by the lease, and he remains responsible, under [ trance and exit for both apartments, and the doctrine of the above maxim, for defects therefore that neither would have any rearising from the want of repairs during the sponsibility to keep that portion of the premcontinuance of the lease." ises, so necessarily jointly used, in repair and in proper condition for the use of the other. The occupants of these two apartments were several and not joint tenants of the owner. The record further discloses that the defend [1] The principle applicable to all cases is stated as follows in Shindelbeck v. Moon, supra, at page 267: "Whoever had control of the premises at the time the cause of injury originated, that person is liable in damages; which simply means that the party in fault must respond." ant construed the relationship between herself and tenants served jointly by such stairway and porch, to be such that the obligation remained upon her to care for that portion of the premises, for, not only had her janitor previously cared for and made some repairs thereon during such tenancy, but in her testiten-mony she stated that she had not seen that there were any spindles out, but "if there had been I would have given the carpenter orders to have them put back." The rule particularly applicable to a situation such as here presented is stated in 16 Ruling Case Law, p. 1072, as follows: "So where premises are let to several ants, each occupying different portions, but all enjoying or using certain portions in common, such as the entrances, halls, stairways, etc., of the tenements or apartment houses, Many cases could be cited supporting the the landlord is held to be in control, and owes text above quoted from Ruling Case Law, not only to his tenants, but to those law-but we will note only those deemed especialfully on the premises as the servants, guests,ly in point. In Looney v. McLean, 129 Mass. and customers of the tenants, the duty to ex-33, 37 Am. Rep. 295, it was held: ercise reasonable care and diligence to keep such parts in safe condition, and for failure to do this he is liable to such servants, guests, etc., injured in consequence of his negligence, and without fault on their part." The author proceeds to set forth cogent reasons for the rule stated, being in substance that when houses, which can only be reached by the use of a common passage, are rented for dwellings, the necessity of such use for the beneficial enjoyment of the thing demised establishes a right to such use, and imposes an obligation upon the landlord to exercise reasonable care in maintaining the passage safe for such use; and, further, that the duty of the landlord to all persons visiting such tenant upon lawful occasions is similar to that which he owes the tenant. "Where a portion of a building is let, and the tenant has rights of passageway over staircases and entries in common with the landlord and the other tenants, there is no such leasing as will exonerate the landlord from all responsibility for the safe condition of that portion of which he still retains control, and which he is bound to keep in repair; as to such portion, he still retains the responsibilities of a general owner to all persons, including the tenants of his building." A proposition substantially the same as that involved in this case was considered and determined by the Supreme Court of Missouri in the case of Roman v. King, 289 Mo. 641, 233 S. W. 161, 25 A. L. R. 1263, and in that case it was held that, where a landlord demises a portion of a house to which access is had by way of the halls, stairways, and other approaches, to be used in common with the owner or other tenants, it is the duty of the owner to keep such undemised facilities, or to use reasonable care to keep them, in a safe condition for the use of the tenants. But the owner of a tenement consisting of flats for two families is held bound to use reasonable care to maintain, in a safe condition for the use of both tenants, the steps leading to the porch which affords access to both. While in the case at bar it did appear that one of the tenants of the two apartments in question could reach the rear yard by going down his inside front stairway, and thence through a passageway to the rear of the apartment, yet, as heretofore stated, the kitchen door of each of the apartments opened onto this second-floor porch reached by the rear outside stairway, and it was thereby clearly designed and maintained for use, and in fact was used, by both of said tenants. True, a mere amicable joint user, not required by the character of the premises or authorized by the landlord, would not bind him; but here a joint user was clearly contemplated by the character of construction, its design for joint user by the several tenants, and its main-fore stated, suggests that though an attempt tenance therefor, in addition to the necessarily known manner of occupancy and use of that portion of the