approval of the result by the common council, so far violates his duty towards such owners as to exercise upon the common council an influence adapted in its character to affect unduly in his favor the determination of the council, such influence being thus exerted by the contractor for the purpose of so affecting the decision, and in fact having the intended effect of influencing the council to the making of an assessment which, if enforced. will be actually injurious to such persons through the compulsory payment thereby of the proper price of a sewer constructed according to contract, for a sewer which, by reason of failure to comply with the contract, is not beneficial to such owners, and is worthless and injurious, there is such harmful violation of duty as amounts to the fraud for which the courts will interpose, when properly invoked, for the purpose of preventing its success. We do not hold the employment of the members of the common council by the contractors for the superintendence of the work as necessarily and of itself a fraud, as a matter of law. There must be fraud in fact. We cannot say that such employment was not adapted to unduly influence, and it is expressly averred that the contractor employed the councilmen, and paid them high wages, for the purpose of procuring such influence, and that it did have the effect so intended. It was not necessary to state the evidence by which such effect would be proved; it was sufficient to state the ultimate issuable fact. Whatever criticisms might properly be made upon the structure of the third and fourth paragraphs of answer, we regard each of them as containing the essentials of a good defense. It will be for the court upon the trial to determine upon the evidence whether or not, in fact, the alleged effect was produced which it is averred was fraudulently purposed and accomplished. The judgment is reversed, with instruction to overrule the demurrer to the fourth and fifth paragraphs of answer. (24 Ind. App. 634) WOODY v. HAWORTH. (Appellate Court of Indiana. May 17, 1900.) NONNEGOTIABLE NOTES-INDORSEMENT BY FIRM-DISSOLUTION-LIABILITIES. Plaintiff and defendant, as partners, guarantied payment of nonnegotiable notes to which they were strangers; indorsing one in blank, and another for value received. At maturity the maker failed to pay, and, the partnership being dissolved, plaintiff paid the notes. In an action to recover defendant's proportionate amount, the answer alleged that, on dissolution of the firm, plaintiff had agreed to pay the "indebtedness" of the firm. Held, that the indorsements of the firm were original engagements, binding the signers unconditionally to pay the notes, and within the indebtedness assumed by plaintiff. Appeal from superior court, Howard county; Hiram Brownlee, Judge. Action by John L. Woody against Lisbon J. Haworth to recover his proportion of a BLACK, J. Appellant's complaint against the appellee contained four paragraphs. In the first it was shown, in substance, that on the 23d of August, 1887, one John M. Ratcliff executed his promissory note, not negotiable in the commercial sense, to the firm of Whitley, Fassler & Kelley, for $65, due December 25, 1889, and the appellant and the appellee, who were partners, guarantied the payment of the note by indorsement thereon in writing as follows: "For value received, I guaranty the payment of the within note when due, and waive demand, notice of nonpayment, and protest. Woody & Haworth." It was alleged that at the maturity of the note the maker failed to pay it, or any part of it; that he then was, and still continued to be, notoriously insolvent, so that an execution would have been unavailing; that the firm of Woody & Haworth had long since been dissolved, and an account of their co-partnership business had been adjusted and settled between the parties; that afterwards, in January, 1892, the appellant was compelled to, and did, pay off to Whitley, Fassler & Kelley the total amount of the principal and interest on the note, being $83; that at the special instance and request of the appellee the appellant paid off the appellee's one-half liability on the note, being $41.50, whereby the appellee became indebted to the appellant in that sum, which indebtedness, with interest thereon, was due and unpaid; that appellant had demanded payment of appellee, but no part had been paid. In the second paragraph of complaint it was averred, in substance, that on the 31st of August, 1888, the appellant and the appellee and one Abraham Middleton were equal partners, etc.; that on that day one John B. Chapman executed his promissory note, not negotiable by the law merchant, to the Whitley Reaper Works, for $55, due December 25, 1890, and the appellant, the appellee, and said Middleton guarantied the payment of said note when due by the indorsement in writing of their firm name across the back thereof as follows: "Woody, Haworth & Middleton;" that at the maturity of the note the maker failed to pay it or any part of it; that he was then, and had since continued to be, notoriously insolvent, so that an execution would have been unavailing: that the firm of Woody, Haworth & Middleton was long since dissolved, and an account of the co-partnership business had been adjusted and settled between the partners; that afterwards, in January, 1892, the appellant was compelled to, and did, pay off to the Whitley Reaper Works the total amount due on this note, being $66; that said Middleton then was, and ever since had continued to be, notoriously insolvent, so that an execution would have been unavailing; that he had failed to pay any part of said note; that at the special instance and request of the appellee the appellant paid off the appellee's one-half liability on the note, being $33, whereby he became indebted to the appellant, etc.; demand and failure to pay being averred. The third and fourth paragraphs of complaint were like the second, except that they related, respectively, to different notes of said Chapman. A demurrer to the second paragraph of answer was overruled. In that pleading the appellee admitted the averments of the complaint charging the execution of the notes and their indorsement, and that the firms were comprised of the members named in the complaint; and it was alleged that on the 11th of April, 1890, the appellant and the appellee fully adjusted and settled all matters pertaining to their said partnership business, including any liability existing or contingent upon the indorsement of the notes described in the complaint; that by the terms of said settlement the appellant acquired all notes and accounts belonging to the then existing firm of Woody & Haworth, and agreed in consideration thereof to assume, and did assume, all of said firm's indebtedness and liabilities, including that upon said indorsement; that said agreement was in writing as follows: "Russiaville, Ind., April 11th, 1890. This is to certify that J. L. Woody has this day bought all the notes. and accounts that belong to Woody and Haworth, and I, J. L. Woody, will not hold L. J. Haworth accountable for the payment of any of said notes belonging to the above-named firm; and I also agree to pay the indebtedness of said firm. J. L. Woody." It was further alleged that prior to the execution of said agreement said Middleton had retired from the firm; said Woody & Haworth assuming all the liabilities of said Middleton as a member of the firm, including said notes. The dispute of counsel relates chiefly to the action of the court in holding this to be a sufficient answer, and the argument is directed particularly to the question as to the effect to be given to the word "indebtedness" in the instrument above set forth signed by the appellant; it being claimed on behalf of the appellant that the liability of the parties to this action under the indorsements shown in the complaint was a merely contingent liability, and one which ought not to be regarded as included within the meaning of the word "indebtedness," as so used. In a strict or collateral guaranty, the obligation of the guarantor is that the principal shall perform his undertaking, or, if he fail, that the guarantor will pay the resulting damages; but, when the promise of the 57 N.E.-18 guarantor is to do what another is bound to do if he shall not do it himself, this is not a strict or collateral guaranty, but is distinguished as an original undertaking, in the nature of suretyship. Nading v. McGregor, 121 Ind. 465, 470, 23 N. E. 283, 6 L. R. A. 686. The undertaking indorsed upon the note of Ratcliff, stated in the first paragraph of complaint, was an original, direct, and absolute engagement, binding the signers thereof unconditionally to pay the note. This distinction between such an undertaking and a strict or collateral guaranty has been pointed out and illustrated often in the Reports of this state, and the subject has been so fully discussed that we need only cite some of the many cases in which it is involved. See Burham v. Gallentine, 11 Ind. 295; Sample v. Martin, 46 Ind. 226; Studabaker v. Cody, 54 Ind. 586; Frash v. Polk, 67 Ind. 55; Milroy v. Quinn, 69 Ind. 406; Manufacturing Co. v. Black, 111 Ind. 308, 12 N. E. 504; Wright v. Griffith, 121 Ind. 478, 23 N. E. 281, 6 L. R. A. 639; Conduitt v. Ryan, 3 Ind. App. 1, 29 N. E. 160; Shearer v. R. S. Peale & Co., 9 Ind. App. 282, 36 N. E. 455; Lane v. Mayer, 15 Ind. App. 382, 44 N. E. 73; Wall-Paper Co. v. Emmerson, 17 Ind. App. 482, 46 N. E. 1018. The indorsements set forth in the paragraphs of the complaint, other than the first, were indorsements in blank in the firm name, made at the time of the execution of the notes, which were not negotiable by the law merchant; the indorsers not being parties to the notes, or related thereto otherwise than through their indorsements, whereby, it is alleged as to each of such indorsements, the indorsers "guarantied the payment of said note when due." Where the note so indorsed is negotiable by the law merchant, the rule of law established in this state is that the stranger so writing his name upon the back of the paper, in the absence of extraneous explanatory evidence as to his relation to the paper, thereby assumes, as between himself and the payee, the liability of a first indorser. Pool v. Anderson, 116 Ind. 88, 18 N. E. 445, 1 L. R. A. 712. But where the note so indorsed by one not otherwise a party to it, at or prior to the time of its inception, without any express contract defining the nature and extent of his undertaking, is a note not negotiable by the law merchant, the person so signing his name upon the back thereof will be held as a surety or joint promisor upon the note. See Pool v. Anderson, supra, which reasserts the rule laid down in Wells v. Jackson, 6 Blackf. 40. See, also, Kealing v. Vansickle, 74 Ind. 529; De Pauw v. Bank, 126 Ind. 553, 25 N. E. 705, 26 N. E. 151, 10 L. R. A. 46. It is not needed that we examine and decide the question whether the contingent liability of one whose engagement is a collateral guaranty, or is the undertaking of one bound as an indorser of commercial paper, is an "indebtedness," properly so called, and within the meaning of that word in the instrument signed by the appellant and set up in the second paragraph of reply, inasmuch as the indorsement mentioned in the first paragraph of complaint was an original and absolute engagement of the signers thereof (the appellant and the appellee) to pay the note on which it was indorsed, and the indorsements mentioned in the other paragraphs of complaint made the partners whose firm name was so signed prima facie sureties or joint promisors, and it was not shown that by any of these indorsements a contingent liability was created. Under the assignment that the court erred in overruling the appellant's motion for a new trial, some matters occurring upon the trial are mentioned in argument, without much observance of the rules relating to briefs in this court. The matters thus suggested are of such elementary character that no useful purpose could be served by discussing them. We do not find any available error. Judgment affirmed. (25 Ind. App. 645) RAZOR V. MEHL. 1 (Appellate Court of Indiana. April 17, 1900.) EXECUTORS AND ADMINISTRATORS-LETTERS OF ADMINISTRATION-VALIDITY -REVOCATION. Under Burns' Rev. St. 1894, §§ 2380, 2381 (Horner's Rev. St. 1897, § 2227, 2228), providing that after the death of an intestate letters of administration "shall be granted in the county, first, where at his death the intestate was an inhabitant," letters of administration granted in the county of which the intestate was an inhabitant at his death are void, if granted while letters previously issued in a wrong county are in force,-such letters being voidable only, and not void,-and confer no authority on the administrator to institute proceedings to revoke the letters first issued. Appeal from circuit court, Elkhart county; H. D. Wilson, Judge. Action by Aaron A. Razor, administrator, against Abraham C. Mehl, administrator. From an order sustaining a demurrer to his petition, plaintiff appeals. Affirmed. S. J. North and Low W. Vail, for appellant. E. A. Dausman, for appellee. COMSTOCK, J. The petition in this cause alleges that John L. McPherson died intestate on the 30th day of November, 1898, at Kosciusko county, Ind., of which county he had been an inhabitant since "his removal to said county in the month of September, 1898, from Elkhart county"; that the petitioner was, on the 16th day of January, 1899, appointed administrator of said decedent's estate by the Kosciusko circuit court; that decedent, at the time of his death, was the owner of a farm and some personal property situate in Elkhart county; that on the 12th day of December, 1898. Abraham C. Mehl 'Rehearing denied, 58 N. E. 734. (appellee) "was duly appointed by the Elkhart circuit court administrator of the estate of the decedent, all of which is in the possession of said Mehl." The petitioner asks that Mehl be removed from his trust, and that he be required to turn over to the appellant said property, upon the ground that the Elkhart circuit court had nonjurisdiction to make the appointment. To this petition the court sustained a demurrer for want of facts. Appellant declining to plead further, the court adjudged appellee to be the legal administrator. The ruling of the court upon the demurrer is the only error assigned upon this appeal. The statute provides that, after the death of an intestate, letters of administration shall be granted in the county, first, where at his death the intestate was an inhabitant. Sections 2380, 2381, Burns' Rev. St. 1894 (sections 2227, 2228, Horner's Rev. St. 1897). It appears from the petition that the decedent was an inhabitant of Kosciusko county at the time of his death. It appears, also, that before the time of 20 days, within which, under the statute, letters of administration are to be issued to certain persons in the order named upon application, appellee was appointed administrator by the Elkhart circuit court. Authority to grant letters of administration is wholly statutory. Railroad Co. v. Swayne's Adm'r, 26 Ind. 477; Croxton v. Renner, 103 Ind. 223, 2 N. E. 601. From the averments of the petition, the court was without jurisdiction to appoint appellee. "When it is shown there was no jurisdiction, the decedent being domiciled at the time of his death in another county," "it is the duty of the court, upon application of any party in interest, or even ex mero motu, to annul or revoke letters granted." It has been decided, however, that letters issued in the wrong county of the state of which the decedent was an inhabitant at the time of his death are not void, but voidable only. Woerner, Adm'n, § 268; Rice, Am. Prob. Law, 337. The circuit courts of Elkhart and Kosciusko counties had concurrent probate jurisdiction. Elkhart county having first assumed jurisdiction in the case before us, it retained exclusive jurisdiction until its action was set aside. It follows that the issuance of letters in Elkhart county was valid until revoked, and, as there cannot be two valid administrations within this state upon the same estate, the administration in Kosciusko county was void. The grant of letters to appellant conferred no authority nor interest which authorized him to institute this proceeding to revoke the letters issued to the appellee. Coltart v. Allen, 40 Ala. 155. See, also, Cunningham v. Tuley (Ind. Sup.; Nov. Term, 1899) 56 N. E. 27. Appellee has not filed a brief, but we presume that this was the view taken by the trial court. Judgment affirmed. 1. When a husband receives property of his wife, and with her knowledge and consent deals with it as his own, without any express promise to repay, the presumption is that it was not a gift, but that he took the property as trustee for her. 2. Where a husband received funds belonging to his wife, and with her knowledge and consent retained the same and used it in his business, without any express agreement to repay it or to pay interest, and she made no demand for the repayment, she is not entitled to interest. Robinson, J., dissenting. Appeal from circuit court, Morgan county; George W. Grubbs, Judge. Action by Elizabeth V. King against John W. King, as administrator, to establish a claim against the estate of John R. King. From a judgment in favor of claimant, defendant appeals. Modified. Ed. A. Davis and Willis Hickam, for appellant. Henley & Wilson and Oscar Mathews, for appellee. HENLEY, J. Appellee filed her claim against the estate of John R. King, her deceased husband. The cause was tried by the court. At the request of the appellant, the court found the facts specially, and stated its conclusions of law thereon. Because of the fact that the vital question in the cause arises upon the special findings and conclusions of law, we set them out in full, viz.: "(1) The claimant, Elizabeth V. King, is the surviving second wife of the decedent, John R. King. They were married in November, 1873. She had been previously married to one Presley Buckner, and had by him three children, James M. Buckner, Thomas Buckner, and Nancy Buckner, who subsequently intermarried with Wm. H. Hancock. At the time of the marriage the ages of the children ranged from 13 to 21 years; the oldest son then residing in Missouri, and the others in the family with the claimant and Mr. King, where they remained some three or four years. Thereafter these children lived at various times in the states of Missouri, Kansas, Illinois, Tennessee, and in Monroe county, Indiana. The decedent also had five children by a former marriage, four of whom lived in the family of decedent and claimant for an uncertain period after their marriage; their ages ranging from 7 to 20 years. **(2) In January, 1874, the father of claimant died. His estate was settled and distributed without administration. The claimant received as her interest in said estate in February, 1874, the sum of $2,196, in the following items, to wit: "The settlement of claimant's interest in her father's estate was made with the decedent, John R. King, and all the above notes went into his hands. The Buskirk note, of $1,846, was given in lieu of land, and was made payable to John R. King. He afterwards took two notes of Joseph Hodge, of $500 each, in part payment of the Buskirk note, and received the residue, about $800, in a land trade with Buskirk. He collected the other notes, used the money in his business, loaned some of it out in his own name, and some $800 of it going into land of which he died seised. At various times during the marriage, upon the order and direction of his wife, the claimant, he paid out portions of said money to the children of claimant, and gave them certain property, which was to be credited upon the indebtedness to his wife. There was no accounting between them during his lifetime. "(3) During the marriage, and prior to his death, the decedent, John R. King, at the request and by the direction of the claimant, sent, by draft, money order, or otherwise, and paid, to the children of claimant, money, and delivered to them property, in the amount and to the value following, which said several sums are entitled to be credited and taken in part payment of the $2,196 received by the decedent, belonging to the claimant; that is to say: Amounts paid to and received by Wm. H. Hancock : 1875. Bay mare delivered to him..... $ 65 250 66 66 66 200 By draft, Ex. G.... Money order... 200 25 Amounts paid James M. Buckner: 1876. Amt. paid Dr. Eastman.. Dr. Osgood.. 1877. Horse & buggy rec'd..... 1879. Amt. paid at home. 1881, Mar. 5. By draft, St. Joe, Mo. 1896, 7. Money order. Dec. 26. 66 Total 66 66 "(4) As to interest: Decedent is entitled to be charged with interest on the amount in his hands belonging to claimant at the rate of 6 per cent., to be calculated as upon a promissory note where partial payments had been made, except that from and after December 13, 1878, the date when decedent traded lands with James Buskirk in order that he might save the debt, and took $800 in land, interest should be counted only upon what remained then due and unpaid, after deducting therefrom $800; the finding being that, upon this portion of the principal so invested in the land, interest should not, in equity, be calculated from and after December 13, 1878. "Upon the foregoing special finding of facts, the court states, as conclusions of law, that claimant is entitled to recover upon her claim herein; that there remains due and unpaid, of principal and interest, the sum of $1,875.80, which should be allowed as a claim against said estate of the seventh class, and which should be paid by the administrator out of any moneys or assets of said estate in his hands as other such claims are paid." The facts found present a case where the property of the wife, the principal of the fund, passed into the hands of her husband with her consent, with no finding as to whether a gift was intended, or whether the husband received the money as her agent or trustee. The presumption is that it was not a gift. 2 Lewin, Trusts, No. 778; Crawley, Husb. & W. 268; Eversley, Dom. Rel. 409; Wales v. Newbould, 9 Mich. 45; Jones v. Davenport, 44 N. J. Eq. 33, 13 Atl. 652; Hileman v. Hileman, 85 Ind. 1; Armacost v. Lindley, 116 Ind, 295, 19 N. E. 138; Denny v. Denny, 123 Ind. 240, 23 N. E. 519. Under the facts, the court was warranted in holding that the husband took the property as trustee for his wife, although there was no express promise to repay. Parrett v. Palmer, 8 Ind. App. 356, 35 N. E. 713; Garner v. Graves, 54 Ind. 188. It is insisted that the court erred in rendering judgment in appellee's favor for a greater amount than the amount of the principal found due her. The amount of unpaid principal, according to the finding of the court, was $516. The difference between that amount and $1,875.80, the judgment rendered in appellee's favor, is made up by the accumulation of interest at 6 per cent. for a long period of time. The question then is, was appellee entitled to interest upon the fund in her husband's hands, under the facts found by the court? This was not a loan of money from the wife to the husband. There was no agreement to repay the principal, or to pay interest thereon. There was no demand made for the repayment of the money, and consequently no refusal. It is not a case of "money due on any instrument in writing, on account stated from the day of settlement, or an account closed upon the day an itemized bill shall have been rendered and payment demanded, or on money had and received for the use of another and retained without his consent." See section 5200, Horner's Rev. St. 1897. It is true that the court has found that the decedent should be charged with interest on the amount in his hands belonging to claimant at the rate of 6 per cent. per annum, to be calculated as upon a promissory note where partial payments had been made. But this is a mere conclusion, not based upon any facts found which justify it. If by the finding it appeared that there was an agreement to repay the money, with interest, or that appellee had demanded the return of the money, and decedent had refused to repay it, or that the money was taken into decedent's possession without appellee's consent, and retained against her wishes, the interest charge might be sustained. If the court was to establish a rule permitting interest to be charged in cases presenting such facts as are presented by this case, a small amount of principal placed in the hands of the husband by the wife, without any intention upon her part at the time of ever demanding repayment or of treating the transaction as a debt, could, in the course of a long period of years, by the accumulations of interest, be used by the wife as a means of wiping out an estate, to the disadvantage of creditors and heirs. The special finding is silent as to any fact necessary to uphold a charge of interest. The facts found would entitle appellee to judgment for the amount found to be due her, after deducting the various sums which the finding shows the estate of decedent should have credit for. The judgment is reversed, with instructions to the court below to restate its conclusions of law, and render judgment in favor of appellee for $516. ROBINSON, J., dissents. (24 Ind. App. 622) INDIANA BOND CO. v. SHEARER et al. (Appellate Court of Indiana. May 15, 1900.) APPEAL AND ERROR-ASSIGNMENT OF ERRORMUNICIPAL CORPORATIONS-ASSESSMENTSAPPROVAL BY BOARD OF TRUSTEES. 1. An assignment of error that the trial court erred in entering judgment against appellant presents no question for review. 2. A proposed assessment for benefits to property resulting from the construction of a municipal improvement does not become a lien on the property until approved by the board of trustees and recorded, as provided by Burns' Rev. St. 1894, § 4294. 3. On appeal in an action to enforce an assessment for a municipal improvement, an assignment of error that the trial court erred in admitting evidence as to the benefit which the property against which the assessment was sought to be enforced received by the construction of the improvement is too general to be considered. Appeal from circuit court, Marion county; Henry Clay Allen, Judge. Action by the Indiana Bond Company |