be used; (2) negligence in failure to instruct appellee as to the danger thereof; (3) negligence in failing to have the machine guarded. Counsel for appellant insist that there is no negligence charged by reason of not instructing the employé, because no necessity for such instruction is shown, and that the law of Indiana did not require the particular machine involved in this case to be guarded; that all three of the causes of action must be properly set out, and, unless this is done, the complaint is bad. This position is not tenable. "A plaintiff may allege more facts than are essential to constitute a cause of action, and in such case it is ordinarily held that he need only prove the substance of so many of them as constitute a cause of action to entitle him to recover, and the balance of them may be regarded as surplusage. Railroad Co. v. McCorkle, 140 Ind. 623, 40 N. E. 65, citing Long v. Doxey, 50 Ind. 385. It is stated in the case just cited: "When a cause of action depends on two or more facts, no proof short of proving the substance of each and every one of them will warrant a recovery; that is, if the cause of action consists of and depends on the establishment of three facts, and the proof only establishes two of them, the evidence is not sufficient to support the verdict. Railroad Co. v. Wynant, 134 Ind. 681, 34 N. E. 569; 2 Rice, Ev. pp. 660–663, c. 16." If we apply this rule to pleading as well as to the evidence, it will not make the complaint bad because the complaint set out three distinct causes of action.

At the time of the injury and of the bringing of this action under the statute it was

not assume the risk arising from the appellant's disregard of statutory duties.

It is claimed by appellant that the matter of guarding the machines of a factory is left to the discretion of the chief factory inspector, and that, as there is no allegation that he has not performed his duty, the presumption is that he did perform his duty, examined the machine, and found that it was not necessary that it should be guarded; therefore that there is no violation of the statute shown. We think this interpretation of the statute is erroneous. The statute makes it the duty of the employer to properly guard all dangerous machines, without reference to the direction of the inspector. To make the liability of the negligent employer to the injured employé depend upon the action or nonaction of the inspector, over whom the employé has no control, would be to take from the statute its most beneficent feature, and defeat the purpose intended. Rose v. King (Ohio) 30 N. E. 267, 15 L. R. A. 160; Willy v. Mulledy, 78 N. Y. 314, 34 Am. Rep. 536.

Counsel for appellant consider together three errors assigned, namely, the refusal of the court to peremptorily instruct the jury to return a verdict for the defendant; and the second and third causes represented for a new trial, to wit, that the verdict is contrary to law, and not sustained by sufficient evidence. Appellee lacked 24 days of being 15 years old when he was injured, and was engaged in his usual, ordinary work. He was a bright, intelligent boy, and had worked in the factory six months before he received his injury; had worked this machine

It is alleged that the unsafe condition of the machine was known to appellant and unknown to appellee. This was a sufficient allegation to rebut actual knowledge and to repel imputed knowledge. Railroad Co. v. Duel, 134 Ind. 156, 33 N. E. 355, and cases cited.

It is also urged against the complaint that the allegations show that the appellee was in the full possession of his faculties, and with a full understanding of the alleged dangerous nature of the machine he assumed the risk incident to its operation. He certainly knew it was without guards. If the action were based solely upon the employer's neglect to perform a common-law duty, or if there was no valid distinction between neglect of a common-law duty and the neglect of a specific statutory duty, the point would be well taken; but there is a distinction, and under the recent cases of Coal Co. v. Polland (Ind. Sup.) 62 N. E. 493, and Coal Co. v. Swaggerty (Ind. Sup.) 62 N. E. 1103, the appellee did 63 N.E.-16

of the time. He was put to work by his brother, whom he had seen operating the machine, who "just showed him how to bore, and told him they had to be bored in this way." There was no witness to the accident. Appellee's account is substantially as follows: "The machine had worked all right before, so far as I know. It worked up and down by foot treadle, in response to pressure of my foot. It was all right. It worked nicely, so far as I know. Had observed it closely for two months. Nothing to prevent my seeing machine in operation. Nothing to prevent seeing under and about it,-under the bit. Unless the bit caught my sleeve on the side and pulled it in, or my hand got under it, there was no way to get hurt, that I know of." He testified that his sleeve was not wide; was buttoned at the wrist; that it fit him just right; that the injury was to the left arm, above the elbow. If the machine had not bored properly, he would have seen it. "The machine went down when I had my foot on the treadle. Never saw it drop without motion of my foot. It never dropped down from weak spring." He also testified that "there was nothing difficult about it; nothing hard to understand about it. Can't see how I got hurt. Can't see how my

hand got up there. Arm got under the machine, don't know how. Had finished boring, and was passing the wood,-was taking it out from the machine to remove it,-and in taking it out got hurt. Was moving it to the right. When I got hurt, was watching where I was taking that thing away, and it got caught before I knew it. Was watching where I was taking the pieces of wood,-taking it to make room for another piece. Was not looking at the bit at the time the arm was hurt." The employment in appellant's factory of an infant 14 years of age is authorized under the act of 1899, supra. Appellee was familiar with the machine. The open character of its construction, the exposure of all its parts, his experience in its use, admonished him fully of the danger incident to its operation. Appellant could not have told appellee what he did not already know if he possessed the intelligence of ordinary

boys of his age. Although young, he was not inexperienced. He was competent to understand his work, and he therefore stood upon the footing of an experienced adult. There was no necessity for one working the machine to place an arm or hand under the bit, or to come in contact with it. Appellee says it worked all right. If there was defect, it should appear that such defect caused the injury. It does not so appear. Appellee testified that he was not looking at the bit when he received his injury. From his own testimony there seems to be no escape from the conclusion that appellee was guilty of contributory negligence.

As pertinent to and illustrative of the questions involved, we cite the following cases: Levey v. Bigelow, 6 Ind. App. 677, 34 N. E. 128; Becker v. Baumgartner, 5 Ind. App. 576, 32 N. E. 786; Stewart v. Patrick, 5 Ind. App. 50, 30 N. E. 814; Buckley v. Manufacturing Co., 113 N. Y. 540, 21 N. E. 717; Linch v. Manufacturing Co., 143 Mass. 206, 9 N. E. 728; Ciriack v. Woolen Co., 146 Mass. 182, 15 N. E. 579, 4 Am. St. Rep. 307; Crowley v. Pacific Mills, 148 Mass. 228, 19 N. E. 344; Probert v. Phipps, 149 Mass. 258, 21 N. E. 370; Coullard v. Tecumseh Mills, 151 Mass. 85, 23 N. E. 731; Tinkham v. Sawyer, 153 Mass. 485, 27 N. E. 6; Wilson v. Cotton Mills, 169 Mass. 67, 47 N. E. 506; Carbon Co. v. Jackson, 24 Ind. App. 390, 56 N. E. 862; Guedelhofer v. Ernsting, 23 Ind. App. 188, 55 N. E. 113; Lowcock v. Paper Co., 169 Mass. 313, 47 N. E. 1000; Morewood Co. v. Smith, 25 Ind. App. 264, 57 N. E. 199; Railroad Co. v. Tappenbeck, 9 Ind. App. 422, 36 N. E. 915; Shirk v. Railroad Co., 14 Ind. App. 127, 42 N. E. 656; Engine Works v. Randall, 100 Ind. 293, 50 Am. Rep. 798; Krenzer v. Railway Co., 151 Ind. 587, 43 N. E. 649, 52 N. E. 220, 68 Am. St. Rep. 252; Railroad Co. v. Tartt, 12 C. C. A. 625, 64 Fed. 830; Reynolds v. Railroad Co., 58 N. Y. 248; Wendell v. Railroad Co., 91 N. Y. 421; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286; Crown v. Orr, 140 N. Y. 450, 35 N. E.

2. An execution against a husband and another was levied on the undivided interest of the husband in certain land owned by him and his wife in joint tenancy, and the land was sold by the sheriff, and a certificate of sale issued. The husband and wife sued to enjoin the sale, and it was decreed that the husband and wife were tenants by entireties, and the undivided interest of the husband not subject to sale on execution. Prior to an appeal the wife purchased the husband's interest, taking a deed without covenants of title; but on appeal there was a reversal on the ground that the husband and wife held in joint tenancy, whereby his interest was subject to the execution, and a deed to the husband's interest was executed by the sheriff. Held, that the wife could not recover of her husband and his co-debtor on the ground of contribution, inasmuch as she could not be regarded as having been a surety for them, or either of them, or as having been personally liable, by herself or with others, for the payment of the indebtedness on which the land was applied, and the incumbrance not having been also upon property of defendants which was released by the sale.

3. Plaintiff, having taken her conveyance with full knowledge of all the facts, and accepted a deed without covenants of title, could not recover on the ground of mistake, inasmuch as any mistake was one of law.

Appeal from circuit court, Randolph county; A. O. Marsh, Judge.

Suit by Laura B. Hancock against Daniel S. Wiggins and another. From a decree in favor of defendants, complainant appeals. Affirmed.

Thompson & Focht, for appellant. S. A. Canada and Engle, Caldwell & Parry, for appellees.

BLACK, J. The appellant, Laura B. Hancock, in her complaint against the appellees, Daniel S. Wiggins and John T. Burroughs, a demurrer to which for want of sufficient facts was sustained, showed, in substance, that in 1877 Isaac R. Howard and Isaac N. Gaston recovered a judgment in the court below against the appellees for $830; that the appellant was then the wife of the appellee Wiggins, but thereafter they were divorced,

and she was again married, “and her name is now Hancock"; that after the rendition of the judgment, and while she was the wife of appellee Daniel S. Wiggins, his father, Samuel Wiggins, conveyed to said Daniel and the appellant, as husband and wife, certain real estate described (83 acres), in Randolph county; that the plaintiffs in said judgment caused execution thereon to be issued, and to be levied on the undivided one-half of the real estate, claiming the right to take such undivided one-half thereof as the property of the appellee Wiggins, and in 1886 the sheriff levied the execution on the one-half interest in value of the real estate, as the property of the appellee Wiggins, and proceeded, by direction of the judgment plaintiff, to advertise the real estate for sale under execution, and on the 8th of June, 1886, advertised the same for sale on the 3d of July, 1886, and on the last day mentioned sold such undivided one-half in value of the real estate, which was bid off by the judgment plaintiffs in satisfaction of the execution, and the sheriff executed his certificate of purchase to the purchaser; that after said levy of the execution the appellee Wiggins and the appellant, as husband and wife, believing that his said interest was not subject to sale on the execution, on the 28th of June, 1886, in the court below, filed their complaint, by which they sought to enjoin the sheriff and the judgment and execution plaintiffs from selling the real estate on the execution, but, before service could be had, the day of sale arrived, and the interest in the real estate was sold as aforesaid; that thereupon by their supplemental bill the appellee Wiggins and the appellant set up and alleged that the sheriff's sale and the issuing of the certificate of purchase cast a cloud upon their title to the real estate, and demanded that their title be quieted as against the sheriff and the purchasers at the sheriff's sale; that issues were joined upon the complaint and supplemental complaint in that suit, upon the trial of which the court found for the plaintiffs in that cause (the appellee Wiggins and the appellant), and found that the real estate was their property, and that they, as husband and wife, owned it as tenants by entire ties, and that said one-half interest was not subject to the debts of the appellee Wiggins, and was not subject to sale on the execution, and could not legally be sold by the sheriff, and that the sheriff's sale and certificate cast a cloud upon the title of the plaintiffs therein, and the court in said cause decreed that the title of said plaintiffs be quieted, etc. It was further alleged that the defendants in that cause did not pray an appeal at the time of the rendition of the judgment therein, or give notice of appeal, or of their intention to appeal, and the appellant was led to believe, and did believe, that the cause would not be appealed, and that the defendants in that cause would not appeal therein; that the appellant relied upon that judgment, and

the effect thereof, and believing that she and the appellee Wiggins owned said real estate, and had the legal, fee-simple title in and to the same, and that the real estate was not subject to the debts of the appellee Wiggins, and could not be taken on judgment or execution against him, she, after the rendition of the judgment so quieting the title purchased from the appellee Wiggins his undivided interest in the real estate, and in consideration thereof paid him the full value of that interest, and he thereupon conveyed his interest in the real estate to her; that long thereafter Howard and Gaston, the defendants in that suit, in 1887, took an appeal therein to the supreme court of Indiana, which appeal was pending until December 19, 1893, when that court reversed the judgment of the circuit court, and decided that the undivided interest of appellee Wiggins in the real estate was subject to sale on the execution as aforesaid, and ordered the circuit court to sustain the demurrer to the complaint in that suit, etc.; that afterward, on the 16th of November, 1894, the circuit court made and entered its finding and judgment pursuant to the judgment and opinion of the supreme court, and sustained said demurrer, and adjudged and decreed that the interest of the appellee Wiggins was subject to sale, etc., and that the sale and the certificate of purchase were legal and valid, and that the purchasers thereby became the owners of the undivided one-half of the real estate; that after the rendition of the decision of the supreme court the sheriff, on the 26th of February, 1894, executed to the holder of the certificate, Isaac R. Howard, a sheriff's deed for the undivided one-half interest in the real estate. It was also alleged that after the sale by the sheriff as aforesaid, and after the decree of the circuit court so quieting the title, the appellee Wiggins and the appellant, as husband and wife, and as owners of the real estate as tenants by entireties, as so decreed by the circuit court, held, used, occupied, and enjoyed the real estate until the conveyance by Wiggins to the appellant, and after that conveyance the appellant held, used, occupied, and enjoyed the real estate as her own until the execution of the sheriff's deed to Howard, when Howard took possession and control of the undivided one-half interest in the real estate to the exclusion of the appellant, whereby she lost her said real estate; that, by reason of her real estate being so taken, the debt of Wiggins and Burroughs was paid and satisfied, and the judgment against them was paid and canceled; and that they are thereby justly indebted to her in the sum of, etc. Wherefore, etc.

The cause in the supreme court to which reference is made in the complaint is Thornburg v. Wiggins, 135 Ind. 178, 34 N. E. 999, 22 L. R. A. 42, 41 Am. St. Rep. 422; the ground of the reversal of the judgment of the circuit court being that the real estate was conveyed to the appellee Wiggins and

his wife, the appellant, in joint tenancy, and they therefore were not tenants by entireties, and the undivided interest of the husband was subject to sale on execution under the judgment against him and the appellee Burroughs. The complaint now before us does not show that the appellant and the appellee Wiggins were joint tenants; but it shows that under the judgment of the supreme court, and the sale and conveyance in accordance therewith, the appellant was deprived of the undivided one-half interest in the real estate which the appellee Wiggins conveyed or sought to convey to her, and that it was applied upon the indebtedness of the appellees.

The complaint must be construed most strongly against the appellant, and the deed of conveyance of the husband to the wife, therefore, must be regarded as a deed without covenants of title, its execution transferring to the appellant merely the existing interest of the grantor; and accordingly it is agreed by counsel in argument that it was a quitclaim deed. The undivided one-half of the real estate owned by the appellee Wiggins had been subjected to sale as his property under the execution upon the judgment against him and the appellee Burroughs, and the sheriff's certificate of sale had been issued to the purchaser, before the appellee Wiggins conveyed without covenants to the appellant his interest in the real estate, which was the interest of one for whose real estate another holds a valid sheriff's certificate of sale on execution. The real estate was not redeemed from the sheriff's sale, and the sheriff's deed had been executed before the commencement of this action. The date of the conveyance to the appellant is not alleged, nor is the amount paid by her stated, but it is alleged to have been the full value of his undivided interest in the real estate. At most, he then had no more than the right of one who has not redeemed his land from a sheriff's sale on execution. it may properly be said that real estate conveyed to her was subjected, after her purchase thereof, to the satisfaction of the judgment against the appellees, it cannot be said that she in any manner paid the judgment debt at the request, express or implied, of the judgment debtors, or that any right of action exists in her favor against them for money paid at their instance or request. If a grantee accepts a deed without sufficient covenants against encumbrances, he cannot recover for money paid in removing the encumbrances, unless paid under such circumstances as will raise an implied assumpsit. To entitle one to recover for money paid for the use of another, the latter's express or implied request therefor must be shown. "It is not sufficient to prove merely the defendant's liability to a third person, and the plaintiff's discharge of such responsibility. It is necessary to establish that the plaintiff did so at the instance of the defendant,

If

or that the act was subsequently recognized by him." Woodford v. Leavenworth, 14 Ind. 311, and authorities cited.

Assuming, as we will, without critical consideration of the matter, that the title to the undivided one-half of the real estate was conveyed to the appellant, and that this real estate, the title to which was in her, was subjected to the payment of the prior encumbrance thereon,-the view taken by the appellant, and the one most favorable to her that could be taken of her situation,-it is not a case of a grantee who has paid off an encumbrance on the real estate, and has thereby saved the land from subjection to satisfaction of the debt secured by the lien, but it is a case where the grantee suffered the encumbered property to be applied to the discharge of the debt; she having no covenant of her grantor against such a result.

Counsel for appellant propose the theory that the facts stated constitute a cause of action for contribution. The appellant cannot, in any view of the case, be regarded as having been a surety for the appellees, or either of them, or as having been personally liable, by herself or with any other person, for the payment of the indebtedness on which the land was applied; and the encumbrance enforced against the real estate in question is not shown to have been an encumbrance, also, upon property of appellees, or either of them, which was released, and the lien on which was discharged, by payment by the appellant. The land conveyed to her was primarily bound for the debt on which it was applied in payment. She did not pay a debt for which she and the appellees, or either of them, were together personally liable; and her land was not applied in payment of a debt for which it, with the property of the appellees, or either of them, was alike encumbered, being a debt which, as between her and the appellees, or either of them, was apportionable, each being, as to the others, bound for a share only of the debt. She, indeed, is not seeking to recover a portion or portions or a share or shares, only, of what she paid, or to equalize a common burden, but is seeking to be reimbursed for the value of the land conveyed to her, upon the assumed ground that she was entitled to have the land exonerated from the encumbrance by the appellees. If she had not permitted the land to be applied upon the judgment debt (whether or not it fully satisfied it is not clearly shown), but had redeemed the land, and had completely paid off the encumbrance, she might have kept it alive, perhaps, by way of protection against a subsequent encumbrance or title. See Pom. Eq. Jur. §§ 791 et seq., 1211, 1212, and notes. See, also, Springer v. Foster (Ind. App.) 60 N. E. 720. But the facts here do not involve such a question. There is no allegation of fraud, and any mistake involved in the case was a mistake of law, merely. The appellant took her conveyance with full

Where it is al

knowledge of all the facts, and accepted a deed without covenants. Whatever sum she paid, she cannot be heard to claim that she did not receive all that she paid for; and she must be regarded as having in contemplation at the time the encumbrance for the disIcharge of which the land was sold, and as having purchased with knowledge of its primary liability thereunder, and of the limited interest conveyed to her, and of the legal effect of the deed of conveyance executed to her. Whatever her hope or belief concerning the appeal, she must be regarded as having taken the conveyance with knowledge of the law applicable to the facts, with which she was fully acquainted, as it might be declared by the supreme court. In Meikel v. Borders, 129 Ind. 529, 533, 29 N. E. 29, the opinion was expressed that where a person takes a quitclaim deed he is put upon inquiry as to the title. Such a deed conveys the existing interest of the grantor in the land described. Davidson v. Coon, 125 Ind. 497, 502, 25 N. E. 601, 9 L. R. A. 584. It does not work an estoppel, or prevent the grantor, who may have had no title whatever, from setting up an after-acquired title. Graham v. Graham, 55 Ind. 23, 29. leged in pleading that persons named conveyed their interest in certain lands to another person named, the inferences to be drawn from the language used is that they only purported to convey such interest as they possessed. Nicholson v. Caress, 45 Ind. 479. Where there is no fraud, and the conveyance is without covenants of title, the grantee having knowledge of the facts concerning a defect in the title, he assumes the risk of title, and has no remedy, either at law or in equity, for a failure of title. James v. Hays, 34 Ind. 272, and cases cited. When the assignee of an equity of redemption accepts a deed without covenants, having notice of the outstanding encumbrance, in the absence of a special contract, or without some special circumstance, the purchaser takes the land charged with the encumbrance. Atherton v. Toney, 43 Ind. 211. In Habig v. Dodge, 127 Ind. 31, 40, 25 N. E. 182, it is said that the general proposition is abundantly maintained that a deed of release of quitclaim, or a conveyance of the "right, title, and interest" of the grantor, even though it be with full covenants of warranty, without designating in the instrument any particular estate, either as owned by the grantor or as conveyed by the deed, operates simply to transfer whatever interest the grantor may have had at that time. See, also, Nicholson v. Caress, 45 Ind. 479. In Shuler v. Hardin, 25 Ind. 386, South had contracted to convey a certain lot to Shuler by quitclaim deed. It was held that this did not bind South to discharge the lien of a certain judgment which rested upon the property when he so contracted, and that it was for Shuler, and not South, to look to its discharge. One who purchases land at

an execution sale, or who takes a quitclaim deed therefor, or a deed expressly subject to encumbrances which constitute a charge upon the land, does not become personally liable to pay the pre-existing encumbrances; but, as he is deemed to have deducted the amount thereof from the purchase price, the land in his hands becomes the primary fund out of which the encumbrances are to be paid. When he pays them off, by any method, they will be treated as extinguished, unless there is some equitable purpose to be served in keeping them alive. They will not be kept alive to the injury of one who has a right to have them treated as extinguished. Bunch v. Grave, 111 Ind. 351, 355, 12 N. E. 514; citing Pom, Eq. Jur. § 1205, and Jones, Mortg. § 737. The grantee in such case is not a surety, as between him and his grantor. See Brewer v. Staples, 3 Sandf. Ch. 579; Stevens v. Church, 41 Conn. 369. We are unable to find in the facts detailed in the complaint any occasion for the application of the principles relating to contri. bution, exoneration, or subrogation. Judgment affirmed.

(29 Ind. App. 606)

ADAMS EXP. CO. v. CARNAHAN. 1 (Appellate Court of Indiana, Division No. 2. March 11, 1902.)

EXPRESS COMPANIES-LIABILITY FOR LOSS OF GOODS-LIMITATION-CONTRACT-VALIDITY

-ACTION-PLEADINGS-FINDINGS.

1. Where the complaint in an action against an express company for the loss of a package alleges that the contract of carriage was made with T., who acted for complainant, the latter cannot deny the authority of T. to make the contract, though it limits the liability of the company.

2. The acceptance of a receipt limiting the liability of an express company for goods re ceived by it for carriage makes a contract binding on both parties.

3. A contract made without fraud between an express company and the consignor, based on a valuable consideration, fixing the value of the property to be transported, and stipulating that the company shall not be liable for loss in a sum exceeding the stipulated value thereof, is valid.

4. Findings in an action against an express company for loss of goods that the company, on receiving the goods, gave the consignor a receipt therefor which limited the company's liability to the sum fixed as the value of the property, and that the consignor was informed that the rate was 25 cents if the value did not exceed $50, and that she authorized the agent of the company to fix the value at $100, and was informed that the charges were 35 cents, and that she knew that the charges were graduated according to the value of the property, show an agreement limiting the company's liability, based on a consideration.

5. Where the charges for the carriage of an express package are graduated on the value of the property, a contract fixing the value of the property at $100, which states that the liability of the company is limited to $50 unless otherwise expressed, shows an intent on the part of the parties thereto to limit the liability of the company for the loss of the property to $100.

'Rehearing denied, 64 N. E. 647.