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said court and procuring a summons to be issued by said clerk, which summons shall be served upon the attorney-general of Indiana thirty [30] days before the return day of the summons; and jurisdiction is hereby conferred upon said superior court of Marion county, Indiana, to hear and determine such action, and said court shall be governed by the laws, rules and regulations which govern said superior court in civil actions in the making up of issues, trial and determination of said causes, except that the same shall be tried by all the judges of said court sitting together without a jury."

As stated above, the breach complained of consisted of the failure of the state of Indiana through its highway officials to procure right of way over which appellee could construct the highway which he had contracted to construct, and of mistakes, during the progress of the work, by the engineer of the state highway commission, this failure and these mistakes resulting in the delay of appellee to his damage.

[3] Though the state is one of the parties to the contract, still it must be construed the same as if it were between two individuals. As was said by Elliott, J., in Carr v. State, 127 Ind. 204, 26 N. E. 778, 11 L. R. A. 370, 22 Am. St. Rep. 624, the state in entering into the contract laid aside its sovereignty, and bound itself substantially as one of its citizens does when he enters into a contract. Its contracts are interpreted as the contracts of individuals are, and the law which measures individual rights and responsibilities measures, with few exceptions, those of the state whenever it enters into an ordinary business contract. The Carr Case further states that:

"The principle that a state, in entering into a contract, binds itself substantially as an individual does, under similar circumstances, necessarily carries with it the inseparable and subsidiary rule that it abrogates the power to annul or impair its own contract. It cannot be true that a state is bound by a contract and yet be true that it has power to cast off its obligation and break its faith, since that would involve the manifest contradiction that a state is bound and yet not bound by its obligation. It may have the might and means of defeating the enforcement of a contract, yet, in a just sense, have no power to do so. Might and opportunity do not constitute power in the true sense; to constitute power another element must be present, and that element is right."

This is in harmony with the rule.

[4] It would seem that no citation of authority is needed to establish the equitable rule that if an individual contracts for the construction of any building, it is necessarily implied as a part of his contract that he will furnish a place to build it. And so it was the duty of the state, under its business contract with appellee, by which appellee obligated himself to the state to construct the highway involved, to furnish to appellee, in time not to hinder him in the progress of his

work, a place to construct the highway. This it failed to do even after it had ordered him to commence the work, and thereby put him to great expense in assembling his equipment, paying the rentals therefor, and other incidentals and overhead expenses, greatly to appellee's damage. We are wholly unable to understand why under such circumstances appellant should not be required to reimburse appellee for his loss because of appellant's breach of the contract. The following authorities sustain the conclusion which we

have reached: Schunnemunk Const. Co. v. State, 116 Misc. Rep. 770, 189 N. Y. S. 569; United States v. Behan, 110 U. S. 338, 4 S. Ct. 81, 28 L. Ed. 168; Mulholland v. Mayor, 113 N. Y. 631, 20 N. E. 856; Tobey v. Price, 75 Ill. 645; Brennan v. State, 117 Misc. Rep. 816, 191 N. Y. S. 253; Weeks v. Rector, etc., Trinity Church, 56 App. Div. 195, 67 N. Y. S. 670; Ripley v. United States, 223 U. S. 695, 32 S. Ct. 352, 56 L. Ed. 614.

[5] The specifications, which as a part of the contract were made a part of the complaint, and which were in evidence, expressly provided that appellant's engineer should furnish the contractor with the necessary lines, grades, and measurements. Appellee then being required to follow the engineer's direction, it stands to reason that he should be reimbursed for damages sustained because of the mistakes of such engineer in directing appellee, in the absence of any provision in the contract that there should be no recovery because of such mistakes. But we cannot say that any damages were allowed to appellee because of the engineer's mistakes. The $713.03 claimed therefor in the complaint was a part of appellee's total demand of $21,054.13 for damages sustained while the total damages adjudged were but $13,995. The items of damages claimed that were not allowed do not appear. However, as it seems to us, equity and common honesty says that appellee should not be required to bear the loss occasioned by such failures and mis

takes It may well be conceded that the state is not liable in damages for the neglect of its officers and agents as stated above, but it must be held liable for the breach of its contract even though such breach is the result of the neglect of its officers and agents. We have examined the long list of authorities submitted by appellant, and, without undertaking to review them, we hold that they are not in point under the circumstances of this case.

[6] Appellant next contends that section 45 of, the specifications which provides that "Whenever the work is delayed or suspended through no fault of the contractor or whenever extra or additional work is required, the director shall allow a reasonable extension of time for the final completion of the contract," gives to appellee the only relief to which he is entitled and that

(162 N.E.)

the complaint. We have carefully examined questions with reference to the admissibility of evidence presented by appellant, and we conclude that they are technical rather than substantial, and that appellant was not harmed by the court's ruling upon appellant's ob jection to the evidence offered.

We find no reversible errors, and the judgment is therefore affirmed.

therefore, though the loss sustained is wholly the fault of the state, there can be no recovery therefor. But we are not in harmony with this contention. Clearly it was intended to cover such hindrances as inclement weather, fire, breakage of machinery-such happenings as were not the fault of the contractor, nor of the state. If appellant's contention is to be adopted as the interpretation of the section, then the state, through its highway commission, could greatly damage, possibly bankrupt, any contractor by hindrances such as in this case, and would thereby incur no liability to the contractor. There is no reason, so far as we can see, why a state when it enters into a contract with one of its citizens should not deal with him in accordance with the principles of common honesty, and when it breaches its contract, in- Appellate Court of Indiana, in Banc. Feb. 23,

to which it is assumed it enters in good faith, and thereby damages the party contracting with it, it should not respond in damages just the same as an individual. As we interpret this section, it was intended to relieve appellee from the consequences of any failure on his part because of unavoidable happenings, and was intended as a protection to appellee and not as a limitation upon his right of recovery for damages sustained by reason of the default of appellant. That appellant would commit such a breach of his contract was not within the contemplation of the parties when the section of the specifications was made a part of the contract. Selden, etc., Const. Co. v. Regents, etc. (D. C.) 274 F. 982; Waples Co. v. State, 178 App. Div. 357, 164 N. Y. S. 797; Del Genovese v. Third Ave. R. Co., 13 App. Div. 412, 43 N. Y. S. 8; Wood v. City of Ft. Wayne, 119 U. S. 312, 7 S. Ct. 219, 30 L. Ed. 416.

[7] Appellant correctly states that the complaint shows on its face that appellee proceeded with the contract despite the alle gation as to failure to procure the right of way, and then argues that by so doing he waived the alleged breach of the contract; but we do not understand this to be the law. The rule that should govern under the circumstances of this case is thus stated in 9 C. J. p. 791:

"In case of a delay caused by the owner, the builder is not obliged to abandon the work and sue for damages, but he may proceed to complete the work and then claim damages."

This rule is, in effect, followed in Louisville, etc., R. Co. v. Hollerbach, 105 Ind. 137, 5 N. E. 28.

The court did not err in overruling appel lant's demurrer to the complaint or in sustaining appellee's demurrer to the second, third, and fourth paragraphs of answer, which ruling presents substantially the same questions as were presented by the court's ruling on the demurrer to the complaint. The evidence fully sustains the averment of

DAUSMAN, J., absent.

REFINERS' OIL CO. v. GROCUTT. (No. 13120.)

1928.

1. Explosives 7-Evidence held to warrant finding of negligence in leaving gasoline tank for repairs when defendant ought to have known it had not been sufficiently cleaned.

In action for injuries resulting from explosion of gasoline tank belonging to defendant, which at time of explosion was in plaintiff's shop for repairs, evidence held to warrant finding that defendant was negligent in delivering tank to he ought to have known it had not been suffiplaintiff and asking him to repair it, when ciently cleaned of gasoline.

2. Appeal and error 1026-Before Appellate Court will reverse on evidence, it must appear substantial justice has not been done.

Rule that a new trial should be granted unless it clearly appears that substantial justice has been done applies only in the trial court, and, before appellate tribunal will reverse a judgment on the evidence, it must appear that substantial justice has not been done.

Appeal from Superior Court, Delaware County; Robert F. Murray, Judge.

Action by Thomas J. Grocutt against the Refiners' Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clarence Benadum, of Muncie, for appel

lant.

O'Neill & Bales, of Muncie, for appellee.

MCMAHAN, J. Action by appellee against appellant to recover damages for personal injuries resulting from the explosion of a gasoline tank belonging to appellant, and which at the time of the explosion was in appellee's shop, and was being repaired by him. The complaint alleges that appellant brought the tank to appellee's place of business to be repaired; that upon examination appellee discovered evidence that the tank had not been thoroughly cleaned; that he refused to undertake the making of the repairs unless the tank was thoroughly cleansed of gasoline; that appellant took the tank away and later returned with it and informed ap

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pellee the tank had been thoroughly cleaned and that it was ready to be repaired; that there was then no evidence of gasoline apparent on the outside of the tank or open to the observation of appellee; that, relying upon the statement that the tank had been thoroughly cleansed, appellee started to apply a torch to it, when there was an explosion which caused the injuries for which appellee sued. Appellant contends the verdict is not sustained by sufficient evidence. [1] The tank in question was a large underground tank used for the storage of gaso line. It had been leaking, and on the day of the injury to appellee, Earl W. Bell, who was the manager of appellant's plant at Muncie came to appellee's shop and told him that the tank which was then buried in the ground was leaking, and asked appellee what was the best thing to do with it. Appellee told Bell he had better take it up if he wanted anybody to weld it. Later Bell brought the tank to the shop on a truck, and told appellee to look at it. Appellee did so, and told Bell he would have to clean it out be fore appellee would touch it. Bell took the tank away and later returned it to appellee's place of business, whereupon appellee lit a torch and applied it to one of the connections to be repaired, when there was an explosion which threw appellee a distance of about 25 feet and seriously injured him. When the tank was first brought to appellee's shop it had the appearance of being damp, and had gasoline soaked rags around some of the connections. Earl W. Bell testified that when he took the tank to appellee to be repaired he asked appellee what was the best way to get the gas fumes cleaned out, and that appellee suggested that it be steamed out, and told him where to take it, and that arrangements were made with the Indiana Service Company to have it cleaned. Another employee of appellant testified that he took the tank to the Indiana Service Company and steamed it by pouring into it 120 pounds of steam for 45 minutes after which he took it to appellee's shop; that he removed the gasoline soaked rags when he was engaged in cleaning it.

The tank in question was about 4% feet in diameter and 12 feet long. It was an old welded tank with three connections one of which was broken and needed to be repaired. The explosion was a violent one, and did

considerable damage to the building in which appellee's shop was located. The evidence conclusively shows that the tank had not been thoroughly cleansed of the gasoline which had been in it, and the jury was justified in concluding and finding that appellant was negligent in first taking it to appellee and asking him to fix it when appellant ought to have known that it had not been thoroughly cleaned, and the jury was also justified in finding that appellant was negligent in returning the tank to appellee and requesting him to repair it when appellant ought to have known that it had not been properly and sufficiently cleaned. Appellee had told appellant's manager he would not touch the tank to repair it until it had been thoroughly cleaned, and, when it was taken away for that purpose and later returned to be repaired, appellee had the right to assume that appellant had removed all the gasoline so that it was safe for him to work on it.

[2] Appellant cites a number of cases in support of the proposition that a new trial should be granted unless it clearly appears that substantial justice has been done. Ap pellant overlooks the fact that the rule referred to is the rule applicable in the trial court. In Louisville, etc., R. Co. v. Cook, 12 Ind. App. 109, 38 N. E. 1104, cited by appellant, the court, in discussing this question, said:

"In a case such as this, where the trial judge has seen the witnesses and heard the evidence, it is his duty, if he is satisfied that the jury was not authorized in drawing the inferences which have resulted in the verdict returned, to grant a new trial on the motion of the losing party, but in an appellate court, although the court may entertain grave doubts as to whether a correct conclusion has been reached by the jury, the court cannot disturb the verdict on the evidence if there is any evidence in the record, however, slight it may be, fairly tending to prove the facts which the jury were required to find in order to return the verdict."

Before an appellate tribunal will reverse a judgment on the evidence, it must appear that substantial justice has not been done. Campbell v. Conner, 15 Ind. App. 23, 42 N. E. 688, 43 N. E. 453. Judgment affirmed.

DAUSMAN, J., absent.

UNION SCHOOL TP. OF ST. JOSEPH COUNTY v. MOON. (No. 12819.)

(162 N.E.)
a special appropriation, one not included in
the annual budget, but one growing out of an
emergency. To make such an appropriation
lawful, the fund must be in hand at the time
it is made, and, without a lawful appropria-
tion, there cannot be a valid contract.

Appellate Court of Indiana, in Banc. June 21, 1928.

1. Constitutional law 70(1) Appellate Court cannot make the law, but must enforce statute as Legislature has made it.

The Appellate Court is charged, not with the duty of making the law, but of enforcing the statute as the Legislature has made it.

2. Courts 91(1)-Appellate Court must fol. low Supreme Court's interpretation of the statute.

"The advisory board of a township has no power to make an appropriation for the construction of a schoolhouse, unless there are funds on hand not already appropriated available for that purpose." State v. John, 170 Ind. 233, 84 N. E. 1.

propriated for the particular purpose for which "To show that the money could be legally apit was asked, it was necessary to allege facts showing that there was money on hand in the Appellate Court must follow Supreme fund available, and which was not already apCourt's interpretation of statute.

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propriated." State v. Etcheson, 178 Ind. 592, 99 N. E. 996.

"It has been the uniform holding of this court and the Appellate Court that a contract made without an appropriation to pay the debt thereby incurred is void"-citing authorities State v.

Parish, 180 Ind. 63, 69, 99 N. E. 977, 979.

In each of these cases there was involved the question of a special appropriation. The petition for rehearing is denied.

DAUSMAN, J., absent.

WHITE et al. v. BOARD OF COM'RS OF OWEN COUNTY et al. (No. 13005.)

Appeal from La Porte Circuit Court; M. Appellate Court of Indiana, in Banc. Feb. 23, E. Leliter, Special Judge.

On petition for rehearing. Petition denied. For former opinion, see 161 N. E. 714. Eli F. Seebirt, Lenn J. Oare, and George W. Omacht, all of South Bend, for appellant. Darrow, Rowley & Shields, of La Porte, for appellee.

NICHOLS, C. J. We suggest to counsel for appellee that a careful study of the statute involved and the decisions thereunder may enable them to determine that their characterization of the court's opinion is the result of their own confusion.

[1-5] This court is charged, not with the duty of making the law, but of enforcing the statute as the Legislature has made it, and to that end, where the Supreme Court has spoken as to its meaning, to follow its interpretation. There are general appropriations such as are made by acts of the Legislature, and annually at regular meetings of city councils, county councils, and advisory boards. Such appropriations are necessarily prospective, and in anticipation of revenues to be produced by taxation then provided for. The cases relied on by appellee concern such general appropriations, and are not in point under the facts here involved. Here we have

1928.

Adverse possession 13-Title cannot be acquired by possession not continuous, exclusive, adverse, and under claim of title for statutory period.

Title to real estate cannot be acquired by possession which has not been continuous, exclusive, adverse, and under claim of title for the statutory period.

Appeal from Morgan Circuit Court; Joseph W. Williams, Judge.

Action by Goldie M. White and another against the Board of Commissioners of Owen County, agents and successors in office of James Hensley, County Agent, and others, in which the Board of Commissioners of Owen County and the Board of Trustees of the Town of Spencer each filed a cross-complaint. From a judgment in favor of the named defendants, the complainants appeal. Affirmed. Slinkard & Slinkard, of Bloomfield, for appellants.

NICHOLS, J. Action by appellants against appellees to quiet title to certain real estate situate in Owen county, state of Indiana. To the complaint, in two paragraphs, there was an answer in denial by each appellee. Each

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appellee filed a cross-complaint, which was answered by a general denial. Trial by the court, which resulted in special findings of fact and conclusions of law in favor of appellee, on which judgment was rendered. The error assigned is the court's conclusions of law.

It appears by the findings that, for the purpose of procuring the location of the county seat, and as a donation, Richard Beem and his wife, on July 11, 1827, executed to the county agent of Owen county a warranty deed for 702 acres of land, and that, for the same purpose, on July 13, 1828, Joseph Bartholomew executed to the county agent of Owen county a deed for 30 acres of land. These two tracts, we do not need to determine which one, include the land here in dispute. The court further finds that no deed was ever executed by Owen county, conveying or attempting to convey the land in dispute, but that the record title thereof has always remained in Owen county, except that deeds have been executed within the last 25 or 30 years by parties who were neither original nor successive grantees of Owen county. It appears by the findings that appellants, and their successive grantors, had not held a continuous and exclusive and adverse possession of the real estate in dispute during the statutory period of limitations, but that a part of it has been used for a public highway, and the remainder of it at different times during the statutory period by the public in divers

ways.

Appellants cannot prevail in this action, for the reason that there is no finding that they have held the real estate for the statutory period adversely and exclusively under claim of title. We do not need to decide as to whether title to real estate, as against the state, can be acquired by adverse possession. Neither appellees nor their counsel have favored us with a brief answering appellant's brief. Because of this apparent neglect of duty, if we have failed to state clearly the findings involved and the law applicable thereto, appellee may not complain. Judgment affirmed.

McKEE et al. v. HARWOOD AUTOMOTIVE
CO. (No. 13033.)

Appellate Court of Indiana, in Banc. Feb. 23,
1928.

1. Principal and surety 118-Release
28(1)-Generally, release of one joint obligor
is release of all, whether principals or sure-
ties.

It is a general rule that, where one joint obligor is released from payment, all the parties, whether principals or sureties, are leased.

re

2. Principal and surety 8-Minor's disaffirmance of contract and note held not release of his sureties.

Where defendants signed note as sureties for minor, held minor's disaffirmance of contract did not operate to release his sureties under rule that release of one joint obligor is release of all, whether principals or sureties.

Appeal from Grant Circuit Court, J. F. Charles, Judge.

Action by the Harwood Automotive Company against Clement B. McKee and another. Judgment for plaintiff, and defendants appeal. Affirmed.

D. M. Bell and John A. Kersey, both of Marion, for appellants.

Condo & Batton, of Marion, for appellee.

THOMPSON, J. There was an agreed statement of facts in this case which was submitted in lieu of the introduction of evidence, which is, in substance, as follows: That Clyde McKee purchased from the appellee herein an automobile, making a down payment of $11.40, and agreeing to pay the balance of $570 in installments at the rate of $11.40 per week; that to secure said contract he gave appellee a note signed by himself and by the appellants herein; that, at the time of said purchase and the making of said note, said Clyde McKee was a minor and was known by all parties to the transaction to be such; that said Clyde McKee received the entire consideration for said contract, and that appellants signed said note only as sureties; that said Clyde McKee paid a total of $197 on the automobile, after which he disaffirmed the contract, returned the automobile to the appellee and demanded the return of the money which he had already paid in on the machine; that appellee refused said demand, whereupon said Clyde McKee sued appellee for said money.

The appellee filed a cross-complaint to recover from appellants herein, as sureties on the note, for the balance remaining unpaid on said contract of purchase. Appellants filed answer in two paragraphs, and appellee replied by general denial. There was a finding in favor of appellee against appellants as sureties. Appellants then filed a motion for a new trial as to the issues made on the cross-complaint, on the grounds: (1) That the decision of the court was not sustained by sufficient evidence; and (2) that the decision of the court was contrary to law. Said motion was overruled, and judgment was rendered in favor of appellee.

The error assigned for reversal is the action of the court in overruling the motion for a new trial.

[1] The only question arising on this appeal is as to the liability of appellants as sureties on the note. Appellants earnestly

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