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contract remained with the defendant during | ery company, but it was never indorsed, deall the time it was insisting upon perform-livered, or tendered unconditionally to the ance. If the manager of the defendant could brick company, as was done with the bill of not, for the reason assigned, read this con- lading for the dry pan. This merchandise tract at the time he executed the same on be- was not delivered f. o. b. cars at Bucyrus, or half of the defendant, he could have read it, Willoughby, or factory where made, for shipand should have read it within a much ment to the brick company at Coal Grove, shorter time thereafter than the date of the but was delivered to the common carrier for last demand by the defendant that plaintiff shipment to the machinery company at Coal fully comply therewith. Grove. The delivery to the common carrier was not actual or constructive delivery to the purchaser. There was no time in the history of this transaction when the machinery company parted with the possession or right of possession of this machinery, nor was there a time when the brick company had a right to demand or require the common carrier to deliver this machinery to it.

In the absence of an action to reform for mutual mistake or to rescind the contract for fraud on the part of plaintiff, the terms of this contract must fix the rights and liabilities of both parties thereto.

[1-4] That this contract is indivisible except by subsequent agreement of the parties is too plain for dispute. The delivery of part of the merchandise agreed to be delivered by the plaintiff is not a compliance with the contract, and, nothing else appearing, would not authorize plaintiff to recover the value of any part of the merchandise furnished substantially less than named in the

contract.

The petition avers that the defendant company is a corporation, with its office and place of business located at Coal Grove, Lawrence county, Ohio. This contract does not provide for any conditions precedent to the delivery of this machinery, yet the defendant in error, instead of making delivery as contemplated in the contract, shipped the goods in its own name to Coal Grove, and sent the bill of lading with four unsigned promissory notes to evidence the purchase price thereof to the First National Bank of Ironton, Ohio, and notified the defendant, as a condition precedent to its receiving this bill of lading, that its officers must travel to Ironton, Ohio, and there execute these notes

It is therefore important to determine: First, whether plaintiff performed the conditions and covenants of the contract on its part to be performed, or, if it did not, was its failure to do so justified by the conduct of the defendant? This machinery was to be furnished within a time certain named in the contract. It is claimed that this provision as to the time of shipment was waived by the and deliver them to the bank at Ironton, and defendant. Upon this question there is a conflict of evidence, and therefore the judg- upon that condition, and not otherwise, the ment of the common pleas court in that be- bank would deliver to the defendant the bill half will not be disturbed by this court. Up-dence offered by the machinery company in of lading. These facts appear from the evion the question of the delivery, however, the facts are not in dispute. On this subject there is no conflict in the evidence whatever, and It becomes solely a question of law whether delivery was made or tendered at any time before the bringing of this action to recover the purchase price.

support of the averment of its petition that This was not a compliance with the terms it delivered the property to the purchaser. of this contract. It was not the delivery contemplated in the contract. It was merely a conditional tender of delivery, and a condition that the machinery company had no The contract provides for the delivery 1. o. right to impose. It was demanding payment b. cars Bucyrus or Willoughby, Ohio, or fac- in advance, while the fair construction of tory where made, for shipment to the de- the contract is that the merchandise shall be fendant at Coal Grove, Lawrence county, delivered at one of the points named to a Ohio. The dry pan that was shipped on the common carrier for shipment to the brick 8th day of May was not consigned to the company, and that the brick company shall brick company. The bill of lading was taken thereupon pay $600 30 days after the arin the name of the machinery company, in- rival of the machinery on cars at Coal Grove, dorsed by it, and mailed to the brick com- Ohio, and the balance in three equal paypany at Coal Grove, Ohio. This was not a ments, due in 4, 8, and 12 months from date serious departure from the provisions of the of bill of lading, bankable notes, bearing legal contract. It worked no inconvenience to the rate of interest, to be given for deferred paydefendant. Even if it did, the purchaser ac- ments, bearing the same date as bill of ladcepted it without protest or complaint as to ing. Applying to this transaction the same the manner of delivery. If the shipment of rule that would apply to a cash sale, under the dry-press machine and the agitating clay the provisions of this contract, payment befeeder had been so made, then, if the time of fore delivery could not be demanded, nor delivery was, in fact, waived, there would could the purchaser be required to travel to have been a substantial, if not a literal, com- Ironton and there make payment to the bank pliance with the terms of the contract. When either before or after delivery. The fact this second shipment was made the bill of that Ironton is not many miles distant from lading was taken in the name of the machin- Coal Grove is not important. The petition

