Hamilton County.

GIFFEN, J.

The defendant in error, as plaintiff in the court of common pleas, brought an action against the plaintiff in error as defendant, to recover damages for breach of the following contract, to wit:

"Elmwood Place, Ohio, Dec. 6, 1899.

"The Highland Buggy Company, Elmwood Place, Hamilton county, Ohio, hereby employs A. S. Parker, of Aurora, Mo., to act as salesman in selling its vehicles in Kansas, Missouri, south of Missouri river, and Oklahoma Territory, for one year from December 1, 1899, at a salary of one thousand ($1,000) dollars per annum, payable in equal monthly installments.

"Said company will also pay the proper and necessary traveling expenses of said A. S. Parker, in canvassing said territory, and will pay him at the end of the year five (5) per cent upon all sales made by him in excess of twenty-five thousand ($25,000) dollars.

"This five (5) per cent on sales in excess of twenty-five thousand ($25,000) dollars is to be paid on all mail orders following the initial order taken by the said A. S. Parker, said sales being subject to the approval and acceptance of the said The Highland Buggy Company.

"In consideration of the foregoing, A. S. Parker will give his entire time and attention to selling the vehicles of said company in the territory named, at prices furnished him from time to time, and will promote the interest of the Highland Buggy Company all to its satisfaction.

"Should said company not be able to collect any account made by said A. S. Parker, owing to the insolvency or failure of the purchaser, then said account shall not be taken into consideration in fixing the basis of the five (5) per cent above specified.

"THE HIGHLAND BUGGY COMPANY,

"H. J. McCullough, Sec. & Treas.

"Accepted, A. S. PARKER." Plaintiff entered upon the performance of the contract and rendered services as salesman for the defendant for a period of about four months, when the defendant discharged him for the alleged reasons that he had sold buggies at prices below those furnished him, made terms with parties contrary to the orders sent in by him, and in other ways violated his contract.

The chief controversy arises upon the construction of that part of the contract which provides the things to be performed by the salesman, it being contended by the plaintiff in error that it was justified in discharging the defendant in error whenever it became dissatisfied with the manner in which he performed his services. And on the other hand, the

Buggy Co. v. Parker.

defendant in error claims that the meaning of this clause is, Parker agreed to promote the interest of the buggy company by taking orders for their vehicles at prices furnished to him from time to time all to its satisfaction.

It is manifest that the company could not be heard to complain of the use of his time, if he gave his entire time and attention to selling the vehicles of said company in the territory named, and it should and must be satisfied therewith, for the reason that it is a compliance with the very terms by it prescribed. So, likewise, if he made the sales at the prices furnished him from time to time by the company. That which is uncertain in the contract, and which in the nature of the case could not be stated with exactness in the contract, relates to his promise to promote the interest of the company. This is substantially a representation to the company that he had the experience and ability to promote and would promote the interests of the company in such a manner as would satisfy it.

The general charge of the court upon this provision of the contract was most favorable to the plaintiff in error, and the first special instruction requested by it was properly refused. The dissatisfaction which would warrant the company in terminating the contract could not depend upon mere whim or caprice, but upon such facts as would warrant a reasonable person in the conclusion that the services of the salesman were not promoting, either directly or indirectly, the interests of his employer, provided always that the latter acted in good faith and performed his part of the contract.

The evidence shows that the employment was not profitable to the company, and the jury might well have found that it was justified in terminating the contract under this clause, but having found for the plaintiff upon this issue, we will not now disturb that finding.

Testimony was offered tending to prove that the plaintiff before executing the contract, represented to the defendant that he could sell at least a thousand jobs, and if he did not sell eight hundred he would not ask any compensation, and the court excluded it. While this testimony was incompetent to prove a promise to that effect not embodied in the contract, yet we think it was competent to give a proper application of the words we have been considering and the object sought to be attained by the contract, especially if the clause is indefinite and uncertain as claimed by the counsel for defendant in error. Hildebrand v. Fogle, 20 Ohio 147.

Testimony shows that the plaintiff sold vehicles at prices less than those fixed by the defendant company, not only in violation of the con

Hamilton County.

tract but against its protest. The contract expressly provides that the sales should be made at prices furnished him from time to time, and if the company in good faith fixed reasonable prices, the salesman was bound to conform thereto, and if he sold below such prices, it was a direct breach of the contract and warranted his discharge.

It is claimed, however, by counsel for plaintiff, that all sales were subject to the approval and acceptance of the company, and that the orders were so taken and transmitted. But reference to the contract shows that "said sales" referred only to those in excess of $25,000; and there is no pretense that the plaintiff sold that amount, besides, even granting that all sales were taken subject to approval and acceptance, such approval did not relate to the price, because that was especially provided for in the contract, but it related to the financial responsibility of the purchaser and such other elements of the sale, which could not be anticipated or provided for in the contract.

The court correctly charged the jury upon this issue, and its finding in favor of the plaintiff is manifestly against the weight of the evidence. The court properly refused to give any of the special charges requested by the defendant.

We find no other error in the record and the judgment will be reversed, and cause remanded for a new trial.

Jelke and Swing, JJ., concur.

RAILROADS-COUNTIES-HIGHWAYS-INJUNCTION.

[Portage (7th) Circuit Court, September Term, 1904.]

Laubie, Burrows and Cook, JJ.

WILLIAM GRINNELL ET AL. V. PORTAGE CO. (COMRS.) ET al.

1. POWERS CONFERRED UPON COUNTY COMMISSIONERS BY ACT OF APRIL 27, 1903. CONSTRUED.

The act of Aril 27, 1893, 90 O. L. 359 (Lan. R. L. 5312 et seq.; B. 3337-8 et seq.) applies only to existing crossings of highways, and does not confer authority upon county commissioners to exercise the powers therein specified as to crossings proposed to be made in the near future by a railway company in the construction of a new line of railroad.

2. COMMISSIONERS CANNOT CHANGE COURSE NOR VACATE HIGHWAY NOT INTERSECTED BY RAILWAY.

The power therein conferred upon county commissioners to change or alter the course of a highway, and vacate a portion thereof, to get rid of a crossing at grade, is limited to the highway crossed; and such commissioners cannot, in so doing, also change the course, and vacate a portion of an adjacent highway intersected by the railway by a nearby underhead crossing.

Grinnell v. Commissioners.

3. INJUNCTION WILL LIE TO PREVENT SUCH CHANGE AND VACATION IF COMPLAINANTS SUFFER DAMAGES DIFFERENT FROM GENERAL PUBLIC.

Where under the power thus conferred such commissioners are about to change the course, and vacate a portion of a highway, the owners of lands abutting on such portion may enjoin such change and vacation if they will thereby suffer injury in excess of, and different from, that of the general public, as there is no method provided for awarding compensation to them for such injury.

INJUNCTION.

I. T. Siddall, for plaintiff :

Powers of county commissioners as to crossings, etc. Defiance Co. (Comrs.) v. Croweg, 24 Ohio St. 492; Newark v. Jones, 9 Circ. Dec. 196 (16 R. 563); Lan. R. L. 2120, 2898, 7905, 7948, 7953, 7960, 7961, 8397, 8398, 8433, 8437 (R. S. 860, 1459, 4634, 4655, 4661, 4668, 4669, 4921, 4922, 4936, 4940); State v. Hancock Co. (Comrs.) 11 Ohio St. 183; Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189, 213 [48 N. E. Rep. 882; 63 Am. St. Rep. 710]; Lan. R. L. 5307, 5312, 5321 (B. 3337-3, 3337-8, 3337-17); State v. Commissioners, 49 Ohio St. 301 [30 N. E. Rep. 785]; Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. Rep. 738].

W. J. Beckley, prosecuting attorney, for defendant.

The county commissioners are the persons having the care and control of the public state and county roads and the only ones having the right to sue and recover for any injury or damages to such. See Lan. R. L. 2104 and 2123 (R. S. 845 and 863); Citizens' Elec. Ry. v. Richland Co. (Comrs.) 56 Ohio St. 1 [46 N. E. Rep. 60].

Diverting of highway. Megrue v. Putnam Co. (Comrs.) 8 Circ. Dec. 262 (15 R. 245).

LAUBIE, J.

In this case plaintiffs seek to enjoin the commissioners from changing the location, and vacating a portion, of the public highway running west from the town of Ravenna to Kent in said county, known as the Ravenna-Kent road. The facts sufficiently appear in the special finding of facts made by this court at the request of defendants.

The Pennsylvania Company, a defendant herein, controls and operates the Cleveland and Pittsburgh railway and has laid out and is now constructing a new and shorter line for that railway through Portage county, which is to cross said highway diagonally, as the direction of said new line in from northwest to southeast, at a point between said towns a mile distant from its original line, at a grade of more than thirty feet below that of the highway; and at a point some seven hundred feet east thereof said new line is to cross another public road nearly at

Portage County.

grade, known as the Sandy Lake road, which runs from the south northward and connects with said Ravenna-Kent highway north of said new line of railroad.

The object of the suit is to restrain the defendants from carrying out an agreement entered into between them, to change and divert the line of said Ravenna-Kent highway and vacate and abandon a part thereof, as follows:

Commencing at a point about 350 feet east of said proposed crossings of said Ravenna-Kent highway, thence turning and running said highway to the southwest until it intersects said new railroad, crossing the same by an overhead bridge at right angles, and then turning to the northwest and paralleling such new railroad until it strikes or intersects the original highway at a point west of where such new line of railroad was to strike said highway, and vacate and abandon such portion of the said highway, as lies between the said points of divergence.

The object of this, as claimed by the defendants, is to avoid the nearly-at-grade crossing of the said Sandy Lake road for the safety and convenience of the public, said agreement also including a change of the line of that road by turning it to the northwest at some point south of where it was to be crossed by such railroad, and to connect it with said Ravenna-Kent highway at a point near the southwest end of said overhead bridge; and the right to do this, it is claimed, is conferred upon the commissioners by the provision of the act of April 27, 1893 (90 O. L. 359).

That the provisions of said act do not apply to such a case as this, is evident-even the title of the act shows this. It reads, "To provide for the abolition of dangerous grade crossings." Section 1 of that act, (Lan. R. L. 5312; B. 3337-8) in regard to crossings outside of municipalities, provides that if "the commissioners of any county in which, outside of any municipal corporation, a railroad or railroads and any public road or highway cross each other at grade, and the directors of the railroad company or companies are of the opinion that the security and convenience of the public require that alterations shall be made in such crossing, or in the approaches thereto, or in the location of the railroad or railroads or the public way, or any grades thereof, so as to avoid a crossing at grade, or that such crossing should be, discontinued with or without building a new way in substitution therefor, and if they agree as to the alterations which should be made, such alterations may be made in the following manner:

Section 2 (Lan. R. L. 5313; B. 3337-9). "When it is deemed necessary the commissioners shall by