Rensselaer Republican, Volume 22, Number 9, Rensselaer, Jasper County, 7 November 1889 — MATTERS OF LAW. [ARTICLE]

MATTERS OF LAW.

Recent Decisions of the Indiana Supreme Court. An owner, although he be himself i entirely free from contributing negligence, can not recover from a railroad company the value of a cow killed at a highway crossing, in a case where the whistle is not sounded upon approaching the crossing, as required by statute, unless it be shown that the failure to give such signal caused th 6 death of the cow. *■' ■ :. < '"■< ----- Where a guardian purchases the land upon which- he holds a mortgage to secure, money due to his ward, and agrees as the purchase price to pay the debt due to the ward and after- , wards enters the mortgage as satisfied, and mortgages the land as his own, as between him and his vendor, the purchase price is paid. So far as the guardian is concerned the debt is paid; he then owes the debt to his ward, and. it will be held that he has converted the ward’s money to his own use and a, suit maybe maintained on his bond. Where a widow is given a life estate by will, and a power of disposition as executrix, in order to enable her to accomplish certain purposes having no relation to her own benefit, her estate is not enlarged so as to become absolute. If she sells property, the proceeds remaining after accomplishing the objects contemplated by the will constitutes a ..rust fund for the benefit of the testator’s children—the remain-der-men—and if upon the death of the widow certain of the children are indebted to the fund by borrowing from the mother or otherwise, they may be compelled to account at the suit of the other heirs. The appellant, a married woman, was appointed by the appellee as agent to sell farming implements. The contract stipulated that- if purchasers’ notes were taken they should bo indorsed by the appellant and made payable in bank. In pursuance of this contract tho appellant sold a machine, took the purchasers’ note and turned it over to appellee, with the following guaranty, signed by her, indorsed thereon: • ‘For.value received. I guarantee the payment of the within note when due, and waive demand, notice of non-payment and protest.’’ The action is upon this, guaranty, Held: That the guaranty is a contract of suretyship within the ineaiiihg of Section.!. ll‘J, R. S.. 1881, and void. (1) Where a written contract states specifically the acts which the partiesare to perform, no other acts can be proved by parol, except in cases of fraud or mistake. (2) A stipulation that tho sellers of mill machinery agreed to furnish and place in operation machinery that would manufacture three designated grades of flour and with a capacity of a hundred barrels daily, can not he added In a written contract, the terms of which are that the sellers agreed to furnish and put in operation • •machinery for a hundred barrel mill,’’ which machinery is particularly described and designated. (3) Where the contract between a buyer and seller is in writing, an express^warranty can nefr-bfcdmportedr into the contract by parol; and where the writing contains an express warranty, implied ones are excluded. If a manufacturer of machinery sells it tQ,a.person whom he knows buys it for a special purpose, and intending to put it to a particular use, in the absence of an express warrantyVTie’TcST’ pliedly warrants that itis fit for the purpose and use. (4) Mere commendations will not in ordinary cases be regarded as fraudulent representations. (5) A purchaser who knows that the statements made to induce him to buy are simply expressions of opinion can not successfully charge the seller with fraud unless he shows that the seller knew or had reason to believe that his statements were false. The appellant sued the appellee upon certain promissory notes executed by him. The appellee in his answer alleged that each note was given as part consideration fora separate parcel of real estate purchased by him from the payee of the notes; there being in all 2,310 notes: that immediately after said purchase he sold all of said parcels of real estate to Parker & Hanway, who assumed and agreed to pay the notes as a part of the purchase money; that Parker & Hanway sold said lots to divers persons who also assumed and agreed to pay said notes, of all of which facts the payee had notice; that the plaintiff proceeded to collect said notes from the purchasers, dealing with thein as primarily liable; that the notes were not presented at the bank where payable when due, and the defendant, knowing that the plaintiff. was dealing with the assumers, supposed thiif the notes were nil paid;, that discovering afterward that the notes were not all paid, he called upon the plaintiff and offered to pay them; that it was agreed that the plaintiff should produce all the notes for payment Uy defendant; tliat he only produced a part of them, which defehdant paid; that the plaintiff agreed with the defendant that as to all the notes not produced he should be released from all further liability, the plaintiff agreeing to look to the assumers for their payment; that by reason of said agreement the defendant was led to take no further steps in the matter looking to his own protection as against the parties who had assumed and, agreed to pay the notes. Held: That the answer is bad; tho facts pleaded constituting neither a release nor an estoppel. Elliott, C. J,. dissents, holding that the agreement Is valid.