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his name. The fact that a sufficient remonstrance is on file at such period before the session will deprive the board of power to grant the license, without regard to the fitness of the applicant. State v. Gerhardt, 145 Ind. 439, 473, 44 N. E. 469, 33 L. R. A. 313. A license had not been issued to the appellant, nor had there been any order of the board of commissioners, or of the court, for the granting of a license to him. His application was before the circuit court on appeal, pending there to be heard de novo as an original cause, though one required to be so commenced before the board of commissioners. It is not necessary to hold that a remonstrance which, signed by a majority of the voters, must be on file three days before the first day of the regular term at which an application is to be heard, may be amended.
Since the decision of the board of commissioners from which the appeal is taken, and while the appeal has been pending, a condition has arisen which did not exist, and could not have existed, when the cause was before the board of commissioners, or until after the taking of the appeal. In the exercise of its police power the Legislature in that interval has made provision for the taking of certain proceedings which shall render unlawful the granting of a license to any person whatever within the territory involved, and such proceedings have been taken pursuant to the legislative directions. May parties interested as remonstrants bring to the attention of the circuit court the fact of the taking of such proceedings? And, if such fact be properly brought to the knowledge of the court, can it remand the cause to the board of commissioners, with instructions to grant a license to the applicant to carry on the liquor traffic in the territory wherein the statute forbids the board to grant a license to any person? Suppose that, pending the appeal, the applicant had removed and taken up his residence permanently in another county. The fact that when the board of commissioners made its decision, and when the appeal therefrom was taken, the applicant possessed all the qualifications required by law would not prevent proof that he had thus ceased to be qualified. The appellant had acquired no vested right, and it was not beyond the authority of the Legislature to deprive him of all advantages from his pending application. If the state of facts which supervened had been existent when the appellant's application was before the board of commissioners, it would have been proper for the board to dismiss the application without regard to the number of signatures of legal voters to the remonstrance directed against him individually, and without regard to the question as to his having the needed qualifications for an applicant. The usual rule in actions, whereby the plaintiff's demand is based upon
the rights and obligations of the parties as they existed at the time of pleading, and the judgment proceeds accordingly, is not applicable here. The appellant was not asserting any right or obligation growing out of contract, or seeking prevention of infringement of a vested right or a remedy for the violation thereof. He was seeking a privilege, which, when he commenced, might be obtained through prescribed forms of proceeding, and might be withheld through other prescribed forms; but before he could obtain the privilege in due form, the sovereign authority, through authorized proceedings withdrew, as it might do, its offer of the privilege as to all persons within the limited territory wherein it was so being sought, and made it impossible for any person to obtain it in that territory after a date which had elapsed, so that the right to seek to be granted the permit by governmental agencies, which existed when the appellant commenced his pursuit, and when his application was before the board of commissioners, did not exist when he came before the circuit court. His right to a favorable decision by the court was not a fixed right, but depended upon the changing expressions of the will of the sovereign authority up to the time of the court's decision, made in obedience to the then existing law. We think it was not improper by a pleading in the form of a plea puis darrein continuance, whatever name it took, to bring such new fact before the court. We attach no importance to the portion of the special finding, wherein the court stated the decision of the board of commissioners in the matter of the application of Anstell. Nor do we consider that it was necessary for the court to make a finding upon the question as to whether a majority of the legal voters had signed the remonstrance directed against the appellant individually. The court found the fact of the filing of a sufficient remonstrance against all applicants, and thereupon it was proper to proceed no further, but to dismiss the application of the appellant. The circuit court on appeal could not grant what could not be granted by the board of commissioners. Judgment affirmed.
(39 Ind. App. 83)
CORDES v. BAILEY. (No. 5,797.)* (Appellate Court of Indiana, Division No. 2. Oct. 9, 1906.)
1. JUSTICES OF THE PEACE TION ON CONTRACT. By express provision of Burns' Ann. St. 1901, § 1529, a copy of a contract sued on is a sufficient complaint in a justice's court. [Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, §§ 307-321.] 2. ATTORNEY AND CLIENT-CONTRACT FOR COMPENSATION-EFFECT OF SETTLEMENT.
Under a contract of employment of plaintiff in terms to assist in defending in a divorce suit in the circuit court, defendant to pay him *Rehearing denied, 78 N. E. 1066.
a fee of $200 at termination of the cause in the circuit court, plaintiff, having rendered such services as he was called on to do, is entitled to his fee, though he did not go into court, but the case was disposed of by agreement without rial.
[Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attorney and Client, §§ 334, 335.1
Appeal from Superior Court, Marion County; Vinson Carter, Judge..
Action by John M. Bailey against Herman Cordes. Judgment for plaintiff. Defendant appeals. Affirmed.
U. J. Hammond and Donald S. Morris, for appellant. Wm. T. Brown, for appellee.
ROBY, J. Appellee sued appellant in a justice of the peace court upon a written contract in terms as follows: "Indianapolis, Ind., Oct. 9, 1903. This agreement made and entered into between Herman Cordes, John M. Bailey, both of Marion county, Indiana, witnesseth: The said Cordes has this day employed the said Bailey to assist in defending him in a suit in the Marion circuit court for a divorce and alimony wherein Margaretha Cordes, his wife, is plaintiff, and Herman Cordes is defendant. And for said services the said Cordes hereby agrees to pay the said Bailey as a fee the sum of two hundred ($200.00) dollars at the termination of said cause in said circuit court. Said Bailey hereby accepts said employment upon said terms. Witness the parties this 9th day of October, 1903. John M. Bailey, H. Cordes." Plaintiff had judgment, and the defendant appealed to the superior court, where a special finding of facts was made, conclusions of law stated, and judgment rendered for appellee in accordance therewith for $200.
The first three errors assigned involved the sufficiency of the complaint; the fourth the correctness of the conclusions of law. By statute a copy of the original instrument, which is the foundation of the action, constitutes a sufficient complaint in justices' courts. Section 1529, Burns' Ann. St. 1901. The objections to the complaint are without merit. There was no error in the conclusions of law. Appellee rendered services as he was called upon to do, and the fact that he did not go into court, but that the case was disposed of by agreement between the parties without trial, was presumptively to appellant's advantage, and did not release him from his obligation to pay his attorney as he had agreed to do. Judgment affirmed.
(38 Ind. A. 616)
NEVER-SPLIT SEAT CO. v. CLIMAX SPE-
ROBY, J. This is an action to recover the agreed price of 5,000 sets of brass closet hinges. They were made for the Crown Seat Company, a corporation, whose business has been taken over by the appellant company, which is admittedly liable for claims against it. The goods were manufactured under a contract, the terms of which are contained in certain letters and telegrams. The order was "to make us a hinge as your 'C' with arms same length as samples sent you. ** Your 'C' hinges cannot be used on oval seats because the arms are too short. If this is correct, book our order for 5,000 pair and send us 1,000 pair at once." The sample accompanied the order. It is not disputed that the goods were made and shipped, and partly paid for. Appellant claims that they did not correspond to sample. There is a sharp conflict of evidence, and the findings of the jury must be taken as settling the fact against it. Indeed, careful consideration leads to the conclusion that the verdict is sustained by the weight of evidence. The court submitted the cause to the jury upon clear and correct instructions. Instructions 1 and 2 requested by the appellant state abstract propositions of law concisely, but are not applicable to the facts in issue, and no reversible error appears from the record.
The judgment is therefore affirmed.
(38 Ind. A. 621) COOL v. McDILL. (No. 5,848.) (Appellate Court of Indiana, Division No. 1. Oct. 12, 1906.)
1. PLEADINGS-ISSUES AND PROOFS-THEORY OF COMPLAINT.
Plaintiff must recover upon a definite theory shown in his complaint, and cannot proceed on one theory, and recover on a different one. 2. CONTRACTS - CONSTRUCTION AGREEMENT NOT TO ENGAGE IN BUSINESS.
Where the owner of a second-hand goods business sold it under a contract whereby he agreed not to engage in the business of conducting a second-hand store or to buy or sell second-hand goods in that city it did not pre-. clude him from taking employment at periodical wages without any ownership or commission under a third person conducting a second-hand store.
[Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contracts, § 1275.]
Appeal from Circuit Court, Boone Coun- | proprietorship, and the appellee sought to ty; S. R. Artman, Judge.
Action by Byron M. Cool against John McDill. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Palmer & Palmer, for appellant. Leonard J. Curtis, for appellee.
BLACK, J. This was a suit brought by the appellant against the appellee. The decision on the trial being in favor of the appellee, the appellant moved for a new trial, and the question as to the sufficiency of the evidence is presented here. May 23, 1904, the appellee having been for some years engaged in the business of conducting a second-hand store, buying and selling secondhand goods, in the city of Frankfort, Clinton county, the parties hereto entered into a contract in writing, whereby the appellee agreed to sell, and the appellant agreed to buy, the stock of second-hand goods then contained in a certain building in that city, the possession of the goods to be delivered on the payment of the purchase price in cash, which was to be arrived at by inventory, the appellee to deliver to the appellant a perfect title to the goods with an affidavit that they were the exclusive property of the appellee, and that he was the sole owner, and had a right to sell them, and that there were no incumbrances, mortgages, or other liens upon any of them, the appellant to take all the goods then in said premises unless the parties otherwise agreed. The contract contained the following provision: "Said McDill also agrees not to engage in the business of conducting a second-hand store or to buy or sell second-hand goods in said city, at any time in the future while said Cool is engaged in said business." Thereupon, the sale was consummated, the appellant paying the sum of $508 as the purchase price, and the appellant, from the time of the sale, carried on and continued said business in said premises, and was still so doing at the commencement of the suit, and at the time of the trial.
The suit was for an injunction, and not for damages; and looking to the complaint for allegations of acts of the appellee in which he was still engaged, we find the pleading quite obscure and uncertain and, to some extent, evasive. It is, however, capable, when when construed most strongly against the pleader, of being taken as charging that the appellee was engaged in the business of conducting at said city a secondhand store and of buying and selling secondhand goods, being the owner or part owner of the store and business and goods, but carrying on the business in the name of another person named, who either had no real interest or was only a part owner. This seems to have been the view of the complaint taken by the parties on the trial, wherein the appellant sought to prove such
prove that he was not an owner or a part owner, but was an employé working for weekly wages for another person who was the owner of the second-hand store and business, to whose orders as employé the appellee was subject. The court manifestly regarded the evidence as sufficiently establishing the position so taken by the appellee on the trial. The proof, therefore, failed to correspond with the allegations of the complaint, as so construed; and for this reason we cannot say that the finding was not sustained by sufficient evidence, for the plaintiff must recover only upon some definite theory shown in his complaint. He cannot proceed upon one theory, and recover upon a substantially different one. A meaning consistent with reasonableness should be ascribed to the language of the contract, if it will admit thereof, and with such meaning, if fairly attributable, the contract should be enforced.
The first thing is to ascertain the intention of the parties, and in seeking it the whole contract should be considered, the several parts of which should be regarded as having been intended to be in harmony with each other and as having been included to subserve a consistent purpose. The nature of the transaction and the character of the interests to be protected may be considered, and the situation and business of the parties and their relation to each other may be ascertained, and the court may properly put itself by means of evidence in the point of view occupied by the parties when they made the contract, not for the purpose of changing the contract as expressed in writing, but for the purpose of enforcing it according to its true intent. See Merica v. Burgett (Ind. App.) 75 N. E. 1083. Considering the language of the restraining provision before us in connection with all other portions of the contract, and looking from the standpoint of the parties as seller and buyer of the stock in trade and business of a second-hand store in the city where the seller with his family had resided for many years and continued thereafter to reside, where in the language used by the appellant in his pleading, the appellee for several years before the sale to the appellant "was engaged in buying and selling second-hand goods and conducting a second-hand store," we think the provision that the appellee agreed "not to engage in the business of conducting a second-hand store or to buy or sell second-hand goods in" that city, taken in the ordinary sense of the language in such a connection, may be regarded as meaning that the appellee should not resume what he was thus quitting by going into business as he had been in it, and thus competing by his own rival business with the business of the second-hand store which he was selling. There is no reason to suppose that more than this was in the minds of both the contracting parties. If more had been
intended, and if it had been the purpose to restrain the appellee from taking, of another proprietor conducting another second-hand store, employment at periodical wages, without any ownership of the goods or commission on business done or interest in profits or losses, it may be supposed that ordinarily something to such effect would have been inserted; and it is an intention consistent with the ordinary meaning of the language that must be sought.
Language used by a physician or lawyer or other person who has sold out merely the business of exercising his personal skill might be sufficient to restrain him from taking employment which when used of a person who sold out the goods and business of a mercantile establishment would not be regarded as restraining him from taking employment from another merchant. The court will not, for the purpose of extending the restraint, imply a meaning which cannot reasonably be regarded as within the intention of both the parties. We need not decide whether such additional restraint, preventing the appellee from taking employment, if fairly within the meaning of the parties, would be reasonable, and consistent with public policy.
(38 Ind. A. 617)
STEVENS et al. v. WOODERSON. (No. 5,811.)
Where a wife separated from her husband, but they were not divorced, and subsequently he and a woman with whom he lived deeded his land, the wife not having known that her husband was the owner of the land and that he was attempting to transfer, and the grantee not having relied on anything said or done by the wife, she was not estopped from asserting her dower right.
[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Dower, § 99.]
Appeal from Circuit Court, Starke County; H. A. Logan, Special Judge.
Action by Almira J. Wooderson against Dora A. Stevens and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.
Burson & Burson, for appellants. Geo. W. Beeman and Rich & Rich, for appellee.
ROBINSON, C. J. Some time in 1882 Thomas P. Wooderson at South Bend, Ind., secured a divorce from his wife, Phoebe, and afterwards, on October 10, 1882, at Niles, Mich., was married to appellee, Almira J. Wooderson, and they lived together at South Bend as husband and wife until in November, 1885, when they separated. They were never divorced. Some time between November, 1885, and August, 1886, Thomas P. Wooderson was in Iowa, and while there married Mary Wooderson. He was divorced from her in
Starke county, Ind., October 24, 1888, by decree of the Starke circuit court. In November, 1888, in Starke county, he married Matilda Harkins. They were divorced by decree of the Starke circuit court on January 17, 1894. On January 29, 1894, they were remarried in Starke county, and were again divorced by decree of the Starke circuit court June 5, 1894. In April, 1894, Thomas P. Wooderson went to Kentucky, and a short time prior to July 13, 1894, he returned to Starke county with Ettolia Wooderson, a woman whom he held out to be his wife, and who had a marriage certificate dated "the fore part of April, 1894," that they had been married in Kentucky. Wooderson had his place of residence continuously in Starke county, Ind., from November, 1885, to August, 1894. He died in Ohio in 1896. On August 4, 1894, Thomas P. Wooderson and Ettolia as his wife, executed to appellant, as Dora A. Stevens, their warranty deed for certain real estate in Starke county, which includes the lands in controversy, which deed was recorded August 9, 1894, and for all the lands conveyed appellant paid $1,200. For 24 years last past appellee has lived continuously at South Bend, and had not visited Starke county prior to the commencement of this action, and has not executed, or joined in,' any conveyance for the land in controversy, and has never received any part of the proceeds from sales of land of Thomas P. Wooderson. Additional facts are set out in the finding, authorizing the conclusions drawn, that appellee is the widow of Thomas P. Wooderson, owns in fee the undivided onethird of the land, and is not estopped from. asserting her interest therein.
The second paragraph of appellant's answer, which undertakes to plead facts that would estop appellee from claiming title, and to which a demurrer was sustained, is bad, if for no other reason, because of its failure to show that appellee knew after her husband left her in 1885 that he was the owner of real estate in Starke county, and that he was selling and attempting to transfer it. Neither does the paragraph allege that appellant relied upon anything that was said or done by appellee, and that she was induced thereby to take the deed, but alleges that she was induced to accept the conveyance from Thomas P. and Ettolia Wooderson because the public records disclosed that the title was in Thomas P. Wooderson, and because of the "general reports in the town of Knox and neighborhood and the appearances and actions of the parties, whereby she was led to believe, and did believe, that the said Wooderson was the legal husband of the said Ettolia, who signed said deed as his wife." The rule is thus stated in 2 Pom. Eq. (2d Ed.) § 812: "Whatever may be the real intention of the party making the representation, it is absolutely essential that this representation, whether consisting of words, acts, or silence, should be believed and relied upon as the in
ducement for action by the party who claims the benefit of the estoppel, and that so relying upon it, and induced by it, he should take some action. The cases all agree that there can be no estoppel, unless the party who alleges it relied upon the representation, was induced, to act by it, and, thus relying and induced, did take some action."
We cannot disturb the finding upon the evidence. Taking all the evidence, the court could properly conclude that appellee was not estopped from asserting title to the land. This suit was brought in 1904, and it is found as a fact that appellee had no knowledge that Thomas P. Wooderson was conveying real estate, and had no knowledge, until a short time prior to the beginning of this action, that he had at any time owned the lands in question. The evidence discloses that from 1882 to 1894, in so far as Wooderson was concerned, the matrimonial bureau was in perfect working order, and that during those years the divorce machine was working with faithful regularity, except that some time between 1885 and 1888 it failed to register, and again in 1894, when it seems to have registered late. It is true appellant was misled into believing that when the deed was made Ettolia was the lawful wife of Thomas, but she was not relying upon anything that appellee had said or done. It was generally reputed in the neighborhood that they were husband and wife, but it seems this had at one time been doubted by a committee of women who visited the couple and requested to see the marriage certificate. Appellant testified that she knew Ettolia Wooderson; that at or about the time the deed was made she had a conversation with Ettolia; that Ettolia exhibited to the witness her marriage certificate; that witness remembered the marriage certificate stated that Thomas P. and Ettolia were married at West Liberty, Ky., the "fore part of April, 1894," "along in the spring of 1894"; that while they were negotiating for the purchase of the land the witness heard that Wooderson had obtained a divorce from Kate Harkins; that she heard it from Mr. Wooderson himself; that her husband examined the records in relation to the land and told her what the records showed. So that it seems there was some doubt in appellant's mind at the time the deed was made as to whether Ettolia was the lawful wife of Thomas. And at that time the records of the Starke circuit court disclosed that Thomas P. was not divorced from Matilda after the second marriage with her, until June 5, 1894, which was subsequent to the date which appellant says the certificate showed his marriage with Ettolia. The evidence shows, and the court finds, that from the time Wooderson put aside appellee and married Mary, and continuously until the deed was made, he resided in Starke county, and that he never was divorced from appellee.
(38 Ind. A. 612)
BURTON et al. v. CARNAHAN et al. (No. 5,795.)
(Appellate Court of Indiana. Division No. 2. Oct. 10, 1906.)
WILLS ESTATES DEVISED-RULE IN SHELLEY'S CASE.
Where a testator gave a life estate in certain property to his wife, remainder to his daughter to be by her held during her life, and at her death to vest in her bodily heirs forever and in fee simple, and in case of her death without issue living to her brother and sisters equally and the descendants of such as may be dead, the provision regarding the daughter's death not leaving children surviving her refers to her death during testator's life, and having survived him, she took a vested remainder on his death under the rule in Shelley's case.
[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, §§ 1171-1176, 1372-1378.] Appeal from Circuit Court, Gibson County; Oscar M. Welborn, Judge.
Action by David M. Burton and others against Thomas J. Carnahan and others to quiet title to real estate. From a judgment for defendants, the plaintiffs appeal. Affirmed.
Jno. H. Miller, Jas. W. Westfall, Luther Benson, and Lucius C. Embree, for appellants. Thos. Duncan and L. T. Shanner, for appellees.
COMSTOCK, P. J. Action to quiet title to real estate. Alexander Burton died July 25, 1898, testate, the owner of the real estate in controversy, leaving, as his only heirs at law, his widow, Mary E. Burton, and five children, the appellants David M. Burton, Martha A. Sokeland, Mary A. Ahleman and and Hettie Hettie B. Niekamp, and one Amie I. Burton. The widow died April 11, 1903, and on August 12, 1903, the daughter, Amie I., married the appellee Carnahan. She died March 21, 1904, leaving her husband, but no issue or descendants surviving her. The record presents for decision, but one question; that is: What interpretation shall be placed upon the will of said testator? The only parts material to the matter in dispute, are the first and sixth items. The first item gives to the widow a life estate in the real estate in question. Item 6 is as follows: "It is my will and desire, and I so desire, that upon the death of my wife, the following part of my real estate so devised to my wife as above set out shall go to my daughter, Amie I. Burton, to be by her held during her natural life, and no longer, and, at her death, the same to go to and vest in her bodily heirs forever and in fee simple, to wit: The northwest quarter of the northeast quarter of section 16, township 3, south, range 9 west; the same being forty acres more or less. In case the said Amie I. Burton should die without issue of her body living, then, and in that case, said land so devised to her shall go to and vest in her brother and sisters equally and the descendants of such as may