Volume 50 — Indiana Appellate Court Reports

<p>1. Corporations. — Capital Stock. — Trust Fund for Creditors.— Stock Subscriptions. — Money agreed to be paid into the treasury of a corporation on account of shares is regarded not only as a part of the fund for the transaction of business, but also as a trust fund for the benefit of creditors, p. 3.</p> <p>2. Corporations. — Insolvency.—Receivers.-—Unpaid Stock Subscriptions. — Upon the insolvency of a corporation, a receiver therefor may be authorized to sue on account of unpaid stock subscriptions, but generally he cannot compel payment of a subscription that the corporation could not have enforced at the time of his appointment, p. 3.</p> <p>3. Corporations. — Insolvency.—Receivers.—Action on Stock Subscription. — Defense.—Payment in Property. — In an action by the receiver of a corporation on a stock subscription, where the evidence showed that defendant had sold to the corporation certain property which was of a value equal to that of the stock subscribed by defendant, and which was necessary in the business of the corporation and was received by it in payment of such subscription, the status of such stock was that of paid up stock, it being unnecessary, in the absence of a statutory requirement, that a subscription to capital stock shall be paid in cash. p. 3.</p> <p>4. Corporations. — Action on Stock Subscription. — Payment.—Instructions. — sin an action brought by the receiver of an insolvent corporation to recover on a subscription to its capital stock, an instruction whioh told the jury that defendant was entitled as a creditor of the corporation to have his claim set-off against the amount alleged to be due from Mm on such subscription, even if erroneous, was harmless, where defendant had pleaded payment and there was evidence to sustain such plea. p. 5.</p>

<p>From Superior Court of Marion County (77,138); Pliny W. Bartholomew, Judge.</p> <p>Action by Flora J. Caughell against the Indianapolis Traction and Terminal Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal. — Law of Case. — Pleading.—Where the complaint in an action has been held sufficient by the Appellate Court on a former appeal that ruling whether right or wrong became the law of the case and will be applied throughout the entire proceedings, pp. 14,15.’</p> <p>2. Appeal. — Law of Case. — Pleading.—Where the question presented for decision on the former appeal of a cause did not require the Appellate Court to pass on the sufficiency of the complaint, then any thing which such court may have said in an attempt to decide such question will not have the effect of determining its sufficiency on a' second appeal, p. 14.</p> <p>3. Pleading. — Complaint.—Ansioei'.—Demurrer.—It is well settled that a demurrer searches the record and that a bad answer is sufficient for. a bad complaint, p. 16.</p> <p>4. Appeal. — Pleading.—Complaint.—Ansioer.—It is necessary for the Appellate Court to determine the sufficiency of a complaint to withstand a demurrer for want of facts before the Judgment appealed from can be set aside because of an insufficient answer. p. 16.</p> <p>5. Election op Remedies. — Acts Constituting Election. — Where defendant’s agents bought a car of lemons and shipped them to defendant, attaching draft to bill of lading, and delivered said bill of lading and the attached draft to the plaintiff, who, relying on a written guaranty of the defendant to pay all drafts drawn by said agents when presented, advanced the amount of said draft to said agents, and afterwards, on the refusal of defendant to accept the lemons and pay the draft, turned the draft and bill of lading back to said agents with directions to sell the lemons and apply the proceeds to the payment- of the draft, such would not constitute an election of remedies and would not estop the plaintiff from afterwards collecting from the defendant the balance of the money advanced on said draft, p. 16.</p> <p>6. Appeal. — Presumption. — Trial. — General Verdict. — Interrogatories. — In an action to recover money advanced on a draft drawn on defendant by his agents for the price, of a car of fruit purchased pursuant to a telegram from defendant reading “Buy car San Diego extra choice lemons, $2.18, of new crop,” the said advancement of money having been made by plaintiff on the written guarantee of defendant to pay all drafts drawn on him by his agents for cars of fruit that they are authorized to purchase for spot cash, evidence-was admissible within the issues to show that the terms of said purchase were indicated by letters and telegrams other than that set out, and for the purpose of reconciling a general verdict for plaintiff with answers to interrogatories not showing the terms of the purchase to be for cash, it will be presumed that such evidence was introduced, p. 17.</p> <p>7. Trial. — Instructions.— Withdrawal. — Sufficiency.—An instruction that “the instructions heretofore given you in this cause are now withdrawn and the court gives to you the following instructions on which you are to decide this case,” was a sufficient withdrawal of the instructions and no error can be predicated on'any instruction so withdrawn, p. 18.</p> <p>8. Trial. — Instructions.—Sufficiency.—Instructions directing the jury to find for the plaintiff if certain facts enumerated therein are proved, but which fail to enumerate certain other facts proof of which was necessary to a recovery by plaintiff, are erroneous, p. 19.</p> <p>O. Appeal. — Harmless Error. — Instructions.—Verdict.—Interrogatories. — Where from the answers to interrogatories it affirmatively appears that erroneous instructions did not influence the result, such errors will be treated as harmless, p. 20.</p> <p>10. Guaranty. — Drafts.—Guaranty of Payment. — Burden of Proof. —Before a recovery can be had by plaintiff in an action for money advanced on an unaccepted draft pursuant to the drawee’s guaranty of payment, it must establish the execution and delivery of such guaranty by a fair preponderance of the evidence, p. 21.</p> <p>11. Appeal. — Harmless Error. — Instructions.—Where the delivery of the defendant’s guaranty of payment of a draft is established by the undisputed evidence, or its delivery is admitted by him, the failure of the court to include the question of delivery of such guaranty as one of the facts to be established to entitle plaintiff to a verdict, in an action for money advanced on said draft, is not reversible error, pp. 21, 22.</p> <p>12. Guaranty. — Delivery of Instrument. — Possession.—Possession of a written guaranty by the party in whose favor it is made is prima facie evidence of its delivery, p. 21.</p> <p>13. Appeal. — Harmless Error. — Correct Result. — Where the result reached is clearly right under the evidence the judgment will not be reversed on account of an erroneous instruction, p. 22.</p>

Prom Morgan Circuit Court; Joseph W. Williams, Judge. Suit by Lafayette Scott against Mary E. Walling and John E. Walling, her husband, Dora A. Gentry, Lydia J. Tudor and Everett Tudor, her husband. Prom a decree for plaintiff, defendants appeal.

Prom Johnson Circuit Court; William E. Deupree, Judge. Action by The State of Indiana on the relation of John C. White, administrator de bonis non of the estate of Martha J. Handy, deceased, against Thomas W. Craven, James Marshall Works, and David Lamkin. Prom a judgment for plaintiff, the defendants Craven and Works appeal.

<p>From Henry; Circuit Court; Will M. Sparks, Special Judge.</p> <p>Action by James L. Watkins against Mark E. Forkner to contest election. From a judgment of dismissal, contestant appeals.</p>

<p>1. Statutes. — Construction.-—General Rules.- — Statutes m pari materia, and those on the same general subject not strictly in pari materia, should be construed together when necessary to ascertain and carry into effect the legislative intent, and §7463 Burns 1908, Acts 1901 p. 104, requiring commission contracts for the sale of real estate to be reduced to writing, should be construed in connection with various sections of the statute of frauds, p. 40.</p> <p>2. Statutes. — Construction.—Intention of Legislature. — In determining the intention of the legislature in enacting a statute, we may look to the letter of the statute, to the statute as a whole, to the circumstances under which it was enacted, the mischief intended to be remedied and to all like and kindred matters, p. 41.</p> <p>3. Statutes. — Construction.—Meaning of Words. — “Void” and “Invalid.” — The words “void” and “invalid,” when used in regard to contracts not immoral nor against public policy, usually mean voidable at the option of one of the parties or some one legally interested therein, p. 42.</p> <p>4. Contracts. — Sale of Beal Estate. — Commission Contracts.— Statute. — Construction.—Under §7403 Burns 1908, Acts 1901 p. 104, providing that no contract for the payment of a commission for the sale of real estate shall be valid unless the same shall be in writing, such contract is not invalid because it was not reduced to writing before the services, were performed, p. 44.</p> <p>5. Contracts. — Sale of Real Estate. — Commission Contracts.— Sufficiency. — An instrument properly dated and signed, reciting that “for services rendered or commission” to the agent, “for selling my farm, paid on same $100. Balance $150. I agree to pay” to said agent, “due on or before February 1, 1908,” is sufficient under §7463 Burns 1908, Acts 1901 p. 104. p. 45.</p> <p>C. Contracts.- — Sale of Real Estate.— Commission Contracts.— Description of Land. — Statute.—Evidence.-—§7463 Bums 1908, Acts 1901 p. 104, does not provide that an agreement to pay a commission for the- sale of real estate shall contain a description of the real estate, and in an action on such contract parol testimony may be admitted to enable the court to properly apply the contract to the subject-matter, p. 45.</p> <p>7. Contracts.-— Sale of Beal Estate.— Commission Contracts.— Time of Execution. — Where a seller of real estate received the benefit of services of an agent who negotiated the sale, and thereafter executed his obligation in writing to pay the agent, such instrument though executed after the sale sufficiently meets the requirements of §7463 Burns 1908, Acts 1901 p. 104. p. 46.</p>

<p>1. Justices oe the Peace. — Execution.—Claims of Third Persons to Property Levied On. — Remedy.-—-Where personal property is seized by virtue of an execution, and a person other than the execution defendant owns or has some interest in it, he may have his right thereto tried and determined, as provided by §1820 Burns 1908, §1529 R. S. 1881, by filing with the justice of the peace issuing such writ his verified complaint stating the nature of such claim, and under §1837 Burns 1908, §1540 R. S. 18S1, if he is a resident of this state and fails to assert his claim within twenty days after receiving from the officer seizing the property, a notice as provided by §1836 Burns 1908, §1545 R. S. 1881, he is thereafter barred from doing so, unless before receipt of such notice, he has instituted a suit to assert his right, p. 52.</p> <p>2. Replevin. — Action by Third Person to Recover Property Levied On. — Parties Defendant. — Where an execution plaintiff assumed control of the writ issued on a judgment had before a justice of the peace and directs the officer as to its execution, he is a proper party defendant with the officer in an action brought by a third person to replevy the property levied on. p. 53.</p> <p>3. Judgment. — Arrest of Judgment. — Overruling Motion. — Where the complaint stated a cause of action against all defendants, and the verdict and judgment was against all of them, and no error appeared on the face of the record sufficient to vitiate the entire proceedings, the court properly overruled defendant’s several motions in arrest of judgment, p. 53.</p> <p>4. Coubts. — Jurisdiction.—Superior Court. — Action to Replevy Property Taken on Execution Issued by Justice of the Peace.— Where an execution plaintiff assumed control of an execution issued on a judgment had before a justice of the peace and directed the constable in making a levy, an action in replevin against the execution plaintiff and the officer, by one claiming to be the owner of the property levied on, was properly brought in the superior court, p. 55.</p> <p>5. Officers. — Constable.—Levying Execution by Deputy. — Liability. — Where an execution was levied by the deputy of a constable in the name of and by virtue of the authority vested in such constable, the levy was the act of the constable, and a verdict for plaintiff in an action against such constable and the execution plaintiff to replevy the property levied on will not be disturbed because the evidence fails to show that such constable was personally active in making the levy. p. 55.</p>

<p>1. Appeal — Briefs.—Failure of Appellant to Comply With Rules of Court. — Right of Appellee. — Where the appellant’s brief does not substantially comply with the rules of court, the appellee is not required to supply the omissions of appellant, nor to submit a brief on the merits, but he has a right to assume that the rules will be enforced, pp. 57, 58.</p> <p>2. Appeal. — Judgment.—Presumption.—Burden of Showing Error. —On appeal every presumption is indulged in favor of the correctness of the judgment of the trial court, and the appellant has the burden of showing error therein, which he must do in the manner prescribed by the rules of the court, p. 58.</p> <p>3. Courts. — Rules.—Effect.—When rules of court are adopted and published, they have the force and effect of law, and are obligatory upon the court, as well as upon the parties to causes pending before it. p. 5S.</p> <p>4. Appeal. — Briefs.—Statement of Evidence. — Failure to Comply with Rules of Court.- — W’here appellant made no effort to set out the evidence in his brief in the manner required by clause five of rule twenty-two of the court, but under the head of “The Pacts” gave a history of the case from its inception, made up of the conclusions of counsel as to what the evidence was, together with comments and argument, no question on the evidence was thereby presented, p. 59.</p>

<p>1. Appeal. — Waiver of Brror. — An assignment of error is waived by failure to make any argument or to cite any authority in support thereof, p. 61.</p> <p>2. Appeal.. — Motion for Beto Trial. — Briefs.—Waiver of Brror. — - An assignment of error in overruling a motion for a new trial is waived, unless the motion or its substance is set out in appellant’s brief, p. 62.</p> <p>3. Contracts. — Requisites.—Offer and Acceptance. — A contract is created by an offer and acceptance, and the acceptance must be unconditional and in the terms of the offer, p. 67.</p> <p>4. Sales. — Contract T)y Correspondence. — Intention of Parties.— Construction of Letter. — Where plaintiff offered to sell defendant five hundred tons of melting scrap steel at a certain price per ton delivered, and in its letter in reply thereto defendant stated that it had decided to give “an order for sample ear subject to our approval of the five hundred tons mentioned some time ago,” and that the order “is given on condition that you can make immediate shipment of the sample car, for if the scrap does not prove satisfactory we will want to have time to investigate sources of supply elsewhere,” the fact that the order was expressly limited to a sample car would indicate that there was no intention at that time to order more, and the letter cannot be construed as an agreement to accept and pay for five hundred tons if the sample car proved satisfactory, pp. 67, 68.</p> <p>o. Evidence. — Writing.-—Intention of Parties. — If the words of a writing clearly express the intention of the writer, such intention will prevail and extraneous evidence cannot be admitted to show a contrary intention, pp. 68, 70.</p> <p>G. Appeal.— Insufficiency of Evidence.— Statute.— Tinder §698 Burns 1908, Acts 1903 p. 338, a direct assignment of error questioning the sufficiency of the evidence to sustain the verdict is unavailing, that section being applicable only to cases not triable by jury. p. 71.</p> <p>7. Appeal.- — Insufficiency of Evidence. — How Question Presented.— In cases triable by jury the question as to the sufficiency of the evidence can be presented on appeal only by assigning as one of the causes for a new trial that the verdict or decision is nob sustained by sufficient evidence, and then assigning as error the action of the trial court in overruling the motion for a new trial, p. 71.</p>

<p>1. Evidence. — Parol Evidence. — Written Contract. — Superadded Term,. — Where a written contract for the purchase of staves contained no provision as to where inspection should be made, evidence of an oral agreement as to the place of inspection, made thereafter, related to a superadded term not inconsistent with the writing, and was not objectionable under the rule that all oral negotiations were merged in the contract, p. 76.</p> <p>2. Sales. — Action for Price. — Delivery.—Burden of Proof. — In an action for the price of staves sold, the burden was on plaintiff to show a delivery of the goods described in the contract, p. 76.</p> <p>3. Sales. — Description.—Contract.—Performance.—The quality is a part of the description of a thing agreed to be sold and the vendor is bound to furnish articles corresponding with the description, p. 77.</p> <p>4. Sales. — Implied Warranty. — Quality.—Opportunity for Inspection. — Where goods are offered for delivery under a contract, it is the duty of the vendee to inspect the same before acceptance, if he desires to save his rights in ease the goods are of an inferior quality, as there is in such case no warranty of quality which survives acceptance, p. 77.</p> <p>5. Customs and Usages. — Sales.—Quality of Article Sold. — Evidence. —For the purpose of determining whether staves sold under a contract were No. 1 or No. 2 grade, it was competent to show the custom of the trade as to the meaning of such terms, p. 77.</p> <p>6. Customs and Usages. — Sales.—Instructions.—invading Province of Jury. — In an action to recover the price of staves sold under a contract calling for No. 1 and No. 2 staves, where plaintiff’s president testified that the grades were fixed by the manufacturer, and there was evidence to support defendant’s contention that the grades mentioned were those established by a cooperage manufacturers’ association, an instruction which told the jury that, if it found such contract to have been entered into, the grades named therein were the grades known and recognized by those engaged in the manufacture and sale of cooperage stock at the place where the staves were manufactured, took from the jury the question as to what the terms used in the contract meant and was erroneous, p. 77.</p> <p>7. Sales. —• Fraud. — Proof. —■ Instructions. — Fraud need not be proved by direct or positive evidence, and an instruction, in an action for the price of goods sold, which told the jury that defendant had the burden of proving tbe defense of fraud by positive and specific affirmative proof, was erroneous, p. 78.</p>

<p>From Jennings Circuit Court; James K. Ewing, Special Judge.</p> <p>Action by William W. Olcott against Richard K. McClure. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Greene Circuit Court; Charles E. Henderson, Judge.</p> <p>Action by The Regina Company aganst John W. Galloway. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Briefs.—Failure to Comply With Court Rule.— Waiver of Error. — Where appellants’ brief does not set out so much of the record as fully presents the errors relied on, with reference to the page and line of the transcript, as required by rule twenty-two, such errors are waived, p. 96.</p> <p>2. Appeal. — Motion for New Trial. — Brief.—Where the overruling of a motion for a new trial is assigned as error, appellants’ brief should contain so much of the record as shows that such a motion was filed, and that the same was overruled by the court and an exception saved to such ruling, and should also contain a copy of the motion, or its substance, with reference to the pages and lines of the transcript where the entry may be found, p. 97.</p>

<p>1. Appeal. — Reservation of Grounds. — Joint Exceptions to Several Acts. — Error Assigned Only on One Act. — Where, for the purpose of reconsidering its ruling on a demurrer to the complaint, the trial court set aside the submission of a cause to the jury, reconsidered its ruling on such demurrer and sustained the same, to all of which acts the record shows a joint exception, the setting aside of the submission and the further consideration of the demurrer were but preliminary steps to the ruling on the demurrer, which, if erroneous, was the one act harmful to the plaintiff, so that an assignment of error based only upon the ruling on the demurrer properly presented the question of the sufficiency of the complaint on appeal, pp. 99,101.</p> <p>2. Appeal. — Reservation of Grounds. — Exceptions in Gross. — Assignment of Error. — The rule in regard to exceptions in gross has been somewhat relaxed from its former strictness, but not to the extent of abrogating the rule that, where there is a joint exception to several distinct acts or conclusions of the court upon which error may be predicated, clearly shown by the record, an assignment of error as to one of such acts presents no question on appeal, p. 100.</p> <p>3. Master and Servant. — Coal Mines. — Injury to Servant. — Action ■ — Complaint.—In an action by the widow of a coal mine employe against the master for the husband’s wrongful death, where the theory of the complaint is that of negligence in failing to perform the duty enjoined by the statute (§8597 Burns 1908, Acts 1907 p. 253) to make the mine safe as therein specified, the complaint must state a cause of action within the provisions of the statute, p. 104.</p> <p>4. Pleading. — Complaint.—Construction.—Inferences.—The court will not indulge in inferences and speculation in support of a complaint, nor will it thus destroy the effect of direct and positive averments to render an otherwise good complaint insufficient. p. 104.</p> <p>5. Master and Servant. — Coal Mines. — Injury to Servant. — Complaint. — Sufficiency.—In an action to recover for the wrongful death of a coal mine employe, caused by falling rock and slate from the roof of a mine entry, where the complaint averred that decedent was employed as a “jerryman”, whose duty it was to clean up loose slate, rock and debris from the various entries and rooms of the mine, to assist in putting ears on the track in the entiles of the mine and to lay track in said mine and to perform any other services when ordered by the mine boss so to do, and that by reason of defendant’s failure to make tbe roof or overhead portions of the mine 'safe, the injury occurred, the proximate cause of the injury is shown to have been tbe defendant’s failure to perform its statutory duty of making the roof or overhead portions of the mine safe, and the complaint was not insufficient as against a demurrer based on the theory that it showed an assumption of risk hy the decedent, p. 105.</p>

<p>Prom Starke Circuit Court; F.-J. Yurpillat, Judge.</p> <p>Action by Jobn Chaney against the Chicago and Erie Railroad Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Newton Circuit Court; G. W. Hanley, Judge. Action by Matt. Boswinkle against Andrew Granger, ex-justice of the peace, and others. Prom a judgment for plaintiff, the defendants appeal.

<p>Prom Henry Circuit Court; Ed. Jackson, Judge.</p> <p>Action by Thomas A. Jackson against Thomas H. New. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Pleading. — Abatement.—Demurrer.—Where matter in abatement is not pleaded under oath, as required by §§371, 1749 Burns 1908, §§365, 1460 R. S. 1881, the plea is demurrable, p. 133.</p> <p>2. Pleading. — Answer.—Matter in Bar of Action. — Demuri'er.—Action Originating Before Justice of the Peace. — In an action originating before a justice of the peace all matters of defense, except the statute of limitations, set-off, and matters in abatement, are admissible in evidence without being specially pleaded, and sustaining a demurrer to an answer in bar of such action is harmless, p. 133.</p> <p>3. Justices of the Peace. — Jurisdiction.—Action for Possession.— Landlord and Tenant. — Under §8071 Burns 1908, §5225 R. S. 1881, a justice of the peace has jurisdiction coextensive with the territorial iimits of his county, and unlimited as to amount, in an action for possession by the landlord against a tenant unlawfully holding over. p. 134.</p> <p>4. Contracts. — Construction.—Province of Court. — Where the contract sued on was in writing, it was in the province of the court to construe same. p. 134.</p> <p>5. Landlord and Tenant. — Lease.—Agreement of Bale. — Validity. —A lease contract containing a provision for the sale of the premises to the tenant may be enforced, p. 135.</p> <p>6. Landlord and Tenant. — Lease.—Agreement of Bale. — Construction. — Relation of Landlord and Tenant. — A contract, drawn in the form and language common to all lease contracts, with the exception that it contains a provision for a sale and conveyance to the party taking possession by virtue thereof, upon his full compliance with its provisions, is in effect a lease creating the relation of landlord and tenant between the parties thereto, p. 135.</p> <p>7. Appeal. — Reversal.—Excessive Damages. — A cause will not be reversed simply because the damages awarded are excessive, where the amount of such excess is less than one dollar, p. 137.</p>

Prom Henry Circuit Court; Ed Jachson, Judge. Action by Carl S. Hollingsworth against Julia Hollingsworth, as executrix of the last will of Joseph R. Hollingsworth, deceased. From a judgment for defendant, the plaintiff appeals.

<p>1. Bills and Notes. — Action.—Material Alterations. — Answer.— Sufficiency. — In an action on a -promissory note, a sworn paragraph of answer admitting the execution and delivery of the note sued on, but alleging that after the signing and delivery, and without the consent or knowledge of defendant, the same was materially altered and changed by inserting certain words in the body thereof, so that the note sued on was not in terms the note executed, was sufficient as against a demurrer without alleging that the alteration of the note was made by the party claiming under it p. 144.</p> <p>4?. Bills- and Notes . — Material Alterations. — Unauthorized alterations of a note, which vary the legal effect thereof to the advantage of the person making such alterations, are sufficient to avoid the contract, p. 144.</p> <p>;i. Pleading. — Cross-Complaint.—Founded on Written Instrument. • — Sufficiency.—Where a cross-complaint is founded on a written warranty, it will be insufficient unless the instrument is set out in the body thereof or is made an exhibit thereto, p. 145.</p> <p>4. Sales.— Warranty. ■— Consideration. — Pleading. — Answer. — A warranty of the thing sold, made at the time of- the sale, is a part of the entire contract, and the price paid for the subject of the sale constitutes the consideration for the warranty, so that in an action on a note for the purchase price of a horse an answer setting up a breach of warranty was not open to the objection that no consideration for the warranty was shown; p. 145.</p> <p>5. Sales. — Warranty. — Breach. — Answer. — Sufficiency.— In an action on a note given for the purchase price of a stallion, an answer setting up a breach of warranty was insufficient for failure to allege what the services of the horse were worth or that he was less valuable than if he had been as warranted, p. 145.</p> <p>6. Sales. — Warranty.—Breach.—Remedy.—It is the general rule that, in the absence of fraud, the breach of warranty of personal property unconditionally sold will not- give to the purchaser a right to rescind the contract, but his remedy is by original action on the warranty, or he may set it up by counterclaim, or rely upon it as a defense in an action for the purchase money, p. 145.</p> <p>7. Sales. — Action for Purchase Price. — Defense.—Breach of Warranty. — Where a breach of warranty is relied on as a complete defense, it must be made to appear that the damages sustained on account of the breach are equal to the amount of plaintiff’s claim, or that the article was of no value for any purpose, p. 146.</p>

Prom Ripley Circuit Court; Francis M. Thompson, Judge. Action by 'William Federle, as guardian of Joseph Federle, a person of unsound mind, against tbe Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.

<p>Prom Orange Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Action by Harrison J. Kolman and others against Oliver W. Jones. Prom a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Insubakce. — Fraternal Insurance. — Change of By-laws. — Effect. —Where a fraternal society issued a certificate of insurance to one of its members, providing for the payment of a designated and certain sum and providing that the certificate should be incontestable after two years, the society could not, on the death of the member by suicide more than five years thereafter, avoid its liability for the full amount of the certificate by reason of a bylaw, adopted less than two years after the certificate was issued, providing that death by suicide would fix the amount payable on the certificate at five per cent per annum for each year of membership. p. 164.</p> <p>2. Insurance. — Fraternal Insurance. — Right to Change By-laws.— Fraternal societies cannot amend their by-laws so as to impair or modify contracts of insurance previously made. p. 164.</p> <p>3. Insurance. —. Fraternal Insurance. — Contract. — Compliance With Future By-laws. — Construction.—Compliance with future by-laws, as used in an agreement, in the application for membership in a fraternal insurance order, that the applicant will comply with the laws and rules of the order then in force and which may thereafter be adopted, has reference to future by-laws pertaining to the duties of the members, but not affecting the rights granted by virtue of the contract of insurance, p. 165.</p>

From Wells Circuit Court; Charles E. Sturgis, Judge. Petition and application by William A. Curry and Mary S. Wieeking for revocation of letters of administration granted to Charles H. Plessinger on the estate of David Franklin Curry, deceased, and for the granting of such letters to the petitioners. From a judgment against the petitioners, said petitioners appeal.

<p>1. Appeal. — Briefs.—Musi Set Oui Errors Relied on. — Errors assigned and argued, but not set out in appellant’s brief, are considered waived, p. 181.</p> <p>2. Schools and School Districts. — Transfer of Pupils. — Action for Tuition. — Recovery of Penalty. — Under the provisions of the act of March 6, 1909 (Acts 1909 p. 331), in an action by one school corporation against another to recover tuition due on account of the transfer of pupils, where the evidence warrants a finding that tuition was due in the sum claimed and that there was a failure to pay same as provided in said act, the court must add a penalty of ten per cent to the amount found due. p. 181.</p> <p>3. Schools and School Districts. — Transfer of Pupils. — Action for Tuition. — Motion for New Trial. — Excessive Recovery. — Appeal. — In an action brought under the act of March 6, 1909 (Acts 1909 p. 331), to recover tuition due on account of the transfer of pupils, alleged error in overruling a motion for a new trial because the recovery is too large is unavailing on appeal against a judgment for plaintiff for the amount of the tuition and the statutory penalty of ten per cent, where there was evidence to warrant the court in finding that the tuition, claimed was due and had not been paid as required by said act. p. 182.</p> <p>4. Appeal. — Briefs.—Statement of Evidence. — Sufficiency.—Where appellant set out in his brief certain questions and answers from the testimony of two witnesses, and a statement of what he deemed to be the substance of the testimony of other witnesses, including conclusions and argumentative statements, and omitted the names of many witnesses, there was no such compliance with the rule, requiring appellant’s brief to contain a condensed recital of the evidence in narrative form, as to raise any question upon the sufficiency of the evidence to sustain the decision of the court, p. 182.</p> <p>5. New Trial. — Motion.—Matters Properly Included. — “Decision Contrary to Law."- — As a general rule matters properly included in a motion for a new trial must relate to errors of law occurring at the trial, and an assignment in a motion for a new trial that “the decision is contrary to law” does not perform the office of an exception to conclusions of law stated upon a special finding of facts, p. 183.</p> <p>6. Appeal. — Review.—Merits Fairly Tried. — A cause will not be reversed where it appears that its merits have been fairly tried and determined in the lower court, p. 183.</p>

<p>1. Trial. — Instructions.—Railroads.—Street Crossings.- — Care Required. — In an action against a railroad company for personal ■ injuries received at a street crossing, an instruction that it was the duty of defendant to give timely warning of the approach of the train to the crossing, whether or not there was a statute or ordinance requiring it to do so, and that any failure to exercise such care, if shown to exist, was negligence on the part of defendant, was not erroneous where there was another instruction which informed the jury as to the statutory duty of the defendant to give warnings at crossings, p. 187.</p> <p>2. Appeal. — Review.—Instructions.—Harmless Error. — A cause will not be reversed because of an erroneous instruction, if, in view of the evidence, the error was harmless, p. 187.</p> <p>3. Trial. — Instructions.—Refusal.—Covered by Other Instructions. ■ — The refusal of a requested instruction is not erroneous where its subject matter is covered by other instructions given, p. 187.</p> <p>4. Trial. — Instruction.—Comparing Evidence. — Refusal.—An instruction, in an action to recover for injuries received at a railroad crossing, which told the jury that it was its duty to reconcile any conflict or apparent conflict in the testimony, and that in doing so it could consider that a person may hear the sound of a whistle or a bell, and not be conscious of hearing such sound, was properly refused as invading the province of the jury. p. 188.</p> <p>5. Trial. — Duty of Court and Jury. — It is the duty of the judge to instruct the jury as to matters of law, and of the jury to decide the facts of the case. p. 188.</p> <p>6. Trial. — instructions.—Positive and Negative Evidence. — Weight. —The jury may not be told that positive evidence is to be given more weight than negative evidence, p. 189.</p> <p>7. Evidence. — Positive Evidence. — Where witnesses, who were looking at a train as it approached a crossing and had their attention directed to it, testified that no warning of its approach to the crossing was sounded, the evidence was positive evidence, p. 189.</p> <p>S. Appeal. — Depositions.—Motion to Strilce Out. — Record.—Bill of Exceptions. — A motion to strike out the answers to certain questions in a deposition, not made in the manner required by §662 Burns 1908, Acts 1903 p. 338, does not become a part of the record under the provisions of §663 Bums 1908, Acts 1903 p. 338, and, unless brought in by a bill of exceptions, no question as to the court’s ruling thereon can be presented, p. 189.</p> <p>9. Raileoads. — Grossing Accident. — NegUgence.—Contributory Negligence. — Evidence.-—In an action to recover for injuries received in a crossing accident, where the evidence showed that a freight-train was standing on a track near the crossing with its headlight burning and thrown toward the crossing, that its engine was emitting steam and otherwise making noise, that the train which caused the injury approached the crossing at a rate of forty miles per hour and without sounding a whistle or gong, that the injured party stopped his team about fifty feet from the crossing and looked and listened, and neither seeing nor hearing an approaching train, proceeded slowly toward the crossing and in so doing continued to look and listen, that between the crossing and the point where the injured party stopped there were places where the headlight of an approaching train might have been seen some distance and at other places it could not have been seen because of freight-cars and other obstructions, that the freight-train attracted his attention somewhat and that he did not see the approaching train until too late to avoid the injury, such evidence was sufficient to warrant the jury in finding that the defendant was negligent in the operation of its train at the crossing and that the injured party was free from contributory negligence, p. 190.</p> <p>10. Appeal. — Revieio.—Verdict.-—Where there is some evidence to support the verdict, it will not be disturbed on appeal, p. 192.</p>

<p>From Marion' Circuit Court (17,205) ; Charles Remster, Judge.</p> <p>Action by the Mooney-Mueller Drug Company against John B. Wills and others. From a judgment for plaintiff, the defendants John B. Wills and Leslie A. Wills appeal.</p>

<p>1. Injunction. — Timber Contract. — Interference with Rights.— Parties. — In a suit to restrain a grantee of land from interfering with rights acquired by plaintiffs under a timber contract executed between plaintiffs and the grantor prior to' the conveyance, and of which the grantee had notice, where it does not appear from the complaint that the grantor owned or was asserting any interest in the land at the time the action was brought, such grantor was not a necessary party defendant, p. 205.</p> <p>2. Injunction. — Timber Contract. — Defective Description of Land. —License to Ctit and Saw Timber. — Complaint.—Sufficiency.—In a suit to restrain a grantee of land from interfering with rights acquired under a timber contract, where the complaint averred that the consideration for the contract had been paid, that plaintiffs had entered into possession under its terms, and that the interest of such grantee in the land was acquired with full notice of plaintiffs’ rights, an irrevocable license to cut and saw the timber was shown, and the complaint was sufficient, although the description of the land in such contract may have been insufficient to convey an interest in real estate, p. 205.</p> <p>3. Licenses.— Revocation.— Consideration.— Restoration. — Necessity. — Although at common law a mere license to enter on real estate is revocable at the pleasure of the licensor, on principles of equity the licensor, or, in the event of a conveyance, the grantee with notice, is estopped from revoking a license after it has been acted on and money has been expended on the faith thereof, without placing the licensee in statu quo. p. 205.</p> <p>4. Appeai. — Review.—Decision of Court. — Insufficient Evidence.— In a suit to restrain the interference with rights under a license to cut timber, although the defendant acquired his interest in the land with full knowledge of the license and the rights of plaintiffs thereunder, the decision of the court in favor of plaintiffs was not supported by the evidence, where it was not shown that defendant’s grantor, -who was the grantee of the licensor, had neither actual nor constructive notice of the existence of plaintiff’s claim to the timber, p. 200.</p> <p>5. Vendor and Purchaser. — Bona Eide Purchaser. — Secret Equities. — A bona fide purchaser of real estate without notice takes the same free from secret equities, and after acquired notice does not affect his rights, p. 206.</p> <p>6. Vendor and Purchaser. — Bona Fide Purchaser. — Rights of Purchaser with Notice from Purchaser Without Notice. — A purchaser of land, with notice of secret equities, from a purchaser thereof without notice, succeeds to all the rights of his grantor, p. 207.</p> <p>7. Vendor and Pcrchaser. — Bona Fide Purchaser. — Presumption —Burden.—The law presumes the grantee in a deed fa> be a bona fide purchaser, and the burden of overcoming this presumption rests upon him w ho seeks to impeach the title, p. 207.</p>

<p>1. Pleading. — Demurrer for Want of Facts. — Right of Plaintiff to Maintain Action. — A demurrer for want of facts challenges the authority or right of the plaintiff to maintain the action stated in the pleading to which it is addressed, p. 210.</p> <p>2. Actions. — Action hy Town to Recover Tames Withheld Vy Township. — Real Party m Interest. — Right to Maintain in Name of State, em rel. — The right to maintain an action to recover taxes alleged to be wrongfully withheld by a township from a newly incorporated town within the township, in the absence of any statute authorizing the bringing of such action in the name of the “State, ex rel.”, is controlled by §§251, 252 Burns 1908, §§251, 252 R. S. 1881, requiring every action to be prosecuted in the name of the real party in interest, except as therein otherwise provided, so that where such action was brought in the name of the State, ex rel., a demurrer to the complaint for want of facts was properly sustained, pp. 211, 213.</p> <p>3. Equity. — Suits.—Real Party in Interest. — As a general rule a suit in equity must be prosecuted in the name of the real party in interest, p. 213.</p>

<p>From Knox Circuit Court; George W. Buff, Special Judge.</p> <p>Action by Samuel A. Jordan and another against Mary L. Johnson and others. Prom a judgment for defendants, the plaintiffs appeal.</p>

From Monroe Circuit Court; John C. Robinson, Special Judge. Action by the Trustees of Tunnelton Lodge No. 168 K. of P. against the Baltimore & Ohio Southwestern Railroad Company. The Hartford Fire Insurance Company was made a party defendant on motion of the defendant. From a judgment for plaintiff, the defendant railroad company appeals.

<p>From Pike Circuit Court; John L. Brete, Judge.</p> <p>Action by Alice Stilwell against the First National Bank of Winslow. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Pleading. — Complaint.—Theory.—To be sufficient, a pleading must proceed on a single definite theory and be good on that theory, p. 237.</p> <p>2. Pleading. — Complaint.—Theory.—General and Specific Averments. — The theory of a complaint will be ascertained only from its scope and tenor, and a general averment must yield to specific averments, p. 237.</p> <p>3. Damages. — Complaint. — Avet'ments.—Sufficiency.—A pleading which fails to allege that the complaining party is damaged, and contains no averment of facts from which an inference of damages can be forced, is insufficient as a complaint for damages, p. 237.</p> <p>4. Pleading. — Complaint.—Specific Performance. — Construction.—< Where a complaint was entitled a “Complaint for Specific Performance” and contained no allegation that the plaintiff was damaged, and demanded that defendant be required to perform his contract, it will be construed as proceeding on the theory of an action for specific performance, p.238.</p> <p>5. Specific Performance. — Contract for Sale of Corporate Stool;. —Complaint.■—Averments as to Performance. — -A complaint seeking to compel specific performance of a contract wherein plaintiff agreed to sell defendant certain corporate stock and release a claim that he held against the corporation, was insufficient for failure to allege that a tender of the stock was made to defendant before the action was brought, and is not cured by a general allegation of plaintiff's performance and willingness to perforin, p. 238.</p> <p>6. Contracts. — Contract Toy Correspondence. — Validity.—Meeting of Minds. — Where defendant wrote to plaintiff that if he would give an option for ninety days on his stock, defendant would be willing to guarantee him $300 for it with the understanding that the corporation’s indebtedness to plaintiff would be transferred with the stock, and plaintiff replied that he would sell his stock for $300 net to him, without commission, and that on completion of the sale and payment of the purchase price, he would release his claim against the corporation, plaintiff’s reply was not an unconditional acceptance of defendant’s proposition so as to constitute a meeting of the minds of the parties and there was no valid and enforceable contract between them. p. 239.</p>

<p>1. Appeal. — Review.—Findings.—Conclusiveness.—Where there is some evidence to support the findings of the trial court, they will not be disturbed on appeal, p. 248.</p> <p>2. Accoed and Satisfaction. — Burden of Proof. — Where defendant pleads accord and satisfaction, he has the burden of proving same. p. 24S.</p> <p>3. Accoed and Satisfaction. — Establishment.—Authority of Attorney. — -Where defendant, operating a wholesale business in one city under the name of C. Company and in another under the name of L. Company, had purchased supplies from plaintiff with names of the two companies, in an action to recover a balance due, evidence showing that plaintiff had placed in the hands of an attorney an account against the C. Company, that the attorney had no knowledge of the L. Company nor of any transactions had between it and the plaintiff, and that defendant gave to such attorney his check for the amount of the claim against the C. Company, with a statement attached thereto that it was to be accepted in full payment of all obligations of the plaintiff against the G. Company and the L. Company, and that the attorney detached the statement and cashed the cheek, was insufficient to establish an accord and satisfaction of the claim sued on in the absence of evidence showing special authority in the attorney, p. 248.</p> <p>4. Attorney and Client. — Authority of Attorney. — Collection of Claims. — Compromise.—Rights of Client. — Except in cases of emergency where the interest of the client may be jeopardized if action be deferred, or when specially authorized so to do, an attorney has no authority to compromise a claim placed in his hands for collection, and, where he does so, the client is at liberty to ignore the same and treat such action as a nullity, p. 249.</p> <p>5. Attorney and Client. — Unauthorized Compromise. — Ratification by Client. — Where an attorney, without authority to do so, effected an alleged compromise of plaintiff’s claim, the fact that plaintiff delayed bringing an action until nineteen days thereafter was not such acquiescence as would amount to a ratification of the attorney’s act p. 249.</p> <p>O. Pleading. — Verification.—Execution of Instruments. — Failure to Deny Under Oath. — Effect.—Failure to deny the execution of an instrument under oath is a waiver of preliminary proof of its execution before being offered in evidence, but does not preclude the introduction of evidence as to the consideration therefor, the situation of the parties and the circumstances, of its execution, for the purpose of showing the real intention of the parties, p. 250.</p> <p>7. Accord and Satisfaction. — Establishment.—Where an agreement is relied on as an accord and satisfaction, the agreement and its execution must be established as a question of fact like any other agreement, p. 250.</p>

