Volume 17 — Indiana Appellate Court Reports

<p>From the White Circuit Court..</p>

<p>From the Porter Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>Appeal. — Law of Case. — A decision of the Appellate Court, whether right or wrong, is binding upon a subsequent appeal.</p> <p>Same. — Excessive Carnages. — A verdict will not be disturbed’ on appeal on the ground of excessive damages, unless it is so excessive as to indicate that the jury acted, from prejudice, partiality, or corruption. ’ ’</p> <p>Evidence. — Opinion.—Where the'facts were fully placed before the ’ jury, it was not error to exclude opinion evidence based thereon, where án opinion could have been readily formed by the jurors. Same.- — Where a Witness is ^.sfced to Repeat a Conversation. — A witness who is asked to repeat a conversation had at some previous time must give the conversation as it occurred, or the substance of it, and leave the court or-jury to determine what the parties intended.</p>

<p>From the Allen Circuit Court.</p>

<p>Assignment op Error. — Breach of Contract. — Measure of Damages. —In an action by vendors against vendees for damages for failure and refusal to receive a certain number of books as contracted for, such contract providing that the books should consist of five different styles of binding, ranging in price according to style of binding, and such contract was silent as to the style of binding which vendees agreed to purchase, an assignment that the court erred in overruling appellants’ motion on the special verdict in their favor for §214.50, such amount being based upon the assumption that vendees were to order and receive an equal number of the five different styles of binding, is too indefinite to present any question thereon, pp. 50-58.</p> <p>Contract. — Breach Of. — Measure of Damages.- — Where a contract is made for the sale and delivery of personal property and the vendee refuses to receive the same at the time and place of the delivery thereof, the measure of damages is the difference between the contract price and the market value at such time. p. 58.</p> <p>Same. — Breach Of. — Nominal Damages. — Where there has been a breach of contract by one of the parties thereto, the other is at least entitled to recover nominal damages for such breach, p. 53.</p> <p>Appeal and Error. — Nominal Damages.— Harmless Error. — The Appellate Court will not reverse a judgment of the court below for its failure to assess nominal damages, p. 53.</p>

<p>Appeal and Error.- — Sufficiency of Complaint First Assailed by Assignment of Errors.- — Statute Construed. — The sufficiency of the facts stated in a complaint may be raised for the first time by the assignment of errors in this court under section 346, Burns’ R. S. 1894, where the averment of a substantive fact has been entirely omitted therefrom., pp. 55-57.</p> <p>Same. — Defective Complaint not Cured by Verdict and Judgment.— Verdict and judgment thereon will not cure a defective complaint where the averment of a substantive fact has been entirely omitted therefrom, pp. 57, 58.</p> <p>Insurance. — Complaint Must Contain Averment as to Ownership of Property. — Defect not Cured by Verdict and Judgment. — The omission from a complaint, in action on a fire insurance policy, of an averment as to the ownership of the property, renders the complaint fatally defective and a verdict and judgment thereon will not cure it, there being no foundation for a valid judgment, p. 60.</p>

<p>Accident Insurance. — Death While Engaged in an Unlawful Act.— Answer. — In an action on an accident insurance policy exempting the company from liability for death of insured while engaged in any unlawful act, an answer attempting to set up as a defense a violation, by the insured, of a statute forbidding seining in streams where the water is above tidewater, which answer fails to allege that the seining was at a point in the stream where the water was above tidewater, is insufficient on demurrer, p. 66.</p> <p>Same. — Death During Violation of Law. — That death ensues during the violation of a statute does not absolve .an accident insurance company from liability under a provision of the policy exempting the company from liability if death results from an unlawful act, unless it appears that the act was one which increased the risk, and one between which and the death there was a causative connection. p. 66.</p> <p>Same. — Voluntary Exposure to Danger. — Answer.—In an action on an accident insurance policy exempting the company from liability for death of insured, resulting from a “voluntary exposure to unnecessary danger or perilous venture,” an answer alleging that deceased at the time of his death was seining in the swift current of a river in which there were sudden step-offs or holes, and that he could not swim, and that he stepped into one of such holes and was caught up by a swirl or eddy and was drowned, but which answer fails to allege that the deceased knew of the dangers and voluntarily exposed himself thereto, is not sufficient on demurrer, pp. 68, 69.</p>

<p>Telegraph Companies. — When Damages May he Recovered for Negligence, Causing Mental Anguish Alone. — A telegraph company may be held liable for special damages for failing to deliver a message, although the damages consist of mental anguish alone, where the language of the message gives direct notice to the company that the message concerns such event or events as that negligence on the part of the company is likely to be followed by mental distress. p. 74.</p> <p>Same. — Form of Telegram. — Mental Anguish. — The language of the telegram: “ Can not come to-day. Will come to-morrow,” did not advise the company that a failure to deliver it would be likely to cause mental distress, p. 74-</p> <p>Same. — Failure to Deliver Telegram. — When Damages too Remote to Permit a Recovery. — The physical discomforts of a woman occasioned by her walking and carrying heavy parcels a distance of four blocks as a result of the failure of a telegraph company to deliver the message : “Cannot come to-day. Will come to-morrow,” are damages too remote to permit of a recovery, p. 74-</p> <p>Same. —Action for Failure to Deliver Message. — Complaint. —Nominal Damages. — A. complaint alleging a failure of a telegraph company to deliver a message, for which pay was received in advance, to a person to whom it was addressed, is sufficient to withstand a demurrer, as it shows a right to nominal damages, p. 76.</p>

<p>Appeal. — Lost Pleading, How Brought into Record. — Certiorari.—A lost pleading must, by order or leave of court under the proper proceeding therefor, be first substituted in the lower court before the Appellate Court can by writ of certiorari bring such pleading into the record.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Judgments. — By Confession.— Judgment Note. — When Doctrine of Presumption of Regularity Does Not Apply. — The doctrine that judgments by confession are sustained by the presumption that they are regular, unless the contrary appears upon the record, is not applicable to a judgment which is not rendered by a judicial officer nor by a court, but merely entered by a ministerial officer without the intervention of any judicial tribunal, on a note containing a provision authorizing any attorney of any court of record to appear and confess judgment for the amount of the note.</p> <p>Same. — Foreign Judgment.- — Cóllateral Attack. — Jurisdiction.—In a suit on a domestic judgment the record as to jurisdictional facts cannot be disputed; but in suit on a foreign judgment the finding of jurisdictional facts may be collaterally questioned.</p>

<p>From the Miami Circuit Court.</p>

<p>Prom the Delaware Circuit Court.</p>

<p>From the Floyd Circuit Court.</p>

<p>Prom the Allen Superior Court.</p>

<p>Intoxicating Liquors. — License to Sell Not Transferable. — A license to sell intoxicating liquors at retail is not transferable, p. 113.</p> <p>CONTRACTS.— Consideration.— Mere inadequacy of consideration is not sufficient to defeat a contract, p. 115.</p> <p>Same. — Valid and Illegal Considerations in Same Contract. — Where valid and illegal considerations in the same contract are susceptible of division, that part of the consideration which is legal may be enforced. pp. 116-118.</p> <p>Appeal. — Harmless Error. — Error cannot be predicated upon the ruling on one paragraph of a pleading, where there are other paragraphs under which the same evidence would be admissible, pp. 118, 119.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Cass Circuit Court.</p>

<p>Contracts. — Between Employer and Employe. — Construction—A contract oí employment, whereby the defendants agreed to pay plaintiff §25.00 per month for a period of three months, “as it would take plaintiff that long to learn the business of defendants ; that after said time defendants could afford to pay plaintiff more,” in the absence of a new contract did not entitle plaintiff to wages in excess of §25.00 per month for the time he remained in defendants’ “ employment after the expiration of the three months.</p>

<p>From Knox Circuit Court.</p>

<p>From the Carroll Circuit Court.</p>

<p>From the Greene Circuit Court.</p>

<p>Criminal Law. — Affidavit.— Duplicity.— Motion to Quash. — When duplicity in an affidavit clearly exists, it is sufficient ground for sustaining a motion to quash, pp. 163, 161¡,.</p> <p>Same. — Affidavit.—Duplieity.—Before an aifidavit can be held bad for duplicity there must be a joinder of two or more separate and distinct offenses in one and the same count, p. I64..</p> <p>Same. — Intoxicating Liquors.— Affidavit. — Duplicity.— An affidavit charging a violation of section 4, Act of March 11,1895, prohibiting, during such days and hours when the sales of intoxicating liquors are unlawful, the maintaining of screens obstructing the view of a room in which such liquors are sold, is not bad for duplicity because it contains some, though not all, of the averments necessary to charge an offense under another and different statute, pp. I68-I64.</p> <p>Same.— Trial Not Concluded Until Judgment is Rendered. — In a criminal cause the trial is not concluded until judgment is rendered; and until that time the power of the court to extend the time of making out and presenting a bill of exceptions is not exhausted. p. 165.</p> <p>Appeal and Error. — Bill of Exceptions. — Request for Written Instructions. — When the trial judge says in the bill of exceptions that he was required by defendant to give the jury instructions in writing, and the bill shows that he did instruct in writing, and that after the giving of written instructions he gave the defendant an exception to the giving of an oral instruction, the record sufficiently shows that the request for written instructions was properly made. pp. 166, 167.</p> <p>Instructions. — Direction as to Form of Verdict not an Instruction.— Statute Construed. — Where the jury had already been instructed as to the punishment they might inflict if they found the defendant guilty, an instruction setting out the forms of verdict that might be returned, is not an instruction within the meaning of section 1892, Burns’ R. S. 1894, subd. 5, requiring the court to instruct the jury in writing upon request made at any time before the commencement of the argument, pp. 168-170.</p>

<p>Railroads. — Failure to Maintain Proper Cattle-Guards. — Killing of Stock. — Special Finding. — A special finding that plaintiffs horses wandered upon defendant railroad company’s right of way, by reason of the inherently defective cattle-guards maintained at a crossing, is conclusive as to defendant’s liability under section 5323, Bums’ R. S. 1894.</p>

<p>From the Sullivan Circuit Court.</p>

<p>Pabent and Child. — Wh.en a Liability for Services Rendered.— Where a parent and his or her adult children live together as members of the same family, there is no implied undertaking on the part of either to pay for services; but such undertaking may arise not only from an express contract, but it may be inferred from surrounding circumstances, p. 185.</p> <p>Same. — Decedent's Estates. — Claim of Mother for Caring for Her Adult Son. —An adult son, whose mental and physical condition disqualified him from rendering any service, lived with and was cared for by his mother with the express understanding that she was to be compensated therefor. The son died intestate, and the mother filed a claim against his estate for such services, which was allowed and paid by the administrator. Held, that in the absence of a showing that the amount paid for the services was excessive, and that such services could have been performed for less, that the claim was a proper charge against the estate, p. 186.</p> <p>Guardian and Ward. — Appointment of Guardian for Person Alleged to be of Unsound Mind. When Void. — When a Guardian Illegally Appointed may be Regarded as Trustee. — The appointment of a guardian for a person alleged to be of unsound mind, where the appointment is made without service of process upon, and in the absence of such person is null and void; but one so appointed as guardian acts under color of right and will be regarded as a trustee and will have an equitable right to be reimbursed for all reasonable expenses properly incurred in the execution of the trust, pp. 186-189.</p>

