Opinion of the Court.

and demand therefore having been seasonably made by the assignor, it became and was the duty of the assignee to have the same appraised, set off and allowed to him before sale. Having failed in this it would indeed be a harsh rule, and one wholly inconsistent with the spirit and humane purpose of our exemption laws, that would under such circumstances deny to the assignor the right to claim and have such exemption out of the proceeds of sale, upon his formal demand made therefor while said proceeds are yet in the hands of the assignee undistributed. The rule requiring selection by the claimant of the exempt property, must have a reasonable interpretation, and where one entitled to his exemption seasonably demands the same of the officer or person whose duty it is to have such exemption set off and allowed to him, and the officer or person charged with this duty, either purposely, or through mistake and unintentionally, by his conduct, or by statements and representations made to the claimant, so deceives or misleads the claimant that the latter is thereby reasonably induced to forego his right to make selection of the specific property to which he is by law entitled, actual selection, under such circumstances, is waived or excused, and the want of it can not be held to be an abandonment or forfeiture of the claimant's right. We are of opinion, therefore, that in the present case, upon the undisputed facts, Fred. Kraus, the assignor, was entitled to receive and hold exempt out of the proceeds of the sale of the assigned property five hundred dollars in lieu of a homestead. This sum having been paid to him, as and for such ex

Syllabus.

emption, by D. V. Green, assignee, the latter was entitled to have credit in his account for the amount so paid, and the exception to this item of the account should have been overruled and such credit allowed.

Judgment reversed.

SUMMERS, SPEAR, DAVIS, SHAUCK and PRICE, JJ., concur.

THE VILLAGE OF CARTHAGE 7. DIEKMEIER.

Municipal corporation improvement of streets-Separate contracts for respective streets-Certificate of clerk that money required is in treasury-But specifying no amount-Not in compliance with Section 2702, Revised Statutes-Municipal law.

1. Where a municipal corporation, by sale of its bonds, creates a fund for the improvement of certain streets, and takes the necessary steps to receive and accept bids and to contract separately for the improvement of each of said streets, the following certificate filed by the clerk of the corporation at the time the bid is accepted and contract executed, to-wit: "I hereby certify that there is money in the village treasury in the fund from which the above fund is proposed to be drawn for payment of the village portion of the improvement and not appropriated for any other purpose sufficient to pay for the same. L. Hall, Village Clerk,"-is not in compliance with Section 2702 (old number), Revised Statutes, in that it is not certified that a specified sum of money required for the contract to improve the street "is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose."

2. Where the above defect in the certificate is discovered before the execution of the contract, and the clerk of the corporation, in the presence of the municipal council and with its knowledge and consent, amends the certificate by inserting therein, although in figures, the sum of money required for the con

Statement of the Case.

'tract, and the certificate so amended is filed and recorded as required by said section, and the contract then executed, said certificate is a limitation on the amount to be paid on the contract for that street, beyond which the corporation is not liable to the contractor.

(No. 10746-Decided February 2, 1909.)

ERROR to the Circuit Court of Hamilton county.

The defendant in error sued the Village of Carthage to recover for the work done and material furnished in the improvement of Linden street, and in his petition he pleads the preliminary resolutions and other acts of the village council which led to the execution of a contract for said work; that after its performance the work was duly accepted, and that only part payment has been made and he prays judgment for the balance due him. The whole amount due, he says, was $4,268.19, and that he has been paid $1,928.50, leaving due a balance of $2,339.69 with interest.

The village admits that an issue of bonds had been made to pay for said improvement and also the improvement of other streets, and admits the passage of certain resolutions and ordinances preliminary to the contract with the plaintiff below, and admits the amount paid as alleged. Some averments of the petition are denied, and it is then plead that there is no right of a recovery because of the absence of the certificate of the village clerk as required by Section 2702, Revised Statutes. Issue was joined by reply and case tried to a jury, who returned a special verdict covering all the issues in the case, and as it presents all the facts upon which the judgment below was rendered, we insert it here.

Statement of the Case.

"We, the jury, duly impanneled and sworn in the above entitled cause, being directed by the court to give a special verdict, in writing, upon all the issues of this cause, do find the facts as established by the evidence herein as follows:

"No. 1. The defendant, The Village of Carthage, is a municipal corporation organized under the laws of the state of Ohio and situated in Hamilton county in said state.

"No. 2. The defendant, prior to June 7, 1900, took the necessary action for the issuing of bonds of the village in the sum of $40,000 for the improvement of the streets, which said action resulted in the creation of a fund in the treasury of said village on June 7, 1900, amounting to $40,480. Said fund of $40,480 was on August 10, 1900, and up to and including the date of the filing of the petition in this case on February 21, 1903, the only fund in the treasury of the said village raised for the purposes and available for the payment of any portion of the street improvements in said village.

"No. 3. Between April 9, 1900, and August 10, 1900, the council of the defendant village took the necessary action and passed the necessary proceedings for the improvement of eighteen streets of the village, being all the streets of the village with the exception of four or five, for the purpose of improving said streets by constructing a combined cement curb and gutter on each street and macadamizing the roadway, including excavation, macadamizing, graveling, setting crossings and laying the cement curb and gutter. It was pro

Statement of the Case.

vided in the proceedings for such improvements that the cost of the cement curb and gutters in cach instance should be assessed against the abutting property owners.

"No. 4. Between the ninth day of April, 1900, and the tenth day of August, 1900, the council of the Village of Carthage took the necessary steps by passing proper resolutions and ordinances to improve Linden street in said village by grading, graveling and macadamizing the same, and by constructing combined cement curb and gutter thereon, and setting crossings and rolling the same; and said council duly adopted plans and specifications for the construction of said Linden. street, or avenue, and attached to said specifications was an estimate of the engineer of said village showing approximate quantities to be used on said street as follows: excavation-cubic yards, 600; gravel (unscreened)—cubic yards, 350; macadam-cubic yards, 800; combined curb and gutter-lineal feet, 4100; crossing stone-lineal feet, 200; rolling-square yards, 6300.

"In said specifications it was provided: 'The quantities named on the estimate are approximate and will not govern the final estimate.'

"No. 5. On Tuesday evening, August 7, the council passed eighteen resolutions awarding the various street improvements to the lowest bidder in each instance, and among others was the resolution awarding the contract for the improvement of Linden avenue to the plaintiff, Henry Diekmeier, at the rates named in his bid and heretofore found as a fact in this case. None of said resolu