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record was filed in the office of the clerk of this court on the 20th day of December, 1895. After the judgment was rendered, and before the appeal was taken, the appellee Samuel A. Browne died. The appeal was prosecuted against the said Samuel A. Browne without regard to the fact that there was no such person in existence at the time the appeal was taken. On the 28th day of January, 1896, appellant filed a motion in this court, entitled "Budd Doble vs. Samuel A. Browne et al.," in which the court was asked to substitute for Samuel A. Browne, one of the appellees herein, the name of William A. Browne, executor of the will of Samuel A. Browne. Accompanying the motion, and filed with it, were the proofs of the death of said Samuel A. Browne. This motion was granted by the court. No further action was taken by appellant until the 25th day of October, 1897, when leave was asked by appellant to file an amended assignment of errors. On December 3, 1896, appellees moved to dismiss the appeal for the following, among other, reasons: (1) Because there is not now, and was not at the time the assignment of errors was filed in this court, any such person living as Samuel A. Browne, who is named as appellee in the assignment of errors herein, as shown by the proof on file. (2) Because the assignment of errors is defective, in this, to wit: That Samuel A. Browne is named as appellee in the assignment of errors, whereas said Samuel A. Browne was dead before the transcript and assignment of errors were filed in this court, as is shown by the proof on file. (3) Because the appeal was taken in the name of Budd Doble as appellant against Samuel A. Browne and Vigo Agricultural Society, appellees, and notice of appeal was served on Lamb & Beasley, attorneys of record for Samuel A. Browne, long after the death of said Browne, as is shown by the proof on file in this court. (4) Because Samuel A. Browne, named and designated in the assignment of errors as an appellee, died, after judgment in the court below, and before this appeal was taken, and before the transcript was filed in this court, and notice of appeal was served upon the attorneys of record in the court below for said Browne, instead of being served upon William A. Browne, executor of the will of Samuel A. Browne, deceased. The facts stated in each of the four specifications of the motion to dismiss are borne out and established by the record. No valid appeal was ever taken in the cause. The attempted appeal is a fiction, and a nullity. It is provided by section 648, Burns' Rev. St. 1894 (section 636, Rev. St. 1881), that: "In case of the death of any or all the parties to a judgment before an appeal is taken, an appeal may be taken by, and notice of an appeal served upon, the persons in whose favor and against whom the action might have been revived if death had occurred before judgment." This is the section of the statute under which the par

ties to this action should have proceeded. It has been held under this section by the appellate courts of this state that they have no jurisdiction of an appeal prosecuted by or against parties who had died after the rendition of the judgment from which the appeal was taken, and before the filing of the appeal in the appellate court. Taylor v. Elliott, 52 Ind. 588; Id., 53 Ind. 441; Branham v. Johnson, 62 Ind. 259; Moore v. Slack, 140 Ind. 38, 39 N. E. 237. In the case of Moore v. Slack, supra, the supreme court of this state .say: "In a notice to the appellees of such motion to substitute, they state that said Belinda A. Moore died before the appeal was taken. Service of this notice is acknowledged by the attorneys for the appellees, and in such acknowledgment say they agree that the substitution may be made. The right to substitute depends on the question whether any appeal is pending at all." The opinion then sets out section 648 (section 636) supra, and continues: "Under this statute it has been held by this court that an appeal taken to the supreme court in the name of a dead appellant is a nullity." At this point in the opinion the court quotes at length from the opinion in the case of Taylor v. Elliott, 53 Ind. 442, and, continuing, says: "Another section provides that 'the death of any or all of the parties shall not cause the proceedings to abate; but the names of the proper persons being substituted, upon consent or upon notice, the cause may proceed.' Burns' Rev. St. 1894, § 649 (Rev. St. 1881, § 637). This was the section the counsel were assuming to act under in this case. But it clearly does not apply, as it is evidently intended to apply only to a case where the death occurs after the appeal, and before the submission of the cause; because another section provides that, if the death of any or all the parties occur after the submission of a cause, judgment shall be rendered as at the term at which the submission was made, without any change of parties.' Burns' Rev. St. § 675 (Rev. St. 1881, § 663). As there was no valid appeal taken in this case, there can be no substitution of parties, either with or without the consent of the appellees, this court having no jurisdiction." This court acquired no jurisdiction of Samuel A. Browne, nor of the appeal herein, and the order made by this court on the 31st day of January, 1896, substituting William Browne, executor of the will of Samuel A. Browne, as appellee in the place of Samuel A. Browne, was void because the appeal was void, and conferred no jurisdiction upon this court over the cause. "No real appeal having been taken, the court never having acquired jurisdiction of the cause, the substitution of a real name in the appellate court in a fictitious appeal on the docket of that court will not convert the fictitious appeal into a real one, and give the court jurisdiction of the cause." Taylor v. Elliott, 53 Ind. 441. But, if this court should have held that the action of the court in

