Volume 68 — Indiana Appellate Court Reports

<p>From Marion Superior Court (91,925); Linn D. Hay, Judge. ’</p> <p>Action by Hamar A. Kendall against the Vandalia Kailroad Company. From a judgment-for the plaintiff, the defendant appeals.</p>

<p>From St. Joseph. Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Eva James against John H. Wilson and others. From a judgment for the defendants, the plaintiff appeals.</p>

From Huntington Circuit Court; Claud Cline, Special Judge. Action by Mathias Keefer against the Chicago and Erie Railroad Company and another. From a judgment for the plaintiff, the named defendant appeals.

From Cass Circuit Court; James P. Wason, Judge. Action by Louis Reidelbach and others against James Nelson and others. From a judgment for the plaintiffs, the defendants appeal.

<p>From Monroe Circuit Court; Robert W. Miers, Judge</p> <p>Action by Florence • Burkhart against Milford G. Koons and others. From a judgment for plaintiff, the defendants appeal.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Burt F. Baynes against the Staats-Baynes Company. From a denial of an award, the applicant appeals.

<p>1. Appeal. — Briefs.—Sufficiency.—Abstract Propositions of Law.— Waiver of Error. — Where appellant’s brief, under its points and authorities, set forth a number of general statements of facts and abstract propositions of law, but made no reference to the motion for a new trial, nor were such propositions of law specifically applied to any alleged error relied on for reversal, no question is presented for review and any error is waived, p. 45.</p> <p>2. Insurance. — Dues and Assessments. — Time of Payment.— Waiver. — Although a provision in a benefit certificate of. insurance limited the time in which dues and assessments might be paid, such provision could be waived by the local agent giving permission to pay them a few days late and thereafter so receiving them for several years, p. 46.</p>

<p>From Knox Circuit’ Court; Benjamin M. Willoughby, Judge.</p> <p>Action by Boxy M. Van Stone against the Chicago and Eastern Illinois Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Pleading. — General Issue. — Abandonment of Rights in Lands.— Where the strict legal title to real estate is not involved the defendant may prove, even under the general issue, that the rights of plaintiff in lands have been abandoned, p. 59.</p> <p>2. Easements. — Easement Acquired by Grant. — Abandonment.— Intention. — An easement of a way resting in a grant may be abandoned by the dominant owner, but the question of abandonment is one of intention which must be determined from the facts of each particular case. p. 60.</p> <p>3. Easements. — Easement Acquired by Grant. — Nonuser.—Effect.— While an easement acquired by actual grant cannot be lost by mere nonuser, a cesser of the use, accompanied by acts clearly indicating an intent- to abandon the right, will have the effect of an express release and work an extinguishment of the easement. p. 60.</p> <p>4. Easements. — Easement Acquired by Grant. — Abandonment.— Evidence. — Acceptance of Other Way. — Where defendants’ grantees were given an easement of way which they never used, but accepted and used a more convenient one subsequently furnished by defendants, the grantees’ acceptance of the new way was not as a matter of law an abandonment of the granted easement, but could be considered as an element on the issue of the intention to abandon such easement, p. 60.</p>

<p>From Noble Circuit Court; Luke H. Wrigley, Judge.</p> <p>Action, by Bright National Bank against Edward M. Hanson. From a judgment for defendant, the plaintiff appeals.</p>

From Huntington Circuit Court; J. F. Charles, Special Judge. Action by Winfield Eunyan against Nellie Y. Eunyan and Jacob E. Davis, sheriff. From a judgment for plaintiff, defendant Eunyan appeals, and plaintiff moves to dismiss the appeal.

<p>From Marion Superior Court; Linn D. Hay, Judge.</p> <p>Action by Jessie Robbins against Harry Mowes and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. ■ Municipal Corporations. — Paries.—River in Parle. — Liability for Dangerous Condition. — In an action against a city for the death of plaintiff’s minor daughter, where the complaint alleged that,while boating at defendant’s invitation on a stream contiguous to a public park, a small boat in which deceased was riding was overturned in a collision with a privately owned motor boat, and, after being thrown in the water, she was caught and held by a barbed wire in the stream and drowned, the negligence charged being that defendant carelessly permitted quantities of barbed wire to accumulate in the river bed and that it allowed the use of motorboats on the river, thereby endangering boaters and bathers, where there was no evidence to sustain the charge of negligence as to the use of motorboats or that the city had notice, actual or constructive, of the existence of the wire, and • the evidence further showed that defendant exercised no control over the place where the accident occurred, except to police the stream, and the wire could not have been seen by the exercise of ordinary care by one doing police duty, a verdict-ior defendant is sustained by sufficient evidence, pp, 99, 92.</p> <p>2. Appeal. — Review.—Verdict.—Conclusiveness.—The jury’s verdict is conclusive on appeal if there is any evidence to sustain it. p. 92.</p> <p>3. Appeal. — Review.—Refusal of Instructions. — The refusal of tendered instructions was not error, where they were substantially • covered by proper instructions in so far as they were applicable, p. 92.</p> <p>4. Trial. — Instructions.—Failure to Request. — Where plaintiff xnlied to request any further instruction on a phase of the case covered by an instruction which was good as far as it went, he cannot complain of the instruction given, p. 92.</p>

<p>From Lake Superior Court; Charles E. Greenwald, Judge.</p> <p>Action by Philemus Williams against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Trusts. — Constructive Trusts. — The court cannot construct a trust where the misconduct amounts merely to a breach of contract to convey, where there was no fraud or undue influence connected with the transaction in its inception, p. 108.</p> <p>2. Mortgages. — Action to Save Deed Declared a Mortgage. — Evidence. — Sufficiency.—In an action to have a deed declared a mortgage and to quiet title, evidence held sufficient to sustain a finding that the instrument was a. deed and not a mortgage, pp. 109, 110.</p> <p>3. Mortgages. — Absolute Deed. — Chwacter of Instrument. — Evidence. — Promise to Pay Debt. — On ascertaining whether an absolute deed to one discharging indebtedness on the land conveyed is a mortgage, although the absence of a promise to repay the grantee at any specified time is not conclusive, it is a, circumstance more favorable to tbe grantee than to tbe grantor, p. 110.</p> <p>4. Mortgages. — Conditional Sales. — Enforcement.—While courts are inclined to' regard a transaction as a mortgage rather than a conditional sale, yet when the contract on its face shows a conditional sale and there are no facts explaining or contradicting its terms, it will be carried into execution, p. 110.</p> <p>5. Mortgages. — Absolute Deed. — Option to Repurchase. — In an action to have an absolute deed declared a mortgage, evidence showing that grantor had an option to repurchase the land conveyed within a certain period is insufficient upon which to declare the deed a mortgage, p. 110.</p>

<p>From Jackson Circuit Court; Oren O. Swails, Judge.</p> <p>Action by William H. Eights against the city of Seymour which interpleaded Elias £>. Douglass; From a judgment for plaintiff, Douglass appeals.</p>

From Allen Circnit Court; John W. Bggemcm, Judge. Action by tbe Fort Wayne and Northern Indiana Traction Company against the Vandalia Railroad Company and another. From a judgment for plaintiff, the named defendant appeals.

<p>1. Appeal. — Briefs.—Waiver of Error. — Where no reference, either express or implied, is made in appellant’s points and authorities to a ground of the motion for new trial, which was overruled, such ground is waived, p. 142.</p> <p>2. Partnership. — Breach of Contract. — Action.—Evidence.-—Sufficiency. — Good Faith. — In an action by one partner against another to recover damages for an alleged breach of 'a partnership contract providing for the purchase from a trustee in bankruptcy of an automobile fáctory and that certain payments be made to plaintiff if an option for the repurchase of the plant by its former owner was exercised, evidence held to- show that dependent partner, in selling under the option on time instead of for cash, acted in good faith and that plaintiff was tendered all that was due him under the contract, so that the evidence was sufficient to sustain the trial court’s finding for defendant, pp. 147, 149.</p> <p>3. Partnership. — Breach of Trust. — -Action.—Burden of Proof.— In an action by a partner to recover damages for an alleged breach of a partnership contract, the burden is on the plaintiff to show both the partnership and its breach, p. 148.</p> <p>4. Contracts.- — -Written.—Explaining.—Parol Evidence. — In an action by one partner against another for breach of a partnership contract for the purchase of an automobile factory, which contained an option for the repurchase of.the plant by its former owner, parol- evidence as to the option was admissible to explain the situation of the parties when their written contract was executed, where such evidence in no way changed the provisions of the written agreement, but only-purported to make clear certain references therein, p. 148.</p>

<p>1. Justice of the Peace. — Actions Before. — Failure to File Answer. — Defenses.-—Statute.—In an action originating before a justice of the peace, where no formal answer was filed, the defenses were limited to those authorized by §1749 Burns 1914, §1460 R. S. 1881. p. 151.</p> <p>2. Infants. — Contracts.-—Adult Joint Obligor. — Avoidance.—Recovery of Payments. — An infant is not precluded from recovering payments made upon a piano, after an avoidance of the conditional sale contract under which it was purchased, because an adult was her joint obligor, where all payments were made by or for her. p. 154.</p> <p>3. Parent and Child. — Emancipation.—Evidence.—Where a father allowed an infant daughter to use and apply her earnings to the purchase of a piano, and, after she had avoided the purchase contract, prosecuted an action as next friend to recover payments made, such facts are evidence of her emancipation, which need not be proved by direct evidence, but may be implied from circumstances, p. 157.</p> <p>4. Pabent and Child. — Child’s Earnings. — Right of Parent. — ■ Money Paid to a Third Person. — Although a parent is generally entitled to the services and earnings of his minor child and may recover the value thereof from the person for whom the services were rendered, he cannot recover for himself the earnings which he has permitted the child to collect and pay to a third person, p. 157.</p> <p>5. Infants. — Contracts.—Conditional Sale. — Avoidance.—Recovery of Payments. — Return of Property. — Where an infant bought a piano under a conditional sale contract, and, after the purchase price was paid in part, the piano was retaken by the seller, the contract did not become executed so that the seller could retain the payments, although the contract provided that, if the seller retook the piano in event of the purchaser’s default, all money paid on the purchase priqe should belong to the seller as compensation for the usé, rental and depreciation of the instrument, pp. 157, 161.</p> <p>6. Infants. — Contracts.—Avoidance.—Statu Quo¿ — Although an infant, on the disaffirmance of a contract, must return the property acquired thereunder, yet it is not necessary, to make the disaffirmance effective, that he put the other contracting party in statu quo. p. 160.</p>

From Jackson Circuit Court; Oren O. Swails, Judge. Proceedings before the board of commissioners of the county of Orange on the petition of Jacob R. Chastain to have accepted as completed a road constructed by him. Petition opposed by certain taxpayers and, on a finding by the board against the petitioner, he appealed to the circuit court. From an adverse judgment, the petitioner appeals.

<p>From Marion Superior Court (101,928); Theophilus J. Moll, Judge.</p> <p>Action by Louise E. Cloud against George Teepe and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From Fountain Circuit Court; Isaac E. Schoonover, Judge.</p> <p>Action by Sarab E. Ferguson and another against John E. Weaver and others. From a judgment for plaintiffs, the defendants appeal.</p>

From Miami Circuit Court; Charles A. Cole, Judge. Proceedings by Samuel W. Fetrow before tbe Indiana State Board of Dental Examiners. From a finding denying bim a certificate entitling bim to practice dentistry, Fetrow appealed to tbe circuit court. From a judgment in bis favor, tbe board appeals.

<p>1. Appeal. — Questions Reviewa'ble. — Insufficiency of Complaint.— Assignment of Errors. — Error assigned on the “Insufficiency of the complaint to state a cause of action,” presents no question for review on appeal, p. 194.</p> <p>2. Justice op the Peace. — Pleading.—Complaint.—Sufficiency.— Determination. — In an action originating before a justice of the peace, á complaint sufficient under the rules of pleading and practice governing that court is sufficient in the circuit court on appeal, p. 194.</p> <p>3. Justice op the Peace. — Pleading.—Complaint.—Sufficiency — Where an action is commenced before a justice of the peace, a complaint sufficient in substance to apprise the adverse party of the nature of the demand, and to bar another action for the same thing, is sufficient even as against demurrer, p. 194.</p> <p>4. New 'Tbial.' — Grounds.—Rulmg on Demurrer. — Overruling a demurrer to a complaint is not a cause for a new trial, p. 195.</p> <p>5. Appeal. — Briefs.—Waiver of Error. — Grounds for a new trial are waived by appellant’s failure to address any proposition or point thereto in his brief, p. 195.</p> <p>6. Appeal. — Review.—Instructions.—Record.—To authorize a consideration of the action of the trial court in giving and refusing instructions, they must be brought into the record by a substantial compliance with one of the methods provided by statute therefor, p. 195.</p> <p>7. Appeal. — Presenting Questions for Review. — Instructions.—MaJcing Part of Record. — Filing.—To make the instructions a part of the record in a civil case without a bill of exceptions, the record must affirmatively show that they were filed in open court, and an order to file appearing in the record is not sufficient to satisfy that requirement... p. 195..</p> <p>8. Appeal. — Presenting Questions for Review. — Instructions.—Making Part of Record. — Statute.—It is essential, in order that requested instructions become a part of the record without, a bill of exceptions that the record show that they were filed as required by §558 Burns 1914, §533 R. S. 1881 and §561 Burns 1914, Acts 1907 p. 652. p. 196.</p> <p>9. Appeal. — Presenting Questions for Review. — Instructions.—1taking Part of Record. — Statute.—Where appellant attempted to save his exceptions with reference to instructions under §561 Burns 1914, Acts 1907 p. 652, providing that the court shall indicate before instructing tbe jury, by a memorandum in writing at tbe close of the instructions requested, the numbers of those given and of those refused, and that such memorandum shall be signed by the judge, a failure to comply with the statute is fatal to a consideration of the instructions, and they cannot be identified by marginal notes in the transcript nor by a memorandum following each signed by appellant’s attorney, p. 197.</p>

<p>From Porter Circuit Court; A. D. Bartholomew, Judge.</p> <p>Action by tbe Thrift Trust Company, administrator of tbe estate of Gustav Fritz, deceased, against tbe Grand Trunk Western Railway Company. From a judgment for plaintiff, tbe defendant appeals.</p>

<p>From Lawrence Circuit Court; Oren O. Swails, Judge.</p> <p>Action by Enoch Davis against Showers Brothers Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Bush Circuit Court; Will M. Sparks, Judge.</p> <p>•Action by Albert W. Brayton, Jr., doing business under tbe firm name of tbe State Forestry Company, against tbe city of B-usbville. From a judgment for defendant, tbe plaintiff appeals.</p>

<p>From Daviess .Circuit Court; James W. Ogdon, Judge.</p> <p>Action by Jonas Butler, by his next friend, Charles E. Butler, against the Vandalia Coal Company. From a judgment for plaintiff, the defendant appeals.</p>

From Clay Circuit Court; Jolm M. Rawley, Judge. Action by James R. Riggs against the board of commissioners of'the county of Sullivan, on a claim rejected by the board. From a judgment for plaintiff the defendant appeals.

<p>From Porter Superior Court; Harry L. Crumpacker, Judge.</p> <p>Action by Egbert A. Peck against tbe Baltimore and Ohio Railroad Company. From a judgment for plaintiff, tbe defendant appeals.</p>

From Wells Circuit Court; Evans M. Cole, Judge .pro tem. Charles W. Stout, administrator of the estate of Reuben Stout, deceased, filed his final report, and Ira Stout and others excepted thereto. From the finding made, the objectors appeal.

<p>1. Municipal Corporations. — Statute. — Street Improvements.— Construction. — In ascertaining tbe legislative intent in enacting §8710 et seq. Burns 1914, Acts 1905 p. 236, as amended, Acts 1909 p. 412, relative to assessments for street improvements, etc., tbe court must consider tbe question in tbe light of tbe rule requiring sucb statutes to be strictly construed, p. 294.</p> <p>2. Municipal Corporations. — Street Improvements. — Assessments. —Tbe process prescribed by §8716 Burns 1914, Acts-1909 p. 412, for determining wbat property is “liable to be assessed” for proposed street improvements is essentially one of taxation, p. 294.</p> <p>3. Municipal Corporations. — Street Improvements. — Assessments. —Property Affected. — Statute.—The provision in §8714 Burns 1914, Acts 1909 p. 412, that property abutting on a street to be improved shall be primarily assessed without regard to depth is not intended to extend the limits of the special tax district beyond 150 from the line of the street as provided by §8716 Burns 1914, Acts 1909 p. 412. p. 294.</p> <p>4. Municipal Cobpoeations. — Street Improvements. — Excessive Assessments. — Remedy.—Though a lot is of such little depth that its portion of the primary assessment for street improvements exceeds its value, the entire portion of such assessment must be levied upon it; but a readjustment to avoid confiscation may be made after a hearing under §8714. Burns 1914, Acts 1909 p. 412. p. 295.</p> <p>5. Municipal Cobpoeations. — Street Improvements. — Assessments. —Apportionment as Between Adjacent Owners. — Though special assessments for street improvements are levied primarily on the property adjoining the street, the common council may, after a hearing under §8714 Burns 1914, Acts 1909 p. 412, relieve an owner of such adjoining property from an inequitable assessment by transferring a portion of the primary assessment to adjacent property lying back of that adjoining the street and within the assessment district; and in such case the element of diverse ownership may not be ignored, since a levy of the entire assessment on the two tracts without an apportionment of a- specific share to each might result in irremediable injustice, p. 295.</p> <p>6. Municipal Cobpoeations. — Street Improvements. — Assessments. Apportionment. — The plan provided in §8714 Burns 1914, Acts 1909 p. 412, for carrying back a portion of the primary assessment for street improvements from property abutting the street and distributing it on successive tracts in the rear; constitutes the only method by which such adjacent tracts may be assessed, whether there be diverse ownership or not. p. 295.</p> <p>7. Municipal Cobpoeations. — Street Improvements. — Assessments. —Property Liable. — In carrying back from abutting property to adjacent tracts portions of the primary assessment for street improvements, under §8714 Burns 1914, Acts 1909 p. 412, no intervening tract may be ignored, but the several tracts must be assessed consecutively; in this manner portions of the primary assessment may be carried back 150 feet, though no assessment can extend across another street, even if owned by the same person and within 150 feet. p. 295.</p> <p>8. Municipal Cobpoeations. — Street Improvements. — Power of Common Council. — Nature of. — Though the action of the common council in levying street improvement assessments bears some resemblance to judicial action, the council is not even an inferior court, and therefore cannot exercise judicial power; the only instance in which the council acts independently or qwasi-judicially is in carrying back portions of the primary assessment from abutting property to adjacent tracts, all other powers in levying assessments being purely ministerial, pp. 297, 298.</p> <p>9. Municipal Corporations. — Street Improvements. — Assessments. —Injunction.—Collateral Attaelc. — Where the common council levied an assessment for street improvements on property that did not abut on the street and was not adjacent to abutting property, but was separated therefrom by another public thoroughfare, though it belonged to parties owning the abutting property, the action was void; and it was not necessary for the owners to appear in the proceeding to protect their rights or to seek relief by appeal to the circuit court, but they could bring a separate action to enjoin the illegal assessment, since the only question reviewable on appeal to the circuit court is the amount of the assessment, the right of appeal being expressly denied as to an assessment on property not liable, pp. 299, 300.</p> <p>10. Estoppel. — Pleading.—Demurrer.—Raising Defense. — Since an estoppel must be specially pleaded, the question of its existence may not be raised by demurrer to the complaint, p. 300.</p>

<p>From Wells Circuit Court; W. II. Eichhorn, Judge.</p> <p>Action by Homer A. Lesb against tbe Rock Creek Township Farmers’ Mutual Insurance Company. From a judgment for the defendant, the plaintiff appeals.</p>

From the Industrial Board. Proceedings by Jacob A. Mobley, under the Workmen’s Compensation Act against the J. S. Rogers Company. An award by one member of the board was reversed by the full board, and the applicant appeals.

<p>1. Sales. — Merchantability.—Tbe general rule is that where goods are'sold by description and the buyer has had no opportunity for inspection, the goods must not only, in fact, answer the description but must also be salable or merchantable under such description. p. 317.</p> <p>2. Sales. — Implied, Warranty. — Merchantability.—In the sale of perishable goods, such as apples, there is no implied warranty . that they will. continue sound or merchantable for a definite period or for any period after delivery, p. 317.</p> <p>3. Appeal. — Misleading Instruction. — Reversible Error. — Where, in a suit for recovery of the purchase price of a carload of apples, the issue was merchantability at the place of shipment, it was reversible error to instruct in effect that, if the apples were not fit for use in the market, there was a breach of the contract of implied warranty, since the language tended to confuse the jury as to the place of merchantability, p. 318.</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action between Union School Township of Jasper county and Merton Y. Brown. From a judgment for the latter, the township'appeals.</p>

<p>1. Appeal. — Review.—Ruling on Demurrer to Answer. — Where judgment was rendered against the plaintiff on his refusal to plead further after his demurrers to paragraphs of answer were overruled, the judgment must be affirmed on appeal if one sufficient paragraph of answer was addressed to each paragraph of complaint, even though the ruling were erroneous as to other paragraphs, p. 324.</p> <p>2. Estoppel. — Quitclaim Deed. — Though the general rule is that a quitclaim deed does not estop the grantor from ascertaining an after-acquired interest in the lands therein described, a recital in a deed without covenants, in substance, that the grantor thereby intends to convey an interest specifically described and identified may be effective, through the principle of estoppel, to convey an after-acquired interest, p. 325.</p> <p>3. Estoppel. — Quitclaim Deed of Husband. — Interest Conveyed. — *. A quitclaim deed executed by a husband alone which failed to point out specifically the estate or interest intended to be conveyed was not effective to convey, as an after-acquired interest, the estate acquired in his wife’s realty upon her death, p. 326.</p> <p>4. Husband and Wife. — Separate Estate. — The husband’s interest in the wife’s lands during her lifetime is of the same character as the wife’s, interest in the husband’s lands during his lifetime, p. 326.</p> <p>5. Husband and Wife. — Conveyances.—The interest that a wife has in her husband’s lands while he is yet living is of such an intangible nature that it cannot be conveyed either by her deed or by the joint deed of herself and husband, the latter retaining his interest in the lands, p. 326.</p> <p>6. Husband and Wife. — Husband’s Creditors. — The husband’s inchoate interest in his wife’s lands while she is living is so unsubstantial that it-may not be reached or affected by his creditors, p. 327.</p> <p>7. Husband and Wife. — Separate Estate. — In view of §3952 Burns 1914, §2921 R. S. 1881, the inchoate interest of the husband in the wife’s lands cannot be separately conveyed, p. 327.</p> <p>8. Limitation of Actions. — Existence of Trust — The rule that the statute oí limitations may not be pleaded in bar of a suit to enforce a trust where it appears that the trust is direct and continuing, is limited in its application to trusts that are subsisting, recognized and acknowledged, p. 327.</p> <p>9. Limitation of Actions.- — To Enforce Subsisting Trust.— Repudiation of Trust — Effect.—The rule that the statute of limitations may not be pleaded in bar of a suit to enforce a subsisting, recognized and acknowledged trust is qualified by the rule that where the trustee, with knowledge of the cestui que trust, openly disavows and repudiates the trust, the statute begins to run. p. 327.</p> <p>10. Trusts.- — Disavowal.—Proof.—The fact that a trust has been openly disavowed and repudiated by the trustee,, with knowledge of the cestui que trust, may be proved by circumstances, p. 327.</p> <p>11.. Limitation of Actions. — Quieting Title by Establishing Trust. ■ — An action to quiet title to lands, by establishing a trust therein, is governed by the fifteen years’ statute of limitations, p. 328.</p> <p>12. Limitation of Actions. — Quieting Title. — Possession as Factor. —A person in possession of real estate may quiet his title against a hostile, unfounded claim asserted at any time within fifteen years; and if out of possession, he may maintain an action to quiet title against any such claim asserted within fifteen years, provided his right to recover possession is not barred by the twenty years’ statute of limitation, §295, cl. 6, Burns 1914, §293 R. 8.1881. p. 328. '</p> <p>13. Wills. — Ratification.—Acceptance of Benefits. — The acceptance of benefits under a will amounts to a ratification of the will in all its parts, and the person so accepting must bear the burdens thereby imposed, p. 329.</p>

From the Industrial Board. Proceeding by Albert Wolfe for compensation under -the Workmen’s Compensation Act against the Puritan Bed Spring Company. Appellant was granted an award by a single member and, subsequently, by the full board, and the employer appeals.

From Clark Circuit Court; James W. Fortune, Judge. Action by the State of Indiana, on the relation of Fred Popp, guardian, against the Federal Union Surety Company and others. From a judgment for the plaintiff, the defendants appeal.

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Action by Sarah C. Myers and others against Lewis Chamberlin. From a judgment for the plaintiffs, the defendants appeal.</p>

From VigQ Superior Court; Fred W. Beal, Judge. Action by Mary C. Barnes, by William Barnes, her next friend, against tbe Chicago, Terre Haute and Southwestern Bailway Company. From a judgment for the plaintiff, the defendant appeals.

<p>From Whitley Circuit Court; Luke H. Wrigley, Judge.</p> <p>Action by James C. Curtis, receiver, against the Chicago and Erie Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by Ice H. Eamsey against Agnes E. Yount and others. From a judgment for defendants, the plaintiff appeals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Lena D. Bose and another against the Vonnegut Hardware Company and others. From an award for applicants, the defendants appeal.

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Action by Frank Loi, administrator -of the estate of Adam Loi, deceased,- against Elizabeth Zoellers and others. From a judgment for plaintiff, the defendants appeal.</p>

From the Industrial Board of Indiana. 'Proceedings for compensation under the Workmen’s Compensation Act by James L. Pedlow against the Swartz Electric Company. From the award rendered, the applicant appeals.

<p>1. Appeal. — Review.—Waiver of Error. — Alleged error in the admission of evidence is waived by the failure of appellant, in its statement of the record, to point out the page and line of the transcript at which the rulings complained of may be found, p. 408.</p> <p>2. Appeal. — Briefs.—Abstract Propositions of Law. — Questions Presented. — A proposition in appellant’s points and authorities in reference to instructions which is not directed to any particular Instruction cannot be aided by reference to appellant’s argument and presents no question for review, p. 408.</p> <p>3. Bills and Notes. — Bona Fide Owner. — Evidence.—In an action ■ by assignee bank on a note embodying a conditional contract of sale of live stock under which the payee of the note, or holder thereof, might retake and sell the live stock on failure to pay when due, evidence showing that, on default in payment, the payee retook and sold the cattle for which the instrument was given and entered credit on the note at the bank, and that the bank cashier or his assistant informed defendant's attorney in response to an inquiry about the note that he must see the payee, as the bank had nothing to do with the instrument, was sufficient to warrant the inference that the bank was not the liona fide owner of the note. p. 408.</p>

<p>From Elkhart Circuit Court; James 8. Dr alte, Judge.</p> <p>Action by John C. Mellinger against Frank Brumbaugh and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Banks and Banking. — Forged Chech.- — Payment to Bona Fide Holder, — Recovery.—Where a check purporting to have been drawn by a depositor is presented to a bank by a dona fide holder for value and without fault, and is paid by the bank, it cannot, if it subsequently discovers that the check is forged, recover the payment so made. p. 423.</p> <p>2. Banks and Banking. — Forged Chech. — Collection ty Banh.— Rights Between Banhs. — Where a check was presented to a bank for payment by a stranger, and the bank, though not actually paying the check stamped “Paid” on the face thereof, and on the back “Pay any Bank or Banker. All previous endorsements guaranteed,” attaching a slip, “We enclose for collection and return,” and sent the check to drawee bank which paid it, and, subsequently after the forwarding bank had paid the proceeds to its customer, the drawee discovered that the depositor’s signature and indorsement were forged, the drawee bank could not recover the proceeds of the check from the forwarding bank, since the negligence of both banks contributed to the loss and, in such a case, the loss will be allowed to remain where it has been placed by the course of business, p. 437.</p>

From Lake Superior Court; Virgil 8. Reiter, J udge. Action by the State of Indiana, on the relation of the Attorney-General, against the Lake Sand Company and others. From a judgment for relator, the defendants appeal.

From. Parke Juvenile Court; Henry Daniels, Judge. Proceedings by Andrew Drake and others against Andrew Heber and his wife to have their infant daughter declared a public charge. From a judgment for plaintiffs, the defendants appeal.

<p>1. A ppm, at.. — Review.—Harmless Error. — Admission of Evidence.— Cure by Instruction. — In an action for the possession of real estate, error, if any, in permitting plaintiff, grantor of the land in controversy, to testify that she believed a line fence to be the boundary line and that it was her intention to sell only to the fence, was cured by an instruction expressly withdrawing evidence of that character from the jury’s consideration, p. 457.</p> <p>2. Boundaries. — Pleading.—Issues.-—Grant in Accordance to Plat. —In an action for the possession of real estate involving a boundary, if the only description of the realty in the pleadings was by reference to the official plat, there would be no issue as to an agreed boundary line, since the plat would control, p. 458.</p> <p>3. Boundaries. — Pleading.—Issues.—Instructions.—-Agreed Boundary.- — In an action for the possession of real estate involving a boundary, where the complaint alleged that a line fence was on the boundary line in controversy, that defendants bought with reference to the fence as a boundary and had used only to such fence, and that immediate and remote grantors of the parties to the action had recognized the fence as the true boundary, instructions as to the recognition of the fence as the boundary were within the issues, p. 459.</p> <p>4. Boundaries. — Location. — Evidence. — Jury Question. — In an action for possession of real estate, involving a boundary line, evidence as to the length of time a fence had been in existence and the use and occupation of the realty in dispute with reference thereto and as to discrepancies between an original city plat and different surveys, held sufficient to present the issue whether such fence marked the boundary line in controversy, p. 460.</p> <p>5. Boundaries. — What Constitutes. — Location.—Question of Law and Fact. — What constitutes a boundary line is a question of law, but the location thereof is a question of fact. p. 462.</p> <p>6.. Boundaries. — Location.—Parol Evidence.- — Admissibility.—Varying Deed. — In an action for possession of real estate involving a boundary, where there was a dispute as to the width of several streets, evidence showing that there was a surplus in the block and that a certain fence was the true boundary between the lots involved, was not objectionable as tending to vary a deed conveying with reference to the plat, but was properly admitted to apply to the land conveyed thereby, p. 462.</p> <p>7. Deeds. — Application of Description. — Parol Evidence. — The purpose of a description in a deed is to furnish the means of identifying the lands conveyed and resort may be had to parol evidence to apply the description, render it intelligible and to give the conveyance the practical effect intended by the parties, p. 463.</p> <p>8. Estoppel. — Estoppel by Deed. — Reference to Plats. — Effect.—In an action involving a boundary line, where it appeared that plaintiff, the owner of two adjoining lots, conveyed one to defendants according to a certain original plat, and defendants denied an agreed boundary, but claimed under the deed, such plat became a part of the description in the deed and was binding on defendant, although later surveys shortened the block, p. 464.</p> <p>9. Appeal. — Review.—Harmless Error. — Issues Without ( Pleadings. — Failure to Object. — Affirmance.—Where issues not presented by the pleadings have been tried by the parties without objection and a correct result reached on any view of the case, and it affirmatively appears that intervening errors, if any, were harmless, the judgment will be affirmed, p. 465.</p>

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act by John Kendrew against the John A. Schumaker Company and others. From an independent order of the Industrial Board allowing applicant a sum for hospital and surgical expenses in addition to compensation, the defendants appeal.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Laura Calvert and others ag’ainst the Indian Creek Coal and Mining Company. From an award for applicants,-, the defendant -appeals.

From, the Industrial Board of .Indiana. Proceedings under the Workmen’s Compensation • Act for compensation by Charles Lysher against the Newcastle Foundry Company. From an award for applicant, the defendant appeals.

From Jasper Circuit Court; Charles W. Hanley, Judge.' Action by tbe J. R. Watkins Medical Company and others against George H. Hammerton and others. From a judgment for plaintiffs, the defendants appeal.

<p>From LaPorte Circuit Court; Harry L. C rum-packer, Judge.</p> <p>Action by Zacbarias T. Hostettler against Adolf Van Spanje and others. From a judgment for plaintiff, the defendants appeal.</p>

From Clinton Circnit Court; Joseph Combs, Judge. Action by George W. Weedon, administrator with the will annexed of the estate of Elsie McMurray Hartman, against the Federal Life Insurance Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Insurance. — Contracts.—Construction.—The rule that it is the duty of the court to ascertain the intention of the parties and to give effect thereto, applies to insurance as well as to other contracts, and the words used will be given their plain, ordinary and popular meaning, unless there is something in the contract to indicate a different meaning, p. 549.</p> <p>2. Insurance. — Ufe Insurance. — Construction of Policy. — Suicide. —“By Ms Own Act”. — A provision in a life insurance policy, avoiding it if the assured should die “by his own act,” refers to suicide only, and does not include death of a woman from septicemia following an operation to produce a miscarriage, p. 549.</p> <p>3. Appeal. — Review.—Ruling on Demwrrer. — Insufficient Memo■ ranbum. — Scope of Review. — Statute.—Although §844 Burns 1914, Acts 1911 p. 415, providing that when a demurrer to a complaint is filed for want of facts, a memorandum shall be filed therewith stating wherein the pleading is insufficient, applies to a demurrer to an answer, it is not reversible error to sustain • a demurrer to an answer accompanied by an insufficient memorandum if such ruling was correct, since the court on appeal, may go behind the memorandum to determine the correctness of the ruling in order to sustain the trial court, p. 551.</p> <p>4. Insurance. — Life Insurance.- — Death From Illegal Operation.— Insurer's IAability. — PubUe Policy. — Where a policy of life insurance, procured and issued in good faith, was payable to Beneficiaries, with the right reserved in the insured to change the same, so that they acquired a defeasible vested interest in the policy at the time of its issuance, public policy does not prohibit recovery on the policy by such beneficiaries where insured died from septicemia resulting from a criminal operation, the policy not expressly providing against liability for death from such a cause, p. 551.</p>

<p>1. Appeal. — Presenting Question for Review. — Assignment of Error. — Insufficiency of Complaint. — An assignment of error that the complaint does not state facts sufficient to constitute a cause of action presents no question for review on appeal, p. 561.</p> <p>2. Appeal. — Presenting Questions for Review. — Assignment of Error. — An assignment of error predicated on overruling a motion to direct a verdict presents no question for review on appeal, p. 561.</p> <p>3. New Trial. — New Trial as of Right. — Time for Motion. — Premature Motion. — Where, in an action to quiet title, plaintiff’s motion for a new trial as of right was filed prior to rendition of judgment on the verdict, it was not error for the trial court to permit him to withdraw such motion and to refile it at the proper time. p. 561.</p> <p>4. Appeal. — Review.—Complahvt.-—Amendments Deemed» Made.— In an action to quiet title, a judgment for plaintiff will not be reversed because the complaint does not allege that the real estate involved was situated within the state where there was evidence showing that it was so situated, since, in view of §700 Burns 1914, §658 R. S. 1881, providing that no judgment shall be reversed for an imperfection in pleading which might have been amended in the court below, the complaint will be deemed on appeal as having been amended to conform to the evidence, p. 562.</p> <p>5. Adverse Possession. — Permissive Use of Land.- — Rights Acquired. — A person cannot acquire any right in land as against the owner by a mere permissive use thereof, p. 563.</p> <p>6. Appeal. — Review.—Instructions.—Consideration as a Whole.— Theory of Case. — It is proper to present the theory of both parties by instructions within the evidence embodying such theories, and it is unnecessary that the whole law involved be stated in a single instruction where the instructions as a whole state the law correctly, p. 564.</p> <p>7. Appeal. — Briefs.—Presenting Questions for Review. — Construction. — The mere statement in appellant’s propositions and points that the court erred in giving certain numbered instructions is not a compliance with the rule of court relating to statement of propositions or points in the preparation of briefs and presents no question for review, although such statement is followed by a reference to a number of abstract propositions of law, none or which are applied to any particular instruction challenged, p. 564.</p> <p>8. Appeal. — Briefs.—Sufficiency.—Where appellant directs no point or proposition to grounds for a new trial, the brief fails to comply with the rules governing the preparation of briefs and no question is presented for review, and such failure cannot thereafter be used by a discussion of the alleged errors in the argument. p. 565.</p> <p>9. Appeal. — Review.—Evidence.—Where the evidence is conflicting the court on appeal will merely determine whether there is any evidence to sustain ¿he verdict, p. 566.</p> <p>10. Appeal. — Presenting Questions for Review. — Objections to Evidence. — To make alleged error in the admission of evidence available on appeal, the objecting party must state to the trial court, at the time the evidence is offered, the specific objection on which he relies for its exclusion, and only that objection so stated will be considered, p. 567.</p> <p>11. Appeal. — Briefs.—Waiver of Error. — The failure of appellant to state in his brief any proposition or point with reference to an alleged error predicated on misconduct of counsel in his argument, as required by Rule 22, cl. 5, of the Appellate Court governing the preparation of briefs, waives such error, p. 567.</p>

From Monroe Circuit Court; Robert W. Miers, J udge. Action by Mary B. West and another against the town of Bloomfield. From a judgment for plaintiffs, the defendant appeals.

From the Industrial Board of Indiána. Proceedings for compensation under the Workmen’s Compensation Act by Edward Majors against the Enterprise Fence and Foundry Company. From an award for applicant, the defendant appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Mary E. Waterman against Valentine Bachman and another. From an award for applicant, the defendants appeal.

<p>From Lake Superior Court; Virgil 8. Reiter, Judge.</p> <p>Action by William Wrigbt, receiver of the Indiana Trust and Savings Bank, against Mike Cohn. From a judgment for defendant, the plaintiff appeals.</p>

<p>From DeKalb Circuit Court; Dan M. Link, Judge.</p> <p>Action by Jonathan E. Taylor against Charles Capp and another. From a judgment for defendants, the plaintiff appeals.</p>

From Clinton Circuit Court; Joseph Combs, Judge. Action by tbe J. I. Case Threshing Machine Company against John Hufford and another in which the defendants counterclaimed. From the judgment ren- • dered, the plaintiff appeals.

<p>1. Principal and Agent. — Unauthorized Acts of Agent. — Ratification. — Effect.—A principal may ratify the unauthorized acts of his agent, and, when so ratified, such acts become as binding upon the principal as they would have been had such agent been duly authorized in the first instance, p. 614.</p> <p>2. Appeal. — Review.—Evidence.—Sufficiency.—If there is any evidence to sustain the trial court’s finding, it is sufficient on appeal, although such evidence may be strongly contradicted and not entirely satisfactory, p. 615.</p> <p>3. Appeal. — Evidence.—Sufficiency.—Scope of Review. — In determining whether there is any evidence to support the finding of the trial court, the court on appeal must consider not only that which may be said to be direct, but, also all reasonable inferences which the trial court may have drawn, p. 615.</p> <p>4. Principal and Agent. — Unauthorized Acts of Agent. — Ratification. — Evidence.—In an action on an alleged account stated, wherein defendant contended that its agent had no authority to make the settlement in controversy, evidence held to Justify the inference that defendant had full knowledge of the settlement soon after it was made. pp. 615, 617.</p> <p>5. Evidence. — Failure to Produce Favorable Witness. — Presumption. — Where a person has it within his power to produce a witness, presumably favorably disposed toward him, to explain a transaction, and fails to do so, the presumption is that the testimony, if produced, would be unfavorable to him. p. 617.</p> <p>6. Principal and Agent. — Ratification.—Scope.—A principal who adopts the act of one professing to act for him must' adopt it m toto, and will not be permitted to claim the benefit arising therefrom, and at the same time repudiate the burden thereof, p. 617.</p> <p>7. Account Stated. — Requisites.—Partial Settlement. — It is not necessary that an account stated should cover all the dealings between the parties, or that it should include all the claims between them, and either party may show that the balance found was struck upon a partial, and not a general, accounting, p. 623.</p> <p>8. Account Stated. — Comprehensiveness. — Presumption. — -While an account stated is prima facie to be taken as a settlement of all valid items of debit and credit existing between the parties at the time of its statement, this presumption is rebuttable, p. 623.</p> <p>9. Account Stated. — Conditional Claims. — Presumption.—There is no presumption that a contingent or conditional liability or claim is included in an accounting, and this rule applies to a claim not due. p. 623.</p> <p>10. Account Stated. — Evidence.—Conditional Claims.-In an action on an alleged account stated, evidence showing that certain items which were conditional and not due were not canvassed at the time of the settlement between the parties was insufficient' to negative plaintiff’s theory of an account stated, p. 623.</p> <p>11. Principal and Agent. — Ratification.—Proof by Inference.— Ratification by the principal of the acts of his agent may be inferred from facts and circumstances proved, p. 624.</p> <p>12. Evidence. — Proof.—Inferences.—An inference founded on a proved or known fact may be used as the basis for another inference, p. 624.</p> <p>13. Principal and Agent. — Ratification.—Evidence.—In an action on an alleged account stated, evidence held sufficient to warrant the inference that the settlement in controversy made by an agent was ratified by the principal, p. 625.</p> <p>14. Principal and Agent. — Compromise by Agent. — Ratification.— The acceptance and retention by the principal of money, property or other benefit as the result of a compromise or settlement by an agent of a claim in favor of or against the principal constitutes a ratification of the compromise or settlement, unless he is without knowledge of the facts, p. 626.</p>

From Clinton Circnit Court; Joseph Combs, Judge. Action by the Kokomo Steel and Wire Company against Burton D. Busk and another. From the judgment rendered, the defendant named appeals.

From Monroe Circuit Court; Charles J. Carpenter, Special Judge. Suit by Ella T. Bollenbacher against Arthur L. Foley and others, wherein the latter filed'a cross-complaint. From a judgment for the defendant on his cross-complaint, the plaintiff appeals.

<p>From the St. Joseph Superior Court; George Ford, Judge.</p> <p>Action by the Cannel City Oil Company against Ella M. Eoper. From a judgment for the plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Wadver of Error — Briefs.—Where no point or proposition is stated in appellant’s brief in regard to the' alleged insufficiency of the complaint, the error, if any, in overruling the demurrer thereto is waived, p. 649.</p> <p>2. Master and Servant, — Injuries to Servant. — Employers’ Liability Act. — Assumption of Risk. — The Employers’ Liability Act, Acts 1911 p. 145, §8020a et seq. Burns 1914, eliminates the defense of hazards inherent or apparent in the employment, and abrogates the assumed-risk rule as to the particular risk of a fellow servant, p.' 651.</p> <p>3. Appeal. — Revieio.—Refusal of Instructions. — In an action for personal injuries, it was not error to refuse requested instructions on the question of contributory negligence where that element, so far as involved, was fully and properly covered by other instructions given, p. 651.</p> <p>4. Master and Servant. — Injuries to Servant. — Methods of Work. —Contributory Negligence. — Where an employe of a quarry was injured by a falling stone which he was assisting in raising, he was not guilty of contributory negligence as a matter of law because he voluntarily chose a hazardous way of doing his work, where he was acting in the usual and customary manner in obedience to, and under the personal supérvision of, his superintendent. p. 652.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Murrel B. Bichardb against the H. K. Toy and Novelty Company. From an award for applicant, the defendant appeals.

<p>From Marion Superior Court; John J. Rochford, Judge.</p> <p>Action by Frank Sammons against the Cleveland,’ Cincinnati, Chicago and St. Louis Railway Company. From a judgment for the plaintiff, the defendant appeals.</p>

<p>From Dubois Circuit Court; Edward P. Richardson, Special Judge.</p> <p>Action by Wilhelmina Fisher against the city of Huntingburg. From a judgment for plaintiff, the defendant appeals.</p>

From the Industrial Board of Indiana. Proceeding’s for compensation under the Workmen’s Compensation Act by Fred Holtz against the Vandalia Coal Company. From an award for applicant, the defendant appeals.

<p>1. Execution. — Proceedings Supplemental. — Pleadings. — Under §865 Burns 1914, §822 R. S. 1881, in a proceeding supplemental to execution, formal pleadings are unnecessary, other than the affidavit or verified complaint on which the order to appear is issued and the demurrer and motions authorized by the statute to test the sufficiency of the order and affidavit, p. 684.</p> <p>2. Execution. — Proceedings Supplemental. — Procedure.—The rules of civil procedure apply in proceedings supplemental to execution where the statute has not expressly, or by fair implication, indicated the procedure contemplated, p, 685.</p> <p>3. Execution. — Proceedings Supplemental. — Findings and Conclusions. — Right to Require. — Neither party to a proceeding supplemental to execution has the right to require the trial court to make a special finding of facts and state its conclusions of law thereon under the provisions of the Civil Code; and where a special finding of facts is made in such a proceeding it will be treated as a general finding only. p. 685. .</p> <p>4. Execution. — Proceedings Supplemental. — Unauthorized Pleadings. — In a proceeding supplemental to execution, where pleadings other than those authorized by the statute are filed, they may be disregarded, p. 686.</p> <p>5. Assignments. — Executory Contract. — Assignment.—Validity.— Statute. — Under §9071 Burns 1914, §5501 R. S. 1881, providing that all written promises shall be negotiable by indorsement, a valid, subsisting executory agreement in writing for the improvement of a sidewalk may be assigned by the contractors for the work, even though no payment was due them at the time the assignment was made. p. 687.</p> <p>6. Execution. — Executory Contract. — lAen on Proceeds. — Under §728 Burns 1914, §686 R. S. 1881, giving a lien on the goods and chattels of an execution defendant within the jurisdiction of an officer from the time of the delivery of the execution to him, a judgment creditor, by virtue of its execution in the hands of the sheriff prior to the assignment by the judgment debtor of an executory contract for certain improvement work -under which no payment was due, did not acquire a valid and enforceable lien for funds to become due the judgment- debtor for> -work and materials to be thereafter furnished by him under the contract, since there was no existing debt under the contract, which might never be performed so as to make effectual the obligation to pay. p. 688.</p> <p>7. Execution. — Levy;—Executory Contract. — Statute.—A debt evidenced by an executory contract for certain improvement work could be reached by the contractor’s judgment creditor only under the provisions of §766 Burns 1914, §§774 R. S. 1881, providing that any debt or thing in action, legally or equitably assignable, may be levied upon, when given up by the defendant, and sold on execution, in the same manner as other personal property, p. 690.</p>

From Greene Circuit Court; Claude E. Gregg, Special Judge. Petition by tbe Linton Trust Company, administrator of tbe estate of Thomas B. Smith and others, against Wilbert Smith and others, to sell real estate to pay debts of deceased. Defendants filed cross-complaints to quiet title to the real estate involved. From the judgment rendered, the defendants appeal.

<p>From Porter Circuit Court; H. H. Loring, Judge.</p> <p>Action by Moore and Richter Lumber Company against Adolph Scheid and others. From a judgment for defendants, the plaintiff appeals.</p>

From Huntington Circuit Court; Samuel E. Go oh, Judge. Action by Louis A. Diffenbaugh, administrator of the estate of Sarah M. Diffenbaugh, deceased, and others, against the Prudential Insurance Company of America. From a judgment for plaintiff, the defendant appeals.

<p>From Bartholomew Circuit Court; Marshall Harlcer, Special Judge.</p> <p>Action by William H. Isgrigg and others against the Charleston School Township of Clark county and others. From a judgment for plaintiffs the defendants appeal.</p>