Volume 36 — Indiana Appellate Court Reports

<p>Erom Gibson Circuit Court; O. M. WeTborn, Judge.</p> <p>Action by John E. Joyce and others against the United States Express Company. Erom a judgment for plaintiffs, defendant appeals.</p>

<p>1. Decedents’ Estates. — Bills and Notes. — Execution.—Delivery. —Burden of Proof. — The burden of establishing the execution, which includes the delivery, of a note owing from a decedent’s estate, rests upon the plaintiff by virtue of §2479 Burns 1901, Acts 1883, p. 151, §11. p. 10.</p> <p>2. Trial. — Special Findings. — Bills and Notes. — Execution.—Delivery. — Inferences.—Question for Jury. — Where the special findings do not in terms show the “delivery” of a note, but do show such facts as that a delivery is an unavoidable inference therefrom, the court will draw such inference as a matter of law, and if different inferences could reasonably be drawn from the facts, it is a question for the jury. p. 10.</p> <p>3. Principal and Agent.- — Bills and Notes. — Delivery to Agent. —Validity.—A promissory note, delivered to the agent, is enforceable by the principal, though such principal never had physical possession thereof and did not in fact know of its existence, p. 11.</p> <p>4. Principal and Agent. — Personal Interest of Agent Antagonistic. — An agent can not deal with himself so as to bind his principal without such principal’s ratification after full knowledge. p. 11.</p> <p>5. Same. — Personal Interest of Agent Antagonistic. — Profits.— Where an agent secures profits to himself in the affairs of his agency, such profits, whether the result of the performance or the violation of his duty, inure to his principal, p. 11.</p> <p>6. Same. — Contracts Between an Agent, as Such, and Himself.— Validity. — A note, executed by an agent personally to his principal in reference to an account between themselves, is voidable at the option of the principal, p. 11.</p> <p>7. Bills and Notes. — Execution.-—Delivery.—Where an agent was entrusted with money to invest, and he invested same at his own discretion, rendering an annual statement of the condition of such funds to his principal, and he signed a note payable to such principal and placed therewith collateral security and locked same in a box with such principal’s papers, and such note contained credits, made with such agent’s signature, of payments made by such agent, and six or eight weeks before such agent’s death, he had such papers brought to his bed and he examined same and had them securely locked in the box with other papers of his principal, a legal delivery to the principal is shown. Hatton v. Jones, 78 Ind. 466, distinguished. Wiley, J., dissenting, p. 12.</p>

<p>1. Appeal and Eeeoe. — Trial.—Motion to Make Specific. — The overruling of a motion to make the complaint more specific is not reversible on appeal unless injury results therefrom to the complaining party, p. 28.</p> <p>2. Pleading. — Complaint.—Railroads.—Highways.—Egress and Ingress. — Damages.—A complaint, which alleged in one paragraph that the defendant railroad company appropriated plaintiff’s right of way which was appurtenant to her land and had been used by her for over thirty years; and which alleged in another paragraph that such defendant had appropriated a public highway contiguous to plaintiff’s land and thus destroyed her means of egress and ingress, states a cause of action, p. 28.</p> <p>3. Teial. — Interrogatories.—Rights of Way. — Appropriation.— Answers to interrogatories that plaintiff and her grantor have owned a tract of land since 1866; that a fence was then built along the adjoining canal fourteen to fifteen feet from the bank thereof; that defendant railroad company built its track ten feet from the northwest corner of said land, and the center of the track was four and a half to five feet from the bank of the canal and that defendant purchased the bank and towpath of such canal in 1901 are not irreconcilable with a general verdict that plaintiff had a right of way along her lands partly or wholly upon such towpath. p. 30.</p> <p>4. Railroads. — Eminent Domain. — Rights of Way. — Damages.— Municipal Corporations-. — The appropriation by a railroad company of plaintiff’s right of way to her lands is a special injury to plaintiff for which damages are recoverable, and it is no defense thereto that a .municipal corporation has given the right so to use such way. p. 31.</p> <p>5. Appeal and Error. — Evidence.—Harmless Error. — Where defendant railroad company has appropriated plaintiff’s right of way to her land, it is harmless error for her to introduce proof, over defendant’s objections, that a crossing was built over defendant’s track, p. 32.</p> <p>6. Evidence.' — Municipal Council. — Parol Orders. — Parol evidence is admissible to show that a city council ordered the street commissioner to make a railroad crossing, where no record was made of such order, p. 32.</p> <p>7. Damages. — Railroads.—Eminent Domain. — Rights of Way.— Damages for a permanent injury should be allowed where defendant railroad company appropriated plaintiff’s right of way to her land for its right of way. p. 32.</p>

<p>1. Statutes.' — Death by Wrongful Act. — Action.—The act of 1899 (Acts 1899, p. 405, §285 Burns 1901) creates a right of action for the death of a person by wrongful act and vests the right to maintain same in the personal representatives of the decedent, the assets thereof inuring to the surviving husband or wife, the decedent’s children and the next of kin, respectively, according to the law for the distribution of personal property, p. 36.</p> <p>2. Same. — Death by Wrongful Act. — Action.—Beneficiary.—The widow or widower, children or next of kin have no right of action under the act of 1899 (Acts 1899, p. 405, §285 Burns 1901) for the death of decedent by wrongful act, and they can not compromise nor control such action, p. 37.</p> <p>3. Aliens. — Personal Property. — Inheritance.—At the common law aliens could inherit personal property and dispose thereof the same as citizens, p. 37.</p> <p>4. Statutes. — Construction.—Death by Wrongful Act. — Aliens.— The act of 1899 (Acts 1899, p. 405, §285 Burns 1901) does not in terms change the common-law rule relative to the distribution of personal estate to aliens, and a restriction of the benefits of such act to citizens alone creates an exception which the act does not contain, p. 38.</p> <p>5. Statutes. — Death by Wrongful Act. — The purpose of the act of 1899 (Acts 1899, p. 405, §285 Burns 1901) is to create a right of action against any one wrongfully causing the death of another, the policy being to make life more secure, and the alienage of the beneficiaries should not defeat the purpose thereof, p. 39.</p> <p>6. Same. — Death by Wrongful Act. — Action.—Basis of. — The basis for the right of action given by the act of 1899 (Acts 1899, p. 405, §285 Burns 1901), creating a right of action for death by wrongful act, is the wrongful act of defendant resulting in such death, p. 39.</p> <p>7. Same. — Aliens.—International Policy. — That interpretation of the act of 1899 (Acts 1899, p. 405, §285 Burns 1901), creating a right of action for death by wrongful act, will be given which accords with the international policy of Great Britain as shown by the construction placed upon Lord Campbell’s act (9 & 10 Viet., c. 93), after which such act of 1899 was modeled, p. 39.</p> <p>8. Same. — Death by Wrongful Act. — Aliens.—Action for Death. —A right of action is created by the act of 1899 (Acts 1899, p. 405, §285 Burns 1901) in favor of an administrator for the death of his decedent by wrongful act of defendant, though the beneficiaries of such action are alien nonresidents, enlightened international policy requiring same. p. 41.</p> <p>9. Trial. — Jury.—Voir Dire. — False Answers. — Motion to Discharge Jury. — When Questions Thereon Presentable.- — Where a juror on his voir dire denied falsely that he was a party to an action for damages, and defendant’s attorneys ascertained or should have ascertained such denial to be false in time to present a motion to discharge the jury before the return of the verdict, they can not after the return of the verdict object, such holding giving the defendant two chances for a favorable verdict. p. 42.</p> <p>10. Evidence. — Railroads.—“Usual” or “Customary” Way of Placing Cars on Track. — Testimony, that the way certain cars were placed on the tracks was the “customary” way and that there was nothing “unusual” in the way of handling the car at the time of the injury and that it is “often necessary to leave cars” not in the clear, is properly excluded, p. 43.</p> <p>11. Trial. — Instructions. — Assuming Facts. — Interrogatories.—■ Harmless -Error. — An instruction, assuming that decedent was in the employ of defendant, is harmless where the answers to the interrogatories to the jury showed that he was. p. 44.</p> <p>12. Negligence. — Contributory. — Master and Servant. — Railroads. — Jury.—Where defendant’s locomotive engineer, while passing a switch on a dark night, ran into a box-car which had been placed on such switch so close as to interfere, and such engineer was killed thereby, the questions of negligence and contributory negligence are for the jury. p. 44.</p>

Erom Sullivan Circuit Court; Orion B. Harris, Judge. Action by Anna Brown ■ against the Western Indiana Coal Company and another. Erom a judgment on a verdict for plaintiff against said company for $800, said company appeals.

From Morgan Circuit Court; Joseph W. Williams, J udge. Prosecution by tbe State of Indiana against Andrew Cain. From a judgment dismissing bis appeal from tbe justice of tbe peace, be appeals.

<p>From Howard Superior Court; B. F. Harness, Judge.</p> <p>Action by Henry Wise against the Pittsburgh, Cincinnati, Chicago & St. Louis Pailway Company. From a judgment on a verdict for plaintiff for $567.50, defendant appeals.</p>

Erom Jasper Circuit Court; Charles W. Hanley, Judge. Action by William J. Reed as administrator of the estate of John Reed, Sr., deceased, against the Pittsburgh, Cincinnati, Chicago & St. Louis Eailway Company. Erom a judgment on a verdict for plaintiff for $2,500, defendant appeals.

From Yigo Circuit Court; James E. Piety, Judge. Action by the State of Indiana, on the relation of Wesley S. Riece, against Wilson II. Soale as administrator of the estate of Charles L. Markin, deceased, and others. From a judgment for defendants, plaintiff appeals.

From Monroe Circuit Court; Ira C. Batman, Special Judge. Action by George W. Speer as administrator of the estate of Frank Teague, deceased, against the Perry-Matthews.Buskirk Stone Company. From a judgment for .plaintiff on a verdict for $4,500, defendant appeals. (On transfer to Supreme Court, dismissed by agreement.)

<p>Appeal and Error. — Dismissal.—Motion to Reinstate. — Where the transcript upon appeal became lost, and upon the order of the Appellate Court to file a substituted transcript the appellant filed a “partial transcript” with no assignment of errors, and no reason was given why such assignment was not substituted, such appeal will be dismissed; and where appellant has not supplied such omission, a motion to reinstate such appeal will be overruled.</p>

<p>Erom St. Joseph Circuit Court; W. A. Funic, Judge.</p> <p>Suit by Willard W. Hubbard and another against the St. Joseph Manufacturing Company and others. Erom a decree for plaintiffs, defendants appeal.</p>

<p>1. Master and Servant. — Failure to Warn Inexperienced Servant of Dangers. — A failure of the master to warn an inexperienced servant of the dangers of an employment renders such master liable for injuries caused thereby, and this is true, though the danger be open and obvious, where the master knows such servant is unable, on account of inexperience, to appreciate the danger, p. 102.</p> <p>2. Same. — Works and Ways. — Dangers.—The master is not absolved from liability because the appliances are in good order where the danger is not open and obvious, or not appreciated because of inexperience and the lack of instruction of the servant, p. 103.</p> <p>3. Samé. — Works and Ways. — Assumption of Risk. — Knowledge. —A master who, knowing the servant to be ignorant of the dangers of the employment, assures such servant of safety, is liable for injuries therein received, p. 103.</p> <p>4. Pleading. — Complaint.—Motion to Make Specific. — Master and Servant. — Failure to Warn. — A complaint showing that the master ordered an inexperienced servant to do certain work known by the master to be dangerous; that such master failed to warn such servant of such dangers; that such master knew such servant did not appreciate the dangers thereof and that the master assured the servant there was no danger, states a cause of action and is sufficiently specific, p. 104.</p> <p>5. Master and Servant. — Failure to Warn. — Character of Work. — In an action by the servant against his master for his negligent failure to warn such servant of dangers of the operation of letting down trusses in a building by means of ropes, pulleys, blocks and chains, it is not necessary to show that such work required special mechanical knowledge nor any skill different from that expected of a common laborer, p. 104.</p> <p>6. Same. — Anticipation of Dangers. — Inexperienced Servant. — It is the master’s duty to anticipate the probable dangers of the moving of an iron truss by mechanical appliances, and he is liable to an inexperienced servant engaged to assist therein with the assurance that there is no danger and who is injured in the performance of such work. p. 104.</p> <p>7. Trial. — Instructions.—Master and Servant. — Inexperienced Servant. — Defects in Works and Ways. — Where the theory of the complaint is negligence of the master in failing to instruct and in assuring an inexperienced servant of the safety of a dangerous place, it is reversible error to instruct the jury that the master is liable for defects in the works, ways and machinery, if such defects were not open and obvious to an ordinary person, p. 105.</p>

Erom Vigo Circuit Court; George M. Crane, Special Judge. Action by William Hays as administrator of tbe estate of Frederick L. Jessup, deceased, against Martin A. Sheets and others. From a judgment for plaintiff, defendants appeal.

<p>1. Townships. — Claims Against. — A claim against a township must have statutory support, p. 115.</p> <p>2. Pleading. — Complaint.—Townships.—Authorization of Loan by Advisory Board. — A complaint showing that the township trustee was “authorized” by the advisory board to borrow the money involved in the action, is sufficient, such allegation being of fact and not a conclusion, p. 115.</p> <p>3. Townships. — Advisory Boards. — Policy of Statute. —■ The policy of the statute (Acts 1899, p. 150, §8085a et seq. Burns 1901), creating township advisory boards, was to place in the hands of each township the power to decide upon its local needs, p. 116.</p> <p>4. Same. — Legislative Power. — Fraud.—Reasonableness.—Legislative action may be impeached for unreasonableness but not for the fraudulent motives of the body exercising the power, and administrative action may be impeached for fraud but not for improvidence, p. 116.</p> <p>5. Statutes. — Township Advisory Boards. — Special Sessions.— Schoolhouses. — Township advisory boards have power under §8085f Burns 1901, Acts 1899, p. 150, §6, at a special meeting, to authorize the township trustee to borrow money for the erection of a schoolhouse. p. 117.</p> <p>6. Same. — Township Advisory Boards. — Former Statutes. — Repeal. — The act of 1899 (Acts 1899, p. 150, §8085a et seq. Burns 1901), relating to township business, repeals the act of 1875 (Acts 1875, p. 162, §§1, 2, §§8081, 8082 Burns 1901, §§6006, 6007 R. S. 1881). p. 117.</p> <p>7. Schools and School Districts. — Schoolhouses.—Erection.— Trustee’s Duty. — It is the duty of the township trustee to sign a contract with the bidder whose bid is approved by the advisory board, the necessity for such work having been decided upon prior thereto, p. 119.</p>

<p>From Superior Court of Allen County; O. N. Heaton, Judge.</p> <p>Action by J ames B. Swing as trustee of the Union Mutual Fire Insurance Company of Cincinnati, Ohio, against John Minnieh and others. From a judgment for plaintiff, defendants appeal.</p>

From Delaware Circuit Court; Joseph G. Leffler, Judge. Action by Winfield T. Durbin and others against the Northwestern Scraper Company and others. From the judgment rendered, plaintiffs appeal. (Eor dismissal of appeal to Supreme Court, see 165 Ind. 237.)

<p>Erom Elkhart Circuit Court; James 8. Dodge, Judge.</p> <p>Prosecution by the State of Indiana against William E. Hani. Erom a judgment of acquittal, the State appeals.</p>

<p>1. Pleading. — Complaint. — Sufficiency When Attacked First Time on Appeal. — A complaint will be held sufficient, when questioned for the first time on appeal, if it states facts sufficient to bar another action for the same cause, unless it states facts which destroy plaintiff’s cause of action, p. 142.</p> <p>2. Health. — Town Boards. — Contagious Diseases. — Statutes — Under §6718 Burns 1894, Acts 1891, p. 15, §8, it is the duty of town boards of health to prevent the spread of smallpox, and the cost incident thereto is chargeable to such town. p. 143.</p> <p>3. Appeal and Error.' — Transcript.—Failure to Include Demurrer. — A failure to include, a demurrer in the transcript on appeal is fatal to any question on the ruling of the trial court thereon, p. 144.</p> <p>4. Health. — Smallpox.—Prevention of Spread. — Where a person became afflicted with smallpox in a town and was quarantined at plaintiff’s home, and subsequently a physician attending such patient was also stricken, an emergency existed authorizing the secretary of the town board of health to contract for the prevention of the spread of such contagion, and the costs occasioned thereby are chargeable to such town. p. 144.</p> <p>5. Same. — Statutes.—Powers of Health Board. — The statute (§6718 Burns 1894, Acts 1891, p. 15, §8) directing local boards of health to prevent the spread of contagious diseases will be liberally construed so as to attain the desired object, p, 14.6.</p> <p>6. Health. —Destruction of Property. — Compensation. — Rules Governing. — Where plaintiff voluntarily received into her home a person supposed to be sick with measles, and such disease was really smallpox, but she made no request for such person’s removal, and by order of the town board of health certain personal property was burned because of such contagion, the rule of compensation is the value of such articles at the time of destruction and not at the time such person was discovered to have such disease, p. 146.</p> <p>7. Same. — Contagious Diseases. — Services for Member of Family. —Liability.—A mother can not, unless shown to be indigent, receive compensation from a town for taking care of her son who was afflicted with smallpox, p. 147.</p> <p>8. Same. — Contagious Diseases. — Nursing.—One engaged by the secretary of a town board of health to nurse a smallpox patient can recover therefor from such town. p. 148.</p> <p>9. Same. — Boards of. — Liability of Towns. — A town is liable for the destruction of property by its board of health acting within the scope of their authority for the prevention of the spread of contagious diseases, p. 148.</p>

<p>1. Pleading. — Complaint. — Corporations. — Officers.—Bonds.—A complaint upon the bond of the former treasurer of a corporation, which sets out a copy of such bond and shows that plaintiff has been duly elected treasurer and has made a proper demand for the money held and owing by such former treasurer, states a cause of action, p. 150.</p> <p>2. Corporations. — By-Laws.—Necessity.-—A corporation can act only in accordance with its by-laws. p. 152.</p> <p>3. Same. — By-Laws.—Directors.—Number.—Statutes.—A manufacturing corporation has the power to amend its by-laws at any time fixing the number of directors at not less than three nor more than eleven as prescribed by statute (§5054 Burns 1901, §3854 R. S. 1881). p. 153.</p> <p>4. Same. — By-Laws.—Vested Rights. — Cumulative Voting. — Neither a statute permitting cumulative voting, thus giving the minority stockholders representation on the board of directors, nor the amendment of the by-laws of a corporation infringes any vested rights of the corporation’s stockholders, p. 153.</p> <p>5. Statutes. — Corporations.—Articles of Incorporation. — Directors. — By-Laws.—Section 5051 Burns 1901, §3851 R. S. 1881, in part, should be construed as though it read: “The number and names of those who shall manage the affairs of the company during the first year,” thus placing.no restrictions upon the right of stockholders to fix by by-law for an increase or decrease of such number, p. 154.</p> <p>6. Corporations. — Articles of Incorporation. — Statutes.—Provisions in Addition to. — A provision in the articles of incorporation of a manufacturing company fixing the number of directors at seven is in addition to the requirements of the statute (§5051 Burns 1901, §3851 R. S. 1881) and is surplusage, p. 155.</p> <p>7. Appeal and Error. — Assignments of Error. — Request for Decision on Certain Question. — Waiver.—Where appellant requests a decision on a specific assignment of error, stating that a “real controversy” exists as to questions thereby presented, assignments • which would prevent the consideration asked may be treated as waived, p. 155.</p>

<p>Erom Hendricks Circuit Court; Thomas J. Gofer, Judge.</p> <p>Condemnation proceedings by the Consolidated Traction Company against John A. Jordan. Erom a judgment assessing damages, sucb company appeals.</p>

<p>1. Appeal and Error. — Verdict.—Evidence.—Inference.—Where the facts tend to show directly or inferentially that the directors of a corporation were notified of a meeting, a note executed at such meeting will be held valid, p. 161.</p> <p>2. Evidence. — Corporations.—Special Meetings. — Directors.—Notice.- — -Where plaintiff has proved that the president of the corporation said he would give notice of a special meeting to a certain director, and such president testifies that he did not give such notice, it is competent to show that at such special meeting such president when asked why such director was not present, answered that such director “will agree to anything we do to-day.” p. 163.</p> <p>3. Same. — Admission of, to Discredit Witness. — Instructions.— Where evidence is admitted for the purpose of discrediting a witness, and the jury is instructed to consider it for no other purpose, it will be presumed that the jury did not use it for any other purpose, p. 164.</p> <p>4. New Trial. — Rules for Granting. — The judgment below will be affirmed unless it is made to appear that substantial justice has not been done. p. 164.</p>

<p>1. Pleading. — Complaint.—Contracts.-—Cancelation.—Mistake.— A complaint by a contractor for the cancelation of a bid on account of a mistake, which alleges that such' contractor had made a material and ruinous mistake and that by reason of the inadequate price fixed defendant had notice sufficient to put it on its guard, is not sufficient to show that the mistake was mutual, p. 170.</p> <p>2. Contracts.' — -Bids.—Acceptance.—Where the plans and specifications for a public building call for bids and provide that upon the acceptance of any bid the successful bidder shall enter into a contract for the construction of the building, the acceptance of a bid does not constitute the contract for such construction. p. 171.</p> <p>3. Same. — Mistake.—Effect.—A contract induced by a mistake which is of such fundamental character that the minds of the parties have never in fact met is wanting in mutuality, p. 171.</p> <p>4. Contracts. — Cancelation.—Mistake.—Where there is no gross negligence shown and no intervening rights and the parties can be placed in statu quo, equity will cancel á contract wanting in mutuality because of an excusable, material mistake of one of the parties, p. 172.</p> <p>5. Same. — Schoolhouses.—Bids.—Acceptance.—Mistake.—Forfeit. —Equity.—Where a contractor made his estimates for the construction of a public school building upon different pages of his estimate book, and, in his hurry to file his bid on time, he inadvertently turned two pages of such book, thus reducing the aggregate of his bid to an inadequate and ruinously low sum, and with his bid he filed his certified check as a forfeit, he is entitled to a cancelation of such bid and to a return of such check, p. 174.</p>

<p>From Benton Circuit Court; Joseph M. Babb, Judge.</p> <p>Action by Joseph Ross against Lutber G. Strong for ejectment and damages. From a judgment for plaintiff, defendant appeals.</p>

<p>. Erom Adams Circuit Court; B. X. Erwin, Judge.</p> <p>Prosecution by the State of Indiana against L. G. Bot-kins. Erom a judgment of conviction, defendant appeals.</p>

From Montgomery Circuit Court; M. W. Bruner, Judge pro tern. Action by John W. Henry against Hellie M. Oorbin as administratrix of tbe estate of John A. Oorbin, deceased.' Erom a judgment for plaintiff, defendant appeals.

<p>Erom Wells Circuit Court; Edwin O. Vaughn, Judge.</p> <p>Suit by Patrick T. Monaghan against Harry Mount and another. Erom a decree for defendants, plaintiff appeals.</p>

<p>Erom Madison Circuit Court; John F. McOlure, Judge.</p> <p>Suit by James Evans against Mary Dunlap and others. Erom a decree for defendants, plaintiff appeals.</p>

<p>1. New Trial. — Cumulative Evidence. — Interurban Railroads.— Where defendant, in an action against an interurban railroad company for negligence in starting its car as plaintiff was alighting, asks for a new trial on the ground of newly-discovered evidence, and the only new evidence which was not cumulative was that plaintiff had a child with her, a new trial will not be granted, p. 203.</p> <p>2. Trial. — Instructions.■—Negligence.—Contributing “Materially” to Injury. — Words and Phrases. — An instruction, in a personal injury case, stating that plaintiff should recover if her injuries were a proximate result of defendant’s negligence unless she contributed thereto “materially” by negligence on her part, is not incorrect, “material” being defined as having influence or effect, p. 205.</p> <p>3. Same. — Instructions.—Interurban Railroads.• — Alighting from Moving Car. — Defendant interurban railroad company can not complain of an instruction in a personal injury case, that plaintiff can not recover if her injury was received while alighting from a moving car. p. 207.</p>

<p>1. Bills and Notes. — Instalments.—Construction.—A note in form: “90 days after date we promise to pay * * * $800 * * * with interest at eight per cent per annum from date until paid. * * * Payments to be $10 per month, or more if maker desires. 90 days’ time allowed on all payments. No interest to be paid until note is paid. Eight per cent interest allowed makers on all payments made from date of payments until note is all paid,” will be construed as an instalment note, payable $10 per month, with an option by the makers to pay more, giving the makers 90 days’ grace on all payments, payment of interest to be deferred until last payment on note and interest to be allowed on all payments from the time they were made. p. 211.</p> <p>2. Bills and Notes. — Construction by Parties. — That construction which the parties give to a note will be favored by the courts, p. 213.</p> <p>3. Pleading. — Complaint.—Bills and Notes. — A complaint upon a note dated December 25, 1900, for $800, payable in monthly instalments of $10 each, ninety days’ grace being given on all payments, and which note shows that $160 only had been paid to the time of filing the action, June 10, 1903, is sufficient, p. 213.</p> <p>4. Bills and Notes. — Alterations.—Materiality.—The insertion of “90” in the blank preceding “days after date” in an instalment note of $800, payable $10 per month, or more at the makers’ option, is an immaterial alteration, p. 213.</p> <p>5. New Trial. — Recovery too Large. — Bills and Notes. — Instalments. — A new trial will'be granted where the recovery on an instalment note was for the whole of the note where but a small</p> <p>■ part was due. p. 214.</p> <p>6. Appeal and Error. — Bill of Exceptions. — Authentication.— Statutes. — Under the act of 1897 (Acts 1897, p. 244, §638a Burns 1901) a bill of exceptions signed by the judge and filed with the clerk within the time granted is a part of the record regardless of any action by the official stenographer, p. 214.</p>

<p>From Huntington Circuit Court; James G. Branyan, Judge.</p> <p>Suit by Alpheus T. Searles against the Corbin Oil Company and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. Judgment. — Res Judicata. — Parties.—Issues.—The decree in a suit commenced in 1887 to determine the rights and priorities of persons using waters from a reservoir is not res judicata in an action by a lessee of one of the parties thereto against another party to such suit, for damages for wrongfully depriving such lessee, in 1895 and 1896, of the water to which he was entitled, p. 225.</p> <p>2. Evidence. — Damages.—Depriving Plaintiff of Water. — Decree Defining Rights. — A prior decree defining the respective rights of the plaintiff and defendant to the use of water from a reservoir is admissible in an action for the defendant’s deprivation of plaintiff of a proper share of such water, p. 225.</p> <p>3. Appeal and Error. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence in a case triable by jury. p. 225.</p> <p>4. Damages. ■ — • Negligence. — Joint Tort-Feasors. — Liability. — Where several persons are entitled to take certain amounts of water from a reservoir, and the wrongful and excessive use by some deprives plaintiff of his proper supply, he has a joint and several right of action for damages, p. 226.</p> <p>5. Damages. — Excessive.—Where defendant wrongfully deprived plaintiff of water to run his mill for 167 days and the rental value of the mill was from $25 to $30 per day, a judgment for $4,000 is not excessive, p. 227.</p> <p>6. Trial. — Instructions.—Damages.—Use of Water from Reservoir. — Where plaintiff, a user in the first priority, of the water in a reservoir, sued defendant, a user in the fifth and sixth priorities, for damages for depriving plaintiff of his share of the water, an instruction that the users in the second, third and fourth priorities had the right to use their shares so long as they did not interfere with plaintiff’s rights, is not erroneous. p. 228.</p> <p>7. Same. — Instructions.—Irrelevant.—Giving an irrelevant instruction which misleads or confuses is reversible, but where it causes no injury it is harmless; and an instruction correctly stating the law, with some evidence to support it,- is not reversible. p. 229.</p> <p>8. Same. — Instructions.—Depriving Plaintiff of Water. — Plain- . tiff’s Duty. — An instruction, in an action for damages for defendant’s depriving plaintiff of water to run his mill, stating that it was plaintiff’s duty to use all of his water-wheels in an effort ■ to get his part of the water, if they could be used to run the mill, but if he was wrongfully deprived of water by defendant he would not ■ be bound to change or rearrange his mill to get his part of the water, is not erroneous, the evidence showing that his water-wheels were of the latest and most approved make and that he was entitled as of right to a certain amount of water which he was not getting, p. 229.</p>

<p>Erorn Clinton Circuit Court; Joseph Olaybaugh, Judge.</p> <p>Action by Earl T. Shaver against the Home Telephone Company. Erom a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and Error. — Want of Parties. — Where an appeal is taken without bringing a coparty before the court no action will be taken affecting such coparty’s interest, p. 242.</p> <p>2. Pleading. — Motion in Arrest. — Motion for New Trial. — A motion in arrest of judgment cuts off the right to a motion for a new trial except for after-discovered causes, p. 243.</p> <p>3. New Trial. — Not Grantable for Part of Case. — Where issues were formed upon a complaint on a draft and a cross-complaint for the cancelation of same a new trial can not be demanded separately for the issues on such complaint and cross-complaint, p. 243.</p> <p>4. Judgment. — Motion for, on Answers. — Where issues were formed on a complaint on a draft and cross-complaint for the cancelation of same, a motion for judgment non obstante on the answers on the issues formed on the complaint should be overruled, such practice resulting in confusion, p. 244.</p> <p>5. Estoppel. — Insurance.—Ownership. — Settlement. • — • A settlement between an insurance company and the “Crawfordsville Sanitarium” for a loss estops such company, in the absence of fraud, from denying that the one to whom it gave its drafts in settlement was the real party in interest, p. 247.</p> <p>6. Evidence. — Ownership.—Insurance.—What Admissible Under Allegation that Plaintiff is “Owner.” — Under an allegation that plaintiff was the “owner” of property covered by a fire policy, plaintiff may prove what interest he had, if any. p. 247.</p> <p>7. Insurance. — Policy Issued to “Crawfordsville Sanitarium.”— Validity. — A policy of fire insurance issued to the “Crawfordsville Sanitarium” is valid, p. 247.</p> <p>8. Same. — Separable Owners. — A policy of fire insurance issued to two or more persons upon property held by them separately is valid, p. 247.</p> <p>9. Same. — Beneficiaries.—Settlement.—Where a fire policy was issued to the “Crawfordsville Sanitarium” and after loss the company settled by drafts with the owner thereof, in the absence of fraud, it could not defend against payment of such drafts on the ground that at the time of the issuance of the policy the property was owned by two persons separately, where it is shown that the company knew of such facts when the settlement was made. p. 248.</p> <p>10. Same. — Breach of Warranty. — Settlement.—Effect of. — The settlement of liability under a fire policy, in the absence of fraud, cuts off any right of defense on the ground of a breach of warranty, p. 249.</p>

<p>1. Contracts. — Real Estate Commissions. — Statutes. — Where the owner of real estate wrote to a real estate .dealer asking his charges for making a sale of a certain house, and he answered $270, and such owner replied that she was “sorry we have to let it go at that,” but that ■ she was “anxious to sell now,” is a contract in writing within the terms of the statute (§6629a Burns 1901, Acts 1901, p. 104). p. 251.</p> <p>2. Same. — Husband and Wife. — Real Estate. — A written contract executed by a married woman alone for the payment of a commission for the sale of her separate real estate is valid, p. 253.</p> <p>3. Same. — Securing Purchaser for Real Estate. — Where the owner of real estate contracts in writing with a real estate dealer, for a commission, to secure a purchaser for such real estate, and he secures a valid proposal upon the agreed terms, he is entitled to such commission regardless of whether the owner ever carried out the contract of sale. p. 253.</p>

<p>1. Pleading. — Answer.—Injunction.—To a suit to restrain defendants from cutting certain timber upon plaintiff’s land, an answer that defendants have neither cut nor are they threatening to cut any timber except that which they have purchased from plaintiff is good. p. 257.</p> <p>2. Same. — Answer.—Injunction.—Timber.—Custom. — Presumption. — To a complaint for an injunction to prevent a threatened cutting of plaintiff’s “burr oak” trees, an answer that defendants had purchased plaintiff’s “white oak” trees and that by a general usage and custom “burr oaks” were classed and regarded as “white oaks” is sufficient, the presumption being that plaintiff knew of such alleged general usage and custom, p. 258,</p> <p>3. Pleading. — Answer.—Contracts.—Mutual Mistake. — To a complaint to prevent the threatened cutting of plaintiff’s oak trees other than pin oak and white oak fifty inches and over in circumference two feet above the ground, an answer that defendants bought all of plaintiff’s oak trees except such white oak under such size, but by mutual mistake of the parties and the scrivener such contract did not so state, is good. p. 258.</p> <p>4. Appeal and Error. — Weighing Evidence. — Statutes.-—The Appellate Court will not weigh conflicting evidence under the act of 1903 (Acts 1903, p. 338, §8). p. 259.</p>

<p>1. Pleading. — Answer.—Sales.—Warranty.—Breach.—How Alleged. — Where the warranty of an article sold is general, a breach of such warranty may be shown by a general negation thereof. Smith v. Borders, 160 Ind. 233, followed, p. 260.</p> <p>2. New Trial. — Sales.—Warranty.—Breach.—Whether a horse received injuries before or after a sale and warranty of soundness is a question of fact, and the verdict rendered .upon conflicting evidence and the decision of the trial court overruling a motion for a new trial are final, p. 261.</p> <p>3. New Trial. — Newly-Discovered Evidence. — Mistake by Witness. — Where a witness for appellee, testifying by reference to a memorandum, made an error of dates, but upon cross-examination stated such dates correctly, a new trial will riot be granted because such memorandum was afterwards found to be incorrect, p. 261.</p>

From Floyd Circuit Court; W. O. Utz, Judge. Action by Henry Sehnull and others against Emmett Cuddy. From a judgment for plaintiffs for less than their demand, they appeal.

