[4] (1) The rule which exacts of a traveler or other person about to cross a railroad track the precaution to look in both directions, and also to listen, in order to ascertain whether a train is approaching, is not applied in all its strictness to railroad employés who are required to be on or about such tracks, and the failure of such an employé, while in the discharge of his duties, to look and listen for approaching trains, may or may not be negligence under the particular circumstances of the case. Cleveland, etc., R. Co. v. Lynn (1911) 177 Ind. 311, 329, 95 N. E. 577, 98 N. E. 67; Baltimore, etc., R. Co. v. Peterson (1901) 156 Ind. 364, 373, 59 N. E. 1044. along track No. 2, for the purpose of carry- | cation of the following principles of law to ing out that order he was struck from the the various issues presented by this case: rear by an engine and tender which were also moving eastwardly over said track in the course of certain switching operations. The engine and tender were running backward at the time, and appellee's complaint, after setting out the above facts, charges that appellant was negligent in failing to station an agent or employé on the rear end of the tender in order to warn persons on the track of approaching danger. The complaint also alleges that appellant failed to have a fireman on the locomotive which struck and injured appellee; that the employés in charge of said locomotive failed to sound the whistle or ring the bell as they approached the highway crossing; and that appellant failed to keep a switchman or watchman at that crossing. Instruction No. 2, given to the jury at the request of appellee, recognizes the rule that a complaint may in one paragraph charge a defendant with several acts of negligence which contribute to the injury complained of, and then states that: "In actions of this character it is sufficient to entitle the plaintiff to recover that he prove any one or more of the negligent acts charged, by a preponderance of the evidence, which was the proximate cause of the injury, providing that the evidence shows that the plaintiff was free from contributory negligence in producing the injuries complained of in his complaint." In objecting to this instruction counsel for appellant direct particular attention to the allegations of negligence which are above set out, and insist that some of these averments might have been proved without authorizing a verdict for appellee, and the instruction was therefore erroneous and harmful. Conceding appellant's contention, it is not now available, because of the fact that instructions 16, 17, 18, and 19, given to the jury at the request of appellant, separately considered each of the charges above referred to, and told the jury that proof thereof would be insufficient to sustain a recovery. The effect of these instructions was to eliminate from the complaint the allegations to which appellant objects, and we must now assume that the verdict rests on evidence which tends to prove other charges of negligence relative to the conduct of the employés in control of appellant's switch engine. Under the latter averments proof was admissible to show that said employés, without keeping proper watch for persons or obstructions along the track and without giving any warning of their move ment, backed the engine and tender over track No. 2 and onto appellee at a time when his attention was diverted by passing cars and while he was engaged in performing the duties of his employment. Pittsburgh, etc., R. Co. v. Bennett (1917) 116 N. E. 582, 583. In this connection reference may now be made to a series of instructions given at the request of appellee which embody an appli [5] (2) Those who are engaged in the active work of railroad operation or in any other industry which involves danger to the cperatives are not only required to be watchful and vigilant to conserve their own safety, but owe a similar duty to all others whose duties expose them to the same dangers; and all such employés have a right to rely to some extent on the care of each other and to assume that each one thus employed will use reasonable care to avoid injuring the others. Shoner v. Pennsylvania Co. (1892) 130 Ind. 170, 178, 28 N. E. 616, 29 N. E. 775. [6] (3) Negligence cannot be imputed to one who has been deceived by appearances calculated to deceive a person of ordinary prudence. Chicago, etc., R. Co. v. Hedges (1885) 105, Ind. 398, 406, 7 N. E. 801; Cleve land, etc., R. Co. v. Schneider (1907) 40 Ind. App. 38, 46, 80 N. E. 985. [7] The instructions in question might have been more concisely stated, but their enunciation of the law is substantially correct, and there is no occasion to discuss appellant's objections thereto in detail. A further objection is urged against two of the instructions, Nos. 8 and 10, to the effect that they omit the test of ordinary prudence and authorized the jury to consider whether the circumstances in issue were such as to justify a personal belief on the part of appellee that there was no danger. This objection, which is addressed in each instance to an isolated clause in the particular instruction, is without substantial merit, especially in view of numerous other instructions which precluded a verdict for appellee if the proof should establish the fact that he failed to use ordinary care for his own safety. [8-10] Instructions 11 and 12, given at the request of appellee, relate to the doctrine of assumed risks, and the former contains an accurate expression of the law as announced in J. Woolley Coal Co. v. Tevault (No. 22962) 118 N. E. 921, decided this term. Instruction 12 is inaccurate, but the error operates in appellant's favor and need not be expressly considered. An extended discussion of these instructions and of the sufficiency of the evidence to sustain the verdict would involve a restatement of the decision in the Tevault Case and we deem that unnecessary. It is enough to note that the present action is founded on the Employers' Liability Act of 1911 (Acts 1911, p. 145), under which the issues of negligence and contributory negligence are to be determined by the jury, and that the decision on such issues in this case was guided by instructions which, considered as a whole, state the law with substantial accuracy. There is evidence in the record which tends to support the verdict and our inquiry on that issue is there limited. For cases involving facts of a similar nature see Pittsburgh, etc., R. Co. v. Farmers' Trust & Sav. Co. (1915) 183 Ind. 287, 108 N. E. 108; Ohio, etc., R. Co. v. Collarn (1881) 73 Ind. 261, 38 Am. Rep. 134. DAUSMAN, J. Appellee instituted this action against appellant before a justice of the peace. It is averred in the complaint that appellant is indebted to appellee in the sum of $66 for goods, wares, and merchandise sold and delivered. The following is the bill of particulars filed with the complaint: "1 doz. #529 Down Comforts, $66.00." No answer was filed. Section 1749, Burns' 1914. The justice of the peace rendered judgment for appellee, from which an appeal was taken to the circuit court. Trial by the court resulted in a finding and judgment for appellee in the sum of $66, interest, and costs. The evidence shows the following facts: Mr. Leo Wolf is president of the Wheeling Mattress Company. In April, 1912, he called at appellant's store in Indianapolis and pro[11] Complaint is also made of the refusal cured an order for goods. The order consistto give certain instructions tendered by ap-ed of eight distinct items, and the total price pellant, but of these Nos. 1, 10, 28, and 32 were incorrect while Nos. 22, 25, and 33 were covered by other instructions given. An examination of certain rulings on the admission of evidence which are of minor importance discloses no reversible error, and we would not be justified in extending this opinion with a discussion of appellant's objections in detail. The remaining questions presented for review have, in their substance, been disposed of by our conclusions above stated, and need not be further considered. The judgment of the trial court does substantial justice between the parties, and is affirmed. (67 Ind. App. 18) of the goods, as stated in the order, is $183.93. "Oct. 23, 1912. "Mr. Leo Wolf, % Wheeling Mattress Co., Wheeling, W. Va.-Dear Sir: Invoice dated Sept. 17 received to-day, and in sampling I notice sizes do not run according to measurements sold. However, I presume this is the case with all comforts; but the point I want to bring to your notice is that you sold for our personal needs a bale No. 251 size 60x78, which is now en route, and judging from dimensions of goods received this comfort would be hardly large PEOPLE'S OUTFITTING CO. v. WHEELING MATTRESS CO. (No. 9487.) (Appellate Court of Indiana, Division No. 2. enough for a single bed. If you remember cor Feb. 26, 1918.) 1. FRAUDS, STATUTE OF 121-PURPOSE. A letter, "Ship us the $66.00 size, as per instructions to your Mr. W.," referring to comforters, did not take the transaction out of the statute of frauds, where the issue was whether they were to be silk or sateen covered, a matter which could not be decided without oral evidence, there being no catalogue, or other manner of proving the identity of the goods ordered. Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge. Action by the Wheeling Mattress Company against the People's Outfitting Company. Judgment for plaintiff, and defendant appeals. Reversed, with direction to sustain motion for new trial. Joseph B. Kealing and Martin M. Hugg, both of Indianapolis, for appellant. Roemler & Chamberlin, of Indianapolis, for appellee. rectly, I wanted to have a large size at the "People's Outfitting Co. "Wheeling Mattress Co., Wheeling, W. Va.Gentlemen: Goods under invoice Oct. 14th received. We are short one dozen No. 251, which evidently were not shipped, as expense bill calls for seven bales, which we received. We will deduct from your invoice $54.00, and please instruct your mill to cancel this number and ship Mr. Wolf. This is of great importance to us. us the $66.00 size, as per instructions to your "Respectfully yours, "People's Outfitting Co. "E. A. K." "Nov. 29, 1912. "Wheeling Mattress Co., Wheeling, W. Va.Gentlemen: Goods under invoice Nov. 11 re ceived Tuesday and unpacked to-day. We re- number and for a different price. In making complaint as a bill of particulars. The merchandise designated by the bill of particulars constitutes no part of that order. The first seven items of that order were shipped to, and received and accepted by, appellant, and presumably payment therefor was promptly made. Then by the mutual assent of the parThese letters were not answered by appel-ties, as evidenced by their conduct, the last lee. The goods designated by the last item item was canceled. That cleared the ground of the first order were never shipped to ap- for a new transaction. Afterward appellee pellant. Acting on appellant's letter of Octo-shipped different goods under a different ber 31st, appellee shipped appellant some sateen comforts, which are the goods represented by the bill of particulars filed with the complaint. These goods were returned to appellee, whereupon they were put in storage. The comforts were made by a concern known as Palmer Bros. Company. Appellee issued no catalogue. The number on the memorandum of the first order and the number on the bill of particulars are the private numbers used by appellee in its dealings with the manufacturing company. Appellant knew nothing about the meaning of these numbers. The only conflict in the evidence is with respect to the quality or identity of the goods alleged to have been sold and delivered. Mr. Kahn testified: "I asked him if he could fur-ty of the subject-matter. In the case at bar nish silk down comforts. He said he could. I told him the members of the firm wanted them for their personal use. He said that No. 251 covered that. I then ordered a dozen. I did not order sateen." Mr. Wolf testified: "Nothing was said about silk." [1] Is the transaction within the statute of frauds? Section 7469, Burns' 1914. When considered with reference to its origin and the evils it is intended to remedy, the beneficence of the statute of frauds becomes apparent. It tends to promote carefulness and exactness in commercial transactions. It removes the temptation to perjury. In the administration of justice it prevents the rights of litigants from resting wholly on the precarious foundation of memory. Like the statute of limitations, it operates in a sense as a statute of repose by avoiding strife and litigation. For these reasons the courts will hold strictly to the established rules. 20 Cyc. 258; Mechem on Sales, §§ 433, 426, 443; Ridgway v. Ingram, 50 Ind. 145, 19 Am. Rep. 706; Lee v. Hills, 66 Ind. 474; Sprankle v. Trulove, 22 Ind. App. 577, 54 N. E. 461; Hausman v. Nye, 62 Ind. 485, 30 Am. Rep. 199; Porter v. Patterson, 42 Ind. App. 404, 85 N. E. 797; Breckinridge v. Crocker, 78 Cal. 529, 21 Pac. 179; Oakman v. Rogers, 120 Mass. 214. The first order cannot be considered for any purpose. It is not signed by appellant. The letters do not refer to it in such manner as that it may be construed as a part of them or of any one of them. It is not filed with the * [2] What were appellant's instructions to Mr. Wolf? Does the order refer to oral or written instructions? The letters contain no reference to each other, or to any catalogue or to any record. One of the important elements, as in every sale of goods, is the identi that is the very thing in dispute, and must be determined, if at all, from the testimony of two witnesses, who have nothing on which to rely but memory. The goods involved in the alleged sale are of such a character that the quality becomes a determining factor in identifying the subject-matter. Did appellant order goods made of muslin, denim, wool, sateen, or silk? If, as appellee claims, nothing was said on this subject, why ship sateen? How can the essential elements of the alleged bargain be determined by a court? Manifestly there is no way other than by resorting to parol evidence, and that is the very thing prohibited. The writings signed by appellant are too vague and uncertain to enable us to discover from them alone what the terms of the contract are. Without violating the rules, we cannot ascertain the contract which the courts are asked to enforce. Indeed, we are in doubt whether there was a contract at all, since from the legitimate evidence it does not appear that the minds of the parties met and agreed to the same thing in the same sense. We are of the opinion that the case is within the statute, and that the finding is contrary to law. Appellee has not deemed it worth while to file a brief; and the observations of the Supreme Court on such indifference are applicable here. Walls v. State, 140 Ind. 16-23, 38 N. E. 177; Ewbank's Manual, § 190. The judgment is reversed, and the trial court is directed to sustain the motion for a new trial. (67 Ind. App. 32) LESLIE v. EBNER. (No. 10014.) (Appellate Court of Indiana, Division No. 2. March 1, 1918.) 1. APPEAL AND ERROR 766-BRIEFS-DEFECTS OBJECTIONS. Under Acts 1917, c. 143, § 3, requiring appellee, within 15 days after the time for filing appellant's brief has expired, to file objections to the record and briefs, and making failure to do so a waiver of defects, the court will examine the record to determine the merits of the appeal including the evidence, though the appellant has not complied with the rules of the court in that his statement of the evidence consists largely of conclusions with nothing to indicate the source of such evidence and his points and authorities consist largely of abstract propositions of law, where appellee did not file objections. 