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however, that we have examined the tendered | The complaint averred that after said 17th instructions that were refused, and we find no day of June, 19, and up to and on the 1st error in their refusal.

day of September then next, the plaintiff Judgment affirmed.

was ready and willing to accept the salt and pay for the same, but it was held that, fail

ing to include the 17th day of June within INDIANAPOLIS ABBATOIR CO. v. PENN the time when the plaintiff was ready to BEEF CO. (No. 11896.)

accept and pay, the complaint was thereby (Appellate Court of Indiana, Division No. 2. defective. The Vankirk Case, 4 Blackf. 367, Oct. 17, 1924.)

holds that the plaintiff might have given a

sufficient excuse for the failure to perform 1. Sales O405—For recovery by buyer for on his part and for not being ready, as he Rondelivery, finding that he was ready and would have been, had the defendant by his willing to perform essential.

course prevented him. For recovery by buyer for nondelivery un

The cases relied upon by appellee do not der executory contract for sale of goods, finding that he was ready and willing to perform involve executory contracts for the sale of is essential.

goods, and are therefore, in view of the fore2. Sales 422—Payment of price not implied not deem it necessary to discuss each of these

going cases, not of controlling force. We do from finding that defendant "sold."

cases. We mention, however, the following Finding in action by buyer for nondelivery by seller, that defendant “sold” to plaintiff does cases relied upon by appellee: pot imply that the price was paid.

In Foster v. Leininger, 33 Ind. App. 669, 72 [Ed. Note. For other definitions, see Words N. E. 164, there was involved a breach of and Phrases, First and Second Series, Sold.]

a contract to install a telephone, and it was

held that, where there was an averment in Appeal from Superior Court, Marion Coun- the complaint that the plaintiff was ready ty; Sidney Miller, Judge.

and willing to perform all the conditions of

the contract imposed upon him, it was not On petition for rehearing. Denied.

necessary to aver that the plaintiff had perFor former opinion, see 144 N. E. 573.

forined certain specific acts which the conNICHOLS, P. J. [1] Appellee forcefully tract required. It was unnecessary in that contends that there should be no reversal case for the court to state, as it did, the because of the absence of a finding by the readiness to perform was not a necessary court that appellee was ready and willing to averment. perform the contract. Each of the cases cit In People's Building, etc., Ass'n v. Reyed in the opinion involved the breach of an nolds, 17 Ind. App. 453, 46 N. E. 1008, the executory contract for the sale of goods. In contract involved contained reciprocal covethe Magic Packing Company Case, 158 Ind. nants or mutual conditions to be performed, 538, 64 N. E. 11, it was held that the party and it was held that, where one of the parasking to enforce the contract must aver that ties puts it beyond the power of the other to he has complied with all the conditions of perform, then such other party is relieved the contract or state facts showing a proper from such performance, and that if the comexcuse for not so doing. In addition thereto, plaint avers such facts it will not be demur. as to concurrent conditions, he must allege rable. The case, however, quotes from Riley facts showing that he has been ready and v. Walker, 6 Ind. App. 622, 34 N. E. 100, willing to perform the same on his part. where it was held that because of the defend

The complaint in the Beard Case, 30 Ind. ant's failure to perform it was unnecessary 279, averred that the defendant failed and to allege performance or readiness to perrefused to deliver the corn involved, but did form on the part of the plaintiff. But in that not aver that the plaintiff was ready upon case the complaint averred that the plainthe delivery of the corn to pay the defend- tiff's contract, which was repudiated by the ant his price according to his promise, and defendant, had been fully performed by the for this reason the court held that the com- other parties thereto, and it was held that a plaint was fatally defective. There is a like demurrer to such complaint was properly omission in the Bailey Case, 4 Ind. 488, and overruled. The case involved a lecture conthe court held that for that reason the counts tract with James Whitcomb Riley. A careof the complaint were each substantially de- ful reading of it will disclose that it is not fective.