<p>Carriers. — Willful Injury of Trespasser by Conductor. — Liability of Company. — Where the conductor of a passenger train, while acting within the scope of his authority in ejécting a trespasser from the train, willfully injures such trespasser, the company is liable. p. 193.</p> <p>Same. — Passenger.—Offer of Fare. — Where a person goes to a railroad station to take passage to a certain other station, and, finding the ticket office closed, gets upon the train without a ticket, and without knowledge that the train does not stop at the station to which he desires to go, he is entitled, by payment of the fare to the next regular stopping station, to remain upon the train, pp. 191-195.</p> <p>Same.— Tender of Fare by Third Party. — Wrongful Ejectment of Passenger. — Plaintiff, in company with others, took passage upon a railroad train to go to a certain other station, not knowing at the time that the train did not stop at such station. Plaintiff offered the cash fare to the station to which he desired to go, which was refused by the conductor. fA companion of plaintiff then stated that he would pay plaintiff’s fare to the next regular stopping station, and took out his money, having more than 'enough money to pay the fare, but the conductor refused to receive the fare and compelled plaintiff to get off the train. 'Held, that the offer to pay the fare was sufficient to make the expulsion wrongful. }pp. 195,196.'</p> <p>Same. — Provocation.—Ejectment of Passenger. — A railroad company cannot justify the act of its conductor in the ejectment of a passenger, whose fare had been tendered, on the ground that in an altercation at the time between the passenger and the conductor, the passenger accused the conductor of violating a rule of the company on a former occasion, which violation he threatened to report to the company, pp. 196, 197.</p>

<p>Sales.— Executed and Executory Contracts.— Remedies for Breach Of. — In a bargain and sale the subject of the contract becomes the property of the buyer the moment the contract is concluded, whether the goods are delivered to the buyer, or remain in the possession of the seller. In an executory contract the goods remain the property of the seller -until the contract is executed. In case of sale the buyer can claim the specific goods, and they are at his risk. In case of executory contract the purchaser does not become the owner, and the goods are not at his risk. His remedy, if there be a breach, is confined to an action for damages, pp. 200, 201.</p> <p>Contracts.' — Whether Executed or Executory a Question of Fact.— Whether any particular contract is executed or executory is generally a. question of fact depending upon the intention of the parties to be gathered from the terms and stipulations of the agreement. p. 201.</p> <p>Sales. — Executory Contract. — A contract for the purchase of hogs, stipulating that the seller is to retain and feed the hogs corn till a certain date, at which time the buyer is to pay balance on purchase price, and the hogs be weighed at certain scales, and delivered, and in case the hogs should get sick the buyer to take them at once or release all claim to them, is an executory contract, p. 203.</p>

<p>From the Delaware Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>New Tbial. — Sufficiency of Affidavit in Support of Motion When Party Claims to Have Been Misled by Court as to Time of Trial.— A motion for a new trial on the ground that defendant was misled by the statement of the court that the cause would be continued indefinitely, is properly overruled, where the affidavits in support of the motion do not show that a motion for a continuance was made, and that the defendant had a good and meritorious defense to the action.</p>

<p>From the Daviess Circuit Court.</p>

<p>Waters. — Diversion of Water from Lake by Water Company. — The diversion of water from a lake by a water works company in supplying a city with water is an extraordinary use of the water which can only be exercised reasonably and with proper regard for the rights of others. - •</p> <p>Same.- — Diverting Water from Lake by Water Company.— Liability to Riparian Owner. — Where water works erected at the margin of a lake for the purpose of supplying a city with water results in a perceptible diminution of the water opposite the lands of another riparian owner to his injury during dry seasons, an action will lie against the water company for the damages accrued to the date of the commencement of the action.</p> <p>Limitation oe Action. — Special Damages for Diversion of Water.— In an action for an unreasonable diversion of the water of a lake at certain seasons, the statute of limitation runs from the occurrence of the special damages’for which complaint is made.</p> <p>Same. — Liability for Unreasonable Diversion of Water from Lake.— Measure of Damages.— In an action by a riparian owner against a water company for an unreasonable diversion of water from a lake, the measure of damages is the difference in the rental value of the property injured.</p>

<p>Judicial Notice. — As to Terms of Circuit Court. — The Appellate Court takes judicial notice of the terms of a circuit court.</p> <p>Officers. — CountylClerle.—Presumption.—Claim Against Decedent’s Estate. — In the absence of a showing to the contrary it must be presumed that a county clerk, being a public officer, did what the law required him to do, and that a claim filed against a decedent’s estate was properly transferred to the issue docket.</p> <p>Pleading. — Plea in Abatement and Plea in Bar. — Order of Pleading. — A plea in abatement must precede an answer in bar.</p> <p>Same. — Complaint.—Recovery Only Upon Theory Declared Upon.— Where an express contract is declared upon there can be no recovery on an implied contract, or upon the quantum meruit.</p>

<p>From the Delaware Circuit Court.</p>

<p>Contracts. — Complaint for Breach of, When Need Not Aver Performance by Plaintiff. — An action may be maintained for breach of contract, -without alleging performance on the part of plaintiff, where the plaintiff’s covenant or stipulation constitutes only a part of the consideration, and the defendant has received a partial benefit, and the plaintiff’s breach might be compensated in damages.</p>

<p>Judicial Notice. — As to Use of Railroad Right of Way. — The Appellate Court knows judicially that the right of way of railway companies is frequently used for other purposes than that of simply operating trains thereon, p. 26J/,.</p> <p>Highways. — Railroad Right of Way May he Assessed for Improvement Of. — The right of way of a railway company may be assessed for the improvement of highways, p. 265.</p> <p>Judgment. — Railroads.—Iden for Improvement of Highway. — Personal Judgment May he Rendered. — A personal judgment may be rendered against a railway company in an action to foreclose a lien for the improvement of a public highway, pp. 265, 28S.</p> <p>Municipal Corporations..— Improvement of Street. — Preliminary Order. — The preliminary order by resolution declaring a necessity for the improvement of a street, as provided by section 4389, Burns’ R. S. 1894, is not essential to the jurisdiction of the town board. pp. 265, 266.</p> <p>Same. — Public Improvements. — Irregularity of Proceedings. — Where the whole matter of making local improvements is conferred upon municipal corporations, and exclusive and original jurisdiction over the same is given them for that purpose the proceeding will not be void if there has been an attempt to comply with the statutory requirements, although such attempt does not amount to a strict compliance. An irregularity that will overthrow the proceedings must be such as will prevent the execution of the judgment. p. 267.</p> <p>Appellate Court. — Jurisdiction Of. — The Appellate Court has the right to construe and apply the constitution. It is only when the validity of the statute is involved that jurisdiction is denied, p. 268.</p> <p>Statutory Construction. — Improvement of Street Adjoining Railroad Right of Way. — Constitutional Law. — The contention of a railroad company that its right of way would not be benefited by the improvement of an adjoining highway, and that to charge the costs thereof upon the right of way would be taking property without due process of law, goes to the construction and application of the statute and not to its constitutionality, pp. 268, 282.</p> <p>Appellate Court. — Jurisdiction Of. — Validity of Ordinances. — An objection to an ordinance which goes only to matters of form or to irregularities in the proceedings of municipal authorities is a question that may properly be passed upon by the Appellate Court, pp. 269, 270.</p> <p>Municipal Corporations. — The Use of the Word “Street" in an Ordinance. — The use of the word “street” in an ordinance passed by a town board, providing for a certain improvement, sufficiently indicates that it was not an ordinary public highway which was being improved, but a highway within the town. pp. 270, 271.</p> <p>Appellate Court. — Jurisdiction Of. — Where a case appealed to the Appellate Court is found to be within the jurisdiction of the Supreme Court, by reason of the fact that a constitutional question is involved therein, the Appellate Court has no authority except to cause it to be duly certified to the Supreme Court, and if, instead of doing so, this court should proceed to determine the cause and should affirm or reverse the judgment of the court below, the judgment of this court would be void. p. 280.</p> <p>Same. — Power of to Review Cause After Judgment is Certified to Trial Court.— Jurisdiction. — Where a cause has been appealed to the Appellate Court and the judgment affirmed, and a petition for a rehearing filed and overruled, and the judgment of the Appellate Court certified to the trial court, the Appellate Court may again take the matter up, and look, not only to the opinion delivered at the original hearing, but also to the transcript of the record, and the briefs upon the original hearing, to ascertain whether the constitutionality of a statute was in question and such question duly presented on the original hearing, p. 281/</p>

<p>From the Fountain Circuit Court.</p>

<p>Pleading. — Time for Filing Answer. — Discretion of Court. — Where an action is brought, and defendants enter their appearance, and the cause is continued from term to term for more than two years, it is within the discretion of the court to permit defendants to file an answer, it not appearing that defendants objected to any of the numerous continuances, nor that they ever asked that a rule be entered requiring defendants to answer.</p> <p>Same. — Answer of Garnishee. — Sufficiency Of. — The answer of a garnishee, summoned as a judgment debtor of defendant, averring that the judgment had been compromised and settled, and entered satisfied in the proper court, prima facie shows that the garnishee defendant is not indebted to the attachment defendant on the judgment.</p> <p>Same. — Garnishment.—Refusal to Permit Answer After Default.— Where in a garnishment proceeding the principal defendant entered her appearance and asked that a default taken against her be set aside and that she be permitted to answer, plaintiffs having filed their written consent, the refusal of the court to permit the filing of the answer is not prejudicial to the plaintiffs.</p> <p>Appeal and Ekrok. — Bill of Exceptions. — Longhand Manuscript of Evidence. — The record must affirmatively show that the longhand manuscript of the evidence was filed in the clerk’s office before it was incorporated in the bill of exceptions.</p>

<p>From the Yigo Superior Court.</p>

<p>From the Miami Circuit Court.</p>

<p>Intoxicating Liquors. — Sale to Husband While Intoxicated. — Action on Bond. — Amendment of Complaint Pending Trial. — In an action on the bond of a retail liquor dealer, brought by a wife for damages caused by a sale of liquor to her husband’ while intoxicated, in violation of section 15 of the act of March 17, 1875 (Acts 1875, p. 55), it was not error to permit plaintiff after the close of the evidence in chief to amend her complaint by inserting the words “State of Indiana on the relation of,” immediately before her name in the title, and also in the first line of the complaint, p. 313.</p> <p>New Trial. — Joint Motion For.- — There is no errror in overruling a joint motion for a new trial which is not good as to all who join in it. p. 314.</p> <p>Practice. — Amendment of Pleading Pending Trial. — Continuance.— A pleading having been amended pending the trial of a cause it was not error to overrule a motion for a continuance, where the affidavits in support thereof did not show distinctly in what respect the parties asking the delay were prejudiced by the amendment-p. 315.</p> <p>Same.— Continuance. — Discretion of Court. — An application for a continuance is addressed to the sound discretion of the court, and where there has been no abuse of such discretion, the refusal of the continuance is not available error, p. 315.</p> <p>Intoxicating Liquors. — Sale to an Intoxicated Person. — Action on Bond. — Statutes Construed. — Where a liquor dealer has violated section 15 of the act of March 17, 1875, by selling liquor to an intoxicated person, the injured party has a cause of action on the liquor dealer’s bond, as provided by section 20 of the same act, and it is not necessary first to exhaust the principal, but the liability may be enforced in the first instance against the principal and sureties, pp. 316, 317.</p> <p>Same. — -Action on Bond. — Defective Complaint. — Bond as Evidence. —In an action on the bond of a retail liquor dealer where the original complaint was technically defective, but by leave of court was amended after the close of the plaintiff’s evidence, the admission of the bond in evidence was not erroneous, p. 318.</p>

<p>Appeal and Error. — Misjoinder of Causes. — A cause will not be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action, p. 319.</p> <p>Sale.- — Impliedr Warranty. — One who sells a chattel with knowledge that it is to: be used for a particular purpose, impliedly warrants the same to be reasonably fit for that purpose, p. 320.</p> <p>Fraud. — Sale.—Damages.—Where the vendor of a second-hand steam boiler falsely and knowingly represents to the purchasers thereof that the boiler had been used just enough to be thoroughly tested and was as good as new, when in fact it was old and worthless, and unsafe for any purpose, and such representations were relied upon by the purchasers, the vendor must answer for any damages sustained by the purchasers resulting from the inherent defects in the boiler, pp. 320, 321.</p> <p>Trial. — Conflict Between General Verdict and Answers to Interrogatories. — Where there is an apparent conflict between the general verdict and the answers to interrogatories returned therewith, the general verdict must control unless the answers are such as that both cannot be true under any supposable condition of the evidence within the issues, pp. 321, 322.</p> <p>Same. — Interrogatories to Jury.— Contradictory Answers.— If answers to interrogatories are contradictory then they nullify each other, and those which might alone control the general verdict cannot overthrow, it. p. 822.'</p> <p>Appeal and Error. — Bill of Exceptions. — The record must show that the longhand manuscript of the evidence was filed in the clerk’s office before it was incorporated in the bill of exceptions, p. 822.</p> <p>Same.' — Instructions, When not in Record. — Instructions are not properly in the record where there is nothing in the record to show that they were filed, and that they were signed by the judge, and where there is no order making them a part of the record, pp. 322. 828.</p>

<p>Municipal Coepoeations.— Public Improvements. — Assessments.— Assessments for street and other improvements are upheld upon the theory that each lot or tract of land is benefited in a special and peculiar manner in a sum equal to the amount estimated or assessed against it. p. 828.</p> <p>Same. — Street Improvements. — Joint Assessment Voidable. — Statute Construed. — Under section 4293, Burns’ R. S. 1894, an assessment for a street improvement which is made jointly against two or more separate and distinct tracts of land is voidable, p. 328.</p> <p>Same. — Street Improvements.— Assessment. — Sufficiency of Description. — An assessment for street improvements which describes the real estate sought to be assessed as a “tract of land, north side, between Front street and O. and M. R. R.,” is invalid because of the uncertainty and insufficiency of the description, p. 330.</p> <p>Same. — Street Improvements. — Invalid Assessment May be Amended. —An erroneous or invalid assessment for street improvements may, upon proper application to the common council or board of trustees, be amended, pp. 382, 333.</p>

<p>From tbe Howard Circuit Court.</p>

<p>Principal and Agent. — Deposit of Principal’s Money by Agent.— Liabilily of Principal for Overdraft of Agent. — Where a principal furnishes money to his agents to purchase wheat for him for cash, and the agents deposit the money as received, on their own account, together with other money, with a merchant, the merchant knowing of the original agency and knowing that the agents were acting for their principal, and such agents issue checks on such deposits in payment of wheat purchased by them for their principal and for other purposes, and finally withdraw the balance on deposit and pay same to their principal in settlement, the merchant with whom the deposits were made cannot recover from the principal a balance on a check issued by such agents against such deposit, for wheat purchased for the principal at a time when they had money on deposit, and which was presented by the payee thereof with the request that part payment only be made thereon, the balance of which such merchant was required to pay after the deposits had all been withdrawn, the principal having no knowledge of the unpaid check at the time the money was paid him.</p>

<p>From the Marion Superior Court.</p>

<p>From the Wells Circuit Court.</p>

<p>Appeal and Error. — Assignment of Error. — Statute Construed.— Under section 667, Bums’ R. S. 1894, requiring that the assignment of errors shall be specific, each specification of error must be complete in itself and must in itself alone be sufficient to require the court on appeal to review some action of the court below.</p> <p>Same. — Assignment of Error. — As to Separate Paragraphs of Complaint. — An assignment of error which seeks to question in the Appellate Court for the first time the sufficiency of a separate paragraph of the complaint presents no question for consideration, as nothing less than an assignment that the complaint as an entirety does not state facts sufficient will raise, for the first time on appeal,' any question concerning the sufficiency of any paragraph of complaint.</p> <p>Same. — Longhand Manuscript of Evidence.— The longhand manuscript of the evidence must be.filed in the clerk’s office before the filing of the bill of exceptions in which it is incorporated.</p> <p>Trial. — Misconduct of Counsel. — Overruling an objection to a statement by counsel in his argument to the jury, in an action against a railroad company for stock killed, in commenting on the testimony of á certain witness as follows: “He knows that this railroad company never pays for stock killed,” is not reversible error where the court admonished counsel to confine his remarks to the evidence, and to keep within the record.</p>

<p>Action. — Nature Of, How Determined. — The question whether an action in which a judgment was recovered was an action in tort or in contract, must be determined by the pleadings in the cause in which the judgment was rendered, p. 363.</p> <p>Same. — Action on Guardian’s Bond an Action in Contract. — Exemption. — An action on a guardian’s bond, under section 2691, Bums’ R. S. 1894, is an action in contract, within section 715, Burns’ R. S. 1894, allowing a householder’s exemption on execution or other final process for any debt growing out of, or founded upon a contract. pp. 363, 364.</p> <p>Exemptions. — Statutes Liberally Construed. — --Statutes providing for exemptions are liberally construed, p. 366.</p> <p>Same. — Residence of Execution Debtor. — Schedule Filed by Wife in Absence of Husband. — Statute Construed. — Where an execution debtor, to avoid criminal process, leaves the house where he has resided with his family, and his whereabouts are unknown, such debtor does not thereby lose his residence so as to deprive his wife from filing schedule and reserving for him a householder’s exemption, as provided in section 715, Burns’ R. S. 1894. pp. 364r-367.</p> <p>Residence. — Not Lost Till Another is Acquired. — A man can have but one place of residence ; and to lose his residence in one place he must acquire a residence in another, p. 367.</p>

<p>From the Switzerland Circuit Court.</p>

<p>From the Madison Superior Court.</p>

<p>Appeal and Error. — Exception.—Where no exception was taken to the action of the court in sustaining a demurrer to a paragraph of answer no question is presented to this court on such ruling, p. 387.</p> <p>Same. — Sufficiency of Notice to Correct Record in Court Below. — No question can be raised in this court as to the sufficiency of notice of a motion to correct the record in the court below or the legality of any of the proceedings therein where no objection was made or exceptions taken to such proceedings, pp. 387, 388.</p> <p>Same. — Certiorari.—A corrected record of the trial court is properly brought to the Appellate Court by writ of certiorari, p. 388.</p>

<p>Banks and Banking. — Death of Depositor. — Fraudulent Concealment of Deposit. — A banker with whom a deposit is made is not guilty of such fraud as will make him liable in damages to the sole heir of depositor by inquiring of her after the death of depositor concerning the condition in which the business affairs of deceased were left, saying nothing about the deposit, and with knowledge of the heir’s ignorance of such deposit making a demand upon her for a claim against such depositor’s estate and accepting her check on another bank in payment thereof, the bank-having paid the amount of the deposit upon demand and prior to the commencement of the’action for damages.</p>

<p>From the Washington Circuit Court.</p>

<p>From the Lake Circuit Court.</p>

<p>Contract. — Consideration.—A promise to do what the promisor is under a previous valid, legal obligation'to do, is insufficient as a consideration for an agreement of which it constitutes a part. p. Jfil.</p> <p>Same. —Executory. —May be Abandoned by Agreement of all the Parties. —A contract which is wholly executory may be abandoned by the agreement of all the parties, the renunciation of each party of his rights under the contract being a sufficient consideration for his release from obligation by the other parties, pp. 1$1,</p> <p>Landlord and Tenant. — Oral Modification of Lease. — Consideration. —An oral modification of a lease of certain real estate for coal mining purposes, providing for the payment of a smaller royalty, the lessor agreeing to the change in order to induce the lessee to remain in possession and operate the mine, is supported by a sufficient consideration where it is shown that the lease, as modified, was acted upon and carried out to the acceptance of all concerned for many years, pp.</p>

<p>Bailments. — Chain Deposited With Warehouseman. — Where a warehouseman receives grain on deposit from the owner, to be mingled with other grain in a common receptacle from which sales are made, the warehouseman keeping at all times sufficient grain of like kind and quality for the depositor, and ready for delivery to him upon demand, the contract is one of bailment, p. 403.</p> <p>Conversion. — Plaintiff Must be the Owner or Entitled to Possession.— A person cannot maintain an action for conversion where he neither owns nor is entitled to possession of the property alleged to be converted. p. 403.</p> <p>Same. — Sufficiency of Complaint in Action Against Warehouseman.■— In an action against a warehouseman for the conversion of certain com deposited with him, the complaint should allege that prior to the commencement of the action defendant did not have a sufficient quantity of corn of the kind and quality deposited with him with which to meet a demand by plaintiff that a demand was made ; that storage charges and expenses were tendered, or that storage charges had not attached, pp. 404, 405.</p> <p>Same.- — Complaint in Action Against Warehouseman. — An allegation in a complaint in an action against a warehouseman for conversion of a quantity of corn deposited with him, that on and before a specified date defendant had no com in his warehouse or under his control, of the quality of plaintiff’s corn deposited prior to a specified earlier date, but had sold such com, is not equivalent to an allegation that on a day certain the defendant did not have in his warehouse sufficient corn of the kind and quality deposited by plaintiff, p. 405.</p>

<p>From the Marion Superior Court.</p>

<p>Prom the Howard Circuit Court.</p>

<p>Criminal Law. — Agent of Foreign Insurance Company Doing Business Without Authority.— Sufficiency of Affidavit. — An affidavit charging defendant with unlawfully doing business as agent of a ‘ ‘certain foreign insurance company of a state other than the State of Indiana,” is insufficient to charge an offense, under section 4915, Bums’ R. S. 1894, making it unlawful for any agent of any insuranee company incorporated in any other state than the State of Indiana, to transact business in this State without first producing a certificate of authority from the State Auditor.</p>

<p>From the Washington Circuit Court.</p>

<p>Contract. — Breach Of. — When Complaint Need Not Allege Performance on the Part of Plaintiff. — In an action for breach of a contract containing reciprocal covenants or mutual conditions to be performed, and one of the parties puts it out of, or beyond the power of the other to perform the covenants or conditions to be performed by him, the latter is thereby relieved from such performance, and if the complaint avers such facts it will not be demurrable for failure to allege performance on the part of' plaintiff, p. 456.</p> <p>Complaint.- — Sufficiency of in an.Action to Recover Deposits Made in a Building and Loan Association. — Demand.—An averment in a complaint in an action to recover from a building and loan association deposits made by plaintiff, which avers that defendant neglected, failed and refused to return "the sums of money paid, are equivalent to a positive allegation that a demand had been made, and a return thereof refused, p. 458.</p> <p>Same. — Need Not Aver an Offer to Return Certificate in an Action to Recover Funds Deposited in a Building and Loan Association. — In an action to recover deposits made in a building and loan association under a certificate of stock,, which, by the terms thereof , had been forfeited by nonpayment of installments, need not show an offer on plaintiff’s part to return the certificate, where such certificate was brought into court as the basis of the action, pp. 459, 460.</p> <p>Appeal and Error. — Longhand Manuscript of Evidence. — How Made Part of Record. — It must affirmatively appear from the record that the longhand manuscript of the evidence was filed in the clerk’s office before being embodied in the'bill of exceptions, p. 460.</p>

<p>From the Tippecanoe Superior Court.</p>

<p>From tbe Cass Circuit Court.</p>

<p>Contract. — Guaranty.—Notice.—Acceptance.—An agreement in the words: “Gentlemen — R. E. Emerson, of Pueblo, Colorado, desires to make purchases from your firm. I will engage to secure sales you make to the above nan^ed, in the sum of $300.00,” is not a strict guaranty, but an original undertaking, and in an action based thereon it is unnecessary to aver or prove notice of acceptance thereof.</p>

<p>From the Wabash Circuit Court.</p>

<p>Railroads. — General Officers.— Power of to Employ Medical Attendance for Injured Worlcmen. — -The president, vice president, general manager, secretary and treasurer are general officers of a railroad company and have power to employ medical attendance for workmen injured in the performance of duty in the company’s service. p. 498.</p> <p>Same. — General Officers. — Employment of Surgeon, Not Ultra Vires.— The employment of a surgeon by the general officers of a railroad corporation to render his services to employes in case of injury in the course of their employment, without compensation other than the value of the services actually rendered, is not ultra vires, pp. 495-497.</p> <p>Corporations. — Contract.—Ultra Vires. — Where a private corporation has entered iüto a contract not immoral in itself and not forbidden by any statute, and it has been, in good faith, fully performed by the other party, the corporation will not be heard on a plea of ultra vires, p. 497.</p> <p>Appeal and Error. — Bill of Exceptions. — Longhand Manuscript of Evidence. — The record must affirmatively show that the longhand manuscript of the evidence was filed with the clerk before it was incorporated in the bill of exceptions, p. 499.</p>

<p>From the Gibson Circuit Court.</p>

<p>Master and Servant. — Injury to Brakeman on Construction Train.— ■ Assumption of Risk. — A brakeman on a construction train engaged in the construction of a road and making same safe for travel, knowing the road was incompleted and that no trains other than the construction train had passed over it, by the acceptance of such employment assumed all risks incident to the service, and cannot recover for an injury received while in such service by reason of a defect in such road.</p>

<p>Prom the Daviess Circuit Court.</p>

<p>From the Hancock Circuit Court.</p>

<p>From the Delaware Circuit Court.</p>

<p>Dbainage. — Action to Enforce Assessment Lien. — Gomplaint.—In an action, under act of April 6, 1885, to enforce a drainage assessment, a complaint which shows that the petition for the construction of the drain was referred to the drainage commissioners, that they made a report and finding that defendant owned certain lands • that would be benefited thereby in certain specified sums, and that the report so made was approved and confirmed by the judgment of the court, sufficiently sets out the assessment to mate the complaint good against a demurrer, pp. 588-540.</p> <p>Same. — Assessment LAen. — Gomplaint.— In an action to enforce a drainage assessment lien, it is not necessary that it be averred in the comnlaint that a notice of the assessment of benefits was recorded in the recorder’s office, p. 54</p> <p>Same. — Assessment LAen. — Complaint.—The complaint in an action to enforce a drainage assessment lien need not aver that the drain was made according to the plans and specifications, p. 548.</p> <p>Same. — Assessment IAen. — Gomplaint.—It is not necessary that the complaint, in an action to enforce a drainage assessment lien, aver that all the amount of benefits assessed against defendant’s land is needed to pay the expenses and costs of construction, p. 544.</p>

<p>From the Elkhart Circuit Court.</p>

<p>Judgment. — Default Set Aside. — Defendant’s Excusable Neglect.— Statute Construed. — Under section 399, Burns’ R. S. 1894, making it obligatory upon the court to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect, a judgment by default will be set aside where it is shown that although the summons was left at defendant’s usual place of residence, he in fact had no notice or knowledge thereof, pp. 555, 556.</p> <p>Exemption. — Disposition of Exempt Property Not Fraud. — A debtor’s disposition of property exempt to him as a householder cannot be fraudulent as to his creditors, p. 557.</p> <p>Same. — Exemption Statutes Liberally Construed. — The constitutional provisions relating to exemptions, and the statutes founded thereon are based upon considerations of public policy and humanity, and are not alone for the benefit of the debtor, but for his family as well, and should be liberally construed, p. 558.</p>

<p>From the Posey Circuit Court.</p>

<p>From the Lake Circuit Court.</p>

<p>From the Vanderburgh Superior Court.</p>

<p>From the Allen Superior Court.</p>

<p>From the Delaware Circuit Court.</p>

<p>Towns. —Defective Streets. — Diability for Damages by Reason Thereof. —An incorporated town has exclusive power over its streets, and is under duty to use ordinary care to keep them in a reasonably safe condition for travelers thereon, exercising ordinary care, and in default thereof is liable in damages for injuries thereby sustained. p. 604.</p> <p>Appeal and Error. — Longhand Manuscript of Evidence. — How Made Part of Record. — The longhand manuscript of the evidence must be filed in the clerk’s - office before it is incorporated in the bill of exceptions, p. 60S.</p>

<p>Pleading. — Must Proceed Upon a Single Theory. — A pleading cannot proceed upon more than one theory, and if, in form, it does, the court may construe it as proceeding upon the theory most apparent and-most clearly authorized by the facts stated, and require the case to be tried upon that theory, p. 60S.</p> <p>Same. — Complaint. —Negligence.—Willfulness.—A complaint alleging that defendant “purposely, wrongfully and negligently,” set fire to certain straw and stubble which he had purposely and negligently permitted to accumulate upon his lands, at a time of drought and while a stiff wind was blowing toward plaintiff’s land, so that it was impossible to control the fire which spread to plaintiff’s premises, proceeds upon the theory of negligence, pp.' 608, 609.</p> <p>Same,' — Construction Of. — The language used in a pleading must be given a reasonable and fair construction, and in determining the rights of the parties thereunder the court will look to the nature of the acts alleged, p. 609.</p> <p>Appeal. — Weight of Evidence. — The Appellate Court will not interfere with the verdict of the jury where there was some evidence to support it. p. 618.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Jasper Circuit Court.</p>

<p>From the Madison Superior Court.</p>

<p>Prom the Marion Superior Court.</p>

<p>Evidence. —Parol Testimony not Admissible to Vary Written Contract. — Parol testimony is not admissible to vary the terms of a written contract which is complete in itself and free from ambiguity.</p>

<p>Pleading. — Complaint on Accident Policy. — In a complaint on a policy of accident insurance an allegation that “the said plaintiff has fully complied with his contract with said defendant to he performed by said plaintiff,” sufficiently alleges that plaintiff had performed all the conditions on his part. p. 645.</p> <p>Appeal and Error. — Harmless Error. — Error, if any, in sustaining a demurrer to paragraphs of answer is harmless where all the facts set up therein are provable under the general denial which is also pleaded, p. 646.</p> <p>Special Verdict. — Failure to Find Material Fact. — Accident Insurance. — A special verdict in an action on a policy of accident insurance which did not find the period for which the policy was issued, or that the policy was in force at the time of the accident, is not sufficient to sustain a judgment, p. 646.</p>

<p>Appeal. — Dismissal for Failure to File Brief. — An appeal that has been dismissed for failure of appellant to file brief within, sixty days as required by rule XIX of Appellate Court, will not be reinstated on the ground that appellant’s attorney charged with the duty of preparing such brief was sick and unable to prepare the same, it not being shown why an extension of the time for filing brief was not applied for.</p>

<p>From the Grant Circuit Court.</p>

<p>' From the Marshall Circuit Court.</p>

<p>Railroads. — Injury of Passenger Alighting from Train. — Contributory Negligence. — A passenger on a railway train, who goes upon the platform of the coach while the train is going very slowly preparatory to stopping at her destination, and When the train has stopped attempts to alight, but in doing so is thrown upon the station platform by a sudden starting of the train without warning, is not, as a matter of law, guilty of contributory negligence, pp. 660, 661.</p> <p>Evidence. — Variance Betiveen Pleading and Proof.— In an action by a passenger for personal injuries, proof that such passenger, while standing on the lowest step of a car waiting for the train to stop, was thrown from the car by a sudden starting of the train, is not a material variance from a complaint alleging that the train had stopped but started with a sudden jerk before she had the time to alight, and threw her upon the platform. Henley and Wiley, JJ. Dissenting, pp. 668-672.</p>

<p>From the Lawrence Circuit Court.</p>

<p>From the Washington Circuit Court.</p>

<p>Landlord and Tenant.' — Gas Lease. — Indefiniteness of Description.— Complaint. — In an action to recover upon a covenant of a gas lease for the payment of a specified sum annually for failure to drill a well within the time specified, where the complaint describes the land as eighty acres of a certain tract, “reserving sixty acres around the buildings on said premises.” the boundaries to be designated by the “party of the first part,” the indefiniteness of the description does not defeat the action where it is further alleged that the lessor was ready at all times to locate the boundaries, pp. 684-687.</p> <p>Pleading. — Joint Cause of Action. — Complaint.—A complaint which fails to state a joint cause of action in favor of all plaintiffs who join therein, is bad on demurrer for sufficient facts, pp. 687, 688.</p> <p>Same.— Complaint.— Theory. — A complaint must proceed upon a a definite theory, and upon that theory it must state facts sufficient to constitute a carfse of action in favor of all parties who join as plaintiffs, p. 688.</p> <p>Same. — Action on Lease. — Complaint.—Where two parties join as plaintiffs in an action against the lessor to recover upon the covenant of a lease which, by its terms, runs only to one of the parties, a complaint which fails to aver what interest the other had in the subject-matter of the suit, except her signature to the lease, is demurrable for failure to state a joint cause of action in favor of both plaintiffs, pp. 688, 689.</p>

<p>From the Monroe Circuit Court.</p>

<p>From the Benton Circuit Court.</p>

<p>From the Floyd Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>From the Tipton Circuit Court.</p>

<p>From the Madison Superior Court.</p>

<p>Prom the Howard Circuit Court.</p>