two. (Dr. T. D. Woolsey, Dr. Nathan Allen, and others, in various recent publications, have commented upon these startling statistics. North American Review, June, 1880.) What makes the parallel more marked, continence has not accompanied the condition of celibacy. Apart from the abandoned criminal class stand the women divorced from unhappy marriages, and maidens who are pushing in life for themselves, both classes assailable because deprived of those social safeguards which all their sex need. One perceives in public comparatively little of that manly courtesy and deference to ladies which was formerly characteristic of Americans. Meantime, as statistics show us, infanticides and abortions multiply, and the number of children born out of wedlock increases in proportion. In a word, indications are strong that in an old settled section of this Union, where the marriage relation was once remarkably pure, as well as prolific, men, as in the age of Augustus, are beginning to decline marriage for the sake of concubinage. Their selfishness declines the responsibilities, and their self-respect the possible mortifications, of wedlock with a dual government. Nor, probably, is this the drift of social events in New England alone.

The conclusions to which the writer's investigation upon this subject conducts him are these: Marriage is a relation divinely instituted for the mutual comfort, well-being, and happiness of both man and woman, for the proper nurture and maintenance of offspring, and for the education in turn of the whole human race. Its application to society being universal, the fundamental rights and duties involved in this relation are recognized by something akin to instinct, and often designated by that name, so as to require by no means an intellectual insight; intellect, in fact, impairing often that devotedness of affection which is the essential ingredient and charm of the relation. Indeed, the rudest savages understand how to bear and bring up healthy offspring. Legal and political systems are accretions based upon marriage and property; but in the family, rather than individualism, we find the incentive to accumulation, and in the home the primary school of the virtues, private and public. At the same time, marriage affords necessarily a discipline to both sexes; sexual indulgence is mutually permitted under healthy restraints; women's condition becomes necessarily one of comparative subjection; man is tamed by her gentleness and the helplessness of tender offspring, and for their sake he puts a check upon his baser appetites, and concentrates his affection upon the home he has founded. Such is the conjugal union in what we term a state of nature.

And now,

while man frames the laws of that union, as he always does in primitive society, he regards himself as the rightful head of the family, and lord of his spouse; and somewhat indulgent of his own errant passions, he makes the chastity of his wife the one indispensable condition of their joint companionship. She, on her part, more

easily chaste than himself, views with pain whatever embraces he bestows upon others of her sex. Her personal influence over him, always strong, enlarges its scope as the State advances in arts and refinement, until at length woman, as the maiden, the wife, and the matron, becomes intellectually cultivated-a recognized social power in the community. Yearning now for a wider influence and equal conditions, her attention strongly concentrated upon the marriage relation, she seeks to make the marriage terms equal. First, she desires her property secured to her own use, whether married or single; and, indignant at the remedies afforded under the law for wifely wrongs, demands the right of dismissing an unworthy husband at pleasure. Moreover, as a mother, she claims that the children shall be hers not less than the father's. These first inroads are easily made, for what she demands is theoretically just. But just at this point the peril of female influence is developed. Woman rarely comprehends the violence of man's unbridled appetite, or perceives clearly that, after all, in the moral purity and sweetness of her own sex, such as excites man's devotion and makes home attractive, is the fundamental safeguard of life and her most powerful lever in society, besides the surest means of keeping men themselves continent. She forgets, too, that to protect that purity and maintain her moral elevation, a certain seclusion is needful, which seclusion is highly favorable to those domestic duties which nature assigns as her own. More is granted woman. The bond of marriage being loosened, posterity degenerates, society goes headlong; and the floodgates of licentiousness once fully opened, the hand must be strong that can close them again.

Happiness, we may admit, differs with the capacity, like the great and small glass equally full, which Dr. Johnson mentions. Yet marriage is suited to all capacities, and men and women are the complement of one another in all ages, neither being greatly the intellectual superior of the other at any epoch, but the man always having necessarily the advantage in physical strength and the power to rule. The best-ordered marriage union for any community is that in which each sex accepts its natural place; where woman is neither the slave nor the rival of man, but his intelligent helpmate; where a sound progeny is brought up under healthful home-influences. The worst is that where conjugal and parental affection fails, and all is discord and unrest-a sea without a safe harbor. To the household, stability may prove more essential than freedom, and woman's status more dignified or more degraded, as the case may be, than the law assumes to fix it.

