being conceded that the Supreme Court's ap- provisions of these statutes, we would not pellate jurisdiction in criminal cases is now hesitate to adopt these statutes as rules of limited to felonies, that therefore the stat- procedure in order to invoke the appellate utes must fail. Now crimes in Ohio are di- jurisdiction in cases of this character. Howvided into felonies and misdemeanors. The ever, we do not think that is necessary, bedistinction is clear and well settled. cause the Constitution omits criminal appellate jurisdiction in misdemeanors but ex pressly saves it as to felonies, that will not of itself cause the statutes to fall, so far as cases of felonies are concerned. The two classes of cases are readily separable, and the court will have no difficulty in applying the statutes to felonies, though they are no longer applicable to misdemeanors. A careful reading and analysis of these sections in question clearly discloses the fact that in none of these sections is there any express grant of appellate jurisdiction. There are no apt or appropriate words directly or indirectly conferring that appellate jurisdiction. The final test is: Has the Legislature under the new Constitution the present right to enact statutes substantially like the statutes in question as a matter of legal procedure? If the Legislature has that right, then clearly the statutes survive under the new Constitution for the purpose of furnishing a rule of procedure, though not necessary for the purpose of conferring a jurisdiction that is already conferred. Because, under the tests laid down in the Cass v. Dillon Case, supra, every particle of the statutes in question save the misdemeanor portion is wholly consistent and reconcilable with the new Constitution, even in respect to appellate jurisdiction, so that, either as statutes of procedure, if enacted by the Legislature, or rules of practice, when adopted by this court, they are essential and indispensable to the exercise of full and complete appellate jurisdiction in cases of felony. No part of these statutes, so far as they apply to felonies, can be omitted from a systematic and orderly course or code of procedure. Every step in the journey from the trial court to the Supreme Court must be taken These sections deal entirely substantially agreeable to these provisions with procedural law, setting forth how the of the statutes in order to get a review of bill of exceptions shall be prepared in the the legal questions. trial court, the notice to be given to the trial judge, the appointment of an attorney by the trial judge to support the decision below, and the further provision that the whole question as to whether or not the same shall be allowed to be filed with the Supreme Court rests in the leave or discretion of the court. The only way that these statutes could in any wise confer appellate jurisdiction would be under the rule of "necessary implication." For it is quite clear that this procedure could have no force and effect unless the jurisdiction were intended to be conferred upon the Supreme Court. In effect, however, what the Legislature really did was to put the whole question of whether or not the Supreme Court would entertain jurisdiction in a case like this up to the Supreme Court itself. If the Supreme Court thought wise to entertain the jurisdiction it could do it. If it refused its "leave" it might do so. The discretion of the court was full and final. What the Legislature did under the old Constitution in leaving it for the Supreme Court to say to what extent it would entertain appeals of this character, the people have now done by the provisions of the new Constitution. Now all these steps and rules of procedure indicated by these various statutes are obviously within the right of the Legislature to enact under either the old Constitution or the new Constitution. It is a matter of common knowledge that, though jurisdiction may be conferred upon a court by either a constitutional or statutory enactment, very frequently additional legislation is necessary to furnish some procedure in order to make the jurisdiction in anywise available or effective. In the absence of statutory legislation in that behalf, the courts upon whom such jurisdiction has been conferred might, no doubt, provide rules of procedure. And if it were necessary in or It is urged, however, that the language of the new Constitution, "cases of felony," is not comprehensive enough to include a proceeding of this character. Manifestly constitutional provisions should be liberally and reasonably construed so as to effect the public purpose. A narrow and restricted interpretation that would cut down or destroy such a public purpose ought not to be encouraged or tolerated by our courts. Originally, of course, that was a "case of felony," but it is urged that the court having sustained the demurrer and the state having elected to proceed, not by petition in error, but by motion, the adversary character of the original case has been destroyed, so that what was a case has now ceased to be a case. No