properly be introduced for the purpose of showing the character and extent of the services performed on behalf of the defendant.</p> <p>3. The Legislature had authority in extending to certain corporations the right of eminent domain, to burden this privilege with the condition that where the land owner is subjected to; the annoyance and expense of litigation as to the value of land desired by ■the corporation, he shall be made whole in the event of the refu-sial of the company to. take the land after its. value has been fixed.</p> <p>4. Moreover, a Corporation invoking the aid of the courts to acquire private property by appropriation, and seeking to avail itself of the special privileges conferred under the law of eminent domain, is estopped from questioning the constitutionality of such parts of the law as impose burdens upon it.</p> <p>5. Where the probate court has. jurisdiction to hear and determine any question of fact, it has full power to impannel a jury, if either of the parties to the proceeding is entitled to demand a jury.</p> <p>G. It is within the power of the Legislature, in providing for special proceedings, to fix and determine what shall be denominated as costs, and to authorize the court to fix the amount thereof.</p> <p>7. A special proceeding having been provided and the means and method pointed out by which error shall be prosecuted im condemnation proceedings, a reviewing court acquires no jurisdiction where such proceedings are brought under the general statute.</p> <p>8. A designated mode of prosecuting error to all judgments entered in pursuance of the provisions of an act will be construed to apply to a proceeding brought under an amended section thereof.</p>

<p>IMPLIED PROMISE TO PAY FOR SERVICES.</p> <p>Pleading — Not Defective for Failure to Aver Implied Promise to Pay for Services, When — Special Verdict — Judgment Granted Upon, When — Not Defective, When.</p> <p>1. A petition on an implied contract to pay the reasonable value of services rendered is not fatally. defective because it contains no averment of a promise to pay.</p> <p>2. A special verdict in such case finding that defendant by his conduct requested such services, and that plaintiff at the time expected defendant to pay him, and that defendant intended to become liable, sufficiently shows a contract.</p> <p>3. Such special verdict is not defective in failing to find the particular conduct from which the request is inferred', for that would be presenting the evidence and not the fact established by it.</p>

<p>ACTIONS ON PROMISSORY NOTES.</p> <p>Promissory note — Suit, Upon — Defense Against — Blanlc Endorsement of — Rule in Ohio as to Party in Interest — Pleading—Evidence— Sections 5086 and 4993.</p> <p>1. There is no warrant in the language of the Supreme Court in Brown v. Ginn for believing there has been a modification of the previous interpretation of the code, making it necessary that a suit on a promissory note be brought by the real party in interest.</p> <p>2. One who is not the owner is not the real party in interest, and the presumption of ownership arising from possession of the note ■endorsed in blank may be rebutted.</p> <p>3. No prejudice arises from the improper exclusion of evidence, where the fact which it was sought to prove was one which it was not necessary to prove.</p>

<p>Error to Guernsey Common Pleas Court.</p>

<p>CONTRIBUTORY NEGLIGENCE OF CHILDREN.</p> <p>Presumption — None Arises as to the Capacity of Children — From Five to Twelve Tears of Age — To Avoid Danger — Contributory Negligence — Charge of the Court.</p> <p>1. Where the defense of contributory negligence has been interposed in the case of a boy eleven years of age, injured by being struck by an electric car, it is error to charge the jury that “in the absence of evidence of greater intelligence and capacity -than is common to boys of his age, the law presumes that he is incapable of being charged with contributory negligence.” No presumption arises in suck, a matter, but the .question of the capacity of the boy to avoid danger under the circumstances of the case is one to be left entirely to the jury under proper instructions.</p> <p>2. It is the duty of a jury in considering a case of this kind to first determine the standard of conduct to which a child- is to be held, by giving due consideration to its age, mental and physical development and environment, and- then having fixed this standard, to measure that which the child- has actually done by this standard, and determine whether or not the child has come up to it, or has failed.</p>

<p>DEGREE OF CARE REQUIRED IN USING STREET.</p> <p>Charge of Court — How Applied by a Reviewing Court — Injury to Bicycle Rider — Care Required of — In Observing Obstructions in Street — Negligence.</p> <p>1: The charge to the jury will be applied by the reviewing court to the state of facts which, was shown to exist.</p> <p>2. The duty to use reasonable precautions for his own safety, when applied to one riding a bicycle upon an asphalt street, does not require him, as a matter of law, to keep a lookout for such particular obstructions in the street as are formed by loose paving blocks which have fallen from a wagon, and of the presence of which the rider has no knowledge.</p>

<p>PROVISIONS OF A WILL CONSTRUED.</p> <p>Wills — Technical Words and Words of Limitation — “Heirs”—'“Share” —“Residuum"—Clauses Cutting Down an Estate — Must he Clear and Unambiguous — Vested Remainder.</p> <p>The word “heirs” as used in the will under consideration is not a word of limitation; and it is manifest that ,tibe testator intended to dispose of a vested interest in the property devised, and the ambiguity found' in a subsequent item of the will can not be held to authorize a cutting down of the interest so conveyed.</p>

<p>This case comes before us upon petition in error. Some clays since we went through this record and read it very carefully, examined the arguments of counsel and authorities and came to the conclusion which I will now announce.</p>

<p>LOST OR. SPOLIATED WILLS.</p> <p>Wills■ — Burden of Proof — Where Lost, Spoliated or Destroyed — Evidence, Circumstantial and Direct — Presumption.</p> <p>1. The burden is on the proponents to satisfy the court that a “lost” will was in existence and unrevoked at the time of the death of the testator.</p> <p>2. The fact of the existence of the will unrevoked after the death of the testator can be established by presumption and circumstantial evidence as well as by direct evidence.</p> <p>3. The word “lost,” when used with reference to an alleged last will •and testament in a probate proceeding, has some of the significance of “spoliated” or “destroyed.”</p>

<p>In this case a petition in error was filed for the purpose of reversing the judgment of the court of common pleas in an action wherein Henry Rupp was plaintiff and the receivers of the railroad company were defendants, and which resulted in a verdict and judgment against the receivers of the railroad company. It was a personal injury case.</p>

<p>Appeal by plaintiff.</p>

<p>Appeal from Common Pleas Court of Guernsey County.</p>

<p>Tbe case of George P. Walton v. Calvin Ensign is a proceeding in error brought here, seeking to reverse the judgment of the court of common pleas. The parties here are as they were below. The plaintiff in error having been plaintiff below, and so of the defendant.</p>

<p>THE ISSUING OF STOCK AT LESS THAN PAR.</p> <p>Corporations — Sale of Stock at Less than Par — Permissible, When— Not Available to Promoters of New Enterprises — Nor to Give Special Terms to Those in Control.</p> <p>1. The legal propriety of a corporation issuing any of its stock at less than par, depends entirely upon the good faith of those participating in the transaction.</p> <p>2. While ordinarily a corporation is expected to 'receive the par value of the stoick issued by it, yet, where a corporation has become .embarrassed, for the purpose of saving its corporate life and prosecuting the ends for which it was organized, it may issue its stock for the best price it can secure therefor, as in the cases of Peter v. The Union Manufacturing Company et al, 56 O'. S., 181, and Nandley v. Stuts, 139 U. S., 417.</p> <p>3. The doctrine laid down in the above cases is not to be extended, to the organization, of a corporation or to the financing and flotation of new enterprises, and especially not to those of speculative character and problematic success.</p> <p>4. Neither will said doctrine be applied to permit those having the management and control in the organization and promotion of such enterprises to obtain any of the corporate securities on terms more favorable than those accorded to the other shareholders or offered to the public.</p>

<p>Heard on error.</p>

<p>SECONDARY LIABILITY OF SAVINGS AND LOAN COMPANY STOCKHOLDERS.</p> <p>Corporations — Action to Enforce Secondary Liability — And to Collect Unpaid Stock Subscriptions — Pleading and Proof — Irregularities in Organization — Notice as to Election of Directors — Majority of Board — Knowledge of Creditors as to Payment of Subscriptions —Individual Liability — Estoppel—Sections 3797, 3798, 3247 and 3256.</p> <p>1. A subscriber for stock in a savings and loan company can not avoid liability on his subscription, in an action brought by creditors of the company to collect unpaid stock subscriptions and to enforce secondary liability of stockholders, by showing that the company commenced doing business before its entire capital stock was subscribed and one-half of each subscription paid in as provided in Revised Statutes of Ohio, Section 3797; nor can he avoid such liability by showing that the incorporators of the company neglected to give notice of the meeting of stockholders for the election of directors, as required by Revised Statutes of Ohio, Section 3798, and that he had no notice thereof, and that a bare majority of the directors elected at such irregular meeting ever qualified and acted as such.</p> <p>2. A subscriber for such stock by the act of subscribing is estopped from setting up such irregularities as defenses to an action brought by creditors of the corporation for the collection of unpaid subscriptions to its stock.</p>

<p>Error to Lucas Common Pleas Court.</p>

<p>CONTRACTS FOR SCHOOL BUILDINGS.</p> <p>Bids and Bidding — Illegal Award of Contract by Board of Education — Specifications — Advertisement — Mandamus — Injunction — Section 3988.</p> <p>1. Where bids for public work received in response to advertisement are ignored, and a contract is awarded upon a bid based upon conditions not contained in tba original specifications and received subsequent to the time designated in the advert'i'Sementi, the award is wholly unauthorized and illegal, and upon application to a court of competent jurisdiction may be enjoined.</p> <p>2. Mandamus will not lie in such a case to compel the award of the contract to the lowest responsible bidder.</p>

<p>REQUIREMENTS AS TO CATTLE GUARDS.</p> <p>Negligence — ■Railways—Requirements as to Cattle Guards — Exception to the Statute — As Incorporated Therein hy the Supreme Court.</p> <p>In order to complete the exception written by the Supreme Court into the statute providing that cattle guards shall be built at all “crossings, road crossings, street crossings, and other crossings without any exception whatever,” it is necessary that there be present the three elements, necessity of .the public, necessity of the railroad company, and- necessity of its employes that such guards be omitted.</p>

<p>QUOTIENT VERDICTS AND REASONABLE DAMAGES FOR. PERSONAL INJURIES.</p> <p>Indeterminate Quotient Verdicts- — Negligence—Pleading—Evidence— Damages for Severe Personal Injury.</p> <p>1. Passion or prejudice on the part of a jury are not necessarily indicated by the rendition of a verdict of $9,250 in favor of a man thirty-five years of age, earning $2.65 a day, and injured as badly as in this case.</p> <p>2. While an indeterminate quotient verdict is utterly indefensible, a verdict will not be set aside for misconduct on the pant of the jury, where it does not appear that it was agreed by the jurors prior to its ascertainment that a verdict thus obtained should be binding upon them, or that there was a failure on the part-of any juror to give his individual untrammeled assent-to the amount of the verdict after its ascertainment and before its rendition.</p> <p>3. The finding of the jury upon the subject of negligence is warranted by the circumstances of this ease.</p> <p>4. An allegation that the plaintiff went between two- ears with the knowledge of and by order of the conductor of the train, and that while so situated the conductor negligently signalled the engineer to back the train, thereby directly causing the injuries complained of, sufficiently States a cause of action.</p>

<p>ACQUIESCENCE OF BENEFICIARY IN WRONGFUL APPLICATION OF TRUST FUND.</p> <p>Administrator — Application to Open Account of — Misapplication of Trust Fund — Acquiescence of Beneficiary.</p> <p>The acquiescence of.a beneficiary in a wrongful application of a trust fund by a trustee releases' the trustee as such and his sureties from liability to the beneficiary.</p>

<p>TAX LEVIES UNDER. AN UNCONSTITUTIONAL LAW.</p> <p>Taxation — Levy Under an Unconstitutional Law — Not Yet Declared Unconstitutional — Not Enforceable, When.</p> <p>The fact that a law under which a tax was levied had not been declared unconstitutional at the time the levy was made, will not save the levy fronl injunction against its collection, when it does not appear that contracts have been entered into on the faith thereof.</p>

<p>PRIORITY OF SURETIES OF GOVERNMENT OFFICERS AND AGENCIES.</p> <p>Priority — Of Claim of Surety — For a Designated Depositary — Of Assets of a Bankrupt — Paying to and Paying for the Government— Section 3468, TJ. S. Statutes.</p> <p>1. There is no doubt that the same right of priority which belongs to .the United States Government, attaches to the claim of an individual who as surety has paid money to the government; and it may be the same right of priority extended to one who has satisfied a moral obligation of the government by responding as surety for a federal officer or employe who has been guilty of misfeasance.</p> <p>2. But the surety of a bonded depositary of the assets of a bankrupt has the same means of judging of the solvency of such depositary as are possessed by others who are entrusting their funds to it, and to give- such surety a preference would be a manifest injustice and not within the contemplation of the law.</p>

<p>Error to Lucas Common Pleas Court.</p>

<p>ARE CITY FUNDS AVAILABLE FOR. WHICH BONDS HAVE BEEN AUTHORIZED.</p> <p>Street Improvements — Discretion Given Board of Public Service — As to Material to be Used — Section 45a of the Municipal Oode — Relating to Availability of Municipal Funds — Open to a Dual Interpretation — Officials not Bound to Adopt Correct Interpretation at Their Peril.</p> <p>1. The fact that council in authorizing a street improvement did not decisively specify the kind of material to be used, can not be held, in a suit by a tax-payer who has watched the contract to completion, to invalidate the action of the board of public service in awarding a contract for one of the materials named by council.</p> <p>2. Section 45a of the Municipal Code, relating to the .requirement that the funds for an improvement be in the city treasury before the work is undertaken, is fairly open to two constructions; and where a city solicitor in good faith’advises the board of public service that the funds for a proposed improvement may properly be certified as in the treasury, whereas the bonds therefor .have been lawfully authorized but have not yet been sold, the issuance of a certificate by the city auditor that the funds for the improvement are then available is not sufficient, should this interpretation be erroneous, to sustain a charge of fraud and thereby invalidate the contract.</p>

<p>INJURY TO A PASSENGER BY A DERAILMENT.</p> <p>Evidence — That the one Injured has a Family — And as to an Old Bréale in a Gar Wheel — Negligence—Speed of Gar — Flat Wheel —Gare in Providing Safe Wheels — Charge of Gourt — Proximate Cause — Earning Power — Verdict not Excessive.</p> <p>1. The admission of evidence that one, suing for damages because of an injury, has a family does not constitute reversible error, when the court instiucts ¡the jury that no damages should be allowed because the plaintiff i-s married or has a family.</p> <p>2. Testimony to the effect that a break in a car wheel was an old break, is not rendered incompetent because the appearance of (the iron was not described.</p> <p>3. An allegation of negligence in running a car at a high rate of speed provides a sufficient basis for testimony to the effect that the wheels humped on the rails as the car ran.</p> <p>4. A charge, such as the one given in the case a.t. bar, with reference to the care required of an interurban railway company to avoid the use of cracked or imperfect car wheels, properly states the law; and the definition, of proximate cause is also sufficiently accurate.</p> <p>5. While it would be eminently proper to charge a jury to the effect that, in the absence of evidence as to the earnings of the plaintiff, the jury may use their common knowledge as to what persons similarly employed are accustomed to earn, yet a refusal to give suoh a chaige does not constitute error.</p> <p>6. A verdict of $4,000 to a laboring man, fifty-six years of age, who has sometimes worked on a farm and sometimes driven a team, and who has been permanently injured by the derailment of an interurban car upon, which he was a passenger, is not so high as to indicate passion or prejudice on the part of -the juiy.</p>

<p>FALSE PRETENSES IN SECURING PAYMENT OF A DRAFT.</p> <p>Criminal Law — False Pretenses — By a Note Broker Who Procured the Cashing of a Draft — By Representing that Its Payment Had Been "Arranged For” — Checks and Drafts and What They Import)— Qualifying Verbal Representations — The False Pretense Charged, and the False Pretense Proved.</p> <p>1. A jury might well conclude from the facts and testimony disclosed in this case, that the cashier, who cashed the worthless draft presented by the defendant, was induced so to do by the representation that payment of the draft had been arranged for, rather than from trust and confidence in- the defendant arising from -a long course of similar dealings.</p> <p>2. A draft upon a bank, payable upon demand, is indistinguishable from a check, and either a draft or a check, considered alone, imports a representation that the drawer has funds to meet it.</p> <p>3. Where the false pretense proved was a different false pretense from the one charged, as a majority of the court find to have been the fact in this case, a judgment of conviction must he reversed, notwithstanding the aggravated nature of the offense committed.</p>

<p>Error to Common Pleas Court of Summit County.</p>

<p>VALIDITY OF THE ACT IN AID OF THE BLIND.</p> <p>Constitutional Law — Act Providing Allowances for the Blind — Not Special Legislation — Not Unjust Discrimination — Not Unreasonable— Not a Talcing of Property for Private Use — Legislative Power, State and Federal.</p> <p>1. The act found in 97 O. L., 392, providing for the payment to certain worthy blind persons of not more -than twenty-five dollars quarterly out of the county poor or general expense fund, does not contravene the Ohio Constitution because it provides for an allowance to a special class of indigent people, nor because it discriminates among persons of that class, nor because of the limitation as to residence, nor because it is unreasonable, or capricious, or an unjustifiable act of paternalism on the part of the Legislature.</p> <p>2. Neither does this act violate the provision of the federal Constitution against the taking of private property by taxation for private purposes, but on the contrary, a public purpose is thereby sub-served, and it is in line with other laws which have received judicial sanction.</p> <p>3. All legislative power being broadly conferred by the state Constitution, it is within the general legislative power of the state to make provision for any legitimate class, recognized as such either by the Constitution itself, or by a sense of justice and the common reason of the people of the state.</p>

<p>CARE EXERCISED BY A PASSENGER AS TO WHERE SHE STEPPED.</p> <p>Negligence — Of a Passenger — In leaving a Car Before it toas Fully Stopped — Though Invited to Do So By the Opening of the Gate— Duty of Passenger to Look "Where He Steps — Charge of Court— Compensation for Worry Over Injury.</p> <p>1. A majority of the court are of the opinion that the plaintiff, under the circumstances of this case and as limited hy the trial judge, was charged with the duty of looking where she stepped while leaving the car.</p> <p>2. In a suit - for damages on account of an injury sustained, compensation may be recovered on account of worry, anxiety and care regarding the consequences of the injury.</p>

<p>ASSIGNMENTS OF WAGES,</p> <p>Wages Assigned — Recovery of, an Equity Proceeding■ — Assent of Debtor to Assignment Necessary, When.</p> <p>There can be no recovery in an action at law on an assignment of wages due and to become due, where there is no proof that the debtor assented to the assignment, and the amount due exceeds the amount assigned.</p>

<p>ASSIGNMENT OF CONTRACTS IN PAR.T.</p> <p>Contract — Divisibility of — Assignment of Part of — Rights Under Can Not be Enforced Independent of the Principal Contract, Unless — Injunction — Remedy for Breach.</p> <p>1. The assignee of one item of a contract acquires no contract rights, specific performance of which could be enforced independent of the principal contract, unless the item with whatever of interest or profit may inhere thereto can be discharged from all liability for the performance of the principal contract.</p> <p>2. Were it possible to acquire such rights by assignment, injunction would not lie to enforce them, but the assignee would be relegated to an action at law where a full and adequate remedy could be had for the breach.</p>

<p>Appeal from Lucas Common Pleas Court.</p>

<p>EXTENSION AND FORFEITURE OF STREET RAILWAY FRANCHISES.</p> <p>Street Railway Franchises — Renezvals and Extensions — Forfeiture by Abandonment.</p> <p>1. An ordinance which recites that it is intended by it to renew and ex* tend all the franchises, rights and privileges now owned by a street railway company, and which provides in plain terms that the rights, privileges and franchises granted under a former ordinance “beand the same are hereby renewed and extended,” continues and renews the right of the company to lay tracks on a portion of the territory covered by the original ordinance, but not constructed at the passage of the renewing ordinance, notwithstanding the fact that such territory is not specifically named in the renewing ordinance.</p> <p>2. When an ordinance granting a street railway franchise provides that a failure to comply with the terms and conditions of the ordinance after twenty days notice from the city council shall operate as a forfeiture of all rights and franchises granted, the failure of the owner of the franchise to lay a track in a portion of the territory covered by the franchise will not work a forfeiture of its rights to lay such track in the absence of notice given as provided in the ordinance.</p>

<p>SEWERS, DRAINAGE AND RIPARIAN RIGHTS.</p> <p>Seioers — Availability of; to Abutting Owner — May Contest Validity of ■ Assessment — Although a Petitioner for, When — Right to Pollute Water — Not a Part of Riparian Right — Pollution by City — Estoppel — Local Drainage — Permanance of Structure.</p> <p>1. An objection by an abutting owner to a sewer assessment, based upon the ground that the sewer is not available to -his lots, is not sustained where the proof shows that the lots for a distance of from fifteen to fifty feet back towards their rear, are on a level with the grad'e of the street in which the sewer is built, from which point they descend from fifty to sixty feet to a river bounding them on the rear, and the sewer is from fifteen to seventeen feet below the surface of the street, and it also appears that with respect to several of the lots the houses and improvements thereon are so built as to permit the carrying off of sewage from cellar levels through such sewer.</p> <p>2. The mere fact that an abutting property owner petitioned for a sewer improvement, and stood by without objection or protest and saw it built, does not estop him from thereafter contesting the validity of the assessment against bis property to pay the costs thereof, on the ground that his property is not specially benefited thereby.</p> <p>3. The fact that a municipality owning lands abutting on a stream has not taken wholly effective measures in all cases to prevent the pollution of the water thereof, which goes into its water works system, will not hinder or prevent it from taking measures, such as the building of a sewer, to divert the sewage to another course; nor will such fact prevent the collection ofi an assessment levied against the property specially benefited by such sewer, to pay the cost thereof.</p> <p>4. The right to pollute the waters of a natural water course forms no part of the riparian rights of the abutting owners; and in order to prevent such pollution it is not essential that a municipality, or other riparian owner who is affected thereby, should condemn any right which such abutting owner-may have or claim in the water.</p> <p>5. A municipal riparian owner is not estopped from exercising its right and power to prevent the pollution of a natural water course, simply because it has been guilty of the same offense by emptying its sewage into the stream. Hence the collection by a municipality of an assessment, to pay the cost of constructing a sewer to carry off sewage which otherwise would be drained into the stream, can not be enjoined merely because the municipality has also emptied its sewage into the stream.</p> <p>6. Lots are not provided with adequate local drainage, such as will exempt them from paying their share of an assessment, levied to pay the cost of a sewer improvement, unless the right exists to dispose of sewage as it is at the time being disposed of, and the right to continue so to do is one that can not be interfered with— that is, the present right must include not only permanency of structure but also of control. Hence a claim of adequate local drainage, based upon the right to allow sewage to drain into a natural water course running through" a municipality, is not sustained where such drainage will pollute the stream and create a nuisance and imperil the health of other riparian owners.</p>

<p>“DEPENDENTS” UNDER. BENEFICIAL ASSOCIATION POLICIES.</p> <p>Mutual Benefit Societies — Authorized Glasses for Whom Policies may Issue — Husband and Wife — Woman Unlawfully Occupying Relation of Wife to Insured — Is a “Dependent,” When.</p> <p>1. A woman who has occupied .the relation of wife for a period of twelve years in the honest belief that she was the wife of the man with whom she was living, which relation however was unlawful in that he had a wife living at the time from whom he had never been divorced, is1 a “dependent,” within the meaning of the charter and by-laws of a benefit society which authorizes the designation of dependents as beneficiaries in policies of insurance issued to their members, and is, therefore, as against the lai^ful wife or the heirs of the assured, entitled to the proceeds of a policy of insurance issued to him by the society without notice of such relation, in which she was referred to as his wife and designated as the beneficiary, notwithstanding the policy was issued after she discovered the unlawful relation referred to.</p> <p>2. A person who is not of the class for whose benefit a benefit society is authorized to issue a policy of insurance, can not legally be made a beneficiary in the policy, or demand the amount payable upon the death of the assured.</p>

<p>ISSUES IN A WILL CONTEST.</p> <p>Wills — Mental Capacity of Testator — Wlhen a Delusion Does not Affect Testamentary Capacity — Value of Testimony of Experts and of Laymen — Declaration of a Beneficiary — Faithfulness of a Beneficiary — Examination of Witnesses.</p> <p>1. It is not necessary that one about to make a will should be possessed of his maximum strength of mind, or the degree of mental strength necessary to make a contract; but he should be able to remember his property, and the proper objects of his bounty, and to make a testamentary disposition of his property without suggestion.</p> <p>2. A delusion on the part of a testator does not constitute mental incapacity unless it is an insane delusion, and in determining whether a testator was suffering from such a delusion at the time he made his will, the testimony offered on the subject should' be considered by the jury, that of experts not being allowed to outweigh absolutely that of laymen who had known the testator for ' years, and had business transactions with him, and frequently met and conversed with him.</p> <p>3. An expert can not be asked whether the testator was capable of making such a will as good reason and a normal condition of ■ mind would require, and previous declarations of beneficiaries not on the stand for the purpose of impeachment are not a proper subject of cross-examination.</p> <p>4. Evidence of the faithfulness of a beneficiary to-the testator is competent in a will contest, because of the bearing which it has upon the question of the reasonableness of the will as executed.</p> <p>5. Where a witness is called by the defendant in a will contest to give his opinion in chief as to the mental capacity of the testator, no right exists in favor of the plaintiff to cross-examine him upon the facts and grounds upon which his opinion is based, until after the conclusion of the examination in chief.</p>

This case was submitted upon a general demurrer to the petition and involves the validity of a lease executed by Fannie J. Dickson, Caroline T. Dickson, David J. Dickson and Fannie J. Dickson, guardian of Charles F. and Paul R. Dickson, heirs at law of Charles T. Dickson, deceased.

<p>CAR. SERVICE RULES.</p> <p>Railways — Reasonable Demurrage May be Charged for Detention of Cars■ — Carrier May Refuse to Deliver Cars on Siding — Until Demurrage in Arrears is Paid — What Constitutes a Defense in Law —To a Suit to Compel Carrier to Deliver Cars on Private Siding of Consignee.</p> <p>1. A common carrier may make a reasonable charge for demurrage upon the failure of the consignee to remove freight from its cars within a reasonable time.</p> <p>2. A common carrier of freight is justified in refusing to deliver cars of freight upon the private siding of the consignee until he pays the demurrage charged for the unreasonable detention of former cars placed upon his siding.</p> <p>3. In an action, by the consignee of freight to compel a common carrier to deliver cars of freight upon his private siding, an answer alleging that the consignee positively refused to recognize certain rules imposing a reasonable charge for demurrage upon cars unreasonably detained for unloading, and reserving the right to the carrier to refuse to deliver subsequent cars until all demurrage in arrears was- paid, that consignee deliberately detained cars, thereby depriving the carrier of their use, in addition to refusing to pay reasonable demurrage charges, and denying his obligation to pay anything for the detention of the cars, states a defense entitling the carrier to a hearing upon the issues joined.</p>

This is an appeal from the Lorain County Common Pleas Court.

The case of J. G. Blinn v. Claude hi. Riekett is a proceeding in error. The case was this: Plaintiff brought a suit against Riekett, before a justice of the peace, and filed his affidavit for an attachment; an attachment was issued and allowed. No personal service was had -upon Riekett and Riekett was not in court, except as he was brought in by the attachment; wüess he is to be held to have made a voluntary appearance1 by facts which will be stated.

<p>TRAILING CRIMINALS WITH BLOODHOUNDS.</p> <p>Evidence. — Contradictory Statements may be Explained by Witness— Effect of Such Statements — Court Stenographer May Impeach Witness, When — Trailing with Bloodhounds — Testimony as to Competent, When — Character of Such Testimony — How to be Considered by Jury — Failure to Charge upon a Point not Requested not Error — Effect to.be Given Testimony as to Good Character — Criminal Law.</p> <p>1. It is not error to permit a witness, who has made statements out of court at variance with his testimony given in the trial of a cause, to explain or give his reasons, if he has any, for making the contradictory statements; such conflict in statement -goes only to affect his creditibility and does not render him incompetent or necessarily render his testimony incredible.</p> <p>2. Where it is claimed a witness, who testified' before a grand jury, changed his testimony on the trial, an 'official court stenographer, who took his testimony before the grand jury in shorthand, may, as impeaching such witness, read his notes in evidence to the jury, if he remembers and can testify that a»t the time it was correctly taken, and that the notes contain all the evidence of the witness on the question at variance, although at the time he is called to tesify he has no independent recollection of his testimony.</p> <p>8. Testimony as to trailing an alleged criminal by a bloodhound may be permitted to go to the jury as tending to connect him with the crime when there is testimony of some person, who has knowledge, that the dog used has been trained to follow tracks of human beings by scent, and its power of so dissriminating has been tasted as to its accuracy in trailing on one or more occasions.</p> <p>4. Before evidence of the trailing of an alleged criminal is rendered competent it must he first shown that the dog was put' on a trail at a point where the circumstances tend to show that the guilty person had been, or on a track which such circumstances indicate to have been made by him.,</p> <p>5. Evidence of the acts of bloodhounds in following a trail under conditions stated may be received as cumulative or corroborative evidence against the person toward whom other circumstances point as being guilty of the commission of the crime charged, and when this class of evidence is hedged about with these safe-guards of human and other testimony, bloodhound evidence is no more dangerous than any other class of circumstantial evidence.</p> <p>6. Court failing to charge on a point on which counsel did not' ask a charge is not error.</p> <p>7. In a criminal case for assault with intent to kill, where the defendant put in evidence his previous good character, it is not error for the court to say to the jury, that “the weight to be given to the good character of the defendant for peace and quiet, must be such that the jury, under all the circumstances, think it should receive.”</p>

<p>COVENANT AGAINST OBSTRUCTION OF VIEW.</p> <p>Deed — Covenant in, Against Obstructing ■ View by Building — High Board Fence a “Building” within the Covenant.</p> <p>A board fence eight or more feet in height,, extending the entire length of the .grantor’s premises to the sidewalk, which shuts off the view from the grantor’s remaining ground, and dwelling house, diminishes the air and light formerly enjoyed by him, and which is contrary to the intention of the parties as evidenced by the stipulations in the deed and the circumstances and condition of the property at the time of the conveyance is a “building” within the meaning of a deed providing against the erection of certain buildings.</p>

This case is considered on the basis that defendant company proposes to lay a side-track on the south side of Water street extending seventy feet east of Walnut street. If the top of the rails of such track is laid even with the surface of the street so as to make no obstruction in the street to wagons passing over the same, an injunction will be denied.

<p>TENURE OF OFFICE OF CLERK OF BOARD OF WATER. WORKS TRUSTEES.</p> <p>Municipal Corporations — Cleric of Board of Water Worlcs Trustees — An Employe and Not a Public Officer — Board Discontinued by Municipal Code — But Cleric Continued in Employment — Pleading—Averment of Petition Negatived.</p> <p>1. A clerk or secretary of a board of water works trustees, appointed prior to the enactment of the Municipal Code, and continued in employment thereafter by the board of public service, is not an officer but an employe, subject first to the direction of the board appointing him and then to the board of public service. State v. Jennings, 57 O. S., 415, followed.</p> <p>2. Whatever may have been the legal status of the board of water works trustees, it was legislated out of office by Section 222 of the • Municipal Code (1536-978 R. S.).</p> <p>3. A clerk of a board of water works trustees, who was performing the duties of his employment at the time of the enactment of the Municipal Code, was by virtue of Section 213 thereof (1536-912 R. S.), continued' in his employment until removed by the hoard of public service which superseded the water works trustees.</p> <p>4. An averment in a petition by such a clerk, that he was arbitrarily and without cause removed from his position by the board of public service, is negatived by the further averment that he was removed while the board was acting within the scope of its duties, . and the petition is thereby rendered insufficient .against demurrer.</p>

