Love et al. v. Hoss. and not of kin to any of the parties, as the statute requires, and as this court has held to be necessary. 3 Ind. Stat., p. 228, sec. 1; Combs v. Etter, 49 Ind. 535. We think, however, that the court erred in rendering judgment against the appellant upon the state of the pleadings, while the issues formed by a general denial and an answer of payment to the second paragraph of the complaint remained untried. For this error the judgment must be reversed. Should the appellant contemplate further proceedings in this case, the parties are referred to a subsequent statute upon the subject, 1 R. S. 1876, p. 428, and to the case of McKinsey v. Bowman, 58 Ind. 88. The judgment is reversed, at the costs of the appellees, and the cause remanded for further proceedings. LOVE ET AL. v. Hoss. PRINCIPAL AND AGENT.-Real Estate Broker.-Sale by Broker for a Sum Concealed from Principal.-Fraud.—Demand.—A real estate broker, who, for a specified compensation, agrees with the owner of a tract of land to negotiate a sale of the same for a particular price, is liable to his principal, without demand, for any excess received by him in making sale of such tract and concealed by him from his principal. From the Marion Superior Court. J. T. Dye and A. C. Harris, for appellants. J. W. Gordon, R. N. Lamb and S. M. Shepard, for appellee. PERKINS, J.-Hoss, the appellee, sued the appellants upon a complaint in two paragraphs : 1. For money had and received, etc.; 2. The second charged, in substance, that the appellants Love et al. v. Hoss. were real estate brokers, and that appellee employed them as such to negotiate for him the sale of a certain tract of land; that appellants sold the land to Morton and Brown at three hundred and twenty-five dollars per acre, aggregating the sum of thirteen thousand dollars, and reported to him the sale as made at three hundred dollars per acre, aggregating twelve thousand dollars, and fraudulently concealed the fact that the sale had been made for thirteen thousand dollars, and withheld and appropriated to their own use one thousand dollars of the proceeds of sale. Answer, first, denial; second, payment. Reply in denial to second answer. Trial by jury, verdict and judgment thereon for the plaintiff. The appellants' counsel make two points in their brief, namely: first, that the verdict and judgment are not sustained by sufficient evidence; second, that a demand was necessary before suit. These facts are undisputed, viz.: That Nelson Hoss placed in the hands of appellants, real estate agents, a certain eighty-acre tract of land for sale, authorizing them to sell the same for three hundred dollars per acre; that appellants made a written contract with one Brush to take the eighty acres at three hundred dollars per acre; that afterward said Brush expressed a desire "to carry but half of said tract, whereupon appellants sold one-half of said tract to Morton and Brown for three hundred and twenty-five dollars per acre, and accounted to and settled. with Hoss for the eighty acres at three hundred dollars per acre, and received their compensation for selling, without disclosing to him the fact that one-half of said eightyacre tract was sold at three hundred and twenty-five dollars per acre; that, by the procurement of Love, Owen and Taylor, the half of said tract was deeded by Hoss to Morton and Brown; and the real question in the case is, as Jarvis v. Shelby Township, of Jefferson County. whose land did appellants and Brush regard said half of said tract sold to Morton and Brown? as whose property did appellants sell the half of said tract to them? was it sold to them for Brush, and as his land? or for Hess, and as his land? with which of said parties were appellants to account for the proceeds of the sale? If the half was sold for Hoss, and as his land, the verdict and judgment below were right, and no demand was necessary, as the agents had concealed the facts from Hoss, had settled with, and paid him, at the rate of three hundred dollars an acre, as they claimed, in full, without disclosing the facts in the case, had, in short, converted the extra thousand dollars of money belonging to him (on the assumption upon which we are now proceeding) to their Under such circumstances, no demand was necessary. Ferguson v. Dunn's Adm'r, 28 Ind. 58, and cases cited. own use. These questions were all for the jury. The evidence was conflicting. Parts of it tended to justify the verdict. In such cases, this court does not interfere with the finding of the jury. See, especially, Deam v. Dawson, ante, p. 22. The judgment is affirmed, with costs, to be entered as of the date of the submission of the cause. JARVIS v. SHELBY TOWNSHIP, OF JEFFERSON COUNTY. TOWNSHIP.-Contract Concerning School Property.—A civil township cat. enter into no valid contract concerning the property of the school town ship. SAME.-Construing Contract.—Parties.—Such a contract might, in an action thereon by the school township, be construed as having been made by the plaintiff; but an action thereon by the civil township can not be main tained. VOL. LXII.-17 Jarvis v. Shelby Township, of Jefferson County. From the Jefferson Circuit Court. C. A. Korbly, for appellee. WORDEN, J.-This was an action by Shelby Township, of Jefferson county, against the appellant, Joseph R. Jarvis, upon an agreement entered into between the parties in relation to the building of a school-house. A demurrer to the complaint for want of sufficient facts was filed and overruled, and exception taken. Such further proceedings were had as that judgment was rendered for the plaintiff. The ruling on the demurrer, among other things, is assigned for error. The civil township, which was the plaintiff in the action, had no power to enter into contracts for the erection of school-houses. The contract in this case might be construed to be a contract between the defendant and the school township, though executed in the name of the civil township, as was held in the case of Sheffield School Township v. Andress, 56 Ind. 157. But still the school, and not the civil, township would have to sue upon it for its breach by Jarvis. The demurrer to the complaint want of sufficient facts was, therefore, well taken, and should have been sustained. We have had, concurrently with this case, the questions arising herein under consideration in the case of Utica Township v. Miller, ante, p. 230, in which the questions are examined more fully, and reference may be had to that case and the authorities therein cited, for a full statement of the ground of the decision herein. It may be observed that section 145 of the school act, 1 R. S. 1876, p. 810, provides, that "Suits brought on behalf of the school of any township, town or city, shall be Branham et al. v. Johnson. brought in the name of the State of Indiana, for the use of such township, town or city." We need not decide what construction should be placed upon this section, or whether it in any way modifies section 4 of the same act, 1 R. S. 1876, p. 780, which gives the school corporations the right to sue and be sued in their own. names. If section 145 is to be deemed applicable to such action as the present, still that does not help the plaintiff, as the action was not brought in the name of the State, for the use of the school township. The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion. BRANHAM ET AL. v. JOHNSON. JURISDICTION.-Appeal.-Death of Party.-Executor.-Practice.—Supreme Court.-Superior Court.--The defendants in an action in the Marion Superior Court appealed to general term, from the judgment rendered against them at special term. After the submission of the appeal, one of the defendants died. Subsequently, the judgment at special term was affirmed, whereupon the defendants excepted, and appealed to the Supreme Court. Held, that the superior court at general term, having obtained jurisdiction over the person of the deceased defendant, in his lifetime, had jurisdiction of the case, and had the power to decide it after his death. Held, also, that the appeal to the Supreme Court, having been taken after the death of the deceased defendant, as to him, is a nullity. Held, also, that the executor of the deceased defendant can come into the Supreme Court, after the appeal has been perfected as to the other defend ants, and be admitted as a party to the appeal. CONTRACT.-Acceptance of Work.—Quantum Meruit.-Implied Promise to Pay. Where one has entered into a special contract to perform work for another, and has done work but not in the time or manner stipulated in the agreement, which is accepted or used by the other party, the latter is answerable to the amount whereby he is benefited, upon an implied |