profit can come from reviewing the technical definitions that have been applied again and again to the word "case." They all amount to a tweedledee and tweedledum distinction at the bottom. The Legislature itself refers to the proceeding as a "case." This appears from section 13682, General Code: "If the court allows the bill to be filed, the judge shall appoint some competent attorney to argue the case against the prosecuting attorney or Attorney General," etc. We believe that a sound and sensible criminal jurisprudence demands the continuation of the established policy of this state, which has been in force under these statutes or to felonies only. In this particular, at least, these sections of the General Code are in direct conflict with the constitutional provision on this subject. State v. Mansfield, 89 Ohio St. 20, 104 N. E. 1001. very often occur that the whole case shall | amendment to the Constitution, however, turn upon the view the trial judge takes of limits the jurisdiction of the Supreme Court the law as to some particular phase of the case. It will not only facilitate the trial of criminal cases generally, but also be a great saving of time during the trial in avoiding the taking of evidence where legal questions turn out to be the real pivot of the case. Nobody is injured thereby, the rights of all parties are abundantly preserved, and justice is very measurably safeguarded and often expedited. These sections purport not only to confer jurisdiction upon this court, but they also attempt to limit its jurisdiction. The Constitution, as amended, provides that this court shall have appellate jurisdiction “in cases of felony on leave first obtained." This means full, and not partial, appellate The same question of jurisdiction discussed and determined herein arises in State v. Baxter, in respect to which the same deci-jurisdiction. sion is rendered. A motion to strike the bill of exceptions from the files is therefore overruled. Motion overruled. Section 13684, General Code, provides that: "The judgment of the court in the case in which the bill was taken shall not be reversed nor affected; but the decision of the Supreme Court shall determine the law to govern in a NICHOLS, C. J., and JOHNSON, NEW- similar case." MAN, and WILKIN, JJ., concur. This means in all criminal cases, whether the defendant has been once in jeopardy or DONAHUE, J. (dissenting). In the case not, and if this section were to be given efof the State of Ohio v. Cox, 87 Ohio St. 313, fect it would limit the appellate jurisdiction 101 N. E. 135, it was held that the sections in felony cases conferred by the Constituof the General Code, under favor of which tion, at least in all cases where the defendthe prosecuting attorney of Franklin county ant has not been once in jeopardy. There has filed this bill of exceptions, conferred never was any good reason for limiting the upon the Supreme Court appellate jurisdic-appellate jurisdiction of this court to merely tion for the purpose and to the extent nam- declaring the law to govern in a similar case ed therein. The Constitution of 1851 was where the accused had not been once in then in force, and that Constitution author- jeopardy. Such a provision tended merely ized the General Assembly of Ohio to confer to permit the guilty to escape, and was not appellate jurisdiction upon this court. and is not necessary for the protection of the innocent. The Constitution, as amended September 3, 1912, does not confer any such authority The Constitution, as amended, now conupon the General Assembly. The schedule fers upon this court appellate jurisdiction to the amendments to the Constitution pro- to review and reverse the judgment in a vides that: felony case. It ought to exercise that juris"All laws then in force, not inconsistent diction as in all other cases, and if pertherewith shall continue in force until amend-chance the defendant has been ed or repealed." In the absence of such provision in the schedule, the same result would follow. In the case of Cass v. Dillon, 2 Ohio St. 607, it was held by this court that all laws not inconsistent with an amendment to the Constitution would remain in force without any express provision to that effect, and that all inconsistent laws would fall simply because they were inconsistent. once in jeopardy, other provisions of the Constitution fully protect him from further prosecution, and even in such case the judgment of this court will have at least as much force and effect as it can have under the statute. This section, purporting to limit the appellate jurisdiction of this court conferred by the Constitution in felony cases, is in clear conflict with the Constitution itself. Section 2 of article 4 and section 6 of ar This court now derives all its jurisdiction ticle 4, relating to the appellate jurisdiction directly from the Constitution itself. The of this court and the jurisdiction of the Legislature has no power to limit or increase that jurisdiction. Upon that subject the Constitution is final. It necessarily follows Courts of Appeals, must be construed together. Section 6 of article 4 as amended specifically provides that the Courts of Apthat any laws existing at the time these peals shall have appellate jurisdictionamendments to the Constitution were adopt-"to review, affirm, modify or reverse the judg ed, which confer or purport to confer juris-ments of the courts of common pleas, superior diction upon this court, are inconsistent courts and other courts of record within the with these amendments to the Constitution, and must fall simply because they are in consistent. These sections of the General Code above referred to purport to confer jurisdiction upon the Supreme Court in all criminal cases, misdemeanors as well as felonies. The district as may be provided by law, and judgments of the courts of appeals shall be final in all cases, except cases involving questions arising under the Constitution of the United States or of this state, cases of felony, cases of which it has original jurisdiction, and cases of public or great general interest in which the Supreme Court may direct any court of appeals to certify its record to that court. No judgment of a court of common pleas, a superi- | final certainly forecloses all controversy on or court or other court of record shall be re- this subject. The plain provisions of secversed except by the concurrence of all the judges of the Court of Appeals on the weight tions 2 and 6 of article 4 of the Constitution of the evidence and by a majority of such Court confer exclusive appellate jurisdiction in of Appeals upon other questions; and when- the first instance in all cases upon the ever the judges of a Court of Appeals find that Court of Appeals to review, affirm, modify, a judgment upon which they have agreed is in conflict with a judgment pronounced upon the or reverse the judgment of courts inferior same question by any other Court of Appeals of to it within its jurisdiction, and confer apthe state, the judges shall certify the record of pellate jurisdiction upon this court, in certhe case to the Supreme Court for review and tain cases only, to review and affirm, modifinal determination.' fy or reverse, the judgment of the Court of Appeals, and incident to this jurisdiction this court would, of course, have the right to affirm, modify, or reverse the judgment of the court inferior to the Court of Appeals, which was the subject of review in that court, or to render the judgment that the Court of Appeals or the trial court should have rendered. Further than that this court has no appellate jurisdiction. Section 2 of article 4 confers appellate jurisdiction upon the Supreme Court in all cases involving questions arising under the Constitution of the United States or of this state, in cases of felony on leave first obtained, and in cases which originated in the Court of Appeals, and further provides that: "In cases of public or great general interest the Supreme Court may, within such limitation of time as may be prescribed by law, direct any Court of Appeals to certify its record to the Supreme Court, and may review, and affirm, modify or reverse the judgment of the court of appeals." The provision in section 6 of article 4 that the Court of Appeals shall have appellate jurisdiction to review, affirm, modify, or re verse the judgment of the court of common pleas and other courts inferior to it within its jurisdiction is too plain to be mistaken, but the further provision that in all cases, except the ones specifically enumerated, the judgment of the Court of Appeals shall be Any act of the General Assembly purporting to take from the Court of Appeals the appellate jurisdiction conferred by the Constitution upon that court to review, affirm, modify, or reverse the judgment of the court of common pleas, superior courts, or other courts of record within the district, and transfer that jurisdiction to the Supreme Court, is in clear conflict with these two provisions of the Constitution and void. For these reasons, I cannot concur in the conclusion reached by the majority of this court in this case. (89 Ohio St. 365) shown by the catalogue of the machinery PETERSBURG FIRE BRICK & TILE CO. v. company. This contract was approved on the AMERICAN CLAY MACHINERY CO. (No. 13530.) (Supreme Court of Ohio. Feb. 10, 1914) (Syllabus by the Court.) 1. Sales (§§ 62, 164*)-INDIVISIBLE CONTRACT A written contract for the sale of several articles of personal property for a sum in gross is indivisible except by subsequent agreement of the parties, and the seller cannot recover the contract price or any part thereof unless he substantially performs, or tenders performance of, all the terms of the contract on his part to be performed. -RECOVERY OF PRICE-PERFORMANCE. [Ed. Note.-For other cases, see Sales, Cent. Dig. 88 171-179, 386-390; Dec. Dig. §§ 62, 164.*] 2. SALES (§ 164*)-INDIVISIBLE CONTRACTSUBSTANTIAL PERFORMANCE. Under such a contract the delivery of a part of the personal property sold, equal in value to about one-third of the total contract price, is not a substantial performance on the part of the seller. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 386-390; Dec. Dig. § 164.*] 3. SALES (§ 150*) - CONTRACT — DELIVERY SUFFICIENCY. Where a contract for the sale of personal property specifically provides for the manner and method of delivery, the seller has no right or authority to impose other or further conditions precedent to delivery than those named in the contract. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 350, 351, 354-356; Dec. Dig. § 150.*] 4. SALES (§ 161*) - CONTRACT-CONDITIONAL DELIVERY-SUBSTANTIAL PERFORMANCE. 10th day of March, 1906, by the secretary On the 8th day of May, 1906, the dry pan in the name of the machinery company, was On the 28th day of July, 1906, the machinery company shipped to its own order to Coal Grove, Ohio, the dry-press brick machine and agitating clay feeder described in the contract, forwarding the bill of lading with four unsigned promissory notes covering the entire purchase price of all the machinery to the First National Bank of Ironton, Ohio. That bank was instructed, upon the execution and delivery of these notes by the brick company, to turn over to that company the bill of lading covering this shipment. brick company refused to accept the shipment or to execute the notes, and thereupon the dry-press brick machine and the agitating clay feeder were returned to the machinery company. The dry pan still remained in the possession and use of the brick company. The On the 29th day of November, 1909, the machinery company filed its petition in the common pleas court of Lawrence county, Delivery of personal property to a common Ohio, seeking to recover the value of the carrier, the bill of lading being taken in the name of the seller, and forwarded to a bank in dry pan. The pleadings in the case are a city other than the purchaser's place of busi- voluminous, consisting of petition, answer, ness, with the demand upon the purchaser that and cross-petition, reply to answer and anhe execute and deliver to this bank for the sell-swer to cross-petition, reply to answer to the er, notes covering the entire purchase price before the bill of lading will be delivered to him, does not constitute a delivery or a sufficient tender of delivery under a contract of sale of personal property which provides for delivery f. o. b. cars at shipping point for shipment to the purchaser, and which further provides for the payment of one-fourth of the purchase price within 30 days after the arrival of the property on the cars at its destination, the residue thereof to be paid in 4, 8, and 12 months, respectively, deferred payments to be evidenced by notes of even date with the bill of lading. [Ed. Note.-For other cases, see Sales, Cent. Dig. 88 377-380; Dec. Dig. § 161.*] cross-petition, amendment to petition, answer to petition and amendment thereto and crosspetition, answer to cross-petition and reply, and reply to the answer to the cross-petition. The plaintiff pleads a contract and full performance on its part, and an averment that the defendant failed, neglected, and refused to comply with the terms of the contract and refused to accept the dry-press machine and the agitating clay feeder, and that at the request of the defendant it took back these two pieces of machinery and credited it with $1,600 on the contract price. The defendant denies that plaintiff complied with the contract on its behalf, and avers that plaintiff failed to deliver the goods within the time specified in the contract; denies that plaintiff ever did deliver to it the press brick machine or agitating clay feeder; and denies On the 8th day of March, 1906, the Peters- that plaintiff took same back at the request burg Fire Brick & Tile Company accepted of the defendant, or that it credited the conin writing a written proposition of the Ameri-tract price with $1,600, at the request of the can Clay Machinery Company to furnish one defendant. By cross-petition defendant asks two-mould dry-press brick machine, one $10,237 damages for breach of contract by eight-foot dry pan, and one agitating clay the plaintiff in failing to ship this machinery feeder, of certain styles and numbers as within the time stipulated in the contract Error to Circuit Court, Lawrence County. Action by the American Clay Machinery Company against the Petersburg Fire Brick & Tile Company. A judgment for plaintiff by the common pleas court was affirmed by the circuit court, and defendant brings error. Reversed in part and affirmed in part. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indeves 106 N.E.