<p>1. Schools and School Disteicts.- — Contract by Board of School Trustees. — Employment of Superintendent. — Term of Employment — Validity.—Under §0488 Burns 1908, §4445 R. S. 1881, giving the school trustees of an incorporated town or city authority to employ a superintendent for their schools, the term of the employment is left to the sound discretion of the school trustees, and, in the absence of a showing of fraud or an abuse of such discretion, a contract employing a superintendent of city schools for a term of three years was valid, although it extended beyond the term of any member of the board as composed at the time the contract was made. pp. 252, 256.</p> <p>2. Conteacts. — Validity.—Public Policy. — Courts cannot arbitrarily declare a contract void as against public policy, and, where the power to make the contract is given by statute, the reasons for declaring it void should clearly appear before the court is warranted in so deciding, p. 256.</p> <p>3. Conteacts. — 'Validity.—Public Policy. — Manner of Determining Question of Public Policy. — In determining whether a contract is contrary to public policy the courts will look first to legislative declarations on the subject, if any, and secondly to their judicial interpretation, p. 256.</p> <p>4. Schools and School Disteicts. — Contract by School Trustees. —Employment of Superintendent. — Validity.—Public Policy.— Where the trustees of a school city made a contract employing a superintendent for a term of three years, the bare possibility of abuse of their power neither justifies a denial of authority to make such contract nor shows the same to be against public policy, p. 257.</p>

<p>1. Time. — Computation.—Exclusion of Sunday. — Time for Filing Briefs. — The provisions of §1350 Burns 1908, §1280 R. S. 1881, for computing the time within which an act is to be done and providing that if the last day be Sunday, it shall be excluded, apply to the time for filing briefs, p. 259.</p> <p>2. Time. — Computation.—“To.”—“Till.”—“Until.”—When the word “to-” is used as a conjunction, it is synonymous with “till” or “until,” and where the time for doing a thing is “to” a certain day such day is not included, p. 259.</p> <p>3. Appeal. — Briefs.—Time for Filing. — Dismissal.—Where appellant procured an extension of time for filing briefs to March 3, the filing, of such briefs after March 2 was not in time, and authorized a dismissal of the appeal, p. 2G0.</p>

<p>Prom "White Circuit Court; Charles W. Hanley, Special Judge.</p> <p>Action by Bessie Cronin against Arthur R. Keesling and others. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom White Circuit Court; Charles W. Hanley, Special Judge.</p> <p>Action by Bessie Cronin against the Logansport Daily Reporter Company and others. Prom a judgment for defendants, the .plaintiff appeals.</p>

<p>Prom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by John Bennett against The Chicago, Indianapolis and Louisville Railway Company. Prom a judgment for defendant, the plaintiff .appeals.</p>

<p>Prom Gibson Circuit Court, Rerdis Clements, Judge.</p> <p>Action by Anna St. Clair against the Princeton Coal Mining Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeau. — Assignment of Errors. — Dismissal of Appeal from Justice of the Peace. — Error in sustaining a motion to dismiss an appeal from a justice of the peace is not an “error of law occurring at the trial” and can only be presented on appeal by air independent assignment of error, p. 279.</p> <p>2. Justices of the Peace.- — Judgment.—Form.—Sufficiency.-—A judgment of a justice of the peace, although informal and open to criticism, is sufficient in form to evidence a judgment, where, when fairly construed, it shows a trial, a finding in favor of defendant, and a judgment that plaintiffs take nothing by their action and pay the costs of suit. p. 280.</p> <p>3. Justices oe ti-ie Peace. — Judgment.-—Form.—Necessity of Signature to Judgment on Appeal to Circuit Court. — Although under §§1725, 1780 Burns 1908, §§1437, 1489 R. S. 1881, a judgment of a justice of the peace is not valid until it has been entered of record and signed, his failure to sign a judgment from which an. appeal has been taken to the circuit court is not ground for dismissal of the appeal, where such appeal was otherwise regular under the statute and the transcript showed that the justice had jurisdiction and rendered a judgment, pp. 280,282.</p> <p>4. Justices of ti-ie Peace. — Appeal-to Circuit Court, — Trial Do Novo. — On appeal to the circuit court from the judgment of a justice of the peace, there is no question of correcting errors, but the cause is tried de novo. p. 282.</p>

<p>Prom Dearborn Circuit Court; George 'E. Downey, Judge.</p> <p>Action by the Cincinnati, Lawrenceburg and Aurora Electric Street Railroad Company against the Baltimore and Ohio Southwestern Railroad Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Charles Toney against Albert Boggs. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Action, for Personal Injuries. — Death of Party. — Abatement. — Under the provisions of §283 Burns 1908, §282 R. S. 1881, the appeal, in an action for personal injuries, abates on the death of the plaintiff, p. 292.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Anna B. March against William F. March. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Hendricks Circuit Court; John C. Robinson, Special Judge.</p> <p>Action by William R. McClelland against Joel T. Barker and others. Prom a judgment for plaintiff, certain defendants appeal.</p>

<p>Prom Superior Court of Vanderburgh. County; Alexander Gilchrist, Judge.</p> <p>Action by William W. Sipp and others against Hiram W. Barrett and another. Prom a judgment for plaintiff, the defendant Hiram W. Barrett appeals.</p>

From Bartholomew Circuit Court; Marshall Eacher, Judge. Aetion by Thomas Essex and others as trustees of the Methodist Episcopal Church of Old St. Louis against Dennis C. Hopkins and others as trustees of the Methodist Episcopal Church of Hope and others. From a judgment for defendants, the plaintiffs appeal.

<p>1. Landlord and Tenant. — Lease.—Oonstruclion.—A lease is construed in the light of the statutes on the subject of landlord and tenant (§8053 et seq. Burns 1908, §5207 et seq. R. S. 1881) which are regarded as if written into and constituting a part of the contract, p. 328.</p> <p>2. Landloed and Tenant. — Lease.—Termination.—A lease for a specified term will continue until the expiration of the time named, unless it is sooner terminated in accordance with the provisions of the statutes, or in accordance with some provision of the lease itself, or by agreement of the parties, p. 328.</p> <p>3. Landloed and Tenant. — Lease.—Termination.—Rent Payable in Advance. — Statute.—Vuele? §8059 Burns 1908, §5213 R. S. 1881, where a lease provides for payment of rent in advance, a failure to pay the rent in advance when due terminates the lease at the election of the lessor, and he may bring, an action for possession without notice and without demand for either the rent or possession. pp. 32S, 329.</p> <p>4. Landloed and Tenant. — Lease.—Termination.—Rent Not Payable in Advance. — Notice.-—Where a lease contains no provision for the payment of the rent in advance, and does not provide a forfeiture for such failure, a failure to pay does not ipso facto terminate the lease, but it \vill terminate by operation of §S057 Burns 1908, §5211 R. S. 1881, in case the rent is not paid within ten days after giving notice as therein provided, p.- 328.</p> <p>5. Landloed and Tenant. — Lease.—Termination.—Provision for Forfeiture — Rent Not Payable in Advance. — Demand.—Where the rent is not payable in advance under a lease providing for a forfeiture for failure to pay the rent when due, the lessor may declare a forfeiture under the terms of the lease after first demanding the rent upon the leased premises, unless some other place of payment is stipulated, just before sunset on the day the rent is due. p. 329.</p> <p>6. Landloed and Tenant. — Lease.—Forfeiture.—Construction.— A provision for the forfeiture of a lease on failure to pay rent is a sort of condition subsequent, and is strictly construed, p. 329.</p> <p>7. Landloed and Tenant. — Lease.—Waiver of Forfeiture. — Answer. — Sufficiency.—In an action for possession of leased premises for failure to pay rent, where the answer admitted the possession under a lease providing a forfeiture for failure to pay the rent monthly in advance and admitted the nonpayment of the rent due on each the first days of March and April immediately preceding the time of demanding possession, but averred that xfiaintiff had never theretofore, during the entire period of the lease, demanded payment monthly in advance and that defendant had never paid the rent monthly in advance and had often delayed the payment for a period of three months or more, and that by reason of plaintiff’s acceptance of such payments defendant had been led to believe that plaintiff would not insist upon a forfeiture for failure to pay monthly in advance, the allegations were insufficient to show a waiver of plaintiff’s right to terminate the tenancy for failure to pay the rent admitted to be due. pp. 330, 333.</p> <p>8. Waiver. — Acts Constituting. — Either the intentional relinquishment of a known right or advantage that might have been insisted upon, or such conduct as warrants an inference of such relinquishment, will constitute a waiver thereof, p. 333.</p> <p>9. Estoppel. — Waiver. — Distinction. — While a person cannot waive a right before he is in a position to assert it, he may be estopped from asserting the right by words and conduct causing other persons relying thereon to act in such a way as to place them at a disadvantage, p. 333.</p> <p>10. Landlord and Tenant. — Lease.—Estoppel of Landlord to Claim, Forfeiture for Nonpayment of Rent. — Where the conduct of a lessor is such as to be reasonably calculated to induce the lessee to believe that he will not insist on the forfeiture of the lease for failure to pay rent when it becomes due, and the lessee by reason thereof, does so believe in good faith, and relying thereon suffers a default to occur when otherwise he would not have done so, the lessor will be estopped from asserting the right to terminate the lease on account of such default, p. 334.</p> <p>11. Landlord and Tenant. — Forfeiture of Lease. — Estoppel of Landlord. — Answer.—Sufficiency.—An answer showing a course of conduct by plaintiff well calculated to mislead defendant and cause him to believe that plaintiff did not at any time intend to insist on its right to terminate the lease for failure to pay rent when due, and averring that defendant did so believe, was insufficient on the ground of estoppel for failure to aver that defendant’s default was due to a reliance in the belief thus induced, p. 335.</p> <p>12. Landlord and Tenant. — Forfeiture of Lease. — Estoppel of Landlord. — “Cross-complaint".—Sufficiency as Defense. — A pleading filed by defendant in an action for possession of premises for default in payment of rent, which contained averments sufficient to show that plaintiff was estopped from terminating the tenancy because of such default, was sufficient to constitute a cause of defense, although it was designated as a cross-complaint. p. 335.</p> <p>13. Pleading. — Character of Pleading. — Allegations.—The character of a pleading will be determined from the facts averred therein, and not from the Dame given to it by the pleader, p. 330.</p> <p>14. Pleading. — Prayer.—Determination of Relief Sought.- — A prayer for relief is not decisive, but the relief to which a party is entitled under a pleading must be determined from its material averments, p. 336.</p>

<p>Prom Bartholomew Circuit Court; Marshall Eaclcer, Judge.</p> <p>Action by Adam Lortz and others against John M. Davis, as Auditor of Bartholomew County, and others. Prom a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Negligence. — ■Automobile Accident. — Contributory negligence.— Trial. — Answers to Interrogatories. — In an action for injuries incurred in an automobile accident, where answers by the jury to interrogatories showed that plaintiff looked south just before he stepxied from his wagon, and did not see defendant’s automobile approaching from that direction, that he picked up two bottles of milk and stepped out upon the street while the wagon was still moving, that he did not look to the south a second time before starting across the street and that if he had done so he could have seen the automobile within twenty-five feet of him and could have avoided the injury, but did not show how long it was after he had looked south until he was struck, nor how far he had walked, such answers were not sufficient to overcome the general verdict on the theory that they showed contributory negligence as a matter of law, since evidence was admissible under the issues from which the jury may properly have found that plaintiff was in the exercise of ordinary care, p, 350.</p> <p>2. Negligence. — Automobile Accident. — Contributory negligence.— Question for Jury. — In an action for injuries to plaintiff by being struck by an automobile while he was attempting to walk across a street, where there was evidence that he used some care, it was for the jury to determine from the facts shown whether he exercised the care that a person of ordinary prudence would have exercised under the circumstances, p. 351.</p> <p>3. Negligence. — Use of Streetm — Presumption.—Pedestrians in a street have a right to presume, in the absence of knowledge to the contrary, that all persons using the street are exercising ordinary care to avoid injuring them. p. 352.</p> <p>4. Negligence. — Automobile Accident. — Contributory negligence. — ■ Presumption as to Use of Street. — Consideration by Jury. — While the wrongful conduct of the defendant in operating his automobile at an excessive rate of speed, by reason of which plaintiff was injured while crossing a street, would not excuse plaintiff from tlie exercise of ordinary care, the jury had a right, in determining whether from the facts shown the plaintiff was guilty of contributory negligence, to consider the presumption that defendant would use ordinary care to avoid injuring pedestrians, p. 352.</p> <p>5. Negligence. — Automobile Accident. — Use of Streets. — Instruction. — Harmless Error — Where plaintiff was injured by an automobile while he was attempting to cross a street, an instruction which told the jury that a pedestrian in a street is not guilty of contributory negligence if he fails to anticipate or take special precautions against injury by persons riding or driving at an unlawful or dangerous rate of speed, although inaccurate in not stating that a duty to use special precautions arises where the pedestrian has knowledge of the negligent or unlawful use of the street by one riding or driving thereon, was harmless in the absence of evidence showing that plaintiff prior to his injury, had any knowledge of any special or particular danger from the excessive speed of defendant’s automobile, p. 353.</p> <p>G. Negligence. — Automobile Accident. — Use of Streets. — Care Required of Pedestrians. — Where a pedestrian in a street uses such care as would be ordinarily requisite to protect himself from injury by an automobile carefully operated thereon, he has discharged his full duty and is not guilty of contributory negligence, but if he has knowledge that the same is being operated in a negligent, reckless or unlawful manner, he is charged with a special duty of using such additional care as reasonable prudence dictates in view of the increased danger, p. 353.</p> <p>7. Negligence.- — Automobile Accident. — Instructions.— -Care Required in Use of Streets. — Tn an action for injuries caused by an automobile while plaintiff was crossing a street, an instruction which told the jury that it is the duty of an operator of an automobile on a highway or street to avoid causing injury, erroneously stated a degree of care not imposed by the law, and th.e error was not cured by the latter part of the instruction stating that the duty imposed required the operator to take into consideration the character of his machine, the manner of its running, its power, whether it is operated in a populous xiart of the city and on a much traveled street, and from these and all other pertinent considerations to proceed with that speed and caution which reasonable care requires according to the place and the presence of other travelers and vehicles. x>- 354.</p> <p>S. Appeal. — Review.—Instructions.-—Contradiction.—The giving of an instruction announcing two standards of duty for the measurement of defendant’s conduct in determining whether he was negligent, is prejudicial error, p. 355.</p> <p>9. Tkial. — Instructions.—Province of Jury. — Contributory Negligence. — An instruction that a person on foot, while lawfully using a public street, is not required to be looking or listening continuously to ascertain whether automobiles are approaching, under the penalty, on failure to do so, of being presumed negligent if he is injured, is erroneous, since the question of whether a failure to look or listen continuously will constitute negligence must depend upon the circumstances of the occasion and is for the jury to determine, p. 355.</p> <p>10. Teial. — Instructions.—Invading Province of Jury. — A court may not substitute its judgment on a question of fact for the judgment of the jury. p. 356.</p> <p>11. Witnesses. — Physician.—Eaihire to Call. — Effect.—The fact that the plaintiff in an action for personal injuries did not call a physician who attended him to testify as to his injuries, should not be considered as detrimental to plaintiff’s case. p. 356.</p> <p>12. Evidence.— Opinion.— Speed.— Non-Expert Witness.— Competency. — One who has had some opportunity, even though limited, to observe the speed of an automobile immediately prior to its collision with plaintiff, is competent to express an opinion as to its speed without qualifying as an expert, p. 356.</p> <p>13. Evidence. — Opinion.—Speed.—Non-Expert Witness. — Opportunity for Observing Speed. — Weight of Testimony. — The opportunity had by a non-expert witness to observe the speed of an automobile, as to which he has expressed an opinion, may be considered as affecting the weight of his testimony, p. 357.</p> <p>14. Depositions. — Examination Before Trial. — Corrections.— Where a deposition or examination is presented to a witness or party for his signature, he may have any corrections made therein necessary to make it speak the truth, but such corrections should be made before the notary taking the deposition or examination, either on notice to the opposite party or his attorney, or on voluntary appearance, pp. 357, 35S.</p>

<p>1. Tenancy in Common. — R ature of Possession. — There was unity of possession between tenants in common who acquired their land by descent, although the quantities of their estate or interest may have been unequal, p. 361.</p> <p>2. Deeds. — Covenant of Warranty. — Construction.—Statute.— Where a deed recites that the grantor “conveys and warrants” the premises, the provisions of §3958 Burns 1908, §2927 R. S. 1881, that such a deeol shall be deemed a conveyance in fee simple, with covenant that the grantor is lawfully seized of the premises, that he guarantees quiet possession thereof, that the same are free from all incumbrances and that he will warrant and defend the title to the samé ag'ainst all lawful claims, should, in the construction of such deed, be read into it as if written therein at full length, p. 361.</p> <p>3. Tenancy in Common. — Rights of Tenants. — Tenants in common have all the rights of a tenant in severalty, except that of sole possession, p. 362.</p> <p>4. Tenancy in Common. — Conveyance hy One Tenant in Common. —Covenants.—Where a tenant in common conveys his interest, any covenant in the deed is limited to the interest granted, p. 302.</p> <p>5. Deeds. — Construction.-—Where the wording of a deed is subject to more than one construction, it must be construed so as to effectuate the intention of the contracting parties, p. 362.</p> <p>O. Deeds. — Operation.—Judicial Power. — Where the language employed in a deed is not 'uncertain, the contract as expressed in the deed must be enforced as made, although, in the opinion of the court, it may seem in some respects inequitable, p: 363.</p> <p>7. Deeds. — Conveyance dy Joint Tenants. — Covenmts.—Joint or Several Nature. — Where land was conveyed by warranty deed by tenants in common who had acquired the same by descent, and at the time there was a valid judgment against one of the tenants which was a lien on his interest, the covenants in the deed, in the absence of language limiting them to the separate interests, must be construed as joint and as rendering all the tenants liable for the breach of the covenant arising from the existence of such judgment lien. p. 363.</p>

<p>1. Bastaeds. — Legitimation.—Effect.—Right to Inherit from Father Leaving Legitimate Child. — Where the father of an illegitimate child married its mother and acknowledged the child as his own, such child is deemed legitimate under the provisions of §3001 Burns 1908, §2476 R. S. 1881, and, although the father was thereafter divorced and married another woman by whom he had children who survived him, such child was entitled to inherit from its father and its right was not affected by §3000 Burns 1908, Acts 1901 p. 288, providing that an illegitimate child may inherit from its father who has acknowledged it as his own, except in ease the father left surviving legitimate children or descendants of legitimate children, p. 366.</p> <p>2. Wills. — Nature of Title by Devisa — “Child”.—-“Children”,—■ A title by devise is a title by purchase and not by descent, and the words “child” and “children” ordinarily refer to legitimate children, p. 367.</p> <p>3. Bastaeds. — Legitimation.—Effect.—Rights Under Devise to “Children”. — Tinder the provisions of §3001 Burns 1908, §2476 R. S. 1881, that where a man marries the mother of an illegitimate child, and acknowledges it as his own, such child shall be deemed legitimate, the status of the child is fixed for all purposes, so that such child is entitled to an interest in property devised to its father for life with remainder in fee to his “children”, pp. 307, 368.</p> <p>4. Bastaeds.- — Legitimation.—Manner of Aclonowledgment. — An acknowledgment of a bastard child by the father may be by words, or it may be inferred from acts and conduct, p. 368.</p> <p>5. Wills. — Construction.—Intent of Testator.- — Designation of Devisees.— “Children.” — Illegitimate Child.— Where, on consideration of a will as a whole, in the light of the circumstances preceding and attending its execution, it appears that the testator, in :a devise of land to his son for life with remainder in fee to the son’s children, intended to include the son’s child of illegitimate birth, such intention prevails and must be given effect, p. 370.</p> <p>C. Wills. — Construction.—Intention of Testator. — Extrinsic Evidence. — Admissibility.—In an action by an illegitimate child for partition of real estate, evidence that the testator had recognized plaintiff as a grandson, and had evidenced an intention of giving him a share of his estate, was properly admitted as bearing on the question of whether the testator intended to include plaintiff in a devise of the land to plaintiff’s father for life with remainder in fee to his children, p. 37h</p>

<p>From Pike Circuit Court, John L. Bretz, Judge.</p> <p>Action by Margaret A. Miller against Lee Thurman and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Superior Court of Marion County (76,750); Clarence E. Weir, Judge.</p> <p>Action by Beech Grove Improvement Company against The Title Guaranty and Surety Company and another. From a judgment for defendant, the plaintiff appeals.</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 defendants, the plaintiff appeals.</p>

Prom Pulton Circuit Court; Harry Bernetha, Judge. Action by Albert D. Toner against Walter Wbybrew and others. Prom a judgment for plaintiff against defendant Whybrew and in favor of his co-defendants, the plaintiff appeals.

<p>1. Contracts. — Mutuality. —“Unilateral Contract.”— The term “unilateral contract” is a legal solecism that has come into use as expressing the idea of a contract lacking in mutuality, p. 398.</p> <p>2. Contracts. — Acceptance.—Mutuality.—Where a contract or order is signed by one of the contracting parties, and accepted by the other, and affirmative acts constituting the consideration done by the latter, the party signing cannot assert a want of mutuality in the instrument, p.398.</p> <p>3. Customs and Usages. — Operation.—Construction of Contract. — ■ A custom or usage long continued and uniform, generally known and acquiesced in, may be shown in a proper case, where there is doubt in construing a contract or in ascertaining the manner of discharging some duty. p. 399.</p> <p>4. Customs and Usages. — Customs Relating to Matters of Lato.— Proof of a custom will not be received when in conflict with well settled rules of law. p. 399.</p> <p>5. Customs and Usages. — Operation.—Unambiguous Contract.— Answer. — In an action on a contract for space at an exhibition, where the contract contained a direct and positive promise to pay an amount certain at a time certain without conditions or qualifications, an answer alleging certain customs of the trade, exempting defendants from the obligation to pay for such space, was insufficient, since the parties had a right to contract against custom and the contract was not open to construction or explanation. p. 400.</p>

<p>1. Husband and Wife. — Purchases by Wife. — Liability of Husband. — The liability of the husband at common law on contracts made by the wife for articles suitable to her station in life, rests on the principle of the wife’s agency, p. 406.</p> <p>2. Husband and Wife. — Purchases by Wife. — Liability of Husband. — Agency.—Question of Pact.- — Where goods purchased by a wife are the bare necessities of life, the husband’s liability therefor is absolute, but for other articles it is a question of fact whether, under all the circumstances, there was an authority, express or implied, for the wife to purchase the articles as her husband’s agent, or, if purchased without authority, whether he subsequently ratified the same. p. 406.</p> <p>3. Husband and Wife. — Purchases by Wife. — Agency.—Cohabitation. — Cohabitation furnishes merely a strong presumption of the wife’s authority to make purchases as the agent of her husband, p. 407.</p> <p>4. Husband and Wife. — Purchases by Wife. — Ratification.—The husband’s ratification of an unauthorized purchase made by the wife may be shown by the fact that the wife, in the husband’s presence, wears the articles purchased and he does not object, p. 407.</p> <p>5. Husband and Wife. — Purchases by Wife. — Agency.—Ratifica'¡tion. — Sufficiency of the Evidence. — In an action for the price of jewelry purchased by defendant’s, wife, evidence showing cohabitation at the time of the purchase, that the defendant had promised to purchase jewelry for his wife, and had told her that his credit was good and to get anything she wanted, that when informed by plaintiff of his wife’s purchase defendant said that it was all right, but not to sell her any more, and that the wife wore the articles in defendant’s presence many times without objection, was sufficient to show either previous authority to the wife to make the purchase, or defendant’s subsequent ratification thereof, p. 407.</p> <p>6. Husband and Wife. — Purchases by Wife. — Necessities.—Question of Fact. — In an action to recover from the husband for the price of goods purchased by tie wife, it is a question of fact as to what are the means and station in life of defendant and his wife, and as to whether the goods purchased are suitable to such means and station, so as to be classed as necessities for which the husband is liable, p. 407.</p> <p>7. Husband and Wife. — Action for Price of Goods Purchased by Wife. — Necessities.—Complaint.—Sufficiency.—In an action for the price of jewelry sold to defendant’s wife, a paragraph of complaint alleging that at the time of the purchase the defendant was wealthy and worth $200,000 or more, and that to enable his wife to appear properly in the society of those with whom she associated it was necessary for her to have and purchase a diamond stud, brooch, watch and other jewelry of the value of $246, which she purchased of the plaintiff, was sufficient to charge defendant with liability for the amount of the purchase, since, under modern conditions, such articles are suitable to the station in life of a woman whose husband is of the financial and social standing of defendant, p. 408.</p> <p>8. Husband and Wife. — Action for Price of Goods Purchased by Wife. — Liability of Husband. — Complaint.—Averment as to Agency. — A complaint alleging that defendant’s wife purchased on his credit and in his name articles necessary to, and in keeping with, her means and station in life, was sufficient without an averment that the purchase was made by her as the agent of her husband, as there is a legal presumption of such agency, p. 409.</p> <p>O. Husband and Wife. — Action for Price of Goods Purchased by Wife. — Complaint.—Sufficiency.—A complaint for the price of goods sold to defendant’s wife need not deny that the wife has otherwise been supplied with articles of the character purchased, such fact being a matter of defense, p. 409.</p> <p>10. Husband and Wife. — Action for Price of Goods Purchased by Wife. — Complaint.—Allegation as to Agency. — An allegation, in a complaint for the price of goods sold to defendant’s wife, that she was the purchaser for her husband, is a sufficient averment that she was his authorized agent in making such purchase, p. 409.</p>

<p>Prom White Circuit Court; James P. Wason, Judge.</p> <p>Action by Wilda M. Carson against Milton Joseph Hanawalt. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Pleading. — Answer in Abatement. — Requisites.—An answer in abatement should be pleaded without any repugnancy and should be certain to every intent, so that there is nothing to be supplied by intendment or construction and no supposable special answer left unobviated, p. 420.</p> <p>2. Pleading. — Action Prematurely Brought. — Answer in Abatement. — Sufficiency.—In an action to recover a balance due on a contract for the sale of real estate and on a duebill given by the purchaser, where the complaint averred plaintiff’s full performance of the terms of the contract and duebill, his execution of a deed to the land and its acceptance by the purchaser, and the contract sued on showed that plaintiff was required to furnish, an abstract showing a méchantable title in fee simple to the approval of the purchaser and to execute and deliver a. deed in escrow to be surrendered to the purchaser upon performance on his part, and the duebill recited that it was given for the balance due under the contract and would become payable on or after a designated future date on the furnishing of an abstract of title to the approval of the purchaser, an answer in abatement of the action as having been prematurely brought, which did not aver as a fact that plaintiff did or did not furnish an abstract of title, or, if furnished, that it was defective and that it was not approved, was insufficient both in law and in equity to show that the collection of plaintiff’s claim should be delayed, pp. 421,425.</p> <p>3. Vendor and Purchaser. — Contracts.—Waiver of Modification of Prior Contract. — Where the time of payment as fixed in a contract for the sale of real estate is, by the terms of a duebill given for the unpaid portion of the purchase price, postponed until the delivery by the vendor of an abstract showing a merchantable title to the approval of purchaser’s attorneys such provision may be waived by the purchaser, p.422.</p> <p>4. Vendor and Pubchaser.- — Contracts.—Construction.—A contract for the sale of real estate on specified terms and a duebill given for the unpaid portion of the purchase price, reciting that it is due on or after a certain date on the furnishing of an abstract of title to the approval of the purchaser, must be construed as an entirety, and, if susceptible of two constructions, a fair and equitable construction will be adopted rather than one which would result in injustice, p. 424.</p> <p>5. Contracts. — Construction.—Where a contract is fairly open to two constructions, one favorable to the party in whose interest it was prepared, and one favorable to the other contracting party, the construction favorable to the. latter will be adopted if consistent with the object for which the instrument was prepared, p. 425.</p>

Prom Wells Circuit Court; Charles E. Sturgis, Judge. Action by Davis P. Hamerick, as administrator of tbe estate of William E. McCalley, deceased, against the Chicago and Erie Railroad Company. Prom a judgment for plaintiff, the defendant appeals.

