error. Hamilton County. ERROR to common pleas court. Charles F. Williams and Horace A. Reeve, for plaintiff in Closs & Luebbert, for defendant in error. SMITH, J. We do not think the judgment of the trial court should be reversed on the ground that the verdict is not sustained by sufficient proof nor do we find error in the trial court refusing the special charges asked for by plaintiff in error. The rigid rule contended for in these charges has been relaxed and where formerly no recovery could be had on a contract like the one in suit unless the agreement was strictly performed, yet now where the contractor acts in good faith there may be such a recovery although the contract may not have been literally performed. Kane v. Stone Co. 39 Ohio St. 1. There is error, however, in the general charge of the court in this: The court does not definitely or clearly define to the jury the meaning of the burden of proof or the preponderance of the evidence. Also in those portions of the charge where the court speaks of the drain as one which an ordinarily reasonable and prudent man would have had constructed through his property. This was not the question for the jury but the action was upon a written contract, the performance of which was disputed. Also in charging the jury that the defendant must show that the sewer or drain as built by the plaintiff does not comply with the terms of the agreement. This burden was upon the plaintiff to show that it did so comply, and it was also error to charge that the burden of proof should be established by a fair preponderance of the evidence. There are no degrees in preponderance; if the evidence preponderates at all, however slightly, this is sufficient. Russell v. Russell, 3 Circ. Dec. 460 (6 R. 294). No other errors appearing in the record, for the above reasons the judgment of the trial court is reversed. Giffen and Swing, JJ., concur. Hieatt v. Simpson. ERROR-PLEADING-TRIAL. [Hamilton (1st) Circuit Court, April 10, 1909.] Giffen, Smith and Swing, JJ. ESTELLA B. HIEATT V. SUSAN W. SIMPSON ET AL. 1. ON REMAND REVERSING ORDER OVERRULING DEMURRER COURT BELOW MAY PERMIT AMENDMENT TO DEMURRED PLEADING. The circuit court, upon the Supreme Court's having sustained a demurrer and remanding the case for further proceedings, may, under R. S. 5116 (Gen. Code 11365), allow an amendment to the pleading to which demurrer is sustained. 2. PAYMENT OF TAXES UNDER MISTAKE OF LAW WITH KNOWLEDGE OF THE FACTS IS VOLUNTARY. The payment of taxes under a mistake of law with full knowledge of the facts, cannot, when made voluntarily, be recovered; hence, where an amendment to an answer contains facts sufficient to show a forfeiture by the life tenant, under R. S. 2852 (Gen. Code 5688) it is unnecessary to show how much taxes were so paid or whether other real estate was forfeited to the remainderman so long as such amended answer states a good, though partial, defense. ERROR to common pleas court. W. T. Porter, for plaintiff in error: Cited and commented upon the following authorities: Witte v. Lockwood, 39 Ohio St. 141; New York Life Ins. Co. v. Bangs, 103 U. S. 780 [26 L. Ed. 608]; Ruegger v. Railway, 103 Ill. 449; Tuttle v. Harrill, 85 N. C. 456; Kunneke v. Mapel, 60 Ohio St. 1 [53 N. E. Rep. 259]; Ewing v. McNairy, 20 Ohio St. 315; Covington & C. Bridge Co. v. Sargent, 27 Ohio St. 233; McCoy v. Jones, 61 Ohio St. 119 [55 N. E. Rep. 219]; Hackworth v. Zollars, 30 Iowa 433; Hites v. Irvine, 13 Ohio St. 283; Le Guen v. Gouverneur, 1 Johns. Cas. 436 [1 Am. Dec. 121]; Gray v. Dougherty, 25 Cal. 266; Allen v. McCoy, 8 Ohio 418; Crockett v. Crockett, 2 Ohio St. 180; Jenks v. Langdon, 21 Ohio St. 362; Kent v. Bentley, 6 Circ. Dec. 457 (10 R. 132); Johnson v. Pettit, 13 Dec. Re. 394 (1 C. S. C. 25); Chaffee v. Foster, 2 Ohio St. 358 [39 N. E. Rep. 947]; Estabrook v. Royon, 52 Ohio St. 318 [39 N. E. Rep. 808; 32 L. R. A. 805]; Thompson v. Thompson, 18 Ohio St. 73; Mays v. Cin Hamilton County. cinnati, 1 Ohio St. 268; Marietta v. Slocomb, 6 Ohio St. 471; Valley Ry. v. Iron Co. 46 Ohio St. 44 [18 N. E. Rep. 486; 1 L. R. A. 412]; Cincinnati v. Gas Light & Coke Co. 53 Ohio St. 278 [41 N. E. Rep. 239]; Phillips v. McConica, 59 Ohio St. 1 [51 N. E. Rep. 445; 69 Am. St. Rep. 753]; Vindicator Print. Co. v. State, 68 Ohio St. 362 [67 N. E. Rep. 733]. Worthington & Strong and Outcalt & Hickenlooper, for defendant in error. GIFFEN, P. J. The Supreme Court [Hieatt v. Simpson, 78 Ohio St. 446] having rendered the judgment that this court should have rendered [Hieatt v. Simpson, 28 O. C. C. 590 (4 O. L. R. 136)], to wit, sustained the demurrer to the answer, and remanded the cause to this court for further proceedings according to law, the authority to allow an amendment to the answer, under R. S. 5116 (Gen. Code 11365), is the same as if this court had, instead of overruling the demurrer, sustained the same. The case of Covington & Cin. Bridge Co. v. Sargent, 27 Ohio St. 233, and other like cases, apply only where final judgment has been rendered. The amendment to the answer presented contains facts sufficient to show a forfeiture under R. S. 2852 (Gen. Code 5688), of at least the ten and one-half acres of land sold to Van Tress. The payment of taxes under a mistake of law with full knowledge of the facts, can not, when made voluntarily, be recovered. It is unnecessary to now determine how much, if any, was so paid, or whether the other real estate was forfeited to the persons next entitled thereto in remainder, so long as the proposed amendment states a good though partial defense. If counsel for defendants elect to accept the offer of plaintiff to allow a lien for taxes paid by them there will be no difficulty in entering a decree to that effect after proper pleadings are filed. Leave to file amendment granted. Smith and Swing, JJ., concur. Railway v. Elyria, MUNICIPAL CORPORATIONS. [Lorain (8th) Circuit Court, 1910.] Marvin, Winch and Henry, JJ. LAKE SHORE & M. S. RY. v. ELYRIA (CITY). MUNICIPALITIES CANNOT CONTRACT TO SUPPLY WATER TO RAILROAD COMPANY AT SPECIAL RATE AND GIVEN TIME * * * water rent" prescribed The power to "assess and collect ers. [Syllabus approved by the court.] ERROR to common pleas court. This is an action by which the city seeks to recover from the Lake Shore & Michigan Southern Railway Co. for water used by the railway company in its watering tanks and at the depot for flushing closets, etc. A petition and answer were filed and then the case was submitted to the court upon an agreed statement of facts, in which it is agreed: "That the plaintiff is a municipal corporation and that the defendant is a railway corporation operating its railway through the city of Elyria, Ohio. "That said city owns and operates a system of waterworks which is under the charge and control of the board of public service, according to law. "That on May 18, 1905, the board of public service of said city entered into the agreement which is marked Exhibit A and attached to the defendant's answer herein." This contract reads as follows: "This agreement, made May 18, 1905, by and between the city of Elyria, by its board of public service, party of the first part, and the Lake Shore & Michigan Southern Railway Company, party of the second part, WITNESSETH :— 29 O. C. C. Vol. 32. Lorain County. "That first party does hereby agree to furnish to second party, at such points on first party's water pipe lines as second party may choose to take the same, such quantities of water as second party may need for its use in said city, all water furnished to be metered and to be furnished at the rate of six cents per thousand gallons, bills to be rendered monthly, second party being privileged to read or inspect meters jointly with first party. "That the second party agrees to take said water to the amount of at least fifty million gallons per year, and to pay first party for the same on the rendition of monthly bills therefor at the rate of six cents per thousand gallons. "That this agreement shall take effect January 1, 1905, and continue for the period of five years, but it is understood and agreed that if at any time the first party shall fail to furnish second party with a sufficient supply of water and of a quality satisfactory for its purposes, second party may terminate this contract." "That said contract was signed by the members of the board of public service and was approved by the solicitor of said city and all the formalities required by law relating to contracts made with municipal corporations were complied with; but the said contract was not approved by the council of said city, nor authorized by said council. "That in pursuance of said contract plaintiff began the furnishing of water and the defendant the using thereof under said contract, and that said defendant complied with the terms of said contract, and that the defendant paid and the city accepted pay for water furnished under said contract according to the terms of said contract until shortly prior to October 1, 1908, when the plaintiff notified the defendant that beginning October 1, 1908, it would not furnish water to the defendant for the price named in said contract, but would charge defendant a higher rate for water thereafter furnished. "That the plaintiff continued to furnish water and the defendant used the amount of water claimed in plaintiff's petition, but refused to pay therefor except at the price named in |