The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-08
Supreme Court-NOv. Z.
Hon. W. Z. Niblack, Chief Justice.
DITCH ASSFSSAfE NT-CnAIPIAINT

ments for the construction of ditch. The case
presents the same question that was decided
adversely to the appellee in the case of Mary K.
Scott ct al VS.. the appellee at the present term
For the reason there given the complaint was
Insufficient. Judgment reversed.
OBSERVATION-DISCLOSURES OF DEsCRIPTIoN-PRooF
11,O85. John Dennis VS.. The State. Han
cock c. c.
Howk, 1.-The affidavit and information
charged the commission of nuisance by ap-
pellant in keeping sanghter-hOuse near the
residences of Loehr, Warrum and Scott. the
court charged that il the defendant maintained
siaughter-house near The residences of WarruIn
aud Scott in an unlawful manner the State would
be entitled to conviction. The phrase near the
residences of Loehr, Warrum and Scott" must
be regarded as matter of description, the venue
having been previously laid as in the county OF
Hancock, STATE Of Indiana. Being matter Of
description. although unnecessarily alleged;
variance is fatal. (26 Ind, 155; 42 id,
1911 1t was therefore error for the court TO in
struct that the offense was made out without
proof that the nuisance was committed near the
! residenee of Loehr. Judgment reversed.
MISUNDERSTANDING sTocK-vENUE.
10,593 The c., c. c. & l. Railway Company
VS.. Hezekiah Bates. Madison G. G.
Hammond, faction to recover damages for
stock killed by appellant where its road was not
fenced. The evidence does not directly show
that the injury occurred In Madison county, but
from the circumstances proved, the jury might
we'll infer that the injury happened in that cOun-
ty This sufficient. 1872 Ind, 357 % i'd, 429;
10 i'd, 43) The Instructions when fairly con
strued together are not open to objection. Judg-
ment affirmed.
INSURANCE Observation-Disclosures.
1868. Etna Insurance Company VS.. God
| frey Weisinger Posey G. c.
Bcknell, c. CA condition in an insurance pol
ley that the company may cancel the policy at
its option on rendering a ratable proportion OF
the premium for the unexpired term is a valid
one but the condition must be strictly complied
with, and, II the absence of any further agree
ment, the payment OF any less sum than the
whole ratabe proportion of the premi-
l51 n. Y, 465; May on ms, Sec 574; Wood on
lns, sec. 1861 But where the agent of the com
pany and the insured agree as to the amount
due for the unexpired term, which sum the COM
pany pays and the assured accepts in full, the
policy will be terminated even though the sum
so paid Is less than the amount really due.
Judgment reversed.
EQUITABLE NEUTRALITY-SUSPICIOUS.
1O5O4 Lucinda Barnes vs.. Union School
Township. Montgomery G. c.
Franklin, C-Aetion by appellant to recover
possession of real estate. The facts found show
prior purchase of the land by appellee and pos
session for eighteen years under the purchase;
full payment OF the purchase money and the
erection of valuable and permanent improve
ments. Plaintiff purchaser for value,
without actual notice. The facts show
n good equitable title in the appellee
and its possession was sufficient notice to appel
premises "A Blkf., "a, 1888; 81 Ind. 527: So id,
102; SO Id, 23; 6l Id, 1922 Judgment at
tirmed
COMMON CARRIER-FAILURE TO DELIVER.
1O,426. George MeCullook VS.. Morris McDou-
aid ct al Floyd C. c.
Best, C.-The appellees delivered thirty bar
rels OF Hour TO appellant, who was common
carrier between the cities of New Albany and
Louisville. The -four was to be delivered to f.
Cline, in Louisville and with IL was given bin,
in sealed envelope, addressed to "E Cline,
Walnut and Jackson" The teamster who hauled
the flour delivered it to q baker named J. King,
on the corner of Walnut and Jackson streets,
not finding Cline there, whose place was some
four squares distant. On these facts appellant
liable for the loss of the flour. He could not
have mistaken the one name for the other by
reason of any similarity in the words, and the
fact that the place of business was mlsstated did
not authorize him TO deliver the goods TO any
other person who might be engaged in business
at that point. He was bound to deliver the
flOnr to the consignee or retain it. Nor was he
justified III assuming that the appellees had
misdirected the flour. In delivering it upon
such assumption he acted al his peril, and must
bear the loss Judgment affirmed.
PRAcTICE-MorIoNs To SEPARATE AND STRIKE
OUT.
1921 Mary E. Heron vs. Richard D. Her
ron White C. c.
Franklin. CA deed absolute on IT'S face may
he declared on as a mortgage. (55 Ind. 30
Motions TO strike out portions of pltadings, and
to senarate causes OF action in complaint, can
only be brought into the record bv a bill of ex-
ceptions. (4O Ind. 424 THE fact that the deed
was a mortgage: that she was n married woman
and the mOrtgaCed property belonged TO her;
that it was to secure her husbands deht.
and no consideration passed to her;
that she was ignorant OF the law and had been
misinformed as to her legal rights constituted
no defense to foreclosure of the deed as a mort
gage. Judgment affirmed.
RAILRoADs-RIGHT oP wAY-YoN-PAYAfENT OF
CONSIDERATION.
1853. NJ E. Ingalls, vs. George w. Byers
Decatur c. C.
Elliott, J.-Byers and wife decided the right
of way of certain strip of land ninety nine
feet wide to the Cincinnati & Terre Haute rail
way, upOn condition that the right to use the
same should depend upon the road being built
md fnnnn ~ nf I'm az HoNt
Appellant afterward purchased all the RICH: OF
the railroad In said land. Afterward the Co
lumbus. Hope a. Greensburg Railroad COMPANY
appropriated hfty feet OF the same strip OF
ground, and paid the damages assessed into
court. The question is whether the money so
paid belongs to appellant or 10 Bvers'S estate.
The consideration of the grant was the lncatiOn
and operation of the C. IL r. II. railroad. IN
such cases no rights attach to the land unless
the compensation is paid. Zones Il. r. Securi-
ties, sec. $3.50 Appellant, "a successor of the
original grantee is not claiming right 10 build
Il railroad and thus yield the compensation for
which the grantor barSained. but expressly
nbhndOns the right of way and yields 10 tho
claims of a corporation that has condemned the
laud The consideration for the original grant
having failed, appellant acquired no rights in
the land, and is not entitled to the damages paid
by the e.. ii. IL c. company. Judgment affirmed.
AGENCY ACKNOWLEDGEMENTS VALUE.
1896 Sarah Geisendorf VS.. Nathaniel F.
En giles ct al. Noble c. c.
Bicknell, c. C.-Action of repleyiu by appel
liant fora quantity of iae. On crnsS-ex annn;ttiun
tine utIenuanIS 0SkPu hlfN utGY WNttucr IN "A GER
tain conversation with Hail, lie disclosed to the
latter that Mrs. Gciseuunrt mad an interest IN
the ice. aud the witness was permitted to an
ewrr. This error IT WAS NOT shown that
Mcturdy at the time the plaintiffs agent, /
nor that the conversation had any reference TO
her or her affairs. Ii also improper to
prove the value of the zee on the assumption
that the purchaser cnnid keep it in the ice-huuse
where II hen was until he could find a IuarKet
for it, The proper value to Inc proved was it's
value subject the duty Of the purchaser to re-
move it within reasonable time. Judgment
reversed.
9,205. James Buchanan VS.. The Berkshire
Life Insurance Company. Marion :, c. Iolars. |
J. Affirmed in part, and reversed in part
Superior Court.
Room No l--lInn, Napoleon q. Taylor. iutga.
Mary NJ. Shirk. ADMINISTRATIVE OF the estetr OF
q. Cn...