Pleading-Proximate Cause.
for causing fire held sufficient under R. S. 3365-5, 3365-6 (L. 5395, 5396), when. Lake Shore & M. S. Ry. v. An- derson,
Where a person signs a consent for construction of street railway as agent for another, no presumption in favor of the agency arises from the rule that council is presumed to have acted with sufficient consents before it. Day v. Railway. 60
A contract to execute a deed upon erection of certain houses on land does not constitute him agent of vendor to order materials therefor. Lapham v. Ransford.
80 Agreement of salesman to promote interest of employer implies ability to promote, etc. Highland Buggy Co. v. Parker. 115
Salesmen must conform to reasonable prices fixed by employer. Ib.
Dissatisfaction of employer to war- rant employe's discharge must not be based on mere whim, etc.
The refusal of a party to perform his agreement for the purchase of realty on the ground that the title thereto is defective will not, in the absence of mistake or fraud, release the owner from the payment of a commission to the agent effecting the agreement, where such owner has agreed to accept the terms offered and pay such commis- sion. Godley v. Haley. 606
Evidence of custom to show agency, is admissible in suit upon specialty. Pullman Co. v. Willett. 649
Relation of principal and agent be- tween sleeping car company and rail- road ticket agent shown by custom. Ib. PRINCIPAL AND SURETY—
Payment by surety of depositary to trustees in bankruptcy is not payment to the government. American Surety Co. v. Bank. 586
Agreement to be responsible for debts contracted in certain business creates relation of principal and surety. Schick v. Ott. 697
Sureties held not liable on appeal bond, when no judgment ordered prin- cipal to pay anything. Dieckman v. Hunt. 836
Probate court cannot make general regulations as to use of all streets by telephone company under R. S. 3461 (L. 5587). Queen City Tel. Co. v. Cin- cinnati. 385
Decree of probate court directing con- struction of telephone lines must be re- sult of judicial determination to be valid. Ib.
Manure is a fixture, but hay and straw are generally treated as chattels, Garrett v. Bank. 463
Facts not constituting misconduct of counsel in criminal case. Wray v. State. 1 Statement of counsel, in argument of his belief that defendant had com- mitted similar crimes held not improper. Straub v. State. 50
PROXIMATE CAUSE-
See NEGLIGENCE.
Whether or not a newspaper is one of "opposite politics" from that of an- other, within the meaning of R. S. 1536-619 (L. 3109), which requires that all ordinances and resolutions requir- ing publication shall be published in newspapers of opposite politics, can- not be determined from a lexicograph- er's standpoint, for the reason that more than one signification is usually and ordinarily given to such words, owing to the context. Columbus v. Barr. 264
Independent newspaper not one of "opposite politics" within meaning of R. S. 1536-619 (L. 3109). Ib.
The legislative intent of R. S. 1536- 619 (L. 3109) as to publication of or- dinances, is publicity, etc.
QUO WARRANTO-
Noise, smoke, etc., from operation of railroad held not legal nuisance, when. Ross v. Railway. 135 Property situated within fifty feet of that part of a street on which a rail- road is built and operated is "near to" the same within the meaning of R. S. 3283 (L. 5239), and the owner of such property is entitled to recover for in- juries thereto sustained from cinders, smoke, noise, etc., arising from the op- eration of the road within the limits of such street at that distance from said property. Toledo Ry. & Term. Co. v. Meinen.
The measure of damages, in an action by a property owner under R. S. 3283 (L. 5239), against a railroad company, to recover for injuries resulting to her
property from cinders, noise, and smoke, is the difference in the value of the property before and after the alleged injury. Ib.
Railroad held to invite consignee's employes to unload freight, when. Jury warranted in finding car brakes, negli- gently set, when. Wheeling & L. E. Ry. v. Rupp.
The failure of a railroad company to keep a gong at a public crossing in re- pair so as to give warning of approach- ing trains, does not of itself, in all cases, relieve the traveler from exer- cising ordinary care at the crossing. Clev. C. C. & St. L. Ry. v. Sivey. 248
Intervening objects breaking sound, etc., held proper subjects of inquiry in determining whether traveler was negli- gent in approaching crossing, etc. Ib..
