(123 N.E.) entire and that a rescission could not be exercised as to one bag. In Bank v. Hamblet, 35 Me. 491, it was held that bonds given between the parties, both being a part of the same transaction, the one being to sell and the other to buy land at a stipulated price, are not dependent, if they fixed the time and place at which the purchaser is to make payment. The bond given by appellee in this case provided that the payment must be made prior to the time when the conveyance was to be made. The court, in discussing the contract, said: "It is well settled, when acts are to be performed by each party at the same time, neither party can maintain an action against the other without performance or an offer of performance on his part. But if it is the design of the parties that one party alone is to do the first act, after the execution of the contract, and by failure, to commit a breach thereof, the other party may be excused from tendering a performance. * * It was the contract that the defendant on a day and place certain should pay or offer to pay the sums. * On failure to do this, the bond was to be effectual against him." * McDaniels v. Whitney, 38 Iowa, 60, was a case where the court was equally divided on the question as to the divisibility of the contract, two judges holding that it was divisible, and two that it was not. In Spear v. Snyder, 29 Minn. 463, 13 N. W. 910, the plaintiff agreed to put down five wells at a stipulated price per foot. It was agreed that, in case of a failure to "get a good supply of water," plaintiff should "have no pay." It was held that the agreement was severable and that the plaintiff could recover on the completion of one well. In Bank v. Trust Co., 149 Ill. 343, 36 N. E. 1029, 23 L. R. A. 611, three notes had been discounted by the appellee, and the proceeds placed to the credit of the payee with the appellee trust company. Before all the funds had been checked out, appellee discovered that the maker of the notes was insolvent, whereupon it charged off the amount of one note and returned it to the payee. Held that the discounting of the three notes was a divisible contract, and that under the circumstances a rescission could be had as to one note, the court holding that: "As a general rule, when the party wishes to rescind an entire contract, he must do so in toto, or not at all. But this is the rule of construction based upon the intention of the parties, * and not a rule of law controlling that intention. * * * Where the consideration is divisible, and the price can be apportioned, then, if a distinct divisible portion of the consideration fails, the price paid for such portion may be recovered back. In such a case the purchaser may elect to take what can be delivered to him, and if the purchase money has been paid, he may recover back the excess, or, if there has been no payment, defend pro tanto." 123 N.E.-13 In Goodspeed v. Fuller, 46 Me. 141, 71 Am. Dec. 572, the grantor in a deed made a contract to sell two lots to the grantee at a fixed price for each lot. When the deed was made the grantor omitted one lot from the deed. Held that the grantee could recover the price he was to have paid, and in fact did pay, for the omitted lot. The remainder of the authorities cited by appellant are along the same general line as those heretofore reviewed. All of them agree that the question as to whether the contract is entire or severable is one of intention, to the subject-matter of the contract. be determined from the language used and Even though the contract should be held to be divisible, we do not believe that appellants are entitled to a rescission. This action is in the nature of a suit in chancery. In Patten v. Stewart, 24 Ind. 332, the court said. "It is well settled that an application for the rescission of a contract is addressed to the sound discretion of a court of chancery, but that discretion can be exercised in conformity to established principles. It is a general rule that unless the contracting parties can be restored a contract will not be rescinded, even for fraud, to the same situation occupied by them, respectively, when the contract was entered into, nor unless the application for a rescission be made within a reasonable time. party who seeks the aid of the court to compel the rescission of a contract for fraud must show that he has exercised at least reasonable diligence in ascertaining the facts, if readily within his power, and has been prompt in seeking his remedy within a reasonable time after the facts constituting the fraud are discovered. The relief is granted to the vigilant, and not to the negligent." The plaintiff in the case last cited relied upon the defendant's representation that his title was clear and undisputed. He did not investigate the title at the time of his purchase, nor require an abstract of his title, nor require the defendant to exhibit his title deeds, and he never examined or investigated the title until long afterwards. The records of the public office where the evidence of the defendant's title would likely be found were of easy access, and open to his inspection, but he failed to examine them or to use any other means to ascertain whether the representations of the defendant were true or false. The court held there was no right to rescind. The special findings in the present case do not disclose when the parties began the negotiations that resulted in the execution of the contract for the sale of the Morton place property, but it is shown that they came to an understanding before the 1st of May, 1912, as to all the terms of the contract, and, with that settled, appellees took possession of the Morton place property on May 1st, but for some undisclosed reason the contract was not reduced to writing until the following December. The evidence, however, discloses that in March, 1912, the appellee Leo K. Fesler wrote to appellant Joseph W. Thompson a letter in which something was said about buying the Morton place property if appellants would take over appellees' contract for lot 230 as a cash payment. The court found as a fact that appellee Leo K. Fesler made no representation as to the amount he had paid on said lot 230 or as to the balance remaining unpaid of the purchase price for the same other than that he "had an equity of $400" in said lot, and that he made such statement without any fraudulent intent and in the belief that the statement was true. [5] The burden was on appellants to show fraud sufficient to authorize a rescission. Fraud is a question of fact, and must be found as a fact in the special findings, and not left to inference. Johnston v. Redwell, 15 Ind. App. 236, 43 N. E. 246. and the agreement of the purchaser to pay a $30,000 mortgage. The bank failed, and there was an attempt to rescind as to the bank stock without refunding the $19,500 cash or releasing the purchaser from his agreement to pay the $30,000 mortgage on the real estate. The court in passing on the question there involved, said: "Conceding that Gruetter and Joers were induced to make this trade by the fraudulent misstatements of Stuart, they could not rescind in the part which was burdensome and affirm it in the part which was beneficial to them. They could not rescind it as to the stock and affirm it as to the cash. They must either rescind or affirm it altogether." So in the present case the appellants cannot rescind as to the equity in lot 230 and affirm as to the cash. In view of the conclusion which we have reached, it is not necessary for us to enter into a discussion of the meaning of the expression "$400 equity" as used in the contract. There was no error in the conclusions of law as stated by the court. NICHOLS, J., not participating. It was agreed between appellants and appellees when appellees took possession of the property that appellee Leo K. Fesler should keep the passbook containing the contract for the purchase of lot 230, and from certain monthly payments to be made on the Morton place property he was to make the monthly payment of $10 to the land company on said lot 230 for and on behalf of the appellant Joseph W. Thompson. In accordance with this agreement, Mr. Fesler retained the passbook, and between May 1, 1912, and the date of the execution of the (Appellate Court of Indiana, Division No. 2. deed by appellants he made five monthly (70 Ind. App. 112) GRANITE SAND & GRAVEL CO. v. WILLOUGHBY et al. (No. 10492.) COMPENSATION May 8, 1919.) CONSTRUCTION-INJURIES ARISING OUT OF AND IN COURSE OF EMPLOYMENT. payments on behalf of Joseph W. Thompson. 1. MASTER and Servant 371-WORKMEN'S Appellants had ample time to have investigated the facts relating to the amount which the appellee had paid toward the purchase price of said lot 230. Nothing was concealed from them, and in so far as the facts are Workmen's compensation acts should be given a liberal construction in determining whether injuries arose out of and in due course of the employment. 2. MASTER AND SERVANT 375(1) WORKMEN'S COMPENSATION-INJURIES ARISING IN "COURSE OF EMPLOYMENT." An injury occurs in the course of the employment within the Workmen's Compensation disclosed by the special findings they made no inquiry concerning the value of said lot 230 or of appellees' equity in it, although the evidence discloses that Mr. Thompson did make an investigation as to the value of the lot and was presumably satisfied as to its value. [6] The contract for the sale of the Mor-Act when it occurs within the period of the emton place property and the terms of payment, including the acceptance by appellants of the equity in lot 230, in our judgment is one entire contract. The provision relating to the sale depends upon that part relating to the acceptance of the equity in lot 230. They are interdependent, and the appellants cannot adopt the parts of the contract which they think are beneficial to them and at the same time rescind a part which they deem to their disadvantage. In Stuart v. Hayden, 72 Fed. 402, 18 C. C. A. 618, there had been an exchange of real estate for certain bank stock, $19,500 cash, ployment at a place where the employé may reasonably be, and while he is reasonably fulfilling the duties of his employment or is engaged in doing something incidental to it. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course of Employment.] 3. MASTER AND SERVANT 375(1) WORKMEN'S COMPENSATION-INJURIES ARISING IN COURSE OF and Out of EMPLOYMENT. Where an employé engaged in picking out dirt and foreign substances from gravel loaded into railroad cars by the employer remained in the car while it was moved away from the loading chute to allow the removal of a car and was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) injured by falling from the car while it was be- [ resulted in his death on said date; that the deing switched, the injury was sustained in due course of, and arose out of, the employment. Appeal from Industrial Board. Proceeding under the Workmen's Compensation Act by George Willoughby and others to recover compensation for the death of Cecil Willoughby, employé, opposed by the Granite Sand & Gravel Company, employer. From an award of compensation by the Industrial Board, employer appeals. Affirmed. Joseph W. Hutchinson, of Indianapolis, for appellant. Salem D. Clark, of Indianapolis, for appellees. NICHOLS, J. This was an application by he appellees as dependents of Cecil Willough by against the appellant for the adjustment of their claim for compensation under the Workmen's Compensation Act (Laws 1915, c. 106), wherein it was claimed that said Cecil Willoughby died as a result of an injury arising out of and in the course of his employment by appellant. As appears by the board's findings, the material facts are that: On the 15th day of June, 1918, one Cecil Willoughby was in the employment of the defendant at an average weekly wage of $18; that at said time the defendant was engaged in the operation of a gravel pit from which it was shipping gravel; that leading from a main railroad track a switch led into the premises occupied by the defendant and over which it shipped gravel; that the defendant loaded cars by means of a chute through which it conveyed the gravel into the cars; that as cars were thus loaded they were pushed down the switch and away from the main track, and another car was brought under the chute for the purpose of loading; that because of such position of cars it became necessary when loaded cars were to be removed at a time when a car was in the process of loading, to remove such car from under the chute in order that the loaded cars might be removed; that as the gravel was conveyed into the car the defendant had employés therein to pick out dirt, sticks, and foreign substances; that the said Cecil Willoughby was employed for such service on the 15th day of June, 1918, was engaged therein, and in the discharge of said duties was standing in a car picking out sticks, dirt, and foreign articles from the gravel that was being conveyed therein through the chute; that while the said Cecil Willoughby was so engaged the railroad switching crew desired to remove the loaded car; that in company with another employé, who was also working in the car with him, the said Cecil Willoughby got out and assisted to raise the chute so that the cars could be removed; that after raising the chute the said Cecil Willoughby re-entered the car in which he had been working, and while said car was being switched by the railroad switching crew the said Cecil Willoughby was accidentally thrown out of said car, which ran over his body, inflicting injuries which fendant had at no time instructed the said Cecil Willoughby that he should not remain in the car in which he was employed to work when it was being switched; that the defendant had actual knowledge of the injury and the death of the said Cecil Willoughby at the time of the occurrence; that the said Cecil Willoughby left surviving him the appellees as his dependents. On those findings there was an award against the appellant of 300 weeks' compensation at the rate of $9.90 per week, beginning June 15, 1918, and an order to pay burial expenses not to exceed $100. From this award an appeal was prayed, and granted to this court. The only error relied upon for reversal is that the award of the full board in said cause is contrary to law. where, as well as in this state, that the Workmen's Compensation Acts should be liberally construed, and should be given a broad and liberal construction in order that the humane purposes of their enactment may be realized, and this is certainly true in determining whether an accident that produced injury arose out of and in due course of the employment. Holland-St. Louis Sugar Co. v. Shraluka, 116 N. E. 330. [1] It has been held by the courts, else [2] An injury occurs in the course of the employment, within the meaning of the Compensation Act, when it occurs within the period of the employment, at a place where the employé may reasonably be, and while he is reasonably fulfilling the duties of his employment, or is engaged in doing something incidental to it. In re Ayers, 118 N. E. 386; N. K. Fairbanks Co. v. Industrial Commission of Ill., 285 Ill. 11, 120 N. E. 457. [3] In this case, the employé's duties required him to work inside of a railroad car standing on a switch, at a chute from which the car was being loaded. It became necessary to remove the car from the chute in order that certain cars behind it might be taken away. After assisting in lifting the chute, he re-entered the car and stayed with it while it was away from the chute, until he was injured. He was in the place where his duties required him to be,. and ready to commence them as soon as his car was reset at the chute. The appellant by its superintendent knew that sometimes the men remained in the car, but never gave them any instructions concerning what they should do while the car was being moved. No instructions were given to the decedent as to what he should do while his car was being moved, though such conduct could have been prohibited if deemed improper. It is not unreasonable that he believed, and we hold that he had a right to believe, that he was in his proper place when he was in the car where his duties required him to be as soon as the car was in proper position again. We hold that Cecil Willoughby received the injury that resulted in his death, while in the due [ ed in unloading said coke by two other percourse of his employment, and that his injury sons, one of whom assisted in unloading two and death grew out of his employment. The award of the Industrial Board is affirmed, with 5 per cent. penalty as provided by statute. (70 Ind. App. 157) MUNCIE FOUNDRY & MACHINE CO. v. cars, and the other person assisted on one car; that appellee had been doing this work without any help or assistance from any other person for several days before he was injured; that on July 19, 1918, appellee was at the plant of appellant unloading a car of coke, and, while so at work, he observed that the conveyor had stopped, and thinking it had become clogged, thereby causing it to stop, he opened a door thereon to investigate (Appellate Court of Indiana, Division No. 1. the matter; he found some pieces of coke May 9, 1919.) 1. Master and Servant 367-WORKMEN'S COMPENSATION-RELATION OF PARTIES "INDEPENDENT CONTRACTOR"-"EMPLOYÉ." Foundry worker unloading coke from freight cars for a certain sum per ton is an "employé," and not an "independent contractor," where there is no contract to unload certain number of tons or work for certain period of time; worker having right to quit and foundry company having right to discharge him at any time without liability (citing Words and Phrases, First and Second Series, Employé; Independent Contractor). 416-WORKMEN'S FINDINGS OF INDUSTRIAL 2. MASTER AND SERVANT In proceedings under Workmen's Compensation Act, Industrial Board must find as legal basis for an award that claimant was an employé, that he received an injury by accident, that the accident arose out of and in course of the employment, the character and extent of the injury, and the claimant's average weekly wage. Appeal from Industrial Board. Proceedings under the Workmen's Compensation Act (Laws 1915, c. 106), by Joshua Thompson for compensation for injuries, opposed by the Muncie Foundry & Machine Company. From award by Industrial Board, employer appeals. Reversed and remanded, with directions. on the belt, and in attempting to remove thém his hand was caught and he was injured; that as a result of the injury he lost the thumb of his right hand by amputation, the crushing of the bones of the hand, and a lasceration of the tendons and soft tissues thereof, all of which resulted, as found by the Industrial Board, in a "75 per cent. impairment of the natural use and function of the whole right hand"; that the average weekly wage of the appellee was in excess of $24. The Industrial Board further found "That the plaintiff's injury was not due to any willful misconduct upon his part, and was not in violation of any specific instruction given to him by the defendant." A hearing was first had before one member of the board, and afterwards, on due application by appellant for review of the proceeding, a review was had by the full board, and on such hearing the board awarded compensation to appellee at the rate of $13.20 per week, for 1122 weeks, beginning July 28, 1918, and from that award this appeal is prosecuted. The error assigned is that the award of the full board in said cause is contrary to law. Under this assignment the appellant urges three propositions, viz.: (1) "The finding of the full board is not susJoseph W. Hutchinson, of Indianapolis, tained by sufficient evidence. The specific point for appellant. Cromer & Long, of Muncie, for appellee. ENLOE, J. The record in this case discloses: That on the 8th day of July, 1918, the appellee began working for appellant, at its plant at Muncie, Ind., unloading coke to which we call the court's attention is that the full board found that appellee was in the employment of appellant; whereas, in truth and in fact he was not an employé of appellant, but an independent contractor." [1] With this contention we cannot agree. from the freight cars in which it was ship- It is frequently said in the cases that- "To draw the distinction between independent contractors and servants is often difficult, and the rules which courts have undertaken to lay down on this subject are not always simple of application." See Independent Contractor, Words and Phrases, vol. 4, p. 3542. What contract, as an independent contractor, did the appellee have with appellant? For other cases see same topic and KEY. NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) How many cars must he unload at 40 cents per | dustrial Board, with directions to restate its ton, before his contract would be complete? findings of fact, and for further proceedings Or during what period of time was he, under not in conflict herewith. his contract, to unload cars for appellant? Award is reversed. As to each of these questions there is no answer found in this record favorable to appellant. Contracts are entered into for the purpose of acquiring rights, on the one hand, and imposing obligations on the other. Could appellee, under the evidence in this case, as (226 N. Y. 128) In re SARATOGA AVE. IN CITY OF NEW 1. EMINENT DOMAIN 47(1) PROPERTY SUBJECT TO APPROPRIATION PREVIOUS PUBLIC USE. shown in this record, have quit work at any (Court of Appeals of New York. April 8, 1919.) time, without incurring any legal liability to appellant? Could appellant at any time discharge the appellee without incurring any legal liability to him to respond in damages for breach of the alleged contract? To these When a public corporation having public obquestions upon the record before us we an-ligations with power to acquire property by swer that there could be no such liability. eminent domain acquires the same by purchase The appellee could cease labor for appellant to carry out such obligations, it can hold it at any time he chose, and appellant had the right to discharge him any time it chose. Appellee's pay, instead of being measured by the hour, day, week, or month, was, by this contract, to be measured by the ton of coke unloaded; but he was none the less a laborer, in the employ of the appellant, doing appellant's work at the time he received the injury in question. Appellant next insists that the facts found are not sufficient to sustain the award, be cause: (1) There is no finding that the appellee I was in the course of his employment at the time he received the injury upon which the award is based; and (2) There is no finding of facts which shows that the injury complained of and upon which the award is based, arose out of the employment. This contention is well taken. The board is, by the statute, required to find the facts upon which it bases an award. There is not, in this case, any general finding that the injury sustained by him was received by accident arising out of and in the course of the employment, as servant of appellant. [2] In cases of this character, there are five facts which must be found as a legal basis for an award of compensation, viz.: (1) That claimant was an employé. (2) That he received an injury by accident. (3) That the accident arose out of and in the course of the employment. (4) The character and extent of such injury. (5) Claimant's average weekly wage. The cases of Inland Steel Co. v. Lambert, 118 N. E. 162, and Retmier et al. v. Cruse, 119 N. E. 32, in so far as they each are at variance with the views herein expressed, as to the findings to be made by said board are hereby disapproved. for euch public use with the same right of priority therein that it would have had if it had acquired it pursuant to the condemnation statute. 2. EMINENT DOMAIN 47(1) PROPERTY SUBJECT TO CONDEMNATION-PUBLIC USES OR PURPOSES. When lands are used in immediate and necessary connection with a public trust by a public corporation, they are recognized as being held for a public use or purpose. 3. EMINENT DOMAIN 47(1)-LANDS SUB JECT TO CONDEMNATION LANDS ALREADY A general grant or power to condemn lands does not extend to lands which have already been devoted to a public use. 4. EMINENT DOMAIN 47(1) PROPERTY Neither Laws 1869, c. 670, nor Laws 1872, c. 331, and Laws 1874, c. 581, amendatory thereto, nor Greater New York Charter, §§ 438-443, 970, 971, specifically grants power to the city to acquire by condemnation proceedings lands already devoted to a public use. 5. EMINENT DOMAIN ~2(6)—PLAN OF FUTURE STREETS-TAKING OF PROPERTY. Laws 1869, c. 670, providing for the laying out of a plan for roads and streets in Kings county, does not dedicate lands designated as streets to a public use, and if, construed to prevent the owner of property without limit of time from conveying an unincumbered title thereto, it is unconstitutional as taking private property without compensation. 6. CONSTITUTIONAL LAW 48-CONSTRUCTION FAVORING VALIDITY. A statute, if possible, should be construed so that it does not violate any constitutional provision. For the failure of the board to find the facts necessary to sustain its award, this cause is reversed and remanded to said In- vision, Second Department. Appeal from Supreme Court, Appellate Di For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |