Volume 73 — Indiana Appellate Court Reports

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act by Mrs. Walter Long and another against Frank Hart-sock and another. From an order of the Industrial Board denying a petition by the Southern Surety Company, insurance carrier, to set aside a lump sum settlement approved by the board, the insurance carrier appeals.

<p>1. Brokers. — Real Estate Brokers. — Contract for Commissions.— Validity. — Statute.—Where a contract for the sale or exchange of real estate provided for the payment of the regular fixed commission as adopted by a named real estate exchange, the fact that the only rate of commission so fixed was a minimum rate did not render the contract ineffective under §7463 Burns 1914, Acts 1913 p. 638, providing that a contract for the payment of a commission for the sale or exchange of real estate must be. in writing, as such statute requires only that the contract import a promise to pay and provides, a means of ascertaining the amount thereof without destroying the character thereof as a written instrument, p. 8.</p> <p>2. , Brokers. — Real Estate Brokers. — Action on Contract for Commissions. — Rate of Commission. — Evidence.—Where a contract for the sale or exchange of real estate provided for the payment of the.regular fixed commission according to the rate established by a named real estate exchange, the minutes of the exchange showing the regular fixed commissions to be paid ■ on exchanges of real estate was admissible in an action on the contract for compensation.- p. 9.</p> <p>3. Brokers. — Real Estate Brokers. — Contract for Commission.— Certainty. — Commission as Fixed by Real Estate Exchange.— In a real estate broker’s action for commissions for the exchange of real estate, where the contract provided for compensation according to the rate established by a named real’ estate exchange, the fact that the rules of the exchange provided only for a minimum rate of compensation did not render the contract ineffective under §7463 Burns 1914, Acts 1913 p. 638, as being uncertain, p. 9.</p> <p>4. Brokers. — Real Estate Brokers. — Contracts for Commissions. —Statute.—Construction.—Although the manifest purpose of §7463 Burns 1914, Acts 1913 p. 638, requiring contracts for the payment of commissions for the sale or exchange of real estate to be in writing, is to protect real estate owners against imposition and fraud, it was not intended to enable the landowners to work the same result against others, so that, while the statute must be substantially complied with, its operation should not be extended further than to make its spirit and purpose effective, p. 10.</p> <p>5. Appeal. — Briefs.—Waiver of Error. — Assignments of error are waived by appellant's failure to make any specific reference thereto in the propositions or points in his brief, as required by the rules governing the preparation of briefs, p. 11.</p>

From Kosciusko Circuit Court; Francis E. Bowser, Judge. Action by August; Wasman and others for relief from a judgment by default in favor of Herbert A. Dye and others. From a judgment denying relief, applicants appeal.

<p>1. Criminal Law. — Parent and Child. — Failure to Provide.— Jurisdiction of Offense. — Juvenile Court. — That the mother has taken the children, for the care of whom their father is charged with failure to provide, to Illinois, does not deprive the juvenile court of Indiana of jurisdiction, where the children were for a time, by reason of the failure of defendant to provide, in need while in Indiana, and where, while in Illinois, he provided nothing for them, and where the abode that he maintained for them in Indiana did not constitute a “shelter” within the meaning of Acts 1915 p. 139, §2635c et seq. Burns’ Supp. 1918. p. 15.</p> <p>2. Criminal Law. — Parent and Child. — Failure to Support Child. — Construction of Statute. — “Shelter.” — The word “shelter” in §2635c Burns’ Supp. 1918, Acts 1915 p. 139, §1, means more than simply protection from the weather. It means a home with proper environment, and not a place that will destroy the moral sensibility of.the child and train it to immorality and lawlessness, p. 15.</p> <p>3. Marriage. — Common-law Marriage. — Not Dissoluble by Consent. — A common-law marriage entered into in 1902 in Illinois and continued until 1919, cannot be cast aside in Indiana by the parties, and the statutory marriage of the husband to another woman is not aided by the consent of the lawful, common-law wife to remain in the household as housekeeper and to care for the children of the common-law marriage, p. 16.</p> <p>4. Criminal Law. — Parent and Child. — Neglect of Father to Furnish Necessaries. — Construction of Statute. — “Wilfully.”— In a prosecution under §2635c Burns’ Supp. 1918, Acts 1915 p. 139, where the facts show a deliberate, perverse design not to furnish his children the shelter to which they were entitled, a father cannot be heard to say that he was always willing to provide for his children, and that therefore his failure to do so was not wilful, p. 17.</p> <p>5. Parent and Child. — Support of Child. — Neglect of Duty by Father. — Wife’s Representation That Another Will Discharge Duty No Excuse. — A husband and father is under the duty to terminate immoral conditions in his house, and create a shelter under which his children could .safely abide, and he has no right to rely on his wife’s statement that her father would support her and the children if she would leave her husband, p. 17.</p> <p>6. Criminal Law. — Parent and Child. — Support of Child. — Failure to Furnish. — No Demand Necessary. — No demand or request need be made upon a father to supply the needs of his children, where his wife left home, taking his children, because, under the conditions there existing, he could give no sheltering home to his children, and a prosecution may be maintained under §2635c Burns’ Supp. 1918, Acts 1915 p. 139, without any such previous request, p. 18.</p> <p>7. Criminal Law. — Failure to Support Child. — Appeal.—Claim of Excessive Punishment. — Where the punishment assessed is authorized by the act defining the crime, and where such statute further empowers the trial court to extend clemency in certain cases, such punishment will not be disturbed by the Appellate Court when there is no reason disclosed by the records to doubt' that the trial court will properly administer its authority. p. 18.</p>

<p>From Dubois Circuit Court; John L. Bretz, Judge.</p> <p>Action by John P. Farrar against the Masonic Protective Association. From a judgment for plaintiff, the defendant appeals.</p>

From Elkhart Superior Court; James L. Harman, Judge. Action by the school city of South Bend against Frank G. Conklin and wife. From a judgment for plaintiff, the defendants appeal.

<p>From Porter Circuit Court; H. H. Loring, Judge.</p> <p>Action by William Sievers against Frank A. Turner. From a judgment for plaintiff, the defendant appeals.</p>

From Vigo Superior Court; William T. Gleason, .Judge, .. , Action by Charles A. Stevens against Herbert E. Meginnis. From a judgment of dismissal, John W. Gerdink and another, plaintiff’s attorneys, having taken exceptions to the court’s refusal to permit them to prosecute the action for the purpose of securing attorney’s fees, appeal.

<p>1. Master and Servant. — Workmen’s Compensation. — “Arising Out Of” the Employment. — Construction.—The words “by accident arising out of” the employment as used in §2 of the Workmen’s Compensation Act (§80201 et seq. Burns’ Supp. 1918, Acts 1915 p. 392) take a liberal construction to effect the humane purposes of the act, the question in any particular case being determined not upon the minute details of what the employe was doing at the time of the accident, but rather upon whether the accident was due to a hazard to which he would not have been exposed apart from the business in which he was employed, p. 48.</p> <p>2. Master and Servant. — Workmen’s Compensation. — Death From Fall of Articles Upon Employe Retired .in Ba/rn for Night. — The death of a thresher’s engineer was by accident arising out of his employment within the meaning of the Workmen’s Compensation Act, where, by the terms of his employment, he was required to travel from farm to farm and to stay at night on the premises where the threshing outfit happened to be, and as watchman guard and protect it from fire and trespassers, and where his death was caused after he had there retired for the night, in order to be near the outfit, by the fall of a wagonbed suspended in the driveway of a barn on the premises where the outfit was. p. 49.</p>

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Action by Mrs. Willie Abendroth against the Fidelity and Deposit Company of Maryland. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Marshall' Circuit Court; Smith N. Stevens, Judge.</p> <p>Action by William C. Farrar against Ada Farrar Daugherty and another. From a judgment for plaintiff, the defendants appeal.</p>

From Marion- Superior Court (98,932) ; V. G. Clifford, Judge. Action by Sarah Alice Bailey, administratrix of the estate of Allen H. Bailey, deceased, against the Columbia. Grocery Company. From a judgment for defendant, the plaintiff appeals.

From Clark Circuit Court; James W. Fortune, Judge. Action by Fred Jennings against the Louisville and Southern Indiana Traction Company and the city of New Albany. From a judgment for plaintiff, the defendants appeal.

From Lake Superior Court; Virgil S. Reiter, J udge. Action by the board of commissioners of the county of Lake and others against the Citizens Trust and Savings Bank and others. From a judgment for defendants, the plaintiffs appeal.

<p>1. Sales. — Breach of Contract. — Complaint.—Sufficiency. — A complaint that alleges a purchase of mules, to be tried out by buyer and returned if not satisfactory to purchaser as being sound and good workers, the trial of the mules thereunder, the ascertainment that they were neither sound nor good workers nor satisfactory to the purchaser, the return of the mules, their value, and the refusal of seller to accept the mules or refund the price paid, states a cause of action for breach of contract, and does not sound in rescission, p. 89.</p> <p>2. Pleading.. — Pleading Sufficient But Indefinite Remedy by Motion, Not Demurrer. — Contracts.—In an action for breach of contract, where the complaint states facts sufficient to repel a demurrer, the remedy for insufficient allegations of the nature and particulars of the breach is by motion to make more specific, p. 89.</p> <p>3. Appeal.. — Modified Instruction. — Statute Not Followed. — Modification Disclosed by Record. — Evidence Not in Record.— Harmless Error. — When the evidence is not in the record, and where in its absence, the Appellate Court is unable to say that the giving of a requested instruction, as modified by the court, was harmful, though such action of the court, being a failure to follow the mandate of §561 Burns 1914, Acts 1907 p. 652, was error, it is not ground for reversal. p. 89.</p>

From Delaware Circuit Court; William H. Eichhorn, Special Judge. Action by George Depeugh, as a taxpayer, against the board of commissioners of Delaware county and others. From a judgment for defendants, the plaintiff appeals.

<p>1. Appeal. — Time for Taking. — The time within which an appeal may be taken is to be computed from the date of the ruling on the motion for new trial, where by such ruling the subject-matter of the litigation is finally disposed of. p. 100.</p> <p>2. Fraud. — Pleading.—Essentials.—To allege that a thing is done fraudulently or with a fraudulent purpose is not sufficient; •the facts and circumstances constituting the fraud must be pleaded, p. 101.</p> <p>3. Infants. — Actions Against. — Scrutinizing.’—No Presumption of Fraud. — Parent and Child. — A father has a right to bring an action against his minor children residing with him, and there is no presumption of fraud therefrom, although such an action should be closely scrutinized, p. 101.</p> <p>4. Infants. — Actions Against. — Process.-—Jurisdiction.—When a complaint is filed against minor defendants, the due issue and service of summons upon each thereof gives the court jurisdiction over the parties, p. 101.</p> <p>5. Infants. — Actions.—Guardian Ad Litem. — Suggestion by Adverse Party. — While trial courts are to he discouraged from appointing persons as guardians ad litem who are suggested by parties adverse to infant defendants, it does not follow that such an appointment is fraudulent, nor that it will render a judgment void or voidable in the absence of collusion or deception practiced upon the court, p. 102.</p> <p>6. Partition. — By Act of Par ties.-4-Simple Severance of Interest. — Effect of Attempt to Reduce Interest of Illiterate Heir Without His Knowledge or Consent. — Quieting Title. — Where heirs make deeds to one another to effect a severance of interests, and none receives in severalty a greater or less portion than he had before, provisions in the deed dealing with the interest of one, inserted by the others without his knowledge or consent, he being unable to read and not being informed thereof, and receiving nothing therefor, by which the title was assigned to himself and wife during life, with remainder to his children, cannot be given the effect of reducing his interest in the common estate thus divided; and a complaint by such heir based on such facts, in a suit against his wife and children, praying to be declared the sole owner of the lands described in such deed, etc., was sufficient, p. 102.</p> <p>7. Judgment. — Attack for Fraud. — Pleading.—Quiet Title. — In an action to quiet title, a cross-complaint alleging that plaintiff’s grantors were actually the owners of but life estates in the lands, with the fee in remainder in their children, and that the grantor husband had fraudulently obtained a judgment against his wife and children declaring the fee simple to rest unconditionally and absolutely in him, but which fails to aver that the allegations in the complaint in such former action were false or fraudulent, or that any evidence received therein was false, or to make any specific averment whatever of any fraudulent act practiced by the plaintiff in such former action, or to show how the judge therein was misled or deceived, was subject to demurrer, p. 104.</p> <p>8. Quieting Title. — Evidence.—Judgment.—-Admissibility.—In an action to quiet title a proceeding among the necessary parties, and the judgment therein declaring plaintiff’s grantor to be the sole owner in fee of the real estate described in a deed to him and others, and carrying provisions limiting his interest to a life estate, and the deeds following, are admissible in evidence to prove plaintiff’s chain of title, p. 105.</p> <p>9. Quieting Title. — Parties.—In a suit by-an beir to quiet the title in fee in himself as against his wife and children, named by his coheirs without his knowledge or consent as grantees with him to different interests in the real estate set off to him, where such coheirs had, by partition deeds, each received his full interest in the common real estate, they thereafter had no interest in the real estate involved in such action, and were not necessary parties thereto, the only persons involved in the title being the persons named in such deed. p. 105.</p>

<p>1. Gifts. — Inter Vivos. — Requisites.—Irrevocable Delivery. — An established intention to make a gift inter vivos cannot be effected after the donor’s death where he failed to give legal effect to such intention by making an irrevocable delivery, p. 109.</p> <p>2. Gifts. — Inter Vivos. — Requisites.- — Irrevocable Delivery.— Where the owner of bonds placed them in a safety deposit box which he rented in the name of his sister, stating at the time to an officer of the bank that he wanted his sister to have them, but retained a key to the box, and subsequently clipped the interest coupons from the bonds, which he deposited to his own account, and returned the bonds to his own box where they remained until his death, there was not such irrevocable delivery of the bonds as the law requires to constitute a valid gift inter vivos, p. 110.</p>

<p>1. Pleading. — Amendment After Close of Issues. — Discretion of Court. — Under §403 Burns 1914, §394 R. S. 1881, all amendments to pleadings after issues are closed must be by leave of court, and whether a party shall be permitted to amend his pleadings after the close of the issues rests largely in the court’s discretion, p. 113.</p> <p>2. Pleading. — General Denial. — Refusal to Permit Amendment Pending Trial. — Where, in an action on a promissory note, defendants- on the day of trial made a motion for leave to amend their answer, which was a general denial, by having it verified, but at no time made any showing as to why the amendment was necessary, or in what manner their rights would be prejudiced if the motion should be denied, there was no error in overruling the motion, p. 113.</p>

<p>1, Appeal. — Review.—Ha/rmless Error. — Exclusion of Evidence. —In an action on a note, where defendant admitted that he had signed his name in pencil on the back of the note, but contended that it had been retraced with ink, the exclusion of a question asked a witness, who had testified that he was acquainted with defendant’s signature, and that the signature on the note resembled that of defendant, as to whether the signa- ■ ture on a paper shown him was defendant’s, was harmless, since it was wholly unnecessary to prove defendant’s signature in view of the admission made by him. p. 116. '</p> <p>2. Alteration of Instruments. — Signature on Note Written With Pencil. — Retracing With Ink. — Effect.—Where an indorser signed his name in pencil on the hack of a note, it was immaterial whether his signature had been retraced with ink. p. 116.</p> <p>3. Bills and Notes. — Promissory Note. — Action.—Proof Required. — Failure to Demur to Complaint. — Effect.—Statute.— Under §344, cl. 5, Burns 1914, Acts 1911 p. 415, providing that the defendant may demur to the complaint when it does not state facts sufficient to constitute a cause of action, and §348 ■Burns 1914, Acts 1911 p. 415, providing that when such matter does not appear on the face of the complaint it may be taken by answer, and, if not taken by demurrer or answer, is deemed waived, the provision as to waiver applies only to the right to question the sufficiency of the pleading and does not dispense with the necessity of establishing every material fact necessary to a recovery by a preponderance of the evidence, so that the failure of an indorser of a note to demur to a complaint failing to allege presentment, demand and notice of dishonor does not, in the absence of a waiver of the same in the note, dispense with proof of such facts, such proof being essential to a recovery under §9089k3 Burns 1914, Acts 1913 p. 120. p. 116.</p>

<p>From Vermillion Circuit Court; Barton S. Aikman Judge.</p> <p>Action by Harry D. Boyd against the Chicago, Terre Haute and Southeastern Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Commerce. — Interstate Regulation. — Exclusion of States.— Telegraph and Telephone. — Congress having by act of June 18, 1910, 36 Stat. at L. 544, assumed jurisdiction to regulate telegraphic business of an interstate nature, such act suspends all state regulations, statutes and decisions in so far as they conflict therewith, p. 126.</p> <p>2. Telegraphs and Telephones. — Interstate Telegrams. — Power to Make Regulations.- — Rules and regulations applicable to interstate messages, prescribed by a telegraph company in accordance with the authority conferred by the act by which congress assumed jurisdiction to regulate interstate telegraphic business, so long as they have not been declared unreasonable, are binding, p. 126.</p> <p>3. Telegraphs and Telephones. — Interstate Telegrams.— Stipulation Limiting Liability. — Requiring Claims. — Commerce. —Stipulations on the message blank that no recovery can be had beyond the toll paid for the message unless repeated upon payment of extra charge, and requiring claims for damages to be presented within sixty days, are binding' as to the parties to an interstate message, by virtue of the authority conferred upon the company by the act of Congress of June 18, 1910, 36 Stat. at L. 544. p. 127.</p>

<p>From Union Circuit Court; Raymond S. Springer, Judge.</p> <p>Action by Andrew H. Rieman against David Hawkins. From a judgment for plaintiff, the .defendant appeals.</p>

<p>1. Mechanics’ Liens. — Statutes.—Construction.-—The construction of mechanic’s lien statutes is strict to determine the persons entitled to liens, but liberal in favor of those entitled to their benefits, p. 135.</p> <p>2. Mechanics’ Liens. — Houses on Contiguous Lots. — Labor and Material Indiscriminately Used. — Single Contract. — Cases Distinguished. — Where a contractor, under a single contract, has furnished material and performed labor in the construction of two separate dwelling houses, one house on each of two contiguous lots, the labor and materials going indiscriminately into the construction of both houses, he is, under §8295 Bums' Supp. 1918, Acts 1915 p. 106, entitled, by a single notice, to a lien on both houses and lots. (Hill v. Braden, 54 Ind. 72; Wilkinson v. Rust, 57 Ind. 172, and McGrew v. McCarty, 78 Ind. 496, distinguished.) p. 135.</p>

<p>Master and Servant. — Workmen’s Compensation.- — -Death From Bloiv By Coservant. — The death of a workman from a blow by a hammer thrown by a fellow servant as the result of a disagreement arising out of the employer’s work, was caused by an accident arising out of and in the course of his employment.</p>

<p>1. Municipal Corporations. — Construction of Sidewalks. — Statutes. — By Acts 1913 p. 749, §9005a et seq. Burns 1914, an independent and simplified procedure was provided for the construction of sidewalks in towns, p. 143.</p> <p>2. Municipal Corporations. — Sidewalk Construction. — Assessment of Cost. — Necessity.—Where a town constructs a sidewalk under §9005a et seq. Burns 1914, Acts 1913 p. 749, formal assessment against abutting real estate is not essential, p. 143.</p> <p>3. Municipal Corporations. — Sidewalk Construction. — Contractor’s Suits to Foreclose Liens. — Pleading.—In a suit by the contractor to foreclose a lien for the construction of a sidewalk under Acts 1913 p. 749, §9005a et seq. Burns 1914, it is not necessary that the record, or any part thereof, made .by the town board relating to the improvement should be averred in or made an exhibit to the complaint, p. 143.</p> <p>4. Municipal Corporations. — Schools and School Districts.— Sidewalk Construction. — Liens.—Statutes.—A contractor, by constructing a sidewalk along real estate of a school township under §9005a .et seq. Burns 1914, Acts 1913 p. 749, acquires a lien thereon for the contract price of the work, by virtue of the provisions of §6670 Burns 1914, Acts 1903 p. 334, making such real estate subject to liens for public improvements except as to penalties and attorney’s fees. p. 144.</p> <p>5. Municipal Corporations. — Sidewalk Construction. — Liens.— Finality óf. — Actions Upon. — -Bight of Contractor to Sue. — The obligation to pay, and statutory lien in favor of, the contractor for the construction of a sidewalk under Acts 1913 p. 749, §9005a et seq. Burns 1914, were subject to controversy, adjustment and litigation, and the contractor had the right to sue to have the extent of his claim judicially determined and his lien declared and established, p. 144.</p> <p>6. Appeal. — Belief Granted. — Question Not Presented. — Schools and School Districts. — In a suit to enforce a lien for sidewalk construction against a school township, the question whether the judgment went too far in directing the sale of the property is not presented on appeal by defendant which refused to plead after its demurrer to the complaint was overruled, p. 144.</p>

<p>From the Industrial Board of Indiana.</p> <p>Certified Questions of Law.</p> <p>Proceedings under the Workmen’s Compensation Act by Henry Wheeler against the American Brass Foundry Company. Questions certified by the Industrial Board.</p>

<p>1. Corporations. — Foreign Corporations. — Statutory Requirements. — When Contracts Void. — Section 4085 et seq. Burns 1914, Acts 1907 p. 286, regulating the admission of certain foreign corporations to do. business in Indiana, contains a section prescribing a penalty for neglect or failure to comply with the act, and this renders a contract made in violation thereof void. p. 155.</p> <p>2. Commerce. — Corporations.—Installation of Sprinkler System by Foreign Corporation Not Interstate Commerce. — The contract for, and the installation of a. sprinkler system, by a foreign construction company, in a domestic manufacturing plant, did not constitute interstate commerce, but was the transaction of local business in the state, p. 158.</p> <p>3. Corporations. — Foreign Corporations. — Failure to Comply With Statutory Requirements. — Right of Protection. — A contract of a foreign corporation for the transaction of local business in the state, in violation of §4085 et seq. Burns 1914, Acts 1907 p. 286, because of failure to comply with the requirements therein prescribed for admission of the corporation to do business in the state, is unlawful, and not entitled to the protection of the courts of the state, p. 158.</p> <p>4.- Fixtures. — Mortgages.—Estoppel.—A construction company which installed a sprinkler system at a manufacturing plant in such a manner that it became a visible fixture and permanent part of the plant, is estopped, as against a subsequent mortgagee of the plant acting without any knowledge of any claim of title or lien by the construction company and upon appearances created by it, from asserting any such claim, p. 158.</p>

<p>From Marion Superior Court (.105,692) ; Vincent G. Clifford, Judge.</p> <p>Action by Ralph W. Hammer against Vernon C. Griffith and another. From judgment for plaintiff, the defendants appeal.</p>

<p>1. Pleading. — Personal Injuries. — Surplus Allegations Tending to Prejudice Jury at Trial. — Motion to Strike Out. — An allegation in a complaint for personal injuries, suffered by the plaintiff, that one of plaintiff’s children, by reason of physical infirmities, required her constant attention, have a prejudicial tendency, and should be stricken out on motion, as surplusage, p. 164 -</p> <p>2. Appeal. — Motion to Strike Out Part of Pleading. — Overruling Not Reversible Error. — It is not reversible error to overrule a motion to strike out a part of the pleading, p. 164.</p> <p>3. Landlord and Tenant.— Action by Subtenant.— Injuries From Known Dangerous Condition. — When Averment of Covenant to Repaw Unnecessary. — -In an action for personal injuries where the complaint is on the theory that the defendant, with knowledge of the latent defect that made the premises dangerous, leased the same without disclosing the fact, a demurrer thereto on the ground of -failure to allege any covenant by defendant to repair, was properly overruled, p. 165.</p> <p>4. Appeal. — Illegal Evidence Admitted. — Presumption of Influence. — It will be presumed on appeal that the admission of illegal evidence influenced the result unless the contrary appears. p. 165.</p> <p>5. Appeal. — Evidence. — Reversible Error. — Damages.—Where plaintiff, over proper objections, was permitted to testify that one of her children was a helpless invalid, the unfortunate physical condition of such child not being in issue, and no instruction to disregard such testimony was given, and defendant has properly presented a contention that the damages assessed were excessive, the Appellate Court cannot say that defendant was not harmed by the admission of the evidence, and the action of the court therein was reversible error, p. 165.</p> <p>6. Landlord and Tenant. — Leasing Dangerous Building Without Disclosure.- — Evidence of Repairs. — In an action for negligently leasing a defective building without notifying the tenants of known latent defects, evidence that the defendant made repairs to other portions of the building is immaterial and inadmissible. p. 166.</p> <p>7. Appeal. — Admission of Incompetent Evidence. — Waiver of Objection by 'Offering Same Evidence. — Defendant cannot complain, on appeal, of the admission of incompetent evidence, where during the trial he also offered, and the court admitted, evidence tending, to prove the same facts, p. 166.</p>

<p>1. Appeal. — Review.—Harmless Error.? — Overruling Motion to Separate Causes. — It is not reversible error- to overrule a motion to separate causes of action, p. 169.</p> <p>2. Evidence. — Contracts.—Oral Negotiations. — Merger.—In a real estate broker’s action on a written contract to recover compensation for arranging an exchange of lands, where defendant did not deny the execution of the contract, in the absence of fraud, the time or nature of negotiations prior to the execution of the contract is immaterial, as such negotiations were merged in the written contract, p. 169.</p> <p>3. Brokers. — Real Estate Brokers. — Action for Commissions.— Complaint. — In a real estate broker’s action on a written contract to recover compensation for arranging an exchange of lands, a complaint alleging that defendant failed and refused to pay, without alleging the date thereof, is sufficient, p. 169.</p> <p>4. Pleading. — Demurrer to Answer. — Sufficiency.-—-A demurrer to an answer on the ground that it does not state facts sufficient to constitute an answer to the complaint is insufficient in form, p. 169.</p> <p>5. Brokers. — Contract Fixing Compensation. — Acceptance.- — ■ Where a real estate broker prepared a contract for the exchange of lands which stipulated that a certain party was to pay his commission, the execution of such contract was a sufficient acceptance thereto by the broker, p. 170.</p> <p>6. Appeal.' — -Review.—Harmless Error. — Sustaining Demurrer. —Sustaining a demurrer to an answer is harmless, although the demurrer is insufficient in form, where the answer fails to state facts sufficient to constitute a cause of defense, p. 170.</p> <p>7. Discovery. — Interrogatories Filed With Pleading. — Striking Out. — It was not error for the trial court to sustain a motion to strike out interrogatories to plaintiff, where they were not pertinent to the issues, and the answers thereto could not have aided defendant in adapting his pleadings to the facts in the case. p. 170.</p>

<p>From Marion Superior Court (98,865) ; John J. Rockford, Judge.</p> <p>Action by the United States Fidelity and Guaranty Company of Baltimore, Maryland, against the George S. Schauer Company and another. From the judgment rendered, the plaintiff appeals.</p>

<p>Appeal. — Review.—Conflicting Evidence. — Where the only question involved in an appeal requires for its determination a review of conflicting evidence, the judgment will be affirmed.</p>

<p>From Pike Circuit Court; John L. Bretz, Judge.</p> <p>Action by Eva Parker against William D. Curll. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Pike Circuit Court; John L. Bretz, Judge.</p> <p>Action by the State of Indiana on the relation of Nora Tooley, against DeForrest Tooley. From the judgment rendered, the defendant appeals.</p>

<p>From Madison Circuit Court"; Luther F. Pence, Judge.</p> <p>Action by Charles C. Leib and others, against June Dean Henderson. From a judgment for defendant, the plaintiffs appeal.</p>

<p>1. Judgment. — Bes Judicata. — Parties.—Pleading.—An answer of former adjudication that shows that the former action was not between the same parties, is subject to demurrer, p. 185.</p> <p>2. Judgment. — Bes Judicata. — Issues.-—-Pleading.—An answer of former adjudication that shows that the matters in suit, which sounds in tort, were not and could not have been litigated in the former action, which was in contract, is subject to demurrer. p. 185.</p>

<p>1. Death. — Presumption of Death From Absence. — Conclusiveness. — The presumption of death which arises after a continuous absence for period of seven years of one who left his home for a temporary purpose and from whom no tidings have been received is not conclusive, but may be rebutted, p. 188.</p> <p>2. Insurance. — Life Insurance. — Action on Policy. — Jury Questions. — Rebuttal of Presumption of Death. — Where, in an action on a life policy, the presumption of the death of insured arising from an absence of seven years is invoked, and there is any evidence tending to rebut such presumption, whether such evidence is sufficient to do so is a question for the jury. p. 188.</p> <p>3. Death. — Presumption of Death From Absence. — Rebutting.— Evidence Admissibility. — Where, in an action on a life policy, the presumption' of insured’s death arising from an absence of seven years was invoked, evidence that insured, at the time of his disappearance, was guilty of the crime of forgery and might have been a fugitive from justice was properly admitted to rebut the presumption of death, but such proof did not, as a matter of law, overcome such presumption, p. 188.</p> <p>4. Death. — Presumption of Death ■From Absence. — Evidence Sufficient' to Raise. — Where, in an action on a life policy, the presumption of insured’s death arising from an absence of seven years was invoked, evidence, in addition to that showing absence, that insured had been 'addicted to the use of intoxicants and morphine, and had contemplated suicide, held sufficient to raise the presumption that he was dead. p. 189.</p> <p>5. Death. — Presumption of Death From Absence. — Evidence to Rebut. — Sufficiency.—Where, in an action on a life policy, a. presumption of insured’s death from an absence of seven years was invoked, evidence that insured had been alive during such seven years held sufficient to rebut the presumption, p. 189.</p>

<p>Appeal. — Briefs.—Statement of Record. — Rules.—Wills.—Where neither the complaint nor the will is set out in appellant’s brief, in an appeal in a suit to construe a will and quiet title, no question is presented for consideration, since Rule 22 of the Supreme and Appellate Coux'ts x-equii-es a concise statement of so much of the record as fully presents every error and exception relied on; such defect not being cured by Acts 1917 p. 523, §691a et seq. Burns’ Supp. 1918.</p>

From Dubois Circuit Court; John L. Bretz, Judge. Action by Peter Bosler and another against Joseph Birk. From a judgment for defendant upon his cross-action, the plaintiffs appeal.

.From Marion Superior Court (al,068) ; T. J. Moll, Judge. Action by Charles H. Mueller against the board of commissioners of the county of Marion. From a judgment for defendant, the plaintiff appeals.

<p>From Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Action by John Ramsey and another against Walter Ketcham. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Marion Superior Court (97,701) ; John J. Rockford, Judge.</p> <p>Action by Moses Sapirie against Henry Wells. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Insurance. — Accident Insurance. — Avoidance of Policy. — Fraudulent Representations. — Where applicant stated in his application for an accident insurance policy that he had never received indemnity for any accident or sickness from any other company, when at the time he made such representation he had received indemnity a number of times from other companies, such statement was such a false and fraudulent representation as to avoid the policy, p. 210.</p> <p>2. Insurance. — Accident Insurance. — Avoidance of Policy.— Fraudulent Representations.. — Return of Premiums. — Where insured stated in his application for an accident insurance policy that he had never received such indemnity, when in fact he had received such indemnity a number of times, and the insurance company, prior to discovery- of such fraud, had paid insured indemnity in excess of premiums paid, the insurer could avoid the policy without tendering back the premiums received by it. pp, 210,211.</p> <p>3.. Insurance.- — Policy Obtained by Fraud. — Right of Insurer to Recover Indemnity Paid. — Fraud in obtaining an insurance policy, or fraudulent representations to obtain money thereon, will base a claim of the insurer for the return of the money, if it did not have knowledge of the fraud at the time of payment. p. 211.</p>

<p>1. Appeal. — Assignment of Error. — Motion for New Trial.— Change of Vénue. — The assignment as error of a refusal to grant a change of venue presents no question, since any error in such ruling must be presented in a motion for new trial, p. 213.</p> <p>2. Divorce. — Children.—Orders for Maintenance. — Proceedings to Modify. — Change of Venue From Judge. — Section 422a Burns 1914, Acts 1913 p. 314, authorizing a change of venue from the judge, applies to a proceeding by petition and cross-petition by former husband and wife, each praying for the modification of an order made against the husband in eonnec- ’ tion with a decree of divorce, for weekly.payments to the wife for the support of a child,,and is without any conflict with or change in the force of §1084 Burns 1914, §1046 R. S. 1881, since the jurisdiction over the child remains in the same court. p. 2Í3.</p>

<p>From Jay Circuit Court; E. E. McGriff, Judge.;</p> <p>Action by Thomas J. Mays against William Kemp and another. From judgment for plaintiff, the defendants appeal.</p>

<p>1. Replevin. — Elements of Action. — In order for plaintiff in replevin to recover, he must prove that he is the owner of the property involved, or that he is entitled to the possession thereof, and that defendant had wrongfully taken the property from him and detained it, or that he wrongfully detained it. p. 217.</p> <p>2. Sales. — Transfer of Title. — Bill of Sale. — Where an employe operating an automobile for livery purposes desired to purchase the same and, to enable him to obtain a loan for that purpose, a bill of sale for the car was made to him, there being no change of possession, there was no sale consummated, where the employe failed to negotiate the loan or to make any payment on the car. p. 217.</p> <p>3. Appeal. — Review—Harmless Error. — Admission of Evidence. —Error, if any, in the admission of evidence is harmless, where the right result was reached, p. 217.</p>

From Newton Circuit Court; James P. Wason, Special Judge. Action by Milton E. Graves and another against Arthur J. Spinney, sheriff of Newton county and another. From a judgment for defendants, plaintiffs appeal.

From Marion Superior Court (102,265) ; Linn D. Hay, Judge. Action by John W. Durnall, administrator of the estate of Nancy Justice, deceased, against the Indianapolis Traction and Terminal Company. From a judgment for defendant, the plaintiff appeals.

<p>From Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by. Rosa M. Wolf against August Wolf and others. From a judgment for plaintiff, the defendants appeal.</p>

From Cass Circuit Court; John S. Lairy, Judge. Action by the Home Insurance Company of New York against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company and another. From a judgment for plaintiff, the named defendant appeals.

<p>From Marion Superior Court (103,382); Vincent G. Clifford, Judge.</p> <p>Action by the C. R. Pease Construction Company against James H. Hooker. From a judgment for plaintiff, the defendant appeals.</p>

From Montgomery Circuit Court; Jere West, Judge. Action by Oliver P. Ensley against the board of com- ■ missioners of the county of Marion. From the judgment rendered, the plaintiff appeals.

<p>1. Insurance.— Policies.— Construction of Ambiguities. — For the purpose of construction an insurance policy is not regarded as an ordinary contract, ambiguities in its language being resolved in favor of the insured, p. 255.</p> <p>2. Insurance. — Policies.—Clauses Exempting from Liability.— Exemptions from the general obligation of the insurer under a policy of insurance should be expressed in plain language of sufficient clearness that persons of average intelligence may comprehend its meaning, p. 263.</p> <p>3. Insurance. — Sprinkler Leakage Insurance. — Tornado Clause. —Construction.—A clause in a policy insuring against all direct loss by sprinkler leakage except as provided in the policy, providing that the insurer shall not be liable for loss caused by “lightning (whether fire ensues or not), cyclone, tornado, windstorm,” does not exempt the insurer from loss by leakage caused by injury to the sprinkler system by tornado, p. 265.'</p> <p>4. Pleading. — Demurrer.—Searching the Record. — Requirement of Memorandum. — Since the adoption of §344 Burns 1914, Acts 1911 p. 415, rendered doubtful the availability of the rule that a demurrer to an answer searches the complaint, a ruling upon a demurrer to the answer, overruling it to a bad answer and sustaining it to a good complaint, will be reversed in its entirety, with directions to the lower court to sustain the demurrer as to the answer and to permit further proceedings not inconsistent with the opinion of the Appellate Court, p. 266.</p>

<p>Adverse Possession. — Elements.—Evidence Conflicting. — Appeal. —If the evidence is at least conflicting upon any one of the five indispensable elements of adverse possession, a judgment . for the defendant must be afiirmed, as against the plaintiif’s objection on appeal that the evidence was insufficient to sustain the trial court’s finding.</p>

<p>1. Master and Servant. — Workmen’s Compensation Act. — Liberal Construction. — Cases Within Reason Though Outside Letter. — The Workmen’s Compensation Act should be liberally construed to promote the purpose of its enactment, even to the inclusion of cases within the reason, though outside the letter, of the statute, p. 273.</p> <p>2. Master and Servant. — Workmen’s Compensation Act. — Underlying Principle. — The underlying principle of the Workmen’s Compensation Act is that the economic loss resulting each time a workman is killed or injured ought to be borne by the industry involved and the consumers of its products, rather than by the workman, his dependents or society at large, p. 274.</p> <p>3. Master and Servant. — Workmen’s Compensation. — Mining. —Shot Firers. — Employes.—A shot fixer selected by the miners and paid through a union official under an arrangement with the operator of the mine for an agreed deduction by the operator out of the agreed ton price for all labor needed in mining coal, and doing blasting and firing in the mine with the knowledge and consent of the operator, was an employe of such operator within the meaning of the Workmen’s Compensation Act. p. 275.</p>

<p>1. Appeal.— Release. — Rescission. — Tender. — Presumption.— Where on an application to set aside a settlement made during the pendency of an action and to reinstate the cause, the plaintiff pleads a tender of the amount received and avers that she now pays such sum into court to keep the tender good, whereupon the court reinstated the cause, the presumption in favor of the right ruling having been made by the trial court is not overcome by the fact that there was no order book entry showing payment into court until the day the cause was called for trial, p. 284.</p> <p>2. Appeal. — Release. — Rescission. — Tender. — Irregularity.— Harmless Error. — A defendant may not complain on appeal of the irregularity involved in a late payment into court of the amount of a tender made in connection with an application for the reinstatement of a cause settled out of court, where the amount of the judgment discloses that he was not harmed thereby, p. 284.</p> <p>3. Fraud. — Evidence.—Circumstantial Evidence. — Fraud may be proved by circumstantial evidence as well as by direct evidence. p. 284.</p>

<p>1. Appeal. — Briefs.—Failure to Set Out Complaint.-r-Waiver of Error. — Ruling on Motion for Judgment on Answers to Interrogatories. — Failure to set out the complaint or its substance in appellant’s brief is a waiver of an assignment of error in ruling on appellant’s motion for judgment on answers to interrogatories, it being the duty of appellant to so prepare his brief as to present the question without resort to the record. p. 286.</p> <p>2. Appeal. — Briefs.—“Argument.”—Statement of the Record.— Interrogatories and answers set out in the “argument” in a brief, but omitted from the essential part of the brief, will not be considered, p. 286.</p> <p>3. Appeal. — Briefs.—Failure to Set Out Motion for New Trial. —Waiver.—Appellant’s assignment of error in overruling his motion for new trial is waived by his failure to set out such motion in his brief, p. 286.</p>

<p>1. Master and Servant. — Workmen’s Compensation. — Appeal. ■ — Assignment of Errort — The assignment as error in an appeal in a proceeding under the Workmen’s Compensation Act, that the award was contrary to law, presents the question of the sufficiency of the evidence under §8020s2 Burns’ Supp. 1918, Acts 1917 p. 154. p. 288.</p> <p>2. Master and Servant. — Workmen’s Compensation. — Appeal. —Evidence.—Revieiv.—On appeal from an award under the Workmen’s Compensation Act, the Appellate Court does not weigh the evidence, p. 288.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Paul F. Kramer against the Huntington Steel Foundry Company. From an award denying compensation, the applicant appeals.

<p>1. Appeal. — Time for Perfecting. — Insufficient Motion for New Trial. — An appeal taken in due time after the overruling of the motion for new trial will not be dismissed as not being taken within the time allowed by statute in that the motion was not based on any statutory reason for new trial, and should not therefore be considered in computing limitations. (Schneidt v. Schneidt [1919], 69 Ind. App. 666, distinguished.) p. 292.</p> <p>2. Railroads. — Right of Way Through Unimproved lands.— Fencing. — Statute.—Section 570Y Burns 1914, Acts 1903 p. 425, does not require a railroad to fence, its tracks through, unimproved and unenclosed lands, and it is not liable for injury to stock entering upon its right of way from lands of this character. pp. 293, 294.</p> <p>3. Railroads. — Duty to Fence Tracks. — Common-Law Rule.— At common law there was no duty resting upon a railroad company to fence its tracks, and, unless that duty is imposed by statute, the failure to erect and maintain fences along its right of way is not negligence rendering the company liable for killing stock on its tracks, p. 294.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action by Majoria Stevenson, by next friend, against the Terre Haute, Indianapolis. and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by Joseph Maurer against the Baltimore and Ohio Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Pleading.—Fads Provable Under General Denial.— Error in Ruling on Other Paragraphs of Answer Harmless.— Where the general denial is pleaded, error, if any, in overruling a motion to make another paragraph of answer more specific and in overruling a demurrer thereto, is harmless.p. 308.</p> <p>2. New Trial. — Reasons Not Authorized by Statute. — No Ques. tion Presented. — Reasons incorporated in a motion for new trial that are not authorized by statute, present no question, p. 308.</p> <p>3. Appeal. — Evidence.—Review.—The Appellate Court will not reverse a ease upon the evidence if there is any evidence tending to support the decision, p. 308.</p>

From Pulaski Circuit Court; William C. Pentecost, Judge. Action by Harry Leopold, administrator of the estate of Joseph Castleman, deceased, against the New York, Chicago and St. Louis Railroad Company. From a judgment for plaintiff, the defendant appeals.

From Hamilton Circuit Court; Ernest E. Cloe, Judge. Opposing applications for letters of administration upon the estate of Abel L. Haughey, deceased, by his widow Lanie F. Haughey and by his son Robert L. Haughey, with objections joined in by others. From an order appointing the son as administrator, the widow appeals.

<p>From Grant Circuit Court; J. F. Charles, Judge.</p> <p>Action by Ruth A. Lloyd against Henry O. Dibble and others. From a judgment for plaintiff, certain defendants appeal.</p>

From Daviess Circuit Court; James W. Ogdon, Judge. Action by Minnie C. Fulkerson against the board of commissioners of the county of Daviess. From a judgment for plaintiff, the defendant appeals,

<p>From Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Action by Willis Hickam and others against John A. Moriarity, as receiver of the Central Union Telephone Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Action by Harry W. Baker against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

From Floyd Circuit Court; James W. Fortune, Judge. Proceedings to collect taxes on property omitted from assessment by the board of commissioners of the county of Floyd against the Union Trust Company of Indianapolis, executor of the will of Newland T. De Pauw, wherein Ferdinand P. Van Der Veer filed an intervening petition. From a judgment dismissing the petition, the petitioner appeals.

From the Industrial Board of Indiana. Proceedings for compensation by Ellen Collwell against the Bedford Stone and Construction Company. From an order that she take nothing, the applicant appeals.

From Marion Superior Court (99,478) ; Theophilus J. Moll, Judge. Action by Anna F. Weaver, administratrix of the estate of Ella J. Weaver, deceased, against Ella B. Smith and another. From a judgment for the plaintiff, the named defendant appeals.

<p>New Trial. — Evidence.—Sufficiency.—Where there was ample evidence to support the findings, it was not error to overrule a motion for new trial based on the insuificiency of the evidence.</p>

<p>1 Schools and School Districts. — Townships.—Contracts.— Record of Meetings of Advisory Board. — Appropriations.— Under §§9590, 9595, 9601 Burns 1914, Acts 1899 p. 150, Acts 1913 p. 276, a supplemental contract for remodeling a schoolhouse was void where no record of any meeting of the township advisory board directing its execution was kept, and no appropriation existed for the obligation attempted to be created thereby, p. 365.</p> <p>2. Schools and School Districts. — Township Advisory Board. —Qualification of New Members. — Joint Acts of Old Board and Trustee Thereafter Void. — -After the qualification of persons newly elected as members of the township advisory board, an act of the old board in declaring an emergency and joining with the trustee in the execution of a note for repairs to a • schoolhouse was wholly without authority and void, as was also the act of the trustee therein, p. 366.</p> <p>3. Officers. — Statutory Powers.- — Notice By Third Persons.— Those dealing with statutory officers are bound to take' notice of the limited nature of the powers conferred by the statute and that such powers may be exercised only in the manner provided by statute, p. 366.</p>

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Action by John C. Bower against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

From Fulton Circuit Court; W. C. Pentecost, Judge. Action by Naomi Clemens and others against Fletcher Stoner, executor of the estate of Harrison Graham, deceased, and others. From a judgment for defendants, the plaintiffs appeal.

