pellants. John H. Aiken and McAdams & Hartzell, all of Ft. Wayne, for appellee. sufficient acquiescence to render an account Harper & Fuelber, of Ft. Wayne, for apcurrent an account stated depends upon the facts and circumstances of each particular case, the relation of the parties, and the nature and entent of the dealings between them. CALDWELL, C. J. Two alleged errors are sufficiently presented; the overruling of the demurrer to the complaint, and the denial of a new trial. The substance of the complaint is as follows: Appellee is the [6] Where there is no express agreement and an implied assent to the amount due is relied upon for a recovery, the receipt and retention of the statement of account show-owner of certain described lands in Adams ing the amount due is proper evidence for the court or jury to consider in determining whether the parties have in fact agreed upon the amount, but it is not necessarily conclusive and in no case amounts to more than prima facie proof of such fact. 1 C. J. 596, 657, 695, 696; 1 Cyc. pp. 364, 380, 381; Vanbebber v. Plunkett, 26 Or. 562, 38 Pac. 707, 27 L. R. A. 811, and notes; Anding v. Levy, 57 Miss. 51, 34 Am. Rep. 435; Daytona Bridge Co. v. Bond, 47 Fla. 136, 36 South. 445-447; Rich v. Eldredge, 42 N. H. 153–158; Spellman v. Muchlfeld, 166 N. Y. 245-247, 59 N. E. 817; Mackin v. O'Brien, 33 Ill. App. 475; Millard v. Bennett (Iowa) 139 N. W. 914; Pudas v. Mattola, 173 Mich. 189, 138 N. W. 1052, 45 L. R. A. (N. S.) 534; Ripley v. Sage Lund, etc., Co., 138 Wis. 304, 119 N. W. 108, 23 L. R. A. (N. S.) 787. So in either view of the case we would not be warranted in reversing the judgment, for there is evidence tending to sustain it. Neither can we say the amount is excessive. We find no reversible error. Judgment affirmed. (63 Ind. App. 91) BUETER et al. v. AULBACH. (No. 9091.) (Appellate Court of Indiana, Division No. 2. Nov. 10, 1916.) township, Allen county, which lands were owned by Hartzell in 1911. The lands are traversed by the Schmidt and the Bender public ditches. In July, 1911, Fenker, as township trustee, notified Hartzell to clean and repair to the original specifications certain sections of said ditches, which sections had been regularly allotted to him as landowner at that end. Hartzell completed the work as required by the notice and specifications, and subsequently conveyed the lands to appellee. Fenker, as trustee, claiming to have had such work done by some person other than Hartzell, had caused the expense thereof to be placed upon the tax duplicate to be collected as other taxes are collected, and that appellant Bueter as treasurer of Allen county, was threatening to sell the lands to that end. Prayer for an injunction. On application duly made, the court issued an order restraining the sale of the lands until the further order of the court, which order, on a trial, was made permanent as an injunction. [1] Of the points directed to the insufficiency of the complaint, the following are based on memoranda filed with the demurrer thereto, and are therefore entitled to consideration: That the complaint does not sufficiently allege the acceptance of the work as completed by Hartzell, or when the work 1. DRAINS 53-CLEANING-EXPENSES-EN- was done by him, or that he completed the JOINING COLLECTION-COMPLAINT. Complaint, in suit to enjoin collection of the expense of cleaning the part of a drain allotted to plaintiff, as having been done by another, held sufficient under Burns' Ann. St. 1914, § 6152 et seq. as to cleaning drains, as against objections that it did not sufficiently allege acceptance by the trustee of the work as completed by plaintiff, or when it was done by him, or that he completed it according to the requirements of the trustee's notice, and that it did not disclose the contents of the notice. 53.] work according to the requirements of the notice, and that the complaint does not disclose the contents of the notice. There is a specific allegation that certain described sections of each of the ditches had been regularly allotted to Hartzell as landowner biennially to clean and repair. It is alleged also that in July, 1911, appellant Fenker, as trustee, notified Hartzell to [Ed. Note. For other cases, see Drains, Cent. clean and repair such allotments, and that Dig. § 64; Dec. Dig. he presented to Hartzell the specifications descriptive of the limits of the work to be done, and 1011(1)-REVIEW 2. APPEAL AND_ERROR [Ed. Note.-For other cases, see Appeal and "that said Hartzell did, within the time so specified, do and complete said work on his said allotments, and in conformity to said specifications, and immediately thereafter notified the said defendant trustee that said work was completed, whereupon said defendant trustee in Appeal from Circuit Court, Allen County; spected said work and found it performed and Edward O'Rourke, Judge. Action by Louis J. Aulbach against J. Herman Bueter and others for injunction. Judgment for plaintiff, and defendants appeal. Affirmed. completed in conformity to the specifications, and accepted said work from said Hartzell, and discharged this plaintiff's said land from further liability on account of said work." There follow allegations to the effect that, notwithstanding that Hartzell did said latter inspected it and found it to be completed according to the specifications and presumably as required by the statute, and he thereupon accepted the work as completed and indicated such acceptance by dis ity on account of such work. The court did not err in overruling the demurrer to the complaint. [2] At appellants' request, the court made a special finding of the facts and stated conclusions of law thereon. Appellants' exceptions to the conclusions were subsequently withdrawn. The assignment based on the overruling of the motion for a new trial presents for our consideration the single ques found as measured by the evidence. While certain other comparatively immaterial questions, relating to the sufficiency of the evidence, are discussed in the brief, those of controlling importance are whether there was evidence that Hartzell did complete such repair work to the limits of the original specifications as designated by the notice and required by law, and whether ap work, and that it had been accepted by the tee that the work was done, whereupon the trustee, the latter claims to have had the work done by some other person, and that he had caused the alleged expense thereof to be placed upon the tax duplicate, etc. In our judgment the complaint is not open to the objections urged. The statute provides charging appellee's land from further liabilthat subject to exceptions not applicable here, all public ditches shall be cleaned and repaired under the supervision of the proper township trustee. The county surveyor, when directed so to do by the trustee, is required to fix and determine the portion of each of such ditches as are involved here, that each interested landowner shall biennially clean and repair. It is made the duty of the trustee to procure from the county surveyor a description of the allotments of tion of whether the facts were correctly each ditch within his jurisdiction, and biennially prior to August 1st to fix a time within which each allotment shall be completed, and to notify each affected landowner accordingly. Each landowner is required to appear before the trustee on a day fixed by the notice and declare his intention to clean his allotment and to execute to the trustee an undertaking providing for the completion of the work within the specified time, and pellant trustee accepted the work as so comaccording to the original specifications. The notice to the landowner is sufficient if it names the ditch, the owner of the land, describes the allotment, and specifies the time within which the work shall be done, and the time when the landowner shall appear to declare his intention, etc. There are provisions requiring the trustee to inspect the work on its completion, and other provisions to the effect that when a landowner fails to appear and declare his intention and execute such undertaking, or fails to complete the work, the trustee shall proceed to cause it to be done by others, and other provisions providing several remedies, including that pursued here, by which the expense of the work may be collected from the land(66 Ind. App. 432) owner. Section 6152 et seq. Burns 1914. FINN et al. v. STATE ex rel. MCDANIEL. The complaint here discloses that the trus(No. 9102.)* tee delivered to Hartzell with the notice (Appellate Court of Indiana, Division No. 2. specifications to guide him in cleaning the allotments assigned to him. It should be presumed that such specifications were in harmony with the original specifications, under which the ditch was constructed, since the landowner's statutory undertaking, as executed to the trustee, is required to be to that effect. Hartzell thereupon completed the work according to such specifications and within the time specified by the notice. By so doing he performed the work as specified by the statute. Section 6157, Burns 1914. It was, however, the province of the trustee rather than Hartzell to determine whether the allotments had been properly cleaned and repaired. Zimmerman v. Savage, 145 Ind. 124, 44 N. E. 252. In recognition of such fact Hartzell notified the trus pleted. The finding on these questions was in favor of appellee. A careful inspection of the recorded testimony on these important questions discloses that there is some confusion and uncertainty, and that in a number of respects there are contradictions. From such a condition it is the province of the trial court to evolve the facts. The trial court has done so. The finding is supported in every material and controlling matter by substantial evidence. The fact that such evidence is in some respects contradicted by other evidence does not authorize this court to interfere. The judgment is affirmed. Nov. 9, 1916.) 231(1) - COMMON COUNCIL "INTERESTED IN CONTRACT" -STATUTE. Burns' Ann. St. 1914, § 8648, providing that no member of the common council of a city shall be interested in any contract with the city in any matter by which any indebtedness is created or approved, and that such contract shall be absolutely void, does not include contracts between a general contractor and a materialman, so that the fact that a materialman was a member of a council when bids were accepted for an improvement did not defeat his suit on the bond given to secure the performance of the contract, in terms inuring to materialmen. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 657, 658, 663; Dec. Dig. 231(1). For other definitions, see Words and Phrases, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Monroe Coun- | ployé of such city or incorporated town, for ty; Robert L. Miller, Special Judge. Action by the State of Indiana, on the relation of Lucian C. McDaniel, against William J. Finn and the Federal Union Surety Company. Judgment for plaintiff, and defendants appeal. Affirmed. Henley & Baker and Henley, Fenton & Joseph, all of Indianapolis, and Rufus H. East, of Bloomington, for appellants. Joseph E. Henley and George Henley, both of Bloomington, for appellee. IBACH, J. This is an action on a bond brought by the relator against appellants to recover for materials furnished appellant Finn, general contractor, in the improvement of a certain street in the city of Bloomington, Ind. The defense set up in appellant Federal Union Surety Company's third and fourth paragraphs of answer is based on an act of 1907 (Acts 1907, p. 538), being section 8648, Burns 1914, which is in part as follows: "No member of the common council * * of any city or incorporated town of this state, shall, either directly or indirectly, be a party to or in any manner interested in any contract or agreement, either with such city or incorporated town, or with any officer, board, clerk, deputy or employé of such city or incorporated town, for any matter, cause or thing by which any liability or indebtedness is in any way or manner created or passed upon, authorized or approved by such council * * or by any member thereof, * any contract in contravention of the foregoing provisions shall be absolutely void." * As above indicated, this is not a suit on the principal contract, nor a suit to recover from the city, but is a suit on the bond given to secure the performance of such contract, which bond by its provisions also inured to the benefit of materialmen. Each of said paragraphs of answer shows, and for the purposes of demurrer must be admitted, that the relator was a member of the common council of said city at the time the resolution was passed and bids accepted for the improvement, and was still a member at the time the improvement was finally approved; that this action is to recover the balance due on material furnished by the relator to the general contractor and used in the performance of the principal contract. The appellant surety company contends that such facts bring the relator clearly within the provisions of said statute, and by reason thereof he should not recover. On the other hand, appellee contends that the statute does not apply to the facts of this case. These contentions present the controlling question involved in the appeal. Did the Legislature, in enacting such statute, intend it to include contracts between the general contractor and materialmen? It appears to be limited to "any contract or agreement, either with such city or incorporated town, or with any officer, board, clerk, deputy, or em any matter, cause, or thing by which any liability or indebtedness is in any way or manner created or passed upon." By the language used the Legislature has eliminated city officials not parties to, connected with, nor interested in the original contract made with the city by other parties, but who simply furnished materials in the regular way to such general contractor, and no rule of construction would permit its being read into the statute. Cleveland, etc., R. Co. v. Henry, 170 Ind. 94, 104, S3 N. E. 710; Indianapolis, etc., Trac. Co. v. Brennan, 174 Ind. 1, 87 N. E. 215, 90 N. E. 65, 68, 91 N. E. 503, 30 L. R. A. (N. S.) 85. It follows that appellant has not shown facts to bring it within the protection of the statute, and for this reason the court did not err in sustaining the demurrer to the third and fourth paragraphs of answer. As to whether the contract in question was against public policy, we express no opinion; the question presented being limited by appellant's brief to the statute. The cases cited by appellant and by appellees, either by reason of the particular statutes under which they were decided or because not involved in the question here presented, are not cited or reviewed. No available error being shown, the judgment is affirmed. PEOPLE v. PFUHL 11 court to Roswell B. Mason, a master in chan- ty deposit box in the vault of a safety decery of the circuit court of Cook county, as special commissioner, to take the proofs and report the same, together with his conclusions based thereon. The commissioner reported the evidence, with his conclusion that the same supported the charge in the information. The proof taken and reported by the commissioner consists principally of the testimony of Mrs. Lena Kozla and respondent. About the year 1896 respondent was employed as an attorney to attend to the probate and settlement of the estate of Frank Kozla's father. Frank Kozla is the husband of Lena Kozla and received from the estate about $3,500. His occupation was that of a butcher, and his wife, Lena, appears to have attended to the business in his place. money received from the estate was put in The a safety deposit box by Mrs. Kozla for safekeeping. The Kozlas bought some property in Hammond, Ind., and paid for it out of the $3,500. Respondent attended to having the abstract of title brought down to date for the Kozlas and assisted them in concluding the transaction for the purchase of the property. Mrs. Kozla testified that some time afterwards respondent asked her how much money they had left, and that she told him, and he asked her what they would do with it. She said they would loan it if they could get a good loan on a first mortgage. Through respondent they loaned a man by the name of Hayes $1,200, which was secured by a mortgage accompanied by an abstract of title. Mrs. Kozla put the note, mortgage, and abstract in a safety deposit box, where they were kept until the loan was paid off, when the trust deed was released by respondent, who was the trustee. Afterwards respondent told Mrs. Kozla he had a good personal friend who had a feed store on the north side who wanted to borrow some mon Re posit company. Respondent told the witness that at any time she wanted the money she could foreclose the mortgage. When the interest became due Mrs. Kozla testified she went to the vault, took out one interest paper, and took it to respondent to get her interest. He said he had not seen Schultz and posit box. After another installment of inwitness took the paper back to the safety deterest became due she took the coupons to respondent again and he gave her $60. Witness then told respondent her husband was not very well satisfied with the loan. spondent said the borrower was his personal friend and that the loan was safe. ther payment was made to the Kozlas on this loan. No furShe testified she saw respondent $60 interest was paid and he would always a number of times succeeding the time this say the money was safe that the borrower was his personal friend and that the loan would be paid. After the maturity of the loan respondent told Mrs. Kozla he would foreclose the mortgage if she would get the them over to respondent, and was told by papers for him. She got the papers, turned him to come to see him in two weeks. When she went to see him the respondent told her to Mrs. Kozla his personal note for the he had not seen Schultz, and afterwards sent ent said he had foreclosed the mortgage. amount of the loan. Mrs. Kozla took this note back to respondent She testified respondand told him her husband said he was not satisfied with it. Respondent said the note was as good as money, and that the Kozlas should not worry about it. turned home with the note. She afterwards Mrs. Kozla revisited respondent and protested they did not want a note which was not secured by a first mortgage, and respondent said he would send a different note before the first ey. Mrs. Kozla told him they had $1,000 they one was due, which was 6 months after its could loan on a first mortgage, and respond- date. He afterwards sent Mrs. Kozla anothent said the loan would be made on a first er note by mail. mortgage. The name of the alleged borrow- ent with both notes, gave him the first one She again visited responder was Schultz, and Mrs. Kozla took the mon- executed, and he tore it up. ey from the safety deposit box and turned second note. She kept the it over to respondent to make the loan. The second note was also the afterwards turned over to Mrs. Kozla prin- Kozla testified she always told respondent He unsecured personal note of respondent. Mrs. cipal and interest notes executed by Schultz she and her husband were not satisfied with for $1,000, the principal payable in 5 years, his notes, and he always told her the note interest semiannually, together with a paper was as good as money-that he expected the or papers which he represented to be and money from Schultz every day. Mrs. Kozla which Mrs. Kozla understood was a first testified that in moving, the second note givmortgage. She testified the abstract respond- en by respondent was lost, and he gave anent showed her was in a bound book and other note in its place. When that note was was left by her with respondent because it due it was placed in the hands of an attorwas bulky and she could not keep it in her ney for collection and a judgment taken safety deposit box. The papers respondent against respondent on the note. gave Mrs. Kozla she said were like those he in 1914, and the judgment remains unpaid. This was gave her when the loan was made to Hayes, Mrs. Kozla testified respondent told her the and respondent said she would have to give Schultz loan was secured by property on the the papers to the borrower every year when north side a feed store. he paid the interest. The witness did not Schultz nor heard from him except what reShe never saw examine the papers but put them in her safe-spondent said. Mrs. Kozla testified she paid respondent for his services in making the, Respondent told Mrs. Kozła who Carlson loans. was; that he was associated with a man who was a civil engineer; that they were dissolving partnership and Carlson was going in with Schultz because Schultz had the machinery needed for the work at Cedar Rapids. The respondent talked the matter over with Mrs. Kozla, and she told him he could do what he thought was right about making a loan of $1,000 to Schultz & Carlson. Respondent made the loan and took a judgment note of Schultz & Carlson. He testified that a week or so afterwards he told them that as they were taking some of the property out of the state they ought to give a bill of sale on it to secure the loan, which they did; that respondent told Mrs. Kozla about it and gave her the note and bill of sale. Nothing was ever paid on the note. Respondent testified he endeavored to locate the borrowers and collect the money, but that they went out of the state. Schultz afterwards died and all trace was lost of Carlson. Some of the property which he said was covered by the bill of sale was sold on a judgment in favor of some parties in St. Charles, Ill., for money advanced Schultz, and the other machinery was taken out of the state and disappeared or was rendered There is no substantial controversy except as to the so-called Schultz or Schultz & Carlson loan. Respondent testified that after the Hayes loan was made Mrs. Kozla told him her husband was not satisfied with the amount of interest, which was 6 per cent.; that he had heard they could get a better rate of interest on small loans. Mrs. Kozla talked with him about short-time loans for 1, 2 or 6 months, and said she understood a higher rate of interest could be obtained on such loans. Respondent said he knew nothing about that or the security that could be obtained for such loans. Mrs. Kozla said she had some money her husband knew nothing about; that he was drinking and disagreeable and she would like to loan the money. Respondent said he would keep the matter in mind and let her know if he found an opportunity to loan it. About two weeks later he sent for her and told her he had a customer for a loan by the name of Charles Schultz; that he was a contractor and claimed to own certain excavating machinery and concretemixing machinery; that respondent would investigate to see if he did own it, which respondent believed was good security for the amount of the loan desired. Respondent tes-valueless by use and neglect. Respondent tified he investigated Schultz and his proper- testified he kept Mrs. Kozla informed of his ty; that Schultz wanted $1,000 for about 60 efforts and of their results. Mrs. Kozla fredays, which he would pay out of the first es- quently complained to respondent about the timate of work on a $40,000 contract he had loss of the money and said her husband was with the Wisconsin Railroad Company, and dissatisfied, and asked respondent to give her he was willing to pay a liberal rate of inter- some paper to show to her husband. Reest. Upon reporting this to Mrs. Kozla she spondent gave her his personal note and said asked respondent what he knew about Schultz, he would pay it as soon as he could after he and respondent told her he had known him was through with the expense of caring for about 2 months and that he appeared to be his sick wife, and that he did this because it substantial and all right. Mrs. Kozla asked was through his recommendation that Mrs. how much he was willing to pay, and re- Kozla lost her money. He testified she went spondent told her he thought $50 or $60. away satisfied. The note was due in one Mrs. Kozla told respondent if he thought it year, and respondent testified it was not until was all right to make the loan. Respondent the note became due that Mrs. Kozla began told her it was taking a chance, but if she to complain; that she then told him he was was going to make loans of that kind he not doing any better than the other parties, thought Schultz absolutely good, and that and respondent offered to give her a new unless something unforeseen happened he note in place of the old one, and did so. Aftwould be able to pay the loan when due. erwards she told respondent they had moved The loan for $1,000 was made on a 60-day and the note was either lost or destroyed, note and the money turned over to Schultz. and asked that he give her another note, Respondent testified Schultz gave no security which he did, and that was the note upon for the loan-that he simply gave his own which she took judgment against respondent. note; that shortly afterwards Schultz paid Respondent testified Mrs. Kozla brought him the note off and paid $60 for the use of the the Schultz & Carlson note and bill of sale money. Respondent notified Mrs. Kozla he and left them with him, but that she never had the money and requested her to come and talked with him about a foreclosure with refget it. When she came she said she would erence to the loan; that during his absence take the $60, and if respondent had a chance from his office for a considerable period of to loan the $1,000 he could let her know. time during the illness of his wife the agent About a week later she came to respondent's of his landlord took possession of the properoffice and he told her that the same Schultz ty and effects in his office, and he was never and one Carlson had been to see him; that able after that to find the note and bill of Carlson had a big excavating contract at sale, although he had made diligent search Cedar Rapids, Iowa, and he and Schultz and inquiry. Respondent further testified |