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case, but the appellees are not concluded by this statement. The jury still had the right to accept the testimony of Stilwell. Besides, Longwell's statement was but a 16 conclusion of his own, and, if the jury thought the facts did not warrant it, they were at liberty to disregard it. If, then, we add these two items of damages, we have an amount fully covering that which appellant claimed in his complaint was due him.

The evidence upon which these items were determined by the jury in favor of the appellees was conflicting, and while we are free to confess that upon its face the preponderance appears to be with the appellant, yet we have not been able to find any error of law which would authorize us to reverse the judgment. The verdict received the approval of the trial court, and we cannot interfere with it by undertaking to weigh the evidence. Judgment affirmed.

SALES IMPLIED WARRANTY OF QUALITY.-In the contract of sale, the law implies no warranty as to the quality of the goods sold: Lanier v. Auld, 1 Murph. 138; 3 Am. Dec. 680, and note; Erwin v. Maxwell, 3 Murph. 241; 9 Am. Dec. 602, and note; Hyatt v. Boyle, 5 Gill & J. 110; 25 Am. Dec. 276, and note; Getty v. Roundtree, 2 Pinn. 379; 2 Chand. 28; 54 Am. Dec. 138, and note, with the cases collected. See, also, the extended note to Reed v. Randall, 86 Am. Dec. 312.

SALES BREACH OF WARRANTY-DAMAGES.- A purchaser of goods at an executed sale and upon warranty of quality by the seller does not, by receiving the goods without inspection, and retaining them after discovering their inferior quality, waive his right to recoup his damages for a breach of the warranty, in an action for the purchase price: Woodruff v. Graddy, 91 Ga. 333; 44 Am. St. Rep. 33. See, also, the notes to Morse v. Moore, 23 Am. St. Rep. 794; Shearer v. Park Nursery Co., 42 Am. St. Rep. 129, and Argersinger v. Macnaughton, 11 Am. St. Rep. 691.

STEWART V. PENNSYLVANIA COMPANY.

[2 INDIANA APPEALS, 142.]

RAILROADS - FENCING AT STATIONS.-A railroad company is not required to fence its track at any of its stations.

RAILROADS-FENCING AT STATIONS-DEATH OF ANIMAL-A railroad company is not liable for killing an animal which wanders upon the track at a station.

J. V. Mitchell, for the appellant.

S. O. Pickens, for the appellee.

142 ROBINSON, J. The appellant commenced this action against the appellee, before a justice of the peace, to recover the

value of a mare killed by one of the appellant's trains on the Indianapolis and Vincennes Railroad.

The case was appealed to the circuit court, and there tried by a jury, which returned a special verdict, upon which the court rendered judgment for the appellee.

143 The action was under the statute to recover on the ground that the appellee had failed to fence its track where the mare entered upon it.

But one error is assigned, viz: The court erred in rendering judgment for the appellee on the special verdict of the jury.

Under the special verdict of the jury, the material and important facts found, to which it becomes necessary to refer, in the determination of the questions involved in the case, are "that the mare entered upon the railroad track immediately east of the south end of the passenger platform at Bethany Park station; that this platform is two hundred and fifty-one feet long, extending north from the intersection of a public highway with the railroad track at the south end of the platform referred to; that Bethany Park station is a station on appellee's railroad, used as such at times of camp meeting, for a period of about three weeks in each year, and occasionally by picnickers; that tickets are sold at all regular stations on the appellee's railroad for Bethany Park station; that it is also a freight station for such packages of freight as may occasionally be prepaid thereto"; that the diagram or map in the record, and made a part of the special verdict of the jury, correctly shows the situation and surroundings of the station in question.

The law defining the duty of railroad companies as to fencing their tracks at stations and sidings where passengers and freight are received and discharged, and exempting railroad companies from liability on account of stock killed, without negligence on the part of the company, which may wander upon the railroad track at such places, is now so well established as to require the citation only of the following cases as the latest decisions of the supreme court upon that question: Indiana etc. Ry. Co. v. Quick, 109 Ind. 295; Bechdolt v. Grand Rapids etc. R. R. Co., 113 Ind.

343.

The counsel for the appellant concedes, in argument, that if Bethany Park was a station on appellee's railroad, within 144 the meaning of the law as held in the cases cited and in the many cases in harmony with those cited previously decided by the supreme court, relieving railroad companies from fencing station grounds, then, under the facts found, the appellant was not enti

tled to recover. But it is insisted by the appellant that, under the facts found by the jury, it is not shown that Bethany Park was a station on the appellee's railroad.

The fact that Bethany Park station is only used as such for a period of three weeks during the holding of camp meetings at Bethany Park Assembly Grounds and occasionally by picnic parties, we do not think sustains the proposition that Bethany Park was not in fact a station on appellee's railroad; nor does it affect the question as to the duty of appellee to fence its road at the point where the mare entered upon the railroad track.

Under the authorities cited, the question is clearly settled that railroad companies are not required to fence their tracks at stations where passengers are received or discharged. The number of passengers or the amount of freight that may be received at such station, or what trains stop to receive and discharge freight and passengers at such station, or whether such station may be a convenience to the public one season of the year more than another, or whether it may be used for the convenience of the public for the discharge of passengers and freight at a certain season of the year, cannot affect the question of the duty of fencing the track at such station by the railroad company.

A railroad station is a public place, where the public have the right to go, and for the convenience of the public station grounds, platforms and places where passengers can get on or off trains, and where freight may be shipped and received, must be open and accessible to the public; but the fact that the number of passengers or amount of freight received and discharged varies with the different stations on the different lines of railroads cannot affect the question involved 145 in the case at bar, and, although the jury found that a fence could not be maintained at the point where the mare entered upon the track without interfering with the use, by defendant, of its track in the management and operation of its road and conducting its business, and without inconvenience to the public, this finding of the jury cannot override and control the fact they found, "that Bethany Park was a station for receiving and discharging passengers and freight," and the other facts found showing the location of the station and the situation of the platform, highway, and passenger shed; for it seems that the question is settled under the authorities cited, that when it appears that the place in controversy was a station where passengers and freight are received and discharged, as a question of law, the company is absolved from the duty of fencing the road at that place.

This court, in a recent case by Reinhard, J., held: "Whether

a company is or is not obliged to fence its road at a given point is a question of law, and not of fact. Where, therefore, the point at which the animal entered upon the track and its surroundings have been clearly established, it then becomes a question purely legal in its character, whether or not the company is bound to fence": Jeffersonville etc. R. R. Co. v. Peters, 1 Ind. App. 69.

The court committed no error in rendering judgment for the appellee on the special verdict of the jury.

Judgment affirmed, with costs.

RAILROADS-FENCING AT STATIONS.-The Texas statute imposing liability upon a railroad company for injuries done to stock, unless the railway is fenced, does not apply to such places as public necessity or convenience requires should be left unfenced, such as the streets of a city or town, depot or contiguous grounds, crossings of highways, and such other places: International etc. R. R. Co. v. Dunham, 68 Tex. 231; 2 Am. St. Rep. 484, and note. Depot grounds need not be fenced, and, in the absence of negligence, the company is not liable for cattle killed within such grounds: Note to Missouri Pac. Ry. Co. v. Gedney, 21 Am. St. Rep. 289.

BROKERS.

MCFARLAND v. LILLARD.

[2 INDIANA APPEALS, 160.]

NO

DISTINCTION EXISTS BETWEEN AGENTS TO SELL REAL ESTATE and agents to find purchasers therefor.

BROKERS--COMMISSION, WHEN DUE.-When a broker to sell land has found a purchaser ready and willing to buy upon the terms proposed by the owner, he has performed his part of the contract, and his commission is due, although, through the fault of the owner, the sale is not consummated.

BROKERS-COMMISSIONS-STATUTE OF FRAUDS.—If a real estate broker procures a purchaser, the owner cannot, after repudiating the contract of sale, defeat an action for the broker's commission, on the ground that such contract is void as within the statute of frauds because not in writing, unless it is agreed between the broker and the owner that such contract of sale shall be in writing.

BROKERS - COMMISSIONS – FINANCIAL ABILITY OF PURCHASER.-If a broker to sell real estate procures a purchaser, the owner cannot, after repudiating the sale on some other ground than the purchaser's financial inability to complete the purchase, defeat an action for the broker's commission on the last-mentioned ground, unless that ground is made an element of the contract between the broker and the owner.

BROKERS-COMMISSION-CHANGE IN TERMS OF SALE. Although the terms of sale made by a real estate broker differ from the original terms agreed upon by himself and the owner, he may recover his commission, if the terms upon which he sells are accepted by the owner.

R. Kimple, L. Walker, and W. B. McClintic, for the appellant S. D. Carpenter and J. W. Eward, for the appellee.

161 REINHARD, J. Several errors are alleged in this cause, but as the merits of the appeal can be determined by the decision upon the sufficiency of the special verdict to support the judgment, we shall confine ourselves to that task alone.

The action was commenced before a justice of the peace, and was from there appealed to the circuit court, where the cause was tried by a jury and a special verdict returned, upon which, over appellant's objection and exception, the court rendered judgment in favor of appellee.

The suit was by a real estate broker for his commission on an alleged contract to sell a tract of land for the appellant. The special verdict is as follows:

"We, the jury, having been required to return a special finding herein, find the following to be the facts:

"1. We find that on the eleventh day of August, 1887, the defendant entered into a written agreement with the plaintiff of which the following is a copy:

“❝Marion, Ind., Aug. 11th, 1887. "If you will sell 200 acres, 175 acres under cultivation, at $50 per acre, $2,000 down, balance 1 to 10 years' time at 6 per cent, with privilege of 80 acres more if said sale is consummated within six months from date, I agree to pay L. C. Lillard two hundred dollars in cash, or if failure is my fault, then the above commission is due. GEORGE MCFARLAND.' 162 "Above land is situate in Jackson township, Miami county, Indiana.

"2. That in pursuance of said contract, the plaintiff endeavored to find a purchaser for the land described in said agreement. That within two weeks after the date of said agreement, plaintiff found a purchaser for said real estate, but under terms different from those mentioned in the above written agreement.

"3. We find that the plaintiff, in the month of August, 1887, informed the defendant that he had procured a purchaser for said real estate, and had agreed to sell the same to him, at and for the sum of two thousand five hundred dollars cash, and the remainder to be paid in two payments and within three years from date.

"4. We find that the defendant accepted said terms, and requested the plaintiff to send the purchaser, Allen J. Smith, to call and see him, the appellant, on the following Thursday.

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