(146 N.E.) some of your customers"; that this letter' was written within a day or two after defendant first learned the condition of the goods in question; that something was done by defendant toward examining the rolls of goods when they were received in July by looking at the edges, but the goods were not unrolled then, and no difference was observ [1, 2] As defendant admitted, by stipulation, that it was indebted to plaintiff for the agreed price of three of the shipments sued for, in an amount exceeding $4,000 the specification that the verdict in favor of plaintiff is not sustained by sufficient evidence and is contrary to law presents no available error. And, as defendant's liability for the amount recovered was established without conflict of evidence, and in fact was admitted except as reduced by facts specially pleaded by defendant, of which it had the burden of proof, the direction of a verdict in favor of plaintiff was proper, unless there was competent evidence tending to prove some of those facts. for any cause after 30 days from receipt, nor it subject to your order to be shipped to after goods are cut." This paragraph further alleged that pursuant to said contract plaintiff delivered to defendant 472 pounds of said sheeting by shipping the same to it on May 12, 1920, and the parties stipulated that defendant owed plaintiff $448.40 for that May shipment. This paragraph further alleged that, pursuant also to the contract, plaintiff shipped and delivered to defendanted 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 several paragraphs of what is denomimated "counterclaim," seeking to recover damages for alleged breach of an implied warranty that the goods 'sold should be suitable for the use for which it was alleged plaintiff knew they were purchased. Two of these paragraphs counted generally on an alleged implied warranty, and the effect of a breach under the rules of the common law; the others counted on such a breach and its effect under certain statutes of the state of Michigan which were set out and alleged to have been in force when and where the contract was executed. The record shows, and appellant states in its brief, that the only controversy 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 burlap, 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 "weed for inspection is not binding so as to extook in some material from you some time ago and opened up one of the large rolls and also one of the square bales. We find that the material contained in the round rolls has runs where there are no cross threads whatsoever. This material is absolutely worthless to us, and it will be necessary for us to reship the same on your account, and we would ask you kindly to advise us promptly whether you want it returned to Boston, or whether we shall hold clude the purchaser's right to act upon discovery of the latent defects. But the authorities cited do not apply to the facts of this case. Except as to a very few of the rolls, the only evidence that the goods were defective at all was that "runs" showed at the edges of the cloth, when the burlap at the ends of the rolls was pulled open. And the defect relied on, of "runs" or spaces in the cloth, at intervals, where there were no threads running across it, was apparent on 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. Fred Barnett and Dominic P. Sevald, both of Hammond, for appellant. PER CURIAM. Appellant lives, and has always lived, in Russia. Her husband was injured while in the course of his employment with appellee, which injury resulted in his death. Attorneys, claiming to represent her, filed with the Industrial Board an appli was excused from looking for and discovering within 30 days, having agreed that no allowance should be made "for any cause" after the expiration of that time. The parties have a right by contract to fix and limit the purchaser's rights in this respect, and such a stipulation is binding upon them, unless waived, as being a condition precedent to the right of the purchaser to a remedy for breach of the warranty, and a limitation up-cation on her behalf for compensation for on the time within which that right must be asserted, and failure to comply with it precludes a recovery by the purchaser on account of such a breach. Brown v. Russell, 105 Ind. 46, 54, 4 N. E. 428; Seiberling & Co. v. Rodman, 14 Ind. App. 460, 466, 43 N. E. 38; J. I. Case T. M. Co. v. Badger, 56 Ind. App. 399, 404, 105 N. E. 576; Turner v. Muskegon, etc., Co., 97 Mich. 166, 174, 56 N. W. 356; Trapp v. New Birdsall Co., 99 Wis. 458, 462, 75 N. W. 77; Gaar-Scott & Co. Nelson, 166 Mo. App. 51, 66, 148 S. W. 417. herself and her minor daughter. After hearing evidence, the Industrial Board suspended further proceedings until the attorneys should prove their authority to appear for appellant. This the attorneys declined to do, and appeal from said order of suspension. There is no provision in the statute for an appeal from the Industrial Board except from a final award. Even if appellant was entitled to proceed without proof of authorv.ity, which we do not decide, she has mistaken her remedy. Appeal dismissed. [4] The evidence clearly showing, without 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 properly refused to submit to the jury any of the issues joined on such counterclaims. D'AGOSTINO et al. v. GENERAL AMERI- Jan. 15, 1925.) Master and servant 417(3)—Industrial Board's order suppressing depositions not appealable. [5] Appellant suggests that certain evidence was wrongfully excluded. But, as the (Appellate Court of Indiana, Division No. 1. exclusion of evidence is not mentioned in appellant's brief among the "errors relied on," and as the brief does not recite any of the record showing that a proper offer was duly made to introduce this evidence, that the court excluded it, or that appellant duly reserved a proper exception to the ruling by which it was excluded, no question thereon is presented. The judgment is affirmed. KURATNIK v. ILLINOIS STEEL CO. (No. 12093.) (Appellate Court of Indiana. Jan. 9, 1925.) Master and servant 417(34)-Orders of Industrial Board other than final award not appealable. Under Workmen's Compensation Law, orders of the Industrial Board other than its final award are not appealable. An order of the Industrial Board suppressing depositions is not appealable. Appeal from Industrial Board. Proceedings under Workmen's Compensation Act (Laws 1915, c. 106) by Alfonso D'Agostino and another, opposed by the General American Tank Car Corporation. Appeal was taken by claimants to the full board to review award by one member. From an order suppressing depositions, claimants appeal. Appeal dismissed. Solon B. Selleck, of La Grange, and Harry E. Raitano, of Indianapolis, for appellants. Wm. J. Whinery, of Hammond, for appellee. THOMPSON, J. The claimants, appellants herein, filed application for compensation, 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 (146 N.E.) ed in said motion. This motion was sus-[5. Corporations 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 its members, that the depositions of the above-named witnesses be and the same are hereby suppressed." The statute provides that an appeal can be taken only from a final award made by the Industrial Board. This is not a final order, but merely an order suppressing the depositions. We need not pass upon the ruling of the Board in suppressing the depositions for the reason that the motion to dismiss the appeal should be sustained. For authority, see No. 12093, Evdokia Kuratnik v. Illinois Steel Co., 146 N. E. 216, decided by this court at the present term. Motion sustained, and appeal dismissed. BLACKSTONE THEATRE CORPORATION v. GOLDWYN DISTRIBUTING CORPORATION. (No. 11938.) (Appellate Court of Indiana, Division No. 2. Jan. 9, 1925.) 1. Sales 357(1)-Seller suing for price of rejected goods discharged burden of proving damages by proof of contract price, buyer's breach, and seller's willingness to perform. Seller suing for price of rejected goods discharged burden of proof as to amount of damages by proving contract price, buyer's violation of contract, and seller's willingness to perform, and was not required to prove that it had received no other compensation for use of rejected films, or that by exercise of reasonable diligence it might have done so, these things being matters of defense. 2. Sales360 (2)-Buyer entitled to reduction from contract price of rejected goods if seller received, or failed to exercise diligence to obtain, other compensation. Seller's receipt of other compensation for goods rejected by buyer, or failure to exercise due diligence to obtain other compensation, entitled buyer to reduction from contract price. 3. Evidence 471 (30)-Testimony of manager of corporation that he signed contracts on behalf of corporation, statement of fact and not conclusion. Testimony of manager of corporation that he signed contracts on behalf of the corporation held statement of fact, and not conclusion. 4. Principal and agent 116(1)-Effect of private limitations on general authority of agent stated. Private limitations on general authority of agent have no effect on third person who deals with agent in good faith, in ignorance of such limitation, and in reliance on apparent authority with which agent is clothed. NICHOLS, J. Appellee's first paragraph of complaint averred that the appellee was engaged in the business of leasing, furnishing and selling the right to use films and pictures for exhibition purposes in moving picture theatres, and appellant was engaged in the exhibition of moving picture films and owned and operated a theatre for that purpose; that during the three years last past appellee, at the special instance and request of appellant, sold to appellant for exhibition in its theatre the right to use moving picture films and pictures owned or controlled by appellee, at a total agreed rental or service charge of more than $20,000. That appellant neglected and refused to pay appellee on the total amount owed to appellee for the use of said pictures the sum of $12,830, for which appellant is indebted to appellee. Other paragraphs, later filed, were based upon the several contracts alleged to have been entered into by appellant and appellee. Appellant answered in three paragraphs, denial, payment, and non est factum, under which last paragraph of answer appellant attempted to prove that the pretended execution of the several contracts was by the manager of appellant without authority. Appellee filed reply in denial, and a second paragraph addressed to the third paragraph of in which it was averred that answer, throughout the whole of the year 1921, and until February 27, 1922, appellant had in its employ as manager one Berkson, and that said manager, in the discharge of his duties, purchased the pictures to be exhibited and managed the theatre; that he was the manager of appellant's business during the term of his employment, and that appellant well knew that said manager, on behalf of said appellant, purchased the right to exhibit pictures, owned, produced, or in the control of appellee for exhibition, and, with the full knowledge and consent of appellant, assumed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes known rule, the burden was on appellee to prove the amount of damages that it had sustained. Appellee, however, had discharged this burden by proving the contract price, appellant's violation of the contract, and appellee's willingness to perform. Milhollin v. Adams, 66 Ind. App. 376, 379, 115 N. E. 803; Waznitski v. George B. Limbert & Co., 66 Ind. App. 382, 118 N. E. 317. Appellee was not required to prove that it had received no other compensation for the use of the rejected films or that by the exercise of reasonable diligence it might have done so. If appellee had received other compensation, or if it had not been duly diligent in trying to obtain the same, appellant was entitled to a proper reduction from the contract price, but the burden of showing such compensation or want of diligence was on appellant, and in the absence of such evidence the contract price was the proper measure of damages. Cox v. Way, 3 Blackf. 143; Ewing v. Codding, 5 Blackf. 433; Hamilton v. Love, 152 Ind. 641, 53 N. E. 181, 54 N. E. 437, 71 Am. St. Rep. 384; Milhollin v. Adams, supra. Appellant contends that it was error for the court to permit witness G. E. Berkson to testify over appellant's objection that he signed the contracts in suit on behalf of appellant, for the reason that such evidence is the statement of a conclusion. These contracts which were in evidence were signed "Blackstone Theatre, by C. E. Berkson, Manager," or to that effect. We regard the evidence as a statement of a fact rather than a conclusion. Citizens' Bank v. Opperman, 188 Ind. 212, 219, 115 N. E. 55; Baltes Land Co. v. Sutton, 32 Ind. App. 14, 69 N. E. 179; Indiana, etc., Co. v. Glenn, 13 Ind. App. 534, 40 N. E. 151. Whether he had authority so to sign, or could bind appellant by so doing, will be hereinafter considered. to and did execute the written agreements | cessive, appellant states that, by the well set out in each paragraph of complaint, and that there was no advice communicated to appellee, that there was any limitation of the authority of said manager to purchase the right to exhibit pictures, and appellant permitted appellee to continue in the belief that said manager possessed full authority to make the several contracts, and that the appellant received, exhibited, and paid appellee for the right to exhibit all of the moving pictures mentioned and described in the several contracts, except those that it is alleged appellant refused to accept, and that all of said pictures paid for were paid for by appellant under the terms and conditions of the several contracts and not otherwise, and without protest or notice to the appellee that appellant was not bound by said several contracts, and appellant so continued to accept, pay for, and exhibit pictures under the terms of said several contracts, until March 3, 1922, when the treasurer of appellant wrote appellee that the appellant was no longer operating the Blackstone theatre, and advising appellee to ship no more films to appellant, the great expense in operation having forced appellant to lease the property to another management, which was the first notice to appellee that appellant no longer desired to perform its part of the contract made in its behalf by appellant's manager, and appellant did not at that time intimate that said contracts were not its contracts, because the said manager did not have authority to execute them. That by the terms of said contracts appellee was prohibited from leasing or licensing the right of exhibition to any other theatre in South Bend, which right was a valuable asset, and the contracts with the appellant aforesaid prevented appellee from selling said right to other persons or concerns. That on each of said contracts appellant had deposited $500 in cash, and that said deposits were made by the treasurer of appellant with appellant's knowledge and consent. That appellant knew that appellee was making said contracts, in reliance upon the authority of said manager to execute them, and with full knowledge thereof, appellant, on numerous occasions, asked appellee to modify said contracts, and did not at any time intimate to appellee any lack of authority of said manager, and relying upon said facts the appellee was induced to make each of the several contracts, and except for such facts would not have made and entered into them. There was a trial by jury which resulted in a verdict for appellee for $5,000, on which, after appellant's motion for a new trial was overruled, judgment was rendered. The only error assigned in this court is the action of the court in overruling appellant's motion for a new trial which presents the alleged errors hereinafter considered. Over the objection of appellant, Exhibits 1 to 13, inclusive, were introduced in evidence. These exhibits were the contracts for pictures which were sued on in the several paragraphs of complaint. Appellant's objection to the introduction of these exhibits presents the question as to whether C. E. Berkson who undertook to execute the contracts on behalf of appellant had authority so to do, or could and did bind the company by his action. The same question is presented by error assigned to the giving of certain instructions tendered by appellee, and to the refusal to give certain instructions tendered by appellant. In answer to interrogatories propounded to appellant it was admitted that Berkson was the manager of appellant's theatre, and in the contract of employment reduced in writing on February 1, 1921, it was provided that Berkson agreed to devote his entire time to his employment; that he should be known as the manager of the theatre busi (146 N.E.) duties incident to and actually performed by a manager of a moving picture business of like character; and that he was to employ and discharge all help needed in and about the operation of the moving picture business, except the bookkeeper and members of the orchestra. He was the only one who ever made any contracts for pictures, and 33 payments were made for pictures for which he contracted, totalling $10,364.11. Parts of all of the contracts shown by the exhibits were performed and payments made thereunder. There was a limitation on Berkson's right to purchase in that he was not to purchase any picture that involved an expenditure of more than $2,000 without the concurrence of the board of directors, and later it was stipulated that all contracts were to be made with the concurrence, of Mr. Toepp, treasurer of appellant company. While all the contracts involved were made before this stipulation as to the concurrence of Toepp, it appears that all contracts were made in the presence of Toepp and without objection by him, and that he paid all moneys and made all deposits on the pictures so contracted for. At a meeting of the board of directors, the contracts were discussed, and Berkson thereafter went to Chicago and secured a reduction on the price of some of the pictures. It does not appear that at the meeting of the board of directors there was any repudiation of the acts of Berkson in executing the contracts. such limitation, and in reliance on the apparent authority with which the agent is clothed. Fatman v. Leet, 41 Ind. 133; Commercial Union Assurance Co. v. State, 113 Ind. 331, 15 N. E. 518; Talmage v. Bierhause, 103 Ind. 270, 2 N. E. 716; Elkhart Hydraulic Co. v. Turner, 170 Ind. 465, 84 N. E. 812; 2 C. J. 566. There was no error in admitting the contracts in evidence, and with the above interpretation of the law as to appellant being bound by the acts of its manager within the apparent scope of his authority, we do not need to consider alleged errors of the court as to instructions. Other errors are presented, but we do not deem them of controlling force. Judgment affirmed. BILLINGS v. DEPUTY et al. (No. 11978.) (Appellate Court of Indiana. Jan. 29, 1925.) I. Wills 455-That will is crudely drawn and prepared by unskilled person may be considered in construing it. That will is crudely drawn and prepared by unskilled person may be considered in construing it. 2. Wills 470-Will construed as whole to all provisions upheld, unless so doing does vio- Will should be considered as whole and We find nothing that indicates a disposition to cancel any of the contracts or any parts thereof until appellant leased the theatre to other parties, when it wrote appellee not to ship any more films, saying that the great expense of operating had forced it to lease the property, and that the same was then in the hands of another corporation. This train of circumstances strongly impresses us, as it must have impressed the jury, that non est factum was an afterthought. [4, 5] But however this may be, the cir-4. cumstances set out above show that Berkson was the general manager of the moving picture business of appellant at the time the contracts involved were made, and as such he was to perform all of the duties incident to and actually to be performed by a manager of such a business, which, of course, would include the procurement of the films necessary to operation. Mr. Maberry, appellee's general agent through whom the contracts were made, testified that he had no knowledge of any limitation on the authority of appellee's manager, Mr. Berkson, in the purchase of films, or the execution of contracts therefor, and there is no evidence that appellant had any knowledge of such limitation. It is well established that private limitations on the general authority of an agent have no effect on a third person who deals with the agent in good faith, in ignorance of Where testator's intent is obscured by conflicting expressions, it is to be sought in a rational and consistent, rather than irrational and inconsistent purpose. Wills 441, 456-Testator's intent given effect, and words used in inexact and ambiguous sense read in sense used. Courts should give effect to manifest intent of testator deduced from will, read in light of surrounding circumstances, and words inadvertently used in inexact and ambiguous sense should be read in that sense, rather than in their ordinary and primary meaning. 5. Wills 455-Intention controls words, and not words intention as in case of deeds. Construction of words in will is less technical than in deeds, where words govern intention; intention being controlling in a will. 6. Wills 455-To effectuate intent courts may transpose, insert, or leave out words, phrases, or provisions. Where language of will is inexact and ambiguous, courts may transpose, leave out, or insert words, phrases, or provisions to effectuate intent gathered from whole text with reasonable certainty. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |