Judgment affirmed.

NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur.

ty appointed two disinterested freeholders, [sioners of Darke county, and they have the not residents of either county, and notified same right to be heard in reference to asthe probate court of Darke county to do like- sessments. Lands not benefited thereby canwise, which was done accordingly. The free- not be assessed therefor, nor can any lands holders so appointed met as directed by stat- be assessed more than they will be benefited ute, and found and reported to the court the thereby. amount which should be paid by Darke county to Mercer county for the use and benefit of this outlet ditch. Exceptions were filed to this report by the commissioners of Darke county, which exceptions were overruled and the report approved. Error was then prosecuted to the common pleas court of Mercer county, which court reversed the judgment and proceeding of the probate court and dismissed the petition. The court of appeals reversed this judgment of the common pleas court and affirmed the judgment of the probate court. This proceeding in error is brought to reverse the judgment of the court of appeals.

L. E. Kerlin and George W. Porter, Pros. Attys., and Meeker & Gaskill, all of Greenville, for plaintiff in error. B. A. Myers, Pros. Atty., J. W. Loree, and J. D. Johnson, all of Celina, for defendant in error.

PER CURIAM. Counsel for plaintiff in error contend that sections 6540 to 6551, General Code, inclusive, are unconstitutional, because in conflict with sections 16 and 19 of article 1 of the Constitution of Ohio and the fifth and fourteenth amendments to the Constitution of the United States.

(93 Ohio St. 23) CADWELL v. CADWELL. (No. 14848.) (Supreme Court of Ohio. Oct. 13, 1915.)

(Syllabus by Editorial Staff.) APPEAL AND ERROR 22-JURISDICTIONWAIVER OF OBJECTIONS.

Where no objection was made to the jurisdiction of the court of appeals in an alimony case from June 12, 1913, when the case was till January 25, 1915, after judgment for plainbrought to it on appeal from the common pleas, tiff, it is too late to raise the question by motion for new trial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 98; Dec. Dig. 22.]

Error to Court of Appeals, Lucas County. Petition by Herma M. Cadwell against Frank W. Cadwell for alimony. Judgment for petitioner, and defendant brings error.

Affirmed.

Richard H. Lee, of Cleveland, and Doyle, Lewis, Lewis & Emery, of Toledo, for plaintiff in error. Berkeley Pearce, of Cleveland, and Marshall & Fraser, of Toledo, for defendant in error.

The board of county commissioners of Darke county, having actively participated in securing the appointment of four freeholders to act as arbitrators in the manner and form as proPER CURIAM. In 1912, the defendant in vided by the statute, is not now in position to error, Herma M. Cadwell, filed her petition challenge the constitutionality of the act un- for alimony in the Lucas county common der which it jointly, with the board of coun-pleas, where the same was denied for want of ty commissioners of Mercer county, invoked the jurisdiction of that court. Tone v. Columbus, 39 Ohio St. 281, 48 Am. Rep. 438. The action of the board of county commissioners of Darke county in that behalf amounted to an agreement to submit the question in dispute to the arbitration of four freeholders to be appointed by the respective courts of Mercer and Darke counties, and, in the absence of fraud, collusion, irregularity, or misconduct on the part of the arbitrators, the award must stand, regardless of the constitutionality of the act under which they were appointed.

jurisdiction on May 15, 1913. On June 12, 1913, she perfected her appeal to the court of appeals of that county, where the case was heard upon the evidence, and, after intervening interlocutory orders, alimony in gross was allowed her in that court in the sum of $15,000, for which execution. was awarded. This decree was made January 4, 1915. A motion for new trial was filed and overruled on January 25, 1915. The next day plaintiff in error, Frank W. Cadwell, moved to dismiss the action and to vacate the decree for the reason that the court of ap peals had no jurisdiction in alimony cases under article 4, § 6, of the Constitution of Ohio as amended.

The proceedings by which the amount that Darke county should pay to Mercer county has been determined can in no way affect The record discloses that from the time the landowners in Darke county. So far as the appeal was perfected on June 12, 1913, they are concerned, it is the same as if the until January 25, 1915, no question was made commissioners of the respective counties had by the plaintiff in error as to the jurisdiction met and agreed upon that amount. These of the court of appeals, on appeal; but, on landowners are in exactly the same situation the contrary, he consented to the submission as if a local ditch had been petitioned for of the case until final decree, after which, and allowed by the board of county commis- and for the first time, he endeavored to raise For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the jurisdictional question. That this cannot ment, decree and final order entered against be done has been expressly held in Drake et him, for the reason that he had not been al., Trustees, v. Tucker et al., 83 Ohio St. 97, served with summons as a defendant nor in 93 N. E. 534, and the reasons therein stated any other manner brought within the jurisapply whether the jurisdiction is statutory diction of the court by due process of law. or constitutional. This motion to vacate was submitted to the

The judgment of the court of appeals is court upon the evidence, and the court stated affirmed.

