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the erroneous ruling did not prejudice the adverse party, and that the cause was fairly tried and determined upon its merits, it is our duty to affirm regardless of the erroneous ruling. For a full discussion of this question, see the following authorities: Vulcan, etc., Co. v. Electro, etc., Co., 54 Ind. App. 28, 99 N. E. 429, 100 N. E. 307; Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258, 98 N. E. 177; Indiana Life, etc., Co. v. Patterson, 55 Ind. App. 296, 103 N. E. 817; Euler v. Euler, 55 Ind. App. 558, 102 N. E. 856; Pittsburg, etc., R. Co. v. Rushton (Ind. App.) 148 N. E. 337, 149 N. E. 652; Rowlett v. Cockrill (Ind. App.) 156 N. E. 181; Maryland, etc., Co. v. Harris (Ind. App.) 154 N. E. 36.

There was no irreconcilable conflict between the answers to interrogatories and the general verdict, and the court did not err in overruling appellant's motion for judgment on such answers notwithstanding the general verdict. Nothing can be gained by further discussion of this question. The evidence is ample to sustain the verdict. Affirmed.

DAUSMAN, J., absent.

ENLOE, J. I cannot give my assent to an affirmance of this case. In my opinion the complaint in this case was bad on demurrer, and the evidence is not of such a character that, on appeal, we can deem said complaint to have been amended. If the injuries sustained by the appellee were such as were cov-. ered by said policy, then she was entitled to a judgment in her favor; otherwise not. This requires a consideration, first, of the terms of said policy, and, second, of the evidence introduced. By the terms of said policy she was protected during the life thereof against disability "resulting directly independently and exclusively of all other causes, from bodily injuries effected solely through external, violent and accidental means and sustained by the insured in the manner following: "Part 1. By the wrecking or disablement of any private horse-drawn vehicle or motor-driven ve hicle, in which the insured is riding or driving, or by being accidentally thrown from such vehicle or car." (Our italics.)

The evidence offered in this case shows the following facts: The appellee was riding in the rear seat of an automobile; this machine came into collision, "head-on," with another automobile; by the force of the collision the appellee was thrown violently against and across the front seat of the automobile in which she was riding and thereby injured.

As to the car in which appellee was riding, the testimony shows that as a result of said collision the front axle thereof was sprung and bent, the radius rod was bent, and the spindle of one of the front wheels was bent and the front wheels "out of line."

We may concede that, technically, as a result of said collision, the automobile in which appellee was riding was wrecked, but appellee certainly was not "thrown from” said car, and the questions remain: Was it the bending of the said front axle that caused her injury? Was it the bending of the radius rod that caused the injury? Was it the bending of the spindle that caused the injury? Was it the combination of all of these that caused the injury? So far as the testimony is concerned these were the only parts of the car in which appellee was riding that were in any way injured, and, obviously, it cannot be said that the bending of either or all of these parts was the direct proximate cause of appellee's injuries. She was injured, not by such wrecking of the car, but by the force of the impact of the two cars-the force of the collisiona hazard not covered by said policy. By its plain terms said policy covers only such injuries as are the direct and proximate result of the wrecking of a car. In my judgment this cause should be reversed.

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forbear forfeiture to be valid must be for definite time.

An agreement to forbear exercise of right to declare forfeiture of land contract for de

fault in payment to be valid must provide for a definite time of forbearance.

3. Vendor and purchaser 82-Oral agree. ment for extension of time held ineffective to change written agreement by accelerating time for future payment (Burns' Ann. St. 1926, § 8045).

Vendor's oral agreement with purchaser, unable to make payment due, to forbear forfeiture on condition that purchaser pay balance of purchase price on a certain date when a part of it would not be yet due, held ineffective, as a modification of the prior written contract, in view of Burns' Ann. St. 1926, § 8045. 4. Vendor and purchaser 95 (2)—Vendor accepting payments of interest under oral agreement for extension could not keep them and forfeit for nonpayment according to original contract.

Vendor of land agreeing to extend time for payment, if purchaser would pay certain interest

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

(162 N.E.)

and taxes, and accepting payments of interest pursuant to such agreement, could not retain it and same time obtain equitable relief by way of forfeiture of contract for nonpayment pursuant to its terms.

5. Vendor and purchaser 104-On vendor's failure to establish right of forfeiture, purchaser was entitled to statement of account and establishment of time for paying balance. In vendor's action to annul contract and forfeit payments made, defendant, on showing that plaintiff was not entitled to relief sought, was entitled to have an account stated between the parties and a time fixed within which payment should be made into court in fulfillment of terms of contract.

and determined and all payments made thereon retained by said bank in satisfaction of damages sustained, and that it might re-enter and take possession of said premises; that there was also an allegation in said complaint that said contract had been recorded in the office of the recorder of Lake county; that such recording was unauthorized by law because said contract had not been acknowledged before a notary public; that the record of said contract cast a cloud upon the plaintiff's title. The prayer of the complaint was that the recording of said contract and the cloud thereby created should be canceled, rescinded, set aside, and held for naught; that the rights and claims of the

Appeal from Superior Court, Lake County; defendant be determined and forfeited; Maurice E. Crites, Judge.

Suit by Harry W. Cawley and others against Meyer Nagdeman and others. Decree for plaintiffs, and defendants appeal. Reversed, with instructions for new trial. Superseding former opinion in 158 N. E.

906.

Wm. J. Whinery, of Hammond, for appellants.

Glenn D. Peters and Bomberger, Peters & Northland, all of Hammond, for appellees.

ENLOE, J. On August 8, 1923, the First National Bank of Hammond, Ind., which bank, as trustee for Harry W. Cawley and E. Maie Cawley, held the legal title to certain lots in the city of Hammond, Ind., entered into a written contract with the appellant Meyer Nagdeman for the sale of said lots to said Nagdeman for the sum of $6,000, of which purchase price the sum of $1,000 was then and there paid in cash. The said contract provided that the remainder of said purchase price should be paid as follows: $2,500, with interest thereon at 7 per cent., on December 8, 1923, and $2,500, with interest thereon to be paid semiannually, at 7 per cent., on August 8, 1924.

The complaint herein was filed and this action commenced on June 24, 1924. In the complaint it was alleged that the defendant (appellant Meyer Nagdeman) had "failed and refused to pay on said day and date said sum of twenty-five hundred ($2,500.00)” due on December 8, 1923, "but the same remains in default." This was the only breach of said contract alleged in said complaint.

A copy of said contract of sale was attached to said complaint and, by reference, made a part thereof. In said contract it was provided that, if said Nagdeman should fail to perform any of the covenants set out in said contract, by him to be performed, then said contract should become a lease, and money paid on said contract should be retained as rental for said premises. It also provided that the said contract, at the option of said bank, upon such failure might be forfeited

that the defendant be enjoined and restrained from asserting, setting up, or claiming any right, title, or interest in and to said real estate; and that the title thereto should be quieted and forever set at rest in the plaintiff First National Bank of Hammond, Ind., as trustee.

This complaint the appellants answered by a general denial. The appellant Meyer Nagdeman filed a second pleading, which, in the briefs, is spoken of as a second paragraph of answer, but which is really a cross-complaint, in which he denied that he had breached said contract, and in which he alleged that he had complied therewith; that he had made all payments required of him, and had tendered to the said bank each and all of the payments which had fallen due before suit brought, and that said bank had refused to accept such payments; that he was in the peaceable and lawful possession of said property as the purchaser and owner thereof under said contract, and that he stood ready, able, and willing to fully complete and carry out said contract; and he asked the court to make and state an account between the parties, fix and declare the amount due under said contract, and to fix a time within which the same should be paid, etc. This crosscomplaint was answered by a general denial, and the issues thus formed were submitted to the court for trial and resulted in a decree that the said contract of purchase "be and the same is hereby canceled, rescinded, forfeited, determined, and held for naught." The decree also provided that the record of said contract should be canceled; that the defendants be enjoined and restrained from asserting or claiming any right, title, or interest in and to said premises; and that the title of said bank, as trustee, should be quieted and forever set at rest. From the action of the court in overruling a motion for a new trial, separate and several as to each defendant, this appeal is prosecuted. The matters presented and necessary to be considered in deciding this case are those hereinafter noticed.

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

The record herein discloses the following facts, without dispute or controversy: That the said contract of sale provided that, as to time of payment of money due thereunder, "time should be of the essence of the contract"; that early in December, 1923, Meyer Nagdeman had a conversation with appellee Harry W. Cawley, one of the beneficial owners of said property, and informed said Cawley that he would not be able to meet his payment of $2,500 falling due December 8, 1923, and that he asked Cawley for more time; that it was then agreed that, if said Nagdeman would pay all interest accrued on said notes up to December 8, 1923, additional time would be given; that accordingly, on December 7, 1923, Nagdeman paid to said bank, trustee, the sum of $116.68, the same being such interest in full to said date; that in March, 1924, another agreement was made, and that, in pursuance of such agreement made between Nagdeman and said Cawley, Nagdeman paid to said bank the sum of $118.61, the same being the interest on the unpaid balance of said purchase money from December 8, 1923, to May 8, 1924; that the taxes on said property, which, by the terms of said contract, the said bank was to pay, had not been paid in full for the year 1922, and that they were delinquent in the sum of $31.28, and that Nagdeman had paid them; that on May 8, 1924, Nagdeman tendered to said bank his check for $2,468.72, the same being the $2,500 due, by the terms of said contract, on December 8, 1923, less the said taxes paid; that said bank refused to receive said check; that a few minutes later Nagdeman tendered his check to said bank in the sum of $2,500 and the same was refused by the bank, acting under instructions from said Cawley, solely because of the amount thereof, Cawley contending that under the agreement between himself and Nagdeman made in March, 1924, he had agreed to extend the time of payment to May 8, 1924, upon condition that upon that date Nagdeman would pay the entire unpaid purchase price of $5,000, and this action was commenced in June, 1924. The trial court found with Cawley upon this proposition, and rendered its decree in his favor as hereinbefore stated.

As we view this case the theory of the complaint, whether it be for cancellation of the contract because of the alleged failure of Nagdeman to comply with its terms, or one asking the court to declare a forfeiture because of such alleged failure, can make no difference as to the final result, as upon neither theory was the court justified in finding for the appellees and rendering the decree in their favor.

The sole and only breach alleged in the complaint as being the basis for any relief was the alleged failure to pay the $2.500 which fell due under the terms of said contract on December 8, 1923. The appellee

Harry W. Cawley does not deny the agreement of December, 1923, and that in pursuance of said agreement he received a check for $116.68; neither does he deny that on March 28, 1924, he received a check for $118.61, the same being the interest on the entire unpaid balance up to May 8, 1924, and the question now arises as to the legal effect, if any, of these agreements.

[1, 2] In December, 1923, Cawley knew that, if Nagdeman did not pay the said sum of $2,500 and interest thereon, on December 8, as fixed in said contract, he would have the right to at once declare a forfeiture of all rights theretofore had by Nagdeman under the terms of said contract, and the legal effect of his agreement made with Nagdeman was: "If you will pay now the interest due on the said December installment, and will also pay the interest on the deferred installment, not due until next February, I will forbear to exercise my right to declare a forfeiture of your contract because of your failure to pay said December installment when the same fell due." On the 28th of March, 1924, he, in legal effect, said to Nagdeman: "If you will now pay interest on the entire unpaid balance up to May 8, 1924, I will forbear to exercise my right to declare a forfeiture because of your failure to pay said installment due last December." Neither of the above-mentioned agreements changed or in any way modified the original contract; they were independent collateral agreements; they were each founded upon a valuable consideration, viz. the payment of money, as interest, which money was not, by the terms of the contract, due; and such contracts have long been recognized as being valid. As to the agreement of December, 1923, it will be noted that in it no definite time of forbearance was fixed, and, while some courts hold that such an agreement is valid, as being an agreement to forbear for a reasonable time (see 13 C. J. "Contracts," § 202, F, "Time of Forbearance"), in this state it has been held that such contract must be for a definite time. See Henry v. Gilliland, 103 Ind. 177, 2 N. E. 360. However, the agreement of December, 1923, valid or invalid, is of no controlling force in this case. If that agreement was invalid, then on the 28th of March, 1924, the appellee had a right of action-a right to declare a forfeiture and have the same judicially decreed. This right they agreed to suspend; they agreed not to bring suit until after May 8, 1924, in consid. eration that money should be then paid to them in the way of interest in advance. As to the agreement of March, 1924, as contended for by appellant Meyer Nagdeman, there can be no question as to its binding force and effect; it was simply an agreement for forbearance, and in no way changed or modified the original contract. But it is insisted by the appellee Harry W. Cawley that said agreement was that he would forbear on con

(162 N.E.)

dition that Nagdeman would pay the entire unpaid balance of the purchase price on May 8, 1924, and that, Nagdeman having failed to pay all of said balance, he had a right to declare a forfeiture and bring this action. If we should concede, for the purpose of this decision, that said last agreement was as contended for by said Cawley-that it embraced the entire unpaid indebtedness and not merely said December installment--then the legal effect, if any, of said agreement, becomes a subject for our consideration.

[3] That we may get the full force of the said agreement, as to its legal effect, let us suppose that said agreement had been that, on May 8, Nagdeman was to pay the December installment, then past due, and that on May 15, 1924, he would pay the $2,500 which by the terms of the contract would fall due on August 8, 1924, and let us further suppose that on May 8, in strict compliance with his contract, Nagdeman had paid to said bank the said December installment in full, but had failed to meet the payment to be made, by said agreement, on May 15, 1924, and that at once thereafter a forfeiture had been declared and this suit brought, in what situation would the appellees find themselves? They could not rest their cause of action upon the agreement of March 28, 1924, for there was nothing in said agreement covering that subject; they could not rest it upon the original contract of sale, for that contract fixed the time of payment as August 8, 1924, a time yet in the future when suit was brought, and, as the said contract was one required by our statute (section 8045, Burns' 1926) to be in writing, it could not be modified or changed by a contract in parol. Bradley v. Harter, 156 Ind. 499, 60 N. E. 139. It follows that the part of the said agreement of March, 1924, accelerating the time of payment, was of no legal force and effect.

[4] Whether, a part of said agreement being invalid, the entire agreement falls, and that there was, therefore, no binding contract for a forbearance to declare a forfeiture, cannot help the appellees. They, both in December, 1923, and in March, 1924, received money as the consideration of said agreements, and, having received this money under the circumstances stated, they could not retain it and demand relief in a court of equity. Under the undisputed facts of the case the appellees were not, at the time' this suit was brought, entitled to declare a forfeiture and have the same enforced, or to have said contract of sale rescinded: they had received $239.29, under the said contracts of December, 1923, and March, 1924, as the consideration for their agreement to forbear to exercise their right to declare a forfeiture, and they had also received the benefit of the $31.28 paid by appellants on ac

count of delinquent taxes, and no part of this money did they return or offer to return to appellants, and this money was not money paid in discharge of the original contract and under the terms of which they were entitled to retain. We therefore conclude that the decision of the court was not sustained by sufficient evidence, and that it was contrary to law.

[5] The appellants herein in their crosscomplaint alleged that they were ready, willing, and able to pay to the appellees whatever amount was justly owing by them to the appellees, and they asked the court to make and state an account between the parties, to find and state the amount owing by appellants to appellees, and to fix the time within which the same should be paid into court. This request should have been complied with, and, after determining what amount was due the appellees, after allowing all just credits, the court should have fixed a day, allowing reasonable time in that behalf, within which the sum so found due should be paid into court for the use and benefit of appellees. This being a cause of equitable cognizance, there should be no difficulty in so moulding the decree as to do complete equity and justice to all parties.

The judgment is reversed, with instructrial and for further proceedings consistent tions to sustain appellants' motion for a new with this opinion.

McMAHAN, J., not participating.

BISHOP V. INTERNATIONAL SUGAR
FEED CO. (No. 13270.)
Appellate Court of Indiana, in Banc. June 20,
1928.

1. Master and servant

414-Industrial

Board had no jurisdiction to award compensation to employee of one not Indiana employer, notwithstanding voluntary general appear

ance.

General voluntary appearance did not give Industrial Board jurisdiction in compensation proceedings, where employer was not an Indiana employer.

2. Appearance 18, 19(1)-Voluntary general appearance gives jurisdiction of person, but not subject-matter.

A voluntary general appearance gives jurisdiction of the person, but not of the subjectmatter.

3. Courts 24-Jurisdiction of subject-matter cannot be conferred by agreement of parties. Jurisdiction of court over subject-matter of action cannot be conferred by agreement of parties.

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

397-Industrial lant received the injury, appellee was not an Indiana employer.

4. Master and servant
Board's jurisdiction of subject-matter must be
derived from Compensation Act (Acts 1915,
c. 106, as amended).

Jurisdiction of Industrial Board of subjectmatter of proceeding must be derived from Workmen's Compensation Act (Acts 1915, c. 106, as amended).

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[1-5] It is not contended that the Compensation Act (Acts 1915, c. 106, as amended) gives the Industrial Board jurisdiction to adjust claims for others than Indiana employers. But see Darsch v. Thearle Duffield, etc., Co. (1921) 77 Ind. App. 357, 133 N. E. 525; Norman v. Hartman Furn., etc., Co. (1925) 84 Ind. App. 173, 150 N. E. 416. The contention is that, appellee having entered a general appearance at the time of the hearing, the board thereby acquired jurisdiction for all purposes. We do not so understand the law. Appellant has failed to distinguish between jurisdiction of the person and of the subject-matter of the action. There is no question but that a voluntary general appear

Proceeding under the Workmen's Compensation Act by Wilbur E. Bishop, for compensation for injuries, against the International Sugar Feed Company, employer. From an order of Industrial Board denying compensation, employee appeals. Affirmed. Armstrong & Lanphar, of Evansville, for 433, 30 N. W. 683; Steamboat General Buell appellant.

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ance gives jurisdiction of the person, though as to the subject-matter the law is otherwise. In re Winn (1908) 213 U. S. 458, 29 S. Ct. 515, 53 L. Ed. 873; Hynds v. Fay (1886) 70 Iowa,

v. Long (1869) 18 Ohio St. 521; Indianapolis, Joseph W. Hutchinson, of Indianapolis, for etc., R. Co. v. Renner (1861) 17 Ind. 135. appellee.

REMY, J. Appellant was employed by appellee, a foreign corporation, as a traveling salesman, and, while working in the line of his employment in Dubois county, he suffered an accidental injury, for which he made application for compensation. At the hearing, appellee having entered a general appearance, the Industrial Board found that the evidence was insufficient to establish the fact that, at the time appellant received the injury, appellee was an Indiana employer, and that, therefore, the board was without jurisdiction. From an order of the board denying compensation, this appeal is prosecuted.

There is competent evidence to sustain the finding of the board that, at the time appel

The jurisdiction of a court over the subject-matter of an action cannot be conferred by agreement of the parties, nor by a general appearance of the defendant; such jurisdiction is always derived from the law. So, with the Industrial Board, its jurisdiction of the subject-matter of any proceeding must be derived from the Compensation Act, which act, as this court has held, applies only to Indiana employers. Darsch v. Thearle Duffield, etc., Co., supra.

The Industrial Board found that appellee was not an Indiana employer at the time appellant received the injury, and, having so found, it correctly held that it was without jurisdiction of the cause. Affirmed.

DAUSMAN, J., absent.

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

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