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Sloss Marblehead Lime Co. v. L. P. & J. A. Smith.

superintendent of mills had admitted to McGinnis, who brought suit because the mills kept up and maintained a nuisance, that it was a nuisance which they were maintaining. He admitted it when McGinnis was conversing with him on this subject, and they were discussing the matter as to what should be done. That was held to be admissible. But in every one of the cases that I have been able to find, admissions of the officers have been allowed to be given in evidence only when given in connection with the subjectmatter upon which the admissions were being made, and in connection with somebody and at a time when the corporation was called upon to say something.

In this case the corporation was not called upon to say anything as to the arrangement which it had with the Smiths, and it seems clear to us that the corporation could not be bound by something Sloss said to Stein about what kind of a contract they had with the Smiths. We think this was error to the prejudice of the defendant below, and the plaintiff in error.

We have found no authorities in our own state, which show that admissions made by any of the officers of a corporation to one not connected with the transaction can bind the corporation.

The petition goes on to state after that part which I have recited, that plaintiffs are under a contract and agreement with the government of the United States to build and construct for it a pier in the city of Cleveland, O., and were compelled under the provisions of said contract to use stone in the amount of 5,000 cords; and that by reason of the failure and refusal of the defendant to perform the contract and agreement as aforesaid made with it, plaintiffs have been compelled to contract for and to purchase stone elsewhere; that they have been unable to purchase stone of the kind and character purchased of the defendant, at a price less than $2.75 per cord, and that by reason of the breach on the

Sloss Marblehead Lime Co. v. L. P. & J. A. Smith.

part of the defendant of the contract so made and entered into with the plaintiffs, plaintiffs have been compelled to expend the sum of $5,000 over and above the price agreed upon between the parties thereto, to the damage of the plaintiffs in the sum of $5,000. There was a supplemental petition, but neither in the petition, nor in the supplemental petition is there any allegation that a contract was made between The Sloss Marblehead Lime Co. and the Smiths with reference to the contract that Smith had with the government of the United States. There is no allegation that The Sloss Marblehead Lime Co. had any notice that Smith had any contract with the government of the United States to make this pier. The claim made on the trial of the case was that there was a contract made between Smith and The Sloss Marblehead Lime Co. to furnish stone that was to be used at that pier, but there is no such allegation in the petition. I do not need to cite authorities to the effect that you must plead special damages in order to recover special damages. That matter is settled in Ohio and elsewhere. The only claim that can be made in this case is that they did allege that the Smiths suffered or would suffer special damages because of the fact that they had this contract. Certainly the allegations of the petition should show, in order to recover for these special damages that were suffered because of the fact that they were unable to complete their contract with the government of the United States except at a loss of $1 per cord for the stone, that they paid $1 per cord above what they would have been compelled to pay if they had obtained the stone under their contract with the defendant. That the Marblehead Co. had some notice of that fact, and violated it with knowledge of the fact that the Smiths had this contract with the government.

We think there was error in admitting any evidence as to what arrangements the Smiths had with the government of the United States, although that is alleged in the petition,

The City of Toledo v. Michael Jacobson.

since it is not alleged that the Smiths knew anything about it. Whatever evidence was admitted on that subject we think was improper. It was objected to, and went in over the objection of The Marblehead C., and ought not to have been admitted. And so much of the charge of the court as is based upon the theory that special damages could be recovered here because of the fact that the Smiths had failed to make the money that they would have made in the contract with the government; or had lost money because of their being unable to get the stone for less than $2.75, whereas they had contracted with Marblehead Co. for $1.75, is error. The rest of the charge we find no fault with.

Included in what we do find to have been given that ought not to have been given, is where the court say to the jury that they may take into account what the Smiths did pay for But that is really covered by what I have already

stone. said.

The case is reversed because of error in permitting evidence as to the contract that the Smiths had with the government of the United States about the building of a pier; and admitting the testimony of Stein as to what was said to him by Sloss about the contract that his company had with the Smiths.

Ingersoll & Tolles, for plaintiff in error.

Goulder, Wing & Holding, for defendants in error.

(Sixth Circuit-Lucas Co., O., Circuit Court-Jan. Term, 1896.) Before Haynes, Scribner and King, JJ.

THE CITY OF TOLEDO v. MICHAEL JACOBSON.

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Proceeding to award damages for re-grading street-Failure of city to pay or proceed with improvement for six months — Right of property owners to allowance for attorneys' fees and expenses. When a city after having passed an ordinance to re-grade a street goes

into court to have awarded the damages to abutting property owners who have filed claims under Sec. 2317, Rev. Stats., and

The City of Toledo v. Michael Jacobson.

after such proceeding the city fails to pay the damages awarded and to enter into the improvement for six months, the city shall be held to have abandoned such improvemnet, and the property owners, who were defendants under the proceeding in court, may, under sec. 2260, Rev. Stat., make a motion in the court to retax the costs in the case, together with their reasonable attorney fees and their other reasonable and proper expenses incurred in such proceeding, to be collected by execution or otherwise from the city. Error to the Court of Common Pleas of Lucas county. KING, J.

This is a proceeding in error in which the judgment of the court of common pleas is sought to be reversed. As is shown by the statement of facts in this record, about the 20th of Februrary, 1893, the common council of the city of Toledo passed an ordinance for the re-grading of State street between certain points. Soon thereafter an application was made to the probate court, by the city solicitor, for the impaneling of a jury to assess damages claimed by the property owners abutting upon that portion of the said. street the grade of which it was proposed to change, and a jury was called and the cases were tried, and a verdict was rendered in which damages were assessed to be paid to certain of the property owners. More than six months after that time elapsed, and the city had no further action --had not undertaken to change the grade as proposed in its ordinance, nor do anything further in the case. Thereupon the property owners filed, in the probate court, a motion to re-tax the "osts, claiming that right under Section 2260 as amended April 20th, 1893, and asked the court, in such re-taxation, to include therein the expenses of the property owners expended in trying the cases, including reasonable attorneys' fees to the attorneys for the property owners. That motion was heard in the probate court, and overruled. judgment was filed in the there heard, and the action of the probate court was reversed, and the court of common pleas, proceeding to

A petition in error to that court of common pleas, and

(Reprinted on account of errors.)

The City of Toledo v. Michael Jacobson.

render such judgment as the probate court should have rendered, found against the city judgment for the amount of those costs and attorney's fees. The city claims that there is no authority under the statutes, in a proceeding of this kind, to assess these costs against the city. As I have said, the motion to re-tax was based upon Section 2260 as amended in 1893, and which amendment added to the original section, which had been in force in this state for many years, substantially this: That, upon the motion of any defendant, the costs in the case should be re-taxedthat is, after the expiration of six months, "and a reasonable attorney's fee, to be paid to the attorney of such defendant, together with any other reasonable and proper expense incurred by defendant in an amount to be then fixed by the court, shall be added to and included in such costs as part thereof, to be collected by execution or otherwise, in the same manner as though originally so taxed.”

It is claimed that this section does not apply in this proceeding. That section is found in chapter III of the revision of the statutes of Ohio, which relates to the appropri ation of property by a municipal corporation. The proceeding instituted in the probate court in this case to assess damages, was brought under section 2317 of the Revised Statutes, chapter 4 of the same division of the statutes, and relates to assessments to be made upon private property for public improvements, and it is claimed by the city that the previous section has no application here. In the chapter relating to assessments, is a subdivision relating to the assessment of damages; and Section 2315 provides that "An owner of a lot, or of land bounding or abutting upon a proposed improvement, claiming that he will sustain damages by reason of the improvement, shall within two weeks after the service or the completion of the publication of the notice mentioned in section 2304, file a claim; in writing, with the clerk of the corporation, setting for the amount of the

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