Volume 54 — Indiana Appellate Court Reports

<p>1. Fraud.—Action.—Complaint.—A complaint for damages on account of fraudulent representations as to the solvency of a corporation of which defendant was president, alleging that the corporation was declared a bankrupt in 1907, that defendant was active in conducting the business of the company, that plaintiff sold the company goods and inquired of defendant, as president of the company, as to its financial condition, and was informed that the company was solvent and that its resources greatly exceeded its liabilities, that thereafter plaintiff requested from the company a statement of its financial condition and a statement was made out and signed by defendant representing its resources greatly in excess of its indebtedness and that the company was not a corporation, but a partnership, that defendant made such representations knowing them to be false, and for the purpose of inducing plaintiff to rely thereon and sell goods to the company on credit, that plaintiff was thereby induced to and did extend credit and did not sue to collect accounts then due, that the company owed plaintiff $775, that it had since been adjudged a bankrupt, and that a dividend of 12i% had been paid out of the bankrupt estate and that an additional dividend of 5% would be realized, sufficiently stated a cause of action, p. 3.</p> <p>2. Evidence.—Presumptions.—Continuance of Conditions.—Where the condition of bankruptcy has been established, it will be presumed to continue, in the absence of anything to the contrary. p.4.</p> <p>3. Fraud.—Misrepresenting Financial Condition of Corporation.— Action.—Fffect of Adjudication of Bankruptcy.—The bringing of an action for damages on account of misrepresentations as to tlie financial condition of a corporation, which has since been adjudicated a bankrupt, need not .be delayed until the bankrupt estate is finally settled, nor is the right of action affected by plaintiff’s lack of knowledge as to the amount that will be realized from such estate, p. 4.</p> <p>4. Appeal.—Briefs.—Statement of Evidence.—Under the fifth clause of Rule 22 of the Supreme and Appellate Courts, where appellant has failed to set out in his brief a condensed recital of the evidence in narrative form, as required by such rule, the fact that appellee has failed to make corrections or supply omissions in such' statement as appellant has set out does not require the court to take the same as being accurate and sufficient, p. 4.</p>

<p>1. Appeal.—Questions Reviewable.—Sufficiency of Evidence:— Briefs.—Where appellant’s brief contains a statement of reasons for not setting out the evidence in detail, followed by some general statements as to what the evidence disclosed, without any attempt to set out a condensed recital of the evidence in narrative form as required by Rule 22 of the Supreme and Appellate Courts, no question is presented on the specifications in the motion for new trial that the verdict was contrary to the evidence, not sustained by sufficient evidence, and contrary to law. p.7.</p> <p>2. Appeal.—Questions Reviewable.—Sufficiency of Evidence.—Admissions in Appellant’s Briefs.—Appellant’s admission that the evidence on which he predicates his right to recover was disputed by the evidence of the appellee, precludes a reversal on the ground of the insufficiency of the evidence, p. 8.</p> <p>3. Sales.—Sales by Sample.—Warranty.—Instructions.—An instruction as to the measure of damages for a breach of warranty in the quality of grain' sold by sample, telling the jury that the seller’s liability for the amounts paid by the purchaser to its customers depended on whether the seller was aware of the facts and assented to the settlements, or was notified thereof and failed to object, was not erroneous, since, while a sale by sample is an implied warranty that the bulk is equal to the sample, for a breach of which the seller is liable in damages, it does not necessarily follow that such seller would be liable for any amount that the purchaser might have paid its customers in settlement of their claims, unless with knowledge of the facts such seller assented to the settlements so made. p. 8.</p> <p>'4. Appeal.—Revieto.—Instructions.—Duty to Request.-—Where under the issues and evidence there was a theory on which a party was entitled to recover, other than that on which the court’s instructions were predicated, appellant should have tendered an instruction on such theory, p. 11.</p> <p>5. Appeal.—Review.—Omissions from Briefs.—Presumptions.— Appellant’s failure to set out in his brief either the pleadings or the evidence, authorizes the court on appeal to assume in favor of an instruction complained of that there was evidence within the issues to which it was applicable, p. 11.</p>

Prom Randolph Circuit Court; J ames 8. Engle, Judge. Action by Bertha L. Quinn, administratrix of the estate of Rufus L. Quinn, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.

<p>From Superior Court of Marion County (78,929); John J. Rockford, Special Judge.</p> <p>Action by Joseph M. Miller and another against Asa 0. Ruse and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>.1. Pleading.— Complaint.— Amended Complaint.—-Exhibits.— An amended complaint supersedes the original and the latter goes out of the record, so that in an action on a written contract, a copy of which was made an exhibit to the original complaint, such contract did not become a part of the amended complaint by a recital therein of its contents in general terms and a reference to it as being filed as an exhibit to the original complaint, p. 30.</p> <p>2. Pleading.—Complaint.-—Sufficiency.—Action on Written Contract.-—Where a complaint is founded on a written contract, such contract must be set out in the body of the complaint, or filed as an exhibit and properly identified, otherwise the complaint is insufficient on demurrer, p. 30.</p> <p>3. Appeal.—Questions Revieioable.—Ruling on Demurrer.—Harmless Error.—Where a party stands upon his demurrer and appeals from the ruling holding the pleading sufficient to which the demurrer was directed, the only question presented is the sufficiency of such pleading, and, if insufficient a reversal must follow; but, if following the trial court’s ruling the party pleads to the merits and proceeds to final judgment, such, ruling on the demurrer, even if erroneous, will not work a reversal where it affirmatively appears from the record that the error was harmless. pp. 31, 35.</p> <p>4. Appeal.—Review.—Harmless Error.—Ruling on Demurrer.— Where the record on appeal discloses that the complaint in an action on a written contract, defective in that such contract was neither set out therein nor filed therewith as an exhibit, was held sufficient on demurrer, and that the defendant filed answer and also a cross-complaint based upon the same contract, that issues were formed thereto, and that upon the issues thus formed the plaintiff, without objection by defendant, introduced and read in evidence the contract, the error in overruling the demurrer must be treated as harmless, pp. 32,34.</p> <p>5. Appeal.—Questions Reviewahle.—Ruling on Demurrer.—Merits of Case.—While it is the rule that, in determining the sufficiency of a pleading to withstand a demurrer, the court will look solely to the facts averred therein, where such pleading is found to be insufficient, the court, by virtue of the provisions of §§350, 407, 700 Burns 1908, §§345, 398, 658 R. S. 1881, must then look to the whole record and determine therefrom that the error was not prejudicial, before a reversal can be ordered, p. 33.</p> <p>6. Appeal.—Review.—Determining Effect of Error.—'What May Be Considered.—In determining whether error in a ruling on demurrer was prejudicial to the substantial rights of the complaining party, the court may look to the evidence, the findings, the answers to the interrogatories, and to any other part of the record which can throw any light on the subject, p. 33.</p> <p>7. Contracts.—Action.—Trial.—Instructions¿—In an. action on a contract, if the contract is ambiguous, the court should construe it and inform the jury what meaning is to be placed upon it, and an instruction which permits the jury to determine for itself whether a contract is certain or ambiguous is erroneous, p. 34.</p> <p>8. Appeal.—Review.—Harmless Error.—Instructions.—Error in an instruction which left the construction of a contract to the jury for determination was harmless, where it affirmatively appears from the record that the jury placed the correct construction upon it. p. 35.</p>

<p>1. Vendor and Purchaser.—Option.—Breach.—Survey of Land.— Where an option for the purchase of a lot provided that within ten days the maker was to have the lot surveyed so as to fix definitely the purchase price, which was to be at a certain sum per acre as shown by such survey, the maker’s failure, after acceptance of the option by the purchaser, to take the steps required to enable the purchaser to make payment as provided in the contract, constituted an actionable breach of same, since the purchaser without the survey could not know the amount required to purchase the lot and could neither pay nor tender the same. p. 39.</p> <p>2. Vendor and Purchaser.—Option.-—Breach.—Sufficiency of Survey.—Under an option for the purchase of a lot providing that the maker thereof should make a survey of the lot within ten days for the purpose of ascertaining the purchase price, which was to be at a certain sum per acre, the running of certain lines and the making of certain measurements, from which the numher of acres and the purchase price could be determined, was all the survey that the contract contemplated, p. 40.</p> <p>8. Vendor and Purchaser.—Breach of Option.—Waiver.—Where an option for the purchase of a lot provided that the maker should cause a survey to be made for the purpose of ascertaining the amount of the purchase price, which was to be at a certain sum per acre, and the purchaser thereafter agrees to the amount necessary to be paid, he cannot complain that he was prevented from making payment or tender because no complete survey had been made. p. 41.</p> <p>4. Vendor and Purchaser.—Breach of Option.—Conditions Prece-, dent.—Tender of Purchase Money.—Under an option for the purchase of a lot, providing that if the purchaser shall within ten days elect to purchase such lot, and notify the maker of the option of such election, and pay the purchase price, then the maker shall execute a good and sufficient warranty deed, a payment or tender of the purchase price is a condition precedent to the purchaser’s right to maintain an action for damages for failure to convey, in the absence of a showing that he was prevented from making payment or tender by the act or omission of the other party, p. 41.</p>

<p>From. Lawrence -Circuit Court; James B. Wilson, Judge.</p> <p>Action by James Wall against The Indianapolis Southern Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Madison County; George H. Gifford, Special Judge.</p> <p>Action by Ella Dickinson against Henry Dickinson. From a judgment for plaintiff, the.defendant appeals.</p>

<p>1. Master and Servant.—Injury to Servant.—Compla/int.—Sufficiency of Allegations.—Conclusions.—In a servant’s action for personal injuries, by being caught and thrown by an unguarded pulley attached to a shaft over which plaintiff stepped while attempting to adjust a planer which he was operating, where the averments of the complaint showed his employment by defendant, the character of the service required of him and the particular place where his work was to be done, and then detailed the particular manner in which he had to perform his work, especially in the event the planer became choked, an allegation that, when the planer became choked, it was necessary for plaintiff to step over a shaft containing the offending pulley and into a small space between the shafting and the planer in order to adjust the planer and relieve the choked condition, was not objectionable as the statement of a conclusion, but must be treated as the tender of an issuable fact as to whether there was a safer or better way, or any other way, in which to do that particular service, p. 66.</p> <p>2. Master and Servant.—Injuries to Servant.—Guarding Machinery.—Factory Act.—Construction.—Under §8029 Burns 1908, Acts 1899 p. 231, providing that all vats, fans, saws, planers, cogs, gearing, belting, shafting, set screws, and machinery of every description in factories shall be properly guarded, pulleys attached to shafting are included, and the failure to guard a pulley attached to a shaft over which an employe is obliged to step in the performance of his duty would be _ negligence per se. p. 67.</p> <p>3. Master and Servant.—Injuries to Servant.—Unguarded Mch ehincry.—Oomplmvt.—Sufficiency.—In a servant’s action for personal injuries, a complaint alleging that plaintiff was employed to operate a planer in defendant’s factory, that near to said planer was an unguarded pulley attached to a shaft and which it was entirely practical to guard, but that defendant negligently failed to do so, that in the operation of such planer it often became choked and when such condition arose it was necessary for plaintiff to step over the shaft containing such unguarded pulley and into a small space between the shaft and the planer in order to adjust the planer and relieve the condition, that the planer became choked and in attempting to adjust the planer and remove the choked condition plaintiff stepped over said shaft and that in so doing his clothing was caught in a nick on said pulley, whereby he was thrown and injured, is sufficient to withstand a demurrer, p. 67.</p> <p>4. Master and Servant.—Injuries to Servant.—Defective Machine ery.—Complaint.—Sufficiency.—A complaint, in a servant’s action for personal injuries caused by his clothing being caught in a nick in a rapidly revolving pulley, about which plaintiff was obliged to go while in the performance of his duty, charging that defendant was negligent in using a broken and defective pulley with knowledge of its condition, that plaintiff did not know of the defect, and alleging facts showing that he did not assume the risk of the negligence charged, sufficiently stated a common-law cause of action, p. 67.</p> <p>5. Trial.—General Verdict.■—Answers to Interrogatories.—A general verdict prevails over answers to interrogatories, unless the answers are in irreconcilable conflict therewith, p. 68.</p> <p>6. Master and Servant.—Injuries to Servant.—Verdict.—Answers to Interrogatories.—Contributory Negligence.—In a servant’s action for injuries sustained by his clothing catching in the broken flange of an unguarded pulley about which he was obliged to go in the performance of his work, answers to interrogatories which merely show that plaintiff could have seen the pulley are not in conflict with the general verdict for plaintiff as showing contributory negligence, since they do not show that he could have seen the defect in the rapidly revolving pulley, and it cannot be said that he was guilty of contributory negligence from the mere fact that he knew the location of the unguarded pulley and that he continued to work about same while it was in such unguarded condition, p. 68.</p> <p>7. Master and Servant.—Injuries to Servant.-—Contributory Negligence.—Jury Question.—Where an employe who continued in the performance of his work in operating a planer with knowledge of the unguarded condition of a pulley attached to a shaft, over which he was often required to step in adjusting the planer, was injured by his clothing being caught in such pulley, it was for the jury to determine whether he was at the time in the exercise of ordinary care and caution, p. 68.</p> <p>8. Trial.—Answers to Interrogatories.-—Conflicting Answers.—The jury’s answer to an interrogatory in a personal injury case, that the injury was purely accidental, is nullified by other .answers showing that the injury was due to defendant’s negligence and showing that the jury did not mean that the injury was purely accidental in the sense that it occurred without any one’s fault. p. 68.</p> <p>9. Master and Servant.—Injuries to Servant.—Choice of Ways of Performing World.—Contributory Negligence.—Where there are two ways of performing a service, one of which is safe and the other unsafe, and the servant, with knowledge of the risk, voluntarily chooses the unsafe or dangerous way, he cannot recover for resulting injury, p. 69.</p> <p>10. Master and Servant.—Injuries to Servant.—Contributory Negligence.—Answers to Interrogatories.—In a servant’s action for personal injuries by being caught in an unguarded pulley while he was attempting to remove a board which had choked the planer he was operating, where it was shown that in making the attempt plaintiff stepped over a shaft containing the pulley and into a small space between the shaft and the planer, and there were answers by the jury to interrogatories showing that he did not choose a dangerous way to loosen such board, and that he knew of no safer way, the court cannot say as a matter of law that the way chosen by plaintiff for the removal of such board was a dangerous way. p. 69.</p> <p>11. Trial.— Instructions.— Expert Testimony.— An instruction which in effect leaves to the jury the consideration of all the evidence, expert and nonexpert, and states that after such consideration the jury may conclude what weight, if any, it will give to the opinion of expert witnesses, is proper, p. 69.</p> <p>12. Trial.—Opinion Evidence.—Consideration by Jury.—A jury is not bound to yield its judgment to the opinion of experts, p. 70.</p> <p>13. Appeal. — Review. —Harmless Error. — Instructions. — Even though some of the instructions given are not complete in themselves, the error is cured where other instructions given as a part of the same series render them complete, and the instructions taken as a whole are as favorable as appellant had a right to ask. p. 70.</p>

<p>Prom Boone Circuit Court; Willett II. Parr, Judge.</p> <p>Action by Lewis M. Daugherty against Clyde Eeveal. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Bills and Notes.—Negotiability.—Effect of Words Indicating Mortgage Security.—A note, payable to the order of a named person at a bank in this State, is upon its face negotiable paper governed by the law merchant, and the fact that the words “secured by mortgage” appear thereon will not of itself defeat its negotiability as commercial paper, p. 87.</p> <p>2. Bills and Notes.—Collateral Agreements.—The rule that contemporaneous agreements pertaining to the same subject-matter are to be construed together does not import into a promissory note all the collateral agreements that may be contained in a mortgage given to secure such note. p. 88.</p> <p>3. Bills and Notes.—Rights of Purchaser.—Purchaser with Notice.—Bona Fide Purchaser.—Where the purchaser of a note at the time knew, or should have known, of some equity or defense of the maker of the note, he will be held to have taken the same subject to any defense the maker may have; but if he is an innocent purchaser without notice of any existing equities he will be protected against their enforcement, p. 88.</p> <p>4. Bills and Notes.—Duty of Purchaser.—Diligence.•—One dealing in commercial paper, offered for sale under circumstances that are calculated to excite the suspicion of a reasonably cautious person, is expected to use reasonable diligence, p. 89.</p> <p>5. Bills and Notes.—Bona Fide Purchaser.—Notice.—Where a purchaser of land, by stipulation in the deed, assumed the payment of a mortgage thereon, and then procured from the mortgagee an assignment of the note to him without recourse, and thereafter before maturity of the note transferred the land and note to plaintiff in payment for other land, the plaintiff was not chargeable with notice that the note had been paid, even though the note on its face showed that it was secured by mortgage and had been transferred without recourse, since a bona fide purchaser takes a negotiable instrument free from equities not disclosed on its face and unaffected by the contents of public records not referred to in the instrument itself, p. 89.</p> <p>6. ' Vendor and Purchaser.—Bona Fide Purchaser.—Records.—Notice.—Defenses to Notes.-—A purchaser of land cannot be charged with constructive knowledge of the contents of his instruments of title, except so far as they may bear upon his title to such real estate, and hence the purchaser of a negotiable note before maturity, is not to be charged with knowledge of secret equities or defenses thereto that might have been disclosed by the examination of his instruments of title, p. 90.</p> <p>7. Bills and Notes.—Estoppel.—Bona Fide Purchasers.—Defenses. —Reissuance After Payment Before Maturity.—Where a purchaser of land by stipulation in the deed assumed the payment of a mortgage thereon, then procured from the mortgagee an assignment of the note to him without recourse, and thereafter before maturity of the note transferred the land and note to plaintiff for other land, the payment of the note by such purchaser, while it would be treated as a payment as between him and the maker, did not operate as a discharge that would preclude plaintiff from enforcing a payment by the maker, since the maker must suffer the consequences of his act in putting the note in issue and thereafter requiring the purchaser of his land to assume its payment, thus in effect making such purchaser his agent and enabling the latter to procure the note and before maturity pass it on to an innocent purchaser for value, p. 90.</p>

<p>1. Aepeai,.— Record.— Contents.— Questions Revieioable.— Appeal from Juvenile Court.—Under §1635 Burns 1908, Acts 1907 p. 221, providing for appeals from the juvenile court, where the transcript contained only the affidavit, motion for change of venue, judgment and prayer for appeal, as required by the precipe, no question is presented by a purported special finding of fact's following the clerk’s certificate to the transcript, p. 94.</p> <p>2. Aepeai,.—Disposition of Cause.—Appeal from Juvenile Court.— Under §1635 Burns 1908, Acts 1907 p. 221, providing for appeals from the juvenile court, a judgment of such court may be reversed only when the finding of facts or the evidence to sustain the same is found to be insufficient to warrant the judgment, p. 95.</p>

<p>Prom Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Action by Terry O’Donnell, by Ms next friend, Daniel O’Donnell, against The Holliday & Wyon Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Wells Circuit Court; CJuurles E. Sturgis, Judge.</p> <p>Action by James IT. Watson against Ada E. Curless and another. From a judgment for plaintiff, the defendants appeal.</p>

Prom Superior Court of Vanderburgh. County; Alexander Güchrist, Judge. Action by Philip Partenheimer, administrator of the estate of Raymond Oskins, deceased, against the Southern Railway Company and' another. Prom a judgment for defendants, the plaintiff appeals.

<p>From Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by Henry Herrold against James F. "Wiekersham. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Master and Servant.—Coal Mines.—Injuries to Servant.—Complaint.—In a coal miner’s action for personal injuries, a complaint charging a violation by defendant of §8569 et seq. Burns 1908, Acts 1905 p. 65, requiring the furnishing of sufficient props and an inspection by the mine boss at least each alternate day, is not insufficient even though it is awkwardly drawn and alleges the omission of the statutory duty as the proximate cause of the injury only by way of inferences and conclusions recited in the pleadings, p. 135.</p> <p>2. Master and Servant.—Goal Mines.—Injuries to Servant.—Complaint.-—A complaint for injuries to a coal miner, based on a violation of §8569 et seq. Burns 1908, Acts 1005 p. 65, regulating the operation of coal mines, need not charge that the omission of duty by defendant, or its violation of the iirovisions of the statute, was wilful, p. 136.</p> <p>3. Words and Phrases.-—“Wilful Misconduct.”—There may be intentional misconduct which is in no sense wilful, and the term wilful misconduct includes both intentional and wrongful action, p. 136.</p> <p>4. New Trial.—Motion.—Time for Filing.—Statutes.—Although the act of 1909 (Acts 1909 p. 400, §1), provides that where a verdict is returned during the last ten days of a term of court, the motion for new trial must be filed on the second Monday of the next term, a motion filed on the first Tuesday of the next term may be considered on appeal, p. 136.</p> <p>5. Appeal.—Review.—Verdict.—Evidence.—The court will not weigh the evidence on appeal, and where the evidence is such that fair-minded and reasonable men might draw different conclusions therefrom, a verdict based thereon will not be disturbed on the question of the sufficiency of the evidence, p. 137.</p> <p>6. Master and Servant.-—Coal Mines.—Injuries to Servant.—Contributory negligence.—Jury Question.—In a coal miner’s action for personal injuries, based on the defendant’s failure to furnish props and to make inspections as provided by §8569 et seq. Burns 1908, Acts 1905 p. 65, regulating the operation of coal mines, the court on appeal cannot say as a matter of law that plaintiff was guilty of contributory negligence in continuing to work in a place which he should have known to be dangerous, where the evidence was conflicting, p. 137.</p> <p>7. Appeal.—Questions Reviewable.-—Briefs.—No question is presented on alleged errors in refusing to give instructions where appellant- has failed in his brief to make a concrete statement of the objections to such refusal, either under “points and authorities”, or in the argument, p. 138.</p> <p>8. Master and Servant.—Coal Mines.—Injuries to Servant.—Instructions.-—Contributory negligence.—Degree of Care.—An instruction that plaintiff was not negligent in continuing to work after defendant had failed to furnish props with which to make the mine safe, unless the danger of injury in so continuing his work was so great and immediately threatening that a person of ordinary prudence under the circumstances would not have taken the risk, was sufficiently broad to cover the question of due care required of plaintiff, since the measure of due care is the conduct of a reasonably prudent person, p. 138.</p>

From Washington Circuit Court; Wm. H. Paynter, Special Judge. Petition by Emanuel Sappenfield, administrator of the estate of Catherine M. Phipps, for an order to sell real estate to pay debts. From a judgment for petitioner, Robert A. Phipps, surviving husband of the intestate, appeals.

<p>1. Appeal.—Revieic.—Evidence.—Weight and Sufficiency.—Where, in a bastardy proceeding, there was evidence which, if believed, was sufficient to sustain a verdict against defendant, the verdict cannot be disturbed on appeal on the theory that the evidence supporting the same is so inconsistent and contradictory as to be unworthy of belief, p. 145.</p> <p>2. New Tkial.—Insufficient Evidence.—Duty of Trial Court.— Where the evidence' tending to support a judgment is so inconsistent, contradictory and unbelievable that it does not fairly and reasonably support the lordict, and substantial justice has not been done between the parties, the trial court should grant a new trial, p. 145.</p> <p>3. Appeal.— Review.— Evidence.— Sufficiency.— Presumptions in Favor of Trial Court.—On appeal, where the evidence supporting the verdict is inconsistent or contradictory, it will be presumed that the trial court did its duty and that in passing on the motion for new trial it rightly decided that the evidence was sufficient to support the verdict, p. 145.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Charles B. Sellers against Belle Bump. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Taxation.—Recovery of Taxes.—Action Against Township by Newly-Incorporated Toion.—Complaint.—Mqnity.—In an action by a newly-incorporated town against the township to recover taxes collected by the latter on taxable property and polls within such town for the year in which the town was organized, where the complaint shows that the town separated from the township in a way known to the law, and that certain sums of money assessed against property within its jurisdiction had already been paid into defendant’s treasury, the maxim that equity aids the vigilant and not the slothful will not be applied to defeat the action, even though such complaint discloses that one year and eight months had elapsed between the time of the incorporation of the town and the filing of the complaint, since equity can never be invoked to promote an injustice, p. 154.</p> <p>2. Equity.—Laches.-—-Limitations.—While courts of equity are not bound by the statute of limitations as a rule, they will, in applying the equitable doctrine of laches, look to and examine the statute of limitations and its general effect upon the parties to the action, as well as the cause of action itself, p. 155.</p> <p>3. Taxation.-—Recovery of Waxes.—Right of Newly-Incorporated Town.—A newly-incorporated town may, under ordinary conditions, recover from. the township of which it was formerly a part the money that was paid to the township for the year in which the town was organized as taxes upon the property and polls within the territory embraced by such town. p. 156.</p> <p>4. Taxation.—Recovery of Taxes.—Presumption as to Distribution. —Action by Newly-Incorporated Town.—In an action by a newly-incorporated town to recover its portion of taxes paid to the township of which it was formerly a part for the year in which such town was incorporated, a presumption that the township officers had performed their duty and had distributed the taxes according to law was overcome by a direct allegation in the complaint stating the manner of distribution and that no part was distributed to the town. p. 156.</p> <p>5. Appeal.-—Revieno.—Harmless Error.—Error which is harmless is not available to work a reversal, p. 156.</p>

<p>1. Evidence.—Judicial Notice.—Records.—The court will take judicial notice of its own record, p. 161.</p> <p>2. Taxation.—Tax Sales.—Redemption.—Infants.—By the express terms of §10367 Burns 1908, Acts 1891 p. 199, §193, the right of an infant to redeem lands from a tax sale at any time within two years after reaching majority is absolute, and such right cannot be divested by any judgment or decree, so that a sheriff’s deed executed pursuant to sale on decree foreclosing a lien for taxes against the lands of an infant is no bar to such infant’s right to redeem within two years after reaching full age. p. 161.</p> <p>3. Taxation.—Taw Sales. — Foreclosure of Lien. — Infants. — Redemption.—A judgment foreclosing the lien for taxes against the lands of an infant, does not affect such infant’s right of redemption in any way, but merely changes the manner of exercising the right, p. 163.</p> <p>4. Judgment.—Default.—Setting Aside.—Under §405 Burns 1908, §396 R. S. 1881, proceedings may be instituted either by complaint or motion for relief from a judgment, and where it is made to appear that the judgment was taken against a party through mistake, inadvertence, surprise or excusable neglect, the court is bound to grant the relief, if the petition or motion shows a meritorious defense and the facts showing excusable neglect are clearly set forth in plain and concise language, p. 163.</p> <p>5. Taxation.—Default Judgment.—Application for Relief.—Sufficiency.—An application for relief from a judgment by default foreclosing a lien for taxes against petitioner’s land, showing that at the time petitioner was served with summons she was an infant under fifteen years of age, that she was unaware of the meaning and effect of a summons, and that it was not explained to her, that she was also ignorant of her rights in the property affected by the foreclosure suit, that on return day of such summons petitioner was defaulted, that thereupon a guardian ad litem was appointed and answered in general denial, and that judgment was rendered foreclosing the lien and barring petitioner’s equity of redemption, shows not only a good, but an absolute defense, as well as excusable neglect, entitling petitioner to relief under §405 Burns 1908, §396 R. S. 1881. p. 164.</p> <p>6. Limitation of Actions.—Statutes.—Construction.—While §405 Burns 1908, §396 R. S. 1881, providing that the right to relief from judgments granted therein must be sought on complaint or motion filed within two years, is a statute of limitations, it must be read with all other statutes of limitations, and since all statutes on the same subject are in pari materia and to be construed together, the right of an infant to relief thereunder may be exercised at any time within two years after reaching majority, by virtue of §298 Burns 1908, §296 R. S. 1881, providing that “any person being under legal disabilities when the cause of action accrues, may bring his action within two years after the disability is removed.” p. 164.</p>

<p>Action by Livingston D. Foudray against John S. Foudray and others. From a judgment entered, the plaintiff and others appeal.</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by the Union Trust Company against Marion I. Adams. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal.—Assignment of Errors.—Waiver.—An assignment of error not discussed or referred to in appellant’s brief under “points and authorities,” or in the argument, is waived, p. 178.</p> <p>2. Appeal.—■Review.—Instructions.-—Consideration as a Whole.— In an action for damages to plaintiff’s land by fire caused by defendant’s negligence, an instruction on the measure of damages, that if the finding is for plaintiff the verdict should be for the difference in the market value of the land before and after the fire, is not open to the objection that it authorized the assessment of any sum as damages regardless of whether damages were proven, especially when considered with other instructions informing the jury that to entitle plaintiff to recover he must prove the material allegations of the complaint by a fair preponderance of the evidence, p. 178.</p> <p>3. Appeal.—Reviejo.—Harmless Error.—Instructions.—Assumption of Fact.—Where the evidence was such that the plaintiff’s freedom from contributory negligence was a necessary inference therefrom, error, if any, on the part of the trial court, in stating at the close of the instructions that it had not instructed on contributory negligence because doubtful whether there was any question of contributory negligence in the case, was harmless* pp. 179,180.</p> <p>4. Railroads.— Damage from Fire.— Contributory Negligence.— Instructions.—In an action against a railroad company for damages caused by fire, an instruction in which the court stated that it had not instructed on contributory negligence because doubtful whether there was any question of contributory negligence in the case, cannot be considered as being in conflict with the rule that in such cases the plaintiff has the burden of pleading and proving his freedom from contributory negligence, especially when considered with other instructions stating that plaintiff must prove the material allegations of the complaint, which contained the allegation that the injuries were caused without any fault or negligence on plaintiff’s part. p. 179.</p> <p>5. Trial.—Instructions.—Assumption of Fact.—Where the evidence is not disputed and only one inference is deducible therefrom, the court may assume the existence of such fact in its instructions. p. 181.</p> <p>0. Railroads.— Damage from Fire.-—Contributory Negligence.— Mitigation of Damages.—Any omission of effort by plaintiff to put out fire, after he discovered it on his land, is a matter of defense in mitigation of the damages, and does not affect the question of whether he was guilty of negligence contributing to the cause of the fire or its escape onto his land. p. 181.</p> <p>7. Appeal.—Review.—Instructions.—Failure to Request.—Where the court at the close of the instructions expressed doubt as to whether there was any question of contributory negligence in the ease, and expressed a willingness to instruct on that subject if such instruction were requested, appellant’s failure to request such instruction must be deemed as tending to show acquiescence in the view expressed by the court, p. 181.</p>

Prom Kosciusko Circuit Court; Harry Bernetha, Special Judge. Action by the State of Indiana, on the relation of the Board of Commissioners of the County of Kosciusko, against Eff Sharp and others. Prom a judgment for relator, the defendants appeal.

From Carroll Circuit Court; James P. Wason, Judge. Action by Edwin Baum and(others against John C. O’Con-nor and another. From a judgment for plaintiffs, the defendants appeal.

<p>1. Carriers.—Passengers.—Tickets.—Validation.—Where a round-trip ticket entitling the purchaser to passage over the line of a second carrier, provided that it was not good for return passage unless the holder identified himself to the satisfaction of the authorized agent of the terminal line at destination of ticket and procured the signature of such, agent validating the ticket, such agent was for the purpose of validation the agent of the initial carrier, although the ticket further provided that the initial carrier sold the ticket as agent and was not responsible beyond its own line, and such initial carrier was liable for the expulsion of the plaintiff from its train on the return trip, resulting from the mistake or want of care on the part of such validating agent' in not properly validating the ticket, p. 206.</p> <p>2. Carriers.—Passengers. — Expulsion.-—Damages.—A passenger entitled to ride as such, but the validity of whose ticket is disputed by the conductor, is not bound to pay his fare to such conductor to avoid expulsion, and, if wrongfully e-xpelled, his recovery is not limited to reimbursement for the cash outlay occasioned thereby, but compensation may also be awarded for the humiliation and degradation imposed upon him. p. 208.</p> <p>3. Carriers.'—Passengers.—Expulsion.—Damages.—Review. — The question of the amount of damages that a passenger is entitled to for wrongful expulsion from a train must of necessity be left to the court or jury trying the cause, and the amount fixed by the verdict of a jury will not be deemed excessive unless it appears that such jury acted from prejudice, xiartiality or corruption. p. 209.</p> <p>4. Carriers.—Passengers.—Expulsion.—Damages.— Excessiveness. —In a passenger’s action for wrongful expulsion from a train, where it was shown that the conductor refused to receive his ticket and wrongfully compelled him and his wife and child to leave the train, and that he had little money, and was put off at a place where he had no friends, the jury had a right to infer that he suffered feelings of shame and humiliation, so that it cannot be said that an award of $500 was excessive, p. 209.</p>

Prom Hancock Circuit Court; Robert L. Mason, Judge. Action by Emma Port against Stephen G. White, executor with the will annexed of Stephen G. Scott, deceased, and others. Prom a judgment for defendants, the plaintiff appeals.

<p>1. Easements.—Wav of Necessity.—Presumption of Agreement.— Before there can be a way established by the rule of necessity, the facts must be such that the law will presume therefrom that the parties to a conveyance had an agreement that the grantee should have the right of access to the land conveyed him over other lands of the grantor not so conveyed, p. 225.</p> <p>2. Easements.—Express Agreement.—Presumptions.—Where there is a valid express agreement for a way fairly made, the law will not indulge in presumptions, and the rights of the parties will be upheld according to the terms of such agreement, p. 226.</p> <p>3. Appeal.—Revieio.-—Harmless Error.—Conclusion of Law.—Even though a conclusion of law is not supported by the finding of facts, the error is harmless, where another conclusion is stated which is supported by the facts, and under which the relief granted is identical with that given by the erroneous conclusion, pp. 226,227.</p> <p>4. Easements.—Appurtenant or in Gross.—Way.—Findings.—A finding that a roadway over the grantor’s land is appurtenant to the land conveyed excludes the idea that the way was personal or in gross, p. 226.</p> <p>5. Easements.—Revocation.—■Executed Parol License.—While a mere naked license to use the land of another is revocable at the pleasure of the licensor, where a parol license has been executed and acted upon, and expense incurred in perfecting an easement over the land of another in reliance upon such license, it cannot thereafter be revoked without placing the licensee in statu quo. p. 226.</p> <p>6. Easements.—Action.—Complaint.—Allegation of Agreement.— In an action to enjoin an interference with an easement of way over defendant’s land, a complaint alleging generally that at the time of a conveyance to plaintiff the parties agreed that plaintiff should have to use a certain roadway over the lands of the grantor, is sufficient to withstand a demurrer and to permit proof of the right to use such road, in the absence of a motion to make it more specific with reference to the allegation of such agreement. p. 227.</p> <p>7. Appeau.—Revieio.—Harmless Error.—Ruling on Demurrer.— The ruling on the demurrer to a paragraph of complaint, if erroneous, is harmless, where it appears that the conclusions and judgment are not based on such paragraph, p.228.</p> <p>8. Appeal.'—Review.—Harmless Error.—Complaint.—Desertion of Easement.—In an action to enjoin interference with an easement of way, a paragraph, of complaint and the court’s finding of facts correctly describing the easement as on the “northwest” line of a certain tract of land, were sufficient to sustain the judgment granting relief, so that error in the other paragraphs as to the location of such easement was harmless, p. 228.</p> <p>9. Appeal.—Amendments Deemed Made.—Defects in Pleadings.— Mere formal defects in a pleading that might have been corrected at the trial, if the error had been suggested, will on appeal be deemed to have been corrected by proper amendment, p. 228.</p>

<p>Prom Washington Circuit Court; Thomas B. Bushirh, Judge.</p> <p>Action by Washington Township of Washington County against Thomas Ratts. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal.— Briefs.— Failure to Point Out Error.—■ Affirmance. —The court will not search the record to reverse, and where the only error assigned was the ruling on the motion for new trial, and appellant’s brief contains neither the motion, its substance, nor any reference to the record indicating where such motion may be found, the judgment will be affirmed, p. 233.</p>

<p>1. Contracts.—Contract in Restraint of Competition.—Validity. —Ptiblic Sales.-—Any agreement for the purpose of lessening competition at a public sale of property, for the purpose of procuring the same below its value, is void, although agreements whereby several persons combine to purchase property for their joint benefit, or to protect their existing interests, and authorizing one to bid for all, may be valid, p. 237.</p> <p>2. Contracts.—Contract i/n Restraint of Competition.—Validity. —Private Sales.—Contracts which have for their object the prevention of competition between persons desirous of purchasing certain property from a private owner are valid, p.238.</p> <p>3. Contracts.—Policy of Law.—Contract in Restraint of Competition.—Judicial Sales.—It is the policy of the law to preserve competition at private judicial sales, as well as at public sales, so that a contract whereby a bidder at a private judicial sale induced another bidder to refrain from bidding, and was enabled to purchase the property at less than he otherwise would have been compelled to pay, is void and unenforceable, notwithstanding the price paid for such property was more than the appraised value thereof, p. 238.</p>

<p>1. Appeal.—Questions Reviewable.—Ruling on Demurrer.—Briefs. —No question is presented on tbe ruling on the demurrer to each of several paragraphs of answer, where appellant’s brief contains neither a copy of such pleadings, nor their substance, and does not state the ground of the demurrer, p. 241.</p> <p>2. Appeal.—Questions Reviewahle.—Ruling on Motion for New Trial.—Brief8.—No question is presented on the ruling on a motion for new trial, where neither the motion nor the grounds thereof are set out in appellant’s brief, p. 241.</p> <p>3. Appeal.—Briefs.—Sufficiency.—Dismissal.—Under Rule 22 of the Supreme and Appellate Courts, briefs must be so prepared that all questions presented by the assignment of errors and relied on for reversal can be determined from the briefs without looking to the record, and where there is a total failure by appellant to comply with such rule, a dismissal of the appeal is authorized. p. 242.</p>

<p>1. Appeal.—Questions Reviewable.—Ruling on Demurrer.-—Briefs. —No question is presented by the ruling on a demurrer to appellant’s claim, where neither the claim, nor ■ the demurrer thereto, nor the substance of either, is set out in appellant’s brief, p. 243.</p>

Prom Henry Cirenit Court; Eugene H. Bundy, Special Judge. Action by Mahlon D. Harvey and another against the City of Newcastle and another. Prom a judgment for plaintiffs, the defendant city appeals.

<p>Prom St. Joseph. Circuit Court; W. E. Funk, Judge.</p> <p>Action by Ida Dibka, administratrix of tbe estate of August Dibka, deceased, against the Michigan City Gas and Electric Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Municipal Corporations.—Public Improvements.—Foreclosure of Assessment Liens.—Defenses.—Under §8714 Burns 1908, Acts 1905 p. 219, §109, the question of special benefits to property by reason of a street improvement is deemed conclusively determined by and in the proceedings before the board of public works, although it is provided that in a foreclosure suit thereunder a property owner may contest the amount of his assessments. p. 260.</p> <p>2. Municipal Corporations.—Public Improvements.—Foreclosure of Assessment Liens.—Defenses.—Where a contractor sues to foreclose a street improvement assessment lien, a right of action in favor of defendant against the city for changing the grade of the street without taking the proper preliminary steps, and without compensation for the damages occasioned, will operate neither to bar nor abate such suit. p. 261.</p> <p>3. Pleadings.—Answer in Abatement.—Demurrer.—Judgment.— Where the demurrer to an answer in abatement was sustained and defendant was ordered to plead over, and it was further “ordered, adjudged and decreed by the court that the plaintiffs recover of and from the defendant their costs and charges laid out and expended up to this time and taxed at $—,” such ruling and judgment substantially complies with §371 Burns 1908, §365 R. S. 1881, prescribing the judgment where the issue on a plea in abatement is found against defendant, and such judgment is in no way an adjudication on the merits of the action, p. 261. ■</p> <p>4. Municipal Cobpobations.-—Public Improvements.—Foreclosure of Assessment Liens.—Attorney's Fees.—Statutes.—The provision of §8714 Burns 1908, Acts 1905 p. 219, §109, allowing the recovery of a reasonable attorney’s fee in a contractor’s action thereunder for the foreclosure of a street improvement assess-” ment lien, must be construed with, and the amount of attorney’s fee recoverable thereunder is limited by, §8721 Burns 1908, Acts 1905 p. 219, §116, which provides that in actions by the holders of bonds given on account of such public improvement, where the amount delinquent exceeds fifty dollars, the attorney’s fee recoverable shall not exceed ten per centum on the first one hundred dollars and five per centum on the excess thereof, p. 262.</p>

<p>Prom Kosciusko Circuit Court; L. H. Wright, Special Judge.</p> <p>Action by Clementine Nichols Keys and others against "William P. McDowell and others. Prom a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Executoks and Administeatoes.—Action for Wrongful Death. —Damages.—Distribution.—Creditors.—The right of action to recover for a wrongful death is not a part of the assets of the decedent’s estate, and in such an action by the administrator the latter does not represent creditors of the estate, but acts as trustee for the purpose of collecting and disbursing the damages that may be recovered to the widow and children or next of kin, for whose exclusive benefit the same inures, p. 276.</p> <p>2. Principal and Agent.—Power of Attorney.—What Constitutes. —An instrument signed by the widow of a decedent stating, “I give my permission to the administrator of my husbani^ * * * that from the amount which he received * * * he shall pay * * * for funeral and other expenses,” though designated as a power of attorney in another part of the instrument, was not a power of attorney, but merely the written consent of the widow to make the payments therein specified out of the designated funds, p. 277.</p> <p>3. Executors and Administrators.—Action for Wrongful Death. —Damages. — Distribution. — Power of Widow. — An administrator is bound to distribute the damages recovered in an action for the wrongful death of his intestate in the manner provided by §3018 Burns 1008, Acts 1899 p. 131, for the distribution of personal property, and the intestate’s widow can neither pay, nor authorize the administrator to pay, a claim against the estate out of the entire fund thus recovered, p. 277.</p>

<p>1. Vendor and Purchaser.—•Executory Contracts.—Tender of Performance.■—Sufficiency.—A plea of tender of performance under an executory contract for the sale of land must show that the covenants offered to be performed were coextensive with those contained in the obligation, p.282.</p> <p>2. Vendor and Purchaser.—Executory Contracts.—Tender of Performance.—Sufficiency.—Where the obligation to convey and warrant title is joint, a performance of such obligation is not met by a tender of a separate conveyance and warranty of such title by each, or only part, of the joint obligors, p. 282.</p> <p>3. Vendor and Purchaser.—Executory Contracts.—Suit to Rescind.—Complaint.—Sufficiency.—A complaint to rescind an ex-ecutory contract for the sale of real estate, alleging that plaintiffs and a named decedent were the owners of certain real estate in undivided interests which they contracted to sell to defendant through his agent, that decedent died intestate leaving as his only heirs a widow, who is a coplaintiff, and an infant child, who, because of such infancy, is made a defendant, that plaintiffs and such coplaintiff, being the owners of interests aggregating an undivided eleven-twelfths of the land, tendered to defendant’s agent a good abstract of title and deed, and offered to accept their proportionate part of the purchase price, that defendant’s agent refused such offer, that plaintiffs offered to return the earnest money paid by defendant and demanded a rescission, that defendant and her agents concealed themselves and failed to appear at the time and place of performance fixed by the contract, which was prior to the death of decedent, when plaintiffs and decedent were ready to perform, and that defendant has refused to perform the contract on her part, is sufficient to withstand a demurrer, p. 282.</p>

<p>1. Specific Performance.—Defenses.—Adequacy of Legal Remedy.—Specific performance of a railroad company’s agreement in a right of way deed to construct and maintain a suitable overhead crossing over its track with proper approaches will not be denied on the ground that under §5711 Burns 1908, Acts 1903 p. 426, §5, plaintiff has a right to enter upon defendant’s right of way and construct a grade crossing, where it appears that plaintiff is injured and that the remedy suggested would not afford as complete and adequate relief as that afforded by equity, p. 289.</p> <p>2. Equity.—Defenses.—Adequacy of Legal Remedy. — Equitable relief will not be denied on the ground that a legal remedy exists, unless the remedy at law is as. practical and efficient as that afforded in equity, p.289.</p> <p>3. Specific Performance.—Contracts Enforceable.—Building Contracts.—While as a rule, equity will compel specific performance of a contract only when it can be performed by a single act or transaction, and will not generally decree the performance of contracts for the construction of buildings and other works of a complicated character, requiring superintendence of the work covering a considerable period, where defendant has acquired land from plaintiff and as a part of the consideration has agreed to erect a structure thereon for plaintiff’s benefit, and defendant continues to retain and enjoy the land, the rule is not applicable, since in the absence of a statute there is no adequate remedy, so that where a railroad company after acquiring a right of way and laying its track thereon, failed to comply with its agreement in the right of way deed to construct an overhead crossing over its track for plaintiff’s benefit, such agreement will be specifically enforced, p. 290.</p> <p>4. Specific Performance. — Contracts Enforceable. —■ Indefinite Contracts.—The contract of a railroad company, made as a part consideration for its right of way, to erect for grantor’s benefit an overhead crossing over its tracks at the intersection of such track with a certain lane on grantor’s farm, and Specifying that same was to be 14 feet wide over grantee’s tracks with proper approaches on either side and to be not less than 22 feet in the clear from the rail grade, was sufficiently definite and certain to admit of specific enforcement, p. 292.</p> <p>5. Specific Performance.—Contracts Enforceable.—Scope of Rule. ■ —The rule that equity will not attempt to specifically enforce a contract which by its terms stipulates for a succession of acts the performance of which will be continuous and require protracted supervision, though general, is not of universal application, and admits of exceptions in proper cases, p. 295.</p> <p>6. Specific Performance.— Complaint. ■—Sufficiency. — Performance of Details of Contract.—A complaint for the specific performance of a contract for the erection of an overhead railroad crossing, which alleges a contract to erect a crossing of certain dimensions “suitable and proper” for a farm crossing, was not insufficient because it did not describe in detail the kind and character of the overhead structure demanded and allege that the structure demanded was reasonably suitable and proper for the purpose intended, since it is not necessary that every detail of construction should be put in issue and determined by the court before entering a decree for specific performance, but they may be determined and settled by supplemental orders, p.296.</p> <p>7. Specific! Performance.—Answer—Unconscionable Contracts.—■ In an action for specific performance of the contract of a railroad company to erect an overhead crossing over its right of way through plaintiff’s land, an answer alleging that plaintiff, knowing defendant’s necessities at the time of the sale of her land for a right of way, forced a hard and unconscionable bargain whereby, in addition to exacting the agreement which she sought to have performed, she obtained more than the reasonable value of the land sold, but which failed to allege how much the remainder of plaintiff’s land was injured by the location of the railroad across it, or what would be a fair compensation for such injury, was insufficient to show that the contract was unfair or inequitable, p. 297. .</p> <p>8. Specific Performance.—Defenses.—Unconscionable Contract.— Where a railroad company took possession of a right of way, purchased under a deed, in which it agreed to erect an overhead crossing for grantor’s benefit, and constructed its railroad and continued in the possession and enjoyment of the premises, it is not in position to claim that the agreement was so unfair and unconscionable as to prevent its specific performance in behalf of the grantor, p. 298.</p> <p>9. Specific Performance.—Defenses.—Impossibility.-—-Where the plaintiff sought the specific performance of a contract by a railroad company to construct an overhead crossing over its right of way through plaintiff’s land, defendant cannot be relieved of performance on the ground that it is impossible to erect such crossing without building the approaches upon the land of plaintiff, since plaintiff by sueing thereby gave her implied permission to enter upon and use so much of her land as is necessary to construct such approaches, p. 299.</p> <p>10. Specific Performance.—Inequitable Contracts.-—-Complaint.— Durden of Proof.—While an unfair or inequitable contract will not be specifically enforced, and a complaint for the specific performance of such a contract is demurrable where it appears upon its face that it is unjust, or inequitable, or subject to other equitable defense, the burden rests upon the defendant, in the absence of such showing on the face of the complaint, to allege and prove that the contract is unjust or inequitable, p. 300.</p>

