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County, who shall place the same on the tax duplicate as other taxes are collected, and when collected, the same to be paid over to such trustee, or such trustee may recover such expense and his fees before any justice of the peace of the township where the owner resides, or through or into which such road or railroad runs; or he may bring suit in the circuit or superior court of the county to collect such expense and fees, and enforce and foreclose the lien on such land or upon such road or railroad, and in all suits brought by the trustee under the provisions of this act, such trustee shall also recover reasonable attorney fees, and the judgment shall be without relief from valuation or appraisement laws."

It will be observed that under the provisions of this statute it is made the duty of the proper township trustee, upon the failure of the landowner to perform the work allotted to him, to at once proceed to have the same completed. Said official is thereby authorized to employ some person to perform the work, and on the completion thereof he is required to certify the cost or expense of the work performed, including his own per diem, to the auditor of the county, to be by the latter official placed on the tax duplicate, as other taxes against such person or corporation, and to be collected in like manner as other taxes, and when collected the money is to be paid over to such township trustee. Instead of leaving the collection of the cost and expenses, as above provided, in the hands of the proper tax officials, the trustee may institute an action before a justice of the peace to recover a personal judgment against the landowner, or he may prosecute a suit in the circuit or superior court for a collection of the money by a foreclosure of the lien, provided the necessary antecedent steps have been taken to create a lien upon the land. Beatty v. Pruden, trustee, etc., 13 Ind. App. 507, 41 N. E. 961; Hock et al. v. Monroe Township of Pulaski County, 12 Ind. App. 595, 40 N. E. 925. An examination of the statute makes it plain that it is only the person, natural or artificial as the case may be, to whom an allotment has been made that becomes liable for the cost and expenses arising out of the work of performing the allotment under the contract of employment made by the township trustee. There is no law, either written or unwritten, which in any manner renders the township or its trustee, as such official, liable for the work performed by the person in cleaning out or repairing any allotment of a public ditch under a contract of employment made by the trustee in pursuance of the above statute.

It is manifest that the complaint under the facts therein alleged does not state a right of action against the township, and the demurrer of the latter thereto was properly sustained.

Judgment affirmed.

(167 Ind. 440)

POMEROY et al. v. WIMER. (No. 20,799.) 1 (Supreme Court of Indiana June 20, 1906.) PRINCIPAL AND AGENT-CONFIDENTIAL RELATIONS-PROFITS.

Plaintiff authorized defendant, who was a broker, to sell a tract of land, and directed an advertisement at plaintiff's expense. It was afterwards agreed that the advertisement should be discontinued, and plaintiff told defendant that if he got a piece of property to sell for which plaintiff could turn in his property as part payment he desired to know of it. Afterwards defendant and others obtained an option on some land and notified plaintiff, who, on being told of the price which defendant and his associates were to pay for it, purchased it after examination, giving his land as part payment. Later plaintiff sued on the ground that defendant was his agent and liable to him for the profits. Held, that the business was in no sense confidential, and it was error to instruct that it was incumbent on defendant to show that when plaintiff purchased he had knowledge of all the facts, and that the land was worth what he paid for it.

Appeal from Circuit Court, De Kalb County; C. W. Watkins, Special Judge.

Action by John Wimer against James E. Pomeroy and others. From a judgment for plaintiff, defendants appealed to the Appellate Court, from which the cause was transferred to this court under Burns' Ann. St. 1901, § 1337u. Reversed and remanded.

W. F. McNaguy, E. V. Harris, and D. M. Link, for appellants. P. V. Hoffman, C. M. Brown, and P. D. West, for appellee.

HADLEY, J. In the spring of 1902 appellee, Wimer, owned 21 acres of land near the city of Auburn, known as the "Fair Grounds." Appellant Pomeroy was a real estate broker located in Auburn. At the time referred to Wimer authorized Pomeroy. to sell the fair grounds for $1,000 and directed him to advertise the property in the local papers at his (Wimer's) expense. The price was subsequently reduced to $750: but in August or September following, no sale having been effected, it was determined by the parties to discontinue the advertisement. Nothing was said at the time whether the agency should close, or continue, but on separating Wimer said to Pomeroy: "If you get hold of a piece of ground to sell, and as to which I can turn the fair grounds as part pay, let me know." Appellant Esselburn, a timber buyer, having come across a farm of 75 acres, belonging to the Sommers heirs, that was being offered by one Boland, as agent, for $30 per acre, and had on it much valuable timber, which Esselburn desired, came to an agreement with Pomeroy that they would buy an option on the farm for 30 days at $30 per acre, and if they failed to sell it before the expiration of the option they would jointly raise the money and pay for it and take chances on making a profitable sale afterward. On December 9th, pursuant to the agreement, Pomeroy, in his individual name, "as agent of unnamed principal," closed the option contract, calling for 1 Rehearing denied, 79 N. E. 446.

a warranty deed for the land upon the payment of the balance of $30 per acre, within 30 days, and a forfeiture of the amount paid if the balance was not paid within that time. Appellant Weeks was to have an equal share of the profits if he succeeded in making a sale within the life of the option. Appellant Weeks, upon the request of Pomeroy, called upon Wimer, described to him the farm, as he was informed, but had never seen it, and arranged for and accompanied Wimer out to see it. Wimer took a spade, went over the land, dug into the soil at many places, examined the timber, and within a few days sent out a timber expert to estimate its value, and then with Weeks went to Pomeroy's office December 13th and entered into a written agreement with Pomeroy for an exchange of the fair ground for the Sommers farm; Wimer agreeing to give $2,400 cash boot, and Pomeroy at the time executing the agreement as "agent of unnamed principal," and explaining to Wimer that he and others were holding the land for speculative purposes. Deeds were executed and exchanged January 12, 1903, in accordance with the contract, but before the exchange Wimer was fully informed as to the beneficiaries represented by Pomeroy and of the amount of their profits in the trade, and made no objection. In May, 1903, Wimer brought this action for damages on the theory that Pomeroy was his agent to sell or exchange the fair grounds for a larger farm, and, having been instrumental in bringing about such a trade while acting as agent, the plaintiff was entitled to the Sommers farm at the price his agent paid for it, and appellants Weeks and Esselburn, having knowlege of such agency and having shared equally with Pomeroy in the profits of the trade, were alike and equally liable to account to him. Issues were joined by a general denial and plea of ratification. Verdict and judgment for appellee for $886.20.

Appellants insist that they were prevented from having a fair trial by an erroneous instruction which the court gave to the jury of its own motion. It was in part as follows: "No. 2. In this case, the undisputed facts show that the defendant, James E. Pomeroy, was the agent of the plaintiff for the purpose of exchanging his 21 acres of land known as the 'Fair Grounds' for a larger piece of land, said plaintiff to pay the difference, and said Pomeroy to receive a reasonable commission for his services in that behalf. It is also undisputed that, while he was such agent, the defendant Pomeroy and Esselburn discovered that one Michael Boland, as the agent of the Sommers heirs, had a tract of land consisting of 75.46 acres for sale at the cash price of $30 per acre; and that said Esselburn and Pomeroy procured a written contract or option from said Boland in the name of said Boland as agent and attorney in fact for said Sommers heirs, and of the defendant Pomeroy, as agent for un

It is also undis

named principals; * puted that on the 13th day of December, 1902, after obtaining said option, the defendant Pomeroy executed a contract with the plaintiff in which said Pomeroy appeared as agent of unnamed principals, in which said contract it was stated that whereas said Pomeroy had contracted with Michael Boland as agent for the Sommers heirs for the land described in said option contract; that the said Wimer was to take said land at the agreed price of $3,500, his 21 acres to be taken at the price of $1,100, and the balance to be paid in cash. It is also undisputed that said contract was taken for the benefit of said Pomeroy, Weeks, and Esselburn; that they were each to have an undivided one-third of the profits made upon said option contract; and it is also undisputed that when said defendant entered into said contract with said Wimer for the sale of said land that he was holding the said 21 acres as agent of the plaintiff for sale under the terms heretofore stated. * * It is also undisputed that said defendants divided said $135.20 over and above said purchase price from said Boland, among themselves; and that they also divided up said 21 acres of land, each taking one-third thereof, or 7 acres; and that said Pomeroy, before the commencement of this suit, sold his 7 acres of said land to one Andrew Marsh. These facts being undisputed, the burden is on the defendants to show, by preponderance of the evidence, that at the time the plaintiff entered into said contract with said Pomeroy at the time he received his deed and paid the purchase money for the land received from Boland and conveyed his 21 acres to the defendant Pomeroy, he had full knowledge of all of the facts in relation to said sale, and that the land of said Sommers heirs was of the fair value of $3,500; and that the said plaintiff knew, at the time he entered into said contract, and at the time he accepted said deed from said Pomeroy for said Sommers land, and conveyed his land to said Pomeroy, all of the facts in connection with the transaction, including the fact that the defendants held an option on said land from which they could be released by forfeiting the $5 paid in case the said plaintiff did not take said land within the time provided in said option or the extension thereof.

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As shown by the record there were but two witnesses introduced, and their testimony related to matters wholly immaterial. The plaintiff, appellee, did not testify, nor give his deposition, though it appears that his deposition was taken and left with his attorney. The evidence, aside from the two witnesses mentioned above, was composed solely of the contracts, deeds, and record of deeds noted in the above introductory facts, and the examination of each of the defendants (appellants) taken by the plaintiff before trial under section 517, Burns' Ann. St. 1901.

sum paid therefor and amount of their profits, but asserted that he was satisfied with his bargain. There was no written contract, no agreement as to fee or commission for securing sale or trade, no individual memorandum of agency, nor power of sale, nor of purchase, nor of exchange. All these facts and circumstances, and the natural inferences arising therefrom, were entitled to be considered in determining the true character and scope of Pomeroy's agency for appellee.

So the court was not wrong in stating to the | persons interested in the Sommers farm, the jury that the facts relating to Pomeroy's agency, were undisputed so far as affected by direct evidence. But it was undoubtedly in error in stating to the jury what those facts proved. The fundamental fact in the case for the jury to decide was the question of agency, and its character, between the plaintiff and defendant Pomeroy, in the exchange of the fair grounds for the Sommers farm, to be determined from the evidence under proper instructions from the court. The complaint charges Pomeroy with being the plaintiff's agent, and his codefendants with knowledge. The defendants, each denies such relation and challenges the proof. The only direct evidence bearing upon such agency arises from the testimony of Pomeroy himself; and at the expense of repetition, for convenience, we reproduce it here. Being a real estate broker in the city of Auburn, appellee Wimer, in the spring of 1902, requested him, Pomeroy, to find a purchaser for the fair grounds for $1,000, and directed its advertisement in the local papers at his (Wimer's) expense. Subsequently Wimer reduced the price to $750, but in the summer following, no sale having been effected, it was mutually agreed to discontinue the advertisement. Nothing was said at the time whether the agency should close or continue, but, on separating, Wimer said to Pomeroy: "If you get hold of a piece of ground to sell, and as to which I can turn the fair ground as part pay, let me know." He further testified: "My understanding [from the foregoing remark] was that if I found a piece of ground for sale that he could buy on terms that were satisfactory to him, and he could turn in the fair ground as part pay, that he would pay me for turning in the fair ground, and as to the other real estate, he was to determine for himself whether it was a satisfactory price." Having, in the autumn following, acquired, with Esselburn, the Sommers farm, in his first interview with Wimer, Pomeroy told him he and others controlled the farm; that they were holding it for speculative purposes; that the price on it was $3,500; that they would sell to the first one who would pay their price; that he had never seen the land and knew only what others told him about it; thought it would suit the plaintiff and that he could put in the fair ground at $1,000. At the time of the interview Wimer had personally inspected the farm; had examined its soil in many places, and inspected the growing timber, and had taken the opinion of a timber expert as to its value. In the written agreement between Wimer and Pomeroy "as agent of unnamed principal" is the language "the first party (Pomeroy) as such agent does hereby agree to sell to said second party; said real estate * for the sum of $3,500" as follows: $2,400 cash, and conveyance of the fair ground. Before the exchange of deeds Wimer was fully informed as to the

The actual relation here shown between the appellee and appellant Pomeroy is so limited and circumscribed as to amount to nothing more than a proposition on behalf of appellee that if Pomeroy would produce a purchaser for his fair grounds, or find another piece of real estate for which he could trade the fair grounds, he would impliedly be entitled to a reasonable fee or commission for his services. If this was in any sense an agency, it falls far short of being such an one as is governed by the rule the jury was directed, in the instruction, to apply. We agree that it is firmly settled that a confidential agent, with power to sell, or to buy, can neither buy of himself, nor sell to himself, without the approval of the principal after full information of the facts relating to the transaction. Rochester v. Levering, 104 Ind. 562, 567, 4 N. E. 203; Coal Company v. Phelps, 95 Ind. 271; Mechem on Agency, § 455. But the evidence does not show this to be a case of that kind. Here the business was in no sense confidential. The service of bringing a buyer, or trader, if performed by a stranger, would no doubt have been as acceptable to Wimer. Pomeroy had no power to sell, nor to trade the fair grounds, and did not bind himself to find a buyer or a trader, and in fact did not sell, or trade it. He acted for Wimer in nothing, at any time, except in announcing his price on the fair ground, and his readiness to trade it for other property and in thus soliciting a customer. No one acted for appellee in trading for the Sommers farm. He was his own principal and agent. He went with Weeks to see the land, examined it for himself, tested its soil, procured an expert estimate of the value of the timber, and inquired neither of Weeks nor of Pomeroy of its value. He determined that for himself and from the opinion he had of others, and before the deeds were delivered after being fully informd of the cost of the Sommers land and the amount of profits the purchasers were making by the trade, Wimer announced himself as satisfied with his bargain, and proceeded with the exchange of deeds. And there is no pretense in this court that he paid more for the land than it was worth, or that he was in any way overreached. In the view most favorable to appellee, it must be said to be very clear, under the facts, that the true character of Pomeroy's relation to the transactions involv

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REPEAL

EFFECT

PENDING

2. STATUTES CAUSES. Where a right of action not existing at common law is given by statute, a repeal of the statute without saving pending actions takes away the right of action in pending causes which have not been prosecuted to final judgment.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 371-373.]

3. DRAINS-CONSTRUCTION-REPEAL OF STATUTES-SAVING CLAUSE.

Proceedings were instituted for the establishment of a drain as authorized by Burns' Ann. St. 1901, §§ 5655-5671. Remonstrances were filed, and proceedings were had resulting in a judgment of the circuit court on appeal dismissing the proceeding. This judgment was appealed from, and reversed by the Supreme Court. The cause was remanded, and before further proceedings were taken, Acts 1905, p. 456, c. 157, was passed providing a new drainage law, section 14 (page 480) of which repealed all other laws relating to drainage, except that it should not affect any pending proceeding in which a ditch had been ordered established, or in which there was no attempt to and which would not lower or affect any lake or body of water not exceeding ten acres in area. Held, that the appeal from the order establishing the ditch vacated it, and hence the proceeding was not within the saving clause as a pending proceeding in which a ditch had been ordered constructed.

4. SAME-RIGHT TO CONSTRUCT-JUDGMENT.

In proceedings to establish a drainage ditch, as authorized by Burns' Ann. St. 1901, §§ 5655-5671, the power to construct the ditch is derived from the judgment of the circuit court directing its establishment which judgment that court may either execute or certify to the board of county commissioners for execution. 5. STATUTES-REPEAL-EFFECT.

Burns' Ann. St. 1901, § 248, declaring that the repeal of any statute shall not release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing statute shall so expressly provide, etc., has no application to proceedings to establish a drainage ditch, under Burns' Ann. St. 1901, §§ 5655, 5671, which were expressly repealed by Acts 1905, p. 456, c. 157.

CONSTRUCTION

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EFFECT.

STATUTES

6. DRAINS REPEAL Burns' Ann. St. 1901, § 243, provides that no rights vested or suits instituted under existing laws shall be affected by the repeal thereof, but all such rights may be asserted and such suits prosecuted as if such laws had not been repealed. Held, that such section was primarily passed to reserve rights and suits instituted under laws repealed by 1 Rev. St. 1852, pt. 1, c. 92, and does not prevent the repeal of Burns' Ann. St. 1901, §§ 5655-5671,

authorizing the establishment of drainage ditches by Acts 1905, p. 456, c. 157, which established a new law for such proceedings, from affecting proceedings which had not matured to a judgment establishing the ditch prior to the repeal.

7. SAME PROCEEDINGS AMENDMENT.

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Where subsequent to an appeal from an order of a board of county commissioners establishing a drainage ditch, the statutes under which the proceedings were taken were repealed, and a new act passed covering the whole subject which contained provisions prohibitive of the ditch sought to be established, it was proper for the circuit court to permit the filling of an answer asserting remonstrant's rights under such act.

Appeal from Circuit Court, Noble County; E. C. Vaughn, Special Judge.

Proceedings by John N. Strayer and others to establish a public drain in which Henry L. Taylor filed a remonstrance. From an order sustaining a demurrer to remonstrant's amended answer, he appeals. Reversed.

Thomas R. Marshall, John W. Hanan, and Wm. L. Taylor, for appellant. T. A. Redmond, and L. H. Wrigley, for appeilees.

MONTGOMERY, J. Appellees commenced this proceeding by filing a petition with the board of commissioners of Noble county, for the establishment of a ditch beginning in said county and terminating in La Grange county, by virtue of the provisions of sections 5655 to 5671, inclusive, Burns' Ann. St. 1901. Appellant, at the proper time, filed a remonstrance against the proposed ditch, and such proceedings were thereupon haa as resulted in a judgment of the circuit court upon appeal, dismissing the proceeding. This judgment was reversed upon appeal to this court. Strayer et al. v. Taylor et al., 163 Ind. 230, 69 N. E. 145. The cause was remanded to the lower court, and before further steps were taken therein the General Assembly passed a new drainage law and repealed all prior drainage statutes. Acts 1905, p. 456, c. 157. Section 14 of the new act reads as follows: "All laws and parts of laws heretofore enacted in relation to drainage are hereby repealed, but such repeal shall not affect any pending proceedings in which a ditch has been ordered established or in which there is no attempt to and which will not lower or affect any lake or body of water that has to exceed ten acres of surface at high water mark, and such proceedings and all remedies in relation thereto shall be concluded and be effective in all respects as if this act had not been passed. Nor shall this act be construed to repeal any act passed at this session of the general assembly in relation to the construction of drains and sewers in counties having a city therein of not less than 59,000 nor more than 100,000 population according to the last preceding United States census, nor shall this act be deemed to repeal or affect any act passed at this session of the General Assembly to preserve the fresh water lakes of the State of Indiana at

their established level and to protect them from danger of being injuriously affected or destroyed: Provided, further, That such repeal shall not affect or be construed to repeal any other act upon the subject of drainage passed by the present general assembly."

The same Legislature passed a penal statute for the preservation of fresh water lakes, section 1 of which reads as follows: "Be it enacted by the General Assembly of the state of Indiana, That it shall be unlawful for any person or persons, firm or corporation, to locate, dig, make, dredge, or in any manner construct, or for any court, or board of commissioners, or body of viewers or drainage commissioners, to order or recommend the location, establishment or construction of any ditch or drain cutting into or through, or upon the line of any fresh water lake or lakes in the state of Indiana, or to locate, dig, make, dredge, or in any way construct any ditch or drain, having a bottom depth lower than the present water line of such lake, within forty rods of any point on the line of such lake where the line or any portion thereof is known or ascertainable; or in case such line or any part thereof is lost and cannot be ascertained, within forty rods from high water mark on the margin of such lake, such high water mark to be the highest point on such margin to which such water has risen within the ten years last past."

Other sections of the act made it unlawful so to interfere with the shores or banks of any such lakes as to lower the waters thereof, or to interfere with any levee or dam constructed for the purpose of maintaining the present water level of any such lake. Acts 1905, p. 447, c. 152. After the taking effect of these statutes appellant filed a special verified answer or plea to the jurisdiction of the court, in which he alleged that the proposed ditch will pass through the following fresh water lakes in Noble county, to wit: Lake Shockopee, Hardy Lake, Tamarack Lake, and Mud Lake, and also Nauvoo Lake in La Grange county; and that it will lower the present level of said lakes eight feet in depth; that appellant is the owner of a dam by which the present water level of said lakes is maintained, and that the construction of the proposed drain will destroy said dam and thereby lower the water level of said lakes eight feet; and that by the construction of the proposed drainage the banks and shores of said lakes will be so cut into and interfered with as to lower the water level of said lakes; and that the waters of said lakes cover areas as follows: Shockopee, 120 acres; Hardy, 70 acres; Tamarack, 130 acres; Mud, 5 acres; and Nauvoo, 80 acres; that under the drainage act of 1905 the rights of appellees were not preserved, but the proceedings contemplated under their pe tition were expressly forbidden and made unlawful, and the court is without authority further to entertain jurisdiction of the pro

ceeding. Wherefore the court was asked to hear evidence as to the facts alleged, and to make such order as under existing laws the proof might warrant.

Appellees' demurrer to this answer for want of facts was sustained, to which decision appellant excepted. Error assigned upon this ruling presents the controlling question for decision. No right to construct an artificial drain over the lands of others exists at common law. Drainage statutes are given or withheld in the discretion of the Legislature, and when enacted may be modified or repealed at the pleasure of that body. It follows that one Legislature cannot determine the policy of its successor and forestall action which may be deemed expedient to protect the public health or to promote the public welfare. It is altogether plain that in the opinion of the General Assembly of 1905, the public interests require the preservation of fresh water lakes having to exceed 10 acres of surface. The drainage act of 1905 expressly repealed all existing laws upon that subject. It is a well-settled principle that when a right of action, not existing at common law, is given by statute, a repeal of the statute without saving pending actions, takes away the right of action in pending causes, which have not proceeded to final judgment. Hunt v. Jennings, 5 Blackf. 195, 33 Am. Dec. 465; Moor v. Seaton, 31 Ind. 11; Roush v. Morrison, 47 Ind. 414; Board, etc., v. Ruckman, 57 Ind. 96; Rupert v. Martz, 116 Ind. 72, 18 N. E. 381. A very eminent authority states the rule as follows: "The effect of a repealing statute, I take to be to obliterate the statute repealed as completely from the records of Parliament, as if it had never passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law." Sedgwick on Stat. Constr. (2d. Ed.) p. 108. In the case of Hunt v. Jennings, supra, Justice Blackford states the principle in the following words: "Whenever a statute from which a court derives its jurisdiction in particular cases is repealed the court cannot proceed under the repealed statute even in suits pending at the time of the repeal, unless they are saved by a clause in the repealing statute."

This proceeding was accordingly terminated with the repeal of the statutes under which it was instituted unless it falls within the saving provisions of section 14 above set out. It is provided that the repeal "shall not affect any pending proceeding in which a ditch has been ordered established, or in which there is no attempt to and which will not, lower or affect any lake or body of water that has to exceed 10 acres of surface at high-water mark." It is insisted by appellees' counsel that the proposed ditch having been ordered established by the board of commissioners of Noble county comes within the first of said saving clauses. We cannot agree

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