In the case of Myers v. Smith, supra, the action was brought on a contract claimed to have been made by correspondence, in which the letters were as follows: "J. Myers, Esq., Ilion-Dear Sir: "Yours of the 15th inst. came to hand, and I have refrained from answering till now, expecting to hear from parties I was negotiating with before receiving your letter. The malt I have is at Weedsport. I will sell you ten thousand bushels of the malt, 34 pounds to the bushel, 22 per cent. off for screenings. at ($1.54) one dollar and fifty-four cents per bushel, delivered at Weedsport. Answer by return mail, and direct the letter to Weedsport. Respectfully yours, Thomas Smith, per G. O. Smith." This letter was answered within an hour of its receipt, and the reply was as follows: "Ilion, June 20, 1864. Thomas Smith-Dear Sir: Your letter under date of June 18th came to hand this (Monday) forenoon. I will take your malt, ten thousand bushels, deliverable on boat at Weedsport, at 154 cents for 34 pounds to the bushel, and 2% off for dust or screenings. I will be up as soon as I can get away from home, which will be the last of the week or the fore part of next week. Respectfully, yours, J. Myers." The court in this case held that there was a variance between the proposal and alleged acceptance in the use of the words "delivered" and "deliverable," and that the proposed visit of the plaintiff to the defendant carried with it the necessary implication that it was for the purpose of inspecting the malt prior to a full close of the negotiations. The language of the court is as follows: "An acceptance must be in the words of, or must be entirely accordant with, the terms and conditions of an offer, to bind a party who makes the proposition. In this case the variance made the acceptance a different thing from the offer. As thus expressed, it could not have been claimed by the defendant to be binding upon plaintiff, and he could not have maintained an action for its alleged breach; and for this reason, as well as upon the ground that there was a contingency expressed in the letter,-to wit, the visit of the plaintiff to the defendant, and an inspection of the malt prior to a full close of the negotiation,-the defendant could not have enforced it as a valid contract against the plaintiff, if he had repudiated its obligations."

In the case of Martin v. Fuel Co., 22 Fed. 596, a proposition was made by the plaintiff, by telegraph, to sell coal at a certain

made: "Telegram received. You can consider the coal sold. Will be in Cleveland next week, and arrange particulars." The question before the court was whether these two dispatches made a definite contract between the parties; whether there was a direct, unqualified acceptance of the terms offered. The court held that there was not (after citing approvingly the case of Myers v. Smith, supra), in the following language: "So it seems to me that the telegram carrying to the proposed vendor a statement from the proposed vendee that he will come to Cleveland, to his place of business, and arrange particulars, carries with it a fair implication that the particulars are to be arranged before the contract is finally consummated." In construing the phrase, "You may consider the coal sold," Judge Brewer, now on the supreme bench of the United States, in Martin v. Fuel Co., supra, decided that the expression was not a natural one when a definite acceptance of an offer was intended, but was more equivalent to this: "There is so little to be settled, and I am so sure that all can be arranged, that you are safe in looking upon the sale as closed, and prepare to make your arrangements accordingly. You may consider,-you may understand,-that this contract is going to be consummated, and that I will come to Cleveland, and we will fix it up."

It is not necessary to go to the full extent of these authorities in this case. In this case, the special work referred to in the correspondence is not made therein certain and definite. There is no provision made indicating how long the proposed arrangement was to remain in force, or the terms and conditions upon which it could be terminated. Under the circumstances disclosed in the answer, it is proper to look at the whole correspondence between the parties in relation to this subject-matter in order to determine the intention of the parties. In the letter of appellant written on the 19th of March, 1889, he says: "I would not need him in case anything should occur that you would not wish my services." This language, in connection with his desire to see the president, in order to make an arrangement "to do the whole work, the adjustments and other work,”—is significant as tending to show that he did not regard the contract as complete. The only language indicating an acceptance of appellant's proposal is the expression in appellee's letter, "I am prepared to make the arrangement with you for special work in Indiana." There was no unqualified and unequivocal acceptance of appellant's proposition in terms. It is simply equivalent to saying, "I am ready to execute agreement on terms proposed by you when details are settled." This is evidently the manner in which appellant understood the correspondence. In our opinion, there was no error in overruling demurrer to answer. Judgment affirmed.

(139 Ind. 462) THOMAS v. CHICAGO & L. E. RY. CO.1 (Supreme Court of Indiana. Nov. 27, 1894.) APPEALABLE Order.

An order sustaining a demurrer to evidence is not appealable.

Appeal from circuit court, Huntington county; O. W. Whitelock, Judge.

Action by Sampson M. Thomas, administrator of James L. Platt, against the Chicago & Lake Erie Railway Company for injuries causing death. From an order sustaining a demurrer to plaintiff's evidence, he appeals. Dismissed.

Mock & Simmons and Watkins & Dungan, for appellant. Otto Gresham, for appellee.

MCCABE, J. The appellant, as administrator of the estate of James L. Platt, deceased, sued he appellee in the Wells circuit court to recover $10,000 damages to the widow and child of said decedent caused by the alleged negligence of the appellee in causing the death of said decedent. The venue of the cause was changed to the Huntington circuit court, where, upon the issues formed upon the complaint, there was a jury trial. At the close of the appellant's evidence, the appellee demurred to the evidence. The evidence is all properly set out in the demurrer. The circuit court sustained the demurrer to the evidence, and the appellant duly excepted, and prayed an appeal to the supreme court, which was granted. There was no judgment of any kind rendered by the circuit court, though the appellant's learned counsel in their brief say that the appellee filed its demurrer to the evidence, which the court sustained, withdrew the cause from the jury, and rendered judgment for the defendant, appellee, from which judgment counsel say the plaintiff, appellant, appeals to this court. No such judgment is found in the record. The ruling sustaining the demurrer to the evidence is assigned as the only error.

Appeals are only authorized by statute from final judgments. 1 Burns' Rev. St. 1894, § 644 (Rev. St. 1881, § 632). There are some exceptions to the general rule provided by the statute where appeals are authorized from certain interlocutory orders, but the case before us does not fall within any of those exceptions. 1 Burns' Rev. St. 1894, § 658 (Rev. St. 1881, § 646). To constitute a final judgment within the meaning of the statute so as to authorize an appeal, the order appealed from must make a final disposition of the cause. Northcutt v. Buckles, 60 Ind. 577; Thiebaud v. Dufour, 57 Ind. 589; Taylor v. Board, 120 Ind. 121, 22 N. E. 108; State v. Spencer, 92 Ind. 115; State v. Evansville & T. H. R. Co., 107 Ind. 581, 8 N. E. 619; McGuire v. State, 119 Ind. 499, 21 N. E. 1100; Champ v. Kendrick, 130 Ind. 545, 30 N. E. 635. An appeal cannot be taken by persons when no judgment is rendered for or against such persons. Jager v. Doherty, 61 Ind. 528; Elliott, App. Proc., 1 See 46 N. E. 73.

a

§§ 80-83. "Here there was no judgment rendered for or against anybody, nor did the order sustaining the demurrer to the evidence make a final disposition of the cause. It was mere interlocutory order, liable to be changed before the final disposition of the cause. "The general rule," says Judge Elliott, "that appeals lie only from final judgments, is so essential to the orderly administration of justice, and has so much to commend it, that it is with reason that statutory provisions creating exceptions are construed with some strictness. The doctrine is that where a general rule exists, and a party asserts that his case forms an exception to the rule, he must show substantial grounds for his claim, or the case will be brought under the rule. This doctrine is applied with liberality to prevent appeals from intermediate rulings or interlocutory orders, for, in almost every form in which the question has been presented, the courts have exhibited their reluctance to multiply or recognize exceptions to the general rule. * The ob

ject of the rule is to prevent the multiplication of appeals, and to require parties to submit a case once for all." Id. § 84. Here, should we entertain this appeal, and reverse the interlocutory order, and remand the cause for further proceedings, it would become the duty of the trial court to make a finding, assess the damages, and render judgment thereon. From such judgment either party could appeal. Thus we should have two appeals in a cause where there had been but one trial thereof. The same author, Judge Elliott, further says, in section 82, already cited, that: "No order is final, in such a sense as to constitute a final judgment, unless it disposes of the main case so far as there is power in the trial court to decide upon the questions presented by the issues, no matter how clearly and decisively the order may indicate what the ultimate judgment will be. Until there is an ultimate judgment, the case is not finally disposed of, inasmuch as the trial court may change its rulings, award a venire de novo, grant a new trial, or make some such order, notwithstanding the fact that in other rulings it may have clearly manifested a purpose to carry its rulings into the ultimate judgment or decree. The rule that, no matter how decisive may seem the ruling of the trial court, it is not a final judgment, is well illustrated by the cases in which rulings were made denying a motion for judgment on a special verdict, or on the answers of a jury to special interrogatories; for such a ruling is seemingly as clearly indicative of what the final judgment will be as it is possible for any order to be, except, of course, the ultimate judgment itself." See Improvement Co. v. Wagner, 134 Ind. 698, 34 N. E. 535. Here, also, the ruling on the demurrer to the evidence clearly indicated what the ultimate judgment must be if the ruling was adhered to and remained unchanged; yet such ruling remained subject

to change or modification until the final judgment should be rendered on the demurrer. After judgment on the demurrer is rendered, there can be no change of the ruling on the demurrer. The final judgment, had the circuit court adhered to its ruling on the demurrer, should have been that the plaintiff take nothing by his suit, and that the defendant recover of him his costs. We hold that the order of the circuit court sustaining the demurrer to the evidence from which this appeal is prosecuted was a mere interlocutory order, and not a final judgment, and that no appeal lies therefrom. The appeal is therefore dismissed.

(139 Ind. 474)

HUGHES v. HUGHES et al. (Supreme Court of Indiana. Nov. 27, 1894.) RECORD ON APPEAL-CERTIFICATE AS TO EVIDENCE.

1. Where appellant fails to argue an assignment of error, it will be deemed waived.

2. As evidence can be brought into the record only by bill of exceptions, the fact that the manuscript of the official reporter was included in the transcript does not make the evidence part of the record.

3. In order to bring the evidence into the record, the bill of exceptions must be signed by the trial judge before the transcript is certified by the clerk.

The

first specification, it is thereby waived. second specification is that "the court erred in overruling appellants' motion for a new trial." The argument of counsel in support of this contention is based upon certain evidence claimed to have been introduced on the trial; but the evidence is not in the record. By reference to the clerk's certificate it appears that the longhand manuscript filed by the official reporter of the court is included in the transcript. It is well settled, however, that the evidence can be brought into the record only by bill of exceptions, and the filing of the longhand manuscript by the reporter is insufficient. The clerk's certificate in the cause is dated August 25, 1893. On September 2d following that date, the transcript as an entirety was presented to the court, and certified by it as being correct. The judge's certificate is not in the transcript at all, but follows the clerk's certificate thereto, and is therefore outside of the record. It is the proper practice to have the clerk certify that the record is correctly presented by the transcript, but here the court makes that certificate. If it was intended to have the court's signature to the portion including the evidence, it would have been necessary to get it before the transcript was made, and file the bill so signed as a paper in the cause. Until this is done it is not a

Proceeding by William T. Hughes for the establishment of a public ditch on his own and on lands of Ella T. Hughes and others. Judgment was rendered for plaintiff, and defendants appeal. Affirmed.

Cooper & Suit, for appellants. Mr. Morrison, for appellee.

DAILEY, J. The appellee, William T. Hughes, petitioned the Clinton circuit court for the establishment and construction of a public ditch. The petition therefor is in proper form, and shows the petitioner to be the owner of certain lands therein described, and the defendants to said proceeding to be the owners of certain other specified lands, which it is claimed would be beneficially affected by locating and constructing the ditch prayed for upon a route designated in said petition. Upon the filing of the report of the commissioners of drainage, the appellants and others remonstrated. This report was then withdrawn, and leave was granted to file a new report. At a subsequent term of court, a second report was filed, to which the appellants remonstrated. Thereupon a trial was had, resulting in a finding for the appellee. The court then ordered the drainage prayed for, and approved the assessments made therefor. The appellants moved for a new trial, which was overruled, and exceptions thereto duly taken, after which an appeal was prayed and granted.

There are two assignments of error, but, as the applicants have failed to urge the

in the record. The date of the judge's signature shows that he did not append his name to anything until after the transcript was made and signed by the clerk, and that it cannot include a bill of exceptions containing the evidence. It brings to light clearly the fact that no such bill, even if signed, was ever filed, and until that time it is no part of the record. Indeed, the clerk does not state that the bill was ever filed, and, aside from this, the place of the judge's signature does not indicate that it was intended to be attached to or connected with any bill of exceptions. There are other complaints made concerning the proceedings of the trial court, but, owing to the state of the record, they are not available, and we need give them no attention. The judgment is affirmed, with costs.

(139 Ind. 458)

LEVI et al. v. DRUDGE et al. (Supreme Court of Indiana. Nov. 26, 1894.) ANSWER-MOTION TO STRIKE PARAGRAPH-HARM LESS ERROR-JUDGMENT-MODIFICATION. 1. The striking out of certain paragraphs in an answer was not reversible error where the jury afterwards found by special verdict that the facts averred therein did not exist.

2. In an action to foreclose a mortgage, a motion to modify a judgment rendered against several defendants so that it may stand as a personal judgment against one as principal, and against the others as sureties, should be overruled if no such issue was raised on the trial.

Appeal from circuit court, Fulton county: A. C. Capron, Judge.

Action by Jeremiah Drudge and another against Theressa Levi and others on promissory notes, and to foreclose a mortgage. Judgment for plaintiffs, and defendants appeal. Affirmed.

Myers, Holman & Stephenson, Essick & Montgomery, and J. H. Bibler, for appellants. Rawley & Baker and Conner & McMahan, for appellees.

COFFEY, C. J. This was an action by the appellee Jeremiah Drudge, in the Fulton circuit court, against the appellants, Theressa Levi, Joseph Levi, and James Sams, to recover the amount alleged to be due on two several promissory notes executed by them to Wilhelm Blohm, and to foreclose a mortgage on certain described real estate in Fulton county, to secure the same. The appellants filed an answer in five paragraphs, and also a cross complaint against the appellees, Jeremiah Drudge and Julius Rawley. The court on motion struck out the third and fifth paragraphs of the answer, and the appellants excepted. Upon issues formed on the re maining answers and the cross complaint, the cause was tried by a jury, resulting in a special verdict upon which the court rendered judgment in favor of the appellee Drudge. The material facts in the case, as they appear by the special verdict, are that on the 2d day of July, 1888, the appellants, Theressa Levi, Joseph Levi, and James Sams, purchased of Wilhelm Blohm the land described in the complaint, and executed the notes and mortgage in suit to secure part of the purchase price. At the time Sams executed the notes and mortgage, he was a minor, under 21 years of age. Before either of the notes became due, Blohm died in testate, and one Davis was appointed administrator of his estate. By order of the proper court, the administrator sold and assigned the notes and mortgage to the ap pellee Drudge. Julius Rawley subsequently purchased the land described in the complaint, and as a part of the purchase price verbally assumed and agreed to pay the notes and mortgage in suit, and by his direction the appellants, Theressa Levi, Joseph Levi, and James Sams, conveyed the land to Willis McHenry. McHenry subsequently conveyed the land to Cora R. Bouk, but neither of these parties paid any consideration for such conveyances, the same having been made at the request of Rawley.

It is claimed by the appellants that the circuit court erred-First, in striking out the third and fifth paragraphs of their answer; second, that the court erred in overruling the motion of appellants for judgment in their favor on the special verdict; third, that the circuit court erred in overruling the motion of the appellants to modify the judg ment. As to the first error alleged, it may be remarked that it appears by the special verdict of the jury that the facts averred

swer.

in the third paragraph of the answer did not in fact exist. The appellants were not, therefore, injured by the ruling of the court in striking out that paragraph of their anTo authorize a reversal of the judgment, it is necessary, not only that the ap pellants should show that the court erred but they must go one step further, and show that the error was of such a character as that it probably injured them. Here it affirmatively appears that they were not injured by the ruling of which they complain, All the material averments found in the fifth paragraph of the answer were contained in the fourth paragraph, upon which issue was Joined. The appellants were not therefore injured by striking out the fifth paragraph. The appellants were not entitled to judgment in their favor on the special verdict of the jury, but, on the contrary, it fully justified, we think, the action of the court in rendering judgment in favor of the appellees. After the rendition of the judgment in this case, the appellants Theressa Levi and Joseph Levi filed a motion praying the court to so modify the judgment as to render a personal judgment against Julius Rawley, as principal, and against them, as sureties, for the amount found due the appellee Drudge. The court did not err in overruling this mo tion, for several reasons, chief among which was that there was no issue in the case authorizing such a judgment. But, if there had been such an issue, it may well be doubted as to whether the appellee Drudge could be delayed in the collection of his debt because his debtors could not agree as to which one was primarily liable. There was no personal judgment rendered against Sams by reason of the fact that he was a minor at the time the notes in suit were executed. There is no error in the record for which the judgment should be reversed, and the same is, for that reason, affirmed.

(140 Ind. 41)

STATE ex rel. McCOY v. KROST, Recorder.1 (Supreme Court of Indiana. Nov. 27, 1894.) RECORDING FEE-VALIDITY OF ACT-SPECIAL LEGISLATION.

1. The fact that Act March 9, 1891, provides a salary for the recorder of every county but Shelby, does not invalidate the section of the act providing that the recorders of all the counties in the state shall be entitled to a fee of one dollar for recording a mortgage.

2. Act March 9, 1891, fixing the fees for certain officers, is not a special law because it provides that it shall not affect persons elected to office before it takes effect.

Appeal from circuit court, Lake county; J. H. Gillett, Judge.

Application for a writ of mandamus, on the relation of Thomas McCoy, to compel John F. Krost to accept a fee of one dollar for recording a mortgage. From a judgment denying the writ, the relator appeals. Re versed.

Rehearing denied.

Peterson, Blackledge & Thornton and Alonzo G. Smith, for appellant. J. Kopelke, for appellee.

HACKNEY, J. The appellee was elected recorder of Lake county in the year 1892, and thereafter the appellant relator demanded the recording of a mortgage, and tendered, as the fee therefor, the sum of $1. Upon the refusal of the appellee to record said mortgage for less than $1.25, the appellant relator sought and was denied the writ of mandamus to enforce his said demand. No question is made as to the form of the petition, but the appellee insists that, while the act of March 9, 1891 (Acts 1891, p. 424), provides that the fee for the service demanded is $1, said act is unconstitutional, and therefore he was entitled, under the law of 1875 (Rev. St. 1881, § 5946), to $1.25. The insistence is that the act in question violates sections 22 and 23, art. 4, of the state constitution, which provide against the passage of local or special laws "in relation to fees and salaries, except that the laws may be so made as to grade the compensation of officers in proportion to the population and the necessary services required," and providing that, "in all cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state." Much of the discussion of counsel has been directed to the proposition that the failure of the legislature to provide a salary for the recorder of Shelby county, while providing salaries for the recorders of the other 91 counties of the state, brought the enactment within the above constitutional inhibitions. The real question at issue upon the record is one not of the salary provided by the act of 1891, but concerns only the fee with which the appellant was properly chargeable for the recording of his mortgage, -a question arising between the citizen who demanded the service and the officer whose duty it was to perform that service. The act of 1891 provided a salary for the appellee, and required him to pay the receipts of his office into the county treasury, to constitute a fund with which to pay that salary; but the question before us does not arise between the appellee and the treasurer as to the duty of paying the fees into the treasury, nor as to drawing the salary therefrom, nor does it involve an inquiry as to the claims of the appellee or of his county to the fee for recording the relator's mortgage. Our investigation, therefore, must be confined to the validity of the law so far as it prescribes the fee for recording mortgages, unless it shall be found that the fee provisions and the salary provisions of the law are so interdependent as to cause the fall of either by the invalidity of the other. A full reading of the act will disclose that the system of fees therein provided is complete, not only with reference to the services of all recorders of the state, but also as to all

other offices whose incumbents are required to perform services for persons applying therefor. The validity of the act, so far as it provides salaries for the various officers, could not and should not affect the question as to what fees should be charged to and collected from the citizen; and if the salary provisions of the act were entirely eliminated, no good reason appears for holding invalid the system of fees so provided, when considered with reference to the authority of the lawmaking power and the rights of such citizen. No one would contend that the legislature might not provide that a fee heretofore charged for recording a mortgage should be more or less in the future. This position is not controverted; but it is stoutly contended that the act, considering alone its provision of a system of fees violates the constitutional inhibitions above quoted, since it was provided by section 136 of the act that the provisions of the act should not apply to officers elected before the taking effect of the act. This contention was urged in Henderson v. State, 137 Ind. - 36 N. E. 257, as affecting both the salary and the fee provisions of said act; and it was there held that the postponement of the operation of the act, though in doing so officers in various parts of the state were governed, some by the act of 1875 and others by the act of 1891, did not render the act local or special, and did not violate the requirement that it should be uniform in its operation. We adhere to the ruling in that case. That case is adhered to as supporting also our conclusion that a constitutional question will not be entertained unless it is directly in issue, and is essential to the decision of the case, and, further, as upholding our view that the whole act should not go down because of the invalidity of some part of the act, which, if eliminated, would not affect the operation of that remaining. We do not find it necessary to decide, as counsel seem to imply, that officers are entitled to neither the fees nor the salary, because the law may be unconstitutional so far as it attempts to create a system of salaries; but we do hold that the question presented is, what fee may be collected for recording a mortgage by a recorder who has been elected since the act of 1891 went into effect? and that we must answer, "One dollar." The decree of the circuit court is reversed, with directions to grant the writ as prayed by the relator, and for further proceedings in accordance with this opinion