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(146 N.E.) termine what would be a proper fulfillment of , ment or skill of the seller, that is an implied the contract without further evidence."

warranty that the goods are reasonably fit [2] It thus appears that there was an am

for the purpose to which they are to be apbiguity about the application of the words plied. Hight v. Bacon, 126 Mass. 10, 12, 30 written in the contract to its subject matter. Am. Rep. 639; Leavitt v. Fiberloid Co., 196 The governing rule of law on such facts is Mass. 440, 451, 452, 82 N. E. 682, 15 L. R. A. that, for the purpose of removing or explain- (N. S.) 855; Interstate Grocer Co. v. Geo. W. ing an uncertainty or ambiguity of that na- 1 Bentley Co., 214 Mass. 227, 231, 232, 101 N. ture, parol testimony is admissible and has a

E. 147; Friend v. Childs Dining Hall Co., legitimate function. If previous negotiations 231 Mass. 65, 71, 120 N. E. 407, 5 A. L. R. make manifest the sense in which the terms 1100; Manchester Liners, Ltd., v. Rea, Ltd., of the contract are used, resort may be had [1922] 2 A. C. 74. The plaintiff was a general to such negotiations as affording the best dealer in sugar, the defendant a wholesale definition of the actual intention of the par- grocer. The natural purpose of the purchase ties. The subject matter of the contract may by the defendant was for use in the wholebe identified by proof of whatever was before sale grocery business. Fitness for that purthe parties while they were bargaining. If pose cannot be held on this record to have the sale were by sample, or if a sample were

been an impertinent inquiry. shown, it or a description of it would be

[6] No error is disclosed in the exclusion competent upon the issue whether the article of the office copy of a letter from the plaintendered corresponded with that described in

tiff to his broker. There was nothing to the contract. Stoops v. Smith, 100 Mass. 63, show that the letter was ever mailed in or66, 1 Am. Rep. 85, 97 Am. Dec. 76; Miller v.

dinary course. There was nothing to raise a Stevens, 100 Mass. 518, 1 Am. Rep. 139, 97 presumption that it was received by the broAm. Dec. 123; Pike v. Fay, 101 Mass. 134; ker. Prudential Trust Co. v. Hayes, 247 Mass. Keller v. Webb, 125 Mass. 88, 89, 28 Am. Rep. 311, 142 N. E. 73. Moreover, the broker was 209; Strong v. Carver Cotton Gin Co., 197 called as a witness and he was not interroMass. 53, 59, 83 N. E. 328, 14 L. R. A. (N. S.) gated concerning the letter. 274, 14 Ann. Cas. 1182; West End Manuf.

The finding that the goods tendered did Co. v. Warren Co., 198 Mass. 320, 324, 84 N. not conform to the requirements of the conE. 488; Avondale Mills v. Benchley Bros., tract is not tainted with any reversible error. Inc., 244 Mass. 153, 157, 138 N. E. 586.

It is decisive of the case. It becomes unnec[3] The auditor appears to have followed essary to examine the exceptions touching this rule both in reaching his main conclu- the other ground on which the auditor based sion and in the evidence which he received.

his findings. The evidence as to sample used by the broker

Appeal dismissed.
of the plaintiff and as to his representations

Exceptions overruled.
concerning it at the time of making the con-
tract was rightly admitted and dealt with

There is nothing to indicate that the audi.
tor in reaching his conclusions did not give MEMORANDUM DECISIONS
appropriate force and significance to every
word used in the contract.

[4] There was no error in admission of testimony offered by the defendant to the ef

1 fect that the sugar tendered was unfit for IRWIN'S BANK et al. v. FLETCHER SAV. the wholesale grocery business. The finding INGS & TRUST CO., Receiver, etc., was made that the name used in the contract

et al. (No. 24017.) to describe the subject of the contract was ambiguous. If the sale be governed by the (Supreme Court of Indiana. March 10, 1925.) law of Massachusetts, then G. L. C. 106, § 17

Appeal from Superior Court, Marion Coun(2), applies, to the effect that there was an

ty; Solon R. Carter, Judge.
implied warranty that the sagar should be of
merchantable quality. If the sale be gov.

For former opinion, see 145 N. E. 869.
erned by the law of New York, then (there
not appearing to have been any evidence as MYERS, J. The Riverside Metal Com-
to the statutes of New York) the common law pany and the other munition creditors collec-
of that state controls, which is presumed to tively have each petitioned for a rehearing.
be the same as that of this commonwealth. / “Fletcher" moves for a more explicit decla-

[5] It is implied in every contract of sale ration as to whether their claims in the such as that here disclosed that the goods amount allowed by the trial court, or the sold shall be merchantable under the name by figures, $75,000 and $20,000, in our opinion, which they are described. If a manufacturer should be taken by the receiver as the basis or dealer sells goods, which he manufactures for payment. Each of the above petitioners or deals in, for a particular purpose, so that seek to resubmit, and they have reargued, the buyer necessarily trusts to the judg- many of the questions presented and decided

in our original opinion. Upon a reconsid All petitions for a rehearing are denied. eration of those questions, we deem it suffi- Motion sustained to the extent indicated cient to say that we are still satisfied with above. our former conclusions.

Counsel for the “munition creditors" also assert that some contention has arisen between claimants over the distribution of the Val Chester BERKEY et al. v. William J. residue of fund No. 3. This notice of discord, SIGERFOOS, Trustes, etc. (No. 12034.) further evidenced by the "Fletcher" motion, seems to be caused largely by the figures in (Appellate Court of Indiana. March 17, 1925.) the last paragraph of our opinion, in which

Appeal from Superior Court, Elkhart Counwe held that the creditors should be reclassi-ty; Wm. B. Hile, Judge. fied. The figures so used by us were for con

Ha venience and to identify certain claims in

an & Jay, of Elkhart, for appellants. preference to the figures showing actual al

Church & Chester, of Elkhart, for appel

lees. lowances made by the trial court. They were not used with any intention of changing or modifying the findings or judgment of that

PER CURIAM. Affirmed, on authority of court as to the amount due the creditors Stutesman v. Sigerfoos, Trustee (Ind. App.) severally. We fail to see any substantial | 145 N. E. 507. reason for the alleged dispute, when it must be remembered that the judgment of the

2 trial court fixing these allowances was in no manner criticized or challenged by any of the Sarah A. LILLY, Guardian of William Lilly,

of Unsound Mind, v. PINNELL-DULIN parties, either individually or collectively, to

LUMBER CO. (No. 12182) this appeal. This court was concerned only in the classification of creditors with respect (Appellate Court of Indiana, Division No. 1. to priority in the payment of their claims,

March 20, 1925.) and not in the various amounts thus severally

Appeal from Industrial Board. allowed. The findings and judgment of the court below pertaining to the allowance of Meade Vestal, of Noblesville, and Turner, claims should be followed by the receiver, Adams, Merrell & Locke, of Indianapolis, for except as hereafter noted, and not the figures appellant. used in our opinion for the purpose of iden

J. F. & N. O. Neal, of Noblesville, for aptifying claims.

pellee. The “miunition creditors" seem inclined to place a construction upon the last paragraph REMY, J. William Lilly was engaged as of our original opinion, which would give an employé of appellant in unloading bags of them priority of payment over general credi. cement from a freight car. While in the line tors. This insistence is sustainable only up- of his employment, he fell upon the floor of on the theory that they had an equitable lien. the car, where he was found by fellow emWe held otherwise. They are general credi- | ployés, to whom he stated at the time that tors, and should be classified as such. So that he had had “a dizzy spell” and “had fallen our ruling to reclassify "the creditors at bar" over.” He was taken home, and that night amounted to an order for a reclassification of had a stroke of paralysis. Within a year, them in accordance with the opinion, which he was declared a person of unsound mind, gave certain of these creditors priority in and appellant was appointed as his guardian. the payment of their claims based upon the There was some evidence submitted as to his several allowances so adjudicated by the trial physical condition, both before and after the court out of funds Nos. 2 and 3. After ap-time he was found lying upon the floor of the plying such credits, any balance remaining in freight car. Clai that the condition of favor of either of these creditors must be her ward was the result of an injury which regarded as a general claim, and to be so arose out of and in the course of the ward's considered in the pro rata distribution of the employment by appellee, appellant filed an assets of the insolvent estate among the application for compensation. From an or. general creditors. Hence, our classification 3 der of the Industrial Board denying compencorresponds to classification 5 of the court sation, this appeal is prosecuted. The sole below, with the above-designated additions. question for determination is whether the

For the benefit of the receiver and all oth-physical infirmities or injuries for which comers concerned, it may be well for us to call pensation is asked arose out of William Lilattention to the comments in our original ly's employment by appellee. That was a opinion relative to the tri court's classifica- question of fact for the Industrial Board. tion 3-indorsers of government notes—from There is evidence to sustain the finding. See which it appears that all creditors thus clas- Gardiner v. Cochran Chair Co. (1922) 78 Ind. sified have no enforceable claim against ei- App. 94, 134 N. E. 873. ther the company or the receiver.


(146 N.E.)

his employment. His parents and minor SCHOOL CITY OF ANDERSON v. Katherine brothers and sisters, who survived him, filed

M. LAMMERT et al. (No. 12121.) with the Industrial Board an application for (Appellate Court of Indiana, Division No. 1. From an order of the board denying com

compensation as dependents of the decedent. March 19, 1925.)

pensation, this appeal is prosecuted. The Appeal from Industrial Board.

only question for determination is whether Diven, Diven & Campbell, of Anderson, for or not under the evidence the decedent's parappellant.

ents and brothers and sisters were his deChas. E. Henderson and Clarence C. Wy. pendents, within the meaning of section 37 song, both of Indianapolis, for appellees.

of the Workmen's Compensation Act (Acts

1919, p. 164; section 8020u1 Burns' Supp. ENLOE, J. From an award of compensa- 1921). The question was one of fact for the tion to appellees on account of the accidental Industrial Board. There is evidence to susdeath of the husband and father of appel- tain the finding. See Hoosier Veneer Co. v. lees, this appeal is prosecuted, the conten- Stewart (1920) 76 Ind. App. 1, 129 N. E. 246 ; tion of appellant being that said deceased Rasin v. Miami Coal Co. (1922 Ind. App.) 137 was not an employé of appellant.

N. E. 529. Putting the matter in its most favorable

Affirmed. aspect as regards the contention of appellant, the question was one of fact for the

3 Industrial Board, and upon this record we

William L. SLINKARD V. SENTINAL cannot disturb its finding.

PRINTING CO. (No. 11805.) Affirmed.

(Appellate Court of Indiana, Division No. 1.

Jan. 30, 1925.) 2

Appeal from Circuit Court, Sullivan CounHenry J. PEAVLER et al. V. FRANCISCO ty; W. F. Wood, Judge.

MINING CO. NO. 1. (No. 12166.) See, also, 142 N. E. 656. (Appellate Court of Indiana, Division No. 1.

Slinkard & Slinkard, of Bloomfield, and March 10, 1925.)

Charles D. Hunt, of Sullivan, for appellant.

Pickens, Cox, Conder & Bain, of IndianAppeal from Industrial Board.

apolis, for appellee. John A. Riddle, of Vincennes, for appellants.

REMY, J. Affirmed, on authority of ChasHays & Hays, of Sullivan, for appellee. tain v. Board, etc. (1918) 68 Ind. App. 162,

119 N. E. 1007; Roark v. Voshell (1914) 58 REMY, J. Donald Peavler, 23 years of age Ind. App. 203, 108 N. E. 18; State v. Lukins and unmarried, while in the employment of (1908) 43 Ind. App. 341, 87 N. E. 246; W. T. appellee, lost his life as a result of an acci- Rawleigh Co. v. Hughes (1919) 70 Ind. App. dent which arose out of and in the course of 127, 121 N. E. 546.





It Supplements the Decennial Digests, the Key-Number Sories and Prior Re

porter Volume Index-Digests



ACTION. II. ANOTHER ACTION PENPING. See Abatement and Revival; Dismissal and m5 (Ohio) Suit in mandamus by taxpayer to

Nonsuit. compel mayor to pay fees into city treasury

II. NATURE AND FORM. held maintainable, notwithstanding pending action at law by city solicitor against mayor tom16 (III.) Title given proceeding cannot collect them.--State v. Nolte, 146 N. E. 51. change its nature or character.-State v. Froe8(!) (Ind. App.) Test to determine ques- lich, 146 N. E. 733. tion whether action should be abated on ground 22 (Ohio) Whether proceeding is in chanthat another is pending, stated.--Heaton v. cery or at law is determined from pleadings Wilson's Estate, 146 N. E. 588. .

and issue.--Hummer v. Parsons, 146 N. E. 62.

Omw25 (4) (N.Y.) "Equitable defenses" may be V. DEATH OF PARTY AND REVIVAL OF

set up in answer in action on legal liability.ACTION.

Susquehanna S. S. Co. v. A. O. Andersen & (A) Abatement or Survival of Action. Co., 146 N. E. 381. Ow58 (2) (1.1.) On death of owner, Torrens

III. JOINDER, SPLITTING, CONSOLIDAproceeding abates as to him.-City of Chicago

TION, AND SEVERANCE. v. Collin, 146 N. E. 741.

Cw50(3) (Ind.App.) Owners, depositing corn (B) Continuance or Revival of Action. in elevator commingled with common mass, held Ow73 (Mass.) After abatement of action by to have unity of interest entitling them to sue death of defendant, plaintiff may revive it and Grain Co. v. Goodwin, 146 N. E. 837.

jointly for its alleged conversion.-Sawers summon executor to defend.--Finance Corporation of New England v. Parker, 146 N. E. 696. cm 50(5) (Ind.App.) Court's refusal to

Em74(1) (Mass.) Sustaining 'plea in abate:quire election between causes of action against ment to citation to executor to appear and de- road contractors' sureties in successive bonds, fend held proper.-Finance Corporation of New held pot error.-Massachusetts Bonding & InEngland v. Parker, 146 N. E. 696.

surance Co. v. State, 146 N. E. 116.

C60 (Ind.) Matter of docketing two or more ACCORD AND SATISFACTION.

different causes of action improperly joined

within discretion of trial court.-Rich v. Fry, See Compromise and Settlement.

146 N. E. 393. 18 (N.Y.) Part payment under agreement Court's discretion not abused in refusing to for settlement of personal injury claim not separate causes of action for reformation of accord and satisfaction.-Larscy v. T. Hogan contract and suit on note.-Id. & Sons, 146 N. E. 430. Omo 19 (N.Y.) Agreement for settlement of

ADJOINING LANDOWNERS. claim not amounting to accord and satisfaction See Boundaries. invalid.-Larscy y. T. Hogan & Sons, 146 N. E, 430.

ADMINISTRATION. Cw22(2) (N.Y.) Action for negligence maintainable without tendering back part payment See Executors and Administrators. under ineffective agreement.-Larscy T. Hogan & Sons, 146 N. E. 430.

27 (Mass.) Evidence held to warrant refus- See Shipping.
al of directed verdict.--Lowenstein v. Silton,
146 N. E. 779.


See Principal and Agent.
6(2) (N.Y.) Debtor did not assent to
items by failure to object, where parties were

APPEAL AND ERROR. already in litigation.-Curry v. Mackenzie, 146 See Certiorari; Courts, Cw219–240; CrimN. E. 375.

inal Law, C-1023--1186; Exceptions, Bill of.

For review of rulings in particular actions or ACKNOWLEDGMENT.

proceedings, see also the various specific topII. TAKING AND CERTIFICATE.

ics. On 19 (Ohio) Acknowledgment of lease by no

1. NATURE AND FORM OF REMEDY. tary public or justice of the peace, but outside county for which they were commissioned, for m! (Ohio) Right of appeal is statutory and lands outside county, is nullity.-Empire Gas may be given or denied.-Industrial Commission & Fuel Co. v. Coolahan, 146 N. E. 389. of Ohio v. Monroe, 146 N. E. 213. 146 N.E.-58



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