The State, ex rel. Ruhlman, v. Ruhlman, Executrix, et al.

executor did not include such three notes in his inventory of the estate of his testator, because such notes do not appear in the inventory which was put in evidence. But it was fairly shown by the evidence in the record, that the money due on such notes was paid to the executor, after his appointment as such and before he filed his inventory of the testator's estate; and that he had included the money so collected in such inventory afterwards filed, and therein had charged himself, as such executor, with the amount of such money as so much money on hand, belonging to the estate of his testator. Our consideration of the entire evidence, as it appears in the record, has strongly impressed our minds with the opinion that this cause was fairly tried below upon the merits, and that a right conclusion was arrived at by the jury, in their verdict herein, which was approved by the court below. In such a case, as we have often decided, the verdict will not be disturbed here, for or on account of error in any of the instructions given by the court. Cassady v. Magher, 85 Ind. 228; Norris v. Casel, 90 Ind. 143; Ledford v. Ledford, 95 Ind. 283; Sanders v. Weelburg, 107 Ind. 266. So, also, our code provides that " where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below," as it appears to us in this case, the judgment shall not "be stayed or reversed, in whole or in part." Section 658, R. S. 1881.

We pass by the rulings complained of, in relation to the competency of witnesses and evidence, because, in the view we have taken of this case, these rulings, even if erroneous (and they were not in our opinion), would not and could not authorize the reversal of the judgment.

The court did not err, we think, in overruling the relator's motion for a new trial.

The judgment is affirmed, with costs.

Filed May 11, 1887.

Cincinnati, Indianapolis, St. Louis and Chicago Railway Co. v. McDade.

No. 12,882.

CINCINNATI, INDIANAPOLIS, ST. LOUIS AND CHICAGO

RAILWAY COMPANY v. MCDADE.

APPEAL.—Action Begun Before Justice of Peace.-Amount of Recovery.—Complaint.—Where, in an action instituted before a justice of the peace, the amount of the recovery both there and in the circuit court is fifty dollars, and there is no question of counter-claim or set-off, an appeal by the defendant to the Supreme Court will not lie, although the complaint demands judgment for more.

From the Newton Circuit Court.

D. E. Straight, U. Z. Wiley and S. F. Carter, for appellant. M. H. Walker, I. H. Phares and E. P. Hammond, for appellee.

ELLIOTT, C. J.-The appellee instituted this action before a justice of the peace and obtained judgment for fifty dollars. The appellant appealed from that judgment to the circuit court, and in that court the appellee recovered judgment for the same amount as that awarded by the justice of the peace. While the case was pending in the circuit court the appellee amended his complaint so as to claim judgment for sixty dollars. In this court a motion to dismiss the appeal is vigorously pressed.

This motion must prevail. It is not the amount demanded in the complaint which governs, but the amount of recovery, for where there is no counter-claim or set-off, and the plaintiff is satisfied with the amount awarded, that is all that is in controversy. This has been held in many cases. Painter v. Guirl, 71 Ind. 240; Sprinkle v. Toney, 73 Ind. 592; Parsley v. Eskew, 73 Ind. 558; Pennsylvania Co. v. Trimble, 75 Ind. 378; Louisville, etc., R. W. Co. v. Coyle, 85 Ind. 516; Winship v. Block, 96 Ind. 446.

Appeal dismissed.

Filed May 11, 1887.

111 24 116 373 122 212 123 146

The United States Mortgage Company v. Henderson et al.

No. 12,850.

THE UNITED STATES MORTGAGE COMPANY v. HENDER-
SON ET AL.

ATTACHMENT.-Abandonment of Proceeding.—Dismissal. — Judgment.—Supreme
Court.-Practice.-Where an attachment proceeding is instituted, as aux-
iliary to an action for the recovery of a debt, and a personal judgment
is taken, without an adjudication of the proceeding in attachment, the
latter will be deemed abandoned. The taking of the judgment is equiv-
alent to a dismissal of the attachment proceeding, and there being a full
appearance to the main action by the defendant, no available error can
be predicated upon a ruling relative to the auxiliary proceeding.
PLEADING.-Complaint.-Defect in Form.-If a complaint state a cause of
action, reciting the facts so as to enable a person of common understand-
ing to know what was intended, the judgment will not be reversed on
account of defects in the form of pleading.

PRINCIPAL AND AGENT.-Mortgage.-Contract.-Subrogation.-Where a con-
tract of agency provided that the agent was to loan money for the prin-
cipal upon mortgage security, and that the former should become per-
sonally liable to the latter for all instalments of interest on such money
loaned, which were not paid within ten days after they became due,
such agent, upon the payment of any such instalment of interest under
the contract, would be entitled to a remedy against the borrower for the
amount so paid, and to participate in the mortgage security to the extent
of such payment.
SAME.-Foreclosure.—Instalments of Interest.-Where a loan company, mort-
gagee, avails itself of a provision in the mortgage that upon a default
in the payment of an instalment of interest, the entire debt should be-
come due, and forecloses the mortgage, taking judgment for the whole
amount, principal and interest, it can not afterwards enforce a contract
with its agent who made the loan, which provided that the latter should
be liable to the principal for all instalments of interest on moneys
loaned by him as such agent, which were unpaid ten days after they
became due.

SAME. In such case the decree of foreclosure merged the entire contract
with the mortgagor, as well in respect to instalments of interest matured
as in respect to those not matured, in the judgment and decree, and
the agent would not, after such foreclosure, be liable under his contract
for any of such instalments.
SAME.-Loan Agent.—Attorney.-Liability of Principal for Additional Services
Rendered by Agent.-In a contract between principal and agent, that
the latter should make loans of money on bonds and mortgages and
collect money to become payable on such loans, a provision that the
former should not be liable for any charges, disbursements or commis-

The United States Mortgage Company v. Henderson et al.

sions to the agent for his services in such agency, does not relieve the principal from liability to the agent for services rendered by him at the former's request, in foreclosing mortgages and collecting moneys by legal proceedings, looking after repairs to and caring for property bought in by the principal upon foreclosure of its mortgages, for renting and collecting rents of such property, and looking after the payment of taxes, and keeping up insurance thereon, and other like services. ATTORNEY AND CLIENT.-Good Faith.-Diligence.- Violation of Instructions.— Ratification.-Compensation of Attorney.-Where an attorney, in good faith, and acting as he believes for the best interests of his client, exercising reasonable skill and diligence, takes steps in the foreclosure of a mortgage, and the appointment of a receiver for mortgaged property, in violation of instructions of his client, and the latter afterwards ratifies and accepts the benefits of such action, and adopts the receivership established, such attorney is entitled to a reasonable compensation for his services.

SAME.--In such case, if the attorney acted in bad faith, or if he had violated the instructions of his client, and the proceedings taken by him had not been ratified, he would be entitled to no compensation for the services so rendered. COMPROMISE.-Contract.-Consideration.-In order that a compromise may constitute a sufficient consideration for the enforcement of an executory contract, there must have been an actual bona fide claim, founded upon a colorable right, about which there was room for honest doubt and actual dispute.

From the Marion Superior Court.

T. A. Hendricks, C. Baker, O. B. Hord, A. W. Hendricks, A. Baker and E. Daniels, for appellant.

J. E. McDonald, J. M. Butler and A. L. Mason, for appellees.

MITCHELL, J.-This suit involved the settlement of accounts between the United States Mortgage Company and William Henderson. It appears from the record that the United States Mortgage Company is a corporation organized under the laws of the State of New York, for the purpose of loaning money on bonds and mortgages. In October, 1874, this corporation entered into a written contract with William Henderson and Alexander C. Jameson, whereby the latter were appointed its agents, for the purpose of making loans of money in the State of Indiana, and collecting

The United States Mortgage Company . Henderson et al.

moneys to become payable upon the loans thus made. Among other stipulations, the contract of agency provided that if the interest upon any loan, made by the agents therein appointed, should be unpaid, and in arrears for the period of ten days after the same should fall due and become payable, then, in every such case, the agents themselves should immediately pay the amount so in arrears to the company. The contract provided further, that the mortgage company should not be liable to the agents for any charges, disbursements or commissions for their services in connection with the agency, and that the agency might be terminated by the company at any time.

Sums aggregating about $450,000, in amount, were loaned by Messrs. Henderson & Jameson, during the years 1874, 1875 and 1876, under this contract. In 1878, the mortgage company, having some time before refused to furnish any more money to loan, Jameson withdrew from the business, and turned over and assigned his interest in the accounts to Henderson. After the termination of the relation of principal and agent, a disagreement arose as to the state of the accounts between the mortgage company and Henderson. The result was the institution of this suit by Mr. Henderson, on the 8th day of October, 1881, in the superior court of Marion county. He alleged in his complaint that the company was indebted to him in the sum of $14,424.68, with interest from the dates of the several amounts charged, as shown in the bill of particulars filed with his complaint. The bill of particulars exhibited with the complaint stated an itemized account against the "United States Mortgage Company to Wm. Henderson, debtor." The bill stated thirteen separate items, in different amounts, of which the following is an example:

"1878. To foreclosing mortgage v. J. M. Hume, $600.” It also stated two items in different amounts, one of which is as follows:

"1881. To general attention to your business from March