any other servant the duty placed on it by the statute. Such a verdict is contradictory and absurd, and cannot be made the basis of a legal judgment. * * * As the case at bar comes to us the general verdict is a nullity and without effect, while there is no special verdict unless the answers to interrogatories may be so before it neither a general verdict nor a special verdict of the jury on the issues of fact presented for its determination, any judgment covering such issues which the court might render would be wholly unauthorized by law and invalid."

construed.

* Since the trial court had

Appellant company contends, in effect, that said first verdict was a finding upon all the issues; that inasmuch as the verdict was silent as to appellant Wallace, it was an implied finding in his favor; that since it was sued as surety on a bond executed by its coappellant to secure the performance of a building contract, there could be no liability on its part, without default by the principal in such bond; and since the verdict, in effect, found there was no such default, it would have been entitled to judgment, if question of master and servant, while this such verdict had been received, and its rejec- case involves the question of principal and tion, therefore, was harmful error. We cansurety, is not material, since it is held the not concur in appellant's conclusion. A number of authorities from other states are cit- the two parties involved is analogous to that same principle applies, where the relation of ed in its support, but whatever may be the of principal and agent, or principal and surerule in other jurisdictions, it has been ex-ty, or master and servant. Doremus v. Root, pressly decided otherwise in this state, in the case of Childress, Adm'x, v. L. E. & W. R. Co. (1914) 182 Ind. 251, 105 N. E. 467, based,

as we believe, on the greater weight of authority, and the better reason. In that case appellant brought suit against appellee and its engineer, Patrick Haggerty, for damages for the death of her decedent by the negligence of the defendants in failing to give a signal on approaching a certain crossing. On the trial of the cause the jury returned

the following verdict:

"We, the jury, find for the plaintiff, and against the Lake Erie & Western Railroad Company, and assess her damages at $6,000. And find for the defendant, Patrick Haggerty."

This verdict, and the first verdict in the case at bar, as appellant would construe it, by reading into it the implied finding in favor of Wallace, are, in substance, identical, and the ultimate holding in that case is controlling here. This court, on appeal of the Childress Case, supra, held in accordance with appellant's contention in this case (101 N. E. 332), but the Supreme Court granted a petition to transfer the cause, and reversed the judgment of this and the trial court.

In that case the facts were such that the railroad company could only be liable if its engineer was liable, and in this case the facts are such that the appellant company can only be liable if the appellant Wallace is liable. The same question is therefore involved. In the Childress Case, supra, the Supreme Court in the course of its opinion said:

"By this verdict the jury found, in effect, that appellee company was liable in damages because the statutory signals were not given, while Haggerty, the engineer, was not liable because the proper signals were given. No other construction is possible under the averments of appellant's complaint since it does not charge that it was the duty of any servant of appellee company, other than Haggerty, to give said signals, or that said company violated through

The fact that the case cited involves the

54 L. R. A. 649, note; Portland, etc., Co. v. Stratton's Independence, Ltd., 16 L. R. A. (N. S.) 677, note.

[7, 8] The question then arises as to the duty of the trial court on the return of said

first verdict. This verdict was either in

complete, and therefore defective because it did not make any finding as to the appellant Wallace; or it was a nullity, because contradictory, if silence as to him is to be taken

as a finding in his favor, as contended by

appellant company. In either event it is apparent that no valid judgment could be rendered thereon, and, if received, must necessarily result in a retrial. Maxwell v. Wright et al. (1903) 160 Ind. 515, 67 N. E. 267, and Childress, Adm'x, v. Lake, etc., R. Co., supra. Since the object of a trial is to reach an effective result, in accordance with the prescribed procedure, it is clear to us that the trial court was wholly within its right, in requiring the jury to retire for further deliberation, under the circumstances shown in this case. It has been frequently held that a defective verdict may be amended at any time before the discharge of the jury; that a proper method is to require the jury to return to their room under proper instructions; and that such procedure by the trial court is proper where the verdict does not respond to all the issues submitted. City of Ft. Wayne v. Duryee (1894) 9 Ind. App. 620, 37 N. E. 299; City of Ft. Wayne v. Durnell (1895) 13 Ind. App. 669, 42 N. E. 242; Pehlman v. State (1888) 115 Ind. 131, 17 N. E. 270; 22 Ency. P. & Pr. p. 875.

There was no error in the action of the

court in giving instruction No. 15, before requiring the jury to retire for further deliberation. We have found no error in the record which authorizes or requires a reversal of the judgment.

Judgment affirmed.

(Appellate Court of Indiana, Division No. 2. Fraser & Isham, of Fowler, for appellant.

Action by Etta Graham against the Supreme Lodge, Knights of Pythias. Judgment ing, directly or by inference, the trial court

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

*Rehearing denied, Transfer denied.

did not err in overruling the motion for a new trial on the ground of insufficiency of the evidence. As we view the case, the sufficiency of the evidence is not made to depend entirely upon the custom in appellant order. To illustrate such view, we refer to the evidence in the former trial given by William L. Hunt, where he testified:

"That the application was approved late in the afternoon of April 12th; that he made the indorsement on the back of the certificate (ap; plication) showing that it was approved (and the indorsement itself so shows); that the certificate was then mailed to Mr. Walker at Indianapolis, Ind."

After setting out the above evidence and in a discussion of the testimony of Mr. Walker given on that trial, this court says:

"If there were some evidence tending to show that the certificate of membership was received in Indianapolis on April 12th, the inference could be properly drawn that it was written on April 11th in Chicago."

law of the case there was evidence to support the verdict.

of instructions

[3] Appellant complains Nos. 2 and 6 of the court's instructions. The objection is that they went entirely beyond the evidence. Each of these instructions told the jury that if the appellant had, by a course of conduct, established and fixed a general custom of treating and accepting the approval of the applications by the medical examiner in chief as an acceptance thereof by the board of control, then the acceptance by the medical examiner in chief amounted to an acceptance by the appellant. There was some evidence of such custom, and the court committed no error in the giving of the instructions.

[4] A further and additional reason why appellant should not be heard to complain is that by instruction No. 16 tendered by it the same legal proposition was stated as the law with reference to the certificate clerk.

[5] Complaint is made of the refusal of the court to give certain instructions tendered by appellant. These instructions are predicated on the theory that the application of Bailey was an offer, and to constitute a contract there must be shown an acceptance of such offer and notice thereof, either actual or constructive, to Bailey during his life, and that the mailing of the certificate of membership to appellant's agent at Indian

The court then holds that the testimony of Walker as to the time of receiving the certificate was so indefinite and uncertain in its meaning as to be entitled to no weight whatever as evidence, and reversed the case on such point. In other words, where the testimony of different witnesses was at variance, it was the duty of the jury to reconcile such testimony if possible. If, as according to Hunt's testimony, the certificate was not mailed in Chicago until after its accept-apolis, for delivery to Bailey, did not constiance and final approval, and it was actually received in Indianapolis on the morning of April 12th, this would be evidence from which the jury might properly infer that it was accepted and finally approved on April 11th. This is the effect of the holding in the former appeal and, as the testimony of Mr. Hunt in the present appeal is not materially different, we need not consider the question of custom, if there is any evidence tend ing to show that the certificate of membership was received in Indianapolis on April

12th.

James W. Walker testified on this question that:

"To the best of my recollection I had it on the 12th day of April at 9 o'clock, 1905

* * *

tute notice to Bailey, or prevent appellant from recalling from its agent in Indianapolis such certificate and notice, and that therefore the mailing of such certificate to the appellant's agent at Indianapolis for delivery to Bailey did not consummate a contract.

In this appeal the law of the case determines this question. It was claimed on behalf of appellant in the former appeal that the acceptance of the written application constituted a written contract of insurance. And this court in effect so held. The appellant's substantial rights were not affected by the refusal to give such instructions, and no reversible error was committed.

[6, 7] It is next insisted that the court err* a. m."; that he procured the certified in refusing to permit the witness Wilcate from the post office in Indianapolis, Ind., liam L. Hunt to state the date when he postmarked Chicago, Ill.

The same witness also testifies that he sent some money to Mr. Held on the day he received the certificate, and to the best of his knowledge it was the 12th day of April. Further this witness testified:

"To the best of my belief, and before my God, I got that (referring to the certificate) on the 12th day of the month, between 9 and 10 o'clock."

The deficiency in the evidence pointed out in the former opinion was thus supplied, and when taken with the testimony of Mr. Hunt warranted the jury in drawing the inference that the application was accepted by the

determined to approve the application and accept the risk. This witness was permitted to and did testify that the final approval of the application was on April 12th in answer to other questions. The only purpose of the testimony elicited by the question complained of would be to establish the time of final approval. This was one of the questions for the jury to determine, and a question calling for a conclusion of the witness was not proper. Such question was also improper for the reason that it assumed that the witness had authority to approve the application and accept the risk, and that the witness did determine to approve the application and ac

Walsh, 45 Ind. App. 42, 90 N. E. 138; Eckart v. Ft. Wayne, etc., T. Co., 181 Ind. 352, 104 N. E. 762.

6. MUNICIPAL CORPORATIONS 485(3)—IMPROVEMENTS-BONDS

ASSIGNMENT-NOTICE. Where street improvement bonds are payable to one named or bearer, the record in the No available error having been shown, the improvement proceeding is notice to every one judgment of the trial court is affirmed.

(63 Ind. App. 574)

NATIONAL EXCH. BANK OF ANDERSON
v. SMITH et al. (No. 9150.)
(Appellate Court of Indiana. Jan. 26, 1917.)
1. MUNICIPAL CORPORATIONS 569-STREET
IMPROVEMENTS ENFORCEMENT OF LIEN-
FINDINGS.

In an action to foreclose the statutory lien securing a street improvement bond, a general finding for the defendant is a finding in his favor on the issue that the plaintiff did not at any time obtain possession of the original bond, and that it was held by the contractor, defendant's predecessor in title, at the time he procured a conveyance of the lot in payment of the bond

and assessment.

that such obligation may rightfully be owned by some person other than the one named without assignment or record of transier.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1142; Dec. Dig. 485(3).]

7. MUNICIPAL CORPORATIONS ~485(1)STREET IMPROVEMENTS-NOTICE.

The law compels the owner of property assessed for street improvements to know that a particular bond is not issued to cover the assessment on particular real estate except as the amount of such assessment as a part of the correct sum for which the bonds were issued.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1140; Dec. Dig. 485(1).]

8. VENDOR AND PURCHASER

229(5)—Bona FIDE PURCHASER-STREET IMPROVEMENTSCONSTRUCTIVE NOTICE.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1283; Dec. Dig. Burns' Ann. St. 1901, § 4294, provides for 569.]

2. APPEAL AND ERROR FINDINGS of Court.

Findings of court supported by sufficient evidence are conclusive on appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. 1010(1).]

3. MUNICIPAL CORPORATIONS

DENCE-SUFFICIENCY.

568(3)—EvI

Sec

a lien upon all property assessed for street im1010(1)—REVIEW-provements, and that, if the owner of any lot shall file a waiver of objections, he may pay the assessment in ten annual installments. tion 4296 provides for bonds to cover assessments for which waivers have been filed, and that all bonds shall be an equal lien upon the property so assessed without priority one over the other. Section 4294 provides that, when payment is made upon an assessment, the treasbonds receiving such payment shall record such urer, contractor, or owner of the assessment or receipt, which shall be a discharge on the lien bond shall be surrendered and canceled by the as assessed, and that upon such payment the municipality. Held, that the record of street improvement proceedings, assessments, and issuance of bonds payable to the contractor or bearer charged a purchaser of assessed property with constructive notice of all such facts, and with such facts as an ordinarily diligent search would have disclosed.

In a suit to foreclose a statutory lien securing a street improvement bond, evidence held to warrant a finding that neither the assignment of the bond to plaintiff nor a copy thereof was left at the office of the town clerk.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1282; Dec. Dig. 568(3).]

4. VENDOR AND PURCHASER 231(16)-BONA FIDE PURCHASER-STREET IMPROVEMENTSPROCEEDINGS-RECORD-NOTICE.

Persons who acquire real estate incumbered by assessments for street improvement, evidenced by records required to be kept by law, are bound by the constructive notice imparted by such records when duly kept.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 532-535; Dec. Dig. 231(16).]

5. MUNICIPAL CORPORATIONS PROVEMENT BONDS-LIEN.

519(5)-IM

In view of Burns' Ann. St. 1901, § 4294, providing that, when payment is made upon assessment for street improvements, it is the duty of the treasurer, contractor, or owner of the assessments or bonds receiving such payment to record such receipt, and that such bonds shall be surrendered and canceled by the treasurer of the municipality issuing them, where a contractor, after assigning street improvement bonds, by falsely representing that he still owned the bonds, procured an owner of real estate assessed to convey to him in payment of the assessment, the assessment lien was not merged in his title, since the lien for the total bond issue covered the property of all owners who signed waivers, and was equal upon the property assessed without the priority of one of such bonds over any other, and, to discharge the lien against any particular tract, there must be payment in full of the assessment against it to the party lawfully entitled to receive the

same.

229

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 484; Dec. Dig. (5).]

9. MUNICIPAL CORPORATIONS 560-STREET

IMPROVEMENTS-ISSUANCE OF BOND.

Where a contractor, after assigning a street improvement bond, by false representation procured a conveyance of land subject to an assessment, the record of such deed did not give the holder of the bonds notice of any fact which would defeat his right to foreclose the lien of assessment if it was otherwise entitled to do so. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1267; Dec. Dig. 560.]

10. LIMITATION OF ACTIONS 51(2)—COMPUTATION OF PERIOD OF LIMITATION-BONDS PAYABLE IN INSTALLMENTS.

A suit begun October 16, 1913, to foreclose the statutory lien securing a street improvement bond issued in May, 1902, with the last installment to run ten years from the date before maturity was not barred by either the five, six. or ten year statute of limitations.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 281, 283, 284; Dec. Dig. 51(2).]

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Suit by the National Exchange Bank of

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1224; Dec. Dig. Anderson against Robert C. Smith and oth519(5).] ers, in which the named defendant filed a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
114 N.E.-56

cross-complaint to quiet title. Judgment for holder and owner of bond 47 aforesaid, and the defendants and for the named defendant that on that date Sarah A. Gauntt, the then on his cross-complaint, and from the overrul-owner of the real estate in question paid to ing of plaintiff's motion for new trial, he ap-him the full amount of the assessment peals. Reversed, with directions to sustain the motion for a new trial.

FELT, C. J. This was a suit brought by appellant to foreclose the statutory lien se curing a street improvement bond. The court found for the defendants on the complaint, and for appellee Robert C. Smith upon his cross-complaint to quiet his title to the real estate on which appellant sought to foreclose the improvement lien. Appel-as to the facts in substance as follows: That lant's motion for a new trial was overruled, and judgment rendered in accordance with the finding of the court.