(25 Ind. App. 284) TECUMSEH FACING MILLS v. SWEET et al.

(Appellate Court of Indiana. Oct. 8, 1900.) SALES-ACTION FOR PRICE ANSWER-SUFFICIENCY-EXCEPTION.

1. A special answer, in an action for goods sold and delivered, alleging that it was agreed that defendant might reject inferior goods and hold them subject to plaintiff's order; that inferior goods were delivered; that plaintiff was promptly informed by defendant that he had rejected them, and was asked to instruct what disposition he desired to be made of them; and that plaintiff refused to receive them back, or to substitute acceptable goods,-is good as against a demurrer for want of facts.

2. Under Burns' Rev. St. 1894, § 638, requiring the party objecting to the decision to except at the time it is made, an exception to an order overruling a motion for a new trial, taken on the following day, is too late, and will be disregarded on appeal.

Appeal from superior court, Laporte county; H. B. Tuthill, Judge.

Action by the Tecumseh Facing Mills against Sweet, Dempster & Co. and others. From a judgment for defendants, and an order overruling a motion for a new trial, plaintiff appeals. Affirmed.

James F. Gallaher, for appellant. M. F. Krueger and C. R. & J. B. Collins, for appellees.

lees for a balance due for goods sold and delivered. Answers in denial, payment, and special answer or counterclaim. Errors are assigned upon the overruling of the demurrer to the special answer or counterclaim, and overruling the motion for a new trial.

The special answer or counterclaim is good against a demurrer for want of facts. The pleading contains some surplusage, but we think it sufficient. It proceeds upon the theory that the contract under which the goods mentioned in the complaint were furnished was not complied with by appellant, to appellees' damage, in a specified manner. goods were sold by sample, and appellees had the right to reject inferior goods furnished. It is argued that the pleading fails to show a rejection of any of the goods, but the pleading alleges that it was agreed that ap

The

pellees might reject any faulty or inferior goods, not pay for them, and hold them subject to appellant's order; that inferior goods were delivered; that appellees promptly informed appellant that appellees had rejected the inferior and faulty goods, and demanded of appellant to instruct appellees what dispo sition appellant desired to be made of the rejected goods; and that appellant failed and refused to receive back such worthless goods so rejected, or to substitute acceptable goods therefor. The pleading shows what the agreement was with reference to rejected goods, and that appellees acted in accordance with the agreement. The facts pleaded do not bring the case within the rule that when goods are accepted, or kept by the vendee in his possession, the presumption arises that the goods were of the kind bought, and satisfied the contract of sale.

The record shows that the motion for a new trial was overruled on the 19th day of the April term. No exception was taken to the ruling at the time. A record entry shows that on the following day an exception was taken to the ruling on the motion for a new trial. It also appears by a bill of exceptions that on the following day appellant moved for a nunc pro tunc entry showing that its exception to the motion for a new trial was taken on the 19th day of the term. This motion was submitted upon affidavits and counter affidavits, and was overruled. No error has been assigned upon this ruling, and no question is presented. As the record comes here, it does not show that any exception was taken to the ruling on the motion for a new trial at the time the ruling was made. Appellant has not complied with that provision of the statute that "the party objecting to the decision must except at the time the decision is made. * Burns' Rev. St.

1894, § 638; Eubank, Ind. App. Prac. § 24. In the case at bar the rule may seem technical, but there is no good reason for making an exception to the rule, which, in its general application, is a salutary one. See Coan v. Grimes, 63 Ind. 21; Hull v. Louth, 109 Ind. 315, 333, 10 N. E. 270; Brown v. Railway Co., 135 Ind. 587, 35 N. E. 503; Radabaugh v. Silvers, 135 Ind. 605, 35 N. E. 694. Judgment. affirmed.

(25 Ind. App. 279)

EVERETT v. STUCK. (Appellate Court of Indiana. Oct. 2, 1900.) PLEADING AND PROOF-VARIANCE.

Where plaintiff sued on a quantum meruit for work and labor, and the proof showed that if defendant was liable it was on a guaranty, there could be no recovery, since one cannot sue on one theory and recover on another.

Appeal from superior court, Allen county; C. M. Dawson, Judge.

Action by Jay H. Stuck against Julia M. Everett. From a judgment in favor of plaintiff and an order overruling a motion for a new trial, defendant appeals. Reversed.

Robert S. Robertson and Wm. S. O'Rourke, for appellant. Phil. B. Colerick and Howard Hawthorn, for appellee.

WILEY, J. This action originated before a justice of the peace. The complaint is as follows: "Comes now the plaintiff, and says that the defendant is indebted to him in the sum of one hundred and twenty-five dollars for work and labor performed by the plaintiff for defendant, and at the defendant's request. Plaintiff says said sum of money is due and unpaid." Prayer for judgment. The appellant did not file any answer, and the case proceeded to trial and judgment under the issue made by the statute. There was judgment before the justice, and also an appeal to the Allen superior court for appellee.

One of the errors assigned is the overruling of the motion for a new trial, and this is the only question appellant has discussed. Appellee has not filed any brief, and we are left in ignorance of his theory of the case, only in so far as it is disclosed by the record. It is evident, however, from the complaint, that the action was upon the quantum meruit, to recover for work and labor done. The first and second causes for a new trial are (1) that the verdict is not sustained by sufficient evidence; (2) that the verdict is contrary to law. A brief statement of the undisputed facts, as disclosed by the record, will suffice to show that the judgment cannot stand. It is shown that appellant is a married woman, and lives with her husband. The evidence of the appellee, one Phillip Kantz, and Charles E. Everett (appellant's husband) discloses the uncontradicted and undisputed fact that Charles E. Everett employed appellee as hostler and to do general chores about his barn and house, for which he agreed to pay him $28 per month. Appellee commenced his service under that contract July 11, 1898, and quit his employment November 5th following. August 22, 1898, Everett paid appellee $20 by check, and about August 25th he (Everett) was called

to Tennessee on business. Before going he arranged with another party to pay appellee an additional sum of $17. Everett returned from Tennessee about the 22d of the following November. While Everett was in Tennessee appellee frequently asked appellant for money, and inquired of her and others when he (Everett) would return. He also stated to appellant that he would be willing to wait for his pay if he thought Mr. Everett would be home by November 23d. There is not a word of evidence that appellant ever employed appellee. That he was employed by Mr. Everett, and was to be paid by him, under the original contract, there is no dispute. Appellant testified that on or about October 24th appellee brought to her a paper written by an attorney for appellee, and wanted her to sign it, saying that he had purchased a wagon some time before on credit; that he was unable to pay for it; that the vendors were threatening to take it from him; and that, if she would sign the paper, they would give him longer time. This evidence is not contradicted. Appellant thereupon signed the following instrument: "Fort Wayne, Ind., Oct. 24, 1898. In consideration of services rendered myself and husband by Jay Stuck, and in consideration of the wages now due said Stuck for services rendered my husband, C. E. Everett, I agree to and with said Stuck to be responsible for any and all wages due said Stuck while he may be in the employ of my husband, and also responsible to said Stuck for any sums of money now due to him and unpaid. [Signed] Mrs. C. E. Everett." This instrument, prepared for appellee by his attorney, aside from all the testimony discloses the fact that there is no liability on the part of appellant upon the theory of the case adopted by appellee. The rule is firmly settled in this state that a party cannot sue upon one theory and recover upon another. A party must recover secundum allegati et probati or not at all. Sanders v. Hartge, 17 Ind. App. 243, 46 N. E. 604, and authorities there cited. Here appellee sued upon the express theory that appellant employed him to perform certain labor for her. The evidence shows she never employed him, but that his employment was by her husband. If she is liable to appellee, it is upon her written assumption of her husband's obligation, and her written promise to pay. As to whether she is liable under such assumption and promise we do not decide, for the question is not before us. What we do hold is that appellee wholly failed to make a case under the evidence upon the theory of his complaint. The judgment is reversed, and the court below directed to sustain appellant's motion for a new trial.

(25 Ind. App. 650)

BASS v. REITDORF.1 (Appellate Court of Indiana. Oct. 5, 1900.) ACTION FOR DEATH-CONTRIBUTORY NEGLIGENCE COMPLAINT-SUFFICIEN

CY-EVIDENCE

1. The complaint in an action for the death of plaintiff's son alleged that the railway company of which defendant was receiver owned and managed for profit a large park, in which there was a body of water, held out to the public as a safe place for bathing; that defendant had failed to remove therefrom certain pieces of timber which were concealed under the surface of the water; that, on a day named, plaintiff's son, while in swimming, being ignorant of the dangerous timbers, etc., leaped head foremost into the water and struck such timbers, sustaining injuries resulting in his death; that defendant was appointed receiver of said company, and had taken possession of the park, managing it as a public resort. Held to state a cause of action.

2. The company of which defendant was receiver owned a park, in which there was a body of water, held out to the public as a suitable and safe place for bathing. The company had established a float pool in such body of water, which it managed for profit. Surrounding the pool were ropes, forming a kind of fence, about three feet high. Notices were posted in conspicuous places in the rooms of the bath house to the effect that: "Bathers who are not good swimmers must not go outside of the pool. Good swimmers do so at their own risk." Decedent was 161⁄2 years old, able to read English, and an experienced swimmer and diver. His attention had been called to other obstructions in the water, but not to the one in question. Held that, in diving into the water outside of the pool, he was guilty of contributory negligence, barring a recovery for his death resulting therefrom.

Appeal from circuit court, Dekalb county; D. R. Best, Special Judge.

Action by Wilhelmina Reitdorf against John H. Bass, receiver of the Ft. Wayne Consolidated Railway Company, for the death of plaintiff's son. From a verdict in favor of plaintiff, defendant appeals. Reversed.

Barrett & Morris, for appellant. L. M. Ninde & Sons and F. S. Roby, for appellee.

ROBINSON, C. J. Suit for damages for the negligent killing of appellee's son. Demurrer to complaint overruled. Answer of general denial. Trial by jury. Verdict in appellee's favor, and answers to special interrogatories. Motion by appellant for judgment on the answers overruled. Judgment. The errors assigned question the sufficiency of the complaint, and the legality of denying appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict.

The complaint avers that the Ft. Wayne Consolidated Railway Company owned and managed divers lines of road, and also a large park on the St. Joseph river, which park was constructed and managed by the company for profit, and to which it operated a branch of its road; that a receiver was appointed by the court, and took possession of the company's property, including the park and branch line leading thereto, and, under order 1 Rehearing denied.

of the court, proceeded to operate the road and carry on and conduct the business of the park as a place of common resort for pleasure for the people; that located in the park, and as part of the river, was a body of water, held out to the public as a suitable and safe place for bathing, swimming, and diving; that appellants had failed and neglected to remove from this body of water certain pieces of timber, stumps, and logs, but left the same concealed therein under the surface of the water, and which were out of sight and unknown to appellee's son; that on a day named appellee's son went upon the planks and appliances along the water prepared and maintained by appellants for the accommodation of persons engaged in bathing, swimming, and diving, being ignorant of the dangerous logs, stumps, etc., and, as was the custom in such exercises, in the usual and ordinary way, leaped head foremost into the water, striking such logs, stumps, etc., resulting in his death. The objections to the complaint are involved in the denial of the motion for judgment on the answers to interrogatories, and all may be considered together.

It appears from the special answers that in April, 1897, one Phillips and appellant, receiver, entered into an agreement whereby Phillips erected and conducted at his own expense a bath house and float pool in the park for the purpose of giving swimming lessons; the float and pool to be constructed and maintained according to plans submitted by appellant. A stipulated scale of prices to be charged was set out. Appellant furnished a ticket seller at its own expense, and paid over to Phillips weekly 85 per cent. of the proceeds, and retained the other 15 per cent. It is argued that, as the special answers show the pool was in the exclusive possession of Phillips, there can be no liability on the part of appellant. Upon this question the answers conflict; one saying that Phillips had exclusive control, and another that the pool was maintained by appellant in connection with Phillips. The answers very clearly show that there was a contract relation between appellant and Phillips, and that each was to derive his reward from the profits of the business as such. The proceeds, whether much or little, and which were to be divided in a certain way, constituted the only source of profit or compensation to either party. In the prosecution of the common enterprise, each was the other's agent, and, as to third persons, each was liable for the other's omissions or faults. Stroher v. Elting, 97 N. Y. 102. The complaint avers that the receiver took charge of the park upon the order of the circuit court, and conducted the business of the park under the order and direction of the court. The general verdict finds these averments to be true, and there is nothing in the answers to conflict with that finding. Were this a suit upon an executory contract Imade with a receiver, the rule declared in

Brunner, Mond & Co. v. Central Glass Co. 18 Ind. App. 174, 47 N. E. 686, would apply.

It is further argued that the special answers show that the decedent was guilty of contributory negligence. The float pool was 40 by 20 feet, and was surrounded by a board walk, along the outside of which were stretched ropes about 3 feet high. The ropes were not for the purpose of requiring bathers and swimmers to stay inside of the pool, and defining the line of the pool, but to protect small boys from falling into deep water. Posted in the rooms of the bath house, where it could be easily read, and in a number of conspicuous places about the pool, and where they could be seen, were notices to the effect, among other things, that: "Bathers who are not good swimmers must not go outside the pool. Good swimmers do so at their own risk." There were 48 of these notices, one of which was in the room of the bath house used by decedent.

Deced

ent, 161⁄2 years old, active and strong, able to read the English language, an experienced swimmer and diver, having bought a ticket and rented a bathing suit, stood on the walk and dived over the guard rope into the river on the outside of the pool. He had had his attention called to obstructions which he thereafter avoided, but was injured by coming in contact with an obstruction other than any to which his attention had been called, and of whose existence he did not know. He had never encountered the obstruction in diving prior to that time. Before diving he did not know that there were obstructions in the river at that place. Objects in the bottom of the river at that point, which was 5 to 6 feet deep, could not be seen, because of the muddy water. The obstruction which caused decedent's death was not visible or discoverable without diving into the river, and could not have been seen by looking at or

into the water. The general verdict finds that the place where the injury occurred was held out by appellant as a suitable place for bathing, swimming, and diving. There is no direct averment that the place was generally used by the public for these purposes. Even conceding that it might have been shown under the issues formed, and thus be held to be found by the general verdict as against special answers, that the place was habitually used by patrons of the park, with appellant's knowledge, prior and up to the time of the injury, that would not be equivalent to a finding that the notice was disregarded and abandoned by appellant. It is true, there is a finding that there was no evidence that the notice could be easily seen and read by per sons desiring to swim in the swimming pool This does not necessarily negative the finding that notices were posted in each room of the bath house, where they could be easily read, and that there was such a notice in the room decedent used. The findings clearly show that notices were so posted that decedent must have seen them, had he looked. The fact that appellant gave such notice negatives the averment of the complaint, found as a fact by the general verdict, that appellant held the place out to the public as a suitable place for bathing and swimming. The notice was to all classes of persons. For some reason undisclosed by the notice, it was not considered a safe place for any one to go. Persons who were not good swimmers were told that they must not go outside the pool, and persons who were good swimmers were told that, if they did go outside the pool, they did so at their own risk. Appellant's motion for judgment should have been sustained. Judgment reversed, with instructions to sustain appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict.

PLEDGES-SALE OF PROPERTY-BONA FIDE

PURCHASER-EQUITIES-KNOWLEDGE
OF ATTORNEY-EFFECT.

Where an attorney, by attaching certain stock held in pledge, becomes aware that the pledgor has an interest above that for which it is pledged, and afterwards sells such stock for the pledgee at public sale to the plaintiff in attachment, without notice to the pledgor, such purchaser cannot hold the stock, on being tendered his bid and interest, on the ground that he is a bona fide purchaser, since he is chargeable with the attorney's knowledge of the pledgor's claim.

Parker, C. J., and O'Brien, J., dissenting.

Appeals from supreme court, appellate division, First department.

Actions by Robert H. McCutcheon against Charles Dittman and others. From a judgment of the appellate division (48 N. Y. Supp. 360) modifying the judgment appealed from, defendant Charles Dittman and plaintiff appealed. Affirmed as to defendant Dittman, and reversed as to defendants S. Isaacs & Co. J. E. Ludden, for plaintiff. David B. Hill, for defendants.

BARTLETT, J. The judgment should be reversed as to the defendants S. Isaacs & Co. We agree with the referee that, under all the circumstances, S. Isaacs & Co. are chargeable with the knowledge of their attorney in regard to the stock in question, and cannot be deemed bona fide purchasers thereof at the sale. It is undoubtedly the settled rule that a principal is only chargeable with notice communicated to, or knowledge acquired by, his agent in another transaction, at another time, and when he was acting for another principal, when clear proof is made that the knowledge or notice was present in the mind of the agent at the time of the transaction in question. Constant v. University, 111 N. Y. 604, 611, 19 N. E. 631, 2 L. R. A. 734. S. Isaacs & Co. are not only brought within the rule as above stated, but the facts show essentially one transaction in the interest of S. Isaacs & Co. which renders the rule inapplicable. In November, 1895, the defendant Dittman loaned plaintiff $1,000, secured by 53 shares of the United States Printing Company's stock. In December, 1895, S. Isaacs & Co. began an action against plaintiff and others, and attached the interest of plaintiff in the stock held by Dittman. In this action David Calman appeared as attorney for S. Isaacs & Co., and thus became advised a year before the public sale of the stock by Dittman that plaintiff had a large interest in the stock above the amount for which it was pledged. It will not be disputed that S. Isaacs & Co. are chargeable with this knowledge. The par value of the stock was $5,300, and it was alleged in the complaint that it was actually worth $4,240. A year later, in December, 1896, the same attorney, acting for 58 N.E.-7

defendant Dittman as alleged, had in charge the public sale of this stock, which is found by the referee to have been irregular, wrongful, and a conversion thereof, by reason of no previous demand of payment of the plaintiff's indebtedness and no legal notice of sale. At this sale S. Isaacs & Co. bid in the stock for $1,083.78, enough to pay Dittman's loan to plaintiff. It is evident that the precise knowledge of this situation was in the mind of the attorney at the time of the sale, within the rule referred to above, so that it is of no importance whether he was acting for Dittman or S. Isaacs & Co. It is equally apparent that these facts show one transaction in regard to the stock. In the first transaction the attorney attaches the interest of plaintiff in the stock subject to the pledge, and in the second proceeding, by means of a sale without demand or notice, sought to extinguish plaintiff's interest in the stock without payment of its full value, and vest it in his clients, S. Isaacs & Co. The latter now seek to retain the fruits of this transaction, notwithstanding they have been tendered their bid and interest, by invoking the rule that their attorney only represented Dittman at the sale, and consequently they are bona fide purchasers. We agree to the affirmance of the judgment of the appellate division as to defendant Dittman, but are of opinion it should be reversed as to S. Isaacs & Co. The judgment of the appellate division as to defendant Dittman should be affirmed, with costs. Judgment as to defendants S. Isaacs & Co. should be reversed, and a new trial ordered, with costs to abide the event.

man.

PARKER, C. J. (dissenting). In November, 1895, McCutcheon, this plaintiff, borrowed $1,000 of the defendant Dittman, giving therefor his promissory note, together with 53 shares of the United States Printing Company's stock as collateral. Before the note matured, S. Isaacs & Co. attached McCutcheon's interest in the stock pledged to DittNegotiations entered into between McCutcheon, Dittman, and S. Isaacs & Co. resulted in a tripartite agreement, by which it was agreed, among other things, that the $1,000 note should be renewed for the further period of six months, and that Dittman should hold the United States Printing Company's stock as collateral-First, for the payment of the $1,000 note; second, for the payment of any sum that should be found due to S. Isaacs & Co. in the suit in which the attachment was issued; and, third, the overplus to be turned over to McCutcheon. pursuance thereof the note was renewed, and it became due November 20, 1896, at which time it was presented for payment to the bank where it was made payable, but it was not paid, and the note was duly protested. Very shortly afterwards the stock was by McCutcheon turned over to Adrian H. Muller & Sons for sale, and in their notice of sale of securities for December 2, 1896, they inserted "53 shares U. S. Printing stock."

In