Volume 47 — Indiana Appellate Court Reports

<p>From the Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by John H. Cornelius against the A. D. Baker Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Warren Circuit Court; James T. Saunderson, Judge.</p> <p>Action by Solon Brier against John Mankey. Prom a judgment for defendant, plaintiff appeals.</p>

From Vermillion Circuit Court; Gould G. Rheuby, Judge. Suit by William L. Morey and others against the Terre Haute Traction and Light Company and another. Prom a judgment for defendants, plaintiffs appeal.

<p>Prom Cass Circuit Court; John S. Lairy, Judge.</p> <p>Action by Albaugh Brothers, Dover & Co. against George H. Lynas and others. Prom a judgment for defendants, plaintiff appeals.</p>

From Hancock Circuit Court; Robert L. Mason, Judge. Action by William N. Springer against the Indianapolis Traction and Terminal Company and another. From a judgment on a verdict for the plaintiff for $4,000, defendants appeal.

From Marion Circuit Court (16,222); Henry Clay Allen, Judge. Action by Emma Riggs, as administratrix of tbe estate of Lawrence Riggs, deceased, against the Central Union Telephone Company. From a judgment on a verdict for $5,000 for plaintiff, defendant appeals.

<p>Prom Superior Court of Vanderburgh. County; Alexander Gilchrist, Judge.</p> <p>Suit by tlie Citizens National Bank of Evansville, Indiana, against Otto L. Klauss, as treasurer of Vanderburgh county. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Prom Posey Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Catherine Polz against the Evansville Electric Railway Company. Prom a judgment on a verdict for plaintiff, for $1,500, defendant appeals.</p>

Prom Cass Circuit Court; Frank D. Butter, Special Judge. Action by Lyman Ó. Smith, as administrator of the estate of David J. Smith, deceased, against the City of Logansport. Prom a judgment for the plaintiff, defendant appeals.

<p>From Daviess Circuit Court; Hileary Q. Houghton, Judge.</p> <p>Action by the First National Bank of Loogootee, Indiana, against Yan Burén School Township of Daviess County. From a judgment for defendant, plaintiff appeals.</p>

From Superior Court of Marion County (73,418) -r John L. McMaster, Judge. Action by Charles E. Norman, by his next friend, against J. Irving Holcomb. From a judgment on a verdict for $4,000 for plaintiff, defendant appeals. (For decision on motion for writ of certiorari, see 43 Ind. App. 506.)

<p>1. Judgment.— Collateral Attack.■ — Notes.— Garnishment. — In an action on a note, wherein the defense was that the maker of the note was garnished by the payee’s creditor and that a judgment in garnishment was rendered and paid, a denial of the validity of such judgment constitutes a collateral attack thereon, and must fail unless the judgment is void. p. 102.</p> <p>2. Attachment and Garnishment. — Commencement of Action.— Process. — Statutes.—Under §9G6 Burns 1908, Acts 1897 p. 233, providing that “if at the time such action [attachment and garnishment] is commenced or at any time afterwards, whether a writ of attachment has been issued or not, the plaintiff” may file an affidavit and secure a writ commanding any person to answer as garnishee, an action is “commenced” at the time of filing the complaint, although §317 Burns 1908, §33á R. S. 1881, provides that an action shall be deemed commenced against a nonresident “from the time of the first publication” of notice, such latter statute referring primarily to the limitation of actions, since a contrary holding would evidently frustrate tho primary purpose of tho proceeding for attachment and garnishment, pp. 102,105, 107, 111.</p> <p>3. Attachment and Garnishment. — Writs.—Time of Issuance.— Writs of attachment may issue at the time of filing the complaint, or afterwards, p. 104.</p> <p>4. Attachment and Garnishment. — Judgment.—IIow Rendered.— Prior to 1897 (Acts 1S97 p. 233) no judgment could be recovered against a garnishee unless a writ of attachment had been issued and a judgment had been rendered against the attachment defendant. p. 104.</p> <p>5. Attachment and Garnishment. — Procedure.—Tho procedure in attachment is essentially tho same as it is in garnishment, the one being applicable to tangible, and the other to intangible property. p.305.</p> <p>O. Attachment and Garnishment.— Statutes.— Amendments.— Tlio act of 1897 (Acts 1897 p. 233) amending the attachment and garnishment law must be construed with such law, and has the same effect, as to matters arising subsequent to its enactment, as if it had been originally enacted as a part of the original law. p. 105.</p> <p>7. Attachment and Garnishment.— Statutes.— Remedial.— Construction. — The garnishment statute of 1S07 (Acts 1S97 i). 233) being remedial, should be liberally construed to carry out the purpose of its enactment, p. 107.</p> <p>8. Statutes. — Purpose.—Terms.—Construction.—Where the purpose of a statute is clear, a construction will bo given thereto which will carry out such purpose, though such construction be contrary to the strict letter of the statute, p. 107.</p> <p>9. Action. — Commencement of. — Jurisdiction.—Parties.—The court has jurisdiction over the plaintiff as soon as his complaint is filed, p. 109.</p> <p>10. Attachment and Garnishment. — Jurisdiction.—The filing of Xilaintiff’s comiilaint and affidavit of defendant’s nonresidence, in a garnishment case, together with the publication of a proper notice, there being debts due to the defendant from persons within the county, gives to the court jurisdiction in such case, p. 110.</p> <p>11. Attachment and Garnishment. — Jurisdiction.—Where plaintiff fih'd his complaint, caused summons to be issued for defendant, which was returned “Not found,” afterwards filing his affidavit of defendant debtor’s nonresidence, together with affidavits in attachment and garnishment, and a writ of attachment was issued and returned “No property found,” and a writ of garnishment was issued and a nonresident notice seasonably published, the court has jurisdiction to render a judgment in garnishment. p. 110.</p> <p>12. Judgment. — Form of. ■— Payment. — Collateral Attack. — The form of a judgment that is within the issues, where jurisdiction of the parties and subject-matter exists, cannot be questioned in a collateral attack; and a garnishee’s payment of such judgment will be a complete defense to an action on the debt, where the question arises on a collateral attack, p. 111.</p>

<p>1. Insurance. — Beneficial Associations. — Policies.—Actions on.— Basis of. — In an action against a mutual benefit society on a certificate, such certificate constitutes the basis of the action, where the by-laws are made a part of the certificate by reference only. p. 115.</p> <p>2. Evidence. — Burden of Proof. — Insurance.—Suicide.—In an action on an insurance certificate, where the defense is suicide, the defendant has the burden not only of mating a prima facie showing thereof, but also of proving such defense to the overthrow of all proof to the contrary, p. 115.</p> <p>3. Insurance. — Suicide.-—Proofs of Death. — Admissions.—Proofs of death containing either facts or opinions tending to show suicide, are not conclusive evidence thereof, p. 115.</p> <p>4. Insurance. — Suicide.—Conflicting Evidence. — Perempto'ry Instructions. — Where the evidence of assured’s death points strongly to suicide but there is evidence from which a contrary inference might be drawn, it is erroneous to give a peremptory instruction for the defendant, pp. 115,117.</p> <p>5. Insurance. — Suicide.—Evidence.—Evidence of an accidental or unintentional death caused by assured will not sustain the defense of suicide, p. 116.</p> <p>6. Appeal. — Right Result. — Insurance.—Suicide.—Peremptory Instruction. — Where the evidence as to assured’s death by suicide was conflicting, the giving of a peremptory instruction for defendant cannot be justified on the ground that a right result was reached, since it is impossible to determine that a right result was reached, p. 117.</p>

<p>1. Appeal. — Evidence not in Record. — Instructions.—Presumptions. —In the absence of the evidence, instructions will not be regarded as erroneous if justified by any evidence admissible within the issues, p. 120.</p> <p>2. Animals. — Vicious.—Negligence.—The owner of a vicious dog, knowing him to bo such, is liable to a person injured by such dog, without his fault; and it is not necessary for the injured person to prove negligence in the securing of such dog. p. 120.</p> <p>3. Appeal. — Evidence not in Record. — Instructions.—Vicious Dogs. ■ — Notice.-—Express and Implied. — Where an instruction states that the owner of a vicious dog is liable for injuries indicted thereby, upon proof of notice, express or implied, that the dog was vicious, the court ou appeal, in the absence of the evidence, will presume that there was evidence of express notice, pp. 120, 121.</p> <p>4. Appeal. — Evidence not in Record. — Instructions.—Where instructions would be incorrect under any admissible evidence, the judgment will be reversed, though the evidence is not in the record. p. 121.</p> <p>5. Animals.— Vicious.— Implied Notice.— Liability.— The owner of a vicious dog is liable to an injured person upon proof of implied notice of the animal’s vicious propensities, pp. 121,122.</p> <p>G. Animals.— Dogs.— Viciousness.— Notice of.— Evidence.— Evidence that a dog is ferocious is, under some circumstances, sufficient to charge his keeper with notice of the dog’s propensity to attack persons. x>-122.</p> <p>7. Animals. — Dogs.—Viciousness. — Notice. — Evidence of. — The purpose for which a watch dog is kept, is evidence of the vicious character of such dog, and authorizes an inference that the owner knew of his propensity to attack persons, p. 122.</p> <p>8. Animals. — Viciousness of. — Notice.—Evidence.—Proof of the savage and ferocious disposition of an animal is equivalent to proof of express notice to the owner of such disposition, p-122.</p>

