The passage of a resolution of ne- cessity, the adoption of an ordinance authorizing the improvement and as- sessing the costs, advertising for and receiving bids and awarding the con- tract does not amount to an entering into a contract under the Burns law. Braman v. Elyria. 731
Equity will cancel and reform re- lease obtained by fraud. Monnett v. Railway.
CAPACITY TO MAKE WILL—
CARNEGIE LIBRARY-
See PUBLIC LIBRARIES.
A master is not responsible for the wrongful act of his servant unless the act be done in the execution of au- thority, express or implied, given by the master. A railroad company is liable for the willful wrong of its em- ploye in expelling a trespasser from its freight train while in motion, to his injury, only upon proof that the act was done by such employe, in the course of his employment and within the scope of his authority. What must be shown to hold company for such expulsion. Brakeman of freight train has no implied authority to expel tres- passer. Whistler v. Cowan. 511
Conveyance for burial purposes not creating condition precedent, vesting fee simple in trustees. Church v. Gamble. 295
CHANGE OF GRADE- See STREETS.
CHANGE OF VENUE-
Section 6529 Rev. Stat., relating to change of venue not applicable to mayor's court. Kappes v. State. 111
CHARGE TO JURY-
Judgment of court upon requests for verdict not set aside unless clearly against weight of evidence. Gilligan v. Royal Arcanum. 42
Ambiguous charge cured by explan- ation. North Amherst Home Tel. Co. v. Jackson.. 89
Charge to jury should be considered as whole. Peat v. Norwalk. 161
Charge requiring burden of proof on defendant in will contest to show
Charge to Jury-Conflict of Laws.
testamentary capacity is improper. West v. Koppenberger.
The court may properly refuse to submit questions to the jury for an- swer under Sec. 5201 Rev. Stat. when the request therefor fails to contain the condition that such questions need only be answered in case a general verdict is rendered. Ib.
Instructions for verdict for defend- ant proper when contributory negli- gence is apparent from plaintiff's tes- timony. Harpham v. Traction Co. 253
Giving correct and incorrect charges upon same matter is prejudicial, it being impossible to determine_which the jury followed. Rapp v. Becker. 321
Charge that important item in will contest is will itself is erroneous. Ib. In an action for personal injuries it is error to charge that physician's bill paid by defendant is an element of damages; or that an unemancipated infant may recover for lost wages. Bowe v. Bowe. 409
Charge excluding defendant from reducing grade of crime from murder to manslaughter is error. Munday v. State.
The superintendency of a county chil- dren's home is not a public office, but mere employment, and the incum- bent thereof is an employe and not a public officer. Hence, a proceeding in quo warranto to recover the posi- tion from a wrongful incumbent can- not be maintained. State v. McGon- agle.
CHATTEL MORTGAGES-
Where chattel property is sold to be paid for in installments, and under condition that it shall belong to the purchaser when the amount paid there- for shall equal a certain amount or the value of the property, the title in the meantime, to remain in the ven- dor, the provisions of Sec. 4155-2 Rev. Stat. et seq., commonly called the con- ditional sales law, apply. Vendor can- not replevin property without return- ing part of purchase money; chattel mortgage does not affect vendee's rights. Oral evidence competent to show conditional sale. Richcreek v. O'Donnell.
See MUNICIPAL CORPORATIONS. COLLEGES AND UNIVERSITIES-
Section 1536-933 Rev. Stat., applies to "Toledo University." 97 0. L. 544 construed. Waddick v. Merrell. 437. COMITY-
See CONFLICT OF LAWS. COMMISSIONERS OF COUNTY- See COUNTY.
COMPENSATION-
See COSTS AND FEES.
COMPENSATION FOR SERVICES- See EXECUTORS AND ADMINISTRA- TORS.
CONDEMNATION PROCEEDINGS- See EMINENT DOMAIN.
CONDITIONAL SALES-
Where chattel property is sold to be paid for in installments, and under condition that it shall belong to the purchaser when the amount paid there- for shall equal a certain amount or the value of the property, the title, in the meantime, to remain in the vendor, the provisions of Sec. 4155-2 Rev. Stat. et seq., commonly called the conditional sales law, apply. Richcreek v. O'Don- nell. 528
Vendor cannot replevin property without returning part of purchase money; chattel mortgage does not af- fect vendee's rights. Oral evidence competent to show conditional sale. Ib. CONDITIONS-
Specific performance of lease re- newal refused upon failure of lessor to give notice prescribed in lease as con- dition precedent to renewal. Linke v. Walcutt.
Section 3365-11 Rev. Stat. regulat- ing the employment of conductors, etc., unconstitutional. Clev. C. C. & St. L. Ry. v. State.
348 Section 3836-3 Rev. Stat., exempting building and loan associations from usury laws is constitutional. Brooklyn 352 Bldg. & L. Assn. v. Desnoyers.
An ordinance imposing a license tax upon the seller of goods manufactured in another state is a burden upon in- terstate commerce and in conflict with Sec. 8, Art. 1 U. S. Const. Julius, In re. 423 The act of April 25, 1898 (93 0. L. 426; Sec. 1230b Rev. Stat.), relating to fees and compensation of sheriff in counties of 22,500 or more, is in conflict with Sec. 26, Art. 2 of the constitution. Childs v. Perry. 543
Ordinance imposing graduated license fee upon owners of vehicles using the streets is not unconstitutional. Ster- ling v. Bowling Green. 581
The act of April 19, 1904 (97 O. L. 87), relating to local option elections, is not in conflict with Sec. 1, Art. 5 of the constitution. Jeffrey v. State. 591
An ordinance prohibiting the convey- ance of garbage through a city's streets except by the city contractor, and plac- ing garbage upon any private property is unconstitutional. Bauer v. Casey.
Inheritance tax law (97 O. L. 398) not a taking of property without due process of law. Hostetter v. State. 702
Act of April, 1904, entitled an "Act for the relief of county treasurers and county commissioners," is not uncon- stitutional. State v. Gibson. 781
Court cannot imprison party dis- obeying order made under Sec. 5483 Rev. Stat. as for contempt. First Nat. Bank v. Clauss.
Parol evidence is inadmissible to establish parol modification of written contract, when. Toledo Paper Box Co. v. Paper Co.
Breach of former contract no defense to claim for damages for refusal to pay for goods delivered in accordance with the terms of contract therefor. Contractors & B. Sup. Co. v. Cement Co. 43
Time is of essence of contract for manufacture and sale of goods. Ib.
Vendor may rescind for vendee's failure to pay for installment deliveries.
Valid contract between municipality and street railway company to grant franchise to lowest bidder. Hattersly v. Waterville. 226
Franchise relates back to its ac- ceptance after publication. Ib.
Measure of damages for breach of contract for work and labor. Kneipper v. Richards. 245
Evidence tending to establish terms of incomplete memorandum agreement is improperly excluded. Ib.
Six months' lease at monthly rental is entire contract and will support but one breach and recovery only. Burck- hardt v. Greene. 315
Part performance must relate strict- ly to contract to take it out of the statute. Ib.
Facts not constituting part perform- ance SO as to take contract out of statute of frauds. Ib.
In an action for personal injuries, a minor plaintiff cannot recover for mother's services as nurse, in the ab- sence of special contract between them, or proof of manumission. Neither can such minor recover for wages when not emancipated. Bowe v. Bowe. 409
Insurance policy issued by foreign company upon application made, policy delivered, and premiums paid in this state, is an Ohio contract. Plaut v. Insurance Co. 499
A contract by a prospective em- ploye with a railway company, waiv- ing damages for personal injuries. is pot within the inhibition of Sec. 3365-
20 Rev. Stat., if the injury occurred before the execution of the contract; the right to damages which cannot be released is one thereafter arising. Re- employment of injured employe by rail- road company not against public policy. A contract of employment in no stipu- lated capacity, for no stated period, except such as may be satisfactory to the employer, and for no designated wages, does not imply mutuality. Bowers v. Railway.
Public office is never created by contract. State v. McGonagle. 685 Clerk's certificate under Burns law if filed before contract signed and or- dinance passed. Braman v. Elyria. 731
When the present capacity of an oil well was only fifty-three barrels a day, which fact was known to vendor but unknown to vendee, and the former in response to an inquiry from the latter as to its present capacity, replied, "I had run two one-hundred barrel tanks a day," which was the capacity of the property several weeks previous, and vendee believed from vendor's conduct and words that he was stating the present capacity of the property, and acted upon it to his prejudice, the ven- dor's reply and conduct, in such case, is tantamount to a fraud upon vendee which will entitle him to relief; and vendor will be estopped from resorting to the literal meaning of his words to escape liability to the vendee. Jones v. Draper.
A contract made by an agent rep- resenting two adverse principals, who fails to disclose to each his inconsistent position, is void. CONVERSION-
solved by the appointment of a receiver. Monnett v. Railway. 469
Foreign corporations engaged in in- terstate commerce business, voluntarily complying with Secs. 148c and 148d Rev. Stat., are entitled to exemption from attachment under the provisions of Sec. 5521 Rev. Stat. upon the ground that they are foreign_corpora- tions. Armour Car Lines v. Fruit Co. 496 COSTS AND FEES-
Executor entitled to reasonable coun- sel fees for successfully defending will, notwithstanding judgment was based on compromise. Union Sav. Bank & Tr. Co. v. Smith. 317
Executor not entitled to statutory commissions under Sec. 6188 Rev. Stat. Residuary real estate is sold by liens. Ib.
Jurisdiction of common pleas to en- ter judgment for costs error to justice to discharge an attachment. Foote v. Commercial Co. 378
Officer cannot exact compensation from county except under statutory authority Probate judge not en- titled to compensation for appointment of county treasury examiners under Sec. 547 Rev. Stat. Costs and fees provided for in Sec. 719 Rev. Stat., are only compensation authorized in lunacy inquests. Probate judges' com- pensation for conviction in truancy cases is not fixed by Sec. 6470 Rev. Stat. Millard v. Conrade. 445
A sheriff is not entitled to pound- age on sheriff's sale under mortgage foreclosure proceedings where the property is bid in by plaintiff for less than the amount of her mortgage lien and where the purchase price is paid for in such lien in part. Childs V. Perry. 543
Action by administrator either in common pleas or probate court to sell real estate is a civil action, of which, upon appeal, the common pleas has original jurisdiction. Tidd v. Bloch. 113
The probate court has exclusive original jurisdiction, by virtue of Sec. 524 Rev. Stat., to determine what credits shall be allowed or disallowed to the administrator, and what unse- cured claims shall be paid by him. Ib.
A state court has jurisdiction to construe Sec. 5880 Rev. Stat. in action to recover balance of purchase price of vessel, having proceeds thereof and
all parties before it to direct distribu- tion thereof. Shailer v. Hanion. 120
Federal courts have exclusive juris- diction of actions to enforce liens of water crafts under Sec. 5880 Rev. Stat. State courts have no jurisdiction there- of.
Jurisdiction of probate court is not interferred with by garnisheeing legacy in hands of administator. Orlopp v. 127 Schueller. Common pleas cannot order adminis- trator to pay money into court in garn- Ib. ishee proceedings, when.
Pennsylvania statute will be en- forced in Ohio for negligently caus- ing death of citizen of that state. Schell v. Iron Sheet & Tube Co. 209
Circuit court cannot reverse judg- ment discharging accused in criminal case. State v. Hance. 273
President of council as acting mayor of village cannot try misdemeanor
Common pleas court not authorized by Sec. 6733 Rev. Stat. to discharge attachment; limitation of jurisdiction in such case. Foote v. Commercial Co.
Right to remove cause to federal court properly a question of jurisdic- tion. Jurisdiction in equity to quiet title. Monnett v. Railway.
Application for the widow's year's allowance must be to the probate court, which has original and exclusive jur- isdiction; such application cannot be made to the circuit court. Moore v. Idlor. 502
Court will correct errors in punc- tuation in statute. An ordinance ap- plying to territory within and with- out the corporate limits is only in- operative as to outside territory. Chit- tenden v. Columbus. 531
An adjournment, after the evidence is all in, of a homicide case for eigh- teen days, separation of jury and hear- ing of arguments and sentence by an- other judge, is irregularity, entitling prisoner to reversal and new trial. Mason v. State.
Judicial power is not conferred upon a city auditor and chief of police by an ordinance which provides that if the former is not satisfied with the descrip- tion of vehicles furnished by an ap- plicant for a vehicle license, the matter shall be referred to the latter for ex- amination and report. Such provision does not take away the right to test the matter in the courts. Sterling v. Bowling Green. 581
In a proceeding by a council to ap- propriate for the extension of a street. it is necessary to pass the preliminary
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