"This agreement, made and entered into this ninth day of June, 1903, by and between the Merchant's Premium Stamp Company of Columbus, Ohio, party of the first part, and Robert D. Jennings of Columbus, Ohio, party of the second part,

"Witnesseth:

"That the party of the first part hereby agrees to employ said second party for the period of two years, commencing on June 9, 1903, to work for said The Merchant's Premium Stamp Company, and to perform such duties as may be assigned to him or required of him by said party of the first part, for which services, said first party agrees to pay the sum of $20 per week, to said party of the second part, and also pay all the necessary expenses of said second party, which he shall expend for the benefit and welfare of said party of the first part.'

"In consideration of the above premises, the said second party hereby agrees that he will faithfully perform the duties assigned to him by said first party, and work solely in the interest of said The Merchant's Premium Stamp Company, in all matters relating to said employment, and to the best of his ability."

"It is further agreed by the parties hereto, that said party of the first part shall increase the salary of said party of the second part, whenever, in the opinion of said first party, the work of said second party merits such increase, or when the increase of business of said company, due to the labor and efforts of said second party, merits the

"It is further agreed by and between the parties hereto, that said. party of the first part, shall deduct from the salary and expenses of said second party, such proportion thereof, as corresponds to the time lost, by said party of the second part, without the fault of said party of the first part."

"It is further agreed by the parties hereto, that said party of the first part has the right and privilege to terminate the employment of said party of the second part at any time, if said party of the first part, ceases to do business, or if said business does not justify the further employment of said second party."

"It is further agreed by and between the parties hereto, that said Robert D. Jennings, party of the second part shall not engage in, or work for, any other premium stamp company, or any discount, coupon, or premium stamp concern, in any one of the cities, counties or states named as follows: Ohio, Indiana and Kentucky; and where said party

16 O. C. C. Vol. 27

Franklin County.

of the first part is now or hereafter shall be engaged in business, for the period of eighteen months after the employment of said party of the second part, by said party of the first part shall, for any reason whatsoever, cease."

"In witness whereof, the said parties hereto, have signed their names, at Columbus, Ohio, this day of June, 1903.

October 30, 1903, Bethel filed a petition in the common pleas court of Franklin county, alleging that pursuant to the above agreement Jennings entered his employment on June 9 and continued until October 8, 1903, "when said employment ceased;" that "during said employment defendant, Jennings, was instructed in all matters concerning plaintiff's said business, and became acquainted with most of plaintiff's merchants." Then follow allegations that Jennings has threatened to injure plaintiff's business, and has in violation of his agreement engaged in the premium stamp business in Columbus, etc.

Upon this petition Bethel obtained a temporary restraining order restraining Jennings "from performing any act or acts to injure plaintiff's business, and from engaging in, or working for, any premium stamp company or any discount, coupon or premium stamp concern within the state of Ohio, until the further order of this court." fendant demurred to the petition, but same was overruled.

De

A motion to dissolve said restraining order was then filed in behalf of Jennings, heard upon affidavits and a deposition of plaintiff, and overruled.

A motion for a new trial was also overruled, and the case came to this court upon a petition in error to reverse the said judgment of the common pleas court.

In our opinion the contract above quoted, is so harsh, and unconscionable that it ought not to be enforced by a court of equity, in behalf of Bethel.

It undertakes to bind Jennings for two years, but does not bind Bethel for more than a week. The discretion as to the termination of the arrangement is wholly with Bethel who may discharge Jennings without good cause (as is claimed in this case) and the latter not only has no redress, but is prohibited for eighteen months thereafter from

Jennings v. Bethel.

engaging in a similar business-no matter whether Bethel continues in that business or not. Paragon Oil Co. v. Familton, 5 Dec. 219 (5 N. P. 23).

The petition does not allege any incompetence or unfaithfulness on the part of Jennings, nor any cessation of, or decrease in, the business, such as would render the further employment of Jennings unnecessary or unprofitable; nor any reason whatever for his discharge.

We think, therefore, that the court erred in overruling the demurrer to the petition, in overruling the motion to dissolve the restraining order, and in overruling the motion for a new trial.

The judgment of the common pleas court will therefore be reversed, and the restraining order dissolved.

Wilson and Sullivan, JJ., concur.

PRINCIPAL AND AGENT-EXPRESS COMPANIES-EVIDENCE

-WAIVER.

[Hamilton (1st) Circuit Court, February 11, 1905.]

Jelke, Swing and Giffen, JJ.

ADAMS EXPRESS Co. v. W. M. GORDON.

1. CHARGE THAT FAILURE TO DEMAND ORIGINAL RECEIPT WAIVED CONDITION, ERROR In a suit to recover from an express company for money lost in transit, it is error to charge the jury that failure on the part of the company to demand the original receipt was a waiver of that condition, where no waiver had been pleaded.

2. REASONABLENESS OF RULE REQUIRING PRODUCTION OF ORIGINAL RECEIPT IS FOR THE JURY.

The reasonableness of a rule of an express company requiring that, in case of a claim being made for a package lost in transit, the original receipt must be produced within thirty days annexed to the notice of loss, is one for the jury to determine under all the circumstances of the case and proper instructions by the court.

ERROR to Hamilton common pleas court.

J. R. Schindel and Maxwell & Ramsey, for plaintiff in error:

The undisputed facts in this case establish that an agency existed for the receipt of express packages and the delivery to such agent discharged the carrier. Beattie v. Railway, 90 N. Y. 643; Tennessee River Transp. Co. v. Kavanaugh, 101 Ala. 1 [13 So. Rep. 283]; Barnett v. Gluting, 3 Ind. App. 415 [29 N. E. Rep. 154]; Angle v. Railway, 9 Iowa 487.

Validity of stipulation that claim should be presented within a certain time. Southern Exp. Co. v. Hunnicutt, 54 Miss. 566 [28 Am.

Hamilton County.

Rep. 385]; United States Exp. Co. v. Harris, 51 Ind. 127; Southern Exp. Co. v. Caldwell, 88 U. S. (21 Wall.) 264 [22 L. Ed. 556]; Sullivan v. Thompson, 99 Mass. 259.

Evidence of what occurred in former similar transaction is admissible to prove condition or knowledge, intent or motive, but not negligence; and for the former purposes only after instruction by the court as to the limit of admissibility. Circleville (City) v. Sohn, 11 Circ. Dec. 193 (20 R. 368); Brewing Co. v. Bauer, 50 Ohio St. 560 [35 N. E. Rep. 55; 40 Am. St. Rep. 686]. See also, Ragsdale v. Railway, 69 S. C. 429 [48 S. E. Rep. 466].

It is erroneous to give instructions to juries based on a state of facts which there is no evidence tending to prove. Blashfields, Instruc. to Juries Sec. 86; Locke v. Express, Wagon & Sleigh Co. 71 Mich. 263, 266 [39 N. W. Rep. 54]; Farlow v. Camp Point (Town), 186 Ill. 256 [57 N. E. Rep. 781]; Slingerland v. Keyser, 127 Mich. 7 [86 N. W. Rep. 390]; Donald v. State, 11 Circ. Dec. 483 (21 R. 124).

Upon the question of waiver. Iron Mountain Bank v. Armtsrong, 62 Mo. 70; Frederick v. Kinzer, 17 Neb. 366 [22 N. W. Rep. 770]. E. M. Ballard, for defendant in error.

GIFFEN, J.

This action was commenced to recover the value of a package containing $103 in money delivered to the express company at Chicago, Illinois, to be carried to Cincinnati and delivered to W. G. Howard.

The express company denies that it did not deliver the same, or that it was wholly lost to the plaintiff; and, as a second defense, pleads an agreement that it should in no event be liable for the loss of said money unless claim therefor should be made in writing at its office in Chicago within thirty days from the date of this agreement in a statement to which said agreement should be annexed.

Plaintiff by reply avers that he notified the company in writing of the loss of said money within the thirty days, but does not deny the averment that said agreement was not annexed to the notice. It must be taken as true, therefore, that the agreement containing the condition was not annexed to the notice of claim when made.

The court charged the jury that the failure to demand the original receipt would be a waiver on the part of the express company. We think this was error for the reason that no waiver was pleaded. Eureka Fire & Mar. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57].

This or like conditions in contracts with express companies has frequently been before the courts of other states, and its reasonableness doubted. But no such question was raised in this case, and if pre

Express Co. v. Gordon.

sented would be one for the jury to determine under all the circumstances and under proper instructions from the court.

The evidence shows that the package was received by a young lady in the office of Mr. Howard; that she had been accustomed to receive, without objection from Mr. Howard, deadhead packages containing rate sheets and other papers of no intrinsic value; but there is no testimony tending to prove that she had any actual or implied authority to receipt for packages of value. There was no error in admitting testimony concerning the refusal of this company to deliver a like package to one other than the consignee at a different time and in a different office, for the reason that the court limited it to the proof of a course of dealing between the parties.

That part of the charge on pages 32 and 33 of the bill of exceptions, where the court speaks of the company being misled by the habit or custom, is most favorable to the express company, and could not have been prejudicial.

For error in charging the jury that the failure to demand the original receipt would be a waiver when none was pleaded, the judgment will be reversed and cause remanded for new trial.

Jelke and Swing, JJ., concur.

DITCHES-ASSESSMENTS-CONSTITUTIONAL LAW.

[Madison (2nd) Circuit Court, March 25, 1905.]

Dustin, Wilson and Sullivan, JJ.

EUGENIA CRAWFORD V. B. A. TAYLOR, AUD., ET AL.

1. EXTENT OF DITCH IMPROVEMENT AND ASSESSMENT LEFT LARGELY TO JUDGMENT OF AUTHORITIES IN CHarge.

The extent of a ditch improvement and the consequent amount of the assessment to pay the cost thereof, must, to a great extent, be left to the judgment of the authorities who have the matter in charge; and a court of equity will, in such cases, be slow in restraining their action. 2. SECTION 3 OF ACT 95 O. L. 155 (LAN. R. L. 7834; B. 4584-3), UNCONSTITUTIONAL. Section 3 of the act 95 O. L. 155 (Lan. R. L. 7834; B. 4584-3), providing for the cleaning out of ditches, is unconstitutional, because it is administrative, and not legislative, in character, in that the "necessity" for the improvement is determined by the legislature, no provision being made in said act for determining such question by any authorized officer or board. Said section is also unconstitutional because it unjustly discriminates between different applicants for such improvement with respect to costs.

APPEAL from Madison common pleas court.

Michael Murray, for plaintiff.

T. J. Duncan, for defendant.