The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-05-31


executing such waiver was liable TO a per-
sonal judgment for the amount OF the as
sessment.
2s52. Fidelity Life Assn. VS.. Mcdaniel.
Marion C.. c.. Reversed. Comstock, i'll.
knowledge obtained by an agent wholly
independent of the business OF employment
of his principal and in a transaction In
which his principal is not connected Is not
knowledge OF his principal. 2 The use
of the word warranty Is not necessary
TO make a warranty. 3. Contracts executed
in a foreign State in conformity with the
laws of such State are construed by such
laws. 4. When the insured agrees that
the answers in his application shall be ma
terial to the risk the insured cannot be
permitted in case of loss 10 escape the con-
sequence OF making a false answer. 5. A
false answer in a written application for
life insurance to a question as TO whether
any other company has declined TO carry
a policy on the applicants life is a material
misrepresentation. s. A Misrepresentation
by one party TO a fact specifically inquired
about by the other will exonerate the lat
ter. L. Whether a Misrepresentation by
an applicant for insurance is material is
a question of law when the facts are as
certained. s. IL is for the court to rule
whether or not a matter Is material, and
for a jury to determine whether the state
mcnts concerning such matters are sub
s:antially true. 8. 1t is within the sound
discretion of the trial court to determine
at what time the request for answers TO
interrogatories shall be made.
$40. Mckinney VS.. Cabell. Lawrence &.
G. Reversed. Comstock, 1.-THE addition
to a chattel mortgage, without the con-
sent of the mortgageor. the exact location
of the chattels described is a material alter
alton Of the instrument.
3l32. Everitt VS.. Bassler. Marion s. c.
Affirmed. Henley, il. A proposition
made by one party. by letter, 10 another. at
a distance. containing a specific offer which
is Internationally accepted by the latter, is
a valid contract between them, and all
prior correspondence Is no part thereof.
2. An employer may discharge an employee
in case of a breach of the contract OF en-
ployment.
3O3S. York Manufacturing Company VS..
Bonnell. Fountain C.. G. Affirmed. Hen
ley, il. A counter claim closely CORE
spends 70 the cross-bill of former chancery
practice. 2. Whenever IL Is necessary TO
effect a clear equity or to prevent rremed-
ial injustice a set off Will be allowed,
though the debts are not mutual. 8. A new
warranty as to the qualities OF a piece or
machinery may be made and substituted
for the one contained in the original con-
tract, and a subsequent sale of the ma
chinery will not bar the right of action on
the warranty, and the fact that the pur-
chase price has been paid does not waive a
right of action on the warranty.
i 1913. Smith VS.. The State. Henry &. G..
Affirmed. Black, il. BY express provi-
sion of the statute an application Tor a
change of venue from the county in a GRIM
inal case, other than capital cases, is adj
dressed to the sound discretion or the
court. 2. Where a jury is discharged by
| the Judge under MISREPRESENTATION that the
service of the jury will not be needed dur
ing the remainder of the term, the court
may direct the sheriff TO recall the jury
composing the regular panel for the trial or
another cause, and such jury is not sus-
ceptible of discharge by either party be-
cause of jury service during the term prior
TO their discharge by the judge. 3. 1t Is
only where the discretion of the court in
overruling a challenge TO a juror has been
abused that the Appellate Court will inter-
fere.
~ So Cx--- 1870 ~.
Williams. Lawrence c. C. Affirmed.
Black, il. Where an employee is injured
on account of a defective appliance, In his
action for damages IL is not necessary Tor
him to show in his pleading that he had
inspected the appliance or that he had not
had an opportunity to inspect ii, nor that
he could not have learned of its detective
ness by the exercise of ordinary care and
diligence. 2. 1t is not necessary for a wit
ness to be shown to have skill or expert
ence in the making of papers to authorize
the acceptance OF his opinion as to the suf-
fciency in strength OF a particular rope Tor
the use to which ii had been put when the
witness bases his opinion upon facts stated
by himself, including his own experience.
S1l9. South Bend. etc., Company VS..
Geidel. Marshall C. C. Affirmed. Robin
son, c. il. Where all the questions pre-
sented depend upon the evidence all the
evidence must be in the record. 2. Models
used in evidence and considered by the jury
should be shown In the bill of exceptions
by diagrams or explanations to be in the
record. 3. When the evidence is not in the
record this court must presume that in
structions requested were refused because
they were not applicable to the case made
by the evidence. 4. Instructions given by
the court, in the absence of the evidence.
cannot be regarded as erroneous II they
can be considered correct upon any state
of facts admissible under the issues.
3O19. Chicago, etc, X. Company VS..
Grim. Clay &C. Affirmed. Comstock. j.
/. Whether the running of a train back
wards from one station 70 another is noRl-
gence Is a question of fact for the jury to
determine from the evidence. under proper
instructions. 2. A complaint charging the
defendant with an act injurious TO plaintiff,
with a general allegation of negligence in
the performance of the act. is sufficient TO
withstand a demurrer for want of facts.
and any evidence tending TO show that the
act was n~egligently done may be admitted
under such allegation. 3. Answers of the
| jury to in~terrogatories will overthrow the
general verdict only when there Is such
an antagonism upon the face of the record
as is beyond the possibility or being re-
moved by any evidence legitimately adj
missible under the issues in the cause. 4.
Every presumption is INDUCED In favor Of
the general verdict. 5. When a passenger
is injured on a train and seeks a recovery
it only 6evolves upon him to show that he
was injured without fault on his part, and
then the law presumes negligence on the
part of the carrier. and the carrier is bur-
dened with removing such presumption.
330S. Williams VS.. Enterprise Company.
Henry c. c. Reversed. Robinson, C. il.
A subscriber to the capital stock of a pro-
posed corporation can be compelled to pay
his subscription only upon a showing that
a de jure organization Of the proposed cor
p~oration has been perfected in the absence
of any estoppel on his part. 2. Corporations
in this State may be created and may exist
by virtue of general statutory authority
only. 3. II a corporation claims the right
to exist for a certain purpose it must show
that IL was organized under a statute au-
thorizing the creation of a corporation for
that purpose. 4. The use of the disjunc-
tive "or" In Section 5051. Burns. 1894. makes
a complete enactment of the Legislature
as TO each class of business named. 5.
There is no statutory authority authorizing
a single corporate organization to engage
in the business of manufacturing and min
ing. manufacturing all kinds of merchan-
disc, and TO operate and sink gas wells.
BPS. Lake Erie. etc. r. Company vs.
Miller. Jay c. c. Affirmed. Wiley. il.
A railroad company has the right to set
fire TO combustible matter on its right of
way, but IL is bound at its peril to keep
such fire within the limits of it's right of
way, and. in case fire escapes, the ompany
is liable for the damages. 2. A motion for
judgment on the answers to in~terrogatories
should be overruled when they are in har-
mony with the general verdict.
1926. Bosnian VS.. Mendenhall. Delaware
c. c. Transferred to S. c..
1896. Wabash Railway Company VS.. Chap
pell. De Kalb c. G.. Dismissed.
1924. Farmers Insurance Company VS..
Borders. Daviess c. c. Motion TO advance
, overruled.
324. Johnson VS.. Johnson. Huntington
G. G. Motion to correct record granted,
and twenty days time given.