granting appellant's motion to substitute the name of William A. Browne, executor, etc., in the place of Samuel A. Browne, appellee, was valid, and that the court could, under the law, make such an order, still appellant would be in no better situation, because his assignment of errors is fatally defective, and his motion to amend was not filed in this court until October 25, 1897, nearly two years after the pretended appeal was filed in this court. This court will not permit the amendment of the assignment of errors as to a material matter, after the expiration of the time for appeal. There having been no valid appeal taken in this cause, any action of the court herein would be a nullity. The cause is therefore stricken from the docket.

LEITER et al. v. EMMONS. (Appellate Court of Indiana. April 21, 1898.) CONTRACT-CONSTRUCTION-EVIDENCE.

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1. An instrument reciting, "Received wheat, * to be paid for, on demand, in flour at 36 lbs. per bushel, and 12 lbs. bran,' authorizes demand for payment in flour and bran only, and refusal of demand for payment in money does not, therefore, authorize action.

2. The general and known course of business is admissible to explain the ambiguity as to whether a sale or bailment was intended by a contract reciting: "Received * wheat,

in store, to be paid for, on demand, in flour at 36 lbs. per bushel, and 12 lbs. bran, subject to any loss by fires or otherwise.'

Appeal from circuit court, Fulton county; George Burson, Judge.

Action by Lydia Emmons against William J. Leiter and others. Judgment for plaintiff. Defendants appeal. Reversed.

Holman & Stephenson and Baker & Bibler, for appellants. Conner & Rowley, for appellee.

ROBINSON, C. J. Appellee sued appellants for the price of certain wheat alleged to have been sold and delivered by appellee to appellants. The complaint is in four paragraphs, each based upon a separate transaction. With each paragraph is filed a receipt given by appellants when the wheat was delivered. These are all substantially the same. That filed with the first paragraph is as follows: "Pottowatomie Mills, Rochester, Ind., Oct. 12, 1894. Received of Lydia Emmons forty-two 35-60ths bush. wheat, in store, to be paid for, on demand, in flour at 36 lbs. per bushel, and 12 lbs. bran, subject to any loss by fire or otherwise. [Signed] Leiter & Peterson." The receipt shows credits for a certain amount of flour and bran received in part payment. It is alleged in the complaint that appellants had paid appellee at different times a certain amount of flour and bran as part of the pur chase price of said wheat, and that, after deducting such credits, there remained due and owing appellee the market price of 2522/60 bushels, which was worth 67 cents

per bushel; that before the commencement of this action appellee "demanded of the said defendants pay for said balance due her as aforesaid, and at the time of making such demand wheat was worth in Rochester, Ind., 67 cents per bushel, but they refused, and still refuse, to pay the same or any part thereof." A demurrer was overruled to each paragraph of complaint. Appellants answered in four paragraphs, the first of which, the general denial, was withdrawn. Demurrers were sustained to the remaining paragraphs of answer.

A receipt may be so drawn that it will constitute a contract, and that was done in this case. By the terms of the contract appellee was entitled to flour and bran only, in payment for the wheat. She had agreed to accept specific personal property in payment, and she was to receive it only upon demand. No time was fixed when appellants should deliver the flour and bran, nor were they required to do anything until a demand was made by appellee. It was incumbent upon her, before bringing suit, to demand of appellants flour and bran equivalent to the balance of the wheat. She does allege that she demanded pay for the balance of the wheat, which was worth 67 cents per bushel. But this was not a demand for what appellants agreed to pay. The pleading does not show that appellants had failed or refused to do anything under the contract which they had agreed to do. A special demand of the flour and bran was a necessary part of appellee's cause of action, and the absence of this allegation from each paragraph makes the complaint bad against a demurrer. Frazer v. McChord, 1 Ind. 224; Ewing v. French, 1 Blackf. 170; Wilson v. Dale, 16 Ind. 399; Davis v. Doherty, 69 Ind. 11; State v. Mooney, 65 Mo. 494; Bradley v. Farrington, 4 Ark. 532; Widner v. Walsh, 3 Colo. 548.

Other questions discussed by counsel, and which would arise on another trial, will be determined by the construction to be given the receipt above set out. In construing the contract and arriving at the intention of the parties, effect must be given to all the expressions used therein if that can be done. If appellants had received the wheat and simply agreed to pay for it on demand in flour and bran, the transaction would clearly be a contract of sale. Woodward v. Semans, 125 Ind. 330, 25 N. E. 444. But the parties evidently meant something by using the words "in store" and "subject to any loss by fire or otherwise." For us to say that contract was one of sale, we must say that the parties meant nothing by the words "in store," and this we cannot do if the contract is capable of being construed with those words left in. The provisions of the contract are not necessarily contradictory, but the contract is ambiguous. The limitation on the liability for loss by fire could have reference to but two things,-either

the wheat, or its equivalent, flour and bran. It is clear it was not intended to apply to both, and it is equally clear that the parties intended it should apply to one or the other. As it cannot be determined from the contract itself whether the parties intended a bailment or a sale of the wheat, resort may be had to extrinsic evidence to show whether the transaction was a bailment or a sale. As it was a contract made with reference to a particular business, it is presumed that It was made with reference to the ordinary course of such business. In such case, it would be proper to consider the general and known course of business of appellants. While it is true that usage cannot control an express contract, yet, where a contract is ambiguous, the presumption is that it was made with reference to the known usage or general course of the particular business. In such case the question becomes one of fact, to be determined as any other question of fact. Lyon v. Lenon, 106 Ind. 567, 7 N.

E. 311; Reissner v. Oxley, 80 Ind. 580; 3 Am. & Eng. Enc. Law (2d Ed.) 737; Martindale v. Parsons, 98 Ind. 174; Swarts v. Cohen, 11 Ind. App. 20, 38 N. E. 536. Judgment reversed, with instructions to sustain the demurrer to the complaint.

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BREACH OF COVENANT-NOTICE TO COVENANTOR-
INCUMBRANCES-APPEAL-REview-
RES JUDICATA.

1. A covenantee in a warranty deed conveying real estate on which a third person seeks to enforce an incumbrance must not only notify the covenantor of the pendency of the action, but must expressly request him to defend the title, in order to bind the covenantor by any judgment entered therein.

2. The existence of an easement is a breach of a covenant against incumbrances.

3. The right of a grantee to recover against the grantor under a deed covenanting against incumbrances is not defeated because of grantee's knowledge of the incumbrance prior to the execution of the deed.

4. Whether the covenantor was given notice to defend an action brought against the covenantee, and what the notice consisted of, is a question of fact to be determined by the court in an action by the latter against the former to recover the damages suffered thereby.

5. A finding on conflicting evidence will not be disturbed on appeal.

6. A judgment against a grantee enforcing an incumbrance on land conveyed by a deed covenanting against incumbrances, is not of itself evidence of paramount title in the person holding the incumbrance as against the grantor.

7. Where there was a breach of the covenant against incumbrance at the time the deed was executed, the covenantee is entitled to recover from covenantor, whether or not notice of a suit against him on the incumbrance was given to covenantor.

Appeal from circuit court, Pike county; E. A. Ely, Judge.

Action by Willard Teague and others against Alexander Whaley to recover damages for breach of a covenant against incum

brances in a deed made by defendant. From a judgment for defendant, plaintiffs appeal. Affirmed.

Dillon & Greene, for appellants. Richardson & Taylor, for appellee.

COMSTOCK, J. Appellants were plaintiff's below. The complaint, in substance, alleges that appellee, on the 22d day of March, 1895, was the owner of certain real estate in Pike county, Ind. (describing it), and that on that day appellee sold and conveyed the same to appellants by deed containing covenants for warranty; that there was a mistake in the description, and that the consideration paid was $900; that at the time of making and delivering said deed said premises were subject to an easement held by one Mary Hayes thereon of nine feet off the east side of the land conveyed; that thereafter, on the day of 1895, Mary Hayes brought an action in the Pike circuit court against the appellants to have said easement declared of record and enjoining the obstruction thereof; that after the appellants were notified of said suit, the appellants notified the appellee of the pendency of said action and asked him as their grantor to appear and defend said suit and protect the rights of the appellants; that the appellee failed and refused so to do, and they were compelled to defend the same; that they were put to loss of time and expense in court costs and attorneys' fees; that, in addition to said notice, the appellee was in the court house at the time of said trial, and testified as a witness in said cause, and thereby knew of the effort the said Mary Hayes was making to establish said easement and incumbrance, and he still failed and refused to defend the same; that such proceedings were had in the Pike circuit court that upheld said easement, and judgment was rendered against the appellants, enjoining them from molesting said easement, and depriving them of the use of said land occupied by said easement; and that by reason of said judgment the market value of said land is damaged in the sum of $200, and they demand judgment for $500, etc. The appellee appeared, and filed a demurrer to the complaint. The court overruled the appellee's demurrer to the complaint, to which ruling of the court the appellee excepted. The appellee filed an answer in three paragraphs, the first of which is the general denial. The second paragraph of the answer admits the selling and conveying of the real estate as alleged in the complaint, and alleges that at the time of said conveyance the appellants knew that said real estate was free from any easement, right of way, or any other right in said real estate by Mary Hayes, or any other person; that prior thereto appellants had known said real estate for more than 20 years, and knew that Mary Hayes had no easement or right of way over any part thereof; that the appellants then knew that Mary Hayes was the

owner of 40 acres of land adjoining the lands conveyed by the appellee to the appellants, and that she was demanding an outlet from her said land over the lands of the appellants to a public road; that the said Mary Hayes never claimed an outlet from her said lands to the said public road over the lands conveyed by the appellee to the appellants while the same was owned and in the possession of the appellee; "that * * * Mary Hayes brought her action against the appellants for a right of way on and over the lands sold, and that said action was tried in the Pike circuit court without the knowledge of the appellee; that he was not a party to said suit, and had no notice whatever that it was being claimed in said action that said Mary Hayes owned any part of said land, or that she had any easement on and over any part of the same; that the court in said cause found that Mary Hayes had the right of going over a certain strip of land owned by the appellants, upon her, the said Mary Hayes, paying the fair cash value thereof, and the court found in said action that * **the value of the use of said strip was fifteen dollars; that it was found and adjudged by the court in said action that the said Mary Hayes, before entering upon said premises, should pay to the appellants in this action said fifteen dollars, which sum the said Mary Hayes paid to the appellants long before the bringing of this suit; that the appellants accepted the same in full payment and satisfaction of the value of the land occupied and used by Mary Hayes, and for said easement, and for all damages." The third paragraph of answer is a plea of payment. The appellants filed a demurrer to the second and third paragraphs of answer. The court overruled said demurrer, to which ruling appellants excepted. The appellants filed a reply to the second and third paragraphs of the appellee's answer in one paragraph, being the general denial. The cause, being at issue, was tried by the court, resulting in a finding and judgment in favor of the appellee. Appellants assign as error the overruling of the separate and several demurrers of appellants to the second and third paragraphs of appellee's answer, and the overruling of appellant's motion for a new trial.

We think the demurrer to the second and third paragraphs was properly overruled. The controlling question, however, presented by this appeal, is raised by the third assignment of error, viz. the overruling of appellants' motion for a new trial. The reasons specified in the motion are (1) that the decision of the court is not sustained by sufficient evidence; (2) that the decision is contrary to law. When a covenantee in a deed of conveyance of real estate is sued for possession, or where an incumbrance is sought to be enforced against the land, he may, by giving proper notice of the pendency of the suit to the covenantor, and requesting him

to defend against the same, relieve himself of the burden of defending such suit, and cast such duty upon the covenantor, and the covenantor will be bound by the judgment. Morgan v. Muldoon, 82 Ind. 347; Bever v. North, 107 Ind. 544, 8 N. E. 576; Railway Co. v. Wilcox, 122 Ind. 98, 23 N. E. 506. And, if the covenantor fails or refuses to defend the action, the covenantee may do so, and recover off the covenantor in damages the injury to the land, and costs of defending the suit, including attorney's fees. Burk v. Hill, 48 Ind. 52; Quick v. Taylor, 113 Ind. 540, 16 N. E. 588; Hymes v. Esty (N. Y. App.) 31 N. E. 105; 2 Wait, Act & Def. p. 400; 8 Wait, Act. & Def. p. 502. An easement is an incumbrance, and the fact that the grantee knew of it will not defeat his right to recover. Watts v. Fletcher, 107 Ind. 391, 8 N. E. 111.

Whether the judgment in such case would be binding upon the covenantor would depend upon whether a proper notice had been given. The evidence is in the record. It is conflicting as to what was said between the parties in reference to the pending suit. Appellee denies that he was ever requested to defend the suit, or to occupy any other relation than that of witness. No evidence was introduced of appellants' claim to the easement, but the proceedings in the action of Hayes against Teague et al., supra. It is not claimed that the notice of the pendency of the suit was in writing. Whether such notice should be in writing has not, to our knowledge, been passed upon by the supreme or by this court, and outside of our state the decisions are conflicting. In the following cases it has been held that the notice should be in writing: Mason v. Kellogg, 38 Mich. 132; Dalton v. Booker, 8 N. W. 200; Somers v. Schmidt, 24 Wis. 417. In Cummings v. Harrison, 57 Miss. 275, Miner v. Clark, 15 Wend. 427, and Davenport v. Muir, 20 Am. Dec. 143, it has been held that a verbal notice is sufficient. believe the better rule to be to require that the notice should be in writing, and that the weight of reason is with the authorities so holding. It is not, however, necessary that we should, and we do not decide the question. Where the covenantor is not a party to the adverse suit, the covenantee must do more than notify him of the pendency of the action in order to bind him by the judgment. He must request him to defend the title. Boyd v. Whitfield, 19 Ark. 470; Collins v. Baker, 6 Mo. App. 588; Paul v. Witman, 3 Watts & S. 410; Somers v. Schmidt, 24 Wis. 421; Rawle, Cov. § 125, subd. 1; Railway Co. v. Wilcox, supra. Whether the notice was given and the request made is a question of fact to be determined by the court. Cook v. Curtis, 68 Mich. 671. In Paul v. Welman, supra, it was held that the notice, to have the effect of depriving the warrantor of the right to show title, "should be unequivocal, certain, and explicit. A knowl

We

edge of the action and a notice to attend the trial will not do unless it is attended with an express notice that he will be required to defend the title." In the case before us there is a conflict in the evidence as to the notice given by appellants to appellee of the pendency of the suit. Appellee testified that appellants told him they wanted him as a witness, but that he never was told that they wanted him to defend the cause, nor was anything ever said to him about a warranty. It was for the trial court to determine what was said between the parties on the subject. There being a conflict this court will not weigh the evidence. There was evidence to warrant the court in holding that the notice was not sufficient, in that it did not require appellee to defend. The record of the judgment in the case of Hayes against Teague, in the absence of such proper notice to the appellee, would not be evidence of paramount title in Hayes. Rhode v. Green, 26 Ind. 83; Walton v. Cox, 67 Ind. 164; 19 Am. & Eng. Enc. Law, p. 1014; Rawle, Cov. § 123. Appellants relied solely upon this judgment. This was not sufficient. Had appellants shown an existence of the easement when the land was conveyed to them, they would have been entitled to recover, with or without notice to appellee of the pendency of the adverse suit. The trial court was justified in holding that there was, on the part of the appellants, a failure of proof. Judgment affirmed.

HAMILTON v. HENNEMAN. (Appellate Court of Indiana. April 20, 1898.) TRIAL INSTRUCTIONS-APPEAL-REVIEW. 1. Where the jury is once fully and clearly instructed on a given point, the court is not bound to repeat the instructions in different language.

2. Where the maker of a note is sued by the assignee thereof, a request to instruct the jury that they "should consider the plaintiff a bona fide holder and purchaser of the note" should be refused, if there are any circumstances in evidence to the contrary.

3. Where there is some evidence to support a verdict, the appellate court will not disturb it. 4. Error in admitting evidence over appellant's objection is waived by failure to discuss it in the appellate court.

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

Action by Sanford P. Hamilton against Sadie Henneman. From a judgment for defendant, plaintiff appeals. Affirmed.

McCullough & Spaan, for appellant. John M. Bailey, for appellee.

WILEY, J. Appellant was plaintiff below, and commenced an action in replevin before a justice of the peace against appellee. He gave the necessary bond, the goods and chattels were seized by the constable under the writ, and the possession thereof delivered to the appellant. In the justice's court trial was had before a jury, resulting in a

verdict and judgment for the appellee. Appellant appealed to the circuit court, where it was tried by a jury, resulting in a verdict for appellee, but the verdict was set aside and a new trial granted. On the second trial in the circuit court the jury again returned a verdict for appellee, and, over appellant's motion for a new trial, judgment was pronounced on the verdict in favor of appellee. The only error assigned is the overruling of the motion for a new trial.

The motion for a new trial was based upon the following reasons: (1) That the verdict was contrary to the evidence; (2) that the verdict was not sustained by the evidence; (3) that the verdict is contrary to law; (4, 5, 6) that the court erred in giving and in refusing to give instructions; (7, 8, 9) that the court erred in admitting certain evidence over appellant's objections.

The record shows that appellee is a married woman, and that on September 15, 1893, she borrowed of one Wilson $50, for which she gave her note for $57.50, due in 30 days, and secured the payment thereof by a mortgage on household goods, etc. She made payments on this note from time to time, until July 17, 1894, when she was informed by said Wilson that there was still the sum of $55 due, and that she would have to give a new note and mortgage for that amount in lieu of the former one, and that, if she would do so, he would surrender the old note and release of record the old mortgage. She accordingly executed an additional note for $55, due in 30 days, and secured its payment by a chattel mortgage covering the same property as that embraced in the first mortgage. Before the maturity of the second note, which was payable in bank, Wilson assigned it to appellant, for which appellant is alleged to have paid $53. When the note became due, appellant notified appellee that he held it, and that she must pay it. She called on him in response to said notice, and told him she could not pay it all; that she had paid on said indebtedness over $70; and that the note was given without any consideration. After this she made payments to the appellant, six in all, in the sum of $33, and refused to pay any more. property mortgaged was of the value of about $100. On her refusal to pay any additional sum, appellant commenced this action, and claims ownership and possession of the property described in the mortgage by virtue of a provision therein that, in default of payment, the property should vest absolutely in the mortgagee, and he should have the right to the possession thereof.

The

The issue tendered by appellee was: (1) General denial; and (2) that before the note sued on was given she had overpaid the original note of $57.50, in that she had paid over $70 thereon; that Wilson fraudulently represented to her that there was still due $55, and that if she would give a new note for that amount, and secure it by mort

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