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The second note is an exact copy of the first, except that it is for $3,000, dated November 18, 1908, and due May 18, 1909.

The facts as found by the jury in answer to interrogatories are substantially: That decedent, Silas M. Busby, in person signed and executed the following instrument introduced in evidence, and designated as Exhibit A:

"We, the undersigned, do agree that we will stand together and support the firm of B. W. James and L. F. Busby, and we grant the right of our names to be used jointly and to be signed by either one of the persons signed below.

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That Silas M. Busby did not sign the notes in suit, but by written agreement authorized B. W. James and L. F. Busby to do so, and his name was signed thereto by L. F. Busby. That B. W. James and L. F. Busby were principals on said notes, and S. M. Busby surety, and claimant had knowledge that the name of Silas M. Busby was signed to the notes in suit as surety by his son, Leonidas F. Busby. That both B. W. James and L. F. Busby are nonresidents of the state of Indiana.

It is urged by appellant that the written instrument above set out did not authorize L. F. Busby to sign the name of Silas M. Busby to the negotiable instruments in question. Appellant states his case upon this point briefly as follows: "L. F. Busby signed the name of S. M. Busby to these notes, and his only authority to do so was derived from this written agreement known as Exhibit A. That the claimant knew that he signed the name to the notes, and would thereby be bound by the limitations upon his authority. Now, since this agreement cannot, under any fair construction, be construed to authorize the execution of the notes in suit, it follows that the claimant has no cause of action against appellant, and that there can be no recovery herein."

[1] The written instrument in question is not certain in its terms. It was evidently drawn by a layman, rather than dictated by a legal mind. Under numerous authorities, the construction given and acted upon by the parties themselves in respect to such contract will, as a general proposition, be adhered to in this court. Scott v. La Fayette Gas. Co., 42 Ind. App. 614, 620, 86 N. E. 495; Ralya, Adm'r, v. E. C. Atkins Co., 157 Ind. 331, 61 N. E. 726; Frazier v. Myers, 132 Ind. 71, 31 N. E. 536, and authorities cited; Louisville, etc., Ry. Co. v. Reynolds et al., 118 Ind. 170, 20 N. E. 711.

be considered in determining the actual intent and meaning of the parties, as expressed by the language used. The contract as made is the one to be enforced-citing authorities. It is also true 'that, when the terms of a contract are of doubtful or ambiguous meaning, the construction placed on same by the parties by their conduct and acts may be shown for the purpose of arriving at their true intention. The construction placed on such a contract by the parties is entitled to great weight, and and may be controlling

*'-citing authorities."

[2, 3] In passing upon the correctness of a ruling on a motion for judgment upon the interrogatories and answers thereto, notwithstanding the general verdict, our investigation is confined to the pleadings, interrogatories, and answers, and the general verdict. The general verdict determines all the material allegations of the complaint in favor of the pleader, and carries with it every presumption and inference of fact which might have been drawn from evidence properly admitted under the issues. The answers to interrogatories overcome the general verdict only when they are in such irreconcilable conflict therewith that both cannot stand. Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235; Chicago, etc., R. Co. v. Fretz, 173 Ind. 519, 528, 90 N. E. 76; Cleveland, etc., R. Co. v. Harvey, 45 Ind. App. 153, 90 N. E. 318; City of Jeffersonville v. Gray, 165 Ind. 26, 74 N. E. 611.

[4] We think we need not go beyond the interrogatories themselves to determine the construction given to the agreement by the parties. Interrogatories Nos. 4 and 5 find expressly that Silas M. Busby authorized B. W. James and L. F. Busby to sign his name to the particular notes sued on in this case. Interrogatory No. 6 finds that L. F. Busby signed the name of Silas M. Busby to the notes in question, so we think the very able argument of appellant's learned counsel with respect to the construction of written instruments, and the application of legal principles thereto, while stating the law correctly, has no application to the facts in this case. The parties themselves construed the writing to mean that L. F. Busby had authority to sign the name of S. M. Busby to these notes.

Under the second error assigned, appellant argues that the evidence does not sustain the verdict. We have examined the evidence with some care, and feel that there was evidence heard by the jury which would sustain every material allegation contained in the amended claim, and was therefore sufficient.

[5, 6] It is next insisted that the court erred in admitting and excluding certain eviIn the case of Indiana Natural Gas & Oil dence. Mrs. Busby, wife of decedent, was Co. v. Stewart, 45 Ind. App. 554, 90 N. E. permitted to testify with regard to some 384, the court say: "The rule is that, where conversation with her husband with respect a contract is ambiguous, the situation of the to his interest in the store in question. Com

as a rule privileged. It is insisted on behalf the deposits so made toward the discharge of of appellee that this evidence was admitted this debt, it was not obliged to do so. The for the purpose of showing that decedent evidence in this case does not convince the was principal and not surety on the note in court that appellee was guilty of laches by question. Upon this issue the finding of its failure to apply such credits. the jury was that S. M. Busby was surety, so that no harm resulted. The principal issue in the case was as to whether S. M. Busby executed a certain written instrument in the record as Exhibit A, and as to whether such instrument, if so executed, authorized L. F. Busby to sign his name to the notes in suit. As to that issue, we think the evidence was of such slight consequence as not to have influenced the verdict in any way, and therefore, if the admission of this evidence could be held to be error, it was harmless. Robbins v. Masteller, 147 Ind. 122, 46 N. E. 330; Halstead v. Vandalia R. R. Co., 48 Ind. App. 96, 103, 95 N. E. 439.

[7] It is also urged that the court erred in admitting the written instrument Exhibit A in evidence, for the reason that the construction of this instrument was a question of law for the trial court. We think that no error was committed in this, as the mere admission of the instrument in evidence in no sense affected the duty of the court to construe and give legal effect to said instrument.

[8, 9] No error was committed in the admission of the evidence of C. W. Newkirk, or the refusal to permit Lillie Patterson to testify as to her knowledge of the claim.

[10] Section 2831, Burns' 1908, provides that before the estate of a decedent may be resorted to, to coerce the payment of a note upon which he is surety, it must be shown that the principal was insolvent, or was a nonresident of the state. There is no dispute that B. W. James and L. F. Busby were at all times while the action was pending nonresidents of the state of Indiana. While this provision of the statute is severely criticised by appellant's learned counsel, and this court is not prepared to say there is not some merit in the criticism, that is purely a legislative question. This court cannot disregard the plain provisions of the statute.

[11, 12] There is also an earnest argument made that appellee was guilty of such laches as ought to prevent a recovery. The notes were executed in October and November of 1908, and Silas M. Busby died on November 26, 1908, a short time thereafter. The notes became due in April and May, 1909. Active efforts began for the collection of the notes early in 1910. During the period between the death of Silas M. Busby and the institution of suit to collect the notes various deposits were made in appellee bank to the credit of the firm of B. W. James and L. F. Busby. It is complained that these deposits should have been applied to discharge the debt evidenced by the notes. While it may

Laches is defined to be "such neglect or omission to do what one should do as warrants the presumption that he has abandoned his claim, and declined to assert his right." Anderson's Law Dic.; Wissler v. Craig, 80 Va. 30. "What would be laches in one case might not constitute such in another. The question is one addressed to the sound discretion of the court, depending upon all the facts of the particular case." 5 Words and Phrases; The Queen of the Pacific (D. C.) 61 Fed. 213, 216. In the case of Wood, Treasurer, v. State, 155 Ind. 1, 55 N. E. 959, which was a suit to compel by mandate payment of a certain sum of money out of a particular fund, it is held that the mere delay for the time mentioned (16 months) cannot be considered unreasonable or laches of such a character as will alone defeat an action.

Error is also predicated on the action of the court in giving and refusing to give certain instructions. It is earnestly insisted by appellee that such error cannot be considered, for the reason that the instructions are not in the record.

[13, 14] At the end of instructions numbered 2, 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, and 16 tendered by appellant and refused by the court, this notation is found: "Refused and excepted to. Sparks L. Brooks, Kittinger & Diven, Attorneys for defendant, Nov. 30th, 1910." Of those given by the court, at the close of Nos. 6, 7, 8, 9, 10, 11, 15, 16, and 18, this notation appears: "Given and excepted to. Kittinger & Diven, S. L. Brooks, Attys. for Defendant, Nov. 30th, 1910."

It is clear that the instructions are not brought into the record by a bill of exceptions as provided by section 660, Burns' 1908. They are not made a part of the record in accordance with the provisions of sections 558, 559, 560. Petrie v. Ludwig, 41 Ind. App. 310, 83 N. E. 770; Malott v. Hawkins, 159 Ind. 127, 138, 63 N. E. 308; Oglebay v. Tippecanoe, etc., Co., 41 Ind. App. 481, 82 N. E. 494. They are not properly in the record under the provisions of section 561, Burns' 1908, because they are not authenticated by the signature of the judge as required by the provisions of this section. Strong v. Ross, 36 Ind. App. 174, 75 N. E. 291; Cleveland, etc., Co. v. Powers, 173 Ind. 105, 88 N. E. 1073, 89 N. E. 485; Wiseman v. Gouldsberry, 45 Ind. App. 677, 91 N. E. 616; Fowler v. Ft. Wayne, etc., Traction Co., 45 Ind. App. 441, 91 N. E. 47; Indianapolis, etc., Co. v. Ragan, 171 Ind. 569, 86 N. E. 966; Newsom v. Chicago, etc., R. Co., 101 N. E. 26.

[15] It has been repeatedly held by both this court and the Supreme Court that the

reply.

showing the fling of instructions. After a of complaint and the second paragraph of diligent search of the record in this case, we are unable to find any order book entry or order of court showing the filing of instructions in accordance with section 691, Burns' 1908. Tell City Canning Co. v. Wilbur, 46 Ind. App. 551, 93 N. E. 174; Close v. Pittsburgh, etc., Co., 150 Ind. 560, 50 N. E. 560; Russ v. Russ, 142 Ind. 471, 474, 41 N. E. 941; Board v. Gibson, 158 Ind. 471, 63 N. E. 982; Newsom v. Chicago, etc., R. Co., 101 N. E. 26. So it appears appellant has not come strictly within the provisions of any section of the statute in incorporating the instructions in the record.

There being no error in this case, the judgment is affirmed.

(54 Ind. App. 234)

The parties agreed as to the facts constituting all the evidence in the case and that these agreed facts might be used in appeal by either party as the evidence in the cause. The case is therefore before us entirely upon written evidence. We shall discuss the case with reference to these facts, and what we shall say concerning the state of facts will fully dispose of all questions concerning the pleadings, since in this case the determination of the one necessarily disposes of the others.

The agreed statement of facts, abbreviated in some of its nonessentials, follows: In a certain partition suit in the Newton circuit court the court found that partition of the lands involved could not be made without injury and ordered the land sold at private sale for not less than its appraised value,

SHAW v. ELIJAH et al. (No. 8,030.) (Appellate Court of Indiana, Division No. 2. after giving three weeks' notice by publica

MENT.

Oct. 15, 1913.)

1. CONTRACTS (§ 119*)-VALIDITY OF AGREE Any agreement for the purpose of lessening competition at a public sale in order to procure the property at a price below its value is void, although agreements for the protection of existing interests in property by which one of several is allowed to bid for all may be valid, and contracts for the prevention of competition in private purchase of property are valid.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 654-658; Dec. Dig. § 119.*] 2. CONTRACTS (§ 130*)-POLICY OF LAW-CONTRACTS FOR THE PREVENTION OF COMPETI

TION.

It is the policy of the law to preserve competition at judicial sales, private as well as public; hence a contract whereby a bidder at a private judicial sale induced another bidder to refrain from bidding, and thereby was enabled to purchase the property at less than he otherwise would have been compelled to pay, is void and unenforceable.

[Ed. Note. For other cases, see Contracts, Cent. Dig. 88 654-658; Dec. Dig. § 130.*] Appeal from Circuit Court, Newton County; Charles W. Hanley, Judge.

Action by William Shaw against James Elijah and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Frank Foltz, of Rensselaer, for appellant. William Darroch, of Kentland, for appellees.

tion and posting. Condra Stucker was appointed commissioner to sell said lands, gave bond, and entered upon the discharge of his duties as such, and gave the required notice of the sale, which was to take place at his place of business at the town of Mt. Ayr on November 13, 1909, when he would offer said real estate to the highest bidder for cash. On that day defendant Elijah attended said sale and bid the sum of $4,100, which was the appraised value of said land; plaintiff, on behalf of himself and defendants Long and Long, bid on said land also, making a higher bid than defendant Elijah, and so plaintiff and Elijah bid back and forth, placing certain bids on said real estate until they bid the same up to $4,400, which was a fair cash value thereof and in excess of the appraised value. On December 31, 1909, the commissioner Stucker informed defendant

Elijah that he and this plaintiff should get together and adjust their differences in regard to bidding further on said real estate, and in pursuance with, said request defendant Elijah called on plaintiff and offered and agreed to pay him the sum of $175 in consideration that plaintiff would not bid further against Elijah on said real estate, the said $175 to be paid when it transpired that Elijah was the successful bidder and he had approved the title and the sale to him had been confirmed and the land conveyed to him, or he (Elijah) would accept from plaintiff the sum of $175 and would step out and make no further bid on said real estate.

IBACH, J. Action by appellant against appellees Elijah, Long, Long, and Sigler. The complaint was in four paragraphs, three of which declared on a check executed by appellee Elijah to appellant, and the fourth of which set out the facts more fully and On said December 31, 1909, plaintiff acceptdeclared on an agreement to pay made at the ed the proposition of defendant Elijah, and time the check was executed. There were a check for $175 bearing date of December two paragraphs of answer and two of reply. 31, 1909, was made payable to plaintiff and Appellees recovered below. Error is assign- signed by Elijah, which is the check men. ed in overruling appellant's motion for new tioned and set out by plaintiff in paragraphs trial on the grounds that the court's decision | 1, 2, and 4 of his amended complaint, bearing is not sustained by sufficient evidence and is the above date. Plaintiff and Elijah going contrary to law and in sustaining the ap- together, said check was taken to the bank pellee's demurrers to the fourth paragraph of defendant Joseph R. Sigler, a banker in

the town of Mt. Ayr, and was delivered to Sigler upon the one consideration that plaintiff would not bid further against Elijah at said commissioner's sale of said land, and that said check would be paid when the land was sold to defendant Elijah, the title approved by him, and sale and conveyance confirmed, and title in him.

[1] The general rule is that any agreement which has for its object the lessening of competition at a public sale of property, for the purpose of procuring the same at a price below its value, is void. However, agreements which have a legitimate object, as where several persons combine to purchase property for their joint benefits or to protect their exAt the time said real estate was offered for isting interests and authorize one to bid for sale by Stucker, and continuously thereafter all, may be valid, though the incidental efuntil it was sold to Elijah, the said Elijah fect is to diminish competition. And conhad no interest in said land and no claim or tracts which have for their object the precharge against the same or any of the own-vention of private competition in the purers thereof, equitable or otherwise; neither chase of property are valid. Greenhood, Pubdid the plaintiff have any such claim or in- lic Policy, pp. 183-196, and cases cited; Elterest, but he as well as Elijah was merely liott, Contracts, §§ 759-761; National Bank v. a bona fide bidder at the sale. Sprague, 20 N. J. Eq. 159; Morrison v. Darling, 47 Vt. 67.

The above-mentioned check remained in the possession of Sigler, undelivered by him to any person until January 15, 1910, when Elijah called at said bank, and without any other or different agreement or understanding with the plaintiff, and without any consideration therefor, and without the knowledge or consent of plaintiff, took up said check, bearing date of December 31, 1909, and destroyed the same and made another check bearing that date, payable to plaintiff, calling for the sum of $175, executed by himself, which check was left with Sigler with instructions to him by said Elijah not to deliver it to plaintiff until ordered to do so by Elijah, which last-mentioned check is the identical check mentioned in the second and third paragraphs of plaintiff's complaint as bearing date of January 15, 1910.

After the said check of December 31, 1909, was made, plaintiff made no further bid on said above-described real estate being offered by commissioner Stucker. Defendant Elijah bid thereon the sum of $4,450, and his bid so made was accepted, the title by him approved, and the sale to him was confirmed, and the land conveyed to him thereunder at the March term, 1910, of the Newton circuit court. Said commissioner had caused said land to be appraised before offering the same for sale, and the appraised value as reported by him was $4,100.

Before the commencement of this action plaintiff made frequent demands on Elijah to pay said checks and the sum of $175, which at all times Elijah refused to do and still refuses to do, and before commencing this action plaintiff made frequent demands upon defendant Sigler to surrender either one or both of said checks to him and demanded the payment thereof of him and of the said Mt. Ayr bank, which defendant Sigler refused at all times. No part of the checks or of said sum of $175 has been paid. The one important question in this appeal is whether the agreement by Elijah to pay Shaw $175 if he would refrain from further bids at the commissioner's sale, in furtherance of which agreement the checks were

In the present case it seems that the agreement was entered into in good faith, and even that the commissioner had something to do in bringing it about, while apparently no one has raised any question as to the validity of the sale. However, neither Shaw nor Elijah had any interest in the property to protect, nor did they combine to purchase the property jointly for their mutual benefit or to partition between them.

If the facts were exactly similar to those of the present case, except that the sale was public, without doubt an agreement similar to that under consideration would be void. On the other hand, if Shaw and Elijah had both been desirous of purchasing certain lands from a private owner and had each made him offers as to the price, and Elijah had agreed to pay Shaw a certain sum if he would make no further offers, unquestionably, under the authorities preceding, their agreement would have been valid.

[2] But this was not strictly a public sale; neither were the bidders in the position of prospective purchasers who are making offers to a private person, who may or may not accept as he sees fit. This was a private judicial sale, held by a commissioner of the court who was bound to sell the property to the highest and best bidder. If it is the policy of the law to preserve competition at public auction sales, then it must likewise be its policy to preserve competition at private judicial sales in order to safeguard the interests of the owners of the property to be sold and to secure at such sales the best obtainable price for such property. Even though a greater price than the appraised value of the property was realized in the present instance, yet the owners of the property were entitled to the highest price which it would bring under free competition. The object of the agreement between Shaw and Elijah was clearly to prevent competition. However, the matter is not entirely one of first impression in the courts of this state, and we think the case of Goldman v. Oppenheim (1888) 118 Ind. 95, 20 N. E. 635, is de

a check for $300 to the plaintiff in considera- | comply with the rule, the court will hold e tion that he should withdraw a bid of $4,000 brief sufficient, though it be technically insufficient in some particulars. on a stock of goods sold by an administrator at private sale, thus enabling defendants to obtain the goods for their bid of $3,400. The The action was brought upon the check. court said: "The administrator was about to

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] 2. RAILROADS (§ 348*)-ACCIDENTS AT CROSSINGS-ACTIONS FOR INJURIES-SUFFICENCY OF EVIDENCE.

Evidence in an action for injuries to a boy, run over at or near a railroad crossing, though not entirely satisfactory, held sufficient to support a verdict for the plaintiff, as there was some evidence to support each material allegation of the complaint.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*] 3. APPEAL AND ERROR (§ 1001*)-REVIEW

VERDICTS
SUPPORT.

SUFFICIENCY OF EVIDENCE TO

Where there is some evidence to support each material allegation of the complaint and each material element of the cause of action, a verdict for the plaintiff cannot be disturbed on appeal.

sell the goods in pursuance of the order of the court. It would he his duty to sell them to the highest responsible bidder, for not less than the appraised value, and he would be liable as such administrator if he failed to do so and loss resulted by reason thereof. Just before the sale was to take place, appellee and Thurmauer, to whom he delivered the check, entered into an agreement by which appellee gave his check to Thurmauer for $300, in consideration for which Thurmauer agreed to and did withdraw a bid of $4,000 which he had made for the firm of which he was a member for the goods. This agreement was made for no other purpose and could have no other effect than to prevent competition in bidding on the property INGS ACTIONS FOR INJURIES offered for sale and to enable appellee to OF ORDINANCE-SPEED-SIGNALS. purchase the goods for a less sum than he Violation by a railroad of an ordinance otherwise could, to the detriment of the es- limiting the rate of speed and in regard to ringing the bell, is negligence per se, where it tate of the deceased. Such a contract is un-results in injuries to a boy run over at or near lawful and cannot be enforced." a crossing.

It was said in the case of Camp v. Bruce, 96 Va. 521, 31 S. E. 901, 43 L. R. A. 146, 70 Am. St. Rep. 873: "Under the principles of the common law any contract that is made for the purpose of, or whose necessary effect or tendency is to lessen competition and restrain bidding at judicial sales, is held to be illegal because opposed to public policy. The object in all such sales is to get the best price that can be fairly had for the property. The policy of the law, therefore, is to secure such sale from every kind of improper influence. To allow one bidder to buy off another, which is but a species of bribery, and thus prevent the property from bringing the best price, is condemned by the law, and the courts will not enforce contracts founded in such practices."

It follows that we must hold that the agreement between Shaw and Elijah was one which cannot be enforced at law. The trial court committed no error. Judgment affirmed.

(56 Ind. App. 58)

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

4. RAILROADS (§ 317*)-ACCIDENTS AT CROSS

VIOLATION

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1009; Dec. Dig. § 317.*]

5. RAILROADS (§ 350*)-ACCIDENTS AT CROSSINGS - ACTIONS FOR INJURIES - QUESTIONS FOR JURY.

Whether a 13 year old boy who was run over at or near a railroad crossing was guilty of contributory negligence held, under the evidence, to be a question for the jury.

[Ed. Note.-For other cases, see Railroads,
Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]
6. RAILROADS (§ 346*)-ACCIDENTS AT CROSS-

INGS-ACTIONS FOR INJURIES-BURDEN OF
PROOF CONTRIBUTORY NEGLIGENCE.

The burden of proof was on the defendant to show that a boy who was run over at or near a railroad crossing was guilty of contributory negligence.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1117-1123; Dec. Dig. § 346.*] 7. NEGLIGENCE (§ 136*)-ACTIONS-TRIAL QUESTIONS FOR JURY-CONTRIBUTORY NEG

LIGENCE.

such as to warrant different inferences, so that impartial, sensible men might differ whether an injured person was guilty of contributory negligence, the question should be submitted to the jury.

Where the facts and circumstances are

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]

PITTSBURGH, C., C. & ST. L. RY. CO. v. 8. APPEAL AND ERROR (§ 1068*)-REVIEW

BRODERICK. (No. 7,986.)1

(Appellate Court of Indiana, Division No. 2.

Oct. 15, 1913.)

HARMLESS ERROR-INSTRUCTIONS-CURE BY
FINDINGS.

In an action against a railroad for injuries received at or near a crossing, the refusal to 1. APPEAL AND ERROR (8 757*) - BRIEFS charge, as requested by defendant, that plainFORM AND REQUISITES.

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tiff must prove that the accident occurred at the crossing in order to recover, if error, was cured by the findings of the jury that the accident did occur at the crossing.

While under Rule 22 (55 N. E. v), the appellant's brief should be prepared so that the judges may comprehend the questions presented, without recourse to the transcript, except to settle disagreements as to its contents, yet where there has been a good-faith effort to For other cases see same tòpic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]

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