however, that we have examined the tendered The complaint averred that after said 17th day of June, 19-, and up to and on the 1st day of September then next, the plaintiff was ready and willing to accept the salt and pay for the same, but it was held that, failing to include the 17th day of June within accept and pay, the complaint was thereby INDIANAPOLIS ABBATOIR CO. v. PENN the time when the plaintiff was ready to BEEF CO. (No. 11896.) (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 on his part and for not being ready, as he would have been, had the defendant by his course prevented him. The cases relied upon by appellee do not involve executory contracts for the sale of goods, and are therefore, in view of the foregoing cases, not of controlling force. We do not deem it necessary to discuss each of these cases. We mention, however, the following cases relied upon by appellee: In Foster v. Leininger, 33 Ind. App. 669, 72 N. E. 164, there was involved a breach of 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. On petition for rehearing. Denied. NICHOLS, P. J. [1] Appellee forcefully contends that there should be no reversal because of the absence of a finding by the court that appellee was ready and willing to perform the contract. Each of the cases cited in the opinion involved the breach of an executory contract for the sale of goods. In the Magic Packing Company Case, 158 Ind. 538, 64 N. E. 11, it was held that the party asking to enforce the contract must aver that he has complied with all the conditions of the contract or state facts showing a proper excuse for not so doing. In addition thereto, as to concurrent conditions, he must allege facts showing that he has been ready and willing to perform the same on his part. The complaint in the Beard Case, 30 Ind. 279, averred that the defendant failed and refused to deliver the corn involved, but did not aver that the plaintiff was ready upon the delivery of the corn to pay the defendant his price according to his promise, and for this reason the court held that the complaint was fatally defective. There is a like omission in the Bailey Case, 4 Ind. 488, and the court held that for that reason the counts of the complaint were each substantially defective. The Smith Case, 8 Blackf. 208, involved a contract of sale of 1,000 barrels of salt, the contract having been executed on June 17, 1924, and providing for the delivery of onehalf of the salt on or before the 1st day of the following August, and the other one-half on or before the 1st day of September next. and willing to perform all the conditions of the contract imposed upon him, it was not necessary to aver that the plaintiff had performed certain specific acts which the contract required. It was unnecessary in that case for the court to state, as it did, the readiness to perform was not a necessary averment. In People's Building, etc., Ass'n v. Reynolds, 17 Ind. App. 453, 46 N. E. 1008, the contract involved contained reciprocal covenants or mutual conditions to be performed, and it was held that, where one of the parties puts it beyond the power of the other to perform, then such other party is relieved from such performance, and that if the complaint avers such facts it will not be demurrable. The case, however, quotes from Riley v. Walker, 6 Ind. App. 622, 34 N. E. 100, where it was held that because of the defendant's failure to perform it was unnecessary to allege performance or readiness to perform on the part of the plaintiff. But in that case the complaint averred that the plaintiff's contract, which was repudiated by the defendant, had been fully performed by the other parties thereto, and it was held that a demurrer to such complaint was properly overruled. The case involved a lecture contract with James Whitcomb Riley, A careful reading of it will disclose that it is not of controlling force in this case. [2] The second, seventh, and fourteenth findings of the court found that appellant sold to appellee the steers in controversy. Appellee contends that by this finding the court found that the price had been paid by the appellee, and that there was therefore 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.) ment with appellee. Appellants, being his father and mother, filed an application for compensation, alleging they were dependent upon him for support. On a hearing before a single member of the Industrial Board appellants were awarded compensation at the rate of $5.54 per week during their dependency, not exceeding 300 weeks. On review before the full board there was a finding that the deceased at the time of his injury and death was making an average weekly contribution to the support of appellants of accept the steers when tendered. Appellee out of and in the course of his employcontends that the word "sold" implies that the price has been paid, and relies upon Penn., etc., R. Co. v. Fosnotte, 48 Ind. App. 166, 95 N. E. 586. That the court in that case did not intend to hold that the word "sold" implied that the price had been paid is evident from a careful reading of the authority. The action was for part of the purchase price for goods sold and delivered. The plaintiff recovered the amount claimed below, and the judgment was sustained by the Appellate Court. In executory contracts 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. (N. Y.) 112, 20 Am. Dec. 670. In Smith v. Smith, cited in the principal opinion, the word "sold" was clearly given this meaning. The petition for rehearing is denied. partial dependents compensation at the rate of $3.047 per week for 300 weeks. From this award appellants have appealed, and insist that award is contrary to law, in that 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 was in excess of $24. All the facts necessary JELICICH et al. v. INTERSTATE COAL CO. to support an award in favor of appellants 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.) 1. Master and servant 405 (6)· Industrial Board's finding of amount of contribution by employee to support of claimants held supported by no evidence. Finding of Industrial Board of average amount of contribution by deceased employé to support of claimants of compensation held supported by no evidence. 2. Master and servant 417(7)-Province of court on appeal from award by Industrial Board stated. It is not the province of the court on appeal from Industrial Board's award to weigh the evidence or intimate the amount of compensation, if any, that should be awarded; but its duty is performed when it decides that no possible construction of the evidence sustains the award. In order to found the deceased employee was making an [1, 2] Without passing upon the weight of the evidence or the extent of the dependency of appellants, an examination of the record shows that there is evidence to the effect that within one year of the death of Mile Jelicich he made three contributions to the support of appellants. One of these contributions was for $50, one for $150, and one for $300. There is no evidence that any other Appeal from Industrial Board. Application by Vujo Jelicich and another for compensation for death of their son, employé of the Interstate Coal Company of Indiana. From award by the Industrial Board of less than sought, claimants appeal. Re-ince of this court to weigh the evidence, or versed, with directions. or different contributions were made, and there is no evidence to support the finding that the average weekly contribution for their support was $5.54. It is not the prov to intimate to the board the amount of com Defrees, Buckingham & Eaton, of Chicago, pensation, if any, that should be awarded. Ill., for appellants. Hays & Hays, A. C. Owens, W. Paul Stratton, J. S. Taylor, Wm. H. Bridwell, and Geo. W. Buff, all of Sullivan, for appellee. MCMAHAN, J. Mile Jelicich died January 11, 1922, as the result of an injury that arose Our duty is performed when we decide, as we must, that the present award cannot be sustained by any possible construction of the evidence as it now stands. The award is therefore reversed, with directions for further proceedings consistent with this opinion. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes COLUMBER v. CITY OF KENTON et al. (No. 18322.) (Supreme Court of Ohio. Oct. 7, 1924.) (Syllabus by the Court.) Appeal and error 628 (2)-Nonfeasance of clerk in furnishing transcript not ground for dismissal of petition in error, where transcript filed immediately on discovery thereof. Where a party has filed a petition in error with waiver of issue and service of summons, a bill of exceptions duly allowed, approved and signed by the trial judge and opposing counsel, and the original pleadings and papers in the cause, and has filed a precipe directing the clerk of the lower court to furnish a transcript of the docket and journal entries, before the expiration of 70 days, pursuant to section 12263, General Code, but due to a nonfeasance of a ministerial act by the clerk such transcript is not prepared for the plaintiff in error to file until 6 days after the expiration of the 70 days fixed by law, such proceeding in error should not be dismissed, provided such transcript, duly authenticated, is filed immediately upon discovery of such nonfeasance of the clerk and before the case is heard in the Court of Appeals. Error to Court of Appeals, Hardin County. Action by Lucy Columber against the City of Kenton and another. Judgment for plaintiff was reversed by Court of Appeals, and plaintiff brings error. Reversed.-[By Editorial Staff.] Lucy Columber brought an action in the common pleas court of Hardin county against William H. Maddex and the city of Kenton, whereby she sought to recover damages for personal injuries alleged to have been sustained by her through a fall over an obstruction or barricades upon or over the sidewalk on one of the streets of the city of Kenton. Issues were duly made between the parties by proper pleadings, and the matter came on for hearing at the April term, 1923, the actual date of the verdict of the jury in favor of the defendants being June 21 of that year. A motion for a new trial was filed, which was overruled on July 19, 1923, and judgment rendered on the verdict. The plaintiff in error sought to prosecute error to the Court of Appeals. That court made the following findings of facts and conclusions of law, which clearly state the question presented here: "Findings of Fact. "1. That the motion for a new trial in this cause in the court of common pleas was overruled July 19, 1923, and that a bill of exceptions was prepared, allowed, signed and filed in said court within the statutory period there after. "2. That plaintiff in error filed her petition in error in this court on September 11, 1923, and along with said petition in error filed said bill of exceptions and the original pleadings and papers in the cause. "And as its conclusions of law the court find that said transcript of docket and journal entries should be stricken from the files of this court, and that the petition in error filed by plaintiff in error, as aforesaid, should be dismissed. "It is therefore ordered that the transcript of the docket and journal entries be stricken from the files of this court and that the said petition in error be, and the same hereby is, dismissed and that defendants in error recover of plaintiffs in error their costs expended in this court, and that plaintiff in error pay her own costs; to all of which said plaintiff in error excepts." To reverse this. judgment of the Court of Appeals error is now. prosecuted to this court. Henderson & Roof, of Kenton, for plaintiff in error. Stickle & Cessna, L. B. Brown, and J. R. Stillings, all of Kenton, for defendants in error. DAY, J. This case raises the question whether a litigant loses the right to have his case reviewed on error in the Court of Appeals for nonfeasance of the clerk of the court in failing to obey within the statutory period a precipe duly signed directing him to prepare a transcript of the final record of the docket and journal entries; it appearing that the petition in error, waiver of summons, bill of exceptions, and original papers were all regularly filed within time, and that the transcript was filed before the case came on for hearing. The General Code, § 12263, provides as follows: "With his petition, the plaintiff in error shall file either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of." It is conceded that the statutory steps for the prosecution of error were duly and regularly taken within the statutory time, and that but for the delay of the clerk, in not filing the transcript of docket and journal entries until October 3, 1923, the same being the seventy-sixth day after the overruling of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) the motion for new trial, the procedure is duly on file when the case, or any part would have been entirely regular. It is by statutory provision conceded that the clerk of the court of common pleas and the clerk of the Court of Appeals are one and the same individual, he having complete charge of all dockets, journals, records, and original papers of both courts. Was it necessary for the plaintiff in error, after filing the precipe, to be personally present with the clerk of the court of common pleas to receive from him, as such, the transcript in question before the expiration of the 70 days, and, then, before such expiration, to immediately return the same to the clerk, as clerk of the Court of Appeals, for filing in that court? The record shows that the petition in error with waiver of summons, and other papers, were duly and properly filed with the clerk of the Court of Appeals on September 11, 1923, and manifestly all that plaintiff in error could do to complete her record was to secure the transcript, docket entries, etc., as provided by statute. She took such affirmative steps as were necessary to that end by filing a written precipe to that effect with the clerk in his capacity as clerk of the court of common pleas. She had already filed, as above stated, the petition in error and other papers with the same individual in his capacity as clerk of the Court of Appeals. All of these documents, journals, dockets, and records being so peculiarly within the possession and control of the same individual in his dual capacity, we are of opinion that it would be unnecessarily exacting to require the plaintiff in error to do more than file the precipe in question, having theretofore filed her petition in error in the Court of Appeals. This court, in Amazon Rubber Co. v. Morewood Realty Holding Co., 109 Ohio St. 291, 142 N. E. 363, held that the filing of a journal | entry, approved by judge and counsel for interested litigants, became an "entry of the judgment" within the meaning of section 12270, General Code, and that proceedings in error should be commenced within 70 days thereof, is heard in the Court of Appeals. Of course, upon discovery of the nonfeasance of the clerk the party should at once take steps to remedy the defect by mandamus, if necessary, or other adequate means. This question was passed upon in this court in the case of Heininger v. Davis, Mayor, 96 Ohio St. 205, 117 N. E. 229, and it was held that failure to file the transcript with the petition in error did not ipso facto result in loss of jurisdiction if the party took prompt steps to secure the transcript and the same was filed before hearing of the case. The facts giving rise to the question may be stated as follows: Pursuant to the terms of section 6142, General Code, a petition had been filed with the mayor of the city of Cleveland against prohibiting the sale of intoxicating liquors in a certain residence district, which petition was found by the mayor to be sufficient and a copy of his decision with reference thereto filed with the city clerk. Upon leave granted, J. W. Heininger, the plaintiff in error, on the 27th day of April, 1916, filed a petition in error, together with a bill of exceptions taken at the hearing before the mayor, and all the original papers in the case, in the Court of Appeals of Cuyahoga County. On the 13th day of May, 1916, plaintiff in error filed in the error proceedings in the Court of Appeals a transcript of the mayor's docket. On the 18th of May, 1916, the defendant in error filed a motion to dismiss the proceedings in error, for the reason that plaintiff in error had not complied with section 12263, General Code, requiring him to file either the transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of. On the 4th of June, 1916, the cause came on to be heard upon the motion of the defendant in error to dismiss the proceedings, and on the 3d of July, 1916, the following judgment was entered of record: "This cause came on to be heard upon the from that date, even though the date of ac- pleadings, and the transcript of the record in 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 the parties thereto were affected, the journal entry was held to be of the same day upon which it was filed with the clerk. If the filing of the transcript in 70 days were jurisdictional, that is, if it were a condition precedent to the right of the Court of Appeals to hear a case, it would make no difference why in a given case the transcript had not been so filed. That it had not been filed would be enough to defeat the court of jurisdiction. We think that if all other jurisdictional facts appear, and the party himself has not been guilty of laches, he should not suffer for the neglect of the clerk if the transcript assigned errors, the court dismisses the petition in error for want of jurisdiction, without record, at the plaintiff in error's costs, for which judgment is rendered against him." While the question of what constituted a court of record was discussed at some length in this Heininger Case, a construction of section 12263, the same section of the General Code which is under discussion here, was before the court, and by unanimous conclusion the Supreme Court held that the failure to file the transcript at the time of filing the petition in error was not fatal. Judge Donahue rendering the opinion of the court says, at page 213 (117 N. E. 231): "But that error does not necessarily require a reversal of the judgment, if the Court of Appeals should have sustained the motion of defendant in error to dismiss the petition in error for the reason that the plaintiff in error had not complied with section 12263, General Code, requiring him to file either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or a transcript thereof, as are required to exhibit the error complained of. "The plaintiff in error did file with his petition in error a bill of exceptions, and all the original papers in the case, but a transcript was not filed because the mayor, acting upon the advice of the law department of Cleveland, believed he had no right to make such record or to certify such transcript. Mandamus proceedings were instituted by the plaintiff in error to secure the transcript. It was secured and filed before the hearing of the case. "If under the statute authorizing this proceeding in error it is necessary to file such transcript with the petition in error at the time the petition in error is filed, the refusal of the mayor to deliver such transcript upon demand and tender of fees therefor would be sufficient excuse for not filing the same, provided the plaintiff in error promptly brought and diligently prosecuted an action in mandamus to compel the making and delivery of such transcript." Just what is the injury to this defendant in error if the transcript was not filed within the 70 days, although the petition in error and a waiver of the issuing and service of summons were filed, also a bill of exceptions duly allowed, approved, and signed, and a precipe for the transcript of the docket entries, etc? Within 6 days after the expiration of the 70 days, and before the case came on for hearing before the Court of Appeals, a proper transcript was furnished and duly filed. The parties to the case know what happened in the court of common pleas, and if they do not they can readily find out by referring to the records of that court. The purpose of a transcript is not to inform the parties as to what happened in the court below, but to inform and advise the Court of Appeals as to what the record of the court below shows, and if a transcript duly authenticated is before the court when a case is called for hearing no actual harm has been done to either party, nor is any inconvenience occasioned the court. Every practical purpose contemplated by section 12263 has been complied with. To deny this plaintiff in error an opportunity to have her case reviewed in the Court of Appeals by reason of the nonfeasance of the clerk under such circumstances would be putting too strict a construction upon this remedial section. As was said by this court in Vance v. Davis, Agent, 107 Ohio St: 577, at page 582, 140 N. E. 588, 589: "Real regret is expressed both by the lawyers and laymen that we find so many cases in our law reports determined upon mere questions of practice rather than upon basic principles of the law that reach the merits of the cause in controversy. Obviously the law of procedure is remedial. It provides the legal ways and means of protecting one's rights and defending oneself against another's wrongs. It has therefore been laid down as a settled rule of law that all such remedial statutes and rules of law should be liberally construed in favor of the remedy provided by law. Now the remedy provided, not only by our Constitution, but from the earliest time by our Ohio jurisprudence, has been the right to review the judgments of the court of common pleas; whether those judgments are in favor of the plaintiff below or the defendant below, the right is essentially the same. The rules of law and the statutes incorporating them should be so applied as to carry out this primary remedial purpose." We are therefore constrained to the conclusion that when the precipe for the transcript was filed with the clerk, nothing thereafter remained for him to do but the preparation of the transcript, and that the same upon completion was in his possession as clerk of the Court of Appeals, and that so far as the plaintiff in error is concerned she did all that she could do by filing the precipe, and that if the clerk failed to perfect the same before the expiration of the 70 days it was his nonfeasance, and not that of the plaintiff in error, which prevented the same being physically filed with the petition in error within the statutory period. In other words, it was such nonfeasance in this ministerial duty, over which the plaintiff had no oversight or control, that caused the delay. is said by Jones, J., in Porter v. Rohrer, 95 Ohio St. 90, 93, 115 N. E. 616, 617 (L. R. A. 1917D, 641, Ann. Cas. 1918B, 286): As "But if doubt arises in the construction and application of cognate statutes relating to procedure, it is also well established that a liberal construction will obtain, in order that a litigant may not be deprived of a remedy attaching to a legal right otherwise granted him. So that, in the case at bar, while the duty was cast upon the plaintiff in error to file his bill within the be complied with, as by the ministerial omission 70-day limitation, that duty obviously could not of the clerk or trial judge such bill was not available and in the hands of the clerk on the seventieth day after judgment. * "However, where counsel for the losing party has performed all the statutory requirements relating to the preparation, filing and perfection of the bill his client will not be allowed to suffer detriment by reason of neglect or default in the ministerial act of a clerk who fails to transmit or a judge who fails to allow and sign the bill within the prescribed time." It is not the policy of the law to deny a litigant the right to have an adverse decision reviewed by a higher court, and to enforce a strict and harsh rule against one seeking to enjoy such remedy would be to deny him due process of law, especially when he has taken every reasonable step looking toward the compliance with statutory requirements. The spirit of the decision of this court in |