Volume 42 — Indiana Appellate Court Reports

<p>From Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Action by Louisa F. Bell and others against Thomas F. Randolph and another. From a judgment for defendants, plaintiffs appeal..</p>

<p>Prom Sullivan Circuit Court; Charles E. Henderson, Judge.</p> <p>Suit by Ella A. Pritchett against the Board of Commissioners of the County of Knox and others. Prom a decree for defendants, plaintiff: appeals.</p>

<p>New Tbial. — Recovery too Large. — Accounts. — Limitation of Actions. — In an action on an account, wherein all but $1,514.07 was barred by the statute of limitations, and there was a verdict for $1,764.28, a new trial should be granted, or the case affirmed upon the filing of a remittitur for the excess.</p>

<p>Prom Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Suit by John Ramsey and another against W. McMillan & Son (a corporation). Prom a decree for defendant, plaintiffs appeal.</p>

<p>From Putnam Circuit Court; Presley O. ColUver, Judge.</p> <p>Suit by Helen R. Hathaway and another against John T. • Edwards, as County Treasurer of Putnam County. From a decree for defendant, plaintiffs appeal.</p>

<p>From Hamilton. Circuit Court; L. $. Baldwin, Special Judge.</p> <p>Action by Burney Moore against the Lake Erie & Western Railroad Company. From a judgment on a verdict for plaintiff for $1,000, defendant appeals.</p>

<p>Prom Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Benjamin J. Gifford against John Bingham. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Evidence. — Oral, to Establish Contents of Writing. — When Admissible. — Oral evidence of tlie contents of a writing, where it goes to the proof of the issue, is inadmissible except upon proof that the writing cannot be produced, or that it is in the hands of the adverse party and he has failed, upon due notice, to produce same. p. 40.</p> <p>2. Same. — Oral, to Establish Contents of Writing. — Harmless Error. — Appeal.—Where a witness was improperly permitted to testify to the contents of a writing, such error cannot be held harmless on the ground that witnesses for the opposite party also testified thereto, where the record fails to show that witnesses so testified, p. 47.</p>

From Hamilton Circuit Court; Ira W. Christian, Judge. Action by Joel D. Bray, as administrator of the estate of' John Sturdevant, deceased, against the Lake Erie Western Eailroad Company. From a judgment on a verdict for plaintiff for $1,000, defendant appeals.

<p>1. Appeal. — Assignment of Errors. — Parties.—-Tlie assignment of errors constitutes the complaint on appeal; and where a stranger to the record below is made a party to such assignment of errors, his right so to be must clearly be made to appear in such assignment, p. 50.</p> <p>2. Pleading. — Complaint.—Parties.-—Fiduciary Capacity. — A complaint against a fiduciary must clearly show, by the proper averments, that the action is so brought, p. 50.</p> <p>3. Appeal. — Assignment of Errors. — Parties.—Capacity.—Descriplio Personae. — An assignment of errors making “Ralph McConnell, administrator of the estate of David J. McConnell, deceased,” a. party appellee, is insufficient, where David J. McConnell was a party below and there is no showing why he is not made a party on appeal, p. 50.</p> <p>4. Same. — Judgment.—Death.—Survival of Actions. — Where death occurs after judgment, but before appeal, the proper representative may be substituted on appeal, where the cause of action is one that survives in favor of, or against such representative, p. 50.</p> <p>5. Appeal. — Parties.—Death.—Where a party dies after judgment in his favor, the adverse party must either have an order of substitution of his representative in the court below, or present the facts on appeal showing the representative’s right as a party, p. 57.</p> <p>6. Same. — Parties.—Omissions.—Where one of the parties in whose favor a judgment was rendered is not made a party on appeal, such appeal will be dismissed, p. 57.</p>

<p>1. New Triad. — As of Right. — Ejectment.—Quieting Title. — Connecting with Other Causes of Action. — A new trial as of right cannot be demanded in eases of ejectment or quieting title, where the complaint contains other paragraphs demanding different relief, and where a decision was made as to the whole complaint, p. 58.</p> <p>2. Pdeading. — Complaint—Quieting Titlel- — Redemption.—Equity.— A suit to quiet title and to redeem is an equitable proceeding and is governed by equitable principles, p. 63.</p> <p>3. Same. — Complaint.—Paragraph Containing Separate Causes of Action.- — Where a paragraph of complaint contains facts showing separate causes of action and a judgment is rendered thereon, the court on appeal will not disregard such facts and hold that but ■ one cause of action was alleged, p. 04.</p> <p>4. New Tbial. — As of Right. — Quieting Title. — Redemption.—A new trial as of right cannot be demanded in a suit to quiet title, where facts are set out entitling plaintiff to a redemption, and where the decree gives such relief along with the quieting of his title. ' p. 64.</p> <p>5. Notice. — Lis Pendens. — Real Property. — A lis-pendens notice affecting real property is equivalent to actual notice, p. 05.</p> <p>6. Judicial Sales. — Mortgages.—Redemption.—'Insane Persons.— The equitable right of insane persons to redeem from judicial sales may be enforced by a suit for such purpose, p. 05.</p> <p>7. New Trial. — Suits to Redeem. — A new trial as of right is not demandable in suits to redeem, p. 05.</p>

<p>Prom Porter Circuit Court; Charles H. Truesdell, Judge.</p> <p>Suit by the Hammond, Whiting & East Chicago Electric Railway Company against the Michigan Central Railroad Company and others. Prom a decree for plaintiff, defendants appeal.</p>

<p>Prom Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by the Citizens Savings Bank of Columbus, Ohio, against Everett Halstead and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Action by Robert R. Greenlee against the New York Life Insurance Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Complaint.—Sufficiency to Sustain Order of Railroad Commission. — -A petition alleging that defendant railroad companies are now and have been charging plaintiffs and other manufacturers of fertilizers a high, excessive and unreasonable rate for transportation of commercial fertilizer, and praying for a reduction of such rate, is sufficient to sustain an order of the railroad commission reducing such rate. p. 89.</p> <p>2. Railroad Commission. — Rates.—Fertilizer.—Raw Materials.— The railroad commission’s order making the same freight rate for phosphate shipped in bulk and fertilizer shipped in bags is justifiable, where the only difference between the phosphate and the fertilizer was the addition of cinders to such phosphate, thus producing fertilizer, p. 89.</p>

<p>Prom Eailroad Commission of Indiana; Union B. Hunt, Chairman, Charles V. McAdams and William J. Wood, Commissioners.</p> <p>Appeal from an order of the Eailroad Commission of Indiana, by the Southern Eailway Company.</p>

<p>Prom Grant Circuit Court; E. J. Paulas, Judge.</p> <p>Action by Eliza J. Brelsford against Mary E. Aldridge and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>1. Deeds. — Descriptions.—Mistakes.—Evidence.—Circumstantial. — Mistakes in tlie description in a deed may be established by either direct or circumstantial evidence, p. 114.</p> <p>2. Same. — Descriptions. — Mistakes. — -Where the grantor and grantee measured the lands to be conveyed, marked the lines thereof and built a partition fence on the dividing line, the grantee occupying the land so set apart, the fact that the description in the deed did not correctly designate such land does not vitiate such deed; and such deed may be corrected in a suit therefor, p. 114.</p> <p>3. Notice. — Possession.—Deeds.—Defective Descriptions. — Actual possession of real estate held under a deed whose description is defective is notice to the world of the occupant’s rights, p. 114.</p>

<p>1. Adverse Possession. — Surveys.—Title.—Where adjoining landowners occupy farms which had been separated by a partition fence for forty years, each farmer having treated such fence as upon the true dividing line, and by a survey, requested by both parties, the line described in the deeds was found to be different, the title of the parties to the lands extending to the partition fence had become vested by adverse possession, and such survey did not affect same. p. 116.</p> <p>2. Same. — Title.—Common Grantors. — Special Windings. — Where the complaint and the special findings fail to show that the land in dispute was ever conveyed by appellant to appellee or any grantor of appellee, a misapprehension existing as to the true boundary line, the principle of adverse, possession does not apply, and the appellee cannot claim title by reason of the fact that appellant was his remote grantor of adjoining land, erroneously supposed by appellee to contain the land in dispute, p. 120.</p> <p>8. Same. — Title.—Surveys.—Appeal.-—A survey, unappealed from, has no effect upon title gained by adverse possession, p. 121.</p>

<p>1. Appeal. — Briefs.—Waiver.—Points not discussed are waived. p. 122.</p> <p>2. Master and Servant. — Shipper Loading Cars for Railroad Company. — Where the servants of one employer are performing service which another employer is under the duty of performing, such servants will be considered as being in the employ of the latter. p. 122.</p> <p>3. Carriers. — Stock.—Duty of Loading. — Interurban Railroads.— In the absence of a contract or special circumstances relieving the carrier, an interurban railroad company is charged with the duty of loading live stock to be shipped over its road! p. 123.</p> <p>4. Same. — Stock.—Loading.—Interurban Railroads. — Where an interurban railroad company’s agent solicited the plaintiff to ship his mare over its road, and plaintiff’s servants assisted in the loading of such mare under the directions of , such agent, such agent agreeing, upon a protest by such servants as to the safety of the appliances used, to be responsible in case of an accident, such company is liable where injury resulted from the use of such applicanees. p. 123.</p> <p>5. Evidence. — Assessment Lists. — Ownership.—Assessment lists are admissible in evidence as tending to show ownership, p. 124.</p> <p>6. Same. — Assessment Lists. — Value.—Assessment lists are admissible in evidence as tending to show the value of the property listed. Cincinnati, etc., R. Co. v. McDougal (1886), 108 Ind. 179, and German Mut. Ins. Co. v. Niewedde (1895), 11 Ind. App. 624, distinguished. p. 125.</p>

Prom Marion Circuit Court (14,357); W. W. Thornton, Judge pro tern. Action by Katherine D. Aerea against the Cincinnati, Hamilton & Dayton Railway Company and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment on a verdict for plaintiff for $6,000, defendants appeal. (See 40 Ind. App. 150.)

Prom White Circuit Court; John H. Gould, Special Judge. Cross-complaint by William D. Owen against Hiram E. Rose. Prom a decree for cross-complainant, defendant appeals. (Motion for an order for publication denied; see 37 Ind. App. 125.)

<p>1. Injunction. — Taxation. — License. — Transient Merchants. — Injunction does not lie to restrain the collection of taxes where part of the amount is justly owing; and where the plaintiff’s property was assessed for a license fee as a transient merchant, his property cannot be sold for another purpose, p. 148.</p> <p>2. Licenses. — Transient Merchants. — Under §8235 Burns 1908, Acts 1901, p. 466, §1, it is unlawful for a transient merchant to transact business without a license so to do. p. 148.</p> <p>3. Woeds and Phrases. — “Transient Merchants.” — A “transient merchant” is an individual, partnership or corporation that engages, for a definite and limited time, and at a fixed place, in the exhibition and sale of goods. p.-149.</p> <p>4. Licenses. — Transient Merchants. — A company which rents a room for the storage of its stoves and which sells such stoves only by peddling them is not a transient merchant, p. 150.</p> <p>5. I-Iawkers and Peddlers. — Licenses.—Transient Merchants —A peddler cannot be compelled to pay a license assessed against him as a transient merchant, p. 150.</p> <p>6. Taxation. — Licenses.—Btirden of Proof. — The burden of proving that a transient merchant’s license fee was properly chargeable to the plaintiff is upon the officers assessing such tax. p. 150.</p>

<p>1. Appeal. — Demurrers.—Exceptions.—Joint or Several. — Where defendants filed separate demurrers to the complaint, the entry on the court’s ruling being: “Come now the parties herein, and the demurrer filed by the defendants herein is sustained, * * * to which the plaintiffs except,” each plaintiff may assign error thereon, on appeal, the courts being less technical than formerly on such questions, p. 152.</p> <p>2. Pabties. — Multiplicity.—Joint Interest. — Drainage Assessments. —Validity.—The owner of assessed lands within the limits of a town may sue for himself and on behalf of other assessed owners, as well as the town itself, to restrain the collection of an assessment for the repair of an established drain extending into such town, a multiplicity of suits being thereby avoided, p. 153.</p> <p>3. Drains. — Extending Into Toums. — Repairs. — Assessments. — Where a public drain extends into the corporate limits of a town, neither the owners of lands within the town nor the town itself can be assessed under §5631 Burns 1905; Acts 1905, p. 456, §10, providing for the repair of public drains, for the cost of repairs to such drain, where the repairs were made to that portion of the drain lying wholly without such town. p. 155.</p> <p>4. Injunction. — Taxation.—Void.—Void taxes may be enjoined, p. 157.</p>

<p>From Orange Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Action by the M. J. Carnahan Company against IT. Edward Ochs and others. From a judgment for plaintiff, defendants appeal.</p>

<p>From Elkhart Circuit Court; James 8. Dodge, Judge.</p> <p>Suit by Alpheus A. Zimmerman and another against Jeannette G. Johnson and others. From a decree for plaintiffs, defendants appeal.</p>

<p>1. Pleading. — Complaint. — Paragraphs.—Demurrers.—Trial and Findings upon One Paragraph. — Where the trial is had and finding made upon one paragraph of a complaint, the erroneous overruling of a demurrer to the other paragraph is- harmless. p. 182.</p> <p>2. Railroads. — Highways.—Pedestrians.—Railroad companies in using streets or highways must exercise reasonable care to avoid injury to pedestrians, pp. 184,191.</p> <p>3. Same. — Highways.—Pedestrians.—Rights.—Railroad companies and pedestrians have equal rights on the streets and highways, but owing to the size and weight of cars used and the fact that such cars run upon a fixed track, pedestrians must yield such way for the passage of cars. p. 184.</p> <p>4. Same. — Municipal Corporations. — Dedication of Lands. — Land cannot be dedicated to an individual or private corporation, but must 'be made to the public, p. 186.</p> <p>5. Municipal Corporations. — Streets. — Dedication. — Deeds. — Where a landowner platted a tract of land into lots, designating the streets thereon and naming one “Railroad” street, and he recorded such plat and sold the lots, the fact that a railroad company built its tracks upon “Railroad” street did not give it any exclusive rights thereto, pp. 186,197.</p> <p>6. Same. — Streets.—Dedication.—Acceptance.—Where a landowner plats a tract of land, designates streets thereon, and records such plat, the use of such streets by pedestrians only, constitutes an acceptance of such grant sufficient to constitute a dedication thereof for public use. p. 186.</p> <p>7. Railroads. — Use of Streets. — Prescription.—The use of a street for over fifty years by a steam railroad company gives it a prescriptive right as against the owners of the fee, and a franchise as against the municipality, p. 187.</p> <p>8. Railboads. — Use of Streets. — Exclusive Rights. — The use of a street by a railroad company for any length of time does not vest in it the exclusive right to use such street, p. 188.</p> <p>9. Municipal Coepobations. — Grant of Exclusive Right in Streets. —Municipalities have no right to grant or release to others the exclusive right to use the streets; and such grants or releases are void. p. 189.</p> <p>10. Same. — Ordinances.—Exclusive Rights. — Evidence.—A municipality’s ordinance releasing its right in a street and reciting that such company had for fifty years exercised exclusive control thereof, and that such municipality had never used such street nor claimed any rights therein, is of no legal effect, such recitals constituting no evidence of the facts therein enumerated, and such an attempted release of the municipality’s rights being void, p. 190.</p> <p>11. Railboads. — Streets.—Building Platforms in. — Rights of Pedestrians. — A railroad company which, under an ordinance purporting to release to it the exclusive right to the use of a street, builds a platform therein, has no right to prevent the use of such platform by pedestrians, p. 190.</p> <p>12. Railboads. — Matt Clerics Tlwowing off Mail Sachs. — Allegations. — Evidence.—Where a complaint alleges that it was the custom for defendant railroad company’s mail clerk to throw off the mail sacks west of the company’s station, and that it was the custom of such company to permit such clerks to discharge such sacks upon the sidewalk or platform at a time and place which subjected persons upon such sidewalk or platform to great danger, evidence showing that there was a custom of throwing off sacks east of the depot, and that pedestrians used the part of the platform east as much as that part west of the depot, and that the injury occurred west of the depot, sustains the allegations of the complaint, p. 191.</p> <p>13. Same. — LiaHUty for Acts of Mail Clerics. — Railroad companies are liable for the dangerous practices of mail clerks, where such companies suffer such clerks to indulge therein, p. 192.</p> <p>14. Same. — Custom of Mail Clerics. — Notice.—The fact that for two years it was the custom of the mail clerks on defendant railroad company’s trains to discharge, from moving trains, mail sacks upon the platform, sufficiently shows that the company had notice thereof, p. 194.</p> <p>15. Evidence. — Improvement of Streets. — Railroads.—Discharging Mail Sachs. — Pedestrians.—In an action by a pedestrian for-injuries inflicted by the mail clerk on defendant railroad company’s train in discharging a mail sack therefrom, the admission of evidence that the city improved the street to the rear of the depot near which such pedestrian was walking, even if erroneous was not sufficiently harmful to justify a reversal of the ease, p. 194.</p> <p>16. Tbial. — Instructions.—Damages.—Loss of Time. — An instruction that the jury could take into consideration the plaintiff’s loss of time in estimating his damages, is not improper, where the complaint alleged that plaintiff was rendered unconscious for three days, and disabled from doing a full day’s work on account of such injuries, p. 194.</p> <p>17. Pleading. — Complaint. — Amendments. — Appeal.—Where the plaintiff proved damages because of loss of time, the complaint making no charge of such damage, such complaint will be deemed ■amended on appeal so as to call for such relief, p. 195.</p> <p>18. Railboads. — Discharging Mail Sacie Against Pedestrian. — Negligence. — Contributory.—A pedestrian walking along a railroad station platform struck by the discharge of a mail sack from a moving train is not guilty of contributory negligence, where he was not aware that such sack would be discharged at such place, p. 195.</p> <p>19. Evidence. — Presumed True, When TJncontradicted. — Railroads. —Discharging Mail Sacies. — Where a drayman testified that it was the custom of the mail clerk on defendant railroad company’s train to discharge the mail sacks at a certain place, and such testimony is not contradicted, it may be assumed as true. p. 196.</p>

<p>From St. Joseph Circuit Court; Walter A. Funic, Judge.</p> <p>Action by Harry E. Talbott and another against the Board of Commissioners of the County of St. Joseph. From a judgment for defendant, plaintiffs appeal.</p>

<p>Prom Lake Superior Court; H. B. Tuihill, Judge.</p> <p>Action by John R. Hoffman against William C. McEwen and others. From a judgment against McEwen, he appeals.</p>

<p>1. Mechanics’ Liens. — Accrual of Right to. — When work is completed upon, or materials furnished for, a building, a right to a' mechanic’s lien accrues upon the filing of a proper notice, p. 209.</p> <p>2. Payment. — Bills and Notes. — Evidence.—The execution of a bankable note to the creditor, or, at his request, to a third person, for a preexisting debt constitutes prima facie evidence of the payment of such debt. p. 209.</p> <p>3. Appeal. — Weighing Evidence. — Bills and Notes. — Payment.— Whether the prima facie evidence shown by the execution of a bankable note for a preexisting debt has been rebutted, is a question for the trial court whose decision thereon,' where the evidence conflicts, will not be disturbed on appeal, p. 209.</p> <p>4. Evidence. — Payment by Note.- — Rebuttal.—Loss of Collateral Security. — The prima facie" evidence of payment shown by the execution of a bankable note for a preexisting debt is rebutted by proof that the acceptance thereof as payment would result in ' the loss of collateral security or other substantial benefit, pp. 209,210. _ '</p> <p>5. Payment. — Notes.-—Discharge of Liens. — The taking of certain unsecured, bankable notes by a creditor, one of which notes was made payable to a third person, does not constitute payment of the preexisting debt, where the effect is that the creditor’s right to a mechanic’s lien for such debt will be lost. p. 210.</p> <p>6. Pleadino. ■— Complaint. — Mechanics’ Liens. — Foreclosure.—Contracts. — In a suit to foreclose a mechanic’s lien it is not necessary . to show whether the contract for the labor of material furnished was oral or in writing, since the suit is not based upon such contract. p. 210.</p> <p>7. Mechanics’ Liens. — Agency.—Evidence.—Though a contract for the construction of a furnace for a house was made by a person in possession, the lienor may show that such person was an undisclosed principal, thus foreclosing the lien as to such principal. p. 211.</p> <p>S. Same. — Basis for. — Mechanics’ liens are based upon statute and not upon contract, p. 212.</p> <p>9. Same. — Personal Liability. — A mechanic’s lien may be enforced against the property benefited though there be no personal liability. p. 212.</p> <p>10. Evidence. — Capacity of Similar Furnaces to Supply Beat. — In a suit to foreclose a mechanic’s lien for the installing of a furnace in a house, the defense being that such furnace did not supply the necessary and warranted amount of heat, evidence that similar furnaces produced such amount is admissible to show the capacity of such furnace to furnish heat p. 212.</p> <p>11. Evidence. — Whether Witness Had Written Letter Upon Specified Subject.- — -Appeal.—The admission of testimony of an alleged agent that she had written a letter to her principal “about having a furnace put in” does not constitute reversible error, p. 212.</p> <p>12. Same. — Attorney’s Fee. — Mechanics’ Liens. — Notes—Appeal. —The admission of evidence of a reasonable attorney’s fee in a suit to foreclose a mechanic’s lien, and an action uxion a note containing no provision for attorneys’ fees is not reversible error, where no objection is made on appeal, as to the amount of such fee. p. 213.</p>

<p>From Laporte Superior Court; Charles R. Truesdell, Special Judge.</p> <p>Suit by the Warren-Scharf Asphalt Paving Company against Philip Zorn. From a decree for plaintiff,-defendant appeals.</p>

From Floyd Circuit Court; William C. Utz, Judge. Action by Maggie Minor, as administratrix of the estate of Wesley Minor, deceased, against the Standard Cement Company. From a judgment on a verdict for plaintiff for $5,000, defendant appeals.

<p>1. ‘ Appeal. — Assignments of Errors. — Demurrer to Pwragrwph.— Subsequent Amendment. — A demurrer to a paragraph of complaint presents no question on appeal, where such paragraph was subsequently amended, p. 233.</p> <p>2. Same. — Assignments of Errors. — Complaint.—Initial Attaolc on Appeal. — A complaint consisting of several paragraphs will be held sufficient, when attacked for the first time on appeal, if one paragraph is good. p. 234.</p> <p>3. Same. — Complaint.—Theory.—Change of, on Appeal — Where a complaint appeared to be based upon the provisions of the mining law, and the trial proceeded upon such theory, the plaintiff will not be permitted to insist, on appeal, that it was based upon the common law. p. 235.</p> <p>4. Pleading. — Complaint.—Master and Servant. — Statutory Liability. — Intendment.—A complaint based upon a statutory liability must allege facts bringing the plaintiff within the statutory-terms ; and facts omitted from the complaint cannot be supplied by intendment, p.237.</p> <p>5. Pleading. — Complaint. — Master and Servant. — Mimes. — Servants Employed. — In an action by a servant against a coal mining company for personal injuries sustained because of the company’s violation of the mining act of 1905 (Acts 1905, p. 65, §12, §8580 Burns 1908), the complaint must affirmatively show that ten pr more men were employed therein (§8590 Burns 1908, Acts 1905, p. 65, §20). p.237.</p> <p>6. Same. — Complaint.—Master and Servant. — Minima Act. — Practicability of Propping Roof. — In an action by a servant against a coal mining company because of injuries sustained by the falling of slate from the roof of a passageway, the complaint must show that it was practicable to prop the roof of such way. p. 237.</p> <p>7. Same. — Complaint.—Defective Roof of Coal Mime. — Notice.—A complaint by a servant against a coal mining company because of its failure to prop the loose overhanging slate, and plaintiff’s injury therefrom, alleging that such defective condition was known to the defendant, sufficiently alleges both actual and constructive knowledge, p. 238.</p> <p>8. Same. — Complaint.—Master and Servant. — Notice of Defects. — ■ Actual. — Constructive.—An allegation of knowledge of defects, embraces both actual and constructive knowledge, p. 239.</p> <p>9. Same. — Complaint.—Sufficiency.—Aider by Evidence. — A judgment based upon a defective complaint will be reversed, on appeal, regardless of the question whether the omitted fact was or was not proved on the trial, p. 239.</p>

<p>1. Appeal. — Briefs—Waiver.—Alleged errors not discussed are waived, p. 242.</p> <p>2. Same. — Weighing Evidence. — Conditional Affirmance. — Where the evidence most favorable to the plaintiff in a case for damages for breach of contract does not sustain the full amount of the judgment rendered, the Appellate Court will reverse such case or affirm it conditionally, p. 242.</p> <p>3. Contracts. — Breach.—Damages.—Principal and Agent. — Where defendant refused to deliver 87 tons of fertilizer contracted to its agent, on which such agent sustained a certain loss per ton, he is not entitled to damages for loss on the full amount, where he secured 16 tons from another source, making the same profit thereon as if . obtained from defendant, p-. 242.</p> <p>4. Same. — Refusal to Perform. — Demand.—-Where defendant notified plaintiff that it would not perform its contract, -a demand by him for performance was not necessary, p. 243.</p> <p>5. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 243.</p>

Prom Jay Circuit Court; John F. LaFollette, Judge. Action by the State of Indiana, on the relation of the Board of Commissioners of the County of Jay, against Truman O. Boyd and others. Prom a judgment for plaintiff, defendants appeal.

<p>1. Appeal. — Transcript.—Seal.—An appeal will not be dismissed because the authenticating clerk’s seal was poorly indented, p. 253.</p> <p>2. Same. — Precipe.—Clerk’s Certificate. — Where a precipe calls for a “complete transcript” of the record, including the “original bill of exceptions containing the evidence,” the attesting clerk’s certificate to a transcript, showing that such transcript “contains full, true and correct copies, or the originals, of all papers and entries in such cause required by” such precipe, is sufficient, p. 253.</p> <p>3. Same. — Several Demurrer. — Exceptions.—An entry to a ruling upon a separate demurrer to each paragraph of a complaint, stating that “the court overrules the demurrer to each paragraph of the amended complaint, to which ruling of the court the defendant at the time excepts as to each,” will be considered as a separate exception, p. 254.</p> <p>4. Pleading. — Complaint.—Master and Servamt. — Unsafe Place.— Explosions of Coal Dust. — A complaint alleging that defendant negligently allowed coal dust to accumulate in a trench and pit in its factory, that plaintiff had no notice thereof, that defendant did have such notice, that a fire started in such coal dust in the conveyor at the bottom of one end of such trench, which fire plaintiff attempted to extinguish, and that such fire ignited the coal dust in such trench, thereby injuring plaintiff, fails to state a cause of action, p. 254.</p> <p>5.. Master and Servant. — Line of Duty. — Saving Employer’s Property. — An employe who temporarily leaves his accustomed work in order to prevent the destruction of his master’s property is not acting outside, of the scope of his duty, it being the implied duty of an employe to exercise ordinary care for the preservation of the master’s property, pp. 259, 260.</p> <p>’6. Master and Servant. — Assumption of Risk. — At the common law the servant assumes all open and apparent risks of the service, whether necessarily incident to the service or otherwise, p. 259.</p> <p>7. Pleading.' — Complaint.—Master and Servant. — Duty.—Eow Alleged. — A complaint by a servant against his master because of injuries received- must allege facts showing (1) a duty by the master to protect the servant, (2) a failure to perform such duty, and (3) a proximately'resulting injury. p. 260.</p> <p>8. Master and Servant. — Safe Place. — Appliances.—Inspection.— The master owes a duty to .the servant to use reasonable care to provide for the servant a safe place in which to work, safe appliances with which to work, to keep such appliances in repair, and to make reasonably frequent inspections, p. 260.</p> <p>9. Same. — Servant’s Duty. — Where the master has performed his duty in furnishing to the servant safe appliances, he is not liable for injuries sustained by such servant in the use thereof, p. 260.</p> <p>10: Same. — Safe Place. — Dangers Arising from Ordinary "Work.— The master is not liable because of dangers arising from the use of proper appliances furnished, where he provides against probable and possible dangers that may arise, and provides for the servants the means of protecting themselves, p. 261.</p> <p>11. Same. — Fellow Servants. — Test.—Whether a corporation is liable to a servant injured by reason of sortie act which has not been performed is determined by ascertaining whether it is the duty of the officers of such corporation, or of some other servant, to perform such omitted act. p. 262.</p> <p>12. Pleading. — Complaint.—Master and Servant. — Duties.—A complaint for damages because of injuries received by plaintiff from an explosion of coal gas and coal dust in the factory wherein he was ■ working, should show that it was neither his nor a fellow servant’s duty to remove such dust. p. 262.</p>

Prom Superior Court of Marion County (71,286); James M. Leathers, Judge. Suit by Martha E. Heuring against Collie E. Kinney, as trustee, and others. Prom a decree for plaintiff, defendant Kinney appeals. On motion to dismiss appeal.

<p>From Clark Circuit Court; Marry C. Montgomery, Judge.</p> <p>Action by John W. Annadall against the Union Cement & Lime Company. From a judgment for defendant, plaintiff appeals (see, also, same case, 165 Ind. 110).</p>

<p>Appeal. — Amount Involved. — Statutes.—Construction.—Counties.— Autopsies. — Physicians.—In an action by a physician against the county for holding an autopsy upon the request of the county ■ coroner, the demand being for $50, where the construction of §§6719-6721, 6724 Burns 1901, Acts 1891, p. 15, §il, and Acts 1899, p. 17, § §3-5, forbidding an appeal in cases involving less than $50, unless, among other things, the validity or construction of a statute is involved, the jurisdiction, on appeal, is in the Supreme Court.</p>

<p>1. Trial. — Complaint.—Paragraphs.—Election as to. — Work and Labor. — Contracts.—Jury.—In aji action by a servant for wages, one paragraph of the complaint counting upon a special contract, and another upon the quantum meruit, it is not error for the trial court to refuse to compel the plaintiff, even after the evidence is introduced, to elect upon which paragraph he will stand, whether there was or was not a contract for such services being a question for the jury. p. 272.</p> <p>2. Work and Labor. — Contracts.—Instructions.—Quantum Meruit. —Evidence.—Evidence showing that plaintiff worked for defendant during the time for which salary was claimed, that his services were reasonably worth a certain sum, and that he had not been paid therefor, is sufficient to authorize the trial court to instruct the jury on the theory of a recovery upon the quantum ■ meruit, p. 272.</p> <p>3. Appeal. — Weighing Evidence.■ — The Appellate Court will not yveigh conflicting evidence, pp. 272, 275.</p> <p>4. Trial. — Instructions.—Preponderance of Evidence. — Number of Witnesses. — It is proper'to instruct the jury that a preponderance of the evidence does not depend upon the number of witnesses, p. 273.</p> <p>5. Evidence. — Privileged.—Communications to Attorneys. — A declaration made by a client to his attorney to be communicated to a third person is not privileged; and the attorney may be compelled to testify thereto", p. 273.</p> <p>6. Same. — Privileged.—Attorney and Client. — To render an attorney incompetent to testify as to communications made to him, it must be proved that the relationship of attorney and client existed, p. 273.</p> <p>7. Corporations. — Trading. — President. — Poivers. — Where it is shown that the president of a trading corporation had authority to employ persons necessary to the conduct of the business, it will be presumed that he had power to contract with a person at an agreed price for a stipulated length of time, and also to increase such servant’s salary when necessary, p. 273.</p> <p>8. Trial. — Verdict. — Quotient. — Impeachment of. — Affidavits.— Where, on a motion for a new trial, an affidavit was filed by one of defendant’s attorneys that the jury returned a quotient verdict, and the affidavits of four of the jurors were filed in contradiction thereof, the trial court’s decision thereon will not be disturbed on appeal, p. 274.</p>

<p>Work and Labor. — Implied Contracts — Pa/rent and CJvild. — Decedents’ Estates. — Where a child, upon the death of its mother, was taken by its father and placed in the home of its grandmother, the father paying for its care until it began to attend school, in the absence of some promise of reward by the grandmother made to such child, or of some expectation of reward by the child when the service for the grandmother was performed, such child has no legal right of recovery for services rendered to the grandmother,' a family relation having existed at all times between them.</p>

<p>1. Mechanics’ Liens. — Labor and Materials Fnteri/ng Different Structure. — A mechanic’s lien cannot be taken upon a structure, where the labor and materials furnished entered into a different structure, p. 280.</p> <p>2. Same. — Joint—Different Structures. — A mechanic’s lien can be taken upon a number of structures jointly, where they were built or repaired under a single contract with the owner thereof. p. 280.</p> <p>3. Pleading. — Complaint. —Mechanics’ Liens. — Foreclosure.—Notice. — A complaint for the foreclosure of a mechanic’s lien upon a gas-well and a derrick house, situate upon different lots, which , fails, to show that the work was ordered by the same party, or that they constituted parts of the same structure, is bad. p. 280.</p> <p>4. Mechanics’ Liens. — Notice.—Complaint.—A notice for a mechanic’s lien must show the amount due, to whom due, from whom owing, and for what due, and must describe the property so that the owner may know the property intended to be charged thereby; and a complaint based upon a notice omitting any of such requisites is not sufficient, p. 280.</p>

From Orange Cirenit Court; Thomas B. Bushirh, Judge. Informations by tbe State of Indiana, on the relation of Willard H. Voyles, as Prosecuting Attorney for the Forty-second Judicial District, against the French Lick Springs Hotel Company, and the West Baden Springs Company. From judgments for defendants, the State appeals.

<p>1. Pleading. — Complaint.—Master and Servant. — Statutory Duty. —Factory Act. — A complaint counting upon a violation of section nine of the factory act (Acts 1899, p. 231, §8029 Burns 1908) must show that the plaintiff was injured by reason of the failure of the owner to safeguard an appliance specifically enumerated, in such section, or one of the same class, p. 292.</p> <p>2. Same. — Complaint.—Master and Servant. — Factory Act. — A complaint alleging that the defendant operated a factory containing rattlers set in motion by a friction-wheel, that the operation of such machinery when unguarded is dangerous, that defendant negligently failed to guard such machinery and the gearings thereof, though it was practicable to do so, and by reason thereof plaintiff was injured, states' a cause of action, p. 293.</p> <p>3. Words and Phrases. — “Gearing.”—Factory Act. — Master and Servant. — Statutes.—The word “gearing” as used in section nine of the factory act (Acts 1899, p. 231, §8029 Burns 1908) imports a factory equipment by which motion imparted to one portion of a machine is transmitted to another, p. 293.</p> <p>4. Same. — “Friction-Wheel.”—Factory Act. — “Gearing.”—A “friction-wheel” is a wheel for the transmission of motion by means of surface friction instead of teeth; and such wheel, together with rattlers thereto attached, is within the class of appliances, denominated “gearing,” as mentioned in section nine of the factory act (Acts 1899, p. 231, §8029 Burns 1908). p.293.</p> <p>5. Trial. — Answers to Interrogatories. — Master and Servant. — Factory Act. — Contributory Negligence. — Answers to interrogatories to the jury showing that plaintiff, while standing at the end of a rattler, undertook to throw an iron casting into such rattler, and in so doing he slipped, his hand being caught between the unguarded friction wheel and the rattler, causing injury, are not irreconcilable with a general verdict for plaintiff, though if he had stood at the side of such rattler in performing his work, the injury would not have happened, p. 294.</p> <p>6. Master and Servant. — Assumption of Rislc. — Factory Act. — The servant does not assume risks caused by the master’s violation of section nine of the factory act (Acts 1899, p. 231, §8029 Burns 1908). p. 296.</p> <p>7. Trial. — Instructions.—Master and Servamt. — Choice of Ways.— Knowledge. — An instruction that if there were two ways of performing a service — a safe and an unsafe way — and the plaintiff took the unsafe way, he would be guilty of contributory negligence, is incorrect, since it should have included plaintiff’s knowledge of such ways and his voluntary selection of the unsafe way. p. 297.</p> <p>8. Same. — Allegations.—Evidence.—Choice of Ways. — Verdict.— Where the complaint alleged that the plaintiff attempted to pitch án iron casting into a rattler, while standing at the end thereof, which was a proper place to do such work, a general verdict for plaintiff constitutes a finding that such was a proper place to do such work. p. 297.</p> <p>9. Same. — Instructions.-—-Master and Servant. — Scope of Employment. — Harmless Error.- — It is harmless error to refuse to instruct that, under section nine of the factory act (Acts 1899, p. 231, §8029 Burns 1908), a servant injured while outside the scope of his employment, cannot recover for injuries caused by the master’s violation of said act, where the jury is fully instructed as to the issues and as to the evidence required in order that plaintiff may recover, p. 297.</p> <p>10. Same. — Instructions.—Defective.—Curing.—Master and Servant. — Instructions failing to include the statements that the servant cannot recover if at the time of the injury he was not exercising due care, and that he would not be guilty of contributory, negligence if he exercised due care to avoid the injury, are not prejudicial, where such points were fully covered in other instructions. p. 298.</p> <p>11. Same. — Instructions.—Issues.—Where the instructions are confined within the issues and the evidence they cannot be considered erroneous, p. 299.</p> <p>12; Appeal. — Weighing Evidence. — Where there is some evidence tending to support every material allegation in a complaint, the judgment will not be reversed for want of evidence, p. 299.</p> <p>;3. Evidence. — Industrious H a hit. — Sivif't M anner of Work. — M aster and Servant. — In an action by a servant against his master for</p> <p>• personal injuries caused by an unguarded machine, the admission in evidence of plaintiff’s habits of industry and of the rapidity of the work required of him, or of the custom- of employes in doing the work required, or that the plaintiff was prevented from doing his work in the ordinary manner by reason of the position of another servant, was not prejudicial to defendant, p. 300.</p>

<p>Prom Howard Superior Court; B. F. Harness, Judge.</p> <p>Suit by Philip Berkey and others. Prom a. decree for defendants, plaintiffs appeal.</p> <p> Appeal dismissed. </p>

From Clark Circuit Court; Harry C. Montgomery, Judge. Eminent domain proceeding by the Indianapolis & Louisville Traction Company against Mary A. Slider and another... From an interlocntory order overruling defendants’ objections to the complaint and appointing appraisers, defendants appeal.

Prom Wells Circuit Court; Charles W. Watkins, Special Judge. Suit by George B. Mason and others against Mary Hanley and others. Prom a decree for plaintiffs, defendants appeal. (Por decision on petition to dismiss see 40 Ind. App. 180.)

From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge. Action by William Wernke against the Ohio Valley Trust Company, for the death of Edward Wernke, his -infant son. Prom a judgment for plaintiff, defendant appeals.

<p>. From' Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Action by Jacob Walter Lewis, by his next friend, John E. Lewis, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Pleading. — Complaint.—Master and Servant. — Employers’ Liability Aet. — Private Corporations. — A complaint, for damages, by a servant against a private- corporation, based upon section one of the employers’ liability act (Acts 1893, p. 294, §8017 Burns 1908), is insufficient, such act having been declared unconstitutional as to private corporations.</p>

<p>1. Pleading. — Complaint.—Conditional Sales. — Partnership.—Dissolution. — Election'.—.A complaint by a trustee in bankruptcy for one of two partners against the other partner alleging that defendant agreed to purchase a one-half interest in the partnership, paying $1,000 cash, and if the business was satisfactory agreeing to pay another $1,000, but if not satisfactory he was to have a return of the $1,000 paid, that within the year for decision defendant brought suit for a dissolution and secured the appointment of a receiver who wound up the business, that the plaintiff was appointed within the year as a trustee in bankruptcy for the other partner and demanding judgment for the unpaid $1,000, is bad, since the suit for a dissolution, as well as the bankruptcy of the other partner, constituted a legal election on defendant’s part not to continue in the partnership relation, p. 344.</p> <p>2. Bankruptcy. — Trustees.—Enforcement of Bankrupt’s Contracts. — A trustee in bankruptcy occupies the same place as the bankrupt in the enforcement of the bankrupt’s contracts, p. 340.</p>

<p>1. Judgment. — Issues.—Estoppel.—A judgment conclusively estops the parties from afterwards litigating issues raised, or which might have been raised, in such proceeding.- p. 349.</p> <p>2. Same. — Final.-—-A final judgment is one that disposes of all of the issues in the case as to all of the parties thereto, p. 349.</p> <p>3. Covenants. — Deeds. — Breach. — Vendors’ Liens. — Evidence.— Judgment. — In an action for damages for breach of covenant, evidence that defendants executed-to the plaintiff a warranty deed for certain land upon' which there existed an alleged vendor’s lien in favor of a remote grantor, that such remote grantor had sued plaintiff for the foreclosure thereof, that plaintiff notified defendants thereof, who were made parties thereto, that plaintiff, over defendants’ objections, refused to plead further upon the court’s sustaining a demurrer to its answer, and a decree was entered against it which, it was compelled to pay, and that the cause was continued as to defendants, is not sufficient to sustain a decision for the plaintiff, p. 349.</p> <p>4. Covenants. — Breach. ■ — Incumbrances.—Deeds.—Mvidence.—To constitute a breach of covenant, the grantee must show that a valid and subsisting incumbrance existed upon the land at the date of the execution of the deed; and evidence of a decree against the grantee, to which the grantor was not a party is not sufficient to show such breach, p. 350.</p>

<p>1. Principal and Agent. — Breach of Trust. — Checks.—Indorsement. — Banks.—An agent, wbo bas authority to indorse negotiable paper, and wbo cashes her principal’s check and converts the money, is guilty of a breach of trust, and the bank cannot be held liable therefor, p. 352.</p> <p>2. Same. — Checks.—Indorsement.—Authority.—A valid indorsement of a check can be effected by an agent only when such agent has direct or express authority therefor, p. 352.</p> <p>3. Banks. — Checks.—Indorsement.—Agency.—Collectors.—An agent authorized to receive money for her principal in payment of a note due to him has no implied authority to indorse a check, payable to her principal, and received in payment of such note, though if such check had been payable to her, she could have collected same. p. 353.</p> <p>4. Principal and Agent. — Contracts.—Agency rests upon contract, express or implied, and is general or special — special, when the end and means are specific — general, when they are not. p. 353.</p> <p>5. Same. — Speical.—Burden of Proof. — The burden is upon one who deals with a special agent to show that such agent had authority to do the act in controversy, p. 353.-</p> <p>6. Same. — Checks. — Indorsement. — Ratification.—The principal’s assertion of title to a check which his agent for the collection of money had received and wrongfully indorsed, does not constitute a ratification of such indorsement, p. 354.</p>

<p>From Marion Circuit Court (14,962); Henry Clay Allen, Judge.</p> <p>Suit by Otto Aneshaensel against Katy, alias Daisy, Twyman and others. From a decree for defendants, plaintiff appeals.</p>

<p>From Clay Circuit Court; Presley O. Colliver, Judge.</p> <p>Action by John D. Sourwine against the McRoy Clay Works, and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Appeal. — 'Weighing Evidence. — The Appellate OoUrt will not weigh conflicting oral evidence, p. 362.</p> <p>2. Parent and Child. — Custody.—Divorce.—Subsequent Orders.— Under a petition by the divorced husband for the custody of his child, the custody of which had been given,' in the decree of divorce, to the divorced, wife, the court may award the custody of such child to such husband’s father, the welfare of the child being paramount, p. 363.</p> <p>3. Divorce. — Decree.-—Subsequent Modification. — Custody of Child. —The court granting a divorce has the continuing duty, upon a .proper petition, to see that the child of such divorced persons is properly eared for, such child being in a sense the ward of the court, p. 363.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by Samuel M. Smith against the Central Indiana Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Plea in Abatement. — Demurrer to. — Form.—A demurrer to a plea in abatement in form: “Plaintiff demurs to de-' fendant’s answer of abatement on the ground that said answer does not state facts sufficient to constitute a cause why plaintiff should not be allowed to prosecute this action in this court,” is insufficient, and presents no question, p.372.</p> <p>2. Process. — Summons.—Nonresidents.—Attendance at Court.— Statutes.- — A nonresident who came into this State for the purpose of attending a trial cannot, while on such mission, be properly served with a summons in an action filed against him in this State, §315 Burns 1908, §312 R. S. 1881, not applying in such a ease. p. 373.</p> <p>3. Statutes. — Parts of a System. — Construction.—Section 315 Burns 1908, §312 R. S. 1881, providing for the service of a sum'mons upon a nonresident while in this State must be construed with other statutes of which it forms a part. p. 374.</p>

<p>Prom Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Suit by John P. Regester against Samuel M. Kerr and others. Prom a judgment for plaintiff, defendant Kerr appeals.</p>

<p>1. ' Appeal. — Jurisdiction.—Jiidgment for Less than $50. — Mechanics’ Liens. — An appeal lies from a decree foreclosing a mechanic’s lien, although the judgment therein is for less than $50. p. 381.</p> <p>2. Same. — Assignment of Errors. — New Trial. — -.Questions Presentable thereunder on Appeal. — Under an assignment that the trial court erred in overruling appellant’s motion for a new. trial, the question of the weight of the evidence may. be raised on appeal, p. 382.</p> <p>3. Same. — Weighing Evidence. — The Appellate Court will not weigh conflicting oral evidence, p. 382.</p>

<p>Prom Lake Circuit Court; Willis G. McMahan, Judge.</p> <p>Suit by the East Chicago Company against the City of East Chicago and others. Prom a judgment for defendants, plaintiff appeals. (See 171 Ind, —.)</p>

From Jay Circuit Court; John F. LaFollette, Judge. Application for liquor license by George W. Nichols, against which J. F. Lehman' and others remonstrate. From a judgment for remonstrants, the- applicant appeals.

<p>From Johnson Circuit Court; John W. Morgan, Special Judge.</p> <p>Suit by James Flint against James Mauzy and another. From a decree for plaintiff, defendants appeal.</p>

<p>Prom Tippecanoe Circuit Court; R. P. DeHart, Judge.</p> <p>Action by John Grass against the Pt. Wayne & Wabash Valley Traction Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal. — Briefs.—Buies.—A rigid compliance with. Appellate Court rules in the preparation of appellants’ brief will not be enforced, where the result would be to preclude a consideration of the merits of the ease. p. 406.</p> <p>2. Contracts. — Sale of Goods. — Statute of Frauds. — An oral contract for goods of the value of over $50, where the goods have been delivered but not accepted, and an invoice thereof in writing delivered to the purchaser, is invalid under the statute of frauds (§7469 Burns 1908, §4910 R. S. 1881). p. 408.</p> <p>3. Same. — Statute of Frauds. — Sales.-—-Letters.—A letter canceling a verbal order for goods of the value of more than $50, and a letter, in answer to an invoice, declining to receive the goods, do not constitute a memorandum of the contract sufficient to take the contract out of the statute of frauds (§7469 Burns 1908, §4910 R. S. 1881). pp. 409, 410,411.</p> <p>4. Same —Statute of > Frauds. — -Parol Evidence. — Parol evidence cannot be received to supply any essential part of a contract unenforceable because made in violation of the statute of frauds (§7469 Burns 190S, §4910 R.'S. 1881). p.409.</p> <p>5. Pleading. — Complaint. — Contracts. — Oral. — Presumptions.— Where the complaint is silent as to whether an alleged contract was written or oral, the presumption is that it was oral. p. 411.</p> <p>6. Contracts. — Repudiation.—Reasons.—Statute of Frauds. — The repudiation of a contract, invalid under the statute of frauds (§7469 Burns 1908, §4910 R. S. 1881), is sufficient whether a good reason, a wrong reason, or no reason, be given therefor, pp. 411,413.</p> <p>T Pleading. — Insufficient Complaint. — Answer.—Overruling a demuirer to a paragraph of answer does not constitute material error where the complaint is not sufficient, p. 413.</p>

<p>1. Pleading. — Complaint. — Nuisance. — Discharging Slush. — Trespass. — A complaint alleging that defendant, in the operation of its stone sawmill, discharged slush upon plaintiff’s land,'to his damage, is sufficient, p. 414.</p> <p>2. Damages. — Injuries to Land. — Permanent.—Temporary?—The measure of damages for permanent injuries to land is the depreciation thereof ill value; and for temporary injuries, the depreciation in the rental value thereof, p. 416.</p> <p>3. Trial. — Interrogatories. — Answers. — Signing.—Answers to interrogatories which are not separately signed by the foreman of the jury should be considered, though the better practice is to require each answer to be signed; and objections for such reason, to be available, must be made before the dismissal of the jury, p. 416.</p> <p>4. Appeal. — Damages. — Excessive. — Conditional Affirmance.— Where the answers to the .interrogatories show that plaintiff sustained damages in the sum of $100 by reason of the alleged injuries, a judgment for $200 may be affirmed on condition of his remission of $100. p. 417.</p>

<p>From Clark Circuit Court; Harry C. Montgomery, Judge.</p> <p>Suit by Henry B. Broeker against Raymond J. Morris, as Sheriff of Floyd County, and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Deeds. — When Deemed to he Mortgages. — A deed accompanied by a written or oral contract by the grantee for a reconveyance of the granted land upon payment, by the grantor, of a present or preexisting deist, constitutes a mortgage and no stipulation can make it otherwise, p. 420.</p> <p>2. Mortgages. — Conditional Sales. — Distinctions.—A mortgage is a security for a debt; and a ebnditional sale is a transfer accompanied by a contract to resell upon specified terms, p. 426.</p> <p>3. Same. — Deeds.—Intention.—In determining whether á deed absolute upon its face constitutes a mortgage, the courts will ascertain the intention of the parties, p. 427.</p> <p>4. Same. — Deeds.—Evidence.—Where the owner of lands deeded the same to the mortgagee thereof in payment of the mortgage debt, the notes and mortgage being surrendered to the maker and mortgagor, the contemporary execution of a contract to re-convey upon payment of an equal sum together with interest, taxes and expenses, does not render such deed a mortgage, p. 427.</p> <p>5. Evidence. — Parol.—Showing Deed to he a Mortgage. — Parol evidence is admissible to show that a deed absolute upon its face, was made under such circumstances as to render it in reality a mortgage p. 428.</p>

From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge. Petition by Mary Ziegler to set aside a default judgment against her and another and in favor of Albert W. Funkhouserand others. From an order denying same, petitioner appeals.

<p>1. Trial. — Verdict.—Interrogatories.—Conflict.—Answers to interrogatories to tbe jury control the general verdict only where they' are irreconcilable with such verdict upon any supposable evidence within the issues, p. 439.</p> <p>2. Master and Servant. — Factory Act. — Planers.—Guards.—A factory owner is not required to place a screen' over the air opening to a dust pipe under a stave planer to prevent an operator thereof from thrusting his hand therein, when trying to prevent the choking of the dust pipe. p. 439.</p> <p>3. Same. — Factory Act. — Guarding Machinery. — The guarding of a machine so that servants in the usual course of their labor are not liable to injury therefrom, precludes a charge of negligence as against the owner of the factory, p. 440.</p> <p>4. Trial. —Negligence.—Allegations.—Evidence.—Variance.—Proof that a boy was injured by reason of defective machinery does not sustain a complaint alleging injuries because of a want of sufficient guards to such machinery, p. 440.</p> <p>5. ' Master and Servant. — Factory Act. — Guarding Machinery.— Emergency. — The fact that a dust pipe under a planer became choked, and which endangered neither property nor persons, is-not such an emergency as justified am employe in placing his hand therein, when he knew, or should have known, that his hand would be caught in the knives contained therein, p. 440.</p> <p>6. Pleading. — Complaint.—“Duty” of Master. — Conclusions.—An allegation in a complaint that it was the plaintiff’s “duty to perform such work as might be required of him,” is a conclusion and must he wholly disregarded for any purpose, p. 441.</p> <p>7. Master and Servant. — Scope of Employment. — Injuries Outside Thereof. — Ordinarily a servant cannot recover for injuries received while working outside of the scope of his employment, p. 441.</p> <p>8. Same. — Inexperience. — Wanving. — Dangerous Machinery. —A master is not required to inform a servant, fifteen years old, of the danger of putting his hand into a dust pipe containing rapidly revolving knives, where his ordinary duties did not require him to do anything with reference to such pipe. p. 441.</p> <p>9. Same. — Warning.—Open and Apparent Da/ngers. — It is not necessary for the master to warn servants against open and apparent dangers, p. 442.</p> <p>10. Same. — Defective Machinery. — Where a servant receives injuries by reason of defective machinery, or by reason of the master’s failure to provide a proper exhaust pipe, as required by statute (§8029 Burns 1908, Acts 1899, p. 231, §9), a right of action arises in his favor, p. 443.</p> <p>11. Appeal. — Reversal.—When Neio Trial Ordered. — Where the facts shown in a case do not entitle plaintiff to any relief upon the theory of his complaint, but do show a right of action upon another theory, the court will order a new trial, p. 443.</p>

<p>1. Trial. — Special Findings. — Motion to Modify. — A motion to modify tbe special findings is not recognized by tbe Indiana practice, p. 444.</p> <p>2. Appeal. — Assignments of Error.- — Yew Trial. — Evidence Not in Record. — Assignments that the decision is not sustained by sufficient evidence and is contrary to law present no question on appeal, where the evidence is not in the record, p. 444.</p> <p>3. Divorce. — Residence.—Husband and Wife. — Where a husband, and his wife were in Colorado in September with the intention of making that state their home, and the wife soon afterward returned to Indiana,- a suit for divorce, filed by her in Indiana in January, was premature, p. 444.</p> <p>4. Husband and Wife. — Residence of Wife. — Prior to separation, the domicil of the husband is the domicil of- the wife. p. 445.</p>

Prom Starke Circuit Court; John C. Nye, Judge. Suit by tbe Union Central Life Insurance Company against William Luken and others. Prom a decree- for plaintiff and for cross-complainant David D. Pickle, Luken and others appeal.

<p>1. Trial. — Prejtidiced Judge. — Parties have the right to have their cases tried before an impartial tribunal, p. 463.</p> <p>2. Same. — Delays.—Constitutional Law. — Parties have a constitutional right to a speedy trial, p. 463.</p> <p>3. Same. — Unprejudiced Jury. — Voir Dire Examination. — Parties have a right to an impartial jury, and in order to secure same they may examine and reject jurors for cause, and may peremptorily discharge three each without cause, p. 463.</p> <p>4. Same. — Change of Venue. — Number Permissible. — A party has the right to one change of venue from the county; and where the party secures such change by agreement, and without the filing of an affidavit, his right is thereby exhausted, p. 463.</p> <p>5. Master and Servant. — Defective Appliances. — Iron Moulding.— Sputtering. — Evidence.—Inferences.—In an action against a company for injuries caused by the placing of a cold mould in the place of a .heated mould, whereby the plaintiff, a servant, was injured by the sputtering of molten iron poured into such cold mould; direct evidence showing that a mould was used for two hours, that it became broken and was replaced, that such defective mould was removed with the naked hands, the evidence failing to show which mould was replaced, that iron poured into one of the moulds sputtered, injuring plaintiff, that iron poured into cold moulds frequently sputtered, and that sputtering was also caused by other circumstances, fails to sustain a verdict for the plaintiff, since an inference from an inference is not permissible in the establishment of a fact. p. 464.</p> <p>6. Evidence. — Direct.—Circumstantial.—Facts may be established by circumstantial as well as by direct evidence, p. 468.</p> <p>7. Same. — Circumstantial.—To prove a fact by circumstantial evidence, direct evidence of related facts must be introduced from which an inference of the conjectured fact may be drawn, p. 468.</p>

From Superior .Court of Marion County (65,420) ; Charles T. Hanna, Special Judge. Cross-complaint by the City Bond Company against the City of Indianapolis and others. From a decree for cross-complainant, the cross-defendants appeal.

<p>Prom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by Magnus J. Carnahan and others against Mitchelltreé School Township and another. Prom a judgment for plaintiff, defendants appeal.</p>

From Cass Circuit Court; John S. Lairy, Judge. Suit by Charles Fossler and others against Taeey B. Belk and others. From a decree for plaintiffs, and the cross-defendants, defendant and cross-complainant Lovejoy appeals. On motion to dismiss appeal.

<p>1. Insurance. — Accident.—Injuries from, Intentional Acts. — Injuries occasioned as the direct result of intentional acts are not produced by accidental means within the terms of an accident insurance policy, p. 494.</p> <p>2.. Same. — Accident. — Intentional-Act Clause. — Application of, to Fatal Injuries. — An accident policy providing that the company shall not be liable for injuries or death “from any of the following causes: * * * injury resulting from the intentional act of the insured,” excludes liability on account of death resulting from intentional acts, as well as injuries resulting therefrom, p. 494.</p> <p>3. Words and Phrases. — “Accident."—“Accidental Means.” — Insurance. — The word “accident,” as used in accident insurance policies, imports an event that occurs without one’s foresight or expectation; and an injury is caused by “accidental means” when produced by something unforeseen, unexpected and unusual, p. 495.</p> <p>4. Insurance. — Accident.—Violence.—An accident policy covering “physical bodily injuries through external, violent and accidental means” embraces only those injuries caused by the concurring elements of force and accident, p. 495.</p> <p>5. Same. — Accident.—Usual Acts. — Injuries resulting from, ordinary acts, though the result of such acts was unexpected, if no unusual circumstances intervene, cannot be regarded as resulting from accident within the meaning of an accident policy, p. 496.</p> <p>6. Same. — Accident.—Accidental Means. — Paralysis of Heart from Ewertion. — Death from heart paralysis, caused by carrying baggage up a long flight of stairs, in a rarefied atmosphere, is not brought about by “accidental means,” and is not within the' terms of an accident policy covering death from “accidental means.” p. 498.</p>

<p>1. Contracts. — Indemnity.—Mortgages.—A mortgage executed by a husband and wife to secure the husband’s surety upon his note is an indemnity contract, p. 503.</p> <p>2. Mortgages. — Indemnity.—Surplus.—Second Mortgages. — Where a wife joins in the execution of a mortgage to secure her husband’s surety upon his note, there being a provision that in case of a sale under foreclosure the mortgagee should pay to her $500, her execution of a second mortgage on such land to secure another sum due from her husband does not, of itself, abrogate such provision for payment in the first mortgage, p. 503.</p> <p>3. Husband and Wiee. — Suretyship.—Contracts.—A wife’s contract of suretyship is void. p. 504.</p> <p>4. Words and Phrases. — Suretyship. —r Contracts. — A contract whereby one person agrees to answer for the debt, default, or miscarriage of another, is one of suretyship, p. 504.</p> <p>5. Contracts. — Husband mid Wife. — Suretyship.—Where a married woman joined in her husband’s mortgage in consideration of the mortgagee’s agreement to pay her $500, and she after-wards joined in the execution of a second mortgage and agreed to cancel such mortgagee’s obligation to pay the $500, due under such first mortgage, in consideration that such mortgagee would pay certain of her husband’s debts, the latter contract is not one of suretyship, and is enforceable, pp. 504, 506.</p> <p>6. Mortgages. — Husband and Wife. — Inchoate Rights. — Suretyship. —The wife may lawfully join her husband in a mortgage on his land for the security of his debts, and such mortgage bars her inchoate rights in such land. p. 504.</p> <p>7. Statutes. — Mmried Women. — Disabilities.—Under §7851 Burns 1908, §5115 R. S. 1881, removing the disabilities of married . women “except as herein otherwise provided,” a married' woman can execute any character of contract not specifically forbidden, p. 505.</p> <p>8. Contracts. — Suretyship.—Mmried Women. — A married woman may contract for property for the use of another, employ an attorney to defend her husband, or other person, or employ a physician, or purchase property for another, p. 505.</p> <p>9. Same. — Consideration.—Any damage, detriment or loss suffered by the promises constitutes a sufficient consideration to support a promise made by the promisor, p. 505.</p> <p>10. Pleading. — Answers.—Sustaining Demurrers _ to Paragraphs Whose Pacts are Not Provable Under General Denial. — The sustaining of a demurrer to sufficient paragraphs of answer constitutes reversible error, where the facts- contained therein are not provable under the general denial already pleaded, p. 506.</p>

<p>1. Tbial. — Instructions.—Eow Made Part of Record. — Appeal.—Instructions unsigned by party or counsel, wbicb are tendered and refused, the entry in the record on appeal being “above instructions refused and, exceptions by defendant,” are not in the record, p. 507.</p> <p>2. Tbial. — Instructions. — Evidence Not in Record. — Appeal. — Where the evidence is not in the record on appeal, the presumption is that instructions refused were not applicable to the evidence. p. 508.</p>

<p>1. Pleading. — Answer.—Argumentative Denial. — Assault and Battery. — An answer, in an action for assault and battery, that defendant, realizing that he had been struck, and believing himself to be in danger of great bodily harm, “necessarily struck the plaintiff the blow complained of,” is not good as an argumentative denial, p. 510.</p> <p>2. Same. — Answer.—Son Assault Demesne. — Assault amd Battery. —An answer of son assault demesne • justifies the assault and battery complained of by asserting that plaintiff committed an assault and battery upon defendant and that defendant merely defended himself, and in so doing he committed the battery complained of. p. 511.</p> <p>3. Same. — Answer.—Assault and Battery. — Conclusions.—The allegations in an answer, in an action for assault and battery, that defendant “believed” he would receive great bodily harm, that he struck plaintiff “while so believing and having cause so to believe,” “that circumstances and appearances caused him to believe” that lie was in danger, and that hjs conversation with plaintiff was “mild and gentlemanly,” are mere conclusions, p. 511.</p> <p>4. Pleading. — Ansioer.—Assault and Battery. — Self Defense. — An answer, in an action for assault and battery, alleging that defendant approached plaintiff upon the street, that plaintiff struck him in the mouth, that defendant, knowing that plaintiff had a “vicious temper,” and believing plaintiff “would continue her attack upon him, and that he would receive great bodily harm” “necessarily struck the plaintiff the blow complained of in her complaint,” is bad.” p. 512.</p>

<p>1. Pleading. — Demurrers.—Joint or Separate. — Appeal.—An ambiguous demurrer construed as separate by the trial court, will be so considered on appeal, p. 514.</p> <p>2. Same. — Complaint.—Master and Servant. — Railroads.—Failure to Inspect. — A complaint alleging that defendant railroad company negligently failed to inspect its caboose on wbicii plaintiff was ordered to work, that a draw-bar chain had been coiled in a pyramidal shape upon the rear platform thereof, that the plaintiff, at night, without notice, and in the discharge of his duties, in going upon such platform, stumbled, to his injury, does not state a cause of action, p. 514.</p> <p>3. Master and Servant. — Safe Place. — It is the duty of the master to provide for his servants a safe place in which to work and safe appliances with which to work, but for the negligent use of such appliances by the servants the master is not ordinarily liable, p. 516.</p> <p>4. Same. — Assumption of Risk. — Fellow Servants. — A servant assumes the risk of injuries caused by the negligence of fellow servants, p. 516.</p> <p>5. Pleading. — Complaint.—Master and Servant. — “Duty."—A complaint alleging that plaintiff, “while in the discharge of his duties,” sustained injury through defendant’s neglect, is bad, the facts constituting the duty being required, p. 517.</p> <p>6. Same. — Complaint.—Master and Servant. — Railroads.—Loading Appliances. — Fellow Servants. — A complaint alleging that defendant railroad company ordered its general car inspector and repairer to remove to another point a disabled caboose, that in so doing such inspector negligently caused a draw-bar chain to be placed on the rear platform thereof, that plaintiff in the discharge of his duties, without notice thereof, stumbled over the same and fell, to his injury, is bad, since in doing such work such inspector was a fellow servant of plaintiff, p. 517.</p> <p>7. Same. — Complaint.—Statutory Liability. — A complaint founded upon a statutory liability must show clearly that plaintiff comes within the provisions of the statute, p. 520.</p> <p>8. Same. — Complaint.—Railroads.—Limiting Hours of Service.— Conclusions. — A complaint against a railroad company for injuries caused by its compelling the plaintiff, an employe, to work over sixteen hours, in violation of the act of 1903 (Acts 1903, p. 113), limiting the hours of service of employes to sixteen, “unless in case of accident, wreck or other unavoidable cause,” alleging that “no necessity for said continuous duty existed on account of any accident, wreck or unavoidable cause,” is bad, such allegation being a conclusion, p. 520.</p>

<p>1. Action. — Husband and Wife. — Loss of Services. — Medical Hwpenses. — The death of a wife, caused by defendant’s negligence, gives to the husband a common law right of action for damages resulting from his loss of her services and society, and the medical expenses paid in caring for her, independent of the act of 1899 (Acts 1S99, p. 405, §285 Burns 1908), giving a right of action for the death of a person to the personal representative, p. 522.</p> <p>2. Action. — Abatement.—Husband and Wife. — Death by Wrongful Act. — The husband’s right of action for loss sustained because of injuries to his wife, caused by defendant’s negligence, does not abate upon her death, p. 523.</p> <p>3. Damages. — Injuries to Wife. — Action by Husband. — In an action by the husband for damages for the death of his wife, caused by defendant’s negligence, the husband’s medical and nursing expenses, his loss of companionship and services of the wife are proper elements of damage, p.523.</p> <p>4. Same. — Injuries to Wife. — Oare of Ohildren. — Action by Husband. — The loss of parental care, training and comfort to the children, thus requiring the father to furnish such care from other sources, is a proper element of damage in an action by the husband for loss sustained through the death of his wife, caused by defendant’s negligence, p. 523.</p> <p>5. Evidence. — Another Action Pending. — Damages.—Death of Wife. — In a husband’s action in damages for the death of his wife caused by defendant’s wrongful act, evidence of an order-book entry showing that an action for damages brought by the personal representative, is pending, is inadmissible, p. 524.</p> <p>6. Tkial. — Instructions.—Damages to Husband by Death of Wife. —Services.—Expenses.—An instruction, in an action by a husband, for the wrongful injury of his wife, that the husband is entitled to damages for the value of his wife’s services in caring for the home, and for the amount paid to a domestic for performing such work, is erroneous, p. 524.</p> <p>7. Damages. — Excessive.—Death of Wife. — Action by Husband.— In an action by the husband for damages for injuries to his wife, such injuries resulting in her death in one year, a judgment for $5,000 is excessive, where the damage proved, except for loss of society, was not more than one-fourth of the amount of the judgment, p. 525.</p>