-3 A. R. Johnson and Dan C. Jones, both of Ironton, for plaintiff in error. Cooper & Russell, of Ironton, and Finley & Gallinger, of Bucyrus, for defendant in error. DONAHUE, J. (after stating the facts as above). The evidence material to the issues and correspondence between the parties In answer to this claim for damages, made | judgment of the circuit court affirming the by the defendant in its cross-petition, the same. plaintiff pleads a waiver on the part of defendant as to the time of shipment. It also recites certain other provisions of the contract with reference to delays that might be occasioned by specific causes named therein, and avers that these causes did occasion the delay in shipment. It also pleads the provisions of the contract in reference to exemption from liability on the part of plaintiff for joined in this case is the written contract failure to ship within the time specified. The touching the subject-matter of the contract. defendant denies any waiver of the terms of This contract, in brief, provides that plainthe contract on its part as to the time in tiff shall furnish f. o. b. cars at Bucyrus, which this machinery was to be shipped or Ohio, or Willoughby, Ohio, or at factory as to damages resulting from failure to ship where made, one two-mould dry-press brick the same. It also avers that the dry pan is machine, one eight-foot dry pan, and one No. of no value to it without the other machin-1 agitating clay feeder within 30 days, or ery, and not worth to exceed $700 in any event, that the contract was an entirety, and contemplated each piece of machinery fitting in and becoming an integral part of the other in operating the plant; and further avers that certain terms and provisions now appearing to have been printed in the contract were not known to the defendant at the time It signed the same, that the manager of the brick company, by reason of failing eyesight and not having his spectacles at hand, was unable to read it, and relied upon the reading by the agent of the machinery company, and that the contract, as read to him and as discussed and agreed upon by himself and the agent of plaintiff, contained no provision with reference to delay in shipment, no provisions releasing plaintiff from liability therefor, no provisions that the property should be insured against loss by fire, loss, if any, payable to plaintiff, and no agreement or understanding that the agent had no authority to contract for and on behalf of the company, and no provisions that the title to the machinery should remain in the plaintiff, and that it did not learn of such matters until recently, but avers that in any event the delays were not occasioned by any of the causes named in the contract, nor were they due to delay of the goods in transit, but were caused solely and alone by the neglect and default of the plaintiff. The petition contains a second cause of action, in which it is sought to recover $24 for certain items of merchandise furnished to defendant, claimed not to be included in the contract. This is denied by the answer, but no controversy arises in this record now as to these items. sooner, if possible. For these three articles, to be delivered in the manner and at one of the places specified, the defendant was to pay $2,450. Six hundred dollars of this purchase price was to be paid in 30 days after arrival of machinery on the cars at Coal Grove, Ohio, and the balance in three equal payments, due in 4, 8, and 12 months from date of the bill of lading. Bankable notes bearing legal rate of interest were to be given for deferred payments, these notes to be secured, if required by plaintiff, by personal or collateral security satisfactory to plaintiff. The contract further provided that deliveries should be made subject to delays caused by fires, strikes, accidents, and causes beyond the control of the plaintiff, and that plaintiff assumed no liability for delays in shipment or while goods are in transit, and that the receiving of the material and machinery by the defendant would operate as a waiver of all claims for damages by reason of any delay in delivery however caused. It further provided that the title to the material and machinery should remain in the plaintiff until the full purchase price was paid in cash, with full right of access thereto until such payment was made, that such machinery was to remain the personal property of plaintiff, and not be attached as a fixture, and, on payment of the full purchase price, plaintiff agreed to transfer title to defendant. It further provided that the defendant should keep this machinery insured against fire in an amount sufficient to protect the plaintiff, the policies to contain a clause making them payable to the plaintiff as its interests might appear at time of loss, and, in event such insurance was not obtain Upon the issue so joined the case was sub-ed, then the defendant to assume and pay mitted to the court without the intervention all loss sustained by the plaintiff by fire of a jury, and the court found on all the is- from any cause. sues joined for the plaintiff, rendering judgment for the full amount on both causes of action, and denied the defendant any damages on its cross-petition. This judgment was affirmed by the circuit court, and error is now prosecuted in this court to reverse the The claim made by the defendant in its cross-petition that it was not fully advised of all the terms of this contract when it signed the same is not important at this time. Nor do we think it was error for the trial court to reject evidence in reference thereto. It |