Volume 76 — Indiana Appellate Court Reports

<p>1. Master and Servant.— Workmen’s Compensation Act.— Questions of Fact.—Dependency'.—Under §38 of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq.- Burns’ Supp. 1918), the question of dependency, except where conclusively presumed, is one of fact to be determined from the evidence. p. 2.</p> <p>2. Master and Servant.—Workmen’s Compensation Act.—Failure to Find Ultimate Fact.—Setting Out Evidentia/ry Facts.— In a proceeding under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), involving the question of dependency, where the Industrial Board set out the evidential facts instead of finding the ultimate fact of dependency, but the only, legitimate inference to be drawn from the evidential facts was that applicants were dependents, and the board acted on that inference, the case will not be returned to the board for a specific finding, but the evidential facts will be treated as the equivalent' of a finding of the ultimate fact. p. 2.</p> <p>3. Master and Servant.—Workmen’s Compensation Act.—Compensation.—Average Weekly Wage.—Average Weekly Contributions to Defendants.—Computing.—In a proceeding by parents under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) to obtain compensation for the death of a child, who had worked about a week for the employer and had never worked for wages before, except for three weeks about a year previous helping an uncle in harvesting, it was not proper for the board to consider the payments made to deceased by the uncle either in the determination of the average weekly wage or the average weekly contributions for the support of the parents, p. 3.</p>

<p>From Grant Circuit Court; J. F. Charles, Judge.</p> <p>Action by Lee McTurnan, administrator of the estate of Raymond Stevens, deceased, against' the Union Traction Company of Indiana. From a'judgment for plaintiff, the defendant appeals.</p>

<p>1. Husband and Wife.—Alienation of Affections.—Evidence.— Sufficiency.—In a wife's action for the alienation of her husband’s affections, evidence held insufficient to sustain the allegations of the complaint, p. 13.</p> <p>2. Pleading.—Theory of Action.—A plaintiff is required to present his case upon a definite theory, and must stand or fall by the case stated in the complaint, p. 13.</p> <p>3. Husband and Wife.—Alienation of Affections.—Evidence.— Conversations Between Husband and Wife.—In a wife’s action for alienation of her husband’s affections, testimony by the wife as to conversations with the husband is admissible only for the purpose of showing the state of affections of the husband toward plaintiff, and cannot be considered as proof of any wrongful conduct on the part of defendant, p. 13.</p> <p>4. Evidence.—Admissibility.—Testimony by Witness as to Mental Attitude.—In a wife’s action against her husband’s mother for the alienation of his affections, where a witness testified that he had rented a farm to plaintiff’s intended husband, at which time the witness was informed of the approaching marriage, and that the rental agreement was later countermanded, a question, “Did the countermanding of the leasing of your place to him have anything to do with his mother’s attitude toward his marriage?” to which the witness answered “Yes, sir,” was objectionable as being leading and suggestive, and the answer thereto was merely an expression of the mental attitude of the witness which did not bind defendant, and which should not have been heard in evidence, p. 14.</p> <p>5. Husband and Wife.—Alienation of Husband’s Affection.— Conversations - of Husband.—Admissibility.—In a wife’s action for the alienation of her husband’s affection, testimony as to • certain conversations between witnesses and plaintiff’s husband, out of the presence and hearing of defendant, were proper, insofar as they showed the affection or want of affection that the husband had for plaintiff, p. 14.</p> <p>6. Husband and Wife.—Alienation of Husband’s Affections.— Instructions Oxttside of Issues.—In a wife’s action against her husband’s mother for the alienation of his affections, the giving of a peremptory instruction that, if defendant had made false or “disapproval” remarks as to appellee’s moral character in the presence of plaintiff’s husband, or threatened to disinherit him if he continued to live with plaintiff, or was guilty of’any wrongful act or conduct whereby plaintiif’s husband was induced to separate from her, and such acts and conduct were malicious, the verdict should be for plaintiff, was reversible error, where there was no evidence of any such remarks and because the instruction as to other acts or conduct was not limited to the charges made in the complaint, p. 15.</p> <p>7. Trial.— Instructions Outside Issues.— In a wife’s action against heh husband’s mother for alienation of her husband’s affections, an instruction, that the verdict should be for plaintiff if defendant was “guilty of some act or conduct” inducing plaintiff’s husband to separate .from her, was erroneous because not limited to any act or conduct charged in the complaint, p. 15.</p>

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Action by Jeptha Crouch and others against John P. Richardson and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>From White Circuit Court; Addison K. Sills, Jr., Special Judge.</p> <p>Action by Jacob W. Hughes against the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>VOL. 76—3</p> <p>From White Circuit Court; William Darroch, Special Judge.</p> <p>Action by Laurie T. Kent against the Board of Commissioners of the County of White. ' 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-William B. Farley against the Fort Branch Coal Mining Company. From an award for applicant, the defendant appeals.

From Lake Superior Court; Charles E. Greenwdld, Judge. Application by Leon Delewski for relief from a default judgment against him in favor of Helen Delewski. From a denial of the application, defendant appeals.

<p>From Wells Circuit Court; Frank W. Gordon, Judge.</p> <p>Action by the Delphi Strawboard Company against the Queen Insurance Company of America. 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 Louis Kutter and others against the Indian Creek Coal and Mining Company. From an award for applicants, the defendant appeals.

<p>1. Master and Servant.—Injuries to Servant.—Defenses.— Contributory Negligence.—Rejection of Workmen’s Compensation Act.—An employer who has elected not to operate under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), is thereby debarred by the terms of the act from defending an action for injuries to an employe on the ground that the employe was guilty of contributory negligence, p. 60.</p> <p>2. Master and Servant.—Injuries to Servant.—Master’s Violation of Statutory Duty.—Assumption of Risk.—Even though a “jerryman” employed in a coal mine, who was required by his duties to remove loos.e rock overhead, timber mine entries, etc., assumed the usual risks and dangers incidental to the place of his employment, he did not assume the added dangers caused by the failure of his employer to perform its statutory duty. p. 60.</p> <p>3. Appeal.—Review.—Instructions.— Negligence.— Recovery ' on Negligence Pleaded.—In a servant’s action against a coal mining company for personal injuries, an allegation in the complaint that defendant’s mine boss had not visited the entry in which plaintiff was injured for more than four days prior to the accident is broader than necessary to show negligence in violating §8580 Burns 1914, Acts 1905 p. 65, which requires the mine boss to visit and examine every working place in a mine at least every alternate day, so that an instruction authorizing a recovery on the negligence pleaded in the complaint, was more favorable to the employer than it had a right to demand. p. 61.</p> <p>4. Master and Servant.—Injuries to Servant.—Defenses.— Contributory Negligence.—Rejection of Workmen’s Compensation Act.—The failure of one employed in a coal mine as a “jerryman,” whose duties were to timber mine entries, remove any loose rock which might fall, etc., to take down loose slate from the roof under which he was working and which fell and injured him, was at the most contributory negligence on his part, which is not available to defeat his recovery where the master has elected not to operate under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918). p. 62.</p> <p>5. Master and Servant.—Infuries to Servant.—Timbers for Use in. Mine.—Statute.—Construction.—The failure of the operator of a coal mine to keep a supply of timbers on hand at the working place of the miners, as required by §8580 Burns 1914, Acts 1905 p. 65, is not excused by the fact that the necessary timbers could have been procured by the workmen from abandoned workings, hence it was not error, in a mine employe’s action for personal injuries predicating negligence on a violation of such statute, to sustain an objection to a question propounded plaintiff on cross-examination, as to whether he could not have so obtained the timbers necessary to make the mine entry in which he was injured by falling rock safe, p. 63.</p>

From Delaware Circuit Court; William A. Thompson, Judge. Proceedings for the improvement of á public street in which the' Cleveland, Cincinnati, Chicago and St. Louis Railway Company appealed to the Circuit Court from an assessment made by the city of Muncie. From an adverse judgment, the railway company appeals.

<p>Subscriptions.—Subscriptions to Patriotic Fund.—Consideration. —Sufficiency.—Where citizens of a county formed an unincorporated war chest association to create a fund to be used in giving financial support to various organizations engaged in patriotic activities, and defendant subscribed to such fund, knowing that other citizens of the community were so subscribing, and that obligations and expenses were incurred in reliance on such subscription, his promise to pay was supported by a sufficient consideration, and having failed to pay his subscription recovery may be had thereon in an action instituted by members of the association for the benefit of all the members thereof and for the benefit of the fund.</p>

<p>From Marion Superior Court (A6,683) ; Theophilus J. Moll, Judge.</p> <p>Action by Wix Smith against the Nordyke and Marmon Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal.—Waiver of Error.—Grounds for New Trial.—Briefs. —Specifications of error set out in a motion for new trial to which appellant addresses no proposition or point in his brief are waived, p. 75.,</p> <p>2. Witnesses.—Bastardy Proceedings.—Compelling Defendant to Testify.—Defendant in a bastardy proceeding may be required to submit himself as a witness at the request of relatrix and compelled to testify, but cannot be required to testify as to any fact which would tend to incriminate him. pp. 75, 76.</p> <p>3. Bastardy.—Ghm-acter of Proceedings.—A bastardy proceeding is a civil action, p. 76.</p> <p>4. Appeal.—Presenting Questions for Revieiv.—Overruling Objection.—Necessity of Reserving Exception.—No question is presented for review on appeal as to the ruling of the trial court requiring defendant, over his objection, to submit himself as a witness in the cause at the request of the relatrix, where no exception-was reserved to such ruling, p. 76.</p> <p>5. Afpeaj,.-—Briefs.—Request for Oral Argument.—A request for oral argument should be made by petition separate and apart from any brief in the cause, p. 77.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Milton Powers against Edwin M. Lambert in which the parties entered into an agreement for compensation, which was approved by the Industrial Board. Subsequently the defendant named and his insurance carrier, the United States Fidelity and Guaranty Company, petitioned for a review on account of changed conditions.

From Wells Circuit Court; Frank W. Gordon, Judge. Action by Raymond Foreman against Mary Foreman, in which defendant filed a cross-complaint. Plaintiff dismissed his complaint. From a denial of divorce on her cross-complaint, defendant appeals.

From Vigo Superior Court; William T. Gleason, Judge. Action by Charles Nixon against the Chicago, Terre Haute and Southeastern Railway Company, in which Walker D. Hines, director general of railroads, was made a party defendant. From a judgment for plaintiff, the defendants appeal.

<p>1. Brokers.—Real Estate.—Contract for Commissions.—Sufficiency.—Statutes.—A contract to pay commissions to a broker for the sale of real estate which fails to state the amount of commission which he is to receive, is incomplete and invalid under §7463 Burns 1914, Acts 1913 p. 638, requiring such contracts to be in writing, since, a material part of the contract, the amount of commission to be paid, being verbal, the whole contract is oral. p. 93.</p> <p>2. Brokers.—Real Estate.—Contract for Commissions.—Failure to Specify Amount of Commission.—Reformation.—Statutes.— A real estate broker’s contract, that “if the owner sold the property to a party or parties whose attention was directed to the property” by the broker he was “entitled to and shall receive his commission of-per cent, on the sale price thereof,” being invalid under '§7463 Burns 1914, Acts 1913 p. 638, requiring sucli contracts to be in writing because failing to specify the rate of commission to be paid, cannot be reformed by parol evidence, since the equitable doctrine of reformation cannot be invoked to give force and effect to an invalid contract, p. 94.</p>

<p>From Vigo Superior Court; William T. Gleason, Judge.</p> <p>Action by Ethel Holland against the Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Principal and Agent.—Unauthorized Contract.—Ratification by Principal.—Retention of Goods Purchased.—Where defendant company knowing that another was assuming' to act for it in the purchase of goods, received and accepted and appropriated them to its own use, it is estopped to deny the agency or the authority of the one ordering the goods, p. 105.</p> <p>2. Principal and Agent.—Unauthorized Acts of Agent.—Ratification.—Effect.—Where an agent exceeds his authority, ox where a person presumes to act as agent without any authority to so do, and his principal, in the one case, or the person for whom he was attempting to act in the other, afterwards ratifies the act or transaction involved, the ratification relates back to the time of the original act, and supplies the original want of authority, and the principal is bound to the same extent as if the act had been done in the first instance by his previous authority, p. 106.</p> <p>3. Sales.—Sale of Goods.—Remedy of Seller.—General Assumpsit.—Though goods are sold under an express contract, yet, if the contract has been fully executed as to the sale, delivery and acceptance of the goods, and nothing remains to be done except payment of the purchase price by the seller, general assumpsit for goods sold and delivered will lie. p. 106.</p> <p>4. Principal and Agent.—Authority of Agent.—Evidence.— Sufficiency.—The mere fact that an order for goods was signed, by the person giving the order, by the defendant “per” such person, is insufficient to show that the person giving the order did so as defendant’s agent, p. 107.</p>

<p>From Gibson Circuit Court; S. L. Vandeveer, Judge.</p> <p>Action by Emile O. Hebert against the Indian Creek Coal and Mining Company. From a judgment for plaintiff, the defendant appeals.</p>

From Marion Probate Court (1,111); Mahlon C. Bash, Judge. Action by William Bohne against Edward H. Reasner, Administrator of the estate of Ellen C. Holtman, deceased, James L. Mitchell and others. From a judgment for plaintiff, the defendants named appeal.

<p>1. Deeds.—Construction.—Estates Created.—Conveyance of Life Estate With Remainder.—A warranty deed conveying real estate to V. during Ms life, “then to his wife,” M., so long as she shall remain his widow, and in event of her remarrying then, to the children of V., did not at the time of its execution vest a fee in such children, but creates in them a remainder contingent upon the wife becoming the widow of V., and upon such widow’s remarriage, so that a quitclaim deed executed by the children, before the happening of such events, to M. after V’s. life estate had been conveyed to her through a third person, M. being still the wife of V., does not vest in her the fee. pp. 124, 126.</p> <p>2. Wills.—Construction.—Intention.—Transportation of Words and Phrases.—Deeds.—Construction.—In the construction of wills, where it becomes necessary to effectuate the clear intention of the testator, as that intention is gathered from the whole instrument, courts may transpose words and phrases, and read the provisions in an order different from that in which they appear, and may insert and leave out provisions if necessary, but so liberal a rule is not permitted in the construction of deeds, p. 125.</p> <p>3. Deeds.—Wills.—Construction.—The rule in construction of wills that where a testator devises real estate to a named beneficiary until remarriage, with limitation over to a third person, the devise will be construed to mean that the remainder is vested, and takes effect at the death or remarriage of first taker, has no application in the construction of deeds, p. 125.</p>

From Spencer Circuit Court; Herdis F. Clements, Special Judge. Petition by Paul F. Kanzler, executor of the last will of Elizabeth Haag, deceased, to sell real estate to pay legacies. From a decree ordering the real estate sold, Charles C. Hale and another, executors of Eleanora Rib-key, beneficiary under the will, appeal.

<p>From Allen. Circuit Court; Owen N. Heaton, Special Judge.</p> <p>Action by Louis J. Beuret against William G. Stahl and others. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Madison. Circuit Court; Luther F. Pence, Judge.</p> <p>Action by the Selig Dry Goods Company against Fred M. Martz. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (A3,063) ; Theophilus J. Moll, Judge.</p> <p>Action by Sallie Robinson against the National Life and Accident Insurance Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Floyd Circuit Court; John M. Paris, Judge.</p> <p>Action by Margaret Williamson against the Great Eastern Casualty Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Municipal Corporations.—Personal Injuries.—Complaint.— Theory.—Negligence of City and Contractors.—In an action against a city and others for injury to a driver of a team from an unguarded dangerous place in a street due to improvements being made therein, held, relative to the question of the conformity of instructions to the complaint, that the theory of the complaint, though alleging that the city knew of the dangerous condition, or could have learned of it by due diligence, was that the city and other named defendants were jointly engaged in doing the work, and that the negligent acts causing plaintiff’s injuries were the joint acts of defendants, and not that the work was being done by an independent contractor, so.that the city would be liable only after due notice of the defect causing the injury, p. 178.</p> <p>2. Municipal Corporations.—Public Improvements.—Personal Injuries.—Negligence of Contractor.—It is the primary duty of a cityof which it can neither evade nor divest itself, to maintain its streets in a safe condition for public travel, and, though the work of improving a city street is being done by a contractor under a contract stipulating that he should take proper precautions for the protection of the public by guarding and protecting all dangerous places arising during the progress of the work, the duty of providing such protection rests primarily upon the municipality and is nondelegable, so that, as regards the guarding of dangerous excavations incident to making the improvement, the contractor is the city’s agent, for whose negligence it is liable, even though without notice, p. 179.</p>

<p>From Marion Superior Court (103,684) ; W. W. Thornton, Judge.</p> <p>Action by Elijah G. Harris for personal injuries in which Charles B. Clarke and another filed notice of a lien on a judgment for plaintiff for attorney’s fees. From an order effacing the entry of notice from the record, the attorneys appeal.</p>

<p>1. New Trial.—Application.—Filing Prior to Entry of Judgment.—In a proceedings by a guardian to have its final report approved, where, after the court had heard the evidence on exceptions filed by the ward and the argument of counsel thereon, it overruled the exceptions and made a minute of such, ruling, this was, in effect, a general finding in favor of the guardian on the issues tendered by the final report and exceptions thereto, and a motion for new trial then filed by the ward was not premature, p. 201.</p> <p>2. Appeal. — Judgments Reviewable. — Judgment Discharging Guan-dian.—In a proceeding by a guardian for the approval of its final report, to which the ward had filed exceptions, a judgment overruling the exceptions, -approving the report, and discharging the guardian, made a final disposition of the guardianship and was, therefore, a final judgment from which an appeal could be taken, p. 202.</p> <p>3. Insane Persons. — Pleading. — Guardian’s Report. — Exceptions.—In a proceeding to have a guardian’s final report approved, the report stands as the complaint, and the exceptions thereto as the answer, p. 202.</p> <p>4. Insane Persons.—GuoA-dian’s Report.—Motion to Make Specific.—Failure to Withdraw Exceptions.—In a proceeding to have a guardian’s final report approved, where the ward filed his motion to make the report more specific after filing exceptions thereto without first withdrawing the exceptions by leave of court, the motion was properly overruled, p. 202.</p> <p>5. Appeal.—Review.—Harmless Error.—Overruling Motion to Make Gum'dian’s Report Specific.—The overruling of a motion, filed by the ward, to make his guardian’s final report more specific is not reversible error, where the ward fails to show that he was in any way injured by the ruling, p. 202.</p> <p>6. Insane Persons.—Guardian’s Final Report.—Exceptions.— Findings of Trial Court.—Conclusiveness.-—In a proceedings to have a guardian’s final report approved, where there was substantial evidence tending to show that certain items, challenged by exceptions were neither excessive nor improper as charged, the court on appeal cannot say that it was error to refuse to sustain the exceptions, p. 205.</p> <p>T. Insane Persons.—Guardian.—Failure to File Report.—Compensation.—Statute,—Section 3068, cl. 3, Burns’ Supp. 1918, Acts 1915 p. 34, did not bar an allowance of compensation to a guardian for its services because of its failure to file a report at the expiration of two years, where, when the two-year period expired, it had been served with notice of an application by the ward to have it removed as guardian, and did not resist the application, but awaited the result of the proceedings thereon, so that a single report would suffice, and, within three or four days after the matter was determined, filed the report, p. 205.</p> <p>8. Insane Persons.—Guardian’s Report.—Exceptions.—Grounds. —Operation of Wa/rd’s Business.—Where a guardian was appointed for one adjudged incompetent to manage his own estate, the mere fact that the guardian continued^ without any order of court authorizing it to do so, the operation of the ward’s retail meat market was not ground for. exception to the guardian’s final report, the absence of such an order not affecting the guardian’s right to continue the business, but merely placing upon the guardian the burden of showing, in event it should be charged that its continuance was not for the best interest of the estate, that in continuing it such prudence and sound discretion was exercised as amounted to due care. p. 206.</p> <p>9. Insane Persons.—Guardian.—Operation of Ward’s Business. —Failure to Make Report.—Remedies of Ward.—That the guardian had not theretofore made a proper report with reference to the ward’s business, which the guardian had continued after its appointment, while it might have afforded ground for a motion to make the final report more specific, was not ground for exception to the final report, where no misconduct or want of fidelity with reference thereto resulting in loss to the ward’s estate was charged against the guardian, p. 206.</p> <p>10. Insane Persons.—Operation of Ward’s Business by Guardian.—Liability of Estate for Rent and Stock.—Where a guardian was appointed for one adjudged incompetent to manage his own estate, and the guardian continued the operation of the ward’s retail meat market, money expended by the guardian for rent for the premises in which the business' was conducted and for stock was properly chargeable against the ward’s estate, in the absence of proof that the premises were not so used, or that the' stock was not purchased and sold by the guardian, p. 207.</p> <p>11. Exemptions.—Pensions.-—Exemption from Demands of Pensioner’s Creditors.—Although money derived from a government pension is protected by congressional enactment against the demands of creditors of the pensioner while it remains with the pension office, or in the hands of any officer or agent thereof, or is in course of transmission to the pensioner, after it reaches his hands it becomes the same as money.derived from other sources, p. 207.</p> <p>12. Insane Persons.—Personal Expenses.—Payment.—Use of Ward’s Pension by Guardian.—Where a ward’s government pension is expended by the guardian in providing for the support, comfort and health of the ward, the court may allow such expenditure as a credit in the guardian’s favor, p. 208.</p> <p>13. Insane Persons.—Guardian’s Report.—Exceptions.— Grounds.—Use of Ward’s Pension to Pay General Creditors.— Where the guardian’s use of the ward’s pension money, in paying general claims against his estate, served to protect the estate by preventing the depletion of other trust funds in the guardian’s hands, which were thereby preserved for the ward’s support, he suffered no loss because the particular fund derived from the pension was not preserved and paid over to him, and such expenditure of the pension money was not, therefore, ground for an exception to the guardian’s final report. p. 208.</p> <p>14. Appeal.—Scope of Review.—Matters not Adjudicated Beloio. —In a proceedings by a guardian to have its final report approved, issues as to the guardian’s failure to exercise proper discretion and care in continuing the operation of the ward’s retail meat market after appointment as guardian, which might have been, but were not tendered by the guardian in its final report, or by the ward in his exceptions thereto, cannot be determined on appeal, p. 208.</p>

<p>1. Appeal.—Right of Appeal.—Judgment Failing to Dispose of Issues on Cross-complaint.—Statute.—Where defendant, who had filed a eross-eomplaint, did not introduce evidence.in support thereof, but at the -close of plaintiff’s evidence requested a peremptory instruction, which was giveri, and thereafter had the court render judgment on the verdict, defendant’s conduct must be deemed to have been an abandonment of his cross- . complaint, and a waiver of his right to have the issues tendered thereby determined, and the judgment, though disposing only of the issues made on the complaint, was a “final judgment,” within the meaning, of §671 Burns 1914, §632 R. S. 1881, from which plaintiff could appeal, p. 213..,</p> <p>2. Trial.—Directing Verdict.—Where the facts in evidence, when considered in connection with all inferences which the jury might reasonably draw therefrom would, sustain a verdict for plaintiff, it would be error to grant defendant’s request for a peremptory instruction, p. 216.</p> <p>3. Sales. — Contract. — Evidence. — Sufficiency. — In an action against the owner and tenant of a hotel to recover for coal used in the hotel, in which plaintiff contended that the owner had promised to pay a part of the coal bill, evidence held insufficient to show a sale to the owner or that the owner’s promise to the tenant to pay a specified part of the price of the coal was for the benefit of plaintiff, pp. 216, 217.</p> <p>4. Contracts.—Rights of Third Parties.—A contract may be made in whole or in part for the benefit of a person, who is not a party to it or to the consideration, and the.person in whose favor it is made may maintain a suit in his own name, but to entitle a person to maintain an action on a contract to which he is not a party it must appear, not only that it was the purpose of the contract to impose an obligation on one of the con- \ tracting parties in favor of the person claiming the right of action but also that it was the intention of one. of the parties to require that certain of the terms and agreements entered into should be performed by the other party in favor of such third person and for his benefit, and that the other party intended to assume the obligations thus imposed, p. 217.</p> <p>5. Trial.—Directing Verdict.—Duty of Court.—A court must give a requested peremptory instruction where the established facts are such that no inference of liability can be drawn. p. 218.</p>

<p>1. Appeal.—Review.—Appointment of Special Judge.—Objections.—Waiver.—Presumptions.—Where the record is wholly silent as to'the appointment of a special judge, a presumption will arise that it was duly made, and if his authority is not questioned until after a trial is had and a judgment rendered, all objections based on the absence of an appointment in conformity with the statute, which might have been properly and successfully made, if timely presented, will be deemed waived, p. 227.</p> <p>2. Carriers.—Carriage of Freight.—Charges.—Consignor’s Liability to Terminal Carrier.—A terminal carrier may pay freight charges of an initial carrier and collect from the consignor, even though the shipment is improperly routed, where the terminal carrier has no knowledge of that fact. p. 228.</p> <p>3. Pleading.— Answer.— Sufficiency.— Where a paragraph of answer assumes to respond to the whole complaint, or some item -or particular part thereof, and fails to do so, it is insufficient as against demurrer, p. 229.</p> <p>4. Appeal.—Review.—Overruling Demurrer to Bad Paragraph of Answer.—Reversal.—Although the sustaining of a demurrer to a good paragraph of answer is not reversible error, where the facts alleged therein are provable under another paragraph of the pleading remaining in the issues, such rule does not apply where a demurrer is.overruled to an insufficient paragraph of answer, unless it affirmatively appears from the record that the verdict or finding is based on such other paragraph and not on the one to which the demurrer was overruled, p. 229.</p> <p>5. Carriers.—Carriage of Freight.—Action to Recover Freight ChaA'ges.—Partial Ansiver.—Sufficiency.—In an action by a carrier to recover freight and demurrage charges, a paragraph of answer alleging that the amount of freight charged against shipment when it reached its destination exceeded the amount properly chargeable by a specified sum, that by reason of such fact the consignee refused to accept the shipment, and that thereafter the carrier without notifying defendant shipper that the consignee had refused to pay the freight charges, and without its consent shipped the consignment to another place, where it was sold in violation of §§3893, 3894 Burns 1914, §§2900, 2901,-R. S. 1881, held, sufficient as a partial answer directed to so much of the complaint as seeks to recover demurrage, re-consignment and freight charges which accrued after the consignment reached its destination, p. 230.</p> <p>6. Carriers.—Carriage of Freight.—Negligence of Initial Carrier.—Terminal Carrieo'’s Liability.—A terminal carrier, unless it is a party to a through contract of shipment, is not liable for any negligence or wrongful conduct on the part of the initial or any connecting carrier, in the absence of some statutory provision in that regard, p. 231.</p> <p>7. Pleading.—Cross-complaint.—Sufficiency.—Surplusage.—In an action by a terminal carrier against a shipper to recover freight charges, allegations in a cross-complaint charging the initial carrier with wrongful conduct, held, surplusage, which would not render the cross-complaint subject to demurrer, if otherwise sufficient, since it was based in part on the alleged wrongful conduct of plaintiff, p. 232.</p> <p>8. Carriers.—Carriage of Freight.—Action for Conversion.— Complaint.—Sufficiency.—Failure to Allege Ownership.—In an action by a carrier against a shipper to recover freight and demurrage, a cross-complaint charging conversion of the consignment by an illegal sale must show that defendant shipper was the owner of the consignment at the time of the alleged conversion, and such rule is not satisfied by an allegation that defendant shipped the consignment to a named consignee which refused to accept it, in view of the rule that in the shipment of goods the consignee is presumed to be the owner thereof, p. 232.</p>

<p>1. Appeal.—Record.—Bill of Exceptions.—Filing.—Cleric’s Certificate.—Where the transcript of the evidence found in the record was followed immediately by the certificate of the trial judge, which certificate was sufficient in form to make the transcript a bill of exceptions, and then the transcript and certificate was followed by a certificate of the clerk reciting that the “foregoing original and long hand manuscript of the evidence,” with the certificate of the judge attached, was filed in the clerk’s office on a day named, the clerk’s certificate sufficiently shows that the bill of exceptions was filed, p. 236.</p> <p>2. Appeal.-—Record.—Bill of Exceptions.—Filing.—How Shown. —Cleric’s Certificate.—The filing of a bill of exceptions containing the evidence may be shown by the certificate of the clerk of the trial court, p. 236.</p> <p>8. Appeal.—Record.—Bill of Exceptions.—Validity.—Failure to Embrace Exhibits Not in Evidence.—The failure to include within the bill of exceptions containing the evidence newspapers which were identified and marked as exhibits and from which short extracts were read and copied into the bill, but which papers were never actually introduced in evidence, is insufficient to show that the bill does not contain all the evidence, p. 237.</p> <p>4. Appeal.—Record.—Bill of Exceptions.—Validity.—Incorporation of Exhibits Not in Evidence.—The presence of exhibits, which were not introduced in evidence, within the bill of exceptions containing the evidence constitutes mere surplusage which in no way affects the validity of the bill. p. 237.</p> <p>5. Exceptions, Bill op.—Bill of Exceptions Containing Evidence.—Matters Included.—Where copies of documents which were introduced in evidence appeared in the bill of exceptions immediately after a statement that they were offered and read in evidence, and it appeared from the certificate of the trial judge that the bill contained all the evidence given in the cause, the contention that the bill does not contain such documents cannot be sustained, p. 237.</p> <p>6. Taxation.—Tax Deeds.—Irregularity in Tax Sale.—Burden of Proof.—Statutes.—In view of §10,380 Burns 1914, Acts 1891 p. 199, §206, making a tax deed prima facie evidence of a good and valid title in fee simple to the real estate described therein, the burden of proving any defects in the proceedings on which such a deed is based, which would render the deed void, rests on the party assailing the tax title, p. 237.</p> <p>7. Taxation.—Tax Deed.—Validity.—Erroneous Recital as to Consideration.—A recital in a tax deed that the land was sold to grantee for a certain sum, and that such sum was the amount due for taxes and costs, while the tax sale record shows that a larger amount was due and paid, does not render the tax deed invalid, p. 238.</p> <p>8. Taxation.—Tax Deeds.—Description.—Amplifying Description Used in Sale Proceedings.—Where the proceedings upon which a tax deed was based described the land sold as being in a certain township and range, but did not show whether the township was north or south or whether the range was ‘east or west, the insertion of a more particular description of the township and range in the tax deed was unauthorized, p. 238.</p> <p>9. Taxation. — Tax Deed Description. — Sufficiency. — Judicial Notice.-—United States Surveys in State.—Boundcuries of Counties.—Although the description used in proceedings. for the sale of land for taxes located'the land in township 4, range 4, without designation whether the township was north or south or whether the range was east or west, a tax deed based on such proceedings and containing such description is not void for uncertainty of description, where the court judicially knows that there is only one township 4 and one range 4 in the county in which the land is located, p. 239.</p> <p>10. Evidence.-—Judicial Notice.—United States Survey in State. —Territorial Boundaries of Counties.—The courts take judicial notice of the United States surveys of land within the state and of territorial boundaries of counties, p. 239.</p> <p>11. Taxation. — Tax Sales. — Validity. — Proof of Compliance with Statutory Requirements.—In order for a tax deed to'be effective to convey title, it must appear that every step required by law to be taken from the listing of the land for taxation to the delivery of the deed, has been regularly taken, p. 240. • -</p> <p>12. Taxation.—Tace Deeds.—Validity.—Presumptions.—Statutes. —That all legal requirements for the sale of • land for taxes have been satisfied may be shown prima facie by the tax deed, as provided by §10,380 Burns 1914, Acts 1891 p. 199, making a tax deed prima facie evidence of the regularity of the sale and all prior proceedings, etc., but such showing may be rebutted by other evidence, and when this is successfully done the deed is ineffective to convey title, p. 240.</p> <p>13. Taxation.—Tax Sales.—Validity.—Failure to Malee Notice Part of Record.—Printing and Posting Notice.—Statutes.—The failure of the county auditor to insert in his record, at the foot of the list of the lands and lots returned and remaining delinquent for taxes, a copy of the notice of the sale of such land, as required by §10,355 Burns 1914, Acts 1891 p. 199, and .his failure to make the certificate on the record of the printing and posting of the notice as therein provided, renders the tax deed based upon such sale ineffective to convey title, p. 240.</p> <p>14. Evidence.—Tax Sales.—Omissions from Record.—Patrol Evidence.—Where matters are required by law to appear of record in proceedings for the sale of land for taxes, the omission of such matters from the record cannot be supplied by parol or extrinsic evidence, p. 241. .</p>

<p>From Orange Circuit Court; William PL. Paynter, Judge.</p> <p>Action by John A. Lingle against William Stalcup and ' another. From a judgment for plaintiff, the defendants appeal.</p>

<p>From the Industrial Board of Indiana.</p> <p>Proceedings for compensation under the Workmen’s Compensation Act by Oka Luce against the Miami Coal Company. From an award for applicant, the defendant appeals.</p>

From Howard Circuit Court; William C. Overton, Judge. Action by the Michael and Minnick Construction Company against the Haynes Automobile Company and others. From a judgment for plaintiff, the defendants appeal.

<p>1. Insurance.—Five, Insurance.—Policy In Name of Record Oioner.—Action by Actual Owner.—Statutes.—Where insurer’s agent issued a fire policy in the name of the owner of record of the property covered, with full knowledge that it was in fact owned by another, who had negotiated for the insurance and paid the premium, the record owner having been named as the insured by reason of the agent’s misapprehension of the law, the actual owner was the real party in interest, and under §251 Burns 1914, §251 R. S. 1881, was the only person who could maintain an action on the policy, p. 257.</p> <p>2. Insurance.—Fire Insurance.—Proofs of Loss.—Waiver.— Denial of Liability.—Where liability on a fire policy .is denied by the insurer, proofs of loss are waived, p. 258.</p> <p>3. Appeal.—Review.—Harmless Error.—Admission of Evidence. —In an action on a renewal fire policy, which was issued in the name of the owner of record of the property covered instead of that of the actual owner, error, if any, in the admission of evidence tending to prove that insurer had knowledge of the character of the title of plaintiff, the actual owner, when the original policy was issued and while it was in force, was harmless to insurer, where such evidence was trifling in weight in comparison with competent evidence, admitted without objection, tending to prove the same fact. p. 259.</p>

From Clinton Circuit Court; Joseph Combs, Judge/ Action by the State of Indiana, on the relation of Guy M. Booth, receiver of the Peoples State Bank of Arcadia, against the American Surety Company of New York and another. From a judgment for relator, the defendants appeal.

<p>1. Damages. — Construction Contracts. — Breach. — Measure of Damages.—On a breach of a contract to furnish the material and construct a cottage in accordance with plans and specifications furnished, the measure of damages is the reasonable cost of altering the defective parts of the house so as to make them conform to the plans and specifications, and not the difference between the value of the house as it is and what its value would be if constructed according to the plans and specifications, p. 270.</p> <p>2. Appeal.—Failure to Object Below.—Warner.—Where a surety on the bond of one sued for breach of a contract to build a dwelling made no effort in the trial court to protect his separate interests, he will not be permitted to do so for the first time on appeal, p. 271.</p>

<p>1. Corporations.—Sale of Stock.—Agreement by Stockholders to Repurchase Stock.—Enforcement.—Where stockholders of a corporation, agreed in writing to repurchase stock before a certain date at a specified price, if the purchaser desired to sell, the purchaser could maintain an action for breach of the agreement, though such agreement was not signed by him, but by such stockholders alone, p. 273.</p> <p>2. Corporations.—Sale of Stock.—Agreement by Stockholders to Repurchase Stock.—Consideration.—Where stockholders of a corporation agreed in writing to repurchase plaintiff’s stock at a certain price at his option such stockholder’s interest in having plaintiff purchase stock was a sufficient consideration to support the agreement and it was enforceable, even though it was a unilateral contract, p. 273.</p> <p>3. Contracts.—Validity.—Consideration.—Want of Mutuality.— An agreement founded on a consideration is not invalid for want of mutuality because one party has an option and the other has not, or because it is obligatory on one and optional with the other, p. 274.</p> <p>4. Contracts.—Defenses.—Want of Mutuality.—Want of mutuality in a contract cannot be set up as a defense by the party who has received the benefit simply because it was optional with the other party whether he would enforce his right under the contract, p. 274.</p> <p>5. Corporations.— Sale of Stock.-.— Stockholders Agreement to Repurchase Stock.—Acceptance.—Where defendant stockholders, in order to induce plaintiff to purchase shares of stock of a corporation agreed in writing to repurchase plaintiff’s stock at a certain price at his option, purchase of stock by plaintiff in reliance upon defendant’s agreement showed an acceptance of the agreement, such agreement not being signed by plaintiff, p. 274.</p> <p>6. Frauds, Statute op.—Scope.—Contract for Sale of Corporate Stock in Excess of Fifty Dollars.—A contract for the sale of corporate stock when the amount exceeds $50 is within the statute of frauds, and cannot be varied by parol, p. 277.</p>

<p>1. Evidence.—Parol Evidence.—Admissibility.—Written Contmct.—Construction by Party.—In a seller’s action against a buyer to recover for refusal to accept flour of a particular brand pursuant to a written contract to purchase such brand, where it was shown by proper evidence offered by the seller that such brand of flour was a well known and standard brand manufactured and sold to the general trade by the seller, testimony by the buyer as to what was understood by her at the time she placed the order by the term designating such brand was inadmissible, since, where a word used in a contract has a peculiar trade meaning, parol evidence, though admissible to explain such trade meaning, is not competent to show what a party to the contract understood by the use of the word, p. 279.</p> <p>2. Sales.—Payment by Honoring Draft Attached, to Bill of Lading.—Inspection of Goods by Buyer.—A buyer who agrees in the sales contract that payment for the goods shall be made by honoring draft attached to bill of lading has no right of inspection before payment, unless such right is given by the custom of the business, p. 280.</p> <p>3. Appeal.—Appellee’s Failure to File Briefs.—Effect.—The failure of appellee to file a brief may be taken as a confession of error, p. 280.</p>

<p>From Lake Superior Court; Walter T. Hardy, Judge.</p> <p>Action by Edward Payne, by next friend, against the Metropolitan Realty Company. From a judgment for .plaintiff, the defendant appeals.</p>

From Johnson Circuit Court; Nathan A. Whitaker, Special Judge. Action by John E. Jolliffe against Robert L. Crawford and others, in which the defendant named filed a cross-complaint. From the judgment rendered, the plaintiff appeals.

<p>From Morgan Circuit Court; Alfred M. Bain, Judge.</p> <p>Action by Frederick William Rosebrock against Henry F. Brier and another. From a judgment for' plaintiff, the defendants appeal.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Ambrose Pontius against Coppes Brothers and Zook. From an award for applicant, the defendant appeals.

<p>From Cass Circuit Court; John S. hairy, Judge.</p> <p>Action by Chauncy M. Custer, Administrator of the estate of Jacob A. Beyer, deceased, against Mary M. Beyer. From a judgment for defendant, the plaintiff appeals.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Lelia Irene Riggs against the Lehigh Portland Cement Company. From an order denying compensation, the applicant appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Isabella Herr and others against the Utilities Coal Company. From an award for applicants, the defendant appeals.

From Marion Superior Court (104,704) ; W. W. Thornton, Judge. Action by Sol Meyer and Sol S. Kiser, partners doing business under the firm name of Meyer and Kiser, against the E. G. Spink Company and another. From a judgment for defendants, the plaintiffs appeal.

<p>Street Railroads.— Municipal Ordinance Regulating Use of Boulevards.—Scope and Applicability.—Street Cars.—A municipal ordinance providing no person shall ride or drive upon any boulevard at a rate faster than ten miles an hour, has no application to a street car crossing such a highway on an intersecting street.</p>

<p>1. Appeal.—Revieiv.—Harmless Error.—Sustaining Demurrer to Paragraph of Complaint.—Error, if any, in sustaining a demurrer to a paragraph of complaint was harmless where the facts alleged therein were provable under another .paragraph, p. 354.</p> <p>2. Deeds.—Cancellation.—Fraud and Undue Influence.—Evidence.—Sufficiency.—In a widow’s action to set aside a deed to children of her husband by a prior marriage, the deed having been executed .in consideration of conveyance to her by such children of a life estate in two-thirds interest in land and in which she already owned a life estate in an undivided one-third interest, evidence held insufficient to show that the deed involved was obtained by fraud and undue influence, p. 359.</p> <p>3. Judgment.—Judgment sustaining Exceptions to Administrator’s Report.—Conclusiveness.—In a widow’s action to cancel a deed to children of her husband by a former marriage on the ground of fraud and undue influence, a judgment in a prior action sustaining the widow’s exceptions to the report of one of the children as administrator holding that a contract relative to the distribution of personal property was fraudulent held not conclusive as to the validity of the deed, though the deed was obtained in the same transaction in which the contract was executed; the parties to the contract and those to the deed being different, and the consideration for the execution of the contract and the consideration of the deed being different, p. 359.</p>

From Martin Circuit Court; James W. Ogdon, Judge. Action by the State of Indiana, on the relation of Charles F. Bruner, guardian of Edmond Lee Anderson, a minor, against George - J. Anderson and another. From a judgment for relator, the defendants appeal.

<p>1. Trial.—Special Finding.—Decision.—Where a cause is tried by the court, and a special finding of facts have been made pursuant to a request by either party, such finding is a decision of the court, p. 368.</p> <p>2. Appeal.—Questions Reviewable.—Sufficiency of Evidence to Sustain Decision.—Failure to Challenge Facts Found.—Where a cause is tried by the court and a special finding of facts is made, the contention that the decision of the court is not sustained by sufficient evidence will not be considered on appeal where the correctness of the facts found have not been challenged by appellant, p. 368.</p> <p>3. Appeal.—Questions Reviewable.—Decision Contrary to Law. —Appellant’s objection that the decision is contrary to law because the conclusions of law on the facts found should have been differently stated, assigned as a ground for new trial, does not perform the office of exceptions to the conclusions of law, so that appellant has failed to show that such ground for a -new trial exists, p. 368.</p> <p>4. Trial.—Motion to Restate Conclusion of Law.—A motion to restate conclusions of law is not recognized by the Code of Procedure, p. 369.</p> <p>5. Limitation of Actions.—Payments within Limitation Period. —Failure to Affirmatively Plead Payments.—In an action to recover a judgment for the purchase price of real estate and to foreclose a vendor’s lien therefor, the fact that defendant made payments within the limitation period does not-avoid the defense set up in an answer pleading the six-year statute of limitations, in the absence of an affirmative paragraph of reply pleading the fact of such payments, p. 369.</p> <p>6. Appeal.—Waiver of Error.—Objections to Appointment of Special Judge.—Presumption.—Where statutory authority exists for the appointment of special judges and a cause is tried before one assuming to act as such, it will not be presumed on appeal that he usurped such office, and if the record is wholly silent as to his appointment, a presumption will arise that it was duly made but if facts appear to rebut such presumption it will be presumed nevertheless, the contrary not appearing, that such an appointment was made as to give him color of right in assuming jurisdiction of the cause, so that in such event he becomes de facto judge, and, if his authority is not questioned until after a trial is had and judgment rendered, all objections, based on the absence of an appointment in conformity with the statute and due qualification, which might have been properly made, if timely presented, will be deemed waived, p. 370.</p>

<p>From Pike Circuit Court; D. W. Curll, Special Judge.</p> <p>Action by Elijah Roy against John W. Scales. From a judgment for defendant, the plaintiff appeals. .</p>

<p>From Marion. Superior Court (A5,289); W. W. Thornton, Judge.</p> <p>Action by F. Joseph Frey against George W. Owen. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Johnson Circuit Court; Fremont Miller, Judge.</p> <p>Action by Walter M. Thrash and wife against the National Glue Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Appeal.—Revieiv.-—Overruling- Motion to Make Complaint Specific.—Indefiniteness not Prejudicial.—In an action by purchasers of an automobile for breach of seller’s agreement to return cash payment and purchase money notes on his failure to put the automobile in first class condition, the overruling of a motion to make more specific an' allegation in the complaint that the defendant failed to put the automobile “in first class condition,” without specifying in what particular the automobile had not been repaired, held not ground for reversal, where it appears from the record, which includes the evidence, that the seller was not harmed by the indefinite character of the complaint, pp. 388, 390.</p> <p>2. Appeal.—Review.—Ruling on Motion to Make Complaint Specific.—The overruling of a motion to make a complaint more specific is so far within the discretion of the trial court that on appeal a reversal of the judgment on that ground will not follow unless the rights of the complaining parties have suffered, p. 389.</p>

<p>1. Appeal.—Revieio.—Overruling Motion to Strike Out.—A judgment will not be reversed because of an adverse ruling on a' motion to strike out a part of a pleading, p. 395.</p> <p>2. Appeal.—Review.—Overruling Motion to Make Complaint Specific.—The overruling of a motion to make a complaint more specific will not constitute reversible error, unless it is shown affirmatively to have injured appellant, p. 395.</p> <p>3. Appeal.'—Review.—Harmless Error.—Sustaining Demurrers to Paragraphs of Answer.—Where the trial court admitted evidence of all the facts alleged in each of paragraphs of answers demurred to, and at defendant’s request submitted interrogatories to the jury pertaining thereto, and where the only facts alleged in such paragraphs which constituted a defense' under the evidence, were set up in another paragraph of answer to which no demurrer was filed, the sustaining of demurrers to such paragraphs was harmless, p. 395. .</p> <p>4. Appeal.—Review.—Verdict.—Answers to Interrogatories.— Scope of Review.—In determining whether the trial court erred in overruling motion for judgment on the answers to interrogatories notwithstanding the general verdict, the court on appeal will consider only the pleadings, the answers to the interrogatories, and the general verdict, p. 396.</p> <p>5. Nuisance.—Destruction of Property as a Nuisance.—Action. —Verdict.—Ansivers to Interrogatories.—Conflict.—In an action to recover for the destruction hy defendant of a frame building occupied by plaintiff as a tenant, wherein defendant claimed that the building was located within a fire zone in which the erection of frame buildings was prohibited by municipal ordinance, and that such destruction was to protect defendant’s property, which was located in close proximity thereto, answers to interrogatories, showing that the building was located in a district where wooden structures were prohibited by city ordinance, held not to require rendition of judgment on the answers to interrogatories, notwithstanding general verdict for plaintiff, in the absence of findings as to where such building was located in reference to defendant’s property and as to any special injury sustained by defendant by reason of its existence in violation of such ordinance, p. 396.</p> <p>6. Nuisance.—Wooden Building Within Fire Limits.—The erection and maintenance of a wooden building within a fire zone in which the erection of such structures were prohibited by ordinance, constituted a nuisance as to the owner of property in such close proximity to the wooden building as to be exposed to the danger of fire communicated therefrom, p. 396.</p> <p>7. Nuisance.—Private and Public Nuisance.—Abatement by Person Aggrieved.—An individual, who is aggrieved by the existence of a private nuisance, or who suffers some special injury from a public nuisance, may abate such nuisance by his own act, provided he can do so without a breach of the peace, p. 397.</p> <p>8. Nuisance.—Wooden Building within Fire Zone.—Destruction by Person Aggrieved.—Where a wooden shed, located within a fire zone in which the erection and maintenance of frame build-' ings was prohibited by municipal ordinance, was in such close proximity to certain brick buildings as to subject them to the danger of fire originating therein, the owner of such brick buildings was warranted in destroying the shed, on its owner failing to do so after notice, regardless of whether the maintenance of the shed in violation of the ordinance be considered a public or a private nuisance, p. 398.</p> <p>9. Nuisance.—Continuing Nuisance.—Frame Building Within Fire Zone.—Abatement by Purchaser of Property in Neighborhood.—Where a wooden shed, standing within a fire zone in violation of a municipal ordinance, was in such close proximity to certain brick buildings^ás to expose them to danger of fire originating therein, the owner of such brick buildings could destroy the shed on the owner’s refusal to do so after notice, though he purchased the brick buildings when the shed was so standing, since the maintenance of the shed in violation of the ordinance constituted a continuing nuisance which such purchaser could abate, notwithstanding the fact that the purchase was made after the erection of the wooden building, p. 398.</p> <p>10. Nuisance.—Abatement by Person Aggrieved.—Legality.— —Motive.—The owner of brick buildings in such close proximity to a frame shed standing in violation a municipal fire ordinance as to be in danger of. fire originating in the shed could lawfully destroy the shed, on the owner thereof failing to do so after notice, regardless of his motive in so doing, p. 398.</p> <p>11. Easements.— Private Way.— Obstruction.— Removal.—An obstruction placed in a private way is a nuisance, and may be removed by any person having the right to use the way, provided the rehioval can be accomplished without a breach of the peace, p. 399.</p> <p>12. Easements.—Evidence.—Deeds Constituting Links in Chain of Title.—Admissibility.—In an action in which the existence of easements in certain property was involved, deeds, though not sufficient to establish as easement, were admissible, where they constituted links in a possible chain of title thereto, p. 399.</p> <p>13. Nuisance.—Wooden Building in Fire Zone.—Abatement by Person Aggrieved.—Existence of other Prohibited Structures. —Where a wooden shed, located within a fire zone in violation of a municipal ordinance prohibiting the erection and maintenance. of frame buildings therein, was in such close proximity to brick buildings as to subject them to danger of fire, the owner of the brick buildings was warranted in destroying such shed as a nuisance, on refusal of the owner thereof to do so after notice, though there were other wooden buildings in closer proximity to such brick buildings than the shed destroyed. p. 400.</p> <p>14. Nuisance.—Similar Nuisance in Vicinity.—One maintaining a nuisance is not justified or excused because others are maintaining a nuisance of a similar character, p. 400.</p> <p>15. Appeal.—Waiver of Error.—Briefs.—Any question as to excessive damages, assigned as ground for new trial, is waived by failure of appellant to state in his brief any proposition or point addressed thereto, p. 400.</p>

From Marion Probate Court (11,422) ; Mahlon E. Bash, Judge. Action by Emma Heckman against the estate of William Bretthauer, an absentee, for whom the defendant, Edmund H. Kassing, had been appointed administrator. From a judgment for defendant, the plaintiff appeals.

<p>1. Judgment.—Appointment of Receiver.—Collateral Attack.— The court’s determination in a receivership proceedings, as to the insolvency of the business for which the receiver is appointed, is conclusive on collateral attack as to the insolvency of such business in an action by one of the proprietors against his partner and another for damages by reason of the conduct of defendants in producing a condition of apparent insolvency of solvent business, p. 420.</p> <p>2. Judgment.—Conclusiveness.—Fraud.—Even though a judgment is procured by fraud, it cannot be treated as a nullity, but it is conclusive upon the parties until set aside on appeal, or vacated, p. 421.</p> <p>3. Appeal.—Review.—Theory of Lease.—The court on appeal will treat a pleading upon the same theory as that of the trial court, p. 421.</p>

<p>From Knox Circuit Court; Thomas B. Coulter, Judge.</p> <p>Action by George L. Ryan against Anthony F. Frey. From a judgment for defendant, the plaintiff appeals.</p>

From Adams Circuit Court ; John C. Moran, Judge. Action by the Schafer Hardware Company against the Peck and Mack Company in which the Schafer Saddlery Company was made garnishee defendant. From a judgment for plaintiff, the defendant appeals.

From Tipton Circuit Court; James M. Purvis, J udge. Action by the Central States Canning Company against the Royal Packing Company. From a judgment for plaintiff in an amount claimed to be insufficient, plaintiff appeals.

<p>1. Municipal Corporations.—Defective Streets.—Personal Injuries.—Notice to City.—Signing by Attorney.—Validity.— Statutes.-—The notice to a city of injuries resulting from defective streets, etc., which §8962 Burns 1914, Acts 1907 p. 249, requires before a suit for damages may be instituted, may be signed by the injured party or by an authorized attorney, p. 437.</p> <p>2. Municipal Corporations.—Defective Streets.—Personal Injuries.—Action.—Notice of Injury.—Incomplete Instructions. —In an action against a city for personal injuries due to a defective street an instruction that the notice of injury required by the statute (§8962 Burns 1914, Acts 1907 p. 249), must give the “time, place and extent of the injury,” though omitting to state that the notice should also set forth the cause of the injury, as required by such statute, was correct as far as it went and an instruction embodying such omission, if desired, should have been tendered, p. 437.</p> <p>3. Trial.—Instruction Stating Facts Necessary to Recovery.— Omissions.—An instruction directing the jury to find for plaintiff upon the finding of enumerated facts, but omitting a fact essential to a recovery, is erroneous, p. 437.</p> <p>4. Trial.—Instructions.—Consideration as a Whole.—The law applicable to different questions may be stated in separate instructions, and the entire law applicable to all questions involved in a case need not be stated in each instruction, as in such case the instructions supplement each other, and if, when viewed as a whole they fairly state the law, they are sufficient, p. 438.</p> <p>5. Appeal.—Review.—Harmless Error.— Instruction Directing Verdict.—Omission of Essential Fact.—In instruction directing verdict for plaintiff on the finding of enumerated facts, though omitting to state a fact essential to recovery, is harmless, where such fact is shown by the undisputed evidence, so that the inclusion thereof in the instruction could not have changed the result, p. 438. ■ •</p>

<p>From Floyd Circuit Court; John M. Paris, Judge.</p> <p>Action by Margaret Bott against the American Central Life Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Fixtures.—Scales Affixed to Realty.—Reservation as Personalty.—Where an administratrix at the time of the sale of her intestate’s farm, announced that certain scales, which the court had ordered sold as personal property, were not being offered for sale with the realty, and that they could be purchased by separate contract, and where purchaser bought the land with full knowledge of the fact that the scales had been treated as personal property, and so treated them himself after his purchase of the farm, he was estopped from thereafter claiming that the scales were part of the realty, p. 457.</p> <p>2. Evidence.—Reservation by Administratrix of Scales on Realty from Sale of Land.—Parol Evidence.—Admissibility.— Where an administratrix sold her intestate’s farm upon which certain scales were situated, parol evidence was admissible to prove that at the time of sale she reserved such scales from the sale of the land. p. 458.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by the Kempton Hotel Company against John E. Ricketts and others. From a judgment for defendants, the plaintiff appeals.</p>

From Spencer Circuit Court; Marshall R. Tweedy,Special Judge. Action by Ira M. Tower and others against Hilbert Bennett, superintendent of construction, and others. From a judgment for defendants, the plaintiffs appeal.

From Spencer Circuit Court; Marshall B. Tweedy, Special Judge. Action by James H. Ensor and others against Hilbert Bennett, superintendent, and others. From a judgment for defendants, the plaintiffs appeal.

From Noble Circuit Court; Luke H. Wrigley, Judge. Action by Nora McCurdy against A. J. Rich and another, in which the named defendant filed a cross-complaint. From a judgment for cross-complainant, the plaintiff appeals.

<p>1. Parent and Child.—Partition of Property Between.—Fraud. —Presumptions.—In an action for the alleged fraud of a father in a partition of property between himself and a daughter, who was of age, the mere showing of the existence of the relation of parent and child did not place upon the father the burden of showing that the transaction was fair and honest, there being no presumption of fraud in the absence of evidence showing a relationship of trust and confidence or the exercise of undue influence by the parent; fraud never being presumed where the parties to a transaction are sui juris and are dealing with each other at “arm’s length.” p. 476.</p> <p>2. Fraud.—Partition of Property.—Representations as to Value. —Jury Questions.—Whether statements made by the father in partitioning property with his daughter as to the value of the several tracts involved were merely the expression of his opinion or the statement of a fact, held questions for the jury, p. 479.</p>

<p>1. Taxation.—Tax Deeds.—Defects.—Burden of Proof.—Statutes.—Tax deeds, when executed in conformity with the statute §10380 Burns 1914, Acts 1891 p. 199), are prima facie evidence of a good and valid title in fee simple, so that a party assailing the validity of a tax deed has the burden of proving any defect in the proceedings which will render the deed ineffectual and thus defeat the title of the grantee named therein, p. 484.</p> <p>2. Taxation.—Tax Deeds.—Irregula/rities.—Butrden of Proof.— If the holder of a tax deed commences an action to quiet his title, the burden is on the defendant to show such irregularity in the proceedings as will defeat the tax title, but if the holder, instead of filing a complaint to quiet his title, files a complaint to foreclose the tax lien, such an action is an attack upon the validity of the tax deed and he must allege and prove facts sufficient to show that his deed is ineffectual to convey title, p. 484.</p> <p>3. Taxation.—Tax Sales.—Rights of Purchaser.—Statutes.— Under §§10380, 10387 Burns 1914, Acts 1891 p. 199, and §10388 Burns 1914, Acts 1901 p. 366, a purchaser of land at a tax sale having received a deed is not given an option to take title to the property sold or to foreclose and enforce a tax lien, for, if the deed is valid, he takes title and there is no lien to foreclose, p. 485.</p> <p>4. Appeal.— Review.— Special Finding.— Presumptions.— Presumptions and intendments are not available on appeal to support a special finding, p. 485.</p> <p>5. Taxation.—Tax Deeds.—Finding of Invalidity.—Sufficiency. —Enforcement of Tax Lien.—A tax deed is not shown to he ineffectual to convey title so as to entitle the holder to maintain an action to foreclose the tax lien by a finding that the owner of the realty had sufficient personal property in the county, on a given day, to pay the taxes, there being no showing that such property was present in the county for a time sufficient for the collection of the taxes, p. 485.</p> <p>6. Taxation.—Tax Deeds.—Holder’s Admission of Invalidity.— Right to Enforce Tax Lien.—Admission.—The holder of a tax deed can not by mere admission that it is invalid, establish that fact and thus become entitled to foreclose the tax lien given; an admission being a statement of a fact against the interest of the party making it. p. 486.</p> <p>7. Limitation of Actions.—Amended Complaint.—New Cause of Action.—Statute of Limitations.—An amendment to a complaint relates back to the time of the commencement of the action, and it is only where a new and independent right of action is brought that time is measured, with reference to the running of the statute of limitations, from the filing of the amended complaint, p. 486.</p> <p>8. Limitation of Actions.—Complaint.—Amendments.—Character of.—Former Adjudication.—Running of Statute of Limitations.-—Where an adjudication On the original complaint would bar an action on the matter set up in an amendment, or vice versa, the amendment relates back to the date of the commencement. p. 486.</p> <p>9: Limitation of Actions.—Complaint.—Amendments.—Running of Statute of Limitations.—Where, in an action by the holder of a tax deed, the original complaint asserted a lien on the property and prayed foreclosure thereof, an amendment, filed two years thereafter which set up the owner’s ineffectual attempts to redeem and admitting that the tax deed was invalid for the reason that the owner’s personalty had not been exhausted to satisfy the tax claim, related back to the original complaint, so that the limitations against proceedings by the holder were tolled by the filing of the original complaint, p. 487.</p>

<p>From Grant Circuit Court; J. F. Charles, Judge.</p> <p>Action by John F. Smith against the Union Traction Company of Indiana. 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 Samuel W. Gee against Ira Fetterhoflf and others. From an award for applicant, the named defendant appeals.

<p>From Tippecanoe Circuit Court; James L. Caldwell, Judg</p> <p>Action by the C. Callahan Company against George E. Dahm and another. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Jackson Circuit Court; James A. Cox, Judge.</p> <p>Action by George A. Hutchinson against Emory Hutchinson, executor of the will of Elizabeth Black, deceased. From a judgment for plaintiff, the defendant appeals.</p>

<p>Schools and School Districts.—Closing School Because of Epidemic.— Recovery of Wages by Teacher.— Statutes.— Although it is a general rule that no deduction can be made from a teacher’s salary where a school is closed during the term on account of an epidemic, in the absence of a special provision for such deduction in the contract of employment, where the county health officers, in the exercise of the police power delegated to them by §7608 Burns 1914, Acts 1909 p. 342, giving to health officers power to close schools to prevent and stay epidemics, ordered a school closed because of an epidemic of influenza, the teacher of such school could not recover wages for the time during which it was closed, since her contract of employment, which must be deemed to have been made with reference to such statute and which was a part thereof, was impossible of performance during the time the order made by the health officials was in force, and hence unenforceable; the action of the health board being independent of the school authorities and beyond their control.</p>

<p>1. Master and Servant.—Negligence.—Master’s Liability.—Relation of Master' and Servant.—It is the general rule that under the doctrine of r-espondat superior a master is not responsible for the negligence of one who is not his servant or agent, p. 509.</p> <p>2. Municipal Corporations.—Personal Injuries.— Permissive Use of City Truck.—Liability of City.—Where the driver of a city motor truck, in violation of his orders, permitted another to drive the truck in accordance with his directions, the city was liable for the negligence of such other in operating the truck in such a manner as to injure a pedestrian, p. 509.</p> <p>3. Master and Servant.—Stranger Assisting Employe.—Negligence.—Master’s Liability.—Generally, where a servant, without express or implied authority from the master, suffers or permits a stranger to do, or assist in doing, the work which the master entrusted to the servant, the master is liable under the rule of respondeat superior for an injury to a third person inflicted through the tortious act of the stranger, p. 510.</p>

From Sullivan Circuit Court; William H. Bridwell, Judge. Action by Parintha B. Dix and others against the Willfred Coal Company and others. From the judgment rendered, the plaintiffs appeal.

From the Industrial Board of Indiana. Application by the Studebaker Corporation for review of a compensation agreement with Frank Warner, an employe. From the award made, the applicant appeals.

From Morgan Circuit Court; Alfred M. Bain, Judge. Action by Sophia Mann, administratrix of the estate of Calvin T. Mann, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.

<p>From Blackford Circuit Court; Frank W. Gordon, Judge.</p> <p>Action by John Beath against John B. Tudor. From a judgment for plaintiff, the defendant appeals..</p>

<p>1. Compromise and Settlement.—Acceptance of Note.—Presumption as to Settlement of Demands between Maker and Payee.—The execution and acceptance of a note is prima fade evidence of a settlement and adjustment of all existing demands between the maker and payee, p. 542.</p> <p>2. Executors and Administrators.—Claims Against Estate.— Settlement by Note.—Presumptions.—Instructions. — In an action on a claim against a decedent’s estate for .services rendered, in which a note given to claimant by decedent was interposed to show settlement, a tendered instruction that the note was conclusive between the parties in the absence of fraud or mistake, was properly refused, since the note was only prima facie, evidence of settlement of all existing demands between the maker and payee, p. 542.</p> <p>3. Executors and Administrators.—Claims Against Estate.— Claimant’s Acceptance of Note.—Burden of Showing Settlement.—Instnictions.—In an action on a claim against a decedent’s estate for services rendered, in which it was claimed that a note was given by decedent to claimant in full settlement of all her demands, an instruction that the burden was upon defendant to prove that the note was given as a settlement in full and that claimant agreed to the settlement and accepted the note as such, was erroneous, since the acceptance of the note was prima fade evidence that decedent and claimant had a settlement, and defendant was not required to prove that claimant agreed to, and accepted the note as a settlement, p. 544.</p>

<p>1. Brokers.—Real Estate Brokers.—Exchange ■ of Property.— Broker Acting for Both Parties.—Fraud.—Liability.—Where a real estate broker, employed by plaintiffs to sell or exchange their farm, was, unknown to them, also defendants’ agent to make an exchange of their building for plaintiffs’ farm, plaintiffs were not bound by his false statements as to the value of the building, but defendants were liable therefor, regardless of whether they authorized or knew of such misrepresentations, pp. 547, 548.</p> <p>2. Brokers.—Real Estate Brokers.—Obligation to Principals.— Where a broker undertakes to make an advantageous exchange of property, it is his duty to act in the utmost good faith and give his principals all his information which might in any way influence them in the transaction, p. 547.</p> <p>3. Appeal.—Review.—Evidence.—Weight and Sufficiency.—The court on appeal will not weigh the evidence, and if there is any evidence of a disputed fact, though it be circumstantial, it must prevail, p. 548.</p> <p>4. Fraud.—Damages.-—Evidence.—Sufficiency.—In an action for fraud in the exchange of realty, evidence held sufficient to support the verdict 'for plaintiffs, both as to fraud perpetrated and as to the amount of damages resulting therefrom, p. 548.</p> <p>5. Appeal.—Revieiv.—Instructions.—Affirmance.—Right Result. —Error, if any, in giving and refusing instructions is not ground for reversal, where the verdict is clearly right on the evidence, p. 550.</p> <p>6. Appeal.—Review.—Affimnance.—Trial on Merits.—Statutes. —Under §700 Burns 1914, §658 R. S. 1881, the judgment will not be disturbed on appeal, because of technical errors where the merits of the cause have been fairly tried and determined, p. 550.</p>

<p>Divorce.—Change of Venue from Judge.—Statute.—Section 422a Burns 1914, Acts 1913 p. 314, authorizing a change of venue from the judge upon application of either party, applies to actions for divorce.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by William F. Purcell against the Empire Health and Accident Insurance Company. From an award for applicant, the defendant appeals.

From Daviess Circuit Court; James W. Ogdon, Judge. Action by the State of Indiana, on the relation of Thomas H. Horall, against Thomas Jacobs and another. From the judgment rendered, the plaintiff appeals.

From Carroll Circuit Court; Benjamin F. Carr, Judge. Action by Catherine Clark, administratrix of the estate of Clifford Clark, deceased, against the city of Lafayette. From a judgment for plaintiff, the defendant appeals.

<p>1. Bills and Notes.—Note Executed and Payable in State.— Laiv Governing.—Where a note was executed in this state and payable at a bank therein, the rights and liabilities of the parties thereto are governed by the laws of this state, although the note was given as part payment,of the purchase price of land located in another state and was secured by mortgage on that land. p. 584.</p> <p>2. Executors and Administrators.—Husband and Wife.—Joint Debts.—Liability of Estate of Deceased Husband.—Where a husband and wife executed a note, secured by mortgage, as part payment of the purchase price of land conveyed to them as tenants by entireties, they were joint principals, each being liable for the whole debt, and the husband’s administrator, having paid the note as a claim against the husband’s estate, was entitled to contribution in favor .of the estate, and the widow could no,t object to a settlement whereby she was charged by the administrator with one-half ■ the liability on the note, p. 585.</p>

<p>1. Master and Servant.—Workmen’s Compensation Act.—Unlawful Employment.—Bight to Compensation.—A minor not lawfully employed cannot recover compensation under the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) for injuries he may sustain, p. 589.</p> <p>2. Master and Servant.— Workmen’s Compensation Act.— Bight to Compensation.—Minor Sixteen Years Old Employed in Mine.—Legality of Employment.—Statutes.—Under §23 of the School Attendance Act (Acts 1921 p. 337), prohibiting the employment of minors under the age of eighteen years in certain dangerous occupations, or “in any other occupation dangerous to life or limb or injurious to health or morals of such minors,” and §22 of the same act, prohibiting the employment of minors under the age of sixteen in a number of less hazardous employments therein named, including mining, the two sections being reconcilable, and the specific occupation of mining mentioned in §22 constituting an exception to the occupations generally included in §23, a minor over the age of sixteen years may lawfully be employed in a mine so as to bring him within the definition of an employe contained in §76 of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918), as amended by Acts 1919 p. 158. pp. 589, 592.</p> <p>3. Statutes.—Construction.—Statutes Expressing both General and Particular Intention.—Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the -particular intention is to be considered in the nature of an exception, while if a particular thing is limited in a preceding part of a statute, this shall not be ■ taken away or altered by any subsequent general words of the same statute, p. 591.</p>

From 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 Gibson Circuit Court; Simon L. Vandeveer, Judge.</p> <p>Action by Orinda H. Adams against the Mutual Life Insurance Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Gibson Circuit Court; Robert C. Baltzell, Judge.</p> <p>Action by John M. Blood against Benjamin Weiler and another. From the judgment rendered, the plaintiff appeals.</p>

From Marion Superior Court (98,933); TheopMlus J. Moll, Judge. Action between the Massachusetts Bonding and Insurance Company and the Indiana State Bank and another. From the judgment rendered, the former appeals.

<p>1. Railroads.—Deed for Eight of Way.—Covenants Running with the Land.—Agreement as to Erection and Maintenance of Fence.—A provision in a deed to a traction company for a right of way that grantee should erect a fence which the grantee agreed to maintain, is a covenant running with the land. p. 617.</p> <p>2. Railroads.—Landowners Agreement to Maintain Fence.— Construction.—Duty to Rebuild.—Where, prior to the enactment of §5707 Burns 1914, Acts 1903 p. 426, requiring interurban railroad companies to fence their right of way and saving rights under existing contracts as to fences, a landowner had deeded to defendant’s predecessor in title a right of way with a covenant that grantee should erect a substantial fence which grantor agreed to “maintain,” plaintiff, a tenant of a sub- • sequent owner of the land through which the right of way was granted, cannot recover from defendant for killing a cow escaping through the fence, which had become so decayed that it could not be effectually repaired except by rebuilding it, as the duty of maintaining the fence was on the landowner and not the defendant, the word “maintaining,” as used in the deed, meaning to rebuild or reconstruct, p. 617.</p>

From the Industrial Board of Indiana. .Proceedings for compensation under the Workmen’s Compensation Act hy Stella Remiszewski and others against the Hubbard Steel Foundry Company. From an award for applicants, the defendant appeals.

<p>1. Appeal.—Revieiv.—Harmless Error.—Sustaining Demurrer to Answer.—In an action to recover possession of leased premises, error, if any, in sustaining a demurrer to a paragraph of answer, was harmless, since all defenses were admissible under defendant’s answer of general denial, p. 640.</p> <p>2. Landlord and Tenant.—Option to Release.—Breach.—Right of Tenant in Possession to Damages.—In a landlord’s action for possession upon tenant’s refusal to vacate after expiration of lease, the tenant cannot counterclaim for damages for breach of landlord’s agreement to give tenant the first opportunity to release, since the tenant sustains no damage until after eviction, p. 640.</p>

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by William Wehrle against the Terre Haute Malleable and Manufacturing Company. From an award for applicant, the defendant appeals.

From Miami Circuit Court; Charles A. Cole, Judge. Petition by Hood P. Loveland, guardian, against Robert G. Emswiler and others to construe the will of Sarah E. Emswiler, deceased. From the judgment rendered, the petitioner appeals.

From the Industrial Board of Indiana. Proceeding’s for compensation under the Workmen’s Compensation Act by Frank Kota against the Standard Steel Car Company. From an order of the Industrial Board, the applicant appeals.

From Allen Superior Court; William N. Ballou, Judge. Action by August C. Nierman, administrator of the estate of Lloyd Norton, deceased, against Augustus C. Aurentz and. another. From a judgment for plaintiff, the defendants appeal.

<p>1. Corporations.—Agreement to Return Stock.—Validity.—Mutuality.—Consideration.—A. written agreement under which defendants, who exchanged shares of certain capital stock for plaintiff’s stock in another corporation, agreed to return to . plaintiff on thirty days’ notice of plaintiff’s desire to have such stock instead of stock exchanged by defendants, notice to be given within sixty days from a date specified in the contract, held- valid as against contentions that it was unilateral and was void for want of mutuality and lack of consideration, p. 680.</p> <p>2. Pleading.—Complaint.—Sufficiency.—Waiver of Objection.— Failure to Specify in Memorandum Accompanying Demurrer. —Objections to the complaint which are not specified in the memorandum accompanying the demurrer are waived, p. 680.</p> <p>3. Corporations.—Exchange of Capital Stock.—Demand for Re- ■ turn.—Necessity of Tender of Worthless Stock.—Where plaintiff had exchanged shares of capital stock in an insurance company for defendants’ worthless stock in a manufacturing corporation, on defendants’ agreement to return plaintiff’s stock on demand within a specified time, and where defendants had sold the insurance stock prior to the making of such demand, plaintiff was not required to tender the manufacturing corporation’s stock before instituting an action for defendants’ failure to reassign the insurance stock on demand therefor within the terms of the agreement, since defendants were not ready and able to perform their contract, and since the law does not require the doing' of something which is useless, p. 680.</p> <p>4. Appeal.—Review.—Harmless Error.—Admission of Evidence. —In an action for breach of a written contract to reassign seventy shares of corporate stock, the admission of evidence that the stock was of the value of $40 a share, was harmless, where the amount of damages awarded was $1,400, it thus being apparent that the court was not influenced by such evidence. p. 680.</p> <p>5. Corporations.—Agreement to Reassign Stock.—Breach.— Measure of Damages.—In an action for breach of an agreement to reassign corporation stock, plaintiff’s measure of damages tvas the fair value of the stock at the time of the failure to reassign, there being no price for such stock specified in the agreement, p. 680.</p>

<p>1. Contracts.—Statute of Frauds.—Written Contracts.—Parol Modification.—A written contract, which might.have been made by parol, may be modified by a parol agreement, if the modification is based upon a valuable consideration, and this rule is applicable to written leases for a term not exceeding three years, which, under §7462 Burns 1914, §4904 R. S. 1881, may be by parol, p. 683.</p> <p>2. Landlord and Tenant.—Written Lease.—Oral Modification. —Consideration.—Extension of Term.—Where a written lease provided that the tenancy might be terminated on a thirty days’ notice, an oral agreement to pay an increased rental, in consideration of which tenant’s possession was not to be disturbed, the agreement having been made- after notice of termination of the tenancy had been given by the landlord, was supported by a sufficient consideration, p. 683.</p> <p>3. Landlord and Tenant.—Written Lease.—Oral Modification. —Effect.—Where a written lease of a dwelling provided that the tenancy could be terminated upon thirty days’ notice, and such a notice was given, and an oral agreement was made whereby the léssee was to pay an increased monthly rental in consideration of which his possession would not then be disturbed, a finding that when the parties modified the lease, the terms thereof were to, and did, remain the same except as to the amount of rent to be paid, and that lessor was entitled to possession of the premises upon the' givjng of thirty days’ notice, was warranted, as against the contention that by reason of the parol modification of the lease, it became a parol contract for tenancy from year to year entitling tenant to possession for one year from the date that first increased rental was paid, p. 683.</p>

From Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Edith Helen Stephens and others against the Essenbee Mines Company. From a denial of an award to the named applicant, she appeals.

<p>From Washington Circuit Court; William H. Paynter, Judge.</p> <p>Action between the Consumers Distributing Company and Dennis L. Jeffs and others. From the judgment rendered, the former appeals.</p>

<p>From Wells Circuit Court; Frank W. Gordon, Judge.</p> <p>Action between the Globe and Rutgers Insurance Company and the Delphi Strawboard Company. From the judgment rendered, the former appeals.</p>

<p>From Starke Circuit Court; William C. Pentecost, Judge.</p> <p>Action between Clarence H. Bales and Matt Hillabold and others. From a judgment for the former, the latter appeal.</p>

<p>From Adams Circuit Court; David E. Smith, Judge.</p> <p>Action between Albert S. Kindel, administrator, and- Cletus Gentis and others. From the judgment rendered, the former appeals.</p>

<p>From Adams Circuit Court; David E. Smith, Judge.</p> <p>Action between Albert S. Kindel, administrator, and Charles E. Bierie and others. From the judgment rendered, the former appeals.</p>

<p>From Daviess Circuit Court; James W. Ogdon, Judge.</p> <p>Action between the State of Indiana, on the relation of Taylor Mason, and Thomas Jacobs and another. From the judgment rendered, the relator appeals.</p>

<p>From Johnson Circuit Court; Fremont Miller, Judge.</p> <p>Action by Ed Carman and another against the Farmers National Life Insurance Company of 'America.- From a judgment for plaintiffs, the defendant appeals.</p>