<p>DEFICIENT BILL OF EXCEPTIONS.</p> <p>Bill of Exceptions — Shows on Its Face That It Does Not Contain AU of the Evidence, When.</p> <p>A bill of exceptions shows on its face that it does not contain all of the eveidence, thereby precluding a reviewing court from considering the weight of the evidence, where it appears therefrom that a part of the evidence in the lower court consisted of illustrations or demonstrations by models of machinery, and there is nothing in the bill to show where the witnesses and counsel stood with reference to the models, what they pointed out, and where they placed their hands except by such words as “here,” “there,” “like that,” and the word “indicating” in parentheses inserted by the stenographer.</p>

<p>ASSESSMENTS IN ACCORDANCE WITH BENEFITS.</p> <p>Assessment — Por Street Improvement — Benefits—Depreciation in Value of Property Toy City’s Act — Benefits not Based on Depreciated Value.</p> <p>A municipality can not adopt as a basis for estimating the benefits accruing to abutting lots from a street improvement the depreciated value of the lots at the time of the improvement, due to the fact that the street had been used as a dump for waste matter of all kinds, and had thereby become a public nuisance from which property values suffered.</p>

<p>Appeal from the Court of Common Pleas of Summit County.</p>

<p>FAILURE TO FH.E PROOFS OF LOSS WITHIN STIPULATED TIME.</p> <p>Fire Insurance — Proofs of Loss — Failure to File Within Sixty Days— Waiver — Agent Without Authority to Grant — Except in Writing Endorsed on the Policy, When — Waiver as to What Occurs After Loss.</p> <p>1. A policy of fire insurance, containing a provision that proof of loss must he presented to th.e company within sixty days of the occurrence of a fire, is rendered void by faiiure to present the proofs within the time limit.</p> <p>2. No officer or agent of an insurance company has authority to waive any of the stipulations of a policy, except in the manner provided therein; and a provision requiring that, in case of- loss, the insured shall file a sworn statement thereof within sixty days, can not b’e waived verbally by an agent of the company, where the conditions of the policy require that the waiver be in writing endo:sed on the policy or attached thereto.</p>

<p>CONSTRUCTION OF MUTUAL BENEFIT SOCIETY CERTIFICATE.</p> <p>Beneficial Associations — Certificate, Constitution, etc., Constitute Contract — Between Members ancl Association — Member not Entitled to Share in Benefit Fund for Permanent Loss of Hand, When— Trustees of Association may Adopt Rules Concerning Conduct of Business.</p> <p>1. The certificate, constitution, rules and regulations and the by-laws of a beneficial association constitute the contract between the association and its members.</p> <p>2. When a certificate, issued by a beneficial association to one of its members, provided that if the holder lose one of his hands by accident, he shall be paid one-fourth the face value of the policy from the benefit fund, and that “this certificate is issued subject to, and to be construed and controlled by.the constitution, laws, ' rules and regulations of the order,” the holder thereof is not entitled to recover for a permanent loss of one of his hands unless it be amputated at or above the wrist, where the constitution provides for payment only in such case, and this notwithstanding the holder had no actual knowledge of such latter provision.</p> <p>3. The first trustees of a beneficial association have power to adopt a provision which concerns the conduct of its business, such as providing that the members shall not be entitled to share in the benefit fund for the loss of a hand, unless amputation at or above the wrist follows the injury.</p>

<p>CONDUCTOR’S REPORTS AS EVIDENCE.</p> <p>Depositions — Witness Contumacious, When — Must Answer and Produce Papers — Questions as to Competency and Relevancy — Must Be Left for the Court — And are not a Basis for Refusal to Respond, Unless — Papers and Information Exclusively for the Defense — Habeas Corpus — Rotary Public.</p> <p>A witness called to give his deposition before a notary, public must respond to questions asked and produce papers or oooks called for, unless it clearly appear that by so doing he would be injured in his business or personally, or that the questions are frivolous, or that the information was procured or the papers called for were prepared exclusively for purposes of defense in an action by the party for whose benefit the deposition is being taken.</p>

<p>Error to the Court of Common Pleas of Summit County.</p>

<p>VALUE OF SERVICES IN EFFECTING A LEASE.</p> <p>Agency — Value of Services — Rendered in Effecting a Lease — Tim& Consumed Only One Element of Value — Evidence—Incompetent Question — Rendered Harmless by an Answer Stating Facts — i Charge of Court.</p> <p>1. In fixing tlie value of services rendered, the time consumed in the performance of the service is only one of the elements to be considered.</p> <p>2. The opinion of the party performing the services is competent in a suit for recovery of their value, and where the defendant causes such opinion to be excluded, he can not afterward say that no evidence as to value has been submitted to the jury.</p> <p>3. Moreover, testimony as to the facts touching the character and extent of the services is. evidence of their value, independent of the opinion of the witnesses.</p> <p>4. A question which was incompetent for the reason that it called for a conclusion, is rendered harmless where the answer put the jury in possession of the facts upon which the witness based his opinion.</p> <p>5. A special charge, to the effect that the jury are not to consider the statement of plaintiff’s claim in his petition as evidence in the case, might have well have been given, but its mission coul'd not have misled the jury or prejudiced the rights of the defendant.</p>

<p>CONTRACT WITH AGENT FOR. PURCHASE OF LAND,</p> <p>Vendor and Purchaser — Specific Performance of Contract to Purchase —Principal and Agent — Statute of Frauds — Undisclosed Principal —Agency Proved by Parol — Contract Signed by One Party Only-Marketable Title — Building Restrictions — Objection to, Waived by Purchaser, When — Objections to Deed Waived by Silence of Grantee.</p> <p>1. A written contract for the sale of real estate, made and signed by an agent in his own name and without disclosing his agency "or the name of his principal, satisfies the requirements of the statute of frauds, and is binding on and may be enforced by the principal.</p> <p>2. Á contract required by the statute of frauds to be in writing is sufficient if signed by one of the parties to be charged and accepted by the other. The bringing of a suit for specific performance by the party whose name has not been appended to the contract establishes its acceptance by him.</p> <p>3. An agreement to convey real estate “by a good and sufficient, full and covenant warranty deed,” is satisfied by the tender of a good marketable title with warranty.</p> <p>4. Ordinary building restrictions applicable to all the property in the neighborhood, of which a proposed purchaser has knowledge, can not be classed as an incumbrance unless they affect the marketable quality of the title, and the presumption is that they are a benefit rather than a detriment to the property.</p> <p>5. Where a contract for-the purchase of real estate gives to the vendor a specified time within which to remove any objections which may be made to the title, the failure of the vendee to make any objection as to a matter of which he had knowledge and which might, have been corrected, constitutes a waiver thereof.</p>

<p>RECOVERY FOR SUBSTANTIAL PERFORMANCE OF CONTRACT.</p> <p>Contract — Where Entire and Subsisting — Intention to Perform — Willingness to Waive Strict Performance.</p> <p>Recovery may be -had for substantial performance of an entire and subsisting contract, where the plaintiff at all times manifested an intention to fully perform the contract and made every reasonable effort to do so, but the defendant by conduct or otherwise waived a strict performance.</p>

<p>FEES AND MILEAGE OF JURORS.</p> <p>Constitutional Law — Section 5182 — Relating to Fees and Mileage of Jurors — Not a Proper Charge Against the Litigant Exclusively in Private Cases — Nor Against the State in Criminal Cases.</p> <p>1. A juror, even though called for a special case, is not paid by the case but by the day; and the only difference between a regular juror and a juror called for a single case is that the former receives mileage and the latter does not.</p> <p>2. The service rendered by jurors in civil cases between private litigants is not solely a private service, but is in part for the public benefit, and the provision of Section 5182 for the payment of the per diem and mileage of jurors out of the county treasury is a constitutional provision as applied to civil cases.</p> <p>3. And so of the fees of grand jurors and of petit jurors sitting in criminal cases; the service they render is not solely for the state, and following an immemorial rule the cost thereof may properly be made a charge against the county wherein the crime was committed.</p>

<p>TRADE-MARK COVERING A VARIETY OF TREE.</p> <p>Trade-Mark — Product of Things Reproductive — Not Covered by — Peach Trees — And the Label Known as the “Diamond Cling:’</p> <p>The protection of a trade-mark does not, in the absence of a restrictive contract, extend to the product of a tree, or of anything else which by the law of its nature is reproductive and derives its chief value from its innate vital powers, independent of the care and ingenuity of man.</p>

<p>QUESTIONS ARISING UNDER. A SUIT FOR. BREACH OF CONTRACT.</p> <p>Breach of Contract — Damages Claimed on Account of — Amendment to Petition — Permissible under Section 5114, When — Service of Summons — Will be Presumed to be Regular, When — Contract Interfered with by Strike — Assignment of Contract — “Simultaneous” Agreement to- — Charge of Court.</p> <p>1. An amendment to a petition, filed for the purpose of correcting the description of the defendant, does not state any new and distinct cause of action, and is permissible under Section 5114, Revised Statutes.</p> <p>2. In the absence of a bill of exceptions containing the evidence offered upon a motion to quash the service of summons, a reviewing court will presume that the court below found from the evidence every fact in issue necessary to sustain its action in overruling the motion.</p> <p>3. A special charge to the jury to the effect, that in order to render an assignment of the contract valid there would have to be a new agreement between the parties “simultaneously,” will be interpreted to mean that the new agreement be or exist between the parties simultaneously, and not that it must be made between them simultaneously.</p> <p>4. The measure of damages for breach of a contract for future deliveries of manufactured articles, where the performance of the contract has expired, is the difference between the contract price and the market price, or if there be no market price, the difference between the contract price and that for which the plaintiff by the exercise of diligence and judgment could obtain them at the times and in the quantities needed within the limits of the contract.</p>

<p>VARIANCE IN THE LOCATION OF THE SCENE OF AN ACCIDENT.</p> <p>Pleading — Variance not Material, When — Description in Petition of Place Where Accident Occurred — Not Construed as Strictly as Description in an Indictment — Different Portions of Same Street Known hy Different Names.</p> <p>1. A variance between the petition and proof is not material unless the defendant had been misled to his prejudice in making his defense upon the merits.'</p> <p>2. In an action for the recovery of money for injuries from falling on a defective sidewalk, the description in the petition of the place where the accident occurred will not be construed as strictly as a description in an indictment.</p> <p>3. Where different portions of the same street are known by different names, and the petition of one seeking damages on account of a fall on a defective sidewalk alleges that the accident occurred on this street, giving the name of one section thereof, whereas the accident is shown by the testimony to have occurred a few feet beyond the dividing line between the portion of the street named and that hearing another name, the variance is not such as will defeat recovery, where there is no claim that the municipality was misled thereby to its prejudice.</p>