of controlling force in this case. The Smith Case, 8 Blackf. 208, involved a [2] The second, seventh, and fourteenth contract of sale of 1,000 barrels of salt, the findings of the court found that appellant contract having been executed on June 17, sold to appellee the steers in controversy. 1924, and providing for the delivery of one-Appellee contends that by this finding the half of the salt on or before the 1st day of court found that the price had been paid by the following August, and the other one-half the appellee, and that there was therefore on or before the 1st day of September next. 'nothing more for the appellee to do than to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.) accept the steers when tendered. Appellee out of and in the course of his employcontends that the word "sold” implies that ment with appellee. Appellants, being his the price has been paid, and relies upon father and mother, filed an application for Penn., etc., R. Co. v. Fosnotte, 48 Ind. App. compensation, alleging they were dependent 166, 95 N. E. 586. That the court in that upon him for support. On a hearing before case did not intend to hold that the word a single member of the Industrial Board ap"sold" implied tha the price had been paid pellants were awarded compensation at the is evident from a careful reading of the au- rate of $5.54 per week during their dependthority. The action was for part of the pur- ency, not exceeding 300 weeks. On review chase price for goods sold and delivered. The before the full board there was a finding that plaintiff recovered the amount claimed below, the deceased at the time of his injạry and and the judgment was sustained by the Ap death was making an average weekly conpellate Court. In executory contracts of tribution to the support of appellants of sale, the word “sold” is held to mean “con- $5.54 per week and awarding them jointly as tracted to sell." Russell' v. Nicoll, 3 Wend. partial dependents compensation at the rate (N. Y.) 112, 20 Am. Dec. 670. In Smith v. of $3.047 per week for 300 weeks. From Smith, cited in the principal opinion, the this award appellants have appealed, and word "sold” was clearly given this meaning. insist that award is contrary to law, in that The petition for rehearing is denied. the evidence is not sufficient to sustain the

finding.

The average weekly wage of the deceased

employee at the time of his injury and death JELICICH et al. v. INTERSTATE COAL CO. to support an award in favor of appellants

was in excess of $24. All the facts necessary OF INDIANA, (No. 11987.)

were agreed to, except the fact of and the (Appellate Court of Indiana, Division No. 2. extent of dependency. The Industrial Board Oct. 17, 1924.)

found the deceased employee was making an 1. Master and servant Om405(6) – Industrial average weekly contribution of $5.54 to the Board's finding of amount of contribution by support of appellants and that they were employee to support of claimants held sup- partially dependent upon him. In order to ported by no evidence.

support this finding the evidence would have Finding of Industrial Board of average to show that, during the year prior to the amount of contribution by deceased employé to injury of the deceased employee, he had givsupport of claimants of compensation held sup- en appellants for their support $288.08. Apported by no evidence.

pellants insist the undisputed evidence shows 2. Master and servant 417(7)-Province of the deceased had contributed $500 to their court on appeal from award by Industrial support during the year immediately precedBoard stated.

ing his death. It is not the province of the court on ap [1, 2] Without passing upon the weight of peal from Industrial Board's award to weigh the evidence or the extent of the dependenthe evidence or intimate the amount of compen-cy of appellants, an examination of the recsation, if any, that should be awarded; but its ord shows that there is evidence to the effect duty is performed when it decides that no pos- that within one year of the death of Mile sible construction of the evidence sustains the Jelicich he made three contributions to the award.

support of appellants. One of these contribuAppeal from Industrial Board.

tions was for $50, one for $150, and one for Application by Vujo Jelicich and another $300. There is no evidence that any other

or different contributions were made, and for compensation for death of their son, employé of the Interstate Coal Company of In- there is no evidence to support the finding diana. From award by the Industrial Board their support was $5.54. It is not the prov

that the average weekly contribution for of less than sought, claimants appeal. Re ince of this court to weigh the evidence, or versed, with directions.

to intimate to the board the amount of comDefrees, Buckingham & Eaton, of Chicago, pensation, if any, that should be awarded. Ill., for appellants.

Our duty is performed when we decide, as Hays & Hays, A. C. Owens, W. Paul Strat- we must, that the present award cannot be ton, J. S. Taylor, Wm. H. Bridwell, and Geo. sustained by any possible construction of the W. Buff, all of Sullivan, for appellee.

evidence as it now stands.

The award is therefore reversed, with diMcMAHAN, J. Mile Jelicich died January rections for further proceedings consistent 1, 1922, as the result of an injury that arose with this opinion.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"3. That on said September 11, 1923, and at COLUMBER v. CITY OF KENTON et al. the same time said petition in error and other (No. 18322.)

papers were filed in this court, plaintiff in error

by a written precipe to that effect directed and (Supreme Court of Ohio. Oct. 7, 1924.) ordered the clerk of the court of common pleas

of said county to prepare and issue for filing in (Syllabus by the Court.)

this court a transcript of the docket and jourAppeal and error Om628(2)-Nonfeasance of nal entries in this cause in the court of common

clerk in furnishing transcript not ground for pleas. dismissal of petition in error, where tran “4. That said clerk of the court of common script filed immediately on discovery thereof. pleas neither prepared nor filed in this court

Where a party has filed a petition in error said transcript of docket and journal entries unwith waiver of issue and service of summons, til October 3, 1923, said day being the seventya bill of exceptions duly allowed, approved and sixth day after the overruling of the motion signed by the trial judge and opposing counsel, for a new trial in this cause in the court of comand the original pleadings and papers in the

mon pleas as aforesaid. cause, and has filed a precipe directing the clerk

"Conclusions of Law. of the lower court to furnish a transcript of the docket and journal entries, before the expira

"And as its conclusions of law the court find tion of 70 days, pursuant to section 12263, Gen- that said transcript of docket and journal eneral Code, but due to a nonfeasance of ministries should be stricken from the files of this terial act by the clerk such transcript is not court, and that the petition in error filed by prepared for the plaintiff in error to file until plaintiff in error, as aforesaid, should be dis6 days after the expiration of the 70 days fixed missed. by law, such proceeding in error should not be

“It is therefore ordered that the transcript of dismissed, provided such transcript, duly au- the docket and journal entries be stricken from thenticated, is filed immediately upon discovery the files of this court and that the said petition of such nonfeasance of the clerk and before the in error be, and the same hereby is, dismissed case is heard in the Court of Appeals.

and that defendants in error recover of plain

tiffs in error their costs expended in this court, Error to Court of Appeals, Hardin County. and that plaintiff in error pay her own costs;

to all of which said plaintiff in error excepts." Action by Lucy Columber nst the City of Kenton and another. Judgment for plain To reverse this. judgment of the Court of tiff was reversed by Court of Appeals, and Appeals error is now. prosecuted to this court. plaintiff brings error. Reversed.—[By Edi

Henderson & Roof, of Kenton, for plaintiff torial Staff.)

in error. Lucy Columber brought an action in the Stickle & Cessna, L. B. Brown, and J. R. common pleas court of Hardin county against Stillings, all of Kenton, for defendants in William H. Maddex and the city of Kenton, error. whereby she sought to recover damages for personal injuries alleged to have been sus DAY, J. This case raises the question tained by her through a fall over an obstruc- whether a litigant loses the right to have his tion or barricades upon or over the sidewalk case reviewed on error in the Court of Apon one of the streets of the city of Kenton. peals for nonfeasance of the clerk of the Issues were duly made between the parties court in failing to obey within the statutory by proper pleadings, and the matter came on period a precipe duly signed directing him for hearing at the April term, 1923, the ac- to prepare a transcript of the final record of tual date of the verdict of the jury in favor the docket and journal entries; it appearing of the defendants being June 21 of that year. | that the petition in error, waiver of sumA motion for a new trial was filed, which was mons, bill of exceptions, and original papers overruled on July 19, 1923, and judgment ren were all regularly filed within time, and that dered on the verdict. The plaintiff in error the transcript was filed before the case came sought to prosecute error to the Court of Ap-on for hearing. peals. That court made the following find The General Code, $ 12263, provides as folings of facts and conclusions of law, which lows: clearly state the question presented here: "With his petition, the plaintiff in error shall

file either a transcript of the final record, or a "Findings of Fact.

transcript of the docket or journal entries, “1. That the motion for a new trial in this with such original papers or transcripts thereof cause in the court of common pleas was over

as are necessary to exhibit the error complained ruled July 19, 1923, and that a bill of excep

of." tions was prepared, allowed, signed and filed in said court within the statutory period there- .the prosecution of error were duly and regu

It is conceded that the statutory steps for after.

“2. That plaintiff in error filed her petition in larly taken within the statutory time, and error in this court on September 11, 1923, and that but for the delay of the clerk, in not filalong with said petition in error filed said bill ing the transcript of docket and journal enof exceptions and the original pleadings and tries until October 3, 1923, the same being papers in the cause.

the seventy-sixth day after the overruling of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) the motion for new trial, the procedure, is duly on file when the case, or any part would have been entirely regular.

thereof, is heard in the Court of Appeals. Of It is by statutory provision conceded that course, upon discovery of the nonfeasance of the clerk of the court of common pleas and the clerk the party should at once take steps the clerk of the Court of Appeals are one to remedy the defect by mandamus, if necesand the same individual, he having complete sary, or other adequate means. charge of all dockets, journals, records, and This question was passed upon in this original papers of both courts.

court in the case of Heininger v. Davis, MayWas, it necessary for the plaintiff in error, or, 96 Ohio St. 205, 117 N. E. 229, and it was after filing the precipe, to be personally pres- held that failure to file the transcript with ent with the clerk of the court of common the petition in error did not ipso facto result pleas to receive from him, as such, the tran- in loss of jurisdiction if the party took script in question before the expiration of the prompt steps to secure the transcript and the 70 days, and, then, before such expiration, to same was filed before hearing of the case. immediately return the same to the clerk, as The facts giving rise to the question may be clerk of the Court of Appeals, for filing in stated as follows: that court?

Pursuant to the terms of section 6142, GenThe record shows that the petition in error eral Code, a petition had been filed with the with waiver of summons, and other papers, mayor of the city of Cleveland against prowere duly and properly filed with the clerk hibiting the sale of intoxicating liquors in a of the Court of Appeals on September 11, certain residence district, which petition was 1923, and manifestly all that plaintiff in er found by the mayor to be sufficient and a copy ror could do to complete her record was to of his decision with reference thereto filed secure the transcript, docket entries, etc., as with the city clerk. Upon leave granted, J. provided by statute. She took such affirma-W. Heininger, the plaintiff in error, on the tive steps as were necessary to that end by 27th day of April, 1916, filed a petition in filing a written precipe to that effect with error, together with a bill of exceptions takthe clerk in his capacity as clerk of the court en at the hearing before the mayor, and all of common pleas. She had already filed, as the original papers in the case, in the Court above stated, the petition in error and other of Appeals of Cuyahoga County. On the 13th papers with the same individual in his capac- day of May, 1916, plaintiff in error filed in ity as clerk of the Court of Appeals. All of the error proceedings in the Court of Appeals these documents, Journals, dockets, and rec a transcript of the mayor's docket. On the ords being so peculiarly within the possession 18th of May, 1916, the defendant in error and control of the same individual in his dual filed a motion to dismiss the proceedings in capacity, we are of opinion that it would be error, for the reason that plaintiff in error unnecessarily exacting to require the plaintiff had not complied with section 12263, General in error to do more than file the precipe in Code, requiring him to file either the tranquestion, having theretofore filed her petition script of the final record, or a transcript of in error in the Court of Appeals.

the docket or journal entries, with such origThis court, in Amazon Rubber Co. v. More inal papers or transcripts thereof as are necwood Realty Holding Co., 109 Ohio St. 291, essary to exhibit the error complained of. 142 N. E. 363, held that the filing of a journal On the 4th of June, 1916, the cause came on entry, approved by judge and counsel for in- to be heard upon the motion of the defendant terested litigants, became an "entry of the in error to dismiss the proceedings, and on judgment" within the meaning of section the 3d of July, 1916, the following judgment 12270, General Code, and that proceedings in was entered of record: error should be commenced within 70 days from that date, even though the date of ac, pleadings, and the transcript of the record in

“This cause came on to be heard upon the tually spreading the entry upon the journal the court of H. L. Davis, mayor, and was armay have been some time thereafter. With-gued by counsel; and on consideration of all the in the contemplation of the law and so far as assigned errors, the court dismisses the petithe parties thereto were affected, the journaltion in error for want of jurisdiction, without entry was held to be of the same day upon record, at the plaintiff in error's costs, for which it was filed with the clerk.

which judgment is rendered against him." If the filing of the transcript in 70 days were jurisdictional, that is, if it were a con While the question of what constituted a dition precedent to the right of the Court of court of record was discussed at some length Appeals to hear a case, it would make no in this Heininger Case, a construction of secdifference why in a given case the transcript tion 12263, the same section of the General had not been so filed. That it had not been Code which is under discussion here, was befiled would be enough to defeat the court of fore the court, and by unanimous conclusion jurisdiction.

the Supreme Court held that the failure to We think that if all other jurisdictional file the transcript at the time of filing the pefacts appear, and the party himself has not tition in error was not fatal. Judge Donabeen guilty of laches, he should not suffer hue rendering the opinion of the court says, for the neglect of the clerk if the transcript, at page 213 (117 N. E. 231):

“But that error does not necessarily require the law that reach the merits of the cause in a reversal of the judgment, if the Court of Ap- controversy. Obviously the law of procedure peals should have sustained the motion of de- is remedial. It provides the legal ways and fendant in error to dismiss the petition in error means of protecting one's rights and defendfor the reason that the plaintiff in error had ing oneself against another's wrongs. It has not complied with section 12263, General Code, therefore been laid down as a settled rule of law requiring him to file either a transcript of the that all such remedial statutes and rules of final record, or a transcript of the docket or law should be liberally construed in favor of journal entries, with such original papers or a the remedy provided by law. Now the remedy transcript thereof, as are required to exhibit the provided, not only by our Constitution, but from error complained of.

the earliest time by our Ohio jurisprudence, has “The plaintiff in error did file with his petition been the right to review the judgments of the in error a bill of exceptions, and all the original court of common pleas; whether those judgpapers in the case, but a transcript was not ments are in favor of the plaintiff below or the filed because the mayor, acting upon the advice defendant below, the right is essentially the of the law department of Cleveland, believed he same. The rules of law and the statutes incorhad no right to make such record or to certify porating them should be so applied as to carry such transcript. Mandamus proceedings were ont this primary remedial purpose." instituted by the plaintiff in error to secure the transcript. It was secured and filed before the We are therefore constrained to the concluhearing of the case.

sion that when the precipe for the transcript If under the statute authorizing this pro was filed with the clerk, nothing thereafter ceeding in error it is necessary to file such remained for him to do but the preparation transcript with the petition in error at the time of the transcript, and that the same upon the petition in error is filed, the refusal of the completion was in his possession as clerk of mayor to deliver such transcript upon demand and tender of fees therefor would be sufficient the Court of Appeals, and that so far as the excuse for not filing the same, provided the plaintiff in error is concerned she did all plaintiff in error promptly brought and diligent- that she could do by filing the precipe, and ly prosecuted an action in mandamus to compel that if the clerk failed to perfect the same the making and delivery of such transcript." before the expiration of the 70 days it was

his nonfeasance, and not that of the plaintif Just what is the injury to this defendant in in error, which prevented the same being error if the transcript was not filled within physically filed with the petition in error the 70 days, although the petition in error within the statutory period. In other words, and a waiver of the issuing and service of it was such nonfeasance in this ministerial summons were filed, also a bill of exceptions duty, over which the plaintiff had no overduly allowed, approved, and signed, and a sight or control, that caused the delay. As precipe for the transcript of the docket en- is said by Jones, J., in Porter v. Rohrer, 95 tries, etc? Within 6 days after the expira- Ohio St. 90, 93, 115 N. E. 616, 617 (L. R. A. tion of the 70 days, and before the case came 1917D, 641, Ann. Cas. 1918B, 286): on for hearing before the Court of Appeals,

"But if doubt arises in the construction and a proper transcript was furnished and duly application of cognate statutes relating to profiled. The parties to the case know what cedure, it is also well established that a liberal happened in the court of common pleas, and construction will obtain, in order that a litigant if they do not they can readily find out by re may not be deprived of a remedy attaching to a ferring to the records of that court. The legal right otherwise granted him. So that, in purpose of a transcript is not to inform the the case at bar, while the duty was cast upon parties as to what happened in the court be the plaintiff in error to file his bill within the low, but to inform and advise the Court of 70-day limitation, that duty obviously could not Appeals as to what the record of the court of the clerk or trial judge such bill was not

be complied with, as by the ministerial omission below shows, and if a transcript duly au- available and in the hands of the clerk on the thenticated is before the court when a case is seventieth day after judgment. called for hearing no actual harm has been “However, where counsel for the losing party done to either party, nor is any inconveni- has performed all the statutory requirements ence occasioned the court. Every practical relating to the preparation, filing and perfecpurpose contemplated by section 12263 hastion of the bill his client will not be allowed to been complied with. To deny this plaintiff in suffer detriment by reason of neglect or default

in the ministerial act of a clerk who fails to error an opportunity to have her case reviewed in the Court of Appeals by reason of the bill within the prescribed time."

transmit or a judge who fails to allow and sign the nonfeasance of the clerk under such circumstances would be putting too strict a con It is not the policy of the law to deny a struction upon this remedial section.

litigant the right to have an adverse decision As was said by this court in Vance v. Da- reviewed by a higher court, and to enforce a vis, Agent, 107 Ohio St. 577, at page 582, strict and harsh rule against one seeking to 140 N. E. 588, 589:

enjoy such remedy would be to deny him due "Real regret is expressed both by the lawyers process of law, especially when he has taken and laymen that we find so many cases, in our every reasonable step looking toward the law reports determined upon mere questions of compliance with statutory requirements. practice rather than upon basic principles of The spirit of the decision of this court in

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