is then employed, or in case he is unem It is urged for plaintiff in error that its ployed at the time of the institute, then language is vague and uncertain, and so by the board next employing said teacher, much so, that it is not susceptible of leaprovided the term of said employment begins sonable interpretation, and therefore furwithin three months after said institute clos nishes no authority to the board of educaes.” This section is a part of our school laws, tion to make the allowance to the teachers and should be construed with reference to complained of in the petition. That is tlie the part it is to perform in the common equivalent of asserting that that part of school system of the state. At first the pro the section is void for uncertainty. This vision was not so broad, for we find that in view does not meet with our approval. It section 117 of the act entitled, "An act for the is true that the provision is imperfectly and reorganization and maintenance of common even bunglingly drawn, and exhibits neg'ischools,” passed May 1, 1873, the General gence, and, perhaps, ignorance in its phraseAssembly said that “any teacher in any pub- ology, but these marks should not defeat the lic school is hereby authorized to dismiss

operation of the statute, if we can, by the the school under his or her charge for the

fair use of its language, arrive at the true week in which is held the county teachers' legislative purpose. There are conírainstitute, for the purpose of attending the

dictory or conflicting terms used, and the same, and such teacher shall not forfeit his

omission of clearer words, even relating to or her pay for such week; provided, such

substantial matters, will not render the proteacher shall deposit with the clerk of the

vision void or invalid. It is the duty of the board a certificate from the secretary of the

court when called upon to deal with the institute that he or she has been pres

legislation of a co-ordinate department of ent at such institute for not less than four

our government, to so construe a statute, if days; * * " See 70 Ohio Laws, p. 227.

possible, as to give it a sensible effect, and With some changes in phraseology pertain

make it of binding force. A statute cannot ing to school districts like the one here, this

be held void for uncertainty, if any reasonsection was carried into the revision of our

able and practicable construction can be statutes in 1880 as section 4091.

given to its language. Mere difficulty in asIt is not important to search out what, if

certaining its meaning, or the fact that it any, changes were made on this subject after

is susceptible of different interpretations, the revision and prior to the present School

will not render it nugatory. Doubts as to Code enacted April 25, 1904. The section

its proper construction will not justify us in under consideration is part of that Code, and

disregarding it. It is the bounden duty of it is sufficient to say that it was clearly the

courts to endeavor by every rule of conpurpose of the present provision to enlarge

struction to ascertain the meaning of, and the former and extend its benefits to other classes of teachers, who are not in charge

give full force and effect to, every enact

ment of the General Assembly not obnoxious of schools when the institute is being held.

to constitutional prohibition. This proposiAs to such teachers who dismiss schools

tion is advanced and upheld in Pennsylvania that are in session, they not only do not forfeit their pay for such week, as provided in

Co. v. State, 142 Ind. 428–434, 41 N. E. 937; the former law, but in such cases the boards

St. Louis Dalles Improvement Co. v. Nelare required to pay them their regular salary

son Lumber Co., 43 Minn. 130_132, 44 N. for the week they attend the institute. But

W. 1080; Lewis' Sutherland Statutory Conthe present law goes further and attempts,

struction, vol. 1, § 86. "But if, after exat least, to provide for certain other teachers. hausting every rule of construction, no sensiwho are not in charge of schools while the

ble meaning can be given to the statute, or, institute is being held, and this requires a

if it is so incomplete that it cannot be car

ried into effect, it must be pronounced inconsideration of the latter part of the section, which reads: "The same to be paid

operative." This court has often applied

similar rules. See Lessee of Cochrans' Heirs as an addition to the first month's salary after said institute by the board of educa

v. Loring, 17 Ohio, 409; State ex rel. v. Comtion by which said teacher is then employed,

missioners, 35 Ohio St. 458, where it is

held that an act will not be declared void or in case he is unemployed at the time of the institute, then by the board next employ

for uncertainty, if by resort to the recognized ing said teacher, provided the term of said

aids in the construction of statutes, it is employment begins within three months after

possible to ascertain its meaning. And in said institute closes." In the case at bar,

Gordon v. State, 46 Ohio St. 607-627, 23 N. the teachers of the Bowling Green school dis E. 63, 6 L. R. A. 749, it is said that uncertrict had been employed for the ensuing

tainty will not render a statute void if posschool year, prior to the meeting of the in sible of execution. stitute, which was held from the 20th tr Guided by these rules, we must determine, the 25th of August. But the schools were

if possible, what the provision contained in not then in session, and their terms did not the latter part of section 4091 means. We begin until the first Monday in September think the task is not difficult of performance. thereafter. Therefore, their case is govern In the first part, where the teachers dismiss ed, if at all, by that part of the section last their schools for one week for the purpose of quoted.

attending an institute, and they do attend

read and considered together, and it was to promote the thoroughness and efficiency of the teachers in our schools, and through them the successful advancement of the schools themselves.

