value of Dudley's services to Gilfoil. As was said in Silver v. Graves, supra, 210 Mass. at page 30, 95 N. E. at page 949:
"When a contract has been executed on one side, the law will not permit the injustice of the other party retaining the benefit without paying unless compelled by some inexorable I rule."
he entered the employ of Gilfoil, performing, was to be settled at a future time. As Gilsubstantially the same services as previously foil died before the amount was determined, rendered, at a weekly salary of $30 a week, the law implies a promise to pay what was and this employment continued until Gilfoil's fair and just between the parties under all death. the circumstances. The contract has been [1-3] It is the contention of the defendant fully executed on the side of the plaintiff by that as the parties never agreed as to how his consenting that Dudley's salary should much Dudley's services were worth to Gil- be deducted from the payments due on the foil, there was no binding contract. Where purchase price. Upon all the evidence it. services are performed for another or other could have been found that the defendant benefits are received by him with his knowl-was bound to carry out the obligation asedge, and there is no evidence that such ben-sumed by Gilfoil; and she is required to reefits were conferred gratuitously, the law im- imburse the plaintiff in a sum equal to the plies a promise to pay for their reasonable value. If the evidence in the case at bar is insufficient to prove an express contract, it is ample to warrant a finding that Dudley's services were accepted by Gilfoil with the intention that they were eventually to be paid for by him. The circumstances that the defendant's intestate deceased before any agreement had been arrived at as to the value of the services will not prevent recovery by the plaintiff on a quantum meruit. Day v. Caton, 119 Mass. 513, 20 Am. Rep. 347; [4] It remains to consider only the excepDickey v. Trustees of Putnam Free School, tions to the admission and exclusion of evi197 Mass. 468, 473, 84 N. E. 140. The agree- dence. The court admitted, subject to the ment is not void for indefiniteness or uncer-defendant's exception, evidence that Gilfoil tainty because the value of Dudley's services paid Dudley $30 a week after the latter's was not agreed upon but was left for future contract with the plaintiff had expired. determination. Atwood v. Cobb, 16 Pick. This was admissible upon the question of the 227, 231, 26 Am. Dec. 657; Newmarket Man- value of Dudley's services. The exception ufacturing Co. v. Coon, 150 Mass. 566, 568, to the exclusion of the question calling for 23 N. E. 380; Carnig v. Carr, 167 Mass. 544, a conversation between the deceased and his 46 N. E. 117, 35 L. R. A. 512, 57 Am. St. brother relating to payments on the mort-. Rep. 488; Silver v. Graves, 210 Mass. 26, 95 gage given to the plaintiff cannot be sustained. The amount due on the mortgage was not in dispute and it is not apparent that the evidence was relevant to any issue between the parties. We have considered all the exceptions that have been argued. The others are treated as waived.
If the presiding judge believed the testimony of the plaintiff, he was warranted in finding that the decedent understood he was expected to reimburse the plaintiff for the deductions made weekly from the purchase price for the purpose of paying Dudley's salary. The only matter that was not agreed upon was the value of the services to Gilfoil; but it could have been found that that
For the reasons stated, none of the rulings requested by the defendant could have been made.
As we perceive no error of law in the conduct of the trial, it results that the entry must be:
THIS IS A KEY-NUMBER INDEX
It Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests
(E) Duration and Continuity of Posses-
10 (Ind.) Statement by deceased if res ges-50 (Ifl.) Purchase from adverse claimant
tæ and made in extremis admissible.-Hill v.
State, 639.
constitutes recognition of adverse nature of his
Admissibility of dying declarations first de- claim.-Johnston v. Peeler, 161.
termined by trial court.-Id.
Court warranted in admitting statements as
dying declarations.-Id.
50 (III.) Applicant for survey and sale of
land by federal government cannot claim by ad-
verse possession within 20 years thereafter.-
Wilkinson v. Watts, 383.
Statement that deceased went to defendant's
office admissible as part of dying declaration. (F) Hostile Character of Possession.
Statement held not properly part of dying dec-62(3) (III.) Widow claiming through adopt-
larations.-Id.
ed son acquired title against deceased hus-
Evidence of statements of deceased contra- band's brother and sisters.-Tillotson v. Fos-
dicting dying declaration admissible.-Id.
ter, 412.
(Ind.) Evidence held sufficient to sustain
conviction.-Hill v. State, 639.
ACCORD AND SATISFACTION.
See Compromise and Settlement.
26(3) (Ind.App.) Check marked "in full
for labor to date," held not conclusive evi-
dence of accord and satisfaction.-Horwitz
Bros. v. Dedloff, 85.
See Dismissal and Nonsuit.
ADMINISTRATION.
See Executors and Administrators.
3 (III.) Statutes conferring jurisdiction in
adoption proceedings not technically construed,
but should be substantially complied with.-
Hopkins v. Gifford, 178.
10 (II.) County court has jurisdiction in
proceedings to adopt a child, who is in open
court though resident of other state.-Hopkins
v. Gifford, 178.
12 (III.) Failure to give parents notice im-
material, where guardian ad litem, with author-
ity of court making appointment to so do, gave
consent.-Hopkins v. Gifford, 178.
~75 (III.) Possession of purchaser at previ-
ous partition sale adverse to that of purchaser
from subsequent attaching creditor's sale.-
Johnston v. Peeler, 161.
Master's deed in partition proceedings good
color of title.-Id.
III. PLEADING, EVIDENCE, TRIAL, AND
114(1) (III.) Proof must be clear and pos-
itive.-Wilkinson v. Watts, 383.
ALIENATING AFFECTIONS.
325-335.
APPEAL AND ERROR.
See Husband and Wife,
See Certiorari; Courts, 207-240; Crim-
inal Law, 1030-1192; Exceptions, Bill
of.
For review of rulings in particular actions or
proceedings, see also the various specific top-
ics.
I. NATURE AND FORM OF REMEDY.
4 (Mass.) Appeal is proper mode of re-
view in equity.-Zeo v. Loomis, 115.
III. DECISIONS REVIEWABLE.
(D) Finality of Determination.
14 (III.) County court presumed to have
heard facts on which decree was based.-Hop-66 (Ind.) Appeal lies only from final judg-
kins v. Gifford, 178.
78 (4) (Mass.) Dismissal for want of pros
ment.-State v. Cox, 225.
ecution final judgment and reviewable.-Cheney
v. Boston & M. R. Co., 502.
78 (4) (Mass.) Dismissal of petition a final
judgment.-Fairbanks v. Beard, 590.
82 (3) (Ind.) Order overruling motion to
which appeal may be taken.-Rooker v. Fidelity
vacate judgment not "final judgment," from
Trust Co., 4.
(E) Nature, Scope, and Effect of De-
cision.
V.102 (Mass.) Appeal lies from order sus-
taining demurrer.-Canning v. Shippee, 79.
V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW.
(A) Issues and Questions in Lower Court.
171(3) (Ind.App.) Appellate court will
adopt trial court's theory of case.-Mills v.
Thomas, 314.
171 (3) (Ind.App.) Trial court's construc-
tion of pleading adhered to on appeal.-Ranier
v. Stephanoff, 523.
171(3) (Mass.) Where case fully heard,
failure to join issue not considered on appeal.—
Burke v. McLaughlin, 601.
(B) Objections and Motions, and Rulings
185(1)(III.) Failure to object to equity
court's jurisdiction of subject-matter does not
waive right to raise question on appeal.-Man-
chester Community High School Dist., No. 121,
v. Murrayville Community High School Dist.,
No. 123, 129.
205 (Ind.) Particular facts sought to be
proved by testimony objected to must be stat-
ed.-Papenbrook v. White, 804.
205 (Ind.App.) In absence of offer to prove
or statement as to what was expected to be
proved, no question on exclusion of evidence
presented.-Mills v. Thomas, 314.
219(2) (Mass.) Contention that defend-
ant's automobile was nuisance not considered
on exceptions.-Duggan v. Woodis, 124.
VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(A) Time of Taking Proceedings.
345(1) (Ind.) Time in which appeal taken.
-State v. Cox, 225.
356 (Ind.) Appeal cannot be taken unless
perfected within time allowed by law.-Pitts-
burgh, C., C. & St. L. R. Co. v. Mosher, 322.
(C) Payment of Fees or Costs, and Bonds
or Other Securities.
373(1) (Ind.App.) No error in denying
prayer for appeal where no steps taken plac-
ing court in default.-Shannon v. Abshire, 621.
X. RECORD AND PROCEEDINGS NOT IN
(A) Matters to be Shown by Record.
502(5) (Ind.) To show filing of motion for
new trial in vacation, record or clerk's certifi-
cate must affirmatively state that motion was
actually delivered to clerk.-Pittsburgh, Č., C.
& St. L. R. Co. v. Mosher, 322.
(B) Scope and Contents of Record.
525(1) (Ind.) Giving and refusal of in-
structions not made part of record not con-
sidered. City of Indianapolis v. Barthel, 339.
cient compliance with statute to make instruc-
525(2) (Ind.App.) Procedure held suffi-
tions a part of record without bill of excep-
tions.-New York, C. & St. L. R. Co. v. First
Trust & Savings Bank of Whiting, 521.
529 (2) (Mass.) Signature of judge by ini-
tials not part of record.-Fairbanks v. Beard,
537 (Ind.) Questions dependent on
sideration of evidence not considered where
bill of exceptions is not presented in time.-
Pittsburgh, C., C. & St. L. R. Co. v. Mosher,
(C) Necessity of Bill of Exceptions, Case,
or Statement of Facts.
223 (Mass.) No objection to form of de-evidence not considered on appeal, where no
548(1) (Ind.App.) Questions concerning
cree being made affirmance follows.-Burke v.
bill of exceptions filed.-Blain v. City of Del-
McLaughlin, 601.
phi, 483.
(1)
231 (9) (Mass.) Exception does not lie to
charge as whole.-Anti v. Boston Elevated Ry.
Co., 598.
265 (2) (Ind.App.) Errors as to conclusion
of law waived by not excepting thereto.-Blain
v. City of Delphi, 483.
Defects, Objections, Amendment, and
Correction.
635 (3) (Ind.App.) Where review of a rul-
ing requires a consideration of evidence not in
record, cause will be affirmed.-Bowman v.
Swartz Electric Co., 62.
267 (1) (Ind.) No review of order approv-
ing lease by trustee and overruling demurrer
(K) Questions Presented for Review.
to application for writ of assistance, no ex-690 (4) (Ind.App.) Nothing presented for
ception having been taken.-Rooker v. Fidelity determination, when it does not appear ques-
Trust Co., 4.
tion complained of was answered.-Chester v.
273 (4) (Mass.) Exception to evidence American Trust & Savings Bank, 10.
overruled, when competent for any purpose.-694(1) (Mass.) Master's findings conclu-
Irwin v. Worcester Paper Box Co., 286. sive, in absence of evidence.-Bullivant v. First
Nat. Bank, 41.
(D) Motions for New Trial.
301 (Ind.App.) Assignment that decision
not sustained by evidence or contrary to law
improper.-First Nat. Bank v. McCoy, 795.
694(1) (Mass.) Facts found on unreported
evidence conclusive, unless inconsistent or con-
tradictory and plainly wrong.-James v. Colum-
bia Securities Co., 72.
302(4) (Ind.App.) Specifications jointly 694(1) (Mass.) Master's finding on unre-
challenging giving or refusal of several in- ported evidence conclusive, when not inconsist-
structions not properly before court on ap-ent with subsidiary facts.-Dewey v. Burke,
peal.-First Nat. Bank v. Gibbs, 264.
117.
(E) Cases and Questions Reserved or
Certified.
694 (1) (Mass.) Findings of fact final, when
evidence not reported.-Mathews v. Bloomfield,
494.
ques-694(1) (Mass.) Appellate court cannot de-
termine truth of assertions of fact, in absence
of finding of facts and evidence.-Fairbanks v.
Beard. 590.
320 (Mass.) Report of interlocutory
tion rests in discretion of presiding judge.
Anti v. Boston Elevated Ry. Co., 598.
322 (Ind.) Coparties not appealing. held
not required to be named as appellees.-Crane
v. Hensler, 51.
327(2) (Ind.) Appeal dismissed where all
adverse parties not joined.-City of Crown
701 (1) (Ind.App.) Bill of exceptions held
insufficient to present ruling on instructions giv-
en or refused.-Thomas v. City of Huntington,
358.
In absence of evidence in record, judgment
will be reversed for instructions given, only if
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
~~701 (2) (Ind.App.) When refused instruc-835(1) (Ind.App.) Question waived
tion will be presumed "applicable" to evidence considered on rehearing.-National Mut. Ins.
stated.-Thomas v. City of Huntington, 358. Co. of Celina, Ohio, v. Bales, 481.
Refusal to instruct that failure to discover
wire partially embedded in street was not con-
tributory negligence held reversible error in
absence of evidence from record.-Id.
701 (2) (Mass.) Exceptions to refusal of
instructions not considered, in absence of all
of the evidence or instructions given.-Car-
penter v. Grow, 859.
XI. ASSIGNMENT OF ERRORS.
719(1)(III.) Question abandoned by fail-
ure to assign error.-Hopkins v. Gifford, 178.
722 (3) (Ind.App.) Receiver" insufficient
to charge appellee in his fiduciary capacity.-
Bowman v. Swartz Electric Co., 62.
an item which appeal does not bring up for
747(1)(III.) Cross-errors not assigned of
consideration.-People v. Chicago & E. I. Ry.
(A) Scope and Extent in General.
837(1) (Ind.App.) In determining sufficien-
cy of findings, both primary and ultimate facts
considered.-Glascock v. Allen, 794.
837 (7) (Ind.App.) Matters considered in
determining sufficiency of answers to inter-
rogatories to overcome general verdict stated.
-Anderson v. Hite, 256.
853 (Mass.) Absence of notice of rescis-
sion in reasonable time immaterial, where in-
struction not objected to.-Universal Fixture
Corporation v. Mark, 578.
Raymond v. Stone, 100.
854 (4) (Mass.) Immaterial whether mas-
ter gave correct reason for excluding evidence.
866(1) (Mass.) Matter that could have
been presented at new trial not considered un-
747(1) (Ind.App.) Affirmative relief grant-der writ of error sued out after rescript and
ed appellee on assignment of cross-errors.- dismissal.-Cheney v. Boston & M. R. Co., 502.
Blain v. City of Delphi, 483.
748 (2) (Ind.App.) Application to amend
assignment of errors comes too late, after time
to appeal has expired.-Bowman v. Swartz
Electric Co., 62.
749 (Mass.) Where error of law denied,
appellate court has jurisdiction on writ of er-
ror.-Cheney v. Boston & M. R. Co., 502.
757(3) (Ind.App.) Where issue was suffi-
ciency of evidence, and brief was defective,
there was no question for review.-Sanders-
Egbert Co. v. Getts, 9.
757(3) (Ind.App.) Appellate Court will
assume that there was no evidence as to a
fact not disclosed by brief.-Fowler v. Ball,
64.
757(3) (Ind.App.) Questions held not
properly presented in brief.-National Mut. Ins.
Co. of Celina, Ohio, v. Bales, 481.
(B) Interlocutory, Collateral, and Supple-
mentary Proceedings and Questions.
870 (3) (Mass.) Appeal from final decree
raises only question whether it is supported
by bill and findings.-Giuliani v. Cordone, 103.
(C) Parties Entitled to Allege Error.
878(4) (III.) Appellee can sustain judg-
ment in Appellate Court on ground not previ-
ously advanced.-Hazel v. Hoopeston-Danville
Motor Bus Co., 392.
882(12) (II.) Omission in instruction as
to standard of care held not reversible.-Schu-
bert v. Patera, 825.
882(12) (Ind.) Error in instruction held
not invited.-Bennighof-Nolan Co. v. Adcock,
782.
(D) Amendments, Additional Proofs, and
Trial of Cause Anew.
758 (2) (Ind.App.) No question raised when
objection to evidence not shown.-Chester v. 889(3) (Ind.App.) Complaint treated
American Trust & Savings Bank, 10.
amended to correspond with evidence admitted
without objection.-Horwitz Bros. v. Dedloff,
85.
758(2) (Ind.App.) No question presented
as to admission of evidence, where brief does
not state reasons for objection or that excep-
tion was taken.-City of Richmond v. Land-907(3)
Dilks Co., 652.
(Ind.App.) Evidence presumed to
have been sufficient on hearing of motion when
760(1) (Ind.) Brief must show presenta- not brought up.-Shannon v. Abshire, 621.
tion of questions discussed, or point out pages 907(4) (Ind.App.) In absence of part of
or lines of transcript where found.-City of In- testimony court will assume that jury was jus-
dianapolis v. Barthel, 339.
tified in fixing damages at amount named in
verdict.-Murray v. Cottrell, 524.
760 (2) (Ind.App.) Questions concerning
evidence not considered on appeal, where ap-918(3) (Ind.App.) Appellate court could
pellant does refer to record when bill is filed.- not presume answer was amended to present
Blain v. City of Delphi, 483.
certain issue on which instruction refused.--
H. H. Woodsmall, Inc., v. Steele, 246.
761 (Ind.) Proposition unsupported by
points and authorities not considered.-Papen-927 (7) (Mass.) Evidence considered in as-
brook v. White, 804.
761 (Ind.App.) Question without proposi-
tion or point not considered.-National Mut.
Ins. Co. of Celina, Ohio, v. Bales, 481.
761 (Ind.App.) Question presented by argu-
ment, but not in points and authorities, not con-
sidered.-Fishel v. Pinckard, 615.
761 (Ind.App.) Proposition as to evidence
held to cover right to damages as well as in-
junction.-Beard v. Link, 792.
XIII. DISMISSAL, WITHDRAWAL, OR
pect most favorable to plaintiff when verdict
directed.-Rizzittelli v. Vestine, 110.
928 (3) (Mass.) Assumed evidence properly
dealt with in charge.-Carpenter v. Grow, 859.
Refusal of instruction not error, when re-
port does not show it was supported by evi-
dence.--Id.
930(1) (Ind.App.) Court will review only
evidence most favorable to appellee.-Wolfcale
v. Farrar, 63.
930(3) (Ind.App.) Facts found adverse to
general verdict presumed overcome by other
facts if such other facts might have been prov-
781(4) (Ind.App.) Question held moot be- ed-Anderson v. Hite, 256.
cause of completion of work after injunction.-931 (I) (Ind.App.) Where finding of con-
Beard v. Link, 792.
version not challenged, presumption on appeal
that conversion took place.-Southern Finance
Co. v. Mercantile Discount Corporation, 250.
931 (1) (Ind.App.) Where warranted by
evidence finding presumed.-National Mut. Ins.
Co. of Celina, Ohio, v. Bales, 481.
931 (7) (Mass.) Presumed that judge's rul-
ings made with reference to state of pleadings.
-Duggan v. Woodis, 124.
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