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tioned in the last two sections, notwithstanding the right to a jury, if before the commencement of the trial, the accused waives a jury trial."

The relation of Sec. 4528 G. C. to Sec. 13510 G. C. was discussed and determined by the Supreme Court of this state in State v. Borham, 72 Ohio St. 358 [74 N. E. 220]. The court did not undertake to reconcile these sections but found them to be in conflict. An examination of the history of the statutes showed that Sec. 13510 was enacted long before Sec. 4528, and the court held that the latter section should be given full effect in determining the final jurisdiction of the mayor in the prosecution of misdemeanors when the accused was not entitled to the constitutional right of trial by jury. The Supreme Court did not discuss Sec. 4530 G. C. as it was in no way involved in the case then under consideration. Sec. 4528 and Sec. 4530 were, however, enacted at the same time and first appear in the revision of 1880 as Secs. 1817 and 1818, R. S. All the reasoning of the Supreme Court in State v. Borham, supra, applies with equal force to the discussion of Sec. 4530 as it may be affected by Sec. 13510, and we hold that the mayor has final jurisdiction to hear and determine prosecutions for misdemeanors notwithstanding the right to a trial by jury, if before the commencement of the trial, the accused waives a jury trial.

It therefore remains to determine whether a plea of guilty amounts to a waiver of trial by jury. It will be observed that Sec. 4530 does not require such waiver to be in writing as does Sec. 13511 G. C. which provides for proceedings before a magistrate. While it is true, as said in State v. Borham, supra, that the mayor is, technically, a magistrate and, therefore, the two sections last cited are not in harmony, we hold that the later Sec. 4530, should have effect given to its plain terms and that there is no justification for reading into that statute a provision that such waiver must be in writing.

The circuit court in Wood county in Hillier v. State, 26 0. C. C. 777 (5 N. S. 245) held that:

"The right of trial by jury is waived by entering a plea of guilty in a criminal prosecution before a mayor having complete jurisdiction."

Demuth v. State.

Counsel for defendant in error contend that this latter decision is in conflict with the decision of the Supreme Court announced in the case of Hanaghan v. State, 51 Ohio St. 24 [36 N. E. 1072]. The circuit court, however, had that case before it when considering the case of Hillier v. State, supra, and in the opinion discuss the case and distinguish it from the case then under consideration. Clearly the decision of the circuit court is decisive of the question now under consideration and, if properly decided, should be followed in the decision of this case. We think that the decision of the circuit court is right.

The Supreme Court, in State v. Borham, supra, also had before them the case of Hanaghan v. State, supra, and declined to consider it as an authority in that case. The Supreme Court in speaking of Hanaghan v. State, said:

"The court in that case was dealing with a trial before a justice of the peace where the accusation was such as gave the accused a right to a jury trial and involved a construction of Sec. 7146 and 7147 R. S. (now Secs. 13510 and 13511 G. C.). No reference whatever was made, and none was needed, to Sec. 1817. We have no such case.'

We think that the language of the Supreme Court just quoted applies with equal force to the case now under consideration. Having definitely held that the jurisdiction of a mayor and the jurisdiction of a justice of the peace are controlled by different sections of the statutes, a decision based upon the statutes governing procedure before a justice of the peace is of but little, if any, value in determining a case based upon the statutory jurisdiction and powers of a mayor.

In Carper v. State, 27 Ohio St. 572, the court say, on page 577:

"A defendant after a trial and verdict of guilty may move the court for a new trial, for any of the causes specified in the code. One who has plead guilty has waived a trial and can not make such a motion. It would be idle, therefore, to ask the question to one who by his plea has waived the right to avail himself of all matters that might arise on a motion for new trial."

That is to say, the Supreme Court holds that a plea of guilty

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amounts to a waiver of any trial, either by the court or by a jury.

The effect of a plea of guilty is well stated in 12 Cyc. 353. We find that the mayor of the city of Norwalk had final jurisdiction to dispose of the case and, upon a plea of guilty in that court, he was empowered to impose sentence, and it follows that the relator was legally imprisoned under the sentence and judgment of such mayor.

The judgments of the common pleas and probate courts will be reversed and final judgment will be entered herein in favor of the plaintiff in error, remanding the defendant to the custody of the superintendent of the Toledo Workhouse; and this case is remanded to the court of common pleas for execution, for costs and to carry out the judgment.

Richards and Kinkade, JJ., concur.

CARRIERS-SALES.

[Erie (6th) Court of Appeals, April 7, 1917.]

Chittenden, Richards and Kinkade, JJ.

INDEPENDENT SILO Co. v. MILTON A. HESS ET AL.

Delivery to Common Carrier Consigned to Purchaser Pursuant to Written Contract Passes Title to Purchaser.

A written order given by a purchaser on a printed blank, for a certain described silo at a fixed price with three per cent discount for cash within fifteen days after arrival of silo, or settlement to be made by a bankable note, and directing that the goods be delivered by the seller to a common carrier, constitutes, on the acceptance of the order, a completed contract of sale; and, on delivery of the goods by the seller, to the common carrier, consigned to the purchaser at his address, the title passes to the purchaser.

[Syllabus by the court.]

ERROR.

H. L. Peeke, for plaintiff in error.

Malcolm Kelly, for defendants in error.

Silo Co. v. Hess.

RICHARDS, J.

The controversy in this case arises over the claims of the respective parties to the proceeds of a certain silo, and is to be resolved by a determination as to whether the title to the same had passed from the plaintiff to one Frank Lowry. The defendants, Milton A. Hess and Mary A. King, are attaching creditors of said Lowry, and the defendant, George Hasenpflug, is the receiver of said Lowry.

On May 12, 1916, Frank Lowry gave an order on a printed blank of the plaintiff company, which directed said company to ship to him as purchaser a certain described Independent silo complete with anchors and roof frame, for which he agreed to pay $201.00, less agent's commission of ten per cent, and on the following terms: Three per cent discount allowed for cash within fifteen days after arrival of silo, or settlement to be made by bankable note due September 1, 1917, bearing interest at six per cent from September 1, 1916. The contract of purchase also provided that certain provisions on the back thereof were made part of the contract, and among the provisions on the back is the following: "The Independent Silo Company agrees to deliver the goods to a common carrier, with reasonable promptness after receipt of this order in the regular course of business, but will not be responsible for loss or delay occasioned by strikes, fires, accidents or causes of any character beyond its control."

Pursuant to this order the plaintiff shipped the several parts constituting the silo as described in the contract, from its factory in Minnesota, consigned to Frank Lowry at Berlin Heights, Ohio, delivering the same to a common carrier by which they were transported to Berlin Heights, and the goods. were received by Lowry and remained in his possession until seized in attachment by the attaching creditors already named. The claims of the attaching creditors exceed very largely the value of the attached property, the judgment in favor of Mary A. King being in excess of $2300.00, and the judgment in favor of Milton A. Hess being in excess of $1000.00.

The transaction between Lowry and the plaintiff constitutes an ordinary bargain and sale and comes within the plain

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language or Section 8399 G. C., which prescribes the rules for ascertaining the intention of parties, as to the time at which the property in goods shall pass to the buyer when a different intention does not appear in the contract of the parties. Rule 4, sub-divisions 1 and 2, of that section read as follows:

"Rule 4. (1) When there is a contract to sell unascertained or future goods by description, and goods of that de scription and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made.

(2) When in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee, whether named by the buyer or not, for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in the next following section. This presumption is applicable, although by the terms of the contract, the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words collect on delivery or their equivalents."

It will be noticed that the last subdivision provides certain exceptions which are stated in the next rule and in the section of the General Code next following, but those exceptions are not applicable to the case at bar for the reason that subdivision 1 of Sec. 8400 G. C., only provides for cases where the seller expressly reserves the right of possession of property sold until the conditions have been fulfilled, and no such reservation existed in the case at bar. Sub-division 2 of the section last cited is applicable only to cases where the bill of lading is made to the order of the seller or his agent, which is not this case. And Sub-division 3 is applicable to cases where the seller retains possession of the bill of lading, which is not this case. Neither are the provisions of Sub-division 4 of the General Code just cited, applicable to the case under consideration