The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-06-04
THE COURT RECORD.
Supreme Court-June 3.
Hon Byron X Elliot, Chief Justice.

COUNTY CeSiNIssIoNERs-RIGHT TO CONTRACT
FOR INDEXsS.
1929. John G. Hoffman Commissioners Lake
Elliott C. J.-Appelant filed a claim against the
county for services in making general index of the
Judgment dockets of the Circuit and Common Pleas
Courts, under "a contract with the county board. The
statute invests county commissioners with very
prehensve powers over the business property and aft
fairs of the county. These records belong to the
county, and the commissioners mustlave authority to
keep them in such condition will make then. useful
to the citizens 1t should be held that securing
curate index Is a Just exercise OF the powers with
which they invested. a Ind, 315: II i'd, 437
so i'd, 3d. 40 Mich, 40 2S Mo-, 1861 Judgment
reversed
PRoMIssORY NoTE-FAILURE OF CONSIDERATION.
11205. John S. Lynn tai. VS.. Joshua H. Grim
LawrenceC C.
Howk, IA Judgment will not be reversed for
ror in sustaining demurrer to paragraph of answer
where all competent evidence under such paragraph
is admissible under another paragraph remaining in
the record. (3S Ind. l75; AZ i'd. 1O0) In an
action a note against two makers a claim
in favor of one cannot be pleaded by him set-o
unless he alleges that he is piinepal and his co
81 i'd, 800 80 i'd, 345.) Where a paragraph of
answer pleads certain facts failure of consdera-
ton but the facts really show want of consdera-
ton for the note, it is harmless to sustain
demurrer to such paragraph, there being another
paragraph in which want of consideration Of the note
is pleaded Judgment affirmed.
CHANGE OF NEUTRALITY-SUSPICIOUS. OMISSIONS.
| 1o766.-Sa1nuel h. Newman VS.. Sarah j. Hazel
rgg Carroll G. G.
Elliott, G.. Where an attempt was made
| by party to have the case sent
that county without objection the court then sent
the case to another county it will be presumed that it
| was sent to the latter county by agreement. The
/ court instructed the jury that it their duty to
consider evidence of verbal instructions with caution
| The party who is claimed to make such admissions
may not have expressed himself definitely and clearly;
the party testfying to such admissions may not have
heard aceurately he may not have remembered cor
eetiy or he may not state closely the words spoken
+ or matter admitted BY reason of these pos
sibe inirnlities oftongue and ear and memory and
expression it is necessary that you carefully scPuti
pze evidence Of verbal admissions, in order chat
you may determine whether is reliable and credible
| or not" On the authority of 80 Ind $780, 76 i'd.
| l49and "a i'd 90, this instruction erroneous.
Judgment reversed
ROAD SUPERINTENDENT - ADVANCEMENT OF
UNDERSTANDABLE.
1898. State ex rel, Brookshire vs.. Edwin L.
Snodgrass trustee Montgomery, G.. c.
Hammond, 1.-The relator held the office of road
superintendent under the act of 1881 and in antci
patton of the collection of the June assessment made
by the county board. and without any funds in his
hands for that purpose the relator expended of his
| own money for needed work on the highways in his
township the of 81 675.1 II and before the coec-
| ton of such tax his office abolished, leaving the
| township indebted TO him in that amount Held:
| The superintendent might do such ordinary work
on the highway was necessary in Vance of the
collection of the tax levied. go Ind. I7S 10 i'd,
| sol; rs ID, 1861 But he could not do extraorli-
| nary work A writof mandate will lie only where
there's clear legal right to the relief demanded If
the right is doubtful it must first be established by
ordinary action at law (1tIgh EX Rem., section lOO
-117.) The reator must establish his claim by prop
err action against the township before proceed
ing to its payment by mandate There is moth
ing in the complaint to show whether the work done
was ordinary or extraordinary" Judgment af
irmed
JUNIOR AND SENIOR MISUNDERSTANDING
| CoNTRACT-PowERS OF GENERAL AGENT.
9459. Wilson Morrow VS.. United States Mortgage
| Company Marion S. G.
Niback, J.-Appellee held a senior mortgage on
certain property and appellant had purchased the
property at foreclosure sale under Junior mort
gage. He paid certain coupon notes they became
| due for interest said senior mortgage under an
agreement with Henderson who was the general agent
of appellee, that he should hold the notes as prior
lien on the property to the appelees mortgage. Ap-
pellee claims that the contract which Hender
| son had power to make as to bind it thereby.
Held If appellant had paid and taken up the coupon
| notes without any express agreement with
the company he would have become subrogaed to the
rights of the company in the notes. subject only to
the condition that he could enforce their payment
against the morgaged property while any part of
the companys debt remained unpaid. (87 Ind, 424;
| IA i'd, 500; Sheldon Sub, sec, A. The express
agreement with Henderson amounted in legal effect
simply to waiver by the company to its right to in
sist upon postponement of appellants claim for
| endorsement until the remainder of the mortgage
! debt was satisfied The agreement was incidental
merely to the collection of certain instaments of in
teres upon the principal debt and clearly within
the scope of Hendersons authority as general agent
| of the company. Judgment reversed.
!