Volume 61 — Indiana Appellate Court Reports

<p>1. Appeal. — Briefs.—Sufficiency.—Where it could be gathered from appellant’s brief that certain propositions under points and authorities were directed to alleged error in the admission of certain evidence, the brief was not so defective as to preclude a consideration of the alleged error, p. 2.</p> <p>2. Evidence. — Written.—Parol Evidence to Explain. — In an action to recover for medicinal water sold pursuant to a written order calling for “136 es Large Water, price 3.50, 25 cs Large Ginger Ale, price 5.00, 5 casks R. B. pts. Imp. Style ale, price 7.00”, etc., parol testimony showing that “cs” meant “cases”, that “large water” meant “large water bottles holding one-fifth of a gallon”, that “R. B. pts. Imp. Style” meant “round bottom pints imported style”, and that the figures in the price column meant price in dollars per case or cask, was properly admitted, since the order was in itself ambiguous, p. 2.</p>

<p>1. Appeal. — Review.—Refusal to Strike Out Answer. — The overruling of a motion to strike out certain paragraphs of answer was not error, where under the facts shown leave to file such paragraphs was a matter within the sound discretion of the court, p. 6.</p> <p>2. Contbaots. — Breach.—-Complaint.—Answer.—In an action for breach of a contract of employment, where the complaint was on the theory that the contract was originally in parol and afterwards reduced to writing, and it was manifest therefrom that certain obligations on the part of plaintiff had been omitted from such writing, so that the writing was more in the nature of a memorandum than a definite contract, it was competent for defendant to aver by answer what the omitted provisions were and to prove same by parol, since under the circumstances the contract must be deemed in parol and is controlled by the law governing parol contracts. p. 8.</p> <p>3. Contracts. — Proof of Consideration. — -Where the consideration of a contract is not expressed, parol evidence is admissible to show same. p. 8.</p> <p>4. Contracts. — Action for Breach. — Findings.—In an action on a contract, where there was no finding that plaintiff performed his part of the contract, nor of any fact on which substantial damages could be based, while on the other hand there were findings showing nonperformance by plaintiff, and that plaintiff was himself responsible for the failure of the enterprise which was to be developed, all supported by the evidence, the judgment for defendant can not be disturbed, pp. 9, 10.</p> <p>5. Damages. — ■Failure to Assess Nominal Damages. — Harmless Error. — Even though plaintiff is entitled to nominal damages, a failure to assess such damages is not ground for reversal, p. 10.</p>

<p>From Sullivan Circuit Court; Wm. H. Bridwell, Judge.</p> <p>Action by Ida M. Fisher against the Chicago, Terre Haute and Southeastern Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Findings,—Evidence.—Review.—The court on appeal can not weigh conflicting evidence, but, where the decision is challenged for insufficiency of the evidence, it will determine whether there is any evidence to support the decision, and in so doing will consider only the evidence most favorable to the appellee. p. 22.</p> <p>2. Sales. — Fraud.—Evidence-—Where plaintiff, who was experienced, made a personal examination of a second-hand traction engine before purchasing same, and relied on his own judgment as to its fitness, although he also testified that defendant’s agent stated that the engine would do the work if it was as good as recommended to him, and that those in charge of the engine at the time plaintiff examined it stated that it was all right and that leaking steam which plaintiff noticed was the result of a loose bolt, and the engine, after its purchase by plaintiff, leaked water and steam so as to render it useless, etc., the evidence was insufficient to warrant a finding that the sale of the engine to plaintiff was induced by fraudulent representations, pp. 22, 24.</p> <p>3. Fraud. — Evidence.—Sufficiency.—Fraud need not be proved by a particular kind or class of evidence, but to sustain a finding of fraud there must be some evidence from which fraud may be reasonably inferred, p. 24.</p>

<p>Prom Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by Lola Pickett and others against the Toledo, St. Louis and Western Railroad Company. From a judgment for defendant, the plaintiffs appeal.</p>

<p>Appeal. — Findings.—Conclusiveness.—Special findings of fact will not be set aside on the ground of tbe insufficiency of tbe evidence where there is some evidence to sustain them, and in tbe absence of anything to show that tbe court made a mistake in arriving at the result.</p>

<p>1. Insurance. — Action on Policy. — Complaint.—A complaint based upon a standard form of life insurance policy, alleging the execution of the policy and the death of the insured from a cause within its terms, and that plaintiff and the insured fully performed all the conditions of the policy to be performed by them, and disclosing nothing to the effect that the death resulted by reason of insured being engaged in any prohibited occupation, was sufficient as against demurrer, p. 37.</p> <p>2. Insurance. — Action on Policy. — Complaint.—Negativing Exceptions in Policy. — Plaintiff in an action on a life insurance policy need not negative the exceptions contained therein, as they are matters of defense, p. 37.</p> <p>3. Insurance. — Action on Life Policy. — Defenses.—Death from Use of Explosives. — Under a life policy exempting the company from liability if death ensued from the act of insured in making or using explosives, etc., the company could not avoid liability for the death of insured by the explosion of a steam boiler used in connection with the operation of a sawmill, p. 39.</p> <p>4. Insurance. — Action on Life Policy. — Answer of Fraud. — Sufficiency. — In an action on a life policy, an answer on the theory of fraud by the insured in falsely stating the nature of his occupation, was insufficient in the absence of any averment to show that the defendant elected to avoid and rescind the contract after discovery of the fraud by returning or tendering back the premiums paid, p. 40.</p> <p>5. Insurance. — Construction of Policy. — Application.—Where an application for insurance is by the terms of the policy made a part thereof, it and the policy are to be construed as one contract, p. 40.</p>

<p>From Lake Superior Court; Johannes Kopelke, Judge.</p> <p>Action by Clarence Smith against John Toth and others. From a judgment for defendants, the plaintiff appeals.</p>

From Benton Circuit Court; James T. Saunderson, Judge. Action by Millard Watts, as administrator of the estate of Philander Clawson, deceased, against The Chicago and Eastern Illinois Railroad Company. From a judgment for defendant, the plaintiff appeals.

<p>1. Ejectment. — Title of Plaintiff. — Pleading and Proof. — Plaintiff, in an action of ejectment, alleging legal title to the real estate in controversy, is bound thereby and can not recover on proof of an equitable title, p. 67.</p> <p>2. Ejectment. — Title of Plaintiff. — Evidence.—Review.—Where plaintiff in ejectment alleged legal title in himself, and introduced in evidence a deed absolute on its face, as well as an unrecorded contemporaneous instrument purporting to be a contract of purchase and sale whereby the real estate involved was to be conveyed to defendant upon his performance of the conditions therein recited, and there was no evidence to show that the deed to plaintiff together with such contemporaneous instrument constituted a mortgage, it was error for the trial court to limit .the probative scope of a subsequent writing, whereby defendant surrendered all rights under such contemporaneous instrument, to consideration merely upon the question of plaintiff’s right to possession and not upon the question of title; and, even on the assumption that plaintiff’s deed was in fact a mortgage and the contemporaneous instrument a defeasance, the ruling of the court can not be sustained, since, there being no showing to the contrary, it must be presumed that the subsequent surrender of defendant’s rights under the defeasance was bona fide and sufficient to preclude defendant from equitable relief on the theory of “once a mortgage always a mortgage”, pp. 68, 72, 78.</p> <p>3. Mortgages. — Nature and Effect. — A mortgage is but a' lien on land as security for a debt, and the legal title remains in the mortgagor subject to the lien of the mortgage, p. 71.</p> <p>4. Contracts. — Cancellation of Instrument of Defeasance. — Conveyances. — An agreement for the cancellation of an instrument that was executed contemporaneously with a deed of conveyance and provided for a reconveyance to grantor on his performance of certain conditions, is not a conveyance within the meaning of §3957 Burns 1914, §2926 R. S. 1881. p. 71.</p> <p>5. Appeal. — Review.—Theory of Case. — While the court on appeal will hold a party to the theory of the ease adopted in the trial court, such theory will be determined by a consideration of the whole record, hence the mere designation by appellant’s counsel of an instrument as a “defeasance” at the time of offering it in evidence was not of controlling importance on the question of theory, in view of the whole record which indicated that it was a conditional contract for the sale of real estate, p. 77.</p>

<p>1. Bills and Notes. — Defenses.—Pleading.—Non Est Factum.- — • In an action by the endorsee of a note, an answer in general denial, and a special paragraph to the effect that defendants executed a note to payee, but that when delivered it did not contain certain words, that such note was subsequently changed by the addition of such words without the knowledge or consent of defendants, and that defendants paid the payee without knowledge that the note had been changed or transferred, each being verified, had the force of a plea of non est factúm. p. 81.</p> <p>2. Bills and Notes. — Alteration.—Bona Fide Purchaser. — Evidence. ■ — Verdict.—Conclusiveness.—The fact that the place of payment, the rate of interest, and the time of the commencement of interest, are written in a note in different handwriting than that of the other written portions thereof, does not as a matter of law put a purchaser thereof on inquiry as to whether it has been altered; hence where there was evidence to show that after the execution and delivery of a note blank spaces therein w©re filled by the payee’s agent pursuant to a general understanding with the maker, though without the latter’s specific knowledge, so as to show the place of payment, the rate and time for commencement of interest, after which through a series of endorsements it reached plaintiff as a purchaser for value, a verdict for plaintiff was conclusive as against the objection that plaintiff was not a tona fide purchaser without notice, p. 82. •</p> <p>3. Bills and Notes. — Alteration.—Authority of Payee. — Rate of Interest. — The payee of a promissory note may change the interest rate as expressed therein to make the note conform to what the parties agreed or intended it should have been, and such change will not amount to a material alteration, p. 86.</p> <p>4. Bills and Notes. — Alteration.—Inserting Rate of Interest.— Effect. — In view of the fact that under §7952 Burns 1914, §5200 R. S. 1881, a note without stipulation as to interest would draw interest at six per cent from maturity, the act of the payee in filling blank spaces therein to show that the note bears interest at such rate from maturity can not be deemed a material alteration, p. 86.</p> <p>5. Alteration of Instruments. — Material Alteration. — The fact that the 'burden of the complaining party has not been enlarged is not necessarily the test of whether the alteration of an instrument was material, since if the legal effect of the instrument is thereby changed the alteration may be material notwithstanding the burden remains the same. (Holthouse v. State [1911], 49 Ind. App. 178, disapproved in part.) p. 87.</p> <p>6. Bills and Notes. — Alteration.—Evidence.—Implied Authority.— In an action on a note, claimed by defendant to have been altered by inserting the place of payment and the rate and time of commencement of interest, evidence showing that during a long course of dealing with payee the defendant of the executed notes containing blanks with reference to such provisions which blanks were later filled by payee, and that as such notes matured the defendant paid them without objection, etc., warranted the jury in finding that the payee had at least implied authority to fill such blanks in the note sued on. p. 87.</p> <p>7. Bills and Notes. — Alteration.—Implied Authority. — The authority of a payee to fill blank spaces in a note may be implied 'from circumstances and from facts proved, p. 89.</p>

<p>1. Railroads. — Street Crossings. — Personal Injuries. — Complaint.— A complaint against a railroad company for personal injuries, alleging that defendant was negligent in maintaining its track at an elevation above a street crossing, so that there had to be an incline in the board walk crossing the track and down to the sidewalk level, and in permitting an accumulation of ice from water and steam which escaped while engines received water from an adjacent standpipe, that such dangerous situation had existed through the winters for ten years and that defendant was advised of it and could have remedied it, but failed to do so, that plaintiff had occasion to cross the track frequently at such point, which was one of the principal streets of the city, that the plaintiff slipped on such ice and suffered severe and permanent injuries through no negligence of his own, and entirely through the negligence of defendant in so maintaining the crossing and so causing the ice to accumulate, did not show that plaintiff was guilty of negligence in attempting to cross, and was sufficient, p. 92.</p> <p>2. Railroads. — Street Crossings. — Duty to Make Safe. — Conformity to Street Grade. — Under §5250 Burns 1914, Acts 1895 p. 233, it is the duty of railroad companies to keep their crossings in a safe condition for use by the traveling public, and they may be compelled by mandate to make their tracks conform to street grades and to construct crossings over their tracks, p. 98</p> <p>3. Railroads. — Street Crossings. — Personal Injuries. — Contributory Negligence. — Answers to Interrogatories. — In an action against a railroad company for personal injuries to plaintiff who slipped and fell while attempting to pass over a board walk maintained by defendant over its track at a public street crossing, where the complaint charged negligence in maintaining the approach from the sidewalk to the crossing at a sharp incline and in permitting an accumulation of ice at such place, etc., a general verdict for plaintiff amounted to a finding that plaintiff was not guilty of contributory negligence in attempting to pass over such crossing, and answers by the jury to interrogatories, though showing that plaintiff had knowledge of the dangerous condition, were insufficient to sustain a judgment thereon notwithstanding the verdict, in the absence of a finding that plaintiff’s attention was not diverted at the time. pp. 98, 99.</p> <p>4. Appeal. — Answers to Interrogatories. — Scope of Review. — In reviewing the ruling on a motion for judgment on the jury’s answers to interrogatories the court on appeal will consider only the general verdict, the interrogatories and answers thereto, and the pleadings, p. 99.</p> <p>5. Trial. — Verdict.—Answers to Interrogatories. — It is the duty of the trial court to sustain a motion for judgment on the jury’s answers to interrogatories where they are in irreconcilable conflict with the general verdict, p. 99.</p> <p>6. Municipal Corporations. — Defective Streets. — Injury to Pedestrian. — Contributory Negligence. — Though a pedestrian has knowledge of the dangerous or defective condition of a street, it is not negligence as a matter of law for him to use such street, unless the danger is so great as to preclude use by a person in the exercise of ordinary care. p. 99.</p> <p>7. Appeal. — Review.—Disposition of Cause. — New Trial. — Although there is no motion for a new trial in the record, the court on appeal will order a new trial if it appears that the ends of justice will thereby be best subserved, p. 101.</p>

<p>Appeal. — Time for Perfecting. — Effect of Motion to Modify Judgment. —Under §672 Bums 1914, Acts 1913 p. 65, providing that appeals must be taken within one hundred and eighty days from the time the judgment is rendered, the pendency of a' motion to modify the judgment does not operate to extend the time for taking an appeal.</p>

From Hendricks Circuit Court; James L. Clark, Special Judge. Action by James A. Norwood, administrator de bonis non of the estate of Joseph Peggs, deceased, against James A. Craig and others. From a judgment for plaintiff, certain defendants appeal.

<p>From Morgan Circuit Court; Nathan A. Whitaker, Judge.</p> <p>Action by Lillie Ludorff against the Cole Motor Car Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. New Tklal. — Motion.—Joint Specification of Error. — Effect.— An assignment in a motion for new trial that “the court erred in giving instructions numbered one, two, three, four, five and six on its own motion”, is joint as to the instructions named, and all the instructions must be bad in order that it may be available on appeal, p. 133.</p> <p>2. Appeal. — Questions Presented. — Motion for New Trial. — Joint Specification. — Where the specification in the motion for a new trial of error in the giving of instructions was joint, and unavailable because some of the instructions were conceded to be good, an assignment that the verdict is contrary to law predicated on the giving of alleged erroneous instructions, also presents no question, p. 133.</p> <p>3. Sales. — Action for Price. — Recovery of Interest. — Demand.— Evidence. — In an action for the purchase price of corn sold and delivered, evidence showing that following delivery plaintiff called on defendant’s manager for settlement of the account, and that plaintiff on being at variance with the amount conceded by such agent to be due, insisted that payment be made according to her own figures, constituted sufficient proof of demand to entitle her to recovery of interest on the amount due. p. 133.</p> <p>4. Interest. — Recovery.—Unliquidated Claim. — Interest may be recovered on an unliquidated claim under some circumstances, p. 134.</p> <p>5. Sales. — Action for Price. — Recovery of Interest. — A verdict for the selling price of corn plus interest was not subject to the objection that the amount of recovery was too large, on the theory that interest may not be collected on an unliquidated claim, where the amount of the claim rested in mere computation; since under such circumstances the claim was not unliquidated, p. 134.</p> <p>6. Sales. — Action for Price. — Recovery of Interest. — Pleading.— Failure to Demand Interest. — In an action for the price of corn sold and delivered, a verdict for plaintiff including an award of interest will not be disturbed on appeal on the ground that interest was not demanded in the complaint, since the court will deem the complaint to have been amended to conform to the proof under the provisions of §700 Burns 1914, §658 R. S. 1881. p. 134.</p>

<p>From Porter Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by Edwin Bump and otters against Jonas A. MeGrannahan. From a judgment for defendant, the plaintiffs appeal.</p>

<p>1. Master and Servant. — Injuries to Servant. — Defective Handcar. — Assumption of Risk. — Knowledge of Defects. — Complaint.— In an action for injuries to a railroad section hand caused by defective condition of a handcar provided by the company for the transportation of its employes, the mere showing in the complaint that plaintiff had ridden upon the car some distance immediately preceding the accident, did not render the pleading objectionable, since in view of the fact that plaintiff had the right to rely on the presumption that defendant had performed its duty to furnish a safe car for his transportation and that he was not required to make an inspection of the ear before using it, the court could not say as a matter of law that he assumed the risk, in the absence of averments showing that the defects were open and obvious, and that plaintiff had actual knowledge of the defect complained of. p. 150.</p> <p>2. Master and Servant. — Injuries to Servant.■ — Defective Handcar. — Verdict.—Evidence.—In a railroad section hand’s action for injuries from the defective condition of a handcar furnished for the transportation of employes, whereby he was thrown to the ground on the sudden stopping of the ear, a verdict for plaintiff was supported by evidence showing that the defect was such as to cause the car to lurch forward only when the car was brought to a sudden stop, that the occasion of the accident was the first time during the plaintiff’s employment that the car was brought to a sudden stop, that the defect was not open and obvious and had not been noticed by him before, and that the defect had been brought to the notice of the foreman by other employes who had noticed it a few days before the accident, p. 151.</p> <p>3. Trial. — Instructions.—Directing Verdict. — The trial court should not give a peremptory instruction for defendant unless the evidence favorable to the plaintiff, and the reasonable inferences which the jury is permitted to draw therefrom, fail to support one or more of the essential averments of the complaint, p. 151.</p> <p>4. Appeal. — Review.•—Refusal of Instructions. — There was no error in the refusal of instructions in the absence of evidence in the record to justify giving them, nor in the refusal of an instruction which, in so far as it was applicable, was fully covered by instruct tions given, p. 151.</p>

<p>From Johnson Circuit Court; Elba L. Branigin, Judge.</p> <p>Action by Charles W. Hickman against Hannah Parker. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Pleading. — Construction. — Conclusions. — Statutory Provisions. — Section 343a Bums 1914, Acts 1913 p. 850, does not require every conclusion stated in a pleading to be considered and treated as an allegation of the facts necessary to sustain such conclusion, but its application is expressly limited to such conclusions as are necessary to the sufficiency of the pleading, and, aside from conclusions of the latter class, all statements in the pleading not necessary to its sufficiency may be disregarded, p. 167.</p> <p>2. Negligence. — Automobile Collision. — Complaint.—Averments.— Construction. — Motion to Make Specific. — In an action against a corporation for injuries from collision with an automobile belonging to it, the charge in the complaint that defendant negligently operated the automobile, etc., though sufficient to make the pleading good as against demurrer, was the statement of a conclusion involving the further conclusions that the driver of the automobile was defendant’s agent and that as such agent he was at the time acting within the scope of his employment, which rendered the complaint properly subject to a motion to make more specific in that respect, p. 168.</p> <p>3. Master and Servant. — Negligence of Servant. — Liability of Master. — The master is responsible for the acts of his servant done in obedience to the express orders or directions of the master, or in the execution of the master’s business within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done. p. 169.</p> <p>4. Negligence. — Automobiles.—Operation by Employe. — Liability . of Owner. — An automobile is not to be regarded in the same category with dangerous contrivances and agencies, and the owner is not liable to one injured in a collision therewith merely because of such ownership and the fact that the driver was in his employ, if the latter was riding for his own pleasure or profit and not upon the owner’s business, p. 169.</p> <p>5. Negligence. — Automobile Collision. — Liability of Owner. — Master and Servant. — Evidence.—In an action against an automobfie manufacturer for injuries from collision with one of its automobiles, the evidence did not show the relation of master and servant between defendant and the driver of the automobile, even if it were conceded that it was shown that an agent of defendant, with authority to do so, had made an arrangement with such driver whereby the latter was to receive a commission on sales of automobiles made by him, where defendant had no right to manage, direct or control the time, manner or method of making such sales, since the right to in some way manage, direct or control the servant in his work is an essential element of the relation of master and servant; and, such relation not being shown, the refusal to direct a verdict for defendant was error, p. 170.</p>

<p>1. Raileoads. — Injuries to Persons on Premises. — Complaint.— . Sufficiency. — A complaint for injuries to plaintiff by the frightemng of Ms team wMle unloading freight from a ear on defendant’s track, alleging facts to show that plaintiff was rightfully unloading defendant’s car and therefore rightfully on the premises, and averring that the acts of defendant were carelessly and negligently, done, was sufficient against the objection that it did not show a duty owing by defendant to the plaintiff, and did not show that a depression at the side of the approach to the track, into which plaintiff’s wagon was thrown, could have been constructed differently, etc., since, while rightfully on the premises and in going from there to a place of safety, defendant owed plaintiff the duty of exercising such care for his safety and protection from its moving trains as an ordinarily prudent person would exercise under like circumstances, and the averments that the acts of defendant were negligently done amounted to a charge that defendant failed to use due care and also carried with them the idea that there was a way in which such acts could have been carefully done. p. 176.</p> <p>2. Appeal. — Review.—Harmless Error. — Instructions.—Instructions given, and objected to, on the ground that they were not applicable to the evidence under the issues, afforded -appellant no reason to complain, where it appeared they -required more from appellee than was necessary to support his case, and were more favorable to appellant than it was entitled to. p. 177.</p> <p>3. Railroads. — Injuries to Persons on Premises. — Frightening Team. — Duty of Defendant. — Instructions.—In an action for injuries to plaintiff by the operation of defendant’s train so as to frighten 'plaintiff’s team while he was unloading freight from a car, an instruction on the duty owing plaintiff while rightfully on the premises which in effect told the jury that if plaintiff was free from contributory negligence defendant was liable in damages if it ran its train so as to scare his horses, was erroneous in that it imposed liability regardless of the degree of care exercised in running the train, p. 177.</p>

<p>From Carroll Circuit Court; James P. Wason, Judge..</p> <p>Action by Katherine Gasaway and others against the city of Lafayette. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Madison Circuit Court; Charles K. Bagot, Judge.</p> <p>Action by Robert S. Thompson against the Union Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

From Juvenile Court of Marion County (10,481a); Frank J. Lahr, Judge. Prosecution by the State of Indiana against Cecil Parker. From a judgment of conviction, the defendant appeals and applies for a writ of certiorari.

<p>Prom Kosciusko Circuit Court; Francis E. Bowser, Judge.</p> <p>Action by George E. Stouffer against The Chicago, Rock Island and Pacific Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Vanderburgh. County; F. M. Hostetter, Judge.</p> <p>Action by tbe Fidelity and Casualty Company of New York against the Evansville Ice and Storage Company.. From a judgment for plaintiff, tbe defendant appeals.</p>

From Hamilton Circuit Court; Meade Vestal, Judge. Action by the Wainwright Trust Company, administrator de bonis non of the estate of Nancy A.'McDonald, deceased, against John L. .Dulin, receiver for the Hamilton Trust Company of Nobles-ville, Indiana. From a judgment for defendant, the plaintiff appeals.

<p>From Morgan Circuit Court; Nathan A. Whitaker, Judge.</p> <p>Action by James E. Mines and another against Leona Pritchard and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Appeal. — Review.—Instructions.—In an action against an administrator to recover a claim against his decedent’s estate, an instruction that defendant had a right to prove payment without a formal plea of payment, but that the burden of proof was upon him to prove payment if he relied upon it as a defense, was not objectionable on the ground that no burden rested on defendant until plaintiff had made proof of all material allegations of the complaint, in view of an instruction which fully informed the jury as to the burden resting on plaintiff, p. 212.</p> <p>2. Trial. — Instructions.—Duty to Request. — Where a party feels that an instruction by the court lacks certain embellishments or qualifications it is his duty to tender an instruction covering the omissions, p. 212.</p> <p>3. Appeal. — Review.—Refusal of Instructions. — In an action on a claim against a decedent’s estate, there was no error in refusing a requested instruction to the effect that admissions made by decedent prior to his death that he was indebted to plaintiff would not in themselves be sufficient to prove the indebtedness, up. view of another instruction which, when considered with instructions given on the subject of verbal negotiations between plaintiff and decedent, fully covered the matters included in the instruction refused, p. 213.</p> <p>4. Executors and Administrators. — Claims Against Estates.— Witnesses. — Competency of Claimants. — Under §523 Burns 1914, §500 R. S. 1881, a plaintiff in an action against a decedent’s estate is a competent witness on his own behalf concerning matters testified to by witnesses for the estate as to conversations with the claimant and not had in the presence of the decedent, p. 214.</p> <p>5. Appeal. — Evidence.—Weight and Sufficiency. — The court will not weigh the evidence on appeal and will deem it sufficient to uphold the verdict if it supplies reasonable ground for inferring the facts essential to a recovery, p. 214.</p> <p>6. Executors and Administrators. — Action on Claim Against Estate. — Evidence.—Sufficiency.—In an action on a claim against a decedent’s estate, based upon an alleged agreement by decedent to pay interest to plaintiff on an agreed valuation on land conveyed by the plaintiff, where the deeds of conveyance executed by plaintiff were silent a's to the agreement contended for by him, evidence consisting of such deeds, a memorandum by decedent referring to a settlement between himself and plaintiff showing a balance of $48 interest due plaintiff in 1892, together with the testimony of two witnesses that decedent had admitted that he owed plaintiff interest and that plaintiff was to receive 6 per cent on the valuation of each 20-acre tract conveyed, precluded the court on appeal from disturbing the verdict for plaintiff, although there was evidence showing the plaintiff had depended on decedent for years and that no payment of interest had been made during a period of fifteen years, and notwithstanding that plaintiff’s introduction of the deeds in evidence placed upon him the burden of showing the true consideration, pp. 215, 216.</p> <p>7. Evidence. — Admissions.—Parol Evidence. — Verbal admissions should be received as evidence with caution, p. 216.</p>

<p>From Superior Court of Marion County (91,108); Pliny W. Bartholomew, Judge.</p> <p>Action by Howard Griffith against Croel P. Conder. From a judgment for plaintiff, the defendant appeals.</p>

<p>Appeal! — Findings of Juvenile Court. — Form.—Sufficiency.—The statute (§1635 Burns 1914, Acts 1907 p. 221) permits a less formal and technical procedure in the taking of appeals from the juvenile court than is customary in other proceedings; hence special findings from that court, though prefaced by the statement that “the evidence of the State showed the following facts”, followed by findings of fact, including the fact that defendant had invited a boy under the age of sixteen years into his saloon, gave him beer and permitted him to remain therein, were not objectionable as not being findings of facts but merely a statement of what was shown by the evidence on one side and, although the use of the words “evidence of the State” is to be condemned, the findings were sufficient to sustain the conclusion that defendant was guilty of contributing to the delinquency of a boy under the age of sixteen years, in view of the presumption indulged on appeal that the trial court performed its duty to consider all the evidence before it.</p>

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Arthur G. Tullar against the Town of New Carlisle. From a judgment for plaintiff, the defendant appeals.</p>

From Rush Circuit Court; John D. Megee, Judge. Action by William E. Manning, administrator of the estate of Maxie W. Manning, deceased, against the Public Savings Insurance Company. From a judgment for plaintiff, the defendant appeals.

From Hendricks Circuit Court; George W. Brill, Judgé. Action on the filing of exceptions by William E. Head, and others to the final settlement report of James T. Leak, administrator of the estate of William T. Head, deceased. From the judgment rendered, William E. Head and others appeal.

From Randolph. Circuit Court; James S. Engle, Judge. Action by Lena E. Cloud, administratrix of the estate of Charles Cloud; deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.

From Harrison. Circuit Court; William Ridley, Judge. Action by the State of Indiana, on the relation of The Leavenworth State Bank, against The Title Guaranty and Surety Company of Scranton, Pennsylvania, and others. From a judgment for relator, the defendant named appeals.

<p>1. Landlobd and Tenant. — Rights of Tenant. — Knowledge of Prior Lease. — The occupant holding over after the expiration of his term and claiming some new right in the premises by virtue of an alleged oral understanding had with the owner after actual and constructive knowledge that the latter had leased to another, could not successfully maintain such right against the lessee, p. 299.</p> <p>2. Evidence. — Affidavits.—Conclusiveness.—Admissions.—An affidavit filed by the occupant of premises in aid of a motion to dissolve a restraining order against him further holding possession, asserting that his right to occupy the premises after the expiration of the lease was extended to February 1, 1910, was binding upon him as an admission in a subsequent action for forcible entry and detainer, p. 299.</p> <p>3. Foecible Entbt and Detainee. — Statutes.—Construction.— “Or”. — “And”.—The word “or” should be read as “and” in the first relative clause of §8083 Burns 1914, §5237 R. S. 1881, provid-, ing that “any person who shall make unlawful or forcible entry into lands, and shall either peaceably or forcibly detain the same against any person having the right to possession thereof; or any person having peaceably obtained the possession of lands, who shall unlawfully and forcibly keep the same against any person having the right to possession thereof, may be ousted from such premises”, etc. p. 303.</p> <p>4. Foecible Entbt and Detainee. — Statutory Provisions. — Scope. —Only persons having right to possession of the lands involved come within the protection of the forcible entry and detainer statute (§8083 Burns 1914, §5237 R. S. .1881), and under its provisions, the possession can not be changed against the person who actually has it under a claim of right, without the intervention of legal procedure, p. 304.</p> <p>5. Foecible Entbt and Detainee. — What Constitutes. — A forcible entry or a forcible holding is more than a mere trespass, and.to constitute such entry or holding, possession must have been taken or kept either by actual violence or by such show of force as was reasonably calculated to intimidate the rightful owner, p. 305.</p> <p>6. Landlobd and Tenant. — Forcible Entry. — What Constitutes.— Force Required. — While the act of a landlord and his new lessee, on the alleged termination of the lease and right to possession of an occupying subtenant, in entering the premises in the absence of the latter, by prying boards off a trapdoor in the floor over a cellar to which the landlord had access, did not in itself amount to a forcible entry as defined by §8083 Burns 1914, §5237 R. S. 1881, yet such method of entrance, coupled with the fact that it was for the purpose of obtaining possession as against one who was holding under a claim of right, and the further facts that they promptly proceeded to barricade the doors and placed on guard a special policeman bearing the indicia of authority, who protected the premises against reentry until arrested at the instance of the subtenant, who immediately instituted legal proceedings, constituted a forcible entry within the meaning of the statute, p. 306.</p> <p>7. Landloed and Tenant.- — Recovery of Possession. — Process of Law. — The rule that a landlord, entitled to immediate possession • through expiration of the term, may take such possession by force and will incur no civil liability except for excessive force, has no application to cases where such possession is obtained in violation of the forcible entry and detainer statute; and an entrance under circumstances amounting to a forcible entry, though made in reliance on the provision of a lease entitling the landlord to enter, take possession and expel the occupant without in any way being a trespasser, created a liability under §8083 Burns 1914, §5237 R. S. 1881, defining forcible entry and detainer, p. 310.</p>

<p>1. Appeal. — Review. — Refusal of Instructions. — Although a requested instruction stated the law correctly, its refusal was not reversible error in view of another instruction given which fully covered the subject.' pp. 318, 321.</p> <p>2. Watebs and Watebcoubsbs. — Obstruction.—Flooding Lands.— Liability of Railroad. — A railroad company is under a continuing duty to maintain its bridges and abutments so as to do no injury or damage to neighboring property, and a failure in that regard resulting in the obstruction of the natural flow of the water eoneonstitutes actionable negligence, p. 318.</p> <p>3. Evidence. — Presumption.—Repair of Bridge. — There is no legal presumption that a railroad bridge was skilfully and carefully repaired, and that the company did nothing unlawful; but such questions are matters of proof, p. 319.</p> <p>4. Appeal. — Review.—Harmless Error.- — Refusal of Instructions.- — ■ The refusal of an instruction giving a substantially correct definition of a watercourse was harmless, where there was no dispute about the stream involved being a watercourse, p. 319.</p> <p>5. Appeal. — Review.-—Contradictory Instructions. — Damages.—Elements. — A requested instruction that if the rainfall of itself produced the injuries complained of the verdict should be for defendants, even though the alleged obstructions in the stream existed and caused the water to back up over plaintiff’s lands deeper and caused it to remain longer than it would have without the existence of such obstructions, was contradictory within itself and properly refused, since the damage could not have been wholly produced by rainfall if other causes caused the water to remain longer on plaintiff’s land, and the damage would be increased by lengthening the time the water stood on the land. p. 320.</p> <p>6. Watebs and Watercourses. — Obstruction.—Flooding Lands.— Liability. — Unusual Conditions. — A railroad company is not relieved from liability for negligently maintaining a bridge so as to obstruct the flow of water and canse it to back up over nearby lands, on the ground that there was an unusual rainfall, since under §5195 Burns 1914, §3903 R. S. 1881, it is the duty of the company, after building its bridge across a stream, to restore the watercourse to its former state, p. 321.</p> <p>7. Appeal. — Review.—Instructions.—Submitting Interrogatories to Jury. — An instruction advising the jury that interrogatories would be submitted and that the jury might first determine its general verdict, or, if preferable, it could answer the interrogatories first, or that it could consider the verdict and interrogatories at the same time, etc., was harmless in view of the record, although under §562 Burns 1914, §536 R. S. 1881, there is no necessity for answering interrogatories where no general verdict is reached, p. 321.</p> <p>8. Trial. — Interrogatories to Jury. — The practice of submitting a large number of interrogatories to the jury, containing many inconsequential questions calculated to have no other effect than to confuse and mystify the jury, should not be permitted, p. 323.</p> <p>9. Waters and Watercourses. — Obstruction.—Railroad Bridges.-— Railroad companies are guilty of actionable negligence if they construct and maintain their bridges or embankments or trestles in such manner as to obstruct a watercourse, and are also liable if they obstruct a waterway with stones, piling or debris of any kind, or if they negligently permit drift to accumulate about their bridges or piling to the injury of adjoining property, p. 323.</p> <p>10. Waters and Watercourses. — Railroad Bridges.- — Construction. — In the construction of a bridge across a stream, it is the duty of a railroad company to exercise at least a reasonable degree of care and prudence, taking into consideration the laws of hydraulics, the natural formation of the country, the character of the stream and its history, so as to guard against injuries which may reasonably be anticipated, p. 324.</p> <p>11. Negligence.' — Pleading.—Proof.—If several acts are charged as combining to bring about an injury, all of such acts must be proven in order to sustain a recovery, p. 324.</p>

<p>From Elkhart Superior Court; James L. Harman, Judge.</p> <p>Action by Samuel E. Mast against Borneman & Sons. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Frank Hill against The Chicago, Indianapolis and Louisville Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Assignment of Eirors.- — -Demurrer to Supplemental Complaint. — An assignment of error in' overruling a demurrer to a supplemental complaint presents no question for review, p. 339.</p> <p>2. Appeal. — Review.—Harmless Error. — Supplemental Complaint.— Demurrer. — Even if the action of the trial court in permitting the filing of a supplemental complaint, and in overruling a demurrer thereto, was erroneous, it was harmless in view of the fact that verdict and judgment were upon a second or additional paragraph of complaint, p. 339.</p> <p>3. Appeal.' — Review.—Amendments Pending Trial. — A judgment on a verdict directed on a second or additional paragraph of complaint, which plaintiff was permitted to file at the close of the evidence, will not be reversed for alleged error in allowing such amendment, where the record discloses that defendant merely objected and made no showing that he was prejudiced thereby, since it must be presumed that the amendment was permitted to conform to the evidence, p. 339.</p> <p>4. Appeal. — Questions Reviewable. — Ruling on Demurrer. — Record. ■ — No question is presented on the overruling of a demurrer where such demurrer is not in the record, p. 341.</p> <p>5. Appeal. — -Questions Reviewable. — Directing Verdict. — Record.— A consideration of the correctness of an instruction directing a verdict for plaintiff Requires an examination of both the issues and the evidence; hence, the question of alleged error in the giving of such an instruction was not properly before the court, where neither the evidence, nor the defendant’s answer to the paragraph of complaint on which the verdict rested, was in the record, p. 341.</p> <p>6. Exceptions, Bill op. — Time for Filing. — “Reextension”.— Under §661 Burns 1914, Acts 1911 p. 193, providing for the extension of time for filing a bill of exceptions, the granting of time beyond the term is in fact .one extension of the time, and the word “reextension” as used in the statute applies to and is limited to the first extension obtained as after the extension beyond the term; hence a bill of exceptions not filed within the time as thus limited is not a part of the record on appeal, p. 342.</p>

<p>1. Corporations. — Insurance.—Board of Managers. — Exercise of Power. — Contract.—Where the by-laws of an insurance company provided for a board of managers consisting of three members to be appointed by the directors, that the powers conferred should be exercised by them jointly, and that the majority voice of the managers should prevail in all things, the provisions of a contract executed pursuant thereto between the company and the persons designated as managers must be deemed to have contemplated joint action after consultation, and as conferring authority to act only as a board, so that the withdrawal of a majority of the members destroyed the existence of the board and the remaining member was unable to exercise its powers, pp. 354, 355.</p> <p>2. Corporations. — Insurance.—Articles.—Unnecessary Provisions. —A provision in the articles of incorporation of an insurance company organized under §4739 et seq. Burns 1914, Acts 1897 p. 318, creating a board of general managers consisting of- three members to be appointed by the directors, was not required by the statute, and could have no greater force or effect than as a by-law. p. 355.</p> <p>3. Corporations. — Insurance.—Board of Managers. — Contract.— Termination. — Where a contract between a life insurance company and three persons designated as a board of managers was entered into by the company because each member of such board was understood to be an expert in a field pertaining to life insurance distinct from that in which the others were understood to be efficient, so that a combination of such skill and knowledge would thereby be procured, such contract was terminated by the retirement of two of such persons, since it was impossible for the company to thereafter receive the benefit of the skill and knowledge contemplated, p. 356.</p> <p>4. Corporations. — Insurance.—Contract with Managers. — Rescission for Fraud. — False and fraudulent representations of three of the organizers of an insurance company, who were also members of its board of directors, that they had procured the requisite applications to entitle the company to be incorporated, being one of the potent factors in inducing the board of directors to execute a contract naming them as the board of managers justified the directors in rescinding the contract on ascertaining the facts, p. 357.</p> <p>5. Corporations. — Directors. — Delegating Powers. — Although a board of directors may for the term of its existence delegate its powers involving discretion to a board of managers, it can not do so beyond recall for a period extending long beyond such term, p. 357.</p>

From Miami Circuit Court; Joseph N. Tillett, Judge. Action by the State, of Indiana, on the relation of the Peru Trust Company, administrator de bonis non of the estate. of Fred M. Perry, deceased, against the Miama County Bank and others. From a judgment for plaintiff, the defendant named appeals.

<p>1. Master and Servant. — Employer’s Liability Act. — Railroad Employes. — The Employer’s Liability Act of March 4, 1893 (§8017 Burns 1914, Acts 1893 p. 294), applies only to that class of railroad employes whose duties expose them to peculiar hazards incident to the use and operation of railroad engines and trains, and whose injuries are caused thereby; hence an employe of a railroad company engaged to break coal at a dock, and who was injured in the course of his employment by the falling of the door of a standing dump coal car which was being unloaded, was not within the provisions of the act. p. 378.</p> <p>2. Master'and Servant. — Injuries to Railroad Employe. — Complaint. — Sufficiency.—A complaint for injuries to an employe of a railroad company though claimed to state a cause of action under §8017 Burns 1914, Acts 1893 p. 294, is sufficient on demurrer if it states a cause of action either under the statute or at common-law. p. 381.</p> <p>3. Master and Servant. — Injuries to Servant.- — Complaint.—Causal Connection. — -A complaint for injuries to a servant, to be good as a common-law action must show a causal connection between the negligence charged and the injury complained of. p. 381.</p> <p>4. Master and Servant. — Injuries to Servant. — Unsafe Appliances. —Complaint.—Knowledge of Defect. — A complaint to enforce the master’s common-law liability for injuries to a servant, and based on the master’s neglect with respect to safe appliances, or a safe place to work, must aver knowledge, actual or constructive, on the part of the master and want of knowledge on the part of the injured servant: p. 381.</p> <p>5. Master and Servant. — Injuries to Servant. — Assumption of Risk. — As a general rule under the common law, the servant assumes the risk of defects or dangers of which he has knowledge or of which he could have had knowledgeby the exercise of ordinary care. p. 381.</p> <p>6. Master and Servant. — Injuries to Servant. — Fellow Servant. — • Complaint. — Under the common law, in a servant’s action for personal injuries caused by the negligence of another in the employ of the common master, the complaint must show affirmatively that the negligent employe was not the fellow servant of plaintiff and it must appear that he was in the discharge of a duty which the master owed to plaintiff, p. 382.</p>

<p>■ 1. Judgment. — Revival.—Execution.—Under §717 Burns 1914, §675 R. S. 1881, providing that after-the lapse of ten years from the entry of judgment, or the issuing of an execution, an execution can be issued only upon leave of court, upon motion, upon ten days’ personal notice to the adverse party, etc., it is not contemplated that the proceeding shall be commenced by a pleading in the nature of a complaint, but simply by a motion to be heard by the court in a summary way. p. 386.</p> <p>2. Appeal. — Revival of Judgment. — Assignment of Errors. — A motion for execution upon a judgment after the lapse of ten years can not be made the basis for an assignment of errors challenging its sufficiency for want of facts. • p. 387.</p> <p>3. Appeal. — Assignment of Errors. — Joint Assignments. — A joint assignment of errors, to present any question, must be founded upon a ruling against all of the appellants, and of which all of them have a right to complain, p. 387.</p>

<p>From Miami Circuit Court; Joseph N. Tillett, Special Judge.</p> <p>Action by Willis C. Lamm against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant' appeals.</p>

<p>From Superior Court of Marion County (90,918); Pliny W. Bartholomew, Judge.</p> <p>Action by the Continental Insurance Company against George D. Smith, and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Marion Circuit Court (21,075); Charles Remster, Judge.</p> <p>Action by John B. Simmons against Clint Parker and others. From the judgment rendered, the plaintiff appeals.</p>

From Marshall Circuit Court; Harry Bernetha, Judge. Action by Err Biddinger, administrator of the estate of Minnie M. Biddinger, deceased, against the Chicago and Erie Railroad Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Appeal. — Record.—Transcript.—Identity of Pleadings. — On appeal from the judgment of a circuit court to which the cause had been taken on a change of venue, where the transcript did not show by any caption, statement or certificate of the clerk of the court from which the venue was taken that the original pleadings and papers on file in that court were transferred to the court to which the venue was taken, but it did appear from what purported to be the certificate of such clerk that a “full, true and complete copy of all the order book entries showing the proceedings” was transmitted to the latter court, and that certain pleadings were transmitted, and the transcript on appeal bore the certificate of the clerk of the court from which the appeal was taken showing that it embraced a full, true and correct copy of all pleadings, papers, documents and record filed or placed on file, as requested by the precipe, the appellant would not be heard to say that the pleadings copied in the transcript were not the pleadings on which the case was tried, but the court could not know that such pleadings were the identical pleadings challenged by demurrer in the court from which the venue was taken, and could not pass upon assignments of error relating to their sufficiency, pp. 443, 444.</p> <p>2. Appeal. — Precipe.—Sufficiency.—A precipe calling for a transcript of all pleadings, papers, documents and records filed or placed on file in the cause, together with all and singular the papers, pleadings, documents and proceedings and order book entries made and filed in the cause in the court of another county from which the venue was changed, was sufficient, p. 443.</p> <p>3. Appeal. — Waiver of Error. — Briefs.—Alleged error is waived by appellant’s failure to present same in its brief, p. 445.</p> <p>4. Appeal. — Transcript.—Precipe.—Where the first part of the precipe was general and broad enough to include all the instructions, specific directions not in conflict therewith, but which did not call for certain instructions, did not operate to exclude any of the instructions, all of which were copied in the transcript, p. 445.</p> <p>5. Licenses. — Rights of Unlicensed ■Persons. — Contracts.—-Where a statute forbids the carrying on of any business without first procuring a license, paying a tax, inspection, registration, complying with prescribed tests, or the like, contracts relating thereto made by persons in carrying on such business are void, though the statute contains no express provision to that effect, p. 447.</p> <p>6. Licenses. — Authority to Conduct Business.- — -Presumption and Burden of Proof. — Where a statute fixes certain requirements as conditions precedent, to the right to carry on a certain business, or to the performance of certain acts, and fixes a penalty for noncompliance therewith, the party who seeks to enforce a right dependent upon such law has the burden of showing compliance therewith and may not rely upon the presumption that the requirements of the law have been satisfied, p. 448.</p> <p>7. Bills and Notes. — Burden of Proof. — Consideration.—Where want of consideration is pleaded by the maker of a promissory note as a defense to the suit of an indorsee of such note, the burden is on the defendant to prove such defense by a fair preponderance of the evidence bearing on that question, p. 448.</p> <p>8. Bills and Notes. — Burden of Proof. — Fraud or Illegality.— Where fraud or illegality in the execution or procurement of a pote is set up as a defense to the suit of an indorsee, the burden is on the plaintiff to show his protection from such defense as a good faith purchaser for value before maturity of the note. p. 448.</p> <p>9. Bills and Notes. — Indorsement.—Rights of Purchasers.— Though a good faith purchaser for value before maturity of a negotiable promissory note, fair and regular on its face, payable at a bank in this State, is protected from defenses that might be available against the original payee, one dealing in commercial paper is required to use reasonable diligence and to take cognizance of any fact or circumstance that is reasonably calculated to excite the suspicion of a reasonably cautious person, and if the facts or circumstances are such as to put a reasonably cautious person on inquiry, he can not refrain from such inquiry and occupy the position of a good faith purchaser, p. 449.</p> <p>10. Bills and Notes. — Action by Indorsee. — Sufficiency of Evidence. —Notice.—Notice to an indorsee of a promissory note of facts or circumstances to put him on inquiry may be shown by a fair preponderance of the evidence bearing on such issue, p. 449.</p> <p>11. Appeal. — Review.—Refusal of Instructions. — Where the instructions given fully and accurately stated the law, there was no error in the refusal of requested instruetibhs fully covered thereby or which were misstatements of the law. p. 451.</p> <p>12. Appeal. — Review.—Evidence.—Sufficiency.—In an indorsee’s action on a promissory note, defended on the ground that plaintiff was not a good faith purchaser for value before maturity, the verdict, being supported by evidence warranting the inference of every fact essential to the defense, was conclusive, p. 451.</p> <p>13. .Appeal. — Verdict.—Conclusiveness.—Where different inferences may be reasonably drawn from the evidence and the jury has drawn the inferences necessary to support the verdict, the judgment will not be reversed on the ground of insufficient evidence, p. 452.</p> <p>14. Witnesses. — Competency.—Conversation with Decedent.- — In an indorsee’s action on a note, purchased from the estate of the payee, who was dead, under circumstances exempting the estate from liability, the defendant was competent to testify to a conversation with decedent appertaining to the sale of merchandise for which the note was given, p. 452.</p>

From Martin Circuit Court; James W. Ogdon, Judge. Action by Daniel A. Baker, administrator of tbe estate of Pboeba Baker, deceased, against tbe Baltimore and Ohio Southwestern Railroad Company. From a judgment for defendant, the plaintiff appeals.

<p>From Rush Circuit Court; John D. Megee, Judge.</p> <p>Action by John F. Kirk against Samuel H. Trabue and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Damages. — Liquidated or Penalty. — Construction.—Intent.—The provisions of a contract relating to the damages that may result from its breach are to be interpreted so as to carry out the intent of the parties when they executed the instrument, p. 474.</p> <p>2. Damages. — Liquidated.—Stipulation Controlling. — Where it appears from the whole instrument that the parties knowingly mutually agreed in advance upon a definite amount to be paid in case of a breach or repudiation of the contract, such agreement will control unless it is inconsistent with other provisions of the contract, or is unreasonable or unconscionable in view of the probable damages that may result from a breach, p. 475.</p> <p>3. Damages. — Liquidated or Penalty. — Words Used. — In determining the question of whether a contract provides for the payment of liquidated damages in ease of its breach, or a penalty merely, the use of particular words or phrases, such as “damages”, “penalty”, “forfeit”, “liquidated damages”, and the like is not conclusive, but the words or phrases used are to be considered in connection with the other provisions of the contract, p. 475.</p> <p>4. Damages. — Liquidated.—Enforcement.—Where the parties have deemed it difficult to determine the actual damages in case of a breach of their contract, or for some other reason satisfactory to them and mutually understood at the time, have deemed it advisable to agree upon a sum, in advance of such possible breach, as liquidated, ’and have advisedly so stipulated in the contract, the courts will respect and enforce such stipulations, p. 475.</p> <p>5. Damages. — Liquidated or Penalty. — Any of Several Acts. — Where an agreement contains provisions for the performance or nonperformance of several acts of different degrees of importance, and provides for the payment of a definite sum upon a violation of any or all of such provisions, and the sum stipulated would be in some instances too large' and in others too small a compensation for the loss of injury sustained, the stipulated amount will be regarded as a penalty and not as liquidated damages, p. 475.</p> <p>6. Damages. — Liquidated or Penalty. — Doubt.—Where the contract leaves the question in doubt, the amount stipulated to be paid in case of a breach will generally be construed as a penalty rather than as liquidated damages, since the party may still recover the actual damages sustained by the breach, p. 475.</p> <p>7. Damages. — Penalty.—Breach of Contract. — Where a contract for the exchange of mercantile stock for real estate provided for the doing of numerous things of varying importance, such as the furnishing of an abstract in five days, the exchange of insurance, the assignment of a lease, the delivery of the deeds within a specified time, etc., the provision that “both parties further agree that should either one fail to comply with the conditions herein he will pay the other $3,000 in damages”, was subject to the interpretation that failure to comply with any one of the requirements would subject the defaulting party to the payment of damages, or at least was not free from doubt as to whether it was intended to fix the amount of damages only in case of a total failure to close the deal in substantial compliance with the contract, and hence must be deemed as providing a penalty rather than liquidated damages, p. 476.</p> <p>8. Damages. — Breach of Contract. — Complaint.—A complaint for breach of contract providing a penalty of $3,000 for its breach, alleging the several obligations of the contracting parties and averring that defendant has failed and refused to comply, to plaintiff’s damage in the sum of $3,000, was not insufficient as the statement of a cause of action for actual damages, although it also stated facts that would have been sufficient for a recovery on the theory of liquidated damages, had the contract so provided, p. 477.</p> <p>9. Pleading. — Complaint.—Demurrer.—Where the facts stated in a complaint are sufficient to entitle plaintiff to any substantial relief it is not subject to demurrer, p. 478.</p>

<p>1. Teial. — Directing Verdict. — The direction of a verdict for defendant is not proper unless there is‘a total absence of evidence upon some issue or fact essential to recovery by plaintiff, or unless the evidence is without conflict and, when considered in its entirety, with all reasonable and legitimate inferences which the jury may properly draw therefrom, is susceptible of no other inference than that necessitating the directing of the verdict, p. 483.</p> <p>2. Instjeance. — Forfeitures.—Forfeitures of right to insurance are not favored in the law, and will be enforced only where there is the clearest evidence that such was the intention of the parties, p. 489.</p> <p>3. ' Instjeance. — Forfeiture.—Estoppel.—Where an insurance company, by its course of dealings with the insured and others known to the insured, has induced the belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted on, the company will not be allowed to set up such forfeiture, p. 489.</p> <p>4. Instjeance.- — Forfeiture.-—-Estoppel.—Time of Paying Premiums. —Where an insurer by any agreement, either exgpress or implied from its acts and conduct, causes the insured to honestly believe that it will receive the premiums after the time fixed in the policy and keep the policy alive, it is thereby estopped from asserting a forfeiture provided in the policy for failure to pay at the specified time, on account of a delay in payment induced by such agreement and the premiums paid and received in accord therewith, p. 490.</p> <p>5. Instjeance. — Forfeiture.—Estoppel.—Power of Agent. — Extending Time of Paying Premiums. — Under the rule that a principal is charged with any act or contract of the agent within, the general scope of his apparent authority, the agent of an insurance company having authority to accept payment of premiums and issue renewal receipts, thereby in effect extending or renewing the policy for the period covered by the renewal receipt, necessarily has authority to extend the time of payment of such renewal premiums, notwithstanding a stipulation in the policy to the contrary, so as to estop the company from asserting a forfeiture grounded on a failure to pay at the time provided in the policy, induced by the acts and conduct of such agent, pp. 492, 495.</p> <p>6. Insurance. — Provisions of Policy.- — -Waiver.—The express provisions in a policy of insurance that no agent has authority to change the policy or waive any of its provisions, may be waived by an agent of the company acting within his actual or apparent authority, p. 493.</p> <p>7. Insurance.' — -Knowledge of Agent.- — The knowledge of an insurance agent acquired while acting for his company in connection with a matter in which he is authorized to act, will be imputed to the company, pp. 494, 495.</p> <p>8. Insurance. — Renewal Premiums. — Extending Time of Payment. ■ — -Injury Before Payment. — The fact that payment for the monthly renewal premium was made after the insured was injured did not destroy his right to make it under an arrangement with the agent, pursuant to which he had for a long time been acting, that payments might be made at any time before the tenth of the month, especially in the absence of any evidence of collusion or fraud between'them, or that he had before the injury determined that he would make no more payments, p. 498.</p> <p>9. Insurance. — Renewal Premiums. — Condition of Receipt.- — Jury Question. — Whether insured’s renewal premiums were received, and his insurance continued, under a clause of the policy providing for temporary suspension of liability if such premium was not paid at a specified time, or whether they were paid and received under an arrangement waiving strict compliance with the policy as to time of such payments, is a question for the jury; the evidence thereon not being undisputed, p. 498.</p>

<p>From Fountain Circuit Court; I. E. Schoonover, Judge.</p> <p>Action by Oliver S. Jones against Pearl Chandler and others. From the judgment rendered, the plaintiff appeals.</p>

<p>From Hancock Circuit Court; Earl Sample, Judge.</p> <p>Action by John Laufer against Matilda Laufer. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Samuel H. Grim against Eva A. Johns and another. From a judgment for defendants, the plaintiff appeals.</p>

From St. Joseph Superior Court; George Ford, Judge. Proceedings in the matter of resisting the probate of the last will of. La vina Almaek, deceased. From a judgment setting aside the probate, Harley F. Matson appeals and makes application for a writ of supersedeas.

<p>From Howard Circuit Court; William C. Purdum, Judge.</p> <p>Action by tbe Western Brass Manufacturing Company against tbe Haynes Automobile Company. From tbe judgment rendered, tbe plaintiff appeals.</p>

From Lake Superior Court; Virgil S. Reiter, Judge. Action by Mildred Stiglitz against Nathan Migatz, executor of the last will and testament of William Stiglitz, deceased. From a judgment for defendant, the plaintiff appeals.

<p>1. Frauds, Statute of. — Requirement of Writing. — Compliance.— Generally a contract required by law to be in writing must be' wholly so in order to be enforceable as a written contract, since a a contract partly in writing and partly in parol is a parol contract. p. 539.</p> <p>2. Contracts. — Commissions.—Sales of Real Estate. — In an action by one seeking the collection of commission for services rendered against the owner of real estate disposed of, plaintiff must show a substantial compliance with the statute requiring the contract to be in wilting in order to recover, p. 539.</p> <p>3. Contracts. — Commissions.—Sales of Real Estate. — Statutes.— While the manifest purpose of the statute (§7463 Burns 1908, Acts 1901 p. 104) requiring contracts for the payment of commissions for the sale of real estate to be in writing was to protect owners of real estate against imposition and fraud on the part of real estate agents, it was not intended to enable the landowner to commit fraud or imposition upon the agent; and hence, while the statute must be substantially complied with, its operation should not be extended further than necessary to.make its spirit and purpose effective, p. 534.</p> <p>4. Contracts. — Matter Implied. — ^Whatever may be fairly implied from the terms or nature of an instrument is, in the judgment of law, contained in the instrument and is as much a part thereof as that which is expressed, p. 540.</p> <p>5. Contracts. — Commissions.—Sales of Real Estates — Statutes.— Under §7463 Burns 1908, Acts 1901 p. 104, requiring contracts for the payment of commissions for the sale of real estate to be in writing, a contract to pay brokers two per cent of cash or property received in trade for a farm, was enforceable against the owner of such farm, who had declined to convey after a purchaser had been procured, although the exact amount of the commission could not be ascertained without the aid of parol evidence, since the reception of such parol evidence would be merely explanatory to aid the court in applying the contract to the subject-matter, and could not be deemed as supplying any essential part of the contract, p. 540.</p>

<p>From Lake Superior Court; Virgil S. Reiter, Judge.</p> <p>Action by Mike Kaput against the Hammond, Whiting and East Chicago Railway Company. From a judgnent for plaintiff, the defendant appeals.</p>

<p>1. Quieting Title. — Actions.—Burden of Proof. — The plaintiff in an action to quiet title has the burden to prove that it had title when the action was commenced and such burden is not discharged by proof that defendant has no title, p. 574.</p> <p>2. Public Lands. — Title to Public Lands. — The question of whether the title to lands belonging to the United States has passed from the government must be determined by the laws of the United States, p. 575.</p> <p>3. Public Lands. — Swamp Lands. — Title of State. — Title by the State to reclaimed lands without the meander lines described in the patent of the United States conveying swamp lands to the State, can not be supported on the theory that if marsh lands or non-navigable waters are included within the meander line of a government survey on which fractional lots abut, such marsh land or water inside the meander line will be considered to have been surveyed and the lines of the survey extended or protracted across the meandered territory so as to embrace a full subdivision so partially surveyed, and that hence a patentee of the government of such subdivisions or lots takes of the unsurveyed territory an amount sufficient to complete his subdivision, p. 576.</p> <p>4. Waters and Watercourses. — Riparian Owners. — Boundaries.— Swamp Lands. — A conveyance of land bounded by a nonnavigable stream carries with it the bed of the stream to the center, unless a contrary intention is manifest; but where land conveyed is described by a meander line run between such land and unsurveyed marsh or submerged land lying next to the stream, the title of the purchaser is limited to the land included within the survey, p. 581.</p> <p>5. . Public Lands. — Swamp Lands. — Acquisition of Title by State.- — ■ A patent or at least a selection of land surveyed and the approval of such selection by the Secretary of the Interior, is a necessary prerequisite to the State’s acquisition of title to lands under the Federal Swamp Land Act. p. 582.</p> <p>6. Public Lands. — Patents.—Construction.—A patent usually conveys only land which has been surveyed, though in the case of patents issued under the Federal Swamp Land Act, where the land surveyed consists of fractional subdivisions or lots abutting unsurveyed submerged lands or marsh, the rule seems to be that the question of whether title to the unsurveyed territory passed from the United States by virtue of a patent of the surveyed land is dependent on the law of the State where the land is located, p. 583.</p> <p>7. Boundaries.— Surveys.— Natural Monuments. — Natural monuments will prevail as against other calls in survey, p. 587.</p> <p>8. Waters and Watercourses. — Boundaries.—Meander Lines. — ■ As a general rule meander lines run in surveying fractional portions of the public lands along streams are merely for the purpose of defining the sinuosity of the banks and for ascertaining the quantity of land subject to sale, and are not to be considered as boundaries unless it appears that such was the intention of the parties to the instrument of conveyance, pp. 587,588.</p> <p>9. Public Lands. — Surveys.—Construction.—Under the second section of the Act of Congress of 1796, providing that navigable rivers shall not be included in public surveys, though the question whether a given river is to be included in a survey is within the discretion of the surveyor, his decision is not conclusive, p. 588.</p> <p>10. Public Lands. — Swamp Lands. — Title of State. — Extent.— In view of the language of the Federal Swamp Land Act of 1850, and of the patents issued thereunder by the United States to the State, as well as of the plat describing the sections as abutting on a meander line purporting to be that of the Kankakee, a non-navigable river, rather than a boundary line between surveyed land, and unsurveyed submerged territory, all of which evidences the intention of the federal government to cede all the unsold swamp land in the State, the State acquired title to such unsurveyed submerged territory either by virtue of such patents, or under the doctrine of riparian ownership; the method of acquisition being dependent upon whether submerged land was considered as swamp land or as a portion of Kankakee River, p. 588.</p> <p>11. Public Lands. — Swamp Lands. — State Patents. — Scope of Conveyances. — Though the State acquired title to unsurveyed territory or marsh along the Kankakee River from the United States, It did not, in conveying to individuals under patents describing the land . as described in the plats and patents of the United States, part with title to such submerged land, since such grants were made pursuant to the State Swamp Land Act of 1852 (1 Rev. Stat. 1876 p. 952), providing for the platting of swamp lands and their sale at a stipulated sum per acre, and that the proceeds were to be used in paying for the sale of the lands, etc., and the grants, being statutory, are to be construed in view of the purposes and intention disclosed by such act. pp. 592, 594, 597, 604, 607.</p> <p>12. Waters and Watercourses. — Meander Lines. — Boundaries.—■ In determining whether the meander line of a stream should be regarded as a boundary beyond which a grantee may not claim title, the intention of the parties to the instrument, as gathered from the instrument itself, or if the instrument is ambiguous, as gathered in the light of facts and circumstances existing at the time the instrument was prepared, should always have an important if not a controlling influence, p. 592.</p> <p>13. Boundaries. — Surveys.—Natural Monuments. — The influential reason for the rule favoring natural monuments over other calls in a survey, rests oh the presumed intention of the parties to convey the lands actually surveyed, and the presumption that natural monuments are less likely to be mistaken than other calls, and include and bound the lands so'Surveyed; but where the reason for the rule does not exist, the rule itself ceases, p. 593.</p> <p>14. Public Lands. — Patents.—Construction.—In interpreting a patent all contained in the patent must be considered, and the identity of the land ascertained by. reasonable construction thereof, rejecting if necessary any erroneous call, and especially is this true where the survey was not actually run on the ground, pp.597, 604, 607.</p> <p>15. Boundaries. — Riparian Rights. — Meander Lines. — The doctrine of riparian ownership applies only where the watercourse is in fact the boundary of the lands to which the doctrine is sought to be applied, and where there is uncertainty as to whether the meander line or the watercourse was intended as the boundary, in determining such question reference must be had to the conveyance to the party claiming the application of such doctrine and to the time of such conveyance, and not to a remote time or conveyance, p. 602.</p> <p>16. Public Lands. — Swamp Lands. — Sale by State. — Authority of Officers. — The officers of the State authorized to act for the State in the sale of its swamp lands, were as effectively bound and limited in their authority by the act of the legislature, as an agent of an individual would be, acting under the same express authority in writing, and persons purchasing through the agents of the State were charged with knowledge of the authority under which such agents acted, p. 606.</p> <p>17. Courts. — Appellate Court. — Following Decisions of Supreme Court. — Although a cause in the Appellate Court involves questions as to which there is apparent conflict in the decided cases of the Supreme Court, where the principle on which the opinion must be based has been given recognition in both the earlier and later of those decisions, as well as in those of the United States Supreme Court, the Appellate Court is not deprived of jurisdiction under §1394 Burns 1914, Acts 1901 p. 565, but may follow those cases which it may deem to be supported by the better reason and authority, p. 607.</p>

<p>1. Trial. — Instructions.—Peremptory Instruction.- — In considering a motion for a peremptory instruction the court should accept as true all facts which the evidence tends to prove, and draw against the one asking the instruction all reasonable inferences which the jury might properly draw, and, in ease of conflict in the evidence, consider that evidence and those inferences which are favorable to the party haying the burden of proof, p. 610.</p> <p>2. Bills and Notes. — Action.—Burden of Proof.- — In an action on • a note, defended on the ground of want of consideration, and that plaintiff was not a bona fide holder without notice, the burden was on defendant to make out his defense after plaintiff had produced ’ in evidence the written instruments involved and a stipulation as to the amount of attorney fees in the event of a recovery, p. 610.</p> <p>3. Bills and Notes.— Defenses. — Want of Consideration. — Evidence to establish a defense of want of consideration is irrelevant as to the indorsees of a note, unless it is made to appear that they had notice, or notice of facts sufficient to place them on inquiry. p. 610.</p> <p>4. Bills and Notes. — Action.—Notice.—The mere endorsement of . a note without recourse is not of itself sufficient to put the purchaser on inquiry, p. 611.</p> <p>5. Bills and Notes. — Bona Fide Purchaser. — Notice.—The mere fact that the endorsee of a note objected to endorsement without recourse until he learned that the maker was perfectly solvent does not show that he had constructive notice of any defect in the endorser’s title, p. 612.</p> <p>6. Bills and Notes. — Bona Fide Purchaser. — Suspicion.—Circumstances calculated to awaken suspicion merely are not sufficient to show that the purchaser of a note was not a bona fide purchaser without notice, but they must be such as to irresistibly lead to the conclusion that he had notice, p. 613.</p> <p>7. Appeal. — Review.—Peremptory Instruction. — Where appellee’s evidence was sufficient to warrant the recovery granted him, and there was no evidence which controverted it in any essential, the court was fully justified in giving a peremptory instruction for plaintiff. p. 613.</p>

<p>1. Appeal. — -Assignment of Errors. — Sufficiency.—An. assignment of error “in overruling appellant’s objections and exceptions”, is too indefinite and uncertain to present any question, p. 616.</p> <p>2. Appeal. — Record.—Questions Presented for Review. — Exceptions. —On appeal from a judgment confirming the report of commissioners in partition, the ruling of the court on exceptions to the report may be properly assigned as independent error if the alleged error appears upon the face of the proceedings; but if questions of fact are involved in the determination of the ultimate ruling or decision upon such exceptions, and are tried by the court as other questions of fact are tried, the questions arising upon such trial must be presented on appeal through the medium of a motion for a new trial, p. 616.</p> <p>3. Partition. — Report of Commissioners. — Review.—Objection of plaintiff in partition that the commissioners considered only eighty acres while the tract actually contained 82.4 acres, was unavailable, where it was apparent not only from the original report con-</p> <p>t sidered in connection with the order of the trial court, but from the subsequent report as well, that the commissioners considered twenty-four acres set off to plaintiff as two-sevenths in value of the whole tract being exactly the interest he-claimed by the allegations of his complaint, p. 617.</p> <p>4. Partition. — Report of Commissioners. — Description.—On appeal from a judgment confirming the report of commissioners in partition, appellee’s objection that the court made the description more definite than that contained in the report is not tenable, where the matter pointed out goes only to details and in no sense changes the meaning of the report, p. 618.</p> <p>5. Partition. — Attorneys’ Fees. — In a partition proceeding in which both sides are represented by attorneys, the trial court may in its discretion deny the request of plaintiff to allow fees to be paid to his attorney as a part of the costs of the suit. p. 619.</p>

<p>Appeal. — Term Time Appeal. — Failure to Perfect. — Dismissal.— Where no time was asked or granted to appellant by tbe trial court in which to file his appeal bond beyond the term, the filing of What purported to be an appeal bond in vacation in the clerk’s office and taking no further action thereon other than to copy the same into the transcript was not a compliance with the statute ■ in reference to a term time appeal, and the appeal not having been thereafter perfected as a vacation appeal, a dismissal was re- - quired.</p>

<p>From Superior Court of Marion County (91,872); Clarence E. Weir, Judge.</p> <p>Action by John Kephert against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

From Miami Circuit Court; Joseph N. Tillett, Judge. Action by the State of Indiana, on the relation of Peru Trust Company, Guardian, against the Miami County Bank and others. From the judgment rendered, the defendant named appeals.

<p>1. Corporations. — Sale of Stock. — Rescission.—Fraud.—A sale induced by fraud is not void, but voidable; hence, where plaintiff was induced by fraud to purchase stock in an oil company, the purchase money could not be recovered until rescission and tender of return of the stock in case it was of any value, p. 635.</p> <p>2. Banks and Banking. — Deposits.—Payment.—■Notice.—Where plaintiff, who was induced through fraud to purchase stock in an oil company, paid for same by check drawn on his general deposit in defendant bank, and the seller, after depositing the check to his account, drew part of the funds and had the bank certify a ■cheek for the remainder, the bank was not liable to plaintiff for having honored the seller’s check after notice from plaintiff not to do so, since in the absence of a prior rescission of the stock transaction, the title to the check given by plaintiff and the proceeds thereof passed to the seller and under the circumstances the bank would have been liable to him in case of its refusal to honor his check, p. 636.</p>

From tlie St. Joseph. Circuit Court; Walter A. Funk, Judge. Action by Susana Wenger and others against Clay Township of St. Joseph County and others. From a judgment for defendants, the plaintiffs appeal.

<p>From Superior Court of Tippecanoe County; Henry H. Vinton, Judge.</p> <p>Action by the Acme White Lead and Color Works against the Indiana Wagon Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Morgan Circuit Court; Nathan A. Whitaker, Judge.</p> <p>Action by Hetherington & Berner against George T. Fish and others. From a judgment for plaintiff, the defendants appeal.</p>

From Sullivan Circuit Court; William H. Bridwell, Judge. Action by Emma Alsopp, administratrix of the estate of Aaron Alsopp, deceased, against the Vandalia Coal Company. From a judgment for the plaintiff, the defendant appeals.

<p>From Marion Circuit Court (17,476); Charles Remster, Judge.</p> <p>Action by Tbomas E. Johnson and others against Emeline D. Wachstetter and others. From the judgment rendered, the defendants appeal.</p>

<p>Appeal. — Review.-—-Findings.—Reversal.—Where the evidence in a partition suit did not support a finding of the trial court as to certain interests in a portion of the real estate involved, the conclusion of law based on such finding was erroneous and necessitated a reversal.</p>

From Howard Circuit Court; Wm. C. Purdum, Judge. Proceedings for the improvement of certain highways. From a judgment of the circuit court in favor of the Kokomo Stone Company and others, the Tipton Realty and Abstract Company appeals.

<p>From White Circuit Court; James P. Wason, Judge.</p> <p>Action by Strange 1ST. Cragun against Richard D. Voorhees. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by Jennie Doney and others against Thomas J. Leavell and others. From a judgment for plaintiffs, the defendants appeal. Reversed.</p>