Where the evidence undisputedly shows that the crossing where the acci- dent, which is the basis of an action for negligence against a railroad company, happened, is located outside of a munic- ipal corporation, a charge to the jury which implies that the highway was a city street, and not a country road, and thereby not governed by the same rules of law as the latter, is erroneous.
Brakeman injured by failure of con- ductor to protect him from danger may recover from company, when. Lorain Steel Co. v. Hayes. 407
Petition against railroad company for I causing fire held sufficient under R. S. 3365-5. 3365-6 (L. 5395, 5396), when. Lake Shore & M. S. Ry. v. Anderson.
Jury warranted in finding that fire on plaintiff's land originated from lo- comotive, when. Ib.
A railroad company has a common- law lien upon the property in a car, for its proper demurrage, charges against such car, and may enforce the same by refusing to deliver such prop- erty until payment of the demurrage charges has been made. Pitts. C. C. & St. L. Ry. v. Lumber Co. 588
Railroad held not excluded from con- structing cattle guards at public cross- ing within yards unless public neces- sity requires crossing to be kept open, etc. Norfolk & W. Ry. v. Vallery. 658 It is the duty of a railway to guard a turntable which it maintains close to a traveled path along its track which children and others have been accus- tomed to use, without objection, as a traveled way. Wheeling & L. E. Ry. v. Harvey. 672
A charge containing the statement that those who cross a railroad track in the known absence of the flagman regularly stationed there, "knowing they are absolutely sure to be injured, as-
A charge that, "The public need not anticipate danger and look for it in the absence of the flagman," at a rail- way crossing is properly refused. Ib.
Where plaintiff, in attempting to cross a railway track relied on his previous observation of the habits of the flagman stationed there and as- sumed from his absence that the way was clear, when in fact an accident oc- curred and plaintiff sustained injuries therefrom, the question of contributory negligence is properly left to the jury. Ib.
Doctrine of assumption of risk not applicable where servant cannot exer- cise option of remaining in employ, etc. Isley v. Railway. 785 Railroad must keep fences in repair, and is liable for injuries resulting from failure to do so. Ib.
Revised Statutes 6448 (L. 10025) held only applicable where railroad oc- cupies land without written authority. Collins v. Shipbuilding Co.
Usurping right denied by written agreement does not bring case within R. S. 6448 (L. 10025).
tion may be made in such case, although the receiver was appointed subsequently to the filing of the petition. Dickason v. Bank. 357
Where a general deposit is made in an insolvent bank, known to the cashier but not to the depositor, and immediate- ly after the bank fails, and the fund coming into the hands of the receivers, is much more than the deposit, the depositors may sue the receivers in equity to charge such deposit upon the fund in the hands of the receivers, and have the same preferred. Baker 5. Orme. 465
Salesman must conform to reasonable prices fixed by employer, but financial responsibility held reserved to employer. Highland Buggy Co. v. Parker. 115
Where a foreign guardian without authority sells securities of the ward's estate to a bona fide purchaser, without actual knowledge, no title passes; such purchaser will be liable as upon a con- version thereof. Merchants' & Clerks' 125 Sav. Bank Co. v. Schick.
Warranty must be both false and fraudulent in action to rescind contract and recover purchase price. Allen v. Haas. 727
Marketable title only, and not one unincumbered, required by deed calling for "good warranty deed," etc. Egle v. Morrison. 497
Substantial defect necessary to de- feat real estate contract of sale. Ib.
Sales Statutes and Ordinances.
Demand for return of railroad tickets not a waiver of right of action for breach of contract by sleeping car com- pany. Pullman Co. v. Willett. 649 SPECIFIC PERFORMANCE-
It is no defense to an action to compel specific performance of a con- tract required by the statute to be in writing, that it is not signed by both parties thereto; it is sufficient if it is signed by one of the parties to be charged, and is accepted by the other. Acceptance by the latter is shown by bringing suit upon it. Egle v. Mor- rison. 497
A statute cannot be modified in any way by a rule of court. R. S. 550 (L. 876), construed. Hunt v. State. 16
The statute must be strictly followed in construing mechanic's lien. Lap- ham v. Ransford. 80
An appeal is a continuance of the original action, and statutes relating thereto, in force at the time an action is commenced, are not affected by sub- sequent amendatory legislation, unless expressly so provided. Peters v. Har- 88
Amendment to act of legislature held presumed to be made in contemplation of remaining sections in pari materia. Wiler v. Gas & Fuel Co. 257
Statute must be read in light of conditions existing at time of enact- ment. Queen City Tel. Co. v. Cincin- nati. 385
Rule for determining constitutionality of legislature enactments under Ohio constitution. Davies v. State. 593
The sections of the revised statutes relating to the letting of contracts, etc., by the board of public works are distinct from, and independent of, those sections which relate to the letting of contracts, etc., under the caption of "Public Buildings." Carmichael v. Me- Court. 775
STATUTES AND ORDINANCES-
The clause, "In all other respects said ordinance is approved and confirmed," contained in an ordinance which repeals a part of a prior ordinance, does not make the repealing ordinance obnoxious to R. S. 1694 (L. 3106; B. 1536-620), in that it is, in effect, the re-enactment of a part of a former ordinance, and therefore contains more than one sub- ject; such clause is mere surplusage,
Statutes and Ordinances-Street Railways.
and adds nothing to the former or- dinance. Belle v. Glenville. 181
The legislative intent of R. S. 1536- 619 (L. 3109) as to publication of or- dinances, is publicity. Columbus v. Barr. 264
Legislative bodies may reconsider vote taken as general rule, etc. Adkins v. Toledo. 417 Council may make noisy conduct, etc., a penal offense under R. S. 1536-100 (L. 3102). Esch v. Elyria. 446
An ordinance renewing a street rail- road franchise will be construed as a whole in determining whether it is lim- ited in its operation to that part only of the street in which the company has already laid its tracks and is operating its cars, or extends to all the rights, privileges and franchises granted by the original ordinance. Akron v. Trac- tion & L. Co. 536
Consent for owner by another bind- ing if intended by former as such. Ib.
Mere knowledge of guardian that the person from whom his ward derives title has consented to the construction of a street railway and the neglect of the grantee to revoke it, does not bind the ward. Ib.
Purchaser of land subsequent to con- sent by former owner bound thereby un- less revoked. Ib.
A vendee in possession of abutting land upon contract to convey, has a right to consent. Ib.
Consent to construction pending ap- plication for grant may be considered on subsequent application, when. Ib.
An abutter has a right to consent, or withhold his consent, either construc- tion or extension of tracks of street rail- way. Construction and extension dis- tinguished. Ib. Standing on platform of interurban
car, while running through open coun- try, held not proximate cause of in- jury, when. Cin. L. & H. Elec. St. Ry. v. Lohe. 138
The date of renewal of a grant to a street railroad company need not be on the exact day of which the original term expired. R. S. 251 (L. 3767; B. 1653- 184), R. S. 2502 (see L. 3764; B. 1536- 185), examined. Belle v. Glenville. 181
Revised Statutes 1536-189 (L. 37651 has no application to the extension of the track of an existing line of road. such as is provided for in R. S. 2505 (L. 3770; B. 1536-188).
Where a street railroad line has been operated for more than ten years by motive power other than that furnished by horses and mules, an objection to the operation of an extension of such line by electricity, based upon the ground that the original line was to be operated by motive power furnished by horses and mules, is not well taken. Ib.
The property rights of a street rail- road operating under authority of a municipality to the extent that its lines are within the corporate limits, and under authority of the county commis- sioners to the extent that its lines are without the corporate limits are not taken away by the mere annexation of the incorporated territory to the munici- pality.
The laying of an electric railway switch in a public highway without the consent of an abutting owner, and con- trary to the provisions of Sec. 3, Art. 13 and Sec. 19, Art. 1 of the Ohio con- stitution, will be enjoined at the suit of such owner, in the absence of facts and circumstances which work an es- toppel; and where such switch has already been laid, a mandatory injune- tion will issue to compel its removal. Chambers v. Traction Co. 193
An additional burden is imposed up- on a public highway by the laying of a switch therein by an electric railway company; and this is so, irrespective of whether or not such company is a mere "paper" company, or one already in op- eration over such highway. Ib. An estoppel arising against an abut-
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