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Mahoning Circuit Court.

not be bound by it, because sending him down for the purpose of transferring the stock and receiving pay for it, would not have authorized William to have cancelled the contract or to have discharged Mr. Andrews from liability upon it, nor would it have authorized him to have transferred part of it and to have discharged him from the balance of it, but William, in receiving the check, could only bind the old gentleman if he had knowledge, and there was no proof of such knowledge, and therefore we think there was no error in the court below in excluding this.

The next claim in the case is that the court erred in refusing requests and that the error committed by the court in its charge to the jury was in charging that the plaintiff was bound to tender performance upon his part unless the defendant, Andrews, had waived the tender.

Now the charge of the court was: "It you have found upon these propositions in favor of the plaintiff, then you will proceed to inquire further and ascertain whether or not the plaintiff offered to transter or assign to the defendant the stock and the certificates so sold, or tendered to him the stock or the certificates representing such stock and offered to transfer and assign the same to the defendant. And such tender and offer must be made to the defendant himself, or to some one authorized by him to act for him and in his behalf, and a tender or offer to transfer made to the officers of the Fair association would not be sufficient unless the defendant had authorized such officers to act for him and they were so authorized at the time such offer was made. It he did not do so, and you so find, then he cannot recover, unless Andrews himself repudiated the contract and waived the mattter of a tender of the stock by the plaintiff to him at the time of the sale or subsequent thereto, and before the offer to transfer the same, it such offer was made by the plaintiff."

So this brings us to the question whether or not the plaintiff would be entitled to recover without an absolute performance if Andrews repudiated the contract and thereby waived the straight performance. Now upon this question, the rule is laid down in Benjamin on Sales, Sec. 853, in this way: "But the necessity for performing the condition precedent may be waived by the party in whose favor it is stipulated, either expressly, or by the implication resulting from his acts or conduct. This waiver is implied in all cases in which the party entitled to exact performance either hinders or impedes the other party in fulfilling the condition, or incapacitates himself from performing his own promise, or absolutely refuses performance, so as to render it idle and useless for the other to fulfill the condition."

"No authority is needed, of course, for the proposition that the party in whose favor the condition has been imposed may expressly

waive it.

"The cases, however, are numerous to establish the propositions above stated, in relation to the implied waiver."

And it is again found on page 744 of this edition, and the case cited is Butler v. Butler, 77 N. Y., 472 [33 Am. Rep., 648]. The contract was to furnish materials and set up a gas machine in the buyer's hotel, for $1,500 to be paid when the works "are upon the grounds." The materials were sent to the premises and received, but the owner of the hotel refused to permit the machine to be set up. The seller claimed to recover the price and obtained judgment for the amount less $100 the cost of putting up the machine, and this was affirmed by the Supreme Court.

Andrews v. Watson.

So again on page 747: "On refusal to fulfill can the other party sue at once without awaiting till the time for performance expires? And it is there laid down that he may.

In Manhattan Life Insurance Co. v. Smith, 44 Ohio St., 156, 170 [5 N. E. Rep., 417], which was an action upon a policy of insurance, the court say: "The action of the company in the case at bar was in' effect a repudiation of its promise to pay the amount stipulated in the policy. Even had Mrs. Smith learned the amount and time of payment after the death of her husband, a tender would have been a useless ceremony. 'On general principles, whenever the act of one party, to whom another is bound to tender money, services, or goods, indicates clearly that the tender, it made, would not be accepted, the other party is excused from technical performance of his agreement. The law never required a vain thing to be done.'" And cites Isham v. Greenham, 12 Dec. (Re.) 182 (1 Handy, 357, 361). See also Brook v. Hidy, 1 Ohio St., 306, 310. And I may say this same rule is laid down in Watson v. Dun. Wright 741.

We think there was no error by the court in its charge to the jury under these authorities, and the case is therefore afhrmed.

RAILROADS—DAMAGES-EVIDENCE-DEEDS.

[Mahoning Circuit Court, April Term, 1888.]
Frazier, Woodbury and Laubie, JJ.

N. Y. P. & O. R. R. Co. ET AL. V. MARGARET STUBBINGS.

1. DAMAGES FOR CHAnge From PRIVATE TO PUBLIC TRACK.

Where a private switch track, used by a manufacturing company, is subsequently appropriated by a railroad company and converted into a main track, and the grade raised about two feet, thereby interfering with ingress aud egress to abutting property, the measure of damages to such property, purchased prior to the change, is not restricted to its rental value, but should include any substantial injury to the land itself which may be shown to exist. Evidence of the value of property prior to and after the change is, therefore, admissible.

2. ABUTTING OWNERS' INCIDENTAL RIGHTS.

An abutting owner, in addition to the general interest which the public has in the street, has an incidental title to certain facilities and franchises, such as the right of ingress and egress to property, and where this right be substantially impaired by the location and operation of the railroad, the property owner is entitled to recover damages.

8. FAILURE to Charge FULLY AS To Measure of Damages.

Where, in such an action, the charge of the court is not definite as to the measure of damages, in that it does not go far enough, but so far as it goes is right, it is the privilege of the parties desiring more explicit instructions to ask for them, and failing to do so, the failure of the of the judge to charge is not ground for reversal.

DEEDS-TERMINI Excluded.

A deed conveying "all the land lying between the strip one hundred feet wide, herein above described, and the Pennsylvania and Ohio canal, etc," conveying a supposed locality between two points, excludes the termini and does not, therefore, convey to the center of the canal.

6. MEANING of the Word "NORTHERLY."

The word "northerly," used in a deed, does not necessarily mean due north, but when not controlled by position of monuments, or by lines described

Mahoning Circuit Court.

LAUBIE, J.

with reasonable certainty, may be construed to mean due north, and particularly when it is necessary to so hold in order to prevent uncertainty.

HEARD ON ERROR.

The New York, Pennsylvania & Ohio Railroad Company against Margaret Stubbings is proceeding in error brought to reverse the judgment of the court below, upon the verdict of a jury in the case pending in that court, wherein Margaret Stubbings was plaintiff and the New York, Pennsylvania & Ohio Railroad Company and others were defendants.

The action below, as finally submitted to the jury, was one to recover damages sustained, as is claimed by the plaintiff below, by reason of the construction and operation of the railroad of the New York, Pennsylvania & Ohio Railroad Company across Federal street in this city, at the point where Mrs. Stubbing's property abutted upon the street.

A number of exceptions were taken during the course of the trial, and while the exceptions largely occur in the evidence to the jury, yet there is no point made to us, that the verdict is contrary to the evidence. It seems to have been brought before us, all the facts, for the purpose of enabling the court to fully understand the nature of the case and the objections made.

The first error claimed, is in the reception of evidence on the part of the plaintiff below, by reason of the damages sustained by her.

It seems that when Mrs. Stubbings became the owner of the property in question there was a railroad track across Federal street at precisely the same location now claimed to be owned by the New York, Pennsylvania & Ohio Railroad Company. This track was a private switch, for the company described in this proceeding as Brown, Bonnell & Co. It was their switch, running from, perhaps, one or two railroad tracks into their mill and which existed for a number of years in this condition in front of the plaintiff's property, without complaint upon her part. It appears that it was there and the track was there in operation at the time she purchased this property.

The complaint is that this track was subsequently, perhaps in the year 1882, taken possession of by this railroad corporation and the grade changed, raised from eighteen inches to two feet or more across Federal street; that the egress and ingress to her property was thereby damaged; and that from a private switch of a private corporation, this railroad company transferred this track into a track of a railroad company and made it part of its main line or branch line, called the Girard branch, running from its track in the neighborhood of Youngstown to the town of Girard, thus transforming what was a private switch of a private company into the main track of the railroad company, making it into a public railroad.

The plaintiff below inquired of witnesses, for the purpose of fixing the damages sustained by plaintiff, what the value of her property was just prior to the appropriation, and what its actual or market value was immediately thereafter; or, in other words, the decrease or loss by reason of the changed use and character of this railroad track.

There was objection made and there seemed to be this difference between the court and counsel for the defendants, the railroad company. Counsel for the railroad claimed that the measure of damages was not the difference in the actual value of the property, but that it was the differ

Railroad Co. v. Stubbings.

ence in the rental value and could not be regarded as permanent injury to the property itself. The cor.rt seemed to hesitate to go to the extreme length, as claimed by the counsel for the plaintiff below. At all events there was a complete line of demarcation upon the point by counsel for the railroad and the court as to the question of permanent injury, whether the plaintiff was entitled to recover for permanent injury or whether it would be confined to the rental value.

In this connection it may be as well to consider and determine points expressly complained of.

The judge in his charge referred to this question of damages, perhaps in three different places. First, he says to the jury in his

charge:

"Upon this question the court says to you as a matter of law, that if the lands of the plaintiff mentioned and described abut upon Federal street, she has in addition to the general interest which the public has in the street, an incidental title to certain facilities and franchises, one of which is the right of ingress and egress to her lot, and if you should find that this right has been subtsantially impaired by the defendants in the location and operation of their railroad, along said street, if you find that they have so done, and that the location of said railroad track by the defendants is permanent in its character, then upon this proposition you should find in favor of the plaintiff, and in your determination of the damages she has sustained, if you find that she has sustained damages by reason of the acts of the defendant, you should not limit your inquiry as to such damage, to the rental value of the property from the time the street was so used and occupied by defendant until the filing of the petition, or the difference in the rental value thereof, but you may and should consider any substantial injury to the land of plaintiff that may be proven to exist by reason of the means of ingress and egress to the lands from the street, having been impaired by defendants in the locating of their railroad track and the use of the same for the purposes for which it was designed and has been used by defendants, and for this purpose you should consider the change of grade, if any has been shown to have been made, the manner in which the railroad tracks have been located and any other matters shown to exist that would establish this fact as well as indicate clearly that the improvement was made permanent in its character.

"In determining this question, you may and should consider the condition of the property claimed to be affected by the acts of the defendants, and if from the testimony you find that prior to, and at the time the defendant constructed their railroad track along the street, if you find that the same was so constructed, that a railroad track used and owned by a private corporation had been laid along said street and in front of said property, and where the same abutted upon the street, this should be taken into consideration by you, and your verdict in case you should find for the plaintiff, should only be for such amount as would compensate the plaintiff for damages she sustained, if any, by reason of the change of the character, construction and use of such track by the defendants. If you find in favor of the plaintiff upon each and all the propositions submitted to you, under the directions here given, your verdict should be for the plaintiff in such sum as will fully compensate her only for any actual damage she sustained at the time the defendants occupied the street by reason thereof.

Mahoning Circuit Court.

Now while it may be stated in regard to this charge that it does not in a very definite form instruct the jury what they should regard as a measure of damages, yet it said no more than the law would allow as recoverable; as far as the court did go it was right. If the parties wanted the court to go further, it was their privilege to have asked for instruction, but that was not the difference between the counsel and the court.

Counsel for the railroad company maintained that the measure of damages was the difference in rental value at the time of the filing of the petition, and not one of permanent injury to the property itself. Now it will be noticed, that the court alludes here to the recovery, to the change, character, construction and use of the track by the defendant. The facts disclose that there had been for many years prior to the time the railroad company took possession of the railroad track at this point across Federal street, a track owned by a private corporation; that it was there at the time the plaintiff purchased the property, and that it had been there a great many years; and up to the time the railroad company took possession of this railroad. Now with this view of the facts and the circumstances, the court properly alludes to the right of recovery simply as to the change of the construction and use of the tracks, in their character and construction, as made by the railroad company.

Now in reference to this testimony, the court permitted the plaintiff below to show by witnesses what the difference was in the value of this property before and after this conversion of it by the railroad company to part of its main line.

It is true, that of some of these witnesses questions were asked as to the value of this property before the railroad took possession of it, and its value immediately thereafter, without calling attention to situation of the property, subsequently, but the question, of course, refers to the property in its condition with all of its surroundings. It seems, however, in one case at least, that of Mr. Mackey, that he did not so understand the question, that he did not understand that he should consider what the value of the property was immediately or prior to the appropriation by the railroad company. And upon cross-examination he was asked the question including the change in character, construction and use of the track, so that the witness did give his idea of the value of the property with the Brown, Bonnell & Co. switch there, and afterwards its value when that switch was changed and transferred into a public railroad by the defendant.

To one, at least, if not more of these witnesses, counsel for the plaintiff propounded the question, "did this condition or situation of the property include the value of the property immediately before the railroad had appropriated this track to its use, and considering that the switch of Brown, Bonnell & Co., existed upon Federal street?" And this was objected to.

Now, so far as this testimony was concerned, it finally brought to the jury, from the testimony of all these witnesses, what the witnesses considered the property actually was worth before this appropriation, and before the Brown, Bonnell & Co. track was transferred by the defendant into the main line of its track; but whatever the result to the value of it by reason of the change, construction and appropriation of the track by the railroad company, this, as I have said, was the limitation. It is determined for us, it is one of those classes of cases which

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