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Bevier el al. v. Kahn.

with process thereon, as well as the plaintiff therein, must be regarded as in court for all the purposes of the action, whether the matter in controversy arise upon the original complaint, or upon the answer or cross-complaint." The Fame general doctrine is maintained in Lewis v. Bortsfield, 75. Ind. 390, No/singer v. Reynolds, 52 Ind. 218, 224, and Franklin Life Ins. Co. v. Sefton, 53 Ind. 380, 385. In Joyce v. Whitney, 57 Ind. 550, there is a statement that, "In so far as the cases of Pattison v. Vaughan, 40 Ind. 253, and Fentriss v. State, ex rel., etc., 44 Ind. 271, appear to be in conflict with this decision, they are overruled ;" but it will be found on investigation that the authority of Pattison v. Vaughan, supra, so far as it bears upon the question here presented, is not impaired. There is, indeed, no real conflict between the decision in Pattison v. Vaughan, supra, and that in Joyce v. Whitney, supra, although there may be as to some of the language employed in expressing the opinions.

In the case before us, the complaint showed that the two notes were secured by the same mortgage; that they had been transferred to different parties; that there was a question as to the priority; that the parties were brought into court to settle all such questions; and this was enough to fairly and reasonably apprise the appellants that they were called into a case which could not be determined without the filing of a cross-complaint. It was, therefore, their duty to take notice, without further process, of all the proceedings in the cause.

Judgment affirmed.

Filed May 28, 1887.

The Pennsylvania Company t>. Nations.

No. 12,770.

The Pennsylvania Company V. Nations.

Evidekce.Declarations of Agent.—Declarations of a time-keeper, within the line of his employment, are admissible in evidence against his principal.

Newtriai*Newly Discovered Evidence.Cumulative.Impeaching.—A new trial will not be granted on the ground of newly discovered evidence where the latter is merely cumulative, or tends to impeach evidence previously given, nor where a sufficient excuse is not 6hown for failiog to produce the evidence at the first trial.

From the Owen Circuit Court.

8. 0. Pickens, for appellant.

/. C. Robinson and I. H. Foioler, for appellee.

Mitchell, J.—Calvin F. Nations, George W. and Isaac A. Bledsoe sued the Pennsylvania Company to recover upon an alleged contract for the use of two portable steam-engines and for the services of two engineers. The plaintiffs claimed that the company engaged the engines and engineers in its service at the agreeM price of ten dollars per day, and that the engines and engineers had served it for the period of forty-five days, for which service a .specified sum remained due to Nations individually, and another sum to Bledsoe & Bledsoe. Nations recovered sixty dollars. As to the Bledsoes, the finding was for the company.

There was a dispute as to the time the engines were employed. The company claimed that it contracted with the parties jointly, or, rather, that it had contracted with Bledsoe for both engines, and that it had paid him a gross sum sufficient to liquidate its obligation under the contract.

What purports to be a bill of exceptions recites that one of the Bledsoes, while testifying as' a witness, was asked to state what a Mr. Yockey, the company's foreman and timekeeper, told him as to the number of days the plaintiffs' engines had been engaged in the company's service, and the amount duo them under the agreement. Over objection, the The Pennsylvania Company v. Nations.

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witness was permitted to answer that Yockey told him that the engines had been employed a given number of days, and that a given amount remained due as he understood the contract.

It is said that the company can not be bound by the declarations of its agent.

The bill of exceptions upon which the question is made is a mere recital by the court, in its own language, in narrative form, of what purports to be the substance of the questions and answers objected to, and the rulings thereon.

This method of presenting a question upon evidence is not approved. We are unable to ascertain from the bill how, or in what connection, or the circumstances under which, the conversation between Yockey and Bledsoe was had. For all that appears, Bledsoe may have been directed by the company to apply to its time-keeper to ascertain the time his engines had been employed, and the amount appearing to be due. If Yockey was the company's time-keeper, as we infer he was, appointed and authorized to keep the plaintiffs' time and the state of their accounts, it must be implied that he was authorized to give them information on that subject. That was in the line of his employment, and a communication from him to the plaintiffs, or either of them, upon that subject, while engaged about that business, was, in effect, a communication from the principal.

What the time-keeper said about his understanding of the contract may not have been competent. If that part of the conversation had been objected to separately, or if a separate motion had been made to strike that part of the answer out, the question might require further consideration. So much of the conversation as related to the time the engines had been employed, and what was said by the time-keeper concerning making out the time and pay-rolls, was not, so far as can be determined from the bill of exceptions, objectionable.

The Pennsylvania Company ». Nations.

Some other questions concerning the overruling of objections to the admission of evidence on the plaintiffs' behalf are discussed. We have considered these questions, and are of opinion that the court committed no error in the rulings complained of. The method in which the questions are presented in the bill of exceptions, already remarked upon, is such as not to require us to state or consider them more fully.

The only remaining question relates to the refusal of the court to grant a new trial on account of newly discovered evidence.

The evidence which was claimed to have been newly discovered consisted of a letter written by one of the Bledsoes to Mr. Spence, who negotiated the contract on behalf of the company with the plaintiffs. The letter was written pending the negotiations for the hiring, and the claim is that it strongly corroborates the testimony of Mr. Spence, which was to the effect that he contracted with the Bledsoes for two engines, and not that the Bledsoes should furnish one and Nations oue, as the plaintiffs below claimed the fact to be.

There are two sufficient reasons why the ruling of the court can not be disturbed. One is, the evidence, if admitted, would simply be cumulative upon a subject concerning which the plaintiffs testified one way and witnesses for the defendant testified the other. The letter might afford some circumstantial corroboration of the defendant's witnesses; it might also tend in some slight degree to impeach the evidence of the writer of the letter; but a new trial will not be granted where the newly discovered evidence is merely cumulative, or tends only to impeach evidence previously given. Marshall v. Mathers, 103 Ind. 458; DeHart v. Aper, 107 Ind. 460; Sutherlin v. State, 108 Ind. 389.

The other reason for approving the ruling of the court is, there is no sufficient excuse shown for not having produced the letter, or for not having made any effort to prove its contents, at the first trial. That the witness had forgotten, or did not suppose that he bad preserved, the letter until he accidentally Rowe, Trustee, v. Rand, Receiver.

discovered it after the trial, was no excuse for not having looked for it before.

Judgment affirmed, with costs.

Filed May 28, 1887.

No. 13,641.

Rowe, Trustee, V. Rand, Receiver.

Principal And Agent.Trustee.Style of Bank Account.—One who is put in possession of property by joint owners, with instructions to sell it upon the best available terms, at his discretion, is an agent, and not a trustee, and his character is not changed by styling himself "trustee," at the suggestion of one of his principals, a banking company, in making deposits with the latter of the proceeds of sales, to distinguish the account from another kept by him as agent.

Same.Joint Principals.Severance of Interests. Revocation of Agency.Banks.Mutual Release of Claims.—Where two banks, as principals, appoint an agent to take charge of a matter in which they are jointly interested, who deposits the joint funds in one of the banks, and a severance of the joint interest afterwards occurs, and in a compromise of differences each releases all claims against the other, the agency is thereby revoked, and a claim against the bank holding the deposit by the other principal for a share therein is discharged.

Same.Right of Agent to Maintain Action.—The right of an agent to bring an action in his own name in certain cases is subordinate to the rights of the principal, who may bring suit himself, and thus suspend or extinguish the right of the agent, unless in particular cases where the latter has a lien or some other vested right.

Release.Construction of.—Extrinsic Evidence.—To enable a court to construe a release from the stand-point occupied by the parties, extrinsic evidence is admissible to explain the circumstances under which it was executed, and the nature of the transaction to which it was designed to apply. The particular purpose for which it was executed ought to be kept in view, and where only general words are used they are to be construed most strongly against the party executing the release.

From the Marion Superior Court.

IT. J. Milligan, for appellant.

F. Winter and J. M. Winter*, for appellee.

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