least twice. In June, 1903, he had climbed | work he was engaged in when injured was the pole and removed the line wires. On October 31st, before attempting to take the pole down, appellant inspected whether it was sound or defective. That there were no defects or rotten places above the ground, and the pole appeared perfectly safe to climb. That no reasonable inspection by either appellant or appellee would or could have disclosed any defect. Appellee did not know of any defect, and could not have known of such defects by the exercise of ordinary care. That it was necessary for appellant to climb the pole to remove the line wires, and this was the customary and only way to do it. That appellant was assisted by two men furnished by appellee, which, from the appearance of the pole, was sufficient to remove it in safety, but on account of the hidden defects two men were not sufficient. That after appellant had received the order to remove the pole, he requested the station agent to tell the section foreman to be present with all his sectionmen, seven or eight, to assist. That at the time of the accident, after instructing the two men appellee had furnished how to hold and brace the same, appellant climbed the pole to the top and loosened and removed the line wires as he had done in June, and after the line wires were loosened and removed, and while appellant was still at the top of the pole and before he had time to climb down in safety, the pole broke off six or eight inches below the ground, where the same was rotten; the bottom tilting up over the raising forks, throwing appellant to the ground, permanently injuring him. In the discharge of his duties appellant was required to conform to the following rule: "Care must be taken to see that men are not injured by poles breaking. When the last wire is removed from old poles, foremen will see that the poles are held up, either with ropes or forks, and in all cases the linemen should carry the last wire part way down the pole with him, or let it away from the pole with rope while he climbs down. The utmost care must be exercised in this matter, and no excuse will be received for failure to observe these instructions." That prior to his injury appellant had made a requisition upon appellee for a rope which appellee had failed to furnish. That in order safely to perform the work of removing the pole it was necessary to have a rope to stay the pole, or sufficient men to hold the same up with forks, and from the apparent condition of the pole two men with forks were sufficient, but on account of the actual hidden condition two men were not sufficient. Appellant's complaint proceeds upon the theory that the work appellant was ordered to do was without the scope of his employment, and was more hazardous and dangerous than the work for which he was einployed. But the facts found are that the work of the same kind and character he Dixon v. Western U, T. Co. (C. C.) 68 Fed. 630; Green v. Western U. T. Co. (C. C.) 72 Fed. 250; Sias v. Lighting Co. (Vt.) 50 Atl. 554; Flood v. Western U. T. Co. (N. Y.) 30 N. E. 196; Labatt, Master and Servant, 434; McIsaac v. Northampton, etc., Co., 172 Mass. 90, 51 N. E. 524, 70 Am. St. Rep. 244; Evansville, etc., Co. v. Raley (Ind. App.) 76 N. E. 548; Ervin v. Evans, 24 Ind. App. 335, 56 N. E. 725. Judgment affirmed. (39 Ind. App. 412) LUPTON et al. v. TAYLOR. (No. 5,813.j1 (Appellate Court of Indiana, Division No. 1. Oct. 10, 1906.) 1. PLEADING-SET-OFF-SUBSISTING RIGHT OF ACTION OF DEFENDANT. A defendant pleading a set-off must show a cause of action in his favor. [Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 293.] 2. ATTORNEY AND CLIENT-PARTNERSHIP OF ATTORNEYS-LIABILITY OF CO-PARTNERS. Responsibility to account for money collected by one member of a firm of attorneys rests alike on each member thereof. [Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 236.] 3. SUBROGATION-ACCOUNTING BY EXECUTORS -COLLECTIONS BY ATTORNEYS. An executor is bound to account for money belonging to the estate which has been collected by his attorney, and the payment thereof subrogates him as an individual to all rights theretofore existing in favor of the trust estate. 4. EXECUTORS CONTRACTS OF EXECUTORS ATTORNEY'S FEES. Though executors promise to pay a certain sum as attorney's fees, if the amount is excessive, there is no consideration for the promise as to such excess. [Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 448-462.] 5. ATTORNEY AND CLIENT-PARTNERSHIP OF ATTORNEYS-ACTIONS FOR COMPENSATION SET-OFF-MUTUALITY OF CLAIMS. Where executors employed a firm of attorneys, and thereafter during the existence of the firm one member thereof collected money belonging to the estate, which was accounted for by the executors, though no part of it was turned over to them, they were entitled to set off the amount in an action by another member of the firm after dissolution, to recover attorney's fees rendered under the employment. 6. APPEAL AND ERROR-REVIEW-WEIGHT OF EVIDENCE. Appellate courts will not interfere with special findings where to do so will require weighing the evidence, but will interfere in case there is no evidence to support the finding. 7. ATTORNEY AND CLIENT-ACTION FOR FEES -EVIDENCE. brose G. Lupton and another. From a judgment for plaintiff, defendants appeal. Reversed. Smith & Moran, for appellants. R. H. Hartford, for appellee. MYERS, J. In the court below a judgment for $564.10 was rendered against appellants and in favor of appellee on ac count of attorneys' fees for services rend. ered appellants, as executors, in the settlement of a certain estate. The averments of the complaint show that appellants, as executors, employed appellee as attorney to advise and assist them in the settlement of their trust; that in making a final report in settlement of said trust, and at their request, appellee receipted to them, as executors, for $549.50, as and for legal services rendered such executors, under his said employment; that as executors appellants took credit in their said report for the amount covered by said receipt; that said report was in all things approved, and said executors finally discharged; that appellee executed said receipt because of a promise by appellants to him made that he should have a check the next day for the sum of money mentioned in said receipt; that appellants, as executors, or otherwise, have failed and refused to pay appellee said sum or send him a check for the same. pellants answered in five paragraphs: (1) In denial, (2) payment, (3) partial payment, (4) want of consideration, (5) set-off. Appellee's demurrer and motion to strike out the paragraph of set-off were each overruled. By proper pleadings the cause was put at issue, tried by the court, special findings of fact and conclusions of law submitted. Judgment, motion for a new trial overruled, and this ruling is the only error assigned for a reversal. it. Ap The grounds for a new trial are that the findings of the court are not sustained by sufficient evidence and are contrary to law. Also that the the assessment of the amount of recovery is erroneous, being too large. Appellee has assigned cross-errors, based upon the rulings of the court in overruling his demurrer, and motion to strike out the answer of set-off. The purpose of the cross-errors, as stated by appellee, is to affirm the judgment, and not to reverse He insists that the pleading is bad (1) because it shows a want of mutuality, and (2) because upon its face it shows that appellants are not the unconditional owners of the debt pleaded as a set-off. Evidence tending to support the set-off pleaded was introduced over appellee's objection. It is the theory of appellee that if the averments of the answer of set-off were not sufficient to withstand a demurrer, or if technicaily sufficient for that purpose, but an improper pleading, which should have been stricken out, then the evidence admitted in its support over his objection was erroneously ad1 Rehearing denied and mandate modified, 79 N. E. 523. In an action for attorney's fees, evidence held insufficient to support the finding that there was nothing due to defendants in the setoff pleaded by them. 8. TRIAL-FINDINGS OF COURT. A finding "that there is nothing due to defendants by plaintiff in the set-off pleaded by them," if considered as a conclusion of law, cannot aid the findings of fact. Appeal from Circuit Court, Jay County; Jno. F. LaFollette, Judge. Action by David T. Taylor against Am78 N.E.-44 mitted, and, a right conclusion being reached, the error assigned by appellants would therefore be unavailing. Clark v. Schromeyer, 23 Ind. App. 565, 55 N. E. 785. It has been judicially determined that a defendant pleading a set-off must exhibit facts showing a cause of action in his favor against the plaintiff, or it will not be sufficient to withstand a demurrer for want of facts, for the reason that such pleading. properly speaking, is a cross-action, and must stand alone. Boil v. Simms, 60 Ind. 162; Wills v. Browning, 96 Ind. 149; Johnson v. Tyler, 1 Ind. App. 387, 27 N. E. 643; Davis & Rankin, etc., Mfg. Co. v. Booth, 10 Ind. App. 364, 37 N. E. 818. Meeting the objections urged by appellee, the set-off pleaded, in short, discloses the following facts: In June, 1899, appellants qualified as executors of a certain estate, and as such executors employed a firm of attorneys, of which firm appellee was a member, to advise and assist them in the settlement of said estate; that said attorneys accepted said employment and assisted appellants in the management of their said trust, and in the collection of claims due said trust, and while so acting, and on behalf of said estate, and before the final settlement thereof, and during the existence of said firm now dissolved, one of its members collected on account of a certain judgment in favor of said estate $175.01, and took credit for the same on their fees; that appellants accounted to said estate for said sum of money, although no part of the same has ever been paid to them, either as executors or otherwise; that, in the adjustment and settlement of the fees of said firm, appellee upon demand refused to allow or account for the money so collected and retained as aforesaid. Appellants also claimed an additional credit of $50, money paid to appellee on October 28, 1899, and for which no credit is given; that each of said sums of money are due and unpaid. Under the facts pleaded in the answer of set-off, the contract of employment was that of the firm of which appellee was a member, and ended with the settlement of the estate. Ganzer v. Schiffbauer, 40 Neb. 633, 638, 59 N. W. 98. And the responsibility to account for the money collected by one member of the firm rested alike on each individual member therof. Weeks on Attys. § 244; Cook & Lamkin v. Bloodgood, 7 Ala. 683, No accounting has been made, and appellee is prosecuting an action individually to collect a fee, which, under the averments of the answer, belongs to his law firm. Appellants, as executors, under the facts in the answer were bound to account for this money. This they did, and the payment thereof subrogated them as individuals to all rights theretofore existing in favor of the trust estate. Davis V. Schlemmer, Adm'r, 150 Ind. 472, 478, 50 N. E. 373, and authorities there cited. At the time of the execution of the receipt mentioned in the complaint, appellants were acting in a fiduciary capacity, and had no power or authority to deplete the trust funds in their hands by paying more than was actually due appellee. Assuming that they did promise to pay appellee $549.50, yet, if upon balancing the account this amount was found to be in excess of the correct amount due, there would be no consideration for the promise as to such excess, and in that regard would be unenforceable. If this were an action in the first instance by appellants for the recovery of the money mentioned in the pleading of set-off, it is clear that constituent members of the law firm would be necessary parties; but in the form here presented they are not. No one would question the right of the proposed set-off were this an action by the firm, and yet the effect of appellee's demand is precisely the same as it would be in an action instituted by all the members of the firm as plaintiffs. This being true, appellee should be regarded as the firm for the purposes of this suit. In our opinion the pleading contains facts sufficient to overcome the specific objections urged against it by appellee, or, in other words, mutuality and appellants' ownership of the claim sought to be set off against the amount found due appellee sufficiently appears. See Porter v. Roseman, 165 Ind. 255, 74 N. E. 1105; Frankel v. Michigan, etc., Ins. Co., 158 Ind. 304, 310, 62 N. E. 703. We will now consider the reasons urged by appellants for a reversal of the judgment. Practically the special findings are as follows: Appellants being the duly appointed, and having qualified as executors of the estate of Adelma Lupton, deceased, shortly after June 9, 1899, employed appellee, a lawyer, to assist them in the settlement of said estate; that appellee accepted said employment, and thereafter assisted said executors in the settlement of their trust until December 27, 1904, when their trust was finally settled and appellants discharged; "that, in the final settlement of said estate, it was agreed by and between said defendants and said plaintiff that there was owing to the plaintiff for his legal services in assisting them in the settlement of said estate the sum of $549.50, for which sum the defendant Ambrose G. Lupton wrote out a receipt and requested the plaintiff to execute the same, which request the plaintiff complied with by signing his name thereto, and delivering the same to the defendants upon a promise on their part that the defendant John S. Emmons would send him their check the next day for the amount, which check was never sent either the next day or any other day; that upon the execution of said receipt said appellants filed the same with their final report and took credit for the amount thereof as money paid to appellee for his fees, and which was allowed as a part of their final report; "that there is nothing due to the appellants by the plaintiff in the set-off pleaded by them"; that appellants never paid appellee anything for the execution of said receipt, nor for his legal services; that there is now due and owing to appellee from appellants the sum of $564.10. Upon the above facts the court stated the following conclusion of law: "That the plaintiff is entitled to judgment against defendants for $564.10, with relief." The law is well settled in this state that appellate tribunals will not interfere with special findings of fact where to do so will require weighing the evidence, but will interfere only in case there is no evidence to support a finding. The uncontradicted evidence in the case at bar shows that at the time of appellee's employment by appellants as executors of the Lupton estate he was the senior member of the law firm of Taylor, MacGinnitie & Taylor, lawyers engaged in the practice of law at Portland, Ind.; that said firm continued in business until its dissolution, April 13, 1904; that MacGinnitie, as a member of said firm, assisted appellants in the settlement of their trust, and in December, 1899, and January, 1900, collected, as evidenced by the firm's receipt of record, on account of a certain judgment in favor of said estate, sums of money aggregating $175.01, which has never been accounted for by said firm or by any member thereof, although about the time of making their report appellants demanded that appellee allow the same as a credit on the attorney's fee, which was refused; that appellants, as executors, accounted to their trust for said sum of $175.01; that the basis of settlement of attorney's fees was $1,500; that the payment of $549.50 on account of attorney's fees, in addition to the sums on that account theretofore paid and admitted, amount to exactly $1,500. This evidence clearly shows that appellee's law firm received $175.01, and still retains the same, refusing to account therefor, and for which sum appellants, as executors or otherwise, have received no credit. In our opinion the finding "that there is nothing due to the defendants by the plaintiff in the set-off pleaded by them," whether considered as a finding of fact or a conclusion of law, will not warrant an affirmance of this judgment, for the reason that as a finding of fact there is no evidence to support it, and, if a conclusion of law, it cannot be considered to aid the findings of facts. Braden v. Lemmon, 127 Ind. 9, 26 N. E. 476; City of Indianapolis v. Kingsbury, 101 Ind. 200, 222, 51 Am. Rep. 749. If the so-called finding be treated as a conclusion of law, then there is no finding on the issue tendered by the pleading of set-off. This court, in the case of Gray v. Taylor, 2 Ind. App. 155, 28 N. E. 220, ruled that: "Where pertinent and material facts are proven, but the court does not find upon them, and thereby impliedly finds that they are not proven, the finding in such respect is contrary to law, as well as contrary to the evidence, and good cause arises therefrom for a new trial." Facts proven pertinent to the issue of set-off have been heretofore exhibited in this opinion. Therefore, as bearing upon the effect of some of these facts, it has been held that the employment of one member of a law firm is that of the entire firm. Ganzer v. Schiffbauer, supra; Livingston v. Cox, 6 Pa. 360. "A fraudulent act by one partner, or deceit practiced by him, done within the scope of his general partnership authority, will make the other partner liable." Durant v. Rogers, 87 Ill. 508, 511. MacGinnitie's receipt on the docket for the money in question is prima facie sufficient to bind the firm, "and the partner who had no agency in giving the receipt cannot gainsay its truth." Cook & Lamkin v. Bloodgood, supra; Dwight, Syndic, v. Simon, 4 La. Ann. 490, 495. A demand on one partner of a law firm is constructively a demand on the other members. Weeks on Attys. § 244. After a careful examination of the record in this case, we are of the opinion that the judgment herein should be reversed. Judgment reversed, with directions to the circuit court to sustain appellant's motion for a new trial. (39 Ind. App. 482) HORNET v. DUMBECK. (No. 5,760.)* (Appellate Court of Indiana, Division No. 1. Oct. 10, 1906.) 1. DEEDS ---- CONSTRUCTION - PROPERTY CONVEYED-CONFLICTING DESCRIPTIONS. A description of land in a deed as "60 acres off of the south end of the west half of the southwest quarter" of a certain section is no less certain and definite than, and hence is not controlled by, another description in the same deed, by metes and bounds, intended to apply to the same land, but conflicting with the former description. [Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, § 319.] 2. SAME-ELECTION BY GRANTEE. The rule that where there are in a deed two descriptions of the land conveyed which do not coincide, the grantee may elect that which is most favorable to him, does not apply where the grantee never made an election between the conflicting descriptions nor took possession with reference to one description to the exclusion of the other, and it does not appear that either description was more favorable than the other. 3. SAME EVIDENCE TO AID CONSTRUCTIONPAROL EVIDENCE. Where, in a deed, two descriptions intended to apply to the same land, were not reconcilable, evidence of extrinsic facts was admissible to show intention of the parties. [Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 239, 599; vol. 20, Cent. Dig. Evidence, § 2095.] 4. DEEDS - CONSTRUCTION - PROPERTY CONVEYED-CONFLICTING DESCRIPTIONS. Where a deed contained two descriptions of the land conveyed, one of which, when ap * Rehearing denied. Transfer to Supreme Court denied. plied to the land owned by the grantor, is found not true, it must be rejected. [Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, § 325.] 5. SAME CONSTRUCTION IN FAVOR OF GRANTEE. Where a deed described the land conveyed as 20 acres off of the north end of a certain tract, being all of the tract not sold to another, but the unsold portion exceeded 20 acres, the deed will be construed, as conveying the whole of the unsold portion, under the rule that if a description in a deed remains doubtful, the doubts must be solved in favor of the grantee. [Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, § 320.] 6. BOUNDARIES AGREEMENT BETWEEN PARTIES-EFFECT. Where the husband of the owner of land, without her concurrence or knowledge, and an adjoining owner agreed to erect a fence at the supposed boundary between their lands with the understanding that a survey should be made in future, the agreement did not affect the rights of the parties as to the boundary. [Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Boundaries, §§ 218, 219.] 7. ACKNOWLEDGMENT DEFECTS CURATIVE STATUTE EFFECT ON RECORD. Where a deed executed in 1885, was acknowledged before a justice of the peace and the acknowledgment was authenticated by the certificate of a clerk of court who was the grantor in the deed, any insufficiency in the record of the deed as evidence was cured by Act March 7, 1891, Acts 1891, p. 336, c. 127, legalizing the record and acknowledgment of deeds previously recorded when the official character of the officer taking the acknowledgment was not certified to as required by law, and authorizing the record of such deeds to be read in evidence. [Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Acknowledgment, $8 238, 239.] 8. ESTOPPEL-ACCEPTANCE OF DEED. Where a deed contained two conflicting descriptions intended to apply to property conveyed, a deed by the grantor to a third person of the tract included in the valid description, and not in the invalid description, did not estop such third person from asserting the validity of the correct description, and the invalidity of the other where he did not claim title under the second deed. [Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Estoppel, § 69.] Appeal from Circuit Court, Noble County; L. W. Royse, Special Judge. Action by John Dumbeck against John Hornet. From a judgment in favor of plaintiff, defendant appeals. Affirmed. on the west line of the west half of the southwest quarter of said section, 30 chains north of the southwest corner thereof; thence east to a point on the east line of said west half, 30 chains north of the southeast corner thereof; thence south on said east line, one chain and twenty-hundredths of a chain; thence west to a point on said west line one chain and twenty hundredths of a chain south of the place of beginning; thence north on said west line to the place of beginning, containing 22 acres of land. There was an answer of general denial, and the cause was tried by the court; a special finding being rendered. The facts were stated substantially as follows: January 16, 1885, James M. Harrison was the owner in fee simple of the real estate in Noble county described as follows: the west half of the southwest quarter of said section, and on that day sold and agreed to convey by deed to John P. Magers, 60 acres of land off of the south end of said west half, and Magers on that day purchased said 60 acres of said Harrison. On the same day in consummation of said sale and purchase, Harrison and his wife executed to Magers a deed duly acknowledged, describing the land thereby conveyed as follows: "60 acres off of the south end of the west half of the southwest quarter of section 28, in township 33 north, of range 11 east; more particularly described as follows, to-wit: Commencing at the southwest corner of said west half of said southwest quarter, running thence north 120 rods; thence east 80 rods; thence south 120 rods; thence west 80 rods, to the place of beginning." This deed was recorded in the deed records of Noble county February 27, 1885. It was stated by the court in its finding that it was the intention of Harrison and Magers that this deed should convey to Magers 60 acres of land off of the south end of said west half; that nothing was said between them prior to the execution of the deed about the length north and south of the tract to be conveyed; the agreement being simply to convey 60 acres of land off of the south end of said west half, "which land the court, construing said deed in the light of the extrinsic facts shown by the evidence, finds as a fact is the land that was con H. G. Zimmerman, for appellant. L. H.. veyed to him by said deed." It was further Wrigley, for appellee. BLACK, J. The complaint of the appellee against the appellant, filed August 12, 1904, contained two paragraphs. In the first it was sought, in the ordinary short form, to quiet the appellee's alleged title in fee simple to the west half of the southwest quarter of a certain section of land in Noble county, excepting 60 acres off of the south end thereof. In the second paragraph the appellee sought both to quiet his title to, and to recover possession of, certain real estate described as commencing at a point stated, that when this deed was made, Harrison had no knowledge that the dimensions of said west half were different in any way from 40 chains (160 rods) in length north and south, and 20 chains (80 rods) in width east and west. The special finding showed the making of a number of intermediate conveyances, by deeds duly acknowledged and recorded, transmitting the title from Magers to one Jacob Hornet, father of the appellant, and the conveyance November 18, 1902, from said Jacob Hornet to the appellant by deed duly acknowledged, recorded June 23, 1903, |
