Cleveland Provision Co. v. Hague. ation, you can not on this account conclude that the defendant was guilty of negligence; neither is there any presumption to the effect, if the plaintiff was injured, that the defendant was guilty of negligence." The eleventh, which was refused, reads: "If you find that it was in fact unsafe for the plaintiff to work on the elevator platform while the elevator machinery was in operation, then, I charge you, that it was the duty of the plaintiff, when in the course of his work it became necessary for him to go upon said platform, to notify the defendant, and thus afford the defendant an opportunity to discontinue the operation of said car until the plaintiff had completed his work upon the platform." Clearly this ought not to have been given. There was no claim made that the car should not be operated while the plaintiff was at work upon the platform, but only that it should not be put in motion without a warning to him. Without stopping to read each one of these requests refused, we reach the conclusion that in view of the charge as given, there was no prejudice to the defendant in the refusal to give such as were refused. Attention has not been called specifically to each one of the errors complained of, but attention has been given to all of them, and attention in this opinion is called to those which we regard as of large importance as any, and on the whole record we fail to find that there was any error to the prejudice of the defendant whereby substantial justice was not done to it in this trial, and the judgment is affirmed. Winch and Niman, JJ., concur. Cuyahoga County Circuit. DAMAGES-FRAUD. [Cuyahoga (8th) Circuit Court, May 22, 1912.] J. A. C. GOLNER V. GEORGE LUTTNER. Measure of Damages for Misrepresentations in Exchange of Properties. The measure of damages in an action for fraud in the exchange of property is the difference between the value of the thing received, if it had been as represented, and its actual value át the time of the exchange. ERROR. Hidy, Klein & Harris, for plaintiff in error. David & Heald, for defendant in error. This was an action to recover for an alleged fraud practiced upon Luttner by Golner in inducing Luttner to exchange his property in Cleveland, worth about $7,000, for some notes secured by mortgages on land in Lorain County, which Golner and his associates, or alleged fellow-conspirators, represented to be upon the shore of Lake Erie and ample security for the notes, whereas the lots described in the mortgages were not upon the shore of the lake and were not good security for the notes. There were other misrepresentations alleged to have been made. The case was tried to a jury, which brought in a verdict for the plaintiff, and we have reviewed the evidence upon a claim by plaintiff in error that the verdict was not sustained by sufficient evidence in two particulars—that is, that it was not shown that Luttner was deceived by any false representations made as to the location of the land, if any were made, for he had opportunity from a plat to ascertain that the lots mortgaged were not located upon the shore of the lake, and that Golner's connection with the fraud was not shown. There is no need to recite the facts in this case-counsel for the parties are familiar with the record. It unfolds a tale of apparent fraud. Golner v. Luttner. Though there are some contradictions in the evidence, this is not unusual. Suffice it to say that if the jury believed some of the witnesses and disbelieved others, as they had a right to do, and considered all the probabilities of the case, the age, business and capacity of the parties, they might well have come to the conclusion that Luttner had been wronged by Golner in the manner claimed in the petition and was entitled to damages. It is claimed, however, that the case must be reversed for error in the charge on the measure of Luttner's recovery if the jury should find in his favor. On this subject, the court charged as follows: "If from a consideration of all the testimony your verdict is for the plaintiff against the defendants, or either of them, you will award to the plaintiff such amount as will compensate him for any damages he has sustained; and in arriving at the proper measure of recovery, in case your verdict is for the plaintiff, you will take into consideration the difference, if any, between the value of the securities, consisting of notes and mortgages transferred to the plaintiff, and what would have been the value of the same at the time they were transferred, if the lots covered by said mortgages had been located on or near to the shore of Lake Erie." Plaintiff in error claims that the court should have charged that the measure of damages in a case such as this is the difference between the actual value of the thing parted with and the actual value of the thing received. There is respectable authority for the rule contended for, but it seems that it makes a new contract for the parties. One may trade his property for another's because he expects to make a good bargain and a profit, and would make a decided profit if the thing traded for were as represented; by reason of the false representations, however, he receives something worth less, instead of more than what he parted with. The rule urged cuts out the profit he had a right to expect and remits him to the actual value of what he parted with. Both the rule given by the court and the rule contended for are given in 20 Cyc. 132, with authorities sustaining each. In a note giving cases purporting to sustain the rule as given Cuyahoga County Circuit. by the trial judge is cited the case of Linerode v. Rasmussen, 63 Ohio St. 545, a case very similar to the one at bar. There it was held: "Where the defendant was sued on notes given for purchase money for a farm, and sought to recoup damages on the ground that the plaintiff had represented that 'underlying said premises was a three or three and a half foot vein of good bituminous, minable coal,' whereas there was no coal whatever under said premises, the measure of damages is the difference between the value of the farm as it was represented to be and its actual value at the time of the purchase.' From this authority we conclude that there was no error in the charge given. See also Wilkinson v. Root, Wright, 686. On the whole record it seems that substantial justice was done in this case, and the judgment is affirmed. Marvin and Niman, JJ., concur. WILLS. [Cuyahoga (8th) Circuit Court, May, 1912.] Marvin, Winch and Niman, JJ. EDNA GIDDINGS V. GEORGE SCHMUCK, EX., ET AL. Sufficient Signature to Will. A will is signed at the end thereof, as required by the statute, when the signature of the testator appears after the will, just below a line intended in a blank form for the signature and in a blank space in the attestation clause intended for the name of the testator as part thereof, said name also appearing in the attestation clause, in the handwriting of the scrivener of the will, just below the testator's signature, in such position as to be read as a part of said attestation clause. Sears v. Sears, 77 Ohio St. 104, distinguished. C. W. Toland and H. G. Shaibley, for plaintiff. M. P. Mooney, for defendant. MARVIN, J. A writing purporting to be the last will and testament of William Gable, deceased, was admitted to probate by the pro Giddings v. Schmuck. bate court of this county on January 26, 1909. Proceedings were brought in the court of common pleas to set aside this will, with the result that on motion, the court directed the jury to find a verdict that the purported will was in fact the will of said deceased. It is to reverse this judgment that the present proceeding is prosecuted. The parties here are as they were in the court below, the defendants being the proponents of the will. Pursuant to the provisions of Sec. 12085 G. C., the proponent offered in evidence the will, or order of probate, including the testimony taken in the probate court by the defendant's witnesses, and rested. Thereupon the contestors of the will moved the court to direct a verdict that this writing was not the will of said testator. This motion was overruled, and then the motion, already mentioned, was made by the proponents of the will that a verdict be directed finding for the proponents. The only question in the case is as to whether the writing claimed as a will was executed in accordance with Sec. 5916, which was the statute in force at the time this will purports to have been executed. That section requires that wills, except nuncupative wills, "shall be signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses who saw the testator subscribe or heard him acknowledge the same.' The present statute, Sec. 10505 G. C., has practically the same provision, although the wording is somewhat different, but this case must be governed by the statute in force at the time the will was executed, although, as already said, the present statute is practically the same, and if the case were to be governed by the present instead of by the former statute, the result would be the same. The real question in the case is whether this writing was signed at the end thereof by the maker. The attesting witnesses swore in the probate court that it was signed by William Gable in their presence, and that all the other formalities were complied with as the statute requires, |