avers that the purchaser's place of business The burden is on the plaintiff to show comis Coal Grove, Ohio. It follows that, if the pliance on its part. Defendant did refuse to seller could demand that payment be made execute and deliver these notes to the bank at Ironton, it could have demanded that pay-at Ironton. In its letter of August 22, 1906, ment be made in Columbus, Cincinnati, or in reply to the letter of the machinery comNew York. The brick company had the full pany under date of August 21, 1906, it used legal right to refuse any delivery other than this language: the delivery provided for in the contract itself. The machinery company had no right to demand performance of any conditions precedent to delivery other than provided in the contract.

In answer to this contention made by counsel on behalf of the plaintiff in error, counsel for defendant in error call our attention to paragraph 6 of the contract, in which paragraph it is agreed that the title to the material and machinery furnished shall remain in the machinery company until the full purchase price is paid, and insist that it is of no importance whether the machinery was delivered to the common carrier consigned to the brick company or consigned to the machinery company, as the machinery company had by the terms of the contract reserved to itself the ownership of this property. But with this contention we cannot agree. The brick company was to have possession at least of this property, and the possession of the property was never delivered to it, either in the manner provided for in the contract or in any other manner. On the contrary, delivery of possession was tendered to the brick company at a place and under circumstances not contemplated in the contract and upon its doing and performing certain things prior to the delivery that the contract did not require it to do.

It is also insisted that delivery was complete under the contract when the machinery was placed on cars at Bucyrus or Willoughby ready for shipment. That would have been true had the goods been consigned to the purchaser as the contract provided; but, even if that had been done, under no possible construction of this contract would the pur chaser have been required to travel to Bucyrus or Willoughby to deliver these notes before or even at the time of the consignment. A fair construction of the contract is that the notes were to be delivered at Coal Grove, Ohio, or mailed from Coal Grove, Ohio, upon the arrival of the machinery there subject to the purchaser's order, or at the very earliest, after they had been delivered to the common carrier unconditionally, consigned to the pur

chaser.

It is also urged that the brick company made no objection to the manner of shipment or to the demand that it should execute these notes and deliver them to the bank at Ironton and there receive the transfer of the bill of lading, but that defendant's objection was based solely upon a claim it made for damages, and which it insisted must be allowed before it would receive the property. We do not consider this of any importance

"We decline to accept the machinery upon the terms you state, and you had just as well order the machinery back.'

If there was any reason why it had a right to refuse to accept the terms of de livery then proposed by the machinery company, that reason is now available to it. If it were willing to comply with the conditions proposed by the machinery company upon the condition that certain allowances be made it, it had the right to make such a proposition, but there is nothing in all this correspondence or any of this evidence that shows any waiver as to the manner and method of delivery provided in the contract itself. The machinery company cannot claim that it was misled by the conduct of the defendant; for the account, dated August 31, 1906, was disapproved and returned to it. An explanation was demanded. The brick company answered:

"The reason your statement is not correct is that we never received the machinery up to this date and not according to contract."

It is very evident from the record that they were then dealing at arm's length, and there appears absolutely nothing to show that either was induced by the other to depart from the express terms of the contract

itself.

Not only does it appear from this contract that the machinery company had no right to demand the execution and delivery of these notes prior to the delivery of this machinery to a common carrier consigned to the brick company, or at a place other than the defendant's place of business, but it also appears that by the terms of this contract the purchaser was not required to give a note for the first $600 payment to be made in 30 days. It is true that the contract provides that notes shall be given for deferred payments. It is also true that a payment to be made in 30 days is, in the absence of language expressing a contrary intention, a de ferred payment, but it is very clear from the terms of the contract that it was not so considered by the parties, and not intended to be evidenced by any promissory note whatever, but was, in fact, reckoned as a cash payment, and those payments that were to be deferred for 4, 8, and 12 months were considered the deferred payments within the meaning and intent of the contract. This is made to appear from the fact that this $600 was to be paid in 30 days after the arrival of machinery on cars at Coal Grove, Ohio, while the notes that were to be given for the deferred payments should bear the same date as the bill of lading, even though the goods were

In the absence of a subsequent agreement waiving the actual delivery of the balance of these goods or authorizing the defendant to retake them after delivery and credit the contract price with the value of the goods so retaken, the rights of the defendant in error as owner of this dry pan must be asserted in some other way than by an action predicated upon the contract to recover the portion of the contract price represented by its value.

The judgment of the circuit court affirming the judgment of the common pleas court on the first cause of action is reversed, and the judgment of the common pleas court on the first cause of action is reversed, and judgment here rendered for plaintiff in error on the first cause of action. The judgment of the circuit court affirming the judgment of the common pleas court on the second cause of action is affirmed.

ment of the $600 that was to be made in 30 | perform the terms of the contract on his part days was intended to be included as one of to be performed. the deferred payments, for which a note was to be given, then that note would be required under the language of the contract to bear the date of the bill of lading, notwithstanding the further terms of the contract provided for the reckoning of this 30 days from the date of the arrival of the machinery on cars at Coal Grove: A note for 30 days bearing the same date as the bill of lading would not allow the purchaser 30 days in which to pay the same after the arrival of the machinery on cars at Coal Grove. In fact, under some circumstances of extraordinary delay occasioned by disastrous floods or other destructive agencies, the larger portion or the whole of the 30 days might expire between the date of the bill of lading and the arrival of the shipment at its place of destination. It is clearly evident that this contract distinguishes between this $600 to be paid in 30 days and these payments to be made in 4, 8, and 12 months, and it is equally evident that it was not intended that any note should be given therefor, or that this payment should bear any interest whatever; otherwise the contract would not have fixed a different date from which to reckon the time of payment of this particular sum. Upon this construction of the contract the machinery company had no right to demand a note for this $600 prior to the delivery of the machinery sold.

It is averred in the petition that the plaintiff took back this dry-press brick machine and agitating clay feeder from defendant at its request and credited the defendant with the sum of $1,600 on the full contract price. There is no evidence whatever in support of this averment except the refusal of the defendant to accept delivery and to comply with the conditions precedent imposed by the plaintiff to a delivery of this machinery. Under the terms of this contract the plaintiff, upon default in payment, was entitled to take this machinery, but it was not entitled to take part and leave part. In the absence of an agreement to that effect, it was not authorized to divide this contract and leave the dry pan with the defendant at a price fixed by it and retake the dry-press brick machine and agitating clay feeder, crediting an amount, also fixed by plaintiff, as the value of these two articles.

By the express terms of this contract de fendant in error is still the owner of this dry pan. If it had fully performed the conditions of this contract, it would have the right to sue for the contract price, notwithstanding the provisions of the contract that it is to remain the owner of this property until the purchase price is fully paid, but a court can afford no relief to a plaintiff in a suit to recover upon a contract when it appears that the plaintiff did not substantially

NICHOLS, C. J., and SHAUCK, NEWMAN, and WILKIN, JJ., concur.

(89 Ohio St. 265)

MAPLE v. HISER.

CITY OF NEWARK v. DOLD.
(Nos. 13716, 14014.)

(Supreme Court of Ohio. Jan. 20, 1914.)

(Syllabus by the Court.) INTOXICATING LIQUORS (§ 10*)-REGULATION -MUNICIPAL ORDINANCE-POLICE POWERVALIDITY OF STATUTE.

An ordinance of a municipality making it unlawful to sell, furnish, or give away intoxicating liquors as a beverage in a room having its principal door or place of entrance on an alley or in a room not fronting upon a street is a reasonable regulation, within the police power of violates no constitutional provision. a municipality delegated to it by the state, and

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 7-12; Dec. Dig. § 10.*]

Error to Circuit Court, Coshocton County
Error to Circuit Court, Licking County.

Two cases, one a proceeding in habeas corpus by George Hiser against one Maple, the other a case wherein Robert Dold was convicted of violating an ordinance of the city of Newark. From a judgment that Hiser

be discharged, Maple brings error, and, from a judgment of the circuit court reversing the judgment of conviction against Dold, the city. of Newark brings error. Judgments re

versed.

Maple v. Hiser: C. B. Hunt and J. C. Adams, City Sol., both of Coshocton, for plaintiff in error Maple. James Glenn, of Coshocton, for defendant in error Hiser.

City of Newark v. Dold: Roderic Jones, City Sol., of Newark, for plaintiff in error City of Newark. C. D. Saviers, of Columbus, and Fulton & Fulton, of Newark, for defendant in error Dold.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

PER CURIAM. In these cases the con- | void, and reversed the judgment of the maystitutionality of a provision of a city ordi- or. The city of Newark has filed a petition nance is involved. The provisions in question are substantially identical, and the two cases are therefore considered together. The prosecutions were had in 1912.

In the case first entitled, George Hiser was arrested by the chief of police of the city of Coshocton under a warrant charging him with violating section 3 of an ordinance of said city, entitled:

"An ordinance to regulate the sale, furnishing or giving away of intoxicating liquors as a beverage, and the places wherein the same are sold, furnished or given away in the city of Coshocton, Ohio."

Section 3 is as follows:

"It shall be unlawful for any person to sell, furnish or give away intoxicating liquors as a beverage in any place in said city other than a room fronting upon a street in said city: Provided, further, that in all cases of the sale, furnishing or giving away of intoxicating liquors as a beverage in a recognized hotel, it shall be a sufficient compliance with this section if the place where the said liquor is sold, furnished or given away opens into a lobby which is at all times open to the public."

in this court, asking a reversal of the judgment of the circuit court and an affirmance of the judgment of the mayor.

Under the Constitution, the General Assembly is given authority to provide against all evils resulting from trafficking in intoxicating liquors, and under section 6137, General Code, every municipal corporation has full power to regulate the selling, furnishing, or giving away of intoxicating liquor as a beverage and the places where such intoxicating liquor is sold, furnished, or given away as a beverage. By this provision the Legislature has delegated to the municipalities police power to regulate places where intoxicating liquor is sold.

'The ordinances under consideration here provide against the evils resulting from the establishment of saloons in any place in the city other than a room fronting upon the street and the establishment of saloons in a room having its principal door or place of entrance on an alley. This is a reasonable regulation, is within the exercise of the police power delegated by the state to the municipal

The penalty for the violation of this section is fixed by section 9 of the ordinance. Hiser was arraigned and pleaded not guility, and is not in contravention of any of

ty, was ordered to give a bond in the sum of $200, and his case assigned for trial. Hiser refused to comply with the order of the mayor and was held in the city prison because of his refusal to give bail. He thereupon filed a proceeding in habeas corpus in the circuit Court of Coshocton county, and upon the hearing of the case in that court it was found that he was unlawfully imprisoned and detained by the chief of police of the city of Coshocton. The court ordered his discharge, and a petition is filed in this court asking for a reversal of the judgment of the circuit court.

In the other case, the City of Newark v. Robert Dold, it appears from the record that Dold was arrested, tried, and convicted under an ordinance of the city of Newark to regulate ale, beer, and porter shops and the sale of intoxicating liquors as a beverage, under which ordinance it was provided, among other things, that it shall be unlawful, and the same is declared a misdemeanor, "for any person, firm or corporation to keep or own any ale, beer, porter shop or other place of whatever description for the sale of intoxicating liquors as a beverage in any room which has its principal door or place of entrance on an alley."

the provisions of the Constitution. The circuit court, therefore, erred in holding these

ordinances invalid.

[blocks in formation]

(89 Ohio St. 240) (No. 13606.) Jan. 13, 1914.)

--

(Syllabus by the Court.) PARTNERSHIP (§ 296*) ACTIONS ASSIGNMENT OF INTEREST TO COPARTNER. When upon a written contract executed by two or more vendors, copartners, for the future sale and delivery of merchandise there is indorsed the undertaking of a stranger to become an action cannot be maintained upon such unsurety for the vendee named in the contract, dertaking by a part of the vendors so named to whom one or more of them had, before acceptance or the time for performance, assigned their interest in the contract and in the property which was its subject, thereby causing a dissolution of the copartnership.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 662, 663, 666-678; Dec. Dig. 296.*]

Dold was ordered by the mayor to pay a fine and costs of prosecution and to abandon the saloon within 30 days. A petition in error was filed in the circuit court, asking for a reversal of the judgment of the mayor. There were several assignments of error. The court found that the ordinance, for the violation of which Dold had been arrested, was and is invalid and of no legal effect and

Error to Circuit Court, Franklin County. Action by Walter E. Albery and another against Samuel L. Black and another. A

judgment of the common pleas overruling | business as partners under the name of the defendant Black's demurrer to the petition Groveport Creamery Company, of the first was affirmed by the circuit court, and he part, and Thompson of the second part. It brings error. Reversed, and demurrer to petition sustained. Walter E. Albery and Reno P. Sagar brought suit in the court of common pleas against Samuel L. Black and Ned A. Thompson, alleging that on the 26th day of March, 1908, the plaintiffs and one L. B. Condit were partners transacting business at Groveport, Ohio, as the Groveport Creamery Company; that the defendant Thompson was doing business as the Thompson Creamery Company; that upon said day said Albery, Sagar, and Condit, as parties of the first part, and said Thompson, as party of the second part, entered into a contract, whereby the parties of the first part agreed to furnish to the party of the second part for one year beginning April 1, 1908, the entire output of their creamery, and he agreed to pay for the same at prices named in the contract.

They further allege full performance on their part and a failure of Thompson to pay for a large part of the products so delivered to him, annexing to their petition an account of the items so delivered, but not paid for. A recovery was sought against Thompson for failure to perform his agreement aforesaid, and against Black, as surety for him; Black's undertaking being indorsed upon the contract between the principal parties, and being in the terms following, to wit:

was by writing indorsed upon that contract that Black assumed, or proposed to assume, the liability of surety for Thompson, and his undertaking was to the parties of the first part therein. It is further alleged that after the making of the contract, but before April 1st, when by its terms its execution was to commence, and before any credit had been given to Thompson in reliance upon Black's undertaking as surety for him, Condit assigned to Albery and Sagar his entire interest in the property and business of the firm, including his interest in the contract. The suit is brought by Albery and Sagar, and their petition not only admits the dissolution of the firm by the assignment of Condit's interest, but counts upon it as dispensing with the necessity for his joining in the action. The essential theory of the case presented by the original plaintiffs, therefore, is that in a contract of suretyship without the surety's consent a substantial change has been effectively made in the parties adversary to him. In view of the ancient character and frequently recurring relation of surety, it is quite natural that in the reported cases are found many elementary principles of the law relating to the liability of sureties and the cases illustrating and applying them, from which tests of the soundness of this view may be derived. The rules by which the surety's liability is determined have regard to the fact that usually he derives no

"For value received I bind myself as surety for the faithful performance of the above contract by and on the part of said N. A. Thomp-benefit from the transaction, and he is bound

son.

The petition further alleges that after the making of said contract, but before the 1st day of April, when it was to become operative, Condit sold and transferred to the plaintiffs his entire interest in the property and business of the Groveport Creamery Company. Black demurred generally to the petition, and his demurrer was overruled. After issues of fact joined, there was a trial and judgment against both Thompson and Black. Thompson does not here complain of the judgment against him. Black filed a petition in error in the circuit court, his principal assignment of error being the overruling of his demurrer to the petition. The circuit court affirmed the judgment of the court of common pleas.

only because he has agreed to become bound; there being present no fact which would tend to raise an implied obligation. It is required that his undertaking be in writing. Since he is bound only because he has agreed to be bound, it logically results that he is bound only as he has agreed to be bound. From these and other like considerations there have been formulated and approved certain suggestive precepts respecting the surety's obligation. The surety is the favorite of the law; the surety is entitled to stand upon the letter of his obligation; the surety's defense is complete whenever he may say: "Into this contract I did not enter." It is a subject of frequent observation that the differences between opposing counsel do not relate to the soundness of legal propositions so much as their applicability to the case under consideration. Many of the propositions made and the authorities cited in the briefs for the defendants in error may be disposed of by excluding from consideration SHAUCK, J. (after stating the facts as attributes which do not belong to the present above). The ground upon which Black chal-case. It is not a case for recovery upon the lenges the validity of the judgment against assignment of a claim which had accrued him is brought into plain view by his demurrer to the petition. It is alleged in the petition that the original contract was executed between Albery, Sagar, and Condit, doing

John R. Horst, of Columbus, for plaintiff in error. Chapin B. Beem and R. S. Swepston, both of Columbus, for defendants in

error.

upon a contract executed before its assignment. It does not concern the meaning of the terms used in a contract of suretyship into which the parties to the suit have con

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