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 1535- 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.
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 3175;, 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. (Hixon 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.
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 v. Cun- 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, to leave in a conspicuous place thereon, a copy of the order of attachment are mandatory. See Green v. Coit, 280.
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.
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, eyidence 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.
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.
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.
County Commissioners-Court Procedure.
COUNTY COMMISSIONERS— '
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 O. 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.
The resident of a "dry" county may, under the local option law (99 O. L., 35), himself or by an agent, purchase intoxicating liquor in a "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.
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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