were

1882, these defendants became and liable to the said plaintiff upon their written guaranty in the sum of $3,000, and, upon the payment thereof by the said William A. Patton as aforesaid, these defendants became and were discharged from said indebtedness, and released from any further liabil ity on said written guaranty; and these defendants further aver that after the payment of said indebtedness as aforesaid, and during the years 1884, 1885, 1886, 1887, 1888, and 1889, the said plaintiff sold and delivered to the said William A. Patton other goods, wares, and merchandise, of the value of $8,000, of which these defendants had no notice or knowledge prior to the commencement of this action, on the 12th day of November, 1890; that, to secure the said plaintiff in the sales thus made to the said William A. Patton, in the years 1884, 1885, 1886, 1887, 1888, and 1889, the plaintiff, on the 4th day of June, 1888, required the said William A. Patton to insure his life in a life insurance company in the sum of $2,000, payable after his death to the said plaintiff, which the said William A. Patton did, and caused the said policy of insurance to be delivered to the plaintiff; and, as a further security for said last-named sales, the said William A. Patton, his wife joining therein, on said 4th day of June, 1888, conveyed to the plaintiff certain real estate in the city of Indianapolis of the value of $3,000. And these defendants aver that the said indebtedness of the said William A. Patton, mentioned in the complaint, is for said goods, wares, and merchandise so as aforesaid sold and delivered by the plaintiff to the said William A. Patton during the said years 1884, 1885, 1886, 1887, 1888, and 1889, and not otherwise. And these defendants further aver that the said plaintiff still holds and possesses the said life insurance policy and the said real estate so as aforesaid given and conveyed to secure the said plaintiff for the said sales made during the years 1884, 1885, 1886, 1887, 1888, and 1889." To this paragraph of answer a demurrer was overruled by the court, and this ruling presents the only question for our decision.

From the complaint and the answer it appears that, immediately after the contract of guaranty, the appellant, having notified the guarantors of its acceptance of the guaranty, began selling, to William A. Patton, books, periodicals, and other publications on credit, and continued so to deal with him until the year 1889, at which time there was a balance due appellant of about $1,600. The aggregate of sales amounted to something over $10,000, all of which was paid by William A. Patton, except said balance, which remains unpaid, and for which suit was brought. The question discussed on this appeal is as to the nature of the guaranty in suit. Appellant contends that the guaranty is a continuing one, the guarantors being liable to the extent of $3,000 for any balance found due and unpaid

In 9

by William A. Patton to appellant. The appellees, on the contrary, contend that the instrument in suit is not a continuing guaranty; and that, when goods to the amount of $3,000 had been sold on credit, the guarantors were liable for all that remained due; and that, when that was paid, the guarantors were not further liable in any event. In section 156 of his work on Suretyship and Guaranty, Mr. Brandt well says that, "as the terms of guaranties, and the circumstances under which they are given, differ in almost every case, no definite rules for determining whether a guaranty shall be considered a continuing one or not can be given. The only way to illustrate the subject is to refer to facts of decided cases." Many such illustrations are given in the succeeding sections of that work, showing that the circumstances of the parties, as well as the words of the guaranty, are to be taken into consideration in determining whether the guaranty is continuing or noncontinuing, as to amounts guarantied, as to the time during which the guaranty shall remain good, or as to the extent of the liability of the guarantor. Am. & Eng. Enc. Law, 77, the statement is made that "when, by the terms of the guaranty, it appears that the parties look to a future course of dealing for an indefinite time, or a succession of credits to be given, it is to be deemed a continuing guaranty; but when no time is fixed upon, and nothing in the agreement indicates a continuance of the undertaking, the presumption is in favor of a limited liability as to time." In the notes to the foregoing statement, numerous authorities are cited, and many examples given of continuing and noncontinuing guaranties, amongst them the following: "The bearer is going to start a peddling route to sell cigars and tobacco. He wishes to buy goods of your firm. We, the undersigned, will be his security to the amount of $1,000." Held to be continuing. Sickle v. Marsh, 44 How. Pr. 91. An agreement to be responsible for the payment of all future bills or indebtedness to a third person, to an amount not exceeding $500, held to be continuing. In re Bentz's Estate (Pa.) 38 Leg. Int. 94. A. wrote to B. that C. wanted to place a stock of groceries in his store, and that, to enable C. to do this, A. was willing to be responsible to B. "for the amount of groceries he may order of you." Held not continuing. Knowlton v. Hersey, 76 Me. 345. A guaranty of payment for goods to be sold "from time to time," to an amount not exceeding a specified sum, is continuous until the sums remaining unpaid reach the designated limit, even though the aggregate of purchases far exceeds it. Crittenden v. Fiske, 46 Mich. 70, 8 N. W. 714. Willes, J., in Heffield v. Meadows, L. R. 4 C. Pl. 595, held that, for the purpose of seeing what the parties were dealing about, it is proper to ascertain what was the subjectmatter which they had in view when the guaranty was given, "not for the purpose of

altering the terms of the guaranty by words of mouth passing at the time, but as part of the conduct of the parties, in order to determine what was the scope and object of the intended guaranty." This ruling was approved in Brandt, Sur. § 156. The contract of guaranty as construed by the court in Mathews v. Phelps, 61 Mich. 327, 28 N. W. 108, was as follows: "It is hereby mutually agreed that William E. Maloney and Ralph Phelps, Jr., is to become the surety of Charles Savenac to James L. Mathews for the sale of cigars, to the extent of two hundred dollars." Savenac failed to return to Mathews money received by him on the sale of cigars to the amount of $169.04. It also appeared that the sales made by Savenac for Mathews amounted to more than $1,000, and counsel for the guarantors contended that the contract did not extend beyond the sale of $200 worth of cigars, and was not continuous; that, Mathews having received returns exceeding $200, the guarantors were not liable. Of this contention the court said: "This would be a narrow construction to place upon the terms of the contract. It is the extent of the liability, and not the extent of the sales, that is limited to $200." That case seems very much like the one now under consideration. The court there held that the guaranty was intended to continue so long as Savenac sold cigars for Mathews, or until ended by notice from the guarantors; that, under a fair construction of the contract, the guarantors were liable for the proceeds of the sales, "such liability being limited to two hundred dollars." The court held, further, in that case, that, in construing a contract of guaranty, the general rule arising by implication from the language used is that when the amount of the guarantor's liability is limited, and the time is not, it will be held to be a continuing guaranty. A similar ruling was made by this court in the case of Wright v. Griffith, 121 Ind. 478, 23 N. E. 281, where Judge Mitchell, speaking for the court, said that, unless the words in which the guaranty is expressed fairly imply that the liability of the guarantor is to be limited, the guaranty will be regarded as continuing until it is revoked.

In the contract before us there is no limit expressed as to the amount of the sales or the time during which the guaranty should continue. Indeed, the amount of sales guarantied seems to be expressed as unlimited. Guaranty is expressly made of "payment for all sales which may be made." The only limitation named in the contract is as to the ultimate liability of the guarantors, and that is fixed as "not to exceed in any event $3,000." From the words of the contract, then, we must conclude that the guaranty is a continuing one, the liability of the guarantors being limited to $3,000. Neither are there any circumstances to be gathered from the complaint or the answer to show that a different construction from the plain meaning of the

words should be given to the contract. The very nature of the business tends to show that there was no limit intended as to the time when sales should cease, or as to the amounts of such sales. The appellant was engaged in publishing books and periodicals. William A. Patton desired to engage in selling those publications, purchasing supplies from appellant from time to time as his business should require. He continued in the business until he had purchased and disposed of more than $10,000 worth of books and periodicals, making payments from time to time, and it does not appear that the guarantors during all these years expressed any intention of revoking their guaranty. The answer states that the guarantors had no notice or knowledge of a large part of such sales. They had expressly guarantied “payment for all sales" which might be made by appellant to William A. Patton. It was their duty either to revoke that guaranty, or to see that William A. Patton continued to make payment for the goods purchased. That appellant took additional security from Patton could not lessen the obligation of the guarantors. It was, besides, a favor to them, relieving them to that extent. The judgment is reversed, with instructions to sustain the demurrer of appellant to the eighth paragraph of the joint answer of the appellees, George Gilliford and Joseph A. Patton, and for further proceedings.

BOWLES v. TRAPP et al. (Supreme Court of Indiana. Oct. 17, 1894.) MARRIED WOMAN-LIABILITY ON NOTE - EXECU TION AS SURETY-RECITALS IN NOTE-ESTOPPEL. 1. A married woman may defend an action on a note of which she is the sole maker on the ground that she executed it as a surety.

2. A married woman can make no contract charging her separate property for a debt the consideration for which moves solely to an other. 3. A married woman can make through an agent only such contracts as she can make herself.

4. An estoppel in pais, to be available, must be pleaded.

5. Where the payee of a note executed by a married woman knew that the money was borrowed for the benefit of her husband, she is not estopped by a recital therein that it was for her sole use and benefit.

Appeal from circuit court, Dearborn county; A. C. Downey, Judge.

Action by Frank Bowles against Anna Trapp and others. There was a judgment for defendants, and plaintiff appeals. firmed.

Af

A. C. Jenkins, W. Houck, and Givan & Givan, for appellant. G. B. Goodhart and J. K. Thompson, for appellees.

DAILEY, J. The appellant brought his action in the Dearborn circuit court to recover on a note executed by the appellee Anua Trapp, and to foreclose a mortgage given

by the appellees to secure the payment of said note. The appellee Anna Trapp alone answered the complaint, in three paragraphs, the first being a plea of non est factum. The second was a plea of coverture, and that she signed the note sued on as surety for her coappellee, Charles P. Trapp, and not otherwise, and the third was a general denial. A separate demurrer was addressed to the first and second paragraphs of her answer, and was sustained as to the first, and overruled as to the second. By leave of court, Mrs. Trapp amended the first paragraph thereof. To the judgment of the court in overruling the demurrer to the second paragraph, the appellant at the time excepted. There was a reply to this answer of the appellee Auna Trapp in two paragraphs,-the first, a general denial; and the second alleged that the money received on account of said loan by Charles P. Trapp was obtained by him as the agent of the defendant Anna Trapp, for her use and benefit, and by her authority and direction. The case was submitted to the court for trial, and, after hearing the evidence, it found ror the appellees. The appellant then filed his motion for a new trial, which was overruled by the court, and he excepted. Thereupon the court rendered judgment for the appellees, and from it this appeal is taken. The appellant assigns two errors: (1) The court erred in overruling the demurrer to the second paragraph of the separate answer of Anna Trapp. (2) The court erred in overruling the motion for a new trial.

The decisions of this court affirm the doctrine that a married woman is not bound by the mere form of the contract into which she enters, but the facts must control in determining the question whether the wife or her property is surety for another. Vogel v. Leichner, 102 Ind. 55, 1 N. E. 554; Nixon v. Whitely, Fasler & Kelly Co., 120 Ind. 360, 22 N. E. 411; State v. Kennett, 114 Ind. 160, 16 N. E. 173; Voreis v. Nussbaum, 131 Ind. 267, 31 N. E. 70. The contention of appellant's counsel that it is hard to see how the question of suretyship can be raised where there is but one maker of the promissory note sued upon is quite plausible. But this Is no longer an open question. In Miller v. Shields, 124 Ind. 166-171, 24 N. E. 670, the court made the same query, and Berkshire, J., said: "It is quite difficult to imagine the relation of principal and surety without a principal, and equally so to find a substantial reason on which to rest the presumption that, whenever a married woman executes her individual promissory note, she occupies the position of surety for her husband or some other person. It is true it may be shown that the individual note of a married woman was given solely for the benefit of the husband, but, when this is claimed by her, it should be made to appear affirmatively." It thus appears that the form of the contract is immaterial to the defense of

the wife in this kind of a case, save as it may affect the burden of proof, and require the wife to show that, in the execution of the note in suit, she occupied the position of surety for her husband or some other person. It will be observed that the demurrer to the answer of the wife admits that the appellant knew the money was loaned to be applied, and was appropriated by him, to the sole use and benefit of the husband, and knew that the words "for my sole use and benefit only," as well as the form of the supposed contract, did not express the transaction, and parted with his money to the husband, and not the wife, and applied $399 of it in payment of the former's debt. Such facts, if established by evidence, constitute a complete defense to the action, under previous decisions of this court. Appellant's learned counsel, in his brief, says that the evidence clearly shows that Charles P. Trapp had been acting as his wife's agent in the transaction of business, and invokes the legal maxim "qui facit per alium facit per se,""he who acts through another acts himself;" 1. e. the acts of the agent are the acts of the principal. Black, Law Dict. 982. It is also a familiar rule of law that the capacity of a married woman to contract through an agent is now coextensive with her capacity to contract directly. 14 Am. & Eng. Enc. Law, 620; Wilder v. Abernethy, 54 Ala. 644-646. In Hall v. Callahan, 66 Mo. 316, 324, it was said: "She cannot make a contract through an agent which she could not make herself as a contract with reference to her property not separate." And in this state, so far as she is enabled to contract, she may do so in person or by an agent. Vail v. Meyer, 71 Ind. 159-165. But, as shown, she can make no contract charging her separate estate for a debt the consideration for which moves solely to another. Consequently she cannot do so through an agent. In Fechheimer v. Peirce, 70 Mich. 440, 38 N. W. 325, the rule was stated that courts will not indulge the presumption of a husband's authority to act for the wife, and a person seeking to hold her for acts done by another must show affirmatively full authority to bind her. It was again said, in Bank v. Gilchrist, 83 Mich. 253, 47 N. W. 104: "The authority of a husband to act for his wife in the matter of making a loan will not be presumed from the circumstance that he acted for her in other matters, but must be proved, like any other fact, by competent legal evidence." In Voreis v. Nussbaum, 131 Ind. 268, 269, 31 N. E. 70, this court said: "The fact that the husband did, and the wife did not, receive the consideration for which the note was executed, conclusively establishes the proposition that she was a surety, and not the principal, in the note, notwithstanding the forin of the contract."

In this case the trial court decided simply the issue of fact joined between the plaintiff and defendants as stated in the appellee Anna

Trapp's answer and in appellant's reply. We have carefully examined the evidence in this case; and, while it is in some respects conflicting in its character, yet the testimony of the appellees, if believed by the court, conclusively established the facts stated in the answer, and shows that the wife formally made a contract she was prohibited to make. Indeed, appellant admits that he paid all the money to the husband, and made no inquiry of either appellee as to the purpose for which it was to be used. In such case, even if the evidence introduced by the appellant proved an agency, it would be entirely insufficient in law, because it is one to borrow money for the use and benefit of the husband, an agency to make a contract void as to her, for want of legal power to create it. Appellant's counsel argues that, as the note reads "for my sole use and benefit," she ought not be permitted to gainsay the representation. It seems from the evidence in the record that there was no concealment by the appellees, but the facts in this case were equally well known to all the parties concerned at the time the transaction took place, and hence that the dootrine of an estoppel in pais cannot apply. But there is no plea of estoppel, and what the appellant urges as a bar to appellees' defense, based on the language quoted, is outside the issues, and cannot be considered. 1 Work, Pr. § 606.

There was evidence tending to support the conclusion reached by the court, and we will not disturb its judgment. There is no error in the record. Judgment affirmed.

AMERICAN FURNITURE CO. v. TOWN OF BATESVILLE.

(Supreme Court of Indiana. Oct. 17, 1894.) ABATEMENT OF NUISANCE-OBSTRUCTION IN HIGHWAY-SUIT BY CITY-PLEADINGS AND VERDICT.

1. Where concurrent remedies exist for the abatement of a nuisance, the choice and prosecution of one excludes a resort to the other.

2. The power given to town corporations by Rev. St. 1881, § 3333, subd. 4 (Rev. St. 1894, § 4357, subd. 4), "to declare what shall constitute a nuisance and to prevent, abate and remove the same," cannot be exercised by a proceeding in personam, but must be enforced by a general ordinance affecting all property similarly situated.

3. Where a summary method given a town for the abatement of a nuisance confers no right not possessed at common law, it does not preclude a resort to the courts.

4. Where the complaint in an action to abate a nuisance, in one paragraph, describes the obstruction as "on M. street," and in another as in a highway running through the town, and the verdict states the obstruction to be "on the highway, as complained," a decree for abatement of the nuisance "in the highway, between the intersections of C. street and the N. road, in the town," is unauthorized.

Appeal from circuit court, Ripley county; T. C. Batchelor, Judge.

Action by the town of Batesville against the American Furniture Company to abate a

nuisance. Judgment for plaintiff, and defendant appeals. Reversed.

Charles K. Bagot and Adams & Stockinger, for appellant. Rebuck & Connelly, for appellee.

HACKNEY, C. J. The action herein was by the appellee, as an incorporated town, to declare an obstruction of one of her streets a nuisance, for the abatement of such obstruction, and for damages.

The appellant first complains of the action of the circuit court in overruling a demurrer to the first and second paragraphs of complaint. The point urged is that by section 3333, subd. 4, Rev. St. 1881 (section 4357, subd. 4, Rev. St. 1894), towns possess the power "to declare what shall constitute a nuisance and to prevent, abate and remove the same;" that such power permits a remedy excluding a resort to the court for such purposes. The argument is also made that under the power conferred by the statute the town could proceed to declare the obstruction a nuisance, and to abate it by the action of its trustees, notwithstanding a prior adverse adjudication by the courts, if resort to the courts may be had. We cannot concur in this contention. If there are concurring effectual remedies, the choice and uninterrupted prosecution of one excludes the other. Buscher v. Knapp, 107 Ind. 340, 8 N. E. 283; Insurance Co. v. Carpenter, 85 Ind. 350; Klebar v. Town of Corydon, 80 Ind. 95; Searle v. Whipperman, 79 Ind. 424; Dunkle v. Elston, 71 Ind. 585; Ney v. Swinney, 36 Ind. 454. The insistence is that the summary remedy possessed by the town is exclusive of the remedy adopted, and preIcludes a resort to the courts. In support of this point, counsel cite Storms v. Stevens, 104 Ind. 46, 3 N. E. 401, where it is held that a statute creating a new right, and prescribing the mode of its enforcement, excludes all other remedies. The summary abatement of a nuisance was a right which existed at common law in favor of the individual sustaining special injury from such nuisance, and the statute in question but confers that right upon the municipal corporation. It is not a new right. It should be remembered alsc that it is by proceeding ad rem, and not in personam, for herein lies a distinction in the proceeding here in review. The power extended to towns does not permit proceedings in personam, and in the nature of civil actions, which affect particular persons, but, like other corporate powers, must be exer. cised by and through ordinances general in their character, and affecting alike all the property or all the business of all of the citi zens under like conditions, occupying like situations, and conducted in like manner. City of Plymouth v. Schultheis (present term) 35 N. E. 12. Therefore, it would not be possible for the appellee to adopt the remedy here adopted,--a remedy which is personal

in its character, and one which invokes the equity jurisdiction of the court to restrain the person from the further maintenance of that which obstructs the way and affects the corporate rights. It is true that the complaint asks to declare the obstruction a nuisance, and to abate it, but this remedy is sought by and through that jurisdiction which the court may exercise in the first instance over the alleged offender. Authors and the judges speak of the enjoining of nuisances in the same sense as of the abatement of nuisances, and, in a general way, there is no distinction. The abatement in one instance is accomplished through the restraining influence of the court over the defendant, and in the other it is by and through its officers under a decree against the defendant, where, as we have said, the proceeding is in personam. But, whatever distinction may properly exist, it is certain that towns may not, in their corporate capacity, proceed by adversary methods, before their own trustees, to adjudge a particular property or structure a nuisance, and, by order against the owner, secure its abatement. In the case of Cheek v. City of Aurora, 92 Ind. 107, the city had threatened to abate an obstruction of a street as a nuisance, and the owner of the obstruction instituted suit to enjoin the city from its threatened action. The city, by cross complaint, sought to declare the obstruction a nuisance, and prayed that as such it be abated, and the owner enjoined. Upon such cross complaint the city succeeded, and objection was made that the remedy afforded by the statute enabled the city to abate the nuisance, and excluded any remedy by the courts. This court held, quoting from Dill. Mun. Corp. § 659, that "where, by its charter or constituent act, a municipality has the usual control and supervision of the streets and public places, it may, in its corporate name, institute judicial proceedings to prevent or remove obstructions thereon." It is there further said that "the city might have resorted in the first instance to an independent action, seeking the relief obtained in this suit; and the facts which, in such independent action, would have entitled the city to such relief, constituted proper ground of counterclaim in this action." The statute in question gives the power to "prevent" as well as to abate nuisances, and it could as well be contended that this power would preclude the exercise of the equitable jurisdiction of the courts to enjoin the threatened erection of a nuisance within the town (a power certainly possessed. See Wood, Nuis. p. 889) as to insist that such jurisdiction is denied by the possession of the power to abate. Statutes do not, as a rule, take away previous remedies at common law, unless such an intention is declared, but they are held to be cumulative remedies. See People V. Vanderbilt, 26 N. Y. 287. We conclude, therefore, that the complaint is not bad for any of the reasons urged by the appellant.

The complaint, in its first paragraph, describes the obstruction as upon Main street, and in the second as in a highway running north and south through said town. The general verdict finds an obstruction of "the highway as complained." The decree of the court directed the abatement of the obstruction, describing it as "in the highway between the intersection of Catherine street and the Napoleon road in the town," and ordered the removal of the obstruction "from the highway for a distance of twenty-five feet west from the east line of Main street in said town." The court overruled the appellant's motion to modify the decree, so as to eliminate the order of abatement. One ground of the motion was that neither the pleadings nor the verdict sufficiently described the way obstructed as to authorize the description thereof made in the decree. Accepting the general verdict as referring to Main street, by the use of the word "highway," and the decree would probably be authorized, as Main street is a way which, from its name, can be definitely known, and its obstruction located. Indeed, to describe a street by name, and to charge generally its obstruction, would be sufficient in a complaint or indictment, and would, of course, be sufficient in a decree. State v. Buxton, 31 Ind. 67; Elliott, Roads & S. p. 494. The fact, therefore, that the decree more particularly described the location of the obstruction upon such street as between certain intersections, would not defeat the decree. But it will be observed that the general verdict follows the second paragraph of complaint, in designating the way obstructed as "the highway as complained," and in answer to special interrogatories it was found to be a "way running in the same general direction as Main street, * from the intersection of Main and Catherine streets to the Napoleon and Brookville road;" that it was a “public highway," and in width "twentyfive feet west from the east line of Main street." Looking to these answers to interrogatories as interpreting the general verdict, the obstruction found and included in the decree could not have been upon Main street, but was upon some public highway running in the same general direction as Main street, and between the intersections named. The verdict, aided by the answers to interrogatories, though more definite than the allegations of the complaint, was not sufficiently definite to enable one to learn from it where the obstruction might be found. Whether the highway, at the point of obstruction, was within the limits of the town, we have no means of knowing; and, if advised that it was, we do not know from the record that it was the only public highway so running between said intersections. The decree is as definite as the verdict so aided by the answers to interrogatories, but we cannot say that it can be made certain in the loca tion of such way. We do not inquire as to

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