Volume 24 — Indiana Appellate Court Reports

<p>Prom the Delaware Circuit Court. Transferred to the Supreme Court.</p>

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

<p>Municipal Corporations.— Sewer Assessments. — Foreclosure.—Attorney’s Fees. — The right to attorney’s fees under §4297 Burns 1894, arises only by virtue of the statute, and cannot arise until a suit to foreclose the lien has been brought, pp. 10, 11.</p> <p>Pleading. — Tender.—Municipal Corporations. — An answer in an action to foreclose a sewer assessment alleging that before the commencement of the suit plaintiff demanded a sum in excess of the amount legally due, and refused to accept a certain sum, which was in excess of the amount due, does not state as a fact that an offer to pay any sum was made and refused, nor does it plead facts showing that a refusal would have followed an offer to pay. pp. 11, IS.</p>

<p>Appeal and Error. — Waiver.—Specifications of error which are not discussed are deemed waived, p. IS.</p> <p>Pleading. — Railroads.—Injury at Crossing. — A complaint in an action against a railroad company for personal injuries, alleging that plaintiff was struck by defendant’s train when the same was being run at a rate of speed in violation of the'city ordinance, and by reason of the premises plaintiff was damaged, sufficiently shows that it was by reason of such negligence that he was damaged, pp. 18-15.</p> <p>Railboads. — Injury at Crossing. — Contributory Negligence. — Plaintiff cannot recover for an injury received at a railroad and highway crossing where it appeared that he voluntarily went upon the track after he saw the approaching train in time to stop in a place of safety, although the train was being run at a rate of speed in violation of a city ordinance, pp. 15-21.</p>

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

<p>Negligence. — Personal Injuries. — Complaint.—An allegation in a complaint for personal injuries sustained by falling into a coal hole in a sidewalk that defendant was the owner of the adjacent property, and that the iron cover upon the coal hole had been “ so carelessly constructed and fitted upon said coal hole by defendant” that unless the Cover was securely fastened it was liable to slip when stepped upon, was equivalent to an averment that the coal hole was placed there by defendant, pp. 26, 27.</p> <p>Same. — Complaint.— Presumptions. — Where it is alleged in a complaint for personal injuries sustained by falling into a coal hole in a sidewalk that defendant was the owner of the property adjacent the coal hole, it will be presumed that he was in control and use of it. p. 28.</p> <p>Complaint. — Defective Averment. — Special Verdict. — A defective averment in a complaint for personal injuries sustained by falling into a coal hole in a sidewalk as to the ownership and control thereof is cured by a special finding of such ownership and control. p. 28.</p> <p>Negligence. — Special Verdict. — A finding in an action for personal injuries sustained by falling into a coal vault under a sidewalk that defendant had permitted the cover to the coal hole to remain insecurely fastened for several days prior to the injury, and that it was liable to slip when stepped upon, is a sufficient finding of negligence to authorize a recovery by plaintiff, pp. 28-33.</p> <p>Special Verdict. — Sufficiency.—When there is but one reasonable inference which can be drawn from the facts specially found, the court must draw that inference, p. S3.</p> <p>Evidence. — Sufficiency.—Appeal and Error. — Where there is some evidence to support the verdict, the Appellate Court will not disturb the verdict on the insufficiency of the evidence, pp. S3, 34.</p>

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

<p>From the Kosciusko Circuit.Oourt.</p>

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

<p>Decedents’ Estates.— Claims. — Former Adjudication. — Decedent agreed in writing to convey certain real estate to plaintiff in consideration that she would remain with him as housekeeper, and if he did not execute a conveyance during his lifetime, then the obligation to be binding upon his heirs, executors and administrators. Decedent died, leaving a will disposing of the real estate and not making any provision for conveying such real estate. The heirs brought suit to quiet title to the real estate and plaintiff filed hex disclaimer of any interest therein, and judgment was rendered confirming title thereto in the heirs. Held, that such proceeding did not amount to an adjudication of plaintiff’s claim for breach of the contract and estop her from afterward asserting her claim against the estate.</p>

<p>Municipal Corporations. — Vacation Proceedings. — Cities.—Section 4420 Burns 1894 provides that the owner of an addition to a town which does not improve may have the addition vacated by applying to the board of county commissioners. Section 4416 Burns 1894 prescribes all necessary steps to be taken before the board of commissioners in vacation proceedings. By the act of 1867 (Acts 1867, p. 74), the common councils of cities were given the same power with reference to vacation proceedings in cities as that given by statute to county commissioners of vacation proceedings in towns. Held, that a city council had the power to vacate an unimproved addition on the petition of the owner, and that the act of March 7, 1875 (Acts 1875, p. 17), providing for the appointment of city commissioners, did not amend or alter the law in relation to vacation proceedings, pp. 69-73.</p> <p>Taxation. — Unplatted Lands. — Municipal Corporations. — By the provision of §3261 R. S. 1881 (repealed in 1891) tracts of land of not less than five acres lying within a city or town which were not platted and not used for other than agricultural purposes, were not subject to taxation at a greater rate than the tax levy in the civil township wherein such property was situated, and under said statute the owner of such real estate could recover from the city in which the land was situated taxes collected by such city in excess of the township rate. pp. 73, 74.</p> <p>Municipal Corporations. — Taxation.—Refunding Taxes Erroneously Assessed. — Section 3157 R. S. 1881 not only confers upon the common councils of cities the right, but makes it their duty, to refund taxes erroneously assessed and collected, pp. 74-77.</p>

