In Smith v. Brown (Ind. App.) 144 N. E. 849, this court in speaking of an award based on a permanent partial impairment of a member said: and (g), of the Workmen's Compensation Act, applicable to the statute as amended by Acts (Laws 1915, c. 106, as amended by Laws 1919, 1919, p. 158. c. 57), fix definitely the compensation to be awarded for certain specified permanent partial impairments of the body. Clause (h) provides that in all other cases of permanent partial impairment, there shall be allowed compensation proportionate to the degree of such permanent partial impairment, in the discretion of the Industrial Board, not exceeding 500 weeks. Clause (d) provides for compensation in cases of total permanent disability. Clause (i) provides for compensation for permanent disfigurement, and clauses (j), (k), and (1), for temporary disability, whether total or partial. The only provisions in the act for compensation are those just enumerated. There is no provision authorizing compensation for permanent partial disability or incapacity "to work and earn wages." There is some confusion in our Workmen's Compensation Act in the use of the words "impairment" and "disability," and this confusion is carried into some of the opinions of this court. Strictly, speaking, the word "disability," as used in our Workmen's Compensation Act, means inability to work, while "impairment" refers to the total or partial loss of the function of a member or of the body as a whole. Edwards Iron Works v. Thompson (Ind. App.) 141 N. E. 530. The Court of Appeals of New York, speaking on this subject, said: "The word 'disability' in the law as we read it, therefore, means 'impairment of earning capacity' and not loss of a member.'" Marhoffer v. Marhoffer, 220 N. Y. 543, 116 N. E. 379. See, also, Moses v. National, etc., Co., 194 Iowa, 819, 184 N. W. 746; Employers' Mut. Ins. Co. v. Industrial Com., 70 Colo. 228, 199 P. 482. 66 # * An award, based on such an injury, is made for the loss of the function of the member, or, as sometimes stated, for the injury itself; the period of compensation being determined from the degree of such impairment, and not from the actual disability resulting therefrom." And after quoting from In re Denton, 65 Ind. App. 426, 117 N. E. 520, the court continuing said: "It is obvious that, while the loss of earning power may be evidence tending to show the extent of the impairment, the mere fact that an injured employee's earning power has either increased or decreased will not afford a basis for modifying an award for permanent partial impairment, as it was evidently intended that such an award should cover all disability arising therefrom, whether total or partial, and should be effective, although no actual disability should result." [2] While the Industrial Board is not bound by the strict rules of procedure applicable in actions at law, it is required to make a finding of facts sufficient to sustain the award. See sections 60 and 61 of the act (Acts 1915, p. 392; sections 8020r2, 8020s2, Burns' Supp. 1921). If the facts found are not sufficient to sustain the award, it necessarily leads to a reversal when properly presented on appeal. It is important, therefore, that in making its finding the Board should state accurately whether the person suffered a disability or an impairment. The Legislature never intended that all rules of law relative to orderly procedure should be ignored. This is indicated by the fact that it is specifically provided that at least two members of the Industrial Board shall be attorneys, and that the chairman of the Board shall be an attorney of recognized qualifications. The evident idea being that these men, by reason of their professional training, will be able to, in a way, direct and mold the proceedings before the Board so that an award when made will be based upon a proper finding of facts and conform to the law. This distinction must be kept in mind at all times in proceedings before the Industrial Board. In all cases arising under clause (h) of the act there must be a finding that the injury has resulted in a permanent partial impairment. Whether it is necessary that the per cent. of such impairment be stated in the finding is not involved in this appeal, and we express no opinion on that question. In the instant case, if the Board had found that the injury had "resulted in an 80 per cent. permanent impairment as a man,” and stopped with that statement without qualifying it by adding the words, "that is, he is SO per cent. permanently impaired to work and earn wages," the finding would have been sufficient to sustain the award. The Board by the use of the qualifying expression clearly indicates that the award is based up-clause (h). As heretofore stated, in order to on a diminution in earning power instead of upon a permanent partial impairment of a bodily function. Centlivre Beverage Co. v. When the jury causes a temporary total disability for work, the finding and award must be made under clause (j), § 31, supra. If it causes temporary partial disability, it must be made under clause (k). If it causes a permanent partial impairment of some bodily function or member not included in clauses preceding it must be made under sustain an award under clause (h), there must be a finding that there is a permanent partial impairment, and not a finding that (146 N.E.) work and earn wages as was found in this case. The award is reversed, with directions to hear further evidence and to find the facts concerning any permanent partial impairment of the body or of some member. But if the Board finds there is no permanent partial impairment of the body or of some member thereof at the time of the hearing, but that there is, or has been, a total or a temporary partial disability to work and earn wages, to find the facts in that regard. And the Board is directed to make an award according to the facts found to exist. DAUSMAN, C. J., dissents. DOMER v. CASTATOR. (No. 12178.) riod of time, and that defendant was repairing house for purpose of selling it, held to sustain finding that plaintiff was not a casual workman, but was employed in usual course of defendant's business. Appeal from Industrial Board. Proceeding under the Workmen's Compensation Act by Monroe Castator, claimant, opposed by George A. Domer, employer. From a judgment of the Industrial Board awarding compensation, the employer appeals. Affirmed. Bowers, Feightner & Bowers, of Huntington, for appellant. Whiteleather & Bloom, of Columbia City, for appellee. NICHOLS, J. Appellee filed his application with the Industrial Board against ap (Appellate Court of Indiana, Division No. 2. pellant for compensation for personal injuries March 20, 1925.) which he received while performing work 1. Master and servant 417(7)-Finding of for appellant. It appears by the evidence Industrial Board on evidence final. 3. Master and servant 405 (2) Evidence held to sustain finding workman was employee and not independent contractor. Evidence that defendant hired plaintiff to supervise repair of defendant's house, that plaintiff was not paid a lump sum, but received certain hourly rate and no other profit, that all employees were paid by defendant, and that defendant had full and final control, held to sustain finding that plaintiff was an employee of defendant and not an independent contractor. 4. Master and servant 403-Burden on employer to show workman not employed in usual course of business. Since, under Workmen's Compensation Act, § 76, cl. (b), a workman is an employee unless he is shown to be a casual workman and not employed in usual course of business, burden is on employer to show such exception. 5. Master and servant 405 (2)-Evidence . held to sustain finding that workman, hired to supervise repairing of house, was employed in usual course of business. Evidence that defendant employed plaintiff to supervise repairing of defendant's house, which work required a substantial number of workers, that plaintiff kept time of employees, that employment covered a substantial pe-I that appellant purchased a certain house in the town of South Whitley which he desired to repair with the purpose of thereafter disposing of the same and building upon an adjoining lot which was owned by him. Appellee was a carpenter, and for a number of years prior thereto had been engaged in that business, sometimes as a contractor and sometimes as an employee. At the time here involved appellant called appellee over the telephone and asked him to do some carpenter work on the house above mentioned. Subsequently they met at the house that was to be repaired, and, after showing appellee through the house and pointing out the changes that he desired made therein, it was agreed between the parties that appellee should go forward with the work, joining with appellant in employing the necessary workmen therefor, keep the time of the workmen and report the same to appellant, who was to pay therefor, and appellant agreed to pay appellee for his services 50 cents an hour. As a matter of accommodation to some of the laborers appellee paid them their the amount so paid. Appellee received no wages, but was reimbursed by appellant for profit by reason of the employment of other sole compensation being 50 cents an hour for carpenters, or no part of their wages; his his labor and for overseeing the work. Appellant furnished all of the material used in the repair. From time to time as the work progressed appellant directed appellee as to what work he desired done. On these facts appellant presents two questions: (1) Was the appellee an employee of appellant, or was he an independent contractor? (2) Was the so-called employment of appellee both casual and not in the usual course of business or occupation of appellant? [1] In the case of Indiana Iron Co. v. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-56 Cray, 19 Ind. App. 565-577, 48 N. E. 803, 807, it was held that "an independent contractor is not, in any proper legal sense, a servant of his employer, but is one exercising an independent employment under a contract to do certain work by his own methods, without subjection to the control of his employer except as to the product or result of the work. Various peculiarities of the employment have been regarded as important or controlling in particular cases. It has been said that the test is, Who has the general control of the work? Who has the right to direct what shall be done and how to do it?" The same authority on the following page states that "it has been questioned whether there is any legal test by which in all cases it can be determined whether an employee is a servant." Generally speaking, the question as to whether one is an employee or an independent contractor is a question of fact, and a finding by the Board, one way or the other, when sustained by competent evidence, is final. McDowell v. Duer, 78 Ind. App. 440-445, 133 N. E. 839; Indiana Workmen's Compensation Manual, 209. [2, 3] The Manual cites numerous authorities to sustain this rule, and on the same page states the further rule to be that, because of the rule of liberal construction of the Compensation Act, when, upon the facts, a doubt exists as to whether a workman is an employee or an independent contractor the doubt is to be resolved in favor of the former status. Authorities are also cited to sustain the last rule. In determining whether appellee was an independent contractor or an employee, the Industrial Board had a right to consider, and no doubt considered, that appellee was not in full control of the work to be done and responsible only for results, as was evidenced by the fact that full and final directions as to the character and extent of the repairs were not given to him by appellant in the beginning, and that from time to time thereafter changes were made and additional instructions as to the work given by appellant; that appellee was not paid a lump sum for his services, but for his labor and services as foreman he was to receive 50 cents an hour; that he had no profit in the work other than his wages, and was not liable to any loss; that, while he employed a part of his helpers, appellant employed part of them, and all such employees were paid by appellant. The Industrial Board having considered these facts, along with the fact that the work to be done was a repair job, and that as such it was difficult to fix in advance a definite compensation therefor, determined that appellee was not an independent contractor, and that he was an employee. Having so determined this question as a fact, and there being some evidence to sustain its finding, this court will not disturb Now, as to the second question, it will be observed that under the provisions of clause (b), § 76, of the Workmen's Compensation Act (Laws 1919, c. 57) appellee was clearly an employee, unless his employment was both casual and not in the usual course of appellant's business or occupation. Whether a workman is an employee is generally a question of fact for the Industrial Board. Nissen v. Miller, 72 Ind. App. 261, 125 N. E. 652; McDowell v. Duer, 78 Ind. App. 440, 133 N. E. 839; Coppes Bros. & Zook v. Pontius, 76 Ind. App. 298, 131 N. E. 845; Hadley v. Rogers, 77 Ind. App. 203, 133 N. E. 401. [4] As by statute he is an employee, unless he is shown to be a casual workman and not employed in the usual course of business of the employer, the burden is on appellant to show such exception. [5] The evidence shows that the work was extensive enough that a substantial number of other helpers were employed to assist in doing it; that appellee was employed as foreman to superintend the work under the direction of appellant; that he kept the time of the employees and reported the same to appellant; that sometimes he paid the men himself and was then reimbursed by appellant; that from time to time appellant gave further direction as to the repairs to be made, it thus appearing that the employment covered a substantial, though indefinite, period of time; that he was given some discretion as to the repairs to be done with instruction that appellant did not desire to make extensive repairs. These facts certainly constitute some evidence from which the Industrial Board might find that appellee was an employee, and more than a casual laborer. Further, it does not appear from the evidence that appellant was repairing the house for a home for himself, and that his sole occupation was that of a drug clerk, but it does appear from the evidence that he was repairing this house for the purpose of selling it, intending thereafter to build another house on an adjoining lot, and that in the repair of this house he brought workmen from another house at Collamer then owned by his father, but afterward by appellant. From this the Industrial Board might have inferred that appellant was, in addition to his employment as a drug clerk, engaged in the business of building, repairing, and selling houses for profit. It would have been competent for appellant to have shown the contrary, if such were the fact. We find no authority with facts just like the facts here involved, but the following are cases with acts so similar that they involve the principles controlling in this case: Caca v. Woodruff, 70 Ind. App. 93, 123 N. E. 120; Miller & Lux v. Industrial Commission, 32 Cal. App. 250, 162 P. 657; Holmen Creamery Ass'n v. Industrial Commission, 167 Wis. 470, (146 N.E.) 214, 119 N. E. 972; Kaplan v. Gaskill, 108 6. Appeal and error 1046 (3)-Refusal to Neb. 455, 187 N. W. 943; Scott v. Payne MAXWELL IMPLEMENT CO. v. FITZGER- (Appellate Court of Indiana. March 17, 1925.) The overruling of demurrer to either paragraph of an answer was not reversible error, where it affirmatively appears from record that verdict rests entirely on counterclaim. 2. Sales285 (4)-Seller may waive requirement in contract which is for his benefit. Since a provision of a contract for sale of tractor, that, if "machine fails to work properly purchaser shall immediately give written notice," is for benefit of the seller, he may waive such requirement. award plaintiff's right to open and close, if error, held harmless, in view of instruction. Where defendant, by his answer and counterclaim assumed burden of all issues except as to attorney's fees, refusal to grant plaintiff right to open and close, under Burns' Ann. St. 1914, §§ 558, 562, if error, held harmless, in view of plaintiff's uncontroverted averment as to attorney's fees, which, under section 392, is to be taken as true, and court's instruction requiring verdict, if for plaintiff, to include attorney's fees so pleaded. Appeals from Circuit Court, Lake County; 3. Sales285(4)-Seller responding to in- H. Bridwell and E. Mills Norton, Judges. sufficient notice by buyer of defect in machine sold, and attempting to remedy such defect, waives requirement as to proper notice. Where a buyer gives notice of defect in machine purchased, which notice is not in accordance with stipulation in contract, and seller responds to notice and attempts to remedy defect, he thereby waives provision of contract as to time and manner in which notice should be given. 4. Sales 435 (1)-Buyer's counterclaim held to sufficiently allege waiver by seller of requirement in contract as to immediate written notice of defects. Allegation in buyer's counterclaim that he notified seller, and that thereupon an officer of seller responded within two days and endeavored to operate tractor purchased by defendant, held to sufficiently aver a waiver by seller of provision in contract requiring immediate written notice. 5. Sales 435(1) Allegation that buyer "tendered" machine back held to sufficiently allege compliance with contract requiring buyer to "return" it. Allegation in buyer's counterclaim that he "tendered" back machine purchased to seller, and that seller refused to accept it, held to sufficiently show compliance with provision of contract requiring buyer to immediately "return" it, as "return" means to bring, carry, or send back, and "tender," though usually used in connection with an offer to pay money, is properly used in connection with offer of property other than money. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Return; Tender.] Action by the Maxwell Implement Company against John Fitzgerald, in which defendant filed a counterclaim. Judgment for defendant on his counterclaim, and plaintiff appeals. Affirmed. Superseding former opinion in 142 N. E. 392. This action was instituted by the Maxwell Implement Company against John Fitzgerald to recover on a promissory note, executed by the latter to the former, in the principal sum of $600, with interest from maturity and attorney's fees. The complaint is in the usual form and contains the averment that a reasonable fee for plaintiff's attorney is $250. The defendant filed an answer in two paragraphs, and also filed a pleading denominated "cross-complaint," but which in truth is a counterclaim. By the first paragraph of answer the defendant admitted the execution of the note and then averred that at the time of the execution of the note he entered into a written agreement with the plaintiff whereby he purchased one Harry Farmer tractor and one three-bottom engine plow, at the price of $1,300; that he paid therefor $500 in cash and $200 in the form of a Liberty bond, and executed the note for the balance; and that the written agreement contains the following: herein ordered to be well made, of good ma"The seller hereby warrants the machine terial, durable with proper care, and when properly operated to perform successfully the work for which it is designed. If within one year from date of purchase, a part proves defective, the new part to replace defective one For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes will be furnished at factory on receipt of part showing defect. * * "If, upon trial with proper care, the machine fails to work properly, the purchaser shall immediately give written notice to the seller stating wherein the machine failed, shall allow reasonable time for a competent man to be sent to put it in good order, and render necessary and friendly assistance to operate it. If the machine cannot be made to work well, the purchaser shall immediately return it to the seller and the price paid shall be refunded, which shall constitute a settlement in full of the transaction. It is expressly agreed that the title to the property herein ordered shall not pass to the purchaser until full payment therefor shall have been made, whether notes have been given for the purchase price thereof or not." Then follow averments showing in detail that there was a breach of the warranty; that notice thereof was given to the plaintiff; that thereupon the plaintiff, by one of its officers, endeavored to operate the tractor and to put it in condition to successfully perform the work for which it was designed, but in that effort wholly failed; that the machine was tendered back to the plaintiff; that the plaintiff refused to accept it; and that the plaintiff has failed to refund the purchase price. The second paragraph of answer admits the execution of the note and contains the same averments with respect to the purchase of the machine, the consideration therefor, and the execution of the written agreement as those contained in the first; but it is distinguished from the first by the following averments: "That difference arose between the parties after the delivery and attempt to operate the tractor as to whether it complied with the warranty; that thereupon the plaintiff and the defendant agreed to compromise and settle their differences, by the terms of which agreement and compromise the plaintiff agreed to take back the tractor and to furnish in its place and stead a farm tractor commonly known and designated as a Moline tractor; that the plaintiff, in consideration of the right to furnish the Moline tractor and to settle the differences between the parties, was to keep the cash, the Liberty bond, and the note; the defendant agreed to pay the note and also agreed to pay an additional sum of $200; that the plaintiff has failed and refused to comply with the terms of the agreement of settlement, and has failed to furnish a Moline tractor, although the defendant at all times has been and now is ready and willing to pay the additional sum of $200, and to pay the note on the furnishing of a Moline tractor." The counterclaim is substantially the same as the first paragraph of answer, with the additional averment that the defendant has been damaged in the sum of $1,000. Demurrers, for want of facts, addressed respectively to each paragraph of answer, and to the counterclaim were overruled. In the plaintiff specified fifteen reasons why the counterclaim is deficient. Briefly stated, those reasons rest on the alleged failure to show by proper averments the following ele ments: "That the note was given in payment for the tractor; that a written notice was given of the failure of the tractor to work properly; that the tractor was returned; the kind of work for which the tractor was designed; that the tractor was designed to do plowing; that the tractor was properly operated; wherein the plaintiff failed to operate the tractor after notice; wherein the plaintiff failed to put the tractor in good order; that the defendant's ground was in suitable condition for plowing; that the tractor was designed to plow the kind of ground on which it was used; that the tractor was operated by the defendant; that it was designed to pull drags and harrows; that the plaintiff agreed to return the purchase price; that the defendant returned the tractor; or that the failure of the tractor properly to work was not due to the unskillful operations of it by the defendant." The defendant moved the court: “that he be given the opening and closing, and that he be permitted to assume the burden of proof herein." The motion was sustained. Thereupon the plaintiff moved the court "that it be permitted to assume the burden of proof herein and to open and close the case." This motion was overruled. The jurors were, peremptorily instructed to fix the amount of the attorney's fee at $250, if they found for the plaintiff. The following verdict was returned: "We, the jury, find for the defendant on the cross-complaint and assess his damages at $843.50, and that the plaintiff take nothing by its complaint herein. Judgment was rendered on the verdict, and the plaintiff's motion for a new trial was overruled. The errors assigned challenge the ruling on each demurrer and on the motion for a new trial. No attempt has been made to bring up the evidence or any part thereof. Pattee & Johnson, of Crown Point, and Grant Crumpacker, of Valparaiso, for appellant. Kelly & Galvin and Daly & Freund, all of Valparaiso, for appellee. DAUSMAN, C. J. (after stating the facts as above). [1] It is urged with much earnestness that the court erred in overruling the demurrer to each paragraph of the answer. However, it affirmatively appears from the record that the verdict rests entirely upon the counterclaim. Therefore the action of the court in overruling the demurrer to ei ther paragraph of the answer would not constitute reversible error, even if erroneous, and we need not consider the sufficiency of |