Volume 64 — Indiana Appellate Court Reports

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by the South Bend Manufacturing Company and another against the Bissell Chilled Plow Works. From a judgment for plaintiff, the defendant appeals.</p>

From Dekalb Circuit Court; Dan M. Link, Judge. Action by Fred Wiebke and others against the city of Fort Wayne arid others. From a judgment for defendants, the plaintiffs appeal.

<p>From Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by Lawrence Major, by his next friend, C. E. Wolf, against the M. Rumely Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Questions Reviewable. — Record. — Sufficiency.— Where a motion to “modify its findings and judgment and decree” was made in the trial court, errors assigned and relied on for reversal in overruling “the motion of appellants to modify the decree and judgment, and the separate and several motions of each of the appellants to modify the decree and judgment” present no question for review, since they are not supported by the record, p. 48.</p> <p>2. Judgment. — Motion to Modify. — A motion to modify the findings and judgment and decree, being dual in form, was properly overruled, if either of the requests should have been denied. p. 48.</p> <p>3. Trial. — Special Findings in Absence of Request. — Construction. — The findings of the court must be construed as a general finding, in the absence of a request for a special finding, p. 48,</p> <p>4. Trial. — General Findings. — Modification. — Motion for New Trial. — Where the finding of the court was general, and not special, defendant’s remedy, if any, was by a motion for a new trial and not by motion to modify, p. 48.</p> <p>5. New Trial. — Grounds.—Ruling on Motion to Modify Judgment. — The overruling of a motion to modify a judgment is not a cause for a new trial, p. 49.</p> <p>6. Appeal. — Finding.—Weighing Evidence. — The court on appeal will not weigh the evidence to determine its sufficiency to sustain the findings of the trial court, p. 49.</p>

<p>From Posey Circuit Court; Herdis Clements, Judge.</p> <p>Action by Nancy Ellen Fuller against the Supreme Council of the Royal Arcanum and others. From an adverse judgment, the plaintiff appeals.</p>

<p>1. Injunction. — Action Injunction Bond. — Accrual of Right.— No right of action accrues upon an injunction bond until the court has finally decided that plaintiff was not entitled to the injunction, or until something occurs equivalent to such a decision. p.’ 71.</p> <p>2. Injunction. — Liability on Injunction Bond. — Voluntary Dismissal of Action. — The voluntary ,and unconditional dismissal by the plaintiff of a suit for an injunction is equivalent to a judicial determination that the proceeding was wrongful, since thereby the plaintiff is held to have confessed that he was not entitled to the equitable relief sought, p. 71.</p> <p>3. Injunction. — Liability on Injunction Bond. — Dismissal of-Action by Agreement. — When the dismissal of a suit for an injunction is by an amicable and voluntary agreement of the parties, it is not a confession by the plaintiff that he had no right to the injunction granted, and' does not operate as a judgment to that effect, p. 71.</p> <p>4. Injunction. — Liability on Injunction Bond. — Dissolution of Restraining Order. — Where, in a suit between partners for an injunction, an order upon defendant and his depository restraining him from disposing of the deposit and the depository from paying such money to him or his order was superseded by an agreement between the parties for a receivership, so that the court was not required to, and did not, determine whether the procuring of the restraining order was wrongful or unjustifiable, and the final order of the court formally decreeing the dissolution of the restraining order was but in recognition of what had been accomplished by agreement, defendant in the main action could not recover damages on the injunction bond, p. 72.</p>

<p>1. Drains. — Lands Assessed as Benefited. — Right of Drainage.— Where a tract of land was assessed for a public drain constructed, under the act of 1907, Acts 1907 p. 508, §§6140 et seq. Burns 1914, the fact that a part of such land is on the opposite side of a water-shed from that of the public drain for which it was assessed and naturally drained in an opposite direction, or that the tract might be drained in another direction, or that the drainage of the land into the public drain would crowd the capacity thereof so as to cause it to overflow at certain seasons of the year, is not sufficient to deprive the owner of such land of the right to construct a private drain connecting with the public ditch so as to provide drainage for the entire tract assessed as benefited. (Drake v. Schoenstedt [1897], 149 Ind. 90, distinguished.) pp. 77, 80.</p> <p>2. Drains. — Establishment.—Drainage Commissioners. — Authority. — The question as to whether a proposed drainage project is more comprehensive, or embraces and affects more lands, than is necessary to accomplish the drainage of the petitioner’s lands, in the cheapest and best manner, is left to the exclusive judgment of the drainage commissioners, and their determination of that subject is not reviewable by the courts, p. 80.</p>

<p>1. Appeal.— Waiver of Error.— Briefs.— Where appellants’ briefs present only the question of the alleged error of the trial court in its conclusions of law, other assignments of error are waived, p. 88.</p> <p>2. Wills. — Construction.—Intention.—The chief object in construing a will is to ascertain from the language of the instrument the intention of the testator, and when the intention is so ascertained it must be given effect, unless it violates some established rule of law or contravenes some principle of public policy, in which event it cannot prevail, p. 90.</p> <p>3. Wills. — Language.—Construction.—Effect must be given to all parts of a will, if possible, p. 91.</p> <p>4. Wills.— Construction.— Ascertaining Intention.— Consideration of Invalid Provisions. — In ascertaining the intention of a testator, all the provisions of the will must be considered, regardless of whether some of them may be invalid, or incapable of execution, because of some fixed rule of law, or because of the right of some devisee, to elect to take under the law and to reject the provisions of the will. p. 91.</p> <p>5. Wills. — Construction.—Fee-Simple Devise. — Cutting Down by Subsequent Provisions. — When a fee-simple title is devised by one clause of a will in clear and decisive’ terms, it cannot be cut down or modified by a subsequent clause which merely raises a doubt or leaves room for a contrary inference, nor by any subsequent words which are not as clear and decisive as those by which the estate is devised, p. 91.</p> <p>6. Wills. — Construction.—Fee-Simple Devise. — Cutting Down by Subsequent Provisions. — Although a fee-simple title is devised by one clause of a will in clear and decisive terms, where latter provisions clearly and distinctly show an intention to give an estate less than a fee-simple, or clearly and unmistakably show an intention to make the devise subject to some condition, limitation or restriction which under the law necessarily cuts down or destroys the estate devised, such intention cannot be ignored, and the will must be interpreted and carried into effect subject to such modifications, restrictions or subtractions as necessarily result from such provisions so clearly and definitely stated, p. 91.</p> <p>7. Wills. — Construction.—Intention.—While the object of construing a will is to ascertain, and give effect to, the intention of the testator when possible, yet the intention to be carried into effect by judicial interpretation is not necessarily or always the intention which existed in the mind of the testator when the will was executed, but is always that intention which is embodied in, and obtained from, the language of the will itself, p. 92.</p> <p>8. Perpetuities. — Suspension of Power of Alienation for Term of Years. — An item of a will devising all the real and personal property of testatrix on the death of her husband to the children of a nephew who should survive the husband, and providing that the property should not be sold by them until ten years after the husband’s death, at which time their title would be a fee simple, clearly denies the right to alienate the land for ten years and violates the statute against perpetuities (§3998 Burns 1914, §2962 R. S. 1881), providing that the power of alienating lands shall not be suspended by any limitation or condition whatever contained in any grant, conveyance or devise, for a longer period than during the existence of a life or any number of lives in being at the creation of the estate conveyed, granted or devised, except that a contingent remainder in'fee may be created on a prior remainder in fee, to take effect in event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age. p. 92.</p> <p>9. Wills. — Construction.—Estates Created. — Fee Simple. — An item of a will devising all the estate of the testatrix, both real and personal, at the death of her husband, to the children of a nephew surviving the husband, was sufficient when considered apart from a provision denying the right of alienation until ten years after the husband’s death to pass, a fee-simple title of the real estate to the children of the nephew, under §3123 Burns 1914, §2567 R. S. 1881, providing that every devise, in terms denoting the testator’s intention to devise his entire interest in all of his real or personal property, shall be construed to pass all of the estate in such property, p. 95.</p> <p>10. Estates. — Title.—Elements.-—Bight of Alienation. — The right . of alienation is an essential element of a fee-simple title, p. 95.</p> <p>11. Wills.— Construction.— Valid and Invalid Provisions.— Where the provisions of a will are partly legal and partly illegal, the legal parts may be upheld if they can reasonably be separated from the illegal without changing the testator’s general scheme and disregarding his clearly expressed intention, but, if by such elimination, the remaining portions of the instrument amount to a different devise from that which the testator intended, the whole must fail. p. 95.</p> <p>12. Wills. — Construction.—Item Invalid in Part. — Elimination of Invalid Provision. — Effect.—Where a will, after reciting that the other brothers and sisters of testatrix had been provided for in the will of her mother, made a provision for the support of a brother, and then devised to testatrix’ husband a life estate in all of her property, both real and personal, subject to the charge thereon in favor of the brother, and further provided that at the death of the husband all of the estate should be given to the children of a nephew surviving the husband, but stipulated that they should not sell the property until ten years after the husband’s death, at which time their title to the real estate should be a fee simple, the dominant purpose of the testatrix was to provide for her brother’s support, to give a life estate to the husband in all of such property, and, subject to the charge in favor of the brother and the life estate of the husband, to 'devise all of the property, real and personal, to the children of the nephew, and in view of such intention, the invalid provision in restraint of alienation may be eliminated and the devise to the nephew’s children sustained, thereby giving effect to all of the essentially controlling elements of the intention of testatrix as evidenced by the whole instrument, pp. 96, 98, 100.</p> <p>18. Wills. — Construction.—Vesting of Estates. — Presumption.— The law favors the vesting of 'remainders at the earliest possible period, and in the absence of a clearly expressed intention to the contrary, presumes that words postponing the estate relate to the beginning of the enjoyment of the remainder and not to the vesting of the estate, p. 98.</p> <p>14. Wills. — Election to Take Under the Law. — Effect on Remainders. — Statute.—Where the will of a testatrix who was childless and was survived by neither parent devised to her surviving husband a life estate in all of her property, real and personal, with the fee in the real estate to the children of a nephew on the husband’s death, and he elected to take under the law, he thereby became the owner of the fee-simple title to one-third part of the real estate and, as the life estate in the remaining two-thirds part of the real estate was not disposed of by the will, he also took it as the sole heir of the wife under §3028 Burns 1914, §2190 R. S. 1881, providing that “if a husband or wife die intestate, leaving no child and no father or mother, the whole of his or her property, real and personal, shall go to the survivor,” and the children of a nephew took a fee-simple title to the undivided two-thirds of the real estate of testatrix, subject to the husband’s life-estate; and §3047 Burns 1914, Acts 1907 p. 73, providing that a surviving husband electing to renounce the provisions of the will shall take nothing under it, has no application in such a case, since he took nothing under the will. pp. 98,101.</p> <p>15. Wills.— Construction.— Devise of Real Estate.— Estate Granted. — While a devise of real estate in general terms unaccompanied by words of inheritance or other language defining the quantity of the estate devised gives only a life estate, yet when the will contains any expression or provision indicating an intention to devise a fee-simple title, the courts will give effect thereto in order-to carry out the intention of the testator. p. 100.</p> <p>16. Wills. — Construction. — General Devise of Personalty. — Estate Granted. — A bequest of personal property in general terms is sufficient to give to the devisee an absolute title, p. 100.</p> <p>17. Wills. — Construction. — Joint Devise of Real and Personal Property. — Estate Granted in Realty. — Where a general devise of real estate is coupled with a general bequest of personal property, such fact is sufficient to indicate an intention to devise the lands in fee. p. 100.</p> <p>18. Wills.— Construction.- — -Devise of Fee Simple.— Invalid Limitations. — Estate Granted. — A valid devise of a fee with an attempted invalid qualification amounts to a devise of a fee-simple title, p. 101.,</p>

From the Industrial Board of Indiana. Application under the Workmen’s Compensation Act by Hallie K. Duffie and others to be relieved from further payment under a former award to John Highfield. From an award for applicants, Highfield appeals.

From Warrick Circuit Court; Ralph E. Roberts, Judge. Proceedings on the petition of J. Fred Hall and others for the removal of the county seat of Spencer county, in which Frank Kincaid and others filed a remonstrance. From a judgment of the circuit court for remonstrants on appeal from the board of county commissioners, the petitioners appeal.

<p>1. Appeal. — Record.—Certification.—A certificate of the clerk of the court appended to the transcript that the longhand transcript of the evidence had been filed .in the clerk’s office was unnecessary and in no way aided in perfecting the record, p. 121.</p> <p>2. Appeal. — Record,—Bill of Exceptions. — When Part of Record. —Certification.—Where the clerk’s certificate attesting the contents of the transcript precedes the bill of exceptions, the bill is not in the record, as in order to make a bill of exceptions a part of the record, it must precede the clerk’s certificate, and be thereby incorporated therein, p. 121.</p> <p>3. Appeal. — Record.—Bill of Exceptions. — When Part of Record. —Certification.—The clerk’s certificate attached to a bill of exceptions cannot authenticate papers filed, proceedings had or entries made subsequent to the date of the certificate, p. 122.</p> <p>4. Appeal. — Record.—Failure to Incorporate Evidence. — Dismissal. — Where the only error presented on appeal requires a consideration of the evidence for its determination and the evidence is not properly incorporated in the record, the appeal must be dismissed, p. 122.</p>

<p>1. Highways. — Improvement Proceedings. — Collateral Attack.— —Complaint.—Sufficiency.—An action to have a judgment of the board of county commissioners ordering a road improvement declared void is a collateral attack on the judgment and proceedings, and, in such a case the complaint, to be sufficient, must not only show that the proceeding was irregular and the judgment unwarranted, but also that the judgment was absolutely void. p. 134.</p> <p>2. Highways. — Improvement.—Jurisdiction of Board of County Commissioners. — Boards of county commissioners have exclusive original jurisdiction in all matters involving the establishment of highways in their respective counties, p. 135.</p> <p>3. Courts. — Jurisdiction of Subject-Matter. — A court has jurisdiction of the subject-matter when it has jurisdiction of the class of eases in which the particular case belongs, p. 135.</p> <p>4. Courts. — Jurisdiction of Subject-Matter. — Determination.— Allegations of Pleading. — Where a judgment is attacked collaterally, jurisdiction of the subject-matter depends upon the allegations of the pleading which invokes it and not upon the facts, p. 135.</p> <p>5. Courts. — Jurisdiction.—Power to Determine. — Every court has power to determine its own jurisdiction, both of parties and of subject-matter, p. 135.</p> <p>6. Highways. — Improvement.—Order of Board of County Commissioners. — Conclusiveness.—Collateral Attack. — Where it appears from the record of the board of county commissioners that its jurisdiction was invoked in a highway proceeding under §7712 Burns 1914, Acts 1905 p. 551, and that it was required to decide on facts essential to such jurisdiction, the board’s judgment thereon is conclusive against collateral attack unless want of jurisdiction is apparent on the face of such record, p. 135.</p> <p>7. Highways. — Improvement Proceedings. — Action to Enjoin. —Sufficiency of Complaint. — Jurisdiction of Board of Commissioners. — In a suit to enjoin the board of county commissioners from improving a road, a complaint containing general averments that the board did not have jurisdiction of the subject-matter is insufficient to show such want of jurisdiction where the record of the proceedings, as set forth in the complaint, shows that the petition for the improvement of the highway was sufficient to invoke the jurisdiction of the board, that it' found the existence of all facts necessary to give it jurisdiction, and that the entire proceeding was in substantial compliance with the requirements of the statutes, since, in such an action, the lack of jurisdiction must appear upon the face of the record and cannot be supplied by allegations contradictory thereto, p. 136.</p>

<p>Appeal. — Time for Perfecting. — Dismissal.—Under §672 -Burns 1914, Acts 1913 p. 65, providing that appeals' must be taken within one hundred and eighty days from the time the judgment was rendered, an appeal taken thereafter on exceptions to conclusions of law must, in the absence of a motion for a new - trial, be dismissed.</p>

From the Industrial Board of Indiana. Action by Flora B. Souders under the Workmen’s Compensation Act against the Campbell-Smith-Richie Company. From an award of compensation against the employer, it and The Fidelity and Casualty Company of New York appeal.

<p>1. Appeal. — Briefs.—Sufficiency.—Where appellant’s brief evidences a good-faith effort to comply with the rules of court governing the preparation of briefs and substantially complies with such rules as to some of the questions attempted to be presented, such brief is sufficient as against a motion to dismiss. p. 145.</p> <p>2. Appeal. — Dismissal.—Termination of Controversy. — Costs.— Where, in an action to quiet title to city lots, plaintiff amended his complaint at the close of the evidence so that he did not assert- title to the lots in which defendants were claiming ownership, the real controversy between the parties was thereby terminated, and an appeal by defendants will not be entertained to determine the incidental question of costs, where such issue was not presented to the trial court. p. 146.</p>

<p>1. Trover and Conversion. — Measure of Damages. — Loss of Household Goods and Clothing — While the general measure of damages for the conversion of personal property is the market value at the time and place of conversion with interest from the date of conversion, yet in case of the conversion of articles in actual use in furnishing a home and of wearing apparel in 'use the measure of damages is the value to the owner under all circumstances, based on actual damages sustained by being deprived of his property, not including any mere sentimental or fanciful value he may place upon it. p. 153.</p> <p>2. Damages. — General and Special. — General damages are such as naturally and proximately result from the wrong complained of, which the law implies or presumes to result from such wrong, while special damages are such as actually result from the wrong done, but which, do not necessarily result therefrom, are not implied by law, and to be recovered must be specially alleged and proven, p. 156.</p> <p>3. Trover and Conversion. — Conversion of Personalty. — Action. —Complaint.—Damages Provable. — Where, in an action for trespass and conversion of goods, the complaint showed that defendant unlawfully broke into plaintiff’s home and removed her property to her damage, under such averments plaintiff was entitled to prove the value of the property situated in her house as it was when taken by defendant, such evidence of the value to plaintiff being proof of the damages which naturally and proximately resulted from defendant’s unlawful act and was proper under the general allegations of damage contained in the complaint. p. 157.</p> <p>4. Trover and Conversion. — Conversion of Personalty. — Action. —Damages.—Verdict.—Answers to Interrogatories. — Where, in a suit for damages for trespass and conversion of goods, a general verdict was returned for plaintiff for $2,000 under a complaint alleging that defendant unlawfully removed certain household furnishings from plaintiff’s home and converted them to his own use, answers to special interrogatories showing that the second-hand market value of the goods at the time of the conversion was $136 were not inconsistent with the general verdict and a motion for judgment on the interrogatories was properly overruled, since the proof and finding of the secondhand value of the property did not preclude plaintiff’s recovery of the value to her of the property in the home and the actual loss sustained by the wrongful taking of the goods therefrom, the market value proven being merely an element which might be considered in assessing the damages. p. 157.</p> <p>5. Appeal — Review.—Refusal of Instructions. — It is not error to refuse tendered instructions when they are covered, in so far as they state the law applicable to the case, by others given by the court, p. 158.</p> <p>6. Trial. — Weight of Evidence.- — Credibility of Witnesses. — Jury Questions. — The weight of testimony and the credibility of witnesses are for the jury. p. 158.</p>

<p>1. Officers. — Acceptance of Incompatible Office. — Effect.—The acceptance by a public officer of an office incompatible with that already held ipso facto vacates the first, and the officer may not abandon the second, though an inferior office, and resume the other, p. 163.</p> <p>2. Justices of the Peace. — De Facto Acts. — Notice.—Where, in a bastardy proceeding before a justice of the peace, defendant in his special appearance made objection to the jurisdiction of the justice that he “is not now and for many years last past has not been a duly elected, qualified and acting justice of the peace,” the knowledge thus brought to the attention of the rélatrix was not sufficient to change the de facto character of the justice’s acts, although he had previously accepted the incompatible office of deputy township assessor, p. 165.</p> <p>3. Justices of the Peace. — De Facto Officer. — Holding Office Under Color of Law. — Acceptance of Incompatible Office.— Where a justice of the peace held and exercised his office under color of title of election, he was, as to the public and third persons in a proceeding before him, an officer de facto, even though he had subsequent to his election accepted the incompatible office of deputy township assessor, p. 166.</p>

<p>From Grant Superior Court; Robert M. VanAtta, Judge.</p> <p>Action by James C. Ross against the Illinois Glass Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Burden of Showing Error.- — The burden is on appellant to clearly present reversible error before he is entitled to a reversal, as the court on appeal may search the record to affirm, but not to reverse, a judgment of the lower court, p. 171.</p> <p>2. Street Railroads. — Injuries to Person on Tracks. — Action.— Instructions. — Contributory Negligence. — In an action for personal injuries sustained by a wagon driver in a collision with an electric street car, instructions that it is not sufficient for a driver who is about to cross railway tracks to look and listen for cars at the time he is entering the street intersection upon which the tracks are located, but that he must at all times while approaching the tracks use his senses of sight and hearing and that degree of care which an ordinarily prudent person would use under like circumstances, that if plaintiff by the exercise of ordinary care could have seen or heard the car which injured him and failed to do so, the jury might consider such fact as bearing on the question of contributory negligence, and that the law presumed that a person could see and hear and would heed -what a person of good sight and hearing exercising ordinary care and caution would see, hear and heed under similar circumstances are not objectionable as informing the jury that plaintiff was guilty of contributory negligence and could not recover, if he only looked and listened for cars when he was entering the street intersection upon which the tracks were located, p. 171.</p> <p>.3. Tkial. — Instructions.—Consideration as a Whole. — Instructions should be considered in their entirety,' and if, when so considered, they fairly and accurately state the law under the issues and the evidence, they are not erroneous, p.' 173.</p>

From the Industrial Board of Indiana. Action by Katarzana Szot and others under the Workmen’s Compensation Act against the Interstate Iron and Steel Company. From an award, the defendant appeals.

<p>From Howard Circuit Court; Lex J. Kirkpatrick, Judge.</p> <p>Action by David Olinger against William N. Spurgeon and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Harry O. Stickler against the Live Stock Insurance Company of Huntington, Wabash and Whitley counties. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Starke Circuit Court; W. C. Pentecost, Judge.</p> <p>Action by Kendall Hunt against Ionia Belle Hunt. From a judgment for plaintiff,' the defendant appeals.</p>

<p>. From Gibson Circuit Court; Simon L. Vandeveer, Judge.</p> <p>Action by Margaret E. Miller, administratrix of the estate of Lorenz Miller, deceased, against the Evansville Railways Company. From a judgment for plaintiff,-the defendant appeals.</p>

<p>1. Banks and Banking. — Insolvency.—Assets.—Trust Property. —Failure to Record Trust Agreement. — Effect.—Statute.—Section 10 of the act of 1907, Acts 1907 p. 174, §3411 Burns 1914, providing that property held in trust by a bank shall be considered as assets of the bank, in case.it should go into liquidation and its funds are insufficient to pay all depositors, unless the trust agreement is recorded in the office of the county recorder and filed with the auditor of state, applies to notes and mortgages held in trust by a bank. p. 223.</p> <p>2. Banks and Banking. — Insolvency.—Assets.—Trust Property. — Statute.—Scope.—Section 3411 Burns 1914, Acts 1907 p. 174, relating to the use of trust property held by an insolvent bank for the payment of depositors, operates only in favor of depositors when the bank is being wound up and the assets are insufficient to pay the depositors in full, and has no application where the funds are sufficient to meet the claims of depositors, p. 224,</p> <p>3. Trusts. — Elements.—A trust is a confidence reposed in one person by another with respect to property held by the former for the benefit of the latter, p. 225.</p> <p>4. Banks and Banking. — Purchasing Notes From Cashier.— Payment at Bank During Banking Hours. — Effect.—Where notes and mortgages were purchased from the cashier of a bank during banking hours and payment therefor was made in the bank while the cashier was in the discharge of the duties of his official position, the^receipt of the consideration under such circumstances was payment to the bank. p. 225.</p> <p>5. Conversion. — Action.-—Evidence.—Ownership of Property.— Failure to Include in Tax Schedules. — In an action against a bank for damages for the conversion of notes held in trust, the fact that plaintiff failed to include the notes in his schedule of taxable property is not important on the issue of ownership. p. 226.</p> <p>6. Conversion. — Notes Held in Trust by Bank. — Lawful Appropriation. — Where notes and mortgages held in trust by a bank were lawfully used in winding up its affairs to pay depositors because the trust agreement was not recorded and filed as required by §3411 Burns 1914, Acts 1907 p. 174, conversion will not lie to recover the value of the notes, since there can be no conversion where property has been rightfully taken in pursuance to law. p. 226.</p> <p>7. Appeal. — Review.—Harmless Error. — Reversal.—Statute.— Under §§407, 700 Burns 1914, §§398, 658 B. S. 1881, providing that a judgment shall not be reversed for mere technical errors when the cause has been fairly tried and determined, where the ultimate result reached by the trial court is correct, a judgment will not be reversed for erroneous conclusion of law or for intervening errors that deprive the complaining party of no substantial right, p. 227.</p>

<p>From the Industrial Board of Indiana.</p> <p>Action by Frank L. Davis under the Workmen’s Compensation Act against the Union Sanitary Manufacturing Company. From an award, the defendant appeals.</p>

From Greene Circuit Court; Theodore E,. Stinkard, Judge. Action by Julius A. Epple, by his next friend, .Thomas B. Campbell, against the Queen Coal and Mining Company. From a judgment for plaintiff, the defendant appeals.

<p>From Warrick Circuit Court; Ralph E. Roberts, Judge.</p> <p>Action by Margaret Jones against the Aetna Insurance Company of Hartford, Connecticut. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Superior Court (99,564); W. W. Thornton, Judge. Action by Blanche E. Chenoweth against Daniel A. Chenoweth. Judgment for plaintiff modified oh defendant’s motion, and defendant appeals from the remainder of the judgment.

From Marion Superior Court (104,709); W. W. Thornton, Judge. Action by Blanche E. Chenoweth against Daniel A. Chenoweth to establish a.lost complaint in an action for divorce between the parties. From a judgment establishing the complaint and making it a part of the record in the divorce suit, the defendant appeals.

<p>1. Damages.— Punitive Damages.■ — ■When Assessable.— Exemplary damages cannot be assessed for a wrong the commission of which subjects the wrongdoer to both a criminal prosecution and civil action, p. 270.</p> <p>2. Corporations. — Punitive Damages. — When Assessable. — In an action against a corporation for damages for assault and battery by its servants, exemplary damages may be allowed, as the corporation is not subject to criminal prosecution for the assault, p. 271.</p> <p>3. Damages. — Exemplary Damages. — Malice.—Exemplary damages may be awarded without an averment of malice where the wrongful act is wilfully done in an abusive, wanton or oppressive manner or in reckless disregard of the rights of others, malice being inferable under such conditions, p. 272.</p> <p>4. DAMAGES. — Exemplary Damages. — Right to an Award.— There is no absolute right to exemplary damages, but in a proper case such damages may be awarded in addition to actual damages as punishment for the offense and to restrain and prevent further misconduct, p. 272.</p> <p>5. Damages.' — Exemplary Damages. — Nature.—Pleading. — Exemplary damages are not special damages and special averments are unnecessary to warrant their recovery, p. 272.</p>

<p>From Huntington Circuit Court; James J. Moran, Special Judge.</p> <p>Action by Charles McGrew, trustee of the Huntington Factory Fund Association, against the Huntington Brewing Company. From a judgment for plaintiff, the defendant appeals.</p>

From Lake Superior Court; Charles E. Greenwald, Judge. Action by the Schoenfeld-Yatter Company against Samuel T. Cline. Charles L. Surprise, as trustee in bankruptcy of the estate of Samuel T. Cline, filed an intervening petition and was made a party defendant. From a judgment for defendants, the plaintiff appeals.

<p>1. Insurance. — Fire Policy. — Construction.—Damage from Explosion. — Liability.—Where a policy of fire insurance stipulates for indemnity for loss by fire generally and contains no provision exempting the insurer from liability for loss by* explosion, the insurer is liable for damage resulting from an explosion, so that a fire insurance company is liable, on a policy insuring against losses by “fire or lightning” where the assured’s property was damaged by the explosion of acetylene gas which escaped and was ignited by fire in.a stove, pp. 299, 300.</p> <p>2. Insurance. — Construction of Policy. — Where an insurance policy is so drawn as to be fairly susceptible of two different constructions, the construction most favorable to the insured will be adopted. ,p. 300.</p> <p>3. Insurance. — Fire Policy. — Loss by Explosion. — Exception in Policy.- — Liability.—Where a policy of fire insurance contains a provision absolving the insurer from liability for loss by explosion, the insurer is liable for loss occasioned by the fire, if any, resulting from the explosion, p. 300.</p> <p>4. Appeal. — Briefs.—Sufficiency.—Where appellant’s brief fails to set out either the demurrer or the. substance thereof, no question as to the ruling thereon is presented for review.' p. 301.</p> <p>5. Appeal. — Record.—Bill of Exceptions. — Failure to Incorporate in Transcript. — Where a purported bill of exceptions containing the evidence follows the certificate of the clerk that “the above and foregoing transcript contains full,'true, correct and complete copies of all papers and entries” in the case, the bill is not properly incorporated into the transcript and cannot be considered for any purpose, so that grounds in a motion for a new trial requiring reference to the evidence for their consideration eannot.be reviewed, p. 301.</p>

From Porter Circuit Court; H. H. Loving, Judge. Action by. Anna Prohl, administratrix of the estate of John H. Prohl, deceased, against the Chicago, Indianapolis and Louisville Railway Company. From a judgment for plaintiff, the defendant appeals.

<p>From Orange Circuit Court; William H. Paynter, Judge.</p> <p>Actions by the Huntingburg Bank and Daniel Reutepohler against George Morgenroth. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Lake Superior Court; Lawrence Becker, Judge.</p> <p>Action by Wolf, Sayer and Hellar against George Hudacko. From a judgment for plaintiffs, the defendant appeals.</p>

<p>Appeal. — BHefs.—Waiver of Error. — Assigned errors are waived where appellant’s brief in its points and authorities merely sets out a number of abstract propositions of law and authorities in support thereof without applying such propositions to any particular error or ruling.</p>

<p>1. Pleading. — Demurrer.—Waiver of Defects. — Under §344, cl. 6, Bums 1914, objections to the sufficiency of the complaint not pointed out in the memorandum accompanying the demurrer are waived, p. 327.</p> <p>2. Vendor and Purchaser. — Vendor’s Lien. — Complaint.—Sufficiency. — Allegation of Express Lien. — In an action on a promissory note and to foreclose a vendor’s lien, a complaint alleging that the note was given for the purchase money of real estate, and that it was expressly declared to be a lien thereon in the deed executed therefor, is sufficient to show the existence of a vendor’s lien. p. 327.</p> <p>3. Vendor and Purchaser. — Vendor’s Lien. — Assignment of Note — The transfer of a promissory note secured by a vendor’s lien carries the lien with it without a special assignment, p. 327.</p> <p>4. Vendor and Purchaser. — Vendor’s Lien. — Payment of Note by Endorser. — The endorser of a-.note secured by a vendor’s lien, who is compelled to pay the note fb his endorsee at maturity and becomes the owner thereof, is entitled to the lien, regardless of J;he principle of subrogation, p. 328.</p> <p>5. Vendor' and Purchaser. — Vendor’s Lien. — Liability of Purchaser with Notice— One purchasing realty on which there was expressly reserved a vendor’s lien by a prior deed and with knowledge that the purchase money thus secured was unpaid, takes the land subject to the lien. p.'328.</p> <p>6. Appeal. — Presenting Questions for Review. — Insufficiency of Evidence to Sustain Special Finding. — A ground in a motion for a new trial challenging the sufficiency of the evidence to sustain a special finding of fact presents no question for review on appeal, as it is not a proper assignment in a motion for a new trial, p. 329.</p> <p>7. Appeal. — Presenting Questions for Review. — Motion for New Trial. — Insufficiency of Evidence to Sustain Decision.- — Where a cause was tried by the court, which rendered special finding of facts and stated conclusions of law thereon, grounds for a new trial, that the decision of the court is not sustained by sufficient evidence and is contrary to law, challenge only the special findings, as the word “decision,” when so used, refers only to the special finding of facts, p. 329.</p> <p>8. Vendor and Purchaser. — Vendor’s Lien. — Express Reservation in Deed. — Nature.—A vendor’s lien expressly reserved in a deed of conveyance is a lien by contract and not by implication, and has all the essential elements of, and is equivalent to, a mortgage, p. 329.</p> <p>9. Vendor and Purchaser. — Vendor’s Lien. — Express Lien.— Waiver. — Where a vendor’s lien is expressly reserved in a deed of conveyance it is equivalent to a mortgage, and a waiver of such a lien must be made either expressly, or by acts directly inconsistent with its existence and clearly indicating an intention to waive, and it is not waived by the mere.act of accepting collateral security for the lien. p. 330. ■</p> <p>10. Trial. — Findings.—Failure to Find Material Fact. — Effect. —The absence of a finding as to certain facts is, in effect, a finding that such facts were not proven on the trial, p. 331.</p> <p>11. Appeal. — Review.—Findings.—Conclusiveness.—Findings o'f fact based on conflicting evidence are conclusive on appeal where there is some evidence to support every material fact found, p. 332.</p> <p>12. Appeal. — Presenting Questions for Review. — Assignment of Error. — Conclusions of Law. — Error of the trial court in stating its conclusions of law on the facts found is waived on appeal by failure to assign error to the conclusions, p. 332.</p> <p>13. Appeal. — Presenting Questions for Review. — Error in Cornelusions of Law. — Motion for New Trial. — Grounds.—An assignment in a motion for a new trial that the decision of the trial court is contrary to law does not present for'review any question as to the court’s conclusion of law on the facts found, p. 332.</p>

<p>1. Waters and Watercourses. — Easement. — Prescription.— Where an easement to drain water across another’s land is used by one whenever he sees proper, without asking permission, and no objection is made thereto, the use is adverse, and an adverse enjoyment and use of an easement uninterrupted for twenty years cannot be afterwards disputed, p. 335.</p> <p>2. Waters and Watercourses. — Obstruction of Stream. — Action to Compel Removal. — Variance.—In an action to compel the removal of a dam obstructing the flow of an .alleged watercourse, if the water dammed against was surface water, there could be no recovery under the issues joined as to the obstruction of a natural watercourse, p. 338.</p> <p>3. Waters and Watercourses. — “Natural Watercourse.” — Generally a natural watercourse must have a substantial exist.ence, and there must be a bed and banks and evidence of a permanent stream of running water, but it need not flow continuously throughout the- year. p. 338.</p> <p>4. Waters and Watercourses. — “Natural Watercourse.” — Character. — Where a current of water flowed throughout the entire course of a trough or swale, in which there was, at places, a marked indication of a channel, and the moving body of water possessed permanency- in that it flowed from time immemorial six to nine months of each year, the stream is a natural watercourse although, before the lands affected were improved by the landowners confining part of the stream to an artificial channel, there was no marked depression or surface indication of a channel extending throughout the entire course of the swale, pp. 340, 341.</p> <p>5. Waters and Watercourses. — “Natural Watercourse.” — Confining to Artificial Channel. — Where a part of the channel of á natural watercourse was improved by landowners so that the stream was confined in an artificial channel, it did not thereby lose its characteristics as a natural watercourse, p. 340.</p> <p>6. Appeal. — Review.—Evidence.—Sufficiency.—Where there is some evidence supporting- every material point involved under the issues, the decision of the trial court cannot be reversed for insufficiency of evidence, p. 341.</p>

<p>From Bartholomew Circuit Court; Frank S. Jones, Special Judge.</p> <p>Action by Carmichael Produce Company against Carrie Bennett and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Harmless Error. — Overruling Motion to Separate Complaint into Paragraphs. — Generally, no available error results from overruling a motion to separate a complaint into paragraphs, p. 359.</p> <p>2. Appeal.- — Harmless Error. — Complaint Demwrrable as to One Count. — Overruling Motion to Separate. — Where a complaint in one paragraph sought recovery for services rendered and on. an oral contract for the sale of goods and merchandise for an amount in excess of $50, the fact that defendant’s right under the statute of frauds (§7469 Burns 1914, §4910 R. S. 1881) to demur to the count based on the verbal contract was cut off by the overruling of a motion to separate the complaint into paragraphs was not prejudicial to defendant, who could have filed an affirmative answer setting up the facts relied on to bring the contract count within the statute, and did tender an instruction giving him the full benefit of such statute, p. 359.</p> <p>3. Appeal. — Waiver.—Briefs.—Review of grounds for a new trial are waived by failure to refer to them in the points and authorities in appellant’s briefs, p. 360.</p> <p>4. Appeal.- — Presenting Questions for Review. — Grounds for New Trial. — Error in Amount of Recovery. — Although excessive damages are a proper ground for a motion for a new trial in actions sounding in tort, in actions based on contract error in the' assessment of the amount of the recovery must be presented by substantially following the language of §585, cl. 5, Burns 1914, §559 R. S. 1881, relating to causes for a new trial, p. 360.</p> <p>5. Appeal. — Presenting Questions for Review. — Instructions.— Questions relating to the giving or refusal of instructions, to be available on appeal, must be saved and presented in one of the ways provided by the statute, p. 360.</p> <p>6. Appeal. — Scope of Review. — Instructions.—Record.—Sufficiency. — Statute.—Marginal -notes required by the rules of the Appellate Court to be placed on the transcript cannot be made to supply the identification of the instructions given and refused, which §561 Burns 1914, Acts 1907 p. 652, requires to be shown by the record made in the trial court, so that where the record fails to indicate which of-the instructions were given and which were refused, except that the words “Given” and “Refused” were written in red ink on the margin of the transcript opposite the instructions, no question as to giving or refusing them is properly presented for review, p. 361.</p>

<p>1; Carriers. — Carriage 'of Goods. — Delay in Transportation.— Right to Sue. — Where a shipper consigned goods to its own order with directions to -notify A, and forwarded to a bank for collection a draft on A, with the bill of lading attached, and the draft was not paid nor the bill of lading obtained by him until the goods reached the point of destination, there are no facts to take the case out of the general rule that the right of action against a common carrier for delay in the shipment of goods is in the consignee, who, in the absence of proof to the contrary, is presumed to be the real party in interest, pp. 366, 371.</p> <p>2. Carriers. — Carriage of Goods. — Bill of Lading with Draft Attached. — Title to Goods. — Where a bill of lading is made out to the order of the consignor, or of a third party, with directions thereon to notify a certain person, and a draft against such person for the purchase price of the goods shipped is attached to the bill of lading and transmitted to the destination of the shipment through a bank, or otherwise, title to the property described in the bill of lading does not pass to the person to be notified until the draft is paid. p. 366.</p> <p>3. Carriers. — Carriage of Goods. — Bill of Lading. — Directions for Notice. — Effect.—A direction on a bill of lading to notify some one other than the consignee does not qualify the duty of the carrier to deliver the property shipped to the consignee or in accordance with its order,' nor does it give to the pepson to be so notified any right to, or control over, such property until he has obtained and produced a bill of Jading or its equivalent, p. 368.</p>

<p>From Elkhart Superior Court; James L. JJarman, Judge.</p> <p>Action by Clarence B. Matthews against Reuben O. Myers. From a judgment for défendant, the plaintiff appeals.</p>

<p>1. Appeal. — Time of Filing Transcript. — Under §2978 Burns 1914, Acts 1913 p. 65, providing, relative to appeals from decisions in matters connected with a decedent’s estate, that the appeal bond shall be filed within thirty days after judgment and the transcript within ninety days after filing the -appeal bond, appellant has 120 days to file the transcript, even though the appeal bond is filed within less than thirty days from the date of judgment, p. 379.</p> <p>2. Appeal.— Briefs.— Sufficiency.— Specification of Error. — To present a question for review on appeal, the briefs must he sufficient to inform the court of the rulings relied on for reversal and assigned as error, and where appellant’s briefs, under a general heading of “Errors Relied on for Reversal,” states a number of propositions, none of which could be independently assigned as error, but which were, in fact, grounds for a motion for a new trial; the briefs are insufficient in the absence of a showing that the overruling of such motion is error relied on. p. 379.</p> <p>3. Appeal. — Briefs.—Sufficiency.—Abstract propositions in the points and authorities of appellant’s brief which are' not specifically applied to any assigned error, present no question for review, p. 380.</p>

<p>From Vigo Superior Court; Fred W. Beal, Judge.</p> <p>Action by Thomas Archer against the Otter Creek Coal Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Money Received.' — Nature of Obligation. — Implied Promise. —The action for money had and received rests upon an implied promise, and may be maintained against the person who has received the money either from the plaintiff or from a third person, under circumstances which in equity and good conscience he should not retain, p. 389.</p> <p>2. Appeal. — Review.-—Theory of Pleading. — Where there is uncertainty or ambiguity as to the theory of a pleading, the court on appeal will adopt the theory adopted at trial by the parties and the court, p. 390.</p> <p>3. Appeal. — Review.—Issues.—Variance Between Allegations and Proof. — Amendments Deemed Made. — Where the complaint was in no way questioned below and the case was tried on the theory that the money sued for was loaned to defendants and evidence tending to show that a loan was admitted without objection, defendants cannot complain of variance in the allegations-of the complaint and proof, and the court on appeal will, if necessary, treat the complaipt as amended to correspond with the proof, p. 391.</p> <p>4. Appeal.— Review.— Instructions. — Harmless Error. — Assuming Facts. — In an action tried upon the theory that plaintiff had loaned the money in suit to defendants, husband and wife, an instruction, upon the issue of whether the money was loaned for the use of one or both defendants, which asshmed that it was loaned to the wife and omitted to state the evidence in reference to the loan, was not erroneous for that reason, where defendants in the appellate court admitted the loan to the wife, p. 391.</p> <p>5. Money Lent. — Evidence.—Sufficiency.—In an action tried on the theory that the money sued for was loaned to defendants, husband and wife, evidence showing that the husband had stated to plaintiff that he wanted money from him, that the wife, at the time she obtained the money, informed plaintiff that she came at the instance of the husband, and that real estate was purchased with the money and title taken in the names of both defendants, was sufficient to support a finding by the jury that the money was loaned for the use of both husband and wife. p. 393.</p>

<p>From Pike Circuit Court; John L. Bretz,■ Judge.</p> <p>Action by Eugene P. DeMotte against Byron Godwin. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Madison Superior Court; Willis S. Ellis, Judge.</p> <p>Action by Charles F. Haney against Ira F. Miller. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Lawrence Circuit Court; Oren O. Swails, Judge.</p> <p>Action by Claude H. Lavender against the Indiana Quarries Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Sales. — Fraud.—Remedies.-—Where a buyer has been induced by fraud to make a purchase, he may either retain the property and when sued for the purchase money set up fraud as a defense, or he may rescind tite contract and thus defeat the action for the purchase money, p. 432.</p> <p>2. Appeal. — Review.—Ruling on Demurrer. — Memorandum of Defects. — Scope of Review. — The court on appeal is not confined to the memorandum of defects accompanying the demurrer when there is any defect in the pleading demurred to which would sustain the ruling of the trial court., p. 432.</p> <p>3. Contracts. — Written.—Execution.—Merger of Prior Negotiations. — In the absence of fraud in the procuring of a written order and contract, prior negotiations are merged therein. ' p. 433.</p> <p>4. Sales. — Fraud.—False Representations. — Written Contract.— Liability of Purchaser. — A purchaser of a gasoline tank, who claimed that the seller represented that only two of such tanks, which were to be marked with a certain distinguishing emblem, would be sold in the city, could not defeat an action for the purchase price on the ground that such representations were false, where the written contract of sale, executed after the representations relied on were made did not include a stipulation that the purchaser should have the exclusive right to use the emblem, there being no claim that a mistake was made in ' reducing the agreement to writing or that the contract as executed did not contain a correct statement of the terms of the agreement, p. 433.</p>

<p>From Porter Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by Augusta Oleske against the North American Union. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Exceptions to Conclusions of Law. — Scope of Review. — Appellant, by excepting only to the conclusions of law, conceded for the purposes of such exception that the facts were fully and correctly found, p. 452.</p> <p>2. Principal and Surety. — Construction of Obligation. — Contractor's Bond. — Where a contractor’s bond guaranteed the construction of a three-story brick building, but also contained a provision obligating the contractor to erect and completé the structure under, the contract in accordance with plans and specifications which provided that the building should be faced with stone, the bondsmen could not avoid any liability growing out of the construction of the brick and stone building on the theory that there was a departure from the contract, since the bond and contract must be construed together, p. 452.</p> <p>3. Mechanics’ Liens. — Right to Waive. — The right to a mechanic’s lien given by statute may be waived, p. 453.</p> <p>4.. Mechanics’ Liens. — Agreement Not to Enforce. — Effect.— One who has agreed that no lien shall be filed or enforced against the property of another cannot himself enforce a mechanic’s lien against such property, p. 453.</p> <p>5. Mechanics’ Liens. — Building Contract. — Stipulation against Liens. — Waiver by Surety. — A guarantor or surety on a building contractor’s bond which insures the owner against the filing of a mechanic’s lien cannot enforce a mechanic’s lien against the property for material furnished the contractor and used by him in erecting the building for the completion of which the bond was given, p. 454.</p> <p>6. Guaranty. — “Guarantor.”—Bond to Secure Performance of Contract. — Where one undertakes that his principal shall perform a contract which is collateral to the instrument executed to secure such performance, he is a guarantor, and not a surety in the legal meaning and application of the latter term, p. 454.</p> <p>7. Guaranty. — Default of Principal. — Defense.—Failure to Give Notice to Guarantor. — Where a guarantor 'is called upon to answer for the default of his principal, the omission of, or failure to give, notice of such default is a matter of defense to be pleaded and proven by the guarantor, except in causes governed by commercial rules, p. 454.</p> <p>8. Corporations.— Guaranty.— Ultra Vires Acts.— Liability.— Where a corporation engaged in the manufacture of brick executed a bond with a building contractor securing the performance of a contract-not to permit the filing of liens for labor or material under an arrangement with the contractor that he purchase from the corporation the brick to be used in the construction of the building, and the brick was so purchased and used, the corporation could not escape liability under the bond on the ground that its act was ultra vires, p. 454.</p>

<p>From Jay Circuit Court; James J. Moran, Special Judge.</p> <p>Action by Flavius V. James against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (91,588) ; Theophilus J. Moll, Judge.</p> <p>Action by Karl K. Vaught against Louis H. Knue. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Adams Circuit Court; David E. Smith, Judge.</p> <p>Action by the Berne Hardware Company against Mathias Miller. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Hancock Circuit Court; Earl Sample, Judge.</p> <p>Action by Joanna Porter and others against John Mooney, and others. From the judgment rendered, the plaintiffs appeal.</p>

From Rush Circuit Court; Raymond Springer, Special Judge. Mary E. Kirk, administratrix of the estate of Bartholomew W. Kirk, deceased, filed her final report, to which Johanna Quirk filed exceptions. From the judgment rendered, the contestant appeals,

<p>From Madison Circuit Court; Luther F. Pence, Judge.</p> <p>Action by John M. Decker and others against Mary E. Mahoney and others. From the judgment rendered, the plaintiffs appeal.</p>

<p>From Marion Circuit Court (22,998); Charles Register, Judge.</p> <p>Action by. Albert H. Wagner and others against the Supreme Lodge, Knights of Pythias. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Tippecanoe Superior Court; Henry H. Vinton, Judge.</p> <p>Action by Marie Kumb against The Ft. Wayne and Northern Indiana Traction Company and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From the Industrial Board of Indiana.</p> <p>Action by Barton Shraluka under the Workmen’s Compensation Act against the Holland-St. Louis Sugar Company. From an award for plaintiff, the defendant appeals.</p>

<p>1. Vendor and Purchaser. — Contract of Sale. — Breach.—Damages. — Right to Recover. — In an action for the breach of a contract for the sale of real estate, where performance by the vendors, nonperformance by the purchasers and substantial damages are shown to have been suffered by the vendors, the vendors are entitled to recover against the purchasers, p. 558.</p> <p>2. Contracts. — Pleading.—Averment of Performance. — The rule that where a party seeks to recover damages for the breach of a contract, he must allege and prove compliance on his part, or facts showing a proper excuse for not having done so, does not apply when the condition not performed has been waived by the opposite party.. p. 558.</p> <p>3. Vendor and Purchaser. — Delivery' of Possession. — Delay.— Waiver. — Where a contract of sale of a dwelling house and a saloon provided that possession was to be delivered to the buyers on February 1, and possession of the saloon was delivered prior to that date, but the purchasers were not placed in possession of the dwelling house until February 20, and they retained possession of the premises for two months, during which time they continued negotiations for the purchase of the realty, they waived the breach of the contract occasioned by the delay, in obtaining possession, and could not urge it as a defense to the vendor’s action for breach of the contract, pp. 559, 560.</p> <p>4. Vendor and Purchaser. — Waiver.—Where one in possession . of any right, whether conferred by law or by contract, and with full knowledge of material facts, does or forbears the doing of something inconsistent with the existence of the right or of his intention to rely upon it, such right is waived, p. 559.</p> <p>5. Vendor and Purchaser. — Delayed Delivery df Possession.— Waiver. — Where purchasers of real estate, possession of which was to be given on a specified date, refused to complete their purchase, and when vacating the premises notified the vendors that they would not carry out the contract because the abstract did not show a clear title, they waived any delay on the part of the vendors in delivering possession, since a party refusing to comply with a contract cannot base his refusal to perform on one ground and defend an action for a breach of the contract on another and different ground, p. 561.</p> <p>6. Vendor and Purchaser. — Contract.—Performance.—Furnishing Abstract of Title. — Where a contract for the sale of realty required the vendors to furnish an abstract of title, and an abstraet duly certified by a competent abstracter was seasonably tendered to the buyers and, upon objection being made that it did not contain a statement as to certain taxes and special assessments and as to a certain judgment record, such objections were properly met by a search of the records and the abstract, containing a certification as to the facts disclosed by such recor/ls, was returned within two days, there was a compliance with the contract, provided the abstract showed such title as was required, p. 562.</p> <p>7. Vendor and Purchaser. — Vendor’s Title. — Sufficiency.— Where a contract for the sale of realty merely required that the abstract to be furnished should show title in the vendors, an abstract showing a marketable title in them was the most the buyers could demand, p. 563. •</p> <p>8. Vendor and Purchaser. — Marketable Title. — What Constitutes. — A marketable title is one free from reasonable doubt, and such that a reasonably prudent person, with full knowledge of the facts and their legal bearings would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and ought to accept, p. 563.</p> <p>9. Vendor and Purchaser. — Marketable Title. — What Constitutes. — A marketable title is one so free from defects as to enable the holder, not only to retain the land, but to possess it in peace, and, if he wishes to sell it, be reasonably sure that no flaw or doubt will arise to disturb its market value, p. 563.</p> <p>10. Vendor and Purchaser. — Marketable Title. — What Constitutes. — A mere suspicion against a title, or a speculative possibility that a defect in it might appear in the future, does not render the title unmarketable, p. 563.</p> <p>11. Vendor and Purchaser. — Marketable Title. — What Constitutes. — Defects.—Where the court found that there were some defects in a title, but that they “were not of a serious nature and did not affect the possessory title” of the vendors, the title was marketable, p. 565.</p>

<p>1. Insurance. — Fire Policy. — Forfeiture.—Notice.—A provision in an insurance policy that the policy should be void if any of the conditions were broken merely renders the policy voidable at the option of the insurer,’ and to avoid the policy the insurer is required to give prompt notice of its election to declare a forfeiture and to return all of the unearned premium, p. 568.</p> <p>2. Insurance. — Fire Policy. — Forfeiture.—Waiver.—The failure of the insurer to return the unearned premium and to notify the insured of its intention to avoid the policy within a reasonable time after learning of a breach of a condition waives such breach, p. 568.</p> <p>3. Insurance. — Fire Policy. — Forfeiture.—Waiver.—Return of Premium:. — “Reasonable Time.” — Where an insurer knew, or should have known, that the insured used gasoline on its premises, in violation of a condition in the policy, at the time the policy was issued, but did not offer to return the premium until more than two years after a fire, the prohibition against the use of gasoline was waived by failure to return the premium within a reasonable time. p. 568.</p> <p>4. Insurance. — Proof of Loss. — Failure to Object. — Conchisiveness. — Statute.—In an action on a fire insurance policy, where the policy and proof of loss, as required by the terms of the policy and by §4622g Burns 1914, Acts 1911 p. 525, were introduced in evidence without objection by defendant insurance company, nor was objection made to the proofs of loss furnished, defendant must be held to have assented to the amount of loss as set forth in such proofs as the true statement of the loss sustained, p. 569.</p> <p>5. Trial. — Peremptory Instruction. — When Authorized. — In an action to recover on a fire insurance policy, where the evidence was documentary and susceptible of the single inference that there should be a recovery by plaintiff and the amount thereof, it was proper for the court to direct a verdict for plaintiff, p. 569.</p>

<p>From the Industrial Board of Indiana.</p> <p>Certified Question of Law.</p> <p>Proceedings under the Workmen’s Compensation Act in the matter of one Loper. Question of law certified by the Industrial Board.</p>

<p>From the Industrial Board of Indiana.</p> <p>Certified Question of Law.</p> <p>Proceeding under the Workmen’s Compensation Act in the matter of one Henderson. Question of law certified by the Industrial Board.</p>

<p>1. Master and Servant. — Workmen’s Compensation Act. — Medical Services. — Liability of Insurer. — Under the Workmen’s Compensation Act, Acts 1915 p. 392, an employer may authorize a physician to continue the treatment of an injured employe beyond the first thirty days, if necessary to effect a cure, and such services are included in the benefits provided by the act, and an insurer under a policy contracting to pay all benefits provided by the law for physician’s fees, etc., may be held liable therefor, pp. 594, 598, 601.</p> <p>2. Master and Servant. — Workmen’s Compensation Act. — Construction. — The Workmen’s Compensation Act, Acts 1915 p. 392, should be liberally construed to promote the ends intended to be secured by its enactment, and effect should be given to all parts of the statute, when possible, in harmony with the spirit and purpose of the whole act. p. 598.</p> <p>3. Insurance. — Workmen’s Compensation Insurance. — Contract. —Construction.—A carrier of compensation insurance contracts with reference to all the provisions of the Workmen’s Compensation Act, Acts 1915 p. 392, and is bound by the spirit and purpose of the law as well as by the letter of the act: p. 601.</p>

<p>From the Industrial Board of Indiana.'</p> <p>Certified Question of Law.</p> <p>Proceedings under the Workmen’s Compensation Act in the matter of Henry C. Meyers. Question of law certified by the Industrial Board.</p>

<p>1. Landlord and Tenant. — Failure to Pay Rent. — Remedies.— Any remedy provided in a lease for default in payment of rent did not deprive the lessor of any statutory remedy applicable under the terms of the lease in the absence of an express restriction therein, p. 611.</p> <p>2. Landlord and Tenant. — Action for Possession. — Time for Bringing. — Though a landlord’s action for possession' was brought only nine days before the expiration of the old lease and the commencement of a renewal thereof, the fact that the possession recovered might be brief could not affect the right to maintain the action, p. 611.</p> <p>3. Landlord and Tenant. — Lease. — Renewal. — Forfeiture. — Where a covenant to renew a lease is independent of other covenants therein and .is conditioned only on notice of renewal, a breach of a covenant to pay rent will not affect the right to renewal, p. 612.</p> <p>4. Landlord and Tenant. — Lease.—Right to Renewal. — Covenant to Pay Rent. — Construction.—Where a covenant giving the tenant a right to renew a lease was independent of other covenants, the delivery by the tenant of the stipulated notice, which was the sole condition for renewal, was sufficient to create a new tenancy, regardless of the tenant’s breach of the covenant for the payment of rent. p. 613.</p> <p>5. Landlord and Tenant. — Action to Recover -Possession. — " Judgment. — Covenant for Renewal of Lease. — Where a covenant giving the right to renew a lease, which had been accepted by the tenant, was independent of any condition as to payment of rent for the original term, and tenancy under the new lease had commenced, the court could not render a judgment allowing recovery of possession for default in the payment of rent under the old lease, p. 613.</p> <p>6. Landlord and Tenant. — Renewal of Lease. — Notice of Election. — Requisites and Sufficiency. — Where a covenant in' a lease provided for a renewal thereof for a new term, upon the lessee giving notice of his intention so to do, and stipulated that the parties appoint arbitrators to determine the rental for the new term if the lessor was unwilling to renew at the rental specified in the covenant, the fact that the tenant in the notice of hip election to renew failed to designate an arbitrator did not render the notice ineffective, as the lease did not provide that the arbitrators be appointed at the time of the giving of such notice, p. 615.</p> <p>7. Landlord and Tenant. — Forfeitures.—Forfeitures are not favored in law, and, as a general rule, a forfeiture will be enforced only upon the clearest evidence that such was the intention of the parties, p. 616.</p> <p>8. Landlord and Tenant. — Action for Possession. — Breach of Covenant to Pay Rent. — Acceptance of Rent. — Waiver of Forfeiture. — In a landlord’s action against a tenant to-recover possession for failure to pay rent in advance as covenanted in the lease, where the evidence shows that practically all instalments of rent were paid after maturity and received without complaint or objection by the lessor, who assured the lessee that no forfeiture would be claimed, and the tenant relied upon such assurances, the landlord is estopped to claim a forfeiture for failure of the tenant to pay- the last instalment of rent at the time specified in the lease, pp. 616, 619.</p> <p>9. Estoppel. — Equitable.—Grounds.—Where one party has by his representations or conduct induced the other party to a transaction to give him an advantage which it would be against equity for him to assert, he will not be permitted to avail himself of that advantage, p. 618.</p> <p>•10. Landlord and Tenant. — Action for Possession. — Waiver of Forfeiture. — Inconsistency of Evidence. — In a landlord’s action against a tenant to recover possession for failure to pay rent in advance as covenanted in the lease, lessee’s testimony that he did not pay his rent promptly because he was “hard up” and did not have the money was not inconsistent with the claim that he had relied on the lessor’s representations that a for- ' feiture would not be claimed for failure to pay rent at maturity. p. 622.</p> <p>11. Corporations. — President’s Authority to Bind Corporation.— Presumption. — Where a president of a corporation had general management of its business, it will be presumed, in the absence of evidence to the contrary, that he had authority to bind the corporation by statements in reference to a lease executed by him, and such statements were binding until withdrawn. p. 628.</p> <p>12. Corporations. — President’s Authority. — Admission.—Where a corporation, in an action to recover possession, sought to assert rights created by a lease executed by its president and introduced the lease in evidence, it, in effect, admitted his authority to execute the lease, p. 623.</p>

<p>1. Appeal. — Brief --Sufficiency. — Waiver of Defects. — Where the appellant’s brief fails to set forth- the finding of facts and the conclusions of law, or the substance thereof, no question is presented for review thereon, but where appellee in his brief sets out a brief summary of the special finding of facts and two of the conclusions of law, the infirmity in .appellant’s brief is to that extent cured, p. 627.</p> <p>2. Trial. — Findings. — Sufficiency. — In an action to have set aside a warranty deed claimed to have been procured by fraud when only a mortgage was intended, special findings that plaintiff requested defendant to see the holder of a mortgage and make arrangements to take it up, that defendant agreed to either personally furnish or procure money to pay the mortgage indebtedness under an agreement that plaintiff should execute a mortgage to him on his entire tract of land, that defendant, knowing that plaintiff was illiterate, prepared a warranty deed conveying the land to himself, and that plaintiff, believing the instrument to be a mortgage, executed the deed, which he would not have done if he had known it was a deed, the consideration being greatly inadequate, are sufficient to Warrant the conclusion of law that the deed was obtained through fraud, pp. 628, 630.</p> <p>3. Fraud. — Fraudulent Intent. — Statutes.—Applicability.—The provision of §7483 Burns 1914, §4924 R. S. 1881, that fraud shall be deemed a question of fact applies only to actions involving the question of fraudulent intent, where the rights of the parties depend in some manner upon the statute of frauds, p. 629.</p> <p>4. Appeal. — Review. — Findings.—Inferences.—Where the primary facts found lead to but one conclusion, or where the facts found are of such a character and nature that they necessitate the inference of an ultimate fact, such ultimate fact will be treated as found, p. 630.</p>

<p>1. Pleading. — Demurrer to Answer.- — Memorandum.-—Statute.— Where a demurrer to a paragraph of answer is not accompanied by a memorandum specifying wherein the paragraph is deficient for want of facts, as required by §§344, 351 Burns 1914, Acts 1911 p. 415, §346 R. S. 1881, an assignment that the trial court erred in overruling the demurrer presents no question for review on appeal, p. 639.</p> <p>2. New Trial.- — Grounds.-—Statute.—Specifications in a motion for a new trial that the decision or finding of the court is not fairly supported by the evidence, that the decision or finding of the court is clearly against the weight of the evidence, that the judgment is clearly against the weight of the evidence, that certain of the special findings are not sustained by sufficient evidence and that neither of such findings, considered separately and alone, is sustained by sufficient evidence, are not recognized by §585 Burns 1914, §559 R. S. 1881, as grounds for a new trial and present no question for review on appeal, p. 640.</p> <p>3. Appeal. — Briefs.—Specification of Errors. — Record.—Specifications in a motion for a new trial alleging error in the admission and rejection of evidence cannot be considered on appeal where appellant’s brief does not contain any portion of the record showing any of the alleged errors, although the motion for a new trial, as set out in the brief, contains some questions and answers, but shows no objection, ruling or exception, p. 640.</p> <p>4. Evidence. — Certificate of Deposit. — Parol Evidence as to Character of Instrument. — In an action against a bank on a certificate of deposit, where the certificate was signed by the cashier without designating himself as such, but the instrument bore an indication that it may have been issued by the cashier while engaged in the proper discharge of his duty in a transaction which was legitimate business of the bank, extrinsic evidence was admissible upon the issue whether the certificate was signed by the cashier in his individual or official capacity, p. 641.</p> <p>5. Banks and Banking. — Action on Certificate of Deposit.— Burden of Proof. — In an action against a bank on a certificate of deposit signed by its cashier, the burden was on plaintiff to prove, before it could recover, that the issuance of the certificate was in fact the act of the bank. p. 641.</p> <p>6. Banks and Banking. — Certificate of Deposit. — -Action.—Liability of Bank. — Where a company, acting as agent for a bank cashier in conducting certain speculative transactions for him on the board of trade, requested the cashier to deposit with the company an additional $3,000 as security for the transaction, and he forwarded his worthless check, which the company sent to the bank for collection, where it was received by the cashier, who, in place thereof, mailed the company a certificate of deposit for $3,000, the company having no interest in the transaction except as agent for the cashier and neither of them having in the bank any money or anything of value as a consideration for the certificate, the bank was not liable on the certificate in the absence of a ratification by its board of directors, even though the cashier in issuing the certificate assumed to act in his official capacity, since an agent in matters touching the agency cannot bind his principal when he has an adverse interest in the transaction, p. 641.</p>

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act in the matter of U. S. Grant Durr against Born and Company. From an order of the Industrial Board ordering medical attention beyond the thirty-day period provided in the act, the defendant appeals.

From the Industrial Board of Indiana. Claim under the Workmen’s Compensation Act by John F. McCool, physician, against Kirkoff Brothers and McElwaine, employer, and the Prudential Casualty Company for medical treatment of an injured employe. Claim allowed, and employer and insurer appeal.

<p>From Morgan Circuit Court; Nathan A. Whitaker, Judge.</p> <p>Action by the First National Bank of .Martinsville against Mary K. Wilt and others. From a judgment for plaintiff, defendants appeal.</p>

From Bartholomew Circuit Court; Hugh Wickens, Judge. Action by Elam Dye and Edward Bennett, doing business as partners under the firm name of Dye and Bennett, against the Carmichael Produce Company. From a judgment for defendant, the plaintiffs appeal.

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Action by Burdette C. Lutz, administrator of the estate of Lydia A. Steirheim', deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Master and Servant. — Employers’ Liability Act. — Injury to Servant. — Complaint. — Sufficiency. — Negligence.— As negligence is the gist of all actions maintainable under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914), and the'act makes no change respecting the burden of alleging negligence and proximate cause in actions under the statute, the complaint must, in terms, charge the negligence relied on, or facts must be averred sufficient to compel the inference of such negligence as will constitute the proximate cause of the injuries sustained, p. 675.</p> <p>2. Master and Servant. — Injury to Servant. — Complaint.—Negligence. — Proximate Cause. — In a servant’s action for burns received while* employed as an “engine packer” in a roundhouse, where the complaint averred that it was plaintiff’s duty,' pursuant to the master’s orders, to melt grease from certain plates by placing them on top of a stove, alleged to be dangerous equipment in that it was not entirely enclosed and was not so constructed or safely guarded as to prevent sparks from being thrown therefrom, or to keep employes from getting close to it, and that, while plaintiff was placing one of the plates upon the stove in the performance of his duties, his clothing caught fire, the specific facts pleaded do not compel the presumption of negligence nor authorize the inference that any act or omission of defendant was the proximate cause of the injury, and the complaint is demurrable, p. 676.</p>

From Washington Circuit Court; James P. Hughes, Special Judge. Action by William A. Kober against William A. Boyce and others to recover on promissory notes, to foreclose a mortgage on real estate, and to expunge from the record a release of the mortgage, and defendants Henry C. Fear and Laura B. Fear filed a cross-complaint- to quiet title to the real estate described in the mortgage.

<p>From Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by Carl Fancher, by his next friend, William Fancher, against the Capital Rattan Company. From a judgment for plaintiff, the defendant appeals.</p>

From Dearborn Circuit Court; Warren N. Hauck, Judge. ' Proceedings in the matter of the assessment of the Aurora Gaslight, Coal and Coke Company. From a judgment, of the circuit court adjudging the company liable for certain taxes, the company appeals.

<p>From Knox Circuit Court, Benjamin M. Willoughby, Judge.</p> <p>Action by Frank V. Cook and others against Judson A. DeLay and another. ■ »</p> <p>From a judgment for defendants, the plaintiffs appeal.</p>

<p>From Benton Circuit Court; Burton B. Berry, Judge.</p> <p>Action by Charles O. Blind against The Cleveland, Cincinnati, Chicago'and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred to the Supreme Court under §1392 Burns 1914, Acts 1907 p. 237; §1397 Burns . 1914, Acts 1901 p. 565.)</p>