64 NORTHEASTERN REPORTER. for further proceedings, with leave to reform COMSTOCK, C. J. (dissenting). This action was commenced by appellee William Baker against the appellants and appellees Thompson & Bland on three promissory notes, each in the sum of $533.33. The appellants were sued as makers, and appellees Thompson & Bland as indorsers. All of the appellants filed a general denial. All but House filed a plea of non est factum. A trial resulted in a finding and judgment for plaintiffs in the sum of $1,309.67 against the appellants. No judgment was rendered against Thompson & Bland, appellees. Overruling appellants' motion for a new trial is the only error assigned. The reasons given for a new trial are: The finding of the court is contrary to law, is contrary to the evidence, and is not sustained by sufficient evidence. The complaint avers that the notes were made payable to the order of Thompson & Bland at the First National Bank of Vincennes, Ind., and that before maturity they were, for a valuable consideration, assigned by said payees, by indorsement thereon, to the plaintiff Baker. Counsel for appellants call attention to the fact that the notes in suit were introduced in evidence without proof of the signatures of the appellants, and claim that for that reason alone, inasmuch as the plea of non est factum made such proof necessary before their introduction, there is not sufficient evidence to support the judgment. The record fails to show that there was any objection made to the introduction of these notes without the preliminary proof of the signatures thereto. Such proof would therefore be deemed to have been waived. However, each of the appellants testified to having signed them. The failure to make the proof at the proper time could not have harmed appellants. As passed upon by the trial court, the evidence showed that the appellants had signed the notes. The three notes in suit are exactly alike, except as to the time of their maturity. Printed blanks were used, with the date, amount, and place of payment in blank. There was a blank space in each of the printed forms on which said notes were written, between the printed word "at" and the printed word "bank"; also a blank space after the word "bank." The blanks then, before being filled out, read as follows, viz.: $. (Ind. It is shown by the uncontradicted testimony of the appellants that, when they signed these notes, the words "First National," before the word "bank," and "Vincennes, Indiana," after said word, were not in the notes, and that they did not authorize any one to insert them. One of the appellants selling the horse, where the note was paytestified that he asked Gilligan, the agent able. He said it would probably be sent to the Vincennes bank. Another testified that able, and he said he supposed it would be at he asked Gilligan where the notes were payBicknell. Another appellant Sprinkle) testified: "I asked [without stating (Robert W. he said: 'Never mind, Mr. Sprinkle. I will of whom] where the notes were payable, and attend to that.'" They all saw the word "bank" and the blank spaces, but neither of the other appellants at the time of signing the notes or at any time made any statement or request, or gave any direction, as to where the notes were to be made payable. There was no agreement or understanding Appellants do not testify that they did not that they were not to be payable at a bank. intend to give a note payable at a bank. In Marshall v. Drescher, 68 Ind. 359, suit was brought upon a promissory note made payable in a bank in this state, against the maker. The evidence showed that, when the note was signed and delivered to the payee by the defendant, no place was designated where the same should be made payable; that after the words "payable at" a blank was left in said note; that said blank was not scored or marked out when the note was executed, and when the payee was in the act of leaving the house of appellant he asked the defendant where he must leave said note for payment, and the defendant replied at the First National Bank at Spencer; that afterwards, fendant, said payee altered said note by inwithout the knowledge or consent of the deserting therein, after the word "at," the following, "The First National Bank at Spencer, Indiana," and then, before the said note was due, it was sold and transferred to one William M. Moore, who was an innocent purchaser for value, who had no notice of the alteration made by the payee of said note, and that there was nothing upon the face of said note to indicate that the same had been altered or tampered with; that subsequently, and after the note became due, the said Moore sold and transferred the said note to plaintiff, who took the same with the full knowledge of the defense set forth in the answer. The expression of the court in that case seems to so directly apply to the case before us that we quote as follows: "It is plain that the above note had all the elements of commercial paper, negotiable by the law merchant, at the time the maker executed it, except filling the blank left to insert the name of the place at which it was made payable. The note, upon its face, imports that it was intended to have been made ne gotiable, or the waiver of protest and notice would not have been inserted. The payee had implied authority, from the condition of the note, and from the statement of the maker to leave it 'at the First National Bank at, Spencer' for payment, to fill up the blank in the note as he did. We think the finding shows that the note was valid in the hands of the payee, notwithstanding the alteration, and, being so valid, was valid in the hands of the appellee, whether he had notice of the alteration or not. The following authorities will support the rulings of the court below: Hereth v. Bank, 34 Ind. 380; Riley v. Schawacker, 50 Ind. 592; Cornell v. Nebeker, 58 Ind. 425; Gothrupt v. Williamson, 61 Ind. 599; Woolen v. Ulrich, 64 Ind. 120; Noll v. Smith, Id. 511, 31 Am. Rep. 131." In Gillasple v. Kelley, 41 Ind. 158, 13 Am. Rep. 318, a blank was left after the words "payable at," and before the words "bank at Frankfort," in which the name of a certain bank was inserted. The court held it to be obvious, not only from the face of the note, but from the evidence of the appellee, that the maker of the note in question intended to make the same negotiable, and governed by the law merchant. The case at bar cannot be distinguished from Marshall v. Drescher, supra; Gillaspie v. Kelley, supra. In neither of the foregoing cases was the bank where payable named. Appellee gave value for the notes, upon their face governed by the law merchant, before maturity, and without notice of any alteration therein. When executed, they contained provisions usually set out in notes payable in bank, and not usually contained in those not payable in bank. When executed, they were incomplete commercial paper. There is nothing, as we are advised by the record, about the notes themselves, or the circuinstances attending their sale, to excite suspicion in the mind of a reasonably cautious person. The notes were in the usual form; no interlineations to indicate that the words fixing the place of payment were written at a different time or in a different handwriting than the balance of the written portion of the note. There is nothing to indicate that the indebtedness of which the notes were the evidence was not due, or that the notes were obtained by artifice or fraud. It is a proposition of common acceptance that, when one of two parties must suffer, the loss should be sustained by him who has given the confidence, and thus enabled the fraud to be perpetrated. In the case before us there was sufficient space left to complete the notes by making them negotiable by the law merchant. When purchased be for maturity in good faith, they were perfect In form. The act of the makers enabled the payees to put the paper in the form in which it was purchased. It appears that appellants made payments on each of the notes in suit. They were indorsed on the notes, and were presumably so paid before the transfer. Upon the first note they paid $333.34; upon the second, $183.32; upon the third, $316.66. Ap pellee Baker testified that he bought the notes before their maturity, paying therefor $825; that at the time they were worth a little over $900, that the words "First National" and "Vincennes, Indiana," were in each of them when he bought them; that he had no knowledge of any change having been made in them. The law of this state, as announced by the supreme court and this court, with reference to the purchase of negotiable paper before maturity, is that, if there is anything about the paper itself, or the circumstances attending its presentation for discount, calculated to excite suspicion in the mind of a reasonably prudent person, it is the duty of the purchaser to make inquiry of its genuineness; otherwise not. Tescher v. Merea, 118 Ind. 586, 21 N. E. 316; Bank v. Leonhart, 126 Ind. 206, 25 N. E. 1099; Hankey v. Downey, 3 Ind. App. 325, 29 N. E. 606; Bank v. Berry, 21 Ind. App. 261, 52 N. E. 104; Pope v. Bank, 23 Ind. App. 210, 54 N. E. 835. As set out in the complaint, the notes are governed by the law merchant. Without the name of the bank, they are not. A change of a nonnegotiable note which makes it negotiable by the law merchant is a material one. Had the parties intended that the note should be made payable in bank, there would be no question as to the right of the payee to have made them so payable. There was no expressed intention on the subject. The intention of the parties was a question of fact to be determined by the court upon the evidence. The trial court, in view of the blanks left in the notes, the absence of instructions, and the subsequent payments made upon them, was not without evidence sustaining the conclusion that appellant impliedly consented to the addition alleged to have been made. I cannot agree with the majority opinion. The judgment should be affirmed. (30 Ind. App. 631) PULSE et al. v. OSBORN. 1 WILLS-CONSTRUCTION-NATURE OF ESTATE- 1. A will devised real estate to testator's daughter, but directed that if the daughter died before testator's grandchildren, or either of them, the property should go to the surviving grandchildren. Held, that the daughter took a determinable fee, subject to be devested by her death before that of all of testator's grandchildren, in which case, if two or more grandchildren survived the daughter, they acquired the property in common, under Burns' Rev. St. 1901, § 3341, providing that devises to two or more persons shall pass estates in common unless it is expressed in the will that they shall hold in joint tenancy; the word "surviving," as used in the will, having reference to the death of the daughter. 2. One holding a determinable fee in land, which will be devested on her death prior to the death of other designated persous, is not an 1Rehearing denied. Transfer to Supreme Court denied. Occupying claimant, within Burns' Rev. St. 1901, § 1087, entitling an occupying claimant to pay for improvements made in good faith; and therefore her executor cannot recover for improvements made in good faith, on her death prior to the death of the remainder-men. 3. The allowance of compensation for improvements in partition between tenants in common is not dependent on the occupying claimant's act, or other statute; but compensation will be allowed, if justice so demands, even though the improvements were made before the tenancy was created. 4. An answer by one of two tenants in common in an action to partition the property, setting up that his guardian, who had been in the possession of a determinable fee therein, had made improvements on the land with money of the ward, but which does not aver that such investment was unlawful or unauthorized, or that the guardian's estate was insolvent, or that the ward had not been repaid, was insufficient, against demurrer, to show the right of the ward to compensation for such improve ments. 5. Where in partition the court directed the sale of the land, and that the proceeds be held in trust till the death of one of the parties, and then paid to the survivor,-the order being based upon a partially incorrect construction of the will, the remedy was by a motion to modify the same. Appeal from circuit court, Decatur county; Douglas Morris, Judge. Partition by John E. Osborn, as guardian of Dwight Charlton, against John G. Pulse, as guardian of Culver M. Hillis, and others. From a judgment for plaintiff, defendants appeal. Affirmed. James K. Ewing and Charles H. Ewing, for appellants. Hugh Wickens and John E. Osborn, for appellee. ROBY, J. Appellee, guardian, filed his complaint against appellants. A demurrer for want of facts was overruled. It is alleged in the complaint: That Culver M. Hillis, appellee's ward, and Dwight Charlton, who, with his guardian, John G. Pulse, was made a defendant, were owners in fee simple, as tenants in common, of lot 17 in block 3 in Ireland's addition to the city of Greensburg; each owning an undivided onehalf thereof. That said lot was indivisible, and that they both "are holding title" by virtue of that portion of the will of Catherine Black, deceased, which reads as follows, to wit: "First. I give and bequeath to my daughter, Tillie A. Dills, my house and lot in which I now live, subject to the conditions hereinafter stated. And I further direct that in case of the death of my daughter, Tillie A., before the death of my grandchildren, or either of them, all of her legacies given in any item of this will shall revert or descend to my surviving grandchildren, or either of them, if the other is dead, to the exclusion of her surviving husband, if he survives her. If either legatee dies, his or her portion shall go to the survivor." That said Hillis and Charlton were and are the only grandchildren of said Catherine Black. That said Tillie A. Dills was then deceased. That Judson Dills, as adminis trator of her estate, and in his individual capacity, was claiming an interest adverse to that of said Hillis and Charlton, and has no interest therein. That the lot mentioned in item 1 of the will is the "same lot seventeen above described." Wherefore partition was prayed. If the parties named were tenants in common, the right to have partition was conferred by the statute (section 1204, Burns' Rev. St. 1901). Whether they were such tenants depends upon the provisions of the will applied to existing facts. The daughter, Tillie A. Dills, took, upon the death of the testatrix, Catherine Black, a fee in the real estate described, subject to be defeated in event of her death occurring during the lifetime of any of the testatrix's grandchildren. The estate taken by her was more than a life estate. Such estate ends with the life upon which it depends. This one might have been of perpetual continuance. It was therefore a fee. It was liable to be determined by an event expressed in the instrument creating it. It was therefore a determinable fee. 1 Washb. Real Prop. §§ 167, 168; Outland v. Bowen, 115 Ind. 150153, 17 N. E. 281, 7 Am. St. Rep. 420; Greer v. Wilson, 108 Ind. 322-326, 9 N. E. 284. Had the grandchildren died before the daughter, nothing in this land would have descended to their heirs. They had, until her death, no vested right. Their interest consisted of a naked possibility. That the possibility has since become an actuality in no wise affects the character of the estate devised. A controlling purpose of the testatrix seems to have been that the full benefit of this provision should be secured by any single grandchild surviving the daughter, Tillie A. Dills. "If either legatee dies, his or her portion shall go to the survivors," taken with the rest of the clause, means no more than a reaffirmance of this intent. Words of survivorship generally are considered to refer to the death of the testator. Corey v. Springer, 138 Ind. 506-510, 37 N. E. 322. Where there is an express or implied intention to fix another time, such intention will be given effect. Corey v. Springer, 138 Ind. 510, 37 N. E. 322; Wood v. Robertson, 113 Ind. 323, 15 N. E. 457. The provision under consideration, according to the natural use of language, had reference to the death of Tillie A. Dills, and not to the death of the testatrix. Coveny v. McLaughlin, 148 Mass. 576, 20 N. E. 165, 2 L. R. A. 448; Denny v. Kettell, 135 Mass. 138: Wood v. Bullard, 151 Mass. 324, 25 N. E. 67, 7 L. R. A. 304. The testatrix is not presumed, in the absence of a clear expression to that effect, to have attempted to indefinitely restrain the alienation of real estate. Her intention was to secure its enjoyment to the grandchildren surviving the daughter. The moment the contingency upon which they were to take occurred, the estate vested in the testatrix's grandchildren, Hillis and Charlton (Page, Wills, 670, 671), and they became tenants in common thereof. This construction accords with the spirit of the instrument and the policy of the law, which favors tenants in common, and the speedy distribution of land. Section 3341, Burns' Rev. St. 1901; Johnson v. Johnson, 128 Ind. 93, 27 N. E. 340. The demurrer to the complaint was properly overruled. Judson Dills, administrator of the estate of Tillie A., by a separate answer, and also jointly with the other defendants, asked that he be repaid sums expended by his decedent in the improvement of said real estate. It is alleged that the value of the same was enhanced by said improvements to the amount of $1,300. Demurrers were sustained to these answers. They show that Tillie A. Dills at the time the improvements were made held said property under the provisions of the will above quoted, and she is therefore presumed to have had full knowledge of the conditions therein contained, and of her own title. She was not an occupying claimant, but the actual owner, of the land. Section 1087, Burns' Rev. St. 1901, enabling an occupying claimant, who has in good faith made valuable improvements upon land of which he is afterwards found not to be the rightful owner, to recover the value of said improvements, does not apply. In making these improvements she acted with her eyes open, and at her own peril. Richwine v. Presbyterian Church, 135 Ind. 80-85, 34 N. E. 737. She was not a life tenant, but, so far as the right to recover the value of improvements made by her (the estate having passed from her) is concerned, the same rule applies that would apply had she been a life tenant. That which would have been in the one case always certain was in the other always possible. She used the property, and, while she was not bound to make improvements, having made them, the present owners cannot be required to compensate her or her representatives therefor. Miller v. Shields, 55 Ind. 71; Parish v. Camplin, 139 Ind. 1, 15, 37 N. E. 607; Clark v. Middlesworth, 82 Ind. 240. The principle is illustrated by Bryan v. Uland, 101 Ind. 477, 1 N. E. 52, in which purchasers from a childless second wife, of real estate of which at her death her husband's children by the prior marriage became forced heirs, were not permitted to recover on account of improvements made by them; they having knowledge of the fact that she was a childless second wife. Money invested in such improvements by Tillie A. Dills was voluntarily invested. No claim of other title than that conferred by the will is set up, and there was no error in the ruling upon the demurrer to these answers. The separate answer of Pulse, guardian of Dwight Charlton, avers that in April, 1897, Tillie A. Dills, deceased, was the guardian of said Charlton, and occupying the property described in the complaint; that the deceas ed, Catherine Black, had departed life before said time; "that said Tillie A. Dills, with the moneys of this defendant's ward, made lasting and valuable improvements on said real estate, of the value of one thousand dollars, and the value of said real estate was enhanced to that extent; that afterwards, on the day of October, 1898, the said Tillie A. Dills, mother and guardian of this defendant, died intestate." The allowance of compensation for improvements in partition suits arises from the desire of the court to be just, and is not dependent upon the occupying claimant's act or any other statute. Martindale v. Alexander, 26 Ind. 104, S9 Am. Dec. 458; Alleman v. Hawley, 117 Ind. 532, 20 N. E. 441; Peden v. Cavins, 134 Ind. 494, 34 N. E. 7, 39 Am. St. Rep. 276; 3 Pom. Eq. Jur. § 1389. At the time the improvements are alleged to have been made, Hillis and Charlton were not tenants, nor in possession, of the real estate. That fact does not of itself preclude relief, if it is made to appear that in good conscience, and as a matter of fair dealing, the plaintiff should recompense the defendant on account thereof. Freem. Coten. (2d Ed.) § 505; Carver v. Coffman, 109 Ind. 547, 10 N. E. 567; Robinson v. Dickey, 143 Ind. 205, 42 N. E. 679, 52 Am. St. Rep. 417. The answer avers that the value of the real, estate was enhanced by the improvements. It is not averred that they were necessary, nor that they were made by the directions or with the knowledge or consent of the plaintiff. Whether a co-tenant is, on partition, where a sale of the premises has been had, entitled to be recompensed to the actual amount of present value thus added to the estate and fund, is a question not necessary to the decision of this case, and therefore not decided, although it has been argued. As bearing upon the proposition, see Ward v. Ward's Heirs (W. Va.) 21 S. E. 746, 29 L. R. A. 449, 52 Am. St. Rep. 911, and note; Moore v. Thorp, 16 R. I. 655, 19 Atl. 321, 7 L. R. A. 731, and note; Cooter v. Dearborn, 115 Ill. 509, 4 N. E. 388; Alleman v. Hawley, 117 Ind. 532, 20 N. E. 441; Peden v. Cavins, supra; Lane v. Taylor, 40 Ind. 495; Harry v. Harry, 127 Ind. 91, 26 N. E. 562; Elrod v. Keller, 89 Ind. 382; Freem. Coten. § 511; Tied. Real Prop. § 68. It is sufficient to decide the case that the answer under consideration fails to show such equity. It does not aver the making of improvements by the plaintiff. It does aver the making of improvements by his guardian, the then owner, with his money. It does not aver that such investment was unlawful or unauthorized, or that the guardian's estate is insolvent. No refusal or inability to make good the ward's fund is shown, nor, indeed, that the ward has not been repaid the sums so used. The judgment directs the sale of the real estate described, and that the fund derived therefrom be held in trust until the death of one of the co-tenants, and that it then be paid to the survivor. This order is based upon a partially incorrect construction of the item of the will above referred to. The error does not go to the extent of making the complaint bad, by restricting the plaintiff to the theory of that pleading adopted by him. Appellants should have moved to modify the judgment. Evans v. State, 150 Ind. 651, 50 N. E. 820; W. U. Tel. Co. v. State, 147 Ind. 274, 45 N. E. 473. No such motion was made. The evidence is not brought to this court. motion for a new trial was made, and the only errors assigned are based upon the rulings upon the demurrers. No The judgment is affirmed, but, in the mutual interest of the parties, leave is given to move for its modification within 30 days after certification to the circuit court. (66 Ohio St. 136) BECKMAN et al. v. GARRETT. (Supreme Court of Ohio. April 22, 1902.) DISCHARGE OF EMPLOYÉ JUSTIFICATION— DEFAULT IN DUTY. To justify the discharge of an employé before the expiration of the term of employment, it is suficient for the employer to show that the employé was guilty of a default in duty whose natural tendency was to injure his business, and actual injury thereto need not be shown. (Syllabus by the Court.) Error to circuit court, Cuyahoga county. Action by A. P. Garrett against Beckman & Co. Judgment for plaintiff was affirmed by the circuit court, and defendants bring error. Reversed. Garrett brought suit in the court of common pleas to recover from Beckman & Co. damages alleged to have been sustained by him as the result of their breach of a written contract of employment whereby they had employed him for five years, from March 1, 1894, to March 1, 1899, at a stipulated salary, and he had agreed to serve them for that period; his obligation being expressed in the following terms: "In consideration of the foregoing, the said Albert P. Garrett agrees to, and does hereby, enter into the employment of the said Beckman & Company upon the terms hereto set forth, and agrees to devote all his time and attention to the interest of said parties of the first part." The plaintiff, admitting the performance of the contract until September 30, 1896, alleged that upon that date the defendants, in violation of its terms, and without his consent, terminated the employment. The answer admitted the execution of the contract upon which the plaintiff counted, and further alleged "that the plaintiff did not give to the business and interests of the defendants the time and attention required to be given by him thereto under the terms of said agreement, on the 18th, 19th, and 28th days of September, 1896, on which said days the plaintiff, without the consent and against the wishes of the defendants, and without any cause, excuse, or justification therefor, did wholly absent himself from the defendant's place of business and from his said employment, and during the whole of said days did utterly fail and neglect to perform the duties of his said employment, in utter disregard of the terms of his said agreement, and to the great injury and inconvenience of these defendants, on account whereof these defendants did on said 30th day of September, 1896, discharge the plaintiff from their said employment, as hereinbefore admitted." By the reply the allegations of the answer were denied generally. Upon the trial, without objection, so far as the record discloses, the plaintiff first introduced his evidence. Three hundred and forty-seven pages of the printed record are required to present to us the evidence, and other things which were recited to the jury in the form of evidence. From the evidence it appears, with much repetition, that the plaintiff was absent from the defendants' place of business on the days named in their answer. The plaintiff, in advance of the defendants' evidence, undertook to justify his absence by showing that it was in part for purposes consistent with his employment, and in part in consequence of illness. Evidence was introduced by the defendants to show that the absence was not for purposes consistent with his employment, nor on account of illness. There was no evidence to show the effect of the plaintiff's absence on the business of the defendants. With enough amplification to make it entirely intelligible to the jury, the following propositions were given for their guidance in determining the plaintiff's right to recover: First, if the plaintiff's absence from the defendants' place of business was with reasonable excuse or justification, it did not, in law, warrant the defendants in terminating the contract of employment, and, to defeat a recovery, it was incumbent on the defendants to show not only the absence, but also that it was without reasonable excuse; second, that to defeat a recovery the defendants were bound to show not only that the plaintiff was absent without reasonable excuse, but, further, that his absence occasioned actual injury to their business. A verdict was returned for the plaintiff, which was followed by a judgment, which the circuit court affirmed. Meyer & Mooney, for plaintiffs in error. Sanders & Wilson, for defendant in error. SHAUCK, J. (after stating the facts). The correct rule as to the obligation of the plaintiff under his contract of employment appears to have been given to the jury in the general terms of the charge. And the instruction that the defendants, in order to justify a rescission of the contract before the expiration of the time, were required to show the unjustifiable absence of the plaintiff from their place of business, seems to be unobjectionable. But it is insisted that the defendants |