[12] Appellee's case rests very largely on her own evidence, and she was strongly contradicted on every fact testified to by her. The question of credibility, however, was one for the jury, and not for this court. We cannot say that the result reached by the jury would have been the same had the trial court limited the probative force of the evidence objected to and had admitted the proof offered by appellants, and for these reasons we believe the ends of justice require the granting of a new trial. Judgment reversed. New trial granted. (63 Ind. App. 501) number of votes for the office or offices involved. It is not a judicial proceeding, nor a is no more final than the original count and the final adjudication of the title to the office. It sum of the returns based thereon as certified by the canvassing board. Manifestly no appeal is contemplated by the statute, for none is provided, and the proceeding is a special statutory one in the nature of a discovery of evidence to be used in a judicial trial of the title to an office by statutory contest or information wherein the result may be overturned by the ballots themselves. It is only in aid of one who desires to contest with another the title to an office, and not an independent judicial proceeding. On application by one desiring to contest who had complied with the statute, the circuit court, if in session, or the judge thereof in vacation, has no discretion but to appoint commissioners for the purpose and to order the recount. The number and qualifications of these commissioners the stat LAYMAN V. DIXON. (No. 9214.) (Appellate Court of Indiana, Division No. 2. ute fixes, and the court may appoint none other. Jan. 9, 1917.) 1. ELECTIONS 299(3)-RECOUNT-REVIEW. An order dismissing petition under Burns' Ann. St. 1914, § 6991, for a recount of ballots cast for township trustee, is not appealable; the recount statute (§§ 6990-6994, Burns' Ann. St. 1914) being a special statute containing no provision for appeal. [Ed. Note. For other cases, see Elections, Cent. Dig. § 306; Dec. Dig. 299(3).] 2. ELECTIONS 299(3)-RECOUNT-PETITION -SUFFICIENCY. A petition for recount under Burns' Ann. St. 1914, § 6991, not "showing that he (the candidate) desires to contest such election," as required by that statute, is not sufficient to call upon the judge to act in the matter, since one who seeks the benefit of a statute must bring himself fairly within its terms. [Ed. Note. For other cases, see Elections, Cent. Dig. 306; Dec. Dig. 299(3).] Appeal from Circuit Court, Jennings County; Robert A. Creigmile, Judge. Petition for recount by Frank Layman, opposed by Benjamin H. Dixon. From an order dismissing his petition, petitioner appeals. Appeal dismissed. Wm. Fitzgerald, of North Vernon, for appellant. H. C. Meloy, of North Vernon, for appellee. IBACH, P. J. This is an attempted appeal from an order of the judge of the Jennings circuit court made in chambers dismissing appellant's petition based on section 6991, Burns 1914, for a recount of the ballots cast for township trustee. The recount statute (sections 6990-6994, Burns 1914) has recently come under the review of the Supreme Court in the case of Williams v. Bell, 110 N. E. 753. In that case the question arose upon the admission of the commissioners' certificate on recount in evidence in a proceeding to contest; the question for determination being whether or not such certificate was a judgment. In disposing of such question the court said: "An examination of the recount statute makes it obvious that, while the instruments used are different, the recount is not different in character or purpose from that of the original count. It is merely to ascertain, if that may be, from the ballots as cast, who received the highest So we see that the circuit court or judge in appointing commissioners to recount is acting in no essentially different character than those ministerial officers who appoint those election officials who have the duty placed on them by law to count and canvass the ballots and returns. Nor are the duties of the recount commissioners of a different character in the matter of counting from those of election boards and canvassers of the first instance. It would seem evident therefore that the recount statute involves the exercise of ministerial functions, and not judicial ones." [1] The first question to be determined in this case is whether we have any jurisdiction over this proceeding, or, in short, whether such an appeal will lie. As we view such question, it is conclusively settled by the holding of the Supreme Court in the case above quoted. We have here a proceeding under a special statute, containing no provision for appeal, and manifestly none contemplated. It is in no sense a civil action. It is unnecessary for us to extend this discussion, but in support of our conclusion refer to the following additional authorities: Lafayette, etc., R. Co. v. Butner, 162 Ind. 460, 70 N. E. 529, and authorities cited; Collins v. Laybold, 182 Ind. 126, 132, 133, 104 N. E. 971, and authorities cited; Noblesville, etc., Co. v. Evans, 163 Ind. 700, 72 N. E. 126. We conclude that an appeal does not lie from the order of the court in this case. Appellant's petition does not comply with the provisions of the statute (section 6991, Burns 1914). It is evident from a reading of the act in question that it is only when the candidate desires