Highland Common Pleas.

commissioners to allow and pay out of the county treasury bills growing out of contracts entered into by the several county officers for supplies, stationery, etc.

The bills for supplies in the several cases were procured by the several respective county officers for their use, and it is admitted that they are necessary for the proper conduct of their offices; but it is contended that these officers had no right to incur these bills; that it is the duty of the county commissioners to make all contracts for the purchase of supplies for each of the different offices, and that it was necessary before such contract is binding, and before the commissioners are authorized to direct the auditor to draw his warrant upon the county treasurer, that the auditor shall have certified under sec. 2834-B, Rev. Stat., that the money required for the payment of such obligation, arising from the contract, is in the treasury to the credit of the fund upon which it is to be drawn, or that the tax has been levied and placed on the duplicate, and is in process of collection, and not appropriated for any other purpose.

As to the county clerk's bill, the sec. 1264, Rev. Stat., has given the clerk larger authority in the purchase of supplies than any other county officer, and a disposition of the power of the clerk under that section will probably furnish a rule for an easy solution in respect to the other officers.

It is provided in that section that the county commissioners shall furnish to the clerk all blank books, stationery, etc., which articles the clerk may procure and shall be allowed for upon his certificate.

In Ohio v. McConnell, 28 Ohio St., 589, the court had there under consideration the construction of this statute as it then existed, and it declared that the clerk was not authorized by this statute to fix conclusively the amounts which shall be paid by the county for blanks or other things necessary to the prompt discharge of the duties of the officer. The statute then under consideration contained the words, "and paid for," immediately following the word "allowed," and that part of the section then read "and shall be allowed and paid for upon his certificate." Since that decision the words "and paid for," have been dropped from the statute apparently in conformity to that decision. And it would seem clear those words being dropped, and from the language used by the Supreme Court that now the clerk has less power, and that in reality all the clerk has power to do under this section is to select such books and supplies as he may need, that is procure them, but the county commissioners shall furnish; and that after his selection the bill shall be allowed for upon his certificate in the dicretion of the board of county commissioners as to the amount to be paid therefor, and also, in the language of the statute, as to whether the different articles are necessary to the prompt discharge of his duty. In other words there is no binding obligation when the clerk procures these supplies until the bill is allowed by the commissioners, and when so allowed it becomes a

Printing Co. v. Highland Co.

binding contract on the part of the county, provided sec. 2834-B, Rev. Stat., has been complied with; and it would seem to the court plain, that if the bill shall be allowed by the county commissioners and it then becomes necessary to appropriate the money for the payment of such supplies under the contract thus made binding, that that section should be complied with before a recovery can be had. The provisions of the section are sweeping, and the only exception is contained in sec. 894, Rev. Stat., where it is provided that no bill against the county shall be paid otherwise than upon the allowance of the county commissioners upon the warrant of the county auditor, except where the amount is fixed by law, or is authorized to be fixed by some other person or tribunal. And the Supreme Court have said the clerk is not authorized to fix the amount due for supplies he may procure; and therefore sec. 2834-B, Rev. Stat., would apply to the clerk as well as to all other county officers.

The circuit court in State ex rel. Fanning v. Cuyahoga Co. (Com'rs) has decided that the provisions of that section are mandatory.

Section 2834-B, Rev. Stat., as well as the section on the same subject with reference to municipalities, have each and both the object of rendering more effective the economical administration of the affairs of the respective officers, and the prevention of improvident contracts being entered into, and the statute made applicable to Cuyahoga county emphasizes this principle by requiring that the county officers on the first day of March of each year shall make out a list of office supplies and furnish the same to the county commissioners who will then advertise for bids for such material.

An entry will be furnished in conformity to this opinion.

H. A. Pavey, for plaintiff.

Oliver N. Sams, prosecuting attorney, for deendfant.

SUMMONS-ERROR-APPEARANCE.

[Superior Court of Cincinnati, General Term, March, 1900.]

Smith, Dempsey, and Jelke, JJ.

CARRIE E. Cowie, Exrx., v. Meyers et al., Trustees, etc.

1. SECTION 4987. REV. STAT., APPLICABLE TO PROCEEDINGS IN ERROR. Sections 4987, Rev. Stat., providing that an action shall be deemed commenced, as to each defendant, at the date of the summons which is served on him or on a co-defendant, who is united in interest with him, is applicable, by analogy, to petitions in error.

2. SERVICE UPON one of Partnership Defendants in Error.

The members of the Mt. Auburn & Avondale Land Syndicate, an unincorporated land syndicate, are members of a partnership, and therefore, since the

Superior Court of Cincinnati.

members of a partnership are united in interest, the service of summons in error upon one of such members, saves the proceeding in error as to the other members not served, but the other partners should be served before the case is heard.

3. WAIVER OF SUMMONS AND ENTRY OF APPEARANCE BY ATTORNEY.

A waiver of summons and error, and entry of appearance by an attorney of one of the parties, is an entry and appearance of such party.

SMITH, J.

The plaintiff in error was plaintiff in the court below and brought an action against the trustees of an unincorporated land syndicate, of which Charles S. Cowie was a member. The defendants, George F. Myers, Robert Allison, and A. E. Burkhardt, were the trustees of the Mt. Auburn & Avondale Syndicate and the persons owning shares in the same. The petition alleged mismanagement by the trustees and illegal preferences by them in their dealings with certain of the members. The prayer for relief was for a dissolution of the company, an accounting by the trustees, the appointment of a receiver and master, the setting aside of the illegal preferences and for such further relief as the equity of the case demanded. The trustees and the members who were charged with having been given illegal preferences filed answers denying the material allegations of the petition. A large number of the members were in default for answer, and a number were not served because they were non-residents and without the jurisdiction of the court.

The case coming on to be heard upon the evidence the court dismissed the petition, whereupon the plaintiff filed a petition in error in this court.

A large number of the defendants, including the trustees, entered their appearance through counsel, but other defendants who are shareholders in the company, and who were in default for answer below, have not entered their appearance and no service in error has been had upon them.

The defendants in error who have entered their appearance have filed motions to dismiss the proceedings in error, for the reason that those defendants who have not entered their appearance and have not been served with summons are necessary parties to the proceeding in error, and that it is now too late to issue a new summons.

It is admitted by counsel for the motion that it is not necessary that the non-resident members of the syndicate should be brought into the case below, and therefore need not be brought into it in this court. Homer v. Abbe, 16 Gray, 543. The motion, therefore, is based upon the failure to make service upon all of those members of the syndicate who are within the jurisdiction of the court, and the question presented is, "whether a service upon part of the defendants saves the case as to all, or whether, on the other hand, the non-service upon part operates a bar as to all."

In Buckingham v. Commercial Bank, 21 Ohio St., 131, it was held hat the provisions of sec. 20 of the code of civil procedure, now sec.

Cowie v. Meyers.

4987, Rev. Stat., "that an action shall be deemed commenced, as to each defendant, at the date of the summons which is served on him or on a co-defendant who is a joint contractor, or otherwise united in interest with him, is applicable, by analogy, to petitions in error;" and it was therefore held in that case that the service of summons in error upon one defendant who was united in interest prevented the running of the statute of limitations as to all, and that service of summons could be had against those not served, even though such service as to them was not had until the time fixed by the statute of limitations had expired. This has been frequently followed by the Supreme Court and the principle it declares is now well settled in this state. Sidener v. Hawes, 37 Ohio St., 532, 544.

It was held in the special term of this court that the members of this syndicate are members of a partnership, and it is conceded by counsel for defendants that such is the relation between the members. ner v. Meyers, 4 Dec., 404.

Hor

We are of the opinion that the members of a partnership are united in interest, and therefore, that the service of summons in error upon one of the partners has saved the proceeding in error as to the others not served and that service of summons may be and should be had before the case is heard in this court; but that the motion to dismiss the proceedings in error should be overruled.

We are also of the opinion that by the waiver of summons and entry of appearance by Mr. Jonas B. Frenkel as attorney, Mrs. Fechheimer entered her appearance in this court.

John R. Sayler, Adam A. Kramer, Henry B. McClure and Jonas B. Frenkel, for the motion.

M. L. Buchwalter and M. F. Galvin, contra.

CONTRACTS-DAMAGES-VERDICTS.

[Hamilton Common Pleas, April, 1900.]

GRAND RAPIDS SCHOOL FURNITURE Co. v. ROBINSON.

1. BREACH OF CONTRACT FOR THE MANUFACTURE OF A SPECIFIED ARTICLE. 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.

2. CURING DEFECT IN VERDICT.

Admissions made by pleadings, proof taken by deposition, and the admission of the execution of the contract, are sufficient to cure a defect in the verdict caused by the failure of the jury to find that plaintiff was a corporation.

HOLLISTER, J.

1. The principle underlying the cases cited by counsel for defendant has no application to contracts calling for the manufacture of a

Hamilton Common Pleas.

specified article of a peculiar kind for which there is no market in the ordinary legal sense of that term, and when the time of performance by the manufacturer had arrived and the performance actually entered upon by him at the time the party for whom the article was being manufactured notified the manufacturer of his intention not to carry out the terms of its contract obligatory upon him.

Under these circumstances it is the duty of the manufacturer to go no further in making the article. It is his duty to accept the breach and proceed to recover such damages as he has sustained. To continue to manufacture and deliver the article under the terms of the contract and recover the contract price would result in no advantage to him but would increase the loss to the purchaser. The case is ruled by the principle found in Clark v. Marsiglia, 1 Denio, 317, illustrated by many cases, among which may be noticed Gibbons v. Bente, 51 Minn., 499; Hosmer v. Wilson, 7 Mich., 294; City of Nebraska v. Coke Co., 9 Neb., 339; Derby v. Johnson, 21 Vt., 21; Butler v. Butler, 77 N. Y., 472; Collins v. Delaporte, 115 Mass., 159: McPherson, 40 Ill., 371; Cort v. Railway Co., 17 Q. B., 127.

It is true that the plaintiff in express words declined to accept the breach; but notwithstanding what it said, it did in fact accept it, and stopped the work there before entered upon. In the meantime the defendant did not retract his repudiation of the contract, nor was his position at all changed by plaintiff's statement that it would not accept the preferred breach.

The difference between such a case as this and those in which the seller must either accept or reject a tendered breach, sue at once if he accepts, or perform under the terms of the contract, if he elects to keep the contract, alive both for his own benefit and the purchaser's, is expressly referred to in Kadish v. Young, 108 Ill., 170, a case much relied on by the defendant, and the distinction is clearly pointed out in Hinckley v. Pittsburg Steel Co., 121 U. S., 264, at page 274, and in the opinion on the rehearing of Davis v. Bronson, 2 N. D., 300.

The motion of defendant for a judgment is overruled.

2. The material facts upon which to base a judgment for the plaintiff were found by the jury in their special findings of fact.

The admissions made in the pleadings, the proof taken by deposition prior to the amendment of the answer, the admission of the execution of the contract, are sufficient to cure any defect in the verdict caused by the failure of the jury to find that plaintiff was a corporation. Studebaker v. Montgomery, 74 Mo., 103; Elektron Mfg. Co. v. Jones Bros., 4 Circ. Dec., 555; Peckham Iron Co. v. Harper, 41 O. S., 100, 106, 107. The motion for a new trial is overruled, and plaintiff may take judgment.

W. T. Ritchie, for plaintiff.
C. B. Wilby, for defendant.