ley v. Loder, 1 Dem. Sur. 368; In re Hess' Will, 48 Minn. 504, 51 N. W. 614; In re Brunor's Will (Sur.) 43 N. Y. Supp. 1141. The circuit court erred in overruling appellant's motion for a new trial. The judgment is reversed, and the cause remanded, with instructions to sustain the defendant's motion for a new trial, and for further proceedings not inconsistent with this opinion.

BACHMAN v. COOPER.

(Appellate Court of Indiana. May 17, 1898.) SPECIAL INTERROGATORIES-TIME OF FILING-ACTION AGAINST DIRECTOR-APPEAL.

1. Under Burns' Rev. St. 1894, § 555 (Rev. St. 1881, § 546), requiring the court, on request, to submit special interrogatories to be stated in writing, where before the closing argument special interrogatories were filed without objection from the opposing counsel, who commented on them in his argument, the error, if any, as to the time of presenting them, is waived.

2. In an action by a corporation creditor, under Burns' Rev. St. 1894, § 5076 (Rev. St. 1881, § 3868), to recover a statutory penalty from a director charged with assenting to the noncollection of the capital stock within the. time required by Burns' Rev. St. 1894, § 5060 (Rev. St. 1881, § 3859), by reason of which the corporation became insolvent, the burden of proving the facts from which the liability arises is on the creditor.

3. Where a general verdict is given for plaintiff, but the answers of the jury to special interrogatories are entirely inconsistent therewith, but supported by evidence, the judgment of the trial court for defendant on the special findings is conclusive on appeal.

Appeal from circuit court, Marion county; H. C. Allen, Judge.

Action by Frederick M. Bachman against John J. Cooper. From a judgment for defendant, plaintiff appeals. Affirmed.

Charles Martindale, for appellant. F. Winter, C. M. Cooper, and Harding & Hovey, for appellee.

ROBINSON, C. J. Appellant brought this action against appellee, a director of a manufacturing company, to collect a statutory penalty for the violation of the provisions of the manufacturing and mining law. The complaint charges that the statute was violated, in that there was a failure to collect in the capital stock within 18 months after the incorporation, and that by reason of such failure the corporation became insolvent, and that such omissions and violations were ordered and assented to by appellee as a director of such company, and that after such violations such company became indebted in sums named to appellant, which said indebtedness is due and unpaid. One of the provisions of the statute is that the capital stock as fixed by the company shall be paid into the treasury thereof within 18 months from the incorporation of the same. Burns' Rev. St. 1894, § 5060 (Rev. St. 1881, § 3859). The section on which this action is based

(Burns' Rev. St. 1894, § 5076; Rev. St. 1881, § 3868) provides that, "if any company or ganized and established under the authority of this act, and of the act of which this is supplementary. shall violate any of the provisions thereof, and shall thereby become insolvent, the directors ordering or assenting to such violation shall jointly and severally be liable, in an action founded on said acts, for all debts contracted after such violation as aforesaid." The jury returned a general verdict in appellant's favor, and also returned answers to interrogatories. Appellant's motion for a new trial was overruled, and judgment rendered in appellee's favor on the answers to the interrogatories.

It is argued that the interrogatories were not properly submitted, because no request in writing was made before the introduction of the evidence. The act of March 11, 1895, did not change the law as it then existed, giving the right to a party to have the jury find upon a part only of the material facts, but left the law in that respect substantially as it was prior to the passage of that act. Bower v. Bower, 146 Ind. 393, 45 N. E. 595. So that the question here is to be determined

without reference to that act.

It appears from the bill of exceptions that after the evidence had closed, and before the argument was begun, counsel for appellee said, "We desire to present interrogatories to the jury, have not yet reduced them to writing, and will ask a few moments' time for that purpose;" that thereupon the court suggested that the argument might proceed while counsel prepared the interrogatories, if counsel for appellant did not object, and that counsel for appellant could comment on them in his closing argument, to which counsel for appellant replied, "Very well, I will proceed," and made his opening argument. It further appears that the interrogatories were filed before the closing argument, were submitted to appellant's counsel before the closing argument, and were used and commented on by him in his closing argument, and were submitted to the jury by the court without any objection. As appellant did not object and except to the action of the court at the time, but substantially agreed to the submission of the interrogatories, the error, if one was committed, is not now available to appellant. Nor is the right to submit interrogatories to the jury after the evidence is closed a question which goes to the jurisdiction of the subject-matter, and one which, therefore, would not be waived by a failure to object. The statute (Burns' Rev. St. 1894, § 555; Rev. St. 1881. § 546) does not designate the time when, during the trial, the request for answers to iuterrogatories shall be made, nor does the statute require that they be submitted to the opposite party. It is a matter necessarily largely within the discretion of the trial court, and, unless there is a clear abuse of discretion, the action of the court will

not be disturbed. Thus, in Sherfey v. Railroad Co., 121 Ind. 427, 23 N. E. 273, interrogatories were submitted before the commencement of the argument, and during the closing argument counsel took the interrogatories, filled certain blanks, and added two others to the list, and returned them to the court, without calling the attention of the opposing counsel to the fact, and the court submitted them to the jury to be answered. It was held that it was within the discretion of the court to submit them to the jury, and require them to be answered, if presented after the argument is in progress. See, also, Stockwell v. Thomas, 76 Ind. 506; Kopelke v. Kopelke, 112 Ind. 435, 13 N. E. 695.

The answers to the interrogatories show that in July, 1889, the D. E. Stone Furniture Company was incorporated with a capital stock of $50,000; that the entire capital stock was issued to a number of persons named, among them appellee, who paid the company the full face value of his stock; that appellee first became a director of the company in January, 1890; that during the time appellee was director a part of the stockholders were insolvent, so that the amounts unpaid upon their stock could not have been collected by process of law, and during said time all the other stockholders were solvent, and their unpaid stock collectible; that while appellee was a director all the other directors, who owned a large majority of the stock and who had not paid the same in full, were insolvent; that there was never a time while appeltee was director when he could have procured a majority of the board of directors to have taken action to collect from the delinquent stockholders the amount due from them for stock; that 'appellee never ordered or assented to the failure of, the company to collect the full amount due upon the stock it had issued. It is argued that the verdict is not sustained by sufficient evidence. The burden was upon appellant to show, among other things, that the capital stock of the corporation was not paid into the treasury of the company within 18 months from the incorporation, and that thereby the corporation became insolvent, and that appellee was at such time a director, and in such capacity ordered or assented to the noncollection of said capital stock. The evidence upon this question was conflicting, and was left to the jury, under proper instructions. This court cannot weigh the evidence. Where the evidence is conflicting, and there is some evidence to support a verdict, and the trial court has overruled a motion for a new trial, asked because the verdict is not sustained by sufficient evidence, the action of the trial court is conclusive upon this court. Deal v. State, 140 Ind. 354, 39 N. E. 930.

No complaint is made of the instructions given to the jury by the court, and they were certainly as favorable to appellant as could have been asked. The answers of the

jury to the interrogatories are supported by some evidence. The facts found in the answers to the interrogatories are entirely inconsistent with the general verdict. The essential fact that the violation of the statute was ordered or assented to by appellee is negatived by the jury, and we cannot but conclude that the trial court did right in rendering judgment in appellee's favor upon the answers to the interrogatories, notwithstanding the general verdict. Judgment affirmed.

HARNESS et al. v. HORNE. (Appellate Court of Indiana. May 10, 1898.) NOTE-FAILURE OF CONSIDERATION.

Where one purchases a half interest in a business for $3,000 upon the representation of the seller that he (the purchaser) can realize $10,000 a year from it, but which the purchaser conducts at a loss, and finally sells for $1,200, there is no failure nor want of consideration upon which the purchaser can avoid payment of his note for a part of the purchase price. Appeal from circuit court, Howard county; L. J. Kirkpatrick, Judge.

Action by Walter J. Horne against Benjamin F. Harness and another. From a judgment for plaintiff, defendants appeal. versed.

Re

Benj. F. Harness, C. M. Pollard, and W. R. Voorhis, for appellants. B. Borders and James O'Brien, for appellee.

BLACK, J. This was an action brought by the appellee against the appellants, Benjamin F. Harness and William W. Harness, upon a promissory note for $500, made by the appellants to the appellee. The appellants answered by general denial, and by a paragraph alleging want of consideration; and the appellant Benjamin F. Harness separately answered failure of consideration, and also separately answered in two paragraphs by way of counterclaim for alleged fraud. The appellee replied, and the issues of fact were tried by jury. There was a special verdict, in which the facts were stated in substance as follows: On or about the 1st day of March, 1893, the appellee sold a certain electric belt and truss business, including stock, material, and machinery on hand, at Chicago, to the appellant Benjamin F. Harness and one Charles E. Ellis, to each of them one-half thereof. Benjamin F. Harness paid the appellee $2,000 in cash, and the appellants executed to him two promissory notes, one for $500, due in six months, and one for $500, due in one year, each with interest at 6 per cent. per annum, for the one-half of said business. These notes were signed by the appellant William W. Harness as surety. The former note was paid; the latter, being the note in suit, amounting, with the interest thereon, to $587, was due and unpaid. The jury stated that there was not sufficient evidence to show what Ellis paid for his one-half interest in the business. About the time of this

transaction, the appellee made out an inventory of the material and goods on hand, and delivered it, or a copy of it, to Ellis or Benjamin F. Harness. It was found that this inventory did not contain substantially a correct statement of the articles and goods so sold, but that the purchasers about that time received from the appellee substantially the articles and goods mentioned in the inventory. Soon after the sale, the purchasers incorporated the business under the name of the Dr. Horne Electric Belt & Truss Company. The stock of the corporation was divided into 250 shares, of $100❘ each, said Ellis subscribing 125 shares, Benjamin F. Harness 75 shares, and his wife 50 shares, the shares subscribed by Harness and his wife representing the whole interest so purchased by Benjamin F. Harness. The business was afterwards carried on by this corporation, Benjamin F. Harness and his wife attending to the business at the home office, and Ellis attending to the advertising of the business; and, up to the time Harness and wife sold their shares to one Gallear, the corporation received $4,507.47 in money from the sale of goods at retail, and paid for advertising, in goods taken out of the stock of the business, a bill amounting to about $2,400. It was found that, at or prior to his said sale, the appellee made false statements concerning said business; that he stated to Harness, for the purpose of inducing him to purchase the business, that said purchasers could easily clear $10,000 a year out of the business; that the statements made to Benjamin F. Harness by the appellee at and before the sale were not all substantially correct and true; that the appellee had conducted the business for 10 years in Chicago; that Harness and Ellis and said corporation sold and disposed, at retail, of all the stock on hand, manufactured goods and material, except a small amount, for their own benefit, and afterwards Harness and his wife sold their onehalf of the stock in the company to said Gallear for $1,200; that the sole inducement for Gallear to make said purchase was the fact that he had about 500,000 names and addresses, worth from $3,000 to $5,000, which he could use in advertising the business, without paying out any money for advertising, and which were of no value to him in any other way. Benjamin F. Harness did not at any time offer to return anything which he had received from the appellee. It was found that, prior to the appellee's sale, he represented to Benjamin F. Harness that the business was worth $10,000 or more, and that he could make that amount per year in the business. and that the appellee verbally assured him that he could do so; that the appellee represented to said Harness, before the purchase, that the former had names and addresses upon his books pertaining to said business of the value of from $5,000 to $10,000 to said business. It was also found that said representations were made for the purpose of inducing said Harness to purchase the one-half inter

est in said business; that the representations were false; that Harness believed them to be true, and relied upon them as being true in making the purchase, and was induced by them to make the purchase. It was found that the first information Benjamin F. Harness had that the appellee desired to sell his business was obtained through Charles E. Ellis in February, 1893; that Ellis at the time represented to said Harness that said business was of great value, and that a large amount of money could be made out of it, and immediately thereafter Ellis took Harness and his wife to the appellee's office, and introduced them; that the statements and representations that had been made by Ellis to Harness were repeated at the office of the appellee in his presence, and they were approved and sanctioned by the appellee as being true. Prior to the time that appellee and Harness first met, the former had placed his said business in the hands of said Ellis for sale. Ellis and Harness took charge of the business about the 1st of March, 1893, and operated it until about the 26th or 28th of April, 1894. During the time they carried on the business, the total expenditures therein amounted to $7,430.68. The methods of advertising pursued by Ellis and Harness in carrying on the business were as good as those used by the appellee, or better. Ellis was an experienced man in the advertising business, and had been placing the advertising business for the appellee for a number of years. Ellis and Harness prosecuted the business with diligence and industry. It was found that one-half the interest in said business at the time of the sale by the appellee was worth nothing in cash, "the same being operated as a business by one who had no knowledge of the same"; that Benjamin F. Harness had no knowledge of the value of the business or of the goods on hand at the time of his purchase; that the labor and services rendered by Benjamin F. Harness and his wife during the 14 months they were engaged in the business were of the value of $2,100, and they received for said services, from the proceeds of the business, $1,500, and no more. At the conclusion of the verdict, it contained the following: "If, upon the answers to all the interrogatories herein, the law is with the plaintiff, then we find for the plaintiff, and assess his damages at $587. But if, upon the answers to all the interrogatories herein upon the issues made by the complaint, the answer thereto, and the reply, the law is with the defendants, we find for the defendants. And if, upon the answers to all the interrogatories herein, the law is with the defendant Benjamin F. Harness, upon the issues made by the complaint, counterclaim, and the reply thereto, we find for the defendant, and assess his damages at $250." The court overruled a motion of the appellee for judgment in his favor upon the verdict for $587, and a motion of the appellant Benjamin F. Harness for judgment in his favor upon the verdict for

$1,300; and the court rendered judgment in favor of the appellant Benjamin F. Harness for $250 against the appellee. The appellant Benjamin F. Harness separately assigns as error the overruling of his motion for judgment in his favor on the verdict for $1,300. The appellee has assigned cross errors; among them, that the court erred in overruling his motion for judgment in his favor on the verdict for $587.

There was, it appears, a sale of the business theretofore conducted by the appellee, and of the machinery, material, and stock of manufactured goods. The appellant Benjamin F. Harness gave $3,000 for the onehalf interest purchased by him. It does not appear what Ellis gave for his one-half interest. The incorporated company having carried on the business more than a year, the appellant Benjamin F. Harness sold his interest, and that of his wife. The aggregate result was a pecuniary loss, for which he sought to reimburse himself in this action upon the note representing the balance of the price of the share purchased by him. It cannot be said that there was a want or failure of consideration. It was stated in the verdict that the one-half interest in the business was worth nothing in cash if to be operated as a business by one who had no knowledge of the business, and that Benja- | min F. Harness had no knowledge of the value of the business or of the goods on hand. We hardly need take space to analyze this finding for the purpose of showing that it does not amount to a finding that the business and goods, material, and machinery for which the note was given were absolutely without any value. It is shown that the corporation sold goods and material, and that the one-half of the capital stock was sold for a sum stated, and it appears that the purchasers received from the appellee what they contracted for. If it was not as valuable in their hands as they supposed or hoped, still it cannot be said that there was a want or failure of consideration. Many of the findings are manifestly immaterial. It does not appear that the inventory made out by the appellee was given or shown to Benjamin F. Harness, and it does not appear whether it was a list of more or less goods than were sold, but the purchasers received substantially the articles mentioned in it. There was no relation of trust or confidence between the appellee and Benjamin F. Harness. It is not shown that he did not know the relation of Ellis to the transaction, or that Ellis did not in good faith purchase a one-half interest, and pay for it as much as was paid by Harness. It was found that Ellis represented to Harness that the business was of great value, and that a large amount of money could be made out of it, and his subsequent conduct tended to indicate the sincerity of Ellis. It appears that the appellee sanctioned as true these representations of Ellis, and that the

appellee himself represented to Harness that the business was worth $10,000 or more, and, in one finding, that Harness and Ellis could easily clear that amount a year out of the business, and, in another finding, that Harness could make that amount per year in the business, and that the appellee verbally insured Harness that he could do so. It is also found that the appellee represented that he had names and addresses upon the books pertaining to the business of the value to the business of from $5,000 to $10,000. It is not specifically found that the appellee did not have such names and addresses, and the representation may be considered as merely relating to their value. All the representations were mere statements of opinion. The statements of Ellis sanctioned by the appellee, and the assurance of the appellee himself as to what might be realized in the future out of the business, were mere conjectures in relation to a future result dependent upon unknown contingencies. The representation that the business was worth $10,000, though relating to the time of the making of the representation, was the statement of an opinion, and not the representation of a material existing fact.

It is not denied by counsel that fraud may not be predicated of the statement of an opinion in general; but it is claimed that, the business in question being one connected with a mode of application of electricity, the value was so exclusively within the knowledge of the appellee that this representation should be regarded as an exception to the general rule. There does not appear to have been any expression of opinion as to the valne of machinery, material, manufactured goods, or of any method of manufacture or of the mode of application of electricity employed. The representation related solely to the value of the business, to ascertain which the usual methods of business men would have been sufficient, so far as appears. It is not shown that the appellee in any way prevented examination proper for obtaining such knowledge, or that such examination was not fully made by Harness. If he relied on such mere expressions of opinion as are shown in the verdict, he did so at his own risk. We see no reason why the appellee should not recover upon the note in suit. The judgment is reversed, and the cause is remanded, with instruction to render judgment in favor of the appellee for $587 and costs.

WILEY, J., took no part in this decision.

SMITH et al. v. GOETZ et al. (Appellate Court of Indiana. May 10, 1898.) APPEAL-REHEARING.

A rehearing cannot be granted to correct errors in the record of the lower court.

Petition for rehearing. Denied.
For former opinion, see 49 N. E. 386.

PER CURIAM. The able brief of counsel for appellants in support of the petition for a rehearing in this cause does not show error in the statement of the record in the original opinion. The conclusion reached was solely upon the record. The record may not correctly set forth the proceedings in the trial court, but, if errors of record exist, they must be corrected by the lower court. A rehearing cannot be granted to correct them. Petition overruled.

THOMAS' ESTATE v. SNYDER. (Appellate Court of Indiana.

May 10, 1898.) SPECIFIC FINDINGS-CONFLICTING EVIDENCE. 1. Where a party did not move the trial court for a finding as to the amount due on each of the specific items of the account sued on, he cannot complain on appeal of its failure to so find.

2. An appellate court will not weigh conflicting evidence to determine the correctness of the judgment.

Appeal from circuit court, Tipton county; W. R. Oglebay, Special Judge.

Action by Jacob Snyder against the estate of John Thomas, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

Sworeland & Pike and R. B. Beauchamp, for appellant. Waugh, Kemp & Waugh, for appellee.

COMSTOCK, J. This is a claim of appellee against the estate of John Thomas, deceased, for work and labor performed for him at his request during his lifetime, amounting to $3,796; for wheat furnished decedent during his lifetime of the value of $44.08;. and for taking care of the stock of decedent between the date of his death and the sale of the same, $10. A demurrer to the complaint was overruled, and the issue formed by general denial. The cause was submitted for trial to the court, and upon request of the defendant a special finding of facts was made and conclusions of law stated, upon which judgment was rendered in favor of appellee for $2,049. Appellant excepted to the conclusions of law, filed a motion for a venire de novo, a motion for a new trial, and a motion in arrest of judgment; all of which motions were overruled, to which rulings exceptions were duly taken. The only errors assigned upon appeal, which are discussed, are the overruling of the motion for a venire de novo and the motion for a new trial. The others, under the well-known rule, are waived.

The grounds for the motion for the venire de novo are: (1) That the special findings of the court are so defective, uncertain, and ambiguous that no judgment can be rendered thereon; (2) "the findings contain the evi

dence, and not the facts established by the evidence." Neither of these grounds can be maintained by the record. Appellant's counsel, upon the assignment, say that, as appellee's claim consists of many items of account, extending over a period of many years, for different kinds of service, the findings should have been definite as to the amount found due on each item. The court found the total amount due for work and the separate amount due for wheat claimed by appellee. If the appellant desired an itemized statement of the amount allowed for each kind of .service rendered, he should have moved the court for such finding. This was not done. and it is now too late to make complaint.

The reasons specified in the motion for a new trial are that the damages assessed are excessive; that the amount of recovery is too large; that the special findings of the court are not, and each of them is not, sustained by sufficient evidence; that the decision of the court is not sustained by sufficient evidence; that the decision of the court is contrary to law, and that the decision of the court is contrary to the evidence. In discussing this assignment of errors, counsel for appellant say: "We are not seeking a reversal of the entire cause on account of the insufficiency of the evidence or the want of evidence to support the finding and judgment of the court below, but ask a reversal on account of there being a want of evidence to support a portion of the judgment." We have examined the evidence, and, although it affirmatively appears from the record that all the evidence is not before us, and that there is some conflict as to the nature of the service, there is evidence from which the court might have assessed the amount on which judgment was rendered; and under the rule that appellate courts will not weigh evidence we cannot say that the amount of the judgment was excessive. We find no error. Judgment affirmed.

STATE v. MATHIS.

(Appellate Court of Indiana. May 11, 1898.) SUNDAY SALOON CLOSING.

Under Acts 1895, p. 248, §§ 3, 10, providing for the regulation of sales of liquor, the permitting a person not a member of the saloon proprietor's family to be in his place of business on Sunday is of itself an offense.

On rehearing. Petition overruled.
For former report, see 48 N. E. 1109.

PER CURIAM. Counsel for appellee, in petition for a rehearing, insist that "the only effect that permitting one not a member of the proprietor's family into his place of business at a prohibited time is to make that fact prima facie evidence of an illegal sale when he is charged with that offense. The fact, standing alone, that such a person was in the saloon at such a time, is no offense.