In fine. society and the Church should, while elevating woman, reconcile her to those functions-life-giving, life-preserving, educational, and refining-to which nature consecrates her being. Marriage should be held the universal state of honor, a state of security, a state economical for all men, as compared with pampered

celibacy. Both sexes should be encouraged in constancy, affection, and interdependence. The policy of every government should be to encourage and strengthen matrimony, before public sentiment shifts in the direction of requiring concubinage to be legalized in its stead. Such is the force of the sexual passion, we may feel assured, that when marriage has ceased to attract mankind, the mistress has usurped the place of the wife, even prostitution may become the secret protest of mankind against a prostituted marriage. JAMES SCHOUler.

Southern Law Review.

SUPREME COURT OF OHIO.

SWIFT'S IRON AND STEEL WORKS

V.

DEWY, VANCE & Co.

November 1, 1881.

1. D. agreed in writing to deliver to S. a certain quantity of iron ore, at a specified price per ton," on the landing at C.," and gave him an order therefor, and S. brought an action on the agreement, alleging that D. refused to deliver the ore: Held, it is competent to show that by the settled, uniform usage at C., well known to the parties when they contracted, one holding such order is entitled to have the ore taken from the pile on the landing and placed in his boats; that ore is not permitted to be removed, nor is it practicable to remove it, in any other manner; and that the ore is weighed when it is carried in the boats to its destination, and then payment therefor is made.

2. In an action for refusing to deliver ore, prosecuted on an agreement in the same form, it appeared that the seller resided at another place, where he refused to deliver such order, and informed the purchaser that he would not comply with the agreement: Held, that it was not necessary for the purchaser, after such refusal by the seller, to take boats to C. for the ore, or demand the ore at C., the purchaser being able and willing to comply with such agreement as it existed in view of the usage.

Error to the Superior Court of Cincinnati.

On September 17, 1873, Dewy, Vance & Co. brought suit in the Superior Court of Cincin nati, against Swift's Iron and Steel Works, a corporation, on the following instrument:

"Alex. Swift, Pres. Geo. E. Clymer, Vice Pres. Edwin Swift, Treas.

Office of Swift's Iron and Steel Works No. 26 W. Third St., Masonic Temple. "CINCINNATI, October 1, 1872. "A. Swift, Esq., Cincinnati, Ohio:

"DEAR SIR:-We propose to deliver to you on the landing at Carondelet, 1,000 to 1,200 tons Iron Mountain ore, near St. Louis, you to take it away during 1872, paying for the same $5.50 per ton, cash-it being understood that you are to deliver to us next spring, at the same place, the same quantity of ore at the same price. "Yours truly "DEWY, VANCE & Co.

(Signed,)

"Accepted:

(Signed,)

"ALEX. SWIFT, Pres't.

The plaintiff sought in the action to recover damages from the corporation for its refusal to deliver to them ore in the spring of 1873.

The corporation admits the non-delivery of the ore in the spring of 1873, and its failure to

draw an order for ore on the Iron Mountain Company, but denies the plaintiffs are entitled to recover, because the contract is entire and they failed to deliver to the corporation ore in the fall of 1872, in pursuance of the contract; and for the further reasons that the plaintiffs did not demand the ore to be delivered in 1873 at the proper time or place, did not have any boat at Carondelet landing to receive it, and were not ready and willing to pay for such ore; and, by way of counterclaim, the corporation asked damages for such failure to deliver ore in 1872. this counterclaim there was a reply.

Το

A verdict was rendered in favor of Dewey, Vance & Co. for $3,090; and the cause having been reserved to the general term on a motion for a new trial, the motion was overrated, and judgment was rendered on the verdict. On leave, this petition in error was filed to reverse the judgment.

The material facts, either admitted or shown by the evidence, are as follows: During the year 1873, and during many preceding years, Dewy, Vance & Co. was a firm engaged in the manufacture of iron at Wheeling; Swift's Iron and Steel Works was a corporation engaged in the manufacture of iron and steel at Cincinnati and Newport; and the Iron Mountain Company was a corporation at St. Louis, having a monopoly of the kind of iron ore mentioned in the above agreement.

The Carondelet landing referred to in the contract is owned by the Iron Mountain Company, is situated on the Mississippi river within the corporate limits of St. Louis, and the company owns all the ore ever placed thereon. The ore is kept in a pile, from which the boats of the company's customers are loaded. No particular part of the ore is set apart to any customer, but the loading is done from that part of the pile nearest the boats. The ore is not weighed at the placement of the boats when loaded, a memoranlanding, but the weight is estimated by the disdum of the weight thus approximated is made, and that governs in the settlement and payment, if the ore or any part of it is lost in transit; but if none of it is thus lost, the actual weight is ascertained when the ore arrives at its destination, and payment is then made.

The Iron Mountain Company, during the fall or early part of winter in each year, sends a cirprice of ore for the ensuing year. cular letter to each of its customers, fixing the The price so fixed remains unchanged during such year. In the fall of 1871, the company fixed the price of ore for 1872, "on the landing at Carondelet," at five dollars and fifty cents per ton. Ore ordered in pursuance of such circular must be taken away during such succeeding year, as the contract is cancelled, at the end of such year, as to any ore not removed. The company never permits ore to be taken from the landing in any other manner or upon any other terms than as above stated; but where a customer who has agreed to take ore, gives orders to others for part or all the ore he contracted for, the company

fills such orders, but still looks to the customer for payment.

This mode of dealing with respect to Iron Mountain ore at Carondelet landing, has been for many years uniform, invariable and well known, and the parties to this suit were familiar with the usage, when the agreement was made, and contracted with reference to such usage.

As early as May, 1872, Swift's Iron and Steel Works had exhausted all the ore due to it for that year, under its contract with the Iron Mountain Company made the preceding autumn. In that month and again in August, Mr. Swift applied to the company for more ore, but the company refused, as it had contracted with others for all it could deliver during 1872. In that condition of things, Mr. Swift applied to Dewy, Vance & Co. That firm had contracted with the Iron Mountain Company for more ore than it could use during 1872, and knowing that the contract would be cancelled on January 1, 1873, as to any ore not taken away in 1872, it was willing to let Swift's Iron and Steel Works have ore, provided it could obtain, in the spring of 1873, an equal quantity of ore at the price prevailing in 1872, that is, at five dollars and fifty cents per ton, for it was then manifest that the price for 1873 would be much higher, and in fact, in the fall of 1872 the Iron Mountain Company fixed the price of ore for 1873 at ten dollars per ton. Under these circumstances, the contract of October 1, 1872, was made at Cincinnati and far the reasons stated, it was advantageous to both parties. An order was at the same time delivered to Mr. Swift in the following form:

The Iron Mountain Company was immediately informed of such order, and the amount of ore therein specified was placed on its books to the credit of Swift's Iron and Steel Works.

The water in the Ohio and Mississippi rivers was low in October and the early part of November, 1872, and no boats were sent for the ore. Later in November and during December, the rivers became so full of ice that it was impossible to remove the ore by boat during that year. Swift's Iron and Steel Works applied to the Iron Mountain Company, while the river was thus filled with ice, for leave to remove the ore in some other manner than by boats, but the Iron Mountain Company declined to grant the request, and the ore was never obtained. In fact, there is no other practicable way by which to remove ore from the landing than by.boat.

As already stated, no ore was delivered to Dewey, Vance & Co. under the agreement, nor did they receive any order on the Iron Mountain

Company for ore. They demanded of Swift's Iron and Steel Works repeatedly, at Cincinnati, during May, 1873, compliance with the agreement as to the delivery of ore in the spring of 1873, insisting on an order on the Iron Mountain Company for such ore. The only reason given for non-compliance with the demand was the alleged non-compliance by Dewey, Vance & Co. with their agreement to deliver ore in 1872. Dewey, Vance & Co. were ready and willing to pay for the ore according to the custom already stated, that is, according to weight as ascertained on arrival of the ore at its destination, or in case of the loss of ore or any part of it while in transit, according to its weight as ascertained by displacement, in the way stated.

The objections of Swift's Iron and Steel Works to a recovery on the part of Dewey Vance & Co., and the grounds of recovery on the part of the former on their counterclaim, are presented in exceptions to the refusal of the court below to give certain instructions to the jury, and in exceptions to certain portions of the charge given. So far as it is necessary to state these exceptions, they will be found in the opinion of the court.

