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Contracts.

CONTRACTS-
1. Action against an abstracter-For negligence-Does not sound

in tort-Must be on contract-Abstracter liable only to em-
ployer-Privity of contract-An action against an abstracter to
recover damages for negligence in making or certifying an ab-
stract of title does not sound in tort, but must be founded on
contract; and the general rule is that an abstracter can be
held liable for such negligence only to the person who em-

ployed him. Thomas v. Trust Co., 432.
2. Usage cannot create contract--Usage or custom cannot create

a contract or liability where none otherwise exists. A usage
or custom can only be used to explain, or aid in the interpre-
tation of, a contract or liability existing independently of it.
It cannot be permitted to contradict or vary the express terms

of a contract, nor to vary the legal import thereof. Ib.
3. Doctrine of caveat emptor-A custom which would relieve a

purchaser from the obligations imposed upon him by the doc-
trine of caveat emptor, which requires a vendee to protect him-
self by express covenants and investigation of the title which

he is to acquire, is contrary to law. Ib.
When a municipal corporation, by ordinance, grants to a natural

gas company the right to lay pipes and furnish gas to consum-
ers upon conditions which are accepted in writing, such action
constitutes a contract-Where a contract is silent as to the
duration of a franchise, it is indeterminate—The company may
voluntarily forfeit its rights and withdraw, and the munici-
pality cannot prevent the company from removing its property.

See. Gas Co. v. City, 33.
The council of a municipality may appropriate money and author-

ize the directors of public safety to enter into contracts for
an authorized purpose, and the contract made does not have
to be approved by council—The provisions of Section 1536-
205, Revised Statutes, that no contract shall be entered into, and
no ordinance shall be passed by council of a municipality, in-
volving expenditure of money, unless the auditor shall first
certify that money is in the treasury, does not apply to an
ordinance appropriating money obtained by a sale of bonds,

when. See City v. Dobson, 66.
Where a board of public service advertises for and receives bids

for street improvements, and adopts a resolution finding a
bidder the lowest and best, then rescinds the resolution and or-
ders another advertisement, there is no abuse of discretion-
Mandamus will not lie to compel the board of public service
to enter into a written contract with such bidder-In such
Contracts-Control of Highways.

CONTRACTS-Continued.

case the resolution does not constitute a contract-Section 1536-

679, Revised Statutes construed. See State v. Board, 218.
The liability of a municipality to pay for the publication of ordi-

nances, resolutions, etc., must rest on express contract-Where
statute prescribes no person to execute such contract, it is con-
sistent with Section 1536-653, Revised Statutes, for council to
authorize the clerk thereof, to execute such contract. See

McCormick v. City, 246.
An action to recover for breach of written contract, in which

default judgment is rendered by a justice of the peace, and
which is appealed to common pleas court and determined, can-
not under Section 5226, Revised Statutes, be appealed to the

circuit court for a trial de novo. See Winters v. Ruff, 257.
A surety who signs on the face of a note is, by force of Section

3178a, Revised Statutes, primarily liable-By force of rule
expressio unius est exclusio alterius, sureties who are primarily
liable cannot be relieved otherwise than in manner provided in
Section 3175j, Revised Statutes—The rule of the common law
that agreement which varies the contract without consent of
surety, releases the latter, is abrogated by Section 3175j, Revised
Statutes-Sections 31750 and 3175p, Revised Statutes, do not
apply to contract for an extension of time of payment. See

Richards v. Bank Co., 348.
Where a passenger of a carrier which is the owner of tracks, is

injured by the negligence of another carrier which is admitted
to joint use of such tracks, the owning company is liable-In
such case the liability of owning carrier for breach of con-
tract of carriage, and the liability of the other for negligence
may be enforced in same action. See Light Co. v. Montgom-

ery, 426.

CONTRIBUTORY NEGLIGENCE-
One who departs from a known safe way and goes across a street

and upon the abutting land and is injured, is guilty of contrib-
utory negligence. See Village v. Gilbow, 263.

CONTROL OF HIGHWAYS-
Section 4903, Revised Statutes, being part of a statute provid-

ing for management and control of highways, is void because
repugnant to Section 26, Article II of constitution. (Hiron v.
Burson, 54 Ohio St., 470, and The State ex rel. v. Davis, 55
Ohio St., 15, approved and followed.) See Thorniley v. State,
108.

Conveyance by Deed-Corporation.

CONVEYANCE BY DEED-
The consideration clause in a deed is conclusive for the pur-

pose of giving effect to the operative words, but for every other
purpose it is open to explanation by parol proof, and it is only
prima facie evidence of the consideration. See Shehy ý. Curk

ningham, 289.
Where, in an action for compensation for land wrongfully taken

by a municipality, it appears that the owners tendered a deed
and offered to allow, upon judgment for the value of the land,
an order that they should convey title, the case is one to
recover value of land, and not for condemnation. See State v.
Harrison, 98.

COPY OF ORDER OF ATTACHMENT-
The provisions of Section 5528, Revised Statutes, which require

the officer who levies on real property to leave with the occu-
pant thereof, or if there is no occupant thereof, tu leave in a
conspicuous place thereon, a copy of the order of attachment are
mandatory. See Green v. Coit, 280.

CORNER LOTS-
Under the municipal code adopted October 22, 1902 (96 O. L., 20),

municipalities are authorized to assess the costs and expenses
of street improvements upon an entire lengthwise frontage of a
lot abutting upon the improvement. See Village v. Stoecklein,
332.

CORPORATION
Where a corporation is formed for the purpose of transporting

natural gas to certain towns and cities, etc., it is not a char-
ter obligation of such corporation to furnish gas to consumers
in all of such cities and towns—When a municipality, by ordi-
nance, grants to a gas company the right to lay pipes and fur-
nish gas to consumers, upon terms which are accepted in
writing, such action constitutes a contract-Where a contract
is silent as to the duration of a franchise, it is indeterminate-
The company may forfeit its rights and withdraw and the
municipality cannot prevent the removal of property-So long
as the corporation exercises its franchise it may be compelled

to do so without discrimination. See Gas Co. v. City, 33.
A justice of the peace may acquire jurisdiction in attachment

against a foreign railroad corporation by levy, and publication
of notice as provided in Section 6496, Revised Statutes, Sec-
tion 6478 not applying to such proceedings. See Railway Co. v.
Baum, 386.

Corroborative Evidence-Counsel.

CORROBORATIVE EVIDENCE-
On a trial under a prosecution for carnal abuse of a female under

sixteen with her consent, evidence of similar prior acts is ad-
missible to show relation of parties, and to corroborate testi-
mony as to particular act charged in indictment. See Boyd v.
State, 239.

COSTS OF STREET IMPROVEMENT-
Under the municipal code adopted October 22, 1902 (96 O. L., 20),

municipalities are authorized to assess the costs and expenses
of street improvements upon an entire lengthwise frontage of a
lot abutting upon the improvement. See Village v. Stoecklein,
332.

COUNCIL-
The council of a municipal corporation may, by ordinance, appro-

priate money and authorize the directors of public safety to
enter into contracts for an authorized purpose, and the par-
ticular contract made if within the appropriation and author-
ity, does not have to be approved by council—The provisions
of Section 1536-205, Revised Statutes, that no ordinance for
the expenditure of money shall be passed by council of a
municipality, unless the auditor shall first certify that the money
required is in the treasury, does not apply to an ordinance appro-
priating the money obtained by council, from a sale of bonds
made by it, to the purpose for which the bonds were sold. See

City v. Dobson, 66.
Where the statute prescribes no person to execute a contract

for the publication of legal notices, in behalf of a municipal
corporation, it is consistent with Section 1536-653, Revised
Statutes, for the council to authorize the clerk thereof to exe-
cute such contract. See McCormick v. City, 246.

COUNSEL-
When a bill of exceptions is certified, allowed and signed by the

trial judge, the presumption is that notice was given to opposite

counsel, although the record is silent. See State v. Wirick, 343.
In an action for ejectment from a street car, it is error for

the court to instruct the jury that only compensatory dam-
ages, including as a part thereof a sum for services of counsel
for plaintiff, could be awarded, when. See Power Co. v. Math-

eny, 204.

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County Commissioners—Court Procedure.

COUNTY COMMISSIONERS-I
Although repeals by implication are not favored, earlier legislation

must give way when necessary to carry out the later expression
of the legislative will, and that part of Section 4903, Revised
Statutes, which provides for compensation to county commis-
sioners, as directors of highways, is abrogated by act of April

21, 1904 (97 0. L., 254). See Thorniley v. State, 108.
Section 1166, Revised Statutes, does not require the county com-

missioners to cause plans and specifications to be made for all

road improvements. See Hibbard v. Biddle, 181.
The fees of the sheriff of a county to which a criminal prosecution

has been removed for trial, for services rendered in such case,
should be allowed and paid by the commissioners of the county
in which the indictment was found. See Thurlow v. Board,
447.

COUNTY OPTION-
The resident of a “dry” county may, under the local option law

(99 0. L., 35), himself or by an agent, purchase intoxicating
liquor in "wet” county, and bring it into the county in which
he lives, to be used therein by him as a beverage. See State
v. Lynch, 336, and State v. Wirick, 343.

COURT PROCEDURE-
In an action for ejectment from a street car, it is error for

the court to instruct the jury to disregard evidence that passen-
ger left the car on account of plaintiff and complained to the
conductor, when—It is error for the court to charge the jury
that if the ejectment was not justified, but was without malice
or insult, only compensatory damages could be awarded. See

Power Co. v. Matheny, 204.
An action to recover for breach of written contract, in which

default judgment is rendered by a justice of the peace, and
which is appealed to common pleas court and determined, can-
not under Section 5226, Revised Statutes, be appealed to the

circuit rourt for a trial de novo. See Winters v. Ruff, 257.
In an action to recover for personal injuries, a new trial may

be granted on the ground of inadequacy of damages, when-
On error to the circuit court to overruling of motion for new
trial on ground of inadequacy of damages, the circuit court may
reverse judgment of court of common pleas on the ground that
the verdict is not sustained by sufficient evidence. See Light Co.
v. Mason, 463.

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