Klein & Heffelman Co. v. Peterman. The notes were secured by chattel mortgage on the piano purchased of plaintiff by the defendants. The petition contained a second cause of action asking for a foreclosure of said chattel mortgage. The defendants in their answer admitted the execution and delivery of the notes and chattel mortgage, the cash payment, and by way of defense they alleged fraud in the transaction on the part of plaintiff, consisting of false and fraudulent misrepresentations concerning the quality of the piano; and for further defenses alleged want of and a failure of consideration for said promissory notes. They also prayed for a judgment for the $25 cash paid. The reply filed by the plaintiff was in the nature of a general denial; and it further set forth that in a certain suit in equity heretofore filed in the common pleas court of this county by the defendants herein against the plaintiff, that upon issues joined a final hearing was had, on the merits, and all of the matters and things set up in the alleged defenses of the defendants in the case at bar were fully heard and determined by the trial court in favor of the said defendant in that case, being the plaintiff herein, and the plaintiff herein pleads same as a complete bar to the alleged defenses in the present case. Upon these pleadings and the evidence the case was submitted to a jury in the court below, and a verdict returned in favor of the defendants in the sum of $25, and the court entered a judgment on said verdict. Plaintiff in error seeks a reversal of this judgment, and in oral argument relies upon two grounds of alleged error, to-wit: First. That the court erred in its general charge to the jury. Second. That the court erred in excluding the evidence offered by plaintiff in support of its plea of res adjudicata. Counsel for plaintiff in error, in support of their first ground of alleged error, insist that the trial judge misdirected the jury as to the burden of proof concerning the defenses of want of consideration and failure of consideration, and, further, that the trial court did not separate from the other defenses the alleged defense of fraud, etc. 2 O. C. C. Vol. 39. Wayne County Appeals In examining the charge of the court we find that the claim of plaintiff in error, in this particular, is well founded. Want of consideration, in law, means and is a total lack of any valid consideration for the contract, and therefore the alleged contract must fall. Failure of consideration, in law, is just what the plain meaning of the words convey, that is to say, failure of consideration is the neglect, refusal and failure of one of the contracting parties to do, perform or furnish, after making and entering into the contract, the consideration in substance and in fact agreed upon. This being an affirmative defense, the burden of establishing it is always upon the one who asserts it. But it is otherwise where the defense is want of consideration. When want of consideration is set up as a defense, in the answer, an issue of fact is raised upon that point, on which the plaintiff has the affirmative, and, the presumption being prima facie only, and not conclusive, the burden of proof rests upon the plaintiff to establish this fact by the preponderance of all the evidence offered on the question. From our examination of the charge we think the trial judge did not properly charge the jury upon these questions; that he wholly failed to explain to the jury the law upon whom the burden of proof rested as to the alleged defenses of want of consideration and failure of consideration; and we further find that the trial judge neglected and failed, in his instructions to the jury, to distinguish as to the difference between the defenses of want of consideration and failure of consideration, and that he wholly and entirely neglected and failed to properly charge the jury as to the separate defenses of want of consideration, failure of consideration, and fraud. These being separate and distinct defenses the jury should have been fully instructed concerning the law as to each and all of them, the proof required to establish each, and all of them, and upon whom the burden of proof rested to establish each of those defenses. Coming now to the second ground of alleged error, did the court err in excluding the evidence offered by the plaintiff in Klein & Heffelman Co. v. Petermar support of its plea of res adjudicata? We must answer this question in the affirmative. From an examination of the record of the equity case, which was offered in evidence by the plaintiff in the instant case and excluded by the court, we find that the suit was brought by the present defendants, prior to the commencement of the case at bar, seeking the cancellation of the same notes and chattel mortgage involved in this case, upon the alleged ground of fraud, etc., being the same as in this case; also it was sought to recover the $25 cash paid, being the same cash payment for which judgment was entered in the present case. The equity case being tried on its merits upon the issues joined, the final entry in the case discloses that the court "found the issues joined in favor of the defendant [the plaintiff in error], and dismissed the petition with costs." The issues in the equity case were the same as in the present case; and the relief sought was the same, which included the judgment for the $25 cash paid; and the judgment in the equity case was certainly a complete bar and proper defense to the allegations in the answer of defendants in the case under review. This being so, the court below committed prejudicial error in excluding the record and final judgment, in the equity case, from being submitted as evidence in the trial in the common pleas court in the case at bar. This court has heretofore passed upon this question, and its views may be found in the reported case of Feazel v. Feazel, 36 O. C. C. 328 (24 N. S. 357). We also feel that our Supreme Court has finally settled this question, which is decided in the case of Doyle v. West, 60 Ohio St. 438, 443 [54 N. E. 469], in which Judge Minshall, speaking for the court, says: "The policy of the law is against the relitigation of questions of law or fact once heard and determined between the same parties. A question of fact once so determined is binding on the same parties in all subsequent litigation." We, therefore, hold there is prejudicial error in the record, Wayne County Appeals. as against the rights of the plaintiff in error, as herein before set forth, and, therefore, the judgment of the common pleas court must be reversed, and the cause remanded to the court from whence it came for a new trial or such other proceedings as the law requires. Judgment reversed. Shields and Powell, JJ., concur. COURTS-CRIMINAL LAW. [Lucas (6th) Court of Appeals, December 11, 1916.] Kinkade, Chittenden and Richards, JJ. GEORGE DEMUTH V. STATE OF OHIO. 1. Courts Take Judicial Knowledge that Smaller City Has no Police Court. The courts take judicial notice of the statutory law of the state and of the population of its cities, and it is therefore within the knowledge of the court that the city of Norwalk has no police court. 2. Jurisdiction of Mayor in Misdemeanors when Accused Waives Jury Trial. The mayor of a municipality has final jurisdiction to hear and determine prosecutions for misdemeanors, notwithstanding the right to a trial by jury, if, before the commencement of the trial, the accused waives a jury trial. 3. Plea of Guilty in Prosecution for Misdemeanor before Mayor Equiv. alent to Waiver of Jury. A waiver of a jury trial in the prosecution of a misdemeanor before a mayor need not be in writing and a plea of guilty entered by the defendant in such prosecution amounts to such waiver. [Syllabus by the court.] ERROR. Irving Carpenter and R. D. Wickham, for plaintiff in error. CHITTENDEN, J. In June, 1916, the relator, Thomas J. Conners, was arrested on a charge of operating a motor vehicle upon the streets of the city of Norwalk, Huron county, Ohio, in a state of in Demuth v. State. toxication, upon an affidavit filed by the chief of police of the city of Norwalk. The defendant therein appeared before the mayor of the city and pleaded guilty to the charge, whereupon the mayor sentenced the defendant to imprisonment in the Toledo workhouse for six months and to pay a fine of one hundred dollars and costs. The defendant was transported to the Toledo workhouse and thereupon brought an action in habeas corpus in the probate court of Lucas county, Ohio, for the purpose of obtaining his release. Upon a hearing in that court it was found that Thomas J. Conners was unlawfully restrained of his liberty and he was discharged. Error proceedings were prosecuted to the common pleas court in which court the judgment of the probate court was affirmed. This proceeding is to secure a reversal of that judgment. The first contention made by the defendant in error is that the record does not show that the city of Norwalk is a city not having a police court, and that, therefore, the jurisdiction of the mayor is not shown. The courts of this state will take judicial knowledge of the statutory law of the state and of the population of its cities. It is consequently within the knowledge of the court that the city of Norwalk does not have a police court. Therefore, the claim of the defendant in error in this respect is not well founded. The principal contention is that the record shows that the affidavit upon which the warrant for the arrest of Connors issued, was not made by the person injured and that, therefore, the mayor had no power to impose the penalty of the statute, upon a plea of guilty, but that he was only empowered to bind. him over to a proper court. This contention is based upon the provisions of Sec. 13510 G. C. The plaintiff in error contends that the action is not governed by that section of the General Code but by Secs. 4528 and 4530 G. C. These sections read as follows: Sec. 4528. He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the constitution, entitled to a trial by jury, and his jurisdiction in such cases shall be co-extensive with the county. Sec. 4530. He shall have such jurisdiction in the cases men |