(154 N.E.) view. The error, if any, was invited. As ecuted, Miller became indebted to appellee Campbell for repairs on the automobile, and in December, 1923, in a court of a justice of the peace, Campbell recovered a judgment for amount due for repairs; that a constable, to whom an execution issued on the judgment had been delivered, seized the automobile and placed it in a public garage owned by Campbell; that, prior to January 1, 1924, at the request of the mortgagee, Hoosier Finance Company, and with the consent of Campbell, the levy of the constable was abandoned; that, upon request of the Hoosier Finance Company to hold the automobile "until it could collect its mortgage note," Campbell continued to hold it and has ever since kept it in his garage; that on (Appellate Court of Indiana, in Banc. Nov. 18, January 31, 1924, Campbell made and caused to be duly filed and recorded a formal notice of his intention to hold a lien on the automobile for storage; that the reasonable value of the storage is $4 per month; and that the amount due for storage, including $25 attorney's fee, is $81. HERRING MOTOR CO. v. ÆTNA TRUST & 1926.) I. Exchange of property 1. A transaction whereby property is parted with for a valuable consideration measured in money terms is a "sale" as distinguished from exchange, whether money or not. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Sale.] 2. Exchange of property 1. [2] Appellant contends that, since the title to the automobile was at all times in Miller, no lien for storage could have attached so as Where property is transferred for propto affect the rights of Miller without his erty, no price being set on either piece, the order or consent, and that there is no find-transaction is an "exchange." 3. Exchange of property -Buyer's return of merchandise of agreed value with understanding that he was to receive other undetermined merchandise of equal value held a "sale" of property returned, and not exchange. ing that Miller gave his consent, or that he [Ed. Note.-For other definitions, see Words had anything whatever to do with the stor- and Phrases, First and Second Series, Exing of the automobile. There might be merit change.] in this contention if Miller were making the objection, but he is not. The objection which Miller might have made is not now available to appellant. Appellant had asked Campbell to hold the automobile until it could collect the mortgage debt, and had thereby obligated itself to pay the storage. It may be that Campbell, as a bailee of the automobile, should have been given only a personal judgment against appellant for the amount due for storage. This question might have been presented to the trial court by a motion to modify the judgment, but appellant did not avail itself of the opportunity. Now, under the circumstances, the objection to the form of the judgment comes too late. [3] On the trial, the parties made the following stipulation: "It is further stipulated and agreed by and between the parties to this action, that, if the defendant and cross-complainant Mont Campbell recovers in this action, he shall recover the further sum of $25 as and for his attorney's fees herein." In rendering judgment for cross-complainant, the court, in accordance with the stipulation, included a fee of $25 for cross-complainant's attorney. Appellant makes the contention that the allowance of attorney's fees in such a case is without authority of law, and that the action of the court is reversible error. We do not concur in that Where merchandise of an agreed value was returned to seller with understanding that buyer was to receive its value in other merchandise not definitely described or designated or even manufactured, held, transaction was a "sale," and not an exchange. | 4. Receivers 152-Title to merchandise of agreed value returned to seller under exchange agreement held to revest in seller, as affecting buyer's right to recover it, or its value, as a preferred claim from receiver of seller. Where merchandise of an agreed value previously sold was returned to seller with understanding that buyer was to receive in its place other merchandise of an equal value not definitely described, designated, or even manufactured, held, title to merchandise returned immediately revested in original seller, as affecting right of buyer .to recover it, or its value, as preferred claim from receiver of seller. 5. Sales200(1), 214. Where goods sold are not yet manufactured, or where anything remains to be done to determine price, quality, or time of delivery, contract is executory, and ordinarily title does not pass. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 30 Appeal from Marion Circuit Court. Claim by the Herring Motor Company against the Etna Trust & Savings Company, as receiver of the Burpee-Johnson Company From a judgment allowing the claim, but denying petition for priority, claimant ap peals. Affirmed. 6. Receivers 152-Title to merchandise to [alent amount of other automobile accessories be delivered in place of merchandise pre- and equipment, and particularly steering viously sold and returned held not to have wheels, oil gages, and foot accelerators, bevested in buyer as affecting his right to ing automobile products manufactured, sold, preferred claim against receiver of seller. and distributed by the said company; that Where merchandise of agreed value was re- thereafter, pursuant to said agreement of exturned to seller under agreement that buyer should receive in its place merchandise not change, the said company did deliver and rethen designated of an equal value, held, title to ceive credit for merchandise in the total merchandise which buyer was to receive did amount of $2,246.50; that after making not immediately pass, as affecting right of buy- such shipments to appellant there was still er to preferred claim for its value against re- due it from said company in merchandise, ceiver of seller. steering wheels, oil gages, and foot accelerators of the value of $3,077.89, and that, prior to the appointment of a receiver herein, the said company informed appellant, and appellant was led to believe, that said company had in its possession and had and held for and on account of appellant the said property due and belonging to appellant under said exchange agreement subject to its orders; that said company failed to make shipment to appellant pursuant to said exchange agreement of said automobile accessories and appliances of the value of $3,077.89, due and belonging to it, and it says upon information and belief that the said company, or appellee receiver, sold or otherwise disposed of said property belonging to or owned by appellant of the value of $3,077.89, without the knowledge, authority, or consent of appellant, although demand for such property was duly made upon said company and upon appellee receiver; that by reason of the foregoing appellant is entitled to have its said claim declared and held to be a prior and preferred claim in the receivership, or that said receiver be ordered and directed by this court to deliver to appellant the said property which said company had agreed to deliver to it pursuant to said exchange agreement as aforesaid, and, upon failure of said receiver to so deliver said property of appellant to it, that Herbert E. Wilson and Jacob Morgan, both of Indianapolis, for appellant. Ralph Bamberger and Isidore Feibleman, both of Indianapolis, for appellee. NICHOLS, J. Appellant by its amended claim and petition for priority, filed with appellee, sought to recover, as appellant says, certain shock absorbers shipped by it to the Burpee-Johnson Company, to be exchanged for certain other products manufactured or to be manufactured by said company, and, in the event that said shock absorbers could not be delivered, then to recover the value thereof. The original claim was filed by appellant and allowed by appellee as a general claim; the amended claim and petition for priority was disallowed by appellee. There was an answer in denial, a trial by the court, and a finding and judgment for appellee, from which, after motion to modify and a motion | the value of said property, $3,077.89, be held for new trial had been overruled, this appeal is taken. The respective rulings mentioned are assigned as error. and declared to be a preferred claim against the property and assets of this trust. It is difficult for the court to determine The amended claim is in substance that from the language of the amended claim prior to June 16, 1923, appellant purchased whether appellant sought to recover for and received from the Burpee-Johnson Com- shock absorbers shipped by it to the Burpeepany a quantity of automobile accessories, Johnson Company, or their value, or for merworth to exceed $5,300; that thereafter, pur-chandise, steering wheels, oil gages, and foot suant to an agreement between said com- accelerators, promised in return for the pany and appellant, a part of said purchase shock absorbers, all of the value of $3,077.of the value of $5,226.75 were duly returned 89; the quantity or value of each class of to and received by Burpee-Johnson Company goods to be shipped on orders not having been from appellant; that thereafter other goods determined. The original claim upon which consisting principally of auto accessories and the allowance of $3,077.89 as a general claim equipment (but no shock absorbers) thereto- was made is not in the record, but it appears fore purchased from said company by ap from a letter written by appellant that it pellant were, pursuant to the aforesaid agree- was made up of credit memorandums issued ment. also returned to and received by said by the Burpee Company to appellant. There company, of the value of $97.64, making a is no controversy as to the amount of the altotal value of goods returned of $5,324.39; lowance; the only questions being whether, that pursuant to said agreement said com- under the facts which are substantially unpany agreed to deliver to appellant an equiv- controverted, the claim should have priority (154 N.E.) as a preferred claim. It appears by the evi-1 as appellant chose thereafter to order imdence that appellant had purchased from the mediately vested in appellant. In either Burpee Company a large consignment of event, the Burpee Company would have conshock absorbers which, under conditions verted and disposed of appellant's property which arose after the purchase, it was un- which was not a part of the assets of the able to dispose of. After some negotiations, company, and appellant would have been enthere was an agreement entered into by titled to a preferred allowance. But we canwhich the Burpee Company agreed to take not adopt either theory. There was a defiback the shock absorbers and to give other nite value fixed by the parties on the shock merchandise in exchange therefor, as appel-absorbers returned for which the Burpee lant needed it. Upon receipt of notice of shipment of the shock absorbers, on May 31, 1923, the Burpee Company wrote appellant that "Just as soon as this shipment comes in we will send you a credit memorandum per our agreement, for which you are to take wheels or other products covering the entire amount." Company issued to appellant a credit memorandum, which was to be thereafter discharged by shipment of such merchandise as appellant might order from time to time in the total amount of the value of the goods returned. Under such circumstances, the rule that prevails as to the character of the transaction is thus stated in 23 C. J. 185: "It has been stated broadly, either specificalfer of property for property other than money the transaction is an exchange, and that where the transfer is for money the transaction is a sale, but it has been generally held, where the question has arisen, that any transaction whereby property is parted with for a valuable consideration, whether there be a money payment or not, provided the bargain is made and the value measured in money terms, and the parties agree to treat as a specified amount paid or agreed to be paid in something which of money, is a sale, but that where property is transferred for property, no price being set upon either piece, the transaction is an exchange, and the distinction has been recognized in the case of a transfer of personal property for other personal property, or of real property for other real property." The credit memorandum was afterward sent. At this time some merchandise consist-ly or substantially, that where there is a transing of oil gages and steering wheels was ordered by appellant, and shipped by the Burpee Company. On September 14, 1923, another order was made consisting of accelerators and steering wheels, which order was filled. It appears by the amended claim that the Burpee Company shipped merchandise to appellant as many as seven different times. On October 5, 1923, the Burpee Company in formed appellant by letter that it still had a merchandise credit of about $3,000, and requesting further shipping instructions at once. A similar letter was written November 19, 1923, urging shipping instructions on wheels, oil gages, foot accelerators, "or on whatever else was needed." On December 4, 1923, the appellant wrote the Burpee Company to the effect that it needed nothing at that time, and asking that the matter be allowed to rest until appellant was in further need. On December 6, 1923, the Burpee Company acknowledged receipt of appellant'sue of other property not definitely described letter, stating that it would like to have the matter straightened up so as not to have to carry it over into the new year. Another letter by the Burpee Company, dated January 29, 1924, requested shipping instructions. The last two letters were unanswered. On March 6, 1924, appellee was appointed as receiver, at which time there was no merchan-payment was to be made in merchandise as dise on hand; all of it, including the shock absorbers returned, had been sold. There was then only the machinery and equipment and some raw material on hand. There was no cash. [1, 2] To sustain appellant's contention that, under its amended claim, it is entitled to priority as a preferred creditor, we must do so upon the theory, either that the title to the shock absorbers returned did not pass to the Burpee Company except at such times as goods were shipped by the Burpee Company to appellant on its orders, and then only in the amount of the value of the merchandise so shipped, or that, upon receipt of the shock absorbers returned, title to such goods [3, 4] Numerous authorities are there cited to sustain the rule. Here there was no exchange of property for property without regard to value, but there was a transfer of about $5,000 worth of property for that val or designated, some of it not yet manufactured, and the same to consist of such goods as appellant might thereafter order. Such a transaction did not constitute an exchange of property within the meaning of the defi nition above set out, but was a sale of property back to the Burpee Company, for which appellant might order, the kind and quantity of which had not yet been determined. Westfall v. Ellis, 141 Minn. 377, 170 N. W. 340; Baltimore, etc., Railroad Co. v. Western, etc., Co., 241 F. 162; Gills v. Eagleton, 108 Neb. 179, 187 N. W. 871; Fagan v. Hook, 134 Iowa, 381, 105 N. W. 155, 111 N. W. 981. [5, 6] There being a sale and delivery of the shock absorbers back to the Burpee Company, it follows that the title thereto passed to the company. As to the merchandise to which appellant was entitled in place of the shock absorbers returned, the contract was clearly executory on the part of the Burpee Company. The kind of merchandise, and the quantity of each kind, had not been deter ing the letters issued to appellant, from which this appeal. The error assigned is the action of the court in overruling appellant's motion for a new trial. mined. The price to be paid was not agreed | to appellee in the same matter. There was upon, and it clearly appears that some, if a finding and judgment for appellee revoknot all, of the merchandise, was not then manufactured. It is a well-established rule of law that where the goods are yet to be manufactured, or anything remains to be done to them to determine the price, quantity, or kind of goods, or to determine the time of delivery, precedent to delivery, the contract is executory, and ordinarily the title to the property does not pass. Benjamin on Sales, 151, 152, 221, 222; Fordice v. Gibson, 129 Ind. 7, 28 N. E. 303; Coddington v. Turner (Ind. App.) 139 N. E. 323. Upon either theory of its amended claim, appellant can recover only as a general creditor. Appellant relies largely upon the case of Jewett & Sherman Co. v. Tindall, 77 Ind. App. 681, 134 N. E. 501, which it contends is so much like the instant case as to justify invoking the rule of stare decisis. But the facts in the case are so different from the facts herein that we do not think it all in point. Judgment affirmed. STOWE v. KRAMER. (No. 12571.) (Appellate Court of Indiana, in Banc. Nov. 18, 1926.) Guardian and ward 27-Appointment of guardian by court, whose attention was not called to prior valid appointment of guardian for same ward, is void. Where appointment of guardian is valid, subsequent appointment of another as guardian for same ward, made by court, whose attention was not called to previous appointment, is void since there cannot be two guardians of person or property at same time. It appears that appellee was named as executor under the will of said deceased, and in effect testamentary guardian of said minor, being given the management of his estate, and furthermore that on April 17, 1925, he was duly appointed as guardian by the probate court of Marion county, Ind., and qualified as such. Thereafter on April 23, 1925, appellant was appointed as the guardian of said minor by the same court. It appears that the attention of the court was not called to the prior appointment. Appellee was not and is not in any way disqualified to act as such guardian, and by the will of the said deceased was clearly preferred as the one to whom the testator chose to trust the management of the minor's estate. We hardly need to say that there cannot be two guardians of person or property in this state at the same time, and, the first appointment being valid, it necessarily follows that the second was void. Soules v. Robinson, 158 Ind. 97, 62 N. E. 999, 92 Am. St. Rep. 301. The merits as well as the law are clearly with appellee. Judgment affirmed. CLEVELAND. C., C. & ST. L. RY. CO. v. BE- (Appellate Court of Indiana, in Banc. Nov. 23, Where goods intrusted to carrier for shipAppeal from Probate Court, Marion Coun- ment are injured only, owner's remedy is for ty; Mahlon J. Bash, Judge. damages for injury, and not for value. 2. Carriers 122-To warrant refusal to receive damaged shipment of goods, from carrier, they must be unfit for ordinary purposes. Before consignee can refuse to receive dam Action by Edward F. Kramer, guardian of James E. A. Shank, minor, against Ida L. Stowe, guardian of James E. A. Shank, in which a cross-petition was filed by the defendant. Judgment for plaintiff, and defend-aged shipment of goods from carrier, damage ant appeals. Affirmed. must be such as substantially changes general character of goods, so as to leave them unfit for Charles Mendenhall, of Indianapolis, for ordinary purposes. appellant. Arthur A. Stettler, of Indianapolis, for appellee. NICHOLS, J. Action by appellee against appellant in the probate court of Marion county, Ind., to revoke letters of guardianship issued to appellant in the matter of James E. A. Shank, a minor, and a sole legatee and devisee under the will of Everett F. Kramer, deceased. A cross-petition was filed by appellant against appellee asking the revocation of the letters of guardianship issued 3. Carriers 127-Consignee of freight shipment of 600 bags of sugar, 90 of which were wet, must receive entire shipment and sue for damages. Remedy of consignee of freight shipment of 600 bags of sugar, 90 of which were wet, is to receive entire shipment and sue for amount of damage to the 90 sacks. Appeal from Sullivan Circuit Court; Arthur E. Debaum, Judge. Action by the Bement-Rea Company against the Cleveland, Cincinnati, Chicago & St. Louis (154 N.E.) Railway Company. Judgment for plaintiff, the 90 bags, which it later sold for $598.05. and defendant appeals. Reversed, with directions. Frank L. Littleton and Forrest Chenoweth, both of Indianapolis, Hays & Hays, of Sullivan, and Beasley, Douthitt, Crawford & Beasley, of Terre Haute, for appellant. Cooper, Royse, Bogart & Gambill, of Terre Haute, and Charles D. Hunt, of Sullivan, for appellee. MCMAHAN, C. J. Complaint by appellee to recover damages by reason of the alleged failure of appellant to deliver a carload of sugar, shipped from New York to Terre Haute, and consigned to appellee. The court found the facts specially, and concluded as a matter of law that appellee was entitled to recover $7,365.69. The judgment followed the conclusion of law, and this appeal followed. It appears from the special finding that appellee purchased a carload of sugar (600 bags) from a manufacturer in New York, and the same was shipped by rail over appellant's railroad and that of a connecting carrier. The sugar arrived at Terre Haute August 23, 1920, and appellee started to remove it from the car to its warehouse. One hundred and twenty bags were removed, when it was discovered that some of the sugar was wet. As soon as appellee discovered that part was wet, it notified appellant of that fact, and The remaining 510 bags were then shipped to appellee, and on March 14, 1921, were accept ed and unloaded by appellee; the market price of the sugar so received by appellee at that time being $8.637 per 100 pounds. The 90 bags were not damaged, so as to render them of no value, but had a real and substantial value at all times of not less than 7 cents a pound. There is no controversy as to the amount of the judgment in case appellee is entitled to a recovery. Appellant's contention is that appellee is not entitled to a judgment for any sum. It insists that, where a shipment is merely damaged, it is the duty of a consignee to accept the shipment as an entirety from the carrier, and then seek his remedy through a claim for damages to the damaged portion. In McGrath v. Charleston, etc., R. Co., 91 S. C. 552, 75 S. E. 44, 42 L. R. A. (N. S.) 782, Ann. Cas. 1914A, 64, cited by appellee, two lengths of steel shafting and other hardware found to be damaged, so that it was useless were shipped, and on arrival the shafting was and of no value, except for old iron. The and refused to accept the shafting, and later consignee evidently accepted the hardware sued for the value of the shafting. The only question before the court was the measure of damages to the shafting. The right of the consignee to reject the whole shipment was not involved. In discussing the measure of damages the court said: "While there can be no doubt that, if the shafting in its bent condition had a substantial value, the consignees were bound to receive it and give the carrier credit for the net amount realized from its due disposition." [1] The bent shafting having no substantial value, the consignee was not required to receive it. Where goods intrusted to a carrier for shipment are injured only, the own that it was returning the wet sugar to the car. Appellee refused to accept any of the sugar which it claimed was damaged, and claimed the right to accept the part which it considered not damaged, and to refuse to accept that which it claimed was wet, and was at all times ready and willing to accept the part not wet. Appellant refused to allow appellee the privilege of taking a part of the sugar and rejecting that which it claimed was damaged. Appellant tendered appellee the entire shipment, which appellee refused to accept, and appellant refused to permit appel-er's remedy is for damages for the injury and lee to take the undamaged part of the sugar and leave the wet sugar. After appellee refused to take the damaged sugar, appellant shipped the entire carload to Indianapolis and stored it in its warehouse, where it remained until March 10, 1921, when the parties entered into an agreement to ascertain what part was salable to the grocery trade at the market price as first-class sugar. Appellee agreed to take that part which was found to be first-class and credit appellant with the market price. Appellant agreed to take that part unsalable as first-class and to pay appellee therefor the market price in New York on August 23, 1920, which was agreed to be $19.80 per 100 pounds. This agreement was not to affect the legal right of either party. When the examination was made, it was found that 90 bags of the sugar were wet and Jamaged on August 23, 1920, and appellant paid appellee therefor $1,922.80, and retained 154 N.E.-3 not for the value. Dudley v. Chicago, etc., R. Par [2] Before a consignee can refuse to receive a shipment of goods, the damage must be such as substantially changes the general character of the goods, so as to leave them unfit for ordinary purposes, such as might happen to fruit which had been frozen during transportation by reason of negligence of the carrier. See Hackett v. Railroad, 35 N. H. 390. In Gulf, etc., R. Co. v. H. B. Pitts & Son, 37 Tex. Civ. App. 212, 83 S. W. 727, where a carload of chops was injured in transit by wetting, the fact that the consignee was in the wholesale trade, to which the chops in their dam |