Hoadly, Johnson & Colston and John Johnston, for plaintiffs in error.

No valid usage was shown. S. W. Freight and Cotton Press Co. v. Standard, 44 Mo. 71; Ober v. Carson, 62 Mo. 209; Inglebright v. Hammond, 19 Ohio 337; Edie v. East India Co., 2 Burr 1216; Homer v. Dorr, 10 Mass. 26; Frith v. Barker, 2 John 327, 335; Thompson v. Riggs, 5 Wall. 663; Robinson v. U. S. 13 Wall. 363; Savings Bank v. Ward, 100 U. S. 166, 206; Randall v. Smith, 63 Maine 105; Eager v. Atlas Ins. Co., 14 Pick. 141; Reed v. Richardson, 98 Mass. 216; Warren v. Franklin Ins. Co., 104 Mass. 518; Hone v. Mutual Safety Ins. Co., 1 Sandf. 137; Bargett v. Orient Ins. Co. 3. Bosw. 385; Minnesota Central R'y Co. v. Morgan, 52 Barb. 217; Bank of Commerce v. Bissell, 72 N. Y. 615; Rapp v. Palmer, 3 Watts, 78; Raisin v. Clark, 41 Md. 158; Dewees v. Lockhart, 1 Texas 535; The Pacific, Deady, 17; 6 South. L. Rev. (N. S.) 845; Schooner Reeside, 2 Sum. 569. And see Tilley v. County of Cook, 103 U. S. 146, 162.

Follett & Cochran, for defendants in error.

The usage shown is part of the contract. Broom's Leg. Max. Ch. x.; 2 Parsons on Con. 499, 535; Starkie on Ev. *710; Wigram on Ex. Ev. 57; Thompson v. Riggs, 5 Wall. 663; Barnard v. Kellogg, 10 Wall. 384; Robinson v. U. S. 13 Wall. 363; Bradley v. Packet Co., 13 Peters 89; Reed v. Ins. Co., 95 U. S. 23; U. S. v. Peck, 102 U. S. 64; Doane v. Dunham, 79 Ill. 131; Lyon v. Culbertson, 83 Ill. 33; Bailey v. Benseley, 87 Ill. 556; Scudder v. Bradbury, 106 Mass. 423; McMasters v. Penn, R. Co., 69 Pa. St 374; Lucy v. Green, 84 Pa. St. 514; Brackett v. Egerton; 14 Minn. 174; Rindskoff v. Barrett. 14 Iowa 101; Karmuller v. Kootz, 18 Iowa 352; Hovey v. Pitcher, 13 Mo. 191; Sontier v. Kellerman, 18 Mo. 509; Patter

son v. Canden, 25 Mo. 13; Gray v. Clark, 11 Vt. 385; 1 Taylor's Ev. 178; 2 Ib. 990, 1002; Story on Sales, 230; 2 Phillips on Ev. 726, 787; 1 Greenleaf's Ev. §§ 292, 295; 2 Ib. § 251; Gibson v. Stevens, 8 How. 384; Corbett v. Berryhill, 29 Iowa 157; Boorman v. Johnson, 12 Wend. 573; Stapenhorst v. Wolff, 35 Sup. Ct. N. Y. 25; Heald v. Cooper, 8 Greenl. 32; Cushing v. Breed, 14 Allen 376; Lockhart v. Bonsall, 77 Pa. St. 53; Carter v. Phil. Coal Co., 77 Pa. St. 286; How v. Barker, 8 Col. 608; Edwards v. Smith, 62 Mo. 119; Hall v. Smith, 16 Minn. 58; Hunter v. Salt Co., 14 Mich. 98; Douglass v. Garrett, 5 Wis. 85;, Rice v. Cutter, 17 Wis. 351; Lamb v. Klaus, 30 Wis. 94, Lowber v. Bangs, 2 Wall. 737. And see Wiggleworth v. Dallison, 1 Smith's Led. Cas. 546; Benj. on Sales (2 Am. ed) § 215, note; Leake on Con. 196; Anson on Con. 238; Bishop on Con. §§ 571, 572. OKEY, J.

The question presented in this case is whether a purchaser of iron ore, to be delivered at a specified place, may be bound by usage as to the manner of delivering and place of weighing and making payment for the ore.

The

The written contract sued on is, as we have seen, an agreement on the part of Dewey, Vance & Co., defendants in error, to deliver to Swift's Iron and Steel Works, plaintiff in error, "on the landing at Carondelet," at five dollars and fifty cents per ton, cash, one thousand to twelve hundred tons of Iron Mountain ore, to be taken away by the latter during the year 1872; and, also, an agreement on the part of the latter to deliver to the former, in the spring of 1873, at 'the same place and price, the same quantity of ore. If the parties are bound by the terms of this contract, unaided by extraneous testimony, it is clear that the judgment is erroneous. plaintiff in error demanded the delivery of the ore, at the place named in the contract, and within the time there stated, and was then able and willing to pay for it, while the defendants in error did not demand ore at Carondelet, in the spring of 1873, nor were they there ready to pay for it Under such circumstances, looking alone to the face of the agreement, the defendant in error would not be entitled to recover, but the plaintiff in error could maintain an action. Extraneous evidence, however, shows the rights and obligations of the parties to this instrument to be very different from those implied in the absence of such evidence. Such evidence shows, as we have seen, that there is a uniform, settled custom at Carondelet, well known to the parties, and with reference to which they contracted, according to which a party holding such an order for ore as the plaintiff in error had, may present it to the agent of the Iron Mountain Company, at the landing, and have placed in his boats, from the pile there collected, the ore specified in the order, the Iron Mountain Company being the owner of the landing and the ore thereon; and that payment is made when the ore is carried by the boats to its place of destination and there weighed, unless the ore or

part of it is lost in transit, in which case payment is made according to the weight estimated from the displacement of the boats at the time they are loaded. It further appears, that it was well known to both parties to the contract, at the time it was made, that the Iron Mountain Company never permits ore to be removed from the landing in any other manner or upon any other terms or conditions; indeed, that there is no other practicable mode of removing such ore. The question, therefore, is whether it was competent to show such facts by such evidence, the plaintiff in error objecting; for if it was, the plaintiff in error, not being able or willing to remove the ore by boat, cannot recover damages for a refusal to deliver to it such ore.

Extrinsic evidence is admissible to show that the parties to a written agreement have contracted upon a common basis of usage, applicable to the business in which the contract is made, whereby they have impliedly assented to certain conditions not mentioned in the contract. With respect to usage of the character relied on here, it must appear, in order to be valid, that when the contract was made, such usage was uniform, well established, and known to the parties; but that the agreement is on its face free from ambiguity, or that such agreement with, and the same agreement without the incidents annexed, imports very different rights and obligations, affords no valid objection to such evidence. In Humfrey v. Dale, 7 E. & B. (90 Eng. C. L.) 266, Lord Campbell said: "In a certain sense, every material incident which is added to a written contract varies it, makes it dif ferent from what it appeared to be, and so far is inconsistent with it. If by the side of the written contract without, you write the same contract with the added incident, the two would seem to import different obligations and be different contracts." And see Myers v. Sarl, 3 E. & E. (107 Eng. C. L.) 306. The usage, however, must not be inconsistent with the words of the agreement, nor must it be unreasonable; but the usage here shown seems not to be obnoxious to either of these objections. Cuthbert v. Cumming, 10 Hurl. & Gord. 809, affirmed, 11 Ib. 205.

The cases relating to usage of this character seems not to be in entire harmony. It is difficult to extract from them any more definite rules by which to determine the validity of such usage than those already stated. It is some times difficult, moreover, to determine whether the law,in a particular case, will or will not permit such proof. Each case must be determined by itself, aided by such light as may be derived from the judgments in other cases where the facts are analogous. Upon consideration of the cases cited in argument, and others, we unite in holding that the proof offered in this case to show usage was competent; and there being no substantial conflict as to the facts, the rights of the parties are determined by such proof. As the plaintiff in error never demanded the ore upon the order, though the defendants in error were

able and willing to deliver it, in pursuance of the contract with such incidents annexed, a right to recover damages, with respect to the ore of 1872, never accrued to the plaintiff in error; and, for the same reason, it is wholly immaterial whether the covenants in the agreement should be regarded as dependent or independent. So, it is immaterial whether the court properly construed the contract, in charging the jury that if Dewey, Vance & Co. were entitled to recover, one thousand tons of ore would be the basis of such recovery; for if the construction was erroneous, the error was favorable to the plaintiff in error. And these views likewise dispose of the remaining question, as to the right of the defendants in error to recover for the failure of the plaintiff in error to deliver to them ore in the spring of 1873, and sustain such recovery; for the ore could only be obtained on the order of the plaintiff in error; and when the defendants in error, at Cincinnati, in the spring of 1873, demanded such order, the plaintiff in error refused to give it, or to comply with the contract, the defendants in error being at the time able and willing to comply with the agreement in accordance with its terms and such annexed incidents. In view of these facts, the defendants in error were not required to demand the ore at Carondelet in the spring of 1873, or have boats there to receive it. Lowry v. Barrelli, 21 Ohio St. 324. And this is not inconsistent with Mowry v. Kirk, 19 Ohio St. 375, or Simmons v. Green, 35 Ohio St. 104.

The rulings in the court below are not inconsistent with the views here expressed, nor is there any error in the record, and therefore the judgment will be affirmed.

Judgment affirmed.

[This case will appear in 37 O. S.]

Digest of Decisions.

1. Replevin.-A judgment in replevin will not be reversed for a refusal to receive in evidence of appellant's title a former valid judgment in replevin between the same parties, where the identity of the property in the two suits was directly submitted to the jury upon evidence of a doubtful character, (including the former writ of replevin, and the return of the officer thereon,) and the jury were instructed that appellant was entitled to recover if the property was the same.

2. Where A. undertakes, in a lawful manner, to remove chattels, as his own, from the possession of B., and the latter objects to his doing so, denying that A. has any property there, this is equivalent to a formal demand and refusal,

ROGERS V. ROGERS. Filed September 27, 1881.

1. Deed-Delivery.-The legal effect of the delivery of a deed of conveyance by the grantor to the grantee, with intent to pass the title, is not altered by its subsequent re-delivery to and destruction by the grantor.

2. The grantee in a deed is not affected by a declaration of a trust as to the lands conveyed, made by the grantor in a separate paper, not referred to in such deed, nor assented to or even known by the grantee when he took the title.

REILEY V. TIMм, Filed September 27, 1881.

Slander. While in slander, under section 2678, Rev. St., mitigating circumstances not pleaded cannot in general be shown by affirmative proof, still, where plaintiff has put in evidence a fact not pleaded by him, tending to create an inference of express malice, defendant may rebut that inference by evidence explanatory of such fact.

MESSER V. OESTREICH. Filed September 27, 1881.

1. A deed executed since the Revision of 1878, in the form prescribed for a warranty deed by section 2208, Rev. St., must be regarded as containing the covenants named in that section.

2. Where the description in a deed of the land conveyed is otherwise uncertain, evidence will be admitted of the state of the property when the deed was executed, to aid in its construction.

3. Where a deed purports to convey a strip of land of a certain width along a line already located, but without prescribing the lateral boundaries or designating the particular portion of the strip traversed by such line, if the grantee thereupon goes into possession under such deed, and designates the lateral boundaries by substantial fences, and continues in the exclusive possession for many years with the acquiescence and consent of the grantor, this is a practical construction of the deed, binding upon the parties and those claiming under them.

4. It seems that such a deed with full covenants of warranty, for a valuable consideration paid, would be valid as a covenant, and, if executed to a railroad company, would authorize it to appropriate such a strip of land of the width named, along the line already located, as might be necessary to the, construction of its contemplated road; and that, after such actual appropriation of the land, the grantor would be estopped from denying that he had conveyed it.

·

5. A prior valid deed to a railroad company and its assigns of a strip of land along the line of its railroad, for the uses and purposes of said company, is a breach of the covenant of seizin, in a subsequent deed by the same grantor to a third person of the parcel of land which includes such strip, although the company is in occupancy of the strip for the purposes of a railroad when such subsequent deed is executed. Kutz v. McCune, 22 Wis. 598, and Smith v. Hughes, 50 Wis. 620, distinguished.