From Tippecanoe Superior Court; Isaac E. Schoonover, Special Judge. Action by Henry W. Phillips and others against Alida A. Phillips Decker and her husband, in which the named defendant filed a cross-complaint. From a judgment for defendant on her cross-complaint, the plaintiffs appeal.

From Hendricks Circuit Court; George W. Brill, Judge. Action by Washington school township of Hendricks county, against Flora E. Hanna and others. From a judgment for plaintiff, the defendants appeal.

<p>From St. Joseph Circuit Court; Walter Á. Funk, Judge.</p> <p>Action between Louis Plotnicki and Kate Nowicki. From the judgment rendered, the former appeals.</p>

<p>Chattel Mortgages. — Recording.—Real Estate Mortgage Records. — Constructive Notice. — Where a mortgage of real estate and chattels was recorded in the real estate mortgage records only, such recording was constructive notice as to the chattels under §§7472, 7473, 9492, 9495, 9497 Burns 1914, Acts 1907 p. 240, §§4914, 5930, 5931, 5933 R. S. 1881.</p>

<p>From Cass Circuit Court’; John S. Lairy, Judge.</p> <p>Action between the Indianapolis Northern Traction Company and others and Simon Long. From the judgment rendered, the former appeals.</p>

<p>From Delaware Superior Court; Robert M. Van Atta, Judge.</p> <p>Action by Charles Wolf against the Union Traction Company of Indiana. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (106,960) ; Linn D. Hay, Judge.</p> <p>Action by Edna. F. Cooperider against Leona A. Kurtz. From a judgment for plaintiff, the defendant appeals.</p>

From Porter Circuit Court; H. H. Loring, Judge. Action by Cora Sams, executrix of the estate of John Sams, deceased, against the Lake Erie and Western Railway Company. From a judgment for plaintiff, the defendant appeals.

<p>From Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Action by Sallie D. Merker and others against Adele Howard and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>From Kosciusko Circuit Court; Francis E. Bowser, Judge.</p> <p>Action by the Wayne County National Bank against Charles Cook. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Taxation. — Vacation of Tax Deed. — Complaint.—Sufficiency. —Averment of Tender. — In an action to have a tax deed declared void, plaintiff’s allegations of tender of the full amount due held sufficient as against demurrer, p. 410.</p> <p>2. Taxation. — 'Vacation of Tax Deed. — Tender of Taxes Paid to President of Incorporated Association. — Sufficiency.—In a proceeding against an incorporated association to have a tax deed held by it vacated, plaintiff was not required to tender the amount of taxes paid to the board of directors of the company, a tender to its president being sufficient, p. 411.</p> <p>3. Taxation.- — Vacation of Tax Deed. — Tender of Taxes Paid.— Sufficiency. — Uncertainty as to Amount Due. — In a proceedings to vacate a tax deed, where the amount due the holder of the deed is uncertain, or depends upon different or doubtful constructions of the law, it is only necessary that the party in default shall tender and bring into court the amount admitted, or which he in good faith believes to be due. p. 411.</p> <p>4. Taxation. — Vacation of Tax Deed. — Tender of Taxes Paid.— insufficient Tender. — ? When Immaterial.— In an action tc vacate a tax deed, where plaintiff made a tender of the amount due defendant holder of the deed and deposited it in court, which tender defendant alleged was insufficient, any insufficiency was immaterial, where it appeared that even if the correct amount had been tendered, defendant would not have accepted it. p. 411.</p> <p>5. Appeal. — Questions Beviewable. — Limitations of Action.— Failure to Plead Statute. — Where defendant failed to plead the statute of limitations, he cannot on appeal complain that the action was not commenced in time. p. 412.</p>

<p>Insurance. — Accident Insurance. — Policy Stipulation Limiting Indemnity. — Construction.—Under an accident insurance policy-providing for weekly benefits of $5, limited to twenty weeks in any twelve calendar months, where insured was injured in March, 1916, and received five weekly benefits in March and April, and was again injured on September 21, 1916, and received fourteen weekly benefits from September 29 to January 8, 1917, he was not entitled to an allowance of twenty weekly benefits beginning March, 1917, if disabled for that length of time, irrespective of the payments made from September, 1916, to and including January, 1917, notwithstanding insurer’s statement to insured in January, 1917, that he would not be entitled to further benefits until the following March for the reason that twenty weekly benefits had been paid to him since March, 1916.</p>

<p>From Cass Circuit Court; Charles A. Cole, Special Judge.</p> <p>Action by Calvin Carney and others, against Silas Storer, as administrator de bonis non with the will annexed of the estate of Robert M. Carney, deceased. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Lake Superior Court; Charles E. Greenwald, Judge.</p> <p>Action by the Standard Brewery against the Massachusetts Bonding and Insurance Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Warrick Circuit Court; Marshall R. Tweedy, Judge.</p> <p>Action by the Boonville Milling Company against G. Jacob Roth and others. From the judgment rendered, the plaintiff appeals.</p>

<p>From Delaware Superior Court; Robert M. Van Atta, Judge.</p> <p>Action by Media A. Lutton against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

From the Industrial Board of Indiana. Proceedings under the Workmen’s Compensation Act wherein Arthur M. Sullivan filed his application with the Industrial Board for an adjustment of his claim for services rendered the employes of the National Car Coupler Company. From an order allowing the claim, the defendant and its insurance carrier appeal.

<p>From Orange Circuit Court; Oscar Ratts, Special Judge.</p> <p>Action by Mark B. Chastain and others against Arthur L. Lindley. Prom a judgment for defendant, the plaintiffs appeal.</p>

<p>From Randolph Circuit Court'; Theodore Shockney, Judge.</p> <p>Action by Albert Ireton against the Pittsburgh, Chicago, Cincinnati and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Warren Circuit Court; Burton B. Berry, Judge.</p> <p>Action by Nora A. Howarth against the Lake Erie and Western Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Probate Court (11,536); Mahlon E. Bash, Judge. Action on claim by Mary McCune against William W. Spencer, as administrator of the estate of Evadna R. Emerson, deceased. From a judgment for claimant, the administrator appeals.

<p>1. Amicus Curiae. — Appearance.—Discretion of Court. — In an action to restrain a city board of health from paying- money to a charitable association, it was not error for the trial court to permit the chamber of commerce of the city to appear as amicus curiae, it being- a matter of judicial discretion, p. 490.</p> <p>2. Municipal Corporations. — Aiding Private Charitable Corporation. — A city board of health may appropriate money to a children’s aid association, a private corporation organized to do charitable work, and which can receive no pecuniary profit therefrom, p. 490.</p>

From the Industrial Board of Indiana. Proceeding for compensation under the Workmen’s Compensation Act by Cora Beach against the Indian Creek Coal and Mining Company. From an award for applicant, the defendant appeals.

<p>From Elkhart Circuit Court; James S. Drake, Judge.</p> <p>Action by William Munson against the Eagle Lake Ice Company. From a judgment for plaintiff, the defendant appeals.</p>

From Randolph Circuit Court; Theodore Shockney, Judge. Petition by the Citizens Banking Company, executor of the estate of Martin V. Maulsby, deceased, and others, to sell decedent’s real estate to pay debts, in which proceeding Malissa I. Maulsby, the widow, filed a cross-complaint. From a judgment for petitioners, the widow appeals.

<p>From Huntington Circuit Court; Fred H. Bowers, Special Judge.</p> <p>Action by Henry Stickler against the Live Stock Insurance Association. From a judgment for defendant, the plaintiff appeals.</p>

<p>From White Circuit Court; J. P. Wason, Judge.</p> <p>Action by Will S. Bushnell against the Western Union Telegraph Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (103,993) ; Theophilus J. Moll, Judge.</p> <p>Action by John G. Forster against the Byram Foundry Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Industrial Board of Indiana.</p> <p>Proceeding by John E.. Miller under the Workmen’s Compensation Act against the Indiana Power and Water Company. From an award of compensation, the latter appeals.</p>

<p>From Rush Circuit Court; Fred C. Gause, Special Judge.</p> <p>Action by John C. Folger and others against Emerson E. Barnard. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Marion Superior Court (106,164) ; W. W. Thornton, Judge.</p> <p>Action by Joine G. Beck against the Guardian Casualty and Guaranty Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Evidence. — Pleadings Filed in Effort to Compromise. — Admissibility. — Original and amended complaints, in an action to quiet title, which were prepared and filed pursuant to an effort to compromise the controversy, were properly excluded from evidence, p. 531.</p> <p>2. Quieting Title. — Purchase Price of Property. — Evidence of Payment. — Deed by Husband and Wife. — Admissibility.—In an action to quiet title, a deed by husband and wife of property held by the entireties, the proceeds of sale of which they used in purchasing the property to which the wife as widow was seeking to quiet title, was properly admitted in evidence, p. 531.</p> <p>3. Tenancy in Common.' — Ouster by Cotenant. — Adverse Possession. — Where a husband and wife, after selling land held by the entireties, used the proceeds in the purchase of other property, the title to which was taken in his name, although he assured his wife that their interests therein were equal, and after the death of the husband, who died intestate, the property was occupied by the widow, taxed in her name, and was understood by the children to belong to her, her possession under claim of title for more than thirty years was sufficient to give her title as against a deceased daughter’s surviving husband and children, who never disputed her right until she sued to quiet title, even though they were legally tenants in common, p. 533.</p>

From Howard Circuit Court; William C. Overton, Judge.- Action by Perl Sweeny and others against the town of Greentown and others. From a judgment for defendants, the plaintiffs appeal.

<p>1. Appeal. — Instructions.—Giving or Refusing. — Evidence Not in Record.- — ■Presumptions.—Where the action of the trial court in giving or refusing instructions would be right under any supposable state of facts within the issues, and the evidence is not in the record, it will be presumed on appeal that such state of facts existed, p. 539.</p> <p>2. Appeal. — Instructions.—Refusing.—Evidence Not in Record. —Review.—The refusal to give an instruction is not reviewable where the evidence is not in the record, p. 539.</p> <p>3. Appeal. — Instructions.—Evidence Not in Record. — Presumptions. — In the absence of the evidence from the record it will be presumed that there was evidence to support the instructions given to the jury. «■ p. 539.</p> <p>4. Railroads. — Collision with Automobile. — Intoxication of Driver. — Contributory Negligence of Occupant. ■ — • Where the driver and occupants of an automobile, including plaintiff, had been drinking, and the intoxicated driver drove into a train standing across the highway, and where the plaintiff knew of the drunken condition of the driver and other occupants of the automobile in ample time before the crossing was reached to have alighted from the automobile and thus avoided her injury, she was guilty of contributory negligence, p. 539,</p>

From Fayette Circuit Court; Raymond S. Springer, Judge. Action by Pettis A. Reid, administrator of the estate of Gilvie L. Coddington, deceased, against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for defendant, the plaintiff appeals.

<p>From Hendricks- Circuit Court; George W. Brill, Judge.</p> <p>Action by Arthur M. Humphrey against George H.Johnson and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Schools and School Districts. — Township Indebtedness.— Determination of Amownt. — Money on Hand to Retire Bonds.— Money on hand with which to retire township school bonds does not operate to reduce the indebtedness represented by the bonds, and such bonded indebtedness can only be considered as reduced when the bonds have actually been retired, p. 560.</p> <p>2. Schools and School Districts. — Township Warrant. — Payment Out of Bond Fund. — A township warrant given in payment of materials used in the construction of a schoolhouse cannot be paid out of a bond fund created to retire the bonds issued for the erection of the building, p. 560.</p> <p>3. Schools and School Districts. — School Township. — Limitation of Indebtedness. — Computation of Debt. — Township Warrant. — “Debt”.—A township warrant given in payment of materials used in the construction of a school building constitutes a debt and an obligation to pay money on the part of the township, and is void and illegal at the time of its issuance where it increases the indebtedness of the township beyond that permitted by Art. 13 of the Constitution (§220 Burns 1914); a debt, in its general sense being a specific sum of money due from one person to another, and denoting not only the obligation of the debtor to pay, but the right of the creditor to receive and enforce payment, p. 561.</p> <p>4. Towns. — Township Trustee. — Poioers.—A township trustee is a special agent possessing only statutory powers, and can only bind the township when authorized by statute and in the man- • ner specified therein, and all who deal with him must, at their peril, take notice of the extent of his authority, p. 561.</p> <p>5. Municipal Corporations. — Poivers.—Notice.—Municipal corporations have only such powers as are conferred upon them by law. p. 561.</p> <p>6. Schools and School Districts. — Construction of School Buildings. — Warrants for Materials. — Payment from General Fund. — There is a distinction between the ordinary and necessary expenses of a township and those incurred for the erection of schoolhouses and other permanent buildings, so that a warrant issued in payment of materials used in the erection of a school cannot be considered as having been given in the payment of an ordinary current expense, payable from the general expense fund of the township, p. 562.</p> <p>7. Schools and School Districts. — Township Advisory Board. —Powers.—Creation of Indebtedness. — Constitutional Limitation. — The advisory board of a school township has no power to create or authorize the creation of any indebtedness against the township in excess of the debt limit fixed by Art. 13 of the Constitution. p. 562.</p>

<p>1. Banks and Banking. — Appropriation of Deposit. — Notice of Trust Character. — Liability on Checks Subsequently Presented. . —When trust funds are deposited by a firm, and the banker has notice or knowledge of their trust character, he will be liable to the holder of a check presented after he has, by means of an arrangement by check and new note, appropriated the entire balance of the account to the payment of an old note due him; but if he had no such notice or knowledge, then the holder of such check so subsequently presented would not be entitled to recover against him. p. 566.</p> <p>2. Banks and Banking. — Appropriation of Depositor’s Account. — Nature of Account. — Source of Funds. — Evidence.— Sufficiency. — In an action by the holder of a check not paid for want of funds on account of the prior appropriation by the bank of the depositor’s account, there was no error in the court’s finding for the bank where the record showed that the depositor firm had at different times borrowed from the bank, upon notes given therefor, and placed the money so obtained in said account, and that one member of depositor firm had placed therein a large sum derived from the settlement of his father’s estate, p. 569.</p>

From Porter Circuit Court; H. H. Loring, Judge.- Action by the C. L. Centlivre Brewing Company against James C. Collins, in which the Booster Cigar Company intervened and defendant filed a cross-complaint. From the judgment rendered, the defendant appeals.

From Pike Circuit Court; John L. Bretz, Judge. Application by the Ayrshire Coal Company for relief from judgment by default in favor of James E. Thurman. From a judgment denying the application, the applicant appeals.

From the Industrial Board of Indiana. Proceeding under the Workmen’s Compensation Act by Jennie M. Shertzer and another against the board of commissioners of Greene county, Indiana. From an award to the applicants, the employer appeals.

<p>From St. Joseph Circuit Court; Walter A. Funh, Judge.</p> <p>Action by the National Lumber Company against the Southern Surety Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Wills.— Construction.— Testator’s Intention.— How Ascertained. — In construing the provisions of a will, courts are guided by the testator’s intention, which must be gathered from the language of the will itself, p. 606.</p> <p>2. Wills. — Construction.—Uncertain Language. — Presumption. —The law presumes that a testator knows when executing his . will that uncertain language used by him may be subjected to the well-recognized rules of construction, p. 606.</p> <p>3. Wills. — Construction.—Devise of Fee. — Limitation by Subsequent Clause. — Where an estate in fee is devised in one clause of a will in clear and decisive terms, it cannot be taken away or cut down by subsequent provisions unless the intention to do so is manifest from words as clear and definite as those which created the fee. p. 606.</p> <p>4. Wills. — Constmiction.—Devise Coupled with Devise Over.— Where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, coupled with a devise over in event of the death of the primary devisee without issue, the words refer to a death without issue during the life of the testator, p. 607.</p> <p>5. Wills. — Constmiction.—Estates Devised. — Indefeasible Fee.— A will bequeathing to a daughter all of testator’s estate, with a provision that, if she should die without issue alive, then whatever property remained at her death should be divided between the children of testator’s brother, gave to the daughter an indefeasible fee-simple title to her father’s real estate, and not an estate contingent upon her death without issue, p. 607.</p>

From Hamilton Circuit Court; Willett PL. Parr, Special Judge. Action by Peter D. Waltz and others against George Noble and others, in which the defendants filed a cross-complaint. From a judgment for defendants, the plaintiffs appeal.

<p>From Porter Superior Court; Harry L. Crumpacker, Judge.</p> <p>Action by Edward Timm against the Haskell and Barker Car Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Sales. — Complaint for Goods Sold and Delivered. — Counterclaim for Breach of Contract of Sale. — Right to Recover on Complaint. — In an action for the purchase price of goods sold and delivered, wherein defendant seeks by counterclaim to recoup damages alleged to have resulted from a breach of the contract of sale by the seller’s failure to deliver, the plaintiff is entitled to recover on its complaint for the goods delivered _ regardless of whether it had breached the contract or not. p. 622.</p> <p>2. Sales. — Action for Breach of Contract by Seller. — Breach by Buyer. — A buyer who first breached the contract cannot recover thereon for the seller’s failure to perform, p. 622.</p> <p>3. Sales. — Contract.—Conditions as to Time of Payment.— Later Acceptance Not a Waiver as to Future Amounts Due.— Acceptance of payments after the time stipulated therefor as to goods delivered does not preclude the seller from insisting upon the contract terms of payment as to later deliveries, p. 623.</p> <p>4. Sales. — Contract.—Provisions for Deferring Shipments and Cancellation. — When Both Available to Seller. — Provisions for deferring shipments until payment for former shipments had been made, or that the seller might cancel the contract at its option, each month’s shipments to be treated as a separate contract, are not necessarily exclusive of one another, and the seller, although it had chosen to defer shipments until payments past due were paid, would be justified finally in canceling the contract where delays in payment continued, p. 623.</p>

<p>From Marion Superior Court (105,862) ; V. G. Clifford, Judge.</p> <p>Action by George Roundtree against the S. M. Timberlake. 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 Philip D. Landgrave against the Standard Cabinet Company. From an award for applicant, the defendant appeals.

<p>From Huntington Circuit Court; C. K. Luoas, Special Judge.</p> <p>Action by Frank Schultz and others against John Forst and others. From a judgment for defendants, the plaintiffs appeal.</p>

From Posey Circuit Court; Herdis F. Clements, Judge. Action for partition by Hattie Spencer Brown against Jesse Spencer Conlin and another. From a judgment for partition after plaintiff’s petition to have the fees of her attorney taxed as costs had been stricken from the files, plaintiff appeals.

<p>1. Mortgages. — Actions to Foreclose. — Note and Mortgage When Construed Together. — Where a note and a mortgage securing same were executed by the same parties at the same time and pertain to the same subject-matter, they will be read and construed together in an action to foreclose the mortgage, where both instruments are involved, p. 634.</p> <p>2. Limitation of Actions. — Debt Payable in Installments.— When Statute Begins to Bun. — Where a mortgage indebtedness was payable in installments, the whole debt to be due, at the option of mortgagee, in case of default for three months, but such option was not exercised, limitations ran as to each installment from the time it fell due. p. 635.</p> <p>3. Limitation of Actions. — Acknoivledgment of Indebtedness Not Made to Creditor.- — Effect.—Affidavits of the mortgagor reciting the mortgage indebtedness for the purpose of obtaining a deduction from the assessed valuation of the real estate do not constitute a sufficient acknowledgment to the debtor to take the debt out of the operation of the statute of limitations, p. 635.</p> <p>4. Mortgages. — Actions to Foreclose.- — Deeds by Mortgagor Without Consideration Ineffective Against Mortgagee. — Conveyances executed by the mortgagor to a third person and by such third person to one of the defendants without consideration may be good as between the parties but are without force as to the mortgagee, p. 636.</p>

<p>From Starke Circuit Court; William C. Pentecost, Judge.</p> <p>Action by Abner Goldenson against Emma Lieberman and others. From the judgment rendered, the plaintiff appeals.</p>

From Huntington Circuit Court; Samuel E. Cook, Judge. Action by William A. Mayne and another against John C. Curtis as receiver of the Cincinnati, Bluffton and Chicago Railroad Company and the City of Huntington. From a judgment for the city, the plaintiffs appeal.

From Tipton Circuit Court; James M. Purvis, Judge. Action by Evelean Davis against John T. West, as executor of the last will and testament of Nancy Shackle-ford, deceased. From a judgment for plaintiff, the defendant appeals..

<p>From Wells Circuit Court; William H. Eichhorn, Judge.</p> <p>Action by Harry J. Young and another against Margaret Dannhauer and others. From a judgment for plaintiffs, defendants appeal.</p>

From Porter Superior Court; Harry L. Crumpacker, Judge. Action by Elida Erickson, as administratrix of the estate of Gus Erickson, deceased, against the Haskell and Barker Car Company. From a judgment for plaintiff, the defendant appeals.

<p>From Carroll Circuit Court; James P. Wason, Judge.</p> <p>Action by Minta R. Hinkle and others against James R. Plank and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Insurance. — Fire Insurance.— Forfeiture.— Fraud.— Proofs of Loss. — In an action on a policy of fire insurance which provided that fraud, or false swearing on the part of insured in his proofs of loss, should cause a forfeiture of all claims under the policy, evidence held to show that insured in proofs of loss knowingly overstated the value of property destroyed, p. 679.</p> <p>2. Appeal. — Review.—Denial of New Trial. — Verdict Supported by Obviously False Testimony. — Duty of Trial Judge. — In an action on a fire policy which provided that fraud or false swearing by insured in making proofs of loss should cause a forfeiture of all claims under the policy, where it was obvious from the evidence that insured in his proofs of loss had knowingly overstated the value of the goods destroyed, held that the trial judge should not have permitted the verdict supported by such evidence to stand, but in the performance of his whole duty should have granted a new trial, especially as his failure in this respect could not, under the circumstances, be corrected on appeal, p. 682.</p> <p>3. Appeal. — Review.—Instructions.—Invading Province of Jury. —A requested instruction that the jury “cannot rightly brush aside” certain testimony, was properly refused as invading the province of the jury. p. 683.</p> <p>4. .Evidence. — Writing in Course of Business.- — -Weight.—Writings made by a party in the course of a business transaction, at the time the events are transpiring, are much more satisfactory evidence than the oral statements of a party after controversy has arisen, and after he has become biased and excited by the controversy, p. 683.</p> <p>5. Insurance. — Fire Insurance. — Insurer's Denial of Liability. —Recovery of Attorney’s Fees by Insured. — Statute.—Section 4622g Burns 1914, Acts 1911 p. 525, confers upon insured the right to recover a reasonable amount for attorney’s fees only where there is a dispute as to the amount of loss, and where, after preliminary proofs of loss and demand for an appraisement, the selection of appraisers and their failure to agree, the selection of a second set of appraisers to select a second umpire within the time prescribed, and is not applicable where liability is wholly denied, p. 684.</p> <p>6. Insurance. — Fire Insurance. — Fraud by Insured. — Forfeiture of Policy. — Return of Premiums. — Insurer was not required to tender back to insured the premiums which he had paid in order to defend an action on the policy on the ground of insured’s fraud in swearing falsely in his proofs of loss as. to value of property destroyed, the policy providing that such fraud should cause a forfeiture of all claims under the policy, p. 685.</p>

<p>From White Circuit Court; James P. Wason, Judge.</p> <p>Action by the City of Monticello against John C. Lowe and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Questions Presented. — Refusal of Instructions. — Failure of Brief to Show Exceptions Below. — Specifications in a motion for new trial predicating error on the refusal of tendered instructions cannot be considered on appeal where appellant’s brief fails to show that any exception was taken to the action of the trial court in refusing such instructions, p. 694.</p> <p>2. Pledges. — Pledge Securing Payment of Purchase Money.— Contract. — Construction.—A contract for the sale of a new automobile under which the buyer agreed to pay a stipulated amount in cash, and in addition thereto to give an old car, and which further provided that, if the seller could not sell the old car for at least $200 within three months, the buyer was to pay $200 in cash and be given possession of such car, amounted to an agreement to extend to the buyer a credit for three months for the $200 balance of purchase price, during which time the seller would endeavor to sell for him the old car, and, upon failure to do so, the buyer’s promise to pay the $200 became absolute, upon being given reasonable notice, and his right to repossess himself of the old car accrued only after payment or tender of that amount, p. 695.</p> <p>3. Sales. — Contract.—Terms.—Notice of Failure to Sell. — Time for Giving. — Where a contract for the sale of a new automobile provided that the seller would endeavor to sell the buyer’s old automobile within three months, and that upon failure to do so the buyer’s liability for balance of purchase price became absolute, but fixed no time within which the seller should notify the buyer of failure to sell, notice of such fact, given to the buyer within a reasonable time after the three months allowed for sale had elapsed, would be sufficient, as time was not the essence of the contract, p. 695.</p>

<p>From the Industrial Board of Indiana.</p> <p>. Proceedings for compensation under the Workmen’s Compensation Act by Sarah Boening and others against the Leonard Construction Company. From an award for applicants, the defendant appeals.</p>

<p>From Fountain Circuit Court; I. E. Schoonover, Judge.</p> <p>Action by Daniel Foxworthy and others against Cain School Township of Fountain County. From a judgment for plaintiffs, the defendant appeals.</p>

<p>From Floyd Circuit Court; Alexander Dotvling, Special Judge.</p> <p>’ Action between Margaret M. O’Connell and the Louisville and Southern Indiana Traction Company and another. From the judgment rendered, O’Connell appeals.</p>

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Action between Frances B. O’Connell and others and the Louisville and Southern Traction Company and others. From the judgment rendered, the former appeals.</p>

<p>From Vigo Circuit Court; Charles L. Pulliam, Judge.</p> <p>Action between the State Board of Dental Examiners and others, and Grant B. Lemmon. From the judgment rendered, the former appeals.</p>

<p>From Delaware Circuit Court; Luther F. Pence, Special Judge.</p> <p>Action by Charles McClain against Francis M. Williams, auditor of the County of Delaware, and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Allen Superior Court; Carl Yaple, Judge.</p> <p>Action by Helen Umphress against the Marion and Bluffton Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Circuit Court (29,034) ; Louis B. Ewbank, Judge.</p> <p>Action between James H. Lilly and Local Union No. 120, etc. From the judgment rendered, the former appeals.</p>