Hamilton County Appeals.

to earn a livelihood is concerned we think that will not be impaired to the extent claimed by his counsel. Upon a full consideration of this question we are of the opinion that $7,500 would be ample compensation in this case, and that there should be a remittitur of $2,500 from the amount of the judgment entered by the court below. This court is authorized, in the exercise of a sound discretion, to make the acceptance of this remittitur of the excess a condition of refusing to grant a new trial, upon the authority of Pendleton St. Ry. v. Rahmann, 22 Ohio St. 446.

It is claimed by counsel for the Cincinnati Traction Company that the court erred in charging the doctrine of "last chance" in this case. As we read the charge given by the court at the request of counsel for the Adams Express Company it does not involve the "last chance" doctrine. In order to make a "last chance" case it would have been necessary for the boy only to have been guilty of contributory negligence, and although this plea was set up by the traction company we are not able to find any evidence in the record to support the claim of contributory negligence. It is quite certain that the boy was not placed in a perilous position by reason of his own negligence, but it was by reason of the negligence of the driver of the wagon.

We think that special charges Nos. 4 and 6 complained of were warranted under the rule laid down in Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. Rep. 325]. This was a collision at a street crossing, and there was no "last chance" question raised in the case. Nevertheless, Judge Spear in deciding the case uses the following pertinent language, on page 196:

"But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw the horse and appreciated Brandon's peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury."

As we have said, the negligence of the driver can not be imputed to the boy, and therefore if we assume that the driver

Traction Co. v. Wynne.

was guilty of negligence which contributed proximately to the injury of the boy, nevertheless that situation does not present a "last chance" case.

We find no errors in the general charge, nor do we find that the boy was guilty of any contributory negligence.

We are of the opinion that the traction company and the express company were joint tort feasors in this case, and that the case of Kopp v. Railway, 25 O. C. C. 546 (6 N. S. 103), affirmed, no op., Ballimore & O. S. Ry. v. Kopp, 71 Ohio St. 484, and the case of Cincinnati St. Ry. v. Murray, 53 Ohio St. 570 [42 N. E. Rep. 596; 30 L. R. A. 508], as well as other cases of a similar kind, support this claim of the defendant in error that the plaintiffs in error were joint tort feasors.

The Adams Express Company claimed that the wagon boy and the driver were fellow servants. The court submitted that question to the jury under the evidence, and the jury found that they were not fellow-servants. We think there was evidence sufficient to warrant the jury in reaching this conclusion.

Counsel for the traction company complain of error on the part of the court in allowing the cause to proceed after one of the jurors became ill and complained of not feeling well, although he continued and sat in the case with the other jurors until the case was finally disposed of. He complained of pains in his leg, and connsel for the traction company urges that his mind was so occupied with his own misery and pains that he was unable to give the traction company or the express company a fair trial. The juror did not ask to be excused, and the court did not excuse him. He continued to serve, and, for all that appears in the record, his affliction did not affect the verdict. We see no good reason why a reversal of this case should be predicated on a claim of this kind.

Upon an examination of the entire record we are of the opinion that the defendant in error should submit to a reduction of the judgment in the sum of $2,500, and if it does so, the judgment will be affirmed; otherwise it will be reversed, because in the opinion of the court the verdict and the judgment are excessive.

Jones, O. B., J., concurs.

Hamilton County Appeals.

Jones, E. H., J., dissenting:

I can not concur in the opinion that the judgment is excessive, and favor its unconditional affirmance.

CONTRACTS.

[Hamilton (1st) Court of Appeals, May 15, 1916.]

Jones, Jones and Gorman, JJ.

J. M. DAWSON V. FRED W. MYERS.

Guaranty of Efficiency of Heating System not Met by Substantial Compliance in Design, etc.

Under a contract for furnishing a heating system with a written guaranty as to its efficiency, the guaranty as to heating power must be met, and this is not done by showing substantial compliance with the specifications in the matter of design, material and workmanship.

J. M. Dawson, for plaintiff in error.

Kramer & Bettman, for defendant in error.

JONES, E. H., J.

The judgment below will be reversed for error in the general charge wherein the court invoked the rule of substantial performance. This rule is applicable to building contracts where a departure from the specifications with reference to material of workmanship, etc., is the question in dispute. But we have here a contract for the furnishing of a heating system, with a written guaranty as to its efficiency. In such case the guaranty as to heating power must be met, and such requirement is not met by showing a substantial compliance with the specifications in the matter of design, material and workmanship.

It follows that the following special charge requested by plaintiff below, and refused, should have been given:

"There being no allegation in the answer and cross petition that the plaintiff, J. M. Dawson, waived any of the provisions of the contract between him and Myers, the guaranty of Myers that the heating system installed by him should produce seventy degrees of heat in all the rooms containing radiators when the

Dawson v. Myers.

thermometer stood at zero on the outside, heat maintained continuously, was a continuous guaranty, and if you find that there was a failure of the plant installed by Myers to maintain such heat with proper firing and attention, the defendant, Myers, can not recover on his cross petition, and it will be your duty to find what damages, if any, the plaintiff sustained by the failure of Myers to furnish a system providing such heat."

We find no other errors in the record.

Judgment reversed.

Jones, O. B., and Gorman, JJ., concur.

JUDICIAL SALES.

[Hamilton (1st) Court of Appeals, May 25, 1915.]

Jones, Jones and Gorman, JJ.

JOSEPH GRIEFENKAMP V. ROBERT J. CRESAP, ET AL.

Judicial Sale Invalidated by Failure to Give House Number in Advertisement.

Failure to give the house number of property which is being advertised for judicial sale is an irregularity which invalidates the sale.

C. W. Baker, for plaintiff.

W. G. Durrell, W. C. Meyer and F. K. Schmuck, for defendants.

GORMAN, J.

This case is here on appeal from a decree of the common pleas court.

We are of the opinion that a decree should be entered in this court such as the one entered in the court of common pleas, upon the reasoning of the trial judge in the opinion announced by him; and for the further reason that the sale made under the proceedings to sell for the tax lien, was not in conformity with the provisions of Sec. 11678 G. C., which was in force at the time of the sale, 1905, and among other things provides:

"All notices and advertisements for the sale of lands and tenements located in a city or village in this state, made by virtue

Hamilton County Appeals.

of proceedings in a court of record therein, in addition to a description of such lands and tenements, shall contain the street number of the building or buildings erected on the lands, or the street number of the lots offered for sale. If no such number exists, then the notice or advertisement must contain the name of the street or road upon which such lands or tenements are located, together with the names of the streets or roads immediately north and south or east and west of such lands and tenements, that cross or intersect the street or road upon which they are located."

The advertisement inade by the sheriff in the case in which the premises were sold by the sheriff, No. 131768 court of common pleas, omitted entirely to give the house number upon the east twenty-five feet of lot No. 80, which was one of the lots sold in said proceedings and bought in by William C. Meyer. While it is true that the parties may have mistakenly believed that a vacant lot was being sold, nevertheless, as a matter of fact it was not a vacant lot but there was a substantial house thereon, and we are of the opinion that the failure to comply with this statute was such an irregularity as would invalidate the sale.

The defendant, William C. Meyer, under the provisions of Sec. 5767 G. C., would be entitled to have refunded to him the amount of the purchase money with interest thereon, together with the taxes subsequently paid by him, and interest on the same from the dates of payment. This, we understand, is what the court below decreed to him.