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not go behind these to determine what that, The reason for this distinction is quite ap court considered or did not consider in mak- parent. When the business of a public service ing up its judgment. That it did not consider corporation is taken, the corporation goes good will is evident from the face of these out of business, so far as conducting that findings. At the request of the claimant the branch of it is concerned. The business court found :

changes ownership from private to public “That the earnings of claimant over a period control. The good will and all that goes with of 10 years averaged upwards of fifty-five it is taken over by the state, as well as the thousand dollars ($55,000) annually, which, aft- tangible property. This is not so with the er deducting the interest on the value of the condemnation of land for public purposes. tangible assets, establishes the value of the Here the good will may be damaged by ingoing business or good will of the company at convenience and removal of the business, but upwards of two hundred and fifty thousand dol- it is not taken. The owner of the business lars ($250,000).”

may remove to another place, establish his Finding 11 reads:

business, and carry his good will with him. “That the state of New York did not take. Especially is this so where the good will conappropriate, interrupt, damage, or destroy the sists in the brand of goods manufactured, or good will of the Hour-manufacturing business in the personality of the manufacturer, as theretofore carried on on the said premises by distinguished from the mere place of doing the claimant."

business. While it may be, as in this case,

that removal from one place to another may Subsequently this finding was amended so

cause some loss, yet the elements making up as to read:

that loss are so highly speculative that the “That, while the state of New York did not courts have not considered it an appropriation take, appropriate, or destroy the good will of or damage for which the state should pay as the flour-manufacturing business theretofore commanded by the Constitution. Matter of carried on upon said premises by the claimant, Gilroy, 26 App. Div. 314, 49 N. Y. S. 798, Culit did interrupt and damage the same. To what extent it was damaged it is unnecessary for us len, J.; Sawyer v. Commonwealth, 182 Mass. to find, because such good will was not proper- 245, 65 N. E. 52, 59 L. R. A. 726, Holmes, C. ty for which the claimant was entitled to com- J.; Nichols on Eminent Domain (2d Ed.) sect. pensation by reason of this appropriation, as 124; City of Oakland v. Pacific Coast Lumwe have found in the seventh conclusion of law ber & Mill Co., 171 Cal. 392, 398, 153 P. 705; hereafter set forth."

Becker v. Phila. & Reading T. R. Co., 177 Pa. The seventh conclusion of law reads:

252, 35 A. 617, 35 L. R. A. 583; Ranlet v.

Concord Railroad Corporation, 62 N. H. 561 ; "That the good will of claimant's said business Hunter's Adm'r v. C. & O. R. Co., 107 Va. is not property for which the claimant is en- 158, 59 S. E. 415, 17 L. R. A. (N. S.) 124; titled to any compensation in this proceeding, U. S. v. Inlots, 26 Fed. Cas. 482, 489. nor is it entitled to any damages for injury thereto, or for any interruption thereof by

[3] The rule is different in the rate cases, reason of the appropriation herein.”

where good will is an element of property

which must be considered in estimating the [2] The appellant insists that, as its good | investment or the rate upon which to figure will was interrupted and damaged to some income. People ex rel. Kings County Lightextent, it was entitled to compensation for ing Co. v. Willcox, 210 N. Y. 479, 104 N. E. this interruption or damage. Such, however, 911, 51 L. R. A. (N. S.) 1; Des Moines Gas is not the law. There is a marked distinction Co. v. City of Des Moines, 238 U. S. 153, 35 between the instances where the state appro- S. Ct. 811, 59 L. Ed. 1244. The Legislature priates a public service corporation and all may, however, authorize a recovery for the its business and good will as a going concern, loss of profits in a business or for the damintending to continue its operations as a pub-ages done to the good will of a going concern lic enterprise (City and County of Denver v. caused by the appropriation of land by the Denver Union Water Co., 246 U. S. 178, 38 s. state or its agencies. Such were the proviCt. 278, 62 L. Ed. 649; City of Omaha v. sions of the Water Supply Acts (Laws 1905, Omaha Water Co., 218 U. S. 180, 30 S. Ct. c. 724, as amended by Laws 1906, c. 314). 615, 54 L. Ed. 991, 48 L. R. A. (N. S.) 1084), People ex rel. Burhans v. City of New York, and those instances where the state desires | 198 N. Y. 439, 92 N. E. 18. the land and not the business. Taking the [4] The appellant's counsel apparently recland may cause the owner inconvenience and ognizes this general rule that damage done loss, by compelling him to remove his busi- to the good will cannot be figured in the comness to some other place. Such loss, how- pensation, where the good will is not approever, is not recognized as part of the damage priated, because he now claims that the Leg. or compensation which the stat must pay | islature has amended the Ba Canal Act, for the land taken.

giving jurisdiction to the Court of Claims

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canals, *

(148 N.E.) to make allowance for such damages. Chap , claims. I am therefore convinced that the ter 606 of the Laws of 1918 contains but one | Court of Claims was right in ruling as it did section. It is entitled :

regarding the good will of the claimant's bus

iness. “An act to extend the time for filing existing claims against the state for compensation or

The other branch of this case deals with damages for or on account of the appropriation the rule which the Court of Claims adopted of property in connection with the construction in fixing the value of the property appropriof improved canals and canal terminals, and ated or the compensation to be paid therefor. giving the Court of Claims jurisdiction." The court, it is said, adopted the right rule,

and then refused to apply it. Apparently It reads:

some confusion has arisen in the use of the

words "going concern value” and “good will." "The Court of Claims shall have jurisdiction In its brief the appellant at times uses these of and may hear and determine any claim against the state, heretofore accrued, which words interchangeably. In dealing with the shall be filed within one year after this act subject of good will, the reports and texttakes effect, for compensation or damages for books use the words "going concern value," or on account of the appropriation by the state and the one generally includes the other to of any lands, structures, waters, franchises, or some extent. In considering the present other property in connection with the improve- point made by the appellant, we must be carement of the *

* * notwith- ful to exclude the "good will" meaning of standing the lapse of time since the accrual of the words "going concern value." the claim." Section 1.

[5] As I understand the appellant, it claims

that certain elements of construction and cost That this statute merely extends the time in building up the plant and the flour mill to file a claim, where the time had expired were not considered or allowed for by the under existing laws, is quite evident from the Court of Claims, although the general rule reading. It cannot be that it was the inten- of valuation would include such proof. In tion to create a favored class for those who establishing the value of the flour mill prophad delayed in presenting claims. Discrim- erty appropriated, it was competent to prove ination is not favored, even though it be all the uses that could be made of the proplegal. Matter of City of New York, 190 N. erty, the value of the plant as a live, going Y. 350, 83 N. E. 299, 16 L. R. A. (N. S.) 335. flour mill, the increased value, if any, which Nor was it the intention to reopen cases al- the structure so used had given to the land, ready settled, and for which allowances had and all the valuable appurtenances and avail

" damages for or on account of the appropria- ^ [6] To estimate the fair market value, the tion" mean no more than compensation or the court no doubt should have considered, not amount allowed by law for the taking of the only the cost of production, but also the cost property. Damages and compensation, as necessarily or reasonably expended in bring. used in this statute, are synonymous. If it ing the mill or factory into efficient working were the intention of the Legislature to add condition-what has been called the synchroto the words of the original statute (Laws nizing of its parts. Architect's fees in making 1911, c. 746) damages to the good will of a or revising plans, compensation for engineers business conducted on the property taken, to carry out the plans, or to arrange the facthe title and the body of the act should have tory so as to produce appropriate manufacturbeen more specific. A modification of the ing results, are all elements which should be general rule would have called for some such considered in estimating the market value. wording as that above referred to in the These are things which a seller and a purWater Supply Acts. Neither do the words chaser would consider on a sale. This does “other property," read in connection with not mean, however, that the cost of these "lands, structures, waters," etc., extend the various items, considered alone and by themright of recovery beyond compensation for selves, must be allowed for, or that the sum property appropriated according to the pre- total of all these expenses make up the ownvious law.

er's compensation. The cost of production The learned opinion of the Court of Claims or of reproduction need not of necessity be calls attention to the fact that the original taken part by part, and the total accepted bill, which became chapter 606 of the Laws as the amount of the award. These items of 1918, contained in it the words "good will, like other items of cost in production or reestablished business, or other property,” and production, are to be considered and weighed that, as finally passed, the words "good will with the other evidence of value. and established business” were stricken out. [7] This I understand was the rule applied This amendment of 1918 did no more than by the Court of Claims in this case. extend the time within which to present stated in the briefs that the court stated the

It was

correct rule, but failed to apply it. The opin Nowhere does it appear, however, that all ion stated :

these elements making up this $75,000 ex. "The claimant is entitled to recover the val. pense were not considered by the court in ue of its physical property as it existed at the arriving at its total figure of valuation. What time of the appropriation. That does not mean elements it considered or excluded is not that its value is to be arrived at by taking the stated. As I have said, the clainant was value of the various elements and items making not entitled as a matter of law to recover up the property separately, and considering these expenses; it was entitled to have them them without reference to each other, and then considered as necessary in building up and adding together these sums. The claimant is

constructing the mill as a going concern, efentitled to compensation, not merely for so much land, so much brick, lumber, materials, ficient and appropriate for the business The and machinery, considered separately; but, it court allowed $90,000 for the land, for the they have been combined, adjusted, synchro- structures and fixtures $90,000, and for the nized, and perfected into an efficient functioniny difference between the value of the machinunit of property, then it must be paid for that ery and fixtures removable and the value unit, so combined, adjusted, synchronized, and added to the building when they were used in perfected, as it existed at the moment of ap: connection with it $46,682.38, for the power propriation. In that limited sense, it is entitled plant $8,317.62; total, $235,000. to the 'going value'-if such a term is permis

[8] After the unanimous affirmance of the sible--of its physical property. In fixing the amount of award we will be guided by that appellate Division, we are obliged to assume principle."

that such amounts include every element of

value to which the claimant was entitled, The point which the appellant now makes unless it appear to the contrary by some rulis that the findings show that the court in ar. ing and exception. We must assume that the riving at its conclusions failed to follow court considered all these elements expressed this rule. I do not think so. At the re in the request to find No. 32 above quoted. quest of the claimant the court found as fol. The court did rule, to which an exception was lows:

taken, that it would not allow $75,000, the “(32) That the fair value of architect's and total amount of these expenses. It was not engineer's fees upon the construction and equip- bound to allow this amount as matter of law, ment of said plant, insurance premiums and any more than it was bound to allow the tointerest on investment during construction pe- tal cost of the construction. As stated, these riod, railway franchises, legal expenses, sundry items correcting errors in construction, ex

matters were to be considered as elements of penses incurred in operating mill at a loss up to proof making up the market value, but the time when machinery is synchronized and co sum total of cost did not necessarily make ordinated, so as to produce satisfactory results, market value. is the sum of seventy-five thousand dollars Each case necessarily involves different ($75,000)."

facts and must be considered by itself. Only It refused to find that the claimant was

a few general rules apply on the question of entitled to this figure. Its action is impor- valuation in condemnation proceedings, and tant, so I shall quote the finding which was

even these may yield to exceptional circumrefused:

stances. What I have here stated applies to

this case as presented on the findings, and “(5) That claimant is entitled to from the state of New York the sum of seventy- leads to an affirmance of the judgment below. five thousand dollars, the fair and reasonable

The judgment should be affirmed, with sound value of the architect's and engineering

costs. fees, taxes, interest, and insurance covering the period of construction, legal fees, franchises,

HISCOCK, O. J., and CARDOZO, Mcand losses incurred during period of “tuning up,' LAUGHLIN, ANDREWS, and LEHMAN, JI., synchronizing, and co-ordinating plant, so to reach normal efficiency, taken and destroyed by the state in the taking of physical property

POUND, J., absent. on the 7th of April, 1917. “Refused."

Judgment affirmed.

recover

as

concur.

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(148 N.E.)

eridence that, during a part of the time from HURL V. MERRIAM.*

1914 till the death of Carey, the plaintiff (Supreme Judicial Court of Massachusetts. him. The plaintiff testified that in 1914 Car

rendered services in nursing and caring for Suffolk. May 22, 1925.)

ey asked if he could live with him, and the Executors and administrators C221 (7)–Evi- plaintiff said he would ask his wife; that

dence held not to show contract of decedent he later informed Carey that Mrs. Hurl to convey property in consideration of serv.

would not object to his coming to live with ices and a home.

them and Carey said, "Now that I am going Evidence held not to show contract of de to make my home with you I am going to cedent to convey property to plaintiff in consideration of latter's agreement to care for him deed my property to you”; thať at another and give him a home while he lived; decedent's time, when Carey was not living with the statements being mere expressions of intention plaintiff, he said in the presence of his lawand appreciation of services rendered by plain- yer, "I want you to deed

my proptiff.

erty to him (the plaintiff]." He further tes.

tified, in response to the question "Why did Report from Superior Court, Suffolk Coun- you do all this work for him

*?" ty; F. J. Macleod, Judge.

"Why, we had an agreement back in 1914." Action of contract by John J. Hurl against | He was then asked, “And it was because of Elmer A. Merriam, administrator of David J. that agreement that you gave him all this Carey, deceased, to recover on alleged con- attention?" and he answered, “Yes, sir. That tract for labor performed and services ren- agreement was brought up four times, three dered decedent. On report, after verdict for times in the presence of others and once

when he and I were alone at the very beginplaintiff. Judgment for defendant.

ning." He also testified, referring to the E. H. Abbot, Jr., and J. J. O'Hare, both of special agreement, “He told me that in 1914 Boston, for plaintiff.

when he first came to live with me J. W. Lowrance, of boston, for defendant. and I had been working for him and taking

care of him and looking forward to the said CARROLL, J. This action in contract was property.” There was additional evidence in three counts, 'the first on the account an- tending to show that Carey stated he was nexed, and the second for labor performed going to convey the real estate in question to and services rendered the intestate, David the plaintiff. J. Carey, from May 1, 1914, to February 25, To support a finding for the plaintiff un1922. The third count was on a special con- der the second count, there must be evidence tract, in effect alleging that the intestate of an implied or of an express contract to agreed with the plaintiff, in consideration pay to the plaintiff a sum beyond what had that he would nurse him (the intestate) and been paid him. There of course was no eviwould care for him and provide food and dence of an implied contract. The only evilodging during his lifetime, that he would dence which, the plaintiff contends, shows make a conveyance by deed to the plaintiff an express contract was to the effect that "for his services of all his real estate in Bos. the defendant's intestate said he was going ton,” which was valued by the intestate at to deed his property to the plaintiff. But $12,000; and that the plaintiff, in consid- there is nothing to show that the plaintiff eration of this promise, did remain with the and the intestate entered into a contract by intestate and care for him during his life- which the intestate agreed to convey his time At the close of the evidence the plain- property to the plaintiff. At most the statetiff waived the first and third counts of the ments of Carey were mere expressions of his declaration.

intention and his appreciation of the seryIt appeared that the intestate lived with ices rendered by the plaintiff. But there was the plaintiff in the year 1914 and remained na promise to make this conveyance in conwith bim until some time in the year 1917. sideration of the plaintiff's agreement to care The plaintiff, according to his testimony, was for him and to provide him food and lodging; paid "$3 a week for

[his] board and the plaintiff made no promise to care for and $2 a month for

[his] room." niin and to give him a home while he lived. In October, 1919, or 1920, Carey returned to There was no meeting of minds. The plainthe plaintiff's house and lived with him un tiff was paid by Carey for the board and til his death.

During this period Carey lodging. He has failed to show that, in adpaid the plaintiff $3.50 a week. It was in dition to the agreement to pay for the board *REPORTEE'S NOTE.-This case as originally filed and lodging, there was also a promise by was published in 147 N. E. 836. Since this filing Carey to convey the real estate in consideraand publication, changes in the language of the tion of the plaintiff's care, assented to by the opinion have been made by the judge, which, while not affecting the merits of the decision, make it

plaintiff. necessary, in the interest of our subscribers, to re

The plaintiff has failed to prove the exprint the case here,

press contract upon which in the circumFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 148 N.E.-43

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stances he must rely under the second count, had the train been running in proper manner of the declaration,

and in compliance with the ordinance, defendThe plaintiff cites Donovan v. Walsh, 238 ant's employees would have seen decedent in Mass. 356, 130 N. E. 841, and Dixon v. Lam- time to have stopped and thereby saved him son, 242 Mass. 129, 136 N. E. 346, in support duty and the ordinance, and so negligently ran

from death, and that defendant disregarded its of his claim. In each of these cases there its train that it was run upon decedent without was a binding agreement between the par- his fault, and thereby caused his death, held to ties, an offer made by the deceased, an ac- sufficiently aver negligence and negative conceptance of its terms by the plaintiff, and tributory negligence to withstand demurrer. full performance on the plaintiff's part.

As to the nursing of the defendant's in Appeal from Circuit Court, Johnson testate, there was no evidence to show either County. an express or an implied contract to pay therefor beyond the weekly amount which, trator of the estate of James B. Rink, de

Action by James P. Campbell, as adminisit is agreed, was paid. It follows that the defendant's motion for eral of Railroads, and another. Judgment

ceased, against John B. Payne, Director Gena directed verdict should have been allowed. for defendants, and plaintiff appeals. ReJudgment for the defendant.

versed, with instructions.

William E. Deupree, of Franklin, and L. Ert Slack and George G. Rinier, both of In

dianapolis, for appellant. CAMPBELL V. PAYNE, Director General of

John Rynerson, of Columbus (E. L BraniRailroads, et al. (No. 11417.)*

gan, of Franklin, and George W. Long, of Co(Appellate Court of Indiana, Division No. 2. lumbus, of counsel), for appellees. March 30, 1923. Rehearing Denied. Transfer Denied.)

NICHOLS, C. J. (1) Action by appellant 1. Executors and administrators 455—AC- for damages arising out of the death of aptions by administrators to recover for wrong. pellant's decedent, occasioned by the alleged ful deaths not controlled by statute involving negligence of appellee. Civil actions by adoriginal probate jurisdiction.

ministrators to collect damages for death reCivil actions by administrators to collect sulting from negligence are not controlled by damages for deaths resulting from negligence are not controlled by Burns Ann. St. 1914, ss the provisions of sections 2977, 2978, Burns 2977, 2978, which pertain to appeals in actions 1914 (section 2454, R. S. 1881; Acts 1913, p. involving original probate jurisdiction.

65), which pertains to actions involving orig.

inal probate jurisdiction. The appeal was in 2. Appeal and error (336(1) – Appellate time. Roach v. Clark (1897) 150 Ind. 93, 48

court may examine record to determine prop- N. E. 796, 65 Am. St. Rep. 353; Mark v. er parties to appeal.

North, Adm'r (1900) 155 Ind. 575, 57 N. E. Appellate courts may examine the record 902; Baker v. Edwards (1901) 156 Ind. 53, to determine proper parties to an appeal.

59 N. E. 174; Holderman v. Wood (1905) 34 3. Appeal and error Om748(1)-Assignment of Ind. App. 519, 73 N. E. 199.

error not invalidated by confusion in naming [2, 3] By an examination of the record we defendant.

have no difficulty in determining the proper Where an action was in effect against the parties to this appeal, and this we may do. United States government, the fact that there City of Decatur v. Eady, Ex'r (1914) 75 Ind. was some confusion in naming H., P., and D. App. 688, 105 N. E. 590. In effect, the action as successive Directors General did not invali. is against the United States government, and date assignment of errors which named P. as the fact that there is some confusion in namsuch Director General.

ing Walker D. Hines, John B. Payne, or 4. Railroads On 344(1)-Complaint for negli. James C. Davis as the Director General, gence held sufficient to withstand demurrer. these gentlemen having successively filled

A complaint charging that decedent, a pe- that office, will not invalidate the assignment destrian, was crossing defendant's tracks, and of error which names John B. Payne as Di. without any fault on his part, but solely by rea- rector General. We regard it as a misprision son of defendant's negligence in violating the of the clerk that Walker D. Hines was named city's speed ordinance, he was struck by an in the caption of the entry of the judgment, engine, that it was defendant's duty to keep instead of the Director General with his offivigilant watch, and on first appearance of danger to stop in the shortest time and space, that,

cial title, an error which should not be

charged against the litigants. The objeca *REPORTER'S NOTE.— This case as originally filed tions to the assignment of error are technical, was published in 138 N. E. 766. Since this filing and no harm could have resulted to appellee and publication, changes in the opinion have been because of the errors complained of. We made which, while not affecting the merits of the decision, make it necessary, in the interest of our suggest, however, that attorneys by giving subscribers, to reprint the case here.

more attention to the record may frequently For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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