<p>Railroads. — Fences.—Construction of Fence by Abutting Landowner. —Recovery.—Complaint.—Notice.—An allegation in a complaint by a landowner against a railroad company to recover for the erection of a fence along the railroad right of way, under §§5333, 5334 Burns 1894, that the part of the road extending through said county had been completed and in operation for more than twenty years, that plaintiffs real estate abuts upon the right of way in said county, and “that said land abutting said right of way, at and for more than one year prior to the building of the fence and the giving of the notices, as herein averred, has been, and is improved and inclosed land,” is sufficient to show that the road abutting plaintiff’s land had been completed twelve months before the notice to fence was served, pp. 79, 80.</p> <p>Same. — Fences.—Construction of Fence by Abutting Landowner.— Recovery. — Complaint.—A complaint by an abutting landowner to recover the cost of erecting a fence along the railroad right of way under §§5333, 5334 Burns 1894, requiring railroad companies to fence their rights of way “except at the crossings of public roads and highways, and within such portions of cities and incorporated towns and villages as are or may hereafter be laid out and platted into lots and blocks,” etc., must negative such exception, pp. 80,8If</p> <p>Same. — Fences.—Construction of Fence by Abutting Landowner.— Recovery. — Complaint.—A complaint to recover the cost of erecting a fence along a railroad right of way by an abutting landowner, under §§5333, 5334 Burns 1894, must allege that plaintiff gave defendant a written notice, as required by the statute, to erect the fence, p. 81.</p>

<p>Building and Loan Associations. — Insolvent Associations. — Assignees. — Under the act of 1897 (Acts 1897, p. 284) the assignee of an insolvent foreign building and loan association may maintain any action necessary to wind up the affairs of the association, although the association had not complied with the laws of the State respecting its admission to do business therein, pp. 83, 84-</p> <p>Same . — Insolvent Associations. — Borrowers.—Set-Off.—A member of an insolvent building and loan association cannot set off the amount he had paid as dues against the amount he owes as a borrower. pp. 84-86.</p> <p>Same. — Insolvent Associations. — Borrowers.—Set-Off.—In a suit by an insolvent building and loan association against a borrower, the borrower may set off against the debt an amount due him from the association for legal services, p. 87.</p>

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

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

<p>Contracts. — Assumpsit. —Implied Contracts. — Quantum Meruit. — One rendering services for another may, when the benefit of such service is enjoyed, recover the reasonable value of such service from the person who receives the benefit, although the services were rendered without the knowledge of the beneficiary; but a necessity for the rendition of'the services without entering into a contract must exist, or there must exist such circumstances as imply an obligation to pay therefor, pp. 97-105.</p> <p>Attorney and Client. — Services.—Implied Contracts. — Assumpsit.— Quantum Meruit. — Complaint.—Averments in a complaint by an attorney for services rendered a railroad company, without contract or employment, in recovering taxes due the company, that the services rendered were necessary, and that the benefit to defendant would have been lost but for such services, are conclusions of the pleader, and were insufficient to show that a necessity existed for the performance of the services, pp. 105-107.</p> <p>Same. — Services.—Implied Contract.' — Assumpsit.—Quantum Meruit. Complaint. — An averment in a complaint by an attorney for services rendered a railroad company in recovering taxes paid by the company, that defendant, after the claim was allowed, and plaintiff had notified defendant of its allowance, ratified the acts of plaintiff and drew the amount from the county treasury, does not amount to an allegation that defendant promised to pay plaintiff for such services, but that defendant adopted the acts of plaintiff, p. 107.</p>

<p>Live Insurance. — Suicide.—Evidence.—In an action on a life insurance policy exempting defendant from liability for death by suicide, the evidence shoWed that the insured and his wife lived together in a house jointly built by them on a lot owned by the wife; that the wife brought suit for divorce, charging him with drunkenness and cruel treatment, and procured a restraining order prohibiting him from returning to his home; that the insured disappeared, and a few days later his hat was found on the banks of a creek at an unfrequented place, and tracks made by some person going into the stream were found, but no tracks were found showing that such person had come out; that the dead body of the insured was found with no marks upon it, and no evidence of violence, within a few feet of the place where the tracks led into the stream. Held, that the evidence excluded with reasonable certainty any hypothesis of death by any other cause than suicide, and was insufficient to support a judgment for plaintiff.</p>

<p>Municipal Corpobations. — Street Improvements. — Indianapolis Charter. — Under the provisions of the Indianapolis charter, §§3845, 3846 Burns 1894, the city may improve one-half of a street, or a roadway in the center of a street, and assess the costs to the lands and lots on the two sides of the street the length of the improvement. pp. 115, 116.</p> <p>Same. — Street Improvements. — Railroads.—Indianapolis Charter.— A railroad right of way bordering upon a street may be assessed for the improvement of the street under the Indianapolis charter providing that “ lands or lots ” bordering on the street improved shall be assessed for the cost of the improvement, pp. 116,117.</p> <p>Same. — Street Improvements. — Railroads.—Indianapolis Charter.— A railroad right of way which does not abut or border upon a street improved, but which lies wholly within the street, cannot be assessed with the cost of the improvement under the provisions of the Indianapolis charter, pp. 117-121.</p>

<p>Conversion. — Complaint.—A complaint for conversion containing no allegation as to the value of the property converted, or that plaintiff sustained any damages by reason of the conversion, is insufficient on demurrer, p. IBB.</p> <p>Pleading. — Exhibits.—When Not Foundation of Action. — Conversion. — A complaint for the conversion of crops from leased premises cannot be aided by copy of the lease filed as an exhibit, since the lease is not the foundation of the action, p. IBB.</p>

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

<p>Landlord and Tenant. — Oil and Gas Lease. — Tenancy from Year to year. — A gas and oil lease provided that it should commence at the date of the signing and terminate when natural gas ceased to be used generally for manufacturing purposes in the county, or whenever the lessee failed to pay the rental price agreed upon. The lessee was to pay §100 per year for each gas well drilled which produced gas in paying quantities, and, until the drilling of a gas well, to pay an annual rental of fifty cents an acre, and if wells were not drilled in five years from date, the rental should be raised to one dollar an acre. Held, that the instrument did not fix the term .of its duration, and that under §7089 Burns 1894 it was a tenancy from year to year, which the tenant could terminate at the end of any year by abandoning the premises.</p>

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

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

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

<p>Erom the Bandolph Circuit Court.</p>

<p>Erom the Warren Circuit Court.</p>

<p>Pleading. — Contracts.—Plaintiffs brought suit on an administrator’s bond, alleging that defendant, as an attorney, entered into a contract with decedent to prosecute for him a certain action for personal injuries, and receive an amount equal to one-half of the amount recovered, as attorney’s fees, and that he recovered a judgment and failed to account for the half belonging to plaintiffs. Held, that the complaint was founded upon the bond, and not upon the contract, and it was not necessary in order to admit proof of the contract in writing to allege in the pleading whether it was written or not. pp. 159-167.</p> <p>Contracts. — Abandonment.— New Contract. — The abandonment of an old contract constitutes a sufficient consideration for the execution of a new one. p. 167.</p> <p>Appeal and Error. —Joint Assignment.-— Waiver. — Where the assignment in a motion for a new trial is joint as to a number of instructions, and no argument is made on appeal as to some of them, the assignment must fail. p. 168.</p>

<p>Beneficial Associations. — Sick Benefits. — Failure to Pay Dues.— Forfeitures. — A certificate of membership in a beneficial association provided that if the monthly dues were not paid by the third day of each month the member should be suspended, and should not be entitled to benefits. In answer to questions in the application the insured stated the amount of his weekly wages, and agreed that the amount of his weekly indemnity should not exceed the amount of his average weekly wages. The insured became sick while in good standing, and the association became indebted to him for sick benefits accrued in excess of his monthly dues. Held, that the failure of insured to p^y his dues after he became sick did not forfeit his right to benefits, since it was the duty of the association to apply the accrued benefits to the payment of the dues of the member.</p>

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

<p>Pleading. — Executors and Administrators. — Capacity to Sue. — A complaint which shows on its face that plaintiff was the administrator of the estate of decedent, and that the action was brought for the benefit of the widow of decedent, who was his sole heir, is sufficient to show the capacity in which plaintiff sued without averring in express terms his appointment and qualification as such administrator, pp. 195, 196.</p> <p>Same. — Demurrer.—Waiver.—Where a defendant demurs to a complaint for want of facts, he thereby waives any possible objection that plaintiff did not have legal capacity to sue. p. 196.</p> <p>Negligence. —Railroads. —Frightening Horses. — Complaint. — A complaint against a railroad company for the death of plaintiff’s decedent, charging that the decedent’s inj'ury and death resulted, from the careless, negligent and unnecessary sounding of the whistle on defendant’s locomotive, which frightened decedent’s horses so that they ran away, is sufficient as against a demurrer. pp. 196-203.</p> <p>Motions. — Striking Out Hearsay Evidence. — Available error cannot be predicated on the action of the court in sustaining a motion to strike out hearsay evidence, although no objections were made to the evidence when given, and no grounds were given for striking it out. pp. 204, 805.</p> <p>Evidence. — Expert Testimony. — Opinion Evidence.— In an action against a railroad company for damages caused by the alleged negligence of defendant in unnecessarily sounding its locomotive whistle, the opinion of an engineer that blowing a whistle at such time and place was unnecessary was incompetent, pp. 205-208.</p> <p>Same. — Res Qestae. — In an action against a railroad company for damages resulting from the alleged negligence of defendant in unnecessarily sounding its locomotive whistle, the testimony of a woman, who was a square and a half away from the scene of the accident, that she heard the noise and remarked to her husband that “it was brutish the way they whistled,” was incompetent as part of the res gestae, pp. 208-211.</p>

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

<p>Appeal and Error. — Transfer of Cause from Circuit to Superior Court. — Transcript.—Certificate.—Where after the formation of issues a cause was transferred from the circuit to the superior court of the county, the transcript on appeal from the latter court must be authenticated by the certificate of the clerk of the circuit court or the appeal will be dismissed.</p>

<p>Negligence. — Railroads.—Fires.—Where a railroad company negligently permitted fire to escape from its right of way and destroy plaintiff’s corn stored in cars upon the right of way of another railroad company, the negligence of the latter company in failing to remove the cars upon the approach of the fire will not release the former from liability to the owner of the corn. pp. 224, 225.</p> <p>Evidence. — Negligence.—Railroads.—Fires.—In an action against a railroad company for damages to property caused by fire alleged to have escaped from defendant’s right of way, the opinion of a witness as to the cause of the fire is not admissible, p. 225.</p> <p>Same. — Negligence.—Railroads.—Fires.—In an action against a railroad company for damages for property destroyed by fire escaping from a depot building, which fire was alleged to have escaped from defendant’s right of way, evidence that several fires were set out by an engine of another company on the day of the fire was inadmissible, where there was no evidence that the fire at the depot was caused by the engine in question, pp. 225, 226.</p> <p>Same. — Weight. — Negligence. — Railroads. — Fires. — In an action against a railroad company for damages to plaintiff’s property caused by fire alleged to have escaped from defendant’s right of way, the finding of the court as to the cause and origin of the fire will not be disturbed on appeal where there was evidence fairly tending to support the finding, p. 226.</p> <p>Negligence. — Proximate Cause. — Intervening Agency. — Railroads.— Fires. — The action of defendant in negligently setting out fire upon its right of way, which escaped to a building from which it was communicated to plaintiff’s property, was the proximate cause of plaintiff’s loss. pp. 227-229.</p>

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

<p>Carriers. — Passengers. — Negligence. — Contributory Negligence.— Plaintiff was a passenger on defendant’s train, standing inside the car looking through the window of the rear door, his hand resting against the casing of the closet door, when the conductor approached, opened and closed the closet door quickly, and plaintiff’s finger slipped into the crack when the door opened and was crushed by the door when it was closed. Plaintiff testified that the conductor said immediately after the accident that he saw him there and ought to have spoken to him, and that he did not see the conductor or know of his presence until his finger was crushed. Held, that the questions as to defendant’s negligence and plaintiff’s contributory negligence should have been submitted to the jury. Robinson, J., dissenting.</p>

<p>Erom the Henry Circuit Court.</p>

<p>Replevin. — Complaint.—Exhibit.—Where a complaint in an action to replevin an ironing machine alleged that plaintiff bought a laundry of defendant, including a certain ironer pointed out to him at the time of the purchase, but another machine was substituted in the bill of sale, which was not discovered by plaintiff until the machinery was delivered, it is not necessary that the bill of sale be reformed or made part of the complaint as an exhibit, pp. 848, 849.</p> <p>Evidence. — Weight.—New Trial. — An assignment in a motion for a new trial which, requires the court to weigh the evidence will not be considered on appeal, pp. 249, 250.</p> <p>Replevin. — Joint Owners. — Parties.—A joint owner of a chattel cannot maintain an action in his own name to replevin it. p. 250.</p>

<p>Bills and Notes. — Assignment.—Answer.—An answer in an action on a promissory note that plaintiff was not the owner of the note, but that the same was transferred to plaintiff for the purpose of bringing an action thereon, and to avoid the defense which defendant had against same, in the hands of the owners, constitutes a good defense, p. 262.</p> <p>Same. — Assignment.—Consideration.—Answer.—An answer in an action on a promissory note that the note was executed without consideration for the sole purpose of .favoring the payee, who agreed to take and hold the same, and not to negotiate or indorse same without the maker’s consent; that at the time of the execution of the note the payee was largely indebted to the maker; that the note was assigned to plaintiff without the knowledge or consent of the maker, and without consideration, and that plaintiff knew all of the circumstances attending the execution of i the note, states a good defense to the action on the note. pp. 252, 258.</p> <p>Practice. — Special Finding. — Amendment. — A trial judge may amend his special findings and conclusions of law at any time before final judgment, and during the period within which a hill of exceptions containing the evidence may be filed, pp. 25Jf., 255.</p>

<p>Contracts —Approval.—Principal and Agent.— Plaintiff brought suit for damages for an alleged breach of a written contract, and for work and labor performed thereunder. It appeared that defendant’s agent entered into an agreement with plaintiff whereby plaintiff was to purchase of defendant certain machinery, and was to have the exclusive right to sell the same in a certain vicinity, the agreement to have no validity until it was approved by written notice of acceptance from defendant. Defendant had no notice of the agreement until plaintiff ordered a machine, almost a year after the agreement was entered into, and upon receiving the information it repudiated the contract and refused to ship the machine. Held, that no liability attached under the contract.</p>

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

<p>Contracts. — Conditional Sale. — Complaint.—Sufficiency—A complaint based upon a written contract exhibited, by the terms of which it was agreed between the parties that defendant was authorized to sell plaintiff’s machinery in a certain territory, settlement to be made at a specified date, in farmers’ notes or in cash, the title and ownership of the goods to remain in plaintiff until sold and settled for by defendant, alleged that certain machinery was delivered to defendant and that he refused to settle for same in notes as agreed, and demanded judgment for the price of the machinery alleged to be due and unpaid. Held, that, the complaint showed a cause of action.</p>

<p>Municipal Corporations. — Lease.—Execution by Mayor. — A lease of rooms for a period of ten years by the mayor of a city for city offices, under a resolution adopted by the council authorizing him to rent the rooms, is binding on the city, although the lease was not reported to nor accepted by the council, where the city went into possession of the rooms under the terms of the lease, occupied them for more than a year, and paid the rent quarterly, as provided in the lease, pp. 871-875.</p> <p>Landlord and Tenant, — Lease.—Oral Modification. — Where a written lease of rooms for a period of ten years was essentially modified by an oral agreement, the lease thereby became a parol contract, and the tenancy, in the absence of an agreement as to duration, became a tenancy from year to year. pp. 875-878.</p>

<p>Complaint. — Objections Made for First Time on Appeal. — Insurance.— Where a complaint in an action on an insurance policy for the value of certain wearing apparel showed that there had been an adjustment of the loss on household furniture, an objection that it contained no averment as to the value of property adjusted is unavailable when made for the first time on appeal, p. 280.</p> <p>Insurance. — Policy.—Oonstruction.—Where a fire insurance policy of §850 contained a clause designating the insurance as follows, “§800 on household and kitchen furniture, ******** all while contained in the above described building, and §... on family wearing apparel, while contained,” etc., the insured was entitled to recover indemnity for loss to wearing apparel, p. 281.</p> <p>Same. — Partial Settlement.' — -Complaint.—Where a complaint on an insurance policy for loss of wearing apparel showed that there had been an adjustment on household furniture, it was not necessary to allege that plaintiff had refunded or offered to refund the benefits received by the settlement, pp. 281, 282.</p> <p>Same. — Proof of Loss. — Waiver.—The denial of liability for loss under an insurance policy by the company’s adjuster amounts to a waiver of proof of loss. p. 282.</p> <p>Same. — Compromise and Settlement. — In an action on an insurance policy for a fire loss it appeared that an adjustment was made and plaintiff had receipted for the amount paid him as in full settlement and compromise of the claims for loss and damages by fire under the policy in suit. Held, that a judgment for plaintiff was contrary to law, in the absence of fraud or mistake in the settlement. pp. 282, 283.</p>

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

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

<p>Bastakds. — Justices of the Peace. — Certification to Circuit Court.— Review. — Where a bastardy case was tried on its merits in the circuit court and the defendant was adjudged to be the father of the child and required to provide for its maintenance, the result will not be disturbed on appeal because of an irregularity or defect in bringing the case to the circuit court not affecting the real merits of the case or the jurisdiction of the court of the subject-matter of the action, pp. 289-294-</p> <p>Same. — Justices of the Peace. — Failure to Render Judgment. — A judgment against defendant in a bastardy proceeding will not be reversed on appeal on the ground that the court had no jurisdiction of the subject-matter of the action because of the failure of the justice to render judgment at the preliminary hearing, p. 294.</p>

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

<p>Contributory Negligence. — Injury at Railroad Crossing. — Complaint. — A complaint against a railroad company for damages sustained at a crossing alleged that from a point about one-half mile east of the crossing defendant’s road curved slightly to the south, and that there were a number of houses, trees and other obstructions to the view eastward along said track, extending to within twenty-one feet of the south rail of the track, obstructing the view in the direction from which the train was coming; that plaintiff looked and listened for the approach of trains as he neared the crossing from a long distance south of the same, until his horses’ feet were on the track, and it was impossible to avoid the collision; that defendant failed to give the statutory signals upon approaching the crossing, and that plaintiff was without fault. Held, that contributory negligence was sufficiently negatived by the pleading. pp. 302-305.</p> <p>Same. — Question of Fact. — Special Finding. — Railroads.—Injury at Crossing. — In an action against a railroad company for injuries sustained at a crossing, it was shown by the evidence that there was a slight curve in the road in the direction from which the train approached ; that plaintiff approached the crossing in a road wagon, and when within fifteen or twenty steps from the crossing, stopped his horses and looked and listened, but could not hear the train approaching, nor see it, as the view of the track was obstructed by buildings; that he drove on in a walk until the horses were on the track, when he saw the train «approaching and attempted to start the team more rapidly and cross the track, but was prevented, by a person riding with him, who took the lines and jerked the horses back, and the horses were struck and killed and plaintiff was injured. Held, that it could not be determined, as a matter of law, that the evidence was not sufficient to sustain a finding that plaintiff exercised ordinary care. pp. 305-313.</p>

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

<p>Pleading. — Demurrer.—Defeat of Parties. — The question of defect of parties cannot be raised by demurrer for want of facts, p. 821.</p> <p>Insurance. —Forfeiture.—Waiver.—Beneficial Associations. — Forfeiture of an insurance policy in a mutual fraternal association on account of the non-payment of dues may be waived by the officers charged with the duty of collecting the dues of members in demanding and receiving the dues after the death of insured with knowledge of Ms death, pp. 821-324.</p> <p>Pleading. — Reply.—Departure.—Insurance —A reply to an answer setting up a forfeiture on account of non-payment of dues in an action on a policy in a fraternal association, that defendant, by its local officer, demanded and received the overdue assessments after the death of insured, is not a departure from the cause of action stated in the complaint, where it was alleged in the complaint that such local officer was authorized to collect and transmit all dues owing to defendant, pp. 825,326.</p> <p>Insurance. — Beneficial Associations. — Agent.—A local officer of a beneficial association who is required by the by-laws of the association to collect dues from the members is the agent of the association in doing what its by-laws require him to do as between the members and the association, p. 328.</p> <p>Evidence. — Insurance.— Beneficial Associations. — Delinquency of Member. — Evidence that insured had access to a safe with permission to use money therefrom was admissible in an action on an insurance policy where the question of the delinquency of insured in the payment of his dues was in issue, p. 828.</p> <p>New Trial. — Amount of Recovery. — The failure of plaintiff in an action on an insurance policy to introduce in evidence an assignment upon which her right to recover as to one-half of the certificate was based is not available on appeal, where the amount of recovery is not assigned as a cause for a new trial, pp. 828-880.</p>

<p>Contracts. — School-Teacher.—Employment.—Evidence.—A judgment for plaintiff for the breach of an alleged contract employing him to teach school upon the same terms and conditions as those upon which he taught the previous year will be reversed on appeal, where the only evidence as to the compensation he was to receive was the testimony of plaintiff, “Two dollars is what he paid, I think. That is what he paid me the previous year.”</p>

<p>Master and Servant. — Personal Injuries. — Complaint.—Contract of' Employment. — Negligence.—A complaint for damages for personal injuries alleging that plaintiff was employed in defendant’s planing-mill to operate the machinery, and to work upon the articles therein manufactured, and while so employed was ordered by defendant to remove a shaft and adjust the pulleys thereon, which was out of the line of his employment and more hazardous than the work he was engaged to perform, and, in performing said hazardous, work, was injured without his fault or negligence, states a cause of action, pp. 336-337.</p> <p>Same. — Personal Injuries. — Contract of Employment. — In an action for damages for personal injuries sustained by plaintiff while engaged in work at the command of defendant, without the line of his employment, answers to interrogatories that he was employed to operate machinery in defendant’s mill and adjust and keep in order the machines used by him, and that he was injured while repairing and adjusting such machinery, show that he was injured while in the line of duty, and are in irreconcilable conflict with a general verdict for plaintiff, pp. 337-34-1.</p> <p>Same. — Personal Injuries. — Negligence.—Plaintiff cannot recover for personal injuries received while in the employment of defendant on the theory that the work was without the line of his employment, where the special findings of fact show that he was in a position to know of the dangers, if any, incident to the work he was performing, that the injury was purely accidental, and was not caused by any acts of negligence on the part of defendant, and that plaintiff could have performed the work without injury to himself if he had used care. pp. SjO, 3j.l.</p>

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

<p>Verdict. — Special Finding. — Conflict.—Attorney’s Fees. — Donation of Services. — In an action by an attorney for services rendered a church the defendant answered that prior and subsequent to the rendition of the services plaintiff volunteered and offered his services gratuitously. The jury found in answer to an interrogatory that there was no evidence that plaintiff at or prior to the time of his employment agreed to perform the services gratuitously, and in answer to another interrogatory found that plaintiff donated his fees to defendant after the rendition of the services. Held, that the finding was not in irreconcilable conflict with the general verdict for defendant, pp. 3J¡3-3Jlf!.</p> <p>Instructions. — Oral Statement. — A statement by the court directing the jury to return to their room and answer certain interrogatories which were unanswered, if there was any evidence relating to the facts sought to be elicited by the questions, and if there was no evidence, they might return as their answers that there was no evidence, was not an instruction in such sense as to constitute nevers- ■ ible error, where request had been made for all instructions to be given in writing, pp. 3Jfl-849.</p> <p>Appeal and Error. — Instructions.—Joint Assignment. — Failure to Discuss. — Where the exception to a series of instructions is joint, and two of the instructions are not discussed, the assignment will not prevail, pp. SJfi, 350.</p>

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

<p>Township Trustees. — Loans to Tonmship.— Necessity. — A claim against a township for money loaned cannot be enforced unless the existence of the necessity for borrowing the money is shown.</p>

<p>Erom the Bush Circuit Court.</p>

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

<p>Complaint. — Theory— Only one theory can be contained in a single paragraph of complaint, p.378.</p> <p>Same. — Theory.—The theory of a complaint must be determined from its leading allegations, p. 378.</p> <p>Damages. — Personal Injury. — Nervous Prostration. — Fright. —Proximate Cause. — An action cannot be maintained for damages for nervous prostration and permanent impairment of health resulting from fright, caused by defendant’s negligence, when such fright does not arise from’ impending or apparent danger to the person demanding damages, hilt from the possible danger or peril of another. pp. 378-390.</p>

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

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

<p>Appeal and Error. — Decedents’ Estates. — Claims. —Under the provisions of §§2454, 2455 Horner 1897. an appeal by a claimant from a j udgment disallowing his claim against a decedent’s estate cannot be taken, except by leave of the court to which the appeal is prayed, without filing an appeal bond within ten days, and a transcript in thirty days, as provided by said statute.</p>

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

<p>Affidavit. — Authority of Officer to Administer Oath. — Jurat.— "Where it appears from the body of an affidavit that the person who administered the oath was a justice of the peace of the county, it is not necessary for it again to appear in the jurat to the affidavit. pp. 418-420.</p> <p>Evidence. — Weight.—A cause cannot he reversed on the weight of the evidence, pp. JftO, Jfil.</p>

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

<p>Appeal and Error. — Waiver.—Assignments of error -which are not discussed are waived, pp. 432, 433.</p> <p>New Trial. — Newly Discovered Evidence. — A new trial should not be granted on account of newly discovered evidence, unless the evidence is of such a character that it would probably change the result, pp. 433, 434.</p> <p>Evidence. — Impeachment.—A question asked defendant’s witness on cross-examination, for the purpose of impeachment, as to a certain statement made by him, was proper, although it was not shown that defendant was present at the time the statement was made. pp. 434, 435.</p>

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

<p>Complaint. — Work and Labor. — Street Improvements. — Plans and Specifications. — Exhibit.—In an action for a balance due for work and labor performed in grading and graveling streets at a certain price per cubic yard, as specified in a written contract, it was not necessary to make the plans and specifications a part of the complaint. pp. 455, 456.</p> <p>Verdict. — Special Finding. — Conflict.—The general verdict must stand as against answers to special interrogatories, unless there be' such an irreconcilable conflict that by no reasonable hypothesis they can both stand, p. 456.</p> <p>Evidence. — Review.—Where there is evidence to sustain the verdict, the Appellate Court will not review a disputed question of fact. pp. 456-458.</p> <p>Same. — Objection.—Waiver.—The failure to object at the proper time to the admission of evidence waives the error, if any was committed, and, in such case, a motion to strike out comes too late. p. 458.</p> <p>Appeal and Error. — Briefs.—Argument.—Waiver.—The bare statement of a question in a brief is not such a presentation thereof as will avoid a waiver, p. 459.</p> <p>Motions. — Appeal and Error. — A motion to strike out all evidence tending to prove certain promises and agreements is not sufficiently specific, where the witnesses who so testified were not designated, nor the attention of the court called to the particular questions and answers sought to be stricken out. p. 459.</p>

<p>Appeal and Eeeob. — Overruling Demurrer to Complaint. — Special Finding. — Overruling a demurrer to a complaint is not available error, where there is a special finding of facts and a correct statement of the law upon the facts found, p. 460.</p> <p>Special Finding. — Contracts.—A special finding that on a certain date plaintiff and defendant “ entered into, executed and mutually delivered one to the other the following contract in writing, to wit,” followed with a copy of the contract, must be considered as a finding that^a contract was made, and as stating the terms of the contract. p. 462.</p> <p>Conteacts. — Construction.—A contract entered into, by the terms of which, plaintiff was to do certain specified work on defendant’s railroad, which it was then building between certain points, presupposes that the right of way was furnished by defendant, pp. 462,463.</p> <p>Same . — Breach.—Measure of Damages. — Work and Labor. — Where a party employed to do work is prevented by the employer from performing it, the clear, certain and usual profit arising from the performance of such work is a proper subject of damages, p. 463.</p> <p>í’obmeb Adjudication. — Work and Labor. — Damages.—Contracts.— A suit to recover for work and labor actually performed in the construction of a railroad will not amount to an adjudication of an action for damages for breach of the contract on the part of defendant in failing to procure the right of way upon which plaintiff could complete the construction of the road. pp. 463, 464.</p>

<p>Replevin. — Fences.—Adjoining Landowners. — Where defendant, an adjoining landowner, tore down the portion of a partition fence built and maintained by plaintiff and his grantors, and placed the rails upon his own land, without any intention to rebuild it, plaintiff may maintain an action to replevin the rails, pp. 465-4-68.</p> <p>Appeal and Error. — Instructions.—Must be Signed by the Judge.— The provision of §533 Horner 1897, that “ all instructions given by the court must be signed by the judge, and filed, together with those asked for by the pai’ties, as a part of the record,” is mandatory, and instructions not so signed cannot be considered on appeal, although they were filed and embraced in a bill of exceptions, pp. 468, 469.</p>

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

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

<p>Erom the Madisou Circuit Court.</p>

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

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

<p>Appeal and Error. — Motions.—Record.—No question is presented on appeal as to the action of the court in overruling a motion to strike out part of the complaint, where the motion and the court’s ruling are not made part of the record by order of court or by bill of exceptions. p. 502.</p> <p>Municipal Corporations. — Action to Require Persons to Work Streets. — A city may, by virtue of the provisions of §3623 Bums 1894, require persons to work on the streets without adopting an ordinance to that effect, p. 503.</p> <p>Justices op the Peace. — Mayors.—Jurisdiction.—Municipal Corporations. — Action to Compel Persons to Work on Streets. — In an action to require persons to work on the streets of a city, under §3623 Burns 1894, without an ordinance to that effect, the mayor has jurisdiction while acting as a justice of the peace, pp. 503, 504■</p> <p>Pleading. — Amendment.—The filing of an amended pleading takes the original pleading out of the record and waives any error in the ruling upon the original pleading, p. 504.</p> <p>Appeal and Error. — New Trial. — Judgment.—Default.—Where a party fails to plead over, and judgment is rendered against him as upon default, the damages must be proved; but in such case no question is presented on appeal on an assignment in a motion for a new trial that the decision of the court is not sustained by sufficient evidence, and is contrary to law, unless such facts are made to appear by a proper bill of exceptions, pp. 504, 505.</p>

<p>Pleading. —Amendment. —Appeal and Error. —Record. —An amended complaint supersedes the original complaint and puts it out of the record, pp. 507, 508.</p> <p>Practice. — Judgment on Answers to Interrogatories. — Appeal and Error. — "Where a judgment rendered in favor of a party is too small, his proper remedy is by a motion for a new trial for such cause, not by motion for judgment on answer to interrogatories for a larger amount, pp. 508, 509.</p>

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

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

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

<p>Contracts. — Construction by Parties. — If the meaning of a contract is clear, its effect will not be controlled by an erroneous construction given it by the parties themselves, p. 526.</p> <p>Sales. — Contract.—Novation.—The assignment of a contract of sale by one of the parties thereto, which assignment was consented to and the assignees accepted as parties to the contract by the other ’ party, amounts to a valid novation, p. 526.</p> <p>Same. — Contract. — Breach.—Damages. —Where a purchaser contracted to take a certain amount of ice each month at a stipulated price, and bound the seller not to sell to any other person, the seller cannot recover damages for the buyer’s refusal to take the specified, amount, when he neither tendered it nor attempted to dispose of it at the market price, pp. 522-527.</p> <p>Appeal and Error. — Failure to Assess Nominal'Damages. — A failure to assess nominal damages does not affect the substantial rights of the parties, and is not reversible error, p. 528.</p>

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

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

<p>Erom the Eloyd Circuit Court.</p>

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

<p>Municipal Corporations. — Street Improvements. — Final Estimate.— Description of Property. — A description of the property assessed in a final estimate of a street improvement against a railroad company as 65.65 feet of its right of way is insufficient, under the provisions of §4293 Burns 1894, requiring that the final estimate shall contain a full description of each lot or parcel of ground bordering on the street so improved, pp. 54-7-552.</p> <p>Same. — Street Improvements. —Final Estimate. — Description of Property. — Pleading.—A defective description of the real estate in a street improvement assessment is not cured by a correct description in a complaint to foreclose the lien. pp. 5Jj,9, 550.</p>

<p>Erom the Howard Superior Court.</p>

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

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

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

<p>Trial. — Demurrer to Evidence. — By the demurrer to the evidence, all the facts which the evidence tends to prove, or of which there is any evidence, however slight, and all the inferences which can he logically drawn from the evidence are admitted, p. 571.</p> <p>Trespass —Conversion of Rents. — Demurrer to Evidence. — In an action in trespass to recover damages for the conversion of rents, a demurrer to the evidence is properly sustained, where the evidence shows that defendant had been in possession of the real estate continuously during the period of plaintiff’s ownership, and prior thereto, under an agreement with plaintiff’s grantor, and that such occupation was with the knowledge, and without any entry or demand of possession on the part of plaintiff, pp. 570, 571.</p>

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

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

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

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

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

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

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

<p>Instructions. — Must Be Construed Together. — Pleading.—A cause will not be reversed because of the failure of an instruction to state all of the material allegations of a counterclaim, where all of the instructions taken together stated the pleadings correctly.</p>

<p>Appeal and Error. — Assignment of Error. — An assignment that the court erred in entering judgment against appellant presents no question for review, p. 623.</p> <p>Municipal Corporations. — Sewers.—Collection of Assessments. — An action to enforce an assessment lien for the construction of a sewer cannot be maintained, where the assessment roll was never recorded, and there was no evidence that the assessment roll had been approved, p. 62J/..</p>

<p>Contracts. — Gas and Oil Lease. — Landlord and Tenant. — An action for the recovery of rents on an oil and gas lease cannot be maintained where the lease provided that in case no well should be completed within ninety days from the date of the instrument the grant should become null and void, unless the party of the second part should pay the party of the first part one dollar per acre for each year the completion of the well should be delayed thereafter, where more than a year had elapsed and the party of the second part had failed to avail himself of the right to drill a well, and no rent had been paid.</p>

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

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

<p>Libel. — Writing Not Libelous Per Se. — The following writing. “I guess you think people dont know how you get anything you pretend to pay for it you hand them a piece of money and they pretend to change the money but it all handed back to you you dont pay for thing you get I see that this afternoon I be shamed,” is not libelous per se. pp. 639, 6Jfi.</p> <p>Same. — Criminal Libel. — Affidavit and Information. — Sufficiency.— Where it is sought to charge criminal libel by affidavit and information, and the words forming the foundation of the charge are not libelous per se, there should be alleged in the inducement such extrinsic facts as would show that the words were used in a libelous sense, p. 6J/B.</p>

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

<p>Chattel Mortgages. — Growing Wheat. — Delivery to Mortgagee.— Payment. — Application.—B. executed to N. a chattel mortgage on his growing wheat to secure the payment of a certain note. Before the wheat matured B. sold to N. the wheat so mortgaged, and N. advanced to B. some money on such sale. Later this contract for the sale of the wheat was mutually abandoned. Thereafter, when the wheat had been harvested, C., not having any knowledge of the advancements made by N. to B., purchased 104 bushels of the wheat, and N. purchased the remainder the proceeds of which were more than enough to satisfy his claim under the mortgage. At the time of the delivery to N., no application was made of the proceeds by either party. Held, that N. was not thereafter entitled to apply the proceeds of the wheat on the advances and then sue C. for the wheat delivered to him.'</p>

<p>Erom the Bentou Circuit Court.</p>

<p>Building and Loan Associations. — Mortgages.—Clause Limiting Number of Payments. — Astipulation in a building and loan association mortgage limiting the number of payments required to be made by the borrower is a valid and binding obligation, and when the borrower has paid the stipulated number of payments the debt is extinguished, notwithstanding the fact that the total sum of dues paid by the borrower, together with the dividends thereon, did not equal the amount of the loan.</p>

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

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

<p>Appeal and Error. — Bill of Exceptions. — Evidence.—Diagrams.— Where, in the trial of an action for damages for personal injuries sustained by plaintiff while operating a plow polishing machine, a model polishing machine and model plow were exhibited to the jury and referred to by a number of witnesses in illustrating their testimony, and no diagrams or explanation of such models are contained in the bill of exceptions, questions depending upon the evidence cannot be reviewed on appeal, pp. 674, 675.</p> <p>Same. — Evidence.—When Not in Record. — Instructions.—Where the evidence is not in the record, it will be presumed on appeal that instructions requested and refused were refused because they were not applicable to the case made by the evidence, p. 675.</p> <p>Same. — Evidence.—When Not in Record. — Instructions.—Where the evidence is not in the record, instructions given by the court cannot be regarded as erroneous if they can be considered correct upon any state of facts admissible under the issues, p. 675.</p>

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

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

<p>Erom the Henry Circuit Court.</p>

<p>Breach oe Marriage Promise. — Complaint.—-An averment in a complaint in an action for the breach of a marriage contract that “defendant, in consideration of the agreement and promise of the plaintiff to marry him on request, promised and agreed to marry this plaintiff,” does not amount to an allegation that the man promised to marry the woman on request, but that he promised to marry her in consideration of her promise to marry him on request, and it was not necessary to aver in the complaint a request to marry on the part of plaintiff- pp. 695-697.</p> <p>Breach or Marriage Promise. — Release.—Where defendant wrote plaintiff a letter to the effect that he loved her with a true heart, but that he had proved false to her, and was going to be married in a few days to another woman, a letter written by plaintiff, in answer, that she would forgive him, but that it was hard to do so after waiting for six long years; that she did not wish him any bad luck, but if in after years bad luck should befall him, just to think back, did not amount to a release of defendant from his marriage contract, pp. 697-699.</p>

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

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

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

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

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

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

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

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