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(145 N.E.) in the boundaries of the continental United | railroad companies, which all of such comStates and consisting of railroads, etc.,

panies were required to enter into as a con(and after appointing the Director General), dition of being guaranteed against loss and until and except so far as said Director shall assured the payment of current dividends, from time to time by general or special orders

contained the following provision: otherwise provide, the boards of directors, receivers, officers, and employés of the various "No claim is made by the company for comtransportation systems shall continue the op- pensation for the period between noon of Deeration thereos in the usual and ordinary course cember 28 and midnight of December 31, 1917; of the business of common carriers, in the and the revenues of said period shall belong to names of their respective companies. Until the company, and the expenses thereof shall be and except so far as said Director shall from paid by the company,” etc. time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and And General Orders numbered 2, 10, 17, 20, orders of the Interstate Commerce Commission, 21, 30, and 52, respectively, issued by the and to all statutes and orders of regulating com

Director General of Railroads, enlarged up missions of the various states in which said syg

on and emphasized the proposition that it tems or any part thereof may be situated. * Except with the prior written assent

was only from and after midnight of De of said Director, no attachment by mesne pro-cember 31, 1917, that the United States re

on execution shall be levied on or ceived any part of the income or undertook against any of the property used by any of said to pay any of the liabilities arising from the transportation systems in the conduct of their operation of any railroads. business as common carriers; but suits may be In view of the fact, as above set out, that brought by and against said carriers and judg- the President's proclamation by which the ments rendered as hitherto, until and except so railroads were taken over expressly providfar as said Director may, by general or special ed that "suits may be brought against carorders, otherwise determine. From and after 12 o'clock' on said 28th day of December, 1917, riers and judgments rendered as hitherto unall transportation systems included in this or- til and except so far as the Director General der and proclamation shall conclusively be may, by general or special orders otherwise deemed within the possession and control of determine," and that the Director General said Director without further act or notice. has never issued an order to the contrary as But for the purpose of accounting said posses- to causes of action which arose prior to Jan. sion and control shall date from 12 o'clock mid- uary 1, 1918, but has made contracts and isnight on December 31, 1917."

sued many orders to the effect that the carThereafter, on October 28, 1918, the Direc- riers should have all the income and pay all tor General of Railroads issued general or- liabilities for the period before that date, an der No. 50, which recited the language of action could properly be maintained against the proclamation quoted above, and the fact the railroad company for injuries causing that suits were being brought and judgments death on December 29, 1917. It follows that rendered against carrier corporations on

the trial court did not err in its several rul. matters based on causes of action arising ings of which appellant makes complaint, during federal control, and “therefore or based on a contention that the law is otherdered that actions at law, suits in equity, wise. and proceedings in admiralty hereafter (12, 13] The proclamation of the President brought in any court based on contract, bind by which the railroads were taken over had ing upon the Director General of Railroads, the effect of law, and it was the duty of the claim for death or injury to person, or for court to interpret all matters of law and deloss and damage to property, arising since clare them by its instructions for the guidDecember 31, 1917, and growing out of pos- ance of the jury. The law in force within session, use, control, or operation of any rail. the jurisdiction is matter of judicial knowlroad or system of transportation by the Di- edge, and not something be pleaded and rector General of Railroads, which action, proved; and it was not error to sustain an suit, or proceeding but for federal control objection when the defendant offered to read might have been brought against the carrier that proclamation to the jury as evidence. company, shall be brought against William Carson v. Miami Coal Co. (Ind. Sup.) 141 N. G. Mcadoo, Director General of Railroads, E. 810; West v. New York, etc., R. Co., 233 and not otherwise.” The form of contracts Mass. 162, 123 N. D. 621, 623. between the United States and the several The judgment is affirmed.

EWBANK, J. Appellee, as plaintiff, sued RYAN V. EVANS. (No. 24040.)

to enforce specific performance of a written (Supreme Court of Indiana. Jan. 15, 1925.) contract for the exchange of lands, and re1. Specific performance Per 114(5)-Complaint covered a judgment decreeing that upon confor specific performance and for damages veyance of his lands to defendant, appellant, for inability to perform in part held to state he should receive from defendant a deed for cause of action..

an undivided one-half of the lands which deComplaint alleging agreement for exchange fendant had agreed to convey to him, and of properties, plaintiff's performance, and that should recover $9,412.50 “as compensation" defendant, though he had represented himself because of the inability of defendant to conas owner and agreed to convey certain lands, had but a two-thirds interest therein, remain- vey the other half interest in the lands, der belonging to his wife, and praying specitic which belonged to his wife. Overruling a performance to extent of defendant's ability demurrer to each paragraph of the comand damages in proportion to his inability to plaint, and stating an erroneous conclusion perform, held to state cause of action for of law upon the special finding of facts, specific performance.

among other rulings, are assigned as error. 2. Specific performance on 123—Findings as to

The first and second paragraphs of the performance by defendant held insufficient. complaint are based upon allegations that de

Findings that plaintiff, seeking specific per- fendant is the owner of the lands which he formance of agreement for exchange of lands, agreed to convey, and since it clearly aphad deposited "abstracts to the several tracts,” | pears, without controversy, that at the time held not to amount to finding that good title the contract was entered into and continuwas shown thereby, or that they were submit ously thereafter he owned only an undivided ted to defendant, nor was finding that plaintiff interest in such lands, we shall not consider had "fully performed all the terms and conditions" sufficient under Burns' Ann. St. 1914, the question whether or not the facts there 88 376, 577.

in alleged would constitute a cause of action

if such facts really existed. The findings 3. Specific performance em 123—Findings held

not to constitute findings as to fair market are based upon the third paragraph of the value of land or estoppel to deny values.

complaint and answers thereto. The written Findings that parties to exchange agree-contract sued on, as set out in the third parament had placed certain prices on lands and graph of the complaint and in the special that "they are the fair and reasonable value finding, was executed only by the plaintiff of such lands for all the purposes of this con- and defendant, and provided as follows, in tract, and the parties cannot now dispute substance: That plaintiff agreed to sell and them,” held not to amount to finding that such convey by sufficient warranty deed, and to prices were fair market values, or that any furnish with each tract an abstract showing binding agreement as to values had been made, that he had good title thereto, three describor of estoppel to deny such values.

ed tracts of land, as follows: (1) Some 280 4. Specific performance em 129_Courts should not enforce partial performance and payment

acres in Louisiana, subject to the right of of money in lieu of full performance.

way of a certain railroad, "about 160 acres Where it is impossible to enforce, as made, of said real estate being cleared and im& contract for exchange of properties, value proved, with good fencing and three negro of which has not been agreed on, courts should houses, and the remainder being timber not undertake to make new contract and com- land." (2) Some 80 acres in Iowa, “subject mand that sum of money be paid in lieu of to a first mortgage incumbrance of $2,500, what party may have agreed to give in ex- bearing 5% per cent. interest, and a comchange.

mission mortgage of about $40, also subject 5. Specifio performance Om 10(1)-Remedy for to all ditch and drainage taxes and assess

inability to perform held recovery of dam- ments, and also subject to the tenant's lease ages, and not specific performance.

now on said tract,

reserving the Where defendant, who had agreed to ex- landlord's share of the 1914 crop now on said change of properties with plaintiff on basis real estate.” (3) Some 160 acres in Wisconof "trading price," proved unable to perform in full, plaintiff's remedy, if any, was not spec. sin. And in consideration of the conveyance by ific performance.

plaintiff to defendant of said lands, defend

ant agreed to sell and convey to plaintiff by Appeal from Circuit Court, Grant County : sufficient deed, and to furnish plaintiff with G. A. Henry, Special Judge.

an abstract showing title in himself, certain Action by Wilbur J. Evans against Colver described real estate, as follows: Some 1,P. Ryan. Judgment for plaintiff, and defend- 255 acres in Louisiana, “together with all perant appeals. Reversed, with directions. sonal property belonging to said second parCondo & Browne, of Marion, for appellant. ty [defendant), and also his interest in all

ricler & Messick and Thos. B. Dicken, crops and subject to the tenant's lease." That all of Marion, and James W. Noel and Hubert the exchange of real estate was to be closed Hickam, both of Indianapolis, for appellee. within 30 days if the abstracts could be com

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

(146 N.E.) pleted and examined within that time, and error was committed in overruling defenddeeds were to be executed by said parties ant's demurrer. No question is presented as and placed in a designated bank until the to the sufficiency of its averments, or any abstracts should be completed and approved, of them, to withstand a motion to make them when they should be delivered to the respec- more specific. The defendant answered by a tive grantees.

denial, and by a special plea that plaintiff The third paragraph of complaint alleged had fraudulently misrepresented the quality that the parties executed this agreement in and value of his lands, and thereby had inwriting, and that the mutual covenant of duced defendant to enter into the contract each to convey was the consideration for its in reliance upon such representations, and execution; that within 30 days plaintiff had that plaintiff's lands were worth many thou. executed warranty deeds conveying his lands sands of dollars less than they would be if to defendant, and had deposited them and they were as represented, and that defendabstracts complete to date in the bank nam. ant had rescinded the contract for that reaed, in accordance with the terms of the agree son. And a supplemental answer was filed, ment, and had “performed each and all of alleging that after the action was commencthe conditions of said written agreement on ed the plaintiff had exercised acts of ownhis part by him obligated to be performed"; ership and created liens upon his real esthat plaintiff notified defendant of said facts, tate, by which he had disabled himself to and of the fact that the bank was instructed convey the title thereto subject only to the to deliver said deed and abstracts to defend- liens mentioned in the contract. ant upon performance of his agreement to Pursuant to a written request by the de convey said 1,255 acres to plaintiff, as pro- fendant (appellant) the court made a special vided in the agreement; that defendant failed finding of facts and stated a conclusion of and refused, and still fails and refuses, to law thereon, to which appellant excepted. execute such a conveyance, the action being The special finding contained much surpluscommenced more than a year later; that the age, reciting items of evidence without statdeeds and abstracts are still on deposit in ing the ultimate facts which such evidence said bank, which is now and at all times has proved, and mere conclusions without the been willing, able, and ready to deliver them facts from which they were drawn. But in to defendant upon the execution and deposit | substance the court found the following: with said bank, for delivery to plaintiff, of That plaintiff was the owner in fee of three an abstract showing and a warranty deed tracts of land, situated in Iowa, Louisiana, conveying to plaintiff a good title to said and Wisconsin, respectively, as described in 1,255 acres; that when the contract was ex- the written contract above referred to; that ecuted defendant represented and stipulated defendant and his wife were each the owner therein that he was the owner of said 1,255 of an undivided one-half part of the tract of acres, and was able to convey and warrant 1,255 acres in Louisiana, described in said the title thereto, and that plaintiff believed contract; that after certain negotiations by and relied upon such statement and stipula- letter, telephone, and otherwise plaintiff and tion at that time, and at the time he execut- defendant caused the said contract to be preed his said deeds and deposited them in the pared, and executed it; that at the time of bank, but that defendant owned only an un-executing the contract defendant held himdivided two-thirds interest in said lands, self out to be the owner of all the 1,255-acre while his wife owned the remaining third, tract, with full power to sell and convey it, and that defendant knew those facts at the and told plaintiff that it would not be necestime said contract was executed; that said sary to have the signature of his wife there1,255 acres are still owned and held in the to, and plaintiff did not know that defend. same manner and form as when said written ant's wife owned an interest in said lands, contract was executed; that the only ade- not under the control of her husband; "that quate relief for plaintiff will be specific per- within 30 days thereafter plaintiff executed formance by defendant to the extent of con- proper and sufficient warranty deeds of conveying his interest in said 1,255 acres. The veyance to defendant Ryan for lands respecpleading concluded with a prayer that de- tively in Iowa, Wisconsin, and Louisiana, be fendant be compelled to convey the 1,255 ing the lands owned by plaintiff and speciacres so far as he could, and that plaintiff fied and described in said contract, and with have an abatement of part of the purchase the abstracts to the said several tracts, deprice, or a judgment for the value of any part posited said deeds in the * bank, which defendant might be unable to convey, and gave notice by letter to the defendant in proportion to the interest which it should that he had deposited his deeds and abbe found he could not convey.

stracts pursuant to their said contract," and [1] We think that this paragraph of com- that they remained continuously in the cusplaint sufficiently stated a cause of action tody and possession of the bank thereafter; for specific performance by the conveyance “that said deeds of the plaintiff were warof that interest in the 1,255-acre tract to ranty deeds, such as were contemplated in which defendant might have title, so as to said contract, and that they conveyed to the withstand a general demurrer, and that no defendant the fee-simple title to said three

separate tracts of lands, and that plaintiff ditions imposed on him by said contract." within 30 days after the signing and execu- But the statute (section 376, Burns' 1914; tion of said contract fully performed all the section 370, R. S. 1881), which provides that terms and conditions imposed upon him by in pleading the performance of a condition said contract, and ever since until now he precedent it shall be sufficient to allege the has been and is ready to perform any and conclusion that the party performed all the all conditions of said contract on his part conditions on his part, exprersly enacts that remaining to be performed," but that defend- the facts showing performance must be prov. ant never furnished plaintiff with abstracts ed on the trial; and the statute (section 577, of title to his lands, nor deposited such ab- Burns' 1914; section 551, R. S. 1881) under stracts or deeds of conveyance for his lands authority of which appellant required the with said bank, but after going to see plain- court to find the facts specially provides that tiff's land refused to comply with the con- upon proper request the court "shall first tract, or to go on with the trade, and so told state the facts in writing, and then the conplaintiff's attorney; that all statements and clusions of law upon them.” That the plainrepresentations made by either party to the tiff had fully performed his contract, which other before the contract was executed were bound him, among other things, to furnish substantially true and correct, and were defendant with abstracts showing that he made without fraudulent intent, and there had a good title to the lands he was exchangwas no relationship of trust or confidence ing, was a conclusion to be drawn from the between the parties at the time the contract law governing such contracts, as applied to was executed.

certain facts which plaintiff was bound to Upon these facts the court stated a conclu- prove at the trial, and the existence of which sion of law to the effect that the contract the court must find specially if plaintiff were should be specifically enforced as against the to recover. Merely stating the conclusion, defendant (appellant) by requiring him to without reciting the facts proved, was not convey to plaintiff (appellee) the 1,255-acre sufficient, where a special finding had been tract, and that, in case he proved unable to duly and properly requested. Lester v. Hinconvey all of it, the plaintiff was entitled to kle (Ind. Sup.) 141 N. E. 463; Cable Co. v. recover a sum of money by way of abatement McElhoe, 58 Ind. App. 637, 653, 108 N. E. 790. of the price for the part not conveyed at the We have seen that no facts were found rate of $15 per acre for that part of the as to the value of any of the real estate owntract not conveyed. Defendant excepted to ed by either party, but that the court conthis conclusion of law, and after a number cluded as matter of law that plaintiff was of motions had been made and overruled the damaged in the sum of $9,412.50, and entercourt rendered judgment, as was stated ed a judgment in his favor as against defendabove, decreeing the conveyance to plaintiff ant for that amount. The special finding reof an undivided half of the 1,255-acre tract cited evidence introduced on the issue of by defendant, or by a commissioner appoint- alleged fraud to the effect that some time beed for that purpose, and reciting that “it is fore the contract was executed defendant therefore considered, adjudged, and decreed had written to an agent that he "had been by the court that the plaintiff have and re- holding all along for $15 per acre, but if you cover from said defendant said sum of $9,- (the agent] can make a quick cash sale I will 412.50, together with costs,” etc.

take $12.50 net," and that the day before it [2] It will be observed that while there was was executed defendant, in a conversation an attempt, by the statement of conclusions, with plaintiff, said that he had 1,255 acres to find that plaintiff had executed and ten- of land in Madison parish, La., which he dered deeds for his lands, and that he de would sell for cash for $12.50 per acre, or posited them in the bank "with the abstracts would trade it at $15; and the finding furto the said several tracts," there is no find-ther recited that defendant testified that in ing whatever that he performed his agree the same conversation plaintiff stated that ment to "furnish with each tract of real es- he was holding his 280 acres in Louisiana at tate so conveyed a good and sufficient ab- $20 per acre, would sell his 160 acres in Wisstract of title, showing a good and sufficient consin at $35 per acre, and that his 80 acres title to said real estate in said" appellee, nor in Iowa was easily worth $150 per acre, but that the abstracts deposited with the bank that plaintiff denied making such statements, showed appellee to have a good title, nor and another witness, who heard the converthat they were ever delivered or offered to sation, could not remember what price he defendant for examination, or put where he fixed on the 280 acres in Louisiana; and the might examine them without first conveying court made a "finding" as follows (our italbis land; whereas, the contract provided ics) : that the deeds should be deposited and the

tion of values the parties, for the purpose of examination and approval, and should show the contract, themselves fixed and agreed upon appellee to have a good title. Appellee re- the prices and values at which the various lies on the recital in the special finding that tracts of land respectively were held by each he "fully performed all the terms and con- party, prior to the signing and execution of the

abstracts submitted to the other party for :"(12) The court finds that upon the ques

(145 N.E.) contract, which prices and values are as fol- , tract. And even without the evidence enough lows: The 80-acre tract in the state of Iowa appears to show that this cause was tried on owned by the plaintiff, $150 per acre; the 160- the wrong theory, and that in the interest of acre tract in the state of Wisconsin owned by justice the parties should be given an opporthe plaintiff, $35 per acre; the 280-acre tract tunity to present the facts that are really in the state of Louisiana owned by the plain

pertinent. tiff, $20 per acre; the 1,255-acre tract in the state of Louisiana owned by the defendant,

The judgment is reversed, with directions $15 per acre. And the court finds that, as to grant a new trial, and for further proceedthese prices, or values, were placed upon these ings not inconsistent with this opinion. lands by the parties themselves, they are the fair and reasonable values of said lands for all the purposes of this contract, and the parties CITY OF TERRE HAUTE v. Helen J. JOHNS. cannot now dispute them."

(No. 12039.) [3] Whatever the foregoing may mean, it (Appellate Court of Indiana, Division No. 2.

Feb. 5, 1925.) does not amount to a finding that the different tracts of land mentioned were of fair

Appeal from Circuit Court, Sullivan County; market values as stated, nor that the parties

W. Wood, Judge. had made a binding agreement with each oth Miller Davis, and Randolph H. Mayes, both er fixing said values, nor that facts existed of Terre Haute, and Lindley & Bedwell, of which estopped the parties, respectively, or

Sullivan, for appellant. either of them, to deny that each or either Charles D. Hunt, of Sullivan, for appellee.

George W. Wells, of Terre Haute, and tract was of the value indicated. The prices at which lands were held by the parties for NICHOLS, J. Action by appellee against aptrading purposes could not control in deter-pellant for damages resulting from a personal ming questions depending upon the actual injury alleged to have been received by appellee market values. The language used may re- because of a defective sidewalk in appellant fer to some items of evidence not in the rec of the court in overruling appellant's motion for

city. The only error relied upon is the action ord, which may have tended to prove the

a new trial, under which appellant presents ervalues, but clearly is not such a finding of ror of the court in refusing to give instructions market values as will support a conclusion tendered by it and that the damages assessed that plaintiff's damages by reason of failing were excessive. to obtain title to one-half of the 1,255-acre The substantial facts, as appear by the evitract amounted to $7.50 per acre, for which dence, are that there was a hole in the sidewalk judgment was rendered.

in a thickly populated part of the city, which [4] The authorities hold that, where the had been there for nine months or more. There

is some variation in the evidence as to the size parties have merely agreed to an exchange of this hole, but there was ample evidence that of one article for another, without agreeing it was as much as 4 or 5 inches wide, about ? upon the money value of either, and it is not inches long, and 5 inches deep at one end. It possible to enforce the contract substantial- is sufficient to say that it was deep enough so ly as it was made, a court should not un- that, when appellee stepped into it, she was dertake to make a new contract for them by caused to fall thereby, and suffered the injury commanding that a sum of money fixed by the for which she seeks damages in this case. The court shall be paid in lieu of all or a large evidence further shows that appellee was inpart of what one party had agreed to give in jured August 30, 1921, at which time she was exchange. A party having the knowledge that had been theretofore doing her washing and

and had theretofore been in good health and a "trading price” had been placed on proper-housework. She was a large woman, weighing ty in excess of its value might put a like price over 200 pounds. When she stepped into the on his own property and agree to an ex- hole she fell to the sidewalk, her foot remaining change of the properties, even though he in the hole until removed by persons who came knew that neither would sell in the market to her rescue. She was so injured that she was for the price put upon it; but he would not confined to her home, and part of the time to agree to give half of his property and pay able to attend to her work up to the time of the

her bed, for 10 weeks, and was thereafter unhalf of the inflated price in money for prop. trial. During all of the time she suffered great erty which he knew was not worth any such pain. We deem it unnecessary to specifically amount. Sternberger v. McGovern, 56 N. Y. describe the injuries which she suffered as ap12; Saberski v. Velosky (Sup.) 11 N. Y. pears by the evidence. Supp. 668; Morss v. Elmendorf, 11 Paige While appellant has, as one of its reasons for (N. Y.) 277, 287; Olsen v. Lovell, 91 Cal. 506, a new trial, assigned that the evidence was in27 Pac. 765; Brisbane v. Sullivan, 86 N. J. sufficient to sustain the verdict of the jury, and Eq. 411, 99 Atl. 197.

that it was contrary to law, it has not present. [5] The evidence is not in the record, and fully examined the evidence as it appears in the

ed these questions in this court. Having carewe cannot know what was proved at the briefs, we are satisfied that the cause was proptrial, or what may be proved when the case erly tried upon its merits, and that a correct is again tried. But upon the facts stated in result was reached. Under such circumstances, the special finding the plaintiff would not be this court will not reverse because of error in entitled to specific performance of his con-| refusing to give instructions. We may say,

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