v. Acker, 18 Barb. (N. Y.) 393-395; McDer-, the judgment as awarded the alimony and mott v. Board, etc., 25 Barb. (N. Y.) 635- the custody of the child to appellee be annul647; Thompson v. Brannan, 76 Cal. 618, 18 led and set aside. The transcript was filed Pac. 783; Marcele v. Saltzman, 66 How. in the office of the clerk of this court on the Prac. (N. Y.) 205; Goggs v. Huntingtower, 12 10th day of August, 1916. Appellee moves to Meeson & Welsby's, 502; Griffin v. Board, dismiss on the ground that the appeal was etc., 20 S. D. 142, 104 N. W. 1117. not perfected within the time fixed by statute. Section 672, Burns 1914. [3] The case has been upon the docket of this court since July 21, 1916, and no steps have been taken to perfect the appeal except as above indicated. More than 90 days have elapsed, and under rule 36 (55 N. E. vii) the appeal should be dismissed. Appeal dismissed. (64 Ind. App. 260) CHENOWETH v. CHENOWETH.* MENT. Jan. 30, 1917.) - Where a judgment for divorce was modified upon appellant's motion, striking out provisions for alimony and giving him custody of the child, and after time allowed by Burns' Ann. St. 1914, § 672, he appealed from the remainder of the judgment, his appeal will be dismissed; his motion and the modification not extending time of appeal from original judgment. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1891; Dec. Dig. 346(2).] 2. APPEAL AND ERROR 346(2) TIME OF TAKING APPEAL-MODIFICATION OF JUDG MENT. Where a judgment is materially modified, such modification is in effect a new judgment, and time allowed for appeal is to be computed from date of modification. [1] Appellant concedes that under the law as stated in Kurtz v. Phillips, 113 N. E. 1016 (October, 1916), he could not have appealed from the action of the court in overruling his motion to set aside the default. He further concedes that if his said motion to modify had been overruled, then under the law as stated in Thomas v. Thomas, 110 N. E. 573, he could have derived no advantage therefrom for the purpose of computing the time (Appellate Court of Indiana, Division No. 2. allowed for an appeal from the original judg. ment. But he contends that the action of 1. APPEAL AND ERROR 346(2) TIME OF the court in modifying the judgment brings APPEAL EFFECT OF MODIFICATION OF JUDG-him within the case of Johnson v. Foreman, 24 Ind. App. 93, 56 N. E. 254; and therefore that the statutory period within which his appeal might be taken from the original judgment should be reckoned from the day on which the modification was made. This contention cannot be sustained. The case of Johnson v. Foreman, supra, differs radically from the case at bar. The facts of the Johnson Case are that Johnson recovered judgment against Foreman; that long afterward and at a subsequent term Foreman's motion to modify was sustained, and the judgment was so changed as to deprive Johnson of his substantial rights as fixed by the terms of the original judgment; that Johnson treated the motion to modify and the action of the court thereon as a wholly independent proceeding, from which he appealed; and that his appeal was entertained. In the case at bar the modification of the judgment was by appellant's own procurement, and it relieves him from a judgment in the sum was decidedly favorable to him. Apparently of $5,000, and favors him with the custody of his child. To presume that appellant is attempting this appeal for the sole purpose of reviewing the action of the court in modifying the judgment would be preposterous. However, there is no occasion to indulge a presumption. It appears from his brief on the motion to dismiss and from his assignment of error that in fact he is seeking to review only what is left of the original judgment. In this respect his case is like the case of Joyce v. Dickey, 104 Ind. 183, 3 N. E. 252. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1891; Dec. Dig. 346(2).] Appeal from Superior Court, Marion County; W. W. Thornton, Judge. Action by Blanche E. Chenoweth against Daniel A. Chenoweth. Judgment for plaintiff modified on defendant's motion, and defendant appeals from remainder of judgment. Appeal dismissed. Walker & Hollett, of Indianapolis, for appellant. Smith, Remster, Hornbrook & Smith, of Indianapolis, for appellee. DAUSMAN, J. Appellee instituted this action against appellant for divorce, alimony, and the custody of their child. There was personal service on appellant. On the 15th day of September, 1915, he was defaulted and judgment was rendered, granting her a divorce and alimony in the sum of $5,000 and the custody of the child. On the 11th day of February, 1916, the court overruled his motion to set aside the default, and he then filed his motion to modify the judgment by striking out "the judgment for alimony," and that part of the decree giving her the custody of the child. On the 14th day of February, 1916, at a subsequent term, the court sus- [2] Another rule is that where a judgment tained his said motion to modify, and there- is modified in some material feature, such upon ordered and decreed that so much of modification is in effect a new judgment. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appellant's motion to modify the judgment is of the class known as collateral motions; and the rule is that collateral motions do not operate to extend the time within which an appeal may be taken from the original judgment. from which new judgment the party aggriev- | Judgment for plaintiff, and defendant aped may appeal; and in such case the time peals. Affirmed. allowed for appeal is, of course, computed Elam, Fesler, Elam & Young, of Indianapfrom the date of the modification. Corpus Juris, vol. 3, p. 1050, § 1047; Thomas v. Thomas, supra; Atkinson v. Williams, 151 Ind. 431, 51 N. E. 721. We hold that this appeal, being from the original judgment, and the transcript not having been filed within 180 days thereafter, cannot be entertained. Appeal dismissed. (66 Ind. App. 345) K-W IGNITION CO. v. GREENVILLE 1. APPEAL AND ERROR 761-PROPOSITIONS Propositions containing mere abstract statements of law or fact, not applied to any particular ruling of the court on any cause assigned for a new trial, present no question for review. olis, and White, Crosser & Curtiss, of Cleveland, Ohio, for appellant. Louis Newberger, Clarence E. Weir, Charles P. Ritter, and Charles W. Richards, all of Indianapolis, for appellee. IBACH, P. J. On March 20, 1912, appellant, a corporation of the state of Ohio, entered into a written contract with appellee, a corporation of the state of Pennsylvania, wherein it agreed to furnish appellee its requirement of magnetos for use on automobiles until December 31, 1912. At the time of making the contract and as a part of it, appellant gave its written guaranty. Five hundred and two magnetos were furnished, but it is claimed they did not conform to the guaranty, and were worthless. Consequently, this suit was brought to recover damages occasioned by the breach of the guaranty. The Gibson Automobile Company, being indebted to appellant at the time the suit was brought, [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3096; Dec. Dig. 761.] was made garnishee defendant. The com2. APPEAL AND ERROR 728(2) MENT OF ERRORS-EXHIBIT. An assignment of error in the admission in evidence of an exhibit, which does not set out the exhibit nor state the nature of the objection, presents no question for review. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3011; Dec. Dig. 728(2).] 3. PLEADING 35- COMPLAINT - SURPLUS AGE. ASSIGN-plaint is in three paragraphs. The first is predicated on the theory of an offer to return the goods and for a recovery of the purchase price paid. The remaining paragraphs are on the theory of a retention of the magnetos and for damages due to a breach of the express guaranty. There was an answer of general denial, also a counterclaim whereby appellant sought to recover the balance of the unpaid purchase price of the magnetos and other materials furnished. The last item was also pleaded as a set-off. The case was tried by the court, with the result that appellant's counterclaim and set-off were allowed, and, after deducting these amounts from the total damages allowed, judgment was awarded appellee for $2,002.29. A complaint, containing the general averments that there was a warranty accompanying the sale of goods to plaintiff, that there was a breach of the warranty, describing the character thereof, and that damage resulted therefrom, shows that the theory of the action was recovery for breach of warranty, and claims for other items of damage, not sustainable on that theory and not supported by the evidence, do not change the theory, but may be disregarded as surplusage. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 76-80; Dec. Dig. 35.] 4. SALES 441(1)-BREACH OF WARRANTYEVIDENCE-INSTRUCTION AS TO USE. In an action for breach of warranty accompanying the sale of magnetos, evidence held to show that the magnetos were used in compliance with instruction given by the seller. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1277, 1283; Dec. Dig. 441(1).] 5. SALES 442(13)-BREACH OF WARRANTYDAMAGES RESALE BY BUYER. A new trial was refused, and this ruling is assigned as error. Appellant's assignment of errors contain ten separate specifications, some of which we are not required to consider because they are not properly presented. [1, 2] Propositions, containing mere abstract statements of law or fact and not applied to any particular ruling or action of the court upon either of the causes assigned for a new trial, present no question. PittsIn an action for the breach of a warranty burgh, etc., R. Co. v. Lightheiser, 168 Ind. of magnetos, the buyer can recover the differ- 438, 460, 78 N. E. 1033; Weidenhammer v. ence between the actual value and the value if they had been as warranted, though it has resold State, 181 Ind. 349, 350, 103 N. E. 413, 104 N. them for the amount which it paid for them E. 577; Schaefer v. Keokuk, etc., Bank, 60 without a warranty, and is not legally liable for any defects therein. [Ed. Note.-For other cases, see Sales, Cent. Dig. 1298; Dec. Dig. 442(13).] Ind. App. 474, 475, 111 N. E. 17. Furthermore, in the assignment in which complaint is made of the admission in evidence of an exhibit, the exhibit itself is not set out, nor Appeal from Superior Court, Marion Coun- does the nature of the objection appear. No ty; W. W. Thornton, Judge. question as to the correctness of such ruling Action by the Greenville Metal Products is therefore presented. Conrad v. Hansen, Company against the K-W Ignition Company. | 171 Ind. 43, 85 N. E. 710. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [3] Appellant contends that the proof does not support the theory of the complaint, and our attention is directed to some specific items of damages alleged to have been suffered by appellee which are not supported by the evidence. The answer to this contention is that the theory of the several paragraphs of the complaint is not fixed by the separate specific averments referred to. Each paragraph, and particularly the second and third, contain the general averments that there was a warranty which accompanied the sale of the magnetos; that there was a breach of the warranty, describing the character of the breach; and that damage resulted therefrom. These are the essential averments which we hold determine the theory of each separate paragraph of the complaint to be as hereinbefore disclosed. We may add, also, that the items, which appellant contends control, especially in the first paragraph of the complaint, might be disregarded as being mere surplusage, and still the theory remains apparent from all the other averments. [4] There is also some contention that the evidence fails to show that appellant's instructions as to the method of mounting the magnetos were followed. The contract provides: "Our magnetos are in accordance with the printed guaranty furnished in all our literature." And in the literature it is provided: "The Model J. magneto should preferably be mounted on either brass or aluminum bracket. If iron bracket is used brass bolts must be used to secure magnetos to bracket." The contract further provides: "Our Model J. magneto furnished with taper shaft and proper connections, and full set of cables suitable for application to the motor now being made by Golden Belknap & Swartz Company of Detroit, Mich.," etc. a cast-iron base, to use brass screws. Inasmuch as the motor company did not feel that they wished to go to the extra expense, we are going see the installation turned out in anything but to furnish the brass screws gratis, rather than a satisfactory manner." Arrangements were then made whereby appellant furnished brass screws, and they were used; but this did not remove the trouble. Other things were suggested, and appellee did everything that was suggested by appellant up to that time; but the troubles were not removed, and it was not until after all the magnetos had been delivered that it was suggested that something more than the use of brass screws was necessary to secure proper service from the magnetos. At that time other suggestions were made by appellant's president. They were also followed with no better results. When these reports were furnished to appellant, another letter was written to appellee, part of which is as follows: "In conclusion the writer wishes to say that we mean to stick by you through this matter and see that you get the proper attention and service from us in the ignition and even if we have to replace every magneto which you have." It seems to us that the evidence conclusively shows that the magnetos were installed in compliance with the instructions given by appellant, and that the trouble could not have been avoided except by the use of other magnetos than those furnished. [5] The provisions of the guaranty which have to do with this case are: The K-W magneto will start without batteries any auto engine up to 30 H. P. It is a complete ignition system within itself. No coil or timer or batteries of any kind are necessary. Will run the engine at all times, under all weather conditions, evenly and smoothly at all speeds. It thus appears that the magnetos were to Will produce a spark much hotter and fasbe furnished for use on a particular engine. ter than any dry cells, storage battery, or The evidence shows that a contract for the other magneto except larger K-W magnetos. engines to be placed in "Empire" automobiles This magneto is further guaranteed one year was made with such company, and that, from date of purchase against any defect in about the time the contract between the par- workmanship or material, and any part provties to this suit was made, appellant's presi-ing defective within that time will be redent visited the Detroit factory and saw that cast-iron brackets were being attached to the engines to support the magnetos and no objection was made by him at that time. Afterwards, upon discovering that the magnetos would not perform the service as guaranteed, it was observed that steel screws had been used in mounting the magnetos; it was stated by appellant's representative that brass screws should have been used. Much correspondence on the subject of mounting passed between the parties. We quote from one of the letters written by appellant, April 12, 1912: placed free of charge, etc. The magnets on this magneto will retain their magnetism forever unless battery current is run through them or unless they are taken off the magneto. The evidence conclusively shows that the magnetos when in use upon the automobiles wholly failed to conform to the guaranty and wholly failed to operate the motors in the Empire cars. But appellant contends that the burden was upon appellee, not only to prove the warranty and the failure of the magnetos to comply therewith, together with the difference between their value if they had been as warranted, but also to allege and prove, if they were resold, that such resale was coupled with a warranty or was made under such circumstances as that the "In connection with this installation, Mr. Williams discovered a matter which was overlooked by the writer when he was in Detroit, viz. that the magnetos are mounted with steel screws. It is customary in order to preserve the magnetism to mount the magnetos on brass or aluminum second purchaser could compel appellee eibase, and, where it is necessary to mount it on ther to replace the magnetos or refund in money damages on account of their failure to comply with the warranty. And in effect it is contended that the resale price of an article is conclusive evidence of its value as it is, and, if such resale price equals or exceeds the contract price, the purchaser cannot re cover. Upon this branch of the case, the evidence shows the facts substantially as appellant claims. Appellee was to assemble cars for the Empire Motor Car Company. The motor car company was to select the various parts, and appellee was not to be held responsible if any of the parts proved to be defective. Appellee was to pay for all of the parts purchased and was repaid by the motor company, and in addition thereto was paid for its own services. In short, the contract was such that appellee was to pay appellant $17.75 for each magneto furnished and was to receive the same amount from the motor car company whether the magneto proved satisfactory or not. "We doubt very much whether this rule of damages would be affected by proof that the arin the case at bar, for the purpose of being deticle purchased with warranty was bought, as livered to a third party under a previous contract of sale, even if such resale was made by the original vendee without warranty, so that no loss or liability whatever would be incurred by him. The disposition which a purchaser makes of property is an independent and collateral fact, having no connection with the bargain by which he acquired his title. It is difficult to see damages which another person ought to pay how it can have any legitimate bearing on the him for a breach of a wholly distinct and separate contract." Brown v. Bigelow, 92 Mass. (10 Allen) 242, 244. The same principle has been announced in the following language: "The proper measure of damages applicable to a case like this (one of warranty of binder of the property at the time of the sale and what twine) is the difference between the actual value its value would have been if it had conformed to the warranty, and neither the vendee's right of recovery, nor the measure of his damages, is dependent on a resale by him or upon the price obtained at a resale. At most, the price thus obtained may be some, but not conclusive, evidence of the actual value." Union Selling Co. v. Jones, 123 Fed. 672, 63 C. C. A. 224. In the opinion last quoted, the case of Muller v. Eno, 14 N. Y. 597, is cited, wherein this language is used: "While therefore the sale was very high evidence of value, the law does not say it was the only evidence." Appellant is now insisting that these facts make it appear that, if the magnetos had in all respects conformed to the warranty, appellee would have paid $17.75 for each of them and would in turn have received a like amount from the motor company and would not have made or lost anything, and, since it received from the motor car company the full amount paid for the magnetos without a guaranty and with an express agreement that it would not be held responsible if any of the parts placed in the cars were defective, such testimony conclusively showed that ap-value had they been as warranted. Cline v. pellee lost nothing on account of the alleged failure of the magnetos to work. It seems to us that this question, which is the controlling one in this case, is made difficult of solution only when the consideration of the contract involved here is associated with an independent one made between appellee and the motor car company. The disposition which the purchaser of property makes, either by resale or gift, is wholly independent of the transaction by which he acquired title. As we view the case, this is a controversy between appellee and appellant, in which appellee is seeking to recover damages occasioned by the failure of appellant to deliver what it had agreed to sell. In the determination of such question it is wholly immaterial whether the goods have been resold, or, if resold, whether the resale was with a guaranty or not; for in either event appellant's damage would be the difference between the value of the articles delivered and their value had they been as warranted. In an early Massachusetts case, the Supreme Court, in considering a case very similar to the present, said: The measure of appellee's damages was the difference between the value of the magnetos as they were at date of sale and their Myers, 64 Ind. 304; Crist v. Jacoby, 10 Ind. App. 688, 38 N. E. 543; Blacker v. Slown, 114 Ind. 322, 16 N. E. 621. The reports from most of the magnetos furnished-and they were all of the same type-was that they would not operate the cars to which they were attached and that they had been replaced with others of a different make, so that we have concluded that the evidence, when taken as a whole, justified the inference that all the magnetos were not in accord with the guaranty, and that there was ample evidence to warrant the finding for appellee in the amount adjudged by the trial court. We hold therefore that appellee was entitled to his bargain made with appellant, and it will not do to say that he cannot recover simply because he resold the magnetos for a sum equal to the purchase price and because the circumstances attending the resale relieved him of all liability if the articles failed to meet the guaranty. If he was not legally bound to reimburse the automobile company, there might be other reasons which would prompt him to do so. Judgment affirmed. (65 Ind. App. 109) contracted to obtain, and also to safeguard the AMERICAN LIABILITY CO. v. BOWMAN.* company against fraud or imposition. (No. 9139.) WORK. Under an accident policy providing for indemnity for total disability during the period that the insured was totally and continuously from the day of the accident disabled and prevented from performing every duty pertaining to any business or occupation as a necessary result of the injury received, an injured workman can recover for the entire period in which he was, as a matter of fact, totally disabled, though he returned to work for a short time after the accident, when he was in such a condition that he could perform only part of his duties and he might reasonably not have attempted to do any work, since a construction of the policy which would defeat recovery because of a bona fide attempt to work would tend to penalize such attempt and encourage fraud and imposition on the company by remaining away from work when able to perform it. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1310; Dec. Dig. 524.] 4. INSURANCE 524-ACCIDENT INSURANCE "TOTAL DISABILITY. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1310; Dec. Dig. 524.] 7. INSURANCE 530-ACCIDENT INSURANCE -POLICY-EXCEPTIONS. An accident insurance policy providing for indemnity against total disability resulting from accident, but in a subsequent clause limiting the company's liability to four weeks' indemnity in the case of disability wholly or in part caused by or resulting directly or indirectly in or complicated with neuritis, does not limit the indemnity for total disability resulting solely from the accident, though during the same period insured was suffering from neuritis caused by the injury, which did not change or prolong the total disability. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1309, 1316, 1317; Dec. Dig. 530.] 8. INSURANCE 530-ACCIDENT INSURANCE -POLICY-EXCEPTIONS. If the latter clause be construed to prevent recovery for such disability, it conflicts with the insurance laws and renders the policy ambiguous, and the insurance clause will be given effect as one on which the minds of the parties In an action on an accident insurance policy, findings of fact that insured was taken home in a vehicle after the accident, when the evidence showed he walked, and fixing the time neuritis developed at a date different than that shown by the evidence, are not prejudicial to assured, where the ultimate facts of total disabil The phrase "total disability" in an accidentity were properly found by the court. insurance policy should be given a practical construction, and is a relative term, depending upon the nature of the employment and capabilities of the injured person and the peculiar circumstances of each case, and it is usually a question of fact to be determined by the court or jury trying the case. [Ed. Note.-For other cases, see Appeal and Dec. Dig. ← Error, Cent. Dig. § 4234; 1071(1).] [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1310; Dec. Dig. 524. For other definitions, see Words and Phrases, Insured, under an accident policy, cannot recover for total disability because he failed or refused to work when he had an opportunity if he was reasonably able to perform such work. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1310; Dec. Dig. 524.] 6. INSURANCE 524-ACCIDENT INSURANCE -CONSTRUCTION OF POLICY. 11. TRIAL 398-FINDINGS OF FACTS—ULTIMATE AND EVIDENTIARY FACTS. The ultimate issuable facts are proper in special findings, and must control the conclusions of law, since evidentiary facts, though specially found, are improper and unauthorized. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 946, 947; Dec. Dig. 398.] 12. INSURANCE 665(5)-ACCIDENT INSURANCE-EVIDENCE-TOTAL DISABILITY. In an action for total disability indemnity under an accident insurance policy, evidence as to the work insured was able to do after the accident held to support the court's finding that he was totally disabled. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1719, 1721, 1722; Dec. Dig. 665(5).] Appeal from Circuit Court, Madison Coun Provisions of an accident insurance policy for total disability indemnity must be liberally ty; Charles K. Bagot, Judge. construed to give the insured the indemnity hel Action by Linies E. Bowman against the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |