pellant's request, and in permitting appellee three-quarters turned to the car; that as to testify, over appellant's objection, to a soon as he saw him he immediately put the conversation with appellant's claim agent. brakes on the car and stopped it as soon as [1] The evidence shows that appellee he could. There was other testimony tending started diagonally across Massachusetts ave- to contradict this, and the physical facts nue at an alley crossing during a heavy rain tend to show that, if the motorman, as he and carrying an umbrella pulled down low testified, saw appellee from the time he left over his head; that he looked to the north- the sidewalk, he could have operated his car east before starting across the street and in such a manner as to avoid the collision. saw no car; that he could see at that time It the motorman saw appellee coming across about 490 feet; that when he had walked the street in such a manner that a collision about 40 feet and was about 2 or 3 feet from seemed imminent, giving no indications of the track, about 6 or 7 feet from where he stopping, but it rather appearing that he was was struck, he glanced out under the um- wholly unaware and unconscious of the apbrella to the northeast up the track and saw proach of the car, and the motorman saw no car within a distance of 30, 40, or 50 that he was thereby entering a place where feet; that, when he had taken one or two he would be in danger from the car, it at steps on the track, he was struck by appel- once became his duty to take all the measlant's interurban car coming from the north- ures to prevent a collision which a reasoneast and was injured. There was testimony ably prudent man would take, and, under that the car was running at the rate of 20 the evidence and the issues, it was a question miles an hour; other witnesses placed its for the jury to determine whether the motorspeed as low as 8 miles an hour; several man used such measures. The doctrine of witnesses testified that they did not hear last clear chance was brought in issue by the any gong sounded or signals given; others complaint, and there was evidence to which testified that the gong was sounded several it was applicable. times.

Appellee looked from two points in the direction from which the car was coming but saw no car. Whether he was guilty of contributory negligence in failing to look in that direction for an approaching car at other times and places before reaching the tracks of appellant was wholly a question of fact for the jury and not one of law for the court. It must be remembered that he was also under a duty to look for cars in an opposite direction, and to look out for wagons and other vehicles, some of which, according to the evidence, were in the vicinity at the time. It would scarcely be negligence to attempt to cross when no car was in sight for 30, 40, or 50 feet, for unless the car was coming at an unusual rate of speed he could cross before the car.

[2] The physical facts are such that either the car must have been coming at a very high rate of speed or it must have been in sight when appellee looked up the track. If it was in sight, and he looked and failed to see it, he is chargeable with what he should have seen. If the jury believed that the car was coming at an unusual rate of speed, we cannot say, as a matter of law, that it was not justified in finding that appellee was not guilty of contributory negligence, for from the usual rate of speed of cars in that locality he may have been justified in believing that, since there was no car in sight when he looked, he was safe in crossing.

[3, 4] On the other hand, the jury may have found appellee guilty of negligence and yet have found appellant liable under the doctrine of last clear chance. The motorman testified that he saw appellant as soon as he left the sidewalk, crossing the street diagonally, in a hard rain, with an umbrella

[5] Instructions 25, 26, and 27 upon the doctrine of last clear chance are supported by the authorities cited below and were properly given. Appellant's objections to these instructions are met by what is said with reference to instruction 3 below. Indianapolis St. R. Co. v. Schmidt, 35 Ind. App. 209, 71 N. E. 663, 72 N. E. 478; Indianapolis St. R. Co. v. Marschke, 166 Ind. 494, 77 N. E. 945; Indianapolis Tr., etc., Co. v. Smith, 38 Ind. App. 170, 77 N. E. 1140; Saylor v. Union Tr. Co., 40 Ind. App. 381, 81 N. E. 94; Indianapolis Tr., etc., Co. v. Kidd, 167 Ind. 407, 79 N. E. 347, 7 L. R. A. (N. S.) 143, 10 Ann. Cas. 942; Southern R. Co. v. Fine, 163 Ind. 626, 72 N. E. 589; Indianapolis St. R. Co. v. Bolin, 39 Ind. App. 169, 78 N. E. 210; Grass v. Ft. Wayne, etc., Tr. Co., 42 Ind. App. 395, 81 N. E. 514; Indiana Union Tr. Co. v. Hyers, 47 Ind. App. 646, 93 N. E. 892; Southern Indiana R. Co. Drennen, 44 Ind. App. 14, 88 N. E. 724; Evansville, etc., R. Co. v. Spiegel, 94 N. E. 718; Indianapolis Tr., etc., Co. v. Croly, 96 N. E. 973; Evansville, etc., R. Co. v. Johnson (1912) 97 N. E. 176; Cleveland, etc., R. Co. v. Van Laningham (1912) 97 N. E. 573; Cleveland, etc., R. Co. v. Henson (1913, No. 7,978) 102 N. E. 399.

v.

[6] Instruction 3 requested by appellant was properly refused. It would have told the jury that, if appellee's negligence continued up to the time of his injury, he could not recover, even if appellant was negligent. Such is not the law. If appellee was negligent in getting into a place of danger from appellant's car, and appellant's motorman saw him in such place of danger and could have avoided or mitigated the danger by the use of reasonable means at his command, appellant was liable, even though appellee's

injury. Such negligence of appellee is not contributory negligence, for the active cause of the accident was not appellee's negligence but the active or proximate cause was the negligence of appellant's motorman in failing to take proper precautions after he saw appellee in or entering into a place of danger. See Indianapolis Tr., etc., Co. v. Croly, supra, and other authorities cited above.

[7] The court did not err in allowing appellee to testify that the reason why he went to Anderson shortly after his injury, while he was suffering much pain, was that he had been asked to go there by appellant's claim agent, who told him the company might make a 'settlement. Appellant's attorneys, in attempting to minimize the effect of appellee's injuries, had brought out the fact that, though he claimed riding on cars caused him great pain, yet he had made a trip to Anderson on the interurban road of appellant

about a month after the accident. The court then allowed the testimony objected to to show the circumstances under which he went to Anderson, stating that he admitted the evidence, not for the purpose of binding defendant in any way, but as a circumstance tending to show how he went to Anderson, and the circumstances under which he went. Appellant invited this testimony and paved the way for it, and no error was committed in its admission.

No error appears, and the judgment is

affirmed.

(55 Ind. App. 349)

CARNAHAN v. SHULL et ux. 1 (No. 8,007.) (Appellate Court of Indiana. Division No. 2. June 19, 1913.)

1. TRIAL (§§ 395, 402*)- FINDINGS - SUFFI

CIENCY.

note was given for the debt of the wife; the failure to find a material fact being the equivalent of a finding against the party having the burden of proving the same.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 927-934, 939; Dec. Dig. § 395.*] 4. TRIAL (8 405*)-CONCLUSIONS OF LAW-EX

CEPTIONS.

Exceptions to conclusions of law based on a finding concede, for the purposes of the exceptions, that the facts are fully and correctly found.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 963-965, 967; Dec. Dig. § 405.*]

Appeal from Circuit Court, De Kalb County; Frank M. Powers, Judge.

Action by Perry Carnahan against Thomas Shull and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

P. V. Hoffman and C. S. Smith, both of Auburn, for appellant. Mountz & Brinkerhoff, of Garrett, and D. D. Moody, of Auburn, for appellees.

FELT, J. Appellees, husband and wife, owned 25 acres of land, as tenants by entirety, and executed a mortgage on the same to secure two notes, each for $150 executed by appellee Thomas Shull to appellant. Appellant brought suit on the notes and to foreclose his mortgage. The complaint, in addition to the usual averments in such suit charged that the notes were given for the price of two horses sold by appellant to the appellees jointly; that appellee Florence Shull agreed to execute the note and mortgage with her husband, but only executed the mortgage, and did not sign the notes; that the notes and mortgage were delivered to appellant, but he did not observe that she had failed to sign the notes. The complaint was answered by a general denial and two paragraphs of special answer, in one of which it was alleged that the land was owned by appellees as tenants by entireties, and that the mortgage was executed to secure the separate debt of the husband. In the other it was alleged, in substance, that the notes were given in payment of two horses bought by Thomas Shull, and that Florence Shull, his wife, executed the mortgage as his surety. The reply was a general denial.

A finding of fact is not objectionable beA finding of fact is not objectionable because it does not find all the issuable facts, if it contains enough substance to support a judgment one way or the other; and a venire de novo should not be granted, unless it is so un-arate debt of the husband. certain that it is incapable of forming the basis of a judgment.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 927-934, 939, 952, 953; Dec. Dig. §§ 395, 402.*]

2. EVIDENCE ($ 98*)-BURDEN OF PROOF.

A plaintiff must prove the material averments of his complaint; and, if he fails to do

so judgment must go against him.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 122; Dec. Dig. § 98.*] 3. TRIAL (§ 395*)-FINDINGS OF FACT-SUF

FICIENCY.

In an action on a mortgage on property held by a husband and wife as tenants by the entirety, where the husband alone signed the note secured by the mortgage, and the complaint averred that the note was given for the price of horses sold to defendants jointly, but that the wife failed to sign the note, a finding of fact that the purchase was the sole purchase of the husband, coupled with the failure to find that the debt was the joint debt of the parties, is sufficient to support a judgment for defendants, because it is a finding that plaintiff failed to prove the material averments that the

overruling of his motion for a venire de The appellant has assigned as error the novo, and that the court erred in each conclusion of law. Upon request the court made a special finding of facts, the substance of which is as follows: That appellees are, and on March 16, 1909, were, husband and wife; that on said day they were owners by entireties of the real estate described in the mortgage; that appellee Florence Shull agreed to execute two notes each for $150 in payment for two horses purchased from appellant, and secured the same by mortgage on said real estate; that on said day appellees executed said mortgage, but the notes were signed only by Thomas Shull; that ap

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

sumption that the debt was that of the husband, appellant averred that the horses were sold to appellees jointly, and that the debt was their joint obligation. The finding is against appellant on this issue, and even if it be true, as claimed, that the finding is defective and fails to find the ultimate and issuable facts, still upon this issue the result would be the same, for in the absence of a finding that the notes and mortgage evidence the joint debt of appellees, the appellant cannot succeed against the wife, for the failure to find a material fact is the equivalent of finding such fact against the party having the burden of proving the same. Mug v. Ostendorf, 96 N. E. 780-782; Maxwell v. Wright, 160 Ind. 520, 67 N. E. 267, supra.

pellee Thomas Shull delivered the notes and mortgage to appellant and requested him to examine the same, but he did not do so, but turned them over to his wife with a request that she examine them; that appellee Florence Shull was not present when the notes and mortgage were delivered and the horses turned over to her husband; that in the preparation and delivery of said instruments, and in the purchase of said team, said Thomas did not act as the agent of his wife, and was not authorized so to do; that said Florence Shull when she executed said mortgage did not intend to purchase said team either individually, or jointly with her husband, or to obligate herself to pay therefor, and only signed the mortgage as the wife of her husband; that she never at any time [4] It follows that the finding of facts, claimed to own said horses, or to have any though by no means commendable in form, interest in them except as the wife of her is sufficient to support the judgment renderhusband, and appellant never requested her ed. The appellant failed because he did not to execute other or different notes from prove the material averments of his comthose delivered to him. The court stated as plaint. This is apparent from the finding of conclusions of law that the debt evidenced by facts, and the exceptions to the conclusions the notes and mortgage is and was the debt of law concede, for the purposes of the exof Thomas Shull, and that said appellee ceptions, that the facts are fully and corFlorence Shull was surety; that the mort-rectly found. National State Bank v. Sandgage is illegal and void; that appellant is ford Fork & Tool Co., 157 Ind. 10, 15, 60 entitled to a personal judgment against N. E. 699; City v. Board, etc., 28 Ind. App. Thomas Shull for $373.73 and $40 attorney's 319-323, 62 N. E. 715. fees. Judgment accordingly.

It is apparent, therefore, that the court did not err in overruling the motion for a venire de novo or in stating its conclusions of law.

Judgment affirmed.

(55 Ind. App. 676)

[1] Appellant insists that his motion for a venire de novo should have been sustained for the alleged reason that the finding states only items of evidence and legal conclusions, and fails to find the ultimate issuable facts; that the finding does not state the ultimate fact as to who purchased the horses and as to whether Florence Shull was or was not ADAMS v. UNION NAT. SAVINGS & LOAN surety for her husband. If a finding of facts contains substance enough to support (Appellate Court of Indiana, Division No. 2. a judgment one way or the other, it will not be objectionable because it does not find all the issuable facts. Maxwell v. Wright, 160 Ind. 515, 520, 67 N. E. 267.

In the recent case of Geiger v. Town of Churubusco, 98 N. E. 77, this court said: “A venire de novo should not be granted unless the finding is so defective or uncertain on its face that it is incapable of supporting any conclusion of law or of forming the basis of any judgment on the issue involved."

ASS'N. (No. 8,360.)1

June 18, 1913.)

BUILDING AND LOAN ASSOCIATIONS (§ 34*)-
REPAYMENT OF LOAN-STATUTES.

Laws 1911, c. 151, § 13, providing that any borrower from a building or loan association may repay his loan at any time and withdraw, cannot be waived and becomes a part of any agreement to the contrary in the associathe contract of a borrowing member, so that tion's by-laws or mortgage securing the loan is invalid.

[Ed. Note. For other cases, see Building and Loan Associations, Cent. Dig. §§ 60-62, 64, 65; Dec. Dig. § 34.*]

On motion for rehearing. Denied.
For former opinion, see 100 N. E. 389.
Thomas M. Honan and Sullivan & Knight,
all of Indianapolis, for appellants. Walter
Olds, of Ft. Wayne, for appellee.

[2, 3] In this case we are not called upon to decide whether the mortgage upon the land held by appellees as tenants by entireties would be a valid security for a joint debt of the husband and wife, for the reason that the finding of facts shows that the notes were executed only by the husband; that the horses were bought by him, and his wife did not purchase them in her individual capacity or jointly with him, or claim any interest in them. It is fundamental that a plaintiff must prove the material averment of his The question which it most sharply emphacomplaint. The notes sued on evidence only sizes and urges relates to that portion of the a debt of the husband. To avoid the pre-opinion wherein it was held that the provi*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

IBACH, J. Counsel for appellee in support of its petition for a rehearing has filed a very able and exhaustive brief, which we have given careful consideration.

sions of the by-laws of appellee and of the various instruments signed by appellant at the time he procured his loan, which were intended to prevent him from paying his loan (Appellate Court of Indiana, Division No. 2.

As to this case, a different principle is involved, and a different purpose was intended to be accomplished when the statute affecting appellant was enacted. Its purposes, we think, have been fully set forth in the The errors assigned and relied on for reoriginal opinion, and these purposes recogniz-versal are the overruling of appellant's deed by the statutes of our state cannot be murrer to the second paragraph of complaint, held to be dependent upon the contracting and the overruling of appellant's motion for will of the individual intended to be proa new trial. tected thereby, and the statute be thus made ineffectual; but it must be upheld whenever the courts are called upon so to do. In support of this view of the case, we add the following authority: Zumpfe v. Gentry, 153 Ind. 219, 54 N. E. 805, and cases there cited. The petition for rehearing is therefore denied.

Section 376, Burns 1908, provides that: [ sideration was that N. would dismiss certain "In pleading the performance of a condition suits pending against defendant, allow a deprecedent in a contract, it shall be sufficient fault to be taken against him in another suit, refrain from bringing certain other suits, and to allege, generally, that the party perform- consent to the sale of such property, that deed all the conditions on his part. If the al- fendant had sold such property and received legation be denied, the facts showing a per- $3,000 on account of the sale, that she had formance must be proved on the trial." paid N. $500, that demand had been made and on the trial." refused for the residue, and that N. for value There was no error in overruling a demur- assigned the contract to plaintiff, contained all rer to this paragraph of complaint. Pacific essential allegations and was not demurrable. Mutual Ins. Co. v. Turner, 17 Ind. App. 644, Cent. Dig. §8 1615-1639; Dec. Dig. § 332.*] 47 N. E. 231; Voluntary Relief Department, Cent. Dig. §§ 1615-1639; Dec. Dig. § 332.*] etc., v. Spencer, 17 Ind. App. 123, 125, 46 N. 3. APPEAL AND ERROR (§ 1040*) - HARMLESS ERROR-ANSWER-SUSTAINING DEMURRER. E. 477.