<p>1. Negligence. — Complaint.—Allegations of Several Acts of Negligence. — Proof.—Several charges' of negligence may be embodied in one paragraph of complaint, and proof of one will be sufficient unless the acts of negligence charged are so related and dependent upon each other as to show that the injury complained of resulted from the combined acts. p. 453.</p> <p>2. Carriers. — Railroads.—Passengers.—Assistance in Alighting. — ■ Duty of Carrier. — Where a carrier has provided a safe and suitable place for passengers to alight and gives them a reasonable time to do so, it is not ordinarily required to tender assistance to a x>assenger in the act of alighting, except where by reason of sickness, age, infirmity, or some other cause known to the carrier or its servants, he is in need of assistance, p.453.</p> <p>3. Carriers. — Railroads.—Passengers.—Negligence.—Failure to Assist Passenger in Alighting. — Complaint.—Sufficiency.—In an action by a railroad passenger to recover for injuries in alighting from a train, a complaint, charging several acts of negligence, and charging negligence in the failure of defendant’s servants to assist plaintiff in alighting, was insufficient as to such charge, where there were no allegations showing a duty to render such assistance or that the failure to render such assistance was the cause of the injury, p.454.</p> <p>4. Cabriebs. — Railroads.—Passengers.—Complaint.—Allegation of Negligence. — Sufficiency.—A complaint by a passenger for injuries in alighting from a train, alleging that while plaintiff was in the act of alighting, the defendant’s servants negligently, and without notice caused the train to start suddenly with such speed as violently to throw plaintiff to the platform, sufficiently charged negligence without averring the particular duty which was violated, or the particular acts or omissions which constituted such violation of duty. p. 454.</p> <p>5. Negligence.- — Complaint.—Allegations.—Motion to Malee Specific. — Where a complaint charges that an act was negligently done, and it is desired that it should be more specific as to the duty violated, or the particular acts or omissions which constituted the violation, the defendant’s remedy is by a motion to that effect, p. 454.</p> <p>6. Carriers. — Railroads.—Passengers.—Complaint.—Allegation of Negligence. — Proof.—In support of an allegation that while plaintiff was alighting from a train the servants of defendant railroad company negligently and without notice caused the train to start suddenly with such speed as to throw plaintiff to the station platform, plaintiff is permitted to prove any act or omission, in reference to the starting of the train, which constituted the violation of any duty owing to plaintiff as a passenger, pp. 455,456.</p> <p>7. Carriers. — Railroads.—Passengers Alighting. — Duty of Carrier. —A railroad company owes a passenger the duty to allow a reasonable time to alight before again putting the train in motion, p. 455.</p> <p>S. Carriers.— Railroads.— Passengers Alighting.— Negligence.— Starting Train. — A railroad company will be held guilty of a breach of duty amounting to negligence in starting the train, if its servants caused the train to be started with knowledge that at the time a passenger is in the act of alighting, even though a reasonable time had been allowed for all passengers to alight, p. 455.</p> <p>9. Carriers. — Railroads. —> Passengers Alighting. — Negligence.— Where a railroad company stops its train at the station platform a sufficient length of time to allow passengers a reasonable opportunity to alight, the sudden starting of the train will not constitute negligence even though a passenger is at the time alighting, unless such fact is known to the servants of the company who give the directions to start the train, p. 455.</p> <p>10. Trial. — Instructions.—Application to Case. — The instructions to a jury should state the law correctly in view of the issues and the evidence, p. 456.</p> <p>11. Carriers. — Railroads.—Passengers.—Instructions.—Injuries in Alighting. — Negligence.—In an action by a railroad passenger for injuries caused by negligently starting the train while the passenger was in the act of alighting, an instruction that it was the duty of defendant’s servants, before starting the train, to exercise reasonable care to inform themselves as to whether passengers were in the act of getting off, and, if they were trying to get off, to leave the car standing a sufficient time for all passengers, including the plaintiff, to get off in safety, was erroneous in that it required defendant to ascertain whether a passenger was in the act of alighting before starting the train, regardless of whether a reasonable time had been allowed for passengers to alight, p. 456.</p> <p>12. Carriers — Railroads.—Duty as to Passengers Alighting. — Rule as to Street-Car Passengers Not Applicable. — While the conductor of a street-car must use the highest degree of care to see that no person is in the act of alighting at the time the car is started, the rule does not apply in the operation of a railroad passenger-train. p. 457.</p> <p>13. Carriers. — Railroads.—Passenger Alighting from Train.— Negligence. — Instructions.—Conformity to the Issues. — In an action by a passenger for injuries sustained in. alighting from a train, where the question of negligence in failing to assist the plaintiff in alighting was not in issue, the giving of an instruction on that subject was error, although the instruction given was a correct statement of the law as an abstract proposition, pp. 457, 459.</p> <p>14. Carriers. — Railroads.—Duty as to Passengers Alighting.— Instructions. — Refusal.—In an action against a railroad company by a passenger for injuries caused by alleged negligence in suddenly starting the train while plaintiff was in the act of alighting therefrom, the refusal of instructions tendered by defendant, which correctly defined and limited the duties of the defendant with reference to the stopping of trains to discharge passengers, the length of time trains should remain standing for that purpose, and the care required in again putting the same in motion, was erroneous, p. 459.</p>

<p>Pi’om Hendricks Circuit Court; James L. Clark, Judge.</p> <p>Action by Virgil Patterson against Middle School Township, Hendricks County. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>Prom 'Washington Circuit Court; Thomas B. BuskirJe, Judge.</p> <p>Action by Oliver P. Turley against the Cullen-Friestedt Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Whitley Circuit Court; Luke H. Wrigley, Judge. Action by the State of Indiana on the relation of Retta Souers and others against the American Surety Company of New York. Prom a judgment for plaintiffs, the defendant appeals.

<p>From Boone Circuit Court; Willett A. Parr, Judge.</p> <p>Action by "William L. Powell against Mark D. Jones. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Vanderburgh Circuit Court; Curran A. DeBruler, Judge.</p> <p>Action by the Evansville Suburban & Newburgh Eailway Company against the Evansville & Eastern Electric Eailway and others. From a judgment for defendants, the plaintiff appeals.</p>

Prom Elkhart Superior Court; Vernon W. Van Fleet, Judge. Action by Marvin Campbell and others as Trustees of the First Methodist Church of South Bend against Charles J. Taylor and others. From a judgment for plaintiff, the defendants appeal.

<p>1. Street Railroads. — Negligence.—Proximate Cause. — Complaint. —Sufficiency.—A paragraph of complaint in an action against a street car company to recover, for the value of a horse killed by the falling of one of defendant’s posts, which alleged that defendant, knowing the rotten and decayed condition of the post, and that it was dangerous to travelers carelessly and negligently permitted the same to stand in the highway in such rotten and decayed condition, and that plaintiffs’ horse was killed solely by reason of said negligence of defendant, sufficiently showed the negligence of defendant to be the proximate cause of the injury without alleging that the post fell by reason of such rotten and decayed condition, p. 530.</p> <p>2. Judicial Notice. — Result of Operation of Natural Forces. — The court knows that it is a natural result of the maintenance of a decayed and rotten post for such post to fall. p. 532.</p> <p>3. Neslioence. — Elements.—To constitute actionable negligence, there must be a duty owing by the defendant to the plaintiff, a breach of that duty, and an injury to plaintiff resulting therefrom. p. 532.</p> <p>4. Negligence. — Proximate Cause. — Complaint.—Sufficiency.—Motion to Malee Specific. — A complaint in a negligence case averring that the negligence pleaded caused the injury complained of, without specifically showing a causal connection between the negligence and the injury, may be properly subject to a motion to make more specific, but, in the absence of such motion, is sufficient to withstand a demurrer, p. 532.</p> <p>5. Street Railroads. — Operation.—Negligence.—Complaint.—Sufficiency. — In an action against a street car company, a paragraph of complaint which charged negligence on the part of defendant in so operating its car as to frighten plaintiffs’ horse, causing it to run against a rotten and decayed post, which fell and killed the horse, was a sufficient statement of actionable negligence, p. 533.</p> <p>6. Street Railroads. — Maintenance.—Infury to Animals. — Evidence. — In an action for the value of a horse killed by the falling of a decayed post which the defendant had maintained for the support of its trolley wire, evidence that other posts of the defendant of the same kind, the same size put into position at the same time in the same character of soil and equally exposed to the elements near to the one which fell and killed the horse had previously fallen and that defendant had removed others more than half rotten, was properly admitted as showing defendant’s knowledge of the dangerous character of posts in that immediate locality, p. 533.</p> <p>7. Street Railroads. — Maintenance.—Infury to Animals. — Mvidence. — Sufficiency.—Evidence that plaintiffs’ horses became frightened at a street ear and one of them came in contact with a post maintained by defendant for the support of its trolley wire, that the impact was slight, that the post was rotten and because of its rotten condition fell and killed the horse, and that defendant knew of the rotten condition of posts in that immediate locality, was clearly sufficient to support a verdict for plaintiffs in an action to recover the value of such horse, p. 533.</p> <p>8. Street Railroads. — Maintenance.—Duty.—A street railroad company owes a duty to travelers on a highway to maintain posts which will not fall because of their rotten and decayed condition when there is a slight impact against them from an outside force, p. 534.</p>

<p>From Superior Court of Mariou County (17,406); Clarence E. Weir, Judge.</p> <p>Action by Catherine Lyons against the Metropolitan Life Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Compositions With Creditors. — Pleading.—Ansioer.—Presumption as to Signing Agreement. — In an action on a promissory note, where an answer was based on an alleged written composition agreement with defendant’s creditors, but failed to aver that plaintiff signed such agreement, the presumption is that plaintiff did not do so. p. 552.</p> <p>2. Compositions With Creditors. — Form.—Requisites.—A composition agreement is not required to be in writing, p. 552.</p> <p>3. Compositions With Creditors. — Written Agreement. — Effect as to Creditor Pot Signing. — Where a written composition agreement is not signed by one of the creditors, it may still be binding upon him if he either directly or indirectly agreed with the other creditors that he would settle his claims against their common debtor on the terms and under the conditions thereof, p. 552.</p> <p>4. Compositions With Creditors. — Secret Preferences. — Effect.— Where a creditor, who has not signed a composition agreement, agreed to settle with the debtor upon the terms and conditions thereof, and the creditors signing the agreement are thereby induced to make a settlement on its terms in the belief that he is settling on the same terms, any secret arrangement with the debtor whereby he is to obtain an advantage over the other creditors is such fraud as vitiates the whole agreement; but where he has in no way agreed to abide by the terms of such agreement, he may proceed to settle his claim in his own way and is permitted to retain any advantage he may obtain thereby, p. 553.</p> <p>5. Compositions With Creditors. — Agreement.—Consideration.— The consideration on which a composition agreement rests consists of the mutual promises between the creditors themselves, whereby they each agree for the benefit of all to forego some right which they might enforce against their common debtor, p. 553.</p> <p>O. Compositions Witi-i Creditors. — Parol Agreement. — Pleading.—' Answer. — Counterclaim.—Sufficiency.—In an action on a promissory note, where defendants contended that it was void as being a secret preference over other creditors under a written composition agreement, a paragraph of answer and a counterclaim alleging that plaintiff was requested to grant defendant an extension of time and accept notes for defendant’s indebtedness under and in accordance with such agreement, and that plaintiff refused to do so without having and receiving an advantage over such other creditors, but which failed to allege that plaintiff had signed such agreement, were each insufficient to show that plaintiff had entered into the composition agreement by parol, in the absence of averments that the settlement with any other creditor depended upon or was made on the faith of the settlement with plaintiff or that any of the other creditors were influenced thereby, p. 554.</p>

From Blackford Circuit Court; Charles E. Sturgis, Judge. Action by Hannah E. Harper and another against the Indiana Natural Gas and Oil Company and another. From a judgment for plaintiffs, the defendant Indiana Natural Gas and Oil Company appeals.

