eral fund has been freely exercised for many years by the cities throughout the state without special legislative authority. The existence of this power seems to be recognized by the Supreme Court in R. R. Co. v. Connelly, 10 Ohio St., 160, 166. A law passed during the pendency of improvement proceedings directing a part of the cost of an improvement to be paid by the general public, is certainly no more subject to legal or constitutional objection than such a law passed after the proceedings are terminated. My conclusion is that the proceedings of the council relating to this improvement were not in the nature of a contract, and created no vested rights in the city or general taxpayers-and that the act of March, '89, as applied to the improvement, is a valid exercise of the taxing power and is not in conflict with the constitutional provision invoked. Some reliance is placed by counsel for plaintiff on secs. 79 and 1539 of the Revised Statutes. Section 79 provides that whenever a statute is amended, such amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal. It is held in Commissioners v. Greene, 40 Ohio St., 318, that the terms "actions, prosecutions or proceedings" are used in the statute with reference to judicial matters and relate to the prosecution or defense of civil and criminal actions, and can have no just application to a statutory proceeding for the improvement of a county road. Section 1539 provides that "all rights and property which were vested in any municipal corporation under its former organization shall be deemed vested in the same municipal corporation under the organization made by this title; and no rights or liabilities, either in favor of or against such corporation existing at the time of the taking effect of this title, and no suit, prosecution or proceeding shall be in any manner affected by such change, but the same shall stand or proceed as if no such change had been made." It is a serious question whether this section has any application to improvement proceedings instituted after the year 1880, when the Revised Statutes took effect. The change referred to in the section is evidently the change made by the Revised Statutes in the organization of municipal corporations. Am improvement proceeding, instituted after 1880, would necessarily be governed by the Revised Statutes or the amendments thereto and could not be affected by such change. The case of Raymond v. Cleveland, 42 Ohio St., 522, was cited. In that case an assessment was made under the municipal code of 1869, which was repealed by the act of 1878. The repealing act contained a saving clause similar to sec. 1539, Rev. Stat., and after the repeal the assessment was set aside as not made according to law. The court held that the various steps were a proceeding within the meaning of the saving clause, and that the council had the power to make a reassessment pursuant to the code of 1869. Whether the saving clause would apply to proceedings instituted after 1878, was a question not involved nor passed upon. But whether secs. 79 and 1539 are or are not applicable to improvement proceedings, by municipal authorities instituted since 1880, they clearly do not apply to a case like this, where by the express terms of the amendatory act, its provisions are made applicable to improvements already ordered. The latter statute must govern, and the validity of the act must be determined independently of these sections. If the act is retroactive, or impairs the obligations of a contract, within the meaning of the constitution, no saving clause was necessary, and the act is 131 City of Toledo v. City of Toledo et al. void. But if not unconstitutional, then these prior sections can not override the positive provisions of the act, and it must be held to be valid. Another question is raised by the pleadings. By sec. 2689, Rev. Stat., as amended April 4, 1888, and now in force, the aggregate of all taxes levied by cities of the third grade of the first class, for all purposes, shall not exceed in any one year, the rate of fourteen mills on each dollar. It is alleged in the petition, that the common council have already, and since the passage of the act of March, 1889, levied for the year 1889, the full sum of fourteen mills. The question is thus presented, whether a levy for the present year, of the cost of the intersections in addition to the aggregate of fourteen mills, is warranted by law. The act does not provide that the levy may be made in addition to taxes already authorized, and I am of the opinion, under the decisions of the Supreme Court in State v. Humphreys, 25 Ohio St., 520, and State v. Strader, 25 Ohio St., 527, that the taxes provided for by the act, are included in the aggregate of fourteen mills, to the levying of which, the city of Toledo is by law restricted. It follows that the cost of the intersections, can not lawfully be levied on the tax duplicate of 1889, and to that extent the injunction was properly allowed. The act does not limit the time within which the levy must be made, and no reason now occurs to me why it may not be made on a subsequent duplicate. It was stated in the argument that at the time of the passage of this act a large number of street improvements had been contracted for, with the understanding on the part of both the city and the property owners, that the entire cost of the improvement would be assessed upon the abutting property, and that unless the cost of the intersections can be so assessed, a considerable sum of money must be paid by the city to the contractors for which no provision has been made, and that even a levy on the tax duplicate of 1889 would not obviate the difficulty. It was also urged that under existing laws, unless the cost of intersections can be assessed upon abutting property, there is no way by which the city can acquire the means to pay such cost to the contractors, who under their contracts must be paid in cash. Whether this last proposition is correct there may be some doubt, but in any event, these considerations cannot affect the construction or validity of the law any further than to induce on the part of the court the most careful consideration of the questions involved. They might have been proper considerations to address to the legislature as reasons why the law ought not to have been passed. As is well understood, the remedy for unwise or unjust legislation cannot be administered by the courts. It is only when the law is clearly in conflict with some provision of the constitution that the court is authorized to declare it void, and every doubt must be resolved in favor of the law. Under this rule, the act of March, 1889, is in my judgment free from constitutional objection, and applies to the street improvement mentioned in the petition. As the petition states a case for an injunction against levying the cost of the intersections on the tax duplicate of 1889, the demurrer will be overruled, but the injunction allowed at the commencement of the suit will be modified so as to permit the assessment of the expense of the improvement on the abutting property less the cost of the intersec tions, as reported by the engineer, and to restrain only the levying the cost of the intersections on the duplicate of 1889. Superior Court of Cincinnati. 136 136 SPECIFIC PERFORMANCE. [Superior Court of Cincinnati, Special Term.] R. B. BOWLER ET AL. v. BRUSH ELECTRIC LIGHT CO. 1. A court of equity will decree specific performance of a contract for the lease of real estate where the only defense is, that the quantity of land described in the lease tendered is slightly less than that contracted for, if the court is satisfied that the defendant will thus receive substantially that which he agreed to lease. 2. If the deficiency in such case is sufficient to affect the value of the property, the court may decree specific performance with compensation to the defendant for the difference in value. PECK, J. This is an action for the specific enforcement of a contract for the leasing of real estate. There is little room for dispute as to the material facts, which are as follows: Plaintiffs in writing proposed to lease to defendant a lot of ground, which they described as "one hundred feet on east side of Broadway, back one hundred and seventy-five feet to Spring street," upon certain terms and conditions which it is unnecessary to mention. Defendant accepted the proposition by a writing in which the lot is spoken of as being "one hundred feet front, extending back to Spring street." After the contract was executed, it was discovered that the distance from Broadway to Spring street was only one hundred and sixty-five feet, and defendant declined to take the lot, because of the difference in depth. During the negotiation the statement had been made to the officers of the Light Co. by one of the plaintiffs that the lot was one hundred and seventy-five feet in depth, and there is no doubt that both parties believed it to be such at the time of the execution of the contract. The officers of the company had inspected the lot, and were familiar with its location and surroundings. The lot was open and unimproved, as was also Spring street, and the boundary between the lot and the street not well defined. The difference in depth resulted from the fact that Spring street turned out to be ten feet wider than either party had thought, and this was only discovered after an examination of the title and a survey had been made. It is beyond question that there was a mutual mistake as to the quantity of ground contained in the lot, and the question is, whether the mistake is of such a character as to defeat plaintiff's action, for it is admitted that they have tendered a lease, and complied with all the other conditions of the contract, so far as to entitle them to enforce it, unless they fail because of the mistake mentioned. It is not every mistake as to quantity that will avoid such a contract. If the court is satisfied that the purchaser is getting substantially what he bargained for, he will be compelled to perform the contract, although there may be a difference between the amount conveyed and the amount contracted for. In some cases defendant has been compelled to receive the property and allowed compensation for the difference. Such was the case of King v. Wilson, 6 Beav., 124, where a lot was sold as 46 feet in depth which proved to be only 33. McQueen v. Farquaher, 11 Ves., 467; Winne v. Reynolds, 6 Paige Chy., 410; Calcraft v. Roebuck, 1 Ves. Jr., 221; Calverly v. Williams, id., 210, 212; Foley v. McKeown, 4 Leigh, 627; Scott v. Hanson, 1 R. & My., 128; Foley v. Crow, 37 Md., 51: Stoddard v. Smith, 5 Binuey, 355; King v. Bardean, 144 Bowler et al. v. Brush Electric Light Co. 5 John's Chy., 38; Fry on Specific Performance, sec., 1194; White v. Tudor, Ld. Cas., 1145. Many of the cases go much further than the facts in the case at bar require me to go in order to enforce the contract, and it seems to me that this is a case fairly within the spirit of those authorities. In the acceptance of the contract written by the managing director of the company there is no mention of the depth, but the lot is only spoken of as extending from Broadway to Spring street. It does not appear that there is anything in the use which it is proposed to make of the lot, requiring it to be of that exact depth, or that its value to the company will be diminished except to the extent of the general value of the use of ten feet. When the defendant receives a lease of a lot 100 feet front, extending back to Spring street, and in all respects the same as that contracted for, save that it is less in depth by about one-seventeenth part than it was understood to be, it will receive substantially what was contracted for, and I am satisfied that if compensation be made for the difference in depth, if there is any material difference in value caused by the deficiency of quantity, which is a question of fact for further inquiry, both parties will have received that to which they are equitably entitled. The deficiency, while not sufficient to entitle defendant to refuse to perform the contract, is perhaps enough to entitle the company to compensation, depending upon the question of the differnce of value. If there is any material difference in the latter respect, the company is, in my judgment, entitled to a reduction to that extent, because their mistake as to the quantity was induced by the statements of plaintiffs. The mistake originated with the plaintiffs, and while innocently made, and not sufficiently important to avoid the contract, they are equitably bound to relieve the defendant from its consequences. The question, what, if any, difference there is between the value of the lot as it is, and as it would be if 175 feet in depth, will be referred to a master for inquiry and report, and upon the coming in of the report, a decree for specific performance may be entered with the amount of compensation so determined deducted from the value fixed by the con tract. Kittredge & Wilby and C. B. Matthews, for plaintiff. POWER-SPECIFIC PERFORMANCE-TRUST. [Superior Court of Cincinnati, General Term, 1889.] 144 1. A naked power of sale does not imply a power to lease. 2. In a contract providing for the exchange of a tract of land, purchased to be subdivided into suburban lots, for a farm and farm outfit and live stock thereon, title and possession to be delivered on May 1, held that time of performance was sufficiently material to make it inequitable to enforce a purchase on a title to the tract not perfected by the vendor until nine months after objection by vendee and the time fixed for performance. 3. Executors made a void lease under a naked power of sale and conveyed the reversion subject to the lease. Held, that the claim that the two acts constitute a lawful execution of the power is, at least, so doubtful that in the absence of the cesturs que trust a court of equity ought not to force upon a purchaser, a title dependent for its validity upon the deed of the reversion. For opinion in special term, which this judgment affirms, see ante 391. Superior Court of Cincinnati. 144 This action was for specific performance of a contract to purchase a leasehold estate. The court below dismissed the petition, stating separately its findings of fact and conclusions of law. The motion to set aside the decree and for a new trial was reserved to this court. No exception was taken to the findings of fact, and the motion is based on them. After the opinion was delivered at special term, plaintiff applied for leave to open the case and to introduce further evidence, which was denied, and a bill of exceptions was taken. This ruling is made an additional ground for a new trial. From the findings of facts it appears, that some time before June, 1886, Pollock Wilson died, testate, the owner, among other things, of a tract of land lying partly within and partly without the city of Hamilton, Butler county, Ohio, containing two hundred and seventy-five acres, which is the subject of this action. By his will, which was probated June, 1876, he directed that his debts be paid as speedily as possible, and gave, devised and bequeathed to five of his children, naming them, all of his property real, personal and mixed, to hold the same to them and their heirs forever share and share alike. He appointed two of his sons-in-law, John Carlisle and Albert G. Clark, his executors without bond, and in the fifth item of the will provided as follows: "Fifth, I hereby authorize my said executors to sell to any person or persons, and for such prices and upon such terms as they may deem best, at public or private sale, any part of my real estate which they may think best to sell, either for the payment of debts, or for the purpose of making division of my estate amongst my heirs, and the purchaser from my executors shall not be bound to see to the application of the purchase money. And in case of the death, resignation, refusal or incapacity to act or removal from executorship of either of said executors, the other shall have the same powers." By a codicil, the testator revoked the devise and bequest to William, one of the five children named in the third item of the will, and instead, gave the undivided one-fifth of his property to his executors in trust to convert the same into money, and the same to invest and keep invested in city, state or government bonds, and to pay the income to William during life, or until he should assign or incumber the same, or until it should be attached, or he should become a bankrupt, on the happening of any of which events, or his death, the bonds should go to his children or on his having no issue to take, to his sister Amy, and for the purposes of this trust, the executors are given authority to make sale and conveyance of real estate. On December 1, 1887, the executors made a lease of the Hamilton tract of 275 acres to C. C. Breuer, the plaintiff, and two others, Potter and Parlin. The consideration of the lease was certain sums of money already paid, amounting to $10,000, and the annual rents reserved. The term is for ninety-nine years, renewable forever. The rent reserved is fifteen hundred dollars a year, payable yearly. The lessors convenant to convey by good and sufficient deed of general warranty the fee of the land, on payment by the lessees of $30,000, with the privilege of paying same in installments of not less than $10,000, reducing the rent pro tanto, and receiving deed for proportionate part of the tract, to be determined by agreement or arbitration. There is a paramount lien to secure rent and other covenants reserved by the lessors, and a clause forfeiting lease on non-payment of rent for thirty days, with a right of re-entry reserved to the lessors on such default. |