withstanding its invalidity, its provisions in this respect must be enforced against appellee as though they were valid, for the reason that he is estopped by his conduct from denying their validity. To adopt appellant's theory, and permit it to invoke the doctrine of estoppel, would be to enable it to defend under the terms of its illegal contract. The purpose of the law in refusing to enforce contracts made in violation of statutes is to deter persons from entering into such contracts; and, in furtherance of this end, it is held that a party who has acted under such contract, by wholly or partially performing it, is not estopped thereby from denying its validity. Brown v. First Nat. Bank, 137 Ind. 655, 673, 37 N. E. 158, 24 L. R. A. 206; Third Nat. Bank v. Smith, 17 N. M. 174, 125 Pac. 632. Considered in the light of the, statute of Indiana, the substance of which is set out in the former part of this opinion, the third paragraph of answer does not state facts sufficient to constitute a cause of defense. In considering this paragraph of answer, the court has treated it as assuming that the state statute in question was in full force and effect, and that the contract was in violation of that act, but that, by reason of the facts averred, appellee had estopped himself from asserting the illegality of the contract. Upon that theory the third paragraph of answer is insufficient, but all that has been said on this subject must be considered in the light of the Indiana statute. It may be further said that the cases of Baltimore, etc., R. Co. v. Hagan, 183 Ind. 522, 109 N. E. 194, Action v. Baltimore, etc., R. Co., 59 Ind. App. 280. 108 N. E. 535, Wells v. Vandalia R. Co., 56 Ind. App. 211, 103 N. E. 360, Vandalia R. Co. v. Kelly (1918) 119 N. E. 257, and possibly some other recent decisions by this court and the Appellate Court, were based on the statute of this state heretofore cited. No question was presented or considered in any of these cases as to the effect of federal statutes dealing with the same subject as that under consideration. These decisions correctly state and apply the law to the questions therein presented for consideration, and they are not in conflict with anything that may be here said in disposing of a question which was not therein presented. ferred to reads as follows: "That any contract, rule, regulation, or device whatsoever, the purpose or intent of which empt itself from any liability created by this shall be to enable any common carrier to exact, shall to that extent be void: Provided, that in any action brought against any such the provisions of this act, such common carcommon carrier under or by virtue of any of rier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employé or the person entitled thereto on account of the injury or death for which said action was brought." It is apparent from an examination of this section of the statute that it was aimed at all contracts and devices whereby any railroad company attempted to relieve itself from liability to its employés, and that its purpose was to render such provisions void. The language is that such contract, rule, regulation, or device "shall to that extent be void." This section clearly contemplates that a relief association of railroad employés, organized and operated under such a plan as is disclosed by the answer in this case, shall be valid, except as to provisions releasing the company from liability. This is indicated by the provision to the effect that in any action brought under the provisions of the act the common carrier sued may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employé or to the person entitled thereto an account of the injury or death for which said action was brought. The Constitution of the United States con fers upon Congress the power to regulate commerce among the several states and with foreign nations, and the power thus conferred is exclusive. The states, however, possess the power to impose by law on carriers exercising their callings in the state certain restrictions and regulations as to the conduct of their business. Such laws do not in themselves constitute a regulation of interstate commerce, although they control, in some degree, the conduct and liability of those engaged in such commerce. Chicago, etc., R. Co. v. Solan, 169 U. S. 133, 18 Sup. Ct. 289, 42 L. Ed. 688. As to regulations of the character mentioned the power of the state to legislate is concurrent with that of Congress; and, so long as Congress does not act on the subject, such legislation by the state is regarded as a valid exercise of the police power of the state for the regulation of the relative rights and duties of all persons and corporations within its limits; but, when Congress acts in such a way as to manifest a purpose to exercise its conceded [6, 7] By the fifth paragraph of answer appellant directs the attention of the court to section 5 of an act of Congress entitled "An act relating to the liability of common carriers by railroad to their employés in certain cases," approved April 22, 1908. 35 U. S. Stat. L. 65. It is alleged that all of the railroad companies associated together in the operation of the Voluntary Relief Associa-authority, the regulating power of the state tion are engaged in interstate commerce, and that all of the members of the relief fund are employed in interstate commerce. It is asserted that this federal statute supersedes the statute of this state and renders the ceases, and all laws passed by the state on the subject become inoperative Adams Ex. Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Mondou v. Railroad, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Northern, etc., R. Co. v. State of Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237. If the statute of Indiana was rendered inoperative by the act of Congress quoted, the fifth paragraph of answer states facts sufficient to constitute a defense. Under the act of Congress, the contract was valid in all respects, except as to the provisions by which the interstate common carrier attempted to exempt itself from liability for damages. This court has recently decided that section 5308, Burns 1914, is superseded by the section of the federal act quoted. Baltimore, etc., R. Co. v. Miller (1915) 183 Ind. 323, 107 N. E. 545. There can be no doubt that Congress was acting within the scope of its granted powers in passing the section quoted, for it has been frequently decided that Congress has power to regulate contracts between shippers and the carriers of interstate commerce, and also to fix the number of hours that certain employés of such carriers may be required to work. Adams Ex. Co. v. Croninger (1913) 226 U. S. 491, 500, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Second Employers' Liability Cases, 223 U. S. 1, 52, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Baltimore & Ohio R. Co. v. Interstate Com. Comm. (1911) 221 U. S. 612, 618, 31 Sup. Ct. 621, 55 L. Ed. 878. The fifth paragraph of answer alleges that appellee voluntarily entered into the contract, and that no employé was required to become a member of said relief fund. This averment shows that the contract was not made in violation of the federal statute, which makes it a misdemeanor for a common carrier engaged in interstate commerce to require an employé to enter into such a contract as a condition to retaining his employment or to require an applicant to enter into such a contract as a condition to employment. Act June 1, 1898, c. 370, § 10, 30 U. S. Stat. L. 424. The court erred in sustaining the demurrer to the fifth paragraph of answer, and the judgment is reversed, with instructions to overrule such demurrer, and for further proceedings in accordance with this opinion. (68 Ind. App. 19) NELSON et al. v. REIDELBACH et al. (No. 9709.) Rights arising out of a contract cannot be transferred, if coupled with liabilities, or if involving a relation of personal confidence; hence an answer in a foreclosure suit that the mortgagee had agreed to dismiss the action if mortgagor should satisfy certain liens, and that such contract was assigned to defendant, was demurrable, since the mortgagee relied upon the honesty and financial ability of the assignor. 5. APPEAL AND ERROR 662(2)-RECORD ON APPEAL-CONCLUSIVENESS. A recital in a transcript on appeal that a demurrer has been filed must be accepted as true, although the demurrer itself is not shown. 6. APPEAL AND ERROR 837(4)- REVIEW DEMURRER. Assignments of error as to overruling a motion for a new trial are waived by a failure to state any proposition or point with reference thereto. Appeal from Circuit Court, Cass County; James P. Wason, Judge. Suit by Louis Reidelbach and others against James Nelson and others. From a decree for plaintiff's and the denial of a new trial, defendants appeal. Affirmed. Palmer & Carr, of Monticello, and McConnell, Jenkines & Jenkines, of Logansport, for appellants. Rabb, Mahoney & Fansler, of Logansport, and Sills & Sills, of Monticello, for appellees. BATMAN, J. This action was commenced by Edward Weaver against appellants Nelson and Nelson and others. Appellant Ferguson was afterwards made a party defendant. Edward Weaver subsequently died, and appellee was substituted as plaintiff in his stead. The cause was tried on an amended complaint in two paragraphs. By the first paragraph appellee sought a judgment on a certain note of $2,500, executed by appellants (Appellate Court of Indiana, Division No. 1. Nelson and Nelson, and a decree foreclosing June 6, 1918.) 1. APPEAL AND ERROR 1078(3) ASSIGN- 2. APPEAL AND ERROR 193(9) ASSIGN- a mortgage on certain real estate given to secure the same. By the second paragraph appellee sought a judgment on a certain note of $400, executed by appellant James Nelson, and a decree foreclosing a purchase-money lien therefor on the same real estate. Each paragraph alleged that appellant John H. Ferguson was claiming an interest in said real estate; that his interest, if any, was inferior and subordinate to appellee's said liens; and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that said appellant was made a defendant to answer as to any interest he had therein. A demurrer was filed to this complaint and afterwards overruled, but the demurrer itself is not shown in the transcript. Appellants Nelson and Nelson filed an answer in abatement to which a demurrer was sustained. They subsequently filed an amended answer in abatement, in which they alleged in substance that during the life of appellee's decedent, while this action was pending in his name, said decedent and appellant James Nelson, acting for himself and his wife, entered into the following written agreement: "This agreement made and entered into by Edward Weaver, of Winamac, Ind., and James Nelson of Monticello, Ind., this 5th day of September, 1914, witnesseth: That whereas, the said Edward Weaver has commenced proceedings of foreclosure of a mortgage and action for $400 in money as against said