2. CORPORATIONS 82 STOCK SUBSCRIPTIONS-COLLATERAL AGREEMENTS. An agreement that, if notes given a corporation for stock were paid by the maker, the amount should be repaid to him out of the first dividends declared and that the dividends declared on the stock of the principal stockholder and financial agent of the corporation might be appropriated for this purpose, was not an agreement that the note should be treated as a mere loan of the maker's credit and that they should be required to be paid only from dividends, and there was no breach of the agreement where no dividends had been declared. 3. CORPORATIONS 80(11) STOCK SUB SCRIPTIONS-FRAUD-EVIDENCE. Evidence held insufficient to show that representations, made by a corporation's financial agent in selling stock, that its mining properties in Mexico were exceedingly rich and valuable, were false and fraudulent though it was compelled to suspend operations because of the civil war in Mexico. 4. EVIDENCE 378(1) — DOCUMENTARY EVIDENCE-ADMISSIBILITY-IDENTIFICATION. Written communications not sufficiently identified should not have been admitted in evidence. tions. Į the remaining one June 20, 1914. By their terms they matured as follows, respectively: January 1, March 2, and September 2, 1915, April 10, 1916, and August 1, 1915. They were given for the following respective amounts: $500, $750, $750, $1,000, and $1,000. The form of each of the notes was such as to constitute it a negotiable instrument under the Uniform Negotiable Instruments Act (Acts of 1913, p. 120; section 9089A et seq., Burns 1914). Each paragraph of the claim alleged, in substance, that, before the maturity of the note upon which such paragraph was predicated, Reiniger indorsed it for value to the Reiniger Mining & Smelting Company, and that the latter before its maturity indorsed it for value to appellant. The claims having been disallowed were transferred for trial, and by regular proceedings were thereafter venued from the Knox circuit court to the Daviess circuit court. In the latter court appellee filed an amended answer in four paragraphs, and to the following effect: First, general denial; second, that the People's Savings Bank of Van Wert, Ohio, rather than appellant, was the real party in interest; third, nó consideration and that appellant took the notes with notice; fourth, that Reiniger procured the execution of the notes by false and fraudulent representations, and that appellant took with notice. The reply was a general denial. A trial resulted in a finding and judgment in favor of appellee. Appellant questions the sufficiency of the evidence. It therefore becomes necessary to outline more fully the fourth paragraph of answer. Although not directly alleged, it is a fair inference from this paragraph that the notes were given in consideration of cerAppeal from Circuit Court, Daviess Coun- tain shares of the capital stock of the Reinty; James W. Ogdon, Judge. iger Mining & Smelting Company issued to Claim by Frank W. Leslie against Law-decedent. The fraudulent representations by rence H. Ebner, administrator. From a judg- virtue of which it is alleged that the execument in favor of the administrator, the tion of the notes in suit was procured were claimant appeals. Reversed, with instruc- to the following effect: That said company was the owner of certain rich and valuable mines in the state of Sonora, Mexico, and that in and about such mines there was mineral ore ready for the market of the value of $2,000,000; that the capital stock of the company was principally owned by Reiniger himself, and would yield enormous dividends to the stockholders in the near future. It is alleged that such representations were false and fraudulent, and that by reason of them decedent was induced to execute the notes in suit, and that neither such mining property nor the capital stock of the company was, or had been at any time, of any value. It is For opinion denying motion to dismiss appeal, see 117 N. E. 511. Hastings, Allen & Allen, of Washington, Ind., and W. H. Dailey and C. V. Hoke, both of Van Wert, Ohio, for appellant. L. E. Ritchey, of Indianapolis, for appellee. CALDWELL, J. Appellant filed in the clerk's office of the Knox circuit court a claim in five paragraphs against the estate of Joseph L. Ebner, deceased, appellee's decedent. Each paragraph of the claim was based on a promissory note purporting to have been executed by decedent to Charles | alleged, also, that as a further inducement P. Reiniger, and indorsed by the latter and also by the Reiniger Mining & Smelting Company by its treasurer, Joseph H. Brant. The first of these notes was dated December 23, 1913, the next three, March 2, 1914, and to the execution of such notes Reiniger agreed with decedent that the dividends arising from the operation of the mines should meet and pay the notes as they severally matured, and that the execution of such notes should be treated as a loan of the credit of decedent in the promotion of the mining enterprise, and to the end that dividends arising therefrom could and would pay said notes. As we have said, it is alleged also that appellant took the notes with knowledge of the facts. [1] Appellee insists that appellant has not complied with the rules of this court, in that his statement of the evidence consists largely of conclusions, with nothing to indicate the source of such evidence; and also in that his points and authorities consist largely of abstract propositions of law, and that therefore nothing is presented for our consideration. Appellee in the main is correct in his contention. However, this appeal is governed by the act of 1917 (Acts of 1917, p. 523). Under section 3 of that act, it is made the duty of an appellee, within 15 days after the filing of an appellant's brief, to file in the office of the clerk of this court his objections to the record and briefs, pointing out wherein he believes the rules of this court have not been complied with; and his failure so to do is a waiver of any defects in the record or briefs. Under the circumstances, we are authorized to, and in this case havè, examined the record in order that we might determine the merits of this appeal including the evidence, the sufficiency of which we proceed to consider. tations, it may be said that there was abundant evidence that Reiniger represented to decedent that the company was the owner of a number of valuable mining properties in the state of Sonora, Mexico. The burden was on appellee to prove the fraud alleged. A very careful study of the record fails to disclose any evidence that such representations were either false or fraudulent. [3] In a general way the further and uncontradicted evidence was to the following effect: Prior to the execution of the notes in suit, Reiniger acquired certain mining properties in the state of Sonora, Mexico. Thereafter and before the execution of the notes, the Reiniger Mining & Smelting Company, a foreign corporation, was organized with a nominal capital stock of 2,000,000 shares of one dollar each, about $900,000 of which was held by Reiniger. Thereafter the company acquired other mining properties in the state of Sonora, until it held and owned five mines, some of which to an extent had been worked before either Reiniger or the company acquired them. An early arrangement was made by which Reiniger was constituted the financial agent of the company. and as such authorized to sell stock at 25 cents on the dollar, receiving cash for the company or taking notes in his own name for the company, and to be transferred to it. At different times, as indicated by the dates [2] We fail to discover any evidence sus- of the notes in suit, Ebner purchased the taining the allegation that as an inducement stock of the company through Reiniger or his to the execution of the notes Reiniger agreed representative, and executed such notes that the transaction wherein such notes were therefor, his holdings as represented by such executed should be treated as a mere loan notes being 16,000 shares, which he or his of the credit of the decedent, and that such estate still holds and owns. There was no notes should be required to be paid only evidence that such stock had been tendered from dividends declared on the capital stock, to the company. In purchasing such stock and arising out of the profits from the opera- and executing such notes, although there is tion of the mines. Whatever the evidence no direct evidence to that effect, it is a fair discloses respecting such an agreement was inference that he was induced to do so by embodied in certain receipts signed by Rein- representations made by Reiniger that the iger at the time of the execution of some of mining properties owned by the company the notes in suit, and acknowledging the re- were exceedingly rich and valuable. These ceipt of such notes in consideration of cer- mines were situated several hundred miles tain shares of the capital stock of the min- from the United States border, and 20 miles ing company delivered to Ebner, and to the from a railroad. At the time of the execueffect that, the notes being paid, the amount tion of those notes, the company had in mind thereof paid by decedent should be repaid to to complete a wagon road from the mines to him out of the first dividends declared by the railroad connection for the transportation said company, and that dividends declared on of machinery and materials to the mine, and Reiniger's stock might be appropriated for the mine products to the railroad, a considthat purpose. The receipts were to the erable part of the construction of which road effect that on the payment of the notes by had been completed. The company had emEbner, and on the declaring of dividends on ployed in and about the mines at different Reiniger's stock, such dividends should be times from 15 to 125 men, the number at used to repay Ebner, and Ebner should hold any particular time depending on the ability the stock in consideration of his having ad- to supply food and other materials; and had vanced the amount of money represented by in its employ and actually at work at the the notes for the use of the company in de- mine engineers, assistant engineers, and veloping the property. The evidence does superintendents who were receiving substannot disclose any breach of such agreement, tial salaries. It had constructed substantial for the reason, as hereinafter indicated, that buildings, installed machinery, had done conno dividends have been declared on the siderable work in developing the mines, and capital stock of the company. had spent in the mining operations something Respecting the alleged fraudulent represen-like $60,000, aside from the road construc |