Volume 82 — Ohio State Reports, New Series

The controversy between the parties was first heard by a justice of the peace, where the plaintiff in error prevailed and recovered judgment against the defendants in error. The latter appealed to the court of common pleas, where an issue was made up by the petition and answer thereto.

<p>Error to the Circuit Court of Lucas county.</p> <p>Sullivan and others brought suit in the court of common pleas to recover from the telegraph company special damages alleged to have been sustained by them as a result of its negligent failure to deliver a telegram. They alleged that 'they were the owners, Sullivan being the mánaging owner, of the steamer “David W. Rust” which in the season of 1905 was engaged in carrying freight on the Great Lakes and tributary and .connecting rivers; that on the second day of December, when navigation was about to close, the steamer was at the Minnesota clock at the port of Buffalo about to sail light for her home port Toledo. That on that day Sullivan having nearly completed arrangements for a cargo of coal to be carried by the steamer from Buffalo to Toledo, being twelve hundred tons to be carried • at the rate of fifty cents per ton, at 9:45 p. m. delivered to the telegraph company’s agent at Toledo, written upon one of its blanks, the following telegram: “To Capt. Wm. J. Leaver, Steamer D. W. Rust, care Minnesota Dock, Buffalo, New York. Will wire you in the morning about coal. Collect. L. S. Sullivan.” They allege that said dock was about a mile and a half distant from the telegraph company’s Buffalo office where the telegram was received at 11:10 r. M. Eastern time; that the purpose of the telegram was to hold the steamer at Buffalo until Sullivan could complete arrangements for a cargo of coal to be carried to Toledo, but that although the telegraph company’s office was connected with the Minnesota dock by telephone, it negligently failed to deliver the telegram before 3:15 a. m. of the following day when the steamer left the dock for Toledo without cargo, and that by reason thereof the plaintiffs were unable to communicate with the steamer respecting the cargo of coal, and it went to Toledo without cargo, the plaintiffs losing thereby the agreed amount to be paid for its carriage for which they prayed judgment.</p> <p>The telegraph company answering admitted that it received the telegram at its Toledo office Efnd transmitted it to its Buffalo office as alleged, and that its latter office was connected with the Minnesota dock by telephone. It denied all the other allegations of the petition. On the trial to the court and a jury, the plaintiffs offered evidence tending to show that by Sunday morning, December 3, Sullivan had completed arrangements with the Toledo and Buffalo agents of a coal company for a cargo of coal to be brought by the steamer from Buffalo to Toledo as alleged, but that the same could not be communicated to the captain of the steamer because he had already left the port at Buffalo. To show the failure to deliver the telegram of the second of December, the plaintiffs introduced the following telegram from the company’s Buffalo agent on the day following: “Yours 2nd. Steamer D. W. Rush left Minnesota dock about midnight 2nd before boy reached dock msg reed here lllOp.” The plaintiffs also introduced the steamer’s log containing the following entry: “December 3, 3:40 a. m. W. N. W. L. Left Buffalo. Snow.” Plaintiffs showed that the captain of the steamer had died before the trial and rested without offering any other member of the crew or any further evidence. The defendant offered no evidence. In the common pleas court a verdict in favor of the defendant was directed. The judgment following it was reversed by the circuit court and the cause was remanded for a new trial.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>Aaron E. Price, a citizen oi the village of Athens, which is situated on the blocking Valley railway, complained to the railroad commission of Ohio, in substance, that the village of Athens is situated on the Hocking Valley railway at a distance of 76.3 miles from the city of Columbus, measured along the right of way of said Hocking Valley railway company; that the village of Logan is located on the line of said railway' at a distance of 49.6 miles from the city of Columbus; that the city of Lancaster is situated on the line of the defendant railway at a distance of 31.5 miles from the city of Columbus; and further complained that the Hocking Valley railway company charges and collects from passengers buying tickets from the village of Athens to the city of Columbus, or reverse, the sum of $1.55, and that the said company charges for a round-trip ticket between Athens and Columbus the sum of $3.10. The complainant further charges that the said railway company makes a practice of selling to any person applying for the same at Logan or Lancaster what is known as a twin ticket which twin ticket entitles the holder to one round trip on any of the passenger trains of the defendant from the station where said ticket is purchased to the other and returh, or entitles two passengers to travel on. any of the company’s passenger trains from either of the stations where the twin ticket is purchased to the other locality; that the said twin tickets are sold at greatly reduced rates and at a much less rate per mile than is charged for tickets between Columbus and Athens and beyond Athens, thereby subjecting the complainant and other citizens of Athens to an undue and unreasonable disadvantage as compared to travelers between Logan and Columbus or Lancaster and Columbus.</p> <p>The railway company admitted the allegations of the complainant in regard to the use of the twin ticket system, but denied that it was an unjust or undue and unreasonable preference and advantage, and denied that the company is violating the laws of the state 6f Ohio. The railway company, for further answer, alleged that in order to preserve its local passenger business between such points, and by reason of competition created by interurban electric traction railways, it had reduced its rates for a radius of about fifty miles north and south of Columbus, and in order to accommodate its business between said points had put on additional trains, which since- May 13, 1905, have run and are running between Marion and Logan; and thereby it has increased the train service between those points and intermediate points. Upon hearing of the said complaint before the railroad commission of Ohio, said commission found against the railway company and ordered that the defendant cease from the unjust and unreasonable discrimination, as alleged in the petition of the complainant, ánd as found to exist by the said commission. The Hocking Valley railway company thereupon filed its petition in the court of common pleas of Franklin count)r, as authorized by the statute, averring that the order made by the railroad commission was unlawful and unreasonable and asking that the same be vacated and set aside. The railroad commission filed its answer in said court, and after trial, the court vacated and set aside the said order, and thereupon the railroad commission appealed the case to the circuit court of Franklin county, which court held that the order of the railroad commission was unlawful and unreasonable and rendered the same judgment as had been rendered .in the court of common pleas. The railroad commission prosecutes error to this court seeking to reverse the judgment of the circuit court of Franklin county and also that of the court of common pleas of Franklin county.</p>

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

<p>Claim allowed by executor — As valid against estate — Subsequently disallowed by successor of executor — Four years’ statute of limitations runs from rejection of claim — Section 6113, Revised Statutes.</p> <p>Where a claim presented by a creditor to the executor or administrator of an estate, is accepted and allowed by such executor or administrator as a valid claim against the estate which he represents, but is subsequently disallowed and rejected by the successor of the executor or administrator who allowed it, the four years! statute of limitation provided by Section 6113, Revised Statutes, begins to run in such case only from the time of the rejection of said claim. (Stewart, Admr., v. McLaughlin, Admr., 47 Ohio St., 55S, approved and followed.)</p>

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

<p>Error to the Circuit Court of Seneca county.</p> <p>On the 20th day of April, 1906, the defendant in error filed his petition in the court of common pleas of Seneca county, wherein he alleged that he was prosecuting attorney of said county, and that as such officer he brought the action under and by virtue of the provisions of Section 1277, Revised Statutes of Ohio. To this petition he made the plaintiff in error, Mary A. Loe, and Jesse Stephens parties defendant. Two causes of action are stated as grounds for recovery.</p> <p>The substance of the first cause of action, is, that working sections seven (7) and nine (9) of a county ditch known as the Royer ditch, on or about the 29th day of March, 1904, were duly sold to the defendant, James H. Loe, by one W. O, Bulger, then the county surveyor1 of said county, said Loe being the lowest and best bidder therefor; that afterwards, on or about the 31st day of March, 1904, in pursuance of the statute in such case provided, a written contract for the construction of said working sections was duly entered into between said James H. Loe and said county, through its said surveyor, for the consideration therein expressed of $2,101.45 to be paid to said Loe for performing all the labor of constructing all that part of said Royer ditch before specified, in accordance with the specifications thereof, such work to be fully completed by the 20th day of September, 1904; that such written contract was duly signed in behalf of said county by said surveyor, and by the said James H. Loe in behalf of himself, which was duly approved, together with a bond in the penal sum of $4,000 securing the full and prompt performance of the work of constructing that part of the ditch so sold to said James H. Loe in accordance with the specifications and by the time specified in said contract with the commissioners, on or about June 8, 1904. It is further alleged that of said sum of $2,101.45, the sum of $941 was to be paid to said. Loe for the construction of working section seven of said ditch, and the sum of $1,160.45 for the construction of working section nine of the same.</p> <p>The bond was conditioned, in substance, that if said James H. Loe should well and truly perform all and singular the terms ,of said contract for construction of said sections of the ditch, and pay all damages which may occur by reason of any failure on his part to complete said work within the time aforesaid, then the obligation to be void; otherwise to be in full force.</p> <p>It is alleged that said 'Royer ditch was authorized to be constructed in pursuance of the provisions of the law relating to county ditches, and ■said contract and bond were executed, delivered and approved in pursuance of said laws. Copies of the contract and bond are, by exhibits, made part of the petition.</p> <p>The plaintiff next alleged that said James H. Loe proceeded to the construction of that part of said ditch known as working section seven, but never fully completed the same; that, said work was so “negligently and inefficiently done and performed” by said Loe, that fully 1,000 cubic yards of earth agreed to be excayated and removed in said working section were not removed by him or the sureties on said bond, or by anyone else for him or them, and by reason of such neglect and failure the “efficiency” of said ditch has been great7 ly impaired.</p> <p>Further, that on or about, the 23d of January,. 1905, the said county surveyor, conspiring with said James FI. Loe to defraud said county, and to enable him to draw money out of the county treasury of said county, which said Loe had not earned, and for alleged work not by him performed, issued to said Loe a certificate as county surveyor, under Section 4477, Revised Statutes, certifying that the work of said James H. Loe in said work-' ing section seven had been fully performed, and that he was thereby entitled to the full sum of $41, both of said persons, W. O. Bulger, surveyor, and James H. Loe, being fully aware that said work had not been fully performed, and that a large portion of .said work was not then .performed.</p> <p>It is averred that upon' said certificate so issued the county auditor issued his warrant in favor of said Loe and delivered the same to him, which he presented to the county treasurer and received payment thereof, and that on former certificates of like character issued in October and November,-1904, said Loe had received payment, in all the full contract price for said section seven.</p> <p>It is then averred that said sum of $941 so paid to Loe on account of that- work is excessive in the sum of $250, said last sum being the amount it will require to complete the contract; that said payments were made out of the public funds of said county, and that by reason of the premises there is due from the defendants the sum of $250 with interest from January 23, 1905. Of the sum of money required to construct said Royer ditch, to-wit: $19,834.85, the sum of.$4,098.33 was paid by the county, and .not assessed upon the benefited lands.</p> <p>The second cause of action sets out what was done and what was not done by Loe, in performance of the contract as to working section nine of said ditch, and the averments to fix his liability are similar to those contained in the first cause of action, except the date and amounts -of the. warrants issued to Loe, by the county auditor, on which he collected and received from the county treasurer at the different date of the warrants sums which aggregate the full contract price for that section, $1,160.45, and it is alleged that said sum is excessive in the sum of $337.75, in that to the extent of that sum the work was not completed as required by the contract, and which work Loe refuses to complete. The bond-set out in the first cause of action also covers the work required on said, section nine.</p> <p>The prayer is for judgment for the amounts stated in the twp causes of action, which it is said is the extent of the failure by Loe to fully perform the contract.</p> <p>The sureties demurred- to the petition. The court sustained the demurrer, and as to them the case thus ended.</p> <p>The principal, Loe, also demurred on the ground that neither of the causes of action states facts sufficient to constitute a cause of action against him. This demurrer was overruled and exception entered to the decision. Thereupon Loe answered admitting the execution of the contract and bond and their approval as alleged in the petition, and that he proceeded with work on both sections, and that he received the warrants and collected the same as charged in the petition, the said surveyor having certified to the completion of both sections according to contract.</p> <p>The defendant denied the charge of conspiracy with the surveyor, alleged in the petition, and all fraudulent conduct imputed to him or them, and he affirms in the answer that he fully performed the contract and completed the work.</p> <p>The cause was tried to a jury, and the defendant excepted to each paragraph of the court’s charge. The jury found for the plaintiff in the sum of $501.85. The defendant’s motion for .new trial was overruled and judgment entered on the verdict. This judgment was affirmed by the circuit .court, and this court is asked to reverse both judgments.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>Plaintiff brought suit in the court of common pleas to compel the brewing company, a corporation of the state of Delaware, to accept the surrender of two certificates of its capital stock which he had received by assignment and. transfer from former owners thereof and issue to him a new certificate therefor. The judgment of the court of common pleas was in favor of the plaintiff, and the defendant appealed the cause to the circuit court, where, at the request of plaintiff, the facts were found and stated separate from the court’s conclusions of law. The finding of facts being appropriate to the issues joined and evidence adduced may be taken as a full statement of the case. It is as follows:</p> <p>1. On the 25th day of May, 1903, the defendant, Franklin Brewing Company, was duly organized and incorporated under.and by virtue of the laws of the state of Delaware, and has ever since continued to be and exist as such corporation.</p> <p>2. The defendant, Franklin Brewing Company, has ever since its organization conducted a general brewing business at Columbus, Franklin county, Ohio, with its entire property and holdings located at said place.</p> <p>3. Said defendant company has a capital stock of $225,000.00, divided into 2,250 shares, of the par value of $100.00 each.</p> <p>4. On or about the first day of February, 1905, plaintiff purchased, paying therefor a full and valuable consideration, twenty-five shares of the capital stock of said Franklin Brewing' Company from one M. H. Neil, who was then and there the owner and holder thereof and a stockholder in said defendant company, said shares of stock being represented by stock certificate No. 437. The said M. FT. Neil thereupon endorsed upon said certificate of stock his written assignment thereof to plaintiff, and delivered said certificate to plaintiff, who has ever since been the owner and holder thereof.</p> <p>The face of said certificate No. 437 reads as follows:</p> <p>“Incorporated under the laws of the State of Delaware.</p> <p>“No. 437. Shares 25.</p> <p>“Franklin Brewing Company.</p> <p>“Capital Stock, $225,000.00.</p> <p>“The Franklin Brewing Company has a lien upon the stock represented by this certificate for any and all indebtedness owing to it by the holder hereof, as shown upon the books of the company.</p> <p>“This certifies that M. H. Neil is the owner of 25 shares of the capital stock of Franklin Brewing Company, fully paid up, transferable only on the books of the corporation by the holder hereof in person, or by attorney, upon surrender of this certificate properly endorsed.</p> <p>“In witness whereof, the said corporation has caused this certificate to be signed by its duly authorized officers and to be sealed with the seal of the corporation, at Columbus, Ohio, this 10th day of January, A. D. 1905.</p> <p>Henry Seibert,</p> <p>“ [ Corporate Seal. ] PresidentA</p> <p>“Leonard Moi-ir, Secretary.</p> <p>The assignment of the said M. H. Neil on the back of said certificate No. 437 reads as follows:</p> <p>“For value received I hereby sell, assign and transfer unto James C. Nicholson twenty-five shares of the capital stock represented by the within certificate, and do hereby irrevocably constitute and appoint - to transfer the said stock on the books of the within named corporation with full power of substitution in the premises.</p> <p>“M. H. Neil.</p> <p>“Dated-</p> <p>“In presence of: W. L. McLaughlin/'’</p> <p>5. On or about the first day of February, 1905, plaintiff purchased, paying therefor a full and valuable consideration, two shares of the capital stock of said Franklin Brewing Company from one John E. Crooks, who was then and there the owner and holder thereof, and a stockholder in said defendant company, said shares of stock being represented by stock certificate No. 395. The said John E. Crooks thereupon endorsed upon said certificate of stock his written assignment thereof to plaintiff, and delivered said certificate to plaintiff, who has ever since been the owner and holder thereof.</p> <p>The face of said certificate No. 395 reads as follows:</p> <p>“Incorporated under the laws of the State of Delaware.</p> <p>“No. 395. Shares 2.</p> <p>“Franklin Brewing Company.</p> <p>“Capital Stock, $225,000.00.</p> <p>“The Franklin Brewing Company has a lien upon the stock represented by this certificate for any and all indebtedness owing to it by the hol'der hereof, as shown upon the books of the company. ' “This certifies that John E. Crooks is the owner of two shares of the capital stock of Franklin Brewing Company, fully paid up, transferable only on the books of the corporation by the holder hereof in person, or by attorney, upon surrender of this certificate properly endorsed.</p> <p>“In witness whereof, the said corporation has caused this certificate to be signed by its duly authorized officers and to be sealed with the seal of the corporation, at Columbus, Ohio, this 5th day of December, A. D. 1904.</p> <p>urr. , „ , , ' Henry Seibert, [Corporate Seal.] President” “Leonard Mohr, Secretary. rresiaem.</p> <p>The assignment of the said John E. Crooks on the back of said certificate No. 395 reads as follows:</p> <p>“For value received I hereby sell, assign and transfer unto James C. Nicholson two shares of the capital stock represented by. the within certificate, and do hereby irrevocably constitute and appoint- to transfer the said stock on the books of the within named corporation with full power of substitution in the premises</p> <p>“John E. Crooks.</p> <p>“Dated-=-</p> <p>“In presence of: Besse M. Baker/’’</p> <p>6. At the time plaintiff purchased said certificates'Nos. 437 and 395 there was printed on the back of each the following provision, together with the blank form for the written consent of the directors and president:</p> <p>“The stock represented by this certificate is not transferable except with the consent of at least two-thirds' of the directors of the corporation indorsed upon the back hereof and signed by said directors and the president of this corporation, naming the person to whom the same may be transferred, and bearing the corporate seal.</p> <p>“We hereby consent to the transfer of -</p> <p>shares of the stock represented by this certificate</p> <p>to- Signed by us this-day of</p> <p>-, 190 — .”</p> <p>“President.</p> <p> “Directors.”' </p> <p>7. On the 23d day of March, 1905, plaintiff presented each of said certificates, Nos. 437 and. 395, at the office of the defendant company, to. Leonard Mohr and Henry Seibert, who were at-the time secretary and president, respectively, of ■ said defendant company, and who were the proper officers of said company to make transfers of all stock certificates which had been sold and assigned and to accept a surrender of the old certificates and to- issue new certificates, at which time plaintiff offered to surrender said certificates Nos. 437 and 395, and demanded of said officers that they transfer to plaintiff said shares of stock and issue to him a new certificate therefor.</p> <p>Afterwards, on the 30th day of March, 1905, plaintiff presented each of said certificates, Nos. 437 and 395, at the office of the defendant company to its board of directors, which board of directors was then in session, and offered to surrender said certificates Nos. 437 and 395, and demanded of said board of directors that they cause said shares of stock to be transferred to plaintiff and a new certificate therefor to be issued to him. No further or other action in this matter was taken by the plaintiff, or by John E. Crooks or by Moses H. Neil, except the institution of this action.</p> <p>Said defendant company and said officers and board of directors at said times refused, and have ever since refused to accept a surrender of said certificates Nos. 437 and 395, and to transfer said shares of stock to plaintiff and to issue to him a new certificate therefor.</p> <p>8. On or about the 1st day of April, 1905, plaintiff requested the defendant company, through its proper officers, to allow him to inspect the books and records of said corporation and to fix a reasonable time for said inspection, which request was refused.</p> <p>9. Said defendant company has at all times refused to admit plaintiff as a member or stockholder of said corporation, and has denied him the fight to vote or to be voted for at any and all of its stockholders’ meetings, and has denied him the .right to exercise any of the rights or privileges of a stockholder.</p> <p>10. On the 25th day of May, 1903, at the first meeting of the incorporators and subscribers to the capital stock of said defendant company, held at the office of the Delaware Charter Guarantee and Trust Company, at Wilmington, Delaware, a set of by-laws was adopted. Section 19 of said bylaws reads as follows:</p> <p>“Section 19. In case’ any member of this company desires to sell all or part of the stock held by him, he shall notify the secretary of this company in writing, stating the amount of stock he desires to sell and the market value of same, when this company shall have an option on said stock for thirty days following such notice. The directors in turn shall first offer it for sale to saloonkeepers who are not stockholders; second, to saloonkeepers who are stockholders, and, third, to stockholders who are not saloonkeepers. The meaning of the word 'saloonkeepers/ as applied in this section, is held to be all men actually engaged in the saloon business/’</p> <p>Said Section 19 has not been changed, amended or affected in any manner by other or subsequent action.</p> <p>11. Paragraph 6 of Section 2 of the corporation laws of the state of Delaware provides that every corporation shall have the power—</p> <p>“To make by-laws, not inconsistent with the constitution or laws of the United States or of this state, fixing and altering the number of its directors for the management of its property, the regulation and government of its affairs, and for the certification and transfer of its stock, with penalties for the breach thereof not exceeding twenty dollars.”</p> <p>12. Section 3 of the corporation laws of the state of Delaware reads as follows:</p> <p>“Section 3. In addition to the powers enumerated in the second section of this act, every cor.poration, its officers, directors and stockholders shall possess and exercise all the powers and privileges contained in this act, and the powers expressly given in its charter or in its certificate under which it was incorporated, so far as the same are necessary or convenient to the attainment of the objects set forth in such charter or certificate of incorporation; and shall be governed by the provisions and be subject to the restrictions and liabilities in this act contained, so far as the same are appropriate to and not inconsistent with such charter or act under which such corporation was formed; and no corporation shall possess or exercise any other corporate powers, except such incidental powers as shall be necessary to the exercise of the powers so given.”</p> <p>13. Section 12 of the corporation laws of the state of Delaware reads as follows:</p> <p>“Section 12. The power to make and alter bylaws shall be in the stockholders, but any corporation may, in the certificate of incorporation, confer that power upon the directors. By-laws made by the directors under power so conferred may be altered or repealed by the directors or stockholders.”</p> <p>14. Section 16 of the corporation laws of the state of Delaware reads as follows:</p> <p>“Section 16. The shares of stock in every corporation shall be deemed personal property and transferable on the books of the corporation in such manner and under such regulations as the by-laws provide; provided, however, that no stock or bonds issued by any corporation organized under this act shall be taxed in this state when the same shall be owned by non-residents of this state, or airy foreign corporation. Whenever any transfers of shares shall be made for collateral security and not absolutely, it shall be so expressed in the entry of the transfer.”</p> <p>15. The section of the corporation laws of the state of Delaware, referred to in these findings of facts, were in full force and effect during the time of the matters and questions involved in this action.</p> <p>16. The plaintiff had no actual knowledge or notice of the provisions of the by-laws of the defendant company, except such knowledge and notice as he is chargeable with by reason of the provisions and recitations in and on the certificates. of stock, as the same are set forth in paragraphs 4, 5 and 6 of this findings of facts.</p> <p>17. The plaintiff had no actual knowledge of the provisions of the statutes of the state of Delaware.</p> <p>18. The plaintiff was at all times a citizen and resident of the state of Ohio.</p> <p>Upon this finding of facts the circuit court rendered judgment in favor of the defendant.</p>

<p>Suit by legatee against executor — Section 6211, Revised Statutes — ■ Necessary to prove demand before action — Finding of balance in hands of executor — Not foundation for action, when — Account died by executor conclusive — Unless impeached for error or fraud in four years,</p> <p>1. In a suit brought under Revised Statutes, Section 6211, by a legatee or 'other distributee against an executor or administrator, it'is necessary to allege and prove a demand upon, and neglect or refusal by, the defendant before the commencement of the action.</p> <p>2. In such an action a general finding of a balance in the hands of the executor or administrator and an order to distribute the same according to law, is not a sufficient foundation for the action; but the specific amount, if any, due to the plaintiff must have been first fixed by a court of competent jurisdiction as provided by law.</p> <p>3. When an executor or administrator has filed in the probate court an account of final distribution and the same has been approved and confirmed by the court and the executor or administrator discharged from the trust, such account is conclusive unless impeached for manifest error, or for fraud within four years after the discovery of the fraud.</p>

<p>Motion by each party in jury case — After impaneling jury, before evidence is offered — To direct verdict on pleadings — Is waiver of jury trial and submission of case to court — Judgment conclusive, when — Lease for two years, rent payable per year — Is lease for fixed term and not a monthly renting.</p> <p>1. A motion by each party in a jury case after the impaneling of the jury in the court of common pleas, to direct a verdict in his favor on the pleadings, made to the court before evidence is offered, is a waiver of a jury trial and a submission of the case to the court, and a party cannot, as of right, after his motion has been overruled, and that of the other party sustained, give evidence in support of his case.</p> <p>2. When a matter has been finally determined in an action between the same parties by a competent tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated in the case.</p> <p>3. A lease which provides for a term of two years, the rent to be a stated sum per year during the continuance of the lease, is a leasing for a fixed term and is not a renting from month to month although the rent is to be paid in specific instalments on the first day of each month in advance. (Grant v. Ramsey, 7 Ohio St., 1S8, approved and followed.)</p> <p>4. A recovery for a monthly instalment of rent, that being all that was due at the time action was commenced, is not a bar to recovery for instalments subsequently coming due upon the lease.</p>

<p>Action against railroad company — For damages from ffre caused by locomotive sparks — Plaintiff’s counsel in argument to jury— Stated defendant made offer of settlement — Judgment rendered in favor of plaintiff should be reversed — Notwithstanding counsel’s attempted withdrawal of improper statement,</p> <p>In an action against a railroad company to recover damages for the destruction of plaintiff’s property by fire, alleged to have been communicated thereto by sparks emitted from one of the defendant’s locomotives, plaintiff’s counsel in argument to the jury stated that “within thirty days after the occurrence of this fire counsel for the defendant made an offer of settlement and that offer was repeated as late as the day of the commencement of this trial,” which statement, upon objection being made thereto, counsel for plaintiff stated he would withdraw, and the court directed the jury to disregard the same. When it appears from the record that under all the evidence adduced in the case the question of defendant’s negligence and consequent liability is a very close question of fact, a judgment entered upon a verdict in favor of the plaintiff should be re-’ versed notwithstanding counsel’s attempted withdrawal of his improper statements and the admonition of the court to the jury to disregard them, unless it clearly appears from the record that such improper statements did not influence the verdict rendered.</p>

<p>Taxpayer may maintain action — In behalf of self and others, when —To recover money illegally paid out of public treasury — Question of compensation of members of village cotmcil — Section 197, Municipal Code.</p> <p>1. In the absence of statutory regulation a taxpayer may maintain an action, on behalf of himself and other taxpayers, to recover money illegally paid out of the public treasury; and in such action may unite as defendants all against whom any relief is asked and whose right will be affected by the determination of the subject of the action.</p> <p>2. Section 197, Municipal Code, as amended in 1904 (97 O. L., 118), fixes the compensation of a member of council of a village at two dollars for each meeting, not to exceed twenty-four meetings in any one year, and it is not necessary that it should have been fixed by an ordinance, passed before the commencement of his term of office, but the council may authorize its payment by a resolution passed after the services have been rendered.</p>

<p>Requirement of municipal corporations — To pay costs of improvements — -At intersections of ■streets — Section 55 of Municipal Code — Interpretation of said section as to expense of surveying, etc.</p> <p>1. The provision of Section 53, Municipal Code of 1902, which requires the corporation to “pay the costs of intersections” when streets are improved includes all manholes, catch basins and tiling at intersections.</p> <p>2. The obligation which the section imposes upon the corporation with respect to the payment of expenses of surveying and advertising for such improvement does not exceed the requirement that “it shall nqt he less than one-fiftieth of such cost and expenses.”</p>

<p>Exceptions to the decision of the Court of Common Pleas of Franklin county.</p> <p>The nature of the case is found in the opinion.</p>

<p>Fire insurance company cannot be deemed — To have waived condition, voiding the policy — If insured property be mortgaged— Unless by agreement thereunder — Because insurance agent ,had knowledge of mortgage — Law of knowledge of company, through agent — Result of disagreement between insured and insurer— As to amount of loss — Burden of proof as to waiver by company.</p> <p>1. An insurance company cannot be deemed to have waived a condition in a policy of fire insurance rendering it void “if the subject of insurance or any part thereof, or the real estate or any part thereof described in the application as that on which any building insured herein is situated now -is, or shall hereafter be incumbered by mortgage or otherwise,” unless by agreement endorsed thereon, or added thereto, simply because its agent had notice or knowledge of the existence of a mortgage incumbrance and received premiums, when an agreement as to such mortgage was not endorsed on the policy and where such policy also provided that “No officer, agent or adjuster or other representative shall have power to waive or alter any of the provisions or conditions of this policy, except such as by the terms of this policy are made subject of an agreement endorsed hereon or added hereto and as to such provisions or conditions, such waiver or alteration, if any, shall only be valid when actually endorsed hereon or added hereto by such officer, agent or adjuster; nor shall any permission or privilege affecting this insurance exist or be claimed by the insured unless so written, endorsed 'or attached.”</p> <p>2. The provisions of a policy of insurance that impose a duty on the insured, in the event of disagreement as to the amount of ' loss, to procure an award or ascertainment of the loss by appraisers do not constitute a condition precedent, unless there is a disagreement as to the amount of the loss, and when in a suit to recover under a policy the insured avers that there was 1 no disagreement as to the amount of the loss, and further avers , that he has performed all the conditions on his part to be performed, such provisions are not put in issue by a general' denial but to make them an issue and to place upon the insured 1 the burden.of proving a waiver of them, they should be pleaded by the insurer.</p>

<p>Defendant indicted for pocket-picking — Section 6818, Revised Statutes — Not error for court to refuse to charge — Jury might find defendant guilty of petit larceny.</p> <p>The defendant in error was being tried on an indictment for pocket-picking, which act is made criminal by the provisions of Section 6818, Revised Statutes, and he requested the court to charge the jury as follows: “You may find the defendant not guilty of the offense charged, but guilty of petit larceny.” The court refused to so charge.</p> <p>Held: not error.</p>

Sage,'as auditor, presented to the commissioners an account for services rendered for the years 1897 to 1902, inclusive, for furnishing blanks and giving instructions to the assessors of the county for those years. His claim was rejected by the commissioners and he appealed to the court of common pleas where the facts were found as follows: “1.

The plaintiff in error is the sole legatee under the last will and testament of John Ka’ercher, deceased. The defendant in error is the administrator with the will annexed of such estate. Exceptions were filed by the plaintiff in error to the account of the administrator. The probate court held that the charge for the coffin of the deceased was excessive and reduced it from $150 to>$100. ’In other respects the account was approved and confirmed.

In the common pleas of Cuyahoga the Buffalo Forge Company, plaintiff in error, brought action against The Cleveland Steam Fitting & Supply Company, defendant in error, by the. filing of a petition of which the following, omitting heading and verification, is a copy: “Petition.

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

<p>Municipal corporations in Ohio — Authorized to construct waterworks — And supply water to inhabitants — May make rules governing same — Regulation turning off water, when rent unpaid ■ — Reasonable and may be enforced — Consumer may apply to courts — For determination of amount due, when.</p> <p>1. Municipal corporations in Ohio are authorized to construct waterworks and to supply water to their inhabitants, and to collect money for water supplied, and to make such by-laws and regulations as they may deem necessary for the sale, economic and efficient management and protection of the water-works. Under this power a regulation providing that if. any party shall refuse or neglect to pay the water rent when due, the water shall be turned off and not turned on again until all back rent and damages shall be paid and the further sum of one dollar for turning on and off the water, is'-a -reasonable regulation and may be enforced.</p> <p>2. The determination by the proper city officials of the amount due for water supplied is not final, but the consumer who has good grounds for disputing the correctness of the charge made by the city may apply to the courts to determine the amount due and to restrain the enforcement of the rule pending such determination.</p>

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

<p>Not duty of court — To answer moot questions, when.</p> <p>It is not the duty of the court to answer moot questions, and when, pending proceedings in error in this court, an event occurs without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error.</p>

’ The defendants, Collins and Hinkle, and Twitch-ell, the testator of Virginia Twitchell, executrix, were the commissioners of Clark county.

One Eli Need, being the owner in fee simple of certain real estate in Paulding county, executed and delivered to the plaintiff in error, The Union Central Life Insurance Company, his wife joining with him, a mortgage for the sum of three thousand dollars. Afterwards, Eli Need and Margaret, his wife, conveyed the lands to Frank Need, and the latter conveyed the same to Margaret Need.

On November 14, 1908, the plaintiff in error, Edward H. Van Ingen, commenced an action in the superior court of' Cincinnati to recover upon an account for goods sold and delivered. Summons was thereupon duly served on the defendant. The petition was faulty in that it failed to set forth a .copy of the account and make it -a part of the petition. To correct this omission an amended petition was filed November 28, 1908, of which due notice was thereupon given.

In February, 1905, the defendant in error sold, and by deed of general warranty conveyed to the plaintiff in error, James J. Walcutt, a farm of about two hundred acres in Richland county, Ohio.

.Error to the Circuit Court of Hamilton county. In September, 1905, a car of oats was shipped to Good & Company at Cincinnati with a sight cffiaft attached to the bill of lading. Upon arrival of the car in Cincinnati on the C. H. & D. railroad, the consignee paid the draft and surrendered the bill of lading to the railroad company.

On the 13th day of March, 1901, John G. Thompson, one of the plaintiffs in error, sold to the defendant in error, John G. Miser, a stallion owned by Thompson and the other plaintiff in error, Andrew W. McDonald, for $800 cash and $100 on July 1, 1902, providing the stallion served eighty or more mares during the year 1901.

From the very scanty record printed in this case it appears that the controversy between the parties originated in a suit before a justice of the peace, and was appealed to the common pleas, the petition of the plaintiff below, F. W. Benedict, being filed in that court August 7, 1908.

Exceptions by prosecuting attorney to decision of the Court of Common Pleas of Coshocton county. This case comes into, this court under favor of Sections 7305 and 7306, Revised Statutes, on ex-' ceptions filed by the prosecuting attorney to the decision of the court of common pleas of Coshocton county. The facts so far as thev are material to the points presented are stated in the opinion of the court.

<p>Error to the Circuit Court of Greene county.</p> <p>The facts appear in the opinion.</p>

On the 29th day of September, 1908, the plaintiff in error filed in the court of common pleas of Pickaway county, his petition in which he prayed for the partition of certain real estate in which the bankrupt, William H. Runkle, was a tenant in common with the defendants in error.

The plaintiffs in error being' the owners of more than one-fifth of the paid up stock of The Thomas Manufacturing Company, a corporation, instituted an action in the court of common pleas of Clark county for the dissolution of the corporation upon the grounds that its business cannot be profitably conducted, and that its dissolution will he beneficial to its stockholders.

This action- was commenced by the defendant in error against the plaintiff in error in the circuit court of Hancock county. In her petition in said case she alleges that she is the plaintiff in an action pending in Wyandot county, one of the counties of the tenth judicial district of the state, and that the defendant, Wil-liam F. Duncan, is the supervising judge of said judicial district.

The action out of which the controversy in this court grows was commenced in the court of common pleas of Highland, and was disposed of in both of the courts below upon the pleadings. The facts thereby shown necessary to an understanding of the legal question involved are as follows: Richard Stout, a resident of Highland county, died intestate December 16, 1907, seized of certain real estate situate partly in Highland and partly in Brown county.

<p>Error to thé Circuit Court of Wyandot county.</p> <p>. The facts of this case are sufficiently stated in the .opinion.</p>

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

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

<p>Error to Superior Court of Cincinnati.</p>

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

<p>Error to Circuit Court of Summit county.</p> <p>Grounds stated in journal entry.</p>

<p>Error to Circuit Court of Portage' county.</p>

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

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

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

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

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

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

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

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

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

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

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