<p>1. Appeal. — Briefs.—References to Transcript. — A brief which under the “Statement of the Record” fails to set out the page and line of the transcript on which the questioned paragraph of complaint is found, properly presents the alleged error, where under “Errors Relied on for Reversal,” the page and line of the transcript are pointed out. p. 129.</p> <p>2. Appeal. — Briefs.—Errors.—Where only one error is relied upon for reversal, the court will assume that all authorities cited in appellant’s brief, under the heading “Points and Authorities,” refer to such error, p. 129.</p> <p>3. Master and Servant. — Railroads.—Employers' Liability Act.— Complaint. — A complaint alleging that the plaintiff was a servant of defendant railroad company, that defendant’s section foreman ordered him to load the shovels, picks and other tools upon the hand car and to get upon such car and go to another point and make certain repairs, that plaintiff obeyed, that such foreman so negligently operated such car as to throw the plaintiff therefrom, to his great injury, states a cause of action (if such subdivision is valid) under subdivision two of section one of the employers’ liability act (Acts 1893 p. 294, §8029 Burns 190S), providing that “every railroad * * * corporation * * * shall be liable * * * for personal injuries, * * * where such injuries resulted from the negligence of any person in the service * * * to whose order * * * the injured employe * * * was bound to conform, and did conform.” pp. 130,133.</p> <p>4. Master and Servant. — Employers’ Liability Act. — Complaint.— Essentials. — To state a cause of action against a railroad company under subdivision two of section one of the employers’ liability act (Acts 1803 p. 294, §8029 Burns 1908) the complaint must show (1) that the plaintiff was a servant of such company, (2) that the person giving the order was a servant of such company and that the plaintiff was bound to comply and did comply with the order, (3) that the order was special, and (4) that the order was negligently given, or that, in properly performing it, the plaintiff was injured by some negligent act or omission of the servant giving the order, p. 130.</p> <p>5. Master and Servant. — Employers’ Liability Act. — Liability.—• Special Orders. — What are. — Under subdivision two' of section one of the employers’ liability act (Acts 1893 p. 294, §8029 Bums 1908), providing that railroad companies shall bo liable where injuries to employes are received because of the negligence of any other servant to whose order the plaintiff was bound to conform and did conform, the plaintiff can recover only where the order was a specific or special one; and an order for a section hand to load the tools upon, a hand car and go with the section foreman to a certain place to do other work, is a special order, p. 131.</p> <p>O. Master and Servant. — Section Foreman. — Negligence.—Common Law. — A complaint against a railroad company alleging that the section foreman so negligently managed the brake of the hand car on which the section hands were riding that the plaintiff was thrown therefrom, does not state a cause of action at the common law. p. 133.</p> <p>7. Constitutional Law.— Fourteenth Amendment.— Railroads.— Employers’ Liability Act. — Subdivision two of section one of the employers’ liability act (Acts 1S93 p. 294, §8029 Burns 1908), providing that every railroad company shall be liable where injuries to an employe were caused by the negligence of another employe, to whose order the injured one was bound to conform ■ and did conform, does not violate the Fourteenth Amendment to the federal Constitution, p. 136.</p> <p>8. Constitutional Law. — Federal Decisions. — Binding Effect.— The decisions of the federal Supreme Court, in relation to the federal Constitution, are binding upon the state courts, p. 139.</p> <p>9. Constitutional Law. — Federal Decisions. — State Statutes.— Decisions of the federal Supreme Court as to whether state statutes violate the federal Constitution are binding upon the state courts, pp. 139,140.</p> <p>10. Appeal. — Constitutional Questions. — Transfers.-—The Appellate Court has no jurisdiction to determine constitutional questions; and where an appeal containing such a question is transferred to such court, it will be presumed that such question has been settled by the Supreme Court, pp. 139,140.</p> <p>11. Appeal. — Transfer.—Where the Appellate Court deems a ruling precedent erroneous, the appeal should be transferred to the Supreme Court, with a’ proper recommendation, p. 141.</p>

From Fountain Circuit Court; Jere West, Special Judge. Action by John C. Yester, as administrator of the estate of Bernard Polk, deceased, against the Chicago and Eastern Illinois Railroad Company. From a judgment on a verdict for $4,000 for plaintiff, defendant appeals.

<p>From Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Thomas MeGraw against Addison B. Nickey and others. From the order made, plaintiff appeals.</p>

Prom Probate Court of Marion County (9,098); Frank B. Boss, Judge. Action by Laura McKee against James McKee, as executor of the will of Rhoda Rariden, deceased, and others. Prom a judgment for plaintiff against such executor, he appeals.

Prom Marshall Circuit Court; Harry Bemetha, Judge. Action by Nancy J. Zehner against Melissa J. Taber and another, as administrators of the estate of Thomas O. Taber, deceased, and others. Prom a judgment for plaintiff against such administrators, they appeal.

<p>Prom White Circuit Court; J ames P. Wason, Judge.</p> <p>Action by Eric Lund against the Board of Commissioners of the County of Newton. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Tkial. — Special Findings. — Want of Request for. — Appeal.—A special finding will be treated on appeal as a general finding, where there was no request therefor, p. 182.</p> <p>2. Judgment. — Jurisdiction.—Support.—In an action for support, where the defendant was served with summons and he appeared and answered, the court has jurisdiction of the person and of the subject-matter, p. 183.</p> <p>3. Divokce. — Alimony.—Measure of. — The amount of alimony to be given is largely discretionary, but consideration should be given to the husband’s financial condition and to his income, p. 183.</p> <p>4. Husband and Wipe. — Children.—Support.—Actions for. — Character of Judgment. — Under §7871 Burns 1908, §5134 R. S. 1881, providing that “the court may make such orders and allowances, in the nature of alimony, out of the husband’s estate, as may seem just and equitable and for the best interests of such wife and children,” a personal judgment for the support of a wife and child may be given for a gross amount, p. 183.</p>

From Marion Circuit Court (15,332); Henry Clay Allen, Judge. Action by Joseph M. McCollum, as guardian of Joseph W. Roebuck, a person of unsound mind, against the Cincinnati, Hamilton and Dayton Railway Company and others. From a judgment on a verdict for plaintiff for $4,500, defendant Cincinnati, Hamilton and Dayton Railway Company appeals.

Prom Hancock Circnit Court; Robert L. Mason, Judge. Action by Henry Snow, as administrator of the estate of Wesley Addison, deceased, against the Indianapolis and Eastern Railway Company, and another. Prom a judgment for defendants, plaintiff appeals.

<p>1. Contbacts. — Lex Loci Contractus. — Offer and Acceptance.— Letters. — Where a person makes an offer by letter and it is accepted by the offeree by the mailing of a letter of unconditional acceptance, the contract is complete at the time and place of the mailing'of the letter of acceptance, p. 203.</p> <p>2. Contracts. — Insurance.—Offer and Acceptance. — Optional Policies. — Where defendant applied for an insurance policy at tlie office of the company at Cincinnati, Ohio, and a policy was duly mailed to the applicant, but the policy contained a privilege to the applicant to return it within a specified time, the contract was not complete until such time expired, and the place of the contract is the residence of the applicant, p. 203.</p> <p>8. Contracts. — Insurance Policies. — Options.—Acceptance.—Where an applicant receives an insurance policy containing an option whereby he may return it within a certain time, liis intentional or unintentional retention of the policy beyond such time constitutes an acceptance of the policy, p. 203.</p> <p>4. Appeal. — Weighing Evidence. — The Appellate Court cannot weigh conflicting evidence, p. 203.</p>

Prom Clark Circuit Court; Harry G. Montgomery, Judge. Action by Albert Nachand, by his next friend, against the American Car and Foundry Company. Prom a judgment on a verdict for the plaintiff for $1,000, defendant appeals.

<p>Prom Lake Circuit Court; W. C. McMahan, Judge.</p> <p>Suit by Robert P. Downey and others against Albert Sebienske and others. Prom a decree for plaintiffs, defendants appeal.</p>

<p>Appeal. — Transfer.—Constitutional Law. — An appeal to the Appellate Court, presenting a question of constitutional law, will be transferred to tbe Supreme Court.</p>

<p>Prom Jay Circuit Court; John F. La Follette, Judge.</p> <p>Suit by Reeves & Co. against William E. Gillette. Prom a decree for plaintiff, plaintiff appeals.</p>

<p>From Hendricks Circuit Court; James L. Clark, Judge.</p> <p>Action by John Broderick, by his next friend, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Prom Scott Circuit Court; William G. Utz, Special Judge.</p> <p>Suit by Ora Belle Dixon Stewart against John C. Wells and others. Prom a decree for said Wells, plaintiff appeals.</p>

<p>From ‘Washington Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Appeal by Sarah E. Myers and others against Henry G. Reynolds from a survey. From a judgment for appellee, appellants again appeal.</p>

<p>Prom Elkhart Superior Court; Vernon W. VanFleet, Judge.</p> <p>Action by Ella B. Miller against Andrew J. Miller, as ad- • ministrator of the estate of Elizabeth Miller, deceased. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Henry Circuit Court; Ed Jackson, Judge.</p> <p>Suit by Clay C. Hunt and others against the Town of New Castle and others. From a decree for plaintiffs, defendants appeal.</p>

Prom Delaware Circuit Court; Joseph G. Leffler, Judge. Action by Edward L. Bundrant, as executor of the will of Prances J. Williams, deceased, against James Boyce and another. Prom a judgment for defendants, plaintiff appeals.

<p>From Tippecanoe Circuit Court; B. P. DeHart, Judge.</p> <p>Action by Adeline Irwin and others against Thomas Everett. From a judgment for plaintiffs, defendant appeals.</p>

<p>From Superior Court of Allen County; J. H. Bose, Special Judge.</p> <p>Suit by Sarah J. Savin against the First National Bank of Fort Wayne, Indiana, and another. From a decree for plaintiff, defendant bank appeals.</p>

Prom Jackson Circuit Court; Joseph H. Shea, Judge. Pinal report of Eliza Leyhan, as administratrix of the estate of Timothy J. Leyhan, deceased, to which Catherine Leyhan excepts. Prom a judgment overruling such exceptions and approving such report, exceptor appeals.

<p>From Superior Court of Tippecanoe County; Truman F. Palmer, Special Judge.</p> <p>Suit by Thieme & Wagner Brewing Company against William Kessler. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Eminent Domain.— Title Acquired.— Canals.— Public.- — The State, in condemning lands for the Wabash and Erie canal, acquired a fee-simple title, p. 289.</p> <p>2. Deeds. — Easements.—Canals.—A deed to the State of Indiana, conveying lands fronting on the Wabash and Erie canal, “for the sole and only purpose of using the water-power created on the premises by the Wabash and Erie canal * * * and none other,” conveyed an easement only, and the State’s grantees received no greater rights therein, p. 290.</p> <p>3. Quieting Title. — Evidence.—Essentials.—The plaintiff, in a quiet title case, must recover, if at all, upon the strength of its own, and not upon the weakness of defendants’ title, p. 290.</p>

<p>Prom Blackford Circuit Court; Charles E. Sturgis, Judge.</p> <p>Suit by George W. Close and another against Samuel B. Twibell and others. Prom a judgment for defendants, plaintiffs appeal.</p>

<p>1. Appeal. — Briefs.-—Omissions by Appellant. — Supply by Appellee. —Where appellant’s brief omits, but appellee’s brief supplies, the necessary parts of the record, for the consideration of the questions sought to be presented, such questions will be considered, p. 302.</p> <p>2. Pleading. — Answer.—Partial.—A partial answer addressed to an entire complaint is bad. p. 302.</p> <p>3. Pleading. — Set-Off.—Admissions.—A plea of set-off for an amount alleged to be due to the defendant under the contract sued upon, admits the execution of such contract, p. 303.</p> <p>4. Contracts. — Restraint of Trade. — Trusts.—Anstoer.—An answer purporting to show that the contract sued upon constitutes a trust and combination in restraint of trade, must allege that such contract is unlawful, p. 303.</p> <p>5. Contracts. — Restraint of Trade. — Trusts. — Answer. — An answer that the plaintiff’s predecessor, at the time of the execution of the contract sued upon, was a combination formed for the purpose of controlling the manufacture and the sale of the goods contracted for, and that the plaintiff purchased all of such predecessor’s property, good-will and dioses in action, and assumed all its business, liabilities and contracts, is bad, where it is not alleged that the plaintiff is a trust or combination in restraint of trade, or that such purchase was for an unlawful purpose. p. 303.</p> <p>O. Contracts. — Sales.—Restraint of Trade. — Illegal Conditions.— Rebates. — Consideration.—Where a contract provides that if the vendee shall buy exclusively from the vendor for a certain time such vendor will give to the vendee a rebate, the consideration for the rebate is the agreement for exclusive purchase, and if such agreement is void the agreement to pay the rebate is unsupported by any consideration, and therefore falls, p. 303.</p> <p>7. Contracts. — Unilateral.—Promise.—Performance.—A proposal that if a vendee shall purchase from the vendor all of the materials needed during the year 1908, the vendor, at the end of such year will give the vendee a certain rebate, constitutes a contract only upon performance of the conditions by the vendee, p. 303.</p> <p>8. Contracts. — Rebates.—Validity.—There is nothing morally nor legally wrong in a contract to pay a rebate, p. 304.</p> <p>9. Contracts. — Breach.—Ansioer.—Monopolies.—An answer, in an action for goods sold and delivered under a contract, that the plaintiff had a monopoly of such goods and that the defendant could not obtain them elsewhere, is bad. p. 306.</p> <p>10. Appeal. — Presentation of Questions. — Answers.—Averments.—■ The absence of direct and specific averments in an answer will not prevent its consideration on appeal, where its purpose clearly appears, p. 307.</p> <p>11. Contracts. — Actions on. — Defenses.—Monopolies.—The fact that the plaintiff corporation was organized and is acting in violation of the state and federal anti-trust laws constitutes no defense to an action by it to enforce its contracts for goods sold and delivered, the duty of enforcing such laws being upon the state and federal prosecuting officers, unless the plaintiff cannot •establish his case without the aid of the illegal acts. pp. 308, 309.</p> <p>32. Monopolies. — Dissolution.—Contracts.—Ordinarily the validity of a combination or trust can be determined only in a direct proceeding instituted by the state or federal government for that purpose, or in an action growing out of the contract under which the alleged monopoly exists, p. 308.</p>

<p>From Rush. Circuit Court; Elmer J. Binford, Special Judge.</p> <p>Action by Bartholomew Landers against the United States Board and Paper Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Warrick Circuit Court; Boscoe Kiper, Judge.</p> <p>Action by Margaret Leach against Eugene Sargeant and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Prom Putnam Circuit Court; John M. Bawley, Judge.</p> <p>Action by Joseph J. Doan against the Cleveland, Cincinnati, Chicago and St. Louis Eailway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Contracts. — Performance.—Repudiation.—Complaint.— A complaint for breach of contract, alleging that defendants repudiated the contract, need not allege performance on plaintiff’s part, p. 332.</p> <p>2. Appeal. — Questions Presented. — Demurrer to Complaint. — Special Findings. — Where the demurrer to the complaint and exceptions to the conclusions of law present the same questions, a decision on the latter suffices for both, the ultimate rights of the parties depending upon the facts, p. 332.</p> <p>8. Trial.— Special Findings.— Fkcceptions.— Sufficiency of Complaint. — In deciding whether the conclusions of law were properly stated on the special findings, the court necessarily determines the sufficiency of the complaint; but the special findings cannot supply omitted averments in the complaint, though they may show rulings on the complaint to be harmless, p. 332.</p> <p>4. Contracts. — Breach.—Special Findings. — Special findings showing that defendants contracted to complete plaintiff’s building within a certain time, that they failed to do so, that such failure was not unavoidable, that after the expiration of the time for completion plaintiff demanded that the defendants complete the contract, and that defendants refused so to do, sustain a judgment for the plaintiff, p. 333.</p> <p>5. Appeal. — Overruling Demurrer. — Special Findings. — Right Result. — The overruling of a demurrer to the complaint is immaterial, where the special findings show that a right result was reached, p. 334.</p> <p>6. Appeal. — Rehearing.—Remittitur.—Where plaintiff’s judgment is too large, a petition for a rehearing prayed by defendants may he overruled on the condition that plaintiff enter a remittitur for the excess, p. 335.</p>

From Superior Court of Yigo County; James E. Piety, Special Judge. Intervening petition by John W. Herron, as administrator de bonis non, with the will annexed, of the estate of E. A. Kinsey, deceased, in a suit by the Whitely Malleable Castings Company against the Terre Haute Manufacturing Company. Prom a judgment against petitioner, he appeals.

<p>From Grant Superior Court; William H. Carroll, Special Judge.</p> <p>Action by William D. Leach against Charles W. Cole. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Judgment.- — Actions to Review. — Contracts for Sale of Real Estate. — Commissions.—Retention of, by Owner for TMrcl Person. — A complaint to review a judgment is insufficient, where the complaint on which the judgment rests alleged that the plaintiff therein was employed by defendants’ agents to sell a certain tract of land, and that defendants paid to such agents two-thirds of the agreed commission and retained one-third for the plaintiff, since the contract on which the action was based was not the contract for commission, but the special agreement with such agents to pay the one-third retained to the plaintiff, p. 350.</p> <p>2. Contracts. — Beneficiaries.—Actions by. — A beneficiary may maintain an action on a contract made for his benefit, p. 351.</p> <p>3. Frauds, Statute oe. — Contracts to Pay Debts of Others. — An agreement by the owner of real estate with his agents to pay to a third person one-third of the commission on a certain sale of real estate, which he retained in his settlement with such agents, is not within the statute of frauds, p. 351.</p> <p>4. Judgment. — Action to Revieio. — Nature of. — An action to review a judgment is in the nature of an appeal, and is triable by the record alone, the judgment being set aside only for errors which would work a reversal of the judgment on appeal, p. 351.</p> <p>5. Judgment. — Actions to Revieio. — Presumptions.—In an action to review a judgment every presumption is indulged in favor of such judgment; and the plaintiff therein must affirmatively show that the complaint was insufficient, or that the court did not have jurisdiction of the subject-matter, or the person, p. 351.</p> <p>6. Action. — Where Commenced. — Process.—Agents.—Natural persons, as well as domestic and foreign corporations, may be sued in the county where they transact business, and process may be served upon their agents, or other persons authorized to transact business for them. p. 351.</p>

From Clark Circuit Court; Harry C. Montgomery, Judge. Action by Otto J. Hampel, as administrator of the estate of Elizabeth Hampel, deceased, against Christian W. Hampel and others. From the judgment rendered, plaintiff appeals.

<p>From Sullivan Circuit Court; Charles E. Henderson, Judge.</p> <p>Action by Thomas Brown against the Shirley Hill Coal Company. From a judgment for defendant, plaintiff appeals. (For opinion on transfer from Supreme Court, see 173 Ind. 133.)</p>

<p>From Delaware Circuit Court; Ed Jackson, Special Judge.</p> <p>Suit by Arthur L. Harriott against Timothy S. Owen and another. From a decree for plaintiff, defendant Owen appeals. (For decision on motion for a writ of certiorari, see 42 Ind. App. 604.)</p>

<p>1. Carriers. — Railroads.—Freight.—Failure to Folloio Directions. —Liability. — A railroad company that receives goods under contract to ship by a special route is liable as an insurer if such goods are shipped over a different route, p. 375.</p> <p>2. Carriers. — Connecting.—Liability.—Railroads.—Negligence.— A connecting railroad company is liable to the owners for damages resulting in transporting their goods received from another company, regardless of negligence, pp. 370, 3S0.</p> <p>3. Carriers. — Freight.—Complaint.—Negativing Contributory Negligence. — A complaint against railroad companies for failure safely to transport goods is not required to negative contributory negligence, p. 376.</p> <p>4. Carriers.— Freight.— Complaint.— Mssentials.— Defenses.-— A complaint against common carriers for failure safely to transport goods which shows delivery of the goods to, and receipt by, such carriers, a failure safely to transport, and resulting damages, is sufficient; since contractural limitations of liability, and excuses for failure safely to transport, constitute defenses which must be pleaded and proved. (§3918 et seq. Burns 1908, Acts 1905 p. 58). pp. 370,382. *</p> <p>5. Appeal. — Harmless Error. — Ruling on Paragraph of Complaint on Which Judgment Was Not Founded.- — A ruling on a paragraph of complaint on which the judgment was not founded, even if erroneous, is harmless, p. 378.</p> <p>6. Carriers. — Freight.—Failure Safely to Transport. — Negligence. —Evidence.-—Where no special defense is made to an action against common carriers safely to transport goods, it is not necessary for the plaintiffs to prove defendants’ negligence, p. 379.</p> <p>7. Carriers. — Freight.—Failure Safely to Transport. — Insecure PacMng. — Burden of Proof. — In an action by shippers against railroad companies for failure safely to transport goods, the burden is upon defendants to plead and prove any excuses therefor, such as insecure packing of the goods, p. 379.</p> <p>S. Appeal. — Weighing Evidence. — The verdict is conclusive upon the Appellate Court, where the evidence was conflicting, p. 379.</p> <p>9. Cabbiees. — Freight.—Failure Safely to Transport. — Contractual Limitations. — Exclusion of Evidence of. — -It is proper to exclude evidence of a bill of lading in an action against railroad companies for failure safely to transport goods, where there was no answer setting out any limitation of the companies’ liability, p. 379.</p> <p>10. Carriers. — Freight.—Failure Safely to Transport. — Verdict.— Evidence. — The plaintiffs’ failure to show which of two railroad companies, jointly sued for failure safely to transport goods, caused the damage, does not render ineffective a general verdict against both companies, p. 380.</p> <p>11. Carriees. — Freight.-—Failure Safely to Transport. — Evidence. —Sufficiency.—Evidence that the plaintiffs delivered to the initial railroad carrier the goods alleged to have been damaged, and that they were received at their destination in a damaged condition, supports a judgment for the plaintiffs, where no special defenses were pleaded, p. 380.</p> <p>12. Carriers. — Freight.—Condition, when Received.- — -Presumptions. — Defenses.-—The disputable presumption is that goods are in good condition when received for transportation, the burden, in an action for damages thereto, being upon defendant to plead and prove that they were not. p. 380.</p> <p>13. Carriers. — Connecting.—Condition of Goods Received. — Presumptions. — In an action by the shipper against the last carrier the disputable presumption is that the goods were received in good condition by such carrier, p. 381.</p> <p>14. Damages. — Excessive.—Goods Transported. — In an action for the defendants’ failure safely to transport plaintiffs’ goods, the damages awarded should be the amount of the diminution of the real value, the fact that plaintiffs bought the goods at a bargain being immaterial, p. 3S1.</p> <p>15. Carriers. — Transporting Freight.- — Instructions.—References to Complaint. — The giving of instructions referring to the. complaint without stating its allegations, though not commendable, does not constitute reversible error, p. 381.</p> <p>16. Statutes. — Remedial.—Garriers.—Actions.—Regulating Pleading and, Proof. — Presumptions.—Words and Phrases. — The act of 1905 (Acts 1905 p. 58, §3918 et seq. Burns 190S) regulating the pleading and proof in actions against common carriers for failure safely to transport goods, is remedial and should be construed with former statutes, the presumption being that it changed the common law, and that the words and phrases therein were used in their ordinary meaning, p. 382.</p> <p>17. Carriers.' — Initial.—Liability for Entire Carriage.- — Instructions. — The giving of an instruction that the initial carrier, unless exempted therefrom by a contract in writing, is liable for the safe carriage, for the entire route, of the goods shipped, though erroneous in restricting the exemption to a written contract, an oral one being valid, does not constitute reversible error, where no contract was offered in evidence and where the general denial only was pleaded, p. 383.</p>

<p>From Probate Court of Marion County (8517); Frank B. Boss, Judge.</p> <p>Proceeding by Olive Swerer and others against John F. Gray and others. From an order for plaintiffs, defendants appeal.</p>

<p>From Porter Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by the Allegheny Forging Company against the Haskell and Barker Car Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Henry Circuit Court; Ed Jackson, Judge.</p> <p>Action by John P. Livezey against the Indiana Rolling Mill Company. Prom a judgment on a verdict for plaintiff for $2,000, defendant appeals.</p>

<p>1. Appeal. — 'Weighing Evidence. — Telegraphs and Telephones. — A verdict in favor of an administratrix for the death of her husband, alleged to have been caused by a current of electricity generated by defendant light and heat company and negligently permitted to escape to a telephone company’s wires and by such company negligently permitted to escape to the city’s wires, is conclusive of such facts on appeal, where the evidence is conflicting, p. 408.</p> <p>2. Pleading. — Complaint.—Prolixity.—A lengthy complaint will be sustained, on appeal, if it contains the essential averments, p. 408.</p> <p>3. Electricity. — Telegraphs and Telephones. — Negligence.—Evidence. — Evidence that defendant light and heat company had trouble during a stormy night from the escape of electricity, that several accidents happened from electricity in the vicinity, and that such company was the only one conveying high currents in the vicinity, sustains a verdict that such company produced the electricity that killed the plaintiff’s decedent, alleged to have been killed by the negligence of such company and of a telephone company in carrying a current to the city’s wires, though the place of contact of the wires was not shown, p. 408.</p> <p>4. Evidence. — Burden of Proof. — Civil Actions. — A preponderance of the evidence entitles the plaintiff to recover in a civil action, p. 400.</p> <p>5. Electricity. — Escape.-—Negligence.—Evidence.-—In an action against a light and heat company for negligently killing a policeman using a police telephone box, evidence that decedent was killed by electricity generated by such company and conveyed to such box, makes a prima facie case of negligence, p. 410.</p> <p>6. Electbicity. — Liability for Injuries by. — Persons conveying electricity along the public highways of the State are required to use care commensurate with the danger connected therewith, p. 410.</p> <p>7. Electeiciiy.— Escape.— Negligence.— Interrogatories.— In an action against a light and heat company and a telephone company for negligence in generating and conveying a deadly current to the city's police telephone wires, thereby killing a policeman, answers to interrogatories to the jury that the point of escape of electricity was not shown, do not entitle either defendant to a judgment, the plaintiff being required to prove only that it did escape, the place thereof being uncontrolling, p. 411.</p> <p>S. Electbicity. — Escape.—Negligence.—Complaint.—A complaint showing that defendants negligently conveyed 2,250 volts of electricity into a police patrol box, and that when a patrolman attempted to use such box he was instantly killed' thereby, sufficiently shows that such negligence was the cause of his death, p. 411.</p>

