case, Harrison Circuit Court. case of Manhattan Life Insurance Company v. Smith, 44 Ohio St., 156. The 4th paragraph of the syllabus is: "Where, in such the company repudiates the contract, and by its course of conduct clearly indicates that a tender of the premium after death of the insured, if made, would not be accepted, a failure to make such tender will not bar a recovery on the policy." And in the opinion, Spear, J., says: The action of the company in the case at bar was in effect a repudiation of its promise to pay the amount stipulated in the policy. Even had Mrs. Smith learned the amount and time of payment after the death of her husband a tender would have been a useless ceremony. 'On general principles, whenever the act of one party, to whom another is bound to tender money, services or goods, indicates clearly that the tender, if made, would not be accepted, the other party is excused from technical performance of his agreement. The law never requires a vain thing to be done.' Isham v. Greenham, 1 Handy, 361; see also Brock v. Hiddy, 13 Ohio St., 310." In Tacey v. Irwin, 85 U. S., 549, part of the syllabus is: "If the tax commissioners have, by an established general rule announced and a uniform practice under it, refused to receive the taxes due unless tendered by the owner in person, even a formal offer by another to pay is unnecessary. It is enough if a relative of the owner went to the office of the commissioner to see after the payment of the tax on the property, but made no formal offer to pay because it was in effect waived by the commissioners, they declining to receive any tender unless made by the owner in person." In State v. Certain Lands, Etc., 42 North Western Reporter, 473; The supreme court of Minnesota hold: "That the penalties for the non-payment of taxes can only be imposed after the taxpayer has had an opportunity to pay and fails to do so. Hence, where a part of the tax is illegal, the party has had no opportunity of paying the legal part alone, and he interposes and maintains a defense to the illegal part, the ten and five per cent. penalties previously interposed under section 69 of the general tax law, were wholly unauthorized and invalid (the party not having been then in default) and no part of them should be included in the judgment." Mitchell, J., in the opinion, says: "A penalty for the non-payment of a tax cannot be imposed until the person has an opportunity to pay it and fails to do so. * * * As the whole tax extended against a tract of land is an entirety, the owner cannot pay a part of it without paying the whole, and if a part is illegal and he pay the whole, ordinarily it would be a voluntary payment and he could not recover back the illegal part. Hence, in such case, his only remedy is to wait until proceedings are commenced to enforce the judgment against his land, and then defend against the illegal part of the tax; and until it is deducted by the judgment of the court he has had no opportunity to pay the valid part of the tax, and consequently has been guilty of no default." We are of the opinion that the treasurer was not authorized to receive the taxes which were admitted to be legal without receiving also an equal amount upon the township taxes that were admitted to be illegal and excessive, that the defendant having at the earliest opportunity by answer admitted the amount which he claimed was due the county treasurer, might have, as upon default, taken judgment for that amount without prejucice to his rights to the portion of his demand dis Railway Co. v. Wolfe. puted, and that he had no right to make a demand for that which was illegal and excessive, and by so doing he could not legally place the company in default for the payment of that which is legal, and that the judgment, so far as the penalty is included in it, is erroneous. So far as the penalty enters into the judgment, so far the judgment is reversed and affirmed as to all other matters' and under the statute the case being affirmed in part and reversed in part the costs will be divided equally between the parties. Swayne, Swayne & Hayes, and D. A. Hollingsworth, Attorneys for Plaintiff. W. T. Perry, Attorney for Defendant. TAXES AND TAXATION-INTEREST. [Sandusky Circuit Court, January 23, 1897.] THE W. & L. E. Ry. Co. v. JOSEPH WOLfe, Treas. 1. ACTION TO RECOVER DELINQUENT TAXES. In an action for the recovery of delinquent taxes, in which is included a penalty of ten per cent. for their non-payment, the county treasurer is not entitled to recover anything by way of penalties upon the taxes. Where part of the taxes assessed are legal and part illegal, as the county has no right to make a demand for that which is illegal and put the taxpayer in default for the payment of that which is legal, therefore a judgment recovered by a county treasurer for the amount of such taxes, including penalties, is erroneous. 2. TAXES DO NOT DRAW INTEREST. Taxes levied do not draw interest from the time they are payable, or from the commencement of the action for their recovery, but a judgment for the amount of the taxes will be held to draw interest from the date when it was originally rendered. Memorandum of decision. KING, J. This is a proceeding to reverse the judgment of the common pleas court of Sandusky county, and we have come to the conclusion that that judgment should be modified in some respects, and will indicate, so that counsel may prepare an entry, the extent of those modifications. 1. We hold, following the opinion of the circuit court of Harrison county in W. & L. E. Ry. Co. v. Stewart, Treas., ante, 193, that plaintiff below is not entitled to recover anything by way of penalties upon the taxes charged, either for the ten per cent. added to the delinquent taxes so-called, or the five per cent. claimed by the treasurer as due him for collection; and we refer to the opinion of Judge Frazier in the case cited. for our reasons for this holding. 2. We are of the opinion that the taxes levied do not draw interest from the time they were payable or from the commencement of the action or until judgment is rendered. The allowance by the statute of penalties is intended, we think, to cover interest until the claim has gone into judgment; and for the reasons that we disallow the penalties we think also interest should be disallowed. Therefore the amount of the judgment will be computed without any allowance of interest, the judg Hamilton Circuit Cos ment drawing interest from the date when it was originally rendered— that is, from the first day of the November term, 1896. 3. We are also of the opinion that the judgment was erroneous, bet cause it included certain amounts levied to pay deficiency bonds, or bonds issued for deficiency purposes. These amounts are stated to be $97.50 in 1894, and $121.70 in 1895. We find no provision of law authorizing that levy. Those bonds were issued pursuant to an act of March 13, 1894, which authorized the issuing of $50,000 of bonds "to pay deficiencies existing in the various funds of said county." Without an express provision of the legislature authorizing that kind of a levy, we think it is not permissable. These bonds were issued for no improvement or purpose authorized by law, but to delay payment of the deficiency where different funds had been overdrawn, and we think the county must rely upon its levies authorized by law for these several funds to provide the means with which to pay these bonds, in the absence of express legislation on that subject. Therefore to that extent the judgment will be modified. Each party to pay one-half of the costs taxed in the court of common pleas and in this court including the referee's and stenographer's bill. Swayne, Swayne, Hayes & Tyler, for Plaintiff in Error. Kinney & Hunt, for Defendant in Error. CONTRACTS. [Hamilton Circuit Court, January, 1897.] Swing, Smith and Cox, JJ. PETERSON V. SCHMIDT. CONTRACT IN PARTIAL RESTRAINT OF TRADE. The vendor of a bakery who agreed not to go into business again within four squares of the old stand may be enjoined from carrying on such a business in his wife's name a few feet more than four squares distant. HEARD ON APPEAL from the Court of Common Pleas. This suit was to enjoin Schmidt from operating a bakery at 1900 Vine street. Schmidt sold the bakery at No. 113 Elder street to Peterson for $1,000, agreeing not to go into the business again within four squares of the old stand. The new business started by Schmidt at 1900 Vine street is carried on in the name of his wife by whom he claims to be employed. The common pleas court granted a perpetual injunction against a continuance of the new business by Schmidt. SWING, J. We do not think it will be in the interest of justice that the injunction granted by the court of common pleas should be suspended. The contract that the parties entered into should be construed so as to give effect to the instrument, and in doing this it should have a reasonable construction. Now, taking the most favorable view of defendant's claim, he would be engaged in the bakery business within a few feet of the four squares mentioned in the contract. This fact, taken together with the further fact that the business is claimed to be in the wife's name, while he himself is working for his wife, indicates that he is endeavoring C. K. of A. Hail Co. v. The Lloyd Bros. Co. et al. tavcid the terms of his contract, and shows bad faith on his part, and such conduct does not commend itself to a court of equity. The contract is not against public policy, the limitation is reasonable, and there is nothing to prevent the defendant from engaging in business at any place which in all reason is beyond the limitations to which he agreed in his contract, and for which he secured plaintiff's money. Joel C. Clore and Thos. L. Michie, for Plaintiff. LIENS-INTERPLEADER. [Lucas Circuit Court, ebruary 5, 1897.] Haynes and sing, JJ. THE C. K. Or A. HALL CO. THE LLOYD BROS. Co., et al. PRIORITY OF CLAIMS Where the plaintiff in erecting a building has a contract with the builder which provides that the latter must pay all the claims for labor and materials named in the construction of the building, and it appears that the contractor executed two orders to the L. Bros. on the building fund still unpaid, and also an order to R., who received his order in connection with a verbal order before the L. Bros. received their orders, and both claims being presented for payment, the plaintiff filed a bill of interpleader to ascertain how the balance of the building fund remaining unpaid was to be distributed: Held-First, that the costs in this court, together with the costs incurred by plaintiff in the common pleas in bringing the parties into court, are to be paid; second, the claim of R. should be paid; third, so much of the money as is left, should be applied upon the orders of L. Bros.. so far as it will go. APPEAL. KING, J. This action is brought from the court below to this court. It is in the nature of a bill of interpleader. The C. K. of A. Hall company is a corporation, who, two or three years ago, constructed a brick block in this city, and there arises some controversy about mechanics' liens, and the plaintiff in its petition brought in all these claims in order to have. the matters adjudicated in one action, so as to determine the amount of their several bills and also whether they had liens or not, and also to determine how much the plaintiff was liable to pay. The action was brought in the common pleas and the amounts determined and as to the liens of the holders, and they were allowed liens as subcontractors and laborers on this building for their several amounts, and the amount to be paid, or which was to be divided among them, was also ascertained. Since the decree was rendered in that case, the supreme court of Ohio, as is well known, has determined that the section of the act of the legislature of 1894, under which these men filed their claims or liens, is unconstitutional; and some different questions now arise in this court then arose in the court of common pleas. None of these parties could have liens under the act of 1894, and it was conceded, upon the hearing, that none of them would be entitled to liens under the old act-which the act of 1894 undertook to repeal, except possibly one by the name of Lucas Circuit Court. Reynolds; and as to him, we think it is er from the evidence (and whether his lien is in proper form or not, is net material) he did not fic it with the owner until after the expiration of more than sixty after the completion of the work. His bill for the work was dated January 15, 1895, and he testifies that he presented it to the secretary of the Hall company, bus was told that it was incorrect-as another person had presented a bill or th same item, that is, embracing the same labor and material. He says he went away and got the bill corrected, and then, cị the 25th of March, for the frst time, left it with the secretary of the company. That would make it more than sixty days after the date of his bill; and thus we are not called upon to pass on the question incidentally referred to in the case-whether the unconstitutionality of the act of 1894 left the oid act in force. We think there was not any lien here, and the contest then assumes an entirely different form. Lloyd Brothers, the defendants here, claim, that in January of the year when this contract for the erection of the building was made, they obtained from the contractor, Halter, two orders, amounting to about $1,600, and that they thereby received an equitable assignment of so Luck of the building fund still unpaid and in the hands of the company, as would pay their claims, provided there was that much in the treasury, and it is contended that at the time they received those orders there were $4,000 unpaid in the hands of the company. It is also claimed that Mr. Reynolds received an assignment. Mr Reynolds had a bill of his claim, which he presented to the contractor, and, although he did not get any order, that it was marked by the contractor upon the bill that it was "O. K.," and that he understood he was to present it to the C. K. of A. Hall company and get his money therefor. There may have been enough in that to show a verbal order for the paymert of his bill, but we are not prepared to hold that either of these parties have what is termed in law an equitable assignment of this fund, for the reason, as suggested by counsel in argument, that this corporation had a contract with the builder, which provided that the builder, before he received his pay, must pay all the claims for labor and material curred upon this building. In addition to that, there was a bond signed by the contractor and by one of these main lienholders, and by the president of another of claimed lienholders, and by the Lloyd Brothers, whose relations to the Lley Brothers Company is not set forth in the proofs here; and that bond provided that before Halter, the contractor, could demand or receive his pay under it, all the claims and demands against him for loor and material entering into the building must be paid, and that all liens upon the building must be cleared off; so we think that at the time when Licyć Brothers & Company received these orders--or whatever they may have been-from Halter, though there was still $4,000 in the hands of the corporation unexpended, the corporation had a right to hold that money until they knew that all claims were paid. The proof shows that after the date of those orders there were sundry people-labor men and material men-presenting claims to the company; and they were sent to the signers of this bond, who gave orders, in connection with the contractor upon this fund to the C. K. of A. Hall company, which paid out about $3,000 of the money in their hands, and all of this went to pay actual material and labor that went into their building, for which they were hollen or ins bond. and for the payment of which thev had the additional promise of the contractor in the contract itself, they should be |