the election will be contested, and a specification | before the court as parties in interest for of the 'points' relied upon. * The 'points' that determination. The breach of the Corrupt Practices Act is made an offense, irrespective of the question whether the salary acts are valid or otherwise. The wrong sought to be corrected was one affecting the purity of elections, and the constitutional feature, if conceded, could not even remotely affect that question.

to be specified are not required for the purpose of setting forth a good case,' nor for the purpose of informing the contestee that the attack will be successful, but to advise him at what points the attack will be made, in order that he may fortify, and not be taken by surprise. We think the points specified in this notice were stated with sufficient particularity and definiteness to subserve the object of the statute, which was to limit the evidence of the contestor and to apprise the contestee of the general nature of the objections to be made, so as to enable him to meet them without unnecessary expense and labor."

The rule is stated in the syllabus of State ex rel. Ingerson v. Berry, 14 Ohio St. 315,

that:

"A. contest, on appeal to the court of common pleas, is the specific remedy provided by statute for the correction of all errors, frauds and mistakes which may occur in the process of ascertaining and declaring the public will as expressed through the ballot boxes."

[4] 4. Finally, it is insisted that before the election can be invalidated or the office forfeited, there must be a prior conviction of the offense committed under the Corrupt Practices Act; and in that behalf counsel for plaintiff in error cite the case of State ex rel. Attorney General v. Ganson, 58 Ohio St. 313, 50 N. E. 907, wherein it is held:

"Where the causes of removal from office are prescribed by statute which also provides a special mode of procedure for such removal, the statutory remedy is the exclusive one, and quo warranto will not lie."

Section 13323-1, General Code (formerly section 32 of the Corrupt Practices Act), provides that:

*

under this act shall be fined
"Any person convicted of a corrupt practice
and if he
shall have been elected to office, he shall in addi-
tion thereto forfeit such office."

Since this section of the statute has provided for punishment by fine and imprisonment and by forfeiture of office in case of

is provided by the act itself by which such office should become vacant, and that conviction by jury is a condition precedent to the forfeiture; and this seems to find support in section 4, art. 5, of the Constitution, which provides:

"The General Assembly shall have power to exclude from the privilege * of being eligible to office, any person convicted of bribery, perjury, or other infamous crime."

The only adequate and specific remedy provided for this purpose are the contest statutes. Neither quo warranto nor mandamus can ordinarily be invoked to determine the issue involved in contested election cases, for the reason that such issues involve the validity of the election and not the title to office. State ex rel. Grisell v. Marlow, 15 Ohio St. 114; State ex rel. Wetmore v. Stewart, 26 Ohio St. 216. It has been held, however, that if no adequate rem-election, it is claimed that a special method edy is provided by law, quo warranto might be invoked in order to ascertain the legality or illegality of the election. State ex rel. Conrad v. Patterson, 84 Ohio St. 89, 95 N. E. 780. Section 5175-26, General Code, adds a specific ground upon which an election may be invalidated or contested. By the adoption of that section the Legislature, in effect, determined that an offense committed against the Corrupt Practices Act as enumerated therein was a ground for invalidating the election of the person committing the offense, irrespective of the proof usually required, showing that offer actually induced a sufficient number of voters to change their votes so as to affect the result. And since the question was raised in a case involving the election itself, and not in a case wherein the title was involved after the induction into office, the proper remedy available would be by contest proceedings under the statutes. [3] 3. The plaintiff in error seeks to avoid the consequences of his offense by a claim that the salary acts are unconstitutional. He does not attack the constitutionality of the Corrupt Practices Act itself. He cannot thus escape the punishment of an act which is not made dependent on the validity of the salary acts.

An important distinction must be noted between the case of State ex rel. Attorney General v. Ganson, supra, and the instant case, and that distinction is found in the different functions imposed by the Constitution upon the judicial and legislative departments of the state. One who has been inducted into office and convicted of bribery or other infamous crime forfeits his office under the aforesaid section, and as a predicate to his removal he must first be tried and convicted by a jury. By reason of this trial the power is committed wholly to the judicial department; but it is otherwise where the election or election contest is concerned, for by other provisions of the Constitution elections and election contests are not committed to the courts eo nomine as courts, but to such tribunal as the Legislature may see fit to provide. "It is a firmly established principle of law By those provisions there has been that no one can be allowed to attack a statute granted to the Legislature the sole power to as unconstitutional who has no interest in it determine all matters incidental to the proand is not affected by its provisions." 8 Cyc.cedure and validity of elections. Section 21, art. 2, of the Constitution provides: "The General Assembly shall determine, by law, in what manner, the trial of contested elections shall be conducted"

787.

A law is assumed to be valid until set aside. Only those directly interested may question its validity, and such are not here

*

This language is very pertinent to the case that we have. While there is little distinction between the invalidation of an office and the forfeiture of an office under the Corrupt Practices Act, since both have the effect of divesting the candidate of his office, one rests upon the provision of misconduct in its procurement and the other rests upon offenses committed prior to or after the election, and which are not involved in a contest proceed

However, it is easily assumed that if the Legislature had intended to rely upon a prior conviction as a full and complete remedy for political misconduct, it would not have expressly provided for invalidation of office in a separate section of the same act, for forfeiture after conviction was specifically imposed in another section. Evidently the leg islative intention was to provide two distinct remedies-one affecting the election and the other the title to the office after induction.

Under these provisions of the Constitution the Legislature undoubtedly had the right to impose as a condition precedent to the validity of a candidate's election that he should not commit any of the offenses named in sec-ing. tion 5175-26, General Code, and that if the candidate did so offend, his election would be invalidated. This in no wise conflicts with section 32 of the act, because, on the one hand, the election is invalidated by a tribunal exercising quasi judicial functions, which invalidation may be accomplished without either conviction or trial by jury. The election only is involved. On the other hand, the title to office, and not the election itself, is in question, and in such case, where either bribery or other infamous crime has been We are, therefore, constrained to the view committed, conviction must first be had be- that the Legislature has simply imposed upfore a forfeiture of office. In such cases ju- on the candidate a condition under which his dicial functions of the court are invoked. As election would be invalidated, and that, since emphasizing the distinction between the Gan- no specific grounds are mentioned which are son Case and the present one, attention is required to be stated and set forth in the called to the case of Mason v. State ex rel. contest petition, the commission of any of the McCoy, 58 Ohio St. 30, 50 N. E. 6, 41 L. R. offenses invalidating the election may be set A. 291. In that case, which is very analogous forth in the petition and heard on appeal by to this, Chief Justice Spear, at page 52 of 58 the trial court, and judgment rendered and Ohio St., at page 9 of 50 N. E. (41 L. R. A. orders made as the law and facts warrant 291), used the following language: under the provision of our Code relating to contests of election.

"A question much discussed is as to whether the statute should be treated as imposing a test of eligibility, or as providing a method of removal. The matter may not be free from doubt. Possibly the provision involves both characteristics. But the better conclusion, we think, is that the intent of the Legislature was, not to provide a method by which a person lawfully elected to an office may be removed therefrom, but rather a method by which the title of one to an office which he has obtained possession of in violation of the terms of the statute upon which his claimed right vests may be inquired into. It is therefore a challenge of the title to the office, resting upon charges of misconduct in procuring it, rather than a process to remove, resting upon charges of misconduct in office."

The refusal to induct the contestor was proper. The proceeding simply resulted in invalidating the election of the contestee. This did not invest the contestor with a majority of the legal votes cast. Renner v. Bennett, 21 Ohio St. 431; State ex rel. Clawson v. Bell, 169 Ind. 61, 82 N. E. 69, 13 L. R. A. (N. S.) 1013, 124 Am. St. Rep. 203. Judgment affirmed.

JOHNSON, DONAHUE, WANAMAKER, and NEWMAN, JJ., concur. MATTHIAS, J., not participating.

CARRIERS 318(4)-PASSENGERS-INJURIES- numerous similar cases. That is the general ACTIONS-SUDDEN JERKING-RES IPSA LOQUITUR QUESTIONS FOR JURY. In action by passenger for injuries, evidence that defendant's electric car, as plaintiff entered, suddenly went backward a considerable distance and then suddenly went forward, both motions throwing plaintiff against parts of the car, held to warrant an inference by jury of negligence in management of the car.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-65

factured by defendant, it is necessary to aver and prove negligence.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 208; Dec. Dig. 119(4).] 2. NEGLIGENCE

121(3)-INJURIES-SALE OF

LIME RES IPSA LOQUITUR. Negligence is not shown by proof of the explosion alone of a can of lime, no proof being made that lime is inherently dangerous, or that defendant knew or had any means of ascertaining that the substance bought and packed by him as lime contained any substance of an explosive nature not commonly present in lime. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 218, 225, 271; Dec. Dig. 121(3). SALE OF LIME-KNOWLEDGE OF DANGER BY VENDOR.

3. NEGLIGENCE 27 INJURIES

In the absence of evidence that lime in cans is inherently dangerous, defendant cannot be charged with negligence unless it be shown that he knew or ought to have known of its unsafe and harmful qualities.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 25; Dec. Dig. 27.]

Report from Superior Court, Middlesex County; Lloyd E. White, Judge.

Action by Harold R. Kusick, p. p. a., against Thorndike & Hix, Incorporated. After a ruling at close of evidence that plaintiff was not entitled to recover, by stipulation the case is reported to the full court.

ment for defendant on the verdict.

cans, such as was put up by the defendant, to explode. While this evidence might have been disbelieved, still there was an entire absence of affirmative proof that it was dangerous in any degree. The distinction between the sale, without notice of its qualities, of an article commonly recognized as inherently dangerous to life or property, and the sale of ordinary merchandise and property, is well recognized. Davidson v. Nichols, 11 Allen, 514; Boston & Albany R. R. v. Shanly, 107 Mass. 568; Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 481. The defendant was not the manufacturer of the lime but purchased it from the Rockland Lime Company. If there was anything defective or dangerous in its composition, there was no evidence to show how it came there or what it was. In the sale of such an article, in the absence of evidence that it is intrinsically dangerous, the seller cannot be charged with negligence unless it be shown that he knew or ought to have known of its unsafe and harmful qualities. Lebourdais v. Vitrified Wheel Co. supra; Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N. E. 474.

In the absence of evidence of any false repJudg-resentations made by the defendant, the decision in Roberts v. Anheuser Busch Brewing Assn., 211 Mass. 449, 98 N. E. 95, is not applicable. See, also, Wilson v. Ferguson Co., 214 Mass. 265, 101 N. E. 381.

Smart & Burns, of Boston, for plaintiff. Cornelius A. Parker, of Boston, for defendant.

CROSBY, J. This is an action of tort, brought by the plaintiff to recover for personal injuries alleged to have been received by him by reason of the explosion of a can of lime. There was evidence that the plaintiff was employed in a bowling alley in which one Hansis also was employed as manager; that Hansis sent the plaintiff to the Central | Square Hardware Company in Cambridge, to buy a can of lime to be used in whitewashing some ceilings; that after he had returned and Hansis was opening the can with a pocket knife, the lime exploded causing the injuries for which this action is brought.

This is not a case where the doctrine of res ipsa loquitur can be held to apply; while the cause of the explosion is unknown and unexplained, it could not be found that according to common experience it would not have happened without fault on the part of the defendant. There is no evidence whatever of any breach of duty on the part of the defendant. Although the explosion may be evidence of a defect of some kind, yet the cause is wholly conjectural, and there is nothing to show that it resulted from the fault of the defendant. As the defendant did not manufacture the lime, and as it does not appear that it knew or had any means of ascertaining whether it contained any substance of an explosive nature and not com

There was also evidence from which it could have been found that the lime was manufactured by the Rockland Lime Com-monly present in lime, it cannot be charged pany and sold by that company to the defendant, who packed it in a can and afterwards sold it to the Central Square Hardware Company.

with negligence because of the explosion. Curtin v. Boston Elev. Ry., 194 Mass. 260, 80 N. E. 522; Chiuccariello v. Campbell, 210 Mass. 532, 96 N. E. 1101, 44 L. R. A. (N. S.) 1050, Ann. Cas. 1912D, 510; Carney v. Boston Elev. Ry., 212 Mass. 179, 98 N. E. 605, 42 L.

v. United Drug Co., 218 Mass. 238, 105 N. E. 975, L. R. A. 1915D, 830; Sheehan v. Boston Elev. Ry., 220 Mass. 210, 107 N. E. 923.

[1-3] In an action of this kind, it is well settled that it is necessary to aver,and prove negligence in the defendant. Crocker v. Bal-R. A. (N. S.) 90, Ann. Cas. 1913C, 302; Conley timore Dairy Lunch Co., 214 Mass. 177, 100 N. E. 1078, Ann. Cas. 1914B, 884. No negligence of the defendant in this case is shown unless the fact of the explosion be evidence of such negligence. No evidence was offered by the plaintiff to show that lime is an inherently dangerous article. On the other hand, the defendant offered evidence to the effect that it would be impossible for lime in

It follows that the ruling of the judge of the superior court that the plaintiff was not entitled to recover was right, and in accordance with the terms of the report, the entry must be

Judgment for the defendant on the verdict.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(224 Mass. 388)

him to take the agency, and the negotiations
NELSON v. IMPERIAL WATERPROOF CO., resulted in the contract described. The cor-
respondence which thereupon followed be-

Limited.

(Supreme Judicial Court of Massachusetts. Suf- tween Cassingham and the company, and the
folk. June 19, 1916.)

1. WITNESSES 380(9)
ONE'S OWN WITNESS.

-

CONTRADICTION

In an action for commission, the fact that
one had testified as witness for plaintiff before
the auditor did not make him plaintiff's witness
at the trial before the jury, but, the defendant
having taken his deposition, he became its wit-
ness, so that plaintiff could contradict his state-
ments as deponent by introducing portions of
his evidence given before the auditor.

plaintiff and the company, would warrant the
jury in finding that not only was Cassingham
rightfully acting for it, but with knowledge
of what he had done the defendant recognized
the validity of the contract as including not
only the sale of the product but payment of
commissions. Foster v. Rockwell, 104 Mass.
167, 172; Harrod v. McDaniels, 126 Mass.
413, 415. But Cassingham, a witness for the
[Ed. Note.-For other cases, see Witnesses, defendant, having testified that the defend-
Cent. Dig. §§ 1218, 1219; Dec. Dig. 380(9).] ant's secretary one Davis had only directed
2. PRINCIPAL AND AGENT 89(7)-ACTION- him to "look up an agent for the sale of their
EVIDENCE OF LIMITATION OF AUTHORITY.

In such action, plaintiff offering evidence product in the New England states" he was
to prove appointment as agent to sell on certain not authorized "to make any arrangement or
terms as to commission, by an agent of defend- agreement with any one to pay commissions
ant, exclusion of evidence of conversation be-on contracts obtained," the defendant called
tween defendant's secretary and the alleged ap-
pointing agent, who was not a general agent, of-
fered to show limitation of latter's authority,

was error.

[Ed. Note. For other cases, see Principal and
Agent, Cent. Dig. § 236; Dec. Dig. 89(7).]
Exceptions from Superior Court, Suffolk
County; Frederic Lawton, Judge.

Action by I. M. Nelson against the Imperial
Waterproof Company, Limited. Verdict for
plaintiff, and defendant excepts. Exceptions
sustained.

John E. Macy, of Boston, for plaintiff.
Lee M. Friedman and Swift, Friedman &
Atherton, all of Boston, for defendant.

BRALEY, J. [1] The exceptions are con-
fined to the admission and exclusion of evi-

Davis, who, after testifying that a conversa-
tion had taken place defining Cassingham's
powers, was then asked to state the conver-
sation. The question was excluded although
the defendant's counsel stated that the "evi-
dence was offered for the purpose of showing
that Cassingham's authority to engage an
agent was limited to an agency for selling
the product." The ruling was wrong. Cohen
v. Jackson, 210 Mass. 328, 96 N. E. 669; Har-
rigan v. Dodge, 216 Mass. 461, 103 N. E. 919.
The only issue as to liability was the measure
of Cassingham's powers. While it was undis-
puted that he was authorized to engage the
plaintiff to sell the product, yet he was not a
general agent, and the question whether he
had been authorized to promise a commission
on the profits of the contracts was in con-
troversy. The credibility of Cassingham as
a witness, or of the proposed witness 'Davis,
under the offer of proof, when viewed in
the light of the correspondence previously
referred to as well as the legitimate inferenc-
es of fact to be drawn from all the evidence,
was for the jury under suitable instructions.
If however they believed Cassingham's ver-
sion of the conversation when the plaintiff
was engaged, no commissions had been prom-
ised, and the evidence excluded was clearly
admissible to show the scope of his agency.
Coleman v. Lewis, 183 Mass. 485, 67 N. E.
603, 68 L. R. A. 482, 97 Am. St. Rep. 450;
Record v. Littlefield, 218 Mass. 483, 486, 106
N. E. 142, and cases cited.
Exceptions sustained.

dence. The fact that Clark had testified as
a witness for the plaintiff before the auditor
did not make him the plaintiff's witness at
the trial before the jury, and the defendant
having subsequently taken his deposition he
became its witness. The plaintiff according-
ly was properly allowed in contradiction of
his statements as a deponent to introduce
portions of his evidence given before the
auditor. It appears that the defendant is
engaged in the manufacture of "a water
proofing compound to be used in connection
with cement work on buildings," and the
plaintiff contended that by a contract partly
oral and partly by letter he was to act as
agent for the sale of the product, and "the
taking of contracts for doing work with said
product" within the New England states, re-
ceiving as compensation on the sale of the
product "such amounts above a certain stip-
ulated figure as it was billed" to him with "a
commission of fifty per cent.
on the
profits of all contracts within said territory."
And the defendant having failed in perform-
ance, the plaintiff sues to recover commis-
sions earned, and damages for breach of the 1.

contract.

*

[2] The plaintiff testified that one Cassing-
ham acting in the defendant's behalf solicited

(224 Mass. 226)

PIERCE v. LOOMIS et al.
(Supreme Judicial Court of Massachusetts.
Middlesex. May 20, 1916.)
EXECUTORS AND ADMINISTRATORS ~314(5)

-ACTIONS TO RECOVER LEGACY.

Under Rev. Laws, c. 141, § 19, authorizing
a legatee to recover his legacy in an action at
law, a legatee cannot recover in an action of con-

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes