to prove either demand or notice in order to make out a prima facie case for recovery. We are of opinion that the plaintiff in error was such a guarantor. It was held in Champion v. Griffith, 13 Ohio, 228, and afterwards approved in Robinson v. Abell, 17 Ohio, 36, that the mere indorsement upon a note of a stranger's name in blank is prima facie evidence of guaranty; there being no proof that his indorsement was made at the time of the making of the note. This presumption, it is true, may be overcome by parol evidence that a different agreement was intended. Oldham v. Broom, 28 Ohio St. 52; Kelley v. Few, 18 Ohio, 441; Bright v. Carpenter, 9 Ohio, 139; Champion v. Griffith, supra; Robinson v. Abell, supra. But the evidence as disclosed by the record shows that Castle's name was not put upon the notes at the time of their execution, or before they were drawn, and so he could not be charged as an original promisor. He was a stranger to the paper, his name not being thereon, at the time it was first offered to Rickly in part payment for the real estate. Not then being in the chain of title,-having no ownership in the notes,-he could not, in the capacity of indorser, vest title thereto in an indorsee. Matheny, the payee, was at the time in possession of and the sole owner of the notes, and was the only person competent, as an indorser, to enter into the contract implied in the act of indorsement, namely, that he had a good title to the instruments. As an indorser, he did not transfer the paper to Castle, who might, in turn, indorse it to pass title, but Matheny, by indorsement, vested title directly in Rickly, with no indorsee intervening. Rickly, however, demanded other security than a recourse to those who were parties to the paper, and therefore required that Castle, a stranger to the paper, should place his name upon its back, and thus add strength and credit to it, and render it more easy of circulation. Castle, in signing his name under that of the payee and indorser, assumed the obligation of a guarantor, and did not contract to pay the notes, if dishonored, only upon condition that they would be duly presented for payment at maturity, and due notice would be given to him of the dishonor. The rule, as laid down by Judge Story, is that if, subsequently to the time when the note is made, a party indorses it, not being a regular indorsee from or under any of the antecedent parties, he will be deemed a guarantor, if there be a sufficient consideration. Story, Prom. Notes, § 133.

The guaranty of the plaintiff in error was not dependent on any condition or contingency expressed in, or implied from, the terms of his contract. In legal effect, it was as absolute and unconditional as if he had written on the back of each note: "I guaranty the payment of the within note, "-words held in Clay v. Edgerton, 19 Ohio St. 549, to be an absolute and unconditional guaranty, and which rendered it unnecessary to aver or prove either demand or notice, in order to make out a prima facie case for recovery. As said in Neil v. Trustees, etc., 31 Ohio St. 15, "a breach of the agreement of the guarantor results from the non-payment of the debt." There being no condition, as regards presentment or notice, implied in the terms of such a guaranty, the guarantor must inquire of his principal, or take notice of his default, at his peril. By such guaranty, the guarantor is not made a party to the note, and his contract, unlike that of an indorser, is governed by the rules of the common law, and not by those peculiar to the law-merchant. "It is an undertaking to do a certain thing, in a certain specified event. The event is a default in the payment of the bill or note by the parties. When this happens, the liability of the guarantor, by the terms of his guaranty, is complete." Story, Prom. Notes, (7th Ed.) 623, note by Thorndike.

In accordance with the foregoing considerations, we are of opinion that the judgment of the district court should be affirmed. Judgment accordingly.

L

(108 Ind. 7)

RICE v. CITY OF EVANSVILLE.

(Supreme Court of Indiana. October 16, 1886.)

1. MUNICIPAL CORPORATION-NEGLIGENCE IN THE PLAN OF A SEWER-ERRORS OF JUDGMENT.

A municipal corporation is liable for negligence in devising the plan of a sewer, as well as for negligence in executing the plan, but it is not liable for a mere error of judgment.1

2. TRIAL-GENERAL VERDICT-ANSWERS OF JURY TO INTERROGATORIES.

A plaintiff who has the burden of proof cannot have a judgment on the answers to interrogatories, where the general verdict is against him, unless all the facts essential to a recovery are found in the answers, and there is an irreconcilable conflict between the answers to the interrogatories and the general verdict.

3. SAME-SPECIAL VERDICT-GENERAL VERDICT.

Where the answers to interrogatories returned by the jury with a general verdict are contradictory, the judgment must go upon the general verdict.

4. WATERS AND WATER-COURSES-WATER-COURSES DEFINED-RAVINE.

Ravines through which surface water occasionally runs are not natural watercourses, within the meaning of the law. To constitute a natural water-course, there must be a bed and banks, and evidences of a permanent stream of running water. Appeal from Vanderburgh circuit court.

J. E. Williamson, for appellant. Jas. B. Rucker, for appellee.

ELLIOTT, J. The appellant seeks a recovery against the city of Evansville for injuries to his property caused by overflows, which he charges resulted from the wrongful and the negligent acts of municipal authorities. The general verdict was for the appellee, and with it the jury returned answers to interrogatories submitted to them.

It is found by the jury, in answer to special interrogatories, that there was no negligence in devising the plan of the sewers, or in constructing them; and, as it is to these sewers that the appellant attributes his injury, he cannot recover solely upon the ground that the sewers were of insufficient capacity. A municipal corporation is responsible for negligence in devising the plan of a sewer, as well as for negligence in carrying the plan into execution, but it is not responsible for mere errors of judgment. If the inadequacy in the size of a sewer is owing to the omission to exercise ordinary skill and care in planning and performing the work, the municipal corporation is liable; but, if the inadequacy of the sewer is attributable to a mere error of judgment, there is no liability. City of North Vernon v. Voegler, 103 Ind. 314; S. C. 2 N. E. Rep. 821; City of Crawfordsville v. Bond, 96 Ind. 236; City of Evansville v. Decker, 84 Ind. 325; S. C. 43 Amer. Rep. 86; Cummins v. City of Seymour, 79 Ind. 491; S. C. 41 Amer. Rep. 618; Weis v. City of Madison, 75 Ind. 241; S. C. 39 Amer. Rep. 135; City of Indianapolis v. Huffer, 30 Ind. 235. The controlling question in cases where the municipal corporation is sought to be made liable for injuries from overflows is, was there negligence on the part of the municipal corporation in devising the plan of the sewer, or in carrying it into execution? for if there was no negligence, there is no liability, although an error of judgment may have caused the corporate authorities to provide a plan for a sewer of inadequate capacity. There may possibly be cases where the court could say, as a matter of law, that the inadequacy of the sewer was such as in itself to constitute negligence; but, however this may be, it is very clear that, with the general verdict and the special answers of the jury against the appellant, the court cannot declare that the city was guilty of negligence in this instance.

It is contended that the facts found by the jury show that the city wrongfully obstructed a natural water-course, by constructing a culvert of insufficient size, and that, where a natural water-course is obstructed, the corpora

1 See note at end of case.

tion is liable for resulting injuries, although it may not have been guilty of negligence. Upon the strength of this argument, the appellant claims that he is entitled to a judgment on the special findings; but we cannot uphold this claim, for if it were granted that there was a natural water-course, and that a culvert was constructed of insufficient size, still there can be no recovery, because all the facts essential to a recovery are not found, and because the answers are not absolutely irreconcilable with the general verdict. It is found that there was no negligence, and that the culvert is of less capacity than the water-course was, but how much less is not found. The record thus exhibits the finding: "Question. How much less capacity has the sewer than the water-course? Answer. Don't know; there was no evidence on that point."

In the face of the general verdict, and in view of the fact that the burden of proof was on the appellant, it cannot be asserted that his case is made out, for it may well be that the capacity of the sewer was so little different from that of the natural water-course as not to perceptibly obstruct the flow of water. As against the general verdict, it cannot be presumed that there was a material obstruction of the water-course. Nor does it appear from the answer that the culvert caused the overflow. For anything that appears, the overflows may have occurred more often before the construction of the culvert than before. Nor does it appear that the incapacity of the culvert was the proximate cause of the overflow of the appellant's property, and it is well settled that it must appear that the wrong of the defendant was the proximate cause of the injury which is alleged as the cause of action. Cincinnati, etc., Co. v. Hiltzhauer, 99 Ind. 486.

It is the rule that a special verdict must state all the facts essential to a recovery, and that nothing can be supplied by intendment. Dixon v. Duke, 85 Ind. 434; Pittsburgh, etc., Co. v. Spencer, 98 Ind. 186; Pittsburgh, etc., Co. v. Adams, 105 Ind. 151; S. C. 5 N. E. Rep. 187; Redelsheimer v. Miller, 8 N. E. Rep. 447. It is also the settled rule that, if facts are not found in a special finding, they will be presumed, as against the party who has the burden of proof, not to have been proved. Mitchell v. Colglazier, 106 Ind. 464; S. C. 7 N. E. Rep. 199; Krug v. Davis, 101 Ind. 75. If these are the rules where there is no general verdict, much stronger is the reason for the rule which obtains in cases where there is a general verdict adverse to the party who asks a judgment on the special finding of the jury. Where there is a general verdict against the appellant, certainly neither presumption nor intendment in his favor can be made for the purpose of awarding him a judgment. Baltimore, etc., Co. v. Rowan, 104 Ind. 88; S. C. 3 N. E. Rep. 627. The facts found by the jury in this case, even if there were no general verdict against appellant, would not warrant a judgment in his favor on the ground assumed in the argument we are here discussing, and, with the general verdict confronting him, it is legally impossible for him to succeed. The plaintiff who has the burden of proof, in a case where a general verdict is against him, is in a much worse situation than his adversary; for all the facts essential to a recovery must appear in the answer of the jury, and they must be irreconcilable with the general verdict, while in the case of the defendant all that need appear is enough to defeat the plaintiff's case, and make a reconciliation between the general verdict and the answers of the jury impossible.

It is also contended by counsel with much earnestness and ability that, taking all the facts found by the jury into consideration, the court can declare, as matter of law, that the city was guilty of negligence; but with the general verdict, and some of the answers of the jury, adverse to the appellant, this cannot possibly be done. Where a plaintiff asks a judgment on the special findings notwithstanding the general verdict, he will fail, unless all the findings are favorable to him; for, if some are favorable and some unfavor

able, he cannot escape the force of the general verdict. Redelsheimer v. Miller, supra; Davis v. Reamer, 105 Ind. 318; S. C. 4 N. E. Rep. 857; Hereth v. Hereth, 100 Ind. 35, and cases cited; Indiana Car Co. v. Parker, Id. 181, see page 198.

Applying these settled principles, to the case before us, it is quite clear that judgment cannot be awarded the appellant, on the answers to interrogatories, on the ground that they show negligence on the part of the city. It has long been the law of this state that, for consequential injuries resulting from the grading of streets in a careful and skillful manner, the municipal corporation is not liable. Macy v. City of Indianapolis, 17 Ind. 267; Weis v. City of Madison, supra; City of Kokomo v. Mahan, 100 Ind. 242, and cases cited, page 245.

So far, then, as any injury resulted from the grading of the streets, no claim can be successfully urged against the city, although it may have greatly increased the flow of surface water along the property of the appellant.

While it is the law that a city is not responsible for consequential injuries resulting from the careful and skillful grading of its streets, still it is liable if it undertakes to collect the water in one channel, and is negligent in devising the plan, performing the work, or providing an outlet, where one is made necessary by its own act. A municipal corporation is not, however, bound to undertake the work of providing sewerage or drainage; but, if it does enter upon the work, it is liable for negligence in devising the plan, and in doing the work. Weis v. City of Madison, supra, and cases cited; City of Logansport v. Wright, 25 Ind. 512.

In this case there is evidence supporting the appellant's theory that there was negligence in devising the plan of the sewer, as well as in doing the work; but there is also evidence to the contrary, and we must accept that as credible on which the jury acted. Binford v. Adams, 104 Ind. 41; S. C. 3 N. E. Rep. 753; Union School Tp. v. First Nat. Bank, 102 Ind. 464; S. C. 2 N. E. Rep. 194; Gathright v. Burke, 101 Ind. 590; S. C. 1 N. E. Rep. 194; Julian v. W. U. Tel. Co., 98 Ind. 327; Cain v. Goda, 94 Ind. 555; Arnold v. Wilt, 86 Ind. 367.

Accepting as trustworthy the evidence which influenced the jury, we must hold that there was no negligence. We cannot agree with counsel that the evidence shows, without conflict, that the city wrongfully collected the water in one channel, and poured it upon the appellant's property, for on this point there is a material conflict.

We agree with counsel as to the legal proposition that a city is liable if it undertakes to collect water in one channel, and wrongfully pours it upon another's land. Lipes v. Hand, 104 Ind. 503; S. C. 1 N. E. Rep. 871, and 4 N. E. Rep. 160; City of Evansville v. Decker, 84 Ind. 325; S. C. 43 Amer. Rep. 86; Weis v. City of Madison, supra; Cairo, etc., Co. v. Stevens, 73 Ind. 273; Templeton v. Voshloe, 72 Ind. 134, and cases cited. While we agree with counsel as to the legal proposition, we think the case is not within the rule, for the reason that the evidence fairly shows that the city attempted to convey the water past the property of the appellant, but was not guilty of negligence, although the officers of the city may have erred in judgment as to the size of the sewer or culvert. In this state of the evidence, we must respect the verdict of the jury upon this point.

We cannot concur in counsel's view that the evidence shows, without conflict, that the city undertook to build a culvert across a natural water-course. We need not decide whether there is or is not an absolute liability, irrespective of the question of negligence, in cases where a municipal corporation undertakes to build a sewer, and it is therefore unnecessary for us to comment upon the cases of Perry v. Worcester, 6 Gray, 544; Earl v. De Hart, 12 N. J. Eq. 280; Palmer v. Waddell, 22 Kan. 356; and other like cases referred to by the appellant. There is some evidence tending to prove that there was a natural

water-course, but there is evidence to the contrary, and we cannot attempt to reconcile the conflict. Ravines through which surface water occasionally flows are not natural water-courses, within the meaning of the law. "To constitute a natural water-course, there must be a bed and banks, and evidences of a permanent stream of running water." Weis v. City of Madison, supra; Hoyt v. City of Hudson, 27 Wis. 656; S. C. 9 Amer. Rep. 473; Howard v. Ingersoll, 13 How. 381-427.

We do not think the evidence in this case so clearly shows that there was a natural water-course as to make it our duty to reverse on the evidence. Judgment affirmed.

NOTE.

MUNICIPAL CORPORATIONS-NEGLIGENCE IN CONSTRUCTION OF SEWERS. A municipal corporation is not liable for damages occasioned through the exercise of judicial or discretionary functions of its officers, Johnston v. District of Columbia, 6 Sup. Ct. Rep. 923; Siefert v. City of Brooklyn, (N. Y.) 4 N. E. Rep. 321; City of North Vernon v. Voegler, (Ind.) 2 N. E. Rep. 821; Field v. Town of West Orange, (N. J.) 2 Atl. Rep. 236; Williams v. City of Grand Rapids, (Mich.) 26 N. W. Rep. 279; but is liable for negligence in the exercise of such functions, City of North Vernon v. Voegler, (Ind.) 2 N. E. Rep. 821; German Theological School v. City of Dubuque, (Iowa,) 17 N. W. Rep. 153; or they are exercised on a plan which substantially involves the taking of private property for public use, Siefert v. City of Brooklyn, (N. Y.) 4 N. E. Rep. 321; Field v. Town of West Orange, (N. J.) 2 Atl. Rep. 236; or one that is manifestly dangerous or unsafe, Gould v. City of Topeka, (Kan.) 4 Pac. Rep. 822.

It is not bound to construct drains or culverts so as to protect the property of individuals, Siefert v. City of Brooklyn, (N. Y.) 4 N. E. Rep. 321; Gilluly v. City of Madison, (Wis.) 24 N. W. Rep. 137; or to provide means for carrying off surface water, Henderson v. Minneapolis, (Minn.) 20 N. W. Rep. 322; Allen v. City of Chippewa Falls, (Wis.) 9 N. W. Rep. 284; but if it does construct them in a negligent or unskillful manner, or is negligent in its management of them, it is liable in damages, Johnston v. District of Columbia, 6 Sup. Ct. Rep. 923; City of Ft. Wayne v. Coombs, (Ind.) 7 N. E. Rep. 743; Stanchfield v. City of Newton, (Mass.) 7 N. E. Rep. 709; Morse v. City of Worcester, (Mass.) 2 N. E. Rep. 694; Gilluly v. City of Madison, (Wis.) 24 N. W. Rep. 137; Levy v. Salt Lake City, (Utah,) 1 Pac. Rep. 160.

But in California it is held that a city is responsible in damages for flowing sewerage on the lands of a private owner, even if it was part of a plan that the sewers should be left open at the places through which their contents flowed onto such lands. Juzix v. City and County of San Francisco, 7 Pac. Rep. 416; Lehn v. City and County of San Francisco, 4 Pac. Rep. 965.

See, also, Smith v. Gould, (Wis.) 20 N. W. Rep. 369.

(108 Ind. 276)

FLETCHER and others v. SHARPE and others.

(Supreme Court of Indiana. November 20, 1886.)

BANKS AND BANKING-INSOLVENCY-GENERAL DEPOSIT OF TRUST FUNDS-RIGHTS OF TRUSTEES-PREFERRED CREDITORS.

Where a general deposit of a trust fund is rightfully made in bank as part of the trust estate, the relation of debtor and creditor is created between the bank and the trustees, and the latter are not entitled to be preferred over other creditors on the bank becoming insolvent.

Appeal from Marion superior court.

J. P. Baker and F. Winter, for appellants. Harrison, Miller & Elam, for appellees.

MITCHELL, J. Prior to the fifteenth day of July, 1884, Fletcher & Sharpe were engaged as partners in conducting a general banking business in the city of Indianapolis. Having conducted the bank to insolvency, they procured the Marion superior court to take the administration of its affairs, by mutually consenting that one of the judges of that court should appoint a receiver, and take possession of its assets. Through its receiver the court continues in the administration of the insolvent concern.

On the twenty-ninth day of September, 1884, while the affairs of the bank were thus in the custody of the court, Mahlan H. Floyd and Jay G. Voss, ad