4. RAILROADS (§ 462*)-DAMAGE FROM FIRE to appellee's damages in the sum of $700. CONTRIBUTORY NEGLIGENCE OMISSIONS The fifth paragraph differs from the others AGGRAVATING DAMAGES.

--

Any omission of effort by plaintiff to put out fire, after he discovered it on his land, is mere matter of defense in aggravation of damages, and does not affect the question of his being guilty of negligence contributing to its cause, or to its escape to his land from defendant's premises.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1683; Dec. Dig. § 462.*]

5. TRIAL (§ 255*) - INSTRUCTIONS - FAILURE TO REQUEST.

Failure to tender any instruction when the court state that it has not instructed on contributory negligence because doubtful whether there is any question thereof in the case, but will if parties desire strongly tends to show defendant acquiesced in such view. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 627-641; Dec. Dig. § 255.*]

Appeal from Superior Court, Porter County; Harry B. Tuthill, Judge.

Action by Stephen P. Hodsden against the Grand Trunk Western Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

G. W. Kretzinger, of Chicago, Ill., and Grant Crumpacker and William Daly, both of Valparaiso, for appellant. D. E. Kelly and Walter J. Fabing, both of Valparaiso, for appellee.

in that it charges that appellant was guilty of negligence in allowing its engine to become and remain out of repair, by reason whereof it emitted large coals of fire and sparks, which were cast on appellee's lands, causing the same to ignite and burn. Appellant has assigned as error in this court the overruling of its demurrer to each separate paragraph of appellee's amended complaint; and, second, that the court erred in overruling appellant's motion for new trial.

[1] The first error is not discussed or referred to under appellant's points and authorities or in his argument and is therefore waived.

[2] The motion for new trial contains several grounds, but only those relating to the giving of instructions 2 and 6, respectively, tain the verdict, are presented or argued. and the sufficiency of the evidence to susInstruction No. 2 is as follows: "The damage, if plaintiff recovered any in this case, is the difference between the commercial value of the land immediately before the fire and what it was worth afterwards. And the commercial value of the land is the fair cash market value of the land in the community. So in case you find for the plaintiff, you will first find the value of the land before the fire, then find out the fair cash market value of the land after the fire, and the difference, of course, will be your verdict, or the damages in this case."

HOTTEL, J. Appellee filed in the court below a complaint in five paragraphs, in each of which he sought to recover damages on account of injury to his lands resulting from a fire, alleged to have been caused by appelAppellant introduced several witnesses lant's negligence. A demurrer to each of who testified, in effect, that they had owned these paragraphs was overruled. A trial by or farmed marsh land of the character of jury resulted in a verdict for appellee in the that owned by appellee, which is alleged to sum of $625. Appellant filed a motion for have been burned, and had farmed, or had new trial, which was overruled, and there-seen such land farmed, after it was burned, upon judgment was rendered on the verdict and that it produced better crops after it for appellee. For the purposes of the ques- had been burned than before; that the burntions presented by the appeal it will be suffi- ing of such land benefited it. It is contend cient to indicate, in a general way, the scope ed by appellant that such instruction authorand theory of the several paragraphs of com-ized the jury to assess as damages whatever plaint. They all, except the fifth paragraph, amount they found represented the differcharge in substance that appellant is a rail-ence in value of the land before and after it way corporation and operates a line of rail- had been fired, even though such difference road through Porter county; that appellee in value represented a benefit rather than owns a tract of real estate along said rail- damages. way and during the fall of 1908 appellant carelessly and negligently suffered dry grass and weeds and combustible matter to grow and accumulate and to be and remain on its right of way, and carelessly and negligently set fire to such combustible matter, and carelessly and negligently permitted said fire to escape to the appellee's said lands; that appellee's lands were muck lands, the soil of which consisted largely of decomposed vege-assessment of any sum as damages unless table matter, and when dry is susceptible to being burned; that by reason of said fire, said lands were ignited and the vegetation thereon burned, and the lands consumed to a depth varying from six inches to two feet,

The instruction authorized such assessment of damages in case only that the jury should find for the appellee. Other instructions told the jury that to entitle appellee to recover he "must prove the material allegations of his complaint by a fair preponderance of the evidence," so that the instruction complained of, when read in connection with the other instructions, did not authorize the

damages were proven. While its wording may be open to some criticism, we feel sure that its meaning could not have been misunderstood by the jury, and that its giving furnishes no ground for reversible error.