premises. In a situation such as the facts here disclose it is quite apparent that neither of the tenants could have exclusive control or exclusive use and occupancy of the stairway and In McGinley v. Alliance Trust Co., 168 Mo. 257, 66 S. W. 153, 56 L. R. A. 334, the judge delivering the opinion of the court, after setting forth the rule substantially as hereto has been made in some cases to draw a distinction between tenement and apartment buildings having common hallways, stairways, etc., in which the landlord employs janitors to attend them, and similar buildings where no janitors are employed, such distinction cannot be made upon principle, al (146 N.E.) to prove that the landlord has retained control of common passages when he has janitors, but that their absence would not affect the principle, for the fact of the landlord's control can be established by other evidence, or be reasonably inferred from all the circumstances. The case of Widing v. Penn. Mutual Life Ins. Co., 95 Minn. 279, 104 N. W. 239, 111 Am. St. Rep. 471, is quite in point upon the facts, and holds it to be the duty of the owner of a city apartment house, renting the flats therein to tenants for housekeeping purposes, to exercise ordinary care to maintain the rails around the porches in a reasonably safe condition. In the case of Hinthorn v. Benfer, 90 Kan. 731, 136 P. 247, L. R. A. 1915B, 98, the Supreme Court of Kansas held: right to use the roof in common with others. These cases so directly in point, together with numerous cases involving liability of a landlord for injuries resulting from a defective elevator, and like cases supporting the text above cited, constitute the clear weight of authority upon the subject. Indeed, in Thompson on the Law of Negligence, vol. 1, § 1138, it is said: "The weight of authority, and the only conclusion compatible with common sense, is that where different parts of the same building, or of the same grounds, are let to different tenants, and the landlord retains possession of a portion, the proper reparation of which is necessary to the enjoyment by the different tenants of their different holdings, such as a common hallway, a common stairway, or a common roof, the landlord stands under an obligation to keep such portion in suitable repair." "A narrow porch or landing of an outside stairway used and intended for the use of Numerous cases are cited by Tiffany on different tenants of a building, and connected with a common hallway, is part of the stair-Landlord and Tenant, vol. 1, p. 628, supportway itself, and necessarily in the possession ing the proposition stated in the text, as foland control of the landlord, and he is bound lows: to exercise reasonable care to render it safe "It frequently happens that the owner of a for the use which he invites others to make building demises separate parts thereof to dif of it." The court also held: "Whether the landlord in this case was guilty of negligence in failing to discover the defective condition of the landing was a question of fact for the jury, and it was error to sustain a demurrer to the evidence." In another case from Minnesota, Farley v. Byers, 106 Minn. 260, 118 N. W. 1023, 130 Am. St. Rep. 613, it was held as follows: "Where a porch or stairway is used in common by the different occupants of a tenement house or flat building, the landlord will be presumed to have reserved possession thereof for the benefit of all the tenants, and he is under obligation to all parties having occasion to use the premises to exercise ordinary care to keep the same in repair." In Wilcox v. Zane, 167 Mass. 302, 45 N. E. 923, it was held that one who went on a roof at the request of a tenant, although going gratuitously, could recover from the landlord for injuries due to the defective condition of the roof, where the tenant himself had a ferent tenants, access to which parts is by means of a passage, stairway, or other means of approach, which, while intended for the use of the different tenants, is not in itself included in the demise to any one of them and consequently remains in control of the landlord. In such case the landlord in effect invites the use of such passages or stairway by tions to the tenants involve their use of these the tenants, and by other persons whose relaapproaches in order to obtain access to the rooms or apartments demised, and he is accordingly regarded as liable, both to the tenant and such other persons, for any injury caused by his failure to exercise reasonable care to keep such parts of the building in proper repair." fore conclude that this case was properly Upon principle and authority, we theresubmitted to the jury, and accordingly the judgment of the Court of Appeals is reversed. Judgment reversed. MARSHALL, C. J., and JONES, DAY, ALLEN, KINKADE, and ROBINSON, JJ., con cur. (No. 18700.) LUFF v. STATE. (Supreme Court of Ohio. March 10, 1925. Rehearing Denied March 17, 1925.) (Syllabus by the Court.) 1. Criminal law 1092(1)-Statutory duties of party as to bill of exceptions are mandatory and must be performed in manner and time prescribed. Although the provisions of the statute defining the duties of the clerk and trial judge with respect to a bill of exceptions are directory, the requirements thereof relative to the duties of a party are mandatory in character and must be performed in the manner and within the time prescribed by statute. 2. Criminal law 1092 (7) - Bill of exceptions available only when filed within time fixed by court, and not more than 30 days from overruling motion for new trial. In the prosecution of error by a defendant from an adverse verdict and judgment in a criminal case in the court of common pleas a bill of exceptions is not available unless filed therein within the time fixed by that court, which, under the provisions of section 13680. General Code, as amended April 5, 1923 (110 O. L., 301) cannot be more than 30 days from the overruling of the motion for a new trial. "It is ordered and adjudged by the court that said defendant, Morris F. Luff, be imprisoned and confined in the Ohio State Penitentiary, Columbus, Ohio, for a minimum period of seven years, and that he pay the costs of this prosecution for which execution is awarded. Thereupon the motion for a new trial by the defendant came on to be heard and was argued by counsel, the court after consideration overruled same and the defendant excepts. Defendant gives notice of intention to file bill of exceptions." A further journal entry shows that on the same day, upon application of the defendant, the court ordered further suspension of the execution of sentence upon giving bond in the sum of $20,000 pending the filing and perfecting of error proceedings, and that such bond was given. On November 30, 1923, a bill of exceptions was filed by the defendant, and notice issued. Thereafter a petition in error was filed in the court of appeals, and, subsequently, a motion by the state to dismiss, which motion was apparently not decided by the Court of Appeals, for that court thereafter affirmed the judgment of the court of common pleas. Upon motion of the defendant below this court granted leave to file a petition in error. Hogan, Hogan, Hogan & Hogan, of Columbus, and R. J. Fitzgerald, of Cleveland, for 3. Criminal law 1092 (7) Where bill of Where such bill of exceptions is not filed in the trial court within the time so prescribed, and the errors charged are such as can be dis closed only by a bill of exceptions, the judgment must be affirmed. C. C. Crabbe, Atty. Gen., and Edward C. Stanton, Pros. Atty., and James T. Cassidy, Asst. Pros. Atty., both of Cleveland, for the State. MATTHIAS, J. [1] The only question now presented in this case involves the construction of the language of section 13680, Error to Court of Appeals, Cuyahoga General Code, as amended in 110 Ohio Laws, County. Morris F. Luff was convicted of embezzlement. Judgment was affirmed by the Court of Appeals and defendant brings error. Affirmed. [By Editorial Staff.] The questions presented arose upon a motion to dismiss this case upon the ground that the bill of exceptions containing a transcript of the testimony was not filed in the trial court within the time required by law, and that, therefore, the Court of Appeals was without jurisdiction to hear and determine the case on its merits and this court likewise without jurisdiction to review the judgment of the Court of Appeals. 301, or rather the application of the provisions of that section to the facts presented in this case. Its language is clear and unambiguous. The provision that a defendant feeling himself aggrieved by a decision of the court may present his bill of exceptions thereto, which the court shall sign, and that such bill of exceptions shall be made a part of the record and have like force and effect as in civil cases, is followed by this language: "The court shall fix the time within which such bill of exceptions shall be filed, which shall in no case be more than thirty days from the overruling of the motion for a new trial." effect of such language; even an order of the court cannot extend the time within which a bill of exceptions may be filed be Luff was indicted and convicted on a No argument can modify the mandatory charge of embezzlement. The journal entries disclose that the verdict of the jury was returned October 24, 1923. The entry, after reciting the verdict of conviction, and stat-yond the limit fixed by the statute, which is ing that an opportunity was afforded the defendant to say anything he desired as to why sentence should not be pronounced, is as follows: 30 days. In no case can it be more than 30 days. The well-established rule that remedial provisions shall be liberally construed can (146 N.E.) not be applied to relieve such a provision of its mandatory character. In the cases Cincinnati Traction Co. v. Ruthman, 85 Ohio St. 62, 96 N. E. 1019, Ann. Cas. 1913A, 911, and Pace v. Volk, 85 Ohio St. 413, 98 N. E. 111, this court held that a party should not be deprived of an opportunity of having his case reviewed by the failure of an official to perform a ministerial act after the exceptor had reduced to writing and duly filed his bill of exceptions in the office of the clerk within the time limited by law, but at the same time held that the requirement that “the party excepting must reduce his exceptions to writing, and file them in the cause, not later than forty days after the overruling of the motion for a new trial," is mandatory. The cases to which we have just referred, and others, deal with provisions of the stat ute which have been declared to be directory in character, but, while doing so, as we have seen, do not relieve the exceptor of the discharge of the duty which is by positive language imposed upon him. [2] Where a bill of exceptions is not filed within the statutory time, the judge is without authority to allow and sign such bill. State ex rel. Anderson v. Spence, 94 Ohio St. 252, 113 N. E. 1048. It is urged that the limitation is not affected in this instance because a motion for a new trial was not in fact filed. The journal entry, through which, of course, the court speaks, discloses that on the same day on which the verdict was returned a motion for a new trial came on to be heard and was argued by counsel and overruled by the court, and an exception thereto taken by the defendant; and as a matter of fact one of the grounds stated and relied upon by the plaintiff in error in the Court of Appeals and here is that the court of common pleas erred in overruling the motion of defendant for a new trial. If it be true that a written motion for a new trial was not filed in the court of common pleas, and counsel for plaintiff in error is correct in the contention that the limitation of time cannot begin to run until the filing of such motion, he could confer upon his client the favor of an indefinite period of time in which to prepare and file a bill of exceptions by the very simple and expedient act of refraining from filing a motion for a new trial. It appears, however, that if it be considered that the overruling of the motion for a new trial became effective at the expiration of the 3day period within which such motion is re quired to be filed, and the limitation of 30 days for a bill of exceptions be calculated from that time, even this liberality of construction would not avail the plaintiff in error, for his bill of exceptions was filed four days later than the 30 days even thus liberally calculated. Even if it be true, as claimed, that the failure to procure and file a bill of exceptions within the time prescribed by law was caused by the inexcusable delay on the part of the court reporter to furnish a transcript, the party seeking to prosecute error is not thereby relieved from the responsibility placed upon him by statute. He cannot delegate his duty, nor evade his responsibility. A party may procure a transcript of the evidence from the stenographer, who is required to furnish it on payment of the legal fee therefor; but in such event the only duty of the stenographer is to furnish such transcript. That is the most convenient way, and now the almost universal practice, but not the only method of preparing a bill of exceptions. The burden is upon the complaining party to comply with the mandatory requirements of the statute in any and all events if he desires to procure a review of an adverse judgment. Searles v. Cowdrick, 21 Ohio Cir. Ct. R. (N. S.) 378, affirmed by the Supreme Court without opinion 91 Ohio St. 371, 110 N. E. 1067. The enforcement of limitations of a statute providing for the time and manner of prosecution of error is not a denial of due process of law, and therefore no violation of the provisions of section 1, art. 14 of the Constitution of the United States, for it is wholly within the discretion of each state to refuse a review in criminal cases or to grant it upon such terms as it prescribes. 12 Corpus Juris, 1209, and numerous cases cited. [3] The conclusion is irresistible that there was no valid bill of exceptions, and it appearing that none of the questions presented by the plaintiff in error can be determined upon the record properly before us, consisting of the indictment, plea and journal entries heretofore referred to, and there being no question as to the validity of the indictment, it follows that the judgment of the Court of Appeals must be affirmed. Judgment affirmed. MARSHALL, C. J., and JONES, DAY, ALLEN, KINKADE, and ROBINSON, JJ., con cur. (No. 18470.) JONES v. STEVENS. (Supreme Court of Ohio. March 10, 1925.) (Syllabus by the Court.) 1. Damages 76-Considerations determining whether sum is penalty or liquidated damages, stated. To determine whether a sum named in a contract is intended as a penalty or as liquidated damages, it is necessary to look to the whole instrument, its subject-matter, the ease or difficulty of measuring the breach in damages, and the amount of the stipulated sum, not only as compared with the value of the subject of the contract, but in proportion to the probable consequences of the breach, and also to the intent of the parties ascertained from the instrument itself in the light of the particular facts surrounding the making and execution of the contract. 2. Damages 76-When sum agreed on is regarded as "liquidated damages," stated. Where the parties have agreed on the amount of damages, ascertained by estimation and adjustment, and have expressed this agreement in clear and unambiguous terms, the amount so fixed should be treated as liquidated damages and not as a penalty, if the damages would be (1) uncertain as to amount and difficult of proof, and if (2) the contract as a whole is not so manifestly unconscionable, unreasonable, and disproportionate in amount as to justify the conclusion that it does not express the true intention of the parties, and if (3) the contract is consistent with the conclusion that it was the intention of the parties that damages in the amount stated should follow the breach thereof. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Liquidated Damages.] tract with the defendant in error, Stevens, whereby Stevens, for a consideration of $2,000 per year, was to be permitted to operate Maple Restaurant No. 2 under the lease held by Jones, and to use all of Jones' equipment and fixtures during the life of the lease, Stevens to pay, in addition, the rent called for by the lease, to keep up the equipment in as good condition as when he received it, and to replace all articles broken or worn out during the term of his tenancy. The business as conducted by Jones had been of sufficient volume to pay the rent of $4,500, the wages of all employés, all other operating expenses, and, in addition thereto, a good profit to the plaintiff in error. It was agreed in the contract that the good will of the business was of the value of $5,000, over and above the value of the equipment, fixtures, and lease, and that the defendant in error should operate the business in such a careful and businesslike way as to preserve the good will. And it was further agreed that the business should be so carefully operated that the weekly gross income should be and remain not less than $750, and that if it fell below that amount in each of four successive weeks, or if the average gross income for four successive weeks should be less than $750, then the value of the restaurant should be considered as being only the value of the equipment, fixtures, and lease, and the value of the good will be considered worthless, and plaintiff in error should then be entitled to receive from the defendant in error the sum of $5,000, as liquidated damages, for the loss of the good will so permitted by defendant in error Ste vens. Stevens went into possession June 1, 1920, Error to Court of Appeals, Cuyahoga and continued operating the restaurant until County. Action by William F. Jones against Harry J. Stevens. Judgment for plaintiff on directed verdict was reversed by the Court of Appeals, and plaintiff brings error. Reversed and judgment of court of common pleas affirmed. [By Editorial Staff.] The facts out of which this controversy grows may be stated in substance as follows: William F. Jones was the owner of two restaurants in Cleveland, one called Maple Restaurant No. 1 and the other Maple Restaurant No. 2. He had operated Maple Restaurant No. 2 for some time prior to May 25, 1920, in the second floor of a building situated at the southwest corner of Ontario street and Champlain avenue, in the city of Cleveland. He was required to pay an annual rental of $4,500, payable $375 a month, and the lease under which he occupied the premises would expire on March 1, 1924. On the 25th day of May, 1920, Jones, the plaintiff in error, entered into a written con March 1, 1921. Both Stevens and his wife had been in the restaurant business more than 20 years. The evidence shows that for the first month of his possession, Stevens, after paying the rent, help and all expenses of operation, and making his monthly payment to Jones of $166.66 for use of the business, had a clear profit remaining of more than $500; that in the fall and winter of 1920 and 1921 the business fell off to such an extent that in January and February the weekly receipts averaged much less than $750; that, in fact, for more than four succeeding weeks they were less than $300 per week, which was very much less than the cost of operation. The evidence shows further that Stevens abandoned the restaurant, and turned back the keys to Jones on March 1, 1921, and that thereafter Jones, in an effort to pay the rent, for which he was bound a further period of three years, and in an effort to bring the good will back to a paying basis, operated the restaurant for a further period |