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(146 N.E.) such time as the plaintiffs who placed it there, to the credit of Frank R. Pence, and forwarded should direct Pence to ship it for him, or oth-it to a bank in Chicago for collection. On the erwise dispose of it; but it was also understood following day, about 11:00 o'clock a. m., said by the parties to all of the said contracts that draft was presented to the Sawers Grain Coman equal amount of corn to that deposited, of pany at Chicago, Ill., and was at once honored like quality and kind, should be on hand in said and paid. That on the 2d day of August, 1920, elevator, at any time any of said parties might no specific number of bushels of corn was specdirect said Pence to ship and sell said corn on ified as to the amount to be shipped, and no corn his account. The corn of the several plaintiffs was set apart or segregated from the mass in was delivered and placed in the bins of the ele- the elevator for that purpose, and the corn vator in a common mass with other corn of which was afterwards shipped was not separatlike quality and kind, and said Pence did shiped from the mass in the elevator until it was and sell corn from the common mass in the loaded on the cars on the 7th day of August, bins of said elevator until a few days prior to 1920, as hereinbefore found." his death."

It is further found that Frank R. Pence It was further found that on the 7th day died on the 3d day of August, 1920, leaving of August, 1920, letters of administration on an insolvent estate; that on the day of his the estate of Frank R. Pence to his widow death there was on hand in the bins of said Delia M. Pence were granted, and that on elevator, in a common mass, 9,327 bushels the same day she, as such administratrix, and 8 pounds of corn of like kind and quali- leased said elevator to Harold R. Pence and ty to that placed therein by the appellees, J. O. Crane, and that Pence and Crane took which said corn then on said elevator was possession of said elevator on the morning not equal in amount to the corn placed in of the 9th day of August, 1920; that at said elevator by appellees, under said con- the time Pence and Crane took possession tract, but was deficient by 1,787 bushels and of said elevator the two cars loaded with 14 pounds; that prior to the death of said corn, as above found, were on the railroad Pence none of the appellees had either sold siding at Tab, billed in the name of the any of said corn or ordered the same to be Frank R. Pence estate to Indianapolis, Indishipped out; that on the 7th day of August ana, with directions to notify the Sawers 1920, 3,146 bushels and 24 pounds of yellow Grain Company on their arrival; that said shelled corn was taken from the mass of Crane inquired of McCollum concerning the the corn in the bins at said elevator, loaded corn in said cars and was told by McColinto cars, and on the 9th day of August, 1920, lum that said cars were loaded with corn shipped to appellant grain company; that the which had been placed in the elevator by value of the corn so shipped, at Tab, Ind., farmers under contract, the terms of which on the day said cars were loaded, was $4,926.- we have hereinbefore set out; that on the 83; that said corn was taken from the bins, 10th day of August, 1920, said two cars of loaded and. shipped by the orders and at corn were received by the Sawers Grain the direction of the appellant Harold R. Mc- Company and sold, and the net proceeds of Collum, and pursuant to an agreement made said sale applied by said company to the by him with William Simons, one of the ap- payment of a debt due to said company from pellants herein, and who was the representa- the estate of Frank R. Pence, for money tive of appellant grain compnay, on the 2a advanced by said company to him in his day of August, 1920, the court's finding as lifetime; that after said cars of corn had to said agreement being as follows:

been received by said company Pence and "On the 2d day of August, 1920, an agreement Crane, acting for the appellees, made a draft was made by and between Harold R. McCollum, on the Sawers Grain Company for the proagent of Frank R. Pence, and William Simons ceeds of the sale of said two cars of corn, acting for the Sawers Grain Company, by the which draft was presented to said company terms of which the Sawers Grain Company au- and payment thereof refused; that the fair thorized McCollum as agent of Pence to draw market value of the corn so shipped and a sight draft on Sawers Grain Company in fa- received by said company at Indianapolis, vor of the Citizens' Bank of Tab, Ind., for the Ind., at the time it was so received, was sum of $4,000 in consideration of the agree- $4.926.83 net; that on the 2d day of August, ment by McCollum as agent for Pence that he would ship to the Sawers Grain Company the 1920, neither William Simons nor the Sawers first two carloads of corn to be shipped from Grain Company had any actual knowledge of the mass of grain then in the elevator at Tab, any claim of appellees or either of them Ind., on consignment to be sold by said Sawers upon or against said corn or any part of Grain Company, and the proceeds to be applied. it in said elevator, nor did said Simons or after deducting expenses and commissions, to the said Sawers Grain Company ever thereafter payment of the indebtedness created by the pay- acquire any knowledge of any such claim of ment of said draft, and a pre-existing indebted- appellees upon said corn until on or about ness of about $900 due to said grain company the 9th day of August following; that after from said Pence. On the same day a draft was drawn by McCollum as agent for Pence, in ac- appellee, Jerry O. Scott, had placed his corn cordance with said agreement, which said draft in said elevator, as before found, he received was by said McCollum delivered to the Citi- from Frank R. Pence the sum of $500 under zens' State Bank of Tab, which passed the same an agreement that said amount should be

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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 R. Pence, and his elevator at Tab, growing as follows:

out of the financing of said elevator and its “The court further finds that on the 10th day business; and that by mutual understandof August, 1920, the Sawers Grain Company ing all the corn taken in at said elevator at came into the possession of the two carloads Tab was to be consigned to said Sawers of corn heretofore mentioned, containing 3,141 Grain Company. bushels and 24 pounds of yellow shelled corn, It was further found that on August 9, which said corn was on said day the property 1920, the Sawers Grain Company had actual of the plaintiffs in the proportions as hereto- knowledge of the claim of appellees to the fore found, and was of the value of $1,926.85; that on said day said Sawers Grain Company un

in question; that McCollum knew lawfully and without right converted said corn

that the corn in the elevator on August 2, to its own use and benefit; that said corn was 1920, belonged to the appellees; that the wrongfully taken and carried away from the books at said elevator showed approximately elevator at Tab, Ind., by the order and direction the amount of corn in the elevator; that of said William Simons with the aid and assist-more corn had been taken on deposit than ance of appellant Harold R. McCollum; that the was then in said elevator, and that said interest on the sum of $4,926.85 from the date corn had not been paid for, except in part on which the said property was converted to

as heretofore set out; that on August 2, the date on which its said finding was filed was the sum of $524.70; and that the total damage 1920, and from thence until after the 10th occasioned to the appellees by said conversion day of August, 1920, and until after the was, to date of filing of finding of facts, $5,- conversion thereof as before, set out, the ap451.55."

pellees were the owners of said corn, as ten

ants in common, in the following propor. The court further found that the Sawers tions, viz.; Earl Goodwine, .963; Fred GreenGrain Company was a corporation organized | burg, .137; Jerry O. Scott, .094; and Arthur under the laws of the state of Illinois, and Arehart, .076; and that the transaction beas such was authorized to buy and sell grain tween the Sawers Grain Company and said on commission, and to do a general grain McCollum, on the 2d day of August, 1920, commission business; that said company was not in the usual course of business, held a mortgage on the said elevator at Tab, and that the said Sawers Grain Company Ind., in the sum of $25,000, from the year was not an innocent purchaser of said corn. 1913 until after the transaction here in ques The conclusions of law as stated by the tion; that many times prior to August 2, court, so far as they affect the appellants, 1920, it had advanced large sums of money were as follows: to said Frank R. Pence to be used in the

"First. That the law is with the plaintiffs. business of said elevator; that on August

"Second. That the plaintiffs are entitled to re2, 1920, said company, said Simons, and said cover of and from the defendants the sum of McCollum well knew that the bank carry- $5,455.65 on the issues joined on the amended ing the said elevator account was refusing complaint and the answer thereto. to honor any more checks issued by said “Third. That the plaintiffs are entitled to reFrank R. Pence or his agent in the operation cover on the issues joined on the amended seeof said elevator; that said elevator had, on

ond paragraph of defendants' answer.

"Fourth. That the plaintiffs are entitled to said date, overdrawn its account, and that

recover on the issues joined on amended third there were checks outstanding amounting to paragraph of defendants' answer.” a large sum, and that appellants knew the desperate condition of the business of the Exceptions were duly taken and saved to said elevator on said date; that the appel- each conclusion of law, so that the question lants each knew that it was and had been we now have to consider is as to the validi. the custom of said elevator, for a number of|ty of each of said conclusions. years, to receive corn on deposit, to be com The appellants insist that the conclusions mingled with the common mass, with an op- of law are erroneous, for the reason, as they tion reserved in the depositor to ship said contend, that "upon the facts specially found corn, or corn of like kind and amount, at by the court an equitable lien upon the two a future time upon demand of the depositor cars of corn in controversy was created in and for the depositor, and to account to the favor of the Sawers Grain Company, which depositor for the proceeds of such sale, after was superior to the rights of the appellées" deducting the cost of shipment and sale and therein. 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. relationship between the Sawers Grain Com- ants under him with notice of the agree

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(146 N.E.)
ment. 17 R. C. L. 604, § 13, and authorities | R. C. L. 859, $ 35, and cases cited. We there-
there cited. The cases of Reardon v. Hig- fore hold that the act of McCollum in ship-
gins, 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 ap a wrongful conversion of their property, and
pellants within said rule. The appellants did that neither the Sawers Grain Company nor
not make their said agreement with the said McCollum can base any valid claim up-
owner of said corn, nor were they purchasers on said contended-for authority.
in regular and due course of business; the [5] It is also urged that the appellees have
appellees are not asserting any claim under no such unity of interest in this case as to
or through Pence, but are claiming in their entitle them to bring and maintain this suit,
own right, as owners of the corn in question. and that therefore the conclusions of law
The appellants, under the findings of the favorable to them should be set aside as
court, simply advanced money to Pence, un- being erroneous. This contention also ap-
der and upon the promise of Pence, made plies to the alleged insufficiency of the com-
through his agent, McCollum that the said plaint-the right of these parties to main-
grain, when shipped, should be consigned to tain, jointly, a suit for the damages sus-
them so that they, as brokers, might sell it, tained.
and that, when so sold, they should reim- Under the facts found it is well settled
burse themselves for the money so advanced. that the appellees were "tenants in common”
Upon the facts as found the appellants are of the grain on hand and in the elevator at
not within the rule announced in Preston v. Tab at the time of the death of Frank R.
Witherspoon, 109 Ind. 457, 9 N. E. 585, 58 Pence. Schindler v. Westover, 99 Ind. 395;
Am. Rep. 417, that, where one deposits grain Drudge v. Leiter, 18 Ind. App. 694, 49 N.
for storage in an elevator, knowing at the E. 34, 63 Am. St. Rep. 359. In the case last
time that the grain so deposited is to be cited it was said:
commingled with other grain of like quality

"But if at any time the whole mass were less
and kind, owned by the owner of such ele- than the aggregate deposits, then all the depos-
vator, and such grain is purchased from the itors, or tenants in common, would together own
owner of the elevator in due course, such all the grain, but each depositor would have
purchaser is protected. If Pence had been an undivided share less than the quantity de-
the owner of the grain in said elevator on posited by him, being such proportion of the
August 2, 1920, he could, of course, have grain remaining in store as his deposit would
created a lien, either legal or equitable, up-bear to the aggregate of the other deposits."
on the same; but he was not such owner, he

Also, in Troxel v. Thomas, 155 Ind. 519,
was simply a bailee, and, except by sale in
due course, as against the appellees, he could 58 N. E. 725, it was said:
do no act which would defeat their rights "It is the settled rule in this state that under
in and to said property.

Kiefer V. Klin- our Civil Code all persons who unite as plain-
sick, 144 Ind. 46, 42 N. E. 447; Partlow-Jen- tiffs must have an interest in the subject of the
kins Motor Car Co. v. Stratton, 71 Ind. App. action. But this rule is not to be interpreted
122, 124 N. E. 470; Somers v. Spellmeyer, so as to require that the interest of all the plain-

tiffs who do unite must be equal.

All, 300 III, 64, 132 N. E. 787. We therefore con

however, must have some common interest in
clude that the contention of the appellants, respect to the subject-matter of the action, and
as to their having an equitable lien upon each must be interested, at least to the extent
said corn, is not well taken.

that all who join as plaintiffs have some relief
[4] The appellants next insist that the in respect to the subject-matter of such suit.”
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 contention in this behalf is not well taken.
August 2, 1920, and many authorities are Appellants also urge that the decision of the
cited as sustaining their contention in this court is not sustained by sufficient evidence.

If, by the said contract, the appel- In support of this contention they call at-
lants had acquired a lien upon said corn- tention specifically to certain designated
a property right in and to said corn—there findings made by the court, and urge that
would, under the authorities cited, be merit there is no evidence to sustain them. A
in their contention; but, as we have held that reading of the evidence convinces us that
under the findings herein they had no such there is evidence in the record sufficient to
lien as contended for, and no property right sustain each and every material fact in this
in and to the said corn in question, their case as found by the court necessary to sus-
contention in this behalf is not well founded. tain the conclusions of law stated.
The general rule that the death of the prin- The material findings of fact herein are
cipal revokes all authority of the agent must each and all within the issues of the case,
apply. Hawley v. Smith, 45 Ind. 183; 21 and we need not, therefore, further consider

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any alleged error in relation to the plead. Appeal from Circuit Court, Adams County; ings herein.

R. H. Hartford, Judge. We find no error in this record; judg

Action by John C. Etzold against the ment affirmed.

Board of Commissioners of Huntington CounDAUSMAN, C. J., REMY, P. J., and Mc- ty. Judgment for defendant, and plaintif

appeals. Affirmed. MAHAN, NICHOLS, and THOMPSON, JJ.,

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 compensaETZOLD v. BOARD OF COM'RS OF HUNT. tion for services rendered as reporter of the

INGTON COUNTY. (No. 11440.) Huntington circuit court. It is a verred in (Appellate Court of Indiana, Division No. 2. the complaint that the plaintiff was the ofFeb. 19, 1925.)

ficial reporter of the court from May 28, 1904,

to February 15, 1915. The bill of particulars, 1. Appeal and error Om 1071(1)-Trial On 395 filed with and made a part of the complaint,

(1)-Finding that court reporter's claim sat. discloses the payments he received from time isfied by payment held erroneous, but not to time and the balance which he avers is prejudicial.

due and unpaid. Relating to the days for In an action by court reporter for compen: which he received no compensation, as shown sation, trial judge's finding that payment had by the bill of particulars, the averments of been made was erroneous, but not prejudicial; the complaint are thatthe court using the word "payment" to mean extinguished by acceptance of payments made. "He was required by the judge of the Hunt

ington circuit court to attend, and did attend, 2. Courts 57 (2)-Reporter's duties and said court as official court reporter 1,068 days,

compensation throughout service governed by for which days he has not received any comstatute under which appointed and amendo pensation, and that he has demanded compensaments thereof.

tion for such days so required of him to be in Court reporter, appointed under Acts 1899, attendance but the judge of the court refused to c. 169, pursuant to which his compensation make allowance or to certify such attendance was fixed by court, was governed by such stat

to the auditor or treasurer of the county for ute, as amended by Acts 1913, c. 203, in all payment, and no part thereof has ever been things pertaining to official position, including paid." duties and compensation during full period of

The special finding discloses the following service.

facts: 3. Evidence 41, 82-Courts take judicial

"Hon. James C. Branyan was judge of the notice of manner of paying officers in' attend.

Huntington circuit court from (and prior to)

May 21, 1904, to November 10, 1906, and on It is common knowledge that it has been the last-named date he was succeeded by Hon. practice to pay sheriff's compensation for at- Samuel E. Cook, who served in that capacity tendance on court, on allowances by court, and, until some time after February 15, 1915. in absence of express statutory inhibition, it “The plaintiff was appointed official reporter will be assumed that payments made to court of the court on May 28, 1904, by Hon. James reporter and accepted by him were properly C. Branyan, judge thereof, and at that time paid and allowed, under Burns' Ann. St. 1914, his compensation was fixed at $5 for each day $ 1694 et seq.

when required by the judge to be in attend.

ance upon the court. He accepted the appoint. 4. Courts m57(2)-Statutory requirement

ment and discharged the duties of reporter un. that court reporter's compensation be "cer- der that order continuously until February 15, tified, audited, and paid," held to involve ju

1915. dicial discretion to allow or to reject.

"The appropriation for the payment of the The provision of Acts 1899, c. 169, as reporter's compensation was $1,200 for each amended by Acts 1913, c. 203, that court re- year of his period of service. porter's compensation shall be "certified, au "From the date of his appointment to No. dited, and paid," requires the exercise of judi-vember 10, 1906, Judge Branyan required the cial discretion to allow or to reject.

reporter to be in attendance upon the court 5. Courts m57 (2)-Court reporter, accept him compensation at the rate of $5 per day

every day the court was in session, but allowed ing judge's allowances, held not entitled to for such days only as he reported cases or did claim additional compensation.

other work under the direction of the judge; A court reporter, employed and allowed and, if the reporter actually worked one-half compensation by a circuit judge, under Acts day or less on any calendar day, the judge al. 1899, c. 169, as amended by Acts 1913, c. 203, lowed him only half compensation at the rate held not entitled to claim compensation in ad-ı fixed. dition to the amounts allowed and accepted, "On April 25, 1907, the plaintiff filed in said because he accepted the allowances under pro- court his claim for unpaid services rendered test.

prior to November 10, 1906. That claim was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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(146 N.E.) submitted to Hon. B. H. Hurd, special judge, Charles K. Lucas, of Huntington, George for trial. The trial resulted in an allowance of A. Yopst, of Wabash, and Merryman & Sut$80 on the claim. Prior to the commencementton, of Decatur, for appellant. of this action, the plaintiff was paid for his

Claude Cline, of Huntington, John C. Morservices rendered prior to November 10, 1906, an, of Decatur, and M. J. O'Malley, of Huntthe sum of $1,826.50. "From November 10, 1906, to February 15,

ington, for appellee. 1915, the plaintiff was required by Judge Cook to be, and he was, in attendance upon the DAUSMAN, C. J. (after stating the facts court 1,053 days, for which he was allowed and as above). Since the facts have been found paid compensation in the sum of $5,265. Be- specially and conclusions of law have been tween the last two dates he was also actually stated thereon, the ruling on the demurrer present in court, and ready to discharge any need not be discussed. official duty which might arise, 819 days when his attendance upon the court was not re

[1] The evidence tends fairly to sustain quired by the judge, but his presence on those the finding of facts in all respects, unless it days was voluntary.

be as to the particular finding that the plain"The various allowances were made at short tiff's cause of action had been paid. That intervals, usually at intervals of one week. particular finding requires special consideraEach allowance was in full of all compensation tion. 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.

ing those payments there is no controversy. "Whenever an allowance was made for less

His action is to recover the compensation sum than the plaintiff believed himself entitled alleged to be due him in excess of those payto receive under the law and the facts, he pro- ments, and therefore his cause of action tested. Much friction and ill feeling was en is his claim that he is entitled to compensagendered by the numerous controversies be- tion over and above the amounts which by tween him and the judge concerning the allow- his complaint he admits were actually paid

When such controversies arose, he was him. Was that cause of action extinguished told by the judge that he was being allowed all

by payment?
that was due him and that, if he was not satis-
fied with the amount of his allowances, he

Some of the statements in the special findcould quit. When he presented to Judge Bran- ing relating to this point, are mere recitals yan claims for compensation in larger sums of evidential facts. The evidence bearing upthan the judge was willing to allow, he was

on the question of payment is harmonious. told by the judge that, if he did not stop pre-Without the slightest conflict it shows that senting claims for compensation for days on from time to time the plaintiff presented to which he did not report any case, he would be the judge for allowance verified itemized discharged. He always submitted to the action statements of his claims for compensation ; of the judge in making the allowances, reserved that frequently the statements included days no exceptions thereto, and accepted the allowances, and received the amounts thereof in for which, in the opinion of the judge, he payment of his compensation.

was not entitled to compensation; that, up“Before the commencement of this action the on inspection, the judge invariably refused plaintiff requested the judge of the Huntington to allow compensation for those days, struck circuit court to make him an allowance for the them out of the statement, and allowed for amount claimed in his complaint, to be paid the remaining days only; that, although from the county treasury, which request the often told that if he was not satisfied with judge refused. Thereupon he filed his claim the allowances he could quit, and although for allowance by the board of commissioners, Judge Branyan often threatened to discharge where it was disallowed, and this action was

him if he did not desist from the practice commenced March 3, 1916.

"That 563 of the days for which the plaintiff of including in the statements of his claims claims compensation were prior to March 3, days on which he did no actual work he 1910, and to that extent his cause of action would be discharged, nevertheless he did not accrued more than six years before the com- resign, neither was he discharged; that he mencement of his action.

continued to present claims for allowance "That the plaintiff's cause of action was fully which included days for which the judge paid before the commencement of this action." | refused to allow compensation; that he also

filed numerous claims for allowance from The conclusions of law are (1) that the which he omitted days for which he believed plaintiff is not entitled to recover, and (2) he was entitled to compensation, which omis. that the defendant is entitled to recover sions were for the reason that he knew it costs. Judgment accordingly.

would be useless to include them; that he inThe assignment of errors challenges the variably accepted the allowances, although action of the court in overruling the demur- for less amounts than he claimed, and rerer to the eighth paragraph of answer, in ceived from the county treasurer the sums overruling the motion for a new trial, and designated in the allowances; that for a in stating each conclusion of law.

foundation for this action he went back

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