Slike stranica


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

Dig. §§ 294-308; Dec. Dig. § 108.*]



of the conclusions is correct, there is no deed is the consideration for the subsequent available error. We concur in this contention. "It is a general rule in this state that when there are several rulings each must be separately challenged, and the exception must be taken to each. Where the objection or exception in the court below or assignment of error in this court is joint as to several rulings or acts of the court, the same will fail unless valid as to all of such rulings or acts." Saunders, Treasurer, v. Montgomery, 143 Ind. 185, 41 N. E. 453, and numerous

authorities cited.

No exception was taken or appeal brought from the second conclusion of law for John W. Tash on his cross-complaint. It must ⚫ therefore be taken as correct, and the general assignment of error overruled. No available error is presented by this record. Judgment affirmed.

(53 Ind. App. 504)


GLUE CO. (No. 8,011.)

Where proof of facts was admissible under the general denial and the reply amounted to answer, the overruling of a demurrer to the no more than an argumentative denial of the reply was not prejudicial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]


Burns' Ann. St. 1908, §§ 403, 405, audiscretion in furtherance of justice, vests in thorizing amendments by leave of court in its the court discretion in allowing amendments to pleadings to conform to the proof, and, in the absence of anything in the record to show an abuse of discretion, its rulings will not be disturbed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3825-3831; Dec. Dig. § 959;* Pleading, Cent. Dig. §§ 601, 605; Dec. Dig. 236.*]

Appeal from Circuit Court, Floyd Coun

(Appellate Court of Indiana, Division No. 1. ty; William Ridley, Special Judge.

June 4, 1913.)



Though, on a total breach of covenant of warranty, the purchaser may generally recover the whole consideration paid, yet where there is a partial breach he may recover pro tanto only, and, where there is a failure of title

to one of several tracts of land conveyed by the same deed, the grantee may recover the consideration paid for the particular tract.

[Ed. Note.-For other cases, see Covenants, Cent. Dig. §§ 245-253, 255, 256, 257; Dec. Dig. § 130.*]


Action by the Conrad-Krammerer Glue Company against Thomas Hanlon. From a judgment for plaintiff, defendant appeals. Affirmed.

Alexander Dowling, of New Albany, for appellant. Evan B. Stotsenburg, John H. Weathers, and George H. Hester, all of New Albany, for appellee.

HOTTEL, P. J. This was an action by appellee to recover damages for an alleged breach of a covenant of warranty contained in a deed executed by appellant and wife to appellee. The complaint is in a single paragraph, a demurrer to which was overruled. There was an answer in denial and a special answer setting up that the deed mentioned in the complaint was executed without any consideration. To this answer, after a demurrer thereto had been overruled, the appellee filed a general denial and a special reply. A demurrer to the special reply was overruled. There was trial by jury which resulted in a verdict for appel

Where the complaint, in an action for breach of a covenant in a deed which recited that the grantor for a specified consideration conveyed and warranted land described and that the grantor quitclaimed to the grantee other real estate described, alleged that the grantor claimed to be the owner of the land first described and conveyed the same by a deed containing a covenant of warranty, and that he had no title, it sufficiently averred as against a demurrer that the consideration recited in the deed was paid for the tract first described, and that the tract subsequently described was quitclaimed without any consideration expressed therefor, and as against a demurrer the lee. Judgment was rendered on the verdict, grantee could recover the consideration speci- and from such judgment this appeal is fied. prosecuted.

[Ed. Note. For other cases, see Covenants, Cent. Dig. §§ 189-202, 263; Dec. Dig. § 114.*] lied on present for our consideration the The errors separately assigned and re3. EVIDENCE (§ 419*)-PAROL EVIDENCE-question of the sufficiency of the complaint, CONSIDERATION FOR DEEDS.

The consideration for a deed may be shown by parol notwithstanding any recital therein of consideration.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.*] 4. DEEDS ( 108*)-EXECUTION OF DEED TO CORRECT PRIOR DEED-EFFECT.

A deed made to correct a prior deed relates back to the time of the prior deed and takes the place of it, and the consideration of the prior

and the special reply to withstand the respective demurrers filed thereto, and the ruling of the court in permitting appellee to amend its complaint after the close of the evidence, by substituting the name of the Baltimore & Ohio Southwestern Railroad Company for the name and in the place of the Baltimore & Ohio Southwestern Railway Company as the true and par

New Albany township, Floyd county, Indiana, described as follows, to wit:" Here follows a description of the tract described in appellee's complaint and at the end of such description is a period. The deed then proceeds with a second clause of conveyance as follows: "And said grantors convey and quitclaim unto said grantees the real estate in Floyd county, Indiana, bounded as follows:" Here follows a description of a second tract not described or referred to in the complaint, except by way of reference to such exhibit. It will be observed that there are two separate independent clauses of conveyance in said deed, the first of which warrants title and contains a consideration of $1,000, and the second of which conveys and quitclaims with no consideration expressed therein.

amount owner of the tract of land alleged | of one thousand dollars, the receipt of, which to have been conveyed by the appellant to is hereby acknowledged the real estate in the appellee. Appellee insists that such questions are not presented because of the failure of appellant, in the preparation of his brief, to comply with rule 22 of this court (55 N. E. v). We think such brief evidences a good-faith effort to comply with said rule, and that there has been such substantial compliance therewith as entitles appellant to a consideration of said questions. It is urged against the sufficiency of the complaint that the deed filed as an exhibit therewith shows that for the same consideration the appellant deeded two separate tracts of real estate; that the complaint alleges no defect of title as to the last tract described in such deed, and shows that appellee still retains such tract and seeks to recover the entire consideration paid for both tracts. It is insisted in effect that the complaint should have alleged either an offer to reconvey such tract in which no defect of title is alleged, or that it should have alleged the value of each tract and asked a recovery for such proportion of the purchase money as the value of the tract in which the title failed bore to the value of the whole premises deeded.

[1] It is no doubt true as appellant contends "that while upon a total breach of a covenant a purchaser may, as a general rule, recover the whole consideration money, so where there is a partial breach he may recover pro tanto." Rawle on Covenants for Title, pp. 85, 86, 87; 11 Cyc. 1159, 1163; Hoot v. Spade, 20 Ind. 326, 327; Moorehead v. Davis, 92 Ind. 303, 306, and cases there cited; Doyle v. Brundred, 189 Pa. 113, 119, 120, 41 Atl. 1107; Lloyd v. Sandusky, 203 Ill. 621, 629, 68 N. E. 154.

It is said in 11 Cyc. 1163: "Where the breach is only as to an aliquot and undivided part of the land attempted to be conveyed, the damages are in proportion to in proportion to the whole consideration paid as that aliquot part of the land is to the whole thereof." The weakness of appellant's contention `results from his interpretation of the averments of the complaint and the exhibit made part thereof rather than from any misconception or misapplication of the law governing in such


[3] Conceding, without deciding, that it should be presumed that the consideration expressed in the first clause of the deed, though separate and independent of said second clause, was intended as an expression of the consideration for the entire tract conveyed by such deed, yet such consideration is always subject to explanation, and, when not correctly expressed in the deed, the true consideration may be alleged and proved. Louisville Ry. Co. v. Renicker, 8 Ind. App. 404, 413, 35 N. E. 1047; Cincinnati, etc., Ry. Co. v. McLain, 148 Ind. 188, 193, 44 N. E. 306; Long v. Doxey, 50 Ind. 385; Railroad Co. v. Worland, 50 Ind. 339, 341; Johnson v. McNabb, 7 Ind. App. 393, 397, 34 N. E. 667; Hanover Fire Ins Co. v. Johnson, 26 Ind. App. 122-131, 57 N. E. 277.

Appellee in his complaint alleges that on the 9th day of April, 1908, appellant claimed to be the owner of the following described real estate in Floyd county, Ind. (here follows a description of the tract first described in said deed alone). The complaint then proceeds as follows: "On said 9th day of April, 1908, said defendants, by their deed of conveyance of that date, duly executed and delivered, in consideration of one thousand dollars paid by this plaintiff, sold and conveyed to this plaintiff the said above described real estate in Floyd county, Indiana." It will be observed that the complaint expressly avers that the consideration paid for the tract, the title to which is alleged to be defective, was $1,000. This averment was admitted by the demurrer to be true, and the question which appellant attempts to raise on the complaint is by its express averments made a question of fact for the jury to determine under the evidence. Where there is a failure of title to one of several tracts of land conveyed by the same deed, the vendee can recover the consideration paid for such particular tract. Wright v. Nipple, 92 Ind. 310, 314; Wood v. Bibbins, 58 Ind. 392, 396; Wilson v. Peelle, con- 78 Ind. 384, 388; Overhiser v. McCollister, for the sum 10 Ind. 41, 44; Burton v. Reeds, 20 Ind. 87,

While it is true that the deed filed as an exhibit with appellee's complaint shows a single consideration and that two pieces of real estate are conveyed therein, one of which is not mentioned in appellee's complaint, the wording of this deed would indicate that the consideration mentioned was for the first piece described therein alone, and it is the piece described in appellee's complaint.

[2] The language of the deed affecting the question under discussion is as follows: "This indenture witnesseth, that Thomas Hanlon and wife vey and warrant unto




94; Lloyd v. Sandusky, 203 Ill. 621, 68 N. E. | no application by appellant for a continuance after the amendment was made, and that the evidence is not in the record, there is nothing disclosed by the record from which this court can say that the trial court, in permitting such amendment, abused the discretion lodged in it by the sections of statute, supra. This conclusion is supported by the authorities just cited. We find no available error in the record. Judgment affirmed.

[4] The reply alleged in brief that the appellant represented to appellee that he was the owner of the tract of land described in the complaint (also described in such reply) and offered to sell the same to appellee for $1,000, in consideration of which sum appellant agreed to execute to appellee a warranty deed for such tract; that appellee accepted such offer and paid appellant the $1,000, in consideration of which the appellant executed a deed which is set out in the reply. It is then averred that by such deed appellant intended to deed and include in the warranty therein the real estate before described, being the same as that set out in the complaint and that which the appellant had undertaken to deed for said sum of $1,000; that by mutual mistake of the parties such deed covered only a part, etc.; and that the deed mentioned in the complaint was made to correct said first deed. These facts clearly show that the deed filed as an exhibit with the complaint was made to correct a previous deed by which it had been intended to deed the real estate described in the complaint, and that the consideration originally paid for such real estate was $1,000. A deed of correction relates back to the time of the original conveyance and takes the place of it. Pittsburgh, etc., Co. v. Beck, 152 Ind. 421, 428, 53 N. E. 439. It follows that the consideration of the first deed was likewise the consideration for the last, and that the facts set up in such reply, if necessary to be specially pleaded, were sufficient to avoid ap

pellant's answer of no consideration.

[5] Of course, if proof of the facts so pleaded were admissible under the general denial, and the reply amounted to no more than an argumentative denial of the answer, no harm could have resulted from overruling the demurrer thereto. Appellant also insists that the deed set out in the reply, like that filed with the complaint, shows but one consideration for the two tracts and urges against the reply the same objections urged against the complaint. The reply avers that the $1,000 consideration was in fact paid for the tract, the title to which is alleged to be defective; and what we have said in discussing the sufficiency of the complaint applies with equal force to this objection to the reply.

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Since a suit to enforce a mechanic's lien is equitable, the fact that defendant gave a bond to release the property from the lien does not make the action one for money only, triable by jury.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 40-60, 66-83; Dec. Dig. § 14.*] 2. TRIAL (§ 405*)-CONCLUSIONS OF LAWEXCEPTION.

fendants, error was assigned to the first and
In an action in which there were two de-
third conclusions of law; the second being fa-
vorable to defendant K. After the signature of
the judge to the conclusions of law, the record
showed the entry, "to all of which defendant
K. excepted separately and severally.” Held,
that the exception, though separate as to de-
fendant K., was joint as to the conclusions of

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


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ADAMS, C. J. This was an action by appellees against appellant and the KnightBrinkerhoff Piano Company to enforce the collection of a balance claimed to be due appellees as contractors in the erection of certain buildings for the piano company, and to foreclose a mechanic's lien thereon. Before the issues were closed, appellant, pursuant to section 8304, Burns 1908, filed his bond with surety, conditioned as provided by law, which bond was approved by the court, and the property released from the lien. On request, the court made a special finding In view of the fact that the record shows of facts, stated conclusions of law thereon

[6] It may be said with reference to the third error before indicated that the statute gives the trial court a very wide discretion in the matter of amendments of the pleadings to conform to the proof. Burns' R. S. 1908, §§ 400, 403, and 405; Cleveland, etc., Co. v. Miles, 162 Ind. 646, 655, 70 N. E. 985; Citizens', etc., Co. v. Heath, 29 Ind. App. 395, 399, 62 N. E. 107, and cases there cited; Wood v. Bibbins, supra.

favorable to appellees, and rendered judg- | 2. JUDGMENT (§ 163*)-DEFAULT JUDGMENT— ment accordingly.

The errors assigned are that the court erred: (1) In overruling appellant's motion for a new trial; (2) in stating its conclusion of law No. 1; (3) in stating its conclusion of law No. 3.

[1] Under the first assignment of error, the only point presented is that the court erred in overruling appellant's motion for a trial by jury. The record recites that "defendants each move the court for a trial by jury, as a matter of right, and the court does now overrule each defendant's motion, and trial by jury denied." Appellant insists that, as the lien was discharged by the filing of the bond, the action then became an action at law to recover money only, and was properly triable by a jury. This position is not tenable. The essential nature of an action to foreclose a mechanic's lien is equitable and has always been instituted in this state by a bill in equity. The character of the action cannot be changed during its progress. Scott v. Goldinghorst, 123 Ind. 268, 271, 24 N. E. 333; Albrecht v. Foster, etc., Co., 126 Ind.

318, 319, 26 N. E. 157.


of a default on a definite theory, filing an affiWhere defendants moved for the vacation davit in support thereof, affidavits, subsequently filed in support of the motion, which did not support the facts stated in the original affidavit, cannot be considered, for a party must proceed upon some definite theory and stand or fall thereon.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 323; Dec. Dig. § 163.*]

Appeal from Superior Court, Lake County; John A. Gavit, Special Judge.

Action by Ernst Tosetti and others against Paul Vapinski and another. There was a default judgment for plaintiffs, and, from an order denying defendants' motion to open the default, they appeal. Affirmed.

James W. Brissey, of Indiana Harbor, for appellants. Reilly & Hardy, of Hammond, for appellees.

LAIRY, J. This appeal is taken from a judgment refusing to set aside a default and open up a judgment rendered by the court in favor of appellee and against appellants on April 28, 1909. Appellant Paul Vapinski, [2, 3] As to the second error assigned, the on the 1st day of August, 1910, filed his mocourt, on its findings of fact, stated three tion supported by affidavits by which he conclusions of law, of which the first and sought to be relieved from such judgment upon the ground that the default was taken third are assigned as error. The second conclusion was favorable to the Knight-Brink- and the judgment rendered against him erhoff Piano Company. Immediately follow-through his mistake, inadvertence, and exing the signature of the trial judge to the cusable neglect. The proceeding is based upconclusions of law, the record shows this on section 405, Burns 1908. entry: "To all of which the defendant Frank

[1] Appellant wholly fails to disclose such

affidavit which relates to this subject is as follows: "That after said suit was filed in

A. Knight now excepts separately and sever- a case of mistake, inadvertence, surprise, or ally." In view of the fact that there were excusable neglect as will entitle him to retwo defendants, the exception must be deem-lief under the provisions of the statute to ed to be several as to the defendant, Knight, which we have referred. The portion of his but joint as to the conclusions of law. It is well settled that a joint exception to more than one conclusion of law presents no question if any one is correct. In the case at bar, only the first and third conclusions of law are assigned as error. The joint exception must therefore fail. Taylor v. Canaday, 155 Ind. 671, 676, 57 N. E. 524, 59 N. E. 20; Rader v. Sheets, 26 Ind. App. 479, 480, 59 N. E. 1090; Schrage v. McCoy, 28 Ind. App. 434, 436, 63 N. E. 50.

Judgment affirmed.

(53 Ind. App. 547)

VAPINSKI et al. v. TOSETTI et al. (No. 8,021.)

the above cause this affiant desired to resist the same, and in conformity to such desire did employ and pay a retainer fee to T. M. C. Hembroff, who was a first-class attorney and in good standing at this bar; that it was the intention and desire of this affiant that this action should be resisted, and all due preparations made to combat the same; that affiant fully believed that his attorney would prepare his defense in due time, but he did not do so, and failed to enter his appearance in such case, all without the knowledge of this affiant; and that thereafter, to wit, on the 25th day of April, 1909, judgment by default was taken against this

(Appellate Court of Indiana, Division No. 2. plaintiff and his said wife, and in the sum

June 6, 1913.)


The negligence of the attorney is the negligence of the client, and a default suffered through the negligence of an attorney will not be set aside unless facts are stated which show such neglect to be excusable.

[Ed. Note. For other cases, see Judgment, Cent. Dig. 8$ 269, 270, 272-291; Dec. Dig. § 143.*]

of $2,340.90, by plaintiff in said cause." The courts of this state have repeatedly held that the negligence of the attorney is the negligence of the client, and that a default suffered through the neglect of an attorney will not be set aside, unless facts are stated which show such neglect to be excusable. Carr v. First National Bank, 35 Ind. App. 216, 73 N. E. 947, 111 Am. St. Rep. 159;

Moore v. Horner, 146 Ind. 287, 45 N. E. 341, | mandatory and each informs the jury that and cases there cited.

[2] Subsequent to the filing of his motion and affidavit, appellant filed two additional affidavits in support of his motion. The facts stated in these affidavits do not support the facts stated in the affidavit of appellant upon which the motion to set aside the judgment is based. The facts stated in these affidavits cannot be considered. Appellant must proceed upon some definite theory, and he must stand or fall on the facts stated in his affidavit upon which the motion is based. The judgment of the trial court is correct, and the judgment is affirmed.

(54 Ind. App. 512)

RHEA V. SAWYER. (No. 8,017.) 1 (Appellate Court of Indiana, Division No. 2. June 4, 1913.)


plaintiff was entitled to recover in the event that she had proved certain facts by a fair preponderance of the evidence. Freedom of the plaintiff from contributory negligence was not mentioned or enumerated as one of the facts necessary to be proved in order to entitle her to a recovery.

[1] In action for damages resulting from personal injuries or the death of any person, contributory negligence is a defense, the burden of proving which is placed, by statute, upon the defendant. Burns 1908, § 362. The rule as to the burden of proof on the question of contributory negligence as it formerly existed in this state is not changed by this statute in any cases which do not fall within one of the classes enumerated in the act. Cincinnati, etc., Street R. Co. v. Klump, 37 Ind. App. 660, 77 N. E. 869; Cleveland, etc., St. R. Co. v. Stevens, 96 N. E. 493. In cases such as this the burden of alleging and proving that the plaintiff was free from fault contributing to the injury rests with such plaintiff, and there can be no recovery in the absence of such proof.

[2] The instructions in question were all

Burns' Ann. St. 1908, § 362, providing that, in actions for personal injuries or death of any person, contributory negligence shall be a matter of defense the burden of proving which is on defendant, does not change the rule as to the burden of proof on the issue of contributory negligence in other cases, and plain-fatally defective for the reason that they tiff in other cases must to recover allege and prove freedom from contributory negligence. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 221-223, 229-234; Dec. Dig. § 122.*]


The error in an instruction, arising from the fact that it authorizes a recovery by plaintiff without requiring a finding as a prerequisite that he was free from contributory negligence, cannot be cured by other instructions correctly stating the law.

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

Appeal from Circuit Court, Wells County; Charles E. Sturges, Judge.

Action by Litta Sawyer against Thomas J. Rhea. From a judgment for plaintiff, defendant appeals. Reversed for new trial.

Abram Simmons and Frank C. Dailey, both of Bluffton, for appellant. William H. Eichhorn and Edwin C. Vaughn, both of Bluffton, for appellee.

LAIRY, J. Appellee recovered a judgment in the Wells circuit court for damages resulting from the death of two colts. The complaint is in two paragraphs, both of which proceed upon the theory that appellant was guilty of negligence in castrating the colts, and that they died as a result of such negligence. Appellant relies for reversal upon the fifth, ninth, and tenth causes assigned for a new trial. Those assignments call in question the correctness of the first, fifth, and sixth instructions given by the court at the request of appellee. All of these instructions All of these instructions are open to the same objection. They are all

authorized a recovery by the plaintiff without requiring the jury to find as a prerequisite to such recovery that plaintiff was not guilty of contributory negligence. Dudley et al. v. State, 40 Ind. App. 74, 81 N. E. 89; Voris v. Shotts et al., 20 Ind. App. 220, 50 N. E. 484.

It has been frequently held that the error contained in these instructions cannot be cured by the giving of other instructions correctly stating the law. Nickey v. Steuder, 164 Ind. 189, 73 N. E. 117; Rahke v. State, 168 Ind. 615, 81 N. E. 584; Lake Shore, etc., R. Co. v. Johnson, 172 Ind. 548, 88 N. E. 849.

Upon the authority of the cases cited, we are constrained to reverse the judgment of the trial court, with directions to sustain appellant's motion for a new trial.

(53 Ind. App. 490) TIMMONS v. KENRICK. (No. 7,978.) (Appellate Court of Indiana, Division No. 2. June 3, 1913.)


An instruction that if defendant requested plaintiff to have sexual intercourse with him, in a rude and insolent manner and with force took hold of her, hugged and kissed her, felt clothing, all of the time imploring her to have of her breasts, and attempted to raise her sexual intercourse, all of which was against plaintiff's will, to find for plaintiff, without stating that the assault and battery must be unlawful, was proper since every assault and battery is unlawful, and the province of the jury is to find the facts as to the acts constituting assault and battery, and not to decide whether such acts are unlawful.

[Ed. Note.-For other cases, other cases, see Assault and Battery, Cent. Dig. §§ 57-59, 61, 62; Dec. Dig. § 43.*]

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

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