Prom Superior Court of Tippecanoe County; Henry H. Vinton, Judge. Action by John W. Milligan and others against Alba G. Arnold, as surveyor of Tippecanoe County, and others. Prom a judgment for defendants, the plaintiffs appeal.

<p>1. • Tblal. — Instructions.—Objection Cured by Other Instructions. —Where, in an action to recover damages for malpractice, the court in one of its instructions called the attention of the jury to the inquiry, whether, under the evidence, defendants were negligent in failing to anticipate and provide against the occurrence which caused the injury, the impropriety, if any, in the giving of such instruction was cured by the further instruction that the court did not intend to indicate any opinion as to the facts in the case or that he had any opinion as to what facts were proved or disproved by the evidence, p. 565.</p> <p>2. Tblal.— Instructions. — Consideration.— The instructions given in a ease are to be considered as a whole, p. 565.</p> <p>3. Appeal. — Joint Objection to Instructions. — Effect.—To make a joint objection to instructions available, it must appear that all the instructions named are incorrect, p. 565.</p> <p>4. Appeal. — Joint Objection to Instructions. — Waiver.—Where the giving of a number of instructions was jointly assigned as cause for a new trial, the failure to point out an objection to one of such instructions on appeal is a waiver of any objection to the instructions included in the assignment, p. 566.</p>

<p>1. Limitation oe Actions. — Complaint.—Amendment Operating to Defeat Statute. — An amendment to a complaint will not be permitted when it will operate to defeat the statute of limitations. p. 575.</p> <p>2. Limitation oe Actions. — Action for Negligence. — Complaint.— Amendment. — Amendment Not Amounting to Independent Charge of Negligence. — Effect.—In an action for injuries to an interurban railway motorman, where the complaint charged that on the day of the injury it was cold, sleeting, raining, lightning, freezing, foggy, dark and cloudy and that ice was frozen on defendant’s telephone wires so that they were useless in directing the movement of defendant’s cars, that defendant’s trainmaster, knowing such fact and knowing that plaintiff was then engaged on a south bound car somewhere between two sidings, manned a car with a crew and himself acting as motorman thereon caused the same to proceed northbound as a wild ear without a schedule, that carelessly and negligently failing to inform the train dispatcher of his act he proceeded with said car to a point where defendant’s double track merged into a single track, where, for the first time, he attempted to notify the dispatcher by telephone that he had ordered out said wild car, and being unable to communicate with the dispatcher because of the useless condition of the wires, he negligently ordered and directed the car to continue on its journey northward along the single track, thereby causing a collision in which plaintiff was injured, that part of the complaint descriptive of the condition of the wires having been inserted by way of amendment after the expiration of the time limited for the commencement of a new action, Was not for that reason subject to a motion to strike out, since such matter did not amount to an independent charge of negligence as a proximate cause of the injury, but simply gave character and degree to the charge of negligence in ordering or taking out the wild car under the existing circumstances, p. 575.</p> <p>3. Pleading. — Complaint.—Amendment.—Bight to Amend. — Where a recovery on the original complaint would operate as a bar to a recovery on the complaint as amended, or if the amendment will not deprive defendant of any defense he had to the original suit, the plaintiff is entitled to amend, p. 577.</p> <p>4. Appeal. — Review.—Lato of the Case. — Although a former decision of a case on appeal is the law of the case where the question presented on a subsequent appeal remains the same, it is not necessarily so as to new or additional questions presented on such subsequent appeal, p. 578.</p> <p>5. Mastee and Servant. — Injury to Servant. — Interurban Railroad. —Negligence of Vice-Principal. — Complaint.—Sufficiency.—In an action by an interurban railway motorman for injuries in a collision with a car negligently sent out without a schedule by defendant’s trainmaster, where the complaint alleged that such trainmaster had jurisdiction over the operative department throughout defendant’s entire system, with authority to employ and discharge men and to decide when and under what conditions a special ear should be sent out, that said trainmaster, knowing the plaintiff was engaged on a southbound car somewhere between two certain sidings, and knowing the impossibility of directing the movements of defendant’s cars owing to the severe weather conditions which had rendered defendant’s telephone system useless for that purpose, and while carelessly and negligently failing to inform defendant’s train dispatcher of his intention, manned a car with a crew and ordered said car to proceed northbound, with himself acting as motorman thereon, that on arriving at a point where defendant’s double track merged into a single track, he attempted to communicate with the train dispatcher by telephone, and, being unable to do so, negligently ordered and directed said car to proceed on the journey northward, thereby causing the collision in which plaintiff was injured, the complaint sufficiently showed the violation of a duty owing by the trainmaster as vice-principal, and that the negligence charged was not that of a co-servant with the plaintiff, p. 578.</p> <p>O. Master and Servant. — Injury to Servant. — Interurban Railroads. — Negligence of Vice-Principal. — Evidence.—In an action by an interurban railroad motorman for injuries received in a collision, where it was alleged that defendant’s trainmaster, without notice to the train dispatcher, ordered out a special car and directed it to proceed northbound, thereby causing the collision in which plaintiff was injured, evidence that the movement of defendant’s cars was directed by means of a telephone system and that on the day of the injury such train master knew that the telephone system was not in working order because of the severe weather conditions, was admissible as bearing on the character of the trainmaster’s conduct and for the purpose of determining whether he was negligent in doing what he did. p. 579.</p> <p>7. Trial. — Reception of Evidence. — Purpose.—Where evidence is competent for any purpose no error can be predicated on its admission, p. 579.</p> <p>8. Master and Servant. — Injury to Servant. — Interurban- Railroads. — Incompetency of Vice-Principal. — Evidence. — Specific Acts. — Where a paragraph of complaint in an action against an interurban railroad company for personal injuries proceeded on the theory of the incompetency of defendant’s trainmaster, evidence of specific acts of his prior incompetency was admissible to show knowledge of his incompetency on the part of the defendant, p. 579.</p> <p>9. Trial. — Reception of Evidence. — Evidence Competent for Certain Purpose. — Limiting Effect. — Instruction.—Failure to Request. —Where evidence is admissible for a certain purpose, and there is a probability that the jury may consider it on the main proposition in the case, the party likely to be prejudiced thereby may tender an instruction in which the application of such evidence is properly restricted and limited, and failing so to do, such party cannot be heard to complain of its prejudicial effect, p. 580.</p> <p>10. Master and Servant. — Injury to Servant. — Interurban Railroad. — Vice-Principal.—Fellow Servant. — Evidence.-—In an action by a motorman against an interurban railroad company for personal injuries, where it was shown that by the rules of defendant extra trains did not appear on the time tables and had no rights except those given them by the train dispatcher, and were not to be run without his orders, and that all interurban trains were required to report to him at certain sidings, and it was further shown that defendant’s general trainmaster, while in full charge of the transportation department, ordered out and manned an extra car with himself acting as motorman thereon, and without notifying the train dispatcher of his intention, ordered and directed the car to proceed northbound to a siding, whence he attempted to notify the train dispatcher by telephone and, being unable to so notify the dispatcher, ordered that said car continue northbound thereby causing a collision in which plaintiff was injured, the evidence was sufficient to sustain a verdict for plaintiff, since the mere fact that such trainmaster acted as motorman did not lose him his identity as a representative of his master so as to render the negligence that of a fellow servant, pp. 580, 582.</p> <p>11. Master and Servant. — Negligence.—Vice-Principal Performing Dirties of Servant. — Where a vice-principal undertakes to perform for the master the duties and service of the servant, he at the time having authority so to do, his negligence is performing such service is the negligence of a coservant, but if he acts in his capacity of vice-principal, and not in that of a co-laborer, the master is liable for his negligent act. p. 581.</p> <p>12. Master and Servant. — Dirty of Master. — The master must not expose his servants, while conducting his business, to perils or hazards which may be provided against by the exercise of due care and proper diligence on the part of the master, p. 583.</p> <p>13. Master and Servant. — ■Acts of Servant Within Scope of Authority. — Liability.—When an employe acts as and for the master, and acts within the scope of his authority, he binds his master the same as if the master had himself acted, and when a master delegates to a servant the performance of a duty which rests on the master alone, he is liable for the manner in which it is performed. p. 5S3.</p> <p>14. Master and Servant. — Vice-Principal.—Fellow Servants.— Dual Capacity. — Negligence—Liability.—An employe of a master may at the same time be a fellow-servant and an agent or representative of the master, and when such dual capacity exists, his negligent performance of that which he is authorized to do as agent or representative of the master renders the master liable in damages for injury resulting therefrom to a servant who is himself without fault, p. 587.</p> <p>15. Master and Servant. — Injury to Servant. — Negligence.—Negligence of Felloio Servant Contributing to Injury. — Liability.— Where the negligent act of the master’s representative is the proximate cause of an injury to a servant, the mere fact that the negligent act of a co-servant contributes to the injury will not defeat the servant’s right to recover, p. 588.</p> <p>16. Master and Servant. — Injury to 'Servant. — Negligence.—Proximate Cause. — Instruction.—An instruction in which the jury was told that if it believed from the evidence that the defendant was guilty of the negligence charged and that the injuries complained of “were the natural consequences of such negligence, and such as might have been foreseen and reasonably anticipated as the result of such negligence, then such negligence should be regarded as the proximate cause of the injury,” sufficiently embodied the factor of probability of the consequence of the negligence without the use of the word “probable,” and was not erroneous, p. 589.</p> <p>17. Master and Servant. — Injury bo Servant. — Interurban Railroads. — Incompetency of Vice-Principal. — Burden of Proof. — Instruction. — In an action for injuries to an interurban railroad motorman, caused by a collision with a car being operated by defendant’s general trainmaster, where the complaint proceeded on the theory of the incompetency of such trainmaster, an instruction that the burden was on defendant to show that plaintiff knew of such trainmaster’s alleged incompetency was erroneous, since the burden was on plaintiff to show that he had no such knowledge, p. 590.</p> <p>18. Appeal. — Review.—Harmless Hrror. — Instruction as to Burden of Proof. — Where, in an action against an interurban railroad company for personal injuries, based on the theory of the incompetency of defendant’s trainmaster, the plaintiff produced sufficient affirmative proof to justify the finding that he had no knowledge of the incompetency charged, and no proof to the contrary was offered, an instruction placing the burden on defendant to prove that plaintiff knew of such incompetency, although erroneous, was harmless, p. 590.</p> <p>19. Master and Servant. — Injury to Servant. — Interurban Railroads. — Operation. — Duty of Master. ■ — • Vice-Principal. — Negligence. — Instructions.—In an action by an interurban railway motorman for injuries received in a collision with a wild car ordered out by defendant’s trainmaster without notice to defendant’s train dispatcher, and which was operated by such train-master himself as motorman, an instruction was not erroneous which told the jury that the ordering of the starting of its trains or cars is an absolute duty of the company and when that duty is entrusted by it to an officer or employe he in discharging the same becomes a vice-principal, for whose negligent act in that respect the company is liable to anyone, employe or otherwise, who without fault is injured thereby, and that the running and operating of its cars is not a duty of the master to the servant, that the operators on such cars are fellow servants and that the master is not liable for injury to its employes by the negligent act of a fellow servant, where the master has used care and diligence in selecting competent servants, p. 591.</p>

<p>1. Appeal. — Assignment of Errors. — Waiver.—An assignment of error is waived by failing to argue it or to cite authorities in its support, p. 594.</p> <p>2. Tbial. — Verdict.—Sufficiency of the Evidence. — If a complaint counts on the breach of a parol warranty, a verdict for plaintiff is not sustained by evidence showing the contract to have been in writing, p. 594.</p> <p>3. Contbacts. — Written.—Parol Evidence. — Admissibility.—Where a contract is reduced to writing, it is the repository of the entire agreement between the parties, and cannot be added to nor varied by parol evidence, p. 596.</p> <p>4. Contbacts. — Definition.—Termination.—A contract is an agreement between two or more persons, based on a sufficient consideration, to do or to refrain from doing some particular thing, and its obligations remain in force on the parties thereto until terminated by performance or in some other manner recognized by law. p. 596.</p> <p>5. Sales. — Contract.—Performance.—Subsequent Reduction of Construct to Writing. — Breach of Warranty. — Admissibility of Parol Evidence. — Where a parol contract of sale or exchange has been fully performed on both sides, a bill of sale thereafter executed containing a recital of the terms of the pre-existing contract as the parties at the time understood and remembered them, although some evidence of the terms of such contract, was not the sole evidence thereof, so that in an action for breach of warranty parol evidence of the terms of the contract was admissible, p. 597.</p> <p>6. Feauds, Statute of. — Contracts.—Memorandum.—Evidence.— Written evidence is the only character of evidence admissible to establish a contract governed by the statute of frauds, and a written memorandum introduced .in evidence is sufficient to establish the terms of such a contract regardless of whether it was made before or after the contract was performed, p. 599.</p> <p>7. Appeal. — Review.—Harmless Error. — Instructions.—The giving of an instruction which is not accurately worded is not cause for reversal where, in view of the evidence and other instructions given, the jury was not misled thereby, p. 599.</p> <p>3. Sales. — Breach of Warranty.- — Counterclaim.—-Fraud.—-Instructions. — In an action for breach of warranty of a horse sold to plaintiff in exchange for a stock of merchandise, where defendant filed a counterclaim based on alleged fraudulent representations of plaintiff relative to such stock of merchandise, an instruction which told the jury that if it found that the merchandise was traded on the basis of an inventory thereof delivered by plaintiff to defendant and on a basis of the prices therein contained and that plaintiff had told defendant’s agent the kind and character of invoice and prices contained therein before the trade was consummated, its verdict should be for the plaintiff, was erroneous in that it was misleading and disregarded the alleged fraudulent representations in reference to the quality and fitness of such merchandise, p. 599.</p> <p>O. Sales. — Exchange of Property. — Fraudulent Representations.— Measure of Damages. — Pleading.—Proof.—Where property is sold by fraudulent representations, the measure of damages recoverable is the difference between the value of the. .goods as they actually were and their value had they been as represented, and in such action the value of the consideration exchanged for the property is immaterial and need not be pleaded or proved, p. 601.</p>

<p>Prom Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Thomas G. Smith against Riley Andrew and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>1. Master and Servant. — Assumption of Risk. — Open and Obvious Defects. — Complaint.—Negativing Assumption of Rislc. — Although an employe assumes the risk from open and obvious defects and dangers, such as would be known by the exercise of ordinary care, where the complaint in an action by an employe to recover impersonal injuries avers that he did not know of such defects or dangers, such averment is sufficient, as a matter of pleading, to repel knowledge either actual or constructive, p. 012.</p> <p>2. Master and Servant. — Injury to Servant. — Duty of Master.— Safe Materials and Appliances. — The duty of the master to provide safe materials and appliances is a continuing one and cannot be delegated to an employe in such a manner as to relieve the master from responsibility, p. 613.</p> <p>3. Master and Servant. — Injury to Servant. — Duty of Master.— Vice-Principal. — Materials and Appliances. — Where it was the duty of a corporation manufacturing cement roof tile to furnish one of its employes, engaged in laying tile on a roof, with tile of sufficient strength to enable him to lay the same in the. usual manner without danger to himself, the placing of the metal reinforcement in the tile while in process of manufacture was the duty of the master and the employe to whom such work was assigned, no matter what his rank or grade might be, would be a principal, and not a fellow servant so as to exempt the master from liability, p. 613.</p> <p>4. Venue. — Change of Venue. — Court Rule. — Motion.—Sufficiency. —Where a rule of court required that application for change of venue must be made at least three days before the case is set for trial, except when the reason for the change is not known within the time specified, a motion and affidavit setting out one of the causes provided by statute and stating that defendant did not know of the existence of said-cause until the day preceding the day of trial and that as soon as defendant was informed thereof the motion and affidavit were made, was sufficient to relieve the applicant of such rule. p. 613.</p> <p>5. Venue. — Change of Venue. — Rule of Court. — Operation and Effect. — A rule of court may regulate the manner and time of making an application for a change of venue, but, the' right to a change being statutory, a rule of court cannot abrogate the same or prevent its exercise, p. 614.</p> <p>6. Venue. — Change of Venue. — Rifle of Cow't. — Cause for Change Discovered After Time Fixed for Malcing Application. — Where a party has knowledge of the facts on which the right to a change of venue is predicated in time to comply with a rule of court regulating the time of applying therefor, a failure to apply within the time fixed is deemed a waiver of the right, but the right is not waived where the facts are unknown to the party within the time so fixed, p. 615.</p> <p>7. Venue. — Change of Venue. — Motion.—Diligence.—An applicant for a change of venue cannot be required to show that he was diligent in his efforts to ascertain within the time fixed by rule of court if conditions existed affecting his right to a fair and impartial trial, p. 615.</p> <p>8. Venue. — Change of Venue. — Statute.—The statute, §422 Burns 1908, §412 R. S. 1881, imperatively requires the court to grant a change of venue in civil actions, where the application is in conformity with the provisions thereof, p. 615.</p> <p>9. Appeal. — Review.—Harmless Error. — Denying Application for Change of Venue. — Where an application for a change of venue was erroneously denied because not filed within the time fixed by a rule of court, and the trial of the cause resulted in a mistrial, and no application for a change of venue was made after such mistrial and before a second trial of the cause, the error was harmless, p. 616.</p> <p>10. Evidence. — Judicial Notice. — Terms of Court. — The court judicially knows that a full term of the Lake Superior Court intervened between the trial of a cause on June 12, 1908, and a second trial thereof on December 2, 1908. p. 616.</p> <p>11. Appeal. — Revieiv. — Verdict. — Answers to Interrogatories. — Where there is no irreconcilable conflict between the answers to interrogatories and the general verdict, the verdict will stand, p. 616.</p>

Prom Jefferson Circuit Court; Hiram Francisco, Judge. Action by the State of Indiana on the relation of Luther Sutton against William Hughes and another. Prom a judgment for plaintiff, the defendants appeal.

<p>Prom Lake Circuit Court; Willis G. McMahan, Judge.</p> <p>Motion by Henry A. Bradford to modify a judgment rendered in an action brought by Lillie S. Baker against said Henry A. Bradford, Matbew McBride and others. Prom a judgment overruling the motion, Henry A. Bradford appeals.</p>

<p>From Superior Court of Vanderburgh County; Alexandér Gilchrist, Judge.</p> <p>Action by Emily S. McGinnis against the Commercial Life Insurance Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Assignment of Errors.- — -Rulings on Motion to Strike Out Parts of Deposition. — Rulings on a motion to strike out parts of a deposition cannot be considered as independent assignments of errors on appeal, but are proper grounds for new trial, p. 637.</p> <p>2. Evidence. — Parol Evidence. — Explanatory of Writing. — Admissibility. — Although parol evidence is not admissible to vary, contradict, add to or take from a written- instrument, it is admissible to give effect to the instrument by applying it to the subject-matter and also to show in what sense any equivocal expressions in the writing were used by the parties, p. 638.</p> <p>3. Appeal. — Ruling on Motion. — Motion Not in Writing. — Error Not Available. — Assignments of errors in overruling a motion for new trial, based on rulings of the trial court on a motion to strike out parts of a deposition, are not available on appeal where such motion to strike out was not in writing, p. 638.</p> <p>4. Depositions. — Motion to Strike Out. — Statute.—Section 662 Burns 1908, Acts 1903 p. 33S, relative to motions to insert new matter or to strike out parts of pleadings, depositions, etc., is mandatory in its requirements that such motions shall be in writing, p. 638.</p> <p>5. Partnership. — Evidence.—Admissions.—In an action where defendants are alleged to be doing business as a copartnership, and each of the defendants has filed an answer in general denial, an admission of either of the alleged partners is competent as against himself, p. 639.</p> <p>O. Witnesses. — Impeachment.—Admissions.—Where a defendant, testifying as a witness in behalf of his codefendant, denied the existence of an alleged partnership between them, his statements or admissions out of court to the contrary were properly admitted as affecting the weight to be given to his testimony, p. 639.</p> <p>7. Evidence. — Admissible for Certain Purpose. — -Limiting Effect.— Where testimony is admissible for certain purposes only, the question of its effect and the purpose for which it should be considered by the jury are matters to be controlled by proper instructions, p. 640.</p> <p>8. Appeal. — Instructions.—Exceptions in Gross. — Motion for Neto Trial. — Where instructions are excepted to in gross, or the ground of the motion for new trial alleging error in giving or refusing instructions is in gross, and one of said instructions is sound, the error so relied upon in giving or refusing the same will not be available on appeal, p. 640.</p> <p>9. Partnership. — Existence of Relation. — Actions.—Estoppel.—Evidence. — The liability of a person not in fact a partner, but who has held himself out as such, or has permitted himself so to be held out as such, rests on the doctrine of estoppel, and the proof in such case must show all the elements sufficient to constitute the estoppel, p. G40.</p> <p>10. Estoppel. — Estoppel In Pais. — Elements.—To constitute an estoppel in pais, there must have been a representation or concealment of material facts made with a knowledge of the facts, and with the intention that the other party should act upon it, and the party to whom the representation was made must have been ignorant of the truth in the matter and must have been induced thereby to act. p. 642.</p> <p>11. Partnership. — Existence of Relation. — Estoppel.—In order to create a liability against one sought to be charged as a partner, on the ground that he has held himself out as a partner, the facts which constitute the holding out must have preceded the extension of credit on which recovery is sought and must have induced the giving of such credit, p. 643.</p> <p>12. Trial. — Liability of One Holding Himself Out as Partner. — Instruction. — Error Not Cured by Correct Instruction. — Where defendant was sought to be charged as a partner on the ground that he had held himself out as such, an erroneous instruction which undertook to tell the jury what created a liability against him and omitted therefrom a necessary element constituting such liability, was not cured by another instruction correctly stating the law. p. 643.</p> <p>13. Trial. — Instructions.—Inconsistent or Misleading. — Where two or more instructions are inconsistent and calculated to mislead the jury, or leave it in doubt as to the law, they are cause for reversal, p. 643.</p> <p>14. Trial. — Instructions.—Partnership.—In an action against one charged as a partner, an instruction that “a partnership is a combination by two or more persons of capital, or labor, or skill, or some or all of these, for the purpose of business for their common benefit,” was erroneous in that it omitted the element of co-ownership of the profits of the business, which is the ultimate and conclusive test of a partnership, p. 644.</p> <p>15. Appeal. — Review.—Incomplete Instruction. — Prejudicial Effect. —Where, in view of the evidence and the issues in the case, appellant may have been prejudiced by an instruction which was incomplete rather than erroneous, it will be cause for reversal, although it might not in every case constitute available error, p. 644.</p>

From Vanderburgh Circuit Court; W. M. Wheeler, Special Judge. Action by Mary V. Bement against W. Henry Walker, as administrator of the estate of George W. Bement, deceased, and others. From a judgment for plaintiff, the defendant Walker appeals.

<p>Prom Marion Circuit Court (75,465); Vinson Carter, Judge.</p> <p>Action by Harmon Epstein against Charles L. Henry, as receiver of the Indianapolis & Cincinnati Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Grant Circuit Court; Henry C. Fox, Special Judge.</p> <p>Action by The Marion Commercial Club against William A. Brown. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Trial. — Findings.—Sufficiency.—Venire De Novo. — In an action to enjoin the emptying of sanitary sewage into an open, ditch, where the court found that the use of the sewer did not cause overflows on the lands of the plaintiffs, that the flow of waters in the ditch was sufficient to dilute the filth and dirt so as to prevent it' from producing an unliealthful condition along its course, and that the evidence failed to show that the property of the plaintiffs was damaged or reduced in value, was sufficiently definite to support a judgment, and a motion for venire de novo was properly overruled, pp. 687, 690.</p> <p>2. Trial. — Findings.—Venire De Novo. — A venire d& novo should not be granted unless the finding is so defective or uncertain on its face that it is incapable of supporting any conclusion of law, or of forming the basis of any judgment on the issue involved, p. 690.</p> <p>3. Drains. — Use.—Right to Use Surface Drain for Sanitary Sewage. — Municipal Corporations. — A city that has been assessed for the construction of a public ditch for the drainage of surface water, has, by virtue of such assessment, the right to drain the surface water from its streets and alleys into and through the same, but does not have the right to use such ditch as an outlet for sanitary sewage from buildings located on private lots not assessed, p. 690.</p> <p>4. Injunction. — Grounds.—Improper Use of Dram by Municipal Corporation. — Where a city was entitled to use a public ditch for the drainage of the surface water from its streets and alleys, its wrongful use thereof as an outlet for sanitary sewage will not be enjoined, where it does not appear that any of the plaintiffs have suffered, or will suffer any serious loss or inconvenience by reason of such use for which there is no adequate remedy at law. p. 691.</p> <p>5. Appeal. — Review.—Findings.—Evidence.—If a finding of the trial court is supported by some evidence, although conflicting, it cannot be disturbed on appeal, p. 692.</p>

<p>1. Mines and Minerals. — Gas and Oil Lease. — Construction.— Forfeiture. — The provision of a gas and oil lease that, in the event no well is completed by a specified date, the grant shall be null and void unless a monthly rental shall be paid for each month thereafter that such completion is delayed, is not a covenant entitling the lessor to recover the rent if no well is completed, but is a condition, which works a forfeiture of the lease in the event of lessee’s failure to either complete a well or pay the rent. pp. 693, 695.</p> <p>2. Mines and Minerals. — Gas and Oil Lease. — Action.—Complaint. —General and Specific Allegations. — In an action to recover rent alleged to be due under a gas and oil lease, a general allegation of the complaint that defendant took possession under the lease is controlled by specific allegations showing that although the contract was executed for the purpose of exploring for oil and gas and of erecting and maintaining buildings and structures for such purposes, defendant had failed to drill any well or wells, and from which it appeared that he had neither erected any structures or buildings nor moved any drilling machinery or implements onto the premises, p. 694.</p>

<p>From Superior Court of Marion County (79,188) ; Pliny W. Bartholomew, Judge.</p> <p>Action by the Minnehaha National Bank against the Atlas Engine Works and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Lawrence Circuit Court; William E. Otarlo, Special Judge.</p> <p>Action by Claude G. Malott and another against the Baltimore and Ohio Southwestern Baiiroad Company. From a judgment for plaintiffs, the defendant appeals.</p>

From Monroe Circuit Court; John C. RJbinson, Judge. Action by William H. Huddleston, as the surviving partner of the partnership of Wilcox & Huddleston, and The Home Insurance Company of New York against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for plaintiffs, the defendant appeals.

<p>From Superior Court of Marion County (77,995) ; James M. Leathers, Judge.</p> <p>Action by the First National Bank of Seymour, Indiana, against the Atlas Engine Works and another. From a judgment for plaintiff, the defendants appeal.</p>