James Nelson et al. in the White circuit court of Indiana, and is there pending for action in the September term of said court. Now, therefore, the said Edward Weaver, in consideration of the acts and performances on the part of the said Nelson, hereinafter set forth, said Weaver, does hereby agree to defer and postpone further action upon said foreclosure procedure and said suit for $400 until said Nelson shall have paid to one J. D. Timmons a sum of money in satisfaction of a tax lien, and pay to George Connell a sum of money in satisfaction of a sheriff's sale, all of which is a lien upon said real estate described in said foreclosure. Said Weaver does hereby agree that when said Nelson shall have satisfied said J. D. Timmons and George Connell and said liens held by them released, that he (Weaver) shall accept, and said Nelson hereby agrees to execute to said Weaver, a new mortgage on said real estate named in said foreclosure proceedings. Said mortgage to be in the amount of the principal of the amount of the mortgage now held by him plus the $400 evidenced by a promissory note held by said Weaver, said mortgage to extend to the time when said original mortgage extended and at the rate of interest therein named. When said new mortgage is so executed said Weaver shall dismiss such proceedings now pending in relation to said real estate herein involved. "In witness whereof the parties hereunto have set their hands and seals the date and year above mentioned. Edward Weaver. "James Nelson." appellee filed a demurrer for want of facts, which was sustained. On the 12th day of January, 1916, appellant Ferguson filed an answer in abatement, which contained substantially the same averments as the answer in abatement of appellants Nelson and Nelson with reference to the pendency of this action in the name of appellee's decedent and the execution of the contract set out therein between said James Nelson, on behalf of himself and wife, and appellee's decedent. It is then alleged that after the execution of said agreement, to wit, on the 23d day of January, 1915, the said Nelson and Nelson, who are husband and wife conveyed said mortgaged real estate to him for a valuable consideration by the general warranty deed, subject to all the incumbrances on the same, and put him in possession thereof, and that since said date he has been, and now is, the bona fide owner of the same in fee simple; that at the time the said Nelson and Nelson conveyed said real estate to him they executed to him for a valuable consideration the following written assignment of said contract: "For value received I hereby assign the within contract and all my rights thereto to John H. Ferguson. Dated this 23d day of January, 1915. James Nelson." It is further alleged that he had paid said Timmons the full amount of his said tax lien, and had secured the cancellation thereof; that he had paid the said Connell the amount required to fully satisfy his sheriff's certificate, and had secured the surrender and cancellation of the same; that he had executed and tendered to appellee a new mortgage on the real estate named in said agreement, according to the provisions thereof, for the amount provided therein, and he and appellants Nelson and Nelson have done and performed each and all of the requirements of said agreement on their part to be performed; that appellee refused to accept said mortgage, and notified him that he would accept nothing less than the payment of the full amount due upon the two notes in suit, and that it was not necessary and he would not require the formal tender of said new mortgage or the interest due on said indebtedness; that he (Ferguson) was worth, over and above all debts and liabilities, in property subject to execution at the time said contract was executed, more than the sum of $20,000. On the 1st day of February, 1916, a demurrer was filed to this answer, and afterwards sustained, but the demurrer itself is not shown in the transcript. It is further alleged that appellants Nelson and Nelson had paid said Timmons the full amount of his said tax lien and secured the cancellation thereof; that they had paid the said Connell the amount required to fully satisfy his sheriff's certificate, and had secured the surrender and cancellation of the same; that they had executed and tendered to appellee a new mortgage on the real estate named in said agreement according to the provisions thereof, for the amount provided therein, and had performed all the things by them to be performed by the terms On the 3d day of April, 1916, appellant thereof; that appellee refused to accept said Ferguson filed an answer to appellee's commortgage, and notified them that he would plaint in three paragraphs; the first being a accept nothing less than the payment of the general denial, and the second a plea of payfull amount due upon the two promissory ment. The third is in all material respects notes in suit, and that it was not necessary the same as his answer in abatement, with and he would not require a formal tender of the additional averment that he now brings said new mortgage or the interest due on said into court the said new mortgage and the indebtedness. To this answer in abatement | accrued interest on the notes in suit for the use and benefit of appellee, and that by reason of the facts alleged appellee's rights under the notes and mortgage in suit have been compromised and settled, and this cause should be dismissed. Appellee filed a demurrer to said third paragraph of answer, which does not appear to have been ruled upon. Appellant Ferguson subsequently filed a fourth paragraph of answer in which he alleged that he purchased the real estate described in the second paragraph of complaint and paid a valuable consideration therefor, without any knowledge or notice at the time of the purchase and conveyance to him of the outstanding promissory note of his coappellants in the sum of $500. On the 13th day of April, 1916, appellant Ferguson filed his cross-complaint, which in all material respects is the same as his third paragraph of answer to the complaint. Prayer that the cause be dismissed at the cost of appellee, and for all other proper relief. On the following day appellee filed a demurrer to said cross-complaint, but it is not shown by the transcript. This demurrer was subsequently sustained. Appellants Nelson and Nelson filed an answer to appellee's second paragraph of complaint in two paragraphs; the first being a general denial and the second a plea of payment. Appellee then closed the issues by filing certain replies. The cause was submitted to the court for trial and judgment was rendered in favor of appellee against appellants Nelson and Nelson on the notes in suit for $3,809.25 and costs, and a decree was entered foreclosing the liens securing the same. Appellants filed motions for a new trial, which were overruled, and now prosecutes this appeal. gage was to be executed thereon by said Nelson and accepted by said decedent to secure certain indebtedness due him, and thereupon this cause was to be dismissed. Appellee contends that this agreement is invalid, and therefore could not serve as the basis of a plea in abatement. This contention need not be considered, as the answers are subject to demurrer for other reasons. It is alleged in each that the liens mentioned in the agreement have been satisfied. This was the event to which this action was to be postponed by the terms of the agreement. The fact that appellee refused to carry out its provisions relating to the settlement of the notes in suit and the dismissal of this action, are clearly not matters in abatement. The indebtedness was due, the event limiting the postponment of the action had transpired, even if the agreement was valid, and hence no ground existed for an abatement of the action. It follows that the court did not err in sustaining demurrers to said answers. [4] Appellant's assigned errors Nos. 5 and 15 relate to the action of the court in sustaining a demurrer to the cross-complaint of appellant John H. Ferguson. It will be noted that this cross-complaint and the third paragraph of answer in bar of said appellant are substantially the same in their material averments. They each show that the new mortgage on the real estate involved was to be executed by said Nelson, but contain no averment that any such mortgage had been executed and tendered by him. They allege that the real estate was conveyed, and said contract was assigned by said Nelson to appellant Ferguson, and that he executed and tendered a new mortgage on said real estate in accordance with the provisions of said agreement. These facts of themselves would render each of said pleadings insufficient. It is a general rule that rights arising out of a contract cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal confidence, such that the party whose agreement conferred the rights must have intended them to be exercised only by him in whom he actually confided. 4 Cyc. 22; Pollock on Contracts p. 454; Campbell v. Summer Co., 64 Kan. 376, 67 Pac. 866; Tifton, etc., Co. v. Bedgood & Co., 116 Ga. 945, 43 S. E. 257; Edison v. Babka, 111 Mich. 235, 69 N. W. 499; King v. Batterson, 13 R. I. 117, 43 Am. Rep. 13; Hardy Implement Co. v. Iron Works, 129 Mo. 222, 31 S. W. 599; Schles[3] Appellants' assigned errors Nos. 2, 3, 4, singer v. Forest Products Co., 78 N. J. Law, 9, 10, 13, and 14 relate to the action of the 637, 76 Atl. 1024, 30 L. R. A. (N. S.) 347, 138 court in sustaining demurrers to their an- Am. St. Rep. 627. Where a party's estimate swers in abatement. It will be noted that of the solvency and pecuniary credit and these answers are each based on a collateral standing of the one with whom he is dealing written agreement between appellee's dece- may have constituted an important inducedent and appellant James Nelson, which pro- ment to him in making a contract, an assignvides for a stay of further proceedings in this ment of the same will not be upheld. Spranaction until said Nelson shall have secured kle v. Trulove (1899) 22 Ind. App. 577, 54 N. the satisfaction for certain liens on the real E. 461; Sargent, etc., Co. v. Matthews Land estate in question, after which a new mort- Co. (1904) 35 Ind. App. 45, 72 N. E. 474; [1, 2] Appellants' assigned errors Nos. 1, S. 12, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31 relate to the sufficiency of the complaint, and are waived by a failure to state any propositions or points with reference to the same. Chesapeake, etc., Co. v. Jordan (1916) 114 N. E. 461; Continental Ins. Co. v. Bair (1917) 114 N. E. 763. Moreover, Nos. 17, 18, 19, 20, 22, 25, 26, 29, 30, and 31 would not be available in any event, as they seek in this court to assail the complaint on the ground of insuflicient facts, by a direct assignment in that regard. Since the amendment of section 348, Burns 1908 (Acts 1911, p. 415), there has been no authority for such procedure. Riley v. First Trust Co. (1917) 117 N. E. 675. actually committed error in so doing, we would be authorized to indulge a presumption in favor of the correctness of such rulings. Eastman v. Smith (1914) 56 Ind. App. 621, 105 N. E. 64. We may add that, inasmuch as we have held that both the answer in abatement and the cross-complaint are insufficient, nothing could be gained in any event by a reversal in order to give appellants a chance to introduce evidence thereon, when it is apparent that they are not only insufficient, but could not be made sufficient by amendment. Lansden v, McCarthy, 45 Mo. 106. In the a demurrer. Grand Rapids, etc., Co. v. Jaqua instant case appellee's decedent, in entering (1917) 115 N. E. 73, and authorities there into the agreement in question, may have cited. Moreover, since the record discloses taken into account, not only the value of the that demurrers were filed and sustained to land on which the new mortgage was to be the answer in abatement and the cross-comexecuted and the financial ability of the par-plaint of appellant Ferguson, and it does ty with whom he was contracting, but also not affirmatively appear that the trial court his general reputation for fair dealing, industry, sobriety, and thrift. The latter fact may have constituted a material inducement for entering into the contract. To illustrate: The debt to be secured by the new mortgage may have been near the value of the land on which it was to be executed, and appellee's decedent, in agreeing to accept the new mortgage of James Nelson, may have reposed confidence in his personal qualities, and by reason of such fact may have been willing to forego the immediate collection of his indebtedness, and to extend the time for the payment thereof over a period of years, by accepting a new mortgage executed by him, while he would have refused to enter into a similar arrangement with another. We believe the rule stated is clearly applicable to the facts alleged in the cross-complaint of appellant Ferguson, and for that reason the court did not err in sustaining appellee's demurrer thereto. [7] Appellants' assigned errors No. 6, 7, 11, and 16 relate to the action of the court in overruling appellants' motion for a new trial, but are waived by a failure to state any proposition or point with reference to the same. We find no reversible error in the record. Judgment affirmed. (68 Ind. App. 16) CHICAGO & E. R. CO. v. KEEFER. (No. 9571.) June 5, 1918.) 1. RAILROADS 443(1) — KILLING STOCK CONTACT OF TRAIN WITH ANIMAL-PROOF. In an action for the killing of a horse, in which it was alleged that defendant railroad failed to keep a proper fence along its right of way as required by Burns' Ann. St. 1914, §§ 5436-5442, that the train struck the horse could be proven by circumstantial evidence. 2. RAILROADS 443(2) — INJURY TO LIVE STOCK-SUFFICIENCY OF EVIDENCE. But appellants contend that the entry showing the sustaining of a demurrer to the separate answer in abatement of appellant Ferguson is a nullity, as there was no demur- (Appellate Court of Indiana, Division No. 2. rer pending at the time the ruling was made; and that by reason of this fact said answer stands unchallenged, and he was entitled to a trial on the issue thus made before being required to answer in bar. We cannot sustain this contention. The record discloses that this answer in abatement was filed on the 12th day of January, 1916, and that a demurrer thereto was filed on the 1st day of February, 1916. The demurrer is not shown in the transcript, but it appears to have been sustained on the 20th day of March, 1916. Appellants also claim that the entry showing the sustaining of a demurrer to the cross-horse. complaint of appellant Ferguson is a nullity, as no such demurrer was ever filed, and therefore this cross-complaint stands unchallenged, and the court erred in ignoring the same on the trial of the cause. This contention is not tenable. The record shows that In action for the killing of a horse alleged to be due to failure to keep a proper fence along right of way as required by Burns' Ann. St. 1914, §§ 5436-5442, evidence held insufficient to show that train came in contact with Appeal from Circuit Court, Huntington County; Claude Cline, Special Judge. Action by Mathias Keefer against the Chicago & Erie Railroad Company and another. Judgment for plaintiff against with instructions. W. O. Johnson and Walter M. Johnson, both of Chicago, Ill., and C. K. Lucas, of Huntington, for appellant. R. A. Kaufman and Watkins & Butler, all of Huntington, for appellee. this cross-complaint was filed on the 13th day named defendant, and it appeals. Reversed, of April, 1916, and that a demurrer thereto was filed on the 14th day of April, 1916, and was sustained on the 1st day of May, 1916. [5, 6] True, the demurrer itself is not shown, but the recital of the transcript as to its filing must be accepted. The fact that the record does not disclose the filing of a ⚫ memorandum with either of said demurrers, CALDWELL, C. J. [1] Appellee brought in compliance with section 344, Burns 1914, this action against appellant and a construcdoes not render the ruling thereon reversible tion company to recover the value of a horse error, as the court may look beyond a mem- alleged to have been run against and killed orandum, or any ground stated therein, to up- by one of appellant's trains. The verdict hold the action of a trial court in sustaining and judgment were in favor of the construcFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |