of the order or proceeding." When a road has been used as a public highway for 20 years or more, its location may be changed by a proceeding under section 6774 et seq., Burns' Rev. St. 1901, though it has never before been the subject of any proceeding before the board of county commissioners. Whether or not the same be true of a public highway located and established by dedication, but used as such for a less period than 20 years, the case before us does not require us to decide.

Judgment affirmed.

(29 Ind. App. 592)

HILDRUP v. TOWN OF WINDFALL CITY et al.

(Appellate Court of Indiana, Division No. 1. Oct. 15, 1902.)

SIDEWALKS-STREET IMPROVEMENTS-OB

STRUCTIONS-TREES-REMOVAL.

1. A tree 24 inches in diameter standing 2 feet within the sidewalk, and an obstruction to travel thereon, is subject to removal by the city in the course of proposed improvements within the proper street limits.

Appeal from circuit court, Tipton county; W. W. Mount, Judge.

Action by Jefferson R. Hildrup against the town of Windfall City and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

A. C. Carver, E. A. Mock, and Walker & Foster, for appellant. W. O. Dean and Dan Waugh, for appellees.

HENLEY, P. J. This was an action against the appellees, the town of Windfall City and William Minnick, Samuel Gaddis, and Samuel Dingle, contractors, to enjoin said contractors from removing a shade tree in front of appellant's residence and within the boundaries of the street which said contractors were improving under employment by said city. The complaint was in four paragraphs. The validity of the proceedings leading up to the order of improvement and contract is not attacked. The court made a special finding of facts, and stated conclusions of law thereon. The court's conclusions of law are made the basis of appellant's fourth specification of error, and this alleged error is the only one discussed by appellant's counsel. The question, then, for this court to determine, is, do the findings of fact sustain the theory of the second and third paragraphs of appellant's complaint? The first and fourth paragraphs of complaint were held insufficient by the trial court. The averments of the second paragraph of complaint are, in substance, that appellant is the owner of certain real estate fronting on the street which is to be improved, and that by reason thereof he owns the street to the middle line; that in front of his house is a large and beautiful shade tree, which is of inestimable value in protecting his house from the afternoon sun, and

that the removal of this tree would be an irreparable damage to appellant; that the board of trustees of said town adopted a plan for the improvement of the street in front of appellant's property which did not follow the line of the original street as it had existed for many years prior to the establishing of the present improvement; that the plan so adopted departed from the east line of the original street more than two feet toward the east at the point where the shade tree in controversy is situate, thereby bringing the tree within the line of the street to be improved; that, if the line of the street as originally laid out had been followed, the tree would have been left outside of the line of the proposed improvement. It is further alleged that the improvement could be made without the removal of the shade tree, and without injury to the sidewalk, and that the obstruction made by leaving the tree would leave sufficient room for the travel on the sidewalk. The prayer was that the appellees be perpetually enjoined from removing or in any way interfering with the tree in question. The third paragraph of complaint is substantially the same as the second paragraph. The further averments are that appellant was never given an opportunity to move the tree, and that, if given such an opportunity at the proper time of the year, the tree could be preserved; that the board of trustees of the town acted in bad faith in the location of the improvement, and is trying to wantonly and unnecessarily destroy the tree; that neither the contract for the improvement nor the specifications therefor provides for its removal. Without incumbering the Reports with a synopsis of the lengthy special findings of facts, we think it sufficient to say of it that two facts are clearly found, which are fatal to appellant's cause of action: First, it is found that the improvement was laid out upon and within the lines of the original street; second, that the tree in question stood more than two feet within the sidewalk, and was an obstruction to the travel thereon. The tree, as we gather from the special findings, is not "along the curb and between the roadway and sidewalk" (City of Richmond v. Smith, 148 Ind. 294, 47 N. E. 630), but is 26 inches within the sidewalk and is 24 inches in diameter. Appellant's neighbor would have as much right to maintain a stone post of equal size within the sidewalk as appellant has to maintain the tree in question. The evidence is not before us, and the finding of the trial court that the tree was an obstruction to the free use of the street is conclusive. That the common council of a city or a town board have the right to remove growing trees from a street in the improvement of a street, when the tree has become a nuisance therein, and its removal is necessary for the comfort and welfare of the public, cannot be disputed. Neither can it be disputed that, if a growing tree is an obstruction to the free use of the street,

Ind.)

it has become a nuisance and menace to the comfort and safety of the public. The streets of incorporated towns and cities belong to the public. From side to side and end to end they are for the public to use, and any permanent structure which encroaches upon a street that in any way impedes travel is a public nuisance, which can, by the proper proceedings, be abated. See State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Pettis v. Johnson, 56 Ind. 129; Elliott, R. & St. p. 478; Town of Lodoga v. Simms, 9 Ind. App. 15, 36 N. E. 159; Chase v. City of Oshkosh (Wis.) 51 N. W. 560, 15 L. R. A. 553, 29 Am. St. Rep. 898; City of Mt. Carmel v. Shaw (Ill.) 39 N. E. 584, 27 L. R. A. 580, 46 Am. St. Rep. 311. The sidewalk for the use of pedes'trians is a part of the public street. The proper authorities of incorporated towns and cities have complete control of the streets and their sidewalks for all lawful purposes. They cannot lawfully permit the streets, or any part of them, to be permanently obstructed, or temporarily obstructed for an unreasonably long time. What amounts to an obstruction is a question of fact. In the case at bar the trial court has found that the tree in question is a permanent obstruction to the public use and travel of a part of the street, and that its roots will render the sidewalk uneven, dangerous, and unsafe for public travel. The authorities cited by counsel for appellant are not controlling, because based upon dissimilar facts.

Judgment is affirmed.

(29 Ind. App. 614)

SMELSER v. PUGH.

over

ruled, and such ruling is the only error assigned. The cause proceeded to judgment against appellant.

In the cross-complaint it is averred: That appellant and appellee had been partners, and, by the terms of the partnership, were to share equally in the profits and losses. That for some time prior to the dissolution the business had been conducted at a loss. That the firm had become deeply involved in debt, was practically insolvent, and that, by reason of continued losses and impaired credit, the business of the partnership could no longer be day carried on at a profit. That on the

of September, 1899, to the end that said business be closed out, they entered into negotiations, and mutually agreed that said partnership should be dissolved; that an appraisement and inventory of all partnership property should be made; that appellee should purchase the appellant's interest; and that, in consideration and payment therefor, appellee would assume and agree to pay off appellant's share of the indebtedness, which was onehalf,-an amount equal to one-half of the appraised value of the firm's assets. That, by the terms of settlement, appellee was also to pay one-half of the known indebtedness, and any amount remaining in excess of said total indebtedness, as then known, should be equally divided and paid between them. That such appraisement and inventory were made, and amounted to $1,104.35, making the interest of each of said parties $552.18. That the total indebtedness then known, and as shown by the inventory, aggregated $1,133.77, exceeding the appraisement of the stock $29.42. upon the completion of said appraisement and inventory it was mutually agreed that said partnership should be dissolved by appellee purchasing appellant's interest in the business, in consideration of appellee agreeing not only to pay his share of said indebtedness, but also agreeing to pay appellant's share thereof, in an amount equal to one-half of the appraised value of the partnership property, to wit, the sum of $552.18. That at that time it was further mutually agreed that the excess of

That

the known liabilities over the appraised value, as well as any indebtedness not then known, should be paid out of the proceeds collected from accounts due the firm, and that any excess thus collected should be divided equally between them. That, by the terms of said settlement and dissolution, appellee was to become the sole owner of all the firm's property and business, and no money was to be paid directly to appellant for his interest in the firm's property, but that the sole consideration for the transfer by appellant to appellee was the agreement by appellee to assume and pay the indebtedness of appellant in said business, in the sum of $552.18, and the said appellee to pay his share of the indebtedness, as above stated. That it was then agreed between them that a receipt or memorandum in writing, containing the terms of said agreement, should be entered into and signed by them, and pursuant thereto a memorandum of sale or receipt was reduced to writing and signed. (This memorandum is filed as an exhibit to the cross-complaint, and is set out in full above.) That by mutual mistake and inadvertence of the parties, and wholly without negligence upon their part, and by the mistake and inadvertence of the scrivener who wrote the same, the said memorandum of sale or receipt was so written as to read that appellee was to pay to appellant for his interest in said partnership business the sum of $552.18, and, in addition thereto, assume all known indebtedness of the firm, when in truth, and as matter of fact, it was mutually agreed and understood and intended by the parties to so frame and write said agreement that the only consideration to be given by appellee to appellant for his interest in the partnership property was the agreement of appellee to pay appellant's share of the firm's indebtedness, to the amount of $552.18, equaling the share of appellant's interest in the partnership business and property, as shown by said inventory and appraisement, and the further agreement of appellee to pay his share of the partnership liability, and that said agreement was so mutually agreed upon and understood by the parties at the time. That, pursuant to said agreement as actually understood and in good faith accepted and subsequently construed by them, said partnership property was delivered to appellee, who entered into the performance of said agreement, and is ready, anxious, and willing to comply with the terms thereof. That, prior to filing the cross-complaint, appellee demanded of appellant that he correct said instrument of writing so as to comply with and express the true intention of the parties, which he wholly failed and refused to do. Prayer for reformation, etc.

The facts stated in the cross-complaint, the truth of which is admitted by the demurrer, make a strong case for reformation, and it only remains to determine if such facts are well pleaded. We will consider the objections to the cross-complaint urged by appellant.

Counsel for appellant argues that the crosscomplaint does not set out by copy the written contract upon which appellee's cause of action is based. It is sufficient answer to this to say that the cross-complaint does not purport to rest upon a written contract, but it does set out specifically what the contract between the parties was, and avers that the written contract which is the basis of appellant's action was the result of mutual mistake. That contract is made an exhibit to the cross-complaint, and becomes a part of it. In an action to reform a written instrument, it is necessary to set forth the terms of the original agreement, and also the agreement as reduced to writing, and point out with clearness wherein there was a mistake. Bank v. Judy, 146 Ind. 322, 43 N. E. 259,* and authorities there cited. These requirements are complied with in the cross-complaint.

It is next suggested that the cross-complaint is bad because two dates are left blank. There is no merit in this contention, for such omission cannot be reached by a demurrer, but by motion to make more specific.

Appellant also contends that the facts pleaded do not show that the mistake was mutual. The established rule is that equity will reform a written contract between the contracting parties whenever, through mutual mistake, or mistake of one of the parties, accompanied by fraud of the other, it does not, as reduced to writing, correctly express the agreement of the parties. Bank v. Judy, supra, and authorities there cited. There is no charge of fraud in this case, and, to uphold the cross-complaint, it must affirmatively state facts showing that the contract relied upon by appellant, and which appellee seeks to reform, was the result of mutual mistake and inadvertence. We do not see how it could be more clearly expressed than it is in the cross-complaint, for it is stated "that by mutual mistake and inadvertence of the parties, * * and by the mistake and inadvertence of the scrivener who wrote the same," the memorandum of sale or receipt was so written. We have before us in the cross-complaint a clear and succinct statement of the contract actually made, understood, and intended by the parties to be reduced to writing, and the agreement actually reduced to writing and signed by them. The material difference between the contract as actually made and agreed upon, and the one signed by the parties, is clearly distinguished, and as the demurrer admits these facts the conclusion necessarily follows that the mistake was mutual. See Keister v. Myers, 115 Ind. 313, 17 N. E. 161; Roszell v. Roszell, 109 Ind. 356, 10 N. E. 114; Baker v. Pyatt, 108 Ind. 61, 65, 9 N. E. 112.

It is further contended that the word "mistake," as used by the pleader, is the mere statement of a conclusion, and not the statement of a fact. This contention is not well

grounded, and finds no support in the authorities.

The next objection urged is that there are contradictory statements in the cross-complaint. We are unable to find any such statements that could be reached by demur

rer.

Appellant next insists that appellee is not entitled to be relieved from the contract signed by him, on account of his own negligence in failing to read it before signing it. We cannot believe that any question of negligence is presented by the facts pleaded. It is said in Pom. Eq. Jur. § 1376: "Equity has jurisdiction to reform written instruments in but two well-defined cases: (1) When there is a mutual mistake,-that is, where there has been a meeting of minds, actually entered into, but the contract, deed, settlement, or instrument, in its written form, does not express what was really intended by the parties thereto; and (2) where there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the remaining parties. In such cases the instrument may be made to conform to the agree ment or transaction entered into according to the intention of the parties." The supreme court, in the case of Bank v. Judy, supra, quoted approvingly the above. To the same effect, see Tied. Eq. Jur. § 507; Earl v. Van Natta (Ind. App.; decided Oct. 8, 1902) 64 N. E. 901. In the case of Walden v. Skinner, 101 U. S. 577, 25 L. Ed. 963, it was said "that where an instrument is drawn and executed that professes or is intended to carry into execution an agreement which is in writing or by parol, previously made between the parties, but which, by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates, the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement; the reason of the rule being that the execution of the agreements fairly and legally made is one of the peculiar branches of equity jurisdiction, and if the instrument intended to execute the agreement be, from any cause, insufficient for that purpose, the agreement remains as much unexecuted as if the party had refused altogether to comply with his engagement; and a court of equity will, in the exercise of its acknowledged jurisdiction, afford relief in the one case as well as in the other, by compelling the delinquent party to perform his undertaking according to the terms of it and the manifest intention of the parties." The case made by appellee in his cross-complaint comes squarely within the rule declared by the supreme court of the United States in the case from which we have quoted.

Counsel for appellant next urge that the cross-complaint is defective because it does not show how the mistake occurred. A careful reading of the cross-complaint dissipates this objection. As to what the contract ac64 N.E.-60

tually was, is set out by specifically stating all the facts, and what was mutually agreed between the parties. It is there stated that, by the mutual mistake and inadvertence of the parties and the scrivener, the contract sued upon by appellant was executed. This is sufficient.

The mistake charged in the cross-complaint was not one of law, as next contended by the appellant, but one of fact.

The contract relied upon by appellee is consistent with the situation and surroundings of the parties, while the contract relied upon by appellant, in the light of the facts pleaded, is both unconscionable and unrea sonable.

Judgment affirmed.

(172 N. Y. 619) MERCHANTS' NAT. BANK OF PLATTSBURGH v. BARNES et al. (Court of Appeals of New York. Oct. 21, 1902.)

COURT OF APPEALS-SUFFICIENCY OF EVIDENCE-REVIEW.

1. Where a verdict has some evidence to sustain it, which the jury has seen fit to credit, judgment entered thereon cannot be reversed by the court of appeals on the ground that the evidence seemed to such court unworthy of be lief; that power resting with the appellate division.

Appeal from supreme court, appellate division, Third department.

Action by the Merchants' National Bank of Plattsburgh against Erastus H. Barnes and others. From a judgment of the appellate division (52 N. Y. Supp. 786) affirming a judgment for plaintiff, and an order denying a new trial, defendant Barnes appeals. Affirmed.

Thomas F. Conway and John N. Blair, for appellant. L. L. Shedden, for respondent.

PARKER, C. J. A careful examination of this record leads us to doubt that justice has been meted out to the parties to this action. The learned counsel for the appellant has tried to persuade us that there is no evidence in support of this judgment, and hence that it may be reversed. But we cannot agree with that contention, for there is some evidence, which the jury has seen fit to credit, and, however unworthy of belief it may seem to this court, the power does not reside here to reverse the judgment on that ground. That power-one of the most important of all judicial powers, the exercise of which is absolutely necessary to the due administration of Justice has devolved upon the appellate division of the supreme court, which may and should, whenever a verdict or decision is clearly against the weight of evidence, influenced, perhaps, by an ill-advised public sentiment, by prejudice against a nonresident of the locality, or by manifest perjury, set it aside on that ground. This court is confined by the constitution to a re

view of questions of law, and as we do not find any erroneous rulings by the trial court in this record which will support a reversal, we must affirm the judgment, with costs.

GRAY, BARTLETT, HAIGHT, MARTIN, CULLEN, and WERNER, JJ., concur.

Judgment affirmed.

(172 N. Y. 259)

BANK OF MONONGAHELA VALLEY V. WESTON et al.

(Court of Appeals of New York. Oct. 7, 1902.)

COURTS OF APPEALS-REVIEW OF EVIDENCE-
LIABILITIES OF PARTNER-NOTE-
BONA FIDE PURCHASER.

1. The court of appeals has no power to review the question whether a verdict is supported by the evidence after unanimous affirmance of the judgment thereon by the appellate division.

2. Where a partner constantly used the firm name for the accommodation of others by indorsing notes in the name of the firm for purposes foreign to the partnership, his copartner, who did not stop such practice, and published no notice of the fact of the dissolution of the firm to the public or to parties who were giving credit to the firm name, was estopped from questioning the validity of a note bearing such indorsement, though made after the dissolution of the firm.

3. A bank is none the less a bona fide holder of a note because it discounted it at the rate of 7 per cent. per annum instead of 6 per cent., the legal rate, it being in evidence that such was its usual custom.

tions of law as appear upon the record, we must first know what the conceded or undisputed facts are, in order to apply the law to the exceptions taken at the trial. The plaintiff is a West Virginia bank that is seeking to collect in the courts of this state certain commercial obligations which it holds against parties residing here. The action is upon two promissory notes,-the first for $6,500, dated December 15, 1892, payable 4 months from date; and the other for $5,000, dated March 31, 1893, payable 30 days after date. Both notes were made by Edwin F. Curtis to the order of and indorsed by Weston Bros., a firm composed of three brothers, then extensively engaged in business, and of unquestionable financial standing and credit. The plaintiff discounted these notes for the maker at the rate of 7 per cent., paying to him the proceeds, and when due they were duly protested for nonpayment. The questions in the case arise solely upon the answer of Abijah Weston, a member of the firm that indorsed the paper, and who died subsequently to the joining of issue and after the case was decided in this court upon the former appeal. This appeal involves only his liability as one of the indorsers, or the liability of his estate, his executor having been substituted in his place as a defendant. His testimony, however, taken upon the former trial, including his acts and correspondence bearing upon the issues, appear in this record, and constitute an important feature of the case as it was submitted to the jury. The answer of this defendant, so far as it is

Action by the Bank of the Monongahela Valley against Charles Weston, executor of Abijah Weston, and others. From a judgment of the appellate division (71 N. Y. Supp. 1132) affirming a judgment in favor of defendant Weston, plaintiff appeals. Reversed.

C. S. Cary, for appellant. J. H. Waring, for respondent.

O'BRIEN, J. When this case was here upon a former appeal (159 N. Y. 201, 54 N. E. 40, 45 L. R. A. 547), we had to review exceptions taken by the plaintiff to a dismissal of the complaint at the trial. It now comes here in a different form, since there has been a verdict of a jury in favor of the defendants, that has been unanimously affirmed below. Therefore the question whether the verdict is supported by any evidence is not open to review in this court, but every other question of law properly raised at the trial is. It is quite impossible to peruse the record without being impressed with the difficulty of defending the judgment upon principles of natural justice, or even upon the most technical rules of law. While this court is confined by the constitution and the statute to the review of such other ques

3. See Bills and Notes, vol. 7, Cent. Dig. § 905.

this: That on the 3d day of January, 1892, prior to the making or indorsing of the notes in question, the firm of Weston Bros. was dissolved; that neither of the notes in suit was made, indorsed, or discounted in, about, or on account of the partnership business, or the winding up of its affairs, but that his brother William W. Weston, another member of the firm, after the dissolution, fraudulently indorsed the paper in the firm name at the request and for the accommodation of the maker, and without the knowledge, consent, or authority of the other members of the firm,-of all of which the plaintiff had notice when it discounted the paper. The issues or questions presented for trial upon the pleadings were these: (1) Whether the firm was in fact dissolved as to the plaintiff; (2) whether the plaintiff had any knowledge or notice of the dissolution when it took the paper; (3) whether the plaintiff was an innocent or bona fide holder of the paper within the law merchant.

The facts bearing upon these issues are undisputed and identical with the facts appearing in the record when the case was here on the former appeal. There was a formal paper executed by the three partners stating that the firm was dissolved on "this 5th day of January, 1892, by mutual consent," with a statement that the business