<p>1. Appeal. — Law of the Case. — The decision on a former appeal constitutes the law of the case in all subsequent stages, p. 528.</p> <p>2. Insubance. — Warranties.—Construction of. — Warranties in insurance policies are strictly construed, and though an answer in an application be partial, yet true so far as it goes, the warranty extends only to the extent of such answer, p. 529.</p> <p>3. Same. — W arranties. — Interrogatories. — Partial Answers. —> Where an insurance company’s application contained the following question: “What is the name and residence of your physician, the one whom you have personally employed or consulted?” and assured in answer thereto stated: “Have none,” and the interrogatories to the jury and the answers thereto show that assured had shortly prior thereto consulted a physician many times with respect to his health, it is not thereby conclusively shown that assured did have a physician at the time of signing the application, p. 529.</p> <p>4. Same. — Applications.-—Forfeitures.—Construction.—The rule requiring provisions for the forfeiture of an insurance policy to be strictly construed applies to the construction of the questions contained in the application, p. 530.</p> <p>5. Tbial. — Verdict.—Presumptipns.—Interrogatories.—Inconsistent Answers. — Nothing will be presumed against a general verdict and conflicting answers nullify each other, p. 530.</p> <p>6. Insukance. — Warranties.—Other Insurance. — Where assured, in his application, was asked whether he had made application for insurance to any company or association, which had not been granted, and he answered “no,” a general verdict in favor of the beneficiary should not be overturned on the ground that other interrogatories and answers showed that assured had applied to another company for a policy for $5,000; since such application might have been granted, thus making his answer true. p. 530.</p> <p>7. Same. — Warranties.—Other Insurance. — Interrogatories.—Conflict. — An interrogatory to the jury and answer thereto showing that assured, in his application, was asked whether he had applied for insurance to any other company and had been refused, to which he answered “no,” and another interrogatory and answer thereto showing that he had made an application for a policy, and another showing that assured was asked in his application whether he then had any insurance on his life and he answered “none,” are not in irreconcilable conflict with a verdict for the beneficiary, p. 531.</p> <p>8. Tkial. — Verdict.—Interrogatories.—Conflict.-—-Evidence.—In determining whether the interrogatories and their answers are in irreconcilable conflict with the general verdict the evidence will not be considered, p. 531.</p> <p>9. Same. — Verdict. — Interrogatories.—Motions.—Judgment.—New Trial. — Upon the return of a verdict and answers to the interrogatories to the jury, the losing party may move for judgment notwithstanding the general verdict, thus affirming the answers to the interrogatories, or move for a new trial, thus bringing the whole case before the trial court for review, p. 531.</p> <p>10. Appeal. — Reversal.—New Trial.- — Interrogatories.—Though appellant is technically entitled to a judgment, a new trial may be ordered on a reversal, on appeal, where justice will be best subserved, p. 531.</p> <p>11. Same. — Mandate.—Modification.—A. mandate ordering judgment will be modified and a new trial ordered, where it appears that justice will be best subserved, p. 532.</p>

<p>Prom Putnam Circuit Court; John M. Bawley, Judge.</p> <p>Action by Eva McMains against the Vandalia Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Marion Circuit Court; Henry Clay Allen, Judge.</p> <p>Guardian’s report by Charles Alcon, to which William H. Koons excepts. From a judgment for the exceptor, the guardian appeals.</p>

<p>1. Appeal. — Assignments of Errors. — Demurrer.—Exceptions.—■ Joint. — Several.—Where plaintiff flies a several demurrer to the second and third paragraphs of ansAver, which is overruled, “to which ruling * * * plaintiff * * * excepts,” and the plaintiff assigns error on the overruling of the demurrer “to the second and third paragraphs of the defendant’s answer,” each paragraph is questioned, though to sustain the assignment both paragraphs must be held insufficient, p. 550.</p> <p>2. Bills and Notes. — Defenses.—Fraud.—Breach of Contract.— Indorsees. — Pleading.—Answer.—Fraud or breach of contract on the part of the drawer constitutes no defense to an action by a good-faith indorsee of a foreign bill of exchange against the acceptor thereof. ¡1.551.</p> <p>8. Bills and Notes. — Foreign.—Acceptance.—Laws Governing.— A bill drawn by an Iowa corporation upon a resident of Indiana, which is accepted in Indiana, must be treated as a foreign bill of exchange, though the contract of acceptance is governed by the laws of Indiana, p. 553.</p>

<p>From Jennings Circuit Court; Francis M. Thompson, Judge.</p> <p>Action by Charles W. Deputy and others against Winifred Dollarhide and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Prom Shelby Circuit Court; Will M. Sparks, Judge.</p> <p>Action by William E. Henderson against Absent Bivens and another. Prom a judgment for plaintiff, defendants appeal.</p>

<p>Fr,om Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by Asa Hewitt and another against Thomas W. Lindsey and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Townships. — Contracts. — Trustees. — Limitations on. — Townships are political corporations with limited statutory powers; and the township trustees are the only officers authorized to enter into contracts on their behalf, the trustees’ power to do so being limited to the powers expressly or impliedly granted by statute, p. 588.</p> <p>2. Same. — Road Supervisors. — Powers.—Contracts.—Road supervisors are not' representatives of their townships and have no power to bind such townships by contract, p. 583.</p> <p>3. Highways. — Ownership.—Highways are not owned by the townships in which they are situate, but by the general public, though certain duties of repairing same are imposed upon the townships, p. 583.</p> <p>4. Eminent Domain. — Highways.—Road Supervisors. — The power granted to road supervisors to appropriate land for highway purposes is that of eminent domain, and in the exercise of such right' such supervisors represent the State, p. 583.</p> <p>5. Same. — Compensation.—Constitutional Law. — The owners of ■ land appropriated by road supervisors for highway purposes have a constitutional right to compensation, p. 584.</p> <p>6. Same. — Highways.—Liability of Townships. — Quantum Meruit. —Townships are not liable on the quantum meruit for gravel appropriated by road supervisors for highway repairs, where no appraisement was made thereof as required by statute (§6830 Burns 1901, Acts 1883, p. 62, §16). p.584. *</p> <p>7. Same. — Highways. — Compensation. — Statutes. — Waiver. —A landowner who permits his gravel to be appropriated for highway purposes, by a road supervisor, may, under §6830 Burns 1901, Acts 1883, p. 62, §16, waive the demand and notice therein provided for, but the requirement of the statute that the damages must be assessed by the road supervisor and two disinterested persons, under oath, must be strictly followed, or he loses his right to compensation, p. 584.</p> <p>8. Mandamus. — Road Supervisors. — Condemnation. — Gravel.—A road supervisor requiring gravel for highway purposes may be compelled, by mandamus, by the owner of such gravel, to have the same appraised, as provided for in §6830 Burns 1901, Acts 1883, p. 62, §16. p. 585.</p>

<p>Prom Orange Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Action by John Sanders against the Chicago, Indianapolis & Louisville Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal. — Briefs.—Waiver.—Points not discussed are waived, p. 589.</p> <p>2. Masteb and Seevant. — Unsafe Appliances. — Inspeetion.—Railroads. — Where a railroad construction foreman ordered the plaintiff and others to erect a gin pole and hoist certain timbers, and such servants did so using a defective rope furnished, plaintiff having no knowledge of such defective condition, and the plaintiff was injured by reason of the parting of such rope, the company is liable, such foreman, under §8017 Burns 19Ó8, Acts 1893, • p. 294, §1, being a vice-principal, p.589.</p> <p>3. Same. — Assumption of Risk. — Unsafe Appliances. — Inspeetion.— A servant does not assume the risk of a defective rope furnished by the master, where the defect is not apparent and he knows nothing about it, the duty of inspection being a continuing oncdevolving upon the master, p. 590.</p> <p>4. Same. — Appliances.—Where the master provides new appliances to be used when the old ones become defective, he has performed his duty in that regard, p. 591.</p> <p>5. Teial. — Variance.—negligence.—Unsafe Appliances. — Though a complaint alleges negligence in furnishing a rotten rope to an employe, no harmful error was committed in trying the ease on the theory that the rope became defective through use, where there was no evidence showing that the rope was examined by the master until after the happening of the injury complained of, or that there was any change in its appearance, p. 591.</p> <p>6. Masteb and Seevant. — Unsafe Appliances. — Absence of Foreman. — Where a foreman furnishes the servant unsafe appliances, the defects not being patent, and orders him to do certain work with them, to his injury, the master is liable, though the foreman is absent when the injury occurs, p. 591.</p>

<p>1.. Statutes. — Penal.—A penal statute is one inflicting a punishment, either by fine or forfeiture, and supplies a remedy lacking in the common or statutory law. p. 594.</p> <p>2. Same. — Penal.—Strict Construction. — A penal statute must be strictly construed, p. 594.</p> <p>3. Same. — Requiring Construction of Temporary Floors. — Penal.— The act of 1903 (Acts 1903, p. 151, §§3859-3862 Burns 1908), re- • quiring that in constructing buildings of “three stories in height or more” temporary floors shall be provided, is a penal statute, the violation thereof constituting a crime, p.594.</p> <p>4. Same. — Providing Increased Compensation. — Construction.— , Statutes providing for more than actual compensation do not give to the injured party a right of action for “a newly created offense.” p. 595.</p> <p>5. ■ Same. — Penal and Remedial. — Construction.—A statute provid- . ing' a penalty recoverable by the aggrieved party, and also a fine for a violation of • its provisions, is given a strict construction as to the penalty and a liberal construction to prevent the mischief. p. 595.</p> <p>6. Pleading. — Complaint.—Statutory Cause of Action. — Plaintiff, in an action founded upon a statute, must allege all of the facts necessary to bring him within its terms, p. 596.</p> <p>7. Statutes. — Strict and Liberal Construction. — Strict construction excludes everything not within the letter of the statute, . t while liberal construction includes everything' within the spirit . thereof, p. 596.</p> <p>8. Wóeds and Piteases. — “Story.”—Statutes.—The word “story,”’ as used in §3859 Burns 3908, Acts 1903, p. 151, §1, requiring the • construction of temporary floors in buildings of “three stories in height or more,” imports a horizontal, physical division of a house, p. 596.</p> <p>9. Pleading. — Complaint.—Master and Servant. — House Construction. — Statutes.—A complaint for damages showing that plaintiff was working on the skylight of a building under construction, that such building was five stories high, that no temporary floor had been provided therein as required by §3859 Burns 1908, Acts 1903, p. 151, §1, and that by reason thereof plaintiff fell receiving severe injuries, states no cause of action, since as to the part of the building underneath the skylight there was but one “story.” p. 597.</p>

<p>1. Contracts. — Construction.—Intention.—In the construction of a contract the intention of the parties thereto must prevail. p. 600.</p> <p>2. Same. — ■BiiilcUng.—Contractors’ Bonds. — Liability to Tim'd Persons. — Where a building contractor executed to the owner a bond to secure his construction of a house and to pay all indebtedness incurred in the carrying out of such work, and providing also that “all persons who may become entitled to liens under said contract” shall have the right to sue thereon, a third person furnishing materials for such house has a right of action on such bond, though lie did not take any steps to acquire a lien upon the house, p. 601. ■</p> <p>3. Mechanics’ Liens. — Materials.—One furnishing materials to be used, and which are used, in the construction of a house is entitled to a lien therefor (§8295 Burns 1908, Acts 1899, p. 569). p. 601.</p> <p>4. Appeal. — Sufficiency of Evidence. — Want of Consideration.— Answer. — In an action upon, a building contractor’s bond, the defendant cannot, on appeal, question the sufficiency of the evidence to establish a legal consideration for the execution of such bond, where there was no answer of want of consideration. p. 602.</p> <p>5. « Same. — Excessive Damages. — Neio Trial. — The Appellate Court cannot consider- the question of excessive damages, where such charge was not made a ground for the motion for a new trial. p. 602.</p>

<p>Appeal. — Parties.—Personal Representatives. — Where a decree of foreclosure was entered against all of the defendants and also a personal judgment rendered against one, a vacation appeal taken from a subsequent motion to modify the decree must name, as parties to the appeal, the personal representatives of the one against whom the personal judgment was rendered, such defendant having died after judgment and prior to the taking of the appeal.</p>

Prom Delaware Circuit Court; Ed Jackson, Judge. Suit by Arthur L. Harriott against Timothy S. Owen and another. Prom a decree for plaintiff, defendants appeal. On motion for a writ of certiorari.

<p>1. Pleading. — Complaint.—Interurban Railroads. — Killing Stock.— Fences. — A complaint alleging that defendant interurban railroad company failed to maintain a suitable and sufficient fence along its right of way, by reason whereof, without plaintiff’s fault, plaintiff’s horse went upon the track and was there killed by defendant’s car, states a cause of action, p. 606.</p> <p>2. Railroads. — Interurban. —■ Killing Stock. — Farm Crossings. — Under §§5437-5443 Burns 1908, §§4026-4032 R. S. 1881,’ as well as by §5446 Burns 1908, Acts 1885, p. 148, §3, a landowner who constructs a private farm crossing over a railroad track, and whose stock escapes through such crossing and goes upon the track, receiving injuries' thereon, cannot recover, where defendant is not negligent, p. 609.</p> <p>3. Interurban Railroads. — Killing Stock. — Farm Crossings. — Contracts. — Under §5712 Burns 1908, Acts 1903, p. 426, §6, interurban railroad companies, in the absence of negligence, or of a contract ' to keep the gates to such crossings in repair, are not liable for stock injured or killed upon their rights of way, where such stock wandered thereon through the owners’ private farm crossings. p. 610.</p> <p>4. Railroads. — Killing Stock. — Farm Crossings. — Contracts.— Where a landowner’s stock escapes through his gate at. -his private crossing and goes upon a railroad company’s track and is killed thereon, the company, in the absence of negligence, or of a contract to keep such gate in a safe condition, is not liable. (§5451 Burns 1908, Acts 1885, p. 224, §5.) p. 611.</p>

<p>'Contbacts. — Executory—Real Estate. — Husband and Wife. — Special Findings. — A special finding that “defendants Mary Dunham and Charles .Dunham signed and executed a written contract with Mary C. Meadows, the then owner, by which contract she and her husband, Cornelius Meadows, sold said real estate to Mary Dunham,” shows that Cornelius Meadows joined in such contract, and it is therefore valid under §7853 Burns 1908, §5117 R. S. 1881, inhibiting a married woman from entering into a contract for the sale of her real estate without her husband’s joining, therein.</p>

<p>Prom Blackford Circuit Court; Charles.E. Sturgis, Judge.</p> <p>Action by Addison Scott against the LaFayette Gas Company. Prom a judgment for defendant, plaintiff appeals.</p>

From Superior Court of Tippecanoe County; Henry H. Vinton,t Judge. Action by Albert E. Eoss, as executor of the last will °f Alexander Eoss, deceased, against the Mutual Eeserve Life Insurance Company. From a judgment for plaintiff, defendant appeals.

<p>1. Quieting Title. — Adverse Possession. — Where a fence was erected in 1867 and was treated as a boundary line by the owners until 1904, the title of the parties is fixed by adverse possession. p. 628.</p> <p>2. Appeal, — Right Result. — Where the trial court reached the right result under the evidence, its judgment will not be disturbed, p. 629.</p>

Prom Lake Circuit Court; Willis C. McMahan, Judge. Action by John Yedinak, by his next friend, against the Inland Steel Company. Prom a judgment on a verdict for plaintiff for $2,000, defendant appeals. (Por decision on appeal, see 172 Ind. —.)

<p>1. Pleading. — Complaint.—Amendments.—Time of Making. — The trial court has the statutory right (§403 Burns 1908, §394 R. S. 1881) to permit the plaintiff to amend the complaint after the jury is sworn to try the cause, p. 631.</p> <p>2. Tbial. — Continuance.—Amendments to Complaint. — Where an amendment to a complaint, which changed the issues, is permitted after the trial has begun, the defendants’ remedy is a motion for a continuance, p. 631.</p> <p>3. New Tbial. — Sufficiency of Evidence. — Wor7c and Labor. — Where the evidence showed that the relator performed work for defendants under an oral contract, that defendants accepted the benefits thereof, and have not paid therefor, a verdict for such relator is supported by the evidence, p. 631.</p> <p>.4. Appeal. — Weighing Evidence. — Credibility of Witnesses. — The Appellate Court will not weigh the evidence as to the credibility of witnesses, p. 632.</p> <p>5. Wobk and Labob. — Contracts.—Gravel Roads. — Where the contractors for a gravel road employed certain parties to perform certain work, and such parties entered into a contract wi$h the relator to do a part of said work, such parties then abandoning the work, and the original contractors entered into an oral contract with relator to finish such work, relator is entitled to recover from such contractors for the work subsequently done and also to recover the money remaining in such contractors’ hands for the work previously done. p. 632.</p> <p>6. Tbial. — Variance.—Work and Labor. — Where a complaint alleged that relator performed certain work according to contract. which defendants accepted and for which defendants had not paid him, and the evidence showed that such work was done at the request of defendants’ contractors who had failed to perform the work, there is no variance, p. 632.</p>

Prom Wayne Circuit Court; Jonathan W. Newman, Special Judge. Petition by Eden S. Martindale and others, for the incorporation of a town, to which Alonzo M. Harris objects. Prom a judgment for petitioners, defendant appeals.

<p>From Randolph Circuit Court; John TV. Macy, Judge.</p> <p>Action by Eliza Stiver against the Phoenix Accident and Sick Benefit Association. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Municipal Corporations. — Secretary of City Board of Health. —Contracts with City. — The secretary of a city board of health is a city officer within the meaning of §3539 Burns 1901, §3104 R. S. 1881, inhibiting city officers from being parties to contracts with such cities, p. 647. '</p> <p>2. Contracts. — Express.—Implied.—Municipal Corporations. — Officers. — The statute (§3539 Burns 1901, §3104 R. S. 1881), making void all contracts between cities and their officers, applies to all contracts — express and implied, p. 647.</p> <p>3. Same. — City Officers with City. — Statutes.—Emergencies.—Exceptions. — A contract between a city and the secretary of the city board of health to care for a smallpox epidemic cannot be sustained on the ground that such an emergency existed as would constitute an exception to the statute (§3539 Burns 1901, §3104 R.- S. 1881, rendering void all contracts between cities and their officers), where it appeared that there were other physicians who might have been obtained, p. 648.</p> <p>4. Municipal Corporations. — Preservation of Health. — Contracts. —Municipal corporations have authority to take the necessary steps to prevent epidemics, but in order to contract with one of their officers therefor, it must be shown that an urgent necessity exists, p. 648.</p> <p>5. Same. — Epidemics.—Poor Persons. — It is the duty of cities to provide medicines and medical and other assistance to the poor in cases of epidemics, p. 649.</p>

<p>Prom Vanderburgh Circuit Court; Louis O. Bosch, Judge.</p> <p>Action by the State of Indiana, on the relation of Prances Carter, against John W. Spencer and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>1. Contracts. — Mortgages.—Frauds, Statute of. — A mere agreement by a third person to pay the mortgage debt of another is within the statute of frauds (§7462 Burns 1908, §4904 R. S. 1881) ; but where a grantee agrees, as a part of the purchase price, to pay a mortgage indebtedness, such agreement is not within such statute, p. 654.</p> <p>2. Same. — Frauds, Statute of. — A contract to pay another’s debt made directly with the creditor, even though founded upon a valuable consideration, is within the statute of frauds (§7462 Burns 1908, §4904 R. S. 1881). p.655.</p> <p>3. Pleading. — Complaint. — Contracts. — Consideration. — A complaint founded upon an oral contract, or upon a written contract which does not import a consideration, must allege a legal consideration. p. 656.</p> <p>4. Same. — Complaint.—Mortgages.—Assumption of Payment of. — A complaint alleging that certain mortgaged premises were conveyed by warranty deed to defendants “who each assumed to pay the mortgage aforesaid” does not show a personal liability, on the part of such grantees, to the mortgagee, p. 656.</p> <p>5. Same. — Contracts.—Oral or Written. — Failure to Allege. — Presumptions. — Upon a failure to allege that a contract was in writing the presumption is that it was oral. p. 656.</p>

<p>Prom Decatur Circuit Court; Marshall Hacker, Judge.</p> <p>Suit by George Menzie against the City of Greensburg and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Prom Superior Court of Marion County (68,867); Vinson Garter, Judge.</p> <p>Action by the Poster Lumber Co'mpany against the National Surety Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Corporations. — By-La/ios.—Adoption of. — Notice.—Corporations have power to adopt by-laws; and the by-laws themselves constitute, as to all stockholders, sufficient notice of their adoption. p. 680.</p> <p>2. Same. — Officers.—Salaries.—Directors of a corporation, while performing duties pertaining to their office, are not entitled to any compensation, in the absence of an express agreement therefor. p. 681.</p> <p>3. Same. — Officers.—Salaries.—The salaries of officers of a corporation may be fixed in the by-laws by the stockholders; and directors cannot fix their own salaries, unless expressly authorized so to do by the charter or by the stockholders, p. 681.</p> <p>4. Same. — Fraud.—Rights of Minority Stockholders. — Minority stockholders, where they have been injured, have the right to sue, on behalf of the corporation, in cases of fraud, conspiracy and ultra vires acts of the directors, p. 681.</p> <p>5. Same. — Constitution. — Amendments. — Reasonableness. —■ The courts have no power to pass upon the reasonableness of an amendment to the constitution of a voluntary corporation, giving the directors the right to fix their own salaries, as well as the salaries of the secretary and treasurer, p. 682.</p> <p>6. Same. — By-Laios.—Amendment.—Vote Requisite. — Where the charter of a corporation provides that it “may be amended by a vote of two-thirds at any regular or special meeting of the company,” a majority of those present, though a minority of the stockholders, may amend such charter, p.683.</p> <p>7. Same. — By-Laios.—Power of Courts Over.- — -Fraud.—Courts, in the absence of fraud or illegality, have no power to pass upon the reasonableness of by-laws, contracts, agreements or allowances of a corporation, p. 685.</p> <p>8. Same. — Fraud.—Salaries.—Equity may interfere to restrain directors from appropriating the assets of a corporation to the payment of their salaries, thus reducing the corporation to insolv; ency. p. 685.</p> <p>9 Same. — Salaries.—Directors.—Minority Stockholders. — The salaries fixed by the board of directors for themselves and'the president thereof are voidable at the option of dissenting stockholders, where injustice or oppression amounting to fraud is shown, p. 686,</p> <p>10. Corporations. — Receivers.—Injustice.—Receivers for corporations are demandable in cases of actual wrong, injustice and injury in tbe management of their affairs, p. 686.</p> <p>11. Trial. — Special Findings. — Office of. — The office of a special finding is to determine the facts upon which the judgment may rest, and if the facts necessary are not found, the judgment will fall. p. 686.</p> <p>12. Corporations. — Minority Stockholders. — Recovery of Money Due to Corporation.- — Where the proof fails to show any fraud, conspiracy, mismanagement or conversion of the funds of a corporation, by its directors, in the payment of salaries to themselves, there can be no recovery by the minority stockholders for the benefit of the corporation, p. 687.</p>

<p>Prom St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Charles A. Johnson against the Lake Shore & Michigan Southern Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Laporte Superior Court; Charles II. Truesdell, Special Judge.</p> <p>Suit by the Warren-Scharf Asphalt Paving Company against Minnie Leeds. From a decree for plaintiff, defendant appeals.</p>

<p>From Clay Circuit Court; L. F. Tilley, Special Judge.</p> <p>Action by Samuel M. McGregor against the Board, of Commissioners of the County of Clay. From a judgment for plaintiff, defendant appeals.</p>

<p>From Laporte Superior Court; Chm-les H. Truesdell, Special Judge.</p> <p>Suits by the Warren-Scharf Asphalt Paving Company. From decrees for plaintiff, defendants appeal.</p>

<p>From Boone Circuit Court; Samuel R. Artman, Judge.</p> <p>Action by the State of Indiana, on the relation of Warren Bigler, Auditor of State of the State of Indiana, against Americus C. Daily. From a j'udgment for plaintiff, defendant appeals.</p>