PLEADING

Upon a motion for judgment on
the ground that the pe.ition does
not aver sufficient facts to entitle
plaintiff to recover, the court will
consider the petition as it would
consider it if submitted upon gen-
eral demurrer. Wicker V. Mes-
singer.
.425

Section 4272, Rev. Stat., prescrib-
ing what are sufficient allegations
in such cases, does not require the
pleader to set out with legal exact-
ness and particularity a state of
facts which would bring him within
either Secs. 4270 or 4271, Rev. Stat.,
prohibiting gaming. A plain state-
ment of the situation is sufficient.
Averments that the defendant has
the money, that it is due the plain-
tiff and that it was obtained in a
gambling transaction are sufficient.
Rogers v. Edmund.

291

In an action for wrongful death,
alleged to have been the result of a
defective fly wheel, a petition which
charges negligence on the part of
the defendant, and knowledge of the
defect, and avers that plaintiff's de-
cedent did not know of such defect,
though without averments that de-
fendants or decedent by the exer-
cise of ordinary care should or
would have known of such defect,
is sufficient; and particularly where
no objection was made to the ab-
sence of such averments until after
the case went to trial. Forrest City
Stone Co. v. Richardson.

177

A demurrer does not admit the
truth of a mere conclusion. Secur-
ity Fire ILs. Co. v. McFarland. 591

When a fact is asserted in a plead-
ing which raises no presumption
that will amount to a defense to the
action, the pleader is called upon to
assert and supply such facts or de-
fenses as will take the place of pre-
sumption and bar recovery; and
this cannot be supplied by pleading
findings or conclusions.
Ib.

A general denial of all material
allegations of the petition would not
be good against a motion to make
more definite and certain, but
where no such objection is taken
the answer is sufficient to put in
issue plaintiff's allegations as to in-
juries, their permanency, etc., and
expenses incurred for care and
nursing and physicians' bills. New
York, L. E. & W. R. R. Co. v. Harber.
648

Under a petition to enforce the
collection of assessments for street
improvement, showing that thereto-
fore in a proper proceeding, in a
proper tribunal and between the
proper parties, the claim set forth
was adjudged to be a lien upon the
premises described in the petition
and that it is unpaid, no question on
demurrer can arise as to the valid-
ity of the act under which the im-
provement was made nor in regard
to the statute of limitations.
umbus v. Schneider.

Col-

781

A petition to enforce the collec-
tion of assessments for a street im-
provement which shows that there-
tofore in a proper proceeding, in a
proper tribunal and between the
proper parties, the claim set forth in
the petition was adjudged to be a lien
upon the premises described in the
petition, and that it is unpaid, is
sufficient on demurrer. Columbus
v. Schneider.
778

Under such a petition no question
can arise as to the validity of the
"Penn Act," under which the assess-
ment proceedings were conducted,
nor in regard to the statute of limi-
tations.

Ib.

It is a sufficient averment of fraud
in a petition to set aside a judgment
to allege that the merchandise for
which the judgment was obtained,
was sold to plaintiff's husband and
that afterwards the name of the
wife was inserted in the account
therefor, without her knowledge or
consent, which account with her
name so fraudulently inserted was
sued on and judgment procured

PLEAD.NG-Continued.

against her. Ullman, Einsten & Co.
v. Effinger.
746
In an action for injunction which
was denied, a supplemental petition
asking for another injunction and
for damages, does not alter the
nature of the cause. Weitzel v.
Delhi (Vil.).
737

Omission of an initial letter from
the name of a plaintiff corporation
in a petition may be corrected al-
though the time within which pro-
ceedings in error may be com-
menced has expired. Bartels Brew-
ing Co. v. Schumacher.
726

An allegation in an answer, in an
action for injuries sustained by rea-
son of the unsafe condition of the
approach to a bridge that "the ac-
cident was due to the condition of
the road and not in any way to said
bridge or its condition" states mere
conclusions, and not facts, and is
open to demurrer. Dayton v. Har-
574
See also AMENDMENT; CHARGE TO
JURY; CONTRACTS; INSURANCE;
INTOXICATING LIQUORS.

mon.

Rules and regulations for the
government of the fire department
of Cleveland made by the mayor
and head of the department under
Secs. 1545-51, Rev. Stat., are made
by the head of the department as
contemplated by Sec. 2464, Rev.
Stat.. and do not lose their force
by the fact that the mayor joined in
making them.
Ib.

Under Secs. 1545-24, Rev. Stat., 92
O. L., 446, the federal plan law of
Cleveland, which provides for the
creation of a tribunal consisting of
the mayor, director of law and
president of the city counch to hear
and determine charges preferred
against officers who have been re-
moved by the head of the depart-
ment to which they belong, in which
no provision is made as to a
quorum, a finding and sentence by
two members of the board, made
upon consideration by the whole
board, is a finding by the board and
is valid. State v. Barrett.
231

In the execution of a power dele-
gated for purposes merely private,
it is necessary that all to whom
such power is delegated should con-
cur in the act, but if persons be en-
trusted with powers of a general
nature, or for public objects, if all
are acting, a majority will conclude
the minority, and their act is the
act of the whole.
Ib.

The powers and duties of the tri-
bunal created by Secs. 1545-24, Rev.
Stat., 92 O. L., 446, the federal plan
law of Cleveland, consisting of the
mayor, director of law and president
of the city council, to hear and de-
termine charges preferred against
officers who have been removed by
the head of the department to which
they belonged, are of a general na-
ture and for public objects.
Ib.

PRACTICE-

See APPEAL.

PRINCIPAL AND AGENT-

Principals are bound by the con-
tract of their agent made with their
knowledge and authority, although
such agent is trustee of a trust con-
tained in a written instrument not
conferring such authority. Haven
Co. v. Carlisle.
716

The fact that owners of property
consented that the agent in charge
thereof, or the trustee above re-
ferred to, should use rents to pay

additional expense of improvements
amounts to an approval of the
agent's contract for such improve-
ments.
Ib.

See also HUSBAND AND WIFE.
PRINCIPAL AND SURETY-

See BILLS AND NOTES.
PROXIMATE CAUSE

See NEGLIGENCE.

PUBLIC FUNDS-

No provision having been made
under Secs. 3946, Rev. Stat. et seq.,
authorizing proceedings in the pro-
bate court for the creation of
special school districts out of terri-
tory within township, for a division
of the school funds, a special dis-
trict so set off and created May 12,
1898, is not entitled to any portion
of the funds held by. the township
board of education September 1,
1898, notwithstanding the same have
been raised for school purposes by
levies upon the property of the
whole township, including that
within the special school district.
State v. Board of Ed.
423

QUO WARRANTO-

See PARTIES.

RAILROADS-

Where the servant is not engaged
at work upon the track in such a
way as to have his attention drawn
from trains coming or going, but is
simply passing over the track, he
is obliged to exercise as nigh a de-
gree of care with respect to looking
and listening as any other person
lawfully or of right passing over
the track. Pennsylvania Co. v. Ma-
honey.
366

A railroad employe engaged in
operating a stationary engine and
dynamo situated on opposite sides
of a sidetrack, running through a
cut, and where cars are stored, is
within the rules above stated, and
in attempting to cross the railroad
track without looking or listening
for the approach of an engine, is
guilty of contributory negligence
which will defeat his recovery not-
withstanding the negligence of the
railroad company in failing to
sound bell or whistle.
Ib.

The fact that such employe once
looked and listened before attempt-
ing to cross the track will not excuse

him if, before crossing, he allowed
sufficient time to elapse for an en-
gine to come into position where it
would render it dangerous for him
to cross, and he then attempted to
cross without looking or listening.

Ib.

Where the circumstances disclose
contributory negligence, the matter
of excuse must be shown by the per-
son injured and the rule is not dif-
ferent where the person is deceased;
then it must be shown by the per-
son seeking recovery for the death.
Ib.

Evidence that it was the custom
of a railway company to give warn-
ing of the approach of trains or en-
gines at a point where employees
were obliged to cross in attending
to their duties, is competent to rebut
a possible inference of contributory
negligence; such custom might
come to have the force of a rule of
the company requiring such warn-
ing; and an employer relying
thereon might be excused from look-
ing or listening; under such circum-
stances it would not lie in the
mouth of the company to say that
an employee must be vigilant and
suspicious, and watch out all the
time for a violation of duty upon
the part of the company or some
employee of the company.
Ib.

The rule of law which excuses
passengers from the obligation to
observe a strict lookout for trains
and locomotives when alighting
from or getting upon trains over
the tracks of a railway company,
does not apply to employees whose
duties may require them to cross
the tracks in the yards or at the
depots of the railway company. Ib.

Notwithstanding the absence of
statutory regulations or require-
ments, a railroad company is re-
quired to exercise care proportion-
ate to the dangers at a place where
employees, in the discharge of their
duties, are required to cross the
railway tracks. Thus it is the duty
of a railway company operating a
side-track where cars are stored,
and where employees are frequently
obliged to cross between the cars, to
give warning of a purpose to move
such cars.
Ib.

Sections 3342 to 3346, inclusive,
Rev. Stat., making it the legal duty
of the constructors of railroads to
provide drainage for all waters that
accumulate along the roadbed by

RAILROADS-Continued.

reason of its construction except
where the roadbed is on or near
swamp lands, the object being to
prevent the creation of a public
nuisance by accumulated standing
and stagnant water in the first in-
stance, and failing that to summar-
ily abate it upon notice to the delin-
quent, at the expense of the party
creating or maintaining it, are not
inequitable or unconstitutional.
Said sections do not deprive a citi-
zen of his property without due pro-
cess of law. Chicago & Erie Rd.
Co. v. Keith.
208

When, after a railroad spur track
was constructed, with full knowl-
edge of the railroad company, and
maintained across a turnpike for
five years, the turnpike company
tore up the track, the railroad com-
pany will not be enjoined from re-
laying the track, and the turnpike
company, having tacitly acquiesced
in laying the track and having an
adequate remedy at law, may be
enjoined from tearing it up when
relaid. Bridge Co. v. Railway Co.
723

A reorganization of a railroad
company is the surrender of the
charter of the old company and the
issuance of a charter to the reor-
ganized company, and the old com-
pany ceases to exist save as to the
winding up of its affairs, and has
no longer any corporate existence
out of which it may earn an income.
King v. Railroad Co.
551

The word "construction," in Sec.
3284, Rev. Stat., providing that a
railroad company in the construc
tion of its roadbed may divert a
road or stream of water when neces-
sary, is not limited to the original
building of the railroad, but gives
the right to divert a road from its
location in making the change of
grade authorized by Sec. 3277, Rev.
Stat., to avoid annoyance to the
public and dangerous and difficult
curves or grades. Lorain Co. v.
Railway Co.

805

No judicial determination is
necessary to authorize railroad com-
panies to change grade to avoid
difficult or dangerous grades or
curves, under Sec. 3277, Rev. Stat.,
it being presumed that railroad
companies would not make such
expensive changes unless they were
necessary; but where it is necessary
to appropriate land for the purpose,

under Sec. 3278, Rev. Stat., proof
should be made and the court should
determine the necessity of the
change.
Ib.

See also JUDICIAL SALES; MORT
GAGES; NEGLIGENCE; STREET RAIL-
WAYS; APPROPRIATION; CHARGE
TO JURY.

RECEIVERS—

When the report of a receiver in
proceedings to dissolve a corpora-
tion is filed in court, as provided in
Sec. 5670, Rev. Stat., and proper ex-
ceptions are filed to such report, it
is error for the court to refuse to
hear such exceptions, unless the
parties excepting give bond to the
effect that in case said exceptions
are not finally sustained, they will
pay the costs of such hearing, as
well as legal interest upon the in-
debtedness of the corporation dur-
ing the time the confirmation of
said report of the receiver is thereby
delayed. Russell v. Insurance Assn.
82

REFORMATION OF INSTRUMENTS

Under the foregoing rule, the
court held, in an action to annul a
judgment on a note signed "The
Standard Furniture Company, W.
E. Snyder, Pres't; Lewis Heusner,
Secy. & Treas.," against the officers
individually, on the ground that
there was a mutual understanding
and agreement that the corporation
alone should be liable, where the
evidence was contradictory, an as-
sertion on one side and a denial on
the other, that no relief could be
granted. Snyder v. Bank.

623

To reform a written instrument
and obtain the relief prayed for, the
proof should be clear and satisfac
tory. It is not required to be be-
yond a reasonable doubt, but the
evidence must be such as satisfies
the court that there was a mutual
mistake in framing the written in-
strument.
Ib.

REPLEVIN-

An action in replevin, or an ac-
tion for damages where the property
is not taken, is not defeated by the
fact that defendant did not have
actual possession of the property at
the commencement of the action,
where it appears that the defendant
sold the property just previous to
the commencement of the action
and that plaintiff was ignorant of

that fact.

Tischler v. Seeley. 750
Where an action in replevin is
brought by the vendor under a con-
ditional sale contract, against a sub-
sequent mortgagee of the property,
a tender under Secs. 4155-3, Rev.
Stat., 82 O. L., 238, requiring re-
funder of money paid, is unneces-
sary.

SALARIES-

See FEES; STATUTES.

SALES-

Ib.

The word "shall" in the act of
April 14, 1900, Secs. 4029-1-2-3, Rev.
Stat., relating to the payment of
tuition of students attending high
school in townships other than that
in which they reside, does not make
the act mandatory, no provision be-
ing made for the levying of taxes to
meet such expense, and it being con-
trary to reason and the constitution
to require the payment of such ex-
pense from funds levied for the com-
mon schools, and especially in cases
where such depletion would impair
the usefulness of the latter. State
v. Board of Ed.
337

The act of April 14, 1900, amend-
ing Secs. 4029-1, Rev. Stat., et seq.,
and providing among other things
for the payment by the board of ed-
ucation of a township of the tuition
of pupils of that township attending
high school in the same or in an

adjoining county is directory and
Ib.
not mandatory.

The act 92 O. L., 683, to create a
school teachers' pension fund, in
cities of the third grade, first class,
and making it the duty of the proper
officers of the board of education to
deduct one per cent. of the salaries
paid to all teachers, and pay the
same into the city treasury to the
credit of the "school teachers' fund,"
is in conflict with Sec. 26, Art. 2,
of the constitution providing that
all laws of a general nature shall
have a uniform operation through-
out the state. State v. Hubbard.
87

The phrase paid to all teachers
in city districts of the third grade
of the first class” in act 92 O. L., 683,
relating to a teacher's pension fund
in Toledo, should be construed to
mean and to read "school districts
in cities of the third grade of the
first class," and limits the applica-
tion to that city.
Ib.

The common schools are recog-
nized and provided for in the consti-
tution of the state and are institu-
tions in which every community and
every citizen is interested. Laws
relating thereto are, therefore, of a
general nature.

Ib.