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late of said county and state, did then and there unlawfully haul over a certain gravel road then and there situate known as the Bailey gravel road No. 2, a load of coal, the combined weight of which load, motor truck, and driver, was more than 3,800 pounds; that such gravel road was, by reason of wet weather, then and there in a condition to be cut up and injured by heavy hauling, contrary, etc."; which offense as charged was in violation of that part of the amended act concerning public offenses, to wit, section 419:

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"It shall be unlawful for any person to haul term * gravel road (the 'gravel road' to include any road graded and graveled with not less than one yard of gravel to 8 feet in width and 9 feet in length of such road), at any time when the road by reason of wet weather is in condition to be cut up and injured by heavy hauling, or on any vehicle with tires five inches or over in width, the combined weight of which load, vehicle and driver, shall be more than 3,800 pounds. * (Section 2313, Burns' 1914; section 1, c. 234, Acts 1907.)

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Appellant moved to quash the affidavit for the reason that the facts stated therein do not constitute a public offense, in that the statute upon which the charge is predicated is void for uncertainty, and that it fails to fix a standard sufficiently certain by which to determine whether such use of the road is or is not a crime.

The question for decision is based upon the proposition, as stated by appellant, that that portion of the statute which prohibits a load of a certain weight to be hauled over a gravel road, when the same, on account of wet weather, is in a condition to be cut up and injured by heavy hauling, does not fix such a standard that a man may know before he does the act sought to be prohibited, that he is thereby violating this law.

The plain intent of the Legislature in enacting the statute, as shown by the language used, as it affects this case, was to prevent injury to the highways by use in measured degrees, when the condition of the highways, because of being softened by reason of wet weather, would not withstand the ordinary use. The plain and ordinary meaning of the statute conveys this intent.

It is urged that the statute is too indefinite to be enforced, in that no standard is made by the law by which two persons might agree that the roadway was so wet that a load of the weight named in the law would injure the highway; and that by any interpretation of the law itself, the only test to ascertain the condition which prohibits the use of the highway, is whether or not it is in fact injured by hauling a load of the named

weight over it; and reasoning therefrom, that for one to know whether or not the highway was in condition to be injured by heavy hauling by reason of wet weather, it would be necessary to violate the law by test.

It may be admitted that the condition of the highway necessary to prohibit its use as expressed by the statute might have been expressed in clearer and more definite language, which is to state that it is not as definite as it might have been expressed, and therefore that the statute is indefinite.

[1] A court cannot nullify the enactment of the Legislature because the language used is indefinite in some particular, unless the purpose or intent of the Legislature cannot be ascertained. The intent of the Legislature is the essence of the law, and the function of the court in construing legislative enactments is to ascertain the legislative intent, and to

enforce such intent when ascertained.

2

Lewis' Sutherland, Statutory Construction (2d Ed.) § 363; Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790; Hochheimer, Criminal Law (2d Ed.) § 28; State ex rel. Clark v. Haworth, 122 Ind. 462, 23 N. E. 946, 7 L. R. A. 240; Randall v. Richmond, 107 N. C. 748, 12 S. E. 605, 11 L. R. A. 460; Pennsylvania Co. v. State, 142 Ind. 428, 41 N. E. 937.

[2] The cardinal principle in construing a statute is to seek the intention of the legislative will; and a rule of law equally as well grounded is that the enactments of the Legislature must be effectuated if possible. The intention of the lawmaker is the law. The court will not extend the meaning of the statute by construction but such construction will be given that, when practically ap plied, will aid in preventing the evil which the ascertained intent aimed to prohibit. 2 Lewis' Sutherland, Statutory Construction (2d Ed.) §§ 528, 530; Clark & Marshall. Law of Crimes 97; Parvin v. Wimberg, 130 Ird. 561, 30 N. E. 790, 15 L. R. A. 775, 30 Am. St. Rep. 254; Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819; In re Quirk, 257 Mo. 422, 165 S. W. 1062, 51 L. R. A. (N. S.) 817; Edelstein v. U. S., 149 F. 636, 79 C. C. A. 328, 9 L. R. A. (N. S.) 236; U. S. v. Freeman, 3 How. 563, 11 L. Ed. 724.

[3, 4] The court is of the opinion that the statute is capable of intelligible construction and interpretation by persons who possess but ordinary comprehension; and that its language conveys an adequate description of the evil intended to be prohibited. The affidavit which charges the offense is in the language of the statute, and states a public offense. The statute is not void because of indefiniteness or uncertainty.

Judgment affirmed.

(146 N.E.)

HURST v. STATE. (Supreme Court of Indiana.

(No. 24524.) Feb. 6, 1925.) Criminal law 1158(1)—Finding against former jeopardy not disturbed on appeal on conflicting evidence.

Finding that defendant had failed to make out his defense of former jeopardy cannot, on appeal, be disturbed on the weight of conflicting evidence.

Appeal from Circuit Court, Putnam County; H. L. Fisher, Judge.

Joe Hurst was convicted of selling intoxicating liquor, denied a new trial, and appeals. Affirmed.

James & Allee, of Greencastle, for appellant.

U. S. Lesh, Atty. Gen. (Cronk & Wilde, of Indianapolis, of counsel), for the State.

finding that appellant failed to make out his defense of former jeopardy cannot be disturbed on the weight of conflicting evidence. No substantial rights of the appellant are shown to have been violated by the ruling complained of.

The judgment is affirmed.

ANDERSON BANKING CO. OF ANDER-
SON v. GUSTIN et al. (No. 12020.)
(Appellate Court of Indiana. Jan. 29, 1925.)
1. Mortgages 112-Each of mortgagees held
to own an undivided half interest in mortgage
and in notes secured thereby.

Where notes transferred by mortgagees to another and by him transferred to his wife were made payable to mortgagees, and they were both mortgagees in mortgage securing notes, each of them was owner of undivided half of each of notes, and each had an undivided half interest in mortgage.

2. Mortgages 236-Assignment of notes secured by mortgage held to operate as an equitable assignment pro tanto of mortgage.

Where each of mortgagees was owner of undivided one-half of notes secured by mortgage, and each had an undivided one-half interest in mortgage, assignment by them of such notes to another and by him to his wife operated as an equitable assignment pro tanto of mortgage to such parties.

3. Mortgages 249 (3)-Mortgagee's release of mortgage held to deprive assignee of mortgage notes of so much of her equitable interest in mortgage as secured undivided onehalf of each of notes held by her.

Where mortgagees' assignment of notes secured by mortgage was not of record, release of mortgage by one of mortgagees who was an

EWBANK, J. Appellant was charged by affidavit with the offense of selling five gallons of intoxicating liquor to Charles Turner, was convicted in the mayor's court, and on appeal to the circuit court was convicted there. Overruling his motion for a new trial, which specified as a reason that the finding was contrary to law, is assigned as error. Turner and his wife both testified that appellant sold him the liquor, as charged, and delivered it, and that upon receiving it Turner paid him $60 for it. The only question argued in the brief for appellant is whether or not he proved his defense of "former jeopardy," of which he had the burden of proof. There was direct evidence that he never had been tried before, but was only tried once; and the only evidence tending to show that there was a hearing of any kind before the one at which the mayor adjudged him guilty, from which he appealed to the circuit court, was proof that a few blank spaces in a printed form of entry on the docket of the mayor of Greencastle had been filled, so as to recite that an affidavit was filed against appellant on the day on which the affidavit now before the court was filed, that he pleaded not guilty, and that the court found that if guilty at all he was guil-4. ty of a felony, and ordered that he be bound over to appear in the circuit court of Putnam county, from which this appeal was taken, fixed his bond at $2,000, and took such a bond from him. The mayor testified that after writing this he had "tried to strike it out," and lines had been drawn across it with ink, and the mayor had written and signed at the bottom of the page the words "Above record void." Appellant was examined as a witness in his own behalf, and testified to many things, but neither he nor anybody else testified that he ever was arraigned and tried at any other time than on the date of the judgment appealed from. A

owner of an undivided one-half of each of such notes and who owned an undiveded one-half

interest in mortgage operated as a release of so much of assignee's equitable interest in mortgage as to innocent third parties as secured undivided one-half of each of notes held by her.

Mortgages

315(1)-Satisfaction of mort

gage by husband held not to release interest of wife therein.

Where husband and wife were each owners of an undivided one-half interest in a mortgage, and wife did not release her interest therein, satisfaction of mortgage by husband in no way affected her interest.

5. Mortgages 244(2) Mortgage assignee held not entitled to rely on representations that mortgage assigned to it was a first mortgage.

Assignee of a mortgage could not rely on representation of mortgagee that mortgage assigned to it was a first mortgage when public record showed to contrary.

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

thereof.

6. Principal and agent 111(2)-Statement said, and that, unless an extension of time not construed as authorizing mortgagee to would be granted, he would have to recondestroy mortgage notes which belonged to vey said property, and Surratt then suggestassignee and to take other notes in lieu ed to the said Schies that an extension of one all of said notes, and told said Schies that year be granted on the maturity dates of some arrangement would have to be made. Thereupon Schies turned said two notes over to him for the purpose of having the interest credited thereon, and the time of payment on all of said notes extended, and told him to do the best he could with Gustin.

That husband of assignee, to whom notes secured by mortgage had been transferred at time of delivering notes to mortgagee to have interest credited thereon and to extend time of payment, told mortgagee to do best he could with mortgagor could not be construed as giving mortgagee authority to surrender and destroy notes and to take other notes in lieu thereof, payable to himself, and secured by a junior mortgage.

Enloe, J., dissenting.

Afterwards Surratt and Gustin made arrangements between themselves by which Gustin and wife conveyed the real estate back to Surratt and wife, and they then con

Appeal from Superior Court, Madison veyed same to Gustin, individually (before it County; Willis S. Ellis, Judge.

Action by the Anderson Banking Company of Anderson against Alonzo M. Gustin and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Diven, Diven & Campbell, of Anderson, for appellant.

Bagot, Free & Pence, of Anderson, for appellees.

NICHOLS, J. Action by appellant to recover on five promissory notes executed by appellee Alonzo M. Gustin to appellee Garl W. Surratt, aggregating $4,000, and afterwards assigned to appellant for a valuable consideration and also to foreclose against all appellees a mortgage on real estate executed to secure said notes, and to have said mortgage declared a first lien on said real estate. There was a special finding of facts substantially as follows:

On August 6, 1919, appellees Surratt and Surratt, husband and wife, were the owners of 35 acres of land in Madison county; on said date they listed the same for sale with John Schies, at a price of $6,000 net to them, he to have all over that price for commission.

Said Schies procured a purchaser for said real estate for $8,000 in appellees Gustin, husband and wife, who paid in cash $2,000, and executed their several notes for $6,000, of which the Surratts retained $4,000 and indorsed in blank two $1,000 notes and turned the same over to said Schies as his commission, who thereupon transferred them to his wife, appellee Mary E. Schies, by delivery.

Before the maturity of the first note appellee Alonzo M. Gustin called on appellee Garl W. Surratt and told him that he and his wife would not be able to meet any of the notes at maturity, and that some arrangement would have to be made to extend the time of payment of all the notes, or they would have to throw up on the trade. Thereafter appellee Garl W. Surratt called Schies to his office and told him what Gustin had

had been conveyed to Gustin and wife). Gustin then executed two series of notes to Surratt, one series being for $4.000, and numbered from 1 to 5, and the other series being for $2,000 and numbered 1A and 2A Each of these series of notes was secured by a separate mortgage on the 35 acres of land, but by agreement between Surratt and Gustin the mortgage securing the $4.000 in notes was to be a first mortgage thereon. and the mortgage securing the $2,000 in notes a second mortgage thereon. Upon the execution and delivery of the last two series of notes and the mortgages securing same to Surratt he (Surratt) then surrendered to Gustin all of the notes first executed by him and wife as fully paid, who thereupon destroyed the same, and Surratt entered satisfaction of the mortgage securing said notes. (We observe, however that this mortgage was made to Surratt and his wife, and that the wife did not join in the satisfaction thereof.)

The mortgage securing notes for $4,000 was recorded at 9 o'clock a. m. November 3, 1921, and the mortgage securing the notes for $2,000, which by agreement between Surratt and Gustin was to be junior to the other, was recorded at 10 o'clock a. m. November 3, 1921. Neither the said John Schies nor the said Mary E. Schies ever at any time authorized either the said Garl W. Surratt or Mary F. Surratt to release of record the original mortgage executed by the said Gustin and Gustin to secure the payment of the two $1,000 notes which had been assigned to the said John Schies by Surratt and Surratt and which had been transferred and assigned by delivery to the said Mary E. Schies by the said John Schies.

Afterwards, and long before maturity, for a valuable consideration, and in due course of business, the appellant Anderson Banking Company purchased the notes numbered from 1 to 5 and took an assignment of the mortgage securing same. At the time of purchasing said notes the said Surratt, payee therein, represented to appellant that the

(146 N.E.)

same were secured by a first mortgage on said real estate, and appellant's cashier examined the records in the recorder's office and found the last two mortgages recorded as above set out. At the time appellant knew of the existence of said series of notes which had been originally executed by the said Gustin and Gustin and a portion of which had been assigned as collateral security by Surratt and Surratt to said bank, and did not make any request for the surrender of said original notes, but made transaction and purchased said notes upon the personal responsibility of appellee Garl W. Surratt. At the time of the purchase of said notes by appellant it had no notice or knowledge of any kind or character that any of the original notes had been turned over or assigned to said John Schies or Mary E. Schies, or had been in the possession of them, or that they had ever had any interest whatever therein, or that they had ever been out of the possession of appellees Surratt.

There was no assignment of the original mortgage by the Surratts to John Schies or Mary E. Schies other than that which resulted from the assignment of the two notes indorsed on blank and turned over to John Schies which were secured by the mortgage. No record of any kind was ever made of such indorsement upon any record in the recorder's office of Madison county, nor was any assignment of said mortgage ever recorded in the latter office. On these findings the court stated a conclusion of law, with other conclusions not herein challenged, that Mrs. Schies holds a mortgage lien against the real estate involved in the sum of $2, 271.32, one-half of which sum $1,135.66 is a senior and prior lien on said real estate to appellant's mortgage lien. Judgment was rendered foreclosing appellant's mortgage subject to the lien of one-half of appellee Mrs. Schies' mortgage, to wit, for the sum of $1,135.66 as stated in the conclusion, from which judgment this appeal.

[1, 2] It will be observed that the notes which had been transferred by the Surratts to Mr. Schies and by him transferred to his wife were made payable to the Surratts, and that they were both mortgagees in the mortgage securing these two notes. It follows then that each of Surratts was the owner of the undivided half of each of said notes, and that they each had an undivided half interest in the mortgage. The assignment by the Surratts of these notes to Mr. Schies and by him to his wife operated as an equitable assignment pro tanto of the mortgage to the respective parties to whom the notes were successively transferred. Hough v. Osborne, 7 Ind. 140; Parkhurts V. Watertown Steam Engine Co., 107 Ind. 594-596, 8 N. E. 635.

[3-5] Thereafter the Surratts had no interest in so much of the mortgage as by the assignment of the notes had been equitably assigned to Mr. Schies and by him to his wife, and, of course, no right to release it as to them. But, there being no assignment of record a release by them or either of them of the mortgage, though wrongful, would operate as a release pro tanto of the interest of Schies or his wife as to any one who had no knowledge of the equitable assignment. Mr. Surratt did release the mortgage, and thereby Mrs. Schies lost so much of her equitable interest in the mortgage as to innocent third parties as secured the undivided one-half of each of the notes held by her. This Mrs. Schies concedes. But Mrs. Surratt did not release her interest, and the satisfaction of the mortgage by her husband in no way affected her interest. Howe v. White, 162 Ind. 74, 69 N. E. 684. What motive she had, if any, in not so doing does not appear. It may have been for the purpose of protecting Mrs. Schies as to her equitable interest therein. Appellant could not rely on the representation that the mortgage assigned to it was a first mortgage when a public record showed to the contrary. Adkin v. Adkins, 48 Ind. 12. Appellant says that, if Mrs. Surratt was contending that she had a lien by virtue of the original mortgage superior to the lien of the appellant, there might be some merit in her contention, as the record shows no release of said mortgage by her.

We fail to see why Mrs. Surratt would have a superior lien had she still retained the notes, and yet Mrs. Schies, to whom the mortgage was thereby equitably assigned pro tanto, could not have the benefit of the same superior lien so long as the mortgage was unreleased of record, and thereby appellant had full knowledge that the mortgage was outstanding.

[6] It appears by the special findings that Mrs. Schies delivered his wife's notes to Mr. Surratt for the purpose only of having the interest credited thereon, and of having the time of payment extended. The fact that at the time he told Surratt to do the best he could with Gustin must be construed to mean within the compass of the purpose for which the notes were delivered. Certainly it cannot be construed as giving authority to Surratt to surrender and destroy the notes, which belonged to Mrs. Schies, and to take in lieu thereof other notes payable to himself and secured by a junior mortgage. Robinson v. Anderson, 106 Ind. 152, 6 N. E. 12. The court did not err in its conclusions of law.

The judgment is affirmed.

ENLOE, J., dissents.

blesville Milling Co., 69 Ind. App. 491, 122 ISMERT-HINCKE MILLING CO. v. BURK- N. E. 362. The question to be determined HART. (No. 120121.) is as to whether the telegrams constituted

(Appellate Court of Indiana, Division No. 2. such an offer and final acceptance. We hold Jan. 28, 1925.) that it does not. Additional terms for negotiation were suggested by appellant's tele

Sales 23(4)-Reply to offer held not un- gram, the price, the containers, and the time. conditional acceptance of order.

Where telegraphic order for flour, stating quantity and brand, was answered by telegraphic reply that order was entered, also stating price, containers, and time of delivery,

there was no contract for want of unconditional acceptance.

Appeal from Circuit Court, Miami County; Albert Ward, Judge.

Action by the Ismert-Hincke Milling Company against Harry Burkhart. From a judgment for the defendant, plaintiff appeals.

Affirmed.

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There was a trial which resulted in a finding and judgment for appellee. The only error assigned is the action of the court in overruling appellant's motion for a new trial which presents the sufficiency of the evidence to sustain the decision of the court. The written contract sued on consisted of two

telegrams, one alleged to have been sent by appellee to appellant in words as follows:

"Ismert-Hincke Milling Company, Kansas City, Mo., Book 350 barrels of flour, half I. H. and half Thunderbolt, Harry Burkhart."

The other sent as a reply to the first, in words as follows:

"Harry Burkhart, Peru, Indiana, have entered 175 barrels I. H. $12.45 and 175 barrels Thunderbolt $11.85. Cotton halves shipment within sixty days. Ismert-Hincke Milling Co."

These were for appellee's acceptance or rejection. That appellant did not consider the telegrams within themselves as constituting a contract that was final is evidenced by the fact that it thereafter sent a written contract to appellee to execute. It is true that appellant says that this was but to confirm the telegraphic contract, and produced some evidence to that effect, but it seems

that the trial court believed that a contract,

with terms and stipulations covering 13 pages of the record, must have been intended to accomplish more than merely to confirm the contract of a few words by wire. Judgment affirmed.

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NICHOLS, J. This is an appeal from a judgment, enjoining appellants from conducting a public garage upon their premises within 150 feet of the appellees' church, in Appellant contends that the last telegram violation of section 542 of Ordinance 23, 1918, is an acceptance of an offer contained in the of the City of Indianapolis, which provides first, and that the two telegrams taken to-thatgether constitute the contract for the breach of which this suit is brought. If appellant's contention is right, a new trial should have been granted, but if not, as appellee contends, the court did not err in its ruling.

It is well settled that a valid contract can be made by correspondence whether by mail or telegrams, provided such correspondence contains a specific offer which is unconditionally accepted. Corydon Milling Co. v. No

"No public garage shall be located, erected or maintained within one hundred fifty (150) feet of any lot on which there is situated a church or public school building, unless such public garage was established at such place prior to the establishment of such church or school building."

Appellants, on appeal, attack the sufficiency of the evidence to support any finding that appellees had any church building on their

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