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 nego

tiation 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.

These were for appellee's acceptance or reWhere telegraphic order for flour, stating jection. That appellant did not consider quantity and brand, was answered by tele- the telegrams within themselves as constitutgraphic reply that order was entered, also stat- ing a contract that was final is evidenced by ing price, containers, and time of delivery, there was no contract for want of uncondition the fact that it thereafter sent a written al acceptance.

contract to appellee to execute. It is true

that appellant says that this was but to conAppeal from Circuit Court, Miami County; firm the telegraphic contract, and produced Albert Ward, Judge.

some evidence to that effect, but it seems Action by the Ismert-Hincke Milling Com- that the trial court believed that a contract, pany against Harry Burkhart. From a judg- with terms and stipulations covering 13 pagment for the defendant, plaintiffe appeals. to accomplish more than merely to confirm

es of the record, must have been intended Affirmed.

the contract of a few words by wire. Harry K. Cuthbertson, of Peru, Ind., for

Judgment affirmed. appellant.

O. F. Rhodes, of Peru, Ind., for appellee.

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NICHOLS, J. Action by appellant against appellee to recover damages on account of BALCH et al. v. PERRY et al. (No. 11981.) an alleged breach of a certain written con. (Appellate Court of Indiana, Division No. 2. tract entered into between appellant and

Jan. 28, 1925.) appellee, appellant having alleged that it suffered damages in the sum of $1,190 by Livery stable and garage keepers 41/2-Evi

dence held to warrant enjoining operation of reason of the breach. There was a trial which resulted in a find

garage near church, ing and judgment for appellee. The only public garage within 150 feet of church in vio

Evidence, in suit to enjoin operation of error assigned is the action of the court in lation of ordinance, held to warrant injunction. overruling appellant's motion for a new trial which presents the sufficiency of the evidence

Appeal from Circuit Court, Marion Coun. to sustain the decision of the court. The ty; Harry 0. Chamberlin, Judge. written contract sued on consisted of two

Injunction by Ballard V. Perry and others telegrams, one alleged to have been sent by

against Alfred C. Balch and others. From appellee to appellant in words as follows:

a judgment for complainants, defendants ap"Ismert-Hincke Milling Company, Kansas

peal. Affirmed. City, Mo., Book 350 barrels of flour, half I. H. and half Thunderbolt, Harry Burkhart."

William W. Seagle, of Indianapolis, for ap

pellants. The other sent as a reply to the first, in R. L. Ewbank, of Indianapolis, for appelwords as follows:

lees. Harry Burkhart, Peru, Indiana, have entered 175 barrels I. H. $12.45 and 175 barrels

NICHOLS, J. This is an appeal from a Thunderbolt $11.85. Cotton halves shipment judgment, enjoining appellants from conwithin sixty days. Ismert-Hincke Milling Co.” | ducting 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

“No public garage shall be located, erected or of which this suit is brought. If appellant's maintained within one hundred fifty (150) feet contention is right, a new trial should have of any lot on which there is situated a church been granted, but if not, as appellee contends, or public school building, unless such public the court did not err in its ruling.

garage was established at such place prior to It is well settled that a valid contract can

the establishment of such church or school

building." be made by correspondence whether by mail or telegrams, provided such correspondence Appellants, on appeal, attack the sufficiency contains a specific offer which is uncondition of the evidence to support any finding that ally accepted. Corydon Milling Co. v. No-l appellees had any church building on their

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

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(146 N.E.) premises. They also contend that there is , court that any proper building might be insufficient evidence to support any finding erected without prejudice to the rights of that they were in any way seeking to estab- either parties and that no public garage lish any public garage, and, further that would be operated pending trial of the cause. the evidence shows that they have maintained Pending the trial, appellants completed a public garage upon their premises since be- their building and put a tenant operating a fore the appellees' church was established, paint shop therein, and the appellees com. and for that reason their garage does not menced the addition to the old frame church, come within the ordinance.

necessitating discontinuance of all meetings It appears by evidence that a German lan- therein, and the addition, while practically guage Methodist Episcopal Church congrega- completed, had not been dedicated, but dedition built a frame church building at the cation services were set for the Sunday fol. northwest corner of East Tenth street and lowing the trial. Keystone avenue in 1901. An English lan- The evidence is sufficient to sustain the deguage congregation of the Methodist Episco- cision of the court. pal Church built a brick church on the Affirmed, south of East Tenth and west of Keystone, directly south across the street from the frame church. Both buildings were the prop- | PULSE et al. v. BOARD OF COM’RS OF erty of the M. E. Church, though held by

DECATUR COUNTY et al. (No. 11626.) the separate congregations. The English speaking congregation prospered and in- (Appellate Court of Indiana, Division No. 2.

Feb. 5, 1925.) creased beyond the capacity of their building, which was not built to permit enlarging 1. Evidence am 43(2)—Judicial knowledge tak. it. The German congregation languished, and en of auditor's transcript of proceedings of these conditions finally resulted in a sale and board of commissioners. transfer of the frame church building from Of the complete transcript of the proceedthe German congregation to the English lan- ings of the board of county commissioners guage congregation about September 1, 1922. made by the auditor, as required by Burns' The frame church was about 40 feet north Ann. St. 1914, 8 6023, being part of the record, and south, and about 60 feet east and west, the circuit court on appeal from the commis

sioners, and the Appellate Court, on appeal and the long way of the lot on which it was from the circuit court, take judicial knowledge. built ran north and south along the west side of Keystone avenue. The English lan- 2. Counties ēm 207(1)-Acceptance of payguage congregation bought this property

ment, of part of claim allowed by commis.

sioners, waiver of right to litigate in regard with the view of building an addition north

to balance. ward from the old frame church toward the

Claimants, by accepting payment of the alley and along the west side of Keystone part of claim allowed by county commissioners, avenue, and during the pendency of this sec-waived right further to litigate any question in tion and before trial had constructed the regard to the balance. addition,

3. Counties en 207(1)-Commissioners have During the negotiations for the transfer

no jurisdiction of balance of claim after acof this old frame church from one congrega

ceptance of payment of part allowed. tion to the other, lasting about eight months,

Where claimant accepted payment of the no services were held therein, but there was part of claim allowed by county commissioners, no abandonment of the building for church they had thereafter no jurisdiction to consider purposes, and as soon as the English speak-claim for the balance. ing congregation acquired it, they commenced

4. Counties m58–Appeal from commission. holding religious meetings therein, including

ers dismissed where they had no jurisdiction. prayer meetings, Sunday school classes, bible

Where county commissioners had no jurisschool, etc., but up to the time of trial that diction, appeal from them to circuit court was congregation had never held preaching serv- properly dismissed. ices therein. Appellee, when it purchased the building, contemplated the continued use of

Appeal from Circuit Court, Decatur Counthe building in connection with the building ty; Fred E. Gouse, Judge. across the street for religious, educational,

Claim by Will C. Pulse and others was disand recreational purposes. About the last of 1922

or first of 1923, the appellants began allowed by the Board of Commissioners of their efforts to get a permit to construct a

Decatur County. From an order of the Cirpublic garage on the east side of the street cuit Court, dismissing their appeal from the directly across east of the northern end of county board, claimants appeal. Affirmed. the property, and upon the issuance of the Edgar E. Hite and Wickens & Hamilton, building permit for a public garage, this suit all of Greensburg, for appellants. was filed and a temporary injunction prayed,

Thomas E. Davidson, of Greensburg, for but attorneys for the parties agreed in open appellees.

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

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NICHOLS, J. "On April 17, 1992, a petition, 618. See, also, Doctor v. Hartman, 74 Ind. was filed in the office of auditor of Decatur 221. county for the construction of a free macad [4] When it appears on the face of the recam road in Washington township said coun- ord, as in this case, that the board of comty. In due course of procedure, which in- missioners had no jurisdiction, it is the duty cluded the establishment of the road and the of the court to dismiss the appeal. Fitch v. letting of the contract for its construction Long, 29 Ind. App. 463, 64 N. E. 622; Harto appellants, the road was completed and rison v. Western Const. Co., 41 Ind. App. 6, appellants filed their claim for their com- | 83 N. E. 256; City of Crawfordsville v. pensation for the construction thereof, which Brown, 45 Ind. App. 592, 91 N. E. 252 ; Prathincluded compensation for extra services. er v. Brandon, 44 Ind. App. 45, 88 N. E. 700; After due consideration, the board of com- Wildman v. Rider, 23 Conn. 172. missioners, on January 6, 1914, made the Other questions are presented, but we do following entry of allowance of such claim not consider them, for under these authorito wit:

ties it conclusively appears that there was “The contractors, Pulse and Porter, having no error in the order dismissing the appeal. filed a bill for more than the contract price and

Affirmed. for more extras than the board had ordered done, the board, after due consideration, decided that they can pay no more money than is available. They decided to pay the contractors

COOPER V. FARMERS' TRUST CO. the balance of the available money and do here

(No. 11941.) by make an order that the auditor herein pay (Appellate Court of Indiana, Division No. 1. the contractors the sum of six hundred eight

Feb. 3, 1925.) dollars and eighty-two cents ($682.80), that would still leave a balance due contractors of 1. Appeal and error 865—Denial of motion $1,358.08, but the commissioners claim that

for continuance not reviewable on appeal in they did not make any order for these extras,

statutory action to set aside default. also it was understood when the contract was let that the contractors would keep within the 1921, § 405, to set aside default judgment,

In action, under Burns' Ann. St. Supp. money available and the matter is continued." court may not properly consider denial of mo

[1-3] There is an apparent inadvertence in tion for continuance, as it might in action uncopying the amount of such allowance. We der Burns' Ann. St. 1914, 88 645, 646, to review shall assume, because of statements else

judgment. where, that the amount is $680.82. There- 2. Judgment 460(3)-Complaint in statuupon appellants accepted payment of the tory action to set aside default judgment held said sum of $680.82, and subsequently there

demurrable, to filed their claim for the said sum of $1, Complaint in action under Burns' Ann. St. 358.08 which claim was disallowed by the Supp. 1921, $ 405, to set aside default judg. board of commissioners, and the appellants ment entered under Burns’ Ann. St. 1914, $

410, upon denial of continuance on ground attempted to prosecute an appeal from such that plaintiff's counsel was required to be at order of disallowance to the circuit court. another place on the day set for trial, but The auditor made a complete transcript of which did not allege where plaintiff and his the record of the board of commissioners as attorney were on such day, nor contain any required by statute. Section 6023, Burns' R. showing that they could not have attended, held S. 1914. Of this transcript, being a part of

demurrable. the record, the circuit court and this court take judicial knowledge. State v. Simpson,

Appeal from Superior Court, Martin Coun166 Ind. 211, 76 N. E. 544. There was a judg- ty; Clinton H. Givan, Judge. ment dismissing the appeal in the circuit Action by Thomas Cooper against the Far. court, from which this appeal is prosecuted. mers' Trust Company, trustee, to set aside This case is very similar to the Western default judgment. Judgment on demurrer Construction Co. v. Board, 178 Ind. 684, 98 for defendant, and plaintiff appeals. AffirmN. E. 347. In that case appellants filed their ed. claim for services performed in the construc L. Rosenberg, of Indianapolis, for appeltion of a road for $8,788.56, and the board lant. allowed $7,000 thereon, which amount appel Harry O. Hendrickson, of Indianapolis, for lant accepted and received payment thereof, appellee. and the court held that it thereby waived its right further to litigate any question in THOMPSON, J. This is an action by aprelation to the amount of the claim that was pellant, Thomas Cooper, against appellee, rejected, that the board of commissioners Farmers' Trust Company, trustee, to set thereafter had no jurisdiction, and that the aside a default judgment taken against appel. appeal should be dismissed. To the same ef- lant. fect see Butler v. Board, 177 Ind. 440, 98 N. There was a case in the Marion superior E. 185; Plew v. Jones, 165 Ind. 21, 74 N. E. I court entitled "Farmers' Trust Company,

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

(146 N.E.) Trustee, v. Thomas Cooper." The defendant demurrer to appellant's complaint is the sole was ruled to answer on the 26th day of Sep- alleged error relied upon for the reversal of tember, 1923, at which time said cause, by this cause. order of the court, was set for trial October [1, 2] This is not an action to review a 2, 1923. Defendant, by his attorney, appear- judgment as provided for in sections 645, 646, ed on October 1, 1923, and filed an affidavit | Burns' 1914, but an action to set aside a asking for a continuance, and among other default, under section 405, Burns' Supp. 1921. reasons stated that he had a case set for trial Therefore, it would not be proper for this at Noblesville, Ind., on the 2d of October, court to consider the ruling of the lower court 1923, which case had been set for trial for on the motion for continuance. In the forsome time, and that it would be impossible mer case appellant, in his motion for continfor said attorney to attend the trial in the uance, stated that he had another case set superior court of Marion county on that date. for trial at Noblesville, Ind., on October 2, The court overruled the motion for a contin- 1923, the same date as that of the trial under uance, and on October 3, 1923, the court rend consideration. The complaint nowhere alered judgment by default against appellant. leges where the plaintiff or his attorney was

On October 27, 1923, appellant filed his on October 2, 1923, or on the 3d of October, complaint to set aside the default rendered 1923, the day on which the judgment on deon October 30, basing said action on section fault was rendered, nor is there any showing 405, Burns' 1921, which provides :

in the complaint why they could not be there,

and for all we know from the complaint in "The court shall relieve a party from a this case they both might have been in court judgment taken against him through his mis

on that day, Section 410, Burns' 1914, protake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceed

vides: ings, on complaint filed within two years." "If, from any cause, either party shall fail

to plead or make up the issues within the time To this complaint the appellee herein fled prescribed, the court shall forthwith enter a demurrer on the grounds that said com- judgment as upon a default, unless, for good plaint did not state facts sufficient to con- ing, on the payment of the costs occasioned

cause shown, further time be given for pleadstitute a cause of action. The demurrer was by the delay." sutained by the court, whereupon appellant refused to plead further, and the court rend- Finding no error in the action of the lower ered judgment against appellant. Appellant court in sustaining the demurrer to the comthen excepted and appealed.

plaint, and that being the only alleged error The action of the court in sustaining the complained of, the judgment is affirmed.

146 N.E.-22

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(239 N. Y. 207)

tion. From so much of a unanimous judg. AMERICAN UNION LINE, Inc., V. ORIEN- ment of the Appellate Division (209 App. TAL NAV. CORPORATION. *

Div, 260, 204 N. Y. S. 501) as reversed an (Court of Appeals of New York.

order denying a motion made by defendant

Dec. 16, 1924.)

for judgment on the pleadings and grant

ing such judgment dismissing complaint, 1. Appeal and error ww358-Final judgment plaintiff appeals. Judgment of Appellate dismissing complaint after severance from Division reversed, and order of Special Term counterclaims held appealable without per affirmed. The judgment of the Appellate mission,

Division also provided on the application of Where Special Term denied defendant's motion for judgment on pleadings, which action defendant's counsel, and with consent of Appellate Division reversed, and made an or- plaintiff's counsel, that the cause be separat. der granting such motion and severing plain- ed into two actions, one of which should emtiff's alleged cause of action from defendant's brace plaintiff's alleged cause of action and alleged counterclaims so as to make plaintiff's the other defendant's alleged counterclaims. action a separate one, entry of final judgment See, also, 199 App. Div. 513, 192 N. Y. S. on such order dismissing plaintiff's complaint 154. was a reversal, and appealable without permission.

Frederick B. Campbell, of New York City,

for appellant. 2. Corporations Om Even though stockholder owns controlling interest, corporation is both of New York City, for respondent.

Herman S. Hertwig and Russell T. Mount, separate from him.

A corporation is a creation ordinarily separate and distinct from one of its stockholders,

HISCOCK, C. J. There was made between even though that stockholder owns control of plaintiff and defendant in February, 1918, its capital stock.

a contract for the purchase and sale of a 3. Shipping Om 27—Complaint held not to show steamship at the price of $185,000, and of

affirmative misrepresentation by buyer as to which $50,000 was paid at or before the exits capacity to buy steamship or any conceal. ecution of the agreement. In addition to ment from seller of a known incapacity. many other provisions which are not involv

In suit to recover amount paid on con- ed in the present controversy the contract tract for sale of a steamship which United contained a clause whose interpretation is States Shipping Board refused to consent to decisive of this appeal. Said clause reads transfer to plaintiff because it did not satis- as follows: factorily appear that an American citizen had controlling interest in its stock, based on pro- "7. Neither party to this contract shall bevision in contract that performance of contract come liable to the other in any manner whatsohad become impossible, complaint held not to ever for failure to perform this contract owing show on its face that there was any affirmative to perils of the seas or of navigation, arrests, misrepresentation by plaintiff in respect of its restraints or acts of princes, rulers, governcapacity to buy or any concealment from seller ments or people, or owing to any other cause of a known incapacity.

beyond the control of any such party. Provid

ed, however, that in the event that this con4. Shipping On 27-Contract for sale of steam-tract shall be or become impossible of performship held not to require buyer to pay exces.

ance owing to the causes hereinabove mensive amount demanded by foreign corporation tioned or any of them, the sums paid to the to secure release of buyer's stock.

vendor by the purchaser shall be forthwith reContract for sale of steamship, providing paid to the purchaser by the vendor without that sums paid by plaintiff should be repaid interest." if contract could not be performed because of certain perils or causes beyond control of parties, which sale United States Shipping Board the interpretation of said clause are al

The following controlling facts calling for refused to sanction because it did not satis- leged in the complaint, which has been disfactorily appear that an American citizen owned a controlling interest in plaintiff's stock, missed as not stating a cause of action for which was held in escrow to secure debt owing the recovery back under said clause of the to alien, held not to require plaintiff, in order | amount paid on the contract: The plainto release itself and vendor from liability in tiff is a corporation organized under the order to consummate contract, to pay excessive laws of the state of New York.

At the amount demanded by alien creditor as a condi- time the agreement was made all of its caption to release of its stock.

ital stock had been placed in the possession

of one Engel, who was a citizen of the United Appeal from Supreme Court, Appellate Di- States, under a written agreement dated vision, First Department.

June 20, 1917, between the Interchange Action by the American Union Line, Inc., Limited, a Danish corporation, and one Shaagainst the Oriental Navigation Corpora- piro, a citizen of the United States, whereby

*Reargument denied 239 N. Y. 634, 147 N. E. 227.

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