<p>1. Pleading. — Complaint.—Uncertainty.—Construction.—Motion to Make Specific. — Where the facts pleaded are sufficient to constitute a cause of action, a complaint will not be held bad because of difficulty in determining the theory of the pleader, the remedy being a motion to make more specific, p. 271.</p> <p>2. Same. — Complaint.—Theory.—Several Causes in One Paragraph. — Misjoinder.—While a single paragraph of _ complaint must have but one theory, it may have many distinct causes of action, and if so, the remedy is a demurrer for misjoinder or a motion to paragraph, and not a demurrer for want of facts, p. 272.</p> <p>3. Guardian and Ward. — Final Settlement■. — Collateral Attack.— The final settlement of a guardian is a conclusive adjudication of the matters therein contained until set aside upon a direct attack, but it is not an adjudication of matters not contained therein, p. 272.</p> <p>4. Same. — Current Reports. — Power of Court to Correct. — A guardianship remains in fieri until the final settlement, and the court may until then correct or modify any former reports, p. 273.</p> <p>5. Same. — Final Settlement. — Direct Attack. — Fraud and Mistake. — Limitation of Actions. — A direct attack may be made upon the final settlement of a guardian for fraud or mistake at any time within three years after making same, and the setting aside of such settlement opens up the entire estate for investigation. p. 274.</p> <p>6. Same. — Pleading.—Joinder of Suit to Set Aside Settlement with Action on Bond. — A suit to set aside a guardian’s final settlement for fraud or mistake may be joined with an action on such guardian’s bond. p. 274.</p> <p>7. Same. — Settlement.—Disclosures.—It is the imperative duty of a guardian to make full disclosures of his trust to the court in making his settlements, p. 274.</p> <p>8. Pleading. — Complaint.—Guardian and Ward. — Final Settlement. — Setting Aside. — A complaint showing that a guardian, having overpaid his ward’s mother $200, filed and received an allowance of same from the ward, and that he has never accounted to such ward for such sum, states a cause of action against such guardian and also on his bond. p. 275.</p>

<p>1. Appeal and Error. — Complaint.—Subscription.—Striking Out. ■ — -No question is presented on appeal on the trial court’s overruling a motion to strike out the complaint for want of subscription, when the transcript shows a subscription by plaintiff’s attorney and fails to show when it was made. p. 278.</p> <p>2. Pleading. — Complaint.-—Liens.—Attorneys.—Defense.—A complaint by a client against his attorney for the whole of the fund received for him by such attorney is not bad for failure to show that such attorney had been paid for services rendered, such matters constituting proper matter of defense, p. 278.</p> <p>3. Demand. — Evidence of. — Attorneys.—Collections.—Failure to Pay Over. — A demand is necessary before a client can sue an attorney for money collected and retained, but where the proof shows that such client tried to settle with such attorney but failed on account of the amount of the fee demanded by such attorney, a demand is sufficiently shown, p. 278.</p> <p>4. Trial. — Instructions.—How Considered. — An instruction should be considered as a whole and not by detached portions, p. 280.</p> <p>5. Contracts. — Champerty and Maintenance. — Attorney and Client. — A contract by which an attorney shall receive a certain per cent of what he collects is not void for champerty, and if fairly entered into, will be enforced, p. 281.</p> <p>6. New Trial. — Amount of Recovery. — Cross-Demands.—Where a client sued his attorney for $100 collected for such client and claimed a contract with such attorney that his fee should be one-fifth of the amount collected, and the attorney filed a cross-complaint for $40 as a reasonable fee for the service, denying such contract, and the uncontradicted evidence showed a reasonable fee to be from $35 to $50, a verdict for such attorney on the cross-complaint for $25 will be set aside as not sustained by the evidence, p, 282.</p>

<p>1. Appeal and Error. — Briefs.—Appellate Court Rules. — The enforcement of rule twenty-two of the Appellate Court is discretionary with the court, p. 284.</p> <p>2. Officers. — Public.—Sheriffs’ Fees. — Court Attendance.- — The allowances made to a sheriff for attendance at court are not fees such as are required to be turned over to the county, but belong to such sheriff, p. 288.</p> <p>3. Statutes. — Counties.—Officers. — Settlements. — The statute (§7913 Burns 1901, §5811 R. S. 1881) was designed (1) to protect the counties by requiring officers to pay over all the money rightfully belonging' to such counties, and (2) to protect officers on account of overpayments to the counties, p. 289.</p> <p>4. Pleading. — Complaint. — Counties. — Officers.—Money Over- . paid. — Recovery.—A complaint showing that a sheriff paid over to the county treasury his per diem allowances for attendance at court through his “mistake and inadvertence” and that he had filed his claim for the return of same, which had been refused, states a cause of action, by virtue of the statute (§7913 Burns 1901, §5811 R. S. 1881). p.289.</p> <p>5. Same. — Insufficient Answer. — Defective Demurrer. — It is harmless error to sustain a defective demurrer to an insufficient answer, p. 290.</p>

Erom Henry Circuit Court; John M. Morris, Judge. Action by Arthur L. Cox and others against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company and others. From a judgment in favor of plaintiffs, defendant company appeals.

<p>Appeal and Error. — Quieting Title. — Tax Liens. — Death of Party after Judgment. ■— Survival. —• Statutes. — Under §648 Burns 1901, §636 R. S. 1881, providing that in case of the death of a party after judgment an appeal may be taken by the person in whose favor the action might have been revived if death had occurred before judgment, and §282 Burns 1901, §281 R. S. 1881, providing that where actions survive they may be commenced by the representatives to whom the interest in the subject-matter passes, the personal representative of a decedent can not appeal in an action wherein decedent sued to quiet title and for the enforcement of a lien for taxes due under an invalid tax sale, since by statute (§§8632, 8641 Burns 1901, Acts 1901, p. 366, §§1, 3, and §£.634 Burns 1901, Acts 1891, p. 199, §216) the lien of the State for taxes is transferred to and vested in the grantee, his heirs and assigns, and the claim therefor is a lien upon the lands.</p>

<p>1. Appeal and Error. — Briefs.—Appellate Court Rules. — An assignment of error not discussed in appellant’s brief is waived, p. 306.</p> <p>2. Same. — Weighing Evidence. — The Appellate Court will not disturb a verdict based upon conflicting evidence, p. 307.</p> <p>3. Evidence. — Street Railroads. — Municipal Ordinances. — Applicability. — Persons Hanging outside of Street Car. — An ordinance, prohibiting persons from swinging or hanging on the outside of any street car, passed when horse-power was used exclusively, is not applicable to travel on modern electric street cars, and is inadmissible in evidence for the purpose of showing that plaintiff was a wrongdoer at the time of his injury, p. 307.</p> <p>4. Carriers. — Passengers.—Street Railroads. — Riding on Running-Board. — It is not negligence per se for a passenger to ride on the running-board of a street car. p. 309.</p> <p>5. Same. — Hackmen.—Duty to Observe. — It is the duty of the driver of a' hack to take notice of the conditions and surroundings in driving his hack on the streets, p. 309.</p> <p>6. Appeal and Error. — Instructions.—Record.—No question can he presented on appeal on an alleged instruction which is not contained in the record, p. 310.</p>

<p>1., Judgment. — Motion in Arrest. — A motion in arrest of judgment cuts off a motion for a new trial, p. 312.</p> <p>2. Same. — Motion in Arrest. — Use of. — Where no substantial cause of action is shown, a motion in arrest should prevail; but if a substantial cause of action is indicated, though it may be defectively stated, a motion in arrest should be overruled, such defects being cured by the finding and judgment, p. 312.</p>

<p>Statutes. — Appeal and Error. — Costs. — State Docket Fee. — “Losing Party.” — An appellant who settles the cause appealed by receiving payment of an agreed sum from appellee and who files with the clerk an order in form, “The above cause is dismissed,” is the “losing party” under §1337r Burns 1901, Acts 1901, p. 565, §18, and is liable for the payment of the state docket fee of $10.</p>

<p>1. Statutes. — Railroads.—Liens for Materials. — Section 7265 Burns 1901, Acts 1889, p. 257, §4, providing for a lien in favor of anyone “who shall furnish any material for use in the construction” of a railroad gives a lien only for materials which go into and become a part of the railroad. Haskell v. Gallagher, 20 Ind. App. 224, distinguished, p. 316.</p> <p>2. Liens. — Statutory.—Nature of. — Railroads.—Statutes.—Construction. — Liens given by statutes to mechanics, laborers and material men are in derogation of the common law and are only a security for the debts owing to such persons, a strict construction being enforced in ascertaining the persons entitled to the benefits and a liberal construction being given for the enforcement of liens when the persons entitled thereto are ascertained. p. 317.</p> <p>3. Same. — Materials. — Coal for Steam Shovel. — Railroads. — Statutes. — The person furnishing coal to a contractor for use in the operation of a steam shovel in the construction of a railroad is not entitled to a lien under §7265 Burns 1901, Acts 1889, p. 257, §4, providing for a lien in favor of any person “who shall furnish any material for use in the construction” of a railroad. Black and Roby, JJ., dissenting, p. 319.</p>

<p>1. Trusts. — Expenses.—When Chargeable to Fund. — All expenses in the administration or the creation oí a trust fund, but not the expenses of litigation to reduce such fund, are chargeable to such fund. p. 329.</p> <p>2. Same. — Expenses.—Intervenor’s Attorney’s Fees. — Where an intervenor, in a suit wherein a receiver for a mutual life insurance company was appointed, files his suit to cancel a bond and mortgage ostensibly owing from him, and was successful therein on appeal, the fact that such decision furnished a precedent for settling similar claims and prevented further litigation does not justify the payment of such intervenor’s attorney’s fees out of such receiver’s funds, p. 330.</p> <p>3. Same.- — Expenses.—Powers of Court Over. — Appeal and Error. —Where the trial court refuses to order payment of an intervenor’s attorney’s fees out of a trust fund, the Appellate Court will not reverse such order because it is alleged that such trial court orally agreed, before such services were rendered, that the same should be paid from such trust fund. p. 330.</p> <p>4. Same. — Expenses.—Advice by Attorney for Opposing Party.— An intervenor’s attorney can not claim compensation from a trust fund, where his client’s action reduced the assets thereof, because of the fact that he advised other parties to make settlement on the terms of the decision in such intervenor’s case, p. 331.</p>

From Grant Circuit Court; II. J. Paulus, Judge. Petition by John O. Nelson as administrator of the estate of John Entsminger, deceased, to which Sarah H. Nelson and others were made parties. From a decree rendered, petitioner appeals.

<p>1. Contracts. — Carriers. — Railroads. — Bills of Lading. — Receipts. — Where plaintiff delivered goods to a railway company to be carried to their destination and received from such company a receipt showing that such goods were received and that they were “to be shipped as per directions below, subject to the conditions and exceptions of the company’s bill of lading,” and no bill of lading was ever issued, such provision must be deemed as abandoned, p. 341.</p> <p>2. Same. — Carriers.—Railroads.—Receipts for Goods for Shipment. — A receipt issued to plaintiff by a railroad company showing the company’s receipt of plaintiff’s goods, and that they were “to be shipped as per directions below,” and also that such goods were directed to plaintiff at their destination, and showing the receipt of payment of money to such company, is not a contract and imposes no duty upon such company to deliver such goods any place, p. 343.</p> <p>3. Same. — Carriers.—Railroads.—Delivery to Points off of its Lines. — A common carrier’s duty is to deliver goods only upon its own lines, and it may contract against liability for losses occurring upon connecting carriers’ lines, p. 344.</p> <p>4. Same. — Carriers.—Railroads.—Receipt of Goods Marked.— Presumption. — Where a common carrier receives goods marked to their destination beyond its line, there is no presumption of a contract to deliver such goods at such destination, p. 344.</p> <p>5. Contracts. — Oral. — Carriers.—Railroads.—Where plaintiff’ asked defendant railroad company’s agent the freight rate to the destination of his shipment and such agent told him the rate and plaintiff delivered goods consigned to such place and paid the freight, the question whether there was an oral contract for the shipping of such goods to their destination Was for the ■ jury. p. 345.</p> <p>6. Carriers. — Railroads.—Agents.—Authority to Ship to Point beyond Line. — Where plaintiff delivered goods marked to a point beyond defendant railroad company’s line and asked such company’s agent the through freight rate and paid same, taking such company’s receipt showing delivery of goods and that they were consigned to such destination and also showing the money paid, such facts wholly fail to show any authority, express or implied, of such agent to contract on behalf of defendant for such delivery, p. 347.</p>

<p>1. Trespass. — Title.—Deeds.—Possession.—Where plaintiff in an action for trespass proves possession under a warranty deed, executed in 1900, from a grantor in possession, which grantor derived title through a sheriff’s deed executed in 1893, he has established a prima facie title in fee simple, p. 353.</p> <p>2. Deeds. — Lands Bordering Highways. — Title to Highway. — A deed conveying land bordering on a street or highway, in the absence of express limitations, conveys the fee to the middle of such street or highway, even though the description in such deed is by metes and bounds, p. 353.</p> <p>3. Statutes. — “Michigan Road.” — Commissioner’s Deed. — Title. —Under the act of 1832 (Acts 1832, p. 122), providing that the commissioner of the “Michigan Road” lands should have'power ■ to sell in half-quarter sections “all the lands included in the sections through which the road passes from Logansport to Lake Michigan. *• * * Provided, * * * if he consider it for the interest of the State, to sell the part lying on one side of the road in one parcel, and attach and sell with the half-quarter that which lies on the opposite side of said road in the same section, the other part of said half-quarter, so that every part of land sold may lie on said road,” such commissioner had discretionary power to sell the entire half-quarter section “divided by the road running through the same.” p. 362.</p> <p>4. Evidence. — Records of Michigan Road Lands. — Statutes.— Under §470 Burns 1901, §463 R. S. 1881, all of the records, or copies thereof duly certified by their proper keeper, and, by virtue of §7651 Burns 1901, §5628 R. S. 1881, copies certified by the Auditor of State, of the Michigan Road Lands are admissible in evidence and are prima facie evidence of the truth of their contents, p. 364.</p> <p>5. Same. — Sections.—Judicial Notice. — Courts take judicial notice of the location of the different sections in a congressional township. p. 365.</p> <p>6. Same. — Geographical Locations. — Judicial Notice. — Courts take judicial notice that sections thirty-one and twenty-eight in township thirty-eight north, range four west, and also the city of Michigan City are on the southeastern portion of Lake Michigan and northward from a ten-mile line running eastward from the southern extremity of Lake Michigan, p. 365.</p> <p>7. Treaties. — Contracts.—Cessions.—Where the United States received from the Pottawatomie Indians a cession of land extending from Logansport to Lake Michigan for the purpose of establishing a public highway from such lake through Indianapolis to the Ohio river, such tribe and their grantees were bound to yield up the necessary land from Logansport to the lake, and the United States and her grantees were compelled to furnish such land from Logansport to such river, p. 366.</p> <p>8. Highways. — Soil.—Ownership.—Civil Law. — By the civil law the public owns the soil in a public highway, p. 369.</p> <p>9. Same. — Soil.—Ownership.-—Common Law. — By the common law where the state conveys lands abutting on a public highway, the grantee owns the fee to the middle thereof, p. 370.</p> <p>10. Same. — “Michigan Itoad.” — Ownership of Fee. — The adjoining proprietors of the “Michigan Road” are the owners respectively of the fee to the middle of such road. p. 371.</p>

From Greene Circuit Court; Orion B. Harris, Judge. Action by tbe State of Indiana, on the relation of Frances E. Richeson, ¿gainst Logan Richeson. From a judgment for less than the demand, plaintiff appeals.

<p>Appeal and Error. — Bill of Exceptions. — Eailure to Contain All of the Evidence. — Peremptory Instructions. — Alleged error in the giving of a peremptory instruction for defendant can not be considered on appeal where the bill of exceptions fails to include a map used by the parties on the trial of the cause wherein the father of a boy six years old sued a railroad company for damages for its negligent killing of such boy.</p>

From Madison Circuit Court; John F. McClure, Judge. Petition by Leanna Kemp and others for the location of a highway, against which William B. Prather and others remonstrate. From a judgment in favor of remonstrants, petitioners appeal.

Erom Superior Court of Marion County (70,015); Vinson Carter, Judge. Suit by Patrick Sullivan and another against Charles Remster and others as the city board of election commissioners of the city of Indianapolis. Erom a decree for plaintiffs, defendants appeal.

<p>Erom Superior Court of Marion County (68,112) ; John L. McMaster, Judge.</p> <p>Action by William E. Miller against Jeremiah Griffin. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Statutes. — Construction.—Where the language of a statute is plain and definite, a literal interpretation should be adopted; and supposed omissions can not be supplied, p. 414.</p> <p>2. Same. — Liens.—Creation of.- — Statutes creating liens in favor of laborers and other artisans are construed as remedial, p. 414.</p> <p>3. Liens. — Statutes.—Construction.—Where the plaintiff has shown himself entitled to a lien, the remedy provided will be construed liberally in his favor to obtain the payment of his claims, p. 415.</p> <p>4. Same. • — • Laborers’. — Railroads.—Subcontractors’ Servants.— Notice.- — Under §7265 Burns 1901, Acts 1889, p. 257, §6, the laborers employed by a railroad subcontractor in the second degree are entitled to laborers’ liens on such railroad for services performed, and their actual performance of labor on the railroad is notice to the company, p. 415.</p> <p>5. Same. — Laborers’.—Assignment.—“Time Checks.” — Where the plaintiff, at the suggestion of the maker, purchased from laborers on a railroad their “time checks” showing the amounts due them for labor performed, such purchase constitutes an assignment of such claims together with the statutory liens securing same. p. 419.</p> <p>6. Same. —• Laborers’. — Personal Judgment for. ■ — ■ Railroads. — Operation. — Special Findings. — An admission by defendant railroad company in open court that it was at the time of the trial operating its road sustains a finding that the right of way and other property of such defendant is necessary in its use as a common carrier and that a lien thereon for labor performed can not be foreclosed and that a personal judgment ought to be rendered in lieu of a decree of foreclosure, p. 420.</p> <p>7. Same. — Laborers’.—“Time Checks.” — Accounts.—A time check issued by a railroad subcontractor to a laborer showing the amount of work performed and the amount due such laborer is in the nature of an account and is assignable. Naglebaugh v. Harder & Hofer, etc., Co., 21 Ind. App. 551, distinguished, p. 420.</p> <p>8. Railroads. — -Sales of. — A railroad can not be sold in parts, but must be sold as an entirety, p. 420.</p> <p>9. Railroads. — Laborers’ Liens. — Personal Judgment. — Where, before a laborer’s lien is foreclosed, the railroad upon which such labor has been performed begins operation as a common carrier, such laborer is entitled to a personal judgment against such company instead of a decree of foreclosure, p. 421.</p> <p>10. Appeal and Error. — Injury Not Shown. — Railroads.—Personal Judgment. — Where it does not appear that any injury was done to a railroad company by the trial court’s refusal to modify a personal judgment rendered against it in favor of a laborer for services rendered, such action does not constitute available error, p. 422.</p>

<p>1. Carriers.- — Contracts Limiting Liability. — Consideration.—A common carrier has the right to enter into a special contract limiting its common-law liability in the carriage of goods, provided some consideration other than the receipt of the goods and the agreement to transport is yielded, p. 423.</p> <p>2. Trial. — Carriers.—Contracts Limiting Liability. — Prima facie Case. — Where a carrier shows a special contract executed by the shipper and itself limiting its common-law liability in the transportation of such shipper’s goods, it has established a prima facie defense against such shipper’s action for damages on account of injuries for which its liability has been negatived by such contract, p. 424.</p> <p>3. Evidence. — Carriers.—Contracts Limiting Liability. — Admissions. — A contract between plaintiff and a common carrier limiting such carrier’s common-law liability in the transportation of plaintiff’s goods, is admissible in evidence, in an action against such carrier for damages for injuries covered by such contract exemption, such contract being in the nature of an admission, and also showing upon its face a consideration for such limitation of liability, p. 424.</p> <p>4. Pleading. — Tort.—Negativing Validity of Contract. — A shipper, bringing an action in tort on the common-law liability of defendant carrier, must, if he has executed a contract limiting such carrier’s liability, aver facts negativing the validity of such contract, p. 424.</p> <p>5. Contracts.- — Interstate Commerce Act. — Limiting Carriers’ Common-Law Liability. — A contract showing that defendant railroad company reduced its freight thirty per cent in consideration of a limitation of its common-law liability is not upon its face invalid as in violation of the provisions of the interstate commerce act. p. 424.</p>

<p>1. Appeal and Error. — Appellate Court Rules. — Briefs.—No question is raised on any pleadings not set out literally or substantially in appellant’s brief, p. 426.</p> <p>2. Trial. — Special Findings. — Presumptions.—Inferences.—Special findings are presumed to state all of the facts, and no inferences or intendments will be drawn in aid thereof, p. 426.</p> <p>3. Same. — Special Findings. — Evidentiary Facts. — Conclusions of Law. — Where evidentiary facts are included in the special findings they will not be considered in support of the conclusions of law. p. 426.</p> <p>4. Fraudulent Conveyances. — Mortgages.—When Insolvency Must Be Shown. — A suit to set aside a fraudulent mortgage is governed by the rules relating to fraudulent conveyances, and it must be shown that defendant debtor did not have sufficient property remaining at the time of the execution of such mortgage to pay plaintiff’s debts, p. 428.</p> <p>5. Same. —• Mortgages. — Insolvency. — Findings. — Where the special findings, in an action to set aside a mortgage as fraudulent, show that defendant debtor was insolvent at the time of the trial and that such mortgage was executed seventeen months before the trial, a conclusion of law that such mortgage should be set aside as fraudulent is not sustained, p. 429.</p> <p>6. Trial. — Fraudulent Conveyances.- — Insolvency.—Special Findings. — A finding that defendant took a mortgage knowing of plaintiff’s claim and knowing that the execution thereof would render the mortgagor insolvent, is not a finding that the execution of the mortgage on the date thereof left the mortgagor insolvent, p. 430.</p> <p>7. Appeal and Error. — New Trial.- — Special Findings.- — Discretion. — Where justice will be subserved the Appellate Court will order a new trial, although appellant, on the special findings, is ’ technically entitled to a decree, p. 430.</p>

<p>1. Appeal and Error. — Bill of Exceptions. — Record.—Statutes. —Under the act of 1903 (Acts 1903, p. 338, §7, §641g Burns 1905) the original bill of exceptions contained in the transcript on appeal is a part of the record whether the precipe calls for such original or merely a transcript, p. 432.</p> <p>2. New Trial. — Second or Supplemental Motion. — Discretion.— The right of filing a second or supplemental motion for a new trial is largely within the discretion of the trial court, p. 433.</p> <p>3. Same. — Time of Filing. — Adjourned Term. — Under §570 Burns 1901, §561 R. S. 1881, providing that a motion for a new trial must be filed during the term at which the verdict or decision is rendered, unless it should be the last day of such term, in which event such motion could be filed on the first day of the next term, and §1443 Burns 1901, §1380 R. S. 1881, providing that the judge can call an adjourned term of court to complete any unfinished business, which adjourned term shall be considered a part of the regular tern;, a motion for a new trial filed during such adjourned term is'in time, though the decision was rendered prior to the last day of such regular term. p. 433.</p> <p>4. Conteacts. — Railroads. — Receivers.—Relief Departments.— Where an employe of a railroad company contracts with such company that, in the event of an injury or death he or his personal representatives shall be entitled to certain benefits from such company’s relief department, and that if suit for damages be brought by him or such representatives for injuries the same shall operate as a release of such relief benefits, and such company goes into the hands of receivers who are authorized to continue such relief department, such receivers continuing such employe in the service, such employe is, within the meaning of the contract, still in the employ of such company, p. 434.</p> <p>5. Damages. — Death by Wrongful Act. — Survival.—Actions.— Divisibilty. — Statutes.—Where the widow of a decedent killed by the wrongful act of the receivers of defendant railroad company files her petition as administratrix for leave to sue such receivers for the benefit of decedent’s minor children, and the, court grants leave to sue in behalf of the widow and children, the damages assessed are in gross for such widow and children, one action only being maintainable under the statute (§285 Burns 1901, Acts 1899, p. 405). p. 436.</p> <p>6. Conteacts. — Railroads. — Relief.—Torts.—Public Policy. — A contract, required by a railroad company and providing that each employe shall become a member of its relief department and as such be entitled to certain relief in case of injury, but that if an action in damages be brought by such employe or his personal representatives for injuries received, the Same shall be a release of any benefits in such relief fund, is not contrary to public policy on the ground of an attempted escape of liability for torts, p. 437.</p> <p>7. Same. — Parties.—Railroads.—Relief.—Release.—A contract by an employe of a .railroad company providing that an action by him or his personal representatives shall be a release of any claim for benefits by virtue of such employe’s membership in such company’s relief department is valid and the beneficiaries can recover only what is provided by the contract, p. 438.</p>

<p>1. Liens. — Laborers’. — Railroads. — Subcontractors.—Employes of. — Statutes.—Under §7265 Burns 1901, Acts 1889, p. 257, §6, giving a lien for labor performed “in pursuance of a contract with any person, corporation or company engaged as lessee, contractor, subcontractor, or agent” of a railroad company “in the work of constructing or repairing” its road, a railroad company is liable for labor performed in the construction of its road by an employe of a subcontractor in the second degree, the authority for such labor emanating originally from such company. p. 440.</p> <p>2. Same. — Laborers’.—Personal Judgment. — Railroads.—In an action to foreclose a laborer’s lien against a railroad company for labor performed in the construction of such company’s road, it is proper to render a personal judgment against such road, where the evidence shows that such company has been running work-trains over its road and the road is practically completed, although such company had not actually used its road in the business of a common carrier of freight or passengers, p. 440.</p>

<p>1. Appeal and Error. — Partition.—Final Judgment. — A judgment determining the rights of the parties and ordering a sale of the lands sought to be partitioned is a final judgment from which an appeal will lie. p. 443.</p> <p>2. Same. — Special Findings. — When Obviate Error on Demurrer to Answers. — Where the special findings cover the facts set out in answers, error in sustaining demurrers thereto is obviated. p. 444.</p> <p>3. Partition.- — Rents and Profits. — Consideration of. — Where one cotenant has received the rents and profits from the common property, he -may be compelled in a suit for partition to account for same. p. 446.</p> <p>4. Same. — Advancements.—Where the cotenants are heirs of a common ancestor and some have received advancements and some are indebted to the estate, such advancements and debts can be taken into account in a suit for partition, and distribution of the assets of the common estate should be made according to the amounts equitably due such cotenants, p. 447.</p> <p>5. Descent and Distribution. — Advancements.—Payable Primarily from Personal Estate. — Statutes.—By statute (§2563 Burns 1901, §2407 R. S. 1881) the primary source from which advancements should be equalized is the decedent’s personal estate, p. 448.</p> <p>6. Partition. — Purchaser of Heir’s Share. — Rights.—The purchaser of the interest of an heir at a judicial sale takes the same interest which legally and equitably belongs to such heir, p. 449.</p> <p>7. Same. — Personal Property. — Consideration of. — Where defendant is a purchaser of an heir’s interest in real estate, and the decedent left personal estate which was converted by the other heirs, plaintiff has the right to have an accounting thereof in a suit for partition of such real estate, p. 449.</p>

<p>From Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Action by Milbert F. Price and others against James Huddleston. From a judgment for defendant, plaintiffs appeal.</p>

From White Circuit Court; T. F. Palmer, Judge. Action by John W. Burget against Alex Merica and another. From a judgment for plaintiff, defendants appeal, plaintiff assigning cross-errors.

<p>Erom Superior Court of Marion County (64,217) ; John L. McMasier, Judge.</p> <p>Action by Alfred O. Wilkerson, as trustee in bankruptcy of tbe estate of James M. Key, against tbe Capital Rational Bank. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error. — Sustaining Demurrer to Paragraph of Answer Whose Facts Are Provable under Another. — -It is not erroneous to sustain a demurrer to a paragraph of answer whose facts are provable under another, p. 488.</p> <p>2. Frauds, Statute of. — Real Estate. — Sales.—Memorandum.— Specific Performance. — A memorandum, signed by defendant, showing that defendant received from plaintiff “$50 in payment for the land north and west of the graveyard, the same to be valued or sold at $12 per acre, and the remainder to be paid on receipt of deed,” contains a description capable of location, the contract evidenced thereby is not within the statute of frauds, and specific performance will be decreed, pp. 489, 490.</p>

<p>1. Damages. — Excessive.—Ascertainment.—"Where the damages assessed are so great as to induce the belief that the jury acted from prejudice, passion, partiality or corruption, or that they misunderstood or misapplied the evidence, such damages are excessive, p. 491.</p> <p>2. Same. — Excessive. ■— Interurban Railroads. — Ejecting Passengers. — Where the conductor of an interurban railroad ejects a lady nine squares from her home, before sunset, causing her no bodily harm, no malice being shown, a verdict for $400 damages is excessive, p. 492.</p>

<p>1. Statutes. — “Transient Merchants.” — Objects.—The object of the statute (§§7231a-7231i Burns 1901, Acts 1901, p. 466) licensing “transient merchants” is for the benefit of local merchants in protecting them from unfair competition, to protect the people from such transient merchants’ visitations, and to compel such transients to help support the expenses of the State, and municipalities, p. 500.</p> <p>2. Same. — Transient Merchants. — Who Are. — A merchant traveling from place to place engaged in the sale of rugs, who fraudulently, to evade the payment of license, arranges with a resident merchant to advertise his rugs in such manner as to lead the public to believe that the sale is by such resident merchant, when in fact he is receiving a commission only, is a “transient merchant” within the meaning of the statute (§§7231a-7231i Burns 1901, Acts 1901, p. 466). p. 501.</p> <p>3. Taxation.- — Transient Merchants. — Double Taxes. — Statutes. ■ — -Where a transient merchant has paid the taxes upon his goods in one county, he can not be compelled to pay taxes again on the same stock, but where his stock is replenished, taxes are collectible on such new stock (§8441 Burns 1901, Acts 1897, p. 99). p. 501.</p>

<p>Contracts. — Oil and Gas Leases. — Conditions.—Where plaintiff executed a contract with defendant’s assignors conveying to such assignors all of the oil and gas under his land on terms providing that the grantees should drill a well within three months or pay an annual rental of |75 for delay in so drilling, a failure to pay which when due rendering such contract “null and void,” and the defendant made two payments at each of which times plaintiff made a demand for the drilling of a well, and the third payment was not tendered when due, such contract was void, there having been no entry by defendant, and plaintiff having never parted with the possession.</p>

<p>1. . Intoxicating Liquors. — Licenses.—Statutes.—The act of 1895 (Acts 1895, p. 248, §7283a et seq. Burns 1901). did not provide for the granting óf a license to sell intoxicating liquors, such license being granted only under the act of 1875 (Acts 1875 [s. s.], p. 55, §7, §5318 R. S. 1881). p. 509.</p> <p>2. Same. — Licenses.—Statutes.—Repeal.—The act of 1897 (Acts 1897, p. 253, §3, §7283 Burns 1901) supersedes §5318 E. S. 1881, Acts 1875 (s. s.), p. 55, and provides for but one license for the sale of intoxicating liquors, and that is to sell “in less quantities than five gallons at a time.” p. 509.</p> <p>3. Same. — Licenses.—Statutes.—Purpose.—The phrase “in less quantities than a quart at a time” in §7283b Burns 1901, Acts 1895, p. 248, §2, is declaratory of the laws then existing, and adds nothing to such statute, the true purpose of such section being to prohibit the doing of certain things in rooms where liquors are sold. p. 510.</p> <p>4. Same. — Statutes.—Construction.—Section ten of the act of 1895 (Acts 1895, p. 248, §7283k Burns 1901) providing that the “provisions of this act shall apply to persons, places and sales of spirituous, vinous, malt and other intoxicating liquors” conducted under the liquor law of Indiana, makes the provisions of the act of 1895, supra, applicable to the act of 1897 (Acts 1897, p. 253) where not in conflict, such statutes being in pari materia, p. 511.</p> <p>5. Intoxicating Liquors. — Statutes.—Construction.—The acts of 1875 (Acts 1875 [s. s.], p. 55), 1895 (Acts 1895, p. 248) and 1897 (Acts 1897, p. 253) providing for the regulation of the liquor traffic should be construed together as if a single act. p. 512.</p> <p>6. Indictment and Information. — Intoxicating Liquors. — Sales. —Location.—An indictment charging that defendant, “holding a license to sell, intoxicating liquors in less quantities than five gallons at a time,” unlawfully sold such liquors in a room not separate from other business, and unlawfully permitted a device for amusement in such room, and unlawfully suffered a partition to remain in such room, states a public offense, p. 513.</p>

<p>Erora Grant Circuit Court; II. J. Paulvs, Judge.</p> <p>Prosecution by tbe State of- Indiana against Patrick Kiley. Erom a judgment quashing the indictment, the State appeals.</p>

<p>1. Criminal Law. — Horse-Racing.—Section 2280 Burns 1901, §2159 R. S. 1881, defines two offenses: (1) Knowingly suffering one’s horse to run in a race upon a public highway, and (2) acting as a rider in a horse-race upon a public highway, p. 522.</p> <p>2. Indictment and Information. — Following Language of Statute. — An indictment following the language defining the crime charged is sufficient, p. 522.</p> <p>3. Same. — Horse-Racing.—An indictment charging that defendant did in 1905, in Hancock county, Indiana, “unlawfully act as a rider in a certain horse-race on the public highway, then and there situate,” is sufficient. Myers v. State, 1 Ind. 251, questioned. p. 523.</p> <p>4. Appeal and Error. — Erroneous Ruling Precedent. — Transfer.■ — Where the Appellate Court deems a ruling precedent erroneous, the cause will be transferred to the Supreme Court, p. 523.</p>

<p>1. Appeal and Error. — Briefs. — Waiver. — An assignment of error not discussed in appellants’ brief is waived, p. 527.</p> <p>2. Trial. — Interrogatories to Jury. — When Controlling. —• The general verdict controls unless the answers to the interrogatories are in such conflict that they can not be reconciled in view of any evidence admissible under the issues, p. 529.</p> <p>3. Same. — Interrogatories to Jury. — Inconsistencies in Answers. —Inconsistent answers to the interrogatories to the jury neutralize each other, and the general verdict prevails, p. 529.</p> <p>4. Same. — Answers to Interrogatories to Jury. — Evidence. — Where plaintiff’s evidence showed that defendants had never instructed him in the use of a dangerous machine, and an answer to one interrogatory to the jury showed that with ordinary care the plaintiff should have known such machine to be dangerous without “having his attention drawn to it or without warning or instructions,” and another answer showed that “with proper instructions” plaintiff could have “avoided” his injuries, the presumption obtains in support of the general verdict that the jury intended to show that the former answer was qualified by the phrase “with proper instructions.” p. 530.</p> <p>5. Same. — Answers to Interrogatories to Jury. — Evidence. — Where plaintiff’s evidence showed that the defendants had never instructed him in the use of a dangerous machine, defendants’ foreman denying same, and an answer to one interrogatory to the jury asserted that the evidence showed that defendants cautioned plaintiff as to such machine, and another answer showed that “with proper instructions the injury which plaintiff received could have been avoided,” such former answer means that the evidence showed that such foreman testified that he had cautioned plaintiff as to such machine, p. 530.</p> <p>6. Same. — Interrogatories to Jury. — Master and Servant. — Assumption of Risk. — Contributory Negligence. — Question for Jury. — Where the interrogatories to the jury show that the plaintiff was ordered by his masters to work upon a different machine from that upon which he was employed to work; that no instructions were given to him as to the dangers of such work and that he received injuries while working thereon, though he might have seen that such work was dangerous, and might have realized such dangers, the court can not, as a matter of law, declare him guilty of contributory negligence, such question being for the jury. p. 530.</p> <p>7. Appeal and Error. — Attorneys Instructing Jury as to Interrogatories. — Briefs.—Waiver.—Alleged error of the trial court in allowing plaintiff’s attorney to instruct the jury how to answer interrogatories is waived where such instructions are not set out in appellants’ brief nor a citation to the record thereof made. p. 531.</p> <p>' 8. Negligence. — Master and Servant. — Fellow Servant. — The master is not liable for the negligence of a fellow servant, p. 533.</p> <p>9. Master and Servant. — Inexperience.—Instruction.—It is the imperative duty of the master to instruct an inexperienced servant in reference to the use of dangerous machinery, p. 533.</p> <p>10. Same. — Superintendents.—Delegation of Authority. — Scope of Employment. — Work Outside of.: — Contributory Negligence. —Question for Jury. — Where the general manager directed the plaintiff servant to “mind” a certain employe, and such employe required another employe to put plaintiff to work on a certain machine outside of the scope of his employment, and such manager saw plaintiff, without his being instructed, about to begin work on such machine, and plaintiff was injured in such work, the masters are liable in the absence of contributory negligence, which question was for the jury. p. 534.</p> <p>11. Trial. — Instructions. — Misleading Jury. — An instruction which, though awkward, does not mislead the jury, is harmless, p. 535.</p> <p>12. Same. — Master and Servant. — Delegation of Authority. — Instructions Considered Together. — An instruction that if W. was defendants’ foreman in a certain room in the absence of the superintendent who placed the employes at the work, and that if W. acted with authority from defendants or with their knowledge or consent, the defendants are liable for his negligence, is not erroneous where other instructions told the jury that, to render defendants liable, the evidence must show that W. had authority from defendants to set plaintiff to work where he was injured, p. 535.</p> <p>13. Evidence. — Declarations of Masters’ Agent and Servant.— Where plaintiff was set to work outside of the scope of his employment by defendants’ agent, and received an injury in such work, a conversation between such agent and the plaintiff is admissible in an action for damages for such injury, p. 535.</p>

<p>Erom Superior Court of Marion County (66,724); Vinson Carter, Judge.</p> <p>Suit by Kate Harrington against Thomas Harrington. Erom a decree for plaintiff, defendant appeals.</p>

<p>Erom Johnson Circuit Court; W. J. Buckingham,, Judge.</p> <p>Petition by Lawrence E. Ritchey against Louise K. McKay and others. Erom a decree against petitioner, he appeals.</p>

<p>Erom Eloyd Circuit Court; W. G. Utz, Judge.</p> <p>Suit by Elizabeth R. Garrison and others against Theodore S. Day and others. Erom the decree rendered, Elizabeth R. Garrison appeals.</p>

<p>From Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Action by the Capital National Bank against Alfred O. Wilkerson as trustee in bankruptcy of the estate of James M. Key. Erom a judgment for defendant, plaintiff appeals.</p>

<p>Erom Howard Superior Court; B. F. Harness, Judge.</p> <p>Suit by Celiau Spitzer and others against Walter B. Wright and another. Erom a decree for defendants, plaintiffs appeal.</p>

<p>Erom Delaware Circuit Court; Joseph O. Lejfler, Judge.</p> <p>Suit by Orla Green as receiver of the Stillwater Valley Stone Company against John W. Macy. From a decree for defendant, plaintiff appeals.</p>

<p>Appeal and Error. — Jurisdiction.—Final Judgment. — Record.— The Appellate Court has no jurisdiction to determine an appeal unless from a final judgment; and the record on appeal must affirmatively show such final judgment.</p>

<p>1. Evidence. — Judicial Notice. — “F. O. B.” — Courts take judicial notice that “f. o. b.” means delivered “free on board” the car or other conveyance, p. 571.</p> <p>2. Sales. — Delivery. — Carriers. — Where defendants ordered from plaintiff in writing a computing scale to be shipped to them “f. o. b.,” addressed to them, and plaintiff delivered such scale to a common carrier, properly addressed, such delivery constituted a delivery to defendants, p. 571.</p> <p>3. Same.- — Executory Contracts of. — Breach. — Retention of Legal Title.- — Effect.—Where defendants, in writing, ordered from plaintiff a computing scale, such plaintiff to retain title until paid for, and such plaintiff delivered such scale according to contract, plaintiff is entitled to recover the full contract price, such retention of title being for plaintiff’s exclusive benefit, and payment of the price extinguishing plaintiff’s claim of title, p. 571.</p> <p>4. Same. — Contracts.—Consideration.—Where plaintiff contracts to sell defendants a computing scale, title to remain in plaintiff until paid for, and defendants to have the possession and use of same during time of payment, there is a consideration for the promise to pay the agreed price, p. 572.</p> <p>5. Pleading. — Complaint.—Sales.—Executory Contracts of.— Breach. — A complaint alleging that plaintiff delivered goods to defendants upon their written order for same, the title thereto to remain in plaintiff until paid for; that defendants refused to receive same and refused to pay the stipulated price therefor, and demanding the contract price, is good. p. 572.</p> <p>6. Appeal and Error. — Briefs.—Waiver.—Where appellants in their, brief fail to set out literally or substantially the motion for a new trial whose overruling is questioned, no question is presented, p. 572.</p>

<p>From Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Action by William G. Pierce against the Indianapolis Gas Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Eroru Superior Court of Marion County (66,234); James M. Leathers, Judge.</p> <p>Action by Edward L. Moore against tbe Brotherhood of Painters, Decorators & Paper-Hangers of America. From a judgment for plaintiff, defendant appeals.</p>

<p>From Monroe Circuit Court; W. H. Martin, Judge.</p> <p>Suit by tbe People’s Gas, Electric & Heating Company against John P. Harrell, as county treasurer of Monroe county, and others. From a decree for defendants, plaintiff appeals.</p>

<p>1. Mechanics’ Liens. — Contractors. — Bonds. — Sureties.—Materials Furnished by. — Where a contractor agreed for a gross sum to furnish the materials and erect defendants’ house, and the plaintiff sureties contracted to save such defendants harmless from any mechanics’ liens and any liability caused by such contractor’s default, such sureties can not enforce a mechanic’s lien for materials furnished by them to such contractor and used in such house, p. 598.</p> <p>2. Pleading. — Reply. — Contracts. — Consideration.—Sustaining Demurrer to Paragraph When Facts Provable under Another. —Where a paragraph of answer declared upon a written under-' taking by plaintiffs to save defendants harmless from any mechanics’ liens which might be filed against them, or other damages caused by a contractor’s failure to discharge his contract for the construction of a house, and such undertaking and the building contract set out in such answer showed the consideration, it was harmless error to sustain a demurrer to a paragraph of reply showing a want of consideration, a general denial already filed casting the burden of proving a consideration upon defendants, p. 599.</p>

<p>Erom Superior Court of Marion County (66,043) ; Vinson Garter, Judge.</p> <p>Suit by tbe Indianapolis Light & Bower Company against William Beck and another. Erom a decree for plaintiff, defendants appeal.</p>

From Warrick Circuit Court; Elbert M. Swan, Judge. Action by Henry F. Fulling, as trustee in bankruptcy of the estates of D. A. Bauman and another, against William T. West and another. From a judgment for plaintiff, defendants appeal.

<p>1. Trial. — Instructions.—Assault and Battery. — Conspiracy.— Civil. — Gravamen of Action. — Where a paragraph of complaint seeks damages for an assault and battery resulting from an alleged conspiracy to drive plaintiff out of town and to break up his business, an instruction that the gravamen of the material part of such paragraph is the charge of conspiracy is erroneous, plaintiff being entitled to a verdict upon proof of the assault and battery, p. 624.</p> <p>2. Same. — Instructions.—Invasion of Province of Jury. — Conspiracy. — Civil.—Assault and Battery. — Failure of Defendants to Visit Plaintiff. — The failure of defendants to visit plaintiff after his injuries, all being residents of a small village, is competent evidence tending to sustain an action by plaintiff against defendants for damages for an assault and battery resulting from an alleged conspiracy to drive plaintiff from home and to break up his business, and an instruction that such failure can not be thus considered is erroneous as invading the province of the jury. p. 624.</p> <p>3. Assault and Battery. — Offensiveness.—Justification.—It is no justification for an assault and battery upon plaintiff that he was offensive to part or all of the neighbors or citizens of the community, the law furnishing a sufficient redress, p. 626.</p> <p>4. Same. — Conspiracy.—Damages.—The gist of the civil action for an assault and battery resulting from a conspiracy is the injury done to the plaintiff, and a conspiracy without injury to plaintiff is not actionable, p. 627.</p> <p>5. Same. — Conspiracy.—Persons Liable. — Where plaintiff shows an assault and battery resulting from a conspiracy against him, he is entitled to a judgment against all of the conspirators whether present or not at the commission of such assault and battery, p. 627.</p>

<p>Erom White Circuit Court; Truman F. Palmer, Judge.</p> <p>Action by J. Frank Bending against John R. McAfee. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Tenancy in Common. — Exclusion of Cotenant. — Rents and Profits. — Division of. — A cotenant occupying lands held by him and others as tenants in common is not liable for rents or for the use and occupation of such lands unless he receives rents from a third party or excludes his cotenants from possession, p. 638.</p> <p>2. Same. — Exclusion of Cotenant. — Evidence.—Exclusion of a cotenant may be shown by such acts as constructively amount to a denial of such cotenant’s right to possession, p. 638.</p> <p>3. Evidence. — Principal and Agent. — Attorney and Client.— Authority. — In an action by cotenants against a coten'ant for rent, evidence by such cotenants’ attorney that they had instructed him to make a demand upon such cotenant for possession of such land is not hearsay and is admissible before or after proof of a demand made by such attorney, p. 639.</p> <p>4. Same. — Compromise and Settlement. — Limits of Rule. — The rule that evidence of an attempted compromise is not admissible is limited to the action on trial, declarations in the compromise of another suit being competent if otherwise admissible. p. 639.</p> <p>5. Tenancy in Common. — Exclusion of Cotenant. — Rental Value. — A complaint by ousted cotenants against a cotenant in possession for rent of the lands held as tenants in common, alleging that such cotenant excluded them from possession and appropriated the crops and the land, admits evidence of the rental value of such land. p. 639.</p> <p>6. Same. — Exclusion of Cotenant. — Value of Crops. — Negligence of Occupying Tenant. — The occupying cotenant is only liable to account to the ousted cotenants for their- shares of the crops unless his negligence or wilful misconduct has contributed to the injury or destruction of such crops, p. 639.</p>

<p>1. Words and Phrases. — "Net Profits.” — The “net profits” of a business is what remains after the expenses thereof have been deducted from its receipts, p. 646.</p> <p>2. Contracts. — Construction.—Rules.—Contracts are construed and enforced by the courts according to (1) the meaning of the parties as indicated by the language used therein, (2) the construction given thereto, in cases of doubt, by the conduct of the parties and (3) the clear and unambiguous provisions thereof, regardless of the conduct of the parties, p. 647.</p> <p>3. Same. — Construction.—Conduct of Parties. — "Net Profits.”— Where plaintiff contracted to furnish the horses and wagons for carrying on a business, and defendant agreed to pay the cost of “shoeing, feeding and caring for” such horses and repairing such wagons, and the defendant agreed to pay plaintiff for his services and the use of his horses and wagons one-half of the “net profits” of such business, such profits to be determined by deducting all expense and losses in the conduct of such business, the expenses of “shoeing, feeding and caring for” such horses and repairing such wagons were a part of the expenses in the conduct of such business and should be deducted from the receipts in estimating the “net profits,” the parties by their acts and conduct having treated such expenses as a part of the expenses of the conduct of such business, p. 647.</p> <p>4. Appeal and Error. — Rendering Final Judgment. — Master’s Findings. — Where the master’s findings cover the whole facts involved and no useful purpose will be subserved by ordering a new trial, the Appellate Court will render final judgment, p. 650.</p>

<p>From Huntington Circuit Court; James G. Branyan, J ndge.</p> <p>Action by John Erb against the Wabash Railroad Company. From a judgment on a verdict for plaintiff for $3,000, defendant appeals.</p>

<p>1. Appeal and Error. — Joint Exceptions. — Where the trial court “sustains the defendant’s demurrer to the first and second para- • graphs of plaintiff’s reply to defendant’s second paragraph of answer, to which ruling the plaintiff excepts,” such exception is joint, and, unless both paragraphs are bad, no available error is presented, p. 666.</p> <p>2. Pleading. — Reply.—Contracts.—Avoidance.—Infants.—Where defendant took an alleged release of a cause of action from five persons, three of whom were infants, such alleged release being executed by two only of such persons, a reply showing such facts and also a tender to defendant of the money so paid, is bad, no rescission, ground of rescission or reason for restoring the statu quo being shown. Roby, J., dissenting, p. 666.</p> <p>3. Contracts. — Several.—Consideration.—A contract by plaintiff and four others with defendant, for an undivided consideration, to release their claim for damages against defendant, is several, and bars an action by one of such parties for individual damages. Roby, J., dissenting, p. 667.</p> <p>4. Same. — One Party Relying Upon the Other. — Failure to Read. —Ordinarily where a party executes a contract, relying upon declarations of the other party as to the contents thereof, he has no right, in the absence of a trust relationship, to a rescission for fraud. Roby, J., dissenting, p. 667.</p>

<p>Erom Hamilton Circuit Court; Ira TV. Christian, Judge.</p> <p>Suit by Marion Brooks as guardian of Elizabeth Pilkerton, a person of unsound mind, against Simeon Morgan. Erom a decree for defendant, plaintiff appeals.</p>

<p>1. Contracts. — Conditions Precedent. — Signatures.—Where the parties make the reduction of an agreement to writing and its signature a condition precedent, it will not constitute a binding obligation until such conditions are fulfilled, but where they assent to the terms, their intention to embody such contract in writing does not prevent the taking effect of such agreement at once. p. 683.</p> <p>2. Pleading. — Complaint. — Contracts. — Pa/rol. — Evidence. — Where a pleading fails to allege that a contract therein mentioned was in writing, it will be presumed that it was oral; and a written contract is not evidence of an oral one. p. 683.</p> <p>3. Contracts. — Execution.—Draft.—While a writing, signed by one party and assented to orally by the other party,'constitutes a written contract, a written draft of a contract, signed by neither party, does not constitute a written contract, p. 683.</p> <p>4. Evidence. — Conversations. — Right to Entire Language.— Where a part of a conversation is introduced in evidence by plaintiff, defendant has the right to introduce the remainder, p. 684.</p> <p>5. Same. — Admission of. — Objections. — Different Reasons on Appeal. — Where objections made to the introduction of evidence at the trial were overruled, different reasons can not be assigned on appeal, p. 684.</p> <p>6. Same. — Contracts.—Custom of Business. — Where an action is brought to recover for the breach of a specific contract, including commissions on sales, evidence of the custom of defendant, in excluding commissions in contracts with others, is inadmissible. p. 684.</p>

<p>From Marion Circuit Court (C. D. 7,759, 7,760); Austin F. Denny, Special Judge.</p> <p>Actions by International Building & Loan Association and International Building & Loan Association No. 2 against' the Indiana Trust Company as executor of tbe will of Norman S. Byram, deceased. From judgments for plaintiffs, defendant appeals. (For decision in No. 5,233, appealed to Supreme Court under subd. 3, §1337j Burns 1901, Acts 1901, p. 565, §10, see 165 Ind. 597).</p>

<p>Erom Fountain Gircuit Oourt; Joseph M. Babb, Judge.</p> <p>Suit by Ephraim L. Mann and another against Frederick B. Gardner and another. Erom a decree for plaintiffs, defendants appeal.</p>

<p>From Wayne Circuit Court; H.fC. Fox, Judge.</p> <p>Prosecution by the State against James Charles. From a judgment of acquittal, the State appeals.</p>

Prom Superior Court of Marion County (11,527) ; Henry Clay Allen, Judge. Suit by Ruth M. Bosart, administratrix of the estate of Timothy L. Bosart, deceased, against Charles H. McCarty and others. From a decree for plaintiff, defendants appeal.

<p>Prom Lake Circuit Court; Virgil S. Reiter, Special Judge.</p> <p>Suit by Eunice Nason and others against Iredell L. Luther and others. Prom a decree for plaintiffs, defendants appeal.</p>

<p>From Huntington Circuit Court; James C. Branyan, Judge.</p> <p>Suit by the Anderson Iron & Manufacturing Works against Samuel Griffiths. From a decree for plaintiff, defendant appeals.</p>

<p>From Laporte Superior Court; Harry B. Tuthill, Judge.</p> <p>Suits against the Pere Marquette Railroad Company. From decrees againsfr defendant it appeals.</p>

<p>From Laporte Superior Court; Harry B. Tuthill, Judge.</p> <p>Suits against the Pere Marquette Railroad Company. From decrees against defendant it appeals.</p>

<p>From Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Action by Asa P. Rayle against the Indianapolis Gas Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>From Morgan Circuit Court; Joseph W. Williams, Judge pro tern.</p> <p>Suit by Jacob M. Neely against the Board of Commissioners of the County of Morgan. From a decree for plaintiff, defendant appeals.</p>