Prom Floyd Circuit Court; William G. Utz, Judge. Action by Maggie Minor, administratrix of tbe estate of Wesley Minor, deceased, against the Standard Cement Company. Prom a judgment for plaintiff, the defendant appeals.

Prom Marion Circuit Court (17,749); Charles Remster, Judge. Action by Albert Asehe, administrator of the estate of Frederick Dittmer, deceased, against Judson Harmon, receiver for the Cincinnati, Hamilton and Dayton Railway Company. From a judgment for defendant, the plaintiff appeals.

<p>From Brown Circuit Court; W. E. Deupree, Judge.</p> <p>Action by George M. Roberts against tbe Board of Commissioners of the County of Brown. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Superior Court of Marion County (81,814) ; Charles J. Orbison, Judge.</p> <p>Action by Daniel S. Sellers against The Prudential Life Insurance Company of America. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Starke Circuit Court; George Bur son, Special Judge.</p> <p>Action by Patrick Welch against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Randolph Circuit Court; James 8. Engle, Judge.</p> <p>Action by James F. Mendenhall against The Joseph E. Lay Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by Robert Henson, by bis next friend, John P. Henson, against Tbe Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>1. Judgment.—Lien.—Equities.-—The lien of a judgment is subject to all preexisting equities in favor of third persons in the land sought to be subjected to the satisfaction thereof, and extends only to the actual beneficial interests of the judgment debtor, p. 360.</p> <p>2. Judgment.—Lien.—Equities.—Although the description in a ' deed by a debtor to his mother was indefinite and uncertain, such deed, together with the payment of the purchase price by her, was sufficient to divest him of all his beneficial interest in the land as against a subsequent judgment creditor, and her equities under such deed were superior to such judgment creditor, p. 361.</p>

<p>1. Saies.—Implied Warranty.—Fitness for Purpose Intended.— When an article of merchandise is supplied by the manufacturer to a purchaser thereof for a definite use or purpose, and that particular use is known to the seller, there is an implied warranty that it will be reasonably suitable for such purpose, p. 364.</p> <p>2. Sales.—Implied Warranty.—Breach.—Remedy of Purchaser.— Upon the breach of an implied warranty that goods are reasonably suitable for the purpose for which they were bought, the purchaser need not return the goods and rescind the contract, but may, when sued for the purchase price set up his claim for damages by way of answer, p. 364.</p> <p>3. Sales.—Implied Warranty.—Breach.—Counterclaim.—In an action for the price of metal shingles sold to defendant, an answer alleging that they were sold by the manufacturer to defendant for the special purpose of being used in the construction of the roof on a certain building, the pitch of which was four and one-half inches, which fact was known to plaintiff, and that defendant had no knowledge of the fitness and suitability of such shingles for that particular purpose, and containing other averments relating to such warranty, the specific defects and unfitness constituting the breach, and the damages therefrom, was sufficient to withstand a demurrer, p. 365.</p> <p>4. Sales.—Warranty.—Agreements Constituting. — An order for metal shingles, marked “wait for notification,” together with purchaser’s letter relating thereto and asking for an express warranty of the goods for the purposes for which the purchaser intended to use them, and the seller’s letter warranting them, construed together, constitute a complete and definite written agreement, so that in an action for the purchase price, an answer alleging such contract, the breach of the warranty, the making of a proper test, and the damage resulting from the breach, was sufficient on demurrer, p. 365.</p> <p>5. Evidence.—Secondary Evidence.—Admissibility.—Where the contract involved in an action consisted of letters exchanged between the parties, two of which were conclusively shown to have been lost, it was proper to show the contents of such missing letters by oral testimony, p. 366.</p> <p>6. Appeal.—Review.-—Evidence.—Verdict.—A verdict will not be disturbed on the evidence, where there is some legal evidence supporting same. p. 366.</p> <p>7. Appeal.—Review.—Instructions.—Set-Off.—An instruction telling the jury that for defendant to recover on his set-off for damages, he must prove all the damage charged or some part thereof by a fair preponderance of the evidence, was not erroneous, p. 366.</p> <p>8. Appeal.—Review/.—Harmless Error.—Instructions.—In an action where both an express and implied warranty in relation to the sale of goods was relied upon, error in an instruction stating that there were two kinds of warranty, but only defining an express warranty, was harmless, where it was followed by another instruction defining the conditions and circumstances which would create an implied contract of warranty, p. 367.</p> <p>9. Telal.—Instructions.-—Necessity for Bequest.—A party desiring to have the jury further instructed on a branch of the case, should tender such instructions and request that they be given, p. 367.</p> <p>10. Sales.—Breach of Warranty.—Instructions.—In an action for the price of metal shingles, where defendant filed a set-off for damages for a broach of warranty, and there was evidence tending to show that such shingles had not been in general use and had not been manufactured many years, an instruction informing the jury on the law relating to new appliances was proper, although the question was not one of the controlling issues presented by the pleadings, p. 367. .</p> <p>11. Sales.—Breach of Warranty.—Instructions.—In an action for the price of metal shingles, where defendant filed a set-off for damages for a breach of warranty that they were fit for the purposes intended by the purchaser, an instruction informing the jury that the knowledge of plaintiff’s agent, who solicited the order from defendant, concerning the pitch and angle of the roof, was the knowledge of the principal, was proper, p. 367.</p> <p>12. Sales.—Breach of Warranty.—Damages.—In an action for the price of metal shingles, where defendant relied upon a breach of warranty as to the fitness for a particular roof, and a breach of the warranty was shown, and it was also shown that a good faith effort had been made by defendant to make a proper roof out of such shingles, an instruction that if the finding should be for defendant, the measure of damages would be the cost of the metal shingle roof, including the cost of the shingles if paid for, and the expense of putting them on the roof, less their value after being removed from the roof, to which could be added the reasonable expense incurred in any attempt to repair and improve the roof so that it would conform to the warranty, correctly stated the measure of damages, since it was defendant’s duty to minimize the damage as much as possible, and where goods are sold for a particular use, damages for a breach of the warranty properly include all consequential damages that are the direct, immediate and probable result of the breach, p. 367.</p>

<p>Prom Steuben Circuit Court; Frank M. Powers, Judge.</p> <p>Action by Ella Scott against the Town of Premont and others. Prom a judgment for plaintiff, the plaintiff appeals.</p>

<p>1. Animals.—Viciousness.—Owners.—Liability.—When an animal is by nature wild and ferocious and calculated to injure- mankind, its* owner will be charged with negligence in permitting it to run at large or to come in contact with and injure persons who are themselves without fault; but in the case of domestic animals, such as a horse, the owner must have knowledge, either actual or constructive, of the vicious character of the animal before he may be required to respond in damages for any injuries inflicted by it. pp. 375, 377.</p> <p>2. Animals.—Viciousness.—Knowledge of Servant.—Imputation to Master.—Knowledge by the servants that the master’s horse was vicious and had kicking propensities, is chargeable to the master, p. 376.</p> <p>3. New Tbial.—Motion.—Time for Filing.—Motion for Judgment on Ansioers to Interrogatories.-—A motion for new trial and a motion for judgment on the answers of the jury to interrogatories may be properly filed at the same time. p. 377.</p> <p>4. Appeal.—Questions Reviewable. — Instructions. — Briefs. — Instructions that are set out in appellant’s brief, and properly presented, will be considered, although all the instructions given are not set out therein, p. 378.</p> <p>5. Appeal.—Review.—Instructions.—In an action for damages from being kicked by a horse, instructions failing to tell the jury that the defendant must have known of some disposition on the part of the horse to kick, or some disposition that would suggest to a man of ordinary prudence and caution that he would kick, were defective, p. 378.</p> <p>6. Belease.—Rescission.—Fraud.—Mistake.—A contract releasing a right of action for damages for personal injuries cannot be rescinded in part and affirmed in part, and before it can be rescinded, either for fraud or mistake, the party rescinding must restore anything of value which he may have received in consideration for such release, p. 378.</p> <p>7. Pleading.—Reply.—The office of a reply is to avoid the facts set out in the answer, and it must not depart from the theory of the complaint, p. 380.</p>

<p>1. Pleading.—Won Est Factum.—Signature to Pleading.—Presumptions.—“Subscribe.”—Under §370 Burns 1908, §364 R. S. 1881, construed with §364 Burns 1908, §358 R. S. 1881, providing that every pleading must be subscribed by the party or his attorney, a pleading under oath denying the execution of a written instrument should be subscribed by the party denying such execution or by his attorney, and, since the word “subscribe” has reference to the place of signature rather than to the manner, ordinarily implying that the name of the party who subscribed is at the bottom or end of the writing or document, and since the act of signing or subscribing is one that may be legally done by the party or by another authorized to act for him, it follows that there can be no such presumption of the genuineness of defendant’s signature to an answer of non est factum, as to preclude the possibility of forming an issue on that subject, p. 385.</p> <p>2. Wobds and Phbases.—“Standard.”—The term “standard” presents to the mind the conception of a type or model, or of a combination of elements or conditions accepted as correct and perfect. p. 387.</p> <p>3. Evidence.—Comparison of Handwritings.—Standard of Comparison.—A writing that is in the case only as a standard of comparison in determining the authenticity of handwriting is not of itself primary evidence of the genuineness or spuriousness of such handwriting, but, having been ascertained to be correct, it is a measure for meting out to the Jury, through the testimony of experts, primary evidence on the issue involved, and it is never for the Jury, but for the court, to determine the genuineness of a writing proposed as a standard, p. 387.</p> <p>4. Evidence.—Comparison of Handwritings.—Standard of Comparison.—Admitted Genuineness.—Writings that are not in evidence and are not papers in the ease, may be used for comparison by experts, if their genuineness is admitted by the opposite party, but may not be submitted to the Jury in the absence of an agreement to that effect, p. 389.</p> <p>5. Evidence.—Comparison of Handwritings.—Standard of Comparison.—Admitted Genuineness.—Papers Already in Evidence.— In cases involving the authenticity of handwriting, writings admitted to be genuine, and already in evidence for some other purpose, may be submitted to the Jury for comparison with the disputed signature, either with or without the aid of experts, p. 389.</p> <p>6. Evidence.—Comparison of Handwritings.—Standard of Comparison.—Submission to Experts.—Admission of Genuineness.— Collateral Issues—A paper not already in evidence for some other purpose cannot be submitted to experts as a standard of comparison, even if there is no dispute about its authenticity, unless the genuineness of the signature thereto is voluntarily admitted in open court, or on the record, by the party against whom the paper is sought to be used, since without such admission there might be a collateral issue formed as to the genuineness of such proposed standard, and an admission of genuineness by the party offering the paper would operate merely as a self-serving statement, pp. 389, 390.</p> <p>7. Evidence.—Comparison of Handwritings.—Standard of Comparison.—Use by Experts.-—Evidence is not admissible to prove the genuineness of a proposed standard of comparison, and although such evidence has in fact been heard, such proposed standard may not be used either by experts or by the jury for comparison, unless it has been admitted to be genuine, p. 389.</p> <p>8. Evidence.—Comparison of Handwritings.-—Standard of Comparison..-—-Estoppel.—A party may estop himself from denying the genuineness of a writing proposed as a standard of comparison by introducing it in evidence, p. 390.</p> <p>9. Evidence.—Comparison of Handwritings.—Standard of Comparison.—Answer of Hon est Factum as Standard.—Defendant’s answer of non est factum denying the execution of the note sued on cannot be used as a standard of comparison of the genuineness of his signature, in the absence of an admission by plaintiff of the genuineness of defendant’s signature thereto, any more than any other extraneous paper, since such pleading may be signed by defendant or by some one at his direction, making it possible to raise a collateral issue as to the genuineness of that signature, pp. 390, 392, 396.</p> <p>10. Evidence.—Comparison of Handwritings.—Standard of Comparison.—Admission of Genuineness.—Estoppel.—An implied admission of the genuineness of a writing offered as a standard of comparison, or an estoppel to deny its genuineness, must of necessity be based on something said, done, or omitted by the party against whom such writing is to be used. p. 391.</p> <p>11. Evidence.—Comparison of Handwritings.—Standard of Comparison.—Presumption Against Fraud.—-The fact that fraud is never to he presumed will not preclude plaintiff from questioning the genuineness of defendant’s signature to an answer of non est factum offered as a standard of comparison, p. 391.</p> <p>12. Evidence.—Comparison of Handwritings.-—Standard of Comparison.—The mere fact that a writing, offered as a standard of comparison in determining an issue of non est factum, was written after the controversy arose is not sufficient to exclude it for such purpose, p. 395.</p>

<p>Prom Hendricks Circuit Court; J ames L. ClaA'It, Judge.</p> <p>Action by Eliza C. Henderson against Middle Civil Town-skip of Hendricks County. Prom a judgment for defendant, tbe plaintiff appeals.</p>

From Huntington Circuit Court; Samuel E. Goolt, Judge. Action by Louise Walda, administratrix of the estate of Christian C. Walda, deceased, against The Fort Wayne and Wabash Yalley Traction Company. From a judgment for defendant, the plaintiff appeals.

<p>1. Tbial.—Special Findings.—Failure to Find Bssential Fact.-— The failure to find an essential fact is equivalent to a finding of such fact against the party in whose favor the judgment was rendered, p. 412.</p> <p>2. Ebaud.—Fraudulent Intent. — Statutes. — The provisions of §7483 Burns 1908, §4924 R. S. 1881, that the question of fraudulent intent shall be deemed a question of fact, applies to all actions involving a question of fraudulent intent, where the rights of the parties depend upon any provision of the statute of frauds, but is not applicable where the rights of the parties do not depend upon such statute, p. 412.</p> <p>3. Ebaud.—Fraudulent Intent.—Special Findings.—Sufficiency.-— In an action to set aside the allowance of a claim against an estate in favor of the administrator, a special finding of facts showing that the judgment allowing such claim was procured by fraud was not insufficient because it was not stated as an ultimate fact that such allowance was procured by fraud, or that the administrator acted with a fraudulent intent or purpose, p. 412.</p> <p>4. Ebaud.—Constructive Fraud.—Breach of Duty Arising From, Confidential or Fiduciary Relation.—Any breach of duty arising from a confidential or fiduciary relation whereby the party at fault, without any actual or fraudulent intent, gains an advantage at the expense of anyone to whom he owes such duty, amounts to a constructive fraud, p. 414.</p> <p>5. Executoes and Administbatobs.—Duties of Administrator.— Fraud.—Procuring Allowance of Claim.—The administrator of an estate occupies a position of the highest trust and confidence, and owes to the heirs and Tiona fide creditors the duty to preserve the estate for their benefit, and to the court the duty of administering the trust with the utmost good faith, so that where an administrator procured the allowance of his claim against the estate without contest by buying the interest of the only heirs within the jurisdiction of the court and of which the court had any knowledge; and then moving the court for judgment as by agreement, when in fact there were other heirs who were not in court and had no notice of such claim, his conduct constituted a legal fraud, regardless of the question of fraudulent intent, p. 414.</p>

Prom Scott Circuit Court; William C. Utz, Special Judge. Action by Mollie Lyons, administratrix of tbe estate of Harry Lyons, deceased, against tbe city of New Albany. Prom a judgment for defendant, tbe plaintiff appeals.

<p>Prom Henry Circuit Court; Ed Jackson, Judge.</p> <p>Action by Ott Hoffman and others against Marshall A. Pry and others. Prom a judgment for plaintiffs, the defendants appeal.</p>

Prom Delaware Circuit Court; J oseph G. Leffler, Judge. Action by Charles Gough and others against the Indiana Union Traction Company and another. Prom a judgment for plaintiffs, the defendants appeal.

<p>Prom Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Action by Maurice Winfield against George H. MeCaslin and others. Prom a judgment for plaintiff, the defendants, George H. MeCaslin and Alfred E. Hovey, appeal.</p>

<p>Prom Superior Court of Marion County (82,644); Charles J. Orbison, Judge.</p> <p>Action by Richard Lieber, receiver for the New Grand Hotel Company, against the "William If. Armstrong Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Gibson Circuit Court; Herdis F. Clements, Judge.</p> <p>Action by Levi L. Reed against Tbe Indiana Life Endowment Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Cabecees.— Injuries to Passenger. — Evidence. — Operation of Oar.—In an action for injuries inflicted by an interurban railway conductor while plaintiff was alighting from the car, where there was direct evidence showing that a conductor in the course of his employment as a passenger conductor of defendant took a certain car over a certain road, and in the course of his duties inflicted the injuries complained of, and that after the accident officers and representatives of defendant company interviewed' witnesses to the accident, was sufficient to warrant the jury in finding that the car was at the time operated by the defendant, and especially in view of the fact that defendant did not deny that it was operating same. pp. 474,475, 476.</p> <p>2. Tbiab.—Trial by Jury.—Emdings.—It is not necessary that witnesses testify directly to a fact to authorize a finding that it exists, but a jury may be justified in finding a fact, either when its existence is admitted, or when the fact is one of which judicial notice is taken, or when it is directly proved by the evidence, or when it may rightly and reasonably be inferred from the evidence, p. 474.</p> <p>3. Carriers. — Injuries to Passenger. — Liability. — Ownership of Car.—In a passenger’s action for personal injuries, the question of whether defendant owned the car on which the injury occurred, or the track over which it was operated, is immaterial, since defendant’s liability depends upon whether it was operating the car. p. 476.</p> <p>4. New Trial.—Newly-Discovered Evidence.—Diligence.—Cumulative Evidence.—Where the newly-discovered evidence urged as a ground for new trial, was mostly cumulative and of a character that would not in all probability have produced a different result, and there was perhaps no sufficient showing of diligence to obtain such evidence before the trial, the overruling of such motion was not error, p. 478.</p> <p>5. Aiteal.—Review.—Damages.—A verdict for $4,874, for injuries to the right arm and leg which caused much pain and probably injured the spinal cord of a woman, and would perhaps permanently affect her, was not excessive, notwithstanding that she was married and resided with her father and mother and was relieved from the necessity of doing much housework, p. 478.</p>

<p>Prom Jennings Circuit Court; Francis M. Thompson, Judge.</p> <p>Action by Isaiah. Morris against the Baltimore and Ohio Southwestern Railroad Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Tippecanoe Circuit Court; James P. Wason, Special Judge. Proceeding on a claim by the American National Bank against the estate of Jacob P. Marks, deceased, based on a note signed by decedent and Nicholas W. Box. The claim, having been paid in part and disallowed in part by the administrator of decedent’s estate, was transferred to the issue docket for trial. Prom a judgment adverse to the estate, the administrator appeals.

<p>1. Appeal.—Assignment of Errors.—Waiver.—Assignments of error questioning the sufficiency of the complaint are waived by appellant’s failure to point out any specific objection to either paragraph thereof, p. 508.</p> <p>2. Advebse Possession.—Acquisition of Title.—Question of Fact. —While a good title may be acquired by adverse possession under a claim of ownership, the question of whether such title has been acquired is one of fact. p. 508.</p> <p>3. Appeal.-—Rcvieio.— Evidence.-—Weight and Sufficiency.— The court on appeal will not weigh conflicting evidence, p. 508.</p>

<p>From Boone Circuit Court; Willett E. Parr, Judge.</p> <p>Action by Thomas McGuire against Mary Smith and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Negligence.-—Injury to Property.—Contributory Negligence.— Burden of Proof.—While the burden of proof on the question of contributory negligence has been placed by statute (§362 Burns 1908, Acts 1899 p. 58) upon the defendant in actions for damages resulting from personal injuries or the death of any person, in all other cases involving that question the burden rests upon the plaintiff to allege and prove his freedom from contributory negligence; hence, in an action for damages for the death of two colts, alleged to have resulted from defendant’s negligence, mandatory instructions stating that plaintiff was entitled to a recovery upon proof of certain facts, but not mentioning freedom from contributory negligence as one of the facts to be proved by plaintiff, were fatally erroneous, p. 573.</p> <p>2. Trial.—Instructions.—Cure of Defective Instructions.—Mandatory instructions purporting to enumerate the facts essential to a recovery by plaintiff, but omitting a material fact, as to which plaintiff has the burden of proof, cannot be cured by the giving of other instructions correctly stating the law. p. 514.</p>

<p>1. Fixtures.—Removal.—Waiver of Right.—Where a tenant, by the terms of his lease, has the right to remove buildings or fixtures, such right is not lost by his holding over under such lease with the landlord’s consent, either express or implied, p. 520.</p> <p>2. Landlord and Tenant.—Nonpayment of Rent.—Forfeiture.— Forfeitures are not favored in law, and the nonpayment of rent will not ipso facto work a forfeiture of a lease providing for forfeiture upon default of payment, but in order to work a forfeiture there must be some affirmative action on the part of the one entitled to enforce same. p. 520.</p> <p>3. Life Estates.—Fixtures.—Lease.—Forfeiture.—Nonpayment of Rent.—Under a lease giving lessee the right to remove buildings erected by him, and providing for forfeiture on his failure to make payments as therein provided, a life tenant, to whom the rent was due, was the only person entitled to insist upon a forfeiture, and the remaindermen were not affected by any failure to pay, or by any adjustment of the rents, p. 520.</p> <p>4. Landlord and Tenant. — Payment of Rent. — Forfeiture.— Waiver.—The acceptance of payment of past-due rent and a subsequent continuance of the relation of landlord and tenant, shows a waiver of any right of forfeiture that may have existed, p. 521.</p> <p>5. Fixtures.—Removal.—Forfeiture of Right.—Evidence.—A tenant’s right to remove fixtures is forfeited by the taking of a new lease, unless there is something in the contract indicating a different intention, and if the contract is indefinite or ambiguous on the subject, parol evidence may be received to ascertain the intention of the parties, p. 521.</p> <p>6. Fixtures.—Contract.—Intention of Parties.—Where by the terms of a new lease executed by a life tenant, buildings, erected on the land by the lessee pursuant to the old lease granting the right to remove same, were transferred to the life tenant by the lessee in consideration of the satisfaction of payments defaulted by him under the old lease and the release of certain future payments, it sufficiently appears that the parties did not regard the buildings as part of the real estate, and that such life tenant, on becoming the owner of such buildings, intended to hold them separate and apart from the estate in fee. pp. 522, 523.</p> <p>7. Fixtures.—Effect of Agreement.—Buildings erected by a tenant under an agreement with the owner of the fee that they shall belong to the tenant, his heirs or assigns, and reserving to them the right of removal, are personal property, p. 523.</p> <p>8. Fixtures.—Property of Life Tenant.—Rights of Remaindermen. —The remaindermen of a life estate acquired no interest by virtue of the character of the consideration in a transaction where the lessee of a life tenant transferred to the latter buildings located on the premises, and which were at the time the personal property of such lessee, in consideration of a debt due to such life tenant for taxes which such lessee failed to pay in accordance with the terms of the lease, p. 524.</p> <p>9. Estates.—Merger.—Personal Property.—The doctrine of merger primarily has no application to personal property, but is applicable to estates in lands, p. 525.</p> <p>10. Fixtures.—Removal.—Merger in Realty.—Buildings situate upon real estate, though shown to be personal property in the first instance, may cease to be such and become a part of the real estate upon which they stand, p. 525.</p> <p>11. Fixtures.—Tenant.—Agreement for Removal.—Merger.—The failure of a tenant, who owns buildings erected on the land with the right of removal, to remove same within the time specified therefor, or, in the absence of a specified time for their removal within a reasonable time after the termination of the lease, works a forfeiture of such right, and the title to such buildings is merged into that of the real estate upon which they stand, p. 525.</p> <p>12. Fixtures. — Buildings Treated as Personalty. — Buildings erected in pursuance of a lease which shows them to be the personal property of the lessee, will continue to be treated as chattels until it is shown that something has been done, or omitted, whereby the right to claim them as such has been lost. p. 526.</p> <p>13. Estates.—Merger.—Equity.—'Merger is a doctrine of equity and its application is governed by the principles and rules of equity, p. 526.</p> <p>14. Estates.—Merger.—Equitable Doctrine.—While a merger by operation of law takes place where a greater and a less estate, held in the same right, meet in the same person without any intermediate estate, in equity such merger depends upon the intention of the party in whom the estates vest, and the intention to prevent a merger will often be inferred from circumstances indicating that the interest of the party will be best subserved by avoiding a merger. . p. 527.</p> <p>15. Estates.—Merger.—Equitable Doctrine.—Equity may be invoked to change the effect of a writing where it appears that right and justice will be thereby promoted, and it will interpose to prevent a merger in order thereby to do substantial justice, .p. 527.</p> <p>16. Fixtubes.—Interest of Remaindermen.—Purchase by Life Tenant.-—Where a life tenant acquired from his lessee a building which was personalty under the lease, equity will permit Mm to hold it as such agaMst the remaindermen where it appears that such was the evident intent of the parties, that it is not detrimental to his interest so to do, and that equity will thereby be promoted, p. 528.</p> <p>17. Life Estates.—Fixtures.—Rights of Remaindermen.—The fact that buildings, acquired as personalty by the life tenant, remained upon the land until the death of such life tenant, does not make them the property of the remaindermen as a part of the real estate, there having been no forfeiture or merger, p. 529.</p> <p>18. Life Estates.—Fixtures.—Improvements by Life Tenant.— Permanent improvements made by a life tenant cannot be charged to the remainderman without his consent, either express or implied, and on the termination of the life estate they pass as a part of the realty, but such rule is not applicable in a case where buildings were acquired and sold by the life tenant as personalty, p. 529.</p> <p>19. Appeal.—Review.—Findings.—A finding of facts rendered by the trial court must be considered as a whole, p. 530.</p>

<p>Prom Blackford Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by Abigail Murphy against the Chicago and Erie Railroad Company. Prom a judgment for plaintiff, the defendant appeals. Affirmed.</p>

<p>Prom Hancock Circuit Court; Elmer J. Binford, Special Judge.</p> <p>Action by Emma Morrow against the City of Rusbville. Prom a judgment for plaintiff, the defendant appeals. Reversed.</p>

From Franklin Circuit Court; George L. Gray, Judge. Action by Mary Lawrence, administratrix of the estate of Riebard Lawrence, deceased, against the Kelly-Atkinson Construction Company. From a judgment for plaintiff, the defendant appeals.

<p>From Rush Circuit Court; Will M. Sparks, Judge.</p> <p>Action by Joseph U. Mogul against James Garvey. From a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Washington Circuit Court; Thomas B. Buskirlc, Judge.</p> <p>Action by Maltraverse Payne against William Peugh, Trustee of Monroe Township, in Washington County, and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>Prom Marion Circuit Court (19,699); Charles Bemster, Judge.</p> <p>Action by Jacob Woessner, Sheriff of Marion County, against the city of Indianapolis. Prom a judgment for plaintiff, the defendant appeals.</p>

From Superior Court of Marion County (83,550); Joseph Collier, Judge. Action by Lucius G. Fisher as an intervening petitioner in a receivership cause, entitled Columbia National Bank against the Jenney Electric Company, and from an adverse judgment such petitioner appeals.

From Cass Circuit Court; James P. Wason, Special Judge. Action by the Logansport Credit Exchange and another-against Robert M. Sands. From a judgment of the circuit court authorizing an appeal from a judgment taken against defendant before a justice of the peace, the plaintiffs appeal.

From Morgan Circuit Court; Joseph W. Williams, Judge. Action by Alpha C. Croly, by her nest friend, Joseph Croly, against the Indianapolis Traction and Terminal Company. From a judgment for plaintiff, the defendant appeals.

<p>From Vanderburgh. Circuit Court; C. A. DeBruler, Judge.</p> <p>Action by David Johnson against the Evansville and Southern Indiana Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Pike Circuit Court; John L. Brets, Judge.</p> <p>Action by Timothy Sweeney against Mary B. Hardin. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Pulaski Circuit Court; Francis J. Vurpillai, Judge.</p> <p>Action by Elmer C. Williams and others against Joseph Riggs and others. Prom a judgment for plaintiffs, Melvin C. Rayburn and others appeal.</p>

<p>Prom Putnam Circuit Court; John M. Rawley, Judge.</p> <p>Action by Ida C. Doan against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal.—Judgment.—Evidence.—The court on appeal will not disturb the judgment on the evidence where there is evidence tending to support the finding of the trial court, p. 627.</p> <p>2. Landlord and Tenant.—Lease.—Construction.-—An unambiguous lease should be so interpreted as to carry into effect the intention of the parties expressed by the language employed. p. 628.</p> <p>3. Contracts.-—Construction.—In construing a writing, the court will, if possible, give effect to all its parts, and its meaning will be determined from a consideration of all its provisions taken together as a whole, p. 628.</p> <p>4. Contracts.—Construction.—Intent of Parties.—Where a writing is ambiguous and the parties have themselves placed a construction upon it, the courts will favor such construction and will give great, if not controlling, influence to such interpretation in arriving at the true intention of the parties, pp. 628, 629.</p> <p>5. Landlord and Tenant.—Lease.—Construction.—A lease of a stone mill providing that the lessees shall use due care and at the termination of the lease surrender the possession of the premises and appurtenances in like good order and repair as the same now are, reasonable wear and tear excepted, and shall keep the premises and articles leased in good and sufficient repair at their expense, is not ambiguous, but it is apparent therefrom that the lessees should keep the property 'in sufficient repair for the intended use at their own expense and at the termination of the lease should surrender possession to the owner in as good condition of repair as the same was in when the lease was made, but they are not required to make good to the owner the loss resulting from the depreciated value of the leased property due to the reasonable wear and tear of same during the term of the lease, p. 628.</p> <p>6. Words and Phrases.—“Reasonable Wear and Tear."—The reasonable wear and tear .of a stone mill and the machinery, tools. and equipment belonging thereto, necessarily includes decay of timbers, the wearing out and giving way of various parts of the buildings, machinery, tools and other parts of the plant and its equipment, p. 629.</p> <p>7. Appeal.—Review.—Evidence.—Construction of Lease.—Where there was conflicting evidence as to the construction placed on a lease by the parties thereto the court’s finding based on such, evidence cannot be disturbed on appeal, p. 629.</p> <p>„ 8. Landlord and Tenant.—Obligation to Repair.—Stipulations m Lease.—Where a lease contains a stipulation with reference to repairs, the writing will control, but an agreement to turn over the premises at the end of the term in as good condition as they were in, does not require the tenant to make good to the landlord depreciation due to such wear and tear of the premises as is incident to the use for which they were leased, p. 630.</p>

<p>1. Trial.—Conclusions of Law.—Exceptions.—Exceptions to conclusions of law admit that all the facts within the issues were fully and correctly found, and where the facts are not fully and correctly found the question can be made available only by a motion for a new trial, p. 636.</p> <p>2. Appeal.—Review.—Findings.—Strilvmg Out Paragraphs of Reply.—Effect.—Where the court’s special findings disclose that certain defendants had retired from a partnership long before the transaction on which plaintiff’s action was based, and that they were not at the time actual partners in the business, and such findings were unchallenged, the court’s action in striking out certain paragraphs of plaintiff’s reply to the answers of such defendants was not erroneous, p. 637.</p> <p>3. Partnership.—Dormant Partners.—Liability for Debts.—Where nothing was done by any member of a partnership to disclose to plaintiff or to the public that certain persons were partners, and plaintiff at no time knew of their connection with the partnership, so that he could not have been induced to transact the business on which the action is founded, because of any credit or standing they may have had, such persons were dormant partners, and were not liable to plaintiff for debts of the firm created after their retirement, even though in retiring they disposed of their interests in a manner not strictly in compliance with the partnership agreement, pp. 637, 639.</p> <p>4. Pap.tnership.—Dormant Partners.—Retirement.—Notice.—A dormant partner is not bound upon retiring to give notice of his retirement, or of the dissolution of the firm, in order to escape liability for the firm’s future obligations, p. 638.</p> <p>5. Partnership.—Dissolution.—Death of Partner.—Although a partnership agreement provided that the firm should continue for twenty years regardless of the death of a partner, the death of one of the partners worked a dissolution of the firm, so that business transacted after such death was with a new firm, and any partner who had retired from the business prior thereto could not be held for its subsequent obligations. p.'639.</p> <p>6. Partnership.—Use of Corporate Name.—Effect.—The status of the parties concerned in a partnership is not changed by the fact that the name under which the partnership business was transacted was suitable for a corporation, since a partnership may adopt any name and the use of a name suitable to a corporation does not affect the law governing partnerships, p. 641.</p> <p>7. Appeal.—Review.—Harmless Error.—Ruling on Demurrer.— The overruling of a demurrer to a pleading is not available error where there is a correct conclusion of law upon the facts, p. 642.</p>

<p>1. Negligence.—Failure to Provide Fire Escapes.—Statutory Requirements.—In view of the fact that §1 of the act of 1909 (Acts 1909 p. 302), providing for the protection of human life from fire, and repealing the act of 1903 (§3841 et seq. Burns 1908, Acts 1903 p. 430), like §1 of the repealed act, refers to public buildings of various kinds and to “every building in which persons are employed above the second story in a factory or workshop”, etc., and that §6 of the repealed act, wherein it was provided that the owner of any building described in the act who should neglect or refuse to comply with its provisions as to fire escapes would be subject to fine and imprisonment, and, in case of fire, liable for damages with a penalty of $5,000 for each person killed and also damages for personal injuries not causing death, was highly penal, and since §6 of the act of 1909 is substantially the same, except the application of the latter is limited to owners, lessees or occupants of hotels and to school officers having charge of public property, it was evidently the intention of the legislature by the latter section to limit the application of the penal provisions of the act and to leave the question of civil damages, except in the cases specified, to be governed by the general law on that subject as declared by the decisions of the court, p. 647.</p> <p>2. Statutes.—Construction.—Legislative Knoicledge of Existing Laic.—The legislature is presumed to be acquainted with the existing law and in legislating on any subject to have in view its provisions, either statutory or otherwise, and the construction placed thereon by the courts, p. 649.</p> <p>3. Negligence.—Violation of Statutory Duty.—Liability.—Where a statute creates a duty, a violation of such duty proximately causing an injury to one to whom the duty is owing, creates a liability in his favor, provided he is not guilty of negligence contributing to such injury, p. 649.</p> <p>4. Negligence.—Failure to Provide Fire Escapes.—Complaint.— Sufficiency.—A complaint in an action under the act of 1909 (Acts 1909 p. 302), providing for the protection of human life from fire and requiring the erection of fire escapes, etc., which contained a general charge of negligence in failing to provide fire escapes, coupled with allegations of ownership, stated a cause of action in terms broad enough to admit proof showing a duty to plaintiff and its violation by defendants, p. 650.</p> <p>5. Negligence.—Failure to Provide Fire Escapes.—Complaint.— Proximate Cause.—A complaint in an action under the act of 1909 (Acts 1909 p. 302), providing for the protection of human life from fire and requiring the erection of fire escapes, etc., alleging that defendants were the owners of a three story building and that they knew and consented to the use that was made of the third floor and knew that plaintiff was employed on such floor, that they negligently failed to provide the building with fire escapes, that a fire occurred which prevented plaintiff from reaching the stairways, and that plaintiff, believing it was necessary to save his life, jumped on an awning and fell therefrom to the street, whereby he was injured, sufficiently shows that the absence of external fire escapes on the building was the proximate cause of the injury, p. 650.</p> <p>6. Statutes.—Construction.—Title.—Where the meaning of an act is doubtful, the title, if expressive, may serve the purpose of removing the doubt, either by extending the purview of the body of the act, or by restraining or limiting it to the evident intention of the legislature, p. 652.</p> <p>7. Statutes.—Construction.—Where two constructions of a statute are possible, that one should be adopted which makes effectual, rather than one which defeats the purpose of the law. p. 652.</p> <p>8. Statutes.—Construction.—Legislative Intent.—In construing a statute the legislative intent is to be kept in view, and such intent, as ascertained from a consideration of the whole, as well as the separate parts of the act, will control the strict letter of the statute or the literal import of particular terms or phrases, where adherence to the strict letter or literal import would lead to injustice, absurdity, or contradict the evident intention of the legislature, p. 652.</p> <p>9. Statutes.—Construction.—Legislative Intent.—Although a statute in derogation of the common law is to be strictly construed, such rule of construction will not defeat the legislative intention where it is apparent from the act itself, p. 652.</p> <p>10. Negligence.—Duty to Provide Fire Escapes.—Statutes.—Construction.—Under the act of 1909 (Acts 1909 p. 302), for the protection of human life from fire, providing by §1 that rooms above the second story in every building in which persons are employed in a factory, workshop, etc., shall be provided with one or more ways of escape from fire, and by §2 that all such buildings shall have one or more fire escapes on the outside, as directed by the fire chief, except in cases where he may deem such escapes unnecessary, in which case he shall give the owner or lessee a written certificate to that effect stating his reasons therefor, considered in connection with the act of. 1911 (Acts 1911 p. 553), creating the State Bureau of Inspection, owners or lessees of such buildings must provide such outside fire escapes or have such exemption certificates from the fire chief, who is subject to the State inspector, and the chief’s failure to give notice of the number and hind of such fire escapes will not excuse the owners or lessees from providing same. p. 653.</p> <p>11. Landlobd and Tenant.—Duty as to Fire Escapes.—Statutes.— Definiteness.—Under the act of 1909 (Acts 1909 p. 302), for the protection of human life from fire the owner of any building specified therein is primarily responsible for failure to provide fire escapes, although there may be particular eases in which facts may be averred to show that the duty to provide fire escapes devolves upon the lessee or other occupant of such building, and under such construction the act is not too uncertain or indefinite to be enforceable, p. 654.</p>

<p>1. Landlord and Tenant.—Possession.—Failure to Deliver.— Breach of Lease.—Waiver.—Fstoppeh—Where plaintiff’s lease provided for a term beginning March 1st, but the lessor was unable to give possession until March 23rd, the fact that plaintiff then entered into possession, occupied during the remainder of the term, paid the rent, and did not sue for damages until long after the lease had expired, neither operated as a waiver of the breach of the lessor’s implied covenant for possssion nor to estop plaintiff to recover the damages occasioned thereby, p. 662.</p> <p>2. Landlord and Tenant.—Duty of Landlord.—Delivery of Possession.—A lessor impliedly covenants with the lessee that the premises demised shall be open to entry by the lessee at the beginning of the term, and it is the lessor’s duty to oust any one who at that time may be in possession, p. 664.</p> <p>3. Landlord and Tenant.—Breach of Covenant for Possession.— Measure of Damages.—In an action by a lessee to recover for the landlord’s failure to give possession, the lessee may recover the difference between the agreed rent and the actual market rental value of the premises for the term, plus such special damages as have been directly and necessarily occasioned by the defendant’s wrongful act or default, but not what he might have made on the premises during the lease, or probable profits, except where the contract is such that the rent is to be paid by a share of the crops raised, so that profits may be said to have been an element contemplated by the contract, p. 666.</p> <p>4. Landlord and.Tenant.—Breach of Covenant for Possession.— Damages.—In a lessee’s action against the landlord for failure to give possession at the commencement of the term, where the lessee subsequently entered into possession and paid the cash rent for the entire term, the proper measure of damages was the difference between the actual rental value for the entire term and the actual rental value for the remainder of the term, of the land in the condition in which the tenant holding over had left it, and at the time when plaintiff took possession, plus any special damages allowable under the general rule by reason of the landlord’s wrongful act or default, p.666.</p> <p>5. Landlord and Tenant.—Breach of Covenant for Possession.— Damages.—Evidence.—In a lessee’s action against the landlord for failure to give possession at the beginning of the term, where the lessee subsequently entered into possession and paid the rent for the entire term, evidence was proper as to the condition of the land at the time plaintiff actually obtained possession; the effect, if any, upon the value of the lease by delay in giving possession; any depreciation of the value of the crops raised during the term, resulting from a yield below the normal in quantity and quality, and occasioned by the unfavorable condition of the soil and lateness of planting directly caused by the landlord’s failure to give possession at the beginning of the term, or by the acts of the former tenant during the time of holding over; and as to all similar matters tending to show any depreciation in the rental value of the lease occasioned by the lessor’s wrongful act or default; but such matters could be considered only as tending to show diminution in the rental value of the land and not as in themselves being elements of damages, p. 667.</p> <p>6. Landlord and Tenant.—Breach of Covenant for Possession.— Damages.—Instructions.—In an action against a lessor for failure to place lessee in possession at the beginning of the term, where the lessee paid the rent in cash for the entire term and later entered into possession and occupied for the remainder of the term, an instruction that the lessee could recover for any loss of crops that he may have sustained by reason of the delay in receiving possession, was erroneous, p. 668.</p> <p>7. Landlord and Tenant.—Breach of Covenant for Possession.— Damages.—Occupancy of Other Premises.—In a lessee’s action for the landlord’s failure to place him in possession at the commencement of the term, where the lessee had paid the rent for the entire term, he was entitled to recover the reasonable rental value of the premises occupied by him during the time he was deprived of possession under the lease, and not any amount that he may have voluntarily paid. p. 668.</p>

<p>Prom Sullivan. Circuit Court; William H. Bridwell, Judge.</p> <p>Action by James Youngblood against Richard M. Robinson. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Putnam Circuit Court; James L. Clark, Special Judge.</p> <p>Action by Charles W. "Ward against Clarence A. Tuttle. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>1. Executors and Administrators.—Appointment.—Jurisdiction.— Statutes.—Under §2743 Burns 1908, §2228 R. S. 1881, providing that letters of administration shall be granted in the county where intestate was an inhabitant at the time of Ms death, jurisdiction to make the appointment depends upon residence and not upon the location of the assets, p. 685.</p> <p>2. Executors and Administrators.—Appointment in Wrong County.—Validity.—Revocation.—Letters of administration issued in a county other than that where the intestate resided are not void, although they are voidable in a direct proceeding to set aside the appointment and annul the letters, and should be set aside either upon the application of any interested party, or upon the court’s own motion, or at the suggestion of an amicus curiae. p. 685.</p> <p>3. Executors and Administrators.—Appomtment.—Jurisdiction.— Resignation.—Subsequent Appointment in Another County.— Where the circuit court of a certain county adjudged that it had jurisdiction and appointed an administrator pursuant to §2743 Burns 1908, §2228 R. S. 1881, providing for the granting of letters in the county where intestate resided at the time of his death, its adjudication of jurisdiction was conclusive in the absence of any direct proceeding to challenge same, and although such administrator resigned and prior to the appointment of an administrator de bonis non letters were issued upon the same estate by the court of another county, the issuance thereof did not oust the court making the first appointment of its jurisdiction, pp. 686, 687.</p> <p>4. Executobs and Administbatobs.—Resignation.—Effect of Acceptance.—The acceptance of an administrator’s resignation merely annuls the letters issued to him and does not affect the court’s adjudication of jurisdiction over the estate, p. 686.</p> <p>5. Executobs and Administbatobs.—Jurisdiction,—Proceeding to Set Aside Adjudication.—Effect of Resignation of Administrator. —The fact that an administrator has resigned, and his successor has not been appointed, does not render impossible the institution of proceedings to annul or set aside the court’s order adjudging jurisdiction over the estate, p. 687.</p> <p>6. Executobs and Administbatobs.—Adjudication -of Jurisdiction to Appoint.—Subsequent Appointment in -Another County.—While the order of a court adjudging that it has jurisdiction over an estate remains in force, the appointment of an administrator in another court of coordinate jurisdiction is a collateral attack upon the jurisdiction of the other, p. 688.</p> <p>7. Executobs and Administbatobs.—Action to Set Aside Appointment.—Answer.—Sufficiency.—In an action to set aside the appointment of an administrator on the ground that jurisdiction had been assumed in another county prior to. defendant’s appointment, an answer alleging generally that such court never had jurisdiction of the estate, and that there was no administration pending when defendant was appointed, was insufficient in that such allegations were mere conclusions of the pleader, and there was no allegation that such court’s adjudication of jurisdiction had been annulled or set aside in a direct proceeding instituted for that purpose, p. 688.</p>

From Superior Court of’ Marion County (80,019) ; Charles J. Orbison, Judge. Action by A. B. Meyer and Company against Reuben N. Miller and others in which Charles Engler filed a cross-complaint against the defendants Reuben N. Miller and wife. From a judgment for cross-complainant, the defendants Reuben N. Miller and wife appeal.

<p>From Martin Circuit Court; Hileary Q. Houghton, Judge.</p> <p>Action by Albert Arvin against Rutherford School Township, of Martin County. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by William E. Turner against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by William E. Evans, administrator of the estate of Elizabeth Sipe, deceased, against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by William R. LaFollette against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by James R. Tyre against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by Maria E. White against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by Peter C. Starwalt against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by Nancy J.' Bowman against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by James A. Pavey against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by Hiram P. Stephens against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals.</p>

<p>From. Boone Circuit Court; James V. Kent, Special Judge.</p> <p>Action by Frank V. Rinehart against Matthew G. Miller. From a judgment for defendant, the plaintiff appeals;</p>