among other things, it is asked that an account be taken of all the payments made by the defendant, and for a judgment for the balance found to be due. This is not a case of complicated accounts running through a number of years, or embracing large sums of debits and credits, but it is simply an action growing out of a violation of a contract, