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law and the decisions of other jurisdictions | due the firm, paying the debts, and making in determining the question.

The general rule applicable to merchandising partnerships is that in the absence of an agreement therefor in the partnership articles, or a statute providing for it, the surviving partner is not entitled to compensation for winding up the affairs of the partnership. Bates on Partnership, §§ 770-772; Gilmore on Partnership, p. 356; 30 Cyc. p. 635; 22 Am. & Eng. Encyc. of Law (2d Ed.) p. 225(5); Porter v. Long (1900) 124 Mich. 584, 83 N. W. 601, and cases there collected; Starr v. Case (1882) 59 Iowa, 491, 13 N. W. 645; Washburn v. Goodman (1836) 17 Pick. (Mass.) 519; Consaul v. Cummings (1911) 222 U. S. 262, 32 Sup. Ct. 83, 56 L. Ed. 192; Williams v. Pedersen (1907) 47 Wash. 472, 92 Pac. 287, 17 L. R. A. (N. S.) 385, 399, where the cases are fully collected in a note; Condon v. Callahan (1905) 115 Tenn. 285, 89 S. W. 400, 1 L. R. A. (N. S.) 643, 112 Am. St. Rep. 833, note 843, 5 Ann. Cas. 659.

In Consaul v. Cummings, supra, it was said in the opinion of the Supreme Court of the United States written by Mr. Justice Lamar: "Claims of this sort are not favored. They lead to efforts to prove a disparity between the partners, when the law implies equality. They necessitate a balancing of the value of the work of each in securing the business and earning the profits, as well as a comparison of the time they may spend on the matters under consideration. Each partner is bound to devote himself to the firm's business, and there is no implied obligation that for performing this duty he should be paid more than his proportionate share of the gains. Neglect by one to do his part may be of such character as to justify a dissolution. But as long as the firm continues there is usually no deduction because one partner has not been as active as the other. The same is true where death pre

vents either of the partners from performing his contract. The law did not permit him to appoint a substitute, nor can his personal representative, no matter how well qualified, assist in winding up the affairs of the firm. Whether that be considered a right or duty, it is in either event cast on the survivor. In performing it he only carries out an obligation implied in the partnership relation, and is therefore entitled to no compensation for thus doing what he was bound to do and what would have been imposed on the other had the order of their death been different. To allow the survivor compensation wherever he continues the business would be to offer an inducement to delay the settlement which ought to be made as soon as possible."

There are certain well-recognized exceptions to the general rule where the circumstances are extraordinary and more is done by the surviving partner than the mere work of selling the property, receiving the moneys

distribution. Thus where it is necessary to continue the business to realize the most. from the assets, and the continuance is by authority of law and is assented to by the legal representative, or to continue it to complete specific work undertaken by the partnership and unfinished at the time of the death of one partner, and the completion of the work requires a large amount of work to be done by the survivor, principles of equity permit an allowance for the extra service. And even when the business is continued by the survivor without the consent of the personal representative and a profit is realized, such survivor is usually entitled to compensation if the estate elects to share in the profits. Bates on Partnership, § 773; 22 Am. & Eng. Encyc. of Law (2d Ed.) pp. 225, 226; 30 Cyc. 640; Consaul v. Cummings, supra; monographic note, 112 Am. St. Rep. 843; Condon v. Callahan, 5 Ann. Cas. 659, note; monographic note, 17 L. R. A. (N. S.) 396.

The findings in this case do not, however, bring the appellant within any of the exceptions to the general rule. He did not have the consent of the personal representative of the deceased partner, but, on the contrary, the business was continued against the wishes of both the widow and the personal representative. The authority of the court to continue the business was procured by appellant by representing that it would be necessary and beneficial, and no benefit or profit resulted. The facts found do not clearly show appellant entitled to the credit for services, and the court did not err in refusing it. The long and unreasonable delay in making the final settlement, it may also be said, is not without its influence on appellant's right to claim compensation for his

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

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1788-1794; Dec. Dig. § 605.*] 2. MORTGAGES (§ 616*) — ACTIONS FOR ACCOUNTING-ALLEGATIONS OF TENDER-SUF


The complaint, in an action by a mortgagor against a mortgagee in possession to have a deed declared a mortgage and for redemption and an accounting, alleged that plaintiff informed defendant that he was prepared to pay the debt and requested him to convey, and that the request was refused, and defendant has since refused to accept the debt or to convey. Held, that the mortgagee could not claim that there was not a sufficient allegation of tender, in view of the fact that he held the legal title and knew that only his conveyance would enable the mortgagor to pay the debt. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1833-1844; Dec. Dig. § 616.*] 3. MORTGAGES (§ 32*)-MORTGAGE OR DEED. The rule, once a mortgage always a mortgage, is elementary in equity.

erty, brought to have a deed declared a mort- Clay county, Ind., then and now of the value gage and for an accounting and to redeem. of $8,000; that on the latter date he mortgaged it to a third person to secure a note of $1,530; that thereafter the mortgage was foreclosed and the land sold and a certificate issued to the purchaser for the amount of the debt the $1,923.55; that prior to the expiration of the year for redemption, and while he was taking steps to secure the money to redeem the real estate from the sale, defendant informed him that he had some money that was idle, and not yielding him any interest or income, and proposed to loan plaintiff a sufficient sum of money to redeem the real estate from the sale, and give him sufficient time in which to repay said loan, if he could, or would secure the payment thereof; that thereupon it was agreed between them that defendant should furnish the plaintiff a sufficient sum of money to redeem the real estate at 6 per cent. interest to be paid in three years; that it was further agreed between them that, to secure the payment of whatever amount of money defendant should loan plaintiff to redeem the real estate, defendant should procure and take an assignment of the certificate of purchase from the purchaser, and at the expiration of the year for redemption take a sheriff's deed therefor for the benefit of plaintiff, and hold said deed as security for the money he advanced to redeem the real estate, until the same was paid, with 6 per cent. interest per annum; that, relying on the agreement, he made no further ef fort to raise money to redeem the real estate, which otherwise he would have done; that in pursuance of, and in consideration of, the agreement so made, defendant did procure and take an assignment of the certificate, for the benefit of plaintiff, and thereafter on the 18th day of June, 1902, surrendered

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. § 32.*] 4. APPEAL AND ERROR (§ 928*)-PRESUMPTIONS


Where requested instructions were not signed by the party or his counsel as required by the act of 1881 (Burns' Ann. St. 1908, § 558, subd. 4) and by Acts 1903, p. 338, it will be presumed that such failure was the cause of the trial judge's failure to indicate in a writing signed by him what instructions would be given and refused as required by statute; the reason for both statutory rules being to properly identify the instructions tendered and the action of the court with respect thereto.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. & 928.*1

Appeal from Circuit Court, Clay County; George M. Crane, Special Judge.

Action by Morgan H. Ringo against Michael M. Doyle. From a judgment for plaintiff, defendant appeals. Affirmed.

Transferred from the Appellate Court un- the certificate to the sheriff of Clay county, der Burns' Ann. St. 1908, § 1405.

A. W. Knight, of Brazil, and Sullivan & Knight, of Indianapolis, for appellant. S. M. McGregor and McNutt & Shattuck, all of Brazil, for appellee.

MYERS, J. This was an action by appellee against appellant by a complaint in two paragraphs; the first seeking to have a sheriff's deed declared a mortgage and for an accounting between the parties and to be permitted to redeem, and the second paragraph an ordinary complaint to quiet title. The answer was a general denial. There was a trial by the court, with the question of fact submitted to a jury, for the advisement of the court, as to whether the sheriff's deed was taken as a mortgage, which the jury answered in the affirmative.

Ind., and took a deed in his own name for the real estate, all in accordance with the agreement; that defendant in so doing laid out and paid for the benefit of plaintiff the sum of $2,079.44; that at the time defendant so furnished him the money to redeem the real estate, and took the sheriff's deed as security therefor, plaintiff was in possession of the real estate and so remained until the time hereinafter stated; that before the time when by the terms of the agreement the loan became due, he sold part of the real estate and went to defendant and informed him that he was then ready and prepared to pay the sum of $2,079.44 so loaned as aforesaid, with interest thereon at the rate of 6 per cent. per annum, and requested defendant to convey the real estate to the purchaser thereof, or to plaintiff upon the payment of said sum, whereupon defendant refused to convey the real estate either to the purchaser or to the plaintiff, and has ever since refused and still refuses to accept said sum so loaned plaintiff, or reconvey the real

The first paragraph of complaint is attacked upon the ground that it alleges no tender of the amount due. The complaint alleges, in substance, that the plaintiff was on March 16, 1899, the owner of 74 acres of land in

No actual offer of the money necessary to pay the debt is alleged; but where, as here, the mortgagee holds the legal title to the res, knowing that only his transfer would enable the other party to pay, and it was his duty to accept the money owing him and convey, and the other party is in his power, he will not be heard in equity and good conscience to say that a technical tender was not made, when he himself prevented it. The complaint is sufficient.

estate upon payment thereof, although plain- | Grady v. Hughes, 80 Mich. 184, 44 N. W. tiff is now, and has been ever since said 1050; Ludington v. Taft, 10 Barb. (N. Y.) time, prepared, willing, and ready to pay 447; Bogardus v. Trinity Church, 4 Paige said sum, principal and interest; that at the (N. Y.) 178; Rippe v. Stogdill, 61 Wis. 38, expiration of the time when the sum became 20 N. W. 645. due and payable the defendant without the consent of plaintiff took possession of all said real estate and has ever since remained in possession thereof, taking and appropriating the rents and profits thereof to his own use, the amount of which plaintiff is unable to state, for the reason that defendant has failed and refused to account to plaintiff therefor, though often requested by plaintiff so to do. Other allegations follow, showing sale by appellant, after he took possession, of part of the land for sums aggregating $2,000, sales of coal, sale of timber in large amounts in value unknown to him, and which he has no means of knowing, and has received the rents and profits in amounts to him unknown, and converted the whole to his own use, and refused to account for any part of the sums so received. Prayer for a decree declaring the deed a mortgage, for an accounting, and an offer, readiness, willingness, and ability to pay any sum found due, and for equitable relief.

It is not necessary under a complaint of this character that a tender be alleged or made. Calahan v. Dunker (App. 1912) 99 N. E. 1021; Brown v. Follette, 155 Ind. 316, 58 N. E. 197; Horn v. Indianapolis, etc., Bank, 125 Ind. 381, 25 N. E. 558, 9 L. R. A. 676, 21 Am. St. Rep. 231; Nesbit v. Hanway, 87 Ind. 400; Coombs v. Carr, 55 Ind. 303; Etna, etc., Ins. Co. v. Stryker, 38 Ind. App. 312, 73 N. E. 953, 76 N. E. 822, 78 N. E. 245; Kemp v. Mitchell, 36 Ind. 249; Bowen v. Gerhold, 32 Ind. App. 614, 70 N. E. 546, 102 Am. St. Rep. 257.

[1] The rule of full and strict tender in actions at law cannot, in the nature of things, apply in equity in case of unliquidated accounts and mutual indebtedness, such as is here shown, under allegations showing a mortgagee in possession receiving rents and profits, and selling property, since without an accounting a party cannot know what to tender, which is an indispensable requisite in liquidated accounts or in an action at law. Barr v. Vanalstine, 120 Ind. 590, 22 N. E. 965; Conyngham's Appeal, 57 Pa. 474; Green v. Brooks, 81 Cal. 328, 22 Pac. 849.

[2] There is a direct allegation that appellee had sold part of the land and went to appellant and informed him that he was ready and prepared to pay the debt, and requested him to convey to the purchaser or to him, and that the request was refused, and he has ever since refused to accept the money loaned by him, or to convey. This was a direct demand and refusal, and, while not an allegation of tender, a complaint is sufficient which substantially makes out a case. Snyder v. Baber (1881) 74 Ind. 47; Whinery v. Brown, 36 Ind. App. 276, 279, 75 N. E. 605; More v. Calkins, 85 Cal. 177, 24

It is urged by appellant on the evidence that the facts show that the transaction was not a loan of money, and taking the certificate and deed as security, but an extension of the time for redemption, and a conditional sale, and at the end of the period for redemption without redemption the title vested in him under the rule in Turpie v. Lowe, 158 Ind. 314, 62 N. E. 484, 92 Am. St. Rep. 310; Williams v. Hoffman, 39 Ind. App. 315, 76 N. E. 440.

[3] Once a mortgage, always a mortgage, is an elementary rule of equity jurisprudence. There is evidence of the loan of money, and taking the certificate and deed as security for its repayment, and the court has found that the transaction was a mortgage, and we cannot disturb the finding on the weight of the evidence. There is also evidence in support of the allegations of tender and demand.

It appears by bills of exception that at the close of the evidence, and before the argument was begun, appellant requested the court in writing to instruct the jury in writing to indicate in advance of the argument what instructions would be given, and to give in his behalf instructions numbered from 1 to 9, inclusive, and appellee also tendered instructions, as did also the court of its own motion; that the court modified instructions Nos. 2, 3, 4, and 7, requested by appellant, by erasing portions and inserting other words. The instructions as requested, and also as modified, are set out; the court giving those as modified as his own. The court failed and neglected to indicate before the argument of counsel commenced, and before the jury was instructed, what instructions were to be given, and what instructions were refused, by memoranda in writing and signed by the judge at the close of the instructions (our italics), and appellant objected to such changes and modifications, and to the giving of the instructions as thus modified, upon the ground that "such changes and modifications did not comply with the statute." This objection was overruled, and exception reserved. He then objected "to the giving of all and each of said instructions," which objection was overruled, and exception reserved. It does not appear by the record that any instruction tendered by the parties was signed by

(No. 22,389.)1

(180 Ind. 301)

(Supreme Court of Indiana. June 4, 1913.) 1. STATUTES (8 47*) - CERTAINTY OF PROVI


The motion for a new trial is not set out in the briefs, or the substance of any cause JEFFERSONVILLE MFG. CO. v. HOLDEN. for a new trial; but under his eighteenth point the point is made that the failure of the court to indicate what instructions would be given "erroneously deprived appellant of the opportunity and power to discuss properly to the jury the law of the case as the 8029, relating to the guarding of machinery, is The provision of Burns' Ann. St. 1908, § court thereafter stated it, and to apply it to not invalid for uncertainty, since, when considthe evidence, so that a different finding fa- ered with the other sections of the factory act vorable to appellant might have resulted, and (sections 8021 et seq.), it requires such machinbeen adopted by the court," and in his argu-engaged about dangerous machinery where it can ery to be so safeguarded as to protect employés ment he refers to this subject as the thir- be done without impairing its usefulness, and teenth cause for a new trial. No attack is the statute requiring that it shall be a proper made on any instruction given or refused. guard, and the term "proper" as thus used means fit, suitable, or appropriate.

[4] We have thus presented the record as made, and, without going into the question further, it is sufficient to point out that appellant grounds his claim of error on the statutory ground of the failure of the court to indicate in writing, signed by the judge, such instructions as would be given and refused. He overlooks the statutory requirement, quite as explicit, both under the act of 1881 (Burns 1908, § 558, subd. 4) and by the act of 1903 (Acts 1903, p. 338; Burns 1908, § 558), that all instructions shall be signed by the party or his counsel. It nowhere appears that this was done, and we must presume that, if the court failed to follow the statutory requirement, it was because appellant had not tendered instructions signed by himself or his counsel. The reason for the rule is the same in each case, viz., to properly identify the instruction tendered and the action of the court respecting it. It does not appear that appellant put himself in a situation to have required the court to indicate his determination in writing, in addition to the fact that upon the whole record it is fairly open to the inference that the court's purpose as to giving and refusing instructions was known to the parties in advance of the argument, at least it does not appear that it was not. Muncie, etc., Co. v. Black, 173 Ind. 142, 89 N. E. 845; Starr v. State, 160 Ind. 661, 67 N. E. 527; Collett v. State, 156 Ind. 64, 59 N. E.


It is urged that the amount awarded appellant is too small; but we cannot weigh the evidence, which is principally in parol. Upon appellant's insistence we have examined the evidence with care, and there is evidence ample to support the findings.

It is also urged that the court erred in entering a judgment for foreclosure of the mortgage, when he had not asked such relief. The judgment also is that, upon payment of the amount found due, he should convey to appellee, or in default a commissioner appointed should do so. Conceding, without deciding, that the portion of the judgment decreeing a foreclosure was erroneous, there was no motion to modify it, and there is nothing for this court to act upon. The judgment is affirmed.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. § 47.*

For other definitions, see Words and Phrases, vol. 6, pp. 5687, 5688.]


The doctrine of assumption of risk does not apply to the case of an injury caused by an employer's negligent nonobservance of a positive and fixed statutory duty.

Servant, Cent. Dig. 88 544-546; Dec. Dig. 8 204.*1

[Ed. Note. For other cases, see Master and


In an employé's action for injuries, a paragraph of the complaint alleging that in the operation of a woodworker there was danger, that while the person operating it ran the wood over the knives it would be thrown back suddenly, and the hand of the operator thereby brought in contact with the knives, that a proper guard could have been placed on the machine without interfering with its proper operation, that such guard would have protected the knives and preployer, in violation of the statute, negligently vented injury from such danger, that the emfailed to provide such guard, that while plaintiff was operating the machine and holding a piece knives the wood was suddenly thrown back by of wood on its table and running it over the the operation of the machine, causing plaintiff's hand to come in contact with the knives and be injured, that if such guard had been placed on the machine his hand would not have come in contact with the knives, and that the injury was caused by the employer's negligence in failing to provide such guard, and another paragraph containing similar allegations and alleg ing in addition that the employer provided the machine with a guard consisting of a board attached to the table and placed in such position that it would cover the aperture in the table through which the knives protruded, but that to make the guard a proper one and one that would safely guard the knives and prevent injury it should have been provided with a spring to hold the guard against the material run over the table for the purpose of being sawed and to completely cover the aperture the instant the such a spring would have guarded the knives material was removed, and that a guard with and prevented an injury, alleged sufficient facts to show that the failure to guard the machine properly was the proximate cause of the injury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*]


Such second paragraph was not defective as being ambiguous, uncertain, or repugnant. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 39, 40, 44, 64; Dec. Dig. §§ 18, 19, 21.*]

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


A general verdict will not be defeated by isolated facts disclosed by answers to interrogatories, unless they are so repugnant to the general verdict that both cannot be true under any conceivable state of facts.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 857-860, 875, 877, 878; Dec. Dig. § 359.*] 6. TRIAL (§ 359*)-SPECIAL FINDINGS INCONSISTENT WITH GENERAL VERDICT.

In determining whether judgment should be granted on special findings notwithstanding the general verdict, the court cannot look to the evidence, but only to the pleadings, general verdict, and special findings.

[Ed. Note.-For other cases, see Trial, Cent.

Dig. §§ 857-860, 875, 877, 878; Dec. Dig. § 359.*] 7. APPEAL AND ERROR (§ 1001*)-QUESTIONS OF FACT-VERDICT-CONCLUSIVENESS.

It is not the province of the Supreme Court to weigh the evidence; and, when there is any legal evidence tending to support a verdict, the jury's finding is conclusive.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]


Instruction as to employer's duty to guard dangerous machinery that he could escape liability only by complying therewith, and that the use of an imperfect and insufficient guard by other manufacturers did not justify his violation, held not erroneous, where it did not purport to cover all the facts necessary to a recovery, and the subject of contributory negligence was fully and completely covered in other instructions.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 705-713, 715, 716, 718; Dec. Dig. § 296.*]


Under Burns' Ann. St. 1908, § 8029, requiring saws, planers, and machinery of every description in manufacturing establishments to be properly guarded, the approval and indorsement of a considerable proportion of the careful, prudent, skillful, considerate, and experienced persons in a particular line of business is not necessary to render a particular guard proper or to render an employer's failure to use it negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. §



bose, and tedious as to make it wearisome and confusing was properly refused.

An instruction which was so prolix, ver

Dig. §§ 569-576; Dec. Dig. § 242.*]

[Ed. Note. For other cases, see Trial, Cent.


The amount of damages to be awarded for personal injuries is a matter for the determination of the jury under the supervision of the trial court; and, unless the record discloses that the amount is so grossly excessive as to make it so appear at first blush, the Supreme Court will require that it be pointed out wherein the record so discloses to such extent as to. induce the belief that the jury was actuated by prejudice, partiality, or corruption.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*]

Appeal from Circuit Court, Floyd County; William C. Utz, Judge.

Action by Thomas A. Holden against the Jeffersonville Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Instructions 15, 16, and 18, given as tendered by plaintiff, were as follows:

An instruction that an employé was not necessarily guilty of contributory negligence by continuing work, knowing that a machine was not properly guarded, and that if the employer was negligent the employé might recover notwith-time in question there was a guide or fence standing such knowledge was proper.

"No. 15. The defendant claims that at the

[Ed. Note.-For other cases, see Master and on said machine which could be so placed by Servant, Cent. Dig. 88 1180-1194; Dec. Dig. the operator of said machine as to act as a 296.*]


In an employé's action for negligent failure to properly guard machinery, instructions calling jury's attention to defendant's claim that there was a device which might be used as a guard, to another device furnished as a guard, to the manner of the use of either and whether either was a proper guard, to the employé's conduct in the use of the machine, and to defendant's duty to furnish a proper guard was proper.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.*]


In an employé's action for injuries alleged to have been due to the employer's negligence in failing to properly guard dangerous machinery, an instruction that what was a proper guard might be determined by finding if the guard on the machine was similar to those in use by others, and, if so, that the use of such a guard would be ordinary care, was properly refused. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. §


guard to the knives thereof. Now, as to such guide or fence, I instruct you that, if the defendant furnished some other device on said machine to be used by its employés operating the same as a guard for said knives, then such employés would have the right to use the device furnished by the defendant for such purpose, and the defendant if it did furnish some other device as a guard would be required to furnish one that was sufficient for such purpose if it could be furnished without interfering with the proper operation of said machine."

"No. 16. The defendant claims that at the time in question there was a guide or fence on said machine which could be placed by the operator of said machine as to act as a guard to the knives thereof. Now, as to such guide or fence, I instruct you that if the defendant did not use or furnish the same as a guard, or if it did not require its employés operating said machine to use it as a guard, but furnished another device to be used as a guard, such employés would have the right to use such device furnished for a guard if it was furnished, and under such circum

stances the defendant would not be heard to

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