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(146 N.E.)

was defective and unfit for the use intended, | jury would be warranted in finding for the in that it did not adhere to the wood, but defendant on his cross-petition. became so dry and crumbly that it was of no value in affording protection. The defendant asked judgment in his favor on the crosspetition in the sum of $1,000, which he asked to be set off against the plaintiff's claim. Plaintiff replied, denying the allegations contained in the cross-petition.

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JONES, J. In its general charge, the trial court advised the jury that the amount claimed by the plaintiff below was admitted by the pleadings, and also stated fully the allegations contained, and issues made in the cross-petition of Kern. On the trial Kern testified that he was engaged in the retail business, and for a period of five years had handled paints manufactured by the Lawrence Company; that on the occasion in question he had purchased from the latter's salesman eighteen gallons of Lawrence paint, described as Nos. 1350 and 1950. He also testified that the Lawrence Company sold two grades of paint, and that No. 1350 was the better grade of the two. The Lawrence salesman testified that the paint was bought by description, and that No. 1350 was an ivory shade of their best paint. He testified also that nothing was said about the particular purpose for which it was to be used when it was purchased.

It is probable, since evidence had been offered that the paint had been purchased by description and not for a particular purpose, that the court supposed that this issue had been raised by the evidence if not by the pleadings, for it called the attention of the jury to paragraph (2) of section 8395, General Code. He said to them that "where goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality." In that connection he said to the jury that if they should find by a preponderance of the evidence that the paint was defective or useless, and that it was necessary for the defendant to go to an expense to place the same on the houses, and remove the same, and that if they further found that the goods were bought by description from the seller, an implied warranty that the paint should be of merchantable quality was proven, and the

The cross-petition relied for recovery upon a liability imposed not by paragraph (2), but by paragraph (1) of section 8395, General Code, where the buyer makes known to the seller the particular purpose for which the goods are required. However, if any error was committed by the court in its reference to paragraph (2), it was thereafter cured at the instance of the defendant.

At the close of the general charge counsel for defendant called the court's attention to paragraph (1) of said section, which he read to the jury. That paragraph is as follows:

makes known to the seller the particular pur

"When the buyer, expressly or by implication,

pose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose."

When this paragraph was called to the attention of the trial court, he said to the jury:

"I think it is right and proper to call your attention to it, gentlemen, as it is a part of our law that applies to this case."

And after reading the paragraph to them, he said:

"This covers the allegation that is made in defendant's cross-petition, that is, defendant in his cross-petition claims that he relied on the would be suitable for the purpose intended." person who sold them that the goods purchased

The court then confined his charge solely to the issues made by the cross-petition, and charged them that if they found by a preponderance of the evidence that defendant notified plaintiff's agent of the purpose for which the goods were to be used, and they were not as warranted, the jury would be justified in finding for the defendant accordingly.

The Court of Appeals reversed the judgment because the trial court, in its charge, had adverted to paragraph (2) of the section named. There is no doubt, however, that when his attention was called to it the trial court charged paragraph (1) as applicable to the issues made by the cross-petition and reply, for he said to the jury that paragraph (1) was the "part of our law that applies to this case."

In view of the latter feature of the charge, and since the court thereafter confined the jury solely to the consideration of the issues made by the cross-petition and the reply of plaintiff under paragraph (1), we are unable to see how the jury could be misled by what had been said to them theretofore, especially in view of their general verdict finding the issues in the case in favor of the plaintiff below, since the sole issue arose upon the

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Judgment reversed, and judgment of the ceased member. Said section of the by-laws court of common pleas affirmed.

MARSHALL, C. J., and ROBINSON, MATTHIAS, DAY, ALLEN, and CONN, JJ., con

cur.

further provided that if a member was not survived by a wife, or child under 16 years of age a certain sum should be paid to a mother dependent upon him for support, and, if there was no such mother, such sum was to be paid to a dependent father. The bylaws provided that:

"The decision of said board of trustees shall under those sections."

STATE ex rel. LITTLE v. CARTER et al. be final on all questions of dependency arising

(No. 18610.)

(Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by Editorial Staff.)

1. Municipal corporations 187-Interpretation of by-law by trustees of police pension fund held arbitrary.

Interpretation by trustees of police relief fund of by-law, so as to constitute one who had merely applied for divorce not to be widow of deceased policeman, was arbitrary, and not

in exercise of discretion.

2. Mandamus 106-Proper remedy to compel payment of fund to policeman's widow.

The relator averred in her petition that she was married to Little in 1911, and that he died leaving her surviving him, as widow, and a surviving child under the age of 9 years as the lawful issue of such marriage.

The respondent's answer substantially admits all the allegations of the petition except those alleging wifehood and widowhood in the relator. In a second defense it alleged that on September 24, 1919, the relator filed her petition for divorce against her husband; that service was had on him and the cause heard by one of the judges of the common pleas court; and that at the conclusion of the hearing on November 14, 1919, and in the

Where, when policeman died leaving a widow, it became duty of trustees of police benefit fund, under Gen. Code, § 4628, and by-presence of the relator and her attorney, law thereunder adopted, to allow and pay her benefits provided, mandamus was proper remedy to compel such action.

the court granted a divorce to relator. The allegations pertaining to the divorce were denied by the reply of the relator. The cause was heard upon the pleadings and certain stip

Error to Court of Appeals, Summit County.ulations made by counsel in the Court of ApMandamus in the Court of Appeals by the State, on the relation of Jessie Little, against Lloyd D. Carter and others. Judgment for defendants, and relator brings error. Reversed and rendered.-[By Editorial Staff.]

This was an action in mandamus originating in the Court of Appeals, wherein the relator prayed for a writ, commanding the board of trustees of the Akron police relief fund to constitute her a beneficiary under the rules and by-laws governing administration of the fund, and praying for an order directing the custodian of the fund to pay her certain moneys to which she was entitled as accrued pension thereunder.

The petition alleged that the defendants were exercising the functions of members of the board of trustees of the police relief fund, and were administering the same for the benefit of the beneficiaries entitled there to; that Austin C. Little was a member of the police department of the city at the time of his death on February 12, 1920; that under favor of the state law there were in force by-laws governing the police relief fund, among which was a section providing that a board of trustees should, within 30 days aft

peals. It was admitted that there was sufficient money in the police relief fund in charge of the trustees to pay the claim of the relator were it to be allowed. On the question of divorce the following stipulation of fact was agreed to:

That on

"It is stipulated by and between counsel for the relator and the defendant: That on the 20th day of September, 1919, the relator, Jessie Little, commenced an action for divorce in the court of common pleas of Summit county, Ohio, against the defendant, Austin C. Little, the 17th day of November, 1919, said cause said cause being numbered 30422. came on for hearing, oral evidence was introduced before the court, and, at the conclusion of the evidence, the court orally announced from the bench, 'Divorce granted, on the ground of gross neglect'-all of which is evidenced by the transcript of testimony taken by the official stenographer at that time. This oral decision of the court was not recorded or journalized, and appears only in the form of transcribed notes of the court stenographer who took the testimony, and the oral announcement of the court from the bench. That, on the 4th day of April, 1921, the following entry was filed, was approved by the court of common pleas, and filed and recorded

(146 N.E.)

in the records of said court in said cause: fund, for the method of electing its trustees, "This cause is ordered dropped from the docket.' That no other or further orders have been made in said cause."

The reason for the denial of pension to the relator is shown by the following resolution of the board:

"Be it resolved by the board of trustees of the Police Relief Fund that Jessie Little was not the widow of Austin C. Little at the time of his decease, and is therefore not entitled to pension under section 30 of the rules and bylaws governing the Police Relief Fund."

On the facts admitted by the pleadings and stipulations by counsel the Court of Appeals found that the relator was not entitled to the relief prayed for, and dismissed her petition. Whereupon error was prosecuted to this court.

Smoyer, Clinedinst & Smoyer, of Akron, for plaintiff in error.

H. M. Hagelbarger, C. T. Moore, and W. A. Kelly, all of Akron, for defendants in error.

PER CURIAM. That portion of the section of the by-laws making the decision of the board of trustees final on questions of dependency has no bearing upon this case, since under the by-laws the feature of dependency may affect the dependency of others, but does not affect this widow. Under the stipulation the relator was still the member's wife at the time of his death, and became thereafter his widow, within | the purview of the by-laws. While it is true that she had filed an action for divorce against her husband, it indisputably appears that no decree was ever entered on the journal, nor upon any other record of the court. The only journal entry made was one dropping the cause from the docket.

and for the maintenance of the fund by taxation, and by fines and penalties imposed upon members of the department. It is not a voluntary association, but is one controlled by statutory enactment.

Section 4628, General Code, provides that:

The "trustees shall make all rules and regulations for distribution of the fund, including the qualifications of those to whom any portion of the fund shall be paid."

Acting within the statutory authorization, rules and by-laws were adopted "governing the Police Relief Fund of the city of Akron." Section 30 of those by-laws required that the board of trustees, within 30 days after a member's death, should pay stipulated monthly sums to his widow while she remained unmarried. Under this by-law the board was required to pay a definite stipulated sum named therein.

[1, 2] Under the conceded facts the relator was just as much the member's wife and widow as if she had never brought the suit for divorce. No interpretation of the by-law was necessary, and, when the board sought to interpret it in such a way as to constitute one who had merely applied for a divorce not to be his widow, their action was an arbitrary one and was not an exercise of discretion. Were we to recognize the conduct of the board in this regard it would permit the board of trustees to render the plain terms of its by-law entirely nugatory. When the member died, leaving the relator incontrovertibly his widow, under the statute and the by-law thereunder adopted, it became the ministerial duty of the respondents to allow and pay the monthly sum stipulated in the by-law for the benefit of the widow beneficiary.

Under the facts presented the writ of mandamus may be employed to compel such action. The judgment of the Court of Appeals is reversed, and, proceeding to render the judgment which that court should have rendered upon the conceded facts, judgment is here rendered in favor of the relator, and the cause is remanded to the Court of Appeals for execution.

According to its opinion, the Court of Appeals had no difficulty in determining that the relator was not divorced. However, it held that mandamus could not be employed to control the discretion of the trustees of the police relief fund, especially where they had "interpreted their rule not to include as a widow one who was separated from her husband, and had submitted her divorce case against him to a court." In this state we have special statutory provisions providing for the establishment of the police relief | JONES, ALLEN, and CONN, JJ., concur.

Judgment reversed, and judgment for plaintiff in error.

MARSHALL, C. J., and ROBINSON,

of certain purported rights and franchises

STATE ex rel. CRABBE, Atty. Gen., v. SAN- to the defendant, the Baltimore & Ohio RailDUSKY, M. & N. R. CO. et al. (No. 18072.)

(Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by the Court.)

1. Dedication 64-To constitute misuse or diversion, use must be inconsistent with or interfere with use contemplated.

In order to constitute a misuser or diversion of property dedicated to public use it must appear that its use is inconsistent with the purpose of the dedication, or substantially interferes with the use thereof for the purposes contemplated in the dedication.

2. Dedication 57-Use of slips to water as streets held not inconsistent with purpose of dedication.

road Company, as its successors and assigns, to operate its main tracks, sidings, and switches, and to maintain buildings over, across, and upon certain real estate situated within the county of Erie and the city of Sandusky, being in part known and described as certain open and public slips extending from the north boundary line of Water street in that city northward to the public waters of Sandusky Bay, and being in part a tract of public land known and described as East Battery. The dimensions of the water slips are set forth in the petition. It is averred that all of the public slips of land and the tract called East Battery are owned by the state of Ohio and the city of Sandusky in trust for certain specific grants or purposes, that is for public waterways to and from the north boundary line of Water street to Sandusky Bay, and for no other purpose; that East Battery is owned by the state and by the city in trust for battery purposes, for public purposes only, as a trust title from the original owners in fee; that said railroad companies are each claiming title to and exercising franchises and rights over, and unlawfully occupying and using, a right of way 100 feet wide east and west The construction and maintenance of a rail-upon and across said several water slips, exroad track over and upon a city street and tending northward into Sandusky Bay from across the so-called "slips," pursuant to and the north termini of the streets therein in accordance, with the provisions of section named, and also a right of way over the 8763, General Code, there being no permit for tract known as East Battery. the exclusive use or permanent obstruction of said "slips" or any part thereof, and said "slips" remaining open for the free and uninterrupted use of the public, do not constitute such interference with or impairment of the use contemplated in the dedication as to warrant a decree for the removal thereof.

Where, in the dedication of streets and public grounds to a city, it is recited that "the open and public slips to the water" shall so remain forever, and such "slips" are tracts of land which are a continuation of streets therein platted, the use thereof by the city as public streets is not inconsistent with the purpose contemplated in the dedication.

3. Dedication 58-Construction of railroad tracks over city streets and across slips, held not to interfere with contemplated use thereof so as to warrant removal.

Quo warranto by the State, on the relation of C. C. Crabbe, Attorney General, against the Sandusky, Mansfield & Newark Railroad Company and others. Writ denied. [By Editorial Staff.]

This is an original suit in quo warranto in this court, wherein the Attorney General, on behalf of the state, seeks a writ ousting the Baltimore & Ohio Railroad Company and the Sandusky, Mansfield & Newark Railroad Company from exercising certain franchises, and also restraining them from occupancy and use of certain public slips in the city of Sandusky on and along Sandusky Bay, and also enjoining the city of Sandusky from further granting, suffering, or permitting such use and occupancy by said railroad companies.

The issue presented is made by motion of the plaintiff, the Attorney General, for judgment upon the pleadings. The plaintiff asserts that the Sandusky, Mansfield & Newark Railroad Company is a lessor and vendor

The pertinent facts set up in the answers are as follows: On June 5, 1818, Zalom Wildman, George Hoadley, and Isaac Mills, as proprietors of lands located on the shores of an arm of Lake Erie, particularly described as Sandusky Bay, and then located within the bounds of Huron county, filed for record in that county a plat designated as the "city of Sandusky," which plat showed public parks and lots, also streets which extended in substantially northerly and southerly and easterly and westerly directions, the most northerly of which was Water street, that being nearest the water's edge; each of the north and south streets terminating at Water street. North of some of the streets which extend north and south, and also north of the north line of Water street, were plots of ground designated as open public slips, which extend north from the north line of Water street to the water, corresponding to what would have been the extension of each of said north and south streets if those streets had been extended to the water's edge. Upon the north side of Water street, and between the so-called public slips, lots were platted called "water lots," extending northerly into the waters of Sandusky Bay. In the certificate filed and recorded with the plat, called "Certificate of

the Proprietors of the City," these slips were lows:

(146 N.E.)

Plat of Sandusky, rected that the tracks of the railroads then referred to as fol- in the city, which had theretofore been located by authority of the city in Water street, be removed from that street to Railroad street, and required such companies to

"The open and public slips to the water from Water street are as follows viz.: On Columbus avenue 10 rods in width, on Wayne and Jack-do a large amount of filling and grading, son streets, 9 rods, and on all the other streets 8 rods in width, and so to remain forever."

The slips mentioned by the proprietors were land extending to the water, and, in some instances, particularly at Decatur, Jackson, Wayne, and Warren streets, the north line of Water street was at the water's edge, and no land whatever was in existence extending from the north line of Water street. In 1838 the city of Sandusky, as so platted, was included in territory detached from Huron county by act of the General Assembly, and that, with other lands, constituted a new county called Erie.

both in Railroad street and in what was
called the public slips between Water street
and Railroad street, and the tracks so laid
in that street have been continuously used
since the year 1850.

ordinance duly passed by its council, granted
In the year 1880 the city of Sandusky, by
the right to lay and maintain what was
known as the third track in Railroad street
Baltimore & Ohio Railroad Company ac-
The defendant
the entire length thereof.
cepted the provisions of the ordinance, and
track is now jointly owned by that company
complied with the terms thereof, and that
and the Toledo, Columbus & Ohio River Rail-
dusky, Mansfield & Newark Railroad Com-
road Company, and the defendant, San-

By special act of the Legislature of the state of Ohio, passed March 6, 1845, the city of Sandusky was incorporated, with territorial limits as shown by the description in-pany has no right, title or interest in Railcorporated therein, extending northerly to the center of Sandusky Bay. In the year

1848, upon petition by the owners of lots on Water street for the establishment of a new

street north of the line of Water street, for

road street or in the third track; and neither of the defendant railroad companies

occupies the East Battery, so-called.

It is further averred in the answer of the

defendant city of Sandusky that the open spaces lying north of Water street, and north of the termini of the north and south streets, have at all times been kept open for the use and benefit of the public, who do and always have enjoyed free and unobstructed passage to and from the water front.

C. C. Crabbe, Atty. Gen., and Wilbur E. Benoy, of Columbus, for plaintiff.

King, Ramsey, Flynn & Pyle and E. H. Savord, City Sol., all of Sandusky, for defendants.

the purpose "of facilitating and accommodating the commercial and railroad business of said city," the court of common pleas of Erie county, under the provisions of law then in force, entered a decree establishing a new street to be denominated "Railroad street," extending from Lawrence slip, or street, easterly to the west side of Franklin street, or slip, of the width of 80 feet, at a distance of 80 feet from the north line of Water street. Said street was thereby declared to be a "public street and highway in all respects as if it had been originally laid out and acknowledged by the proprietors of said Sandusky City." No part of Railroad street so established passed over or across any of the so-called public slips. Prior thereto the owners of water lots had wharved out in the waters of Sandusky Bay in aid of navigation, and said street was desired as a public way connecting the wharves and docks along the then water front. Railroad street was graded, filled, and opened for traffic about the year 1855, and has continuously since been used by the public principally as a connecting way along the water front, and in transporting freight, merchandise and der certain conditions which were accepted passengers to and from the docks and wharves located on the water front of the city, in aid of commerce and navigation on the Great Lakes.

Railroad street as laid out is north of the public slips mentioned and referred to in the original plat of the proprietors of Sandusky city. Subsequent to the establishment of Railroad street the city of Sandusky through ordinances duly enacted by its council di

MATTHIAS, J. The issue presented here is made by motion of the relator for judgment on the pleadings, and the question for determination therefore is whether, under the state of facts presented by the answers, the railroad companies rightfully occupy Railroad street with their said track. It appearing also that the city of Sandusky by and through its council, by legislation duly enacted, required the removal of two of said tracks from Water street to Railroad street, and authorized the construction of the third track in question upon Railroad street, un

and complied with, our question really is whether the city of Sandusky had authority to grant the right to construct and maintain the track in Railroad street, and over and across the open public slips hereafter referred to.

Without restating the facts set forth in the answers let us observe the physical conditions as they were at the time of the dedication of the streets and public slips to pub

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