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pense upon property owners. The determination to make the improvement or repairs and the determina. tion to charge owners with the cost, must both precede the actual making of the improvement.
Ib. After an improvement has been made, without a determination to charge its cost upon abutting lots and without legislation to the end, abutting owners, after the attaching of a mortgage lien, cannot, by contract or by acts creating estoppel, charge the lots with an assessment lien which will have priority over the mortgage.
Ib. Persons dealing with, or lending money upon real estate must be deemed to do so with a knowledge of the paramount r'ght of taxation and assessment, and. when such right is exercised according to law, taxes and assessments so levied be. come a lien prior to any and all oth. ers.
Ib. Property owners by signing a petition for a street improvement, and participating in legislation, whereby the corporation, in paying the expense of the improvement, parted with its money raised by an issue of municipal bonds and assessed the same per front foot on abuting lots, are estopped from denying the validity of the assessment.
Ib. ASSIGNMENTS FOR CREDITORS,
Where, by error of valuation of a certain piece of property, the municipal authorities make the number of installments in which a sewer assessment is to be paid, less than they should be, whereby the yearly installments exceed one-tenth of the value of the property (the limitation by sec. 2272, Rev. Stat.), the invalidity of such installments beyond one-tenth is only as to the yearly collection and not as to the assessment itself. Cincinnati V. Kennedy.
64 The facts above stated are within the provisions of curative sec. 2289, Rev. Stat., relating to technical irregularities, and sec. 2327, Rev. Stat., requiring liberal construction.
And, where the cost of the improvement is reasonable, and the assessment is otherwise valid, the order should be that the assessment be paid in installments in conformity with the statute.
Ib. Such an extension of the time of payment does not render the assessment void for want of uniformity, where the assessment was levied upon all property by the same method and the yearly limitation is applied to all property.
Ib. The theory upon which the governmental right of assessment rests, is that there is supposed to be as much added to the value of the property by the special benefit of the improvement as the assessment levied and hence the security of the lienholder remains the same. A petition for an improvement is not, therefore, an interference with vested rights of existing lienholders. Donohue v. Brotherton.
47 A city council cannot legally or. der the improvement or repair of a street, and, after the improvement or repairs are made, assess its ex.
* 47 S. & C. P. Vol. 10.
The last clause of sec. 5521, Rev. Stat., read in connect'on with sec. 5523, and subdivision 3 of sec. 5048, Rev. Stat., contains provisions relative to attachment against non-residents, from which an intention to constitute non-residence a ground for attachment may and must reasonably be inferred. Gorham V. Steinau.
131 In an attachment case under sec. 5551, Rev. Stat., where the defendant is served by publication and the garnishee answers that he does not owe, although the existence of a res does not affirmatively appear, if such disclosure is unsatisfactory to the plaintiff, the latter is entitled upon default to a judgment for the entire amount due. in order that he may subsequently pursue such garnishee in an action under sec. 5553, Rev. Stat., which actions,
Attachment - Bills and Notes.
though separate in form, are on the doctrine of relation, to be treated as one proceeding. Caldwell Co. v. Lumber Co.
412 The appearance of the defendant for the sole purpose of objecting to the jurisdiction of his person is not a voluntary appearance;
but any step, such as an objection to the jurisdiction of the subject-matter, or the authority of the court to enter the judgment (which are not well founded) or an objection to the finding of a res, is a waiver of the jurisdiction of the person, whether intended or not, and constitutes a vol. untary appearance.
The doctrine of uberrima fides relates to an attorney, or a person in a fiduciary capacity, who gains some personal advantage at the expense of his client. Therefore, where it appears that a scheme of settlement was arranged between the debtor and his wife, represented by their attorney, and numerous cred. itors represented by the same attorney, all consented that such attorney should serve as trustce, and he acted in good faith, the doctrine does not apply. Case v. Hewitt.
365 An attorney for procuring another attorney to antedate and cause to be executed and recorded an invalid deed suspended from practice for three years, and the attorney performing such acts through misappre. hension of the circumstances censured. Chambers & Boone, In re. 702
Compensation for illegal serv. ices rendered on various Sundays at the public resort of the client, by advice and presence to assist the client to "keep onen" his saloon cannot be recovered. for the reason that such services were part of a violation of law and for the reason that thev
rendered on Sunday. Von Martels v. Schmeising. 709
Legal advice given as to duties, rights and liabilities under the Sun. day law may be recovered for. Ib.
An attorney cannot by having himself appointed guardian litem. secure compensation for his services, to be taxed as aforesaid, because such services are not those ordinarily incident to the office of guardian ad litem and cannot, therefore be presumed to be within con
templation of the statute. Worther v. Ruehrwein.
116 Although the filing of a petition for an accounting and to wind up the affairs of a partnership, or syndi. cate, all interests being antagonistic, inures to the general benefit, and, if there was a fund in court, compensation for filing the same might be allowed, the court has no authority to require judgments against the partners to include a pro rata share of plaintiff's counsel fees or to ren. der an additional judgment for the attorney fee of any one party, acting on his own behalf, merely on the ground that he initiated the proceed. ings. Wehrman v. McFarland. 320
In actions of tort involving malice, fraud, insult or oppression, the jury may, in estimating compensatory damages, allow reasonable coun. sel fee of the plaintiff, even when there are mitigating circumstances not amounting to a justification. Kahn v. Cincinnati Times-Star. 599
See also APPEARANCE. BANKS AND BANKING
Where collateral is left with a bank as security for payment of a note, the bank cannot, upon renew. ing the note, credit the collateral against both the new note and other indebtedness of the maker to it, without the maker's knowledge or consent that the collateral is to be used as security for the other indebtedness; nor can the bank avail itselt of the doctrine of set-off. Meyers Io re.
121 Where collateral security is left with a bank for a particular purpose, the right of the bank to subject it is limited to the purpose for which it was received and the right of the bank to a lien for its general balance is excluded.
Ib. BILLS AND NOTES
Where advancements are made, part of which are covered by a note, and payments are made on account, these payments should first be applied to the interest upon the entire indebtedness, and the balance over should be credited on the note. Smith v. Smith,
439 A note executed by husband and wife, the proceeds of which were largely used in perfecting the wife's musical education and whereby she was subsequently enabled to earn large sums of money, is good against the wife.
Bonds - Conspiracy.
A bond taken in a criminal case and approved by an officer without authority of law, does not constitute a common law obligation. Cincinpati v. Board.
104 A petition to recover on a bond taken from such defendant by the mayor, must aver that such bond was taken pursuant to an order of the common pleas court or a judge thereof.
Ib. If the clerk of the court, under a misapprehension of the effect of a bond tendered and accepted, declines to issue an execution, or recalls one issued, the judgment creditor has his remedy, not to appeal to the court, but also under sec. 4965, Rev. Stat., providing that the clerk "in the per: formance of his duties shall be under the direction of his court." Leeds v. Peaslee.
567 A hond for stay of execution is the property of the defendant in er. ror, and it is his right and duty to exmaine it to see if it is sufficient under the statute to stay the execution. A clerk of the court is under uo duty to either prepare or pass upon the legal effect of the bond; and hence is not liable for damages should the bond prove insufficient to stay the execution.
Ib. Sureties on a bond of a member of the police force, under sec. 1882, Rev. Stat., can be subjected to liability only upon judgment against such officer. They cannot, therefore, he joined in the original action against the officer for damages. Reidy v. Deitsch.
Whether, a structure eighteen feet high, extending over a street and across a river, with draw bridges in it, is a bridge, within the meaning of sec. 3365, Rev. Stat.. requiring railway companies to block guard rails except upon bridges, or a trestle, is a question for the jury, to be determined in view of the nature and object of the structure, the sit. uation of the place, the use to which it was put, the surroundings and all the circumstances. Johns V. Rail. way Co.
BUILDING AND LOAN ASSOCIATIONS
A director of a building association, who receives deposits from members who are employees under him, without authority directly or iridirectly from the company, acts as agent of the members and not as agent of the association. Hasselmeyer v. Loan & Building Co. 570
CHARGE TO JURY
The statutory prohibition (sec.. 5190) against any qualification, mod. ification or explanation of a written charge to a jury applies to charges given before argument as well as to charges given after argument. Cin. cinnati v. Lochner.
596 The law will presume injury where such prohibition is violated.
Ib. To make a failure to give written instructions to the jury before argument, available on error,it must appear affirmatively that they were requested, and that exceptions were taken to the refusal to give them. Ohio Mut. Life Assn. v. Draddy. 591
CLERK OF COURTS
Under sec. 1264, Rev. Stat., all the clerk has power to do is to se lect or procure such books and supplies as he may need, when, in the discretion of the commissioners as to the amount paid and whether the supplies are necessary, the bill may be allowed upon the clerk's certifi. cate. There is no binding obligation on the county until the bill has been allowed by the county commissioners. Lyle Printing Co. v. Highland Co.
89 If such bill is allowed by the county commissioners, and it then becomes necessary to appropriate money for the payment thereof, the provisions of sec. 2834-B, Rev. Stat., requiring the auditor's certificate that the money is in the treasury to the credit of the fund from which it is to be drawn, or has been levied and placed on the duplicate and is in process of collection, and not appropriated, must be complied with.
Consulutional Law - Contacts,
The proper practice, to raise the question as to whether a statute un. der which an indictment is found, is in conflict with federal or state constitutions and whether the facts al. leged constitute an offense against the laws of the state, is by demurrer. State v. Bateman.
68 There is necessarily implied in the right of personal liberty and the right to contract, the right of the employer, when the employment is at will, to discharge and to refuse to longer employ a member of a labor union; and also the right of a member of a labor union to quit the serv. ice of his employer; and neither is under obligation to satisfy the other that the reason for his action is a good one.
Ib. Section 1, art. 1 of the constitution of Ohio, declaring that every person has an inalienable right to liberty and to acquire, possess and protect property, guarantees to every person the right to make and enforce all proper contracts and to employ, in carrying on his business, such persons and such lawful means as he may choose, free from all restraints except such as are necessary for the common welfare.
Ib. The act of April 14, 1892, secs. 4364-68, Rev. Stat., providing that it "shall be unlawful for any individual, firm, agent, officer or employee of any company or corporation, to prevent employees from forming. joining and belonging to any lawful labor organization, and any sucl: individual, member, agent, officer or employee that coerces or atteinpts to coerce employees, by discharging or threatening to discharge from their employ, or the employ of any örm, company or corporation, be. cause of their connection with such lawful labor organization, shall be guilty of misdemeanor," etc., is in conflict with sec. 1, art. 1, of the constitution of Ohio.
Ib. The act in question cannot be sustained as a valid exercise of the police power of the state, inasmuch as the subject-matter in no way affects the public welfare, health, safety or morals.
Ib. To constitute an “attempt to coerce,” the means employed must have some adaptation to accomplish the intended result. A discharge is not such an act as is calculated to coerce and does not constitute an“at
tempt to coerce" within the meaning of the act referred to.
Ib. The acts which the statute in question declares to be unlawful and punishable, are the discharge by an employer of his employee, or the threat to disacharge him because of his connection with a labor organization. The words "coerce" and "attempt to coerce" are the statutory names of the two separate of. fenses.
Ib. It is not within the power of the state legislature to superadd any. thing to the qualifications of mem. bers of the congress of the United States. State v. Russell.
255 The provisions of the act of April 8, 1896, 92 0. L., 123, entitled, “An act to prevent corrupt practices at election," in so far as it relates to the office of representative in the congress of the United States, is unconstitutional.
Ib. The act of April 8, 1896, 92 O. L., 123, entitled "an act to prevent corrupt practices at election" is valid in so far as it applies to officers elective under the laws and constitution of the state.
Ib. Under the rule that a law may be valid in part and invalid in part, if such parts may be separated, a res. olution of a city council directing a committee to investigate charges of corruption in awarding a certain contract is valid to the extent of directing the investigation, although, as an authorization for the expendi. ture of money, it may be invalid without the prerequisites required by law for such resolutions. Steuer v. McConnell.
573 See also POLICE COURTS; Ix. SOLVEXCY; WITNESSES.
While a contract in contravention of good morals, or of public pol. icy, is absolutely void, inter partes, so as to prevent the recovery back of any consideration paid thereunder, quaere, whether the vice of the contract extends so far as to taint the right of a bona fide creditor to subject such consideration to the payment of his debt. Barbour v. Boyce.
428 A corrugating iron company by contracting to furnish such material for a building becomes liable for damages, occasioned by the blowing off of a roof, resulting from furnish
ing unsuitable and insufficient cleats and rivets. Block-Pollak Iron Co. v. Iron Co.
51 A corrugating iron company having contracted to furnish material for a building on a certain date is liable in damages for delay; and the measure of such damages includes the wages of men employed by the contractor and whose enforced idleness was occasioned by the delay in furnishing material. Ib.
The rule of damages for the violation of a contract to labor for a year, is the difference, between the contract price and the market value of the services of the employee at the time of quitting his employment. Foredyce v. Easthope.
610 The contract of a minor is voidable, notwithstanding it is in writing, and he may at any time before reaching his majority, or up to, or even at that time, disaffirm his contract and set it aside; but the burden is upon him to prove his disaffirmance thereof.
Ib. A written contract for services for one year exists where defendant in a letter to and received by plain.. tiff proposed to hire the latter to labor for him for a year at $180.00, and the plaintiff by letter accepted the proposal without condition or reserve.
Ib. Under a contract to work on a farm for a year, voluntarily laborisg in excess of a day's labor, without compulsion on the part of the employer, will not justify
employee in quitting his employment during the year.
Ib. Specific performance of con tracts relating to personalty will not ordinarily be decreed. Exceptions to this rule have been made when the value of the chattel withheld was peculiar to itself, or where damages in money could be ascertained, or where the detention could not be adequately redressed by damages. Glesenkamp v. Radel.
559 Where vendee of personalty, who had disposed of same, so that it could not be replevined, agreed to sign notes and give a chattel mortgage, and refuses to do so, this constitutes a breach of his contract, for which a suit for damages will lie; and the measure of damages would be the price of the property sold. There is, therefore, in such case, where it does not appear that vendee
is insolvent, a full, complete and adequate remedy at law.
Ib. The intent of a party to the contract need not necessarily be determined by his own testimony, but may be determined from all the evidence, direct and circumstantial. Goodhart v. Rastert.
40 Where a contract is made for the manufacture of a specified article for which there is no market, in the ordinary legal sense of that term, and the manufacturer, after beginning work thereon, is notified by the customer that he will not carry out the terms of the contract, it is the duty of the manufacturer to go no further in the manufacture of the article, but to accept the breach and recover such damages as he has sustained. Grand Rapids Furniture Co. v. Robinson.
93 Under a contract between the owner and manager of a theatrical company and the proprietor of theatre, whereby the former agreed to play at the theatre for the week beginning on a certain date and the latter agreed to furnish the theatre, well lighted, etc., without negative covenants on the part of either, the owner and manager on the theatrical company, upon refusal of the pro prietor of the theatre to comply with his agreement, is not entitled to an injunction restraining the proprie tor of the theatre from permitting any other performance to be given during the week in question. Hill V. Anderson.
432 An agreement whereby the entire season's cut of flowers is to be consigned and that consignee is to retain twenty-five per cent. of the net proceeds on account, for bulbs, is quite different from an agreement whereby the entire cut of flowers is to be consigned and that consignee shall retain the entire net proceeds on account, and furnish money to meet consignor's payroll, etc. Therefore, the continuation of transactions under the first contract after its termination would not raise a presumption of the subsequent contract. McCullough v. Mitchell. 704
The fact that supplies were furnished and money advanced, raises a presumption of indebtedness, but no presumption of any lien, on, or interest in, any property.
Ib. Where a contract based upon an illegal transaction has been executed the court will not rescind it nor give