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county, who shall place the same on the tax

(167 Ind. 440) duplicate as other taxes are collected, and POMEROY et al. v. WIMER. (No. 20,799.) 2 when collected, the same to be paid over to (Supreme Court of Indiana June 20, 1906.) such trustee, or such trustee may recover PRINCIPAL AND AGENT-CONFIDENTIAL RELAsuch expense and his fees before any justice TIONS-PROFITS. of the peace of the township where the Plaintiff authorized defendant, who was a

broker, to sell a tract of land, and directed an owner resides, or through or into which such

advertisement at plaintiff's expense. It was road or railroad runs; or he may bring suit afterwards agreed that the advertisement should in the circuit or superior court of the county be discontinued, and plaintiff told defendant that to collect such expense and fees, and enforce

if he got a piece of property to sell for which

plaintiff could turn in his property as part and foreclose the lien on such land or upon

payment he desired to know of it. Afterwards such road or railroad, and in all suits brought defendant and others obtained an option on by the trustee under the provisions of this some land and notified plaintiff, who, on being

told of the price which defendant and his asact, such trustee shall also recover reason

sociates were to pay for it, purchased it after able attorney fees, and the judgment shall

examination, giving his land as part payment. be without relief from valuation or appraise- Later plaintiff sued on the ground that dement laws."

fendant was his agent and liable to him for

the profits. Held, that the business was in no It will be observed that under the provi

sense confidential, and it was error to instruct sions of this statute it is made the duty of that it was incumbent on defendant to show the proper township trustee, upon the failure that when plaintiff purchased he had knowlof the landowner to perform the work allot

edge of all the facts, and that the land was

worth what he paid for it. ted to him, to at once proceed to have the same completed. Said official is thereby au

Appeal from Circuit Court, De Kalb thorized to employ some person to perform

County; C. W. Watkins, Special Judge. the work, and on the completion thereof he

Action by John Wimer against James E. is required to certify the cost or expense of

Pomeroy and others. From a judgment for the work performed, including his own per

plaintiff, defendants appealed to the Appeldiem, to the auditor of the county, to be by

late Court, from which the cause was transthe latter official placed on the tax duplicate,

ferred to this court under Burns' Ann, as other taxes against such person or cor

St. 1901, § 1337u. Reversed and remanded. poration, and to be collected in like manner W. F. McNaguy, E. V. Harris, and D. M. as other taxes, and when collected the money Link, for appellants. P. V. Hoffman, C. M. is to be paid over to such township trustee. Brown, and P. D. West, for appellee. Instead of leaving the collection of the cost and expenses af above provided in the HADLEY, J. In the spring of 1902 appelhands of the proper tas officials, the trustee lee, Wimer, owned 21 acres of land near the may institute an action before a justice of city of Auburn, known as the “Fair the peace to recover a personal judgment Grounds." Appellant Pomeroy was a real against the landowner, or he may prosecute estate broker located in Auburn. At the a suit in the circuit or superior court for a time referred to Wimer authorized Pomeroy collection of the money by a foreclosure of to sell the fair grounds for $1,000 and dithe lien, provided the necessary antecedent rected him to advertise the property in the steps have been taken to create a lien upon local papers at his (Wimer's) expense. The the land. Beatty V. Pruden, trustee, etc., price was subsequently reduced to $750; 13 Ind. App. 507, 41 N. E. 961; Hock et al. but in August or September following, no V. Monroe Township of Pulaski County, 12 sale having been effected, it was determined Ind. App. 595, 40 N. E. 925. An examina- by the parties to discontinue the advertisetion of the statute makes it plain that it is ment. Nothing was said at the time whether only the person, natural or artificial as the the agency should close, or continue, but on case may be, to whom an allotment has been separating Wimer said to Pomeroy: "If you made that becomes liable for the cost and get hold of a piece of ground to sell, and as expenses arising out of the work of per- to which I can turn the fair grounds as part forming the allotment under the contract of pay, let me know." Appellant Esselburn, a employment made by the township trustee. timber buyer, having come across a farın There is no law, either written or unwritten, of 75 acres, belonging to the Sommers heirs, which in any manner renders the township or that was being offered by one Boland, as its trustee, as such official, liable for the agent, for $30 per acre, and had on it much work performed by the person in cleaning valuable timber, which Esselburn desired, out or repairing any allotment of a public came to an agreement with Pomeroy that ditch under a contract of employment made they would buy an option on the farm for by the trustee in pursuance of the above 30 days at $30 per acre, and if they failed statute.

to sell it before the expiration of the option It is manifest that the complaint under they would jointly raise the money and pay the facts therein alleged does not state a for it and take chances on making a profitright of action against the township, and able sale afterward. On December 9th, purthe demurrer of the latter thereto was prop- suant to the agreement, Pomeroy, in his indierly sustained.

vidual name, "as agent of unnamed princiJudgment affirmed

pal," closed the option contract, calling for

1 Rehearing denied, 79 N. E. 446.

a warranty deed for the land upon the pay named principals; * * It is also undisment of the balance of $30 per acre, within puted that on the 13th day of December, 30 days, and a forfeiture of the amount paid 1902, after obtaining said option, the defendif the balance was not paid within that ant Pomeroy executed a contract with the time. Appellant Weeks was to have an plaintiff in which said Pomeroy appeared as equal share of the profits if he succeeded in agent of unnamed principals, in which said making a sale within the life of the option. contract it was stated that whereas said Appellant Weeks, upon the request of Pome Pomeroy had contracted with Michael Boroy, called upon Wimer, described to him the land as agent for the Sommers heirs for the farm, as he was informed, but had never land described in said option contract; that seen it, and arranged for and accompanied the said Wimer was to take said land at the Wimer out to see it. Wimer took a spade, agreed price of $3,500, bis 21 acres to be went over the land, dug into the soil at many taken at the price of $1,100, and the balance places, examined the timber, and within a to be paid in cash. It is also undisputed few days sent out a timber expert to estimate that said contract was taken for the benefit its value, and then with Weeks went to of said Pomeroy, Weeks, and Esselburn; Pomeroy's office December 13th and entered that they were each to have an undivided into a written agreement with Pomeroy for one-third of the profits made upon said opan exchange of the fair ground for the tion contract; and it is also undisputed that Sommers farm; Wimer agreeing to give when said defendant entered into said con$2,400 cash boot, and Pomeroy at the time tract with said Wimer for the sale of said executing the agreement as "agent of un land that he was holding the said 21 acres named principal," and explaining to Wimer as agent of the plaintiff for sale under the that he and others were holding the land for terms heretofore stated.

It is also speculative purposes. Deeds were executed undisputed that said defendants divided and exchanged January 12, 1903, in accord said $135.20 over and above said purchase ance with the contract, but before the ex price from said Boland, among themselves; change Wimer was fully informed as to the and that they also divided up said 21 acres beneficiaries represented by Pomeroy and of of land, each taking one-third thereof, or the amount of their profits in the trade, and 7 acres; and that said Pomeroy, before the made no objection. In May, 1903, Wimer commencement of this suit, sold his 7 acres brought this action for damages on the of said land to one Andrew Marsh. These theory that Pomeroy was his agent to sell facts being undisputed, the burden is on the or exchange the fair grounds for a larger defendants to show, by preponderance of the farm, and, having been instrumental in evidence, that at the time the plaintiff enbringing about such a trade while acting as tered into said contract with said Pomeroy agent, the plaintiff was entitled to the Som at the time he received his deed and paid mers farm at the price his agent paid for it, the purchase money for the land received and appellants Weeks and Esselburn, hay from Boland and conveyed his 21 acres to ing knowlege of such agency and having the defendant Pomeroy, he had full knowlshared equally with Pomeroy in the profits edge of all of the facts in relation to said sale, of the trade, were alike and equally liable to and that the land of said Sommers heirs was account to him. Issues were joined by a of the fair value of $3,500; and that the said general denial and plea of ratification. Ver plaintiff knew, at the time he entered into dict and judgment for appellee for $886.20. said contract, and at the time he accept

Appellants insist that they were pre ed said deed from said Pomeroy for said vented from having a fair trial by an errone Sommers land, and conveyed his land to said ous instruction which the court gave to the Pomeroy, all of the facts in connection with jury of its own motion. It was in part as the transaction, including the fact that the follows: "No. 2. In this case, the undisputed defendants held an option on said land from facts show that the defendant, James E. which they could be released by forfeitPomeroy, was the agent of the plaintiff for ing the $5 paid in case the said plaintiff the purpose of exchanging his 21 acres of did not take said land within the time land known as the 'Fair Grounds for a larger provided in said option or the extension piece of land, said plaintiff to pay the differ thereof. ence, and said Pomeroy to receive a reason As shown by the record there were but able commission for his services in that be two witnesses introduced, and their testihalf. It is also undisputed that, while he mony related to matters wholly immaterial. was such agent, the defendant Pomeroy and The plaintiff, appellee, did not testify, nor Esselburn discovered that one Michael Bo give his deposition, though it appears that land, as the agent of the Sommers heirs, had his deposition was taken and left with his a tract of land consisting of 75.46 acres for attorney. The evidence, aside from the two sale at the cash price of $30 per acre; and witnesses mentioned above, was composed that said Esselburn and Pomeroy procured a solely of the contracts, deeds, and record of written contract or option from said Boland deeds noted in the above introductory facts, in the name of said Boland as agent and at and the examination of each of the defendtorney in fact for said Sommers heirs, and ants (appellants) taken by the plaintiff before of the defendant Pomeroy, as agent for un trial under section 517, Burns' Ann. St. 1901.

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 sum paid therefor and amount of their profagency, were undisputed so far as affected by its, but asserted that he was satisfied with direct evidence. But it was undoubtedly in his bargain. There was no written contract, error in stating to the jury what those facts no agreement as to fee or commission for seproved. The fundamental fact in the case for curing sale or trade, no individual memoranthe jury to decide was the question of agen dum of agency, nor power of sale, nor of purcy, and its character, between the plaintiff chase, nor of exchange. All these facts and and defendant Pomeroy, in the exchange of circumstances, and the natural inferences the fair grounds for the Sommers farm, to be arising therefrom, were entitled to be condetermined from the evidence under proper sidered in determining the true character and instructions from the court. The complaint scope of Pomeroy's agency for appellee. charges Pomeroy with being the plaintiff's The actual relation here shown between agent, and his codefendants with knowledge. the appellee and appellant Pomeroy is so The defendants, each denies such relation limited and circumscribed as to amount to and challenges the proof. The only direct nothing more than a proposition on behalf of evidence bearing upon such agency arises appellee that if Pomeroy would produce a from the testimony of Pomeroy himself; and purchaser for his fair grounds, or find anothat the expense of repetition, for convenience, er piece of real estate for which he could we reproduce it here. Being a real estate

trade the fair grounds, he would impliedly broker in the city of Auburn, appellee Wi be entitled to a reasonable fee or commission mer, in the spring of 1902, requested him, for his services. If this was in any sense an Pomeroy, to find a purchaser for the fair

agency, it falls far short of being such an grounds for $1,000, and directed its adver

one as is governed by the rule the jury was tisement in the local papers at his (Wimer's) directed, in the instruction, to apply. We expense. Subsequently Wimer reduced the

agree that it is firmly settled that a confidenprice to $750, but in the summer following, tial agent, with power to sell, or to buy, can no sale having been effected, it was mutu neither buy of himself, nor sell to himself, ally agreed to discontinue the advertisement.

without the approval of the principal after Nothing was said at the time whether the

full information of the facts relating to the agency should close or continue, but, on sep transaction. Rochester v. Levering, 104 Ind. arating, Wimer said to Pomeroy: "If you 562, 567, 4 N. E. 203; Coal Company V. get hold of a piece of ground to sell, and as Phelps, 95 Ind. 271; Mechem on Agency, $ to which I can turn the fair ground as 455. But the evidence does not show this part pay, let me know." He further testi to be a case of that kind. Here the business fied: "My understanding [from the fore

was in no sense confidential. The service of going remark] was that if I found a piece bringing a buyer, or trader, if performed by of ground for sale that he could buy on a stranger, would no doubt have been as acterms that were satisfactory to him, and he ceptable to Wimer. Pomeroy had no power could turn in the fair ground as part pay, to sell, nor to trade the fair grounds, and that he would pay me for turning in the fair did not bind himself to find a buyer or a ground, and as to the other real estate, he trader, and in fact did not sell, or trade it. was to determine for himself whether it

He acted for Wimer in nothing, at any was a satisfactory price.” Having, in the time, except in announcing his price on the autumn following, acquired, with Esselburn, fair ground, and his readiness to trade it the Sommers farm, in his first interview for other property and in thus soliciting a with Wimer, Pomeroy told him he and others customer. No one acted for appellee in tradcontrolled the farm; that they were holding ing for the Sommers farm. He was his it for speculative purposes; that the price on own principal and agent. He went with it was $3,500; that they would sell to the Weeks to see the land, examined it for himfirst one who would pay their price; that he self, tested its soil, procured an expert eshad never seen the land and knew only what timate of the value of the timber, and inothers told him about it; thought it would quired neither of Weeks nor of Pomeroy of suit the plaintiff and that he could put in its value. He determined that for himself the fair ground at $1,000. At the time of and from the opinion he had of others, and the interview Wimer had personally inspect before the deeds were delivered after being ed the farm; had examined its soil in many fully informd of the cost of the Sommers places, and inspected the growing timber, land and the amount of profits the purand had taken the opinion of a timber ex chasers were making by the trade, Wimer anpert as to its value. In the written agree nounced himself as satisfied with his barment between Wimer and Pomeroy "as agent gain, and proceeded with the exchange of of unnamed principal” is the language "the deeds. And there is no pretense in this first party (Pomeroy) as such agent does court that he paid more for the land than hereby agree to sell to said second party, it was worth, or that he was in any way said real estate

for the sum of overreached. In the view most favorable to $3,500" as follows: $2,400 cash, and convey appellee, it must be said to be very clear, ance of the fair ground. Before the exchange under the facts, that the true character of of deeds Wimer was fully informed as to the Pomeroy's relation to the transactions involv

ed was a question for the jury, and the instruction therefore erroneous. There are other objections to the instruction that we leave unconsidered.

Judgment reversed, with instructions to grant appellants a new trial,

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 REMONSTRANCE AMENDMENT.

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.

(167 Ind. 23) TAYLOR V. STRAYER et al. (No. 20,694.) (Supreme Court of Indiana. June 20, 1906.) 1. DRAINS CONSTRUCTION COMMON-LAW RIGHT.

No right to construct an artificial drain over lands of others exists at common law.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Drains, SS 1, 2.] 2. STATUTES REPEAL EFFECT PENDING 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, $8 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 1903, 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, SS 5655, 5671, which were expressly repealed' by Acts 1905, p. 456, c. 157. 6. DRAINS CONSTRUCTION STATUTES REPEAL EFFECT.

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, 88 5655–5671,

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 5055 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 Inäiana at

their establisbed 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 statate 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 80 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 constriction 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 Leg. islature, 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, wbich 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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