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Appellant company contends, in effect, that, any other servant the duty placed on it by the said first verdict was a finding upon all the statute. Such a verdict is contradictory and issues; that inasmuch as the verdict was absurd, and cannot be made the basis of a legal

judgment.

As the case at bar comes silent as to appellant Wallace, it was an im- to us the general verdict is a nullity and withplied finding in his favor; that since it was out effect, while there is no special verdict unsued as surety on a bond executed by its less the answers to interrogatories may be so

construed.

Since the trial court had coappellant to secure the performance of a before it neither a general verdict nor a special building contract, there could be no liability verdict of the jury on the issues of fact presenton its part, without default by the principal ed for its determination, any judgment covering in such bond; and since the verdict, in ef. be wholly unauthorized by law and invalid."

such issues which the court might render would fect, found there was no such default, it

The fact that the case cited involves the would have been entitled to judgment, if such verdict had been received, and its rejec- case involves the question of principal and

question of master and servant, while this tion, therefore, was harmful error. We can

surety, is not material, since it is held the not concur in appellant's conclusion. A num

same principle applies, where the relation of ber of authorities from other states are cit- the two parties involved is analogous to that 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 54 L. R. A. 649, note; Portland, etc., Co. v. case of Childress, Adm'x, v. L. E. & W. R. Stratton's Independence, Ltd., 16 L. R. A. Co. (1914) 182 Ind. 251, 105 N. E. 467, based,

(N. S.) 677, note. as we believe, on the greater weight of au

[7,8] The question then arises as to the thority, and the better reason. In that case

duty of the trial court on the return of said appellant brought suit against appellee and

first verdict. This verdict was either inits engineer, Patrick Haggerty, for damages complete, and therefore defective because it for the death of her decedent by the negli- did not make any finding as to the appellant gence of the defendants in failing to give a Wallace; or it was a nullity, because consignal on approaching a certain crossing, tradictory, if silence as to him is to be taken On the trial of the cause the jury returned

as a finding in his favor, as contended by the following verdict:

“We, the jury, find for the plaintiff, and appellant company. In either event it is apagainst the Lake Erie & Western Railroad' com- parent that no valid judgment could be renpany, and assess her damages at $6,000. And dered thereon, and, if received, must necesfind for the defendant, Patrick Haggerty." sarily result in a retrial. Maxwell v. Wright

This verdict, and the first verdict in the et al. (1903) 160 Ind. 515, 67 N. E. 267, and case at bar, as appellant would construe it, Childress, Adm'x, v. Lake, etc., R. Co., supra. by reading into it the implied finding in fa- Since the object of a trial is to reach an efvor of Wallace, are, in substance, identical, fective result, in accordance with the prescriband the ultimate holding in that case is con- ed procedure, it is clear to us that the trial trolling here. This court, on appeal of the court was wholly within its right, in reChildress Case, supra, held in accordance quiring the jury to retire for further delibwith appellant's contention in this case (101 eration, under the circumstances shown in N. E. 332), but the Supreme Court granted this case. It has been frequently held that a a petition to transfer the cause, and reversed defective verdict may be amended at any the judgment of this and the trial court. time before the discharge of the jury; that

In that case the facts were such that the a proper method is to require the jury to railroad company could only be liable if its return to their room under proper instrucengineer was liable, and in this case the tions; and that such procedure by the trial facts are such that the appellant company court is proper where the verdict does not can only be liable if the appellant Wallace is respond to all the issues submitted. City liable. The same question is therefore in- of Ft. Wayne v. Duryee (1894) 9 Ind. App. volved. In the Childress Case, supra, the 620, 37 N. E. 299; City of Ft. Wayne v. DurSupreme Court in the course of its opinion nell (1895) 13 Ind. App. 669, 42 N. E. 242; said:

Pehlman v. State (1888) 115 Ind. 131, 17 "By this verdict the jury found, in effect, that N. E. 270; 22 Ency. P. & Pr. p. 875. appellee company was liable in damages be There was no error in the action of the cause the statutory signals were not given: court in giving instruction No. 15, before rewhile Haggerty, the engineer, was not liable because the proper signals were given. No oth- quiring the jury to retire for further deer construction is possible under the averments liberation. We have found no error in the of appellant's complaint since it does not charge record which authorizes or requires a rethat it was the duty of any servant of appellee Iversal of the judgment. company, other than Haggerty, to give said signals, that said company violated through Judgment affirmed.

