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is then employed, or in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes." This section is a part of our school laws, and should be construed with reference to the part it is to perform in the commonschool system of the state. At first the provision was not so broad, for we find that in section 117 of the act entitled, "An act for the reorganization and maintenance of common schools," passed May 1, 1873, the General Assembly said that "any teacher in any public school is hereby authorized to dismiss the school under his or her charge for the week in which is held the county teachers' institute, for the purpose of attending the same, and such teacher shall not forfeit his or her pay for such week; provided, such teacher shall deposit with the clerk of the board a certificate from the secretary of the institute that he or she has been present at such institute for not less than four days; * See 70 Ohio Laws, p. 227. With some changes in phraseology pertaining to school districts like the one here, this section was carried into the revision of our statutes in 1880 as section 4091.

It is not important to search out what, if any, changes were made on this subject after the revision and prior to the present School Code enacted April 25, 1904. The section under consideration is part of that Code, and it is sufficient to say that it was clearly the purpose of the present provision to enlarge the former and extend its benefits to other classes of teachers, who are not in charge of schools when the institute is being held. As to such teachers who dismiss schools that are in session, they not only do not forfeit their pay for such week, as provided in the former law, but in such cases the boards are required to pay them their regular salary for the week they attend the institute. But the present law goes further and attempts, at least, to provide for certain other teachers, who are not in charge of schools while the institute is being held, and this requires a consideration of the latter part of the section, which reads: "The same to be paid as an addition to the first month's salary after said institute by the board of education by which said teacher is then employed, or in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes." In the case at bar, the teachers of the Bowling Green school district had been employed for the ensuing school year, prior to the meeting of the institute, which was held from the 20th tr the 25th of August. But the schools were not then in session, and their terms did not begin until the first Monday in September thereafter. Therefore, their case is governed, if at all, by that part of the section last quoted.

It is urged for plaintiff in error that its language is vague and uncertain, and so much so, that it is not susceptible of reasonable interpretation, and therefore furnishes no authority to the board of education to make the allowance to the teachers complained of in the petition. That is the equivalent of asserting that that part of the section is void for uncertainty. This view does not meet with our approval. It is true that the provision is imperfectly and even bunglingly drawn, and exhibits neg'igence, and, perhaps, ignorance in its phraseology, but these marks should not defeat the operation of the statute, if we can, by the fair use of its language, arrive at the true legislative purpose. There are no contradictory or conflicting terms used, and the omission of clearer words, even relating to substantial matters, will not render the provision void or invalid. It is the duty of the court when called upon to deal with the legislation of a co-ordinate department of our government, to so construe a statute, if possible, as to give it a sensible effect, and make it of binding force. A statute cannot be held void for uncertainty, if any reasonable and practicable construction can be given to its language. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible of different interpretations, will not render it nugatory. Doubts as to its proper construction will not justify us in disregarding it. It is the bounden duty of courts to endeavor by every rule of construction to ascertain the meaning of, and give full force and effect to, every enactment of the General Assembly not obnoxious to constitutional prohibition. This proposition is advanced and upheld in Pennsylvania Co. v. State, 142 Ind. 428-434, 41 N. E. 937; St. Louis Dalles Improvement Co. v. Nelson Lumber Co., 43 Minn. 130-132, 44 N. W. 1080; Lewis' Sutherland Statutory Construction, vol. 1, § 86. "But if, after exhausting every rule of construction, no sensible meaning can be given to the statute, or, if it is so incomplete that it cannot be carried into effect, it must be pronounced inoperative." This court has often applied similar rules. See Lessee of Cochrans' Heirs v. Loring, 17 Ohio, 409; State ex rel. v. Commissioners, 35 Ohio St. 458, where it is held that an act will not be declared void for uncertainty, if by resort to the recognized aids in the construction of statutes, it is possible to ascertain its meaning. And in Gordon v. State, 46 Ohio St. 607-627, 23 N. E. 63, 6 L. R. A. 749, it is said that uncertainty will not render a statute void if possible of execution.

Guided by these rules, we must determine, if possible, what the provision contained in the latter part of section 4091 means. We think the task is not difficult of performance. In the first part, where the teachers dismiss their schools for one week for the purpose of attending an institute, and they do attend

such institute during that week, the boards of education are required to pay the teachers their regular salary for the week upon presentation of the proper certificate of their attendance at the institute. In other words, the salaries continue during that week. Then it is said: "The same to be paid as an addition to the first month's salary after said institute by the board of education by which said teacher is then employed, or, in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes." "The same to be paid;" that is, salary at the same rate is to be paid for the institute week to the teachers who then are under employment for the ensuing school year, that they will receive after service under such employment begins, and this rate of salary is to be paid as an addition to the first month's salary after the institute closes. Or, to put it in other words, the teacher shall be paid for the week spent at the institute on the basis of the salary agreed upon for teaching in the schools thereafter, and this shall be paid as an addition to the first month's salary earned after said institute.

There can be no difficulty in ascertaining the amount to be paid in the present case, be cause the teachers, prior to the holding of the institute, had been employed for the ensuing school year, and, of course, the terms of compensation had been agreed upon. This being the evident purpose of the Legislature attempted to be expressed in the language quoted, there can be no difficulty in its enforcement. The same observation applies to the payment of the teachers for the institute week of 1904. The facts for that year are the same that pertain to 1905, for that was the first time the law became applicable in that district after its passage. The same construction of language will control cases where a teacher is not under employment at the time the institute is held. In his case, he is to be paid by the board next employing him after such institute, provided the term of said employment begins within three months after such institute closes. When he so becomes employed, his rate of compensation is fixed, and on presentation of the proper certificate, showing that he had attended the preceding institute for a week, his compensation for that week is ascertainable and his right to receive it complete, if his term of employment begins within three months after said institute closes. It seems the board of education, defendant in error, readily and easily comprehended this statute, and was proceeding to comply with it, when a doubting Thomas appealed to the court to prevent it. We have nothing to do with the expediency of the law, but it is our duty to enforce it if it is susceptible of enforcement, and it certainly is. The motive and intent of the Legislature is discernible in the language employed when the whole section is 78 N.E.-64

read and considered together, and it was to promote the thoroughness and efficiency of the teachers in our schools, and through them the successful advancement of the schools themselves.

The case was properly decided by the circuit court, and its judgment is affirmed. Judgment affirmed.

SHAUCK, C. J., and CREW, SUMMERS, SPEAR, and DAVIS, JJ., concur.

(75 Oh. St. 153)

CLEVELAND PUNCH & SHEAR WORKS CO. v. CONSUMERS' CARBON CO. (Supreme Court of Ohio. Oct. 16, 1906.) 1. SALE-FAILURE TO DELIVER-DAMAGES.

In an action to recover damages for failure of the vendor to deliver machinery according to the terms of his contract it is proper to allege that the machinery was intended to be used in a manufacturing plant in process of erection, and that the vendor was so informed: such facts making it appear that the loss of the use of the plant was, within the contemplation of the parties, an injury to result from a breach. of the contract by the vendor, and, therefore, a proper element of recovery.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 1196.]

2. SAME-WARRANTY.

When, in a contract for the sale of machinery, its power and capacity are expressly described, there is no implied warranty that it will be adequate to the purpose for which it is to be used, though that purpose is known by the vendor at the time of making the contract. [Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 760.]

(Syllabus by the Court.)

Error to Circuit Court, Fairfield County. Action by the Cleveland Punch & Shear Works Company against the Consumers' Carbon Company. Judgment for defendant on its cross-petition was affirmed in the circuit court, and plaintiff brings error. Reversed.

Plaintiff in error is a corporation engaged in the manufacturing of machinery at Cleveland, and the defendant is a corporation formed for the purpose of manufacturing at Lancaster carbons such as are used in arc electric lights. The contractual relations of the parties out of which the present controversy arose were founded upon the following proposition made by the plaintiff and accepted by the defendant: "Cleveland, Ohio, August 25, 1900. The Consumers' Carbon Co., Lancaster, Ohio-Gentlemen: We propose to furnish you three of our Hydraulic Upright Mold Presses, as shown in our blue prints, which you now have, for $850.00 each, making the item of presses $2,550.00, and one of our Six Plunger Horizontal Pumps, as shown on blue prints which you have, $975.00, and one Accumulator of capacity of power and dimensions to take care of this set of pumps, for $385.00, making a total of $3,910.00. We are to complete the entire above-mentioned machinery ready for shipment in three months. Two of three

presses (together with the Pumps and Accumulators) we we agree to have ready in seventy-five days; the Accumulator, Pump and one Press in sixty days. We guarantee the above machinery to have capacity to make 336 impressions per hour on each press, and of ample strength to stand the pressure of 6,000 pounds per square inch. It is understood that the effective strokes of these presses is to be one inch. Terms of payment to be one-half of the total amount upon receipt of the machinery, and the balance in 60 days thereafter. It is understand that this proposition is accepted, and thanking you for the same, we remain," etc. The defendant had previously informed the plaintiff that it was engaged in the erection of a large plant for the prosecution of the business for which it was formed, and had solicited propositions to furnish the machinery which it required.

After the acceptance of the plaintiff's proposition, the machinery was sent to the defendant and received by it, and the sum of $2,000 was paid on the contract price before there was an opportunity to test the machinery. A dispute having arisen as to the quality of the machinery and its compliance with the contract, the defendant refused payment of the balance of the purchase price and suit was brought by the plaintiff. The first cause of action counted upon the accepted proposal, alleged generally and specifically compliance by the plaintiff and the failure of the defendant to pay the balance of $1,910. There was a second cause of action which needs not to be stated, as it gives rise to no question which is of present importance. Pleading to the first cause of action, the defendant admitted the making of the contract, the delivery of the machinery, and the payment of $2,000, as alleged in the petition, but denied that the machinery was of the quality, power, or capacity required by the contract; and further alleged that it was unfit for use, and that the payment had been made before the defendant could test the machinery, and before it was advised of its worthless character. By way of cross-petition, the defendant made the following allegations: "At the date of the agreement named in the petition and evidenced by Exhibit A, the defendant was engaged in constructing and equipping a factory designed for the manufacture of carbons such as are used in arc electric lights, and was investing a large amount of capital in grounds and buildings and the purchase of suitable machinery for said purpose, and had employed at large expense a sufficient number of expert operatives, and also a clerical force necessary to conducting said business of manufacturing and selling said carbons in large quantities, all of which was at the time well known to the plaintiff. at said time the defendant further required certain presses and pumps and like machinery for the effective manufacture of said carbons, and without which said factory could not be

And

operated, and the plaintiff professed to be able to manufacture and supply such machinery to defendant for said purpose, and said written agreement was thereupon made between said parties; the plaintiff at the time knowing that defendant's said plant was dependent upon the furnishing of said machinery to be put in operation. And plaintiff, professing to comply with said agreement, sent certain items of machinery to defendant, which it represented to defendant would comply with said terms, viz., three presses, one pump, and one accumulator; and | defendant, relying upon plaintiff's representations, placed the same in position and undertook to operate the same, and expended large sums of money in such attempts; but in fact said machinery was wholly unfit for said purpose, and worthless; said pump was wholly ineffective and was not made according to said blue print; said accumulator was likewise unfit for said purpose, and was of imperfect perfect material and manufacture; said machinery did not have the capacity to make 336 impressions per hour on each press, nor half that number, and was not of ample strength to stand the pressure of 6,000 pounds per square inch, and said accumulator was not of capacity of power and dimensions to take care of said pumps. And defendant was put to great expense of time and labor and money in setting up said machinery, and fully testing the same, and was induced by plaintiff's representations aforesaid to pay and did pay the sum of $2,000 to plaintiff upon the price of the same before said machinery was thus tested, and by the failure of said machinery, as aforesaid, defendant's said plant could not be fully operated, and defendant lost in large part the use and service thereof; all to the injury of this defendant in the sum of $20,000, for which as damages the defendant now prays judgment against said plaintiff."

The plaintiff moved the court to strike from the cross-petition the following allegations: "First. The defendant was engaged in constructing and equipping a factory designed for the manufacture of carbons such as are used in arc electric lights, and was investing a large amount of capital in grounds and buildings and the purchase of suitable machinery for said purpose, and had employed at large expense a sufficient number of expert operatives, and also a clerical force necessary to conducting said business of manufacturing and selling said carbons in large quantities, all of which was at the time well known to the plaintiff. Second. And at said time the defendant further required certain presses, pumps, and like machinery for the effective manufacture of said carbons, and without which said factory could not be operated, and the plaintiff professed to be able to manufacture and supply such machinery to defendant for said purpose, and said written agreement was thereupon made between said parties; the plaintiff at the time knowing that

defendant's said plant was dependent upon the furnishing of said machinery to be put in operation. Third. And plaintiff, professing to comply with said agreement, sent certain items of machinery to defendant which it represented to defendant would comply with said terms, viz., three presses, one pump, and one accumulator; and defendant relying upon plaintiff's representations, placed the same in position, and undertook to operate the same and expended large sums of money in such attempt. Fourth. Accumulator was likewise unfit for said purpose. Fifth. And defendant was put to great expense of time, labor, and money in setting up said machinery and fully testing the same. Sixth. And by the failure of said machinery, as aforesaid, defendant's said plant could not be fully operated, and defendant lost in large part the use and service thereof." This motion was overruled, and the plaintiff excepted. Plaintiff thereupon by reply denied the new matter alleged in the cross-petition. On the trial evidence was offered to show that the machinery was defectively constructed and of defective material, and that it lacked the power and capacity required by the express terms of the contract. Against the objection of the plaintiff, the defendant was permitted to show that it had informed the plaintiff of the nature and extent of the plant it was constructing, of the expense it was incurring therein, and in the employment of workingmen and salesmen to operate it, and to the extent to which the plant was idle in consequence of the defects of the machinery, and the plaintiff's failure to correct them. In the charge, the jury was instructed to regard the loss of the use of the plant resulting from the plaintiff's failure to comply with its contract as a proper subject for compensation.

The plaintiff, in writing, requested several instructions to the jury, among them the following: "The first cause of action in the petition of the plaintiff is founded upon a written contract, a copy of which is attached to the petition. The execution of this agreement is admitted by the defendant, and there is no claim here asking to have the same set aside or reformed, and the said agreement is binding upon both parties to it. But it will be an implied term in the said contract that the said goods shall be free from defect, either in material or workmanship." This the court refused to give for the reason, as stated in the record, that said requests were handed to the court and made after two arguments had been made in the case. With reference to the defendant's rights to recovery on its cross-petition the court charged: "If the machinery was defective and worthless, as the cross-petition states, and ineffective as a part of the equipment of this plant; and, further, if the plaintiff sold it to the defendant for the express and special purpose of equipping this carbon plant and understood it was for that purpose as alleged, and it was bought for that purpose, and it failed to do

its work in manner and form, as alleged in the cross-petition, then defendant is entitled to damages."

The jury found for the defendant on its cross-petition in the sum of $4,000, and that there was due it a balance of $3,377.71. Judgment was rendered on the verdict and a motion for a new trial was overruled. On petition in error to the circuit court, the judgment was affirmed.

Carpenter, Young & Stocker, J. S. Sites, and C. W. McCleery, for plaintiff in error. W. K. Martin and M. A. Daugherty, for defendant in error.

SHAUCK, C. J. (after stating the facts). It is urged that the motion to strike from the cross-petition the averments recited in the statement of the case should have been sustained because the plaintiff was bound only as by the terms of the accepted proposal it had agreed to be bound. The view urged by counsel for plaintiff is that, by the terms of the written contract, the vendor was bound to furnish, and the purchaser to accept, machinery of the character and capacity which were definitely stated in the contract, and that there can, therefore, be no implied obligation on the former to furnish machinery which would meet the requirements of the defendant's business. The admission that this view is correct would not justify the conclusion that the motion should have been sustained. The averments to which the motion was addressed, related, not wholly to the ground, but chiefly to the measure, of recovery. They presented circumstances which would lead to substantial loss by the defendant if the machinery should not be furnished according to the contract, and the plaintiff's knowledge of those circumstances. They, therefore, justified the introduction of evidence to show that the defendant had expended large sums of money in the construction of this plant, and in the employment of workingmen and salesmen for the conduct of its business, and, these circumstances being known, the loss to be sustained by the defendant from inability to prosecute its business was within the contemplation of the parties as a result likely to follow a breach of the contract, and therefore a proper element of recovery. Champion Ice Manufacturing & Cold Storage Co. v. Pennsylvania Iron Works Co., 68 Ohio St. 228, 67 N. E. 486.

Although the motion was properly overruled because the averments had legal relation to the measure of recovery, they appear to have been regarded by the trial judge as suggesting a ground of recovery. The substance of the plaintiff's first request for instruction to the jury was that the written agreement should be taken as the measure of the rights and obligations of both parties with no term implied except that the machinery should be free from defects in either

material or workmanship. This request was refused for the reason, as the record informs us, that it was not made until two arguments had been addressed by counsel to the jury. As the literature of the case informs us of neither reason nor authority for refusing an instruction upon that ground, we adhere to the view generally recognized that such a request is timely if made before the cause is submitted to the jury. Not only did the court refuse to give the instruction so requested, but, in the instruction actually given, there was expressed the view that if the plaintiff furnished the machinery with the understanding that it was to be used in operating the defendant's plan there was an implied undertaking that it should be adequate for that purpose. The case affords no reason or opportunity for such implied term. The contract into which the parties entered expressly defined the capacity of the machinery, and the defendant bore the chance of its adequacy to meet the requirements of its business. The conclusive effect which the law gives to the written undertaking of parties would compel the conclusion that the obligations of the plaintiff were fully discharged if, within the time specified, it furnished the machinery of the designated power and capacity and free from defects. Much evidence was adduced; important parts of it coming from witnesses called by the plaintiff, to show that it had in all of these respects failed to perform the terms of the contract into which it had entered, and that serious loss to the defendant had resulted therefrom. But we are not permitted to conjecture that no part of the damages awarded to the defendant was because of the instruction that the plaintiff must answer for the inadequacy of the machinery to perform the duties which the defendant's business required of it, even though it might be of the character and capacity designated in the contract.

The case seems, therefore, to fall within the general rule that, there being substantial error in the refusal to instruct, and the instructions given with respect to the ground of recovery, and it not appearing affirmatively in the record that the error did not operate prejudicially as to the amount of the defendant's recovery, the judgment must be reversed.

PRICE, CREW, SUMMERS, SPEAR, and DAVIS, JJ., concur.

(167 Ind. 315)

TOWNS v. STATE. (No. 20,779.) (Supreme Court of Indiana. Nov. 1, 1906.) 1. LARCENY-ELEMENTS OF OFFENSE-FRAUD

ULENT REPRESENTATIONS.

Where one procured contributions by falsely representing that he was the representative of a national organization whose object was to construct homes for convicts in various parts of the country, and that his mission was to

raise funds for such a home, and converted the amount contributed to his own use, he was guilty of larceny, and not merely of obtaining money under false pretenses.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Larceny, § 34.]

2. SAME-ADMISSIBILITY OF EVIDENCE.

In a prosecution for larceny, consisting of procuring and converting to the defendant's own use contributions made on false representations that he represented a national organization, testimony as to what the defendant said as to what institution he was connected with in raising the money was admissible.

Appeal from Criminal Court, Marion County; Fremont Alford, Judge.

Charles N. Towns was convicted of larceny, and appeals. Affirmed.

Foster C. Shirley, for appellant. C. W. Miller, W. C. Geake, C. C. Hadley, H. M. Dowling, and C. P. Benedict, for the State.

HADLEY, J. Appellant, Towns, obtained consent of the pastor of Grace Presbyterian Church to occupy his pulpit and make an appeal to the public for voluntary contributions to the building, at Jeffersonville, Ind., of a mission home for ex-convicts, by falsely representing to the pastor that he was the general secretary and representative of a national organization of Christian workers, with headquarters at Battle Creek, Mich., and that the object of said organization was to construct such homes in various parts of the country, and that his mission in Indianapolis was to raise funds for a home in Jeffersonville which would cost $1,500, and that he had at the time in hand or pledged $1,100 of the amount. At a public meeting in the church appellant addressed the audience at length, repeating the representations he had made to the pastor, and after an earnest plea for the merits of his mission requested persons in his audience to make cash contributions, or sign pledge cards, if not prepared with the money. There was no such organization at Battle Creek, Mich., as as appellant claimed to represent. IIe afterward told the detective who made the arrest that he had collected $97, all of which, except $8, he had kept for expenses, and the balance he had forwarded to the secretary and treasurer of the Christian Aid Society at Battle Creek, Mich. The prosecuting witness, with others, believing the statements and representations and relying thereon, made a contribution of money. Appellant was indicted and convicted of petit larceny, and assigns as error the refusal of the court to grant him a new trial.

The real question is whether appellant's offense was larceny or obtaining money under false pretenses. Under the facts disclosed by the evidence, and stated above, there can be no doubt but the defendant had formed the design to obtain money by deception, and appropriate what he got to his own use, and deprive the contributors of it. These purposes, existing in his mind at the time he solicited and received the money, constituted

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