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tary society to which they belonged, severed their connection therewith, they cannot invoke the aid of a court of equity to take the property of the society from those who adhere to its organization, objects, and government." Section 152, p. 177: "Where certain members of Teutonia Lodge, etc., withdrew from the jurisdiction of the grand lodge of the state, surrendered their charter, and formed a new lodge, adopting the same name, and other members continued steadfast in their allegiance, and the charter was duly delivered to them as the lodge, that body which continued true to its allegiance, and held the charter, was, as to certain property of the original lodge, taken by the members who withdrew, adjudged to be Teutonia Lodge, etc., and, as such, to be entitled to the property of the society,"-citing Altmann v. Benz, 27 N. J. Eq. 331. Any member of a subcourt is bound by contract to the high court, the subcourt and each member to be governed by the constitution and by-laws of the order so far as they were not in conflict with the general laws of the land. Any member has a right to withdraw from the order, but in doing so he forfeits all interest in the property of the lodge. Section 2 of the constitution, under which the property in controversy was accumulated, provides that the High Court of the Independent Order of Foresters of the State of Illinois has original jurisdiction of all the courts organized under her authority. Section 7 of the constitution provides that such "high court does hereby order, establish, and promulgate this constitution and these laws for its future government and that of the subordinate eourts under its jurisdiction and the members thereof." The second subdivision of section 1, art. 11, of the constitution provides: "The high chief ranger shall, by virtue of his office, have full and complete authority over all subordinate courts, and the effects thereof, for the enforcement of the laws of the high court and the preservation of order in the said courts; and may, when he deems necessary, either in person or by deputy, take full charge of and direct the same, suspend or remove any officer or member for cause, demand and receive all papers, books, or effects of the court." Section 5, art. 15, provides: "And said club shall be under the special supervision and control of the high chief ranger, who may, for cause, withdraw the authority here given, and dissolve the club." Section 1, art. 12, provides: "The moneys of this court are a trust fund for the benevolent purposes of the order, and the payment of necessary and proper expenses of the court, and shall not, under any pretense, be divided up among the members, or otherwise diverted from their legitimate use as aforesaid." Section 2, art. 12, of the constitution provides: "Whenever a member of this court is suspended, dropped, or expelled

for any cause, or severs his connection by withdrawal, resignation, or otherwise, his right, title, and interest in or to any of the funds or property of this court thereby becomes extinguished and lost." Any member who seceded from the local court was charged with notice that he thereby renounced all title to the property accumulated by the local court.

Appellants' learned counsel further contend that by the act of secession the membership of Court Glueckauf No. 101 was reduced to less than 15, and by the laws of the order the lodge thereby ceased to exist. Section 1 of article 15 of the constitution is as follows: "Fifteen members of a club, duly qualified as herein specified, shall be necessary to form a new court, and make application for a charter." Section 1 of article 18 reads: "Whenever a court forfeits its charter, and becomes dissolved, in consequence of the lack of the necessary number (15) of members, each remaining member then in good standing, who has paid all assessments to date of such dissolution, and against whom no charges of any kind are pending or preferred, who desires to continue in membership in the order, and be entitled to the benefit of the endowment, may do so by filing with the high secretary, within thirty days from the date of such dissolution, a written notification of his desire and intention to that effect, over his own signature." These two sections are relied upon by appellants to support their claim. Looking to the entire instrument herein, material parts of which we have set out, we are of the opinion that this position is not tenable. The local lodge was operated under the grand lodge, and the grand lodge had reserved the right through its high chief ranger to demand and receive all papers, when he deemed necessary. If the Court Glueckauf No. 101 became dissolved, the right to its effects, under the provisions of the constitution, vested in the supreme lodge, and it, and not the defendants, would be entitled to the property. The fact that the seceding members practically adopted the same name and had the same object in view, would not deprive the original lodge nor the grand lodge of any right. We need not and do not decide that the reduction of the local lodge to a membership of less than 15 does or does not of itself work a dissolution, but under such provision the supreme lodge would be authorized through its high chief ranger to claim the property. This right in the case before us was not exercised. The supreme lodge returned the charter, and ever afterwards recognized Court Glueckauf No. 101 as the local order, and there was no legal lapse of which appellants can take advantage. Appellants, in having seceded, forfeited all right to or in any property of the lodge. The court committed no error. Judgment affirmed.

MOODY et al. v. STANDARD WHEEL CO. (Appellate Court of Indiana. June 16, 1898.) SALES-ORDERS-WHAT ARE-SPECIAL VERDICTEVIDENCE-ERROR CURED.

1. A vendor sold a car load of spokes to a vendee in 1895, and another in 1896, and about four months after the latter sale wrote to the vendee: "We have a car load of spokes on hand now. If you want them, send a man over and take them up, and we will pay his car fare to and from Ft. Wayne. Let us hear from you by return mail." To this the vendee replied: "As we are chuck full of cheap spoke stock, we will not be able to use yours just now. We think, however, that we can do so after September 1st,"-and about a month later wrote again that they would discontinue all purchases of wheel material, "and will not accept any on or after September 1, 1896. If you have any stock manufactured upon our order, please deliver same before that date." Held, that the correspondence does not constitute an order, nor show the existence of a standing order.

2. Where a jury make a special finding of fact, and base an improper conclusion thereon, the finding of fact will prevail.

3. An error in excluding evidence is cured by the subsequent admission of it by the same witness.

Appeal from superior court, Allen county; C. M. Dawson, Judge.

Action by Mary J. Moody and another against the Standard Wheel Company. From a judgment in favor of defendant on a special verdict, plaintiffs appeal. Affirmed.

W. & E. Leonard, for appellants. Breen & Morris, for appellee.

ROBINSON, J. Appellants sued appellee for the value of certain oak and hickory spokes alleged to have been delivered by appellants to appellee. It appears from the special verdict that appellants had sold appellee a car load of spokes in November, 1895, and another car load in March, 1896, and that these were paid for soon after the purchase. Appellants' place of business was in Muncie, and appellee's in Ft. Wayne, Ind. July 28, 1896, appellants addressed a letter to appellee saying: "We have a car load of spokes on hand now. If you want them, send a man over and take them up, and we will pay his car fare to and from Ft. Wayne. Let us hear from you by return mail." July 29, 1896, appellee addressed a letter to appellants, saying: "Your favor of the 28th inst. is received, but, as we are chuck full of cheap spoke stock, we will not be able to use yours just now. We think, however, that we can do so after September 1st." August 24, 1896, appellee sent a letter to appellants, saying that, owing to depression in business, they would discontinue all purchases of wheel material, "and will not accept any on or after September 1, 1896. If you have any stock manufactured upon our order, please deliver same before that date." The jury further found that the above letters contained the only negotiations between the parties relating to the purchase of the spokes sued for in this action. It cannot

be said that these letters contain any order for or agreement to purchase the material for which suit is brought. The most that can be claimed from them is an offer to sell by appellants, and a refusal to buy by appellee at that time,. It is clear, from appellants' letter of July 28th, that appellee had no standing order for all spokes appellants might ship until September 1, 1896. In December, 1895, appellants acknowledged receipt of pay for the car load shipped in November, and in the letter say that, if appellee can take another load in the near future, appellants think they can get it, and ask an answer by return mail. The spokes in controversy were delivered on board the cars at Muncie August 29, 1896, and arrived at Ft. Wayne August 31st. The jury found that appellee had at all times refused to accept the spokes sued for. The finding of the jury that the letters above referred to contain the only negotiations between the parties relating to the material in question precludes the idea that there was any oral agreement between them. If the spokes were sold by appellants, it must have been done by virtue of a contract, and such contract must have been either in parol or in writing; and it cannot be denied that, if the contract was in writing, it was the duty of the jury to state in their verdict what the writing was, and it then becomes the duty of the court to determine from the writing what the agreement was between the parties. The jury state all that passed between the parties on the subject, and the trial court properly concluded that these negotiations between the parties did not amount to a contract on appellee's part to purchase the spokes in controversy.

The answers of the jury that appellee agreed to purchase these spokes at a particular price are not in harmony with the finding that the above letters constitute all the negotiations between the parties. But the jury's conclusion that a sale was made must give way to the specific findings of facts constituting the contract, the construction of which is for the court, and not the jury. When the jury has found the facts, the court must say whether such facts constitute a contract; and, if they do, the court must further say what are the rights and duties of the parties with respect to it. The finding does not show that the sale of the car load of spokes in November, 1895, and in March or April, 1896, had any connection with the sale of the spokes in question. We are not unmindful of the rule that a special verdict must be treated as an entirety, that nothing can be added to it by inference or intendment, and that the failure to find a fact in favor of the party having the burden is equivalent to finding such fact against him. Railway Co. v. Balch, 122 Ind. 583, 23 N. E. 1142; Railroad Co. v. Spencer, 98 Ind. 186; Railway Co. v. Costello, 9 Ind. App. 462, 36 N. E. 299; Improvement Co. v.

Loehr, 124 Ind. 79, 24 N. E. 579. As we have already said, the verdict fails to show that appellee had any standing order for all spokes appellants might ship up to September 1, 1896. The correspondence set out in the verdict cannot be so construed. There was some correspondence as to the kind of material appellee would want, and the prices appellee would be willing to pay; but there is nothing in the way of a general order, and the verdict clearly shows that neither party, throughout their dealings, treated any letters of appellee as a standing order. The spokes that were delivered and paid for were not delivered under any general order, and such delivery cannot be said to be a part performance of one general contract to take all spokes furnished by appellants up to a certain date.

We are not unmindful of the rule that it is the duty of the jury to find the facts, and not simply the evidence. But, where a contract is in question, it is the duty of the jury to find the facts, and for the court to say whether a contract was or was not entered into. In the case of Cottrell v. Nixon, 109 Ind. 378, 10 N. E. 122, cited by appellants' counsel, it is said: "It was a fact to be found by the court whether or not the defendant had delivered to the plaintiffs a written promise to pay for the property sold to E. Pleas & Co., if any was sold to them. If it had been found that such a contract had been made and delivered to the plaintiffs, and that in consideration thereof the goods had been delivered, the contract might have been made a part of the finding by reference, or by setting it out in the finding." In Germania Fire Ins. Co. v. Columbia Encaustic Tile Co., 11 Ind. App. 385, 39 N. E. 304, cited by appellants' counsel, one of the issues tendered was that notice of a fire loss had been given the company, in writing, within a reasonable time after the loss, or that the company had waived the notice. Instead of finding the ultimate fact that notice had been given, the jury found that certain letters had been written; but it appears that it was not found when any of the letters, except one, were written, nor that they were transmitted or received, nor that notice of the loss was served upon the insurance company through them, or either of them. In the opinion it is said: "The letters may have constituted sufficient evidence of such notice, but they were not a finding that notice had in fact been given, nor does the finding contain such fact." But in the case at bar the jury say that the letters set out in their verdict constitute all the negotiations between the parties concerning the sale of the spokes in question. The question, then, arises whether these negotiations amount to a contract, and, if they do not, it must follow that no sale was made.

It appears that one Wood was the agent of appellee to inspect spokes to be purchased. One of the appellants was asked what ar

rangements Wood made with him about sell. ing spokes to appellee, and what he did in the way of purchasing or proposing to purchase lumber and spokes for appellee, and what he said or did in regard to purchasing the first car load shipped to appellee. An objection to these questions was sustained. It was not shown that this witness was the agent of appellee to do anything other than inspect the material; and, even if it was error to exclude the evidence, the error was afterwards cured, for the witness testified, in answer to questions by appellants' counsel: At the time in question "Mr. Wood came to the office. We went to the mill. He looked over the spokes. They were crosspiled, and he would pull a spoke out here and there and look at it. We went in the office. He wanted to know what we wanted for them. He wanted to know what we wanted. We asked his price. He said, 'What do you want? We told what we would take f. o. b. cars Muncie, Indiana. He said it was pretty high. Q. What was the price? A. $6.00 per thousand spokes f. o. b. cars Muncie, Indiana. He left in that way, saying he would talk to them,-the head of the affair,-with the manager, and 'whatever he says I will write right back.' And in a day or so I received a letter." As is said by appellants' counsel in their supplemental reply brief, the issue in this case is whether appellants had sold and delivered to appellee, at its special instance and request, the material in question. Taking the special verdict as a whole, the trial court did right in answering the question against appellants. There is no error in the record for which the judgment should be reversed. Judgment affirmed.

KESSLER v. CITIZENS' ST. R. CO. (Appellate Court of Indiana. June 16, 1898.) APPEAL-REcord-Review-NEW TRIAL-SPECIAL

VERDICT-STREET RAILROADS-NEGLIGENCE.

1. Where the evidence is not in the record, reasons for a new trial founded on the evidence will not be considered.

2. An error in the instructions cannot be considered where they are not in the record.

3. Where appellant assigns as error of law that the court failed to inform him that a special verdict had been demanded until after the evidence had been closed, he must present the facts complained of by affidavit or otherwise.

4. Where a party makes no objection to a special verdict, but moves for judgment thereon, he cannot on appeal object to it as a special verdict.

5. That a special verdict is contradictory, indefinite, and so uncertain that no judgment can be rendered thereon is ground for a venire de novo, but not for a new trial.

6. Plaintiff, while driving in a place of safety, suddenly turned on defendant's tracks, in order to pass another vehicle, when the car was but 30 or 40 feet behind him. The motorman had no warning of his intention to do so, and used every means in his power to stop, but there was a collision. Held, that there was no negligence on the part of defendant.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by George Kessler against the Citizens' Street-Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Samuel A. Forkner, for appellant. Will H. Latta, for appellee.

COMSTOCK, J. Appellant sued, before a justice of the peace, for damages on account of injuries to his buggy and team of horses, occasioned by the negligence of appellee's employés. The complaint alleges that appellee is a corporation, acting and doing business under the laws of the state of Indiana; that on the 24th day of May, 1895, appellant was driving a team of horses, with buggy attached thereto, lawfully, without any fault or negligence on his part, along and upon a certain public highway, and upon the track of appellant; that the defendant did then and there carelessly and unlawfully run its certain street car over, against, and upon said appellant's buggy and horses, and injured the same, in the sum of $100. The trial before the justice of the peace resulted in a judgment in favor of appellee. An appeal was taken to the Marion superior court. The cause was submitted to a jury, and upon request a special verdict was returned, upon which the court rendered judgment in favor of appellee.

The errors assigned on this appeal are (1) that the court erred in overruling plaintiff's motion for a new trial; (2) in overruling plaintiff's motion for judgment on the special verdict; (3) in sustaining defendant's motion for judgment on the special verdict, and for rendering judgment in favor of defendant, and against plaintiff, for costs. We will consider the assignments of error in the order in which they are specified.

The grounds for a new trial are: (1) The special verdict is contrary to law, and not sustained by sufficient evidence; (2) it is not sustained by the evidence, and is contrary to the law and the evidence; (3) the damages assessed are too small, the evidence showing damages to the amount of $50; (4) error of law occurring on the trial, in this: that the court failed to charge the jury as to the law of the case as provided by statute; (5) error of law occurring in this: that the court failed to inform the plaintiff or his attorneys that a special verdict had been demanded until after the evidence had been closed; (6) the verdict of the jury, as set out in said questions and answers, is contradictory, indefinite, and so uncertain that no judgment can be rendered thereon." The evidence is not in the record. The first, second, and third grounds for a new trial, therefore, cannot be considered. The fourth reason cannot be considered for the reason that the instructions of the court are not in the record. The statute in force at

the time of the trial of this cause required that the request for a special verdict should be made before the introduction of any evidence, and should be prepared by counsel on either side of such cause, and submitted to the court, etc. It does not appear that appellant was not given ample time to prepare a verdict for submission to the court, nor that he did not prepare a verdict, nor that he was in any way prejudiced by the failure of the court to inform him or his counsel that a special verdict had been demanded. Nor is the fact complained of presented by affidavit or otherwise. It is not therefore properly presented. Appellant made no objection to the special verdict, took no exception thereto, and moved for judgment thereon, and cannot now be heard to object to it as such. The sixth reason is not a ground for a new trial, but for a venire de novo.

The second and third specifications of the assignments of error may be properly considered together. To warrant a judgment on the special verdict, the findings should show that the defendant company was guilty of negligence which proximately caused the injury to appellant's horses and buggy, and that he was himself free from fault contributing to said injury. To these propositions the following interrogatories and answers, constituting in part the special verdict, are pertinent: "(1) Q. Did the buggy of the plaintiff and a street car belonging to the defendant collide on the Michigan road on or about May 15, 1893? A. Yes (or 24th of May). (2) Q. Was the plaintiff, immediately before said collision, driving said buggy along the Michigan road, at a safe distance from the tracks of defendant? A. Yes. (3) Q. Did the plaintiff, immediately before said collision, turn into said tracks of the defendant, for the purpose of passing another vehicle? A. Yes. (4) Q. At the time the plaintiff so turned upon the tracks of defendant. was the car of defendant about 30 or 40 feet behind plaintiff? A. Yes. (5) Q. Had the motorman of said defendant any warning that the plaintiff was about to turn upon the tracks, before plaintiff did so turn? A. No. (6) Q. After the plaintiff so turned upon the tracks of defendant, did the motorman of the defendant attempt to stop his car before it should collide with plaintiff's buggy? A. Yes. (7) Q. In making such attempt to stop the car aforesaid, did the defendant's motorman exercise all means in his power to stop the same before it should collide with the said buggy? A. Yes." Waiving the question as to the care exercised by the appellant, although it appears from the verdict that he drove upon the track from a place of safety, the facts in interrogatories and answers numbered 5, 6, and 7, above set out, fully acquit the defendant of all negligence. The verdict does not show negligence upon the part of appellee, nor facts from which it might be inferred. Judgment affirmed.

LOUISVILLE, N. A. & C. RY. CO. v. CARMON. (Appellate Court of Indiana. June 17, 1898.)

APPEAL REHEARING-PETITION.

A paper indorsed, "Motion and Brief for Rehearing," and asking for rehearing on the ground that the court "erred in reversing the judgment of the lower court," is insufficient as a petition for rehearing, as not specifying causes therefor, as required by rule 36 of the appellate court.

On petition for rehearing. Overruled.
For former decision, see 48 N. E. 1047.

WILEY, J. Appellee has filed what purports to be a petition for a rehearing. The paper so filed is indorsed as follows: "Appellee's Motion and Brief for a Rehearing." The paper filed, in our judgment, is nothing more than an additional argument on the merits of the case. The motion and brief are one and the same thing, and in the beginning it is said: "The appellee in the above-entitled cause moves the court for a rehearing in said case, and in support thereof assigns the following reasons: We believe that the court committed an error in reversing the judgment of the lower court." This is the only reason assigned for a rehearing, and appellee's brief on the motion immediately follows. True, a petition for a rehearing, and brief in support thereof, may be presented together under our practice, although the particular points upon which the rehearing is asked must be stated in the petition. Elliott, App. Proc. § 555; Fertich v. Michener, 111 Ind. 472, 11 N. E. 605. Among other things, rule 36 of this court provides: "Rehearing must be applied for by petition in writing, setting forth the cause for which the judgment is supposed to be erroneous." Section 662, Horner's Rev. St. 1897, provides that, within 60 days after a case has been determined in the supreme court, either party may file a petition for a rehearing, etc. Rule 37 of the supreme court is identical, on the question of a petition for a rehearing, with rule 36 of this court, and the statute and rule have frequently been construed by that court. It will be observed that both the statute and the rule contemplate the filing of a petition, and the rule provides that the petition shall set forth the "cause for which the judgment is supposed to be erroneous." A petition for a rehearing is a pleading, under the rules of appellate procedure, and must be so regarded by the courts. Railway Co. v. Conoyer (Ind. Sup.) 49 N. E. 452. In this case no distinct or separate petition for a rehearing has been filed, but appellee has contented himself by filing a brief, and asks the court to grant him a rehearing because the court committed an error in reversing the judgment of the lower court. In his Appellate Procedure, Judge Elliott (section 555) says: "The office of a petition for a rehearing is to specifically present points

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be stated in a petition. General statements will be unavailing, and assertions cannot supply the place of argument and authorities." In Goodwin v. Goodwin, 48 Ind. 584, the court said: "The office of a petition for a rehearing is not to request the court generally to re-examine the questions in the record, or all the questions decided against the party filing it, but it is to point out particularly the errors the court is supposed to have committed in the decision which it has made." See, also, Telegraph Co. v. Hamilton, 50 Ind. 181; Fertich v. Michener, 111 Ind. 472, 11 N. E. 605. In Railway Co. v. Conoyer, supra, the court said: "A petition for a rehearing, under the rules of appellate procedure, is a pleading, and not a mere argument or brief, as is the paper in this case denominated a 'petition.'" In Reed v. Kalfsbeck, 147 Ind. 148, 45 N. E. 476, and 46 N. E. 466, the court said: "Appellees have filed a motion to reject what purports to be a petition for a rehearing filed by the appellant in this cause, for the reason that it fails to conform to rule 37 of this court, in not setting forth the cause for which the judgment of affirmance is supposed to be erroneous. The petition in question is nothing more than an argument in support of the original contention of the appellant, and does not state any particular cause or errors by reason of which the decision of the court as heretofore announced is supposed to be erroneous. It is the office of a petition for a rehearing to state or point out wherein the court erred in the result reached upon the original hearing. The requirement of rule 37 conforms to good practice, and should be strictly enforced." See Goodwin v. Goodwin, 48 Ind. 584; Telegraph Co. v. Hamilton, 50 Ind. 181; Fertich v. Michener, 111 Ind. 472, 486, 11 N. E. 605; Elliott, App. Proc. §§ 555, 893. Parties and their counsel, in appeals to this court, are bound to keep in mind the rules which control the procedure therein, and are required to yield obedience and conform thereto. Harness v. State, 143 Ind. 420, 42 N. E. 813. In Finley v. Cathcart (Ind. Sup.) 49 N. E. 381, it was said: "A petition for a rehearing, in this court, is a pleading, and should not be an argument; and in order that it may conform to the rule of appellate practice, as it seems to be settled by repeated adjudication of this court, it must state specifically the errors which the petitioner considers the court committed in the result reached in the former hearing, and general statements or assertions that the decision is erroneous will not suffice. An applicant for a rehearing should include in his petition all the grounds upon which he bases his claims for a rehearing, and those

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