Volume 78 — Ohio State Reports, New Series

<p>Error to the Circuit Court of Mahoning county.</p> <p>On February 19, 1897, the defendants in error made and delivered to one Frank P. Hood, or order, their promissory note for $850, payable in two years after date, with eight per cent, interest. Included in the note was the following: "Principal and interest payable at the office of F. P. Flood, No. 5 East Federal street.” Within two weeks after the execution and delivery of the note to Hood, he transferred the note and a mortgage which had been given to secure the same, to the plaintiff in error for value and in due course of búsiness. The note was duly indorsed and the mortgage duly assigned to the plaintiff in error by Plood. The note and mortgage thus indorsed and assigned, were then and there delivered to the plaintiff in error and remained in his . possession from the time of his purchase until the commencement of this case. The assignment upon the mortgage was never recorded upon the record of the mortgage in Mahoning county, nor were the makers of the note and mortgage notified by the plaintiff in error that he owned and held the same. The interest upon the note was paid at Hood’s office and by him paid over to the plaintiff in error, who credited the same upon the note up to August 19, 1903. Hood, having died insolvent, it was discovered by the plaintiff in error that the defendants claimed to have paid $350 to apply on the principal of said note on the 14th day of February, 1900, at Hood’s office, to a Miss Jurey, who was acting for Mr. Hood, and a receipt of Hood in the handwriting of Miss Jurey is a part of the record. It is not claimed that the plaintiff in error ever received any part of this $350, and he testifies that he never authorized or directed Hood or Miss Jurey to collect the principal, or any part of the same, on this note and mortgage, and that he did not know of the payment of this $350, and this testimony is not expressly contradicted; but the defendants claim that the agency of Hood is established by conduct. The suit having been brought to recover the amount due on said note and to foreclose the mortgage securing the same, the facts already stated appeared upon the trial. The court of common pleas found in favor of the plaintiff. The circuit court reversed the judgment of the court of common pleas for the reason, “that the use of said words in said promissory note made said F. P. Hood agent of the plaintiff below to collect the money named and made payable upon said note, notwithstanding said Frank P. Hood did not have possession of said note and mortgage.” This proceeding is to reverse the judgment 'of the circuit court and to affirm the judgment of the court of common pleas.</p>

<p>Power of railroad company to appropriate private property — May be exercised only at time of railroad construction, when.</p> <p>The power of a railroad company to appropriate private property for the purpose of diverting a stream from its natural location or bed, and acquiring land for the new channel made necessary by reason of such diversion, may be exercised at the time of the construction of the road, and for that purpose, but not after-wards in the making of improvements to the road-bed.</p>

<p>Error to the Circuit Court of Allen county.</p> <p>The facts in this case so far as they are pertinent to the question considered and determined herein, are stated in the opinion.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>The history and facts of the case are stated in the opinion.</p>

<p>Error to the Circuit Court of Lawrence county.</p> <p>The defendant in error brought suit in the court of common pleas to recover from the city of Ironton on account of injuries to his real estate in said city, resulting from the construction by the city of a defective and inadequate water-way for the passage of water of a flowing stream under Pine and Sixth streets in said city, near whose intersection his lots were situated. In his amended and supplemental petition he alleged that the city had interrupted the natural flow of said stream by constructing such artificial channel, that it thereby assumed and exercised control over the waters of the stream and by reason of the inadequacy of said water-way and its improper and negligent construction and maintenance, the city permitting it to become obstructed by sand and gravel, said waters were in times of freshets thrown upon the property of the plaintiff damaging it to the extent of five thousand dollars, for which he prayed judgment. In a former petition filed in the same cause, plaintiff had alleged that the city had constructed said artificial waterway as a part of a plan which it had adopted for the improvement of Sixth street, for which it had taken the preliminary steps required by law, as well as the steps for the assessment of the costs of said improvement upon the property abutting upon the street. These averments were omitted from the amended and supplemental petition. To the amended and supplemental petition the city demurred and its demurrer was sustained, and a final judgment was rendered in its favor. On petition in error the circuit court reversed the judgment of the court of common pleas and remanded the cause to that court for further proceedings.</p>

<p>Error to the Circuit Court of Richland county.</p> <p>The material facts are stated in the opinion.</p>

<p>Written agreements known as options — Not void for lack of mutuality, when — Acceptance may be verbal — And proven by parol — Rule of specific performance — Party seeking enforcement must show readiness to perform.</p> <p>I. Written agreements known as options are not necessarily void for lack of mutuality, and where accepted within the time specified may become valid and enforceable contracts. Nor are they rendered invalid by the fact that the acceptance by the promisee is verbal and not in writing. Such assent may be shown by parol.</p> <p>3. The general rule is that a party seeking specific performance of a contract must show performance on his part, yet there are clearly defined exceptions and one of them is that when the other party repudiates and makes it certain that he does not intend under any circumstances to comply, a showing of readiness and ability on the part of the complaining party to then and there perform his part communicated to the other party and accompanied with a demand of compliance by such other party, is sufficient compliance without an actual formal tender.</p>

<p>Error to the Circuit Court of Logan county.</p>

<p>Sale of intoxicating liquors — Indictment under Section 4364-25, Revised Statutes — Effect of Section 60/42, Revised Statutes— As to place where intoxicating liquors are sold — Sufficiency of indictment — Commitment to workhouse until fine and costs are paid — Criminal law.</p> <p>1. An indictment under Section 4364-25, Revised Statutes, charging defendant with unlawfully keeping a place where intoxicating liquors are kept for sale as a beverage, if otherwise sufficient in form and allegation, is not demurrable because it contains ' no averment which excludes said defendant from the operation of the proviso in said section contained. Such proviso is no part of the description of the particular offense charged in the indictment.</p> <p>2. The provisions of Section 6942, Revised Statutes, neither supersede nor repeal by implication, the penalty clause of Section 4364-25, Revised Statutes.</p> <p>3. It is the duty of the court in pronouncing judgment against the accused in a criminal case to pronounce the judgment provided by law, and where a fine is part of the penalty so provided and the court is authorized by law to commit the accused to the workhouse “until such fine and the costs of prosecution are paid, or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such workhouse, or be otherwise legally discharged,”' — a sentence providing and requiring that the accused “shall stand committed to such workhouse until the fine and costs are paid,” without adding thereto the further words of the statute “or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs,” etc., while not wholly void is incomplete and erroneous, and where such sentence has not been executed, it will be reversed.</p>

<p>Error to the Circuit Court of Trumbull county.</p> <p>The plaintiffs in error are the heirs at law of Elizabeth Webster, who owned the premises concerned in this suit. She died intestate in 1872, leaving a husband, Alfred Webster, who took a life estate by curtesy in all the lands of which his wife died seized. He died in 1892, not having conveyed any part of his said estate to any person or corporation.</p> <p>In the year 1882, and during the life of Alfred Webster, the life tenant, the defendant in error entered upon and took possession of said lands and constructed its railroad thereon, and has ever since been occupying the same with its roadbed and track and operating trains thereover, and has continuously occupied and possessed said premises for a railroad ever since it first took possession thereof, without having appropriated the right to occupy the same and without any contract with the owner for that purpose or. to that effect.</p> <p>In August, 1904, the plaintiffs in error filed in the probate court of Trumbull county their petition under favor of the provisions of Section 6448, Revised Statutes, to compel appropriation by the railroad company. The petition contains the allegations made requisite by said section.</p> <p>The railroad company answered, admitting its possession of the premises as alleged, and averred that it had been in open, notorious, continuous and adverse possession of said premises so taken, under a claim of right and title for more than twenty-one years prior to the filing of said petition; and it was admitted in the answer that said company had been operating a line of railroad over the land described. Other averments of the petition were denied.</p> <p>For further defense the company set up a tax title which accrued as the result of a delinquent tax sale made by the treasurer of Trumbull county in January, 1879, and that said land not being redeemed, was subsequently conveyed by the auditor to the purchasers and that the railroad company held title under said sale and conveyances. The tax title was attacked by reply, but nothing is claimed for it in this court as it is no longer an issue between the parties.</p> <p>Trial was had to a jury in the probate court and a verdict for $800 was returned. Motion for new trial was overruled and judgment rendered on the verdict. The case was taken by the railroad company on error to the court of common pleas where the judgment of the probate court was reversed and the petition dismissed. The plaintiff in error prosecuted error in the circuit court where the judgment of the court of common pleas was affirmed. The case is here on error to reverse the judgments of the circuit and common pleas courts. Further questions in the case are stated in the opinion.</p>

<p>Authority of real estate broker — To execute contract of sale for third parties.</p> <p>A real estate broker is without authority to execute a contract of sale which shall be binding upon one who places real estate in his hands for sale unless such authority is specially conferred.</p>

<p>Ward may bring action against guardian — To review settlement, when — Limitations of time for bringing actions — Sections 6289 and 4982, Revised Statutes.</p> <p>Every settlement made in the probate court by a guardian is final between the guardian and ward, unless an appeal be taken therefrom to the court of common pleas or the same shall be opened and reviewed for fraud or mistake by civil action in the court of common pleas, commenced within two years after the ward shall arrive at full age. Section 6289, Revised Statutes, fixes the limitation for such an action and not Section 4982, Revised Statutes.</p>

<p>Rule requiring presentation of journal entry to adverse counsel— Will not apply, when — Power of common pleas to vacate judgment after term — Section 5354, Revised StaUites — Burden upon mover to show irregularity — Evidence insufficient, when.</p> <p>1. A rule of the court of common pleas requiring counsel for the party in whose favor a judgment is rendered to present a journal entry to counsel for the adverse party for his approval or rejection before giving the same to the clerk for entry does not apply to a case where no counsel has in any way indicated an appearance in that court, and where such adverse party is in default. And the rule is the same although the cause was appealed to the common pleas by the adverse party who gave an appeal bond therefor.</p> <p>2. The power of the court of common pleas to vacate its judgment after term upon motion is controlled by section 5354, Revised Statutes. And where the complaint is of irregularity in obtaining the judgment, the burden is on the mover to prove that the alleged irregularity occurred at or before the taking of the judgment.</p> <p>3. Where the evidence does not tend to show any irregularity at or before the taking of the judgment, but only that afterwards counsel for plaintiff out of court expressed to counsel for defendant a willingness to have the judgment vacated provided an answer showing a good defense were presented to him, but before the presentation of any such answer the counsel’s client gave him positive instructions not to consent to such vacation, and for that reason he refused, a case is not made authorizing the court to order a vacation of the judgment.</p>

<p>Police power of municipal' corporations — Only such as clearly expressed or implied — Cannot control stoppage of interurban cars.</p> <p>Municipal corporations in Ohio have only such police power as is expressly granted or clearly implied, and the legislature has not granted to them power to require by a penal ordinance the stopping of interurban cars to take on and to discharge passengers, but only to regulate the speed of such cars within the corporation.</p>

<p>Error to the Circuit Court of Wyandot county.</p> <p>Suit was brought by the defendant in error John Wren, in the court of common pleas of Wyandot county to recover from the plaintiff in error as a common carrier, damages for alleged unlawful discrimination against him in the matter of the furnishing of cars for the shipment of hay and straw. The petition of plaintiff after averring the corporate capacity of the defendant railway company, that it is a common carrier, etc., contains, by way of statement of his cause of action, the following averments:</p> <p>“John Wren, the plaintiff herein, lives in the town of Deunquat in said Wyandot county, and which town is and for many years has been a station on said defendant’s railway at which it has received freight and especially hay, straw and grain. The said plaintiff has for a long time been engaged at said town of Deunquat in the business of buying and shipping grain and hay and straw. There is no line of railway except that of the defendant’s extending through the said town of Deunquat.</p> <p>“Said plaintiff has expended a large sum of money in building and maintaining an elevator, warehouse and other things necessary for the proper caring for and shipping of grain and hay at and from said station. ■</p> <p>“There is a sidetrack, which was built many years ago at the joint expense of this plaintiff and deféndant, extending along the side of plaintiff’s elevator and warehouses and connecting with defendant’s main tracks, which was placed there by the parties to this suit for the purpose of running cars upon to be loaded and unloaded of freight. •</p> <p>“This plaintiff receives large orders for hay and straw to be shipped to various points in Ohio and elsewhere, and which he can only ship over defendant’s line of railway.</p> <p>“The town of Deunquat is located two and one-half miles from Sycamore, about eight miles from McCutchenville; about four miles from Lemert; and about fourteen miles from Bucyrus; all of which towns are stations on the defendant’s line of railway, and at all of which places the defendant receives for shipment hay and straw, all conditions at said places being the same as those at Deunquat for shipping said hay and straw.</p> <p>“Plaintiff says that for three months prior to the filing of this petition said defendant has refused to furnish any cars to this plaintiff to be loaded with hay and straw, though this plaintiff has requested defendant to furnish him cars at Deunquat to be loaded with hay and straw, notifying the defendant daily of his need for said cars.</p> <p>“During said period of three months prior to the filing of this petition this plaintiff has had a large number of orders for hay and straw to be shipped to various points in Ohio and elsewhere, but through this defendant’s refusal and that alone, he has been prevented from filling the orders of his said customers.</p> <p>“This plaintiff as a buyer contracted to buy the hay crops, 1905, from many of the farmers in the vicinity of Deunquat, and through said refusal of the defendant to furnish cars for shipping as aforesaid, he has been prevented from carrying out his said contracts to his great and irreparable damage.</p> <p>“During the said period of three months the defendant has furnished many cars to be loaded with hay and straw at the other stations herein-before named, and which have been loaded with hay and straw for shipment from said stations, though this plaintiff has absolutely received no cars for said purpose, though he has ordered cars daily from the defendant, and he was ready and willing to load said cars and pay the legal charge for the same.</p> <p>“By reason of being discriminated against as above set forth this plaintiff has been damaged in his business of the sum of fifteen thousand dollars, for which he asks judgment.”</p> <p>To this petition the following answer was filed:</p> <p>“Now comes the above named defendant and for answer to the plaintiff’s petition says:</p> <p>“The defendant admits that it is a corporation, as alleged in the petition, and that it operates a line of railroad from Toledo, Ohio, in a southerly direction through Wyandot county. Defendant admits that Deunquat is and has been for many years a station on defendant’s railway at which defendant receives and discharges freight. The defendant admits that the plaintiff is engaged in the business of buying and shipping grain, hay and straw. Defendant admits that there is a sidetrack extending along the line of railroad at the station of Deunquat. Defendant admits that Sycamore, McCutchenville, Lemert and Buey rus are all stations on the line of defendant’s railway.</p> <p>“The defendant denies each and every other allegation in said petition that is not hereinabove specifically admitted to be true.</p> <p>“Wherefore the defendant having fully answered, prays to be hence dismissed with its costs.”</p> <p>Upon the issues thus tendered and presented the cause was tried and submitted to a jury and a verdict was returned in favor of the plaintiff for the sum of two thousand dollars. A motion for new trial was made and overruled and judgment was entered by the court of common pleas upon said verdict. This judgment was affirmed by the circuit court. The Toledo & Ohio Central Railway Company prosecutes the present proceeding in error and asks that the judgments of the courts below be reversed and that final judgment be entered by this court in its favor.</p>

<p>Conditional sales — Sections 4155-2 and 4155-3, Revised Statutes— Piano sold on credit — Possession transferred — Mortgage executed to secure future installments of purchase price — Does not constitute conditional sale, when.</p> <p>The only parol evidence of. the purchase of a piano consists of the following conversation between the purchaser and the salesman: “I looked at the pianos. I saw a piano I liked, and I told him (the salesman) I would like to take that piano, and of course he told me it was a good piano, and I asked him what the piano cost. He said two hundred and sixty-five dollars, and the agreement I made with him, I would pay ten dollars down. That was the agreement I made, and six dollars a month, and I paid him ten dollars, and he said ‘Now Miss Crambert I know you will be prompt in your payments.’ I said ‘I will try to be prompt as I can,’ and he said ‘When you have'the piano paid for — when all the payments are paid up, the piano will be yours.’ ” Thereupon at the request of the salesman, the purchaser knowingly executed promissory notes representing the deferred installments of the purchase price and a chattel mortgage containing the usual conditions of such an instrument, to secure the payment of such notes. Directly thereafter the piano was delivered to the purchaser.</p> <p>Field: That the foregoing facts fail to establish a contract of conditional sale, as contemplated by Sections 4155-2 and 4155-3, Revised Statutes.</p>

<p>Error to the Circuit Court of Allen county.</p> <p>Suit was brought in the court of common pleas by Brotherton as trustee in bankruptcy of the estate of the South Side Lumber Company to procure the cancellation of a mortgage upon certain real estate described in his petition, upon the ground that it was fraudulent and void as to the creditors of the lumber company. The real estate which was subject to the mortgage had never been the property of the lumber company. It had been conveyed by one Raudabaugh to Roy J. Dewey, and the mortgage was executed by Dewey to one David C. Dunn to secure a promissory note of $6,000 of even date with the mortgage, and the note and mortgage were transferred and assigned by Dunn to the plaintiff in error, the First National Bank of Wapakoneta. In its answer and cross-petition in the case the bank alleged the’ facts necessary to constitute it a bona fide holder of the notes and mortgage. The cause was appealed to the circuit court where it was tried and the rights, of the parties determined upon an agreed statement of facts as follows:</p> <p>“That the defendant, the South Side Lumber Company, is and was a corporation organized under the laws of the State of Ohio with a capital stock of $20,000.00, and at all the times mentioned in the petition said capital stock was fully paid;</p> <p>“That the said defendant, David C. Dunn, was at said times the owner of $6,700 worth of said capital stock and that said Roy J. Dewey was the owner of $200 worth of said stock, and that, on or about the 15th day of September, 1904, the said The South Side Lumber Company was the owner of a large amount of lumber and other merchandise to the value of about $23,000; that at about said date the said corporation negotiated a sale of said lumber and merchandise to one Joshua R. Raudabaugh for about the price of $23,000; that the said D. C. Dunn was not favorable to said sale unless the said corporation would purchase from him $6000, of his said capital stock at an agreed price of $6000, and the balance of his said capital stock of $700 he transferred to W. W. Leighton for an agreed consideration as between themselves.</p> <p>“That on the 8th day of September, 1904, the said negotiations for said sale and for the retirement of said stock having, been in progress from on or about the said 8th day of September, IQ04, the Board of Directors of said The South Side Lumber Company passed the following resolution or motion:</p> <p>‘That part of lot 1722 which is accepted from Joshua R. Raudabaugh as part payment for lumber stock at the valuation of $7500, be deeded to R. J. Dewey as trustee and that said Dewey be authorized to procure a loan on same of $6000, which money is to be used to purchase and retire $6000 of the capital stock of the said the South Side Lumber Company now owned by D. C. Dunn’;</p> <p>“That in pursuance of the aforesaid resolution and as a part of the purchase price paid by said Raudabaugh to the said The South Side Lumber Company for said stock of lumber and merchandise, the said Raudabaugh did, on or about the 31st day of August, 1904, and filed for record September 14, 1904, deed said premises to R. J. Dewey individually, there being no description or designation in said deed that said Dewey was in fact acting as trustee as provided in said resolution;</p> <p>“That afterwards, to-wit, on the 15th day of September, 1904, the said Dewey executed and delivered to said D. C. Dunn the note mentioned in the petition and set out and described in the answer and cross-petition and amended answer and cross-petition of The First National Bank of Wapalconeta, Ohio, and at the same time said Dewey individually executed and' delivered to the said Dunn a mortgage on said property, being the property described in the petition, for the purpose of securing the payment of said note of $6000, which mortgage was duly filed with the Recorder of Allen County, Ohio, for record on said 15th day of September, 1904, at 1:20 o’clock p. m.j and by him recorded in volume 83, page 369, of the records of mortgages of said county, in which mortgage Emma Dewey, wife of said Roy J. Dewey, joined;</p> <p>“And thereupon the said D. C. Dunn attempted to and did, so far as he had the power, cancel and surrender to said company $6000 of the capital stock of said company so theretofore owned by him;</p> <p>“That said Dunn, at the time of the transactions hereinbefore enumerated, was an officer of said company, was one of its board of directors and was the acting secretary thereof, and that the said D. C. Dunn did then and there accept said note and mortgage in full payment and satisfaction of his said $6000 of stock in said company thus surrendered and cancelled by the company;</p> <p>“That subsequent thereto, on the 10th day of November, 1904, proceedings were instituted in the United States District Court for the Northern District of Ohio, Western Division, by some of the creditors of said The South Side Lumber Company to have the said The South Side Lumber Company declared an involuntary bankrupt; that on the 2d day of December, 1904, the said The South Side Lumber Company was adjudicated a bankrupt in said proceedings; that on the 19th day of December, 1904, the plaintiff, Cloyd J. Brotherton, was elected trustee in bankruptcy for said bankrupt and immediately accepted the trust and qualified; that at the time of said adjudication in bankruptcy the said The South Side Lumber Company owed debts to the amount of $........; that by reason of said proceedings there passed to said Cloyd J. Brotherton, as such trustee, certain real estate of said bankrupt, also certain' accounts then due said bankrupt, of the nominal value of $........; that such property so passing was all the property and assets, at that time or now, of said The South Side Lumber Company, except that the title to the property described in the petition was placed in the name of R. J. Dewey, who in fact was the trustee of the said The South Side Lumber Company, which was in fact the owner thereof, of which fact D. C. Dunn had full knowledge at the time of the execution of the mortgage, and this said property is the only other property in which the said bankrupt had or has any interest whatever, and which is or may become, by the adjudication of this court, assets in the hands of said trustee in bankruptcy; that the real estate so passing to the said trustee in bankruptcy was all incumbered by bona ñde niortgage liens; that the trustee in bankruptcy has sold and disposed of all of said real estate, except the real estate in controversy in this suit, under the orders of said bankruptcy court; and after paying the said mortgage liens and the costs of said proceeding to sell the same, there remains in the hands of said trustee the sum of $........; that there have been filed and proven valid claims against said bankrupt which are unsecured, amounting to $........</p> <p>“It is further agreed that the unpaid and unsecured indebtedness of said The South Side Lumber Company, at the time the petition in this case was filed and now, is largely in excess of the assets of said .The South Side Lumber Company; that the said company, at the timé of said adjudication in bankruptcy, was insolvent and unable to pay its debts; and it is further agreed, that the excess of the liabilities of said The South Side Lumber Company over all assets now in the hands of said trustee, or owned by said bankrupt, are largely in excess of the value of the property in litigation in this proceeding.</p> <p>“It is further agreed that the said D. C. Dunn, shortly after the execution and delivery to him of said note and mortgage of $6000, to-wit, on the 23rd day of September, 1904, borrowed of The First National Bank of Wapakoneta, Ohio, the sum of $6000 and executed to said bank his own note for said sum; and at the same time for the purpose of securing said loan to him, he transferred to said bank the said note and mortgage for $6000 as collateral security, by writing or endorsing on the margin of said mortgage the following words: “For value received I hereby assign the within mortgage and transfer the note which is secured by same to The First National Bank of Wapakoneta, Ohio. D. C. Dunn” and delivering said note and mortgage to said bank, and endorsing his name on the back of said note, which transfer was duly recorded on the margin of the record of said mortgage on November 29th, and that said bank, at the time it so received said note and mortgage, had no knowledge of any of the facts before recited and no notice or knowledge ■ of any claim on the part of any one that said note and mortgage of $6000 was other than the individual property of the said D. C. Dunn, or that the property upon which said mortgage was given was or had been other than the individual property of R. J. Dewey; that said note of D. C. Dunn, as collateral to which the said $6ooo note and mortgage were transferred to it, is past due and unpaid and the said bank is still holding said $6ooo note and mortgage as collateral to said indebtedness.</p> <p>“It is further agreed that Joshua R. Raudabaugh has paid the taxes and assessments as set forth in his answer and cross-petition and that the same is the first and best lien upon said premises for the amount that he claims due him in said cross-petition, with interest as prayed for in said cross-petition.</p> <p>“It is further agreed that the averments of the answer and cross-petition of Charles F. Ashton herein are true.</p> <p>“It is further agreed that the above statement of facts shall be taken as the complete evidence in this case.</p> <p>“It is further agreed that the existing and unpaid indebtedness against The South Side Lumber Company accrued prior to and existed before the 15th day of September, 1904.”</p> <p>Upon the facts thus agreed to the circuit court decreed the cancellation of the mortgage as against.the bank and ordered Dewey to execute a deed to convey the premises covered by the mortgage to Brotherton as trustee.</p>

<p>Error to the Circuit Court of Lucas county.</p> <p>On the 14th day of May, 1903, the plaintiff 'in error was liable to Harley Mattison for damages received in a railroad accident, and on that date Mattison entered into a written agreement with the defendant in error, Charles A. Thatcher, who is an attorney, to prosecute the claim against the plaintiff in error, and stipulated that the defendant in error should be paid for his services, in case of the settlement of the said claim, one-third of the amount so recovered, or one-half of the amount recovered in case of' trial. In said written agreement Mattison also assigned to said Thatcher “an interest in the subject-matter of said claim equal to said fees.”</p> <p>On the 28th day of May, 1903, Thatcher wrote to the superintendent of the plaintiff in error at Toledo, Ohio, notifying the latter that he, Thatcher, was attorney for Mattison and expressed a desire to open negotiations for settlement. He concluded the letter as follows: “You will please take notice that Mr. Mattison has assigned to me a portion of whatever may be paid in suit or settlement for services to be rendered in connection with said claim.” Thereafter Thatcher had some negotiations with the officials of the plaintiff in error looking to compromise; but on or about August i, 1903, while Thatcher was temporarily absept from the city, Mattison took the matter into his own hands, went to the office of the plaintiff in error in Toledo and then and there settled his claim for $3,000, which, was paid to him at that time; and he thereupon gave to the plaintiff in error a release in full for his claim. When Thatcher learned of the compromise and demanded of Mattison $1,000 as his fees under the agreement, a dispute arose as to the value of the services and Thatcher then notified the Company that he would look to it for the full amount of his fees and that unless the matter should be adjusted without further delay he would begin an action against the Company. Negotiations continued, however, between Thatcher and Mattison until August 14. Meantime, on the day after the settlement with the plaintiff in error, defendant in error had an interview with Mattison at Mattison’s house, in presence of Mattison’s wife, mother and sister-in-law. Defendant in error demanded of Mattison one thousand dollars. The latter said he only had in the house between $700 and $800. Defendant in error asked to count it and it was given to him for that purpose. .Defendant in error counted it and then said he would keep the money and apply it on account. Mattison got excited and got between defendant in error and the door, when the latter gave up the money.</p> <p>On August 14, 1903, Mattison and Thatcher met in a saloon in Toledo, and the former paid $300 on Thatcher’s claim for services and received the following release: “Harley Mattison having deposited $300 with C. B. Hadden I agree to prosecute the Pennsylvania Co. for balance of my fees and not to prosecute the said Mattison for the same for the reason that said Mattison is insolvent and a judgment against him would be of no account. If any action is taken by me against said Mattison said payment of $300 to said Hadden is void and said $300 shall be returned to him.” (Signed) “C. A. Thatcher.” Witnessed by E. Miller, H. Schnetzler, C. B. Hadden. Hadden is a lawyer who rented his office from Thatcher and he deposited the $300 in a bank, took a certificate of deposit therefor and indorsed and delivered the same to Thatcher, who still has it.</p> <p>On May 14, 1904, the defendant in error filed his petition against the plaintiff in error in the court of common pleas of Lucas county alleging that the defendant was a railroad corporation having a line of railroad and doing business in the city of Toledo; that on the 14th of May, 1903, it was liable to Harley Mattison in a large sum of money for a tort committed by the defendant; that the plaintiff was employed by said Mattison as his- attorney, and setting out the contract of employment as hereinbefore stated; that on the 23d of May, 1903, the plaintiff served notice upon the defendant of his interest in the claim and that he had performed everything required of him in carrying out the terms of the employment; that the defendant had promised and agreed with the plaintiff to adjust said claim through him and to pay to him the amount that might be agreed upon in the settlement of said claim, but that, instead of so doing, on or about August 1, 1903, the defendant paid to Mattison the sum of three thousand dollars in settlement of said claim, which said sum included the amount which was due to the plaintiff. under the said terms of employment. The plaintiff avers that he had attempted to collect the sum so due him from Mattison; that Mattison had deposited the sum of $300 to be applied on the amount due to the plaintiff, and was, and is, insolvent; that the payment was made by the* defendant for the purpose of defrauding the plaintiff; and that by reason of the premises the defendant is indebted to and liable to the plaintiff in the sum of $700, with interest from the 1st day of August, 1903, for which he prays judgment.</p> <p>The defendant answered this petition: first, by admitting its corporate capacity and the allegation that it had paid to Mattison the sum of $3,000 in full settlement for-injuries which he had received while in the employment of the defendant, and denies each and every allegation in the petition not herein expressly admitted; second, the defendant further answering says that the plaintiff demanded in settlement of Mattison’s claim the sum of ■ $8,000; that the plaintiff was at the same time authorized by Mattison to settle for the sum of $3,000; that when plaintiff made demand of the defendant of the sum of $8,000, defendant notified Mattison of that fact and Mattison thereupon informed the defendant that the plaiiitiff was no longer his attorney but that one S. H. Kelley would represent him in negotiation for settlement; that thereupon Kelley did negotiate with the defendant and through and by his advice said Mattison accepted the sum of $3,000 in full settlement and discharge of the defendant; that said Kelley was present during the negotiations of settlement and when said money was paid, and had said Mattison execute a written agreement of settlement as aforesaid, and thé defendant therefore denies that at the time the settlement was made the plaintiff was the attorney of Mattison; and third, the defendant further answering says that after said settlement had been made, the plaintiff called upon said Mattison at his home and demanded that Mattison should turn over to him the money which he had received in settlement of the claim, which Mattison refused to do; that thereupon the plaintiff made a threat of prosecution and so intimidated Mattison that he turned over a large part of this money to the plaintiff, and the defendant avers that the plaintiff was thereupon paid in full for all services which he may have rendered Mattison as stated in the petition; and that the defendant is informed the plaintiff thereafter returned said money to said Mattison, and avers that if the money was returned by the plaintiff as aforesaid it was by voluntary action of plaintiff and for the purpose of carrying out some mutual arrangement between himself and said Mattison.</p> <p>By way of reply, the plaintiff denied that Mattison at any time authorized the plaintiff to accept $3,000 in settlement of said Mattison’s claim against the defendant, and avers that Mattison requested him to take the sum of $8,ooo, and no other sum; that at the time the said demand was made by him it was believed that Mattison would never recover from said injuries and that he was justly entitled to receive the sum of $8,ooo. Plaintiff denies any knowledge of any statement Mattison may have made to the defendant regarding the employment of one S. H. Kelley as his attorney. The plaintiff avers and believes that Kelley was never employed by Mattison as his attorney, but that he was secured to act for the defendant in its effort to settle the said case. Plaintiff also avers that Mattison did not employ Kelley as his attorney, but that the defendant did employ him to use his influence over said Mattison- to induce him to settle the claim; that Mattison at no time discharged plaintiff as his attorney; that when said settlement was made plaintiff was absent from the city of Toledo, and prior to leaving said city the defendant through its authorized attorney promised and agreed with plaintiff that no settlement of said claim should be made during the absence of said plaintiff from said city but that the same should be taken up with the plaintiff on his return to the city; and plaintiff charges that the purpose of the defendant in making settlement without plaintiff’s knowledge was to take advantage of the said Mattison and to defraud plaintiff out of the amount to which he was justly entitled. He further says that it is not true that he in any manner intimidated or threatened said Mattison with prosecution, and that it is not true that Mattison turned over to him the money, or a large part, which Mattison had received from the defendant. Plaintiff' says that he has never been fully paid for the services rendered by him to said Mattison, and denies each and every allegation in the answer contained, except such matters as are alleged in his petition.</p> <p>A trial of said case resulted in a verdict and judgment for the plaintiff. Motion for a new trial was overruled, a bill of exceptions taken, petition in error filed in the circuit court, and on the hearing in the circuit court the judgment of the court of common pleas was affirmed. This proceeding is prosecuted to reverse the judgments of the courts below.</p>

<p>Claim on unwritten contract against estate — Allowed by administrator and subsequently rejected — Under Section 6098, Revised Statutes — Suit may be brought, though six years have elapsed, when — Application of statute of limitations.</p> <p>Suit upon a claim founded on a contract not in writing againsf the estate of a deceased person which claim has been duly presented for allowance to the administrator, and duly allowed by him, and subsequently, at the instance of an heir or creditor, disallowed and rejected, may, by force of section 6098, Revised Statutes, be brought within six months after notice of such rejection, notwithstanding that, deducting the time intervening between such allowance and such rejection, more than six years have elapsed after the accruing of the cause of the action. Thomas v. Chamberlain, 39 Ohio St., 112, distinguished.</p>

<p>Error to the Circuit Court of Summit county.</p> <p>In 1902 the plaintiff went into the store of the defendant to make a purchase and fell through an opening in the floor and was injured. In 1903 she commenced an action against the Company to recover for her injuries. The Company answered denying the averments of the petition and setting up a release. A reply was filed by the plaintiff but, it is said, when the cause came on for hearing it was discovered that no tender had been made, as required by the ruling in The Manhattan Life Ins. Co. v. Burke, 69 Ohio St., 294, and so the case was dismissed without prejudice. In 1905 she again commenced an action against the defendant to recover for these injuries. In the first cause of action she stated her injuries and the negligence of the defendant and in a second cause of action she averred that the defendant company had paid her fifteen dollars for servant hire, and that they had obtained her signature to a release of her cause of action by fraudulently representing it to be merely a receipt for the money they had paid her for servant hire, she being an illiterate woman and unable to read or write except to sign her name. She pleaded a tender to the defendant of the money received and prayed that the paper writing, a copy of which she set out, might be set aside and held for naught.</p> <p>The defendant answered denying the averments of negligence and set up contributory negligence on part of the plaintiff, and the plaintiff filed a reply.</p> <p>When the case came on for trial the court permitted the plaintiff to withdraw her second cause of action, and granted leave to the defendant to file an amended answer. The defendant filed an amended answer, and the second defense to the first cause of action is as follows:</p> <p>For a second defense to the first cause of action of plaintiff’s petition, defendant says that if it is chargeable with the negligent acts complained of therein, a fact which this defendant wholly denies, nevertheless the said plaintiff ought not to maintain this her action for that, after the injury received by said plaintiff, she permitted and requested th,js defendant to pay to Dr. Harry M. Todd, her then attending physician the amount of his bill for professional services rendered to her, which this defendant did pay and, at or about the same time this defendant, at plaintiff’s request, also jiaid her nursing bill; and that thereafter, to-wit: on or about February 8, 1902, the plaintiff also received and accepted from this defendant, as a full complete payment and release of all claims for damages and expenses against this defendant and arising from such injury, the further sum of fifteen dollars ($15.00), with full knowledge upon her part that she was not bound to accept the same, but that in so doing she released this defendant from any claims for damages against it arising from the injuries set forth in her petition, and thereupon and in consideration of the payment by this defendant of said sums and on or about the day last above set forth, she executed and delivered to this defendant her said receipt and release in that behalf in writing as follows, to-wit:</p> <p>“Akron, Ohio, Feb. 6th, 1902.</p> <p>“Received of The M. O’Neil & Co., fifteen dollars, in full settlement of any and all injuries received by me in the store of said company on the 30th day of January, 1902,- and do hereby release it from all liability or damage. -$15.00. Witness, Harry D. Todd. Mary Perry.”</p> <p>And this defendant avers that by reason of the matters and things set forth in this, its second defense, plaintiff released this defendant from all liability to her by reason of the injuries complained of in her first cause of action of her petition.</p> <p>The plaintiff to this defense filed the following reply:</p> <p>2. For her reply to defendant’s second defense, plaintiff admits that one.Harry D. Todd did perform some professional services upon her immediately following her said injuries. Plaintiff further admits that on or about the sixth day of February, .1902, defendant did pay to her the sum of fifteen dollars and that on said' date she signed a certain paper writing and says that at the time of signing said paper writing, which was at her home and where said transaction occurred defendant by its agents and employes procured and induced plaintiff to sign said paper writing which she was to lead to believe by defendant" and its said agents and employes to be a mere receipt for money paid for servant hire and nothing more, but which she afterward learned from said defendant its agents and employes was a release of all claims and damages for injuries set forth in her petition.</p> <p>Plaintiff says that at the time she signed said paper writing she was confined to her bed, was suffering great bodily and mental pain as the result of her injuries, was under the influence of opiates was in no condition to consider the effect of said paper writing, is an illiterate woman, unable to read or write except to sign her name, and no one was present to whom she could look for advice or direction.</p> <p>That while she was sick and disabled the said defendant by its agents and employes paid to her the sum of fifteen dollars, only ten dollars of which was paid her at the time of signing said paper writing. That plaintiff in signing said paper writing did so under a mistake as to the contents of the same, and upon the representation of the defendant its agents and employes that it was a mere receipt for servant hire as aforesaid, and under the impression that she was simply-signing a mere receipt and while she was physically and mentally incapacitated from acting in the matter.</p> <p>Plaintiff further says that said defendant, its agents and employes, one of whom, Plarry D. Todd, was a practicing physician, represented to her that she would be well and able to be about in four weeks from the time of her said injury and that the cost of employing a servant for that time would be ten dollars, whereupon said defendant, by its agents and employes paid plaintiff ten dollars, and plaintiff signed said paper writing, not knowing that it was a release of her claim for damages against said defendant for said injuries but believing it to be a receipt for ten dollars for said servant hire and nothing more; that she did not intend to sign a release and would not have signed it, if she had known that it was other than a receipt merely for the money paid her as aforesaid.</p> <p>Plaintiff- further says that at the time she signed said paper writing the defendant, its agents and employes did not make known to her that they were present for the purpose -of adjusting her claim for damages against the defendant and settling the same, as they were bound to do, knowing that she was an illiterate woman, had had no experience in such matters and that she was mentally and physically weak as a result of her said injuries and in no condition to act intelligently in the premises.</p> <p>Plaintiff further says that the said paper writing herein set forth was procured by the defendant, its agents and employes from the plaintiff by fraud and false representation in this that defendant by its agents and employes represented to plaintiff that said paper writing was a receipt for the ten dollars for servant hire as aforesaid and nothing more and that she would be well and able to be about in four weeks from the time of her said injury and that said ten dollars was for servant hire for said period of four weeks and nothing more and that said receipt was for ten dollars only, all of which were then known by defendant its agents and employes to be false and untrue, and were made by defendant, its agents and employes with the intent to deceive plaintiff, and plaintiff relying on the same and believing them to be true executed said pretended release.</p> <p>Plaintiff further says that defendant, its agents and employes fraudulently and with intent to deceive plaintiff withheld from her the fact that they were present for the purpose of settling and adjusting her claim for damages against said defendant for her said injuries, and that by signing said paper writing she would surrender any and all claim for damages against said defendant for said injuries and would be forever barred from making any claim against said defendant for said injuries, and plaintiff did not know that by signing said paper writing she would in any way prejudice her right of action against said defendant for said injuries.</p> <p>Plaintiff further says that in the latter part of March, 1902, defendant paid her the additional sum of five dollars making a total sum of twenty dollars paid by defendant to this plaintiff.</p> <p>Plaintiff further says that on or about the 2d day of February, 1905, plaintiff by her attorney for and on her behalf tendered to the defendant’s attorney for and on defendant’s behalf the sum of twenty dollars, being the amount of money paid by defendant to plaintiff as aforesaid, but said defendant’s attorney refused to accept said sum of twenty dollars, stating' that defendant had paid a sum of money to and for the benefit of plaintiff largely in excess of said twenty dollars, but which amount he could not state, whereupon plaintiff by her attorney called at the store of defendant and was informed by defendant, its agents and employes, that defendant had paid plaintiff in money, and doctor’s bills, cab hire, a dress, etc., approximately eighty-three dollars, and on the following day, February 16th, 1905, plaintiff by her attorney for and on her behalf, while denying 'that any such sum was paid to her or on her account, tendered to the defendant’s attorney for and on behalf of defendant at his office in Akron, Ohio, the sum of.$100.00 in gold, which said attorney refused to accept, and still refuses so to do.</p> <p>The defendant requested the court to charge the jury before argument as follows: “The instrument set forth in defendant’s answer, to-wit: ‘Akron, Ohio, Feb. 6th, 1902. Received of The M. O’Neil & Co., fifteen dollars, in full settlement of any and all injuries received by me in the store of said company on.the 30th day of January, 1902, and do hereby release it from all liability or damages. $15.00. Mary Perry. Witness — Harry D. Todd,’ is a release of all claims and demands of plaintiff for the injuries sued upon in this case and is an absolute bar to. a recovery by plaintiff in this case.” In the general charge the court instructed the jury as follows:</p> <p>“This court charges you as the law that a written instrument signed by the parties, or by one party and delivered to the other, is prima facie evidence of the truth of the contents of such instrument; that is, that it affords a presumption that the recitals made in such instrument concerning the transaction are true. This however, is likewise not a conclusive presumption; it is a disputable one and open to explanation where a want of knowledge and fraud are charged. I say further to you that fraud is not to be presumed, but must be shown by clear and convincing proof from all the facts and circumstances of the case; and the burden of proving the same is upon the party relying upon the fraud either to make his case or to constitute or to make his defense.</p> <p>“On this subject of settlement or release, which is offered as a defense, the burden of proof is upon the defendant to show that the settlement was made and the release signed and executed by the plaintiff, the plaintiff all the while knowing or being advised at the time of the contents of any written release. I say to you as a matter of law, if she knew the terms and conditions of any settlement that may have been made or was advised or had read to her the terms and conditions of any written release, she would be presumed in law to know the legal effect of any such settlement or release. If, however, she did not know or was not advised of the terms and conditions of a settlement for any liability growing out of the injuries in question, then there could be no settlement and no release that would be valid in law; the minds of the parties would not have met, they would not have contracted with reference to any settlement or release; but if the jury find that there was a settlement then and there made simply as to doctors’ bills, nursing, hired help, or any other incident, but that said settlement did not include any liability claimed against the defendant company by reason of the injuries the plaintiff may have received in defendant company’s store on the 30th of January, 1906, then such release would not be a bar to this action, and could only be regarded by the jury in diminishing' any amount to be recovered by the plaintiff from the defendant company to the extent of any sums so paid in money or merchandise or doctors’ bills by the defendant company, and to the extent of excluding from your consideration the items included in any such settlement. If the jury find that there was a full settlement or a full release made and executed for any and all liability growing out of the injuries of the plaintiff at the defendant company’s store on the 30th of January, 1902, under these instructions, then your verdict should be for the defendant.”</p> <p>The jury returned a verdict for the plaintiff and on error the circuit court reversed the judgment for error in refusing to charge the jury as requested and for error in that part of the charge above set out in which the court instructed the jury that, “the burden of proof is upon the defendant to show that the settlement was made and the release signed and executed by the plaintiff, the plaintiff all the while knowing or being advised at the time of the contents of any written release.”</p>

<p>Error to the Circuit Court of Clark county.</p> <p>The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company filed its petition in the court of common pleas of Clark county, Ohio, against the treasurer of said county praying that he be enjoined from collecting from it the back taxes charged against certain lots in the city of Springfield, the property of said railway company. Said lots, on July 31, 1901, were entered by the auditor of said, county as omitted lots, upon the county duplicate of 1900 then in the hands of the county treasurer, and taxes were charged thereon against said lots for the year 1900, together with the simple taxes of each and every preceding year in which said lots had escaped taxation back to the decennial appraisement of 1890.</p> <p>Upon the filing of plaintiff’s petition a temporary injunction was allowed by the court of common pleas, but upon the final hearing of said cause this injunction was dissolved, the petition of plaintiff dismissed, and judgment was rendered in favor of the treasurer for the sum of $968.84.</p> <p>On appeal to the circuit court a like judgment was rendered by that court. To reverse this judgment of the circuit court error is prosecuted by the railway company.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>William F. Malone and Frank Gorman, partners as Malone and Gorman, brought suit in the court of common pleas against the Willson Improvement Company to recover for work and material in constructing a brick and steel apartment house in the city of Cleveland. Their amended petition, upon which the cause was tried, contained four causes of action for the balance of the contract price of $118,544.00, for increase in the cost resulting from subsequent changes of the contract and for damages resulting from delays alleged to have been occasioned by the defendants, concluding with a prayer for a judgment for $29,309.48, and for no other relief: By cross-petition the company sought to recover from the plaintiffs on account of defects in workmanship and material and delay in completing the work. Later the sureties upon the bond of the principal contractors were brought in and allegations were made charging them with liability to the owner because of their alleged defaults. Numerous material-men and sub-contractors filed cross-petitions setting up' their claims and asking to be compensated out of any sum which might be found due from the owners to plaintiffs. The subjects of controversy raised by the issues were very numerous. All the parties waived a trial by jury and the court upon the pleadings and the evidence rendered judgment in favor of the plaintiffs for $13,195.00. Thereupon the company took steps to appeal the cause to the circuit court. It also filed a petition in error in the circuit court with a bill of exceptions containing all the evidence adduced upon the trial in the common pleas and praying for a reversal of the judgment upon the ground, among othérs, that the judgment was contrary to the weight of the evidence. In the circuit court Malone and Gorman moved to dismiss the appeal upon the sole ground that the action was not appealable. Their motion was overruled. The circuit court, having decided that the action was appealable, of its own motion, dismissed the petition in error. That order of dismissal is assigned for error here.</p>

<p>Motion for verdict at close of plaintiff’s evidence overruled — Exception waived by introduction of evidence, vahen.</p> <p>Where on the trial of a civil action, the defendant, at the close of plaintiff’s evidence, moves for a verdict thereon in his favor, and on excepting to the decision of the court overruling said motion, introduces evidence to support his grounds of defense, and rests without renewing the motion at the close of all the evidence, the exception is deemed to be waived, and it is no longer a predicate for error in a reviewing court.</p>

<p>Contract for fee of attorney — Contingent upon amount recovered— Valid — Provision against compromise by .client — Invalid—■ Vitiates entire contract.</p> <p>1. While a contract for an attorney’s fee contingent upon the amount to be recovered by judgment or settlement is ordinarily valid, yet when such contract contains a stipulation that the client shall not compromise or settle his claim without the consent of the attorney, it is champertous and voidable at the option of the client, and its illegality will avail as a defense in any action against a third party which is based on the contract.</p> <p>2. In such case the illegal stipulation cannot be ignored and the other provisions of the contract enforced.</p>

The controversy out of which this error proceeding arises had its.origin in the probate court of Wyandot county by the filing therein by the plaintiff in error, Flora E. Chamberlain, of a motion for the removal of George A. Stecher, here defendant in error, as administrator de bonis non with the will annexed of George Van Pool, deceased. The motion was overruled. On appeal to the common pleas that court sustained the motion and ordered the administrator removed.

<p>Acceleration of remainders — Doctrine applies, when — Devise of one sixth to widozv and remainder to son — Widow elects dower— Doctrine does not apply — Construction of wills.</p> <p>1. Under the doctrine of acceleration of remainders a devise to A for life, and at his death to B, is to be read as a limitation of a remainder, to take effect in every event which removes the prior estate out of the way; but this doctrine rests upon the presumed intention of the testator and will be applied only when promotive of his intention.</p> <p>2. When a testator devises one-sixth of his real estate to his widow for life, and at her death to a son, and devises the remaining five-sixths of his real estate to others, and the widow elects to take her dower and distributive share, the value of which exceeds the value of her life estate in the one-sixth, the remainder in the one-sixth will not be accelerated, but the widow’s life estate will be sequestered to compensate the disappointed devisees.</p>

<p>Power of county commissioners to issue bonds — Section 2834a, Revised Statutes — Action to enjoin delivery of bonds — Money judgment against recipient of bonds — May be rendered, when.</p> <p>1. County commissioners are authorized by Section 28340, Revised Statutes, to issue new bonds and to exchange them for outstanding bonds, 'but they are not authorized to exchange them for the promissory notes or other evidences of the debt of the county.</p> <p>2. In a suit by a taxpayer, against the board of county commissioners and the party to whom the bonds of the county have been delivered without authority of law, to enjoin the delivery of the bonds, the court may render a money judgment against such party for money had and received or for a conversion of the bonds, when it appears from the facts disclosed on the hearing, but not known to the plaintiff when he brought his suit, that the bonds had already been issued and delivered and had been transferred to a bona tide holder.</p>

Suit was brought by the plaintiff in error, Elizabeth Miller, in the court of common pleas of Ross county against the Baltimore & Ohio Southwestern Railroad Company to recover damages for alleged injuries to her property and person, caused, as she averred, by the negligence of said railroad company.

Mrs. Regan, as administratrix of John Regan, deceased, brought suit in the court of common pleas to recover from McHugh $413.70, the sum which she had been compelled to pay to redeem certain real estate in Cincinnati from a tax sale which had resulted from the alleged default of the defendant to pay the-taxes agreeably to his covenant as lessee of her intestate.

Benjamin Powell brought suit in the court of common pleas against the defendant in error on a promissory note, of which the following is a copy: “$i,ooo.

The defendant in error sued the plaintiff in error to recover the amount of two deposits which he had made in the plaintiff in error’s bank, alleging that some person unknown to him had stolen his pass-book and forged his name to an order authorizing the payment of the amount of his deposits, and that the plaintiff in error on the presentation of the said pass-book and forged order negligently and without due care paid out said deposits to a party who was not entitled…

<p>Prosecution for selling intoxicating liquors — Sections 4304-30zg and 4364-30ZI1, Revised Statutes, apply to error proceedings— Motion to Me petition in error — Allowance by one judge— Does not give jurisdiction to circuit court.</p> <p>1. The specific provisions of sections 4364-30^, and 4364-30,0/1, Revised Statutes, control the prosecution of error proceedings brought to reverse a -conviction for violation of any law prohibiting the sale of intoxicating liquors in any territory or district, or to reverse any judgment affirming such conviction, notwithstanding such provisions are inconsistent with more general provisions of other sections of the Revised Statutes.</p> <p>2. By force of the provisions of the above cited sections the allowance by one judge of the circuit court of a motion for leave to file a petition in error to reverse a judgment of the court of common pleas affirming a judgment of conviction for violation of any law prohibiting the sale of intoxicating liquors, does not give to such court jurisdiction to try and determine the errors complained of.</p>

<p>Article XVII, amendment to Constitution — Act of April 16, '1906 (98 O. L., 271) — Term of sheriff extended — Sheriff not ineligible to succeed himself — Article X, Section 3, of Constitution.</p> <p>The object of the constitutional amendment, Article XVII, and of the act of April 16, 1906 (98 O. L., 27Í), passed pursuanj: thereto, was the continuance in office of the incumbents, during the interregnum occasioned thereby, and a sheriff whose term of office was extended under the act, is not • ineligible, under Section 3, of Article X, of the Constitution, to succeed himself for another term.</p>

<p>Sale of intoxicating liquors — Goods delivered to carrier — Sale completed thereby, when — Place of sale is where — Title passes, when — Agency.</p> <p>When, pursuant to specific instructions from the purchaser, goods sold are forwarded to him by express, marked C. O'. D., the express company is the agent of the purchaser to receive said goods from the seller, and the agent of the seller to receive their price from the purchaser, and upon delivery to the carrier, title to the goods passes to the purchaser, although he is not entitled to their actual possession until he pays or tenders the purchase price. The sale is complete when the goods are delivered to the carrier, and the place of sale is the place of delivery to it.</p>

<p>Error to the Circuit Court of Summit county.</p> <p>Huber brought suit in the court of common pleas to recover from the city of Akron damages alleged to have been sustained by him by reason of the change of the grade in South street, upon which real estate owned by him abuts. Upon the trial in- the court of common pleas the cause was submitted to a jury upon the allegations of the •pleadings, the admissions of the parties in open court made for the purposes of the trial, the evidence offered by Huber, the city offering none, and the instructions given by the trial judge. The material facts so presented'were as follows: Huber purchased his lot of 35 feet by 153 feet in 1887. It was not, at that time, within the corporate limits of Akron, but in Coventry township. The street had been opened as a public highway in 1817, and had been so used continuously since that date. In 1887 Huber erected his house upon the lot. The roadway and Huber’s lot became a part of the city of Akron by extension of its corporate limits in 1889. The cutting down of the street in front of his premises occurred in 1902, prior to which date no grade had been fixed, either .by action of the public authorities, or by the construction of a roadway. A little less than one hundred feet of the traveled way, including the portion upon which Huber’s lot abuts, was upon continuous outcropping rock, which had always determined the grade, upon which the road was used. Its surface was irregular and "the grade of the way steep. The ground in the vicinity was •rugged, a portion of Huber’s lot being several feet below the present grade of the way. The improvement of the street was made to adapt its grade and condition to the necessities of increasing travel. It consisted in removing the sandstone to a line a little less than three feet below the front portion of Huber’s lot, leaving it still higher than other portions of his lot. By reason of this change Huber was put to some expense in changing the way from the street to his lot, and in constructing a low retaining- wall to keep in place' such soil as was there or he might place there. On this undisputed state of facts , the court gave to the jury some instructions, refusing others, all of which will be sufficiently adverted to in the opinion. The jury returned a verdict in favor of the city. A motion for a new trial was made and overruled, and judgment was entered upon the verdict. Huber thereupon filed a petition in error in the circuit court where the judgment of the court of common pleas was reversed. This proceeding in error is for the reversal of the judgment of the circuit court.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>The case is stated in the opinion.</p>

<p>Error to Circuit Court of Knox county.</p>

<p>Error to Circuit Court of Hancock county.</p>

<p>Error to Circuit Court of Ashtabula county.</p>

<p>Error to Circuit Court of Haniilton county.</p>

<p>Error to Circuit Court of Clermont county.</p>

<p>Error to Circuit Court of Tuscarawas county.</p>

<p>Error to Circuit Coubt of Crawford county.</p>

<p>Error to Circuit Court of Franklin county.</p>

<p>Error to Circuit Court of Franklin county.</p>

<p>Error to Circuit Court of Franklin county.</p>

<p>Error to Circuit Court of Cuyahoga county.</p>

<p>Error to Circuit Court of Richland county.</p>

<p>Error to Circuit Court of Hamilton county.</p>

<p>PJrror to Circuit Court of Marion county.</p>

<p>Error to Circuit Court of Defiance county.</p>