IBACH, P. J. This was an action by appellee against appellant to recover a sum of (Appellate Court of Indiana, Division No. 2. money alleged to have been allowed by ap

pellee in violation of law. There was also a cross-complaint filed by appellant in which it sought to recover a sum of money alleged to be due for the printing of supplies for appel

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

lee for other years. This went out on de- for such printing was filed and allowed in murrer. Upon a trial had there was a judg- part, which appellant obtained and receipted ment for appellee for $95 and $10 attorney for. Since it is made to appear from the fees. To reverse this judgment appellant cross-complaint itself that appellant's bill for prosecutes this appeal. printing for the year 1910 was allowed in The complaint alleges substantially that part and refused in part, and the part allowappellant is a printing company, and that ined was accepted and receipted for, such acthe year 1910 appellee contracted with it for the printing of tax receipts to be used in the year 1911. The contract provided that the receipts were to be furnished at the rate of 65 cents per hundred. Appellant furnished a large number of such receipts and filed its bill with appellee for the same at the rate of 80 cents per hundred, and was allowed therefor $151.72 more than it was under its contract entitled to receive. It is charged:

That "the defendant in violation of the terms of this contract presented said bill for such receipts at the rate of 80 cents per hundred, and the defendant knowingly, unlawfully, and fraudulently included in said bill so filed the sum of $151.72 more than it was entitled to receive,

and that it failed to obtain the certificate required in such cases."

[1] A demurrer to the complaint for insufficient facts, accompanied by a memorandum specifying that no demand was made, was overruled and excepted to. This action of the trial court is the first error assigned. The well-known rule that, where there has been a mutual mistake in the payment of money, the party receiving the same must first be given an opportunity to return it before an action will lie for its recovery, applies only where there had been neither a breach of contract nor a duty. It has no ap plication here, where it is averred that the money had been paid on items which the defendant "knowingly, unlawfully, and fraudulently" included in said bills so filed. These averments do not indicate a mutual mistake of the parties but rather a wrongful presentation of an unlawful claim to appellee by appellant and the wrongful acceptance of the money paid it. Worley v. Moore, 77 Ind. 567; Sharkey v. Mansfield, 90 N. Y. 227, 43

Am. Rep. 161.

[2] It is also averred in the complaint that appellant did not procure to be filed with its claim, the certificate of the auditor certifying that the quality of the goods and the price corresponded to the provisions of the contract. It is expressly provided by statute that under such state of facts payment of appellant's claim was illegal. And it is also expressly provided by statute that claims, if paid, may be recovered in an action at law against the person receiving the same. Sections 5955, 5962, Burns 1914. It is apparent that the action under consideration is based on these statutes.

[3] It is next insisted that the court erred in sustaining appellee's demurrer to appellant's cross-complaint. The cross-complaint seeks to recover for receipts printed and used under a different contract for the year 1910. The averments disclose the fact that the bill

ceptance constitutes a settlement or determination of the claim so filed. Butler v. Board, etc., 177 Ind. 440, 98 N. E. 185; Western Construction Co. v. Board, etc., 178 Ind. 684, 98 N. E. 347.

[4] Appellant's chief contention, however, is that the court should not have considered the demurrer to this pleading for the reason that no memorandum was filed with the demurrer. This precise question has not been passed upon by either of the courts of appeal of this state. Both courts, however, have held that it may look beyond the grounds stated in the memorandum which accompanies the demurrer to uphold the ruling of the trial court in sustaining a demurrer, and

if such ruling of the trial court is correct on
any ground it will be upheld, although the
memorandum did not point out the particular
ground on which the demurrer was sustain-
ed. Boes v. Grand Rapids, etc., R. Co., 59

Ind. App. 271, 108 N. E. 174, 109 N. E. 411;
Under these holdings, following the same line
Bruns v. Cope, 182 Ind. 289, 105 N. E. 471.
of reasoning, it would seem that, while a de

murrer for want of facts containing no mem-
orandum should not have been considered,
which it was addressed was defective for
but was considered, and the pleading to
want of some essential allegation, the action
of the trial court in sustaining the demurrer
would not be held reversible error.

In this case the cross-complaint was bad in many respects. No harm could possibly come to appellant on account of the ruling complained of. Under such circumstances this court will look beyond the mere form of the demurrer to uphold the trial court.

[5] Finally appellant contends that there was error in overruling its motion for a new trial, particularly with reference to the refusal of the court to give certain tendered instructions. The record fails to disclose any request prior to the commencement of the argument that the offered instructions be given. Appellant is therefore in no position to complain.

Error cannot be based on the refusal to give tendered instructions unless it appears affirmatively from the record that they were offered in due season and in the appropriate mode. German Fire Ins. Co. v. Columbia, etc., Tel. Co., 15 Ind. App. 638, 43 N. E. 41, and cases cited.

[6] Again, the evidence is not before us, so that, if the instructions had been tendered opportunely, it would be presumed that they were not applicable to the evidence and were refused on that account. Jenkins v. Wilson,

140 Ind. 544, 40 N. E. 39; Hamline v. Engle, [ 6. APPEAL AND ERROR 14 Ind. App. 685, 42 N. E. 760, 43 N. E. 463.

An examination of the instructions referred to clearly shows they are not applicable to the theory of the complaint, which, as we have said, is clearly an action under the statute to recover illegal payments made by the board of commissioners.

We find no reversible error in the record.
Judgment affirmed.

(63 Ind. App. 475)

TOWN OF CARLISLE v. PIRTLE. (No. 9301.)

(Appellate Court of Indiana, Division No. 2. Jan. 5, 1917.)

1. PLEADING 201-DEMURRER-FAILURE TO FILE MEMORANDUM-WAIVER.

ERAL POINTS.

761-Briefs-Gen

nature, to the effect that it was error to admit Four points of appellant's brief, general in evidence of a certain nature, not directed to any particular ruling complained of, under a strict construction of the rules of the Appellate Court, present no question.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3096; Dec. Dig. 761.] Appeal from Circuit Court, Greene County; Cyrus E. Davis, Special Judge. Action by the Town of Carlisle against George W. Pirtle. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

J. R. Cauble, of Indianapolis, Webster V. Moffett, of Bloomfield, and Fred C. Braun, of Greenwood, for appellant. John W. Lindley, of Sullivan, Lewis Meyer, of Vincennes, and Claude E. Gregg, William L. Slinkard, and Will R. Vosloh, all of Bloomfield, for

The right to question the answer for insufficiency of facts was waived when no memorandum, stating wherein the facts were insufficient, was filed with the demurrer to the an- appellee. swer, challenging the sufficiency of the facts pleaded to constitute a defense.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 473-479; Dec. Dig. 201.] 2. NUISANCE 1, 59-"PUBLIC NUISANCE" "PRIVATE NUISANCE.

The distinction between a public and a private nuisance does not necessarily consist in the nature of the thing done or the character of the structure maintained, which constitutes a "public nuisance" if prejudicial to the general public, and a "private nuisance" if some particular person suffers an injury not common to the general public.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 1, 3, 135, 136; Dec. Dig. 1, 59. For other definitions, see Words and Phrases, First and Second Series, Public Nuisance; Private Nuisance.]

3. MUNICIPAL CORPORATIONS 696-"PUBLIC NUISANCE"-OBSTRUCTION OF STREET. An unauthorized and unlawful obstruction of a public street in a town or city is a "public nuisance," and as such may be abated.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1496, 1498-1501; Dec. Dig. 696.]

CALDWELL, J. In the summer of 1913, appellee constructed, in front of his premises in the town of Carlisle, Sullivan county, a concrete sidewalk, extending along the side of a public street. The sidewalk was somewhat more elevated than the sidewalks to which it joined at each end. In November, 1913, appellant brought this action in the Sullivan circuit court. The complaint charges, in substance, that appellee, by constructing his sidewalk, elevated as aforesaid, formed at either end a sudden rise or step, where it joined the walks in front of the adjoining properties; that the walk as constructed constituted a dangerous obstruction to the sidewalk on the north side of the street, and that persons walking along such sidewalk were in constant peril of stumbling against such sudden rise or step, and thereby suffering injuries; and that appellant would thereby be rendered liable to respond in damages to the persons so injured. The relief sought is

4. MUNICIPAL CORPORATIONS 691-PUBLIC that the structure be declared to be a pubNUISANCE ABATEMENT AND DECLARATION OF BY INCORPORATED TOWNS-STATUTE. By Burns' Ann. St. 1914, § 9005, incorporated towns are authorized to declare, by general ordinance, what shall constitute a nuisance, and to prevent, abate, or remove it, and they may also at their election resort to the courts to abate a public nuisance.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1492-1508; Dec. Dig. 691.]

5. MUNICIPAL CORPORATIONS

lic nuisance, and that the court order it abated, and the obstruction removed. By regular proceedings the cause was venued to the Greene circuit court, where it was tried before a special judge. By request of the parties, the court made a special finding of facts, and stated conclusions of law thereon. Judgment was rendered on the conclusions in favor of appellee. Five errors are assigned in this court: The first, third, and fourth being, in substance, that the court erred in overruling appellant's demurrer to appellee's amended fourth paragraph of answer; the court erred in each conclusion of law, and in overruling the motion for a new trial. The second and fifth errors are not properly assigned. The questions sought to be raised [Ed. Note.-For other cases, by such assignments, however, are properly see Municipal Corporations, Cent. Dig. § 1505; Dec. Dig. presented by the third assignment. 697(4).] [1] The demurrer filed to the amended

697(4)-PUBLIC NUISANCE-ABATEMENT BY INCORPORATED TOWN-BURDEN OF PROOF.

Where an incorporated town resorted to the courts to abate a public nuisance, alleged to consist of a concrete sidewalk at a lower elevation than those at each end, the town assumed the burden to establish that the walk, by reason of its comparative elevation. was a public nuisance, in that its use was perilous to pedes trians.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-45

to the grade of the sidewalks on the south side of the street, but was 4 or 5 inches higher than the sidewalk on the north, where the two structures joined. Appellant acquiesced in such work, and paid appellee his expenses thereof. After the grade of the street was raised, and before appellee raised his sidewalk as hereinafter set out, and be

fourth paragraph of answer sought to challenge the sufficiency of the facts thereby pleaded to constitute a defense. A memorandum, stating wherein such facts were insufficient, was not filed with the demurrer. The right to question the answer for insufficiency of facts was therefore waived. It follows that the first assignment presents no question for our consideration. Pittsburgh, | cause of the raising of the grade of the street, etc., Co. v. Home Ins. Co., 183 Ind. 355, 108 N. E. 525; Quality Clothes Shop v. Keeney, 57 Ind. App. 500, 106 N. E. 541.

water in time of heavy rains overflowed the gutters in front of appellee's and Curtner's properties, and flowed in considerable quanThe special finding of facts is, in substance, tities upon such properties. To prevent such as follows: Appellant is a municipal corpora- overflow was one of appellee's purposes in tion. Ledgerwood street, extending east and raising the sidewalk, and the work was sucwest, is one of the principal streets in the cessful to that end. From the north end of town of Carlisle. Eaton and Harrison the crossing above mentioned to appellee's streets, one block apart and an alley midway sidewalk before he raised it, there was a between them, intersect Ledgerwood street step of 4 or 5 inches, creating a condition to at right angles. The latter street has a some extent dangerous to pedestrians in gradual fall eastward from Harrison street the exercise of ordinary care. Prior to Auto the alley. Westward from the alley to gust, 1913, appellee's buildings were deHarrison street, the following persons own stroyed by fire, and his sidewalk damaged. properties abutting on the north side of He thereupon, in August, 1913, removed the Ledgerwood street: Curtner, 19 feet; Ap- old sidewalk, and constructed a new concrete pellee, 40 feet; Trimble, 12 feet; Squires, sidewalk, conforming to the grade of said 24 feet; National Bank, 32 feet; Ridgeway, concrete crossing. The new walk, as con32 feet. On each lot there is a business structed by appellee, is 31⁄2 inches on its building. Appellant has never established outer edge and 4 inches on its inner edge a grade for sidewalks in front of the Curtner, | higher than the Curtner walk, to which it Pirtle, and Trimble properties. In 1899, appellee, without consent of or objection from appellant, constructed a cement sidewalk in front of his property on the natural grade. In 1904, appellant, by ordinance, but without establishing any grade for same, ordered a cement sidewalk constructed in front of the Curtner, Pirtle, and Trimble properties. Pursuant to such ordinance, Curtner and Trimble constructed a cement sidewalk on the natural grade, under the direction and to the satisfaction of appellant's sidewalk cominittee, appellee's sidewalk not being changed. When such construction had been completed the sidewalk in front of the three properties sloped by regular fall on the natural grade of the street. In 1906, appellant by ordinance caused sidewalks to be constructed in front of the remaining properties in the half block, by the owners of such properties on the grade of the sidewalks constructed in 1904, and under the direction of the committee on sidewalks, so that the sidewalks along the entire half block conformed to the natural grade of the street. There after appellant graded and graveled Ledgerwood street, and thereby elevated it about 4 inches above the sidewalks on the north. Thereafter cement sidewalks were constructed along the south side of the street opposite the half block above mentioned, the grade of which conformed to the raised grade of the street. Thereafter, appellee, of The exceptions to the conclusions of law his own volition and without obtaining the present the single question whether the sideconsent of appellant, constructed a cement walk under the finding is a public nuisance. crossing from the south side of the street It is provided by statute that whatever is north to the east end of the sidewalk in front injurious to health, or indecent or offensive

joins, at a point 17 inches west of the junction, and slopes thence by regular grade to conform to the Curtner walk at the junction. The slope of the sidewalk at the junction is open and obvious to persons traversing the same, unless left in darkness. The sidewalk is not dangerous to pedestrians passing over it and exercising ordinary care for their own safety, and it is not unsightly or otherwise offensive in appearance. The sidewalk is a permanent structure. Appellant was not requested to, and did not, fix or establish the grade of such sidewalk, and appellee did not have appellant's consent to construct the new sidewalk on higher grade than the old one. Appellant, before commencing this suit, notified appellee in writing to make said sidewalk safe for travel within ten days. Appellee thereupon notified appellant that he stood ready to reconstruct the sidewalk to conform to any grade which appellant would establish by ordinance. He thereupon, by the use of some sharp instrument, nicked and permanently roughened the 17-inch slope where said sidewalk joined the Curtner sidewalk.

The court stated as conclusions of law that the sidewalk described in the complaint and finding is not a public nuisance, and that appellant is not entitled to have it abated as such, that the law is with appellee, and that appellant is not entitled to recover.

use of property so as essentially to interfere | before indicated, is against appellant on such with the free enjoyment thereof is a nuis- question. It follows that the court did not ance and the subject of an action, and that err in the conclusions of law. such action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and that where a proper case is made the nuisance may be enjoined or abated. Section 291 et seq., Burns 1914.

[6] Appellant assigns error on the overruling of the motion for a new trial. Appellant's brief under such assignment contains but four points, each general in its nature, and to the effect that it is error to admit evidence of a certain nature. The points [2] While the statutory provision is broad are not directed to any particular ruling comenough to include both classes, the statutes plained of, and, under a strict construction referred to apparently afford a remedy for of the rules of this court, present no quesa private rather than a public nuisance. tion. Standard Live Stock Ins. Co. v. AtThe distinction between a public and a pri-kinson, 111 N. E. 913; Rosenbaum Bros. v. vate nuisance, however, does not necessarily Devine, 271 Ill. 354, 111 N. E. 97; Cole Motor consist in the nature of the thing done or the Car Co. v. Ludorff, 111 N. E. 447; Warner character of the structure maintained. The v. Reed, 113 N. E. 386. thing done or structure maintained may be prejudicial to the general public, and thus it may constitute a public nuisance, and yet, as to some particular person, it may also be a private nuisance, in that by it he suffers an injury not common to the general public. 29 Cyc. 1153; Kissel v. Lewis, 156 Ind. 233, 59 N. E. 478; Haggart v. Stehlin, 137 Ind. 54, 35 N. E. 997, 22 L. R. A. 577; New Albany v. Slider, 21 Ind. App. 392, 52 N. E. 620.

We have, however, examined the motion for a new trial in an effort to apply such general propositions, but find no material error.

Judgment affirmed.

(63 Ind. App. 455) ROBBINS et al. v. BRAZIL SYNDICATE R. & B. CO. (No. 9174.) (Appellate Court of Indiana, Division No. 1. Jan. 3, 1917.)

SALES

EFFECT.

161(1)—DELIVERY TO CArrier—

Where goods are bought at one place to be consigned to the purchaser at another place, in the absence of any arrangement or agreement to the contrary, the general rule is that delivery by the seller to a common carrier, duly consigned to the purchaser, is a delivery to the pur chaser.

[Ed. Note.-For other cases, see Sales, Cent Dig. §§ 377-380; Dec. Dig. 161(1).] 2. SALES 200(3)-DELIVERY TO CARRIER

[3] This action is prosecuted on the theory 1. that the structure involved here is a public nuisance. An unauthorized and unlawful obstruction of a public street in a town or city is a public nuisance, and as such may be abated. State v. Louisville, etc., Co., 86 Ind. 114; Burk v. State, 27 Ind. 430; O'Brien v. Central Iron, etc., Co., 158 Ind. 218, 63 N. E. 302, 57 L. R. A. 508, 92 Am. St. Rep. 305; Zimmerman v. State, 4 Ind. App. 583, 31 N. E. 550; Langsdale v. Benton, 12 Ind. 467. The cases above cited deal with the erecting and maintaining of buildings, fences, etc., in such a manner as to obstruct or infringe upon the limits of public streets. The structure involved here is an essential, or at least a very proper, part of a public street, and if it constitutes a public nuisance, such fact consists in the manner of its construction. The complaint proceeds on such a theory.

[4] Incorporated towns are authorized to declare, by general ordinance, what shall constitute a nuisance, and to prevent, abate, or remove the same. Section 9005, subd. 4, Burns 1914. They may also at their election resort to the courts to abate a public nuisance. American, etc., Co. v. Town of Batesville, 139 Ind. 77, 38 N. E. 408; Cheek v. City of Aurora, 92 Ind. 107; City of Valparaiso v. Bozarth, 153 Ind. 536, 55 N. E. 439, 47 L. R. A. 487; Billings Hotel Co. v. City, etc., L. R. A. 1916D, p. 1020, note.

EFFECT.

The right of inspection in the absence of any established custom or agreement to the contrary does not prevent the title from passing to the purchaser on delivery to the carrier of the goods duly consigned to the purchaser. Dig. § 527; Dec. Dig. 200(3).] [Ed. Note. For other cases, see Sales, Cent.

3. SALES

EFFECT.

201(4)—DELIVERY TO CARRIER

If goods are sold to be delivered by the seller at the residence or place of business of the purchaser, a delivery to the carrier is not a delivery to the purchaser.

[Ed. Note. For other cases, see Sales, Cent. Dig. 88 535, 536; Dec. Dig. 201(4).]

4. SALES

59-CONTRACTS-CONSTRUCTION.

Where an alleged contract of sale is made up of letters and telegrams exchanged between the parties, effect must be given to all parts of the alleged contract without doing violence to the evident intention of the parties.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 159; Dec. Dig. 59.j 5. CONTRACTS

TENTION.

147(2)-CONSTRUCTION-IN

Where the contract is in writing, and the language employed is unambiguous, it is a cardinal rule of construction that it shall be so interpreted as to carry into effect the intention of the parties as expressed by the writings.

[5] Appellant here resorted to the courts, and in so doing assumed the burden of establishing that the sidewalk, by reason of its comparative elevation, was a public nuisance, in that its use was perilous to pedes- [Ed. Note. For other cases, see Contracts, trians. The finding of the court, as herein-Cent. Dig. § 730; Dec. Dig. ~~147(2).]

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