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

[3] The sixth instruction objected to is as follows:

"The two forms of verdict which I will submit to you, one of which reads, 'We, the jury, find for the plaintiff and assess his damages in the sum of blank dollars,' you will sign by your foreman, filling in the amount of recovery in case, of course, you find for the plaintiff. The other form of verdict, 'We, the jury, find for the defendant,' you will sign in case you find for the defend

ant.

on appellant's right of way, and where he found a "scoop full of cinders which seemed to be fresh." The only evidence on the subject of the origin of the fire was such as tended to show that it was started by cinders from one of appellant's locomotives. But one inference could arise from such evidence affecting the questions of appellee's contributory negligence, viz., that his negligence in no wise contributed to the origin of the fire. The evidence as to the character of the wind and weather and the rapidity with which the fire spread and the time of

"I haven't instructed regarding the matter of contributory negligence. I will do so, how-appellee's arrival at the place of the fire ever, if parties desire. I have been somewhat doubtful whether there is any question of contributory negligence in the case, so I haven't instructed regarding it. As I said, I think of nothing else that is necessary for the court to instruct the jury upon, and so you may retire."

Objections are urged to the closing paragraph of this instruction. This seems to have been a remark or statement made at the close of the instruction, and directed and intended for counsel in the case, rather than as a guide to the jury in its deliberations on its verdict, but the record brings it to this court as an instruction, and hence it must be so treated.

made it equally impossible for the jury to have drawn any inference as to appellee's being guilty of contributory negligence in permitting the fire to escape onto his lands, other than that he was free from such negligence.

3 L. R. A. 434, 10 Am. St. Rep. 60; Bedford, etc., R. Co. v. Rainbolt, 99 Ind. 551; Terre Haute, etc., Co. v. Sheeks, 155 Ind. 98, 56 N. E. 434.

Where the evidence is not disputed, and where but one inference is deducible therefrom, it is not error for the court to assume as proven the fact as shown thereby. L. E., etc., Co. v. Utz, Adm'r, 133 Ind. 265, 270, 271, 32 N. E. 881; Town of Sellersburg v. Ford, 39 Ind. App. 94, 99, 100, 79 N. E. 220; Baltimore, etc., Co. v. Keiser, 94 N. E. 330,

Appellant has not directed our attention to any affirmative evidence tending to show contributory negligence on appellee's part, and in view of the evidence above indicated, and the necessary inference to be drawn therefrom, we are convinced that no reversible error resulted from the giving of the instruction complained of. We are supported in this conclusion by the following authorities: Louisville, etc., R. Co. v. Miller, 141 It is true, as appellant contends, that in Ind. 533-546, 37 N. E. 343; Louisville, etc., cases of this character the burden is on ap-R. Co. v. Snyder, 117 Ind. 435, 20 N. E. 284, pellant to allege and prove his freedom from contributory negligence. Wabash Ry. Co. v. Johnson, 96 Ind. 40; Louisville, etc., Co. v. Porter, 16 Ind. App. 266, 44 N. E. 1112; Wabash, etc., Co. v. Miller, 18 Ind. App. 549, 48 N. E. 663; Cleveland, etc., Co. v. Hadley, 12 Ind. App. 516, 40 N. E. 760; Tien v. Louisville, etc., Co., 15 Ind. App. 304, 44 N. E. 45. We do not understand that the court by the instruction complained of intended to express any doubt as to such rule being applicable in this kind of a case. On the contrary, the court in another instruction expressly told the jury that the burden was on [4] The most that the evidence can be said appellee to prove the material allegations of to show, or fail to show, is that it is not his complaint. In each of the five para-shown what efforts the appellee made to put graphs, appellee alleged that all of his injuries complained of were caused without any fault or negligence on his part. It is apparent from the record that neither appellee nor the court had any doubt but that the burden was on appellee to show that he was free from any fault or negligence contributing to the injury sued for. An examination of the record convinces us that the statement complained of in the instruction was induced by the evidence. This evidence shows that a fire was started on appellant's right of way by cinders from one of its locomotives. This fire was first seen about noon. According to appellee's statement there was a wind blowing 38 miles an hour. Appellee got to the fire about 3 o'clock, and after it had spread over his land and set fire to all of it. He then traced the fire back to where he thought it had its origin

335.

out the fire after he discovered it. If appellant was guilty of any act of omission or commission that increased his damage, this was a matter of defense in aggravation of damages, and did not affect the question of his being guilty of negligence contributing to the cause of the fire or its escape onto his land. Terre Haute, etc., Co. v. Sheeks, supra, 155 Ind. 98, 99, 56 N. E. 434; City of Goshen v. England, 119 Ind. 368, 21 N. E. 977, 5 L. R. A. 253.

[5] It appears from the record that the only instructions given in the case were those given by the court on its own motion. None were tendered or asked by appellant. The instruction complained of was an invitation to both appellant and appellee to either tender or request the court to give an instruction on the subject of contributory negligence, and expressed a willingness on the

John W. Ewing, of New Albany, William H. Roose, of Louisville, Ky., and Dennis F. Seacot, of Evansville, for appellants. Oscar C. Minor, of Cannelton, for appellee.

part of the court to give such instruction if either party so desired. Appellant's failure to ask or tender such instruction, when its attention was directed thereto by the court, strongly tends to show that it then acquiesced in the view expressed by the court. We think it affirmatively appears from the record that appellant was not prejudiced by the instruction complained of, and hence no reversible error resulted from its being given. Lastly, it is insisted that the evidence fails to show appellee free from contributory negligence. What we have said in our dis-up, Illinois, 667.00, six hundred sixty-seven

cussion of instruction 6 renders unnecessary a discussion of this ground of the motion. Judgment affirmed.

(55 Ind. App. 172)

BOMBOLASKI et al. v. FIRST NAT.
BANK OF NEWTON, ILL.
(No. 7,993.)1

(Appellate Court of Indiana. May 16, 1913.)
1. CONTRACTS (§ 348*)-EXECUTION-PLACE-
PRESUMPTIONS.

Where a suit is brought in Indiana on a contract which does not disclose the place of execution on its face, it will be presumed to have been executed in Indiana.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. $$ 1095, 1754-1759, 1762-1780; Dec. Dig. § 348.*]

2. BILLS AND NOTES (§ 145*)-NEGOTIABILITY WHAT LAW GOVERNS CONFLICT OF LAWS.

Where a note, executed in Indiana and nonnegotiable in that state because not payable at a bank in Indiana, was payable in Illinois and negotiable under the laws of that state, the negotiability of the note, as affecting liability, should be determined by the law of Illinois, and therefore was not subject to equities between the original parties as against a bona fide holder for value.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 362; Dec. Dig. § 145.*] 3. BILLS AND NOTES (§ 368*) -'DELIVERY NEGLIGENCE OF MAKERS.

Where a note given for the price of a stallion was not to be delivered until nine persons buying shares in the horse had signed it, but the payees were permitted to have possession of the note before it had been signed by all of the makers, and were thus enabled, through the makers' negligence, to transfer it to a bona fide purchaser for value, when it was signed by only six of the shareholders, such signers were not entitled to plead want of effective delivery, under the rule that such defense can only be urged against a bona fide holder, where the note got into circulation without the negligence of the defendants.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 949, 950; Dec. Dig. 36S.*]

Adams, J., dissenting.

LAIRY, J. Appellee sued appellants on a note and recovered. The note sued on was in the words and figures following: "$667.00 Siberia, Ind., Nov. 16, 1906. On or before September 1st, 1908, we or either of us promise to pay to McCabe and Lindsey or bearer at the First National Bank of Green

dollars for value received and attorney's fees, with interest at the rate of 6% per annum, annually from date until paid without any relief from valuation or appraisement laws. [Signed] Felix Linetti, William Seiler, Mayes O. Cummins, John Bombolaski, George Seiler, W. E. Wells." The complaint counts upon the note, and alleges that the plaintiff was a banking corporation located and doing business in the town of Newton, Ill. Facts are also alleged showing that the bank acquired title to the note in suit by indorsement in writing under such circumstances as would make it a bona fide holder if the note is negotiable as an inland bill of exchange. A statute of the state of Illiniois on the sub

ject of negotiable instruments is pleaded as a part of the complaint. If the note in suit is to be construed in accordance with this statute as interpreted and applied by the Supreme Court of that state, it is a negotiable note; but if it is to be construed in accordance with the statute of Indiana on the subject, it is not negotiable, for the reason that it is not payable at a bank within the state. Burns' 1908, § 9076; Ray v. Baker, 165 Ind. 74, 74 N. E. 619; Midland Steel Co. v. Citizens' Nat. Bank, 34 Ind. App. 107, 72 N. E. 290. By certain paragraphs of answer, to which demurrers were sustained, the defendant pleaded a defense against the payees of the note. These answers are not models

of pleading, and it might be difficult to determine from their averments whether they proceed upon the theory of fraud, or upon the theory of a warranty and its breach; but it is practically conceded by appellee that they state facts sufficient to constitute a cause of defense to the note if it is not a negotiable instrument. By sustaining the demurrers to these paragraphs of answer the trial court held that the note in suit was negotiable. We are thus confronted with a conflict of laws, and are required to deter$mine whether the character and effect of this note as to its negotiable qualities depend upon the law of the state of Indiana, where

Appeal from Circuit Court, Perry County; it was executed, or whether they depend upon William Ridley, Judge.

Action by the First National Bank of Newton, Ill., against John Bombolaski and others. Judgment for plaintiff, and defendants appeal. Affirmed.

the laws of the state of Illinois, where the note by its terms was made payable.

[1] Where suit is brought in this state upon a contract which does not disclose upon its face the place of its execution, it will be

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Rehearing denied, 103 N. E. 422.

presumed that it was executed in this state. ] state construing that statute, notes such as Rose v. President, etc., Bank, 15 Ind. 292; Baltimore, etc., R. Co. v.. Scholes, 14 Ind. App. 524, 43 N. E. 156, 56 Am. St. Rep. 307. [2] The note in suit is dated at Siberia, Ind., and suit is brought to enforce it in this state, and the presumption will be indulged that it was executed in Indiana.

To sustain the ruling of the trial court appellee asserts the law to be that where a note is executed in one state and by its terms is made payable in another, the question of its negotiability is to be determined by the law of the state in which it is payable, and not by that of the state in which it was executed. To sustain his position he cites a number of Indiana cases bearing upon the question, but none of them are exactly in point. Fordyce v. Nelson, 91 Ind. 447; Patterson v. Carrell, 60 Ind. 128; Midland Steel Co. v. City Nat. Bank, 26 Ind. App. 71, 59 N. E. 211; Garrigue v. Kellar, 164 Ind. 676, 74 N. E. 523, 69 L. R. A. 870, 108 Am. St. Rep. 324.

In the opinion of the court in the case first cited language is used which apparently is decisive of the question, but an examination of the facts of the case will show that the question was not presented for decision. The note sued on in that case was executed in the state of Missouri, and was also payable in that state, and it is quite clear that the law of Missouri would control the question of its negotiability, in a suit to enforce it in another state, where the statutes of Missouri were pleaded.

The second case cited is similar to the first in that the note in suit was executed in the state of Ohio and was payable in that state. It was held that as no statute of Ohio was pleaded, it would be presumed that the common law prevailed in that state, and that the note sued on was not negotiable as an inland bill of exchange for the reason that such notes were not negotiable by the law merchant, which formed a part of the common law, but are only made so by statute.

the one sued on had been held to be negoti able in that state. Facts were also averred showing that the bank was a bona fide holder of the note. The Appellate Court held that the reply was a departure from the theory of the complaint, and that a demurrer thereto should have been sustained for that reason. The court did not decide whether or not the facts stated in the reply were sufficient to show that the note was a negotiable instrument.

An examination of the facts presented by the case of Garrigue v. Kellar, supra, shows that the note in suit was executed in the state of Illinois, and was by its terms payable at a bank in Indiana. Under the statute of Illinois a married woman may by contract become liable as surety, but in Indiana a married woman is prohibited by statute from entering into any contract of suretyship. An action was brought to enforce the note in this state, and Mrs. Garrigue answered, setting up her coverture and her suretyship. As a reply to this answer the statute of Illinois was pleaded, and it was further averred that the note was executed and delivered in that state for money there loaned. It was held that the question of her liability on the note as surety was controlled by the law of the state where it was executed, and not by that of the state wherein it was payable. The question for decision in this case depended upon the capacity of one of the parties to bind herself as a surety. Questions pertaining to the formal validity of a contract or the capacity of the parties are always determined by the lex loci contractus. For the reason stated this case is not decisive of the question here presented.

In the case of Ray v. Baker, 165 Ind. 74, 74 N. E. 619, the note sued on was dated at Lebanon, Ind., and was payable at the Citizens' Bank of Homer, Ill. The statute of Illinois was not pleaded, and the court would presume that the common law was in force in that state. The court held that the note was not negotiable under the laws of Indiana, but the question as to whether or not it was negotiable as an Illinois contract was not presented or decided. The case of Nix v. State Bank, 13 Ind. 521, may be distinguished in the same manner.

The facts in the third case are similar to the facts in the case at bar, but the question here presented was not there decided. The note sued on in that case was executed in Indiana, and was made payable at a bank in Pennsylvania, and was assigned to a bank at Kokomo, Ind. The bank sued the maker, but The question of negotiability or nonnegodid not allege in its complaint facts showing tiability of a note is one of construction or that a note of the character of the one in suit interpretation. It is determined by the form was negotiable under the statutes of Penn- and conditions of the instrument, when consylvania. The statutes of that state were sidered in the light of the law subject to not pleaded as a part of the complaint, and which it is made. The quality and characno facts were alleged therein showing that teristics of a note as to its negotiability, or the bank was a bona fide holder of the note. the want of it, attach at the time and at The defendant by way of answer set up a the place such note has its legal inception. defense against the payee of the note. As a When its obligations attach and it comes inreply to this answer the bank pleaded a to legal being, it is either negotiable or nonstatute of Pennsylvania on the subject of negotiable, and the quality thus impressed commercial paper, and alleged that, under the decisions of the Supreme Court of that

upon it at its inception will not be altered, either by lapse of time or change of place.

If a note is nonnegotiable in the state or | 12 N. H. 49; Strawberry Point Bank v. Lee, country where it has its legal origin, it can- 117 Mich. 122, 75 N. W. 444. not become negotiable because at a subsequent time it is carried or transmitted to another jurisdiction. Unquestionably the note in suit had its legal inception in Indiana, and if it is to be construed by the lex loci contractus, it was nonnegotiable in this state, and it was therefore nonnegotiable in Illinois or any other state. It was payable, however, in the state of Illinois, and if the lex loci solutionis is to control its interpretation, it was negotiable in Indiana at the time of its inception, and it was therefore negotiable in Illinois or in any other state.

If it is executed in one state, and by its express terms is to be performed in another, the first presumption is overcome. In such a case, in the absence of facts and circumstances manifesting a contrary intention, the parties will be presumed to have intended that their contract should be governed by the law of the place of performance. Wharton states the proposition thus: "When there is a conflict between the law of the place where the contract was made and that of the place where it is payable, the great weight of authority accords with the posiWhere a contract is made in one state, and tion taken in ante sections 450, 451, and faby its terms provides for its performance in vors the law of the place where the note or another, and the laws of the two states dif- bill is payable, rather than that of the place fer, no fixed rule can be announced by which where the maker's or acceptor's contract was it can be determined in every case which made. This is true, not only as to the ultilaw shall apply. Where the parties have mate question of liability, but also as to the manifested an intention in good faith to preliminary question of negotiability as afmake their contract subject to the laws of fecting the question of liability. one or the other of such states, such inten- Wharton on Conflict of Laws, § 451d; Brabtion will be given effect in construing the ston v. Gibson, 9 How. 263, 13 L. Ed. 131; Calcontract and determining the reciprocal | houn County v. Galbraith, 99 U. S. 214, 25 rights and duties of the parties thereunder; L. Ed. 410; Holmes v. Bank of Ft. Gaines, but if the question to be decided relates to 120 Ala. 493, 24 South. 959; Goddin v. Shipthe formal validity of the contract, or to the ley, 7 B. Mon. (Ky.) 578; capacity of the parties, such question is to v. Ruckman, 57 Va. 126; be determined in accordance with the lex 89 Ky. 461, 12 S. W. 775; loci contractus without regard to the inten-bers, 4 Bush (Ky.) 268, 96 Am. Dec. 304; tion of the parties. Wharton on Conflict of Laws, §§ 427e to 427n; Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. Ed. 245; Phoenix Mut. L. Ins. Co. v. Simons, 52 Mo. App. 357; Hager v. Nat., etc., Bank, 105 Ga. 116, 31 S. E. 141; Campbell v. Crampton (C. C.) 18 Blatch. 150, 12 Fed. 417; Matthews v. Murch-sumption of intention to this effect obtains ison (C. C.) 17 Fed. 760; Hunt v. Jones, 12 R. I. 265, 34 Am. Rep. 635; Roubicek v. Haddad, 67 N. J. Law, 522, 51 Atl. 938.

Freeman's Bank Stevens v. Gregg, Carlisle v. Cham

Warren v. Lynch, 5 Johns. (N. Y.) 239; Curtis v. Hutchinson, 4 Ohio Dec. 19.

Some of the cases state it as a fixed rule that the law of the place of payment controls the question of negotiability as affecting liability, while others hold that a pre

in the absence of facts or circumstances showing an intention to the contrary; but as such circumstances seldom, if ever, exist, the distinction is not usually of practical importance. Wharton on Conflict of Laws, § 451d.

In this case we are concerned only in determining the rights and obligations imposed by the contract, and we desire to limit our observations to the question before us. That In a few cases it has been held that the the intention of the parties as gathered from place of payment named in a note or bill of the instrument itself shall have controlling exchange is not to be regarded as important weight in determining which of two conflict-in determining which of two conflicting laws ing laws shall apply to the construction of shall apply, but these cases are not in line their contract seems to be supported by rea- with the current of decisions on this point. son and, possibly, by the weight of author- Garrigue v. Kellar et al., 164 Ind. 676, 74 N. ity, but the means of ascertaining such inten- | E. 523, 69 L. R. A. 870, 108 Am. St. Rep. 324; tion is not free from difficulty. The parties Staples v. Nott, 128 N. Y. 403, 28 N. E. 515, may stipulate in the contract that it shall 26 Am. St. Rep. 480. be controlled by the laws of a particular In the case first cited the question presentstate, and where this is done in good faith, ed related to the capacity of a married wothe question is free from doubt; but where man to contract as surety. This question is this is not done, the question depends large- one pertaining to the formal validity of the ly upon presumptions. Where a contract fix- contract, and its decision is always controles no place for performance, the presump-led by the lex loci contractus. What was tion is that it is to be performed in the same state in which it is executed, and that the parties contracted in reference to the lex loci contractus. Stickney v. Jordan, 58 Me. 106, 4 Am. Rep. 251; New York, etc., Co. v. Davis, 96 Md. 81, 53 Atl. 669; Dow v. Rowell,

said upon this question cannot be regarded as necessary to the decision, as the question presented was properly decided upon other grounds.

From an extended examination of the authorities we have reached the conclusion