Ginn v. Hathaway. same principle governs another note of the same parties in the hands of another bank. Certain other sums of money, aggregating with interest $2,720.23, were paid by the testator in his lifetime upon obligations similar to the notes before mentioned, and as to these the relations of the parties is manifestly different. The son's liability to the father had become absolute. But the peculiar circumstances under which those payments were made are claimed to be such as to indicate a breach of trust by the son, which should preclude him from any benefit under his father's will until he has made full restitution. But the evidence shows that these transactions in the father's lifetime were so acted upon by him, as shown by his book of accounts, that he must be held to have treated the payments thus made for his son as mere debts of the latter to him. And as to these we hold that they are canceled by the will. There are certain cross petitioners here whose rights are conceded by all parties, and no discussion thereof now is neces sary. A decree may be taken in accordance with this opinion. Cuyahoga County Circuit. ERROR-PLEADING. [Cuyahoga (8th) Circuit Court, May 20, 1907.] Marvin and Henry, JJ. (Winch, J., not sitting.) *R. T. Price, Et Al. V. John S. Hathaway. Petition in Error Must be Filed Within Four Months of Judgment Rendition not Overruling New Trial. ror. A petition in error the parties having waived a jury and submitted their cause to the court, must be filed within four months from the rendition of the judgment and not from the over. ruling of the motion for a new trial. Error. C. L. Gates and Smith, Taft & Arter, for plaintiffs in er James F. Wilson, for defendant in error. HENRY, J. The petition in error in this cause was filed after the expiration of four months from the rendition of the judgment, but within four months from the overruling of the motion for a new trial. In the trial of the action below the parties waived a jury and submitted their cause to the decision of the court. Section 5326 R. S. (Sec. 11599 G. C.) has no application, therefore, so as to postpone the rendition of the judgment until after the overruling of the motion for a new trial. That section provides, "that when a trial by a jury has been had," this procedure is proper. Here there was no trial by jury, nor can it be said that when the right of trial by jury is waived there is anything analogous to a verdict as distinguished from a judgment to be rendered by the court. Section 5326 R. S. can not apply by analogy to the case before us. The petition in error having been filed too late is therefore dismissed for want of jurisdiction. Marvin, J., concurs. ♦Affirmed, no op., Price v. Hathaway, 79 O. S. 478. Loan Assn. v. Tousley. BUILDING—CONTRACTS. [Cuyahoga (8th) Circuit Court, May 27, 1907.] Marvin and Henry, JJ. (Winch, J., not sitting.) *BROOKLYN SAVINGS & L. Assn. Co. V. Charles E. Tousley. Architect Preparing Plans for More Expensive Building Than Contract Calls for Loses Fees—Architects Plans Must Conform to Contract. An architect, contracting for plans for a building to cost as nearly as possible $40,000, is not entitled to any fees the plans prepared were for a building to cost $50,000. Error. M. W. Cope, for plaintiff in error. Smith, Taft & Arter, for defendant in error. HENRY, J, The judgment of the court of common pleas is reversed and final judgment entered for the plaintiff in error upon the conceded facts in this case. The plaintiff in error contracted in writing with the defendant in error, for the preparation of plans of a building to cost as nearly as possible $40,000. The plans as prepared were for a building that would admittedly cost $50,000. This was not in compliance with the contract, and no fees are recoverable by the architect therefor. Reversed, and judgment for plaintiff in error. •Affirmed, no op. Tousley v. Savings & L. Assn. 80 O. S. 737. Hamilton County Appeals. CONTRACTS—EVIDENCE. [Hamilton (1st) Court of Appeals, July 16, 1914.] Swing, Jones and Jones, JJ. Cincinnati (city) V. August J. Henkel & Brother. Incompetency of Evidence Relating to a Proposed Compromise. In a controversy as to the amount due to the plaintiff under a contract for a street improvement, it is prejudicial error to admit evidence which on its face shows that it related entirely to a proposed compromise settlement. [Syllabus by the court.] Error. Alfred Bettman, city solicitor, and Stanley W. Merrell and Mitchell Wilby, and Geoffrey Goldsmith, for plaintiff in error. Dolle, Taylor & O'Donnell, for defendants in error. JONES, O. B., J. This action was brought by plaintiff below under a contract for grading and macadamizing Grandin road from Madison road to its southeastern terminus. In the contract, in which the plaintiff was described as the "party of the second part," the following provision was made as to the computation of the amount of work done. "D. The said party of the second part further agrees that the certificate of the chief engineer of the board of administration, or of one of the assistant engineers of said board, to be appointed by the said board to survey the work, shall be the account by which the amount of work done shall be computed." The contract provided that the city was to pay plaintiff the sum of $1.95 per cubic yard for all broken stone placed in position. When the work was completed the engineer made calculations and prepared an estimate. The original figures showing that 1,920 cubic yards of broken stone had been furnished and placed, and the contractors complaining as to this quantity the Cincinnati v. Henkel. engineer made further allowances because of mud which had existed upon parts of the road when the preliminary cross section was taken and because of an error in the cross section levels, and increased this estimate to 2,228 cubic yards, which was the figure given in the final estimate and certificate accepting the work. Plaintiff below complained to the board of public service, but the engineer declined to change his figures, and the estimate was paid as thus made. The board of public service, however, appointed a committee which recommended that: "the road be accepted by this board as complete; that the contractor be paid upon the basis of the engineer's estimate, and that in addition thereto he be allowed the sum of $500 as a compromise to settle the differences at issue; payment to be made in the usual manner upon the presentation of properly approved voucher." This report was adopted by the majority vote of the board, three members voting for it and one against it, and the compromise was accepted by the contractor in a letter, as follows: "We accept your offer of compromise for the amount due us for the improvement of Grandin road from Madison pike to eastern terminus, and agree upon payment to us of the estimate of your engineer and the sum of $500 that the same shall be in full of all claims and demand which we have against the city of Cincinnati under our contract with it for the improvement of such roadway." After which action of the board, at its meeting one week later the engineer submitted final estimate voucher for resurfacing Grandin road, amounting to $7,034.15, which contained. 2,228 cubic yards of stone and which was approved and ordered paid by the majority of the board, and the clerk submitted an additional voucher in favor of the plaintiff in the sum of $500, "authorized by the resolution of this board on August 19, 1904. in settlement of claim of said contractors for stone furnished in contract for resurfacing Grandin road, from Madison road to southeastern terminus, being in excess of final estimate for work done as submitted by the engineer." |