rection from the point of beginning, the, to and is bounded "by the ledgy shore" on the boundary line turns at a right angle and runs southwest. In the teeth of that fact the in a southeasterly direction to the line of petitioner makes the contention that the lot high water, and thence in a northeasterly stops short of the "ledgy shore," and that its direction to the southerly or southwesterly southerly or southwesterly boundary line boundary of the first parcel conveyed by the is a line some 30 to 20 feet short of the same deed; and (second) that in any event "ledgy shore." the lot stops on the south or southwest at the line of high water. In considering the construction of the description of the parcel in question reference to other parts of the deed is necessary, and the whole deed is set forth in a note.1 The fatal objection to the petitioner's first contention is that the lot in question goes Post somewhat daubed with paint [1] It is true, as the petitioner insists, that 35 feet from the point of beginning brings the end of the westerly or southwesterly boundary line to the head and not to the mouth of the narrow creek which at that time ran up into the land as is shown on the chalk or sketch plan used by the petitioner at the argument and here reproduced. But monu Land formerly of William Tucker 108_fr.±_to_the_harbor by deed 1 "Know all men by these presents, that I, | Beginning at a post somewhat daubed with William D. Gregory, the second, of Marblehead, in the county of Essex and state of Massachusetts, mariner, in consideration of three hundred dollars to me paid by Jeremiah W. White of Nashua, in the county of Hillsborough and state of New Hampshire, merchant, the re ceipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell and convey unto the said Jeremiah W. White and his heirs and assigns forever all that a certain parcel of land and rocks situate by the harbor in the southwesterly part of said Marblehead, together with all the privileges and appurtenances properly belonging to the premises, said parcel of land and rocks is bounded and described as follows: paint by land of William Tucker, ten feet and six inches from the westerly corner of the same, and thence running southeasterly by said land of Tucker one hundred and eight feet more or less to the harbor; thence running southwesterly by the harbor one hundred feet more or less; thence running northwesterly from the harbor by other land and rocks of me the said Gregory hereinafter conditionally conveyed one hundred feet, more or less to a stone bound which bound is to form the easterly corner of a new street of the width of thirtyfive feet and to run from Gregory street in a southeasterly direction on a line parallel with land formerly of Hidden and now of Merrill, ments govern distances, and the "ledgy shore" | force the conclusion that the parcel does go is the monument which fixes the boundary of the lot on the south or southwest. This means of course that there was a blunder in the description. But this is not the only blunder in it. The westerly or northwesterly boundary line is described as beginning at the stone bound about which there is no dispute; the description goes on in these words: "Thence running southerly on the before mentioned line ranging to the easterly corner of my said wharf and thence extends on said line about thirty-five feet, more or less to the edge of the water or creek there thence turning nearly a right angle," etc. On no hypothesis can the words "and thence extends on said line" be explained except that they were tautological or that there was a blunder in this part of the description. It is somewhat singular that what is missing in the westerly or northwesterly boundary are words which would bring the end of that boundary line to the mouth in place of to the head of the creek. That is to say, what is missing is a statement that the line which begins at the point of beginning and runs thirty-five feet "to the edge of the water or creek there" "thence extends on said line" to the "ledgy shore." There is a second blunder in the statement that the southerly boundary line is "the ledgy shore and creek." The judge of the land court found that there was no creek except the creek shown on the chalk or sketch plan mentioned above which is the missing part of the west or northwest boundary of the parcel if the parcel goes, as it does go, to the "ledgy shore." We refer to these facts not because by changing their position in the description it is possible to patch up the missing link in the description of the westerly or northwesterly boundary, but to reinand said land of Tucker and one hundred feet distant therefrom on its northeasterly side and thence running northeasterly from said stone bound by other land of me the said Gregory one hundred feet to said daubed post hy land of said Tucker, being the bounds first begun at. This last line of boundary ranging from said post on a straight line through or over said stone bound to the easterly corner of the wharf of me the said Gregory. Also a piece of land and rocks situated by and adjoining to the southwesterly bounds of the parcel of land and rocks herein before described and is bounded and described as follows: Beginning at the stone bound at the westerly corner of the parcel of land and rocks before described and thence running southerly on the before mention ed line ranging to the easterly corner of my said wharf and thence extends on said line about thirty-five feet, more or less, to the edge of the water or creek there, thence turning nearly a right angle and running southeasterly to the "ledgy shore" by showing that there are one or more blunders in the description in any view which is taken of it. We are therefore of opinion that the petitioner's first contention is not tenable. [2] In our opinion the petitioner's second contention also is not tenable, namely, that the parcel being bounded on the southwest "by the ledgy shore," stops at high-water mark. By the clause next succeeding the description of the parcel of “land and rocks" here in question, the grantor reserved to himself "the right and privilege of passing to over and from" the parcel here in question, "and of quarrying and using the ledgy shore and beach of the same for the purpose of taking all the rocks and stones therefrom which may be necessary, for the building of a pier or breakwater from the premises to Craft's rock ledge lying off the same for the protection of my said wharf." It was decided in Storer v. Freeman, 6 Mass. 435, 4 Am. Dec. 155, that land bounded on the "shore" goes to the line of low water if the context shows that to have been the intention of the grantor. This was affirmed in Haskell v. Friend, 196 Mass. 198, 81 N. E. 962, where the intervening cases are collected. In the case at bar the grantor reserved to himself the right to take stones from “the ledgy shore and beach." If "the ledgy shore and beach" had not passed to the grantee there was no necessity for, nor could there be, a reservation of this right in the grantor. These considerations dispose of the exceptions taken by the petitioner to the refusal of the judge of the land court to make the nine "findings" requested by him. The entry must be Exceptions overruled. and easterly by the ledgy shore and creek curving round at its most easterly part and extending to the southerly corner of the parcel of land and rocks before described, and thence turning, nearly a right angle and running northwesterly by the southwesterly boundary of the before described parcel of land and rocks one hundred feet more or less to the stone bound and easterly corner of the intended new street first above named and described. But I hereby reserve to myself the right and privilege of passing to over and from said parcel of land and rocks now hereby conveyed and of quarrying and using the ledgy shore and beach of the same for the purpose of taking all the rocks and stones therefrom which may be necessary for the building of a pier or breakwater from the premises to Craft's rock ledge lying off the same for the protection of my said wharf, at any time in the course of twenty years from the date of this deed and no longer. "To have and to hold," etc. (181 Ind. 219) MARION SHOE CO. v. EPPLEY. (No. 22,507.) Condo & Browne, of Marion, and C. W. Watkins, of Huntington, for appellant. Murphy & Todd, of Wabash, William M. Amsden, SPENCER, J. Action by appellee to recover damages for personal injuries alleged to have been sustained while he was in the employ of appellant as a bricklayer, and by reason of appellant's negligence. There was a trial by jury, a verdict for appellee in the sum of $5,000, and a judgment thereon, from which this appeal is prosecuted. (Supreme Court of Indiana. Feb. 20, 1914.) of Marion, and Bowers & Feightner, of Hunt1. MASTER AND SERVANT (318*)-NEGLI-ington, for appellee. GENCE OF "INDEPENDENT CONTRACTOR." Defendant made an agreement with J. & Son relative to the construction of a building on its property, by which J. & Son were to erect the brick walls and the foundations according to plans and specifications drawn by defendant's architect, defendant was to furnish all building material, while J. & Son were to supply all scaffolding, etc., used in the construction of the building, J. & Son were to employ their own men, and for their services in the supervision, construction, and general erection of the brick and cement work were to receive a specified sum per week. J. & Son hired all the bricklayers, including plaintiff, and all laborers, and gave the orders to the men as to what they should do, and how it should be done, and one of the members kept the time of the men, and made out the weekly pay roll, which he presented to defendant, from whom he received the money to meet it. Defendant's president was about the building practically every day, and conferred with J. & Son regarding the plans and specifications, and on one oc casion told a workman that certain window frames should be changed, but did not tell him to make the change, and it was not made until J. & Son so directed. He also laid off another workman, but in doing so acted under the direction of J. & Son. Held, that J. & Son were "independent contractors," and alone had control over plaintiff and the methods to be used in constructing the building, and hence defendant was not liable for plaintiff's injury caused by the falling of a defective scaffold which was the property of J. & Son, and had been used by them on other buildings, and was placed in position by their employés. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. § 818.* For other definitions, see Words and Phrases, vol. 4, pp. 3542, 3543; vol. 8, p. 7686.] 2. MASTER AND SERVANT (§ 318*) - NEGLIGENCE OF INDEPENDENT CONTRACTOR-LIABILITY OF EMPLOYER. Where one person lets a contract to another to do a particular work, reserving to himself no control over the manner in which it shall be performed, except that it shall conform to a particular standard when completed, he is not liable for an injury occurring to others by reason of any negligence of the person to whom the contract is let, and the fact that he retains a supervision of the work for the purpose of securing certain results, that he may stop work which is not properly done, that the right is reserved to make alterations in the contract, that the contractor is to be compensated by a lump sum, by a commission on the cost, or a per diem, or that the proprietor furnishes the building material, where the accident does not result from a defect in such material, does not change the rule. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. § 318.*] Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge. Action by Cyrus H. Eppley against the Marion Shoe Company. Judgment for plaintiff, and defendant appeals. Reversed. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1908. [1] The evidence shows that some time prior to March 23, 1910, appellant, through its president, Mr. Butterworth, entered into a verbal agreement with the firm of L. L. Johnson & Son relative to the construction of a certain factory building on its property; that L. L. Johnson & Son were general contractors engaged in the construction of brick buildings; that under the terms of said agreement Johnson & Son were to erect all brick walls and cement or concrete foundations in said building according to plans and specifications drawn by appellant's architect; that appellant was to furnish all the brick and other building material, while Johnson & Son were to supply all scaffolding, shovels, wheelbarrows, hods, etc., used by the workmen in the construction of the building; that Johnson & Son were to employ their own men; that, for their services in the supervision, construction, and general erection of the brick and cement work, Johnson & Son were to receive a stated sum per week, with additional compensation for the use of their machine for mixing concrete, whenever it should be operated. It further appears that during the progress of the work Johnson & Son did hire all the bricklayers, including appellee, and all the laborers employed on the building, and gave the orders to the men as to what they should do, and how it should be done; that Bernard Johnson, the junior member of the firm, kept the time of the men, and made out a weekly pay roll, which he presented to Mr. Butterworth, and received from him the money needed to meet the same. The latter was about the building practically every day during its construction, and conferred with Johnson & Son from time to time regarding the plans and specifications; but in only two instances does the evidence suggest that he exercised any control over appellee or his fellow workmen. Appellee's witness Edwards testified on direct examination that on one occasion Mr. Butterworth told him that certain window frames were set wrong, that he said "they should be changed," and they were changed. On cross-examination, however, the witness admitted that Mr. Butterworth did not tell him to make the change, and that it was not made until Mr. Johnson For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 104 N.E.-5 so directed. Another witness, who had been | the labor, superintend the same, and construct employed on the work as a hod carrier, tes- the building in accordance with the plans tified that he was laid off by Mr. Butter- furnished. In return therefor he was to worth. This occurred at a time when the receive a per diem for himself and the men work was nearly completed, and Mr. Butter- employed by him. Plaintiff was injured worth testified that he was acting under the through the negligence of one of the workdirection of the Johnsons, who had then tak-men, and brought suit against the proprietor, en on another contract, and were away from appellant's buildings much of the time. There is no other suggestion in the record that the workmen were under the control and direction of appellant. Appellee was injured by reason of the fall of a defective scaffold on which he was at work. This scaffold was the property of Johnson & Son, had been used by them on other buildings, and was placed in position on this building by their employés. With these as the facts, appellant contends that Johnson & Son were independent contractors, for whose negligence it is not responsible. Appellee takes the position that they were building superintendents for appellant. [2] It is well settled that, "where one person lets a contract to another to do a particular work, reserving to himself no control over the manner in which the work shall be performed, except that it shall conform to a particular standard when completed, he is not liable for any injury which may occur to others by reason of any negligence of the person to whom the contract is let." Vincennes Water Supply Co. v. White, 124 Ind. 376-379, 24 N. E. 747, and cases cited. To the same effect is the case of New Albany, etc., Mill v. Cooper, 131 Ind. 363, 30 N. E. 294. This rule is not altered by the fact that the proprietor retains a supervision of the work simply for the purpose of securing certain results, or that he may stop work which is not properly done. Foster v. City of Chicago, 197 Ill. 264-267, 64 N. E. 322; Bibb's Adm'r v. Norfolk, etc., R. Co., 87 Va. 711-750, 14 S. E. 163; 1 Thompson on Negligence, § 660. It is immaterial that the right is reserved to make alterations, omissions, or deviations from the original contract. Green v. Soule, 145 Cal. 96, 78 Pac. 337; Harding v. Boston, 163 Mass. 14, 39 N. E. 411. Nor does it matter how the contractor is to be compensated, whether by a lump sum, or a commission on the cost, or a per diem. Geer v. Darrow, 61 Conn. 220-225, 23 Atl. 1087; Grace, etc., Co. v. Probst, 208 Ill. 147, 70 N. E. 12; City v. Pinson, 21 Tex. Civ. App. 44, 50 S. W. 620; Chute v. Moeser, 77 Kan. 706, 95 Pac. 398; Morgan v. Smith, 159 Mass. 570-575, 35 N. E. 101; Emmerson v. Fay, 94 Va. 60, 26 S. E. 386. In the case last cited it appears that one Collona, a contractor, agreed with the defendant, Emmerson, to do certain work on the latter's dry kiln. Emmerson was to furnish all the material, while Collona was to employ Emmerson. The latter assumed no control over the men employed on the work; but they were employed and discharged by Collona, who alone controlled and directed them in their work. On appeal the judgment against Emmerson was reversed, and in the opinion (94 Va. 63, 26 S. E. 387) this language is used: "As a general rule, where a person is employed to perform a certain kind of work which requires the exercise of skill and judgment as a mechanic, the execution of which is, because of his superior skill, left to his discretion, without restriction upon the means to be employed in doing the work, and he employs his own labor, which is subject alone to his control and direction, the work being executed either according to his own ideas or in accordance with plans furnished him by the person for whom the work is done, such a person is not a servant under the control of a master, but is an independent contractor, and the fact that his compensation is to be measured by a per diem to himself and those employed by him does not affect the independent character of his employment, nor does the circumstance that his employer is to furnish the materials to be used in doing the work alter his status as an independent contractor, and create the relation of master and servant." As is suggested by the last statement in the above quotation, the fact that appellant furnished the brick and other building material is not controlling here in the absence of a showing that the accident resulted from a defect in such material. Emmerson v. Fay, supra; Chute v. Moeser, supra. The real test is, was appellee, at the time he sustained his injury, under the power and control of appellant and subject to its orders and directions in the doing of the work at hand? The evidence on this subject without dispute shows that Johnson & Son were independent contractors, and that they alone had control over appellee and the methods to be used in constructing appellant's factory. Judgment reversed. (181 Ind. 405) TOWN OF SHERIDAN v. ROTHSCHILD. (No. 22,237.)1 (Supreme Court of Indiana. Feb. 17, 1914.) 1. COURTS (§ 220*)-SUPREME COURT-JURISDICTION-CONSTITUTIONAL QUESTIONS. Under the direct provisions of Acts 1907, c. 148, § 1. the Supreme Court has exclusive jurisdiction of an appeal based on a right guaranteed by the state Constitution. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 78, 487, 490, 4912, 575-58S, 1292, 1303; Dec. Dig. § 220.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 1 2. APPEAL AND ERROR (§ 1078*)-BRIEFS- tion. The three warrants were executed WAIVER OF Errors. A contention that the court erred in overruling a demurrer to the complaint is waived, where defendant's brief on appeal failed to set out the demurrer or the substance thereof. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 8 4256-4261; Dec. Dig. 1078.*] August 20, 1898, each calling for $660.61 and 6 per cent. interest, payable out of the town's general fund on July 10, 1899, August 20, 1900, and August 20, 1901, respectively. It is averred that the warrants were delivered and assigned to appellee by written indorse 3. APPEAL AND Error_(§ 265*)-PRESENTA-ment, and that the principal and interest TION OF GROUNDS OF REVIEW IN COURT BELOW-EXCEPTIONS-NECESSITY. Where not excepted to, no error can be urged on appeal against the trial court's conclusions of law on the facts specially found by it without a jury. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1461, 1536-1551; Dec. Dig. § 265.*] thereon remain due and wholly unpaid. A demurrer to the complaint was overruled. Appellant answered by general denial, plea of the 10-year statute of limitations, and further averred that each warrant was void because executed in violation of article 13 of the Indiana Constitution, adopted March 14, 1881, which declares that no munici 4. MUNICIPAL CORPORATIONS (8 898*)-IN-pal corporation shall become indebted for DEBTEDNESS-CONSTITUTIONAL LIMIT. Const. art. 13, declares that no municipal corporation shall become indebted in an amount exceeding 2 per cent. of the value of its taxable property. The debt limit for the defendant town at the time of the issuance of the warrants in favor of an electric corporation was $9,600. Previous to that time it became indebted in an amount of $3,500. In the first part of the year in which the warrants were issued the town entered into a contract with the electric corporation for the installation of certain machinery, and at the same time entered into a contract with an engine company for the purchase of an engine for the plant; by the terms of those contracts the electric corporation was to be paid nearly $5,000, and the engine company over $2,000. Thereafter the town sold bonds to the amount of $6,000, and the proceeds, after paying for the site and building for the proposed municipal electric light plant, were divided between the electric corporation and the engine company. Upon completion of the installation of the machinery for the new plant the town issued warrants in favor of the electric corporation. Held, that as Acts 1893, c. 100, under which the contract for the equipment of the light plant was made, provides that the contractors for such plant shall not be paid to exceed 75 per cent. of the contract price until the plant has been successfully operated for a period of at least 90 days, the indebtedness in favor of the electric corporation did not accrue until the installation of the machinery after the issuance of bonds to the amount of $6,000, and hence the warrants issued to the electric corporation to discharge the last of its indebtedness are void, being in excess of the constitutional limitation. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 1883; Dec. Dig. 898.*] Appeal from Superior Court, Marion County; Clarence E. Weir, Judge. Action by Henry Rothschild against the Town of Sheridan. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions. George W. Osborn, of Sheridan, and M. E. Bash, of Indianapolis, for appellant. A. C. Pearson, Russell Willson, and Romney L. Willson, all of Indianapolis, for appellee. MORRIS, C. J. On February 25, 1910, appellee instituted this action against appellant, by complaint in three paragraphs, each declaring on a town warrant executed by appellant to the Ft. Wayne Electric Corpora any purpose, in an amount exceeding 2 per cent. of the value of the taxable property of the corporation. In this paragraph it is averred that when the warrants were executed, appellant was already indebted beyond its constitutional limit. In its fourth paragraph of answer appellant avers that the warrants were executed in payment of a debt due said electric corporation on a contract for the installation of an electric light plant; that the work of installation was not completed until May 1, 1898, and that at that time the town was already indebted in a sum beyond the constitutional limit of 2 per cent. on its taxables. The cause was tried by the court, with a special finding of facts and conclusions of law, to which appellant failed to except. Judgment was rendered for appellee on the warrants falling due in 1900 and 1901. The court concluded that the action on the warrant due in 1899 was barred by the statute of limitations. [1] Appellee has filed a motion to transfer this appeal to the Appellate Court, because the judgment is for a sum less than $6,000. Appellant based one of its causes of defense on a right guaranteed by our Constitution. Jurisdiction to determine such appeals is vested exclusively in this court. Clause 1, § 1, Acts 1907, p. 237. Curless v. Watson, 102 N. E. 497. The motion to transfer is over ruled. [2, 3] Appellant contends that the court erred in overruling its demurrer to the complaint. Its failure to set out the demurrer, or the substance thereof, in its brief precludes a consideration of the ruling. It also claims error in each of the court's conclusions of law on the facts specially found. The failure to except to the conclusions waives their consideration. [4] Appellant's motion for a new trial, grounded in part on the alleged insufficiency of the evidence to support the decision, was overruled, and that question is properly presented here for review. There was no material conflict in the evidence, which shows that on January 8, 1898, pursuant to the provisions of the act of March 1, 1893 (Acts For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |