Volume 70 — Indiana Appellate Court Reports

From Marion Circuit Court (25,828); Louis B. EwbanJc, Judge. Action by the State of Indiana, on the relation of Hyman Friedman, against Ben Freiberg and another. From a judgment for defendants, the relator appeals.

From St. Joseph Circuit Court; Walter A. Funk, Judge. Action by Marion Wesolowski, administratrix of the estate of Frank Dolniak, deceased, against the Chicago, Lake Shore and South Bend Bailway Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Appeal. — Remeto.-—Harmless Error. — Striking Out Answer. — In an employer’s action on an employer’s liability policy for the amount of a judgment recovered by an injured employe, an answer setting up collusion between the employer and the injured employe and alleging that the judgment against the employer was obtained without trial and without evidence being presented in pursuance of a conspiracy, was not a counterclaim, since it stated no cause of action in favor of defendant, and, being an answer, error, if any, in striking it out was harmless, where all evidence offered by defendant under its allegations was admitted over plaintiff’s objection, and its alleged facts were traversed by special findings, p. 19.</p> <p>2. Insurance. — Employers’ Liability Insurance. — Policy. — Construction. — Immediate Notice of Injury. — Where an employe was injured on October 17, 1913, and the'employer gave notice of the accident to the company carrying his employer’s liability insurance on October 20, and again on November 28, and, having received no acknowledgment thereof, sent another notice on December 29 on a blank furnished by the insurer, the notice to the insurer was sent within such time as to constitute compliance with a provision of the policy requiring immediate written notice of the occurrence of an accident, p. 20.</p> <p>3. Insurance. — Employers’ Liability Insurance. — Insured’s Action on Policy. — Defenses.—Fraud or Collusion. — In an action on an employer’s liability policy for the amount of a judgment recovered by an injured employe, where the insurer, with full knowledge of the accident, injury and pendency of the suit therefor and of the proceedings in court when the judgment was rendered against the employer, failed and refused to participate in the defense, as provided by the terms of the policy, it cannot chal-</p> <p>• lenge the judgment obtained by the employe for fraud, collusion, or for any other reason, p. 22.</p>

From Floyd Circuit Court; John M. Paris, Judge. Action by John G. Webb against tbe Citizens National Bank of tbe City of Jeffersonville and George H. Holzbog, in wbicb tbe last-named defendant filed a cross-complaint. From a judgment in favor of tbe bank, plaintiff and defendant Holzbog appeal.

<p>1. Pleading. — Complaint Founded on Written Instrument. — Variance. — In an action on an accident insurance policy, where the averments of the complaint as to the terms of the policy vary from the provisions thereof, the provisions of the policy control, p. 37.</p> <p>2. Insurance. — Accident Insurance. — Construction Of Policy. — Beneficiary Indemnity. — Cause of Injury. — An accident insurance policy insuring against injury to the beneficiary while a passenger in a railroad passenger ear, steam vessel, passenger elevator, or in consequence of the burning of a building, does not cover death resulting from injury while in an automobile, p. 39.</p>

<p>From Hendricks Circuit Court; George W. Brill, Judge.</p> <p>Action by Pearl Smith against the Union Traction Company of Indiana. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Insurance. — Agents.—Delegation of Authority. — Generally, agents of insurance companies who are authorized to contract for risks, receive and collect premiums, and deliver policies, may confer upon a clerk, or subordinate, authority to execute the same powers, the service not being of a personal character, p. 54.</p> <p>2. Instjeance. — Fire Insurance. — Notice of Vacancy. — Sufficiency.— Under a fire insurance policy stipulating that the policy would bo void if any of the buildings insured remained vacant for more than ten days without the insurer’s consent, a notice of vacancy was sufficient when given to the bookkeeper and policy clerk employed by agents for the insurance company, upon her assurance that she would take a note of the notice and bring it to the attention of one of the agents on his return to the office, p. 55.</p> <p>3. Instjeance. — Notice to Agency for Insurer.• — Notice to the agent of an insurance company is binding, though not communicated to it. p. 57.</p> <p>4. Instjeance. — Fire Insurance. — Conditions.—Vacancy.—The condition in a fire policy that vacancy of the building insured without the written consent of insurer shall avoid the policy, being a stipulation in favor of the company, may be waived by express agreement or conduct, and such waiver can be by the promise, failure and conduct of the company’s authorized agent, p. 57.</p> <p>5. Insurance —Fire Insttrance. — Breach of Conditions. — Failure to Assert Forfeiture. — Where a fire insurance company had notice of the purpose of insured to change the use of a dwelling to that of storage house, and it failed to assert its right of forfeiture, it waived such -right, p. 57.</p> <p>6. Appeal. — Review.—Harmless Error. — Exclusion of Evidence.— In an action on a fire policy, error, if any, in excluding a letter, written by insured in negotiations for compromise, containing an admission of blame, was harmless, where the insurer’s agent testified to the same admission made by insured to him, and such admission was not denied by insured, p. 58.</p>

<p>From Marshall Circuit Court; Smith N. Stevens, Judge.</p> <p>Action "between Edward "W. Poison and James E. Kipfer and another. From the judgment rendered, the latter appeal.</p>

From Tippecanoe Circuit Court; Charles A. Burnett, Judge pro tem. Action by Charles Mackey against the Lafayette Loan and Trust Company and others. From a judgment for defendants, the plaintiff appeals.

<p>1. Pleading; — Complaint.—Failure to Demur. — Waiver of Defects. —Statute.—Under §348 Burns 1914, Acts 1911 p. 415, all objections to the sufficiency of a complaint are waived by the failure . to demur thereto, p. 70.</p> <p>2. Appeal. — Review. — Complaint. — Omission of Material Averments. — Presumptions.—The court on appeal will assume that any omission of a material averment of the complaint was cured by the evidence, p. 70.</p> <p>3. Fraud.- — Action.—Exchange of Lands. — Fraudulent Representations. — Measure of Damages. — In an action for damages for alleged false and fraudulent representations as to the character and value of land conveyed to plaintiffs by defendants in exchange for other land, the measure of damages is the difference between the actual value of the property deeded to plaintiffs at the time of the exchange, and what it would have been worth had it been as represented, and in such action the value of the land conveyed by plaintiffs is immaterial, p. 71.</p> <p>4. Fraud. — Representations of Value. — Effect.—In an action to recover damages for fraud, where plaintiffs were induced by defendants’ representations to exchange their real estate for lands located in southern California, upon which defendants lived and had special knowledge of its character and value, and concerning which facts defendants knew plaintiffs, who were residents of Indiana and had never been in California, to be wholly ignorant, plaintiffs were justified in relying on defendants’ representations without' making inquiry as to their truthfulness, p. 72.</p> <p>5. Fraud. — Reliance on Fraudulent Representations. — Where defendants induced plaintiffs, who had never been in California, to exchange their lands for lands located in that state, and plaintiffs’ inquiries of a nephew in California did not elicit information ' disclosing the falsity of defendants’ representations, defendants are not in position to complain that plaintiffs were negligent in relying upon their representations without further inquiry, p. 73.</p> <p>6. Fraud. — Exchange of Lands. — Action.—Defenses.—In an action fox* damages for false representations as to the character of land exchanged by defendants for land belonging to plaintiffs, where plaintiffs proceeded to a city within two hours’ ride of defendants’ land and could easily have inspected the property, but, because of the insistence of tbe husband of one of the defendants that the transaction be closed immediately to enable him to keep an urgent engagement in another city, plaintiffs were induced to telegraph to release the deed to their land, which they had deposited in escrow before leaving home, without inspecting defendants’ property, they had a right to rely on defendants’ representations, p. 73.</p> <p>7. Kbaud. — Action.—False Representations. — Damages.—Right to Recover. — Where plaintiffs, after executing a contract of sale and placing in escrow deeds to their land, journeyed to a distant state to take charge of the property, which was to be conveyed to them by defendants, a subsequent performance by plaintiffs, even with full knowledge of the fraud which had been practiced on them, would not bar them of a right to recover damages for fraudulent representations as to the land plaintiffs were to receive, p. 74.</p>

<p>From Shelby Circuit Court; Alonzo Blair, Judge.</p> <p>Action by the Indiana Fuel Supply Company against the Equitable Surety Company of St. Louis and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Parties.—Where the only issue against ■ one party to the trial was tendered by plaintiff in his complaint and there was a separate judgment in favor of such party from which no appeal was taken, and he was not a party to the judgment appealed from, such party would not be affected by the result of the appeal, and is not a necessary party thereto, p. 80.</p> <p>2. Evidence. — Vendor’s Lien. — Exchange of Land and Chattels in Gross. — Value of Each. — Extrinsic Evidence. — When called upon to enforce an alleged vendor’s lien arising out of a sale or exchange of land and chattels in gross, a court of equity may hear extrinsic evidence as to the value placed on each by the parties to the transaction, p. 81.</p> <p>3. Vendor and Purchaser. — Exchange of Land and Chattels in Gi'oss. — Right to Vendor’s Lien. — Where land and chattels are sold or exchanged in gross, hut the parties in making such sale or exchange have placed separate values on each, the court will enforce a vendor’s lien against the land for the balance due thereon, although the obligation taken may include the price of both. p. 82.</p> <p>4. Payment. — Vendor and Purchaser. — Vendor’s Lien. — Mode and Application of Payments. — The sale of land may take the form of an exchange when the buyer pays a part or all of the purchase price in other lands, and, in the absence of fraud, such payment has the same legal effect, as regards the right of the court to determine its application, as if the agreed value of the land purchased had been paid in money, p. 83.</p> <p>5. Payment. — Distinct Acco’wnts.-^-Part Payments. — Application.— Where one person is indebted to another upon several distinct accounts, lie lias a right to direct the application of his payments, but if the debtor pays generally the creditor may apply as he elects, and, if neither makes a specific application, the court will make such application of payments as justice between the parties most urgently demands, p. S3.</p> <p>6. Payment. — Bmchcmge of Real and Personal Property. — Part Payments. — Application.—Vendor's Lien. — In an action to enforce a vendor’s lien for the amount of a noté given by defendant for the balance of the purchase price on the sale in gross of a farm and certain personalty, the court, in the absence of direction by the parties, would be authorized to apply the value of land conveyed in part payment by defendants, first to any amount agreed on by the parties as to the value of the personal property, and the remainder, if any, on the price of the farm land, and where such an application fully discharged the debt owing for the personalty, so that the entire amount of the notes in suit constituted an unpaid balance on the purchase price of the farm, plaintiff was entitled to a decree establishing a vendor’s lien in his favor, p. 84.</p> <p>7. Vendob and Purchaser. — Remedies of Vendor. — Lien.—Waiver. —Talcing Note. — Acceptance of a vendee’s notes for the unpaid portion of the purchase price of land did not deprive the vendor of his right to a vendor’s lien. p. 85.</p>

<p>From Greene Circuit Court; Theodore E. Stinkard, Judge.</p> <p>Action by Lewis M. Fry against the Vandalia Kailroad Company. From a judgment for plaintiff, tbe defendant appeals.</p>

From the Industrial Board of Indiana. Proceedings by John H. Woodruff:, employe, against Grant Caca, employer, for compensation under the Workmen’s Compensation Act. From an award, the employer appeals.

<p>From Jay Circuit Court; James J. Moran, Judge.</p> <p>Action by William J. Losch. against Alva Mi Rembarger and another., From a judgment for the plain, tiff, the defendants appeal.</p>

<p>1. Appeal. — Briefs.—Amendment.—Where, after the filing of the appellee’s brief, the appellant by leave of court amended his brief by inserting a copy of the motion for new trial, the omission to include the motion or its substance in the original brief was cured, p. 108.</p> <p>2. Appeal. — New Trial. — Necessity of Objections. — Instructions.— Objections to the giving of instructions will not be considered on appeal where the appellant failed to assign error thereon as a ground for new trial, p. 108.</p> <p>8. Paetneeship. — Molding Out as Partner. — Necessity of Financial Loss. — Where one holds himself out as a partner or knowingly permits himself to be so held out, he is liable to a creditor dealing with the firm, in the belief that such representation is true, as fully as if he were a partner in fact; and it is not necessary that the creditor suffer financial loss by reason of such holding out. p. 108.</p> <p>4. Appeal. — Instructions Favorable to Appellant. — Marmless Error. —Instructions that the plaintiff creditor could not recover from a defendant for holding himself out as a partner of the debtor firm unless such plaintiff sustained, or stands to sustain, financial loss by reason of such holding out, though erroneous for placing a greater burden on the’, plaintiff than required by law, was harmless as to such defendant, p. 110.</p> <p>5. Appeal. — Objections to Evidence. — Presenting for Review.— Briefs. — To present for review the rulings of the court in admitting certain evidence, the appellant’s brief must disclose the specific objections made to such evidence at the time of the ruling; objections thereto in the motion for new trial, without a showing that the same were presented at the time of the ruling, present no question, p. 110.</p> <p>6. Teial.- — Evidence.—Competent for Specific Purpose. — Limiting Application. — Since evidence competent for some purpose will not, be excluded because the jury may erroneously use it for another purpose, it is the duty of a party desiring to guard against such possibility to tender an instruction limiting its application to the particular purpose, p. 111.</p> <p>7. Appeal. — Record.—Sufficiency.—Bringing Matters into Record. —Affidavit.—The statement in an affidavit filed with the motion for new trial that the court had stated in the jury’s presence that it would limit by instruction the application of certain evidence, is insufficient to excuse the appellant’s failure to tender an instruction for that purpose, since such matter cannot be brought into the record by affidavit, p. 111.</p> <p>S. Appeal. — Verdict.—Evidence.—Sufficiency.—A verdict is sustained by sufficient evidence, as against objection on appeal, where there is legal evidence supporting every essential fact necessary to appellee's right of recovery, p. 112.</p> <p>9. Appeal. — Waiver of Error. — Briefs.—An appellant waives grounds for new trial to which no specific reference is made in the points and authorities of his brief, p. 112.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by George Willoughby and others against the Granite Sand and Gravel Company. From an award for applicants, the defendant appeals.

<p>1. Descent and Distribution. — “Child.”—“Children.”—“Descends ■ants.” — Statutes.—The words “child,” “children,” and “descendants” and the like, as used in §§2990, 2991 Burns 1914, §§2467, 2468 R, S. 1881, regulating descent in certain cases, prima facie mean legitimates, p. 119.</p> <p>2. Bastards. — Inheritance.—Statute Governing. — Construction. — Section 3000 Burns 1914, Acts 1901 p. 288, providing that illegitimate children may, under certain conditions, inherit the estate of their fathers, is remedial, and should be liberally construed within its terms to effectuate the purpose of its enactment, p. 119.</p> <p>3. Bastards. — Achnoioledgment T)y Parent. — Statute.—Scope and-Effect. — Section 3000 Burns 1914, Acts 1901 p. 288, providing that illegitimate children may, under certain conditions, inherit the estate of their fathers, is merely a statute of descent, and thereunder the legal status of the child is- not changed from illegitimacy to legitimacy by the father’s acknowledgment, p. 125.</p> <p>4. Bastards. — Inheritance Through Father. — Statutes. — Under §§2990-3000 Burns 1914, §§2467, 2468 R. S. 1881, Acts 1901 p. 288, regulating descent in certain cases, an illegitimate child cannot inherit from the mother of. its putative father, where the latter dies before the mother, p. 126.</p>

<p>From Morgan Circuit Court; Nathan A. Whitaker, Judge.</p> <p>Action by tbe W. T. Rawleigh Company against Chameron C. Hughes and others. From a judgment for plaintiff, it appeals.</p>

From Henry Circuit Court; Fred O. Gause, Judge. Action by tbe school towns of Middletown and Fall Creek township against Howard C. Elliott, the United States Fidelity and Guaranty Company and others. From the judgment rendered, the defendant guaranty company appeals.

From Hendricks Circuit Court; George W. Brill, Judge. Action by Alice Helms, administratrix of the estate of Charles Helms, deceased, against the Indianapolis and Cincinnati Traction Company. From a judgment for plaintiff, the defendant appeals.

<p>From Lake Superior Court; Virgil 8. . Reiter, Judge.'</p> <p>Action by Stantislaus Kosmowski against the Michigan Central Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Joshua Thompson against the Mnncie Foundry and Machine Company. From an award for applicant, the defendant appeals.

From Vigo Superior Court; Fred- W. Beal, Judge. Action by Anna E. Ward, administratrix of the estate of William Ward, deceased, against the Deep Vein Coal Company. From a judgment for plaintiff, tlie defendant appeals.

<p>1. Wills. — Construction.—Intention.—In construing a will, the primary purpose of^ the court is to determine, if possible, the intention of the testator as expressed therein, and to give effect thereto, p. 170.</p> <p>•2. Wills. — Construction.—Intention.—Consideration as a Whole.— In determining the testator’s intention, isolated statements or separate clauses and provisions of a will should not be considered alone, but the whole will should be taken together, and each part construed with relation to the language used in other parts and effect given to the general intention thereby ascertained, p. 170.</p> <p>3. Wills. — Construction.—Estate Devised. — Devise with Power to Sell. — A devise of real estate to a testator’s son, “to have and to hold forever with the power to sell the same and invest the proceeds in- such other property, real or personal, as he may deem best,” subject to the life estate of testator’s widow, creates a fee, regardless of a repugnant devise over to testator’s grandchildren after the son’s death, p. 171.</p>

From the Industrial Board of Indiana. Proceeding’s for compensation under the Workmen’s Compensation Act by Harvey Young against the Jefferson Hotel Company. From an order of the Industrial Board dismissing its application for a review of an award for applicant, the defendant appeals.

<p>From Wells Circuit Court; William H. Eichhorn, Judge.</p> <p>Proceeding supplementary to execution by tlie Farmers’ State Bank against Tilomas M. Brown, Editli Brown and others. From the judgment rendered, Edith Brown appeals.</p>

From Marion Probate Court (10,021); Mahlon E. Bash, Judge. Action by the Columbia National Bank against William E. Miller, administrator of the estate of Hiram W. Miller, deceased, and others, on a claim against the estate. From a judgment for defendants, the plaintiff appeals.

From Wayne Circuit Court; Nathan A. Whitaher, Judge. Action by Cora B. Hardwick, administratrix of tlie estate of John Hardwick, deceased, against the Indianapolis and Cincinnati Traction Company. From a judgment for plaintiff, the defendant appeals.

<p>From Marion Superior Court (99,029); W. W. Thornton, Judge.</p> <p>Action by Kotbe-Wells and Bauer against Charles Seitz and another. From the judgment rendered, the defendant named appeals.</p>

<p>1. Appeal. — Review.—Verdict.—Oonclusiveness.—A finding of the jury based on conflicting evidence is conclusive on appeal, p. 203.</p> <p>2. Husband and Wipe. — Action for Service by Wife. — Joining Husband as Party. — Section 255 Burns 1914, §254 R. S. 1881, providing that a married woman may sue alone when the action covers her personal property, is permissive, and does not prohibit the husband joining with her in the prosecution of an action to recover compensation for her services rendered on her sole and separate • account, p. 204.</p>

<p>1. ' Frauds, Statute of. — Contract for Sale of Land. — Sufficiency of Memoranda. — Under the statute of frauds, which requires that all contracts for the sale of real estate shall be in writing, separate writings cannot be construed together as constituting a eon-tract, where there is no reference in any one of the instruments to either of the others, and extrinsic evidence, which is not permissible, would be necessary to show their relation, p. 210'.</p> <p>2. Pleading. — Ecolubits.—Variance.—Where there is a variance between a pleading and exhibits filed therewith, the latter control. p. 210.</p> <p>3. Vendor and Purchaser. — Offer and Acceptance. — A memorandum covering a sale of land providing that, “if this deal is made, ■ it must be not later than October 1, 1910,” constituted merely .an offer to sell, and not a final agreement the specific performance of which could be enforced, without showing an acceptance of the offer within the time given, p. 210.</p>

<p>Instjeance. — Fire Insurance. — Waiver of Conditions. — Burden of Proof. — In an action on a fire policy providing that the insurer would not be liable for fire damage to any dwelling house while unoccupied, unless the policy was continued in force during such vacancy by the written consent of a director of the company, the burden of showing insurer’s alleged waiver of the vacancy provision by a retention of unearned premium was on the insurer, and the absence of a finding as to the existence of any unearned premium must be construed to mean that all sums paid to the insurer were fully earned.</p>

From Vigo Superior Court; Fred W. Beal, Judge. Action by Mary L. Dolierty against tbe Indiana Travelers’ Accident Association. Default judgment for plaintiff, and from an order, dismissing defendant’s motion to set aside tbe default, tbe defendant appeals.

<p>1. Statutes. — Construction.—Words.—Meaning.—Common Law.— In the construction of statutes, the court will look to the meaning attached to the words and terms used therein by the common law, and they will be deemed to be employed in their known and defined common-law meaning, p. 224.</p> <p>2. Brokers.. — Real Estate BroJcers. — Exchange of Land. — Commissions. — Necessity of Written Contract. — Statute.—Under §7403 Burns 1914, Acts 1913 p. 638, providing that no contract for the payment »of a commission for the finding or procuring of a purchaser for real estate shall be valid unless the contract is in writing, a real estate broker cannot recover á commission upon an oral contract for bringing about an exchange of land, since the term “purchaser,” as used in the statute, includes one who acquires title to lands in an exchange of realty, p. 225.</p>

<p>From Marion Superior Court (93,615); Linn D. Say, Judge.</p> <p>Action by the Home Stove Company against the Coonse and Caylor Ice Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Dekalb Circuit Court; Dan M. Linlc, Judge.</p> <p>Action by Armour Leather Company against Michael Baltes and others. From a judgment for plaintiff, the defendants appeal.</p>

From Starke Circuit Court; W. G. Pentecost, J udge. Action by Milo M. Bruce and another against Mary E. Hubbell and others. From the judgment rendered, the plaintiffs appeal.

<p>From Howard Circuit Court; William C. Overton, Judge.</p> <p>Action by tbe State of Indiana against Villa Kathryn Orr and others. From a judgment for the state, the defendants appeal.</p>

<p>Coukts. — Jurisdiction.—Transfer of Cause from Supreme to Appel, late Court. — Effect.—Validity of Ordinance. — Where plaintiff sued a town and its board of trustees to enjoin them from enforcing an ordinance making it unlawful to maintain and operate a junkyard within limits including plaintiff’s yard, on the ground that the ordinance was invalid and void, and that the board had no authority to pass it, and, on judgment being rendered for defendants, plaintiff appealed to the Supreme Court where he attempted to raise the question of the validity of the ordinance, that court’s transfer of the cause to the Appellate Court for want of jurisdiction was equivalent to a finding that the power of the board to enact the ordinance must be regarded as settled, and such question could not be'considered on appeal.</p>

<p>From Sullivan Circuit Court; W. II. Bridwell, Judge.</p> <p>Action by Charles A. Haupt against Henry F. Schmidt and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Evidence. — Admissions.—Declaration Against Interest.- — Admissibility. — In an action for personal injuries, plaintiff’s statement, “it was all my fault,” made shortly after the accident resulting in the injuries complained of, was competent as an admission against interest, p. 2G5.</p> <p>2. Evidence. — Admissions.—Weight and Effect. — Questions for Jury. — Admissions when proved to have been made are to be considered and weighed the same as other evidence, and the effect of the circumstances under which the admissions were made is to be determined by the jury. p. 2G5.</p> <p>3. Appeal. — Review.—Instructions.—Invading Province of Jury.— Reversal. — On a servant’s action for personal injuries brought under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914), an instruction that plaintiff’s statement, “it was all my fault,” made shortly after the accident, was only a conclusion not amounting to an admission of negligence, was erroneous as invading the province of the jury, and such error warrants a reversal where the court on appeal cannot say that a ■ correct result was reached at the trial, p. 26G.</p>

<p>1. Tkial. — Conclusions of Law. — Exceptions.—Effect.—By excepting to the conclusions of law appellant concedes, for the purposes of the exception, that the facts within the issues are fully and correctly found, p. 277.</p> <p>2. Insurance.' — Life Insurance. — Reinsurance Contract. — Imposing Conditions on Policyholders. — A life insurance company which contracted with another company to reinsure the latter's policyholders had no legal right to charge liens against a policy in the other, company, or to increase the holder’s annual premium, and such policyholder had the right to stand on liis contract for insurance as evidenced by his original policy, p. 277.</p> <p>3. Insurance. — Life Insurance. — Reinsurance.—Breach of Policy Conditions. — Rights of Policyholder. — Where a life insurance company entered into a contract under which it acquired the assets of another company and agreed to reinsure its policyholders, but refused to carry out a policy or to continue the insurance in force unless the holder of such policy ratified illegal liens charged against it and paid an increased amount of premium wrongfully demanded of him, such action was a breach of the reinsurance contract and a repudiation of the policy giving the holder the right to elect the remedy invoked by him of treating the contract as breached and suing to recover the damages sustained by him on account thereof, p. 278.</p> <p>4. Contracts. — Executory.—Breach.—Remedies.—Where one party to an executory contract repudiates it and refuses longer to be bound, the injured party has the^ right to elect either to treat the contract as rescinded and recover upon the quantum meruit as far as he has performed, where the contract is of such a nature that there may be a recovery for part performance, or to keep the contract alive for the benefit of both parties, keeping himself at all times ready, willing and able to perform, and, at the time fixed by the contract for performance, sue and recover according to the terms of the contract on the theory that he has fully performed and discharged all the duties and obligations imposed upon him, except as prevented by the other party, or to treat the breach or repudiation as putting an end to the contract for all purposes of performance, and to sue at once to recover the damages occasioned by such repudiation, in which case the injured party is not bound to give further notice to the defaulting party of his election before bringing suit, nor to show, as a condition precedent to recovery, that he has been at all times ready, willing and able to perform after the time when the other party repudiated the contract, p. 278.</p> <p>5. Election of Remedies. — Breach of Contract. — Action.—Notice.— The bringing of an action, or taking legal steps to enforce a contract, amounts to an election by the party not to rescind on account of anything known to him, and where a party institutes a suit for damages for the breach of an executory contract, his action is notice to the other party of his election* to treat the contract as breached and at an end, except for the purpose of ascertaining the resulting damages, and such election is conclusive against .the party making it. p. 284.</p> <p>6. Appeal. — Review.—Ruling on Demurrer. — Failure to Specify ' Defeats.- — -Waiver.—Any error based on defects in a complaint which are not specified in the memorandum accompanying the demurrer is waived, p. 285.</p> <p>7. Appeal. — Assignments of Error. — Causes for New Trial. — Attempted assignments of error which, if proper at all, deal with matters that should be assigned as grounds for a new trial, present no questions on appeal, p. 286.</p> <p>8. New Trial. — Grounds.—Under the statute (§585 Burns 1914, §559 R. S. 1881), assignments that “the decision and judgment of the court are not sustained by sufficient evidence” and “because the decision and judgment of the court are contrary to law,’! are unauthorized and cannot be recognized as grounds for a new trial, p. 286.</p> <p>9. New Trial. — Grounds.—Excessive Damages. — Statute.—Applicability. — Torts.—Section 585, subd. 4, Burns 1914, §559 R. S. 1881, authorizing the granting of a new trial for excessive damages, applies only in cases of torts, p. 286.</p> <p>10. Action. — Ex Contractu. — Ex Delicto. — In a suit for damages for the breach of a contract, the action arises out of the agreement of the parties, and is generally denominated an action ex contractu, but the right of action for a tort arises out of a breach of duty fixed by law, independent of (he will or agreement of the parties, and is usually denominated an action ex delicto. p. 287.</p> <p>11. New Trial. — -Grounds.—Excessive Damages. — Breach of Contract. — Section 585, subd. 5, Burns 1914, §559 R. S. 1881, authorizing a new trial for excessive recovery where the action is upon contract, was properly followed by defendant, in an action for breach of an insurance contract, in seeking a new trial on the ground that the amount of recovery was erroneous in that it was too large, p. 287.</p> <p>12. Appeal. — Review.-—Merit Fairly Tried. — -Affirmance.—Where it appears that the case was fairly tried and a correct result reached, and that appellant was deprived of no substantial right, the judgment will be affirmed, p. 288.</p> <p>13. New Trial. — Grounds.—Sufficiency.—An assignment as ground for new trial that certain enumerated special findings “are not nor are either of them sustained by sufficient evidence” is unauthorized by statute (§585 Burns 1914, §559 R. S. 1881), and insufficient. p. 289.</p>

<p>1. Municipal Cokpoeations. — Street and Sidewalks. — Duty to Repair. — It is the duty of a city to keep its streets and sidewalks in reasonable repair and free from dangerous defects to the full width thereof, p. 292.</p> <p>2. Municipal Cokpoeations. — Defective Sidewalks. — Injuries to Pedestrians. — Liability.—Although a city is not an insurer of the safety of its streets and sidewalks, it is required to keep them in reasonably safe condition for traveling, and failing so to do, it is liable to a pedestrian, exercising reasonable care, who is injured because of defects therein, p. 292.</p> <p>3. Appeal. — Matters Reviewable. — Ruling on Motion for New Trial. —Briefs.—Failure to Set Out Motion. — Error, if any, in overruling the motion for new trial is waived, where neither the motion . nor its substance is set out in appellant’s brief, p. 293.</p>

From Owen Circuit Court; Robert W. Miers, Judge. Action by Ulysses S. Bartmess against the Spencer Commercial Club, which cross-complained, bringing in as defendants May Bartmess and others. From a judgment in favor of May Bartmess, the defendant appeals.

<p>1. Appeal. — Briefs.—Waiver of Error. — Questions presented in a motion for new trial are waived where appellant fails to state in his brief any proposition or authorities to sustain them. p. 306.</p> <p>2. Appeal. — Review.—Ruling on Motion for New Trial. — Specifications. — Sufficiency.—A specification in a motion for new trial that “the verdict of the Jury is contrary to law and the evidence,” is not a ground for new trial under the statute and presents no question for review, p. 306.</p> <p>3. Appeal. — Review.—Ruling on Motion for New Trial. — Specifications. — Instructions.—Exception in Gross. — Availability.—Where defendant specified, as a ground for new trial, that the court erred in giving instructions Nos. 1 to 25, and in giving each of such instructions, an exception that “to the giving of said instructions the defendant excepts,” was in gross and not available, in the absence of any claim that all of the instructions were bad. p. 306.</p> <p>4. Appeal. — Briefs.—Presenting Questions for Review. — Competency of Witness. — Appellant’s contention that the court erred in permitting a witness to testify cannot be sustained, where appellant's brief fails to show that any objection was made to the witness testifying, that the court made any ruling in relation thereto, or that any exception was taken, p. 307.</p> <p>5. Appeal. — Record. —Instructions. • — ■ Authentication. — "Where instructions tendered by appellant are not authenticated in any manner as required by the statute, they have no legitimate place in the record, and are .not presented for consideration on appeal, p. 307. '</p>

From Marion Circuit Court (25,982); Louis B. Etvbanic, Judge. Action by Alfred T. Haislup against the Union Asphalt Construction Company, in which defendant cross-complained. From a judgment for defendant, the plaintiff appeals.

From Morgan Circuit Court; A. M. Bain, Special Judge. Action by Emery B. Caldwell agáinst Jesse L. Alley, doing business under the firm name and style of the North Side Sand and Gravel Company, and others. From an adverse judgment, the plaintiff appeals.

<p>From Marshall Circuit Court; Smith N. Stevens, Judge.</p> <p>Action by B. E. Linkenhelt and Company, Incorporated, against the Scottish Union and National Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Randolph Circuit Court; Theodore Shochney, Judge.</p> <p>Action by William J. Baughn against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

From Marshall Circuit Court; Smith N. Stevens, Judge. Action by Walter J. McMillan, administrator of the estate of James McMillan and Company against the Plymouth Electric Light and Power Company. From a judgment for defendant, the plaintiff appeals.

From Marion Probate Court; Mahlon E. Bash, Judge. Petition for an order for the sale of realty by Charlie Hoover, administrator de bonis non with the will annexed, of the estate of Andrew Hoover, deceased, and others, against Cora May Nickerson and others. From a decree directing the sale of the land and a distribution of the proceeds as prayed, the defendants appeal.

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Action by Wesley Wade Kerr against Daniel I. Neber. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Negligence. — Pleading.—Elements.—Elements essential to the sufficiency of a complaint based on negligence are allegations showing the existence of a duty resting on defendant to exercise care in favor of plaintiff, and a failure on the part of defendant to discharge such duty proximately resulting in some injury or damage to plaintiff, p. 373.</p> <p>2. Carriers. — Railroads.—Passenger Boarding Train. — Duty of Carrier. — Complaint.—In a passenger’s action against a railroad for injuries sustained in attempting to board a train, allegations in the complaint that plaintiff purchased a ticket entitling him to take passage on a certain train, and that he went on the station platform to await its arrival with intent to become a passenger, show at least a qualified relation of passenger and carrier, which imposed on defendant the duty of using ordinary care to protect plaintiff while trying to get aboard, p. 373.</p> <p>3. Carriers. — Railroads.—Passenger Boarding Tram. — Carrier’s Breach of Duty. — Complaint.—Sufficiency.—In a passenger’s ac- ■ tion against a railroad company for injuries sustained in attempting to board a train, allegations in 'the complaint that persons standing near called to the trainmen to wait until they should all get on, but that defendant’s eihployes, in violation of their duty to plaintiff to hold the train until plaintiff could safely board it, negligently and carelessly caused the same to pull up, sufficiently showed a failure on the part of the defendant to use ordinary care to protect plaintiff, p. 373.</p> <p>4. Carriers, — Railroads.—Injuries to Passenger. — Action. — Complaint. — Contributory Negligence. — In a passenger’s-action against a railroad company for personal injuries, complaint held not to show contributory negligence, although plaintiff’s injuries were sustained in attempting to board a train while it was in motion, p. 374.</p> <p>5. Negligence. — Complaint.—Sufficiency.—Contributory Negligence. —Although an answer of general denial to a complaint based on negligence, in an action for personal injuries, tenders the issue of contributory negligence, the complaint is not required to negative it, and is demurrable only where its averment affirmatively shows contributory negligence, p. 374.</p> <p>6. Carriers. — Railroads.—Injuries to Passenger. — Proximate Cause. —Negligence.—Pleading.—In an action against a railroad for personal injuries sustained by plaintiff in attempting to board a train while in motion, averments in the complaint that because of defendant’s employes’ negligent and careless movement of the train, in violation of their duty to hold it until plaintiff could safely board the same, the train was jerked and pulled along faster, and that plaintiff’s foot was caused to slip through a broken part of a car step, alleged to have been negligently maintained in a defective condition, show a causal connection between the alleged negligente and plaintiff’s injury, p. 374.</p> <p>7. Carriers. — Railroads.—Passengers Boarding Train. — Duty of Carrier. — Although the stopping of a passenger train at a station is an invitation to passengers to get on, which ceases when the train starts, it must be stopped a reasonable length of time, and any one attempting to get on after it begins to move does so at his own risk, unless those in charge 'of the movement of the train have knowledge of the intent or attempt of such party to board it. p. 375.</p> <p>8. Carriers.- — Railroads.—Passengers Boarding Train. — Duty of Carrier.- — -Where a family bought their tickets and went on the station platform to await the arrival of the train, those in charge of the movement of the train were chargeable with knowledge of such facts, and owed such passengers the duty of stopping a reasonable length of time for them to get on. p. 375.</p> <p>9. Carriers. — Railroads.-—Passenger Boarding Moving Train. — Defective Step. — Contributory Negligence. — Proximate Cause. — Questions of Fact. — In a passénger’s action against a railroad for personal injuries, held that the court on appeal could .not say as a matter of law, under the evidence, that plaintiff, who was injured when his foot slipped through a defective car step while attempting to board a moving train with a child in his arms, was guilty of contributory negligence, or that the carrier was not guilty of negligence proximately causing.the injury, p. 377.</p> <p>10. Carriers. — Railroads.- — -Passengers. — Injuries ■ on Station Grounds. — Oare Required of Railroad. — A carrier owes a passenger who is on the depot platform waiting to take passage on a train only ordinary care not to injure him. p. 377.</p> <p>11. Appeal.- — Review.—Instructions.—Prejudicial Error.- — -In an action against a railroad company for personal injuries sustained by a passenger in attempting to board a train, where a controlling question in the case was whether defendant had exercised ordinary care, it was reversible error to instruct that defendant owed plaintiff the highest degree of care. p. 378.</p>

From Marion Superior Court (101,294); W. W. Thornton, Judge. Action by James G. Kenney and another against Clara Monroe, Samuel S. Rhodes and others, in which Rhodes filed a cross-complaint. From the judgment rendered, plaintiffs and cross-complainant appeal.

<p>1. Insurance. — Casualty Insurance Companies. — Investments. — Proceeds from Sale of Stocle. — Statute.—Under §4769 Burns 1914, Acts 1909 p. 281, prescribing how casualty companies shall invest the money received from the sale of their capital stock, such a company is not prohibited from depositing any of its funds in banks, and taking therefor certificates of deposit, payable either on demand or on a day specified, until such time as investments in accordance with the-statute may be made, or from assigning notes given for the purchase price of stock, and receiving certificates of deposit therefor, p. 391.</p> <p>2. Insurance. — Casualty Insurance Companies. ■— Investments. — Proceeds from Sale of Stock. — Rights of Stockholder. — Statute.-— While the investment by a casualty company of money received from the sale of its capital stock in securities other than those named in §4769 Burns 1914, Acts 1909 p. 281, would be wrongful, yet the transaction would not be void, but merely voidable, and, though a stockholder injured thereby might find a way in a court of equity to protect his rights, he cannot defend an action on his note given to such company for stock and assigned to plaintiff bank in return for its certificate of deposit on the ground that the transaction constituted an unlawful investment of the proceeds from the sale of the capital stock of the company. p. 392.</p> <p>3. Pleading. — Answer.—Sufficiency.—If an answer is good on any theory, it is error to sustain a demurrer* thereto, p. 393.</p> <p>4. Pleading. — Answer.—Indefiniteness.—“Pretended” Corporation. —In an action on a note assigned by a casualty insurance company, a reference in a paragraph of answer to the assignor as a “pretended” corporation cannot, in the absence of the facts being • pleaded, have any weight as against an averment that such company purports to have been organized under the statute, p. 393.</p> <p>5. Pleading. — Conclusion of Lato. — In an assignee’s action on a note, an averment that assignor corporation had no power to assign the note states a proposition of law, since the powers of a corporation are determined by law. p. 393.</p> <p>6. Pleading. — Pleading Conclusions of La%o. — Statute.—The provision of §343a Burns 1914, Acts 1913 p. 850, authorizing the pleading of conclusions, subject only to a motion to make more specific, means a conclusion of fact, and does not warrant the pleading of a pure conclusion of law. p. 393.</p> <p>7. Appeal.- — Matters Reviewable. — Assignments Not Involved in Judgment. — Assignments of error not involved in the judgment rendered cannot be considered on appeal, p. 394.</p>

<p>1. Appeal. — Review.—Judgment.—■Exceptions.—Necessity.—Where the-verdict was in general terms in favor of defendant, judgment that plaintiff take nothing, and that defendant recover costs, would follow as a matter of course, and no exception to the judgment was required in order that plaintiff be protected in his rights, p. 399.</p> <p>2. Appeal. — Review.—Judgment.—Exceptions.—Necessity.-—-Where the judgment is proper in form and in substance as measured by the verdict or finding, the question of its correctness, as measured by the cause and procedure,' is tested by exceptions reserved to rulings preceding the rendering of judgment, and properly presented. p. 399.</p> <p>3. Appeal. — Scope of Review. — Questions Not Necessary to Decision. — Where appellant did not avail himself of extended time granted on application under §661 Burns 1914, Acts 1911 p. 193, for filing bill of exceptions, the sufficiency of the notice of the hearing on the application or service thereof need not be determined on appeal, p. 401.</p> <p>4. Appeal. — Record.-—Bill of Exceptions. — Time for Filing. — Where a bill of exceptions containing the evidence discloses that it was presented to the judge within the ninety days allowed for filing, that is sufficient, although the bill was not filed until after the expiration of the ninety days. p. 401.</p> <p>5. Appeal. — Record.—Bill of Exceptions. — -Gonclusiveness.-—A vacation entry that the bill of exceptions containing the evidence was presented to the judge on a certain day is controlled by a recital in the bill that it was presented at an earlier day, there having been no steps taken to correct the error, if any, in the bill, p. 402.</p> <p>6. Appeal. — Record.—-Instructions.—Filing.—Bill of Exceptions.— Where a bill of exceptions discloses that ,it is proper in form and substance, and that it contains all the instructions that were tendered and refused, etc., and it appears from an order-book entry that' the bill was filed on the day that the trial closed, the filing of the bill was a sufficient filing of the instructions to make them part of the record, p. 402,</p> <p>7. Appeal.- — Bill of Exceptions. — Time of Signing and- Filing. — • Presumption. — Although it is essential to the validity of a bill of exceptions that it be filed after, rather than before, it has been signed, yet where it appeal's that there was no default respecting the time of filing and that the bill was filed on the day it was signed, the latter act is presumed to have preceded the former, p. 403.</p> <p>8. Appeal. — Instructions.—Incorporating in Record. — Method.—The various other statutory methods of making instructions a part of the record in a civil action are not exclusive of the method by bill of exceptions, p. 403.</p> <p>9. Appeal. — Scope of Review.- — Questions Not Necessary to Decision. — The instructions being properly in the record, it is not necessary for the court on appeal to determine whether they were made part of the record by other methods attempted, or whether the statute was complied with in that respect, p. 403.</p> <p>10. Appeal. — Briefs.—Questions Presented. — Motion for New Trial. —Questions raised under the motion for new trial will be considered on appeal, although the motion is not set out in full in appellant’s brief, where the substance of the grounds relied on is set out. p. 403.</p> <p>*11. Appeal. — Briefs.—Sufficiency.—Where appellant’s briefs, regardless of criticism respecting form and substance, are sufficient to present a number of questions on the merits of the case, such questions will be considered, p. 404.</p> <p>12. Waters and Watercourses. — Natural Watercourse. — Obstructing. — Liability.—Waters in the low-water channel, waters heaped about them, and waters that overspread the high-water channel, are, when flowing down stream in one uniform and continuous current, where unobstructed by the act of man, the waters of a natural watercourse, and liability for obstructing the flow ihereof must be determined from a consideration of the law governing the obstruction of a stream rather than that governing in the case of mere surface water, p. 407.</p> <p>13. Railroads. — Obstruction of Stream. — Liability.—Instruction.— Unusual and Extraordinary Flood. — In an action against a railroad for unlawfully obstructing the flood waters of a river, an instruction that plaintiff could not recover, if the damage was caused by a flood which was unusual and extraordinary, was erroneous, since, by reason of the comprehensiveness and flexibility in meaning of the terms “extraordinary” and “unusual.” the use of such words unqualified and unexplained outlined a defense broader than the law recognizes, p. 410.</p> <p>14. Railroads. — Obstruction of Stream. — Unusual and Extraordinary Flood. — Liability.—In an action against a railroad for negligently and unlawfully obstructing the flood waters of a river, although the flood that concurred with defendant’s acts was unusual and extraordinary in nature, defendant is liable if the concurrence of the flood might have been anticipated by the exercise of reasonable skill and foresight, p. 410.</p> <p>15. Railroads. — Obstruction of Stream. — Unprecedented Flood.— Liability. — The mere fact that a flood is unprecedented cannot be said, as a matter of law, to form the basis of an escape from liability by one negligently and unlawfully obstructing a stream, p. 411.</p> <p>10. Waters and Watercourses/ — Unprecedented Flood.- — A flood i.s unprecedented if it is somewhat higher or more destructive than any preceding flood, p. 411.</p> <p>17. Waters and Watercourses. — Obstruction of Stream. — Care Required. — Due care on the part of one obstructing a stream requires that he take notice of the character of the country and that, in view thereof, he provide ample accommodation for the free passage of water at all seasons of the year. p. 412.</p> <p>IS. Waters and Watercourses. — Obstructing Stream. — Care Required. — One obstructing a stream is required to take notice of the effect of improvements such as the clearing of lands of forests and constructing artificial drainage, p. 412.</p> <p>19. Railroads. — Obstructing Stream. — Liability.—Unexpected Flood. —Instruction.—In an action against a railroad for negligently and unlawfully obstructing the flood waters of a stream, an instruction that plaintiff could not recover if the flood was “unexpected” was erroneous, where the word “unexpected” was used ‘without being in any manner qualified, p. 412.</p> <p>20. Appeal. — Briefs.—Sufficiency.—Failure to Include All Instructions. — Duty of Appellee. — Appellant is required to set out in his brief only the instructions with respect to the giving or refusal of which he complains, and if the alleged errors therein are obviated by other instructions given, it is the duty of appellee to bring that fact to/the court’s attention, p. 413.</p> <p>21. Railroads. — Obstruction of Stream. — Liability.—Instruction.— In an action against a railroad for negligent and illegal obstruction of the flood waters of a stream, an instruction that, if plaintiff’s damages were caused in some other way than by obstructions which defendant placed in the natural channel of the river, or that by the manner in which it erected its trestles on its right' of way, plaintiff could not recover, held erroneous as being somewhat obscure when considered in the light of the complaint and evidence and too narrow when measured by the allegations and proof, p. 413,</p> <p>22. Railroads. — Obstruction of Stream. — Liability.—Instruction.— In an action against a railroad for negligently and illegally obstructing the flood waters of a stream, an instruction “that defendant is not liable for the act of God, and by act of God is meant not only natural accidents such as lightning, earthquakes and tempests,” but also all other unavoidable and inevitable accidents, was both erroneous and harmful, where under the facts of the case defendant might be liable for the damages caused by the waters of a flood, the language used in the instruction being such as to lead the jury to understand that floods were included in the term “act of God.” p. 414.</p> <p>23. "Waters and Watercourses. — Obstruction of Stream. — Liability. — “Act of God.” — In its relation to resulting damages a flood' is classed as an act of God in a legal sense, with the consequent immunity of man from liability, only in the absence of human agency wrongfully or negligently contributing to produce the injury of which complaint is made. p. 415.</p> <p>24. Waters and Watercourses. — Obstruction of Stream. — Liability. — Where injury resulting from a flood is to some extent the result of the wrongful or negligent participation of man, the . consequences are regarded as exclusively of human origin so far as concerns the question of liability, and the situation is removed from the scope of the rules that govern in case of the acts of God. p. 415.</p> <p>25. Negligence. — Injury Involving Act of God. — Intervention of Human Agency. — Proximate Cause. — Where an act of God is involved in damage to person or property, but a human agency negligently applied intervenes to produce the injury, the act of God is regarded as the remote rather than the immediate cause of the injury, an'd recourse cannot be had to it as a legal excuse, p. 415.</p>

<p>1. Principal and Surety. — Surety.—Chiarantor.—Distinction.—A surety undertakes to do that which his principal is bound to do, in event the principal fails to comply with his contract, while a guarantor undertakes that the principal will do the things stipulated in the contract by the principal to be done, and, in event the principal fails to perform, that he, the guarantor, will pay whatever damages may be sustained by the beneficiary by reason of such failure of the principal, p. 420.</p> <p>2. PkincipaIi and Stjeety. — Creation of Relation. — Contract.— Breach. — Liability.—A contract entered into by defendants, in consideration of one dollar paid by plaintiff, and tlie execution of an agreement by plaintiff company with a vendor of its goods to furnish such vendor merchandise for resale, and to extend the time of payment of an existing indebtedness, to guarantee payment of such sum and of the price of goods to be furnished thereafter, was a contract of suretyship, and not a guaranty, and defendants were liable without notice of vendor’s default, p. 422.</p>

From the Industrial Board of Indiana. Proceeding’s for compensation under the Workmen’s Compensation Act by Mabel Fitzwater against the Indianapolis Heat and Light Company. From an award for applicant, the defendant appeals.

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action Tby tbe city of Lafayette against Albert J. Krabbe. From a judgment for plaintiff, tbe defendant appeals.'</p>

<p>From St. Joseph Superior Court; George Ford, Judge.</p> <p>Action by John F. McCllen and others against Frank C. Sehker and others. • From a judgment for defendants, the plaintiffs appeal.</p>

<p>From Adams Circuit Court; David E. Smith, Judge.</p> <p>Action by tbe Peters Hotel Company against Benjamin Wartell., From a judgment for plaintiff, tbe defendant appeals.</p>

From Marion Superior Court (97,689); W. W. Thornton, Judge. Action by the Aetna Trust and Savings Company against Grover Millett and another. From a judgment for plaintiff, the defendant named appeals.

<p>1. Appeal. — Review.—Hamless Error. — Sustaining Demurrer. — . In an action to quiet title, error cannot be predicated on tbe action of tbe trial court in sustaining a demurrer to a paragraph of answer where a general denial has been filed, since by §1101 Burns 1914, §1055 R. S. 1881, all defenses, legal or equitable, in actions to quiet title, may be made under the general denial, so that the trial court’s ruling was harmless, p. 461.</p> <p>2. Appeal. — Presenting Questions for Review.- — Conclusions of Law. — Necessity of Exceptions. — It was not error for the trial court to overrule a motion to modify the conclusions of law, since there is no rule of practice authorizing such a motion, the appropriate remedy being by exceptions to the conclusions, p. 461.</p> <p>3. Appeal. — Revieio.—Ruling on Motion to MoMfy Judgment.— Findings. — Failure to Challenge. — In an action to quiet title, defendant’s motion to modify the judgment by decreeing it entitled to an improvement lien on the land in controversy was properly overruled, where there was no motion for a new trial, so that the findings of the trial court must be taken as full, true and complete, and no finding was made which would have warranted the court in rendering the decree sought by defendant, p. 462.</p>

<p>From Marion Circuit Court (25,048); Louis B. Ewbank, Judge.</p> <p>Action by Ray H. Cook, by his next friend, Anna B. Cook, against the Washburn-Crosby Company.From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Pleading. — Motion to Strike Out. — Office of. — If a pleading is a proper one to be filed and is timely filed, a motion to strike out should not be sustained, and, if such pleading is insufficient, It should be demurred to, so that the pleader may have an opportunity to correct the fault thereof, p. 477.</p> <p>2. Insurance. — Life Insurance. — Surrender of Policy. — Consent of Beneficiary. — Under a life policy providing that insured would be paid the cash surrender value of the policy, under certain conditions, on a full and valid surrender of the policy being made by insured, the beneficiary named in the policy is a necessary party to such surrender, p. 479.</p> <p>3. Insurance. — Life Insurance. — Action for Gash Surrender Value. —Breach of Policy Conditions. — Failure to Surrender Policy.— Statutes. — In view of §4622a, cl. 10, Burns 1914, Acts 1909 p. 251, providing for extended insurance upon default in premium payment after three years, or payment of cash surrender value upon surrender of the policy by insured at the company’s home office, and a clause in the policy stipulating for payment of cash value upon default and “a full and valid surrender” of the policy, a letter by insured to the insurer notifying it that he elected to pay no further premiums, and desired payment of the cash surrender value due on the policy, without actually surrendering the policy, was insufficient, p. 480.</p> <p>4. Appeal. — Briefs.—Waiver of Error. — Where appellant failed to mention, under the points and authorities in its brief, any of the instructions tendered by it and refused, error, if any, in such-refusal is waived, p. 480.</p> <p>5. Insurance. — Life Insurance. — Action for Cash Surrender Value of Policy. — Instructions.—In an action against an insurance company for the cash surrender value of a life insurance policy which required a “surrender of the policy and all claims hereunder” as a condition precedent to insured’s obtaining such cash surrender value, an instruction that before insured was entitled to the surrender value of the policy, he must have made such a complete and definite surrender of the policy as that he had no further interest or claims against the defendant by reason of the policy, was erroneous, since it did not meastire the rights of insured by the terms of the contract, p. 481.</p> <p>C. Insurance. — Life Insurance. — Action for Cash Surrender Value of Policy. — Instructions.—In an action by insured against an insurance company to recover the cash surrender value of a life insurance policy which required a full and valid surrender of the policy and all claims thereunder as a condition precedent to insured’s obtaining such cash surrender value, an instruction that, if insured offered to surrender the policy and such offer was subject to a suggestion of defendant as to what to do with the policy, and insured was not so advised, the insurer would be liable, was erroneous as not limiting the rights of insured to those acquired under the policy, p. 481.</p> <p>7. Insurance. — Life Insurance. — Action for Cash Surrender Value of Policy. — Policy Conditions. — Compliance.—Written Request.— Where a life insurance policy provided for the payment of the cash surrender value of the policy upon receipt of a written request from insured, an instruction that the deposit in the mail of a letter properly stamped and addressed and containing such request, was sufficient, was erroneous as altering tie rights given insured under the contract, --.p. 482. ■</p> <p>8. Evidence. — ■Admissibility.—Contents of Letter. — Oral Testimony After notice to Produce. — It was.not error for the trial court to permit plaintiff to testify as to the contents of a letter alleged to have been written by him to- defendant, where the record shows that timely notice had been served on defendant to produce the same. p. 483.</p>

<p>1. New Trial. — Supplemental Motion. — Time for Filing. — The Sling of a supplemental motion for a new trial more than thirty days after the decision of the court on the merits of the cause is unauthorized, and it is not error for the court to strike it out. p. 486.</p> <p>2. 'Appeal. — Questions Reviewahle. — Judgment.—Inadequate Recovery. — Failure to Incorporate Evidence in the Record.- — As the determination of the question whether interest should have been included in the amount of recovery requires a consideration o^f the evidence, such question cannot be determined in the absence of the evidence from the record, p. 487.</p> <p>3. Evidence. — Judicial Knowledge. — -Expiration of Term of Court. —The Appellate Court knows judicially that the October, 1916, term of the Lake Superior Court expired in November of that year. p. 487.</p> <p>4. Appeal. — Record.—Bill of Exceptions. — Approval and Filing.— Where the bill of exceptions containing the evidence was not filed during the term at which the motion for a new trial was overruled, nor within the time given beyond such term for that purpose, nor presented to the judge of the trial court for his approval within such time, the bill is not part of the record, p. 487.</p> <p>5. Appeal. — Record.—Bill of Exceptions. — Sufficiency.—Failure to Include all the Evidence. — Scope of Revieiv. — Where a bill of exceptions purporting to contain all the evidence shows on its face that a contract not appearing in the bill was read in evidence, the court on appeal cannot determine a question requiring a consideration of the evidence, p. 488.</p> <p>6. Mechanics’ Liens. — Foreclosure.—Interest on Claims. — Burden of Proof. — In an action to foreclose a mechanic’s lien, if plaintiff believed it was entitled to recover interest on its claims, the duty rested upon it to establish, that fact by the evidence, and to furnish proper data from which the amount thereof could be computed. p. 489.</p> <p>7. Appeal. — Record.—Bill of Exceptions. — Sufficiency.—Failure to Incorporate all the Evidence. — Questions Reviewahlc. — Where the bill of exceptions fails to disclose the contract out of which it is alleged that plaintiff’s claim aróse, or any fact from which the trial court could determine whether anything was due plaintiff as interest, the court on appeal is unable to ascertain whether the contract provided for interest, and cannot determine the contention that the trial court erroneously failed to include interest in the amount of recovery, p. 4S9.</p>

<p>From Monroe Circuit Court; Robert W. Miers, Judge. '</p> <p>Action by Hanna Thompson against Myrtle Patten and others. From a judgment for defendants, the plaintiff appeals.</p>

From Marion Superior Court (97,567); James A. Ross, Special Judge. Action by Matilda Albin, administratrix of the estate of Anthony Albin, deceased, against Kingan and Company. From a judgment for plaintiff, the defendant appeals.

<p>From Madison Circuit Court; Luther F. Pence, Judge.</p> <p>Action by Earl S. Brunson against the McBethEvans Glass Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Pleading. — Answer.—Argumentative Denial. — In an action for conversion, an answer setting up a judgment awarding defendant possession of the property involved in an action brought by him against plaintiffs amounted to an argumentative denial, the substance of it being that there was no conversion, p. 530.</p> <p>2. Chattel Mortgages. — Nature.—Title and Possession. — A chattel mortgage is at law a conditional sale which vests the legal title, and, prima facie, the right of possession to the thing mortgaged, in the mortgagee, p. 532.</p> <p>3. Chattel Mortgages. — Foreclosure.—Conversion by Mortgagee. —Where, on foreclosure of a chattel mortgage, the mortgagee obtained a judgment awarding him possession of the property, and sold the same after giving the mortgagors ten days’ notice as provided in the mortgage, the mortgagors, having no title to the property involved, nor the right to the possession of the same, cannot maintain an action for its conversion against the mortgagee, in the absence of proof by the mortgagors showing payment or other extinguishment of the mortgage, or anything more than the mere right to redeem, p. 536.</p> <p>4. Tender. — Sufficiency.■—Written Offer to Pay. — Where chattel mortgagors wrote to mortgagee demanding a return of the mortgaged property, and in the letter stated. “With this demand we offer to pay” the amount of the debt, with interest, such offer cannot be construed as a tender, p. 537.</p>

<p>1. Pleading. — Complaint.—Construction.—Variance.—In an action on a contractor’s bond, the bond and the contract, which includes the plans and specifications, must, in considering the complaint, be construed together, and, if any allegations of the complaint vary from the provisions of the- contract, the latter will control, p. 541.</p> <p>2. Contracts. — Construction Contracts. — Acceptance of Work by Architect. — Conclusiveness.—Where a contract provides that work shall be done -to the satisfaction, approval, or acceptance of an architect or engineer, such architect or engineer is thereby constituted sole arbitrator, and the parties are bound by his decisions in the absence of fraud or such gross mistakes as to imply bad faith or a failure to exercise an honest judgment, p. 541.</p> <p>3. Contracts. — Construction Contracts. — Decision of Arbitrator.— Conclusiveness. — A provision in a building contract by which an architect or engineer becomes the arbitrator is more binding than an ordinary submission to arbitration, since it becomes a part of the consideration of the contract, p. 542.</p>

From Marion Circuit Court (25,937); Louis. B. Ewbank, Judge. Action by Olivia Ferguson, administratrix of tlie estate of James M. Ferguson, deceased, against tlie Cleveland, Cincinnati and St. Louis Bailway Company. From a judgment for defendant, tfie plaintiff appeals.

From Perry Circuit Court; William Ridley, Judge. Action by Leona M. Cassidy against John F. Ward and wife, in wbicb Adopb Graves filed a cross-complaint against plaintiff and defendants. From tbe judgment rendered, tbe plaintiff appeals.

<p>Prom Porter Circuit Court; H. H. Boring, Judge.</p> <p>Action by tlie Fletclier American National Bank . against Effie S. Earle and another. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>From Fulton Circuit Court; Smith N. Stevens, Judge.</p> <p>Action by Lincoln Overmyer against John A. Barnett and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Appeal. — Review.—Evidence.—Sufficiency.—Scope of Review.— Weighing Evidence. — In determining whether findings are supported by sufficient evidence, the court on appeal need only .consider such ■ evidence as tends to support the findings, and conflicting oral evidence will not be weighed, p. 589.</p> <p>2. Bills and Notes. — Bank Checks Payable in Foreign State.— Nonpayment. — Notice to Indorser. — Law Governing. — In an action against an indorser of bank checks payable in Illinois, the law of that state governs as to the time within which notice of nonpayment must be given to an indorser, p. 589.</p> <p>O. Bills and Notes. — Bank Checks. — Notice to ■ Indorser-Sufficiency of Evidence. — In an action against an indorser of bank cheeks, evidence held sufficient to sustain the finding that notice of the nonpayment of checks was given the indorser within the time required by law. p. 589.</p>

<p>From Wells Circuit Court; William II. Eichhorn, Judge.</p> <p>Action by Harry E. Popejoy and others against. Sam Lewis and another. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Towns. — Public Improvements. — Payment of Laborers and Materialmen. — Statute.—Section 5901a Burns 1914, Acts 1911 p. 437, providing that public officers and boards contracting for public improvements shall withhold full payment to the contractor until he has paid subcontractors or laborers employed in the work, and requiring such claims to be filed within thirty days after the completion of the work, is.for the protection of laborers, ma; terialmen and subcontractors and not of contractors and their bondsmen, and confers no right of action on any one unless the public officer wrongfully fails to withhold money due the contractor which should have been applied to. claims previously filed in accordance with the statute, p. 595.</p> <p>2. Towns. — Trustees.—Action on Bond. — Ooiwpiamt.—Sufficiency.— In an action by a surety on the bond of a public contractor against a township trustee and his bondsmen to recover for an alleged wrongful payment by the trustee to a public contractor before the claims of materialmen and subcontractors had been paid, a complaint failing to allege the filing of claims of subcontractors and materialmen prior to the time of payment to such contractor is insufficient to show a violation of §§5901a, 5901b Burns 1914, Acts 1911 p. 437, it being presumed that the trustee performed his statutory duties and therefore that no claims had been filed pursuant to such statutes, p. 596.</p>

<p>1. Executors and Administrators. — Assignment of Contracts.— Consideration. — Where plaintiff’s sister left defendant’s conservatory before completing her paid-up course of study under a written contract between her father and defendant, and defendant and plaintiff verbally agreed that the latter might receive the remaining instructions under the contract, plaintiff, upon her appointment as administratrix of her father’s estate and assignment of the contract by her as administratrix to herself as an individual, could not recover for a breach of the verbal contract in the absence of evidence showing consideration in that she had succeeded to the rights of her father in the original contract, p. 603.</p> <p>2. Contracts. — Breach.-—Action.—Pleading and Proof. — In an action for an alleged breach of a contract to pay the purchase price of an automobile in living and tuition in defendant’s school, a money demand was not authorized in the absence of pleading and proof of a breach of contract by defendant, p. 603.</p>

<p>From Grant Circuit Court; J. F. Charles, Judge.</p> <p>Action by John A. Carter against the School Township of Liberty and others. From a judgment for defendants, the plaintiff appeals.</p>

From Crawford Circuit Court; Thomas B. BusJcirlc, Judge. Action by Charles B. Drury, as guardian of Ms five minor children, against William Krogman, wherein such children were substituted as parties plaintiff. From a judgment for defendant, the plaintiffs appeal.

From Marion Superior Court (102,764); W. W. Thornton, Judge. Action by the Cleveland, Cincinnati, Chicago and St. Louis Railway Company against John L. Partiów, doing business as the J. L. Partlow Coal Company. From a judgment for defendant, the plaintiff appeals.

<p>From Madison Superior Court; Willis 8. Ellis, Jndge.</p> <p>Action by Philip Brelim. against Joseph E. Hennings. From the judgment rendered, the plaintiff appeals.</p>

<p>From Marion Superior Court (93,947); V. G. Clifford, Judge.</p> <p>Action by the Maryland Casualty Company against the Knight and Jillson Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Marion Superior Court (102,074); W. W. Thornton, Judge.</p> <p>Action by the King Piano Company against Carrie Brant. From a judgment for defendant, the plaintiff appeals.</p>

From Lake Superior Court; Walter T. Hardy, J udge. Intervening petition in receivership proceedings by Chalmers and Williams, a corporation, against Charles L. Surprise, receiver of the Midland Recoveries Company. From a judgment for the receiver, the petitioner appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Edna Rogers and others against John S. Rogers and another. From a denial of an award, the applicants appeal.

<p>1. Appeal. — Record.—Admissions of Counsel. — Admissions or state- ' ments of counsel as to matters which do not otherwise appear in the record will not be considered by the court on appeal, p. 672.</p> <p>2. Evidence. — Documents.-—Denial of Execution. — Statute.—In an action for possession of real estate and to recover damages for its detention, where defendant relied upon a written instrument purporting to give him the right of occupancy free of rent, but no pleading was founded on such instrument, §370 Burns 1914, §364 R. S. 1881, providing that when a. pleading is founded on a written instrument, such instrument may be read in evidence without proving its execution, does not apply, p. 673.</p>

<p>1. Appeal. — Review.—Ruling on Motion for Judgment on Interrogatories.- — Scope of Review. — In determining whether the trial court erred in overruling motion for judgment on interrogatories, the court on appeal will consider only the complaint, the general verdict, and the interrogatories, together with the answers thereto, p. 679.</p> <p>2. Appeal. — Review.—Verdict.-—Answers to Interrogatories. — Presumptions. — In reviewing the trial court’s ruling on a motion for judgment on the interrogatories, all reasonable presumptions should be indulged in favor of the general verdict over the answers to interrogatories, p. 679.</p> <p>3. Municipal Corporations. — Defective Sidewalks. — Damages for Personal Injuries. — Recovery Over by Gity. — Where a sidewalk is rendered unsafe by the wrongful act or negligence of a third party, and the city is compelled to respond in damages for injuries resulting from the defective condition, it has a right of action against the party responsible for the condition of the sidewalk for the amount it has been compelled to pay. p. 680.</p> <p>4. Municipal Corporations. — Defective Sidewalks. — Personal Injuries. — Indemnity.-—Adjudication as Against - Gity. — Gonclusiveness as Against Indemnitor. — Estoppel.—Where a city, primarily liable to a pedestrian for injuries due to a defective sidewalk, notifies the person responsible for the defect of the action against it, such person will be bound by the judgment rendered against the city, but will not be estopped from showing that he was under no obligation to keep the street in safe condition and that the accident did not occur through his fault, p. 680.</p> <p>5. Municipal Corporations. — Defective Sidewalls. — Personal Injuries. — Indemnity.-—Wrongful Use of Sidewalls. — Liability.— Where a saloonkeeper rolled beer kegs over a sidewalk to an elevator therein for a period of several years, and, as a result of the wear incident to such practice and the use of the walk by the general public, a depression was caused which resulted in injury to a pedestrian for which the city was compelled to respond in damages; the use of the sidewalk by the saloonkeeper was not wrongful so as to render him liable to the city. p. 680.</p> <p>6. Municipal Corporations. — Streets and Sidewalks. — Duty to Repair. — Personal ' Injuries. — Liability.—The duty of repairing streets and sidewalks is upon the city, and abutting property owners and persons using the street in a legitimate way aré not liable to a person injured by reason of defects resulting from the use of the street, unless such use is wrongful and unlawful, p. 681.</p>

<p>Insurance. — Life Insurance. — Insurer's Refusal to Accept Premium. ■ — What Constitutes. — Necessity of Tender. — Where the holder of a fraternal benefit certificate of life insurance elected to accept a certain option to pay $6.50 per month in cash and have the balance of the monthly assessment of $11.30 charged against his insurance, a notice received the month following such election from the secretary of his local lodge which stated, “You will please and send remittance on this policy at once so I can send it in, $11.30 Eleven Dollars and Thirty Cents,” did not constitute a refusal on the part of insurer to accept anything less than the full amount of $11.30 in cash, so as to make it unnecessary for insured to tender the $6.50 required under his option.</p>

<p>1. Appeal. — Record.—Rules of Coivrt. — Substantial Compliance.— Where there has been a substantial compliance with the rules of court requiring appellant to have the record paged and indexed and to have marginal notes made, the appeal will not be dismissed for failure to comply with the rules, p. 696.</p> <p>2. Insueance.- — Life Insurance. — Action on Policy. — Question of Law. — Construction of Policy.- — In an action against a reinsuring company on a life policy issued by it; where both the original policy and the ones sued on and the reinsurance contract are set out in the pleadings, it is a question of law whether the incontestable clause in the original policy became a part of the policy issued by defendant, p. 697.</p> <p>3. Insurance. — Life Insurance. — Construction of Policy. — Reinsurance. — Where a reinsurance contract gave the policy-holders the option of paying the reinsurance company the same premiums, and receiving insurance in such amount as the premiums would purchase according to an annexed table of rates, or of making application, and by furnishing satisfactory evidence of insurability, receive a new policy upon surrendering the old one for cancellation, an incontestability clause contained in the old policy did not become a part of a new policy issued to one choosing the second alternative, in the absence of any provision to that effect, p. 697.</p> <p>4. Insurance. — Life Insurance. — Action on Policy. — Reply.—Sufficiency. — In an action on a life policy, where the insurer answered that insured had falsely warranted that he was in good health and had never previously been refused insurance, and that, if it had known that insured was afflicted with a certain disease, which he fraudulently concealed, the policy would not have been issued, a reply alleging knowledge by the insurer that insured had previously applied for insurance, but not knowledge of the refusal of insurance, or of his disease, was insufficient as against demurrer, p. 698.</p> <p>5. Insurance. — Life Insurance. — Forfeiture of Policy. — Tender* of Premiums. — Reasonable Time. — Where insured died on April 30, and on August 10 following insured learned of breach of warranty, when it notified the beneficiary of its intention to rescind, and mailed her a check for premiums paid, which she returned without objection to the form of the tender, and, suit having been filed August 19, insurer on November 30 offered to pay the beneficiary in legal tender the amount of premiums paid, together with interest thereon and accrued court costs, the latter tender was made within a reasonable time. p. 700.</p> <p>6. Insurance.- — Life Insurance. — Forfeiture of Policy. — Return of Premiums. — Reinsurance.—Where a life insurance company became insolvent and one holding a policy therein exercised his option under a contract of reinsurance of surrendering his old policy, taking out a new ofie in the purchasing company, the latter company, in forfeiting the policy for a^ breach of warranty, was only required to repay the premiums paid to it. p. 700.</p> <p>7. Insurance. — Life Insurance. — Forfeiture of Policy. — Breach of Warranty. — Medical Examination. — False Answei's. — Where an application for a new policy in a reinsuring company referred to a medical examination for the original insurance and warranted the statements in it to be true, thereby making them a part of the new policy, the reinsurer would forfeit such policy for a breach of warranty based upon false statements in the medical examination, although it was not made part of the original policy, and was not in itself a warranty, p. 701.</p> <p>8. Insurance. — Life Insurance. — Forfeiture of Policy. — Misrepresentation. — Health of Insured. — Refusal of Insurance. — A false answer by an applicant for insurance that he had never been rejected by, or refused insurance in, any other company, in the ab"sence of waiver or estoppel, renders the policy voidable at the election of the insurer, even though the statement is treated as a representation and not ás a warranty, p. 703.</p> <p>9. Insurance. — Application.—Construction.—Intention of Parties. —Warranties.—-Answers to questions in an application for insurance will not be construed as warranties unless they are clearly ' shown by the form of the contract to have been so intended by the parties, but where it appears that they so intended they must be literally true or the insurance is voidable, p. 705.</p> <p>10. Appeal. — Presenting Questions for Review. — Instructions.— Brief. — Record.—Duty of Appellee. — When an applicant desires to challenge the correctness of any instructions given, he must see that all of the instructions given are in the record, but it is only necessary that he set out in his brief those that he claims are erroneous, and if there are other instructions given or tendered by appellant which overcome the alleged error, it is the duty of the appellee to call the court’s attention to such instructions and to set them out in his brief, p. 706.</p> <p>11. Appeal. — Presenting Questions for Review. — Refusal of Instructions. — Failure to Identify. — Record.—Where appellant contends that it tendered instructions numbered from 1 to 19, and that the court erred in refusing to give certain of them, but the record discloses that the bill of exceptions shows that appellant tendered instructions numbered 1 to 20, and does not show those given and refused, no question is presented on appeal, p. 707.</p> <p>12. Insurance. — Life Insurance. — Forfeiture of Policy. — Estoppel. —Where an insurer, after receiving information from an investigating bureau that insured had made false warranty as to the condition of his health, wrote a letter to the beneficiary containing no intimation of an intention to rescind, and requesting further proof, which she obtained at some expense, the insurer was not estopped from relying on the breach of warranty to forfeit the policy, where the beneficiary knew of the investigation being made by the insurer and that the policy would probably be contested, p. 710.</p> <p>13. Insurance. — Forfeiture of Policy. — Estoppel by Conduct. — -An insurance company is estopped to declare a forfeiture of an insurance contract, if with full knowledge of the facts, it states to the beneficiary or causes him reasonably to believe that it does -not intend to stand upon the right of forfeiture, and by such representations causes the beneficiary to do any act entailing expense and trouble upon the belief that the company has waived such right, p. 711. *</p> <p>14. Insurance. — Life Insurance. — False Warranties. — Forfeiture of Policy.- — Where insured, in his application for insurance, warranted that he had never been refused insurance, the falsity of that warranty was sufficient to avoid the policy, p. 711.</p>

<p>From Clay Circuit Court; John M. Rmv'ley, Judge.</p> <p>Action by Robert M. Burns against the city of Terre Taute. From a judgment for plaintiff, the defendant appeals.</p>

From Delaware Superior Court; Robert W. Van Atta, Judge. Action between tlio Board of Commissioners of the County of Madison and Daniel L. Boland, executor of the estate of William Boland, deceased. Erom the judgment rendered, the former appeals.

Erom Jasper Circuit Court; William 71. Parkinson, Special Judge. Action between the J. R. Watkins Medical Company and others and George H. Hammerton and others. Erom the judgment rendered, the latter appeal.