<p>1. Ticlegkaphs and Telephones. — Carriers.—Duties.—Public telephone companies are common carriers, and must treat all customers impartially, p. 418.</p> <p>2. Telegkapiis and Telephones. — Contracts.—Monopolies.—A contract, made by local telephone companies for the construction of a competitive long-distance line, obligating defendant telephone company to transmit, over plaintiff telephone company’s lines, all telephone messages originating on defendant’s lines and which are to be transmitted to points on plaintiff’s lines, but not preventing defendant from connecting with other companies’ lines. is not invalid, where the public is as well served by plaintiff as by the other companies, and where plaintiff was compelled to expend a large sum in order to care for such business, pp. 418,421, 423.</p> <p>3. Telegrai>hs and Telephones. — Contracts.—Public Rights.— Telephone companies cannot contract in disregard of the convenience of the public, or to deprive the public of the best and least expensive service, p. 420.</p>

<p>From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by Bennett Whitehead against Mary S. Stock-well. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Evidence. — Railroads.—Statutory Signals.- — Admissions.—In an action for damages for injuries received at a railroad crossing on account of tlie alleged failure to give the statutory signals, testimony that plaintiff stated that he heard the train, but thought he had time to cross the track, is admissible, p. 434.</p> <p>2. Evidence.— Confidential Communications.— Physicims.— Common Law. — At the common law confidential communications made to a physician were not privileged, but they are now by statute. (§520 Burns 1908, §497 R. S. 1881.) p.434.</p> <p>3. Evidence. — Communications to Railroad Surgeon. — Communications made to a railroad company’s surgeon by a person injured at a railroad crossing are not privileged, where such surgeon did not treat the case, and where he informed such person that his object was to secure information for the use of the company, pp. 434,438.</p> <p>4. Evidence. — • Confidential Communications.— Burden of Showing. — The burden of showing communications to be confidential rests upon the party asserting that they are such. p. 437.</p>

Prom Madison Circuit Court; John F. McClure, Judge. Intervening petition by William P. Randall and others against Wagner Glass Company and others. Prom an insufficient judgment for plaintiffs, they appeal.

<p>Prom Randolph Circuit Court; J. W. Macy, Judge.</p> <p>Action by Hal H. Coffel against Ambrose G. Lupton, as executor of the last will of Eliza Lupton, deceased. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Tipton Circuit Court; James F. FlUoii, Judge.</p> <p>Suit by Mary I. Miller against. Luton L. Cook, as treasurer of Tipton county, and another. Prom a decree for plaintiff, defendants appeal.</p>

Prom Howard Circuit Court; L. J. Kirkpatrick, Special Judge. Suit by John Clifton and others against Daniel L. Overholser and others. Prom a judgment and decree for plaintiffs, defendants appeal.

<p>1. Bints and Notes. — Drafts.—Acceptances.•—Negotiability.—Defenses. — Accepted drafts constitute negotiable paper; and if the purchaser thereof is a bona fide holder, he takes them free from all equitable defenses, p. 463.</p> <p>2. Bills and Notes. — Bona Fide Holders. — Burden of Proof.— Presumptions. — The possession and production of negotiable accepted drafts raises the presumption that they were purchased in good faith, for a valuable consideration, in the usual course of business and without notice of any defense, p. 403.</p> <p>3. Bills and Notes. — Indorsees.-—Bona Fide Holders. — Burden of Proof. — The burden of proving that an indorsee of negotiable paper is not a bona fide holder is on the defendant, except where the paper is shown to be tainted with fraud or illegality, p. 464.</p> <p>4. Bills and Notes. — Bona Fide Holder. — Instructions.—Evidence. — Evidence that the acceptors of drafts had but twenty-five dollars’ worth of property when the drafts were accepted does not justify the giving of an instruction submitting to the jury the question whether the plaintiff indorsee was a bona fide holder of such drafts, p. 464.</p> <p>5. Bills and Notes. — Indorsees.—Good-Faith Holders. — Burden of Proof .— Instructions — An instruction in an action by an indorsee of accepted drafts, that if the jury were not satisfied that the drafts were indorsed to the plaintiff in good faith and for value, the verdict should be for defendants, is incorrect, the burden of proving that plaintiff is not a bona fide holder being upon defendants, p. 466.</p>

<p>1. Contracts. — Building.—Plans.—JHcotras.—Provisions Therefor.— Failure to Observe. — Complaint.—A complaint for extra services for building a passageway incident to the construction of a building, 103 feet longer than called for by the specifications, the contract providing that the location of the building should be determined by a committee and that no extras should, be charged unless agreed upon beforehand and expressed in writing and attached to the contract, is bad, where it shows that the committee’s choice of site necessitated the extra passageway and that no claim of a departure from the contract was made at the time, no written addition made to the contract and no claim made until after settlement according to the contract. Cleveland, etc., R. Co. v. Moore, 170 Ind. 528, and Norton v. Brown, 89 Ind. 333, distinguished, pp. 408, 475.</p> <p>2. Contracts. — Building.—“Mxtras.”—The word “extras,” as applied to a building contract, imports work arising outside and entirely independent of the contract in question — something not required for its performance, p. 474.</p>

<p>1. Witnesses. — Competency.—Attorneys.—Tlie sole attorney for plaintiff is a competent witness in behalf of plaintiff, the weight of his testimony being for the court trying the case. p. 47G.</p> <p>2. Account.— Goods Sold and Delivered.— Admissions.— Compromise. — Where defendant, iu a conversation with plaintiff’s attorney, when discussing the adjustment of a claim, said that the shingles sued for were worth the prices charged, that he received them and had them, that the account was unpaid, that there was a shortage of 5,000 shingles, and that the price of shingles when received was five cents a thousand lower than when ordered, such statements are admissible in evidence, where there is nothing to show that said statements were made with a view to compromise, nor that there was any offer of compromise, p. 477.</p> <p>8. Evidence. — Compromise.—Admissions.—Admissions of facts that do not constitute a part of an offer or concession made in the course of an unsuccessful attemivt at compromise are admissible iu evidence. x>- 477.</p>

<p>1. Replevin. — Possession.—Bight of. — Replevin is a possessory action, and the plaintiff must show a right of possession at the time of filing his action, p. 480.</p> <p>2. Contracts.— Voidable.— Fraud.— Election.— A contract tainted with fraud is not void, but is merely voidable at the option of the party defrauded, p. 481.</p> <p>8. Sales. — Title.—Fraud.—Rescission.—A sale tainted with fraud passes the title to the property sold, but such title may be devested by a rescission of the sale. p. 481.</p> <p>4. Sales. — Rescission.—Return of Consideration. — In order to rescind a sale tainted with a vendee’s fraud, the vendor must return everything of value received, unless excused by the vendee from so doing; and until such tender is made the vendee has the right to retain the property, p. 481.</p> <p>5. Salks. — Rescission.—Tender.—The failure of a vendor, even through a mistake, to tender back to a vendee who had defrauded him, everything of value received, is fatal to such vendor’s recovery of the property by an action in replevin, p. 481.</p> <p>6. Replevin. — Nature of Action. — Replevin is an action at laW, and the right of recovery must exist at the beginning of the action, the equitable method of bringing the consideration into court as for rescission not applying, p. 482.</p> <p>7. Tbial. — Verdict.—Interrogatories.—The general verdict will prevail if it can be upheld upon any supposable evidence admissible within the issues, p. 482.</p> <p>S. Sales. — Avoidance.—Fraud.—Tender.—Interrogatories.—Where the answers to the interrogatories to the jury show that the vendor of property failed through mistake or confusion to tender back to the vendee, who had defrauded the vendor, the sum of fifty cents received, a general verdict for the vendor in his action in replevin will be set aside, p. 482.</p> <p>9. Appeal. — Reversal.—Mandate.—Where justice will be subserved, the Appellate Court may order a new trial instead of a judgment for defendant on the answers to the interrogatories to the jury. p. 483.</p>

Prom Superior Court of Marion County (75,580) ; James M. Leather's, Judge. Cross-complaint by the Standard Metal Company and others against Matilda M. Topp. Prom decrees for plaintiff and cross-complainants, defendant appeals.

<p>1. Municipal Corporations. — Streets.—Adjacent Dangers. — Negligence. — A town is liable for permitting dangerous unguarded places to remain along the sides of its streets, or in close proximity thereto, p. 492.</p> <p>2. Municipal Corporations. — Defective Streets. — Notice.—Contributory Negligence. — A pedestrian is not necessarily guilty of contributory negligence in using a street known to be defective, the law merely requiring the use of care commensurate with the known danger, p. 492.</p> <p>3. Trial. — Undisputed Facts. — Court.—Jury.—Where the facts are undisputed and but one reasonable inference can be drawn therefrom, tlie question is for the court, otherwise for the Jury. p. 493.</p> <p>4. Municipal Corporations. — Dangerous Streets.' — Use of. — Contributory Negligence. — A woman who uses a street known to be so dangerous that ordinarily prudent persons would not use it, is guilty of contributory negligence, p. 493.</p> <p>5. Municipal Corporations. — Defective Streets. — Negligence.— Contributory. — A woman who attempts to travel in the night, without a light, over a dark street known to be situate along a dangerous, unguarded precipice, is not guilty of contributory negligence as a matter of law, where she uses care in trying to keep in the street, p. 493.</p>

<p>From Superior Court of Marion County (75,904); John L. MeMaster, Judge.</p> <p>Action by William A. Beatty against Samuel M. Miller and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Prom Superior Court of Vanderburgh. County; Alexander Gilchrist, Judge.</p> <p>Action by Sadie Hickman against the School City of Evansville. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Floyd Circuit Court; William G. Vtz, Judge.</p> <p>Action by George H. Hynes against the Louisville and Northern Railway and Lighting Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Corporations. — Powers.—Corporations have only such powers as are granted by the statutes under which they are organized, p. 524.</p> <p>2. Corporations. — Potvers.—Telephones.—Under §5789 Burns 1908, §4181 R. S. 1881, providing for the formation of companies for “establishing, maintaining and operating telephones, telephone lines, and telephone exchanges,” and §5790 Burns 1908, §4182 R. S. 1881, providing that the incorporators shall file articles of association setting forth the localities within which the company purposes “to establish, maintain, and operate telephones and telephone exchanges,” a telephone company whose articles of incorporation provide that such company “shall establish, maintain and operate telephones and telephone exchanges in the counties of Boone and Montgomery,” has the power to establish, maintain, and operate “telephone lines,” the latter statute which omits the words “telephone lines” prescribing merely what the articles of association shall contain, p. 524.</p> <p>3. Corporations. • — ■ Potvers. — Contracts. — Impairment. — Partnership. — -The agreement of partners in a telephone business as to the manner that a corporation to be formed by them shall conduct its business is not binding upon the corporation, and a change of method does not impair any vested right belonging to any partner stockholder, p. 525.</p> <p>4. Corporations. — Powers.—Telephones.—A telephone corporation formed by partners who owned and kept in repair their own lines has the power, on amending its by-laws as provided thereby, to take over such individual lines on certain equal terms, the transfer to be optional with the individual, and to maintain and operate such lines as its own, treating all alike, though the contract between the partners provided for the retention and maintenance of the lines by the individual owners, pp. 525, 528, 529.</p> <p>5. Corporations. —■ Articles. — Statutes.—Contracts.—Merger.—The articles of association and the law under which a corporation is formed constitute the final contract between the incorporators, all preliminary contracts being merged therein, p. 526.</p> <p>6. Corporations. — By-Laws.—Obligation of. — The by-laws of a corporation, where they are duly enacted, and not in violation of the charter or laws under which the corporation was formed, are binding on all stockholders, and stockholders have no right which is infringed thereby except where a change therein impairs the obligation of a contract or vested right, p. 527.</p> <p>7. Corporations. — Management.—By-Laws.—Changes in. — Control by Courts. — Courts will not interfere in the management of a corporation except where its charter rights are violated, or private rights arbitrarily invaded, p. 527.</p> <p>8. Corporations. — By-Laws.—Change.—Directors.—Election.—Pre- . sumptions. — The action of corporation directors in changing, or proposing to change, the by-laws of a corporation is presumed to be for the honest purpose of promoting the corporation’s welfare. p. 528.</p> <p>9. Corporations. — Stockholders.—Telephones.—Customers.—In determining the rights of stockholders in a telephone company the courts will not consider their rights as customers of the company, p. 528.</p> <p>10. Corporations. — Telephones. — Buies. — Discrimination. — Telephone corporations may establish and enforce reasonable rules, without discrimination, for the conduct of their business, p. 528.</p> <p>11. Corporations. — Stockholders.—By-Laws.—Change of. — Original incorporators of a corporation are conclusively presumed to know that the corporation might, after its incorporation, exercise all of its charter powers, and subsequent stockholders must be regarded as having assented to the exercise of such powers, p. 529.</p>

<p>1. Negligence. — Automobiles.—Complaint.—A complaint by a teamster alleging that the defendant “was driving his automobile * * * at a high and dangerous rate of speed; * * * that as the defendant reached a point in the street almost opposite the plaintiff’s team, he * * * suddenly turned his automobile and ran it directly at the team the plaintiff was driving and negligently and carelessly ran it at such a great and unlawful rate of speed, almost upon and against such team,” as to cause such team to run away, to plaintiff’s injury, is sufficient to show negligence in the driving of the automobile, as well as an unlawful speed (§10405 Burns 1908, Acts 1907 p. 55S, §1), and the violation of a duty owing from defendant to plaintiff, pp. 532, 533, 534.</p> <p>2. Pleading. • — ■ Complaint. — Allegations.—Duty.—Conclusions.—An allegation that it was the duty of defendant to do or not to do a certain thing, is a conclusion, a statement of the facts being necessary, p. 533.</p> <p>3. Negligence. — Automobiles. — Vehicles. — Use of Streets. — The drivers ■ of automobiles and of other vehicles have equal rights in the use of the streets, and they are required to use ordinary care to prevent injuries, p. 534.</p> <p>4. Appeal. — Transcript.—Precipe.—Partial.—Where the precipe calls for a certain part of the record, other parts included therein will be disregarded, p. 535.</p> <p>5. Appeal. — Transcript.—Original Bills of Exceptions. — Precipe.— Where the precipe calls for a transcript of the entire record, the original bill of exceptions may be properly included therein, p. 535.</p> <p>O. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 535.</p>

<p>1. BIunicipal Corpobations. — Street Improvements. — Lions.—Time of Attaching. — A lien for street improvements attaches at the time of the adoption of the report of assessment of benefits as made by the city commissioners, or as changed or amended by the common council (§3623d Burns 1901, Acts 1901 p. 534, §4). p. 538.</p> <p>2. Deeds. — “Lien.”—“Encumbrance.”—The word “encumbrance” is more comprehensive than the word “lien” and embraces liens and also other burdens resting on the real estate or the title, which tend to lessen its value or to interfere wih its enjoyment, p. 538.</p> <p>3. Covenant. — Deeds.—Street Improvement. — Liens.—Time of Attaching. — A grantor who conveyed a lot by a warranty deed is not liable for a breach of covenant, where a street improvement fronting thereon, made under the act of 1901 (Acts 1901 p. 534, §4, §3623d Burns 1901), had been completed prior to the date of the deed, but where the assessment therefor was not made until afterward, p. 539.</p>

<p>Prom Howard Superior Court; P. H. Elliott, Judge.</p> <p>Action by Marion Creek against Jacomiali H. Jackson and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>1. Railroads. — Tracies. — Switching. — Flagmen. — Under §5260 Burns 1908, Acts 1891 p. 364, §1, providing that “all railroads * * * having more than two tracks across any public highway or road, and used for switching purposes exclusively, or regularly, or if only one track, and used for switching purposes,” the company, when ordered to do so by the board of commissioners, must keep a flagman at such crossing, a company that has two main tracks and two other tracks on which whole trains are switched so as to permit the passage of trains on the main tracks, on the order of the proper board, must maintain a flagman, pp. 559,562.</p> <p>2. Statutes. — Construction.—In construing a statute the intent of the legislature should be kept constantly in view. pp. 560, 562.</p> <p>3. Statutes. — Construction.—Intent.—Letter.—The intent of the legislature will be carried out, though the strict letter of the statute may not be followed, p. 560.</p> <p>4. Statutes. — Alternative Constructions. — That construction of a statute will be adopted which makes it effectual rather than one which defeats its purpose, p. 560.</p> <p>5. Statute. — Words.—The words used in a statute will be given their ordinary meaning unless that would defeat the legislative intent, p. 561.</p> <p>6. Statutes. — Technical Words. — Technical words used in a statute will ordinarily be given their technical meaning, p. 561.</p> <p>7. Statutes. — Remedial.—Words.—Words in a remedial statute will be given their broadest and most liberal meaning, p. 561.</p> <p>8. Railroads. — “Switching.” — Statutes. — Evidence. — The word “switching,” as used in §5260 Burns 1908, Acts 1891 p. 364, §1, providing that railroad companies shall maintain a flagman at their highway crossings where they have more than two tracks and one of them is used for “switching” purposes, imports the shifting of one or more cars or trains from one track to another, and the exclusion of evidence showing the technical meaning of such word is harmless, p. 503.</p>

<p>From Cass Circuit Court; John S. Lairy, Judge.</p> <p>Action by the State Bank of Monticello against George Harrison. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Money Received. — Common Counts. — Complaint.—Attorneys.— Demand. — A complaint alleging that “defendant is indebted to * * * plaintiff in the sum of $332.50, for money had and received by the defendant for the use and benefit of the plaintiff,” is sufficient, although a demand' is not alleged, where there is nothing in the complaint to show that defendant held the money as plaintiff’s attorney or in any other fiduciary capacity, p. 571.</p> <p>2. Judgment. — Motion in Awest. — Complaint.—Where a complaint is sufficient, a motion in arrest of judgment should be overruled, p. 572.</p> <p>3. Ahpeax. — Briefs.—Omission of Evidence. — Waiver.—AVhere appellant fails to set out in his brief the evidence in the ease, or a succinct recital thereof, all questions thereon are waived on appeal, p. 572.</p>

Prom Lagrange Circuit Court; James 8. Bodge, Judge. Action by Lee H. Geisendorff, as administrator of tbe estate of Lydia T. Geisendorff, deceased, against Henry G. Cobbs and others. Prom a judgment for defendants, plaintiff appeals.

<p>1. Insurance. — Life.—Recovery.—Evidence.—No recovery can be secured by the beneficiary of a life insurance policy except upon allegation and proof of the death of the assured, p. 590.</p> <p>2. Insurance. — Life.—Complaint.—Allegations of Death of Assured. — Conclusions.—A complaint by the beneficiary of a life policy alleging “that in the month of February, 1807, by virtue of the premises and in presumption of law, tlie said Presley T. Buckner died,” does not sufficiently show that he is dead. p. 590.</p> <p>3. Executors and Administrators. — Absentees.—Presumptions.— Statutes. — The purpose of §2747 Burns 1908, §2232 R. S. 1881, providing for the appointment of an administrator in case a resident has left the state and has not been heard from for five years, was to abrogate the common-law rule of presumption of death after seven years, and fix the presumptive period at five years, for the purpose of administering upon his estate, hut it did not affect the common-law rule in any other respect, p. 591.</p> <p>4. Executors and Administrators. — Absentees.—Presumptions of Death. — Insurance.—Section 2748 Burns 1908, Acts 1883 p. 209, providing that the presumption of death in case of absentees shall be that such absentees died at the time of their disappearance, and, providing that “a party holding or entitled to the proceeds of any policy of insurance upon the life of such absentee,” shall not be required “to make other proof of death than the fact of the disappearance of the insured for five years continuously,” applies only to insurance policies which are due to the estates of such absentees, such act of 1883 being supplemental to an act dealing only with the estates of absentees, pp. 592,593, 594.</p> <p>5. Statutes. — Altering Common Law. — Constriction.—Statutes in derogation of the common law are strictly construed, p. 593.</p> <p>6. Statutes. — Supplementary.—Titles.—Purview. — Constitutional Law. — The purview of a supplementary act, to be valid, must be covered by the title of the original act; and parts thereof not so covered are invalid, p. 594.</p> <p>7. Evidence. — Presumptions.—Absence.—Except in cases involving the estates of absentees, the unexplained absence from home of a person for less than seven years does not raise a presumption of death, p. 594.</p> <p>8. Insubance. — Beneficiaries.—Absentees. — Complaint. — A complaint by the beneficiary of a life policy on an absentee, alleging that the assured left home in February, 1807, and was never heard from afterwards, that a life policy in favor of plaintiff was in full force and fully paid until November, 1867, that the plaintiff knew nothing of such policy until 1904, that she made proof of death and that defendant denied any liability on the policy, is fatally bad, since it fails to show that the policy was paid up for the seven years of the presumptive life of assured after disappearance, and since the policy provided for a continuance thereof under certain conditions, in case of an election, but no election was alleged, p. 595.</p>

<p>1. Appeal. — Rules.—A substantial compliance with the Appellate Court rules is essential in the presentation of a case on appeal, p. 596.</p> <p>2. Appeal.— Briefs.— Waiver.— Where appellants in their brief, under the head of “Issues” states that a demurrer was filed to the complaint and overruled, and an exception taken, under the head of “Points,” that the complaint is questioned by the assignment of errors, and by demurrer in the court below, a number of instructions also being set out as given or refused, with the statement that the giving or the refusal of each thereof was error, and under the head of “How the Issues Were Determined,” that appellants filed a motion for a new trial which was overruled, and they excepted, no question is presented, p. 596.</p>

<p>Prom White Circuit Court; James P. Wason, Judge.</p> <p>Action, by Prank M. Coovert against Jesse J. Pry and another. Prom a judgment for plaintiff, defendants appeal.</p>

<p>Prom Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Suit by Edwin W. Stahl against Everett Halstead. Prom a judgment and decree for plaintiff, defendant appeals.</p>

<p>1. Pbocess. — Motion to Quash. — Foreign Corporations. — Insurance. —License to do Business. — Agents.—Estoppel.—A motion by a foreign insurance corporation to quash tbe sheriff’s return to a summons, on the ground that such corporation was never licensed to transact business within this State, where it is admitted that it transacted business within the State, the return showing the summons to have been served upon such corporation’s agent, should be overruled, such corporation being estopped from claiming an exemption from process because of its violation.of the law. p. 605.</p> <p>2. Process. — Motion to Quash. — Foreign Corporations. — Insurance. —Agencies.—A motion by a foreign insurance corporation to quash the return to a summons, on the ground that such corporation’s officers were residents of a foreign state and that it maintained no office in the county wherein the action was brought, such return showing such summons to have been served upon such corporation’s agent, should be overruled, where it is admitted that it transacted business within the State, the real question being whether the person served was the agent of such corporation. p. 606.</p> <p>3. Principal and Agent. — Agency.—Sow Established. — Evidence. —Conclusions.-—The affidavits of an alleged principal and an agent, that such alleged agent was not an agent of such principal are conclusions, the facts being essential to a determination of the question of agency, p. 606.</p> <p>4. Insurance. — Agents.—Facts Bhotcing. — Evidence that an insurance broker doing business in Indianapolis sent forty insurance applications to defendant nonresident insurance company, that upon each application a policy was issued by the company and returned to such broker who delivered it, collected the premium and retained a commission, and that such broker had no authority to solicit business for such company, shows that such broker was defendant’s agent for the transaction of such business. pp. 606, 608.</p> <p>5. Insurance. — Foreign Companies. — Doing Business. — Foreign insurance companies are doing business in this State when they issue policies on property located in this State to residents thereof, p. 607.</p> <p>6. Courts. — Jurisdiction.—Foreign Corporations. — Whether an Indiana court has jurisdiction over a nonresident insurance company by service of process upon its alleged agent, is a question of fact. p. 607.</p> <p>7. Principal and Agent. — Foreign Corporations. — An agent for a foreign corporation is one who shall “directly or indirectly receive or transmit money or other valuable thing to or for the use of such corporations or who shall in any manner make or cause to be made any contract, or transact any business for or on account of such foreign corporation” (§4102 Burns 1008, §3026 It. S. 1881). p. 607.</p>

<p>1. Pleading. — Substituted Complaint. — -A substituted complaint takes the place of the original complaint; and in the absence of the original, the demurrer to the complaint will be considered as addressed to the substituted complaint.. p. 614.</p> <p>2. Contracts. — Warranty.—Breach of. — Complaint.—A complaint alleging that defendants sold to plaintiffs a car load of potatoes and warranted them, to keep in plaintiffs’ cellar all winter, that plaintiffs paid therefor, that the potatoes rotted within a month, to plaintiffs’ damage, states a cause of action for a breach of warranty, p. 614.</p> <p>3. Frauds, Statute oe. — Executed Contracts. — An oral contract for the sale of a ear load of potatoes, where the potatoes were delivered, accepted and paid for, is not within the statute of frauds, p. 615.</p> <p>4. Contracts. — Memorandum.—Varying by Parol Evidence. — An oral contract for the sale of a car load of potatoes, a warranty of the keeping qualities thereof being made, does not merge in a memorandum "made by defendants’ salesman, which omitted such warranty, where it is shown that plaintiffs never accepted such memorandum and did not know the terms thereof, p. 615.</p> <p>5. Contracts. • — ■ Memorandum. —• Sufficiency. —■ The memorandum “Sold 10/2 Warner & Sons. 600 bu. potatoes, fifty <f. a bu. f. o. b. Summitville. Geo. 1-Iitz & Co., by Pringle,” does not constitute a contract, p. 616.</p> <p>6. Evidence. — Declarations.—Self-Serving.—Hearsay. — Conversations, letters, telegrams or other communications between defendants, or between the defendants and their agents, or between defendants and third persons, without the plaintiffs’ knowledge, are not admissible in an action by plaintiffs against defendants for a breach of contract, p. 618.</p> <p>7. Contracts. — Varying.—Custom.-—Evidence of a custom of trade, or a system of doing business, is not admissible to vary the terms of a definite contract. x>- 619.</p> <p>8. Contracts. — Sales.—Warranty.—Inspection.—Where a vendor expressly warrants the keeping quality, of the potatoes sold, the vendee may rely thereon although oxiportunity for inspection is given. x>- 619.</p> <p>9. Appeal. — Briefs—Admitted Evidence. — Setting Out. — Where the objections to questions are overruled, appellants’ brief should set out the answers thereto, so that the court may be advised of the merits of the ruling, p. 619.</p> <p>10. Appeal. — Briefs.—Excluding Evidence. — Setting Out. — Where objections to questions are sustained, appellants’ brief should set out the evidence intended to be introduced, and if the testimony appears remote, suggest its relevancy, p. 619.</p> <p>11. Contracts. — Warranty.—Evidence. —Appeal.—Where plaintiffs testily that defendants’ agent warranted the potatoes sold to the plaintiffs to be good, and that they would keep all winter .in plaintiffs’ cellar, and defendants’ agent denied such statements, the verdict for plaintiffs is conclusive on appeal, p. 620.</p>

From Hamilton Circuit Court; Ira W. Christian, Judge. Action by Nelson P. Scribner, as administrator of the estate of Lora H. Whitson, deceased, against the Indiana Union Traction Company. Prom a judgment on a verdict for $5,000 for plaintiff, defendant appeals.

<p>From Dubois Circuit Court; Thomas Duncan, Special Judge.</p> <p>Action by the Ferdinand Railway Company against William H. Bretz. From a judgment for defendant, plaintiff appeals.</p>

From Henry Circuit Court; Ed Jackson, Judge. Action by Anna Myers, as administratrix of the estate of Franklin C. Myers, deceased, against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $3,000, defendant appeals.

<p>1. Appeal. — Determination of. — Demurrer to Complaint. — Exceptions to Conclusions of Law. — The overruling oí a demurrer to the complaint is not material where the facts are specially found, and the exceptions to the conclusions of law present the same questions as those arising on the demurrer, p. 659.</p> <p>2. Tbial. — Conclusions of Lato. — Exceptions.—Exceptions to the conclusions of law admit, for the purpose of such exceptions, that the facts are correctly found, p. 659:</p> <p>3. Appeal.— Questions Presented.— Interu/rbam Railroads.— Telephones. — Priorities in Use of Streets. — The question of priority between the use of streets and highways by an internrban railroad company and a telephone company does not arise, where the special findings show that the telephone company’s lines were located on private ground, p. 663.</p> <p>4. Easements.— Telephones. — ■ Jilosecuted License.— Where a telephone company obtains an oral license to place its poles upon private grounds and it expends money in placing its poles and stringing its wires, such license becomes an irrevocable easement. p. 663.</p> <p>5. Easements. — Sale of Land. — Notice.—Telephones.—The sale of land on which an easement exists for the operation of a telephone line does not affect the telephone company’s rights, the existence of the line on the land constituting notice of the company’s easement, p. 664.</p> <p>6. Easements. — Deeds.—An easement appurtenant to real estate passes with the grant and becomes a burden on the servient estate in the hands of the subsequent owner, p. 664.</p> <p>7. Railroads. — Interurban.—Telephones.—Readjustment of Wires. —Damages.—Where the construction of an interurban railroad necessitates the readjustment of a telephone company’s wires, the interurban company is liable for the reasonable expenses thereof, p. 664.</p>

<p>1. Mechanics’ Liens. — Contractors.—Prior to the act of 1909 (Acts 1909 p. 295) a mechanic’s lien could not be enforced on 'behalf of a contractor or subcontractor, p.667.</p> <p>2. Evidence. — Varying Written Contract. — House Construction.— Custom. — Where a carpenter contracted to build a house according to specifications, the owner to furnish the materials, and there being nothing in the specifications to show whether they should be new or old and nothing to show whether the window sash should be ready-made, oral evidence of a trade custom that in such case new materials only were meant and that the window sash were to be ready-made, is admissible, pp. 667, 668.</p> <p>8. Contbacts. — Trade Customs. — Evidence.—Contracts relating to particular trades are presumed to be made in view of the eustoms of such trades, and in explanation of such contracts, oral evidence is admissible to show such customs, p. 668.</p> <p>4. Evidence. — Custom.—Where a custom is universal it should be admitted as an existing law without proof, but if it be local, it must be proved, p. 668.</p> <p>5. Contracts.— Building.— Specifications.— Ambiguities.— Oral Evidence. — Where the specifications for a building are confusing and ambiguous as to whether a steel ceiling was a part of the carpenter work of the building, oral evidence is admissible to explain the intent, p. 669.</p> <p>6. Appeal. — Mandate.—Excessive Judgment. — A judgment for attorney’s fees and a decree for foreclosure of a mechanic’s lien in favor of a contractor for erecting a house prior to the taking effect of the act of 1909 (Acts 1909 p. 295), will be reversed, p. 669.</p>

<p>1. Divobce.— Abandonment.— Cruelty.-— A complaint for divorce sufficiently alleging cruel and inhuman treatment will be held sufficient though the additional attempted charge of abandonment is not sufficient, p. 670.</p> <p>2. Divobce. — Abandonment.—Cruelty.—Evidence.—Where a complaint for divorce charges abandonment and cruel treatment, a failure to prove abandonment is not fatal, since proof of cruel treatment alone is sufficient to entitle the plaintiff to a divorce, p. 071.</p> <p>3. Divobce.. — Condonation.—Answer.—Condonation constitutes a defense in a suit for divorce, but to admit evidence thereof, it must be pleaded, p. 671.</p> <p>4. Divobce. — Condonation.—Conditions.—Defendant’s former cruel treatment is admissible in evidence in a divorce suit, though such injuries were condoned, where it is further shown that similar injuries were afterwards inflicted, p. 672.</p> <p>5. Divobce.— Alvmony.— Excessive.— Where a husband cruelly treated his wife and afterwards wholly abandoned her and their small children, leaving her property worth from $400 to $500, upon which she had paid a part, a judgment for alimony in the sum of $800 is not excessive, where it is shown that he had accumulated property valued at $4,000 while she was working to take care .of herself and the children, p. 672.</p>

Prom Superior Court of Tippecanoe County; Henry H. Vinton, Judge. Action by Martha Wright, as administratrix of the estate of Perry Ms Wright, deceased, against the Chicago, Indianapolis and Louisville Railway Company. Prom a judgment for defendant, plaintiff appeals.

From Tipton Oircnit Court; J. F. Elliott, Judge. Action by Pearl Raeobs, as administratrix of tbe estate of Frederick Raeobs, deceased, against tbe City of Tipton and another. From a judgment for plaintiff, defendants appeal.

From Tippecanoe Circuit Court; Richard P. DeHart, Judge. Action by the National Fowler Bank against Dewitt C. Wilson and another, as trustees of the estate of Noah Justice, an insolvent debtor. From a judgment for plaintiff, defendants appeal.

<p>Prom Gibson Circuit Court; O. M. Wclborn, Judge.</p> <p>Suit by Minnie L. Woodburn against William Wood-burn. Prom a decree for plaintiff, defendant appeals.</p>

<p>1. Assumpsit. — Worlc and Materials. — Complaint.—Bills of Particulars. — Specificness.—In an action of assumpsit for work done and materials furnished, a bill of particulars setting out by items the work done and the materials furnished, together with a statement of payments thereon, and deducting the sum of the payments from the total for work and materials, is sufficiently specific. p. 700.</p> <p>2. Pleading. — Complaint.—Essentials.—Allegations of a complaint which convey to the defendant full information of the facts relied upon, and are sufficient to bar another action for the same cause, are sufficient as against a motion to make more specific, p. 701.</p> <p>3. Assumpsit.— Work and Materials.— Express Contract.— Evidence. — Variance.—In an action of assumpsit for work done and materials furnished, proof that the work was done and the materials furnished under an express contract, does not constitute a variance, assumpsit lying to recover for an amount due upon an executed express contract, p. 701.</p>