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(145 N.E.)

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"No claim is made by the company for compensation for the period between noon of December 28 and midnight of December 31, 1917; and the revenues of said period shall belong to the company, and the expenses thereof shall be paid by the company," etc.

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 transportation systems shall continue the operation thereof in the usual and ordinary course of the business of common carriers, in the names of their respective companies. Until and except so far as said Director shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission, and to all statutes and orders of regulating commissions of the various states in which said systems or any part thereof may be situated. Except with the prior written assent of said Director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers; but suits may be brought by and against said carriers and judgments rendered as hitherto, until and except so far as said Director may, by general or special orders, otherwise determine. From and after 12 o'clock on said 28th day of December, 1917, all transportation systems included in this order and proclamation shall conclusively be deemed within the possession and control of said Director without further act or notice. But for the purpose of accounting said possession and control shall date from 12 o'clock midnight on December 31, 1917."

Thereafter, on October 28, 1918, the Director General of Railroads issued general or der No. 50, which recited the language of the proclamation quoted above, and the fact that suits were being brought and judgments rendered against carrier corporations on matters based on causes of action arising during federal control, and "therefore ordered that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director General of Railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of possession, use, control, or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit, or proceeding but for federal control might have been brought against the carrier company, shall be brought against William G. McAdoo, Director General of Railroads, and not otherwise." The form of contracts between the United States and the several

And General Orders numbered 2, 10, 17, 20, 21, 30, and 52, respectively, issued by the Director General of Railroads, enlarged upon and emphasized the proposition that it was only from and after midnight of December 31, 1917, that the United States received any part of the income or undertook to pay any of the liabilities arising from the operation of any railroads.

In view of the fact, as above set out, that the President's proclamation by which the railroads were taken over expressly provided that "suits may be brought against carriers and judgments rendered as hitherto until and except so far as the Director General may, by general or special orders otherwise determine," and that the Director General has never issued an order to the contrary as to causes of action which arose prior to January 1, 1918, but has made contracts and issued many orders to the effect that the carriers should have all the income and pay all liabilities for the period before that date, an action could properly be maintained against the railroad company for injuries causing death on December 29, 1917. It follows that the trial court did not err in its several rulings of which appellant makes complaint, based on a contention that the law is otherwise.

[12, 13] The proclamation of the President by which the railroads were taken over had the effect of law, and it was the duty of the court to interpret all matters of law and declare them by its instructions for the guidance of the jury. The law in force within the jurisdiction is matter of judicial knowledge, and not something to be pleaded and proved; and it was not error to sustain an objection when the defendant offered to read that proclamation to the jury as evidence. Carson v. Miami Coal Co. (Ind. Sup.) 141 N. E. 810; West v. New York, etc., R. Co., 233 Mass. 162, 123 N. E. 621, 623. The judgment is affirmed.

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RYAN v. EVANS. (No. 24040.) (Supreme Court of Indiana. Jan. 15, 1925.) 1. Specific performance 114(5)-Complaint for specific performance and for damages for inability to perform in part held to state cause of action..

EWBANK, J. Appellee, as plaintiff, sued to enforce specific performance of a written contract for the exchange of lands, and recovered a judgment decreeing that upon conveyance of his lands to defendant, appellant, he should receive from defendant a deed for 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 specific 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. The first and second paragraphs of the 2. Specific performance 123-Findings as to performance by defendant held insufficient. complaint are based upon allegations that deFindings 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, §§ 376, 577.

3. Specific performance 123-Findings held not to constitute findings as to fair market value of land or estoppel to deny values.

Findings that parties to exchange agreement had placed certain prices on lands and that "they are the fair and reasonable value of such lands for all the purposes of this contract, and the parties cannot now dispute them," held not to amount to finding that such prices were fair market values, or that any binding agreement as to values had been made, or of estoppel to deny such values.

the question whether or not the facts there in alleged would constitute a cause of action if such facts really existed. The findings are based upon the third paragraph of the complaint and answers thereto. The written contract sued on, as set out in the third paragraph of the complaint and in the special finding, was executed only by the plaintiff and defendant, and provided as follows, in substance: That plaintiff agreed to sell and convey by sufficient warranty deed, and to furnish with each tract an abstract showing that he had good title thereto, three describ

ed tracts of land, as follows: (1) Some 280 4. Specific performance 129-Courts should acres in Louisiana, subject to the right of not enforce partial performance and payment way of a certain railroad, "about 160 acres of money in lieu of full performance. Where it is impossible to enforce, as made, of said real estate being cleared and ima 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. Specific performance 10(1)-Remedy for to all ditch and drainage taxes and assessinability 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 landlord's share of the 1914 crop now on said real estate." (3) Some 160 acres in Wisconsin. And in consideration of the conveyance by plaintiff to defendant of said lands, defendant 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.

Where defendant, who had agreed to exchange of properties with plaintiff on basis of "trading price," proved unable to perform in full, plaintiff's remedy, if any, was not specific performance.

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an abstract showing title in himself, certain described real estate, as follows: Some 1,

Action by Wilbur J. Evans against Colver P. Ryan. Judgment for plaintiff, and defend-255 acres in Louisiana, "together with all perant appeals. Reversed, with directions.

Condo & Browne, of Marion, for appellant. Stricler & Messick and Thos. B. Dicken, all of Marion, and James W. Noel and Hubert Hickam, both of Indianapolis, for appellee.

sonal property belonging to said second party [defendant], and also his interest in all crops and subject to the tenant's lease." That the exchange of real estate was to be closed within 30 days if the abstracts could be com

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

(145 N.E.)

pleted and examined within that time, and deeds were to be executed by said parties and placed in a designated bank until the abstracts should be completed and approved, when they should be delivered to the respective grantees.

The third paragraph of complaint alleged that the parties executed this agreement in writing, and that the mutual covenant of each to convey was the consideration for its execution; that within 30 days plaintiff had executed warranty deeds conveying his lands to defendant, and had deposited them and abstracts complete to date in the bank named, in accordance with the terms of the agreement, and had "performed each and all of the conditions of said written agreement on his part by him obligated to be performed"; that plaintiff notified defendant of said facts, and of the fact that the bank was instructed to deliver said deed and abstracts to defendant upon performance of his agreement to convey said 1,255 acres to plaintiff, as provided in the agreement; that defendant failed and refused, and still fails and refuses, to execute such a conveyance, the action being commenced more than a year later; that the deeds and abstracts are still on deposit in said bank, which is now and at all times has been willing, able, and ready to deliver them to defendant upon the execution and deposit with said bank, for delivery to plaintiff, of an abstract showing and a warranty deed conveying to plaintiff a good title to said 1,255 acres; that when the contract was executed defendant represented and stipulated | therein that he was the owner of said 1,255 acres, and was able to convey and warrant the title thereto, and that plaintiff believed and relied upon such statement and stipulation at that time, and at the time he executed his said deeds and deposited them in the bank, but that defendant owned only an undivided two-thirds interest in said lands, while his wife owned the remaining third, and that defendant knew those facts at the time said contract was executed; that said 1,255 acres are still owned and held in the same manner and form as when said written contract was executed; that the only adequate relief for plaintiff will be specific performance by defendant to the extent of conveying his interest in said 1,255 acres. The pleading concluded with a prayer that defendant be compelled to convey the 1,255 acres so far as he could, and that plaintiff have an abatement of part of the purchase price, or a judgment for the value of any part which defendant might be unable to convey, in proportion to the interest which it should be found he could not convey.

[1] We think that this paragraph of complaint sufficiently stated a cause of action for specific performance by the conveyance of that interest in the 1,255-acre tract to which defendant might have title, so as to withstand a general demurrer, and that no

error was committed in overruling defendant's demurrer. No question is presented as to the sufficiency of its averments, or any of them, to withstand a motion to make them more specific. The defendant answered by a denial, and by a special plea that plaintiff had fraudulently misrepresented the quality and value of his lands, and thereby had induced defendant to enter into the contract in reliance upon such representations, and that plaintiff's lands were worth many thousands of dollars less than they would be if they were as represented, and that defendant had rescinded the contract for that reason. And a supplemental answer was filed, alleging that after the action was commenced the plaintiff had exercised acts of ownership and created liens upon his real estate, by which he had disabled himself to convey the title thereto subject only to the liens mentioned in the contract.

Pursuant to a written request by the defendant (appellant) the court made a special finding of facts and stated a conclusion of law thereon, to which appellant excepted. The special finding contained much surplusage, reciting items of evidence without stating the ultimate facts which such evidence proved, and mere conclusions without the facts from which they were drawn. But in substance the court found the following: That plaintiff was the owner in fee of three tracts of land, situated in Iowa, Louisiana, and Wisconsin, respectively, as described in the written contract above referred to; that defendant and his wife were each the owner of an undivided one-half part of the tract of 1,255 acres in Louisiana, described in said contract; that after certain negotiations by letter, telephone, and otherwise plaintiff and defendant caused the said contract to be prepared, and executed it; that at the time of executing the contract defendant held himself out to be the owner of all the 1,255-acre tract, with full power to sell and convey it, and told plaintiff that it would not be necessary to have the signature of his wife thereto, and plaintiff did not know that defendant's wife owned an interest in said lands, not under the control of her husband; "that within 30 days thereafter plaintiff executed proper and sufficient warranty deeds of conveyance to defendant Ryan for lands respectively in Iowa, Wisconsin, and Louisiana, being the lands owned by plaintiff and specified and described in said contract, and with the abstracts to the said several tracts, deposited said deeds in the and gave notice by letter to the defendant that he had deposited his deeds and abstracts pursuant to their said contract," and that they remained continuously in the custody and possession of the bank thereafter; "that said deeds of the plaintiff were warranty deeds, such as were contemplated in said contract, and that they conveyed to the defendant the fee-simple title to said three

bank,

separate tracts of lands, and that plaintiff ditions imposed on him by said contract." within 30 days after the signing and execution of said contract fully performed all the terms and conditions imposed upon him by said contract, and ever since until now he has been and is ready to perform any and all conditions of said contract on his part remaining to be performed," but that defendant never furnished plaintiff with abstracts of title to his lands, nor deposited such abstracts or deeds of conveyance for his lands with said bank, but after going to see plaintiff's land refused to comply with the contract, or to go on with the trade, and so told plaintiff's attorney; that all statements and representations made by either party to the other before the contract was executed were substantially true and correct, and were made without fraudulent intent, and there was no relationship of trust or confidence between the parties at the time the contract was executed.

Upon these facts the court stated a conclu sion of law to the effect that the contract should be specifically enforced as against the defendant (appellant) by requiring him to convey to plaintiff (appellee) the 1,255-acre tract, and that, in case he proved unable to convey all of it, the plaintiff was entitled to recover a sum of money by way of abatement of the price for the part not conveyed at the rate of $15 per acre for that part of the tract not conveyed. Defendant excepted to this conclusion of law, and after a number of motions had been made and overruled the court rendered judgment, as was stated above, decreeing the conveyance to plaintiff of an undivided half of the 1,255-acre tract by defendant, or by a commissioner appointed for that purpose, and reciting that "it is therefore considered, adjudged, and decreed by the court that the plaintiff have and recover from said defendant said sum of $9,412.50, together with costs," etc.

But the statute (section 376, Burns' 1914; section 370, R. S. 1881), which provides that in pleading the performance of a condition precedent it shall be sufficient to allege the conclusion that the party performed all the conditions on his part, expressly enacts that the facts showing performance must be proved on the trial; and the statute (section 577, Burns' 1914; section 551, R. S. 1881) under authority of which appellant required the court to find the facts specially provides that upon proper request the court "shall first state the facts in writing, and then the conclusions of law upon them." That the plaintiff had fully performed his contract, which bound him, among other things, to furnish defendant with abstracts showing that he had a good title to the lands he was exchanging, was a conclusion to be drawn from the law governing such contracts, as applied to certain facts which plaintiff was bound to prove at the trial, and the existence of which the court must find specially if plaintiff were to recover. Merely stating the conclusion, without reciting the facts proved, was not sufficient, where a special finding had been duly and properly requested. Lester v. Hinkle (Ind. Sup.) 141 N. E. 463; Cable Co. v. McElhoe, 58 Ind. App. 637, 653, 108 N. E. 790.

We have seen that no facts were found as to the value of any of the real estate owned by either party, but that the court concluded as matter of law that plaintiff was damaged in the sum of $9,412.50, and entered a judgment in his favor as against defendant for that amount. The special finding recited evidence introduced on the issue of alleged fraud to the effect that some time before the contract was executed defendant had written to an agent that he "had been holding all along for $15 per acre, but if you [the agent] can make a quick cash sale I will 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 italhis land; whereas, the contract provided | ics): that the deeds should be deposited and the abstracts submitted to the other party for examination and approval, and should show appellee to have a good title. Appellee relies on the recital in the special finding that he "fully performed all the terms and con

"(12) The court finds that upon the question of values the parties, for the purpose of the contract, themselves fixed and agreed upon the prices and values at which the various tracts of land respectively were held by each party, prior to the signing and execution of the

(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 plainpertinent. tiff, $20 per acre; the 1,255-acre tract in the state of Louisiana owned by the defendant, $15 per acre. And the court finds that, as these prices, or values, were placed upon these 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.)

The judgment is reversed, with directions to grant a new trial, and for further proceedings not inconsistent with this opinion.

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

does not amount to a finding that the different tracts of land mentioned were of fair market values as stated, nor that the parties had made a binding agreement with each other fixing said values, nor that facts existed which estopped the parties, respectively, or either of them, to deny that each or either tract was of the value indicated. The prices at which lands were held by the parties for trading purposes could not control in determing questions depending upon the actual market values. The language used may refer to some items of evidence not in the record, which may have tended to prove the values, but clearly is not such a finding of market values as will support a conclusion that plaintiff's damages by reason of failing to obtain title to one-half of the 1,255-acre tract amounted to $7.50 per acre, for which judgment was rendered.

[4] The authorities hold that, where the parties have merely agreed to an exchange of one article for another, without agreeing upon the money value of either, and it is not possible to enforce the contract substantially as it was made, a court should not undertake to make a new contract for them by commanding that a sum of money fixed by the court shall be paid in lieu of all or a large part of what one party had agreed to give in exchange. A party having the knowledge that a "trading price" had been, placed on property in excess of its value might put a like price on his own property and agree to an exchange of the properties, even though he knew that neither would sell in the market for the price put upon it; but he would not agree to give half of his property and pay half of the inflated price in money for property which he knew was not worth any such amount. Sternberger v. McGovern, 56 N. Y. 12; Saberski v. Velosky (Sup.) 11 N. Y. Supp. 668; Morss v. Elmendorf, 11 Paige (N. Y.) 277, 287; Olsen v. Lovell, 91 Cal. 506, 27 Pac. 765: Brisbane v. Sullivan, 86 N. J. Eq. 411, 99 Atl. 197.

[5] The evidence is not in the record, and we cannot know what was proved at the trial, or what may be proved when the case is again tried. But upon the facts stated in the special finding the plaintiff would not be entitled to specific performance of his con

Feb. 5, 1925.)

Appeal from Circuit Court, Sullivan County; W. Wood, Judge.

Miller Davis, and Randolph H. Mayes, both of Terre Haute, and Lindley & Bedwell, of Sullivan, for appellant.

Charles D. Hunt, of Sullivan, for appellee.
George W. Wells, of Terre Haute, and

NICHOLS, J. Action by appellee against appellant for damages resulting from a personal injury alleged to have been received by appellee because of a defective sidewalk in appellant city. The only error relied upon is the action of the court in overruling appellant's motion for a new trial, under which appellant presents error of the court in refusing to give instructions tendered by it and that the damages assessed were excessive.

The substantial facts, as appear by the evidence, are that there was a hole in the sidewalk in a thickly populated part of the city, which had been there for nine months or more. There is some variation in the evidence as to the size of this hole, but there was ample evidence that it was as much as 4 or 5 inches wide, about 7 inches long, and 5 inches deep at one end. It is sufficient to say that it was deep enough so that, when appellee stepped into it, she was caused to fall thereby, and suffered the injury for which she seeks damages in this case. The evidence further shows that appellee was injured August 30, 1921, at which time she was and had theretofore been in good health and had been theretofore doing her washing and housework. She was a large woman, weighing over 200 pounds. When she stepped into the hole she fell to the sidewalk, her foot remaining in the hole until removed by persons who came to her rescue. She was so injured that she was confined to her home, and part of the time to able to attend to her work up to the time of the her bed, for 10 weeks, and was thereafter untrial. During all of the time she suffered great pain. We deem it unnecessary to specifically describe the injuries which she suffered as appears by the evidence.

While appellant has, as one of its reasons for a new trial, assigned that the evidence was insufficient to sustain the verdict of the jury, and that it was contrary to law, it has not presented these questions in this court. Having carebriefs, we are satisfied that the cause was propfully examined the evidence as it appears in the erly tried upon its merits, and that a correct result was reached. Under such circumstances, this court will not reverse because of error in refusing to give instructions. We may say,

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