deducted from the proceeds that would arise | pany through William Simons, president from the sale of said corn of said Scott. and manager of said company, and Frank Finding No. 13, as made by said court, was as follows: "The court further finds that on the 10th day of August, 1920, the Sawers Grain Company came into the possession of the two carloads of corn heretofore mentioned, containing 3,141 bushels and 24 pounds of yellow shelled corn, which said corn was on said day the property of the plaintiffs in the proportions as heretofore found, and was of the value of $4,926.85; that on said day said Sawers Grain Company unlawfully and without right converted said corn to its own use and benefit; that said corn was wrongfully taken and carried away from the elevator at Tab, Ind., by the order and direction of said William Simons with the aid and assistance of appellant Harold R. McCollum; that the interest on the sum of $4,926.85 from the date on which the said property was converted to the date on which its said finding was filed was the sum of $524.70; and that the total damage occasioned to the appellees by said conversion was, to date of filing of finding of facts, $5, 451.55." R. Pence, and his elevator at Tab, growing out of the financing of said elevator and its business; and that by mutual understanding all the corn taken in at said elevator at Tab was to be consigned to said Sawers Grain Company. It was further found that on August 9, 1920, the Sawers Grain Company had actual knowledge of the claim of appellees to the corn in question; that McCollum knew that the corn in the elevator on August 2, 1920, belonged to the appellees; that the books at said elevator showed approximately the amount of corn in the elevator; that more corn had been taken on deposit than was then in said elevator, and that said corn had not been paid for, except in part as heretofore set out; that on August 2, 1920, and from thence until after the 10th day of August, 1920, and until after the conversion thereof as before, set out, the appellees were the owners of said corn, as tenants in common, in the following proportions, viz.: Earl Goodwine, .963; Fred Greenburg, .137; Jerry O. Scott, .094; and Arthur Arehart, .076; and that the transaction between the Sawers Grain Company and said McCollum, on the 2d day of August, 1920, was not in the usual course of business, and that the said Sawers Grain Company was not an innocent purchaser of said corn. The conclusions of law as stated by the court, so far as they affect the appellants, were as follows: "First. That the law is with the plaintiffs. "Second. That the plaintiffs are entitled to recover of and from the defendants the sum of $5,455.65 on the issues joined on the amended complaint and the answer thereto. "Third. That the plaintiffs are entitled to recover on the issues joined on the amended second paragraph of defendants' answer. "Fourth. That the plaintiffs are entitled to recover on the issues joined on amended third paragraph of defendants' answer." The court further found that the Sawers Grain Company was a corporation organized under the laws of the state of Illinois, and as such was authorized to buy and sell grain on commission, and to do a general grain commission business; that said company held a mortgage on the said elevator at Tab, Ind., in the sum of $25,000, from the year 1913 until after the transaction here in question; that many times prior to August 2, 1920, it had advanced large sums of money to said Frank R. Pence to be used in the business of said elevator; that on August 2, 1920, said company, said Simons, and said McCollum well knew that the bank carrying the said elevator account was refusing to honor any more checks issued by said Frank R. Pence or his agent in the operation of said elevator; that said elevator had, on said date, overdrawn its account, and that there were checks outstanding amounting to a large sum, and that appellants knew the desperate condition of the business of the said elevator on said date; that the appellants each knew that it was and had been the custom of said elevator, for a number of years, to receive corn on deposit, to be commingled with the common mass, with an option reserved in the depositor to ship said corn, or corn of like kind and amount, at a future time upon demand of the depositor and for the depositor, and to account to the depositor for the proceeds of such sale, after deducting the cost of shipment and sale and a reasonable compensation to said Frank R. [2, 3] The law is well settled that a party Pence for handling said corn; that on Au- may, by manifest intent and agreement, gust 2, 1920, each of the appellants knew that create a security, charge, or claim in the there was only a small amount of corn in nature of a lien on real or on personal propsaid elevator; that for many years there erty of which he is the owner or in posses had been, and was at the time of this trans- sion, which a court of equity will enforce action, an intimate personal and business against him, and against volunteers or claim. Exceptions were duly taken and saved to each conclusion of law, so that the question we now have to consider is as to the validity of each of said conclusions. The appellants insist that the conclusions of law are erroneous, for the reason, as they contend, that "upon the facts specially found by the court an equitable lien upon the two cars of corn in controversy was created in favor of the Sawers Grain Company, which was superior to the rights of the appellees" therein. (146 N.E.) that neither the Sawers Grain Company nor said McCollum can base any valid claim upon said contended-for authority. [5] It is also urged that the appellees have no such unity of interest in this case as to entitle them to bring and maintain this suit, and that therefore the conclusions of law favorable to them should be set aside as being erroneous. This contention also applies to the alleged insufficiency of the complaint-the right of these parties to maintain, jointly, a suit for the damages sustained. ment. 17 R. C. L. 604, § 13, and authorities | R. C. L. 859, § 35, and cases cited. We therethere cited. The cases of Reardon v. Hig- fore hold that the act of McCollum in shipgins, 39 Ind. App. 363, 79 N. E. 208; and ping said corn to Sawers Grain Company, of Duffy v. England, 176 Ind. 575, 96 N. E. under the facts as found by the court, was 704, are illustrative of the principle involved without any authority of law to sustain it, in the claim of appellants, but the facts, and was, so far as appellees were concerned, as found by the court, do not bring the apa wrongful conversion of their property, and pellants within said rule. The appellants did not make their said agreement with the owner of said corn, nor were they purchasers in regular and due course of business; the appellees are not asserting any claim under or through Pence, but are claiming in their own right, as owners of the corn in question. The appellants, under the findings of the court, simply advanced money to Pence, under and upon the promise of Pence, made through his agent, McCollum that the said grain, when shipped, should be consigned to them so that they, as brokers, might sell it, and that, when so sold, they should reimburse themselves for the money so advanced. Upon the facts as found the appellants are not within the rule announced in Preston v. Witherspoon, 109 Ind. 457, 9 N. E. 585, 58 Am. Rep. 417, that, where one deposits grain for storage in an elevator, knowing at the time that the grain so deposited is to be commingled with other grain of like quality and kind, owned by the owner of such elevator, and such grain is purchased from the owner of the elevator in due course, such purchaser is protected. If Pence had been the owner of the grain in said elevator on August 2, 1920, he could, of course, have created a lien, either legal or equitable, upon the same; but he was not such owner, he was simply a bailee, and, except by sale in due course, as against the appellees, he could do no act which would defeat their rights in and to said property. Kiefer v. Klinsick, 144 Ind. 46, 42 N. E. 447; Partlow-Jenkins Motor Car Co. v. Stratton, 71 Ind. App. 122, 124 N. E. 470; Somers v. Spellmeyer, 300 Ill. 64, 132 N. E. 787. We therefore conclude that the contention of the appellants, as to their having an equitable lien upon said corn, is not well taken. Under the facts found it is well settled that the appellees were "tenants in common" of the grain on hand and in the elevator at Tab at the time of the death of Frank R. Pence. Schindler v. Westover, 99 Ind. 395; Drudge v. Leiter, 18 Ind. App. 694, 49 N. E. 34, 63 Am. St. Rep. 359. In the case last cited it was said: "But if at any time the whole mass were less than the aggregate deposits, then all the depositors, or tenants in common, would together own all the grain, but each depositor would have an undivided share less than the quantity deposited by him, being such proportion of the grain remaining in store as his deposit would bear to the aggregate of the other deposits." Also, in Troxel v. Thomas, 155 Ind. 519, 58 N. E. 725, it was said: "It is the settled rule in this state that under our Civil Code all persons who unite as plaintiffs must have an interest in the subject of the action. But this rule is not to be interpreted so as to require that the interest of all the plaintiffs who do unite must be equal. * * *All, however, must have some common interest in respect to the subject-matter of the action, and each must be interested, at least to the extent that all who join as plaintiffs have some relief in respect to the subject-matter of such suit.” [4] The appellants next insist that the death of Pence did not revoke the agency of McCollum in this case; that said McCollum The appellants are well within the rule still had authority to ship the corn in ques-announced, and it follows that appellants' tion and to carry out the said contract of August 2, 1920, and many authorities are cited as sustaining their contention in this behalf. If, by the said contract, the appellants had acquired a lien upon said corna property right in and to said corn-there would, under the authorities cited, be merit in their contention; but, as we have held that under the findings herein they had no such lien as contended for, and no property right in and to the said corn in question, their contention in this behalf is not well founded. The general rule that the death of the principal revokes all authority of the agent must apply. Hawley v. Smith, 45 Ind. 183; 21 contention in this behalf is not well taken. Appellants also urge that the decision of the court is not sustained by sufficient evidence. In support of this contention they call attention specifically to certain designated findings made by the court, and urge that there is no evidence to sustain them. A reading of the evidence convinces us that there is evidence in the record sufficient to sustain each and every material fact in this case as found by the court necessary to sustain the conclusions of law stated. The material findings of fact herein are each and all within the issues of the case, and we need not, therefore, further consider any alleged error in relation to the pleadings herein. We find no error in this record; judgment affirmed. DAUSMAN, C. J., REMY, P. J., and McMAHAN, NICHOLS, and THOMPSON, JJ., concur. Appeal from Circuit Court, Adams County; R. H. Hartford, Judge. Action by John C. Etzold against the Board of Commissioners of Huntington County. Judgment for defendant, and plaintiff appeals. Affirmed. Superseding former opinion in 141 N. E. 617. This action was instituted by John C. Etzold against the board of commissioners of Huntington county to recover compensation for services rendered as reporter of the Huntington circuit court. It is averred in ETZOLD v. BOARD OF COM'RS OF HUNTINGTON COUNTY. (No. 11440.) (Appellate Court of Indiana, Division No. 2. the complaint that the plaintiff was the of Feb. 19, 1925.) 1. Appeal and error ~1071(1)-Trial 395 (1)—Finding that court reporter's claim satisfied by payment held erroneous, but not prejudicial. In an action by court reporter for compensation, trial judge's finding that payment had been made was erroneous, but not prejudicial; the court using the word "payment" to mean extinguished by acceptance of payments made. ficial reporter of the court from May 28, 1904, to February 15, 1915. The bill of particulars, filed with and made a part of the complaint, discloses the payments he received from time to time and the balance which he avers is due and unpaid. Relating to the days for which he received no compensation, as shown by the bill of particulars, the averments of the complaint are that— "He was required by the judge of the Huntington circuit court to attend, and did attend, said court as official court reporter 1,068 days, for which days he has not received any com 2. Courts 57(2)-Reporter's duties and compensation throughout service governed by statute under which appointed and amend-pensation, and that he has demanded compensaments thereof. Court reporter, appointed under Acts 1899, c. 169, pursuant to which his compensation was fixed by court, was governed by such statute, as amended by Acts 1913, c. 203, in all things pertaining to official position, including duties and compensation during full period of service. 3. Evidence 41, 82-Courts take judicial notice of manner of paying officers in attend ance. It is common knowledge that it has been practice to pay sheriff's compensation for attendance on court, on allowances by court, and, in absence of express statutory inhibition, it will be assumed that payments made to court reporter and accepted by him were properly paid and allowed, under Burns' Ann. St. 1914, § 1694 et seq. 4. Courts 57 (2)—Statutory requirement that court reporter's compensation be "certified, audited, and paid," held to involve judicial discretion to allow or to reject. The provision of Acts 1899, c. 169, as amended by Acts 1913, c. 203, that court reporter's compensation shall be "certified, audited, and paid," requires the exercise of judicial discretion to allow or to reject. 5. Courts 57(2)-Court reporter, accepting judge's allowances, held not entitled to claim additional compensation. A court reporter, employed and allowed compensation by a circuit judge, under Acts 1899, c. 169. as amended by Acts 1913, c. 203, held not entitled to claim compensation in addition to the amounts allowed and accepted, because he accepted the allowances under protest. tion for such days so required of him to be in attendance but the judge of the court refused to make allowance or to certify such attendance to the auditor or treasurer of the county for payment, and no part thereof has ever been paid." The special finding discloses the following facts: "Hon. James C. Branyan was judge of the Huntington circuit court from (and prior to) May 21, 1904, to November 10, 1906, and on the last-named date he was succeeded by Hon. Samuel E. Cook, who served in that capacity until some time after February 15, 1915. "The plaintiff was appointed official reporter of the court on May 28, 1904, by Hon. James C. Branyan, judge thereof, and at that time his compensation was fixed at $5 for each day when required by the judge to be in attendance upon the court. He accepted the appointment and discharged the duties of reporter under that order continuously until February 15, 1915. "The appropriation for the payment of the reporter's compensation was $1,200 for each year of his period of service. "From the date of his appointment to November 10, 1906, Judge Branyan required the reporter to be in attendance upon the court every day the court was in session, but allowed him compensation at the rate of $5 per day for such days only as he reported cases or did other work under the direction of the judge; and, if the reporter actually worked one-half day or less on any calendar day, the judge allowed him only half compensation at the rate fixed. "On April 25, 1907, the plaintiff filed in said court his claim for unpaid services rendered prior to November 10, 1906. That claim was "From November 10, 1906, to February 15, 1915, the plaintiff was required by Judge Cook to be, and he was, in attendance upon the court 1,053 days, for which he was allowed and paid compensation in the sum of $5,265. Between the last two dates he was also actually present in court, and ready to discharge any official duty which might arise, 819 days when his attendance upon the court was not required by the judge, but his presence on those days was voluntary. Charles K. Lucas, of Huntington, George A. Yopst, of Wabash, and Merryman & Sutton, of Decatur, for appellant. Claude Cline, of Huntington, John C. Moran, of Decatur, and M. J. O'Malley, of Huntington, for appellee. DAUSMAN, C. J. (after stating the facts as above). Since the facts have been found specially and conclusions of law have been stated thereon, the ruling on the demurrer need not be discussed. [1] The evidence tends fairly to sustain the finding of facts in all respects, unless ft be as to the particular finding that the plaintiff's cause of action had been paid. That particular finding requires special consideration. "The various allowances were made at short intervals, usually at intervals of one week. Each allowance was in full of all compensation due him for services since the last preceding It should be specially noted that the bill allowance, and the amount of each allowance of particulars concedes that numerous paywas paid to and accepted by him as full payments were made to the plaintiff. Concernment and satisfaction of all compensation due him to the date thereof. "Whenever an allowance was made for a less sum than the plaintiff believed himself entitled to receive under the law and the facts, he protested. Much friction and ill feeling was engendered by the numerous controversies between him and the judge concerning the allow ances. When such controversies arose, he was told by the judge that he was being allowed all that was due him and that, if he was not satisfied with the amount of his allowances, he could quit. When he presented to Judge Branyan claims for compensation in larger sums than the judge was willing to allow, he was told by the judge that, if he did not stop presenting claims for compensation for days on which he did not report any case, he would be discharged. He always submitted to the action of the judge in making the allowances, reserved no exceptions thereto, and accepted the allowances, and received the amounts thereof in payment of his compensation. "Before the commencement of this action the plaintiff requested the judge of the Huntington circuit court to make him an allowance for the amount claimed in his complaint, to be paid from the county treasury, which request the judge refused. Thereupon he filed his claim for allowance by the board of commissioners, where it was disallowed, and this action was commenced March 3, 1916. "That 563 of the days for which the plaintiff claims compensation were prior to March 3, 1910, and to that extent his cause of action accrued more than six years before the commencement of his action. "That the plaintiff's cause of action was fully paid before the commencement of this action." The conclusions of law are (1) that the plaintiff is not entitled to recover, and (2) that the defendant is entitled to recover costs. Judgment accordingly. The assignment of errors challenges the action of the court in overruling the demurrer to the eighth paragraph of answer, in overruling the motion for a new trial, and in stating each conclusion of law. ing those payments there is no controversy. His action is to recover the compensation alleged to be due him in excess of those payments, and therefore his cause of action is his claim that he is entitled to compensation over and above the amounts which by his complaint he admits were actually paid him. Was that cause of action extinguished by payment? Some of the statements in the special finding relating to this point, are mere recitals of evidential facts. The evidence bearing upon the question of payment is harmonious. Without the slightest conflict it shows that from time to time the plaintiff presented to the judge for allowance verified itemized statements of his claims for compensation; that frequently the statements included days for which, in the opinion of the judge, he was not entitled to compensation; that, upon inspection, the judge invariably refused to allow compensation for those days, struck them out of the statement, and allowed for the remaining days only; that, although often told that if he was not satisfied with the allowances he could quit, and although Judge Branyan often threatened to discharge him if he did not desist from the practice of including in the statements of his claims days on which he did no actual work he would be discharged, nevertheless he did not resign, neither was he discharged; that he continued to present claims for allowance which included days for which the judge refused to allow compensation; that he also filed numerous claims for allowance from which he omitted days for which he believed he was entitled to compensation, which omissions were for the reason that he knew it would be useless to include them; that he invariably accepted the allowances, although for less amounts than he claimed, and received from the county treasurer the sums designated in the allowances; that for a foundation for this action he went back through the years and counted the juridical days on which he was actually present in court and ready to discharge his official duties, and for which days no compensation had been allowed; and that he actually received the compensation allowed him by the judge, and no more. Manifestly the evidence forcefully excludes the idea of payment. There was no payment within the proper legal meaning of the word "payment." Each judge stubbornly and consistently refused to allow the reporter compensation for the days here involved. Doubtless either judge would have vigorously resented any imputation that he in any way aided the reporter to obtain payment for those days, and it is apparent that the reporter keenly appreciated that he was not receiving pay for the days which were stricken from his claims. The finding that the plaintiff's cause of action was fully paid before the commencement of the action is erroneous; nevertheless, for the reasons hereinafter appearing, it does not constitute reversible error. From the special finding as an entirety, considered in the light of the evidence, it is inferable that the court has not used the word "payment" in its proper legal sense. It is quite probable that what the court really meant is that, although the plaintiff was not in truth satisfied with his allowances, and did not in truth accept part of his numerous claims as payment of the whole, nevertheless the fact that he acted upon the allowances and received the amounts thereof from the county treasurer in the manner stated in the finding must be regarded in law as an extinguishment of his entire claim. Whatever may have been the real purpose of the trial court in finding that "each allowance was paid to and accepted by him as full payment and satisfaction of all com- | pensation due him to the date thereof," appellee's counsel are now contending that the claim was extinguished on the principle of accord and satisfaction. The importance of this particular feature, especially in this jurisdiction, calls for careful consideration. [2] The plaintiff was appointed and his compensation was fixed by the court pursuant to an act of the Legislature, approved March 3, 1899 (Acts 1899, p. 384). In the year 1913, section 7 of that act was amended (Acts 1913, p. 601). In all things pertaining to his official position, including his duties and compensation, during the full period of his service, he was governed by the former statute and by that statute as amended. [3] It should be appreciated that by the former act the Legislature has declared that it shall be the imperative duty of the court to appoint an official reporter for the purpose of facilitating and expediting the administration of justice; has fixed no definite term of office or service for the reporter, but any time; has directed that "he shall be allowed a compensation of not more than $5 per day for each day required by such judge to be in attendance upon the court as such official reporter"; and has directed that his compensation "shall be certified, audited, and paid in like manner as is provided by law for the payment of sheriffs for attending upon the court." Precisely what the Legislature intended by directing that the reporter's compensation "shall be certified, audited, and paid in like manner as is provided by law for the payment of sheriffs for attending upon the court" we are unable to determine by reference to any statute. Counsel have cited no statute directing how the compensation of sheriffs for attending upon the courts shall be certified, audited, and paid; and we know of none. At the time the legislation now under consideration took effect, there was a statute which provided that the sheriff of each county should receive $2 per day for attendance upon the court, and the same statutory provision existed long prior thereto and has existed ever since. But in no statute have we discovered any explicit direction as to how that compensation should be certified, audited, and paid. However, it is a matter of common knowledge that it has been the practice throughout the state to pay that compensation on allowances made by the court. See Board v. Crone, 36 Ind. App. 283, 75 N. E. 826; Board v. Neely, 36 Ind. App. 706, 75 N. E. 829; Board v. Fitzgerald, 40 Ind. App. 24, 79 N. E. 393. In the case at bar every payment to the reporter was made in the following manner: The reporter presented to the court his verified itemized statement of the compensation claimed to be due him; the court determined the amount which it considered was due the reporter, wrote the word “allowed" thereon, and subscribed the name of the judge thereto; the reporter then presented the statement and allowance to the auditor who issued a warrant thereon; and the warrant was cashed by the treasurer. We assume that the payments were made pursuant to section 1694 et seq. Burns' Ann. St. 1914. In any event, the Legislature having directed the appointment of a reporter, the court had inherent power to allow his compensation, within the statutory limit, and to order payment thereof. 15 C. J. 900. We shall treat the manner of payment, therefore, as in all respects legal. [4] It should be specially observed that the direction of the statute is that the reporter's compensation shall be "certified, audited, and paid." In its general sense, "to audit" means to adjust; to allow or reject; to ascertain; to determine; to decide; to pass upon; to settle; to hear, examine, and determine a claim, by its allowance or rejection in whole or in part; and implies the |