The case was properly decided by the circuit court, and its judgment is affirmed.

Judgment affirmed.

SHAUCK, C. J., and CREW, SUMMERS, SPEAR, and DAVIS, JJ., concur.

such institute during that week, the boards of education are required to pay the teachers their regular salary for the week upon presentation of the proper certificate of their attendance at the institute. In other words, the salaries continue during that week. Then it is said: “The same to be paid as an addition to the first month's salary after said institute by the board of education by which said teacher is then employed, or, in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes." "The same to be paid;" that is, salary at the same rate is to be paid for the institute week to the teachers who then are under employment for the ensuing school year, that they will receive after service under such employment begins, and this rate of salary is to be paid as an addition to the first month's salary after the institute closes. Or, to put it in other words, the teacher shall be paid for the week spent at the institute on the basis of the salary agreed upon for teaching in the schools thereafter, and this shall be paid as an addition to the first month's salary earned after said institute.

There can be no difficulty in ascertaining the amount to be paid in the present case, be. cause the teachers, prior to the holding of the institute, had been employed for the ensuing school year, and, of course, the terms of compensation had been agreed upon. This being the evident purpose of the Legislature attempted to be expressed in the language quoted, there can be no difficulty in its enforcement. The same observation applies to the payment of the teachers for the institute week of 1904. The facts for that year are the same that pertain to 1905, for that was the first time the law became applicable in that district after its passage. The same construction of language will control cases where a teacher is not under employment at the time the institute is held. In his case, he is to be paid by the board next employing him after such institute, provided the term of said employment begins within three months after such institute closes. When he so becomes employed, his rate of compensation is fixed, and on presentation of the proper certificate, showing that he had attended the preceding institute for a week, his compensation for that week is ascertainable and his right to receive it complete, if his term of employment begins within three months after said institute closes. It seems the board of education, defendant in error, readily and easily comprehended this statute, and was proceeding to comply with it, when a doubting Thomas appealed to the court to prevent it. We have nothing to do with the expediency of the law, but it is our duty to enforce it if it is susceptible of enforcement, and it certainly is. The motive and intent of the Legislature is discernible in the language employed when the whole section is

78 N.E.-64


CO. v. CONSUMERS' CARBON CO. (Supreme Court of Ohio. Oct. 16, 1906.) 1. SALE-FAILURE TO DELIVER-DAMAGES.

In an action to recover damages for failure of the vendor to deliver machinery according to the terms of his contract it is proper to allege that the machinery was intended to be used in a manufacturing plant in process of erection, and that the vendor was so informed ; such facts making it appear that the loss of the use of the plant was, within the contemplation of the parties, an injury to result from a breach of the contract by the vendor, and, therefore, a proper element of recovery.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, § 1196.] 2. SAVE-WARRANTY.

When, in a contract for the sale of machinery, its power and capacity are expressly described, there is no implied warranty that it will be adequate to the purpose for which it is to be used, though that purpose is known by the vendor at the time of making the contract.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, § 760.)

(Syllabus by the Court.) Error to Circuit Court, Fairfield County.

Action by the Cleveland Punch & Shear Works Company against the Consumers' Carbon Company. Judgment for defendant on its cross-petition was affirmed in the circuit court, and plaintiff brings error. Reversed.

Plaintiff in error is a corporation engaged in the manufacturing of machinery at Cleveland, and the defendant is a corporation formed for the purpose of manufacturing at Lancaster carbons such as are used in arc electric lights. The contractual relations of the parties out of which the present controversy arose were founded upon the following proposition made by the plaintiff and accepted by the defendant: "Cleveland, Ohio, August 25, 1900. The Consumers' Carbon Co., Lancaster, Ohio-Gentlemen: We propose to furnish you three of our Hydraulic Upright Mold Presses, as shown in our blue prints, which you now have, for $850.00 each, making the item of presses $2,550.00, and one of our Six Plunger Horizontal Pumps, as shown on blue prints which you have, $975.00, and one Accumulator of capacity of power and dimensions to take care of this set of pumps, for $385.00, making a total of $3,910.00. We are to complete the entire above-mentioned machinery ready for shipment in three months. Two of three

presses (together with the Pumps and AC operated, and the plaintiff professed to be cumulators) we agree to have ready in able to manufacture and supply such maseventy-five days; the Accumulator, Pump chinery to defendant for said purpose, and and one Press in sixty days. We guarantee said written agreement was thereupon made the above machinery to have capacity to between said parties; the plaintiff at the make 336 impressions per hour on each press, time knowing that defendant's said plant was and of ample strength to stand the pressure dependent upon the furnishing of said maof 6,000 pounds per square inch. It is un chinery to be put in operation. And plainderstood that the effective strokes of these tiff, professing to comply with said agreepresses is to be one inch. Terms of payment ment, sent certain items of machinery to deto be one-half of the total amount upon re fendant, which it represented to defendant ceipt of the machinery, and the balance in would comply with said terms, viz., three 60 days thereafter. It is understand that presses, one pump, and one accumulator; and this proposition is accepted, and thanking defendant, relying upon plaintiff's representayou for the same, we remain,” etc. The de tions, placed the same in position and underfendant had previously informed the plaintiff took to operate the same, and expended large that it was engaged in the erection of a large sums of money in such attempts; but in fact plant for the prosecution of the business for said machinery was wholly unfit for said which it was formed, and had solicited prop purpose, and worthless; said pump was wholositions to furnish the machinery which it ly ineffective and was not made according to required.

said blue print; said accumulator was likeAfter the acceptance of the plaintiff's prop

wise unfit for said purpose, and was of imosition, the machinery was sent to the de- perfect

perfect material and manufacture; said fendant and received by it, and the sum of machinery did not have the capacity to make $2,000 was paid on the contract price before 336 impressions per hour on each press, nor there was an opportunity to test the machin half that number, and was not of ample ery. A dispute having arisen as to the qual strength to stand the pressure of 6,000 pounds ity of the machinery and its compliance with per square inch, and said accumulator was the contract, the defendant refused payment not of capacity of power and dimensions to of the balance of the purchase price and suit take care of said pumps. And defendant was brought by the plaintiff. The first cause was put to great expense of time and labor of action counted upon the accepted proposal, and money in setting up said machinery, and alleged generally and specifically compliance fully testing the same, and was induced by by the plaintiff and the failure of the de plaintiff's representations aforesaid to pay fendant to pay the balance of $1,910. There

and did pay the sum of $2,000 to plaintiff was a second cause of action which needs upon the price of the same before said manot to be stated, as it gives rise to no ques

chinery was thus tested, and by the failure tion which is of present importance. Plead of said machinery, as aforesaid, defendant's ing to the first cause of action, the defendant

said plant could not be fully operated, and admitted the making of the contract, the de

defendant lost in large part the use and livery of the machinery, and the payment of

service thereof; all to the injury of this de$2,000, as alleged in the petition, but denied

fendant in the sum of $20,000, for which as that the machinery was of the quality, power,

damages the defendant now prays judgment or capacity required by the contract; and against said plaintiff.” further alleged that it was unfit for use, and

The plaintiff moved the court to strike from that the payment had been made before the the cross-petition the following allegations: defendant could test the machinery, and be

"First. The defendant was engaged in confore it was advised of its worthless charac structing and equipping a factory designed ter. By way of cross-petition, the defendant for the manufacture of carbons such as are made the following allegations: “At the date

used in arc electric lights, and was investing of the agreement named in the petition and a large amount of capital in grounds and evidenced by Exhibit A, the defendant was buildings and the purchase of suitable maengaged in constructing and equipping a fac chinery for said purpose, and had employed tory designed for the manufacture of car at large expense a sufficient number of expert bons such as are used in arc electric lights, operatives, and also a clerical force necessary and was investing a large amount of capital to conducting said business of manufacturing in grounds and buildings and the purchase and selling said carbons in large quantities, of suitable machinery for said purpose, and all of which was at the time well known to had employed at large expense a sufficient the plaintiff. Second. And at said time the number of expert operatives, and also a defendant further required certain presses, clerical force necessary to conducting said pumps, and like machinery for the effective business of manufacturing and selling said manufacture of said carbons, and without carbons in large quantities, all of which was which said factory could not be operated, and at the time well known to the plaintiff. And the plaintiff professed to be able to manuat said time the defendant further required facture and supply such machinery to defend certain presses and pumps and like machinery ant for said purpose, and said written agreefor the effective manufacture of said carbons, ment was thereupon made between said parand without which said factory could not be ties; the plaintiff at the time knowing that

defendant's said plant was dependent upon its work in manner and form, as alleged in the furnishing of said machinery to be put in the cross-petition, then defendant is entitled operation. Third. And plaintiff, professing to damages." to comply with said agreement, sent certain The jury found for the defendant on its items of machinery to defendant which it cross-petition in the sum of $4,000, and that represented to defendant would comply with there was due it a balance of $3,377.71. Judgsaid terms, viz., three presses, one pump, and ment was rendered on the verdict and a moone accumulator; and defendant relying upon tion for a new trial was overruled. On petiplaintiff's representations, placed the same in tion in error to the circuit court, the judgposition, and undertook to operate the same ment was affirmed. and expended large sums of money in such

Carpenter, Young & Stocker, J. S. Sites, attempt. Fourth. Accumulator was likewise

and C. W. McCleery, for plaintiff in error. unfit for said purpose. Fifth. And defend

W. K. Martin and M. A. Daugherty, for deant was put to great expense of time, labor,

fendant in error. and money in setting up said machinery and fully testing the same. Sixth. And by the failure of said machinery, as aforesaid, de

SHAUCK, C. J. (after stating the facts). fendant's said plant could not be fully operat

It is urged that the motion to strike from the ed, and defendant lost in large part the use

cross-petition the averments recited in the and service thereof." This motion was over

statement of the case should have been susruled, and the plaintiff excepted. Plaintiff

tained because the plaintiff was bound only thereupon by reply denied the new matter al

as by the terms of the accepted proposal it leged in the cross-petition. On the trial evi

had agreed to be bound. The view urged dence was offered to show that the machinery | by counsel for plaintiff is that, by the terms was defectively constructed and of defective

of the written contract, the vendor material, and that it lacked the power and

bound to furnish, and the purchaser to accapacity required by the express terms of the

cept, machinery of the character and capacicontract. Against the objection of the plain-ty which were definitely stated in the contiff, the defendant was permitted to show that

tract, and that there can, therefore, be no it had informed the plaintiff of the nature implied obligation on the former to furnish and extent of the plant it was constructing, machinery which would meet the requireof the expense it was incurring therein, and

ments of the defendant's business. The adin the employment of workingmen and sales

mission that this view is correct would not men to operate it, and to the extent to which justify the conclusion that the motion should

have been sustained. the plant was idle in consequence of the de

The averments to fects of the machinery, and the plaintiff's

which the motion was addressed, related, not failure to correct them. In the charge, the

wholly to the ground, but chiefly to the measjury was instructed to regard the loss of the ure, of recovery. They presented circumuse of the plant resulting from the plaintiff's

stances which would lead to substantial loss failure to comply with its contract as a proper

by the defendant if the machinery should not subject for compensation.

be furnished according to the contract, and The plaintiff, in writing, requested several

the plaintiff's knowledge of those circuminstructions to the jury, among them the fol

stances. They, therefore, justified the introlowing: "The first cause of action in the peti

duction of evidence to show that the defendtion of the plaintiff is founded upon a written

ant had expended large sums of money in contract, a copy of which is attached to the

the construction of this plant, and in the empetition. The execution of this agreement is

ployment of workingmen and salesmen for admitted by the defendant, and there is no

the conduct of its business, and, these circlaim here asking to have the same set aside

cumstances being known, the loss to be susor reformed, and the said agreement is bind

tained by the defendant from inability to ing upon both parties to it. But it will be an prosecute its business was within the conimplied term in the said contract that the templation of the parties as a result likely said goods shall be free from defect, either

to follow a breach of the contract, and therein material or workmanship.” This the court fore a proper element of recovery. Chamrefused to give for the reason, as stated in pion Ice Manufacturing & Cold Storage Co. the record, that said requests were handed to v. Pennsylvania Iron Works Co., 68 Ohio St. the court and made after two arguments had 228, 67 N. E. 486. been made in the case. With reference to Although the motion was properly overthe defendant's rights to recovery on its

ruled because the averments had legal relacross-petition the court charged: "If the ma tion to the measure of recovery, they apchinery was defective and worthless, as the pear to have been regarded by the trial judge cross-petition states, and ineffective as as suggesting a ground of recovery. The subpart of the equipment of this plant; and, fur stance of the plaintiff's first request for inther, if the plaintiff sold it to the defendant struction to the jury was that the written for the express and special purpose of equip agreement should be taken as the measure ping this carbon plant and understood it was of the rights and obligations of both parties for that purpose as alleged, and it was with no term implied except that the mabought for that purpose, and it failed to do chinery should be free from defects in either


material or workmanship. This request was raise funds for such a home, and ccaverted the refused for the reason, as the record informs

amount contributed to his own use, he was

guilty of larceny, and not merely of obtaining us, that it was not made until two arguments

money under false pretenses. had been addressed by counsel to the jury.

[Ed. Note.-For cases in point, see vol. 32, As the literature of the case informs us of Cent. Dig. Larceny, $ 34.] neither reason nor authority for refusing 2. SAME-ADMISSIBILITY OF EVIDENCE. an instruction upon that ground, we adhere In a prosecution for larceny, consisting of to the view generally recognized that such a

procuring and converting to the defendant's

own use contributions made on false represenrequest is timely if made before the cause is

tations that he represented a national organizasubmitted to the jury. Not only did the court tion, testimony as to what the defendant said refuse to give the instruction so requested,

as to what institution he was connected with but, in the instruction actually given, there

in raising the money was admissible. was expressed the view that if the plaintiff Appeal from Criminal Court, Marion Counfurnished the machinery with the understand- / ty; Fremont Alford, Judge. ing that it was to be used in operating the

Charles N. Towns was convicted of larceny, defendant's plan there was an implied under and appeals. Affirmed. taking that it should be adequate for that

Foster C. Shirley, for appellant. C. W. purpose. The case affords no reason or op Miller, W. C. Geake, C. C. Hadley, H. M. portunity for such implied term. The con Dowling, and C. P. Benedict, for the State. tract into which the parties entered expressly defined the capacity of the machinery, HADLEY, J. Appellant, Towns, obtained and the defendant bore the chance of its consent of the pastor of Grace Presbyterian adequacy to meet the requirements of its Church to occupy his pulpit and make an business. The conclusive effect which the appeal to the public for voluntary contribulaw gives to the written undertaking of tions to the building, at Jeffersonville, Ind., parties would compel the conclusion that the of a mission home for ex-convicts, by falseobligations of the plaintiff were fully dischar ly representing to the pastor that he was ged if, within the time specified, it furnished the general secretary and representative of a the machinery of the designated power and

national organization of Christian workers, capacity and free from defects. Much evi with headquarters at Battle Creek, Mich., dence was adduced; important parts of it

and that the object of said organization was coming from witnesses called by the plain to construct such homes in various parts of tiff, to show that it had in all of these re the country, and that his mission in Indianspects failed to perform the terms of the con

apolis was to raise funds for a home in tract into which it had entered, and that seri

Jeffersonville which would cost $1,500, and ous loss to the defendant had resulted there

that he had at the time in hand or pledged from. But we are not permitted to conject $1,100 of the amount. At a public meeting ure that no part of the damages awarded to in the church appellant addressed the audithe defendant was because of the instruction ence at length, repeating the representations that the plaintiff must answer for the in

he had made to the pastor, and after an adequacy of the machinery to perform the earnest plea for the merits of his mission duties which the defendant's business re requested persons in his audience to make quired of it, even though it might be of the cash contributions, or sign pledge cards, if character and capacity designated in the

not prepared with the money. There was contract.

no such organization at Battle Creek, Mich., The case seems, therefore, to fall within as appellant claimed to represent. Ile afterthe general rule that, there being substantial ward told the detective who made the arrest error in the refusal to instruct, and the in that he had collected $97, all of which, exstructions given with respect to the ground of

cept $8, he had kept for expenses, and the recovery, and it not appearing affirmatively

balance he had forwarded to the secretary in the record that the error did not operate

and treasurer of the Christian Aid Society prejudicially as to the amount of the defend

at Battle Creek, Mich. The prosecuting witant's recovery, the judgment must be re ness, with others, believing the statements versed.

and representations and relying thereon, made

a contribution of money. Appellant was inPRICE, CREW, SUMMERS, SPEAR, and dicted and convicted of petit larceny, and asDAVIS, JJ., concur.

signs as error the refusal of the court to grant him a new trial.

The real question is whether appellant's (167 Ind. 315)

offense was larceny or obtaining money under TOWNS V. STATE. (No. 20,779.)

false pretenses. Under the facts disclosed by (Supreme Court of Indiana. Nov. 1, 1906.)

the evidence, and stated above, there can be

no doubt but the defendant had formed the 1. LARCENY-ELEMENTS OF OFFENSE-FRAUDULENT REPRESENTATIONS.

design to obtain money by deception, and apWhere one procured contributions by falsely propriate what he got to his own use, and representing that he was the representative of

deprive the contributors of it.

These pura national organization whose object was to construct homes for convicts in various parts

poses, existing in his mind at the time he of the country, and that his mission was to solicited and received the money, constituted

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