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exhibiting the above agreement, alleged that, in conformance with the said agreement, a loan of $29,650 was made to appellant by appellee on March 15, 1916, on which date appellant executed to appellee its note for said $29,650, indorsed by Hunt and Latta, and that under the terms of the agreement said note and loan were secured by warranty deeds to certain described real estate; that said note was renewed every 90 days until March 17, 1921, on which date the renewal note here sued on was executed. The renewal note was not indorsed by Hunt and Latta, and bore 7 per cent. interest. It was further alleged that said note of March 17, 1921, was past due and unpaid, and appellee asked that the deeds covering said real estate and securing said note be adjudged mortgages and foreclosed.

Motions to make said second paragraph more specific, and demurrers challenging the sufficiency of facts stated therein, were overruled. Appellant Pivot City Realty Company answered said second paragraph with a denial, and with a partial answer denying that the note exhibited was secured with the trust agreement. Said Pivot City Realty Company also filed counterclaim to recoup for usury, and appellee State Savings & Trust Company answered with a general denial. Appellants Hunt and Latta each answered the second paragraph of complaint, alleging that they did not sign by indorsement, nor otherwise, the promissory note filed with the complaint, and averred facts to show that said promissory note was the outgrowth of a novation, whereby Hunt and Latta were released. The Pivot City Realty Company, Will H. Latta, Carrie H. Latta, and Edwin A. Hunt answered, for further defense, that the cause of action sued on was fully paid before the bringing of the action, Appellants, except the Pivot City Realty Company, for further separate and several and partial answer of non est factum, to so much of the complaint as declared upon the promissory note of March 17, 1921, said that said note was not his act and deed. Appellee replied by general denial to all special

answers.

There were also cross-complaints setting up tax deeds, on which title to real estate was claimed. It was adjudged, at the trial, that none of said tax deeds conveyed title, but created only a lien. The holders of these tax liens were made parties appellee, but appellants ask no relief against them.

There was a special finding of facts, and the court, among other things, found the facts to be substantially as alleged in the complaint; that on March 15, 1916, appellant gave to appellee its note, indorsed by Hunt and Latta, for a loan of $29,650, as provided for in the original agreement of February 18, 1916, said note calling for interest and attorney fees; that said note was renewed every 90 days until March 17, 1921, on

which date the Pivot City Realty Company executed to appellee its note which is here sued on; that said renewal note was executed pursuant to the terms and conditions of the original agreement and the extensions thereof, as the last renewal note for and representing the original indebtedness to appellee of $29,650; that said note was intended to be in payment of all previous notes, and that it was due and unpaid; that the warranty deeds conveying certain real estate were intended to secure the payment of moneys loaned by the Savings & Trust Company to the Pivot City Realty Company pursuant to the terms of the agreement of February 18, 1916; that after adding certain taxes and charges against said real estate to appellees' demand under the terms of said written agreement, and after the deduction of certain payments made to appellee by appellant, the amount due the State Savings & Trust Company from the Pivot City Realty Company was $27,143.03, which amount included $2,000 attorney fees; that appellee did not receive any money from appellants or either of them by by way of interest for the use of money loaned appellants as herein found, which was in excess of the legal rate of interest, and that no money was paid or contracted to be paid by the Pivot City Realty Company for the use of money borrowed by it from appellee as shown in these findings in excess of the legal rate of interest; that portions of said real estate were sold for taxes to each of the five crosscomplainants, and that each of said crosscomplainants holds a tax lien thereon for certain sums of money.

The court's conclusions of law were, in effect, that appellee and each of the five crosscomplainants were entitled to recover, as against the land, the sum of money found due them and to the foreclosure of their respective liens and the sale of such lands to pay them, and that appellee was entitled to a judgment against the Pivot City Realty Company upon the note sued on for $27,143.03, which included $2,000 attorney fees.

Appellants severally excepted to each conclusion of law, and, with the exception of the Pivot City Realty Company, severally moved for judgment on the facts found specially. The motions were overruled, and exceptions were taken. Judgment was rendered on the conclusions of law as stated. Appellants' motion for a new trial, and also their motion to modify the judgment, were overruled.

The errors assigned are the action of the court in overruling the motion to make the complaint as amended, and also the second paragraph of complaint, more specific; in overruling the demurrer to the second paragraph of complaint; in denying the motion of appellants for judgment on the special finding of facts; in each of the court's first, second, eighth, and ninth conclusions of law; in overruling the motion for a new trial; and

(162 N.E.)

in overruling the motion to modify the judg

ment.

[1] There was no error in the overruling of the motion of the Pivot City Realty Company to make the amended complaint more specific In the case of Terre Haute, etc., Traction Co. v. McDermott, 82 Ind. App. 134, at page 138, 144 N. E. 620, 621, the court said:

"Even if a motion to require a pleading to be made more specific might properly be sustained, the action of the court in overruling the motion is not always reversible error."

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In the case at bar there is nothing to indicate that said Pivot City Realty Company suffered or was harmed by reason of said ruling.

[2] If there was any error in the overruling of the motion of Will H. Latta to make the second paragraph of complaint more specific or in the overruling of the separate demurrers of Latta and Hunt to said second paragraph of complaint, it was harmless, as the final decision was in their favor and no personal judgment was rendered against them, but only against the Pivot City Realty

Company.

[3, 4] There was no error in the court's first, second, eighth, or ninth conclusions of law. Under said assignment of error appellants contend that there was no showing in the record that any attorney of appellee's had ever been admitted to practice law in this state, and that the allowance of $2,000 attorney fees was too large and not supported by any evidence. The record shows that Michael Ryan was conducting the case on behalf of appellee; that he called as a witness one Martin M. Hugg, who testified that he was a practicing attorney and was acquainted with the reasonable value of attorney services, and, after having the issues in the cause stated, and the amount involved, was asked what would be a reasonable fee for ap pellee's attorney. Answer:

"I would say that $2,500 is a reasonable attorney's fee for those services. I am assuming that you are having a trial, as I see you are having here, and that the questions that you have stated are being pressed."

This is not an action by an attorney to recover for services rendered, and it was not error to include in the judgment the amount of attorney fees, which, under the evidence, was reasonable.

[5] Appellants further contend that since the court found that the note sued on was given in payment of all previous notes, the indebtedness was paid before the bringing of the action. The court also found that the note in suit was given under the original agreement and the extensions thereof. The mere fact that renewal notes were given for the same debt would not release the security, and by the terms of the agreement the last note was secured by the conveyance of said real estate the same as the preceding notes. The substitution of a renewal note for a previous note would not discharge the indebtedness for which the original note was given, as the real estate conveyed under the provisions of the written agreement was to be held as security for the debt. In the case of Jouchert v. Johnson, 108 Ind. 436, 9 N. E. 413, the court said:

"The transaction is to be inspected in all its parts, and the intent of the parties, as discovered from all the circumstances, is to control in its interpretation. Thus it is uniformly held, that the presumption of payment, which ordinarily arises from the giving of a note governed by the law merchant, will be controlled when its effect would be to deprive the party who takes the note of a collateral security, or any other substantial benefit. In such cases the presumption of payment is rebutted by the circumstances of the transaction itself."

See Kelley v. York et al., 183 Ind. 628, 109 N. E. 772.

[6] Appellant Pivot City Realty Company's contention that the 2 per cent. yearly commission charged by appellee on the $50,000 as provided for in the written agreement was usurious is not meritorious. In the special findings the court found:

"That plaintiff did not at any time receive any interest from defendants or either of them by way of interest for the use of money loaned defendants, as herein found, which was in excess of the rate allowed by law," and "that no money was paid or contracted to be paid to plaintiff by the Pivot City Realty Company for the use of the money borrowed by it from plaintiff as shown in these findings, in excess of the legal rate of interest."

The commission thus provided for was to compensate appellee State Savings & Trust Company for being at all times prepared to loan appellant the full amount of the $50,000, for the extra work in making the renewals and accepting of conveyances, and for reconveying by appellee as provided for in the found that the contract was illegal or unfair written agreement. The court has nowhere as between the parties under the circumstances involved.

Appellants each filed a separate motion for a new trial, assigning as error the action of the court in overruling objections to the introduction of certain exhibits offered in evidence, and the overruling of objections to certain interrogatories and answers thereto.

Without discussing each of these objections
separately, it is sufficient to say that we have
gone over them carefully and find no reversi-
ble error.
Several of the same questions
were involved in the motions to make more
specific, and the demurrers of Latta and
Hunt, resulting as heretofore indicated.
Neither was there error in overruling the mo-
tion to modify the judgment. There is evi-
dence to sustain the finding of facts, and the
judgment was not excessive and was in con-
formity with the conclusions of law.
Affirmed.

DAUSMAN, J., absent.

GENERAL AMERICAN TANK CAR CORPO-
RATION v. MCLAUGHLIN. (No. 13089.)
Appellate Court of Indiana, in Banc. Feb. 24,

1928.

Rehearing Denied March 29, 1928.

1. Master and servant 403-Burden of proof Is on applicant for workman's compensation. Burden of proof is always on applicant to establish his claim for workman's compensation.

2. Master and servant

416-Industrial Board, in determining claim for workman's compensation, may weigh evidence and draw reasonable inferences from facts deemed established. In determining whether applicant has discharged burden to establish claim for workman's compensation, Industrial Board may not only weigh evidence, but may also draw reasonable inferences from such facts as it deems established thereby.

3. Master and servant

417(7)-Appellate Court must accept facts found by Industrial Board as true, unless evidence is so conclusive as to force contrary conclusion.

When Industrial Board has reached conclusion as to ultimate facts which have or have not been established in workmen's compensation proceeding, Appellate Court must accept facts so found as true, unless evidence is of such conclusive character as to force contrary conclusion.

4. Master and servant 405 (4)—Evidence held to sustain award for injury to employee's

ankle.

Evidence held sufficient to sustain Industrial Board's award of compensation for injury alleged to have been received during employment.

5. Master and servant 397-Where employer contested compensation claim, Industrial Board had jurisdiction, though there was no finding of dispute between parties.

Where employer appeared and contested right to compensation claimed, Industrial Board had jurisdiction of compensation proceeding, though there was no finding that, at time ap

plication was filed, there was dispute or disagreement between the parties, since in such cases it is not necessary for board to find that there was dispute between parties, because fact is apparent on face of record.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Law by Grant McLaughlin, claimant, for injuries, against the General American Tank Car Corporation, employer. The Industrial Board granted an award, and the employer appeals. Affirmed.

Gavit, Hall, Smith & Gavit, of Gary, for appellant.

D. P. Sevald, of Hammond, for appellee.

THOMPSON, J. On January 12, 1927, appellee filed with the Industrial Board an application for compensation, alleging that on November 10, 1926, he had received an injury to his ankle while in the employ of appellant. An award, made after a hearing before a single member of the Industrial Board, and later affirmed by the full Board, gave appellee compensation at the rate of $13.20 per week, beginning on November 18, 1926, and continuing during appellee's temporary total disability, not to exceed the period provided by law.

The error assigned is that the award of the Industrial Board is contrary to law. It is appellant's contention that the award is not sustained by sufficient evidence, and that the Industrial Board did not have jurisdiction because of its failure to find that appellant and appellee had attempted and failed to reach an agreement regarding compensation.

[1-3] The burden of proof is always on the applicant to establish his claim, and the Industrial Board, in determining whether such burden has been discharged, may not only weigh the evidence, but may also draw reasonable inferences from such facts as it deems established thereby. When the Industrial Board has reached a conclusion as to the ultimate facts which have or have not been established, this court must accept the facts so found as true, unless the evidence is of such a conclusive character as to force a contrary conclusion. Swing v. Kokomo Steel & Wire Co., 75 Ind. App. 124, 125 N. E. 471. where appellee was employed testified that [4] One or two of the workmen at the plant they saw appellant with his shoe off, and that he said he had hurt his ankle. A nurse and a doctor at the plant hospital or first aid station testified that appellee had appeared there with a badly swollen ankle, and that they treated it several times. Several witnesses who worked with appellee, and knew him, and one witness who had roomed with him, testified that previous to the injury appellee had not complained of having any trouble with his ankle, and that he had not limped. Dr. Parramore, in whose tuberculosis hospital appellee

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(162 N.E.)

was treated for quite a while after the accident for tuberculosis of the bone in the injured ankle, testified that he thought appellee was suffering from a tubercular condition of the bone in the ankle; that such a condition frequently resulted from a sprain or fracture, and that, in his opinion, the condition of appellee's ankle, if it had been injured about a month before, was the result of that injury. It is evident, therefore, that there is evidence to sustain the award.

[5] As to the second of appellant's contentions, that the board did not have jurisdiction because there was no finding that, at the time the application was filed, there was a "dispute" or "disagreement" between the parties

there is no merit. In cases where there is an appearance and a contest as to the right to compensation claimed, it is not necessary for the board to find that there was, prior to the filing of the said application, a "dispute❞ between the parties; that fact is apparent upon the face of the record without such specific finding.

In support of its contention on the question of jurisdiction, appellant cites the cases In re Moore, 79 Ind. App. 470, 138 N. E. 783. In the case of Dye & Son v. Nichols, 81 Ind. App. 13, 141 N. E. 259, the court, referring to In re Moore, supra, said:

"In that case the Industrial Board certified a certain state of facts. The board also

pellee's condition was not the result of any injury received during his employment by appellant. In view of these facts, there is no reason why the rule regarding jurisdiction adopted in this state, as propounded in the case of Dye & Son v. Nichols, supra, should not apply in the present case, and we hold that the Industrial Board did have jurisdiction.

We find no reversible error, and the award is affirmed.

MONTGOMERY et al. v. SOUTHERN SURE-
TY CO. OF IOWA et al. (No. 12951.)
Appellate Court of Indiana, in Banc. April
20, 1928.

between

1. Highways 113(5)-Contract
surety company and construction company
entered into after default of original high-
way contractor held admissible to disprove
allegation that construction company was
agent (Burns' Ann. St. 1926, § 8285).

In action against surety company for materials and labor furnished in construction of

less.

2. Highways 113(5)—Surety company which contracted with state on default of road construction company remained liable on bond to subcontractors, materialmen, and laborers (Burns' Ann. St. 1926, § 8285).

state road projects, on surety company's contract and bond under Acts 1919, c. 53, § 18 (Burns' Ann. St. 1926, § 8285), contract between surety company and construction comcertified as a fact that there was no disagree-tered into direct contract with state on origipany executed after surety company had enment or dispute between the widow and the nal contractor's default held admissible to disemployer as to the liability of the employer prove allegations of complaint that the confor compensation, or as to the rate of compensation. In the instant case there struction company was acting as agent and is no admission on the part of the employer such evidence, if error, was in any case harmservant of surety company, and admission of of liability. In fact, the record shows that the appellants filed an answer of general denial. A large number of witnesses testified on the hearing. The testimony of all these witnesses related to the question as to whether the death of the employee was caused by the alleged stinging by the bees. In other words, appellants contested the application on the ground that the death was not the result of an injury which arose out of and in the course of the employment. If appellants had admitted their liability and if it had appeared that there was no question for the board to determine, appellants might be in a position to take advantage of the rule stated in In re Moore, supra, but they did not do that. They not only denied liability at the hearing before the board, but they are, on appeal, denying all liability and expressly refrain from stating that they would have agreed to allow appellees compensation if an attempt had been made by appellees before the filing of their application to secure such an agreement."

In the case at bar, the appellant appeared before the Industrial Board, and, without filing any answer, contested the claim on its merits, cross-examined appellee and his witnesses, introduced several witnesses in its defense against the claim, and contended earnestly that it was not liable, and that ap

After surety company became liable on its bond under Acts 1919, c. 53, § 18 (Burns' Ann. St. 1926, § 8285), on account of default of road contractor in construction of state road projects, surety company executing new contract, of which terms and conditions of bond were made a part, remained liable for lawful claims of subcontractor's materialmen and laborers for labor and material furnished in performing contract.

3. Highways 113(5)-Claims for equipment sold highway contractor and for repair parts or work thereon held not within contractor's bond; "material" (Burns' Ann. St. 1926, § 8285).

Equipment sold to highway contractor, even though it is used in the construction of the improvement, is not such material as comes within meaning of highway contractor's bond, under Acts 1919, c. 53, § 18 (Burns' Ann. St. 1926, § 8285), covering claims for labor performed and materials furnished in completing contract and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

claims for repair parts for equipment or repair improvement and the bid and bond for perwork thereon are also excluded.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Materials.]

4. Highways 113(5)-Claims against highway contractors for repairing trucks and machinery and for telephone calls, oil, alcohol, semetol, and shellac held not within contractors' bond (Burns' Ann. St. 1926, § 8285). Items of labor performed for highway contractor in repairing contractor's équipment, including trucks, automobiles, mixers, tractors, and tools, and items for telephone calls, gasoline, and oil, alcohol, semetol, and shellac, held

not within bond of contractors under Acts 1919, c. 53, § 18 (Burns' Ann. St. 1926, § 8285), conditioned on payment of claims "for labor performed and material furnished in the carrying forward, performing, and completing of said contract," in action against surety company taking over contract, where none of items entered into or became a part of the work, or were consumed in its completion.

Appeal from Superior Court, Marion County; Linn D. Hay, Judge.

Action by Wilbur A. Montgomery and another against the Southern Surety Company of Iowa and others. From a judgment denying plaintiffs recovery against defendant named, plaintiffs appeal. Affirmed.

Joseph H. Shea and Owen S. Boling, both of Indianapolis, for appellants.

Slaymaker, Turner, Merrell, Adams & Locke, of Indianapolis, for appellees.

NICHOLS, J. Action by appellants against appellees upon a contract executed by them with the state of Indiana to recover for material furnished in the construction of certain state road projects.

By a second paragraph of complaint appellants sought to recover against each of the appellees for goods and merchandise furnished them at their special instance and request.

The original state contract for the construction of these projects was awarded to the Hobbs-Davis Construction Company. It defaulted before entering upon the work, and appellee Southern Surety Company, as surety on the Davis Construction Company bond, became liable for the carrying out of the contract. Subsequent to such default, the surety company entered into a direct contract with the state for the construction of the same projects, and then entered into a contract with appellees Pfizenmayer & Harmon to execute the work, and they gave bond to the surety company for the faithful execution of their contract, and appellees Meredith and Pfizenmayer, Sr., signed such bond as sure

ties.

As a part of the second contract, the plans. profiles, specifications, and drawings for the

formance according to the terms of the Davis Construction Company contract, and for the payment of all lawful claims of subcontractors, materialmen, and laborers, for labor performed and materials furnished in carrying forward, completing, and performing said contract, were included, the surety company agreeing and assenting that the undertaking should be for the benefit of any materialmen or laborers having just claim.

A trial by the court resulted in a finding for appellants against appellees Harmon, Henry Pfizenmayer, Jr., and Meredith; that there is due appellants from said appellees $2,086.44, and a finding for appellees Southern Surety Company of Iowa and Henry Pfizenmayer, Sr., and that appellants take nothing by their complaint as to them.

This appeal is from the judgment on this finding. The overruling of appellants' motion for a new trial is the only error assigned and relied on for reversal.

[1] Appellants complain that the court erred in admitting in evidence, over their objection, the contract between appellee surety company and appellees Pfizenmayer & Harmon for the construction of the improvement involved and the bond executed by said appellees Pfizenmayer & Harmon to the surety company to secure the performance of their contract. But we are not in harmony with appellants' contention in this regard.

One of the averments of the complaint was to the effect that said appellees Pfizenmayer & Harmon were engaged in the construction of the improvement as the agents and servants of appellee surety company. Appellee surety company's answer to the complaint was a general denial, and certainly the subcontract between Pfizenmayer & Harmon and the surety company, together with the bond to secure the performance thereof, was competent evidence to disprove the allegation of the complaint that appellees Pfizenmayer & Harmon were constructing the work as the agents and servants of the surety company. But, even if the admission of such evidence were error, as we view this case we do not see that appellants were harmed thereby.

The Davis Construction Company having defaulted on the original contract, the surety company became liable for the performance of the contract because of the bond which they had executed to secure its performance. Because of such liability, the surety company entered into a contract for the construction of such improvement making their bond executed to secure the performance of the original contract a part of the second contract. This bond was executed in conformity with the requirements of the provision of the statute, being § 8285, Burns' 1926, Acts 1919, p. 127, c. 53, § 18 of the act. This section contains the form of the bond executed by ap

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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