appellee; (2) that it was not in fact made | conclusions of law are effective only so far a defendant below, and hence should not be as they are carried into the judgment, and made an appellee in this court.

that only parties to the judgment are neces[2] First addressing ourselves to the second sary parties to the appeal. Lowe v. Turpie, branch of this contention, it is true, as ap- 147 Ind. 652, 692, 44 N. E. 25, 47 N. E. 150, pellant insists, that in determining who are 37 L. R. A. 233, and cases there cited. parties to the judgment appealed from, "the [6] In this case there is a judgment that S. appellate tribunal will look through the rec-"take nothing by his action herein." This is ord to the pleadings, and, if necessary, to the necessarily a judgment against S., and in fasummons." Bozeman v. Cale, 139 Ind. 187, 35 vor of all the defendants to his action includN. E. 828; City of Decatur v. Eady, 105 N. E. ing the creamery company. 590.

[7] True, the judgment for costs against S. is in favor of the trust company and the receiver of the creamery company alone, but this fact is not of controlling importance in

[3] We are unable to see how appellant is benefited by this rule. The record entry of January 25th, supra, showing the filing of appellant's petition, discloses that he made determining who were parties to the judgboth the creamery company and the receiver thereof parties to his petition, and that summons was ordered for all defendants except said receiver. In his petition appellant complains of both the creamery company and its receiver, Michael Boland, and the record entry of March 3d, quoted supra, shows an appearance by both the creamery company and such receiver. Conclusion of law No. 4, supra, is a conclusion in favor of both the creamery company and its said receiver, that they both "recover of said interveners and petitioners their costs." These affirmative facts, disclosed by the record, leave little thorities as tending to throw some light on ground for appellant's contention that the creamery company was made a defendant through its receiver alone.

ment on the merits. The judgment for costs is merely incidental to the judgment on the merits, and instead of the former controlling the latter, it, the judgment for costs, is controlled by and should follow the judgment on the merits. Neyens v. Flesher, 39 Ind. App. 399, 403, 79 N. E. 1087, and cases there cited. [8] As to the first phase, supra, of appellant's contention, it is sufficient to say that it is not necessary that we should determine whether the creamery company was a necessary defendant to appellant's intervening petition. However, we cite the following au

this question: Kokomo, etc., Co. v. Pittsburg, etc., Co., 25 Ind. App. 335, 336, 58 N. E. 211; McFarland v. Pierce, 151 Ind. 546, 45 N. E. Appellant attaches importance to the fact 706, 47 N. E. 1; Mueller v. Stinesville, etc., that no summons was asked or had upon the Co., 154 Ind. 230, 56 N. E. 222; Durbin v. creamery company. This fact is consistent Northwestern, etc., Co., 36 Ind. App. 123, 134, with his contention that it was not his inten-73 N. E. 297; Henry v. Epstein, 50 Ind. App. tion to make the creamery company a defend- 660, 666, 95 N. E. 275; Pilliod v. Angola, etc., ant to his intervening petition, but it is in- Co., 46 Ind. App. 719, 728, 729, 91 N. E. 829; consistent with the express averment of his Northern Pac., etc., Co. v. Hiflin, 83 Fed. 93, petition, indicated supra, and with the rec- 94, 27 C. C. A. 460; Ohio, etc., Co. v. Nickless, ord entries, supra, which expressly show that 71 Ind. 271, 276; Chemical, etc., Bank v. such company was made a party to such pe- Hartford, etc., Co., 161 U. S. 1, 16 Sup. Ct. tition and appeared thereto. While it is true 439, 40 L. Ed. 595; Pringle v. Woolworth, 90 that this court, where necessary, will go back N. Y. 502, 510; Johnson v. Southern Co. (C. to the summons to ascertain who were the C.) 99 Fed. 646, 649; Thompson on Corporaparties to the judgment below, there is no tions (1st Ed.) §§ 6893–6903; 23 Am. & Eng. necessity to do so in this case, because the Encyc. Law (2d Ed.) pp. 1041 et seq., and record shows an appearance to said petition 1122 et seq. by said creamery company.

The creamery company was, under the au[4] Appellant also attaches some impor- thorities cited, at least a proper party detance to the fact that no answer was filed fendant, and in any event, in his petition, apby the creamery company; it being insisted pellant included it as one of the parties comthat this shows that the creamery company plained of, and hence is now in no position to was not regarded as a party. While this be heard to say that it was not a proper parfact may lend some support to appellant's con- ty defendant thereto. Clearspring Towntention, it cannot control said affirmative ship v. Blough, 173 Ind. 15, 88 N. E. 511, 513, facts disclosed by the record. "The volun- 89 N. E. 369. tary submission of a cause for trial waives the failure to file pleadings forming an issue." Hose v. Allwein, 91 Ind. 497, 501; Farmers' Loan, etc., Co. v. Canada, etc., Co., 127 Ind. 250, 254, 26 N. E. 784, 11 L. R. A. 740; Purple et al. v. Farrington, 119 Ind. 164, 169, 21 N. E. 543, 4 L. R. A. 535.

[5] It is further contended by appellant that there is no judgment against the creamery company. It is true that the finding and

[9] The creamery company, being a defendant below, and a party to and interested in maintaining the judgment appealed from, is a necessary appellee in this court, and the failure to make it such leaves this court without authority or jurisdiction to disturb such judgment as to it, and hence necessitates a dismissal of the appeal.

Assuming, however, that the court has jurisdiction to determine the appeal on its mer

its, the judgment below would have to be affirmed. Appellant, both in oral argument and in his brief, predicates his right to a reversal of the judgment below upon the ground that neither the finding nor the evidence shows that the creamery company ever had either a legal or equitable title to the real estate in controversy. We are convinced that under the law applicable to the facts shown both by the finding and the evidence, the trial court was warranted in concluding that such company at least had the equitable title to the real estate involved.

However, for the reasons already indicated, the appeal must be and is dismissed.

(64 Ind. App. 496)

QUIRK v. KIRK. (No. 9156.) * (Appellate Court of Indiana, Division No. 1. Nov. 22, 1916.)

PER

DESCENT AND DISTRIBUTION 52(1)
SONALTY-RIGHTS OF WIDOW AND MOTHER.

Burns' Ann. St. 1914, § 2848, provides that, if the personalty is insufficient to pay debts, the realty shall be sold to pay them, and section 2927 provides that surplus after payment of intestate's debts shall be distributed to heirs as of date of his death. Section 3025 provides that, if a man die intestate leaving a widow, one-third of his estate shall go to her, subject to debts. Section 3027 provides that, if husband or wife die intestate and the realty and personalty does not exceed $1,000, the whole shall go to the spouse. Held, not to entitle the spouse to all the personal property remaining after payment of debts and expenses; both his personalty and realty must have amounted only to $1,000, regardless of the balance remaining after administration.

[Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 135-140; Dec. Dig. 52(1).]

Appeal from Circuit Court, Rush County; Raymond Springer, Special Judge.

Mary E. Kirk filed final report as administratrix of Bartholomew W. Kirk, deceased, and asked for distribution, to which Johanna Quirk filed exceptions. From an order sustaining demurrer to the exceptions, contestant appeals. Reversed, with instructions.

John H. Kiplinger, of Rushville, for appellant. Howard E. Barrett, of Rushville, for appellee.

MCNUTT, J. The appellee, Mary E. Kirk, as administratrix of the estate of Bartholomew W. Kirk, deceased, filed her final report, as such administratrix, in the court below, showing a balance in her hands of $466.94 to be distributed to the heirs. Said report further shows that said decedent died intestate at Rush county, Ind., leaving, as his only heirs at law, his widow, appellee herein, and his mother, appellant herein. Said report further alleges:

"That said decedent at the time of his death was the owner in fee of real estate in Rush

county of the value of $4,300, and that said real estate has continued ever since to be and is now above administered, at the death of said deceworth said sum. That the personal property dent, was of the value of $2,530.20, and continued to be of the same value up until the same was disposed of as herein shown. That said real the estate owned or possessed by said decedent estate and said personal property comprised all at the time of his death or in which he had any interest. Wherefore said administratrix asks that she be allowed credit for said sum of $150 (voucher No. 32) for her services as such admin(voucher Nos. 11 & 31) for the services for her istratrix, and for the further sum of $150 attorney, and she further asks that said sum of $466.94 (voucher No. 34) be awarded to her on account of the indebtedness of said estate and the expense of administering the same exceeding the one-fourth of said entire estate."

To this report appellant filed exceptions, contending that the personal estate, after paying debts and the expense of settling the same, should be divided, three-fourths to appellee and one-fourth to appellant. To these exceptions the appellee filed a demurrer, which was sustained by the court, and this is the only question involved in this appeal, by the assignment of errors.

Section 3027, Burns 1914, provides:

"If a husband or wife die intestate, leaving no child, but leaving a father and mother, or either of them, then his or her property, real and personal, shall descend three-fourths to the widow or widower, and one-fourth to the father and mother jointly, or to the survivor of them; provided, that if the whole amount of property, real and personal, do not exceed $1,000.00, the whole shall go to such widow or widower."

Appellee insists that, under said section, she is entitled to three-fourths of the personal property left by the decedent against all persons, except creditors, and that she is entitled to have appellant's share exhausted before resorting to her own share to pay debts; and that, inasmuch as the debts and expenses amounted to more than one-fourth of the personal, appellant is entitled to none of said balance.

Appellee relies upon the case of Matthews v. Pate, 93 Ind. 443, to support her contention. We do not think that the case relied upon in any way supports appellee's conof section 3027, supra, only so far as it aftention. That case involves a construction fects the rights of a widow, as against a parent in the real estate of a decedent, and ent, under said section, must first be exholds that the one-fourth going to the parhausted before resorting to any part of the widow's share to pay debts. This holding is fully justified by the statutes regulating the descent of real estate. However, a different ulating the descent of personal property. rule prevails under the various statutes reg

Section 2848, Burns 1914, provides:

insufficient for the payment of the liabilities
"If the personal estate of a decedent shall be
shall be sold to make assets for the payment of
thereof, the real estate of the deceased, if any,
such liabilities."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied. Transfer denied.

Section 2927, Burns 1914, provides: "When the deceased shall have died intestate, the surplus of his estate remaining in the hands of the executor or the administrator, after the payment of debts and expenses of administration, shall be distributed to the legal heirs of the deceased according to the laws of this state in force at the time of his death. * *

Section 3025, Burns 1914, provides: "If a man die testate leaving a widow, onethird of his personal estate shall descend to said widow, subject, however, to its proportion of the debts of said decedent."

It has been repeatedly held that the personal property of a decedent is a primary fund for the payment of debts and expenses of settling the estate, regardless of who the heirs are. Under the plain provisions of the above statutes there could be no other holding. Ditton v. Hart, 175 Ind. 585, 95 N. E. 119; LaPlante v. Convery, 98 Ind. 499; Newcomer v. Wallace, 30 Ind. 216; Roberts v. Dimmett, 45 Ind. App. 566, 88 N. E. 870.

It is shown by appellee's final report that the decedent left real estate of the value of $4,300 and personal property of the value of $2,530.20. In order to entitle appellee to all the personal property remaining, after the payment of debts and expenses of settling the estate, it would have to appear that the whole estate left by decedent amounted to no more than $1,000.

ants and to the insurance company shortly after he obtained the release from plaintiff, and that the release was produced by defendants at the trial and was relied upon as showing full payment of their liability to plaintiff.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4075, 4101, 4542; Dec. Dig. 1170(3); Parties, Cent. Dig. § 155.] 3. PLEADING 18-COMPLAINT-REQUISITES. The complaint must state the cause of action in certain and direct terms, sufficient to fully inform the defendant of what he is called upon to meet, but need not go into an elaboration of details not essential to that end.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 39, 64; Dec. Dig. 18.] 4. COSTS ~277(1) COLLECTION STAY OF SUBSEQUENT PROCEEDINGS-DISCRETION OF COURT.

A stay of proceedings until the payment of costs in a former action generally, if not universally, relates to a second suit on the same cause of action as the former suit, and in any event the stay cannot be obtained as a matter of absolute right; but the request therefor presents a question of sound judicial discretion, to be exercised in accordance with the circumstances of each particular case.

[Ed. Note. For other cases, see Costs, Cent. Dig. §§ 1048, 1058; Dec. Dig. 277(1).] 5. COSTS 277(1) - COLLECTION - STAY OF SUBSEQUENT PROCEEDINGS - DISCRETION OF COURT.

The refusal to stay proceedings, in an action on a contract to employ plaintiff as part consideration of a release of claim for injuries, till

It follows that the court erred in sustain-payment of costs in a former action for the ining the demurrer to the exceptions.

The judgment of the court below is reversed, with instructions to overrule said demurrer and for further proceedings not Inconsistent with this opinion.

(65 Ind. App. 255)

CARTER et al. v. RICHART. (No. 9144.) * (Appellate Court of Indiana, Division No. 1. Nov. 21, 1916.)

1. MASTER AND SERVANT 39(1)-CONTRACT OF EMPLOYMENT ACTION FOR BREACH

PLEADING.

A complaint in an action on agreement of defendants to employ plaintiff as part of the consideration for release of claim for injuries, held sufficient against demurrer for insufficiency of facts.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 12, 45; Dec. Dig. 39(1).]

juries, is not an abuse of discretion.

Dig. §§ 1048, 1058; Dec. Dig. 277(1).]
[Ed. Note. For other cases, see Costs, Cent.

6. PRINCIPAL AND AGENT 123(3)—LIABILI-
TIES TO THIRD PERSONS AUTHORITY OF
AGENT-SUFFICIENCY OF EVIDENCE.

Facts need not be proven by direct and positive evidence, and if a fact may reasonably be inferred from the facts and circumstances in evidence, it is sufficient on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3908-3911; Dec. Dig. 996.]

155(1) - RIGHTS AND LIABILITIES AS TO THIRD PERSONS ACTS EXCEEDING AUTHORITY.

Where an agent is clothed with apparent authority to settle a claim against his principals for personal injuries, if he exceeded his authority and the claimant was not apprised of that fact, the loss, if any, would fall on the principals rather than on the claimant.

2. APPEAL AND ERROR 1170(3)-REVIEW-8. PRINCIPAL AND AGENT HARMLESS ERROR-RULINGS ON PLEADINGS. In an action for breach of a contract to employ plaintiff as part of the consideration for his release of a claim for personal injuries, while it would have been proper to sustain a motion to make the complaint more specific by inserting the name of the person who was the agent of defendants in making the alleged contract, yet, under Burns' Ann. St. 1914, §§ 400, 407, 700, requiring the court to disregard errors or defects not affecting the substantial rights of the parties, the denial of the motion is not ground for reversal where defendants were fully advised before institution of the suit as to who conducted the negotiations which resulted in the settle- An agreement, in part consideration for the ment in question, and it appears that the agent release of a claim for personal injuries, to emin question reported the settlement to defend- ploy the claimant at his old wages as long as he For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 574, 578; Dec. Dig. m 155(1).]

9. CONTRACTS 9(2)—CONTRACT OF EMPLOYMENT-DEFINITENESS.

was able to work, where he had received at least 25 cents per hour as his average wage for several years, was sufficiently definite to make a valid contract.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 16; Dec. Dig. 9(2).] 10. EVIDENCE 419(20)

· PAROL EVIDENCE AFFECTING WRITINGS-CONSIDERATION. By executing a release of claim for personal injuries, the claimant is not precluded from showing the actual consideration for which it

The complaint is in substance as follows: The appellants were partners doing business under the name of Carter, Lee & Co. and engaged in the manufacture of lumber, doors, sash, and other materials, in the city of Indianapolis; that appellee was employed by appellants to operate a ripsaw run by electricity, and while so engaged on August 21, 1911, was injured by reason of appellants' negligent failure to properly guard the saw; that by reason thereof he lost one finger, and two others were seriously injured; that at and prior to such injury he was earning and receiving $15 per week for his labor; that on or about September 1, 1911, appellants recInstructions that where one holds a contract ognized their liability for such injury, sent to perform service and the other party wrongful- their agent to call upon him, and then and ly refuses to permit the services to be performed,

was executed.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1928; Dec. Dig. 419(20).]

11. MASTER AND SERVANT 44 CONTRACT FOR EMPLOYMENT-ACTION FOR BREACH-IN

STRUCTIONS.

it is the duty of the one who is to perform the there promised and agreed to pay appellee services to seek similar employment elsewhere, in full settlement of the damages due him for and if he is unable to procure other employment, said injury, the sum of $300, and further the measure of damages is the wages stipulated promised "to receive him back in their regufor the full term, and if he has been able to se- lar employment," or at such work as he had cure employment, the measure is the diminution between the wages agreed to be paid and those ability to perform, and pay him for such servreceived, that the jury should consider the kind ices the sum of $15 per week "as long as he of work at which the employé had been engaged, was able to perform labor"; that as a condiand when, if at all, he has been able to perform the work he had been engaged in, and assess the tion to such agreement appellants required damages at such amount as will fully compen- appellee to execute a written instrument resate plaintiff not to exceed the sum demanded, leasing them from all liability for damages are proper. resulting from said injury; that in pursuance [Ed. Note. For other cases, see Master and of such agreement and release appellants Servant, Cent. Dig. § 59; Dec. Dig. 44.] paid him $300 as a part of the consideration 12. TRIAL 256(13) RE- for said release; that the release was deQUESTS NECESSITY. Where instructions as to measure of dam-livered and accepted by appellants; that so ages for breach of contract to employ plaintiff soon as he had sufficiently recovered from his state the rule correctly in general terms, the injuries to be able to work, he called upon failure to direct the jury to deduct interest from appellants and notified them of that fact, the amount allowed for wages to be earned in the future is not ground for reversal in the ab- and that he was ready to go to work; that sence of a tender of a more specific instruction. appellants refused to give him work, and [Ed. Note. For other cases, see Trial, Cent. have ever since refused to employ him, Dig. 8 640; Dec. Dig. 256(13).] though frequently requested so to do; that when he so notified appellants, and continuously since that time, he was, and had con

INSTRUCTIONS

Appeal from Superior Court, Marion County; Joseph Collins, Judge.

Action by William T. Richart against Fred-tinued to be, able to work, and ready and erick L. Carter and others. From a judgment for plaintiff, defendants appeal. Affirmed.

willing to continue in appellants' employment in pursuance of their agreement aforesaid; that he has performed all the conditions of said agreement by him to be performed, and Elam, Fesler & Elam and Howard S. has been continuously out of work since that Young, all of Indianapolis, for appellants. time; that he had diligently sought, but been White & Jones, of Indianapolis, for appel- unable, to obtain similar employment; that lee. by reason of appellants' violation of their agreement to give him employment he has suffered and been damaged in the sum of $10,000, for which he demands judgment.

FELT, J. This is a suit for damages for the breach of an alleged contract of employment. Issues were formed by a complaint [1] Appellants assert that the complaint is and an answer of general denial. A trial by insufficient because the averments do not jury resulted in a verdict for $1,000. Appel- show that the minds of the parties ever met lants' motion for a new trial was overruled, on the material and essential features of the and judgment rendered on the verdict. Ap-contract; that its provisions are too indefipellants have assigned as error: (1) The nite to constitute an enforceable contract. overruling of their motion to make the complaint more specific; (2) overruling the motion to stay proceedings until certain costs were paid; (3) overruling the demurrer to the complaint; and (4) overruling the motion for a new trial.

The complaint is clearly sufficient, under the decisions as against a demurrer for insufficiency of facts. Pa. Co. v. Dolan, 6 Ind. App. 109-114 et seq., 32 N. E. 802, 51 Am. St. Rep. 289; Indianapolis Union Ry. Co. v. Haulihan, 157 Ind. 494-507, 60 N. E. 943,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes