as entitled to compensation should be placed, be returned allowance made for any upon the same footing as other injuries with cause, after 30 days from receipt, and evirespect to the right to have a denial of com

dence showed that buyer did not comply with pensation reviewed upon appeal, but the Leg. conditions, but relied upon a defect which did islature has seen fit to provide otherwise, and noncompliance, held that refusal to submit buy

not constitute a latent defect, excusing such we cannot deny its right so to do.

er's counterclaim for breach of warranty was The conclusion of the majority therefore is

proper. that the right of appeal in this case has not been granted, and that the Court of Appeals 5. Appeal and error 758(2) — Failure to

show offer to introduce evidence, its exclu. erred in affirming the court of common pleas

sion, or exception thereto, precludes review in allowing an appeal to be taken.

of objection to its exclusion. The judgment of the Court of Appeals is

Where exclusion of certain evidence, altherefore reversed, and final judgment ren-leged to have been error, was not mentioned dered for plaintiff in error.

in appellant's brief among the "errors relied Judgment reversed.

on," and brief did not recite any of record

showing that proper offer was made to introMARSHALL, C. J., and ROBINSON,

duce such evidence, that court excluded it, or JONES, MATTHIAS, and DAY, .JJ., concur. ing excluding it, no question thereon is pre

that appellant duly reserved exceptions to rulALLEN and CONN, JJ., dissent.

sented for review.


Appeal from Superior Court, Marion Coun

ty; Linn D. Hay, Judge. D'ARCY SPRING CO. V. ANSIN.

Action by David Ansin, etc., doing busi(No. 24225.)

ness as the Royal Textile Company against

the D'Arcy Spring Company. Judgment for (Supreme Court of Indiana. Jan. 28, 1925.) plaintiff, and defendant appeals. Affirmed. 1. Appeal and

em 1070(1) - Buyer's Mason & Sharpe, of Kalamazoo, Mich., and specification that verdict not sustained by Herman W. Kothe and W. F. Elliott, both of evidence presents no error, where defendant Indianapolis, for appellant. admitted partial liability.

Ralston, Gates, Lairy, Van Mys & Barnard, Where, in action by seller against buyer of Indianapolis, for appellee. to recover for goods delivered, buyer admitted, by stipulation, that it was indebted to seller for agreed price of three shipments sued

EWBANK, J. Appellee as plaintiff below for, buyer's specification that the verdict in recovered a judgment against appellant, defavor of seller' was not sustained by sufficient fendant below, for $10,910.48 on a verdict for evidence and was contrary to law presented that amount returned in obedience to a perno available error.

emptory instruction given by the court. The 2. Sales Own 363–Direction of verdict for sell- only error assigned is overruling the motion

er held proper, where purchaser did not sus- for a new trial, under which appellant calls tain burden of proving facts reducing amount in question the direction to return a verdict of recovery.

for the plaintiff for $10,910.48, and also inWhere, in action by seller against purchas-sists that the verdict is not sustained by sufer to recover for goods delivered, buyer's lia- ficient evidence, and is contrary to law, and bility for amount recovered was established without conflict of evidence, and was admitted, that the amount of the recovery was too except as reduced by facts specially pleaded large. by buyer, of which it had burden of proof, di- The complaint was in three paragraphs. rection of verdict in favor of seller was prop- The first was a “common count" for goods, er, unless there was competent evidence tend

wares, and merchandise, alleged to have ing to prove some of these facts.

been sold and delivered, as specified in a bill 3. Sales 285(2)-Purchaser failing to exer. of particulars, with interest, in the total

cise right of rejection within stipulated time amount for which judgment was recovered. cannot sue for breach of warranty.

The second and third paragraphs were for Parties to a contract of sale may by con- the purchase price of goods of the values of tract fix and limit buyer's right to reject for $2,600.32 and of $1,304.48, respectively, purdefects, and such stipulation is binding upon chased on April 20, 1920, which the parties them, unless waived, and failure to comply with stipulated was owed by defendant to plainit precludes purchaser from recovering for breach of warranty.

tiff. The fourth paragraph counted on a

written contract, dated April 17, 1920, by 4. Sales 445(5)-Refusal to submit buyer's which plaintiff agreed to sell and defendant

counterclaim for breach of warranty heid proper, where he did not comply with condi- agreed to purchase a quantity of “56-inch tion requiring rejection for defects within 4.50 sheeting, price 95 cents per pound, net stipulated time.

30 days from date of invoice, f. o. b. mill." Where contract for sale of certain sheeting with a stipulation that "these goods shall contained stipulation that goods were not to not be returned, nor will allowances be made

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

(146 N.E.) for any cause after 30 days from receipt, nor, it subject to your order to be shipped to after goods are cut." This paragraph fur- some of your customers"; that this letter' ther alleged that pursuant to said contract was written within a day or two after deplaintif delivered to defendant 472 pounds fendant first learned the condition of the of said sheeting by shipping the same to it goods in question; that something was done on May 12, 1920, and the parties stipulated by defendant toward examining the rolls of that defendant owed plaintiff $448.40 for goods when they were received in July by that May shipment. This paragraph further looking at the edges, but the goods were not alleged that, pursuant also to the contract, unrolled then, and no difference was observplaintiff shipped and delivered to defendant ed between these rolls and the one first reon June 23 (an admission showing the date ceived and used. There was also evidence, of shipment to be June 12), 1920,5,879 pounds which must be accepted as true for the purof said “56-inch 4.50 sheeting" called for by poses of this appeal, that there were "runs'' the contract, and that defendant received in these goods where the cross threads would and accepted it, but that no part of the pur- be missing to such an extent that they were chase price had been paid, and that the same not useful for the manufacture of cushions was due and unpaid, with interest after 30 for automobiles, for which plaintiff knew days from the date of shipment. Defendant they were purchased. answered by a general denial, and also filed [1, 2] As defendant admitted, by stipulaseveral paragraphs of what is denomimated tion, that it was indebted to plaintiff for the "counterclaim," seeking to recover damages agreed price of three of the shipments sued for alleged breach of an implied warranty for, in an amount exceeding $4,000 the specthat the goods 'sold should be suitable for the ification that the verdict in favor of plainuse for which it was alleged plaintiff knew tiff is not sustained by sufficient evidence they were purchased. Two of these para- and is contrary to law presents no available graphs counted generally on an alleged im- error. And, as defendant's liability for the plied warranty, and the effect of a breach un- amount recovered was established without der the rules of the common law; the others conflict of evidence, and in fact was admitcounted on such a breach and its effect un- ted except as reduced by facts specially der certain statutes of the state of Michigan pleaded by defendant, of which it had the which were set out and alleged to have been burden of proof, the direction of a verdict in in force when and where the contract was favor of plaintiff was proper, unless there executed. The record shows, and appellant was competent evidence tending to prove states in its brief, that the only controversy some of those facts. is over defendant's liability for the shipment The specifications of alleged errors all reof 5,879 pounds of sheeting on June 12, 1920, volve around the single question whether or the price of which, at the contract rate, was not the stipulation in the contract that “these $5,585.05. The undisputed evidence was that goods shall not be returned, nor will allowthe goods were shipped in large rolls, wrap-ances be made for any cause after 30 days ped and sewed up in hurlap, which averaged from receipt" thereof, was binding on the about 400 pounds each; that the first ship- purchaser, and limited to 30 days the time ment under the contract of April 17, 1920, within which it might inspect the goods and was of one such roll, containing 474 pounds, reject them as unsatisfactory "for any cause." which was shipped May 12 and was received [3] Appellant cites decisions to the effect by defendant June 14, 1920, and the last that, where the time within which the buyer shipment was of 15 such rolls, containing may inspect and reject purchased goods is 5,879 pounds, shipped June 12 and received not fixed by contract, the purchaser has a by defendant July 17, 1920; that the roll re- reasonable time in which to do so, and that ceived on June 14th was cut up and used by what constitutes a reasonable time is a defendant in its manufacturing processes, question of fact for the jury. And he also and was satisfactory- "okeh, perfect"; that cites other authorities to the effect that, no notice was given to plaintiff that the other where the defects in purchased goods are goods were unsatisfactory until December 13, latent, so that they cannot be discovered by 1920, on which date defendant wrote and inspection, a limitation upon the time allowmailed to plaintiff a letter stating that "we ed for inspection is not binding so as to extook in some material from you some time clude the purchaser's right to act upon disago and opened up one of the large rolls and covery of the latent defects. But the authoralso one of the square bales. We find that ities cited do not apply to the facts of this the material contained in the round rolls has case. Except as to a very few of the rolls,

where there are cross the only evidence that the goods were defecthreads whatsoever. This material is abso- tive at all was that “runs” showed at the lutely worthless to us, and it will be neces- edges of the cloth, when the burlap at the sary for us to reship the same on your ac- ends of the rolls was pulled open. And the count, and we would ask you kindly to ad- defect relied on, of “runs" or spaces in the vise us promptly whether you want it re- cloth, at intervals, where there were tumed to Boston, or whether we shall hold threads running across it, was apparent on

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merely looking at the goods, and was not ployer. From an order suspending further concealed in any way except by the fact that proceedings until claimant's attorneys should the cloth was wrapped with burlap. This prove their authority to appear, claimant apwas not such a “latent” defect as defendant peals. Appeal dismissed. was excused from looking for and discovering Fred Barnett and Dominic P. Sevald, both within 30 days, having agreed that no allow- of Hammond, for appellant. ance should be made “for any cause” after the expiration of that time. The parties PER CURIAM. Appellant lives, and has have a right by contract to fix and limit the always lived, in Russia. Her husband was purchaser's rights in this respect, and such injured while in the course of his employ. a stipulation is binding upon them, unless ment with appellee, which injury resulted in waived, as being a condition precedent to his death. Attorneys, claiming to represent the right of the purchaser to a remedy for her, filed with the Industrial Board an applibreach of the warranty, and a limitation up-cation on her behalf for compensation for on the time within which that right must be herself and her minor daughter. After hearasserted, and failure to comply with it pre-ing evidence, the Industrial Board suspended cludes a recovery by the purchaser on ac- further proceedings until the attorneys count of such a breach. Brown v. Russell, should prove their authority to appear for 105 Ind. 46, 54, 4 N. E. 428; Seiberling & appellant. This the attorneys declined to do, Co. v. Rodman, 14 Ind. App. 460, 466, 43 N. and appeal from said order of suspension. E. 38; J. I. Case T. M. Co. v. Badger, 56 There is no provision in the statute for an Ind. App. 399, 404, 105 N. E. 576; Turner v. appeal from the Industrial Board except Muskegon, etc., Co., 97 Mich. 166, 174, 56 N. from a final award. Even if appellant was W. 356; Trapp v. New Birdsall Co., 99 Wis. entitled to proceed without proof of author458, 462, 75 N. W. 77; Gaar-Scott & Co. v. ity, which we do not decide, she has misNelson, 166 Mo. App. 51, 66, 148 S. W. 417.

taken her remedy. [4] The evidence clearly showing, without Appeal dismissed. dispute or contradiction, that defendant had not complied with his condition on which its right to recover on its counterclaim for breach of warranty depended, the court prop-D'AGOSTINO et al. v. GENERAL AMERI: erly refused to submit to the jury any of CAN TANK CAR CORPORATION. the issues joined on such counterclaims.

(No. 12116.) [5] Appellant suggests that certain evi. dence was wrongfully excluded. But, as the (Appellate Court of Indiana, Division No. 1.

Jan. 15, 1925.) exclusion of evidence is not mentioned in appellant's brief among the "errors relied Master and servant Om 417(3/4)-Industrial on," and as the brief does not recite any of Board's order suppressing depositions not the record showing that a proper offer was

appealable. duly made to introduce this evidence, that An order of the Industrial Board supthe court excluded it, or that appellant duly pressing depositions is not appealable. reserved a proper exception to the ruling by which it was excluded, no question thereon

Appeal from Industrial Board. is presented.

Proceedings under Workmen's CompensaThe judgment is affirmed.

tion Act (Laws 1915, C. 106) by Alfonso D'Ag. ostino and another, opposed by the General American Tank Car Corporation. Appeal

was taken by claimants to the full board to KURATNIK v. ILLINOIS STEEL CO.

review award by one member. From an or(No. 12093.)

der suppressing depositions, claimants ap

peal. Appeal dismissed. (Appellate Court of Indiana. Jan. 9, 1925.)

Solon B. Selleck, of La Grange, and Harry Master and servant Cm 417(3/4)-Orders of E. Raitano, of Indianapolis, for appellants.

Industrial Board other than final award not Wm. J. Whinery, of Hammond, for appelappealable.

lee. Under Workmen's Compensation Law, orders of the Industrial Board other than its THOMPSON, J. The claimants, appel. final award are not appealable.

lants herein, filed application for compensa

tion, which application was heard by a memAppeal from Industrial Board.

ber of the Industrial Board, who found Proceedings under the Workmen's Compen- against claimants. Claimant then asked for sation Act (Laws 1915, C. 106) by Evdokia a review of the award of said member by the Kuratnik in behalf of herself and minor full board. The defendant, appellee herein, daughter for the death of her husband, op- filed a motion to suppress certain depositions posed by the Illinois Steel Company, em- / of witnesses taken in Italy, for reasons stat

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

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(146 N.E.) ed in said motion. This motion was sus-1 5. Corporations mw 406(4)-General manager tained, and the following order was made by of moving picture business of corporation had the full Industrial Board:

apparent authority to contract for right to

use films. "It is therefore considered and ordered by the full Industrial Board of Indiana, by a majority of corporation had apparent authority to con

General manager of moving picture business of its members, that the depositions of the tract for right to use films, to be exhibited in above-named witnesses be and the same are

hereby suppressed."
The statute provides that an appeal can be

Appeal from Superior Court, St. Joseph
taken only from a final award made by the County; Lenn J. Oare, Judge.
Industrial Board. This is not a final order, Action by the Goldwyn Distributing Cor-
but merely an order suppressing the deposi- poration, against the Blackstone Theatre Cor-
tions. We need not pass upon the ruling of poration. Judgment for plaintiff, and de-
the Board in suppressing the depositions fendant appeals. Affirmed.
for the reason that the motion to dismiss the

John G. Yeagley, G. A. Farabaugh and appeal should be sustained. For authority, see No. 12093, Evdokia Kuratnik v. Illinois Walter R. Arnold, all of South Bend, for apSteel Co., 146 N. E. 216, decided by this court


Parker, Crabill, Crumpacker & May and at the present term.

W. S. Carlisle, all of South Bend, for apMotion sustained, and appeal dismissed.


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NICHOLS, J. Appellee's first paragraph of complaint averred that the appellee was

engaged in the business of leasing, furnishBLACKSTONE THEATRE CORPORATION

ing and selling the right to use films and picv. GOLDWYN DISTRIBUTING COR.

tures for exhibition purposes in moving picPORATION. (No. 11938.)

ture theatres, and appellant was engaged in (Appellate Court of Indiana, Division No. 2. the exhibition of moving picture films and Jan. 9, 1925.)

owned and operated a theatre for that pur1. Sales w357 (1)—Seller suing for price of pose; that during the three years last past rejected goods discharged burden of proving of appellant, sold to appellant for exhibition

appellee, at the special instance and request damages by proof of contract price, buyer's in its theatre the right to use moving picture breach, and seller's willingness to perform.

Seller suing for price of rejected goods dis- films and pictures owned or controlled by apcharged burden of proof as to amount of dam- pellee, at a total agreed rental or service ages by proving contract price, buyer's viola- charge of more than $20,000. That appellant tion of contract, and seller's willingness to neglected and refused to pay appellee on the perform, and was not required to prove that it total amount owed to appellee for the use of had received no other compensation for use of said pictures the sum of $12,830, for which rejected films, or that by exercise of reason- appellant is indebted to appellee. able diligence it might have done so, these

Other paragraphs, later filed, were based things being matters of defense.

upon the several contracts alleged to have 2. Sales m 360(2)-Buyer entitled to reduc- been entered into by appellant and appellee.

tion from contract price of rejected goods if Appellant answered in three paragraphs, deseller received, or failed to exercise dili- nial, payment, and non est factum, under gence to obtain, other compensation.

which last paragraph of answer appellant Seller's receipt of other compensation for attempted to prove that the pretended exegoods rejected by buyer, or failure to exercise cution of the several contracts was by the due diligence to obtain other compensation, en- manager of appellant without authority. Aptitled buyer to reduction from contract price. pellee filed reply in denial, and a second par3. Evidence m471 (30)–Testimony of mana- agraph addressed to the third paragraph of

ger of corporation that he signed contracts answer, in which it averred that on behalf of corporation, statement of fact throughout the whole of the year 1921, and and not conclusion.

until February 27, 1922, appellant had in its Testimony of manager of corporation that employ as manager one Berkson, and that he signed contracts on behalf of the corpora- said manager, in the discharge of his duties, tion held statement of fact, and not conclusion. purchased the pictures to be exhibited and 4. Principal and agent 116(1)-Effect of

managed the theatre; that he was the manprivate limitations on general authority of ager of appellant's business during the term agent stated.

of his employment, and that appellant well Private limitations on general authority of

knew that said manager, on behalf of said agent have no effect on third person who deals appellant, purchased the right to exhibit with agent in good faith, in ignorance of such pictures, owned, produced, or in the control limitation, and in reliance on apparent author- of appellee for exhibition, and, with the full ity with which agent is clothed.

knowledge and consent of appellant, assumed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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to and did execute the written agreements, cessive, appellant states that, by the well set out in each paragraph of complaint, and known rule, the burden was on appellee to that there was no advice communicated to prove the amount of damages that it had susappellee, that there was any limitation of the tained. Appellee, however, had discharged authority of said manager to purchase the this burden by proving the contract price, right to exhibit pictures, and appellant per- appellant's violation of the contract, and apmitted appellee to continue in the belief that pellee's willingness to perform. Milhollin v. said manager possessed full authority to make Adams, 66 Ind. App. 376, 379, 115 N. E. 803; the several contracts, and that the appellant | Waznitski v. George B. Limbert & Co., 66 received, exhibited, and paid appellee for the Ind. App. 382, 118 N. E. 317. Appellee was right to exhibit all of the moving pictures not required to prove that it had received mentioned and described in the several con no other compensation for the use of the retracts, except those that it is alleged appel- | jected films or that by the exercise of reasonlant refused to accept, and that all of said able diligence it might have done so. If appictures paid for were paid for by appellant pellee had received other compensation, or if under the terms and conditions of the sev- it had not been duly diligent in trying to oberal contracts and not otherwise, and with tain the same, appellant was entitled to a out protest or notice to the appellee that ap- proper reduction from the contract price, but pellant was not bound by said several con- | the burden of showing such compensation or tracts, and appellant so continued to accept, want of diligence was on appellant, and in pay for, and exhibit pictures under the terms the absence of such evidence the contract of said several contracts, until March 3, 1922, price was the proper measure of damages. when the treasurer of appellant wrote ap- Cox v. Way, 3 Blackf. 143; Ewing v. Codpellee that the appellant was no longer op- ding, 5 Blackf. 433; Hamilton v. Love, 152 erating the Blackstone theatre, and advising Ind. 641, 53 N. E. 181, 54 N. E. 437, 71 Am. appellee to ship no more films to appellant, St. Rep. 384; Milhollin v. Adams, supra. Apthe great expense in operation having forced pellant contends that it was error for the appellant to lease the property to another court to permit witness G. E. Berkson to tesmanagement, which was the first notice to tify over appellant's objection that he signed appellee that appellant no longer desired to the contracts in suit on behalf of appellant, perform its part of the contract made in its for the reason that such evidence is the behalf by appellant's manager, and appel- statement of a conclusion. These contracts lant did not at that time intimate that said which were in evidence were signed “Blackcontracts were not its contracts, because stone Theatre, by C. E. Berkson, Manager," the said manager did not have authority to or to that effect. We regard the evidence as execute them. That by the terms of said a statement of a fact rather than a conclucontracts appellee was prohibited from leas- sion. Citizens' Bank v. Opperman, 188 Ind. ing or licensing the right of exhibition to any 212, 219, 115 N. E. 55; Baltes Land Co. v. other theatre in South Bend, which right was Sutton, 32 Ind. App. 14, 69 N. E. 179; Ina valuable asset, and the contracts with the diana, etc., Co. v. Glenn, 13 Ind. App. 534, 40 appellant aforesaid prevented appellee from N. E. 151. Whether he had authority so to selling said right to other persons or con- sign, or could bind appellant by so doing, will cerns. That on each of said contracts appel- be hereinafter considered. lant had deposited $500 in cash, and that Over the objection of appellant, Exhibits said deposits were made by the treasurer of 1 to 13, inclusive, were introduced in evi. appellant with appellant's knowledge and dence. These exbibits were the contracts consent. That appellant knew that appellee for pictures which were sued on in the sevwas making said contracts, in reliance up- eral paragraphs of complaint. Appellant's on the authority of said manager to execute objection to the introduction of these exhibthem, and with full knowledge thereof, ap- its presents the question as to whether C. E. pellant, on numerous occasions, asked ap- Berkson who undertook to execute the conpellee to modify said contracts, and did not tracts on behalf of appellant had authority at any time intimate to appellee any lack of so to do, or could and did bind the company authority of said manager, and relying upon by his action. The same question is presentsaid facts the appellee was induced to make ed by error assigned to the giving of certain each of the several contracts, and except for instructions tendered by appellee, and to the such facts would not have made and entered refusal to give certain instructions tendered into them,

by appellant. There was a trial by jury which resulted In answer to interrogatories propoundin a verdict for appellee for $5,000, on which, ed to appellant it was admitted that Berkson after appellant's motion for a new trial was was the manager of appellant's theatre, and overruled, judgment was rendered. The only in the contract of employment reduced in error assigned in this court is the action of writing on February 1, 1921, it was provid. the court in overruling appellant's motion for ed that Berkson agreed to devote his entire a new trial which presents the alleged er- time to his employment; that he should be rors hereinafter considered.

known as the manager of the theatre busi[1-3] Contending that the damages are ex ness; that he should perform all of the

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