HALEY v. HANNA et al.
(Supreme Court of Ohio.

(No. 14826.)
Nov. 9, 1915.)
(Syllabus by Editorial Staff.)

1. APPEAL AND ERROR 1082(2)-PRESENT-
ING QUESTIONS IN LOWER COURT-VACATION
OF JUDGMENT.

An answer to a petition in error alleging facts occurring prior to the judgment or order to be reviewed, and not included in the record in the lower court, will be stricken.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 1133-1136, 4281-4284; Dec. Dig. 1082(2).] 2. JUDGMENT

17(1)-VALIDITY-FAILURE

TO SERVE PROCESS. A defendant who was not served with summons and did not authorize any one to enter his appearance is not bound by the judgment, though he had knowledge of the pendency of the action, the return of service regular on its face showing service upon him, and of the entry of appearance in his name, and did not advise the court or the opposite party of the defective service nor protest to the entry of his appearance. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 25; Dec. Dig. 17(1).]

Error to the Court of Appeals, Greene County.

Action by Gilbert C. Hanna against Tim Haley and others. Judgment for plaintiff, and defendant Haley brings error. Reversed and rendered.

Joseph W. Sharts, of Dayton, for plaintiff in error. L. T. Marshall, of Xenia, for de

fendant in error.

PER CURIAM. Gilbert C. Hanna, one of the defendants in error, brought an action in the court of common pleas of Greene county against plaintiff in error, Tim Haley, and the defendants in error, Kate Setz, Mary Haley, Jim Haley, John Haley, Will Haley, and Elizabeth Butt. Judgment was rendered in his favor against the defendants, and the case was appealed to the Court of Appeals. In that court, upon the hearing of the cause upon the pleadings and the evidence, on March 27, 1914, judgment was again rendered in favor of Hanna against the defendants.

Thereafter, on October 9, 1914, Tim Haley, plaintiff in error, filed a motion in the Court of Appeals to set aside and vacate the judg

its conclusions of fact as follows:

"(1) That the return upon the original summons issued for Tim Haley was regular upon its face, showing that Tim Haley was served by the sheriff of Greene county by leaving a true copy of the writ at his usual place of residence.

(2) That Tim Haley was not in fact served with summons, he having no place of residence in Greene county at the date of service.

"(3) That various pleadings purporting on their face to be the pleadings of all the defendants, including Tim Haley, were filed in the common pleas court and Court of Appeals prior to the judgment and decree complained of, and upon which, together with the regular return of service, the plaintiff relied.

"(4) That Tim Haley did not authorize any one to enter his appearance, but had full knowledge of the pendency of the action and of the issuing and return of service regular on its face, and of the proceedings had in said action.

"(5) That Tim Haley did not advise the court nor the opposite party of the defect of service upon him, and did not protest nor object to the entering by others of his appearance in the

case.

As its conclusions of law upon these facts the court found that it was the duty of Tim Haley to advise the court and opposite party before judgment of the defective service, and, having failed to do so and not having protested or objected to the entering by others of his appearance, his omission constituted a waiver of the original defect of service. It was ordered that the motion be and the same was overruled.

[1] Plaintiff in error filed his petition in error in this court, and defendant in error, Gilbert C. Hanna, filed what purported to be an answer thereto, in which were alleged facts occurring prior to the judgment or order of the Court of Appeals overruling the motion to vacate. These facts, if relied upon

by the defendant in error as supporting the finding in his favor, should have been made

a part of the record in the Court of Appeals. They cannot be brought to the attention of the court by an answer to the petition in error, and the answer therefore is stricken from the files.

[2] In determining whether or not the Court of Appeals was correct in its conclusions of law on the motion to vacate, we are bound by the conclusions of fact presented by the record. The court found specifically that Tim Haley was not served with summons. While the pleadings on their face purported to be the pleadings of all the defendants, including Tim Haley, it appears affirmatively that he did not authorize any one to enter his appearance. He had knowledge of the pendency of the action and the issue and return of service regular on its face and of the proceedings had. It further appears that he

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

NICHOLS, C. J., and JOHNSON, DONA-equipping the theater for such performances. HUE, WANAMAKER, NEWMAN, JONES and MATTHIAS, JJ., concur.

COMSTOCK AMUSEMENT CO. v. OPERA Thereupon the Opera Ball Company refused

[2] An examination of the stipulations referred to, with reference to settlement, established the fact that the parties were contracting with reference to that question alone. Undoubtedly it was intended to have some definite time at which such settlement, either partial or final, could be made. Under its terms any settlement made other than at White, Johnson, Cannon & Neff, of Cleve- the end of each performance had to be made land, for plaintiff in error. Max P. Good-"at such other times as shall be mutually man, of Cleveland, for defendant in error.