DENCE.

(65 Ind. App. 220)

for plaintiff, and defendant appeals. Af SUPREME LODGE, K, P., V. GRAHAM.* firmed. (No. 9100.)

Stansbury & Billings, of Williamsport, and (Appellate Court of Indiana, Division No. 2. Fraser & Isham, of Fowler, for appellant. Jan. 25, 1917.)

John J. Hall, of Williamsport, E. G. Hall, 1. APPEAL AND ERROR Cw930(1) - QUESTION of Fowler, Samuel R. Artman, of IndianOF FACT-VERDICT.

Where the jury found in favor of appellee apolis, and William H. Smith, of Lebanon, for on all the essential averments of the complaint, appellee. the Court of Appeals, in determining the sufficiency of the evidence to uphold such verdict, must take the evidence most favorable to the ap- appellant on a contract of insurance. From

IBACH, P. J. Action by appellee against pellee.

(Ed. Note.-For other cases, see Appeal and a judgment for appellee, appellant appeals. Error, Cent. Dig. $8 3755, 3756, 3758; Dec. This is a second appeal. Upon the former apDig. m 930(1).]

peal (49 Ind. App. 535, 97 N. E. 806), this 2. INSURANCE $25(1)-FRATERNAL INSUR- court reversed a judgment in favor of appel

ANCE-DELIVERY OF POLICY-QUESTION FOR
JURY.

lee upon the evidence. In an action upon a certificate of life insur The only error discussed in appellant's ance issued by a fraternal order, held that wheth- brief is the overruling of its motion for a er the certificate was issued before the insured's new trial. The grounds of such motion, redeath was a question for the jury. [Ed. Note.-For other cases, see Insurance, tained by sufficient evidence, and as being

lied on, question the verdict as not being susCent. Dig. $ 2009; Dec. Dig. Om 825(1).) 3. INSURANCE 713_FRATERNAL SOCIETY

contrary to law, the giving or refusal to give ACTION ON CONTRACT-INSTRUCTION-Evi. certain instructions, and the exclusion of cer.

tain evidence. The cause was submitted to If defendant by a course of conduct had es

a jury for trial on the issues formed by the tablished the general custom of accepting the approval of applications by its medical examin- second paragraph of the complaint and the er in chief as an acceptance thereof by the board several paragraphs of answer filed by appelof control, the examiner's acceptance amounted i lant. These pleadings are substantially the to an acceptance by defendant.

same, if not identical, with those of the [Ed. Note.-For other cases, see Insurance, former trial. The propositions by which ap. Cent. Dig. § 1851; Dec. Dig. Om713.) 4. APPEAL_AND ERROR Pm882(12)—RIGHT TO the overruling of its motion for a new trial

pellant seeks to sustain its assigned error in ALLEGE ERRORINVITED ERROR.

In such case, the insurer could not complain are as follows: of such instruction, where its own instruction (1) This case having been, on former appeal, tendered the same legal proposition with ref- reversed on the ground that the evidence was erence to its certificate clerk.

not sufficient to support the verdict, and the evi(Ed. Note.-For other cases, see_Appeal and dence in the retrial being in all respects subError, Cent. Dig. $ 3602; Dec. Dig. Em 882 stantially the same as in the former trial, the (12).]

opinion of this court in the former appeal is 5. APPEAL AND ERROR 1099(4) SUBSE

the law of this case, and decisive of the insuffiQUENT APPEAL-LAW OF CASE.

ciency of the evidence. In an action upon a certificate issued by fra

“(2) Aside from the rule of the law of the ternal order, a holding on a former appeal that case, the evidence is not sufficient to support

the verdict. the acceptance of the written application constituted a written contract of insurance was insurance could become binding, it was neces

“(3) Before the application to appellant for the law of the case on a subsequent appeal. [Ed. Note.-For other cases, see Appeal and and notice thereof, actual or constructive, be

sary that there be an acceptance by appellant, Error. Cent. Dig. § 4373; Dec. Dig. Om

given to the apnlicant during his life, and in1099(4).]

structions, so declaring the law, were erroneous6. EVIDENCE OM472(1) Fact OR CONCLU- ly refused. SION.

“(4) The instructions given, that if the jury Where the time of the final approval of an found that appellant, by a custom established, insurance contract was a question for the jury, had treated the approval of the medical examia question to a witness to elicit his answer as ner in chief as acceptance by the board of conto the time of its final approval was improper, trol, then approval by such medical examiner as calling for a conclusion.

in chief would be sufficient to warrant a ver(Ed. Note.-For other cases, see Evidence, dict for the plaintiff, were erroneous, because no Cent. Dig. $8 2186, 2191; Dec. Dig. Om472(1).] evidence of such custom was given.

(5) The court erred in not permitting appel7. WITNESSES O237(3) — EXAMINATION-As. lant's certificate clerk to testify as to when SUMPTION OF FACT.

he determined to accept the application.” A question to a witness as to when he determined to approve an application and accept [1] The jury found in favor of appellee on the risk was improper, as assuming that the all the essential averments of the complaint, witness was authorized to approve the application and accept the risk, and that he deter- and in determining the sufficiency of the evimined to do so.

dence to uphold such verdict we are to take [Ed. Note. For other cases, see Witnesses, the evidence most favorable to the appellee. Cent. Dig. & 831; Dec. Dig. Om 237(3).]

[2] It is apparent that the jury found that Appeal from Circuit Court, Benton County; the application was accepted or finally apBurton B. Berry, Judge.

proved on the 11th day of April, 1905. It Action by Etta Graham against the Su- there is any evidence to sustain such find. preme Lodge, Knights of Pythias. Judgment ing, directly or by inference, the trial court

Cam 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 as law of the case there was evidence to support new trial on the ground of insufficiency of the the verdict. evidence. As we view the case, the sufficien [3] Appellant complains of instructions cy of the evidence is not made to depend en- | Nos. 2 and 6 of the court's instructions. The tirely upon the custom in appellant order. objection is that they went entirely beyond To illustrate such view, we refer to the evi- i the evidence. Each of these instructions told dence in the former trial given by William L. the jury that if the appellant had, by a Hunt, where he testified:

course of conduct, established and fixed a “That the application was approved late in general custom of treating and accepting the the afternoon of April 12th; that he made the approval of the applications by the medical indorsement on the back of the certificate (ap- examiner in chief as an acceptance thereof plication) showing that it was approved (and the indorsement itself so shows); that the cer- by the board of control, then the acceptance tificate was then mailed to Mr. Walker at In- by the medical examiner in chief amounted dianapolis, Ind.”

to an acceptance by the appellant. There After setting out the above evidence and in was some evidence of such custom, and the a discussion of the testimony of Mr. Walker court committed no error in the giving of given on that trial, this court says:

the instructions. "If there were some evidence tending to show

[4] A further and additional reason why that the certificate of membership was received appellant should not be heard to complain is in Indianapolis on April 12th, the inference that by instruction No. 16 tendered by it the could be properly drawn that it was written on

same legal proposition was stated as the law April 11th in Chicago.'

with reference to the certificate clerk. The court then holds that the testimony [5] Complaint is made of the refusal of of Walker as to the time of receiving the the court to give certain instructions tendercertificate was so indefinite and uncertain ed by appellant. These instructions are in its meaning as to be entitled to no weight predicated on the theory that the application whatever as evidence, and reversed the case of Bailey was an offer, and to constitute & on such point. In other words, where the contract there must be shown an acceptance testimony of different witnesses was at vari- of such offer and notice thereof, either actual ance, it was the duty of the jury to reconcile or constructive, to Bailey during his life, such testimony if possible. If, as accord-J and that the mailing of the certificate of ing to Hunt's testimony, the certificate was membership to appellant's agent at Indiannot mailed in Chicago until after its accept- apolis, for delivery to Bailey, did not consti. ance and final approval, and it was actually tute notice to Bailey, or prevent appellant received in Indianapolis on the morning of from recalling from its agent in Indianapolis April 12th, this would be evidence from such certificate and notice, and that therefore which the jury might properly infer that it the mailing of such certificate to the appelwas accepted and finally approved on April lant's agent at Indianapolis for delivery to 11th. This is the effect of the holding in Bailey did not consummate a contract. the former appeal and, as the testimony of

In this appeal the law of the case deter. Mr. Hunt in the present appeal is not materi- mines this question. It was claimed on beally different, we need not consider the ques- half of appellant in the former appeal that tion of custom, if there is any evidence tend the acceptance of the written application coning to show that the certificate of member.

stituted a written contract of insurance. ship was received in Indianapolis on April And this court in effect so held. The appel12th. James W. Walker testified on this question by the refusal to give such instructions, and

lant's substantial rights were not affected that:

no reversible error was committed. "To the best of my recollection I had it on the 12th day of April at 9 o'clock,

1905

(6, 7] It is next insisted that the court err. ; 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.

determined to approve the application and The same witness also testifies that he accept the risk. This witness was permitted sent some money to Mr. Held on the day he to and did testify that the final approval of received the certificate, and to the best of the application was on April 12th in answer his knowledge it was the 12th day of April. to other questions. The only purpose of the Further this witness testified:

testimony elicited by the question complained "To the best of my belief, and before my God, of would be to establish the time of final apI got that (referring to the certificate) on the proval. This was one of the questions for 12th day of the month, between 9 and 10 the jury to determine, and a question calling o'clock."

for a conclusion of the witness was not prop. The deficiency in the evidence pointed outer. Such question was also improper for In the former opinion was thus supplied, and the reason that it assumed that the witness when taken with the testimony of Mr. Hunt had authority to approve the application and warranted the jury in drawing the inference accept the risk, and that the witness did that the application was accepted by the determine to approve the application and ac

a. m.

Walsh, 45 Ind. App. 42, 90 N. E. 138; Eck- 1 6. MUNICIPAL CORPORATIONS Om 485(3)-IM. art v. Ft. Wayne, etc., T. Co., 181 Ind. 352, PROVEMENTS-BONDS ASSIGNMENT-NOTICE.

Where street improvement bonds are pay104 N, E. 762.

able 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. that such obligation may rightfully be owned

by some person other than the one named with(63 Ind. App. 574)

out assignment or record of transter. NATIONAL EXCH, BANK OF ANDERSON Corporations, Cent. Dig. $ 1142'; Dec. Dig. Om

(Ed. Note.-For other cases, see Municipal V. SMITH et al. (No. 9150.)

485(3).] (Appellate Court of Indiana. Jan. 26, 1917.) 7. MUNICIPAL CORPORATIONS Om485(1) 1. MUNICIPAL CORPORATIONS 569-STREET STREET IMPROVEMENTS—NOTICE.

IMPROVEMENTS — ENFORCEMENT OF LIEN The law compels the owner of property asFINDINGS.

sessed for street improvements to know that a In an action to foreclose the statutory lien particular bond is not issued to cover the assecuring a street improvement bond, a general sessment on particular real estate except as the finding for the defendant is a finding in his fa- amount of such assessment as a part of the vor on the issue that the plaintiff did not at any correct sum for which the bonds were issued. time obtain possession of the original bond, and [Ed. Note. For other cases, see Municipal that it was held by the contractor, defendant's Corporations, Cent. Dig. $ 1140; Dec. Dig. predecessor in title, at the time be procured a 485(1).] conveyance of the lot in payment of the bond 8. VENDOR AND PURCHASEB 229(5)—Bona and assessment.

FIDE PURCHASER-STREET IMPROVEMENTS(Ed. Note.-For other cases, see Municipal

CONSTRUCTIVE NOTICE. Corporations, Cent. Dig. 8 1283; Dec. Dig.

Burns' Ann. St. 1901, § 4294, provides for 569.]

a lien upon all property assessed for street im2. APPEAL AND ERROB m1010(1)-REVIEW provements, and that, if the owner of any lot FINDINGS OF COURT.

shall file a waiver of objections, he may pay the Findings of court supported by sufficient evi- assessment in ten annual installments. Secdence are conclusive on appeal.

tion 4296 provides for bonds to cover assess(Ed. Note. For other cases, see Appeal and ments for which waivers have been filed, and Error, Cent, Dig. $8 3979–3981; Dec. Dig. Om that all bonds shall be an equal lien upon the 1010(1).]

property so assessed without priority one over

the other. 3. MUNICIPAL CORPORATIONS Om568(3)–Evi• payment is made upon an assessment, the treas

Section 4294 provides that, when DENCE-SUFFICIENCY.

urer, contractor, or owner of the assessment or In a suit to foreclose a statutory lien secur- bonds receiving such payment shall record such ing a street improvement bond, evidence held to receipt, which shall be a discharge on the lien warrant a finding that neither the assignment of

as assessed, and that upon such payment the the bond to plaintiff nor a copy thereof was left bond shall be surrendered and canceled by the at the office of the town clerk.

municipality. Held, that the record of street (Ed. Note. For other cases, see Municipal improvement proceedings, assessments, and isCorporations, Cent. Dig. $ 1282; Dec. Dig. suance of bonds payable to the contractor or 56813).)

bearer charged a purchaser of assessed prop4. VENDOR AND PURCHASER em 231(16)-Bona erty with constructive notice of all such facts, FIDE PURCHASER-STREET IMPROVEMENTS- and with such facts as an ordinarily diligent PROCEEDINGSRECORD-NOTICE.

search would have disclosed. Persons who acquire real estate incumbered [Ed. Note.-For other cases, see Vendor and by assessments for street improvement, evidenc- Purchaser, Cent. Dig. § 484; Dec. Dig. Om 229 ed by records required to be kept by law, are (5).] bound by the constructive notice imparted by 9. MUNICIPAL CORPORATIONS Om560_STREET such records when duly kept.

IMPROVEMENTS--ISSUANCE OF Boxd. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. $8 487, 532-535; Dec. improvement bond, by false representation pro

Where a contractor, after assigning a street Dig. 231(16).]

cured a conveyance of land subject to an as5. MUNICIPAL CORPORATIONS Om519(5)-IM-sessment, the record of such deed did not give PROVEMENT BONDS-LIEN.

the holder of the bonds notice of any fact which In view of Burns' Ann. St. 1901, $ 4294, would defeat his right to foreclose the lien of providing that, when payment is made upon as- assessment if it was otherwise entitled to do so. sessment for street improvements, it is the duty (Ed. Note.-For other cases, see Municipal of the treasurer, contractor, or owner of the Corporations, Cent. Dig. & 1267; Dec. Dig. assessments or bonds receiving such payment 560.] to record such receipt, and that such bonds shall be surrendered and canceled by the treas- | 10. LIMITATION OF ACTIONS Om51(2)→COMPUurer of the municipality issuing them, where a

TATION OF PERIOD OF LIMITATION-Bonds contractor, after assigning street improvement

PAYABLE IN INSTALLMENTS. bonds, by falsely representing that he still own

A suit begun October 16, 1913, to foreclose ed the bonds, procured an owner of real estate the statutory lien securing a street improvement assessed to convey to him in payment of the as

bond issued in May, 1902, with the last insessment, the assessment lien was not merged stallment to run ten years from the date before in his title, since the lien for the total bond maturity was not barred by either the five, six, issue covered the property of all owners who or ten year statute of limitations. signed waivers, and was equal upon the prop (Ed. Note.-For other cases, see Limitation erty assessed without the priority of one of of Actions, Cent. Dig. $$ 281, 283, 284; Dec. such bonds over any other, and, to discharge Dig. 51(2).] the lien against any particular tract, there must be payment in full of the assessment against it Appeal from Circuit Court, Grant County; to the party lawfully entitled to receive the H. J. Paulus, Judge. same.

Suit by the National Exchange Bank of (Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1224; Dec. Dig. Om

Anderson against Robert C. Smith and oth619(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 against said real estate, by conveying the the motion for a new trial.

same to him by warranty deed in which her Kittinger & Diven, of Anderson, and Condo isfaction of the lien against the property and

husband joined, in consideration of the sat& Browne, of Marion, for appellant. Chas. the payment to her by him of $27.50; that T. Parker, of Fairmount, for appellees.

O'Brien accepted the conveyance in full pay.

ment and satisfaction of the assessment and FELT, C. J. This was a suit brought by lien on the real estate, and the deed was duly appellant to foreclose the statutory lien se- recorded; that the owner made the conveycuring a street improvement bond. The ance in good faith, without any actual knowl. court found for the defendants on the com- edge of any claim to or upon the property by plaint, and for appellee Robert C. Smith appellant. upon his cross-complaint to quiet his title Many of the facts were undisputed, and to the real estate on which appellant sought upon the trial the parties made an agreement to foreclose the improvement lien. Appel- as to the facts in substance as follows: That lant's motion for a new trial was overruled, the averments of the complaint are true unand judgment rendered in accordance with less the assessment was paid as alleged in the the finding of the court.

several paragraphs of answer, but the parties The error assigned is the overruling of ap do not agree as to who owned bond 47; that pellant's motion for a new trial, which was the contractor, Patrick O'Brien, represented asked on the ground: (1) That the decision to Sarah A. Gauntt, the owner of the lot, that of the court is not sustained by sufficient evi- he was the holder and owner of said bond dence; (2) that the decision is contrary to and assessment on her lot, and in reliance on law. The pleadings were numerous and such representation, and without any knowl. lengthy, and need not be set out in detail to edge to the contrary, Sarah A, Gauntt and determine the questions presented by the ap- her husband executed to O'Brien in payment peal.

of said bond and assessment a deed for said The complaint sets out at length the pro lot; that appellee Robert C. Smith purchased ceedings of the board of trustees of the town the real estate with knowledge of the aforeof Fairmount, Grant county, Ind., for the said facts and with no information to the improvement of main street, and alleges that contrary, except such as was shown by the the property in question abutted on that records of the town clerk of Fairmount; that street and was then owned by Sarah A. appellant had no knowledge of such transacGauntt; that the street was duly improved tions other than available from the records of and the owner aforesaid filed her waiver un- the town and the office of the county recorder der the statute, and bonds were duly issued, of Grant county, Ind. including No. 47, for $500, the one involved

The evidence shows that all the bonds isin this suit; that the bonds were made pay. sued for the improvement of said street were able to the contractor, Patrick T. O'Brien, paid before the institution of this suit, unless or bearer; that the plaintiff is the owner it be the one in dispute; that in 1905, on thereof, and the same is due and unpaid; verified representations of O'Brien and an ofthat said real estate has been duly conveyed ficer of appellant that No. 47 was lost, the and is now owned by Robert C. Smith. The town board issued a duplicate of that bond, complaint was answered by general denial which is the one offered in evidence in this and by several paragraphs of affirmative answer and pleas of the statutes of limitations.

There is evidence tending to show that all Robert C. Smith filed a cross-complaint to the bonds issued, including 47, were turned quiet his title to the real estate, and it was over to the bank when issued, but there is al. answered by general denial and by special so evidence tending to show that the bank answers counting on substantially the same did not at any time obtain possession of the facts that are alleged in appellant's com- original bond No. 47, and that it was held by plaint.

O'Brien at the time he procured the conveyIt appears that O'Brien, the contractor, ance of the lot from Mrs. Gauntt in payment made an assignment of his contract and and satisfaction of the bond and the assessmoneys due him for improvement of the ment, but the evidence does not disclose what, streets to appellant as collateral security for if anything, was done with the bond at that money loaned him to be used in paying for time, labor and material in making said improve [1, 2] The trial court made a general findment, and that upon the issuance of the ing for appellee, which is a finding in his bonds he turned them over to the bank, un- favor on the issuable fact of the possession of less it be No. 47, involved in this suit. bond No. 47. There being some evidence to

It is contended by appellee that O'Brien, support such finding, it is conclusive in this

case.

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