iff has done all he could do on the floor of said lodge in a parliamentary way to prevent the allowance and payment of said bill," is not sufficient for this purpose. If a court of equity has a right to interfere at all, clearly it can not do so until the plaintiff has exhausted all the remedy provided by the by-laws and constitution of such society, and in the absence of such averment the petition does not show any necessity for the interference of the court; neither will a court of equity interfere with the management of a corporation or of a society, unless the managing officers or stockholders are acting in excess of their corporate power, unless the petition avers collusion or fraud on the part of the managing agent or of a majority of the stockholders. This petition contains no such averment, and in the absence of such averment the court will not interfere to restrain the discretion of the managing agent or stockholders, in the absence of fraud or collusion, no matter how clearly it may appear that they are mistaken as to the best course to pursue.

In this case the act of payment is clearly not ultra vires, as the petition says that the by-laws provide for the payment of such expenses. The question as to who is entitled to receive such expenses is merely one of judgment and discretion, and so long as such judgment and discretion is exercised in good faith, and, so far as this petition is concerned, such is the case, a court will not interfere by injunction to direct what such society shall or shall not do.

These considerations dispose of the matter. We have not gone further into the consideration of the right of plaintiff to bring this action, or whether or not he should have brought it in his own name on behalf of the lodge, or on behalf of all others similarly situated.

Kerr & LaDow, for plaintiff.

W. F. Voegele and Cummings, McBride & Wolfe, for defendant.

Beal Law-Affidavit Charging Keeping Open on Sunday-SurplusageDuplicity Jurisdiction of Mayor-Prejudice-First and Second Offense-Demand for Jury.

1. An affidavit in the form used in this case is sufficient to support a conviction of keeping open on Sunday a room where intoxicating liquor is sold.

2. Under an affidavit in that form there is but one offense charged; all reference to the sale of liquor is mere surplusage.

3. The presumption is that the offense charged was a first offense, and if it does not affirmatively appear from the record that it was a second offense, the action of a mayor in overruling a demand for a jury will not be disturbed.

On August 4, 1903, an affidavit was filed before J. S. Ricketts, mayor of the village of Marble Cliff, in Franklin county, Ohio, the body of which contained the following language:

"J. W. Morgan, being duly sworn, saith that on the 2d day of August, A. D. 1903, the said day being the first day of the week, and commonly called Sunday, at the county aforesaid, one Andy Kappes, in the township of Clinton, did, unlawfully and knowingly, keep open a saloon on said day, and did then and there, unlawfully and knowingly, expose, sell and furnish, intoxicating liquors to be used as a beverage, said saloon being a place where intoxicating liquors are, on other days of the week, exposed for sale and sold for beverage purposes, and not being a drug store, and said Andy Kappes not being, then and there, a regular druggist, and not selling and furnishing said intoxicating liquors upon a written prescription of a regular practicing physician for medicinal purposes only, or for pharmaceutical, scientific, mechanical, or sacramental purposes, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio."

The cause came on for hearing and the defendant successively moved for a change of venue (1) because the mayor was prejudiced; (3) offered to waive examination and be bound

over to the police court of Columbus, Ohio; (4) demurred to the jurisdiction of the court; (5) demurred to the sufficiency of the affidavit; and (6) moved to quash the affidavit because it did not sufficiently charge the sale of intoxicating liquors on Sunday. These motions and demurrers were each, in succession, overruled, and then the defendant demanded a trial by jury, which was refused.

On trial before the mayor the defendant was found guilty of keeping open a saloon on Sunday, and was fined $100 and costs. On error proceedings the court of common pleas affirmed the judgment of the mayor, and that judgment has been affirmed by the circuit court, Judge Wilson rendering the opinion as follows:

WILSON, J.; SULLIVAN, J., and DUSTIN, J., concur.

The plaintiff in error was convicted in the mayor's court of the village of Marble Cliff, in Franklin county, Ohio, of the offense of keeping open on Sunday a room where intoxicating liquors were sold.

He interposed a motion for a new trial, which was overruled. A bill of exceptions was allowed and error prosecuted to the court of common pleas to reverse the judgment. The court affirmed the judgment, and error is prosecuted here to reverse the judgment of affirmance, as well as the judgment of the mayor's court. It is claimed that the trial court erred in overruling the motion of the plaintiff in error for a change of venue upon the ground that the mayor was a material witness for the defendant, without whose testimony he could not safely proceed to trial.

Without determining the question whether the statute providing for change of venue applies to the mayor's court, the hearing on this motion does not satisfy this court that the mayor was a material witness, or that the motion was made in good faith. The evidence tended to show prejudice, but that is not a ground for change of venue, unless it be in the citizenship, and the defendant be entitled to a trial by jury. The motion was properly overruled.

The defendant demurred to the affidavit for duplicity, and that it did not charge the offense of keeping open on Sunday.

The

The court overruled the demurrer. This was not error. affidavit does not charge the offense of selling intoxicating liquors on Sunday. What is said in that regard could properly be treated as surplusage, or as descriptive of the kind of room that was kept open. The language negativing the fact that it was a regular drug store is sufficient under the statute.

The defendant demanded a jury trial, which was refused. The mayor's court had jurisdiction to try the case, whether it was a first or second offense-the only difference being that he could try it without a jury if it was a first offense. In either case he had final jurisdiction. The question of the right of the defendant to a jury trial, was not, therefore, jurisdictionaì, and it is not necessary that the record should disclose that it was a first offense in order to give the court jurisdiction. But in order to find that there was error in overruling the demand for a jury, it must affirmatively appear of record that it was a second offense. That does not appear. The presumption is the charge was for a first offense. There was no error in the refusal of a jury trial.

We find no prejudicial error in the admission and rejection of evidence, and no error on the record.

The judgment is affirmed with costs, and remanded to the mayor's court for execution.

G. E. Trump, for plaintiff in error.

W. B. Wheeler and M. E. Thrailkill, for defendant in error.

1904.]

Lucas County.

CONTRACT OF PURCHASE AND SALE EMBODIED IN

CORRESPONDENCE.

[Circuit Court of Lucas County.]

THE TOLEDO PAPER BOX COMPANY V. THE AMERICAN ROLL WRAPPING PAPER CO.

Decided, January 25, 1904.

Contract-In the Form of a Written Order for Goods-Accepted in Writing-Can Not be Modified by Parol Evidence-Of an Oral Agreement with Agent or Seller as to Time of Delivery.

Where a written order for goods, stating the time when the goods shall be shipped, is accepted in writing, but with a modification as to the time of shipment, with respect to which modification the party giving the order makes no objection, and such written communications contain all the essential terms and elements of a contract of sale, and no mention is made therein of prior oral negotiations or agreement between the purchaser and the agent respecting the time of shipment, parol evidence is not competent to support a claim by the purchaser that a different time for the shipment of the goods was agreed upon orally between him and the agent of the seller, and that his subsequent order was given in pursuance of and was based upon such prior oral agreement.

PARKER, J; HAYNES, J., and HULL, J., concur.

The American Roll Wrapping Paper Company recovered a judgment in the court of common pleas against The Toledo Box Company, on account of some paper of a special sort which was ordered by the plaintiff in error from the defendant in error and received by it. By way of cross-petition, or counter-claim rather, the plaintiff in error claimed damages on account of delay in furnishing this paper; it claims that it was to have been furnished within a certain number of days after the order was given and that it was not then furnished; that it was not furnished until some months after, whereby it lost the use of it and so it became dead and useless material upon its hands and it was subjected to a financial loss.

It appears that the order given by plaintiff in error was in writing, sent by mail. It described the paper that it desired,