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

On April 16, 1914, the defendant was notified that the engine was ready for shipment, and was requested to send shipping instructions. . The plaintiff, receiving no reply by his letter dated April 27th notified the defendant that he would make the shipment on May 4th unless notified to the contrary. The engine was shipped accordingly, but the defendant refused to receive it.

we to hold to the strict construction relied f. o. b. Buffalo. The agreement was dated upon by the plaintiff in error, there could November 20, 1913, and delivery within a be no settlement under the contract in case reasonable time would be implied in the abboth parties did not mutually agree upon the sence of a specified date therefor. time therefor. The obvious purpose of the stipulation is that settlement could be made at the option of either party at the end of each performance. To hold otherwise would render nugatory the specific settlement terms of the contract, and would destroy the manifest intention of the parties thereto. It is true that a full settlement of the percentages accruing to each could not be ascertained until the termination of the engagement, but the Amusement Company was fully protected by the minimum percentage as to any payment it was required to make under the contract stipulations. In this view, any testimony relating to custom was wholly immaterial.

It was not in dispute that the engine was in accordance with the specifications. There was evidence to warrant a finding that it was delivered within a reasonable time after the execution of the contract; also that in making the sale the plaintiff was not acting as agent for the Stirling

The judgment of the court of appeals is af- Engine Company, but was acting in his own firmed.

Judgment affirmed.

JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ.,

concur.

(223 Mass. 500)

HOMER v. BAKER YACHT BASIN, Inc. (Supreme Judicial Court of Massachusetts. Suffolk. April 6, 1916.)

ACTION FOR BREACH OF

behalf; and that the engine was shipped
direct from the manufacturer to the defend-
ant at the request of the plaintiff as owner.
The finding of the judge included the plain-
tiff's loss of profit, and the freight charges
paid by him; and we cannot say that it was
not justified by the evidence. The rulings
requested were rightly denied.
Exceptions overruled.

(223 Mass. 465)

SECOULSKY v. OCEANIC STEAM NAV.
CO.

(Supreme Judicial Court of Massachusetts.
Suffolk. April 5, 1916.)

1. SALES 81(2) CONTRACT-RECOVERY. Plaintiff, who on November 20, 1913, obtained defendant's written agreement to purchase an engine f. o. b. Buffalo, and who on April 16, 1914, notified defendant that the engine was ready for shipment, and requested shipping instructions, and who by letter on 1. CARRIERS 234-CONTRACT OF CARRIAGE April 27th notified defendant that he would ship on May 4th unless instructed to the contrary, and who, acting in his own behalf, accordingly shipped an engine meeting the specifications of the contract, which defendant refused to accept, might recover damages for the breach of the contract.

-LAW GOVERNING.

Where a certificate for a passage purchased of defendant in the state was exchanged in England for a ticket, contract of carriage was made there.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 965, 1263, 1538; Dec. Dig.

[Ed. Note.-For other cases, see Sales, Cent. 234.] Dig. 218; Dec. Dig. 81(2).]

2. SALES 81(2)-DELIVERY-TIME.

A delivery within a reasonable time will be implied in the absence of any specified time in the contract of purchase.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 218; Dec. Dig. 81(2).]

Exceptions from Superior Court, Suffolk County; Charles F. Jenney, Judge.

Action by Arthur P. Homer against the Baker Yacht Basin, Incorporated. Finding for plaintiff, and defendant excepts. Exceptions overruled.

Johnson & North, of Boston (F. R. Mackenzie, of Boston, of counsel), for plaintiff. Wadleigh & Shaw, of Lynn, for defendant.

DE COURCY, J. [1, 2] On conflicting evidence, the trial judge was warranted in finding that the defendant agreed in writing to purchase from the plaintiff, a Stirling engine,

-LAW

2. EVIDENCE 80(2) - PRESUMPTION
OF ENGLAND.
In the absence of evidence of the common
law of England, it will be presumed the same
as that of the state.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. 80(2).]

3. CARRIERS 405(1)-Loss oF BAGGAGELIABILITY.

Ordinarily the limitation in a contract of carriage of liability for loss of baggage to a certain amount is controlling.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1544; Dec. Dig. 405(1).] 4. CARRIERS

LIABILITY.

405(3)-CONTRACTS-LIMITING

Though one accepting and using a ticket for transportation was unable to read English, and was told by the carrier that it would be unnecessary to insure his baggage, he was bound by the terms of his ticket, limiting liability for loss of baggage to a certain amount.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1548, 1549; Dec. Dig. 405(3).j

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

Exceptions from Superior Court, Suffolk | O'Regan v. Cunard S. S. Co., 160 Mass. 356, County; Loranus E. Hitchcock, Judge.

Action by Hyman Secoulsky against the Oceanic Steam Navigation Company. Verdict for less than claimed was directed for plaintiff, and he brings exceptions. Exceptions overruled.

Samuel L. Bailen and Frank Leveroni, both of Boston, for plaintiff. Blodgett, Jones, Burnham & Bingham, of Boston, for defend

ant.

359, 361, 35 N. E. 1070, 39 Am. St. Rep. 484. The plaintiff relies on McKinney v. B. & M. R. R., 217 Mass. 274, 104 N. E. 446, as stating a different rule. But while in that case the shipper's agent, who transacted the business, was illiterate, the bill of lading never reached the shipper; and there was no evidence as in the case at bar that the contract relied on by the carrier had been mutually accepted and acted upon as forming the only contract between the parties. Boynton v. American Express Co., 221 Mass. 237, 108 N. E. 942. The limitation therefore was binding on the plaintiff.

BRALEY, J. The jury having found that through the defendant's negligence the plaintiff's baggage was lost, the only question is And the instructions being correct, the exwhether the ruling as to the measure of dam-ceptions must be overruled. So ordered.

ages was correct.

The prepaid certificate for a third class passage purchased of the defendant in this commonwealth by the plaintiff's son was transmitted to his father; but whether in making the purchase, he acted as the plaintiff's agent, or whether the certificate was a gift, does not appear. The plaintiff having exchanged the certificate for a third class ticket, at Liverpool, sailed on the steamship; but his baggage was not put on board or was lost during the voyage.

(223 Mass. 514)

LANE v. RAYNES. (Supreme Judicial Court of Massachusetts. Suffolk. April 6, 1916.)

1. LANDLORD AND TENANT 164(1)—CONDITION OF PREMISES-DUTY OF LANDLORD.

The landlord owes the tenant at will of an

entire dwelling house, in the absence of special stipulations, no duty to keep the steps in a safe condition.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 630, C34-637; Dec. Dig. 164(1).]

2. LANDLORD AND TENANT 164(2) CONDITION OF PREMISES AGREEMENT TO REPAIR-CONSTRUCTION.

[1-3] The contract was made in Liverpool. O'Regan v. Cunard S. S. Co., 160 Mass. 356, 35 N. E. 1070, 39 Am. St. Rep. 484. And no evidence of the common law of England having been introduced, we assume that it is the same as our own. Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104, 107, 72 N. E. 345. By its terms the defendant's liabil-in ity for the loss of baggage was limited to ten pounds, or as agreed by the parties the sum of fifty dollars, and ordinarily the limitation would be controlling. Garvan v. N. Y. C. & H. R. R. R., 210 Mass. 275, 278, 96 N. E. 717, and cases cited.

[4] But from his testimony, a finding would have been warranted, that upon presentation of the certificate and before receiving the ticket, the plaintiff through an interpreter asked the person in charge of the defendant's ticket office to have his baggage insured, offering to pay therefor rather than to take any chance of loss. "I told him I had valuable articles and I wanted to insure and he said it was not necessary." "It was not necessary and it will come."

While the exceptions state that he was unable "to read and write" the English language, this fact of itself would not avoid the contract. The plaintiff knew he could not embark or be cared for during the journey unless he obtained a ticket; and that the paper received in exchange for the certificate was a ticket; and it is of no consequence that before embarking he failed to acquaint himself with the contents. Fonseca v. Cunard S. S. Co., 153 Mass. 553, 555, 27 N. E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660;

A statement by the agent of a landlord that he would keep the dwelling in good repair and good repair is at most an agreement to make would send a man up to have the building kept general repairs.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 631; Dec. Dig. 164(2).]

3. LANDLORD AND TENANT 164(3)-CONDITION OF PREMISES-LIABILITY FOR INJURIES. In an action in tort against the landlord for negligence in failing to repair the steps of the dwelling, it is not enough to show that the landlord failed to comply with an agreement to make general repairs, even after notice, but the tenant must show that the landlord made the repairs and was negligent in making them, thus causing the injury.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 632; Dec. Dig. 164(3).]

Exceptions from Superior Court, Suffolk County; William B. Stevens, Judge.

Action by Elizabeth Lane against George W. Raynes. Judgment for defendant, and plaintiff excepts. Exceptions overruled.

This was an action of tort against a landlord for personal injuries alleged to have been sustained by a tenant in consequence of house she occupied to the back yard. the giving way of the steps leading from the

Alvah G. Sleeper, of Boston, for plaintiff. R. H. Willard and Wm. H. Taylor, both of Boston, for defendant.

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