CONTRACT-MUTUALITY-SIGNATURE of One

PARTY.

leges, and the proof shows, that the notice 2. FRAUDS, STATUTE OF (§ 115*)-WRITTEN was given after, and pursuant to, a resolution and order of such board, that such notice gave appellant complete information of the action of such board in the premises, and that, after receiving such notice, appellant wholly failed and refused to make such repairs or any part thereof.

[6] Lastly, it is insisted that the court erred in overruling appellant's motion to modify the judgment. As before indicated, this motion was to strike out that part of the judgment rendered on the second paragraph of cross-complaint which adjudged that the $2,000 recovered by appellee should be deducted therefrom, and that the balance, to wit, $2,236.89, should be retained by appellee and invested in municipal bonds, and held "as collateral to secure the faithful performance of the remaining portion of appellant's warranty obligations." It is insisted

that the court had no right to order the city

to reinvest said funds and retain the same as collateral, etc. Appellant would have some reason and ground for its contention if the repairs or resurfacing for which a recovery is sought in this action covered the entire part of the street covered by the contract for improvement, but such is not the case. Only a portion of that part of the street covered by the improvement contract is here involved. The guaranty period had several years yet to run, and the part of the street not involved in this action might get out of repair and become defective, requiring additional expenditure therefor.

A written contract to purchase personalty, signed only by the party sued, is not open to objection for want of mutuality, the bringing of the action being in itself a sufficient acceptance by the plaintiff. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 242-250; Dec. Dig. § 115.*]

3. SALES (§§ 19, 20*)-EXECUTORY CONTRACTS
-CONSIDERATION-MUTUAL PROMISES.

executory contract of sale, of one to buy and
The mutual promises of the parties to an
the other to sell 1,200 bushels of corn at 40
cents per bushel, are a sufficient consideration.
[Ed. Note.-For other cases, see Sales, Cent.
Dig. 88 31, 32; Dec. Dig. §§ 19, 20.*]
4. FRAUDS, STATUTE OF (§ 108*)-CONTRACTS
OF SALE OF PERSONALTY-CONSIDERATION.

St. 1908, § 7467) the memorandum of a con-
Under the statute of frauds (Burns' Ann.
tract of sale of personalty need not state the
consideration.

Statute of, Cent. Dig. §§ 214-221; Dec. Dig. § [Ed. Note.-For other cases, see Frauds,

108.*]

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Action by John R. Beach against Wilson H. Knapp. Judgment for plaintiff, and defendant appeals. Affirmed.

lant. Joseph P. Gray, of Frankfort, for apJoseph Claybaugh, of Frankfort, for appelpellee.

damages for breach of a contract entered inIBACH, C. J. The complaint asked for tiff purchased and defendant sold and agreed to by plaintiff and defendant, whereby plainto deliver to plaintiff 1,200 bushels of corn.

A memorandum of the contract in the following words was attached to the complaint: "Cambria, Ind., August 6, 1909. In consid

eration of the sum of

It is insisted by appellant that the guaranty is a single, entire, and inseparable obligation, and that the present judgment bars any future action to enforce it. Authorities are cited to support this contention, but we can find nothing in either of the cases cited that would furnish any justification for our in hand paid, the receipt whereof is hereby dollars, to me holding that the guaranty in this case does not apply to that part of the street improved liver unto J. R. Beach at his elevator, Camacknowledged, I hereby agree to sell and dewhich was in no way involved in this litiga-bria, Indiana, 1,200 bushels of 72 lbs. No. 3 We think this part of the judgment entire-Yel. Corn. Said grain to be delivered by me ly proper and within both the spirit and let- in November, 1909, and to be in sound and ter of the provision of the guaranty here in- merchantable condition, for which I am to volved. receive payment at the rate of 40 c. per bushel after deducting all indebtedness, which may be due and owing by me to said J. R. Beach, that said grain is now on the land of W. M. Knapp in Clinton county, Ind., that the same is mine and is unincumbered by any mortgage or lien, and I hereby make

tion.

Judgment affirmed.

KNAPP v. BEACH. (No. 7,807.)

(Appellate Court of Indiana, Division No. 2. this statement in order to procure the above

March 5, 1913.)

1. FRAUDS, Statute of (§ 115*)-SIGNATURES -SUFFICIENCY.

A written contract to purchase personal property to satisfy the statute of frauds (Burns' Ann. St. 1908, § 7469) need only be signed by the party sued.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 242-250; Dec. Dig. § 115.*]

named sum, and that I received a copy of this agreement. W. M. Knapp." Appellant contends that the above-written instrument is not on its face a complete and enforceable contract, because there is a lack of consideration, and because it is unilateral. The above memorandum appears to have been written upon a blank form providing for the advancement of a money loan upon an agree

of frauds that the memorandum of a contract of sale should state the consideration. Burns 1908, § 7467.

ment for the sale of grain. No money loan | more, it is not necessary under our statute was made in this case, and the court will disregard the part of the memorandum referring to such loan as mere surplusage. Disregarding the surplusage, there appears an agreement by appellant to sell and deliver to appellee at his elevator in Cambria, Ind., 1,200 bushels of 72 pounds of No. 3 yellow corn, to be delivered in November, 1909, in sound and merchantable condition, for which he was to receive 40 cents a bushel after deducting any indebtedness owing by him to appellee.

The court did not err in overruling the demurrer to the complaint. There was evidence to support the complaint in all particulars; therefore the verdict was supported by the evidence. Judgment affirmed.

EIGENMANN v. RUSTON et al. (No. 7,813.)
(Appellate Court of Indiana, Division No. 1.
March 7, 1913.)

1. COUNTIES (§ 120*) - CONTRACTS
COMMISSIONERS-DISCRETION.

- COUNTY

providing that the board of commissioners shail
Under both Burns' Ann. St. 1908, § 5896,
let certain contracts to the "lowest responsi-
ble bidder," and section 7689, providing that
certain contracts be let to the "lowest and best
bidder," the board is given some discretion.
[Ed. Note.-For other cases, see Counties,
Cent. Dig. § 191; Dec. Dig. § 120.*]
2. COUNTIES (§ 196*) - CONTRACTS — BIDS —
COMMISSIONERS-DISCRETION-EVIDENCE.

In an action by a taxpayer to enjoin the carrying out of contracts for county bridges, evidence held to warrant a finding that the commissioners had not arbitrarily rejected a certain bid or abused its discretion, under either Burns' Ann. St. 1908, § 5896, or section 7689, relating to letting of county contracts. Cent. Dig. § 308; Dec. Dig. § 196.*] [Ed. Note.-For other cases, see Counties, 3. NAMES (§ 2*)-SIGNATURES-PARTNERSHIP

-CHRISTIAN NAMES.

An affidavit, signed "Grammer and Smith." and certified by a notary that it was "subscribhave been individually signed by the two men, ed and sworn to" before him, will be held to in the absence of evidence to the contrary; the Christian names not being necessary to render it binding.

[1] The only point of importance presented by the appeal is as to the mutuality of the contract. This was a contract for the sale of goods worth more than $50, and as there was no part payment, nor partial delivery, the contract, under the statute of frauds, must be in writing and signed by the party to be charged, or his authorized agent, before it can be enforced. Burns 1908, § 7469. The general rule is that the statute is satisfied and the plaintiff may enforce the contract, if the writing is signed alone by the party sued, the defendant in the action, and is not signed by the plaintiff. 29 Am. & Eng. Encyc. Law (2d Ed.) 858; Dennis Simmons Lumber Co. v. Corey, 140 N. C. 462, 53 S. E. 300, 6 L. R. A. (N. S.) 468; Bailey v. Leishman, 32 Utah, 123, 89 Pac. 78, 13 Ann. Cas. 1117, and note; Ullsperger v. Meyer, 217 Ill. 262, 75 N. E. 482, 2 L. R. A. (N. S.) 221, 3 Ann. Cas. 1032, and note; Smith v. Smith, 8 Blackf. 209; Newby v. Rogers, 40 Ind. 9. Especially is it true that a contract signed by one party only may become mutual and binding upon both, if the contract is accepted and acted upon by the party not signing. Munson v. Wray, 7 Black f. 403; Alcorn v. Morgan, 77 Ind. 184; Chicago, etc., R. Co. v. Derkes, 103 Ind. 520, 3 N. E. 239. The complaint avers that the plaintiff contracted to sell the aforesaid corn to his customers, and, in consequence of appellant's failure to deliver the corn to him, he was unable to carry out his contracts with his customers and was thereby damaged. This shows that appellee accepted the contract and acted upon it. And many of the authorities above cited hold that merely bringing an action upon the contract is a sufficient acceptance to make it mutual. [2-4] Where a contract is executory on both sides, consisting of promises by each party to do something, the mutual promises of the parties are a sufficient consideration, each for the other, to render either party liable IBACH, C. J. This action was brought for a failure to carry out his part. It is not by appellant, Eigenmann, as a taxpayer of necessary, to make a written executory con- Vanderburgh county, Ind., to enjoin appeltract for the sale of goods binding, for any lees from carrying out certain contracts enmoney to pass from the purchaser to the tered into between appellees Ruston, Hornseller until the seller has performed his part by, and Koch, as the board of county comof the contract. But the present contract missioners of Vanderburgh county, and apstates what the consideration for the corn pellee Whitehead and appellees Grammer shall be, namely, the price of 40 cents per and Smith, as contractors, for the erection bushel to be paid to the seller. Further of certain bridges. It appears that in June, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Names, Cent. Dig. § 1; Dec. Dig. § 2.*]

Appeal from Superior Court, Vanderburgh County; John H. Foster, Special Judge.

Action by Henry W. Eigenmann, taxpayer, to enjoin Thomas Ruston and others from Judgment carrying out certain contracts. for defendants, and plaintiff appeals. firmed.

Af

Wodfin D. Robinson, of Evansville, and William E. Stilwell, of Terre Haute, for appellant. George A. Cunningham and Daniel H. Ortmeyer, both of Evansville, for appellees.

1910, pursuant to advertisement, the board | Vanderburgh.

But it appears from appel

of commissioners opened three bids for each lees' evidence that appellant, Eigenmann, of two bridges, known as the Ehrhardt vice president of the said company, which Bridge and the Wartman Bridge. Grammer was an organization then but a few months & Smith bid $895 on the Ehrhardt Bridge old, had shortly before the time of letting and $1,100 on the Wartman Bridge; White- the contracts in question built a bridge for head bid $875 on the Ehrhardt Bridge and the same board of commissioners of Vander$1,122 on the Wartman Bridge; the A. E. burgh county against whom this suit is & W. Construction Company bid $847 on the brought. Some difficulty arose between the Ehrhardt Bridge and $1,070 on the Wart-board and Eigenmann about this bridge. The man Bridge. The board awarded the con- board required him to change the walls of tract for the Ehrhardt Bridge to Whitehead, the bridge after they had been partially and that for the Wartman Bridge to Grammer & Smith.

The theory of the complaint is that the board arbitrarily refused to consider the bid of the A. E. & W. Construction Company, although it was the lowest responsible bidder on each bridge, and had complied with all the requirements of the statute respecting the submission of bids, and that the firm of Grammer & Smith, to whom the board let the contract for the Wartman Bridge, and was about entering into a contract therefor, had failed to comply with the statute, requiring each bidder to accompany their bid with an affidavit of noncollusion with other bidders; that the board was without power or authority to let the contracts as it was preparing to do, and plaintiff asks that they be enjoined from so doing.

[1] Appellant contends that the letting of contracts for bridges is governed by section 5896, Burns 1908, which provides that the board shall "let the same to the lowest responsible bidder upon the terms of the notice mentioned, and on the plans and specifications so deposited, as in this act provided: Provided, the said board of commissioners shall have the power to reject any and all bids, and may again advertise for bids."

erected; there was much delay in the completion of the work; the board made five or six trips of inspection before the work was finally completed and accepted; they were troubled with complaints that Eigenmann obstructed the highway with his materials; and at one time the board were so much dissatisfied with the work that they considered bringing a suit on his bond as a contractor. Appellant's evidence contradicts much of the above, and there is a strong conflict in the evidence.

Eigenmann was a stockholder in and a director and vice president of the A. E. & W. Company, and appeared as its representative in seeking the contract. It probably was not amiss for the board to conclude that the work which the company would do would be similar to that which its representative had done. All of the members of the board testify that all the bids were considered; that none were arbitrarily rejected; and that the bids of the A. E. & W. Company received the same consideration as the others. One member testifies in addition that the board, in considering the bids of this company, took into account the kind of bridge and the knowledge that the company's men had in building a bridge, what their men had done Appellees are disposed to consider that the before for the board, and the differences in matter is governed by section 7689, Burns the amounts bid, which were $28 on one 1908, which provides that the board may bridge and $30 on the other, and made the "let the contract to the lowest and best bid-awards as they thought best for the county, der, if his bid be reasonable, and may en- with no other object in view; that they did ter into a written contract with him. But not consider the A. E. & W. Company the the board may reject all bids and readver- best bidder, nor their bid equal to the other tise for other bids."

bids; and that they had never had any However, in our opinion, under either stat- trouble with the other bidders-"they go out ute the result would be the same, and we and know just what to do, and go and do it." may, for the purpose only of deciding this In view of the discretion allowed the comappeal, grant appellant's contention that sec-missioners by the statute and the decisions tion 5896 controls. construing it, and upon reviewing the eviUnder statutes providing that contracts dence submitted, we cannot say that the shall be let to the lowest responsible bidder, court erred in deciding that the board had the board is given some discretion, as well not arbitrarily rejected the bid of the A. E. as under statutes which provide that con- & W. Company, and had not abused its distracts may be let to the lowest and best bid-cretion.

der. Boseker v. Wabash County, 88 Ind. [3] The affidavit of Grammer & Smith was 267; Ness v. Board of Com'rs Marshall Coun- a verified statement, made upon the form ty (Sup. 1912) 98 N. E. 1002. The statute under consideration further gives the board power to reject any and all bids.

[2] The evidence, perhaps, shows that the A. E. & W. Construction Company had filed a sufficient bond, and that it had built satis

furnished by the state board of accounts, containing the matters prescribed by the statute (section 5897, Burns 1908) and concluding as follows:

"Affiant declares that he has carefully read the provisions of the above and foregoing

Grammer and Smith. [Address] Evansville, | showing that there was any natural water Indiana.

"Subscribed and sworn to before me this 30th day of June, 1910. Margaret Sihler, Notary Public. [Notary's Seal.]

"Commission expires September 15, 1911." Appellant claims that this affidavit was not signed by any one; that a signature in the firm name is not sufficient signature; and that the statute required that Grammer and Smith should each sign and be sworn to the affidavit.

We believe that it appears from the record that the affidavit was signed by Grammer and Smith. The notary's jurat is a certification that the affidavit was signed and sworn to by the persons who purported to sign it,

and no evidence was introduced to contradict the jurat. This court cannot say that both Grammer and Smith did not sign the affidavit.

It is immaterial that their Christian names are not given. Grammer could have signed the affidavit and the bid and the contract, and in fact, any contract, by the one

name "Grammer." Smith could likewise have signed by the name "Smith." Such signature would have been valid and binding in law. The notary has certified that they did sign and were sworn. If such was not the case, appellant should have proved it by evidence. See Randall v. Baker, 20 N. H. 335. In the case of Gaddis v. Durashy, 13 N. J. Law, 324, cited by appellant, the parties admitted that only one of them signed and swore to the affidavit, thus contradicting the notary's certificate. The reasoning of the opinion in that case supports our holding. We do not approve the holding in the case of Norman v. Horn, 36 Mo. App. 419, cited by appellant. So far as it appears in evidence here, the affidavit of Grammer & Smith was signed in conformity with the statutory requirements.

course.

Water Courses, Cent. Dig. § 122; Dec. Dig. § [Ed. Note.-For other cases, see Waters and 112.*]

2. WATERS AND WATER COURSES (§ 38*) "NATURAL WATER COURSE."

A "natural water course" is a channel cut through the turf by the erosion of running wawhich water flows and has flowed immemorialter with well-defined banks and bottom through ly, not necessarily all the time, but ordinarily and permanently for substantial periods of each

Surface waters not following a designated and known channel are not governed by the rules relating to water courses.

Water Courses, Cent. Dig. § 127; Dec. Dig. § [Ed. Note.-For other cases, see Waters and 116.*]

4. WATERS AND WATER COURSES (§ 38*)

"NATURAL WATER COURSE."

The same line of discharge of water in times of heavy rains or melting snows from a face waters does not constitute a “natural wapond created by the natural assembling of surter course,' nor does an artificial channel constructed solely for the purpose of expediting surface drainage which is employed but occaface water caused by rains or melting snows. sionally and temporarily in carrying away sur

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 30; Dec. Dig. § 38.*]

5. WATERS AND WATER COURSES (§ 118*) SURFACE WATERS-OBSTRUCTIONS.

from his premises by dams, embankments, or Every proprietor may keep surface waters other available means constructed or used on his own property.

[Ed. Note.-For_other_cases, see Waters and Water Courses, Cent. Dig. §§ 128-130; Dec. Dig. § 118.*]

No error appearing, the judgment is af- 6. WATERS AND WATER COURSES (§ 38*) firmed.

GASKILL v. BARNETT. (No. 7,867.)

WHAT CONSTITUTES WATER COURSE.

A natural water course, which is lost in a swamp or lake and emerges therefrom at a lower level in a well-defined channel, does not, by passing through such swamp or lake, cease to be a water course.

[Ed. Note.-For other cases, see Waters and

(Appellate Court of Indiana, Division No. 1. Water Courses, Cent. Dig. § 30; Dec. Dig. §

March 6, 1913.)

On the farm adjoining that of plaintiff was a spring from which water ran in a depression with well-defined banks to a spring on plaintiff's land. Between this second spring and defendant's line the water from such springs and surface water spread out and made a pond inclosed by an elevation of ground forming a basin, partly on plaintiff's land and partly on that of defendant. The water from the springs was insufficient without the surface water to make a flowing stream to the basin. Defendant's grantor constructed a ditch from the line between his land and plaintiff's to a natural channel on his land. Prior to that time, the water stood in the pond until it evaporated. Held, that defendant had a right to obstruct such ditch by means of a dam; the facts not

38.*]

Where one of two adjoining owners of land on which was a basin in which surface waters collected and stood until it evaporated constructed a ditch therefrom to a natural channel, the adjoining owner did not thereby acquire any right to have the water from such pond flow through such artificial channel, but, at most, had only a permissive use of such channel.

Water Courses, Cent. Dig. § 122; Dec. Dig. § [Ed. Note.-For other cases, see Waters and 112.*]

8. WATERS AND WATER COURSES (8 137*) PRESCRIPTION-ESSENTIALS.

To acquire a prescriptive right to an easement in the absence of an agreement or grant, the use thereof must be adverse under a claim

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

of right continuous and uninterrupted for 20 would extend westward and overflow a high

Appeal from Circuit Court, Greene Coun- to a bayou, and from thence the water conty; Charles E. Henderson, Judge.