to contest an election that he may invoke the aid of such statute. Section 6990, Burns 1914. [2] Among other things, the Legislature has said the petition must show "that he (the candidate) desires to contest such election." This element appellant's petition does not contain in express terms, and there is no language from which it may be fairly inferred. One who seeks the benefit of a statute must bring himself fairly within its terms. Until a petition in compliance with the statute was filed no duty rested upon the judge of the circuit court to act in the mat-clusive of interest and costs, does not exceed ter. Appeal dismissed. (63 Ind. App. 470) GREER v. LAKE et al. (No. 9140.) (Appellate Court of Indiana, Division No. 2. Jan. 4, 1917.) Courts 220(9) — APPELLATE JURISDICTION -CONSTRUCTION OF STATUTE. Under Burns' Ann. St. 1914, § 1389, providing that appeal shall not be taken where the amount in controversy does not exceed $50, except where otherwise provided, section 1391, providing that a case in which there is presented the question of proper construction of statute, and which would otherwise be unappealable under section 1389, shall be appealable directly to the Supreme Court, and section 1392, subd. 14, providing that appeals in appealable cases where the amount in controversy exceeds $6,000 shall be directly to the Supreme Court, the Appellate Court has no jurisdiction of appeal in a case where the amount in controversy is less than $50, and the case is appealable only because there is presented the question of proper construction of a statute. [Ed. Note.-For other cases, see Courts, Cent. Dig. 588; Dec. Dig. 220(9). Appeal from Circuit Court, Morgan ty; Nathan A. Whitaker, Judge. $50, except as provided in section 8 of this act." Section 8 of the act of 1901 (section 1391, supra) remains unchanged, and is as follows: "Every case in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation or the conthe proper construction of a statute, or rights stitutionality of a statute, state or federal, or tion, and which case would be otherwise unapguaranteed by the state or federal Constitupealable by virtue of section six (6) or section seven (7), shall be appealable directly to the such question only." Supreme Court, for the purpose of presenting Section 7 referred to in the foregoing section is section 1390, Burns 1914. It deals only with criminal cases, and is therefore not applicable here. Section 9 of the act of 1901 was in part as follows: "No appealable case shall hereafter be taken directly to the Supreme Court unless it be within one of the following classes: First. Cases in which there is in question and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionalCoun-ity of a statute, state or federal, or rights guaranteed by the state or federal Constitution. * All other appealable cases shall be taken to the Appellate Court.' Action by Martin Lake and others against James C. Greer. Judgment for plaintiffs, and defendant appeals. Cause transferred to Supreme Court. S. C. Kivett and G. J. Kivett, both of Martinsville, for appellant. H. L. McGinnis and Will H. Pigg, both of Martinsville, for appellees. * The quoted portion of section 9 was amended in 1907 (Acts 1907, p. 237) to read as follows: "Hereafter all appeals in appealable cases in the following classes shall be taken directly to the Supreme Court, viz.: First. All cases in which there is in question, and such question is duly presented, either the validity of a franchise or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or the rights guaranteed by the state or federal Constitution. herein mentioned, shall be taken to the AppelAll appealable cases, other than those * Burns 1914. CALDWELL, J. The board of commissioners of Morgan county, in proceedings brought to that end, ordered a certain public highway to be graded, rebuilt, and sur-late Court." faced, under the provisions of section 7711 The section as amended is section 1392, et seq., Burns 1908, commonly known as the three-mile road law. Appellant was the contractor. In performing the work he destroyed certain fences on appellees' lands, and made certain extensive excavations thereon, by reason of which appellees brought this action against him in the Morgan circuit court to recover damages alleged to have been suffered by them. A trial resulted in a verdict for $40, on which judgment was rendered. The fact that the judgment does not exceed $50 invokes the application of sections This Of the exceptions specified by section 1391, supra, by virtue of the existence of which this cause might be appealable, there is no contention that any are involved except it be a question of the proper construction of a statute. If such question is involved and duly presented, the cause is appealable by virtue of such section. As we must first ascertain whether this court has that it is appealable, we do not, at this time, jurisdiction to hear this appeal in the event determine whether the proper construction of court has assumed jurisdiction of like apa statute is involved and presented. peals, at least to the extent of determining that the question involved therein did not come within any of the exceptions specified by section 1391, supra. See the following: Schultz v. Alter, 110 N. E. 230; Mantle Lamp Co. v. Bonick, 110 N. E. 558; Yakey v. Leich, 37 Ind. App. 393, 76 N. E. 926. Like cases have been appealed directly to the Supreme Court also, and final disposition has For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes For opinion by Supreme Court, see 114 N. E. 961. 1389 and 1391, Burns 1914. The former is section 6 of the act of 1901 (Acts 1901, p. 565) as amended in 1903 (Acts 1903 p. 280). Originally this section was to the effect that appeals in civil cases within the jurisdiction of a justice of the peace should not be taken to the Supreme or Appellate Court, except as provided in section 8 of the act. As amended in 1903, it is as follows: "No appeal shall hereafter be taken to the Supreme * or Appellate Court in any civil cases where the amount in controversy, ex been made of them by such court. See the following: Pittsburgh, etc., Co. v. Sneath, 183 Ind. 138, 107 N. E. 72; Chicago, etc., Co. v. Anderson, 182 Ind. 141, 105 N. E. 49; Chicago, etc., Co. v. Ebersole, 173 Ind. 332, 90 N. E. 608; Stultz v. Board, 168 Ind. 539, 81 N. E. 471, 11 Ann. Cas. 1021; Hood v. Baker, 165 Ind. 562, 76 N. E. 243. er statute. Section 1391 does not refer to the Appellate Court, but provides that, if this cause comes within any of the exceptions noted by such section, it shall be appealable directly to the Supreme Court. In From the organization of the Appellate Court, there have been provisions under the various acts by which, in effect, causes might Section 1 of the act creating the Appellate be appealable to the Supreme Court from Court (Acts of 1891, p. 39), as amended in trial courts through the Appellate Court. 1893 (Acts 1893, p. 29; section 1382, Burns See section 25 of the act of 1891, supra; 1914), conferred jurisdiction on such court section 3 of the act of 1903, supra; section over all appeals in actions for the recovery 1429, Burns 1914; section 10 of the act of of a money judgment only, where the amount 1901, supra; section 1392, Burns 1914. in controversy, exclusive of costs, did not view of such fact the language contained in exceed $3,500. Certain causes were except- section 1391, supra, that causes coming withed, however, as those involving the constitu- in any exception outlined by that section tionality of a statute, etc. The effect of sec- "shall be appealable directly to the Supreme tion 9 of the act of 1901 (Acts 1901, p. 565), Court," is significant. Like language is used however, was to extend to the Appellate in section 1392, prescribing the jurisdiction Court jurisdiction in such cases regardless of the Supreme Court, as "hereafter all apof the amount in controversy, subject to ex-peals in appealable cases in the following ceptions as indicated by the quoted portions classes shall be taken directly to the Suof such sections, supra. Such section, as amended in 1907 (Acts 1907, p. 237, section 1392, Burns 1914), provides in its fourteenth subdivision, however, that all cases wherein the amount of money in controversy, exclusive of interest and costs on the judgment of the trial court, exceeds $6,000 shall be taken directly to the Supreme Court. There are exceptions here, also, as indicated by the quoted portion of said section, supra. effect of the amendment is to limit the juris-Court is confined to appeals in causes that diction of the Appellate Court in such cases to appeals wherein the amount in controversy does not exceed $6,000. It will be ob preme Court." Such language apparently is used in recognition that there may be, not only a direct appeal to the Supreme Court, but also what may be denominated an indirect appeal from the trial court through the Appellate Court to the Supreme Court. If so, section 1392 apparently authorizes the for1392 should be construed together, with the In our judgment sections 1391 and The result that the jurisdiction of the Supreme mer. latter, except that jurisdiction is in that are included in the classes specified by the court also over causes appealable for limited served that under the various statutes and amendments to which we have last referred purposes by virtue of the exceptions indicatin the absence of the applicability of some tions are to an extent contradictory, unless ed by the former. Otherwise the two secexception, jurisdiction in this appeal would be in the Appellate Court. But by the terms by the term "appealable cases" as used in of section 1389, supra, this cause is not ap- intend to include causes appealable only for section 1392, supra, the Legislature did not pealable to either the Supreme or Appellate limited purposes by virtue of section 1391, Court, unless it comes within an exception specified by section 1391, supra. If section supra. A construction as indicated is in har1392, supra, should be considered alone, juris-mony with very substantial reasons why diction in this appeal would be in the Appellate Court, by reason of the fact that the amount in controversy does not exceed $6,000. But by the terms of section 1389, supra, this cause is not appealable to the Appellate Court, and as a consequence the Appellate Court has no jurisdiction ever it unless such a result is prevented by recourse to some exception contained in section 1391, supra, or by some other statute. There is no such oth jurisdiction should be in that court over causes appealable for the sole and express purpose of procuring the construction of a court has no jurisdiction over this appeal. statute. We, therefore, conclude that this PER CURIAM. It is ordered on the foregoing opinion that this cause be transferred to the Supreme Court for want of jurisdiction in this court to hear and determine it. (63 Ind. App. 494) EXCEL FURNITURE CO. v. BROCK. (No. 9162.) (Appellate Court of Indiana, Division No. 2. Jan. 5, 1917.) 1. APPEAL AND ERROR 1040(14)-PREJUDICIAL ERROR-OVERRULING DEMURRER. Overruling a demurrer to a bad paragraph of an answer is reversible error, although the same evidence may have been admissible under the general denial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4102, 4105; Dec. Dig. 1040(14); Pleading, Cent. Dig. § 567.] 2. SALES 354(1)-ACTION FOR PRICE-SUFFICIENCY OF ANSWER. In an action to recover the price of goods sold, the answer held to sufficiently allege an agreement that the price was to be charged to plaintiff's agent, who was defendant's debtor, and that such agreement was incorporated in the order. [Ed. Note.-For other cases, see Sales, Cent. Dig. 1005; Dec. Dig. 354(1).] 3. SALES 85(1) SALES COntract. APPROVAL OF AGENT'S A seller receiving an order stating that the price was to be charged to its agent, instead of defendant buyer, cannot accept the order and ship goods thereunder without being bound by such conditions. PRE [Ed. Note.-For other cases, see Sales, Cent. Dig. § 236, 238; Dec. Dig. 85(1).] 4. PRINCIPAL AND AGENT 119(2) SUMPTION-AGENT'S AUTHORITY. There is no presumption that a special agent selling goods has authority to pay his own debts with the goods he sells. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 392, 394; Dec. Dig. 119(2).] 5. PRINCIPAL AND AGENT ITY-BURDEN OF PROOF. 119(2)—AUTHOR A buyer has the burden of showing that the seller's agent had authority to sell the goods for his individual benefit, or that such sale was known to, and ratified by, the principal. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 392, 394; Dec. Dig. 119(2).] 6. SALES 354(1)-ACTION FOR PRICE. of which alleges, in substance, that on November 13, 1913, the appellant sold and delivered to appellee under and by the style of the "Larrimer Furniture Company" at the special instance and request of the latter, five No. 15 top cabinets at $14.25 each, making $71.25, and five No. 10 cabinets at $16.50 each, making $82.50, a total of $153.75. A demand for this amount and a refusal to pay is alleged. Judgment for said sum and interest therefrom January 13, 1914, is asked. The paragraphs differ in that the first proceeds upon the theory that the prices set out and indicated, supra, are correct and that the value of the property sold was that indicated by such prices, while the second paragraph proceeds upon the theory that the prices so indicated and stated were the prices which appellee agreed to pay for said goods, and that such payment therefor was to be made on January 13, 1914. To each of these paragraphs appellee filed an answer in four paragraphs; the first being a general denial, and the second a plea of payment. The third paragraph alleges, in substance: That on October 25, 1913, one A. V. Randall (hereinafter referred to as R.) was the agent and salesman of appellant, and as such called on appellee and solicited from him an order for the purchase from appellant of the goods enumerated in each of the paragraphs of the complaint. That R. was then indebted to appellee in a sum in excess of the price of said goods, and appellee was desirous of collecting said indebtedness and then and there informed R. that if the price of said goods might be credited by appellee upon his (R.'s) said indebtedness, that he (appellee) would order said goods. That R. then told appellee that he would sell him said goods for appellant under such arrangement, and that appellee, in payment therefor, should credit R. on his indebtedness with the purchase price thereof, and R., as such agent and salesman for appellant, then and there made In a seller's action for price, defendant buy-out and executed in duplicate a written er's answer that the seller's agent agreed to pay therefor, and that such agreement was incorporated in the order under which the goods were shipped, states a defense. [Ed. Note.-For other cases, see Sales, Cent. Dig. 1005; Dec. Dig. 354(1).] Appeal from Superior Court, Madison County; H. Clarence Austill, Judge. - Action by the Excel Furniture Company against Frank H. Brock. Judgment for defendant, and plaintiff appeals. Affirmed. Isaac Carter, of Shelbyville, and Francis A. Walker, of Anderson, for appellant. Chas. K. Bagot, of Anderson, for appellee. HOTTEL, J. This is an appeal from a judgment for appellee in an action brought by appellant to recover an amount alleged to be due it on account of goods sold and delivered to appellee. memorandum of said transaction, one copy of which he delivered to appellee, and the other he retained, in the words and figures following, to wit: "Order No. Quantity. Date 3/25/1913. "Ship to Larrimer & Co. Price. Amount. 15 N. T. S. $14.25 $ 71.25 "Dull finish. "Charge net amount to 16.50 82.50 $153.75 A. V. R. The complaint is in two paragraphs, each were intended and understood to mean the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes said "A. V. Randall," and the articles ordered and described are the same articles sued for by appellant. That appellee gave no other order and made no other or different arrangement for the purchase of said goods, and would not have ordered or purchased said goods under any other or different terms or conditions. "That after giving said order and making said deal and transaction with the plaintiff's said agent and salesman, the plaintiff shipped and delivered said goods and property to defendant and defendant then and there credited said debt of said Randall to him with the purchase price thereof, to wit, one hundred fifty-three dollars and seventy-five cents ($153.75), all in accordance with and pursuant to said agreement and arrangement." (Our italics.) The fourth paragraph differs from the third in that it contains, instead of the italicized averments, above indicated as appearing in the third paragraph, substantially the following averments: R. then told appellee that if he would order said goods he might order them and have them charged by appellant to R., and said goods were delivered by appellant and received by appellee under and pursuant to said arrangement by and between appellee and appellant's said agent and said written order and not otherwise. In all other respects, the averments of the two paragraphs are substantially, if not identically, the same. A demurrer to each of these paragraphs of answer was overruled. There was a reply in general denial and an affirmative reply, but as said rulings on the demurrer to said answers are the only errors assigned in this court, the averments of the reply need not be indicated. not one ordinarily within the authority of an agent to sell, and hence could not bind the principal unless it had knowledge of such agreement when it shipped the goods. (4) Neither of said paragraphs alleges that the order set out therein was forwarded to the appellant, and that the goods were shipped thereunder. The fifth reason is substantially the same as the first, supra. [2] It will be observed that the averments of the fourth paragraph of answer are a little more specific as to the agreement between appellee and R., that the goods were to be charged by appellant to R., and that such goods were delivered by appellant and received by appellee under said arrangement. However, the order for the goods is set out in each paragraph, and, under the more recent decisions of the Supreme Court and this court (Domestic Block Coal Co. v. De Armey [1913] 179 Ind. 592, 601, 100 N. E. 675, 102 N. E. 99), which permit reasonable inferences in favor of a pleading, we think that, when said order is read in connection with the averments of said third paragraph, it sufficiently appears from said paragraph that the goods ordered were to be charged to R., that said order was the only order given for said goods, and the one under which said goods were shipped by appellant and received by appellee. It is evident that appellant regards the theory and effect of the paragraphs as being the same, as the reasons stated in its memorandum, indicated supra, are addressed to each paragraph alike, and in his argument appellant treats the paragraphs as proceeding on the same theory. We therefore deem it unnecessary to take up separately each of the several objections and discuss their respective merits as ap[1] In its discussion of the ruling on the plied to each paragraph of answer; but demurrer to said answers, it is suggested by deem it sufficient to say, in answer to said appellee that evidence of the facts pleaded objections collectively, as applied to each or in each paragraph of said answer was admis- either paragraph of said answer, that each sible under the general denial. Assuming, of said paragraphs show that R. assumed without deciding, that this is true, it does to have authority to sell the goods upon the not follow that reversible error did not result from such rulings. Thompson v. Lowe, 111 Ind. 272, 278, 12 N. E. 476; Lockwood v. Woods, 3 Ind. App. 258, 29 N. E. 569; Epperson v. Hostetter, 95 Ind. 583, 587; Sims v. City of Frankfort, 79 Ind. 446, 448, 449; Over et al. v. Shannon, 75 Ind. 352, 353. conditions averred in the answer, and, as before stated, such answers aver, in effect, that the sole and only order for the goods given or authorized by appellee, and the sole and only authority which appellant had for the shipment and delivery of the goods to appellee, was the written order which on In its memorandum accompanying said de- its face advised both appellee and appellant murrer, appellant states as its reason why that R. had assumed to have authority to said demurrer should be sustained the follow-sell the goods and have them charged to himing, in substance: (1) It is not alleged in ei- self. Each paragraph of the answer avers, ther of said paragraphs that R. claimed to have authority to sell the goods on the condition set out in said answers. (2) It is not alleged that appellant had knowledge that the goods were to be charged to the account of R. and that appellant shipped the goods with the knowledge of the representations ment." (Our italics.) made by R. to appellee. (3) That the aver- [3] If R. in fact had no authority to sell ments of the answer show that appellee was appellant's goods upon the conditions allegdealing with an agent of appellant, and that ed in each of said answers, and embodied in substance, that appellee gave no order other than that set out in the answer, and that the goods were delivered by appellant and received by appellee and credit given on R.'s indebtedness "all in accordance with and pursuant to said agreement and arrange |