ACCORD AND SATISFACTION
Where plaintiff, injured by collision of two motor vehicles, sues the owner of one, the latter's answer that plaintiff made a contract of settlement with the other owner, who is not charged with negligence, covenanting not to sue him and that the amount was a full compensation, sets up more than a covenant not to sue, but a full satisfaction and is not demurrable. 191.
Custody of children a "chancery case" on divorce. 229.
A guardian appealing from an order terminating the guardianship need not give an appeal bond, for the trust has not completely ended until the right of review has lapsed, and it must be assumed that he has no personal interest. [Reversing 18 N.P. (N.S.), 286.]
Where a case to subject a fund in the hands of two defendants jointly is appealed by plaintiff and one of such defendants, the appeal carries up the other defendant, since the fund can not be in court unless the persons who hold it are there. 408.
ATTACHMENT
The municipal court of Cincinnati (103 L., 280, Sec. 7) having the same jurisdiction in ancillary proceedings as justices, and G. C., 10259, giving an appeal to the common pleas from a justice's refusal to dissolve an attachment, it follows that the common pleas has jurisdiction on such appeal from the municipal court. 11.
Voluntary payment of ten per cent. to one creditor for necessaries is no bar to garnishment
by another creditor, though the payment was made by reason of a threat to garnishee. 107.
Billing and collecting from a buyer plaintiff for more than twice the amount shipped is a ground for attachment for a debt fraudulently or criminally contracted. 70.
AUTRE FOIS ACQUIT OR CONVICT
Assault and battery under G. C., 12423, is a distinct offense from assault with intent to rape under G. C., 12421, and a conviction of the former is no bar to a prosecution for the latter. [Affirmed, 94 O. S.,.] 113.
BILL OF EXCEPTIONS
Interrogatories to jury and their answers-see verdict. 84.
A bill of exceptions is not filed by leaving it with a deputy clerk in charge of a court room with instructions to file it, and the clerk will not be compelled to stamp it filed after time. 497.
A bill of exceptions does not purport to contain all the evidence when it merely states that the following testimony was offered, all of which is hereafter fully set out, for that merely states that it contains what it contains. And a statement in the bill that it contains all the testimony is not a statement that it contains all the evidence. 419.
Striking the bill of exceptions from the files does not authorize a dismissal of the petition in er481.
A bond to repay if the obligee is compelled to pay a third person,
together with counsel and court fees, only covers such fees if the third person is successful in the litigation, and not such fees incurred in defeating it. 97.
Sinking funds, purchase of, are assets; how re-sold. 369. BILLS AND NOTES
Endorsement "without recourse" is not a mere assignment, and the endorsee may have all the rights of innocent holder in due course, free from equities of the maker. G. C., 8143, does not change this rule. 173.
Where a majority and not a twothirds vote of the electors authorized a bond issue, the whole issue is not invalid, but such part is valid as satisfies the 21⁄2 per cent. of the total value of city property under G. C., 3952. [Affirmed without report, 94 O. S., -] 458. BUILDING CONTRACT
Custom of sub-contractor to pay part of expenses. 142.
A provision that the contractors building a grain elevator should indemnitfy and save harmless the owners from any loss by failure of the elevator to be serviceable for the purpose intended, means more than that the work shall come up to the plans and specifications, but is an express warranty of serviceableness. [Affirmed without report, 90 O. S., 446.] 151.
The architect's certificate is competent evidence on the subject of damages, although it purports to cover matter "brought to our notice" and to be made partly in view of sworn statements of the owner's agent, for these merely show the evidence on which it was based. 292.
Where a contractor for a heating system guaranteed to produce a certain temperature, on finding this impossible under the plans and specifications offers to comply with his guaranty by change of equipment, the owner has the option to insist on the specifications
and lose the heat or to obtain the heat by change of equipment, and by insisting on the former waives the guaranty. 149.
Waiver of a clause against claims for extra work unless done by written order can only be shown by evidence so clear and convincing as to leave no reasonable doubt. [Affirmed without report, 90 O. S., 446.] 151.
Stipulated damages for delay are prima facie liquidated damages, to impeach which effect the burden is on the contractor's surety. 292.
A charge not to allow any damages called for by the contract for each day's delay to complete on time if the defendant by acts, words or ordering extras extended the time is erroneous, for it does not regard the duration of the delay so caused. [Affirmed without report, 90 O. S., 446.] 151.
An act of God to be a defense must be the sole cause of loss. If the carrier's negligence brings the goods in contact with the forces of nature he is liable, as where a defective car necessitated reloading and the delay exposed the car to the Dayton flood. 204.
Where under a uniform contract the shipper was to water his stock, but where upon a delay the carrier agreed to water them and by neglect to do so forty died, Held: the carrier's waiver is not an unlawful preference to the shipper under G. C., 508, 564, 567 and 568, which relates only to an unreasonable discrimination granting a concession not enjoyed by others [reversing 17 N.P. (N.S.), 42]. 335.
A charge that a crippled passenger must exercise "greater care" than others is properly refused. The charge should be that in determining whether he exercised ordinary care his crippled condition should be considered. 208.
It is not negligence per se for a passenger to take a position on the bumper of a street car where there is no room on the platform and the conductor collects his fare and recognizes him as a pas- senger. 212.
A charge that the carrier must exercise the care which very careful and skillful employees would exercise is erroneous, for only the highest care which ordi- narily careful and skillful em- ployees would exercise is required. 208.
A charge that if plaintiff was at the depot platform intendng to take an in-coming train he was a passenger and entitled to the highest care is erroneous. It is for the jury to say whether he was a passenger, and as before board- ing the train he has control of his own motions, he is not entitled to that degree of care. 479.
A charge "if you find that de- fendant was negligent in statring the car before plaintiff had an opportunity to be seated" is error, for it implies that starting before a passenger can be seated is negli- gence, which is not the law. 208.
Although by a so-called "aver- age agreement a consignee has waived a demurrage rule allowing a consignee extra time to unload where cars are bunched and de- livered in accumulated numbers in excess of daily shipments "as the result of any act or neglect" of the railroad, yet where the delays and consequent Dunching were due to the floods of March, 1913, and not to the fault of the rail- road and therefore not within the rules or agreement, yet demurrage can not be charged, for a party relieved by an act of God can not be permitted to penalize the other for delay so caused. 379.
Where connecting carriers are not designated in a shipment, the initial carrier is not a general agent of the shipper but acts un- der a special authority, revoca- tion of which is binding on
tice by the shipper to an inter- mediate carrier not to deliver to the final carrier is disregarded, the latter has no right to hold the goods for payment of demur- rage and a division of freight charges in controversy with the preceding carrier. Charges do not inexorably follow from the fact of service, but only if the service is authorized. 276.
A shipper's agreement, in order to obtain release of his goods to pay demurrage and car service which are not legal, is void. 276.
Where the consignee refuses to accept a car load shipment and the consignor on notice refuses to give the carrier instructions, the consignor, with whom alone the carrier has contracted, is liable for demurrage, although the title may be in the consignee. 527. CHARGE OF COURT-
A charge "you have a right to accept or reject part or all of a witness' testimony and give credit to those you find entitled to it" does not violate the rule laid down in 90 O. S., 419. 201.
Error in refusal to give a charge before argument as requested is not prejudicial error where it is incorporated in the general charge and not sustained by the evidence, and the principle covered by it is so interwoven into the case that the refusal could not have affected the argument.
A charge that burden of proof means the duty of satisfying the jury imposes too great a burden on the plaintiff, but being preju- dicial to him alone and not to the defendant, the latter can not com- plain. 201.
CHATTEL MORTGAGE-
Withholding from record chat- tel mortgages on all the assets of the mortgagor, who is fairly be- lieved to be solvent, not by agree- ment or fraudulent intent nor to enable the mortgagor to secure
credit from others, but merely to prevent creditors closing down un- til the return of a friendly finan- cial backer, is not a fraud on present or prospective creditors. 72.
CIVIL SERVICE-
A temporary appointee by the mayor in 1912, before the com- mission furnished an eligible list, was an incumbent when the law of 1913 went into effect and en- titled to hold his position until he failed to qualify or was dis- charged for cause. 241.
Where the law forbids promo- tion unless the applicant attains a certain per cent. on examina- tion, the fact that he falls a frac- tion of one per cent. below does not entitle the appointing officer to promote him on the ground of believing that in age, judgment and manhood he is better than one of a higher percentage. 361.
Failure in the rules of promo- tional examinations to prescribe the branches of examination whereby the examination might be on Greek or any other national line, will not be ground for the court's interference with the re- sult where the questions were fair and pertaining entirely to a prac- tical knowledge required by the position sought. 361.
COMPROMISE—
See ACCORD AND SATISFACTION. CONSTITUTIONAL LAW-
General Code, 9012 to 9014, put- ting a penalty upon a corporation for compelling employees joining and contributing to a relief asso- ciation and waiving any right to damages for personal injury, are valid. They are not impariments of the right to contract, and an employee compelled to contribute can recover the penalty. 305.
The indeterminate sentence law not applied to prior offenses. 281. No vested right in a remedy; jury law applies to pending cases. 415.
Waiver of clause against extras must be beyond reasonable doubt. 151.
Where plaintiff's agent was au- thorized to offer $2,500 for prop- erty and paid $400 down but the receipt for the $400 stated that the plaintiff was to pay the June taxes and the pleadings do not show that plaintiff's agent was authorized to assume the June taxes, plaintiff is entitled, on revoking the offer, to a judgment on the pleadings for $400. 337.
On refusal to carry out a con- tract to convey property to be paid for in future services, the measure of damages is not the value of the property but what the contract was worth to the ven- dee at the date of breach, in esti- mating which the jury must con- sider the contingencies which may prevent performance of the serv- ices and the value of the time saved to the vendee. [Affirmed without report, 71 O. S., 546.] 84. CORPORATIONS-
Equity has no power to require a board of directors in the ab- sence of fraud or abuse of discre- tion to declare dividends out of abundant earnings, nor by conse quence to declare paid a note which provides to be paid out of dividends but is not so paid be- cause of failure to declare divi- dends. 561.
Employee buying stock in reli- ance on officers, holds subject to their bad judgment if bona fide. 561.
COUNTER-CLAIM-
In an action for stipulated dam- ages for not conveying property
as agreed, defendant's answer de- nying that she owned the prop- erty will not bar her subsequent suit to enjoin collection of the judgment on the ground that the agreement to convey was pro- cured by fraud. Her failure to set this up by counter-claim merely puts the costs on her. 475. COUNTY-
The liability of county commis- sioners for an unsafe highway (G. C., 2408) has not been im- pliedly repealed by the state aid statutes, the state commissioner's duties being merely advisory; and where the county's contractors in re-paving a road stretch a wire across it without guards or warn- ing whereby a motor cyclist is injured, the county is liable for such negligence, 443.
Actual notice of a defect in a highway is not necessary to a lia- bility if there is constructive no- tice.
[Affirmed without opinion, 88 0. S., 587.] 415.
Although absence of funds with which to repair a road is a defense to an action for injuries, it is de- fensive matter and the petition need not aver means to repair. [Affirmed without opinion, 88 0. S., 587.] 415.
An affidavit of bias and preju- dice on the part of a trial judge disqualifies him under G. C., 1687, as amended in 103 v. 417. 581.
Jurisdiction of circuit court ap- plied to court of appeals. 218.
The probate court being a court of record, its proceedings are pre- sumed within jurisdiction and im- port verity and are not collaterally impeachable. [Affirmed without report, 88 O. S., 623.] 129.
"Owner" means fee simple or ab- solute in a grantor's covenant that he is the true and lawful "owner." 283.
Parol evidence that the grantee assumed an unexpired lease on the
premises before delivery of the deed and as a condition thereof, is admissible in an action on the covenant against incumbrances, for it is not inconsistent with the covenant but is in effect a dis- charge of the liability thereon. 529,
In a sub-contractor's action against the head contractor for an amount due, evidence of a cus- tom among contractors by which the sub-contractor bears a propor- tion of the cost of board, convey- ances, etc., for agents, engineers and surveyors furnished by the head contractor is admissible, not to vary the contract, but to ex- plain surrounding facts under which it was made. 142.
Ten thousand dollars for the loss of a leg of a fourteen-year- old boy is excessive and either a remittitur to $7,500 or a reversal must be accepted. [Below, 18 N.P. (N.S.), 409.] 49.
Breach of contract to convey payable in future services. 84.
Jury should be told meaning of punitive damages. 321.
Re-sale not evidence of market value. 225.
DEATH BY NEGLIGENCE—
In an action by a mother as administratrix for the death of a child she can not recover for her own benefit if those in whose cus- tody she had placed the child failed to use ordinary care for its safety. 29.
Where S died testate without is- sue, leaving brothers and sisters and a widow who elected not to take under the will and later died intestate without either issue or brothers and sisters, she took her distributive share of her husband's personal estate under G. C., 10571 and 8592 and not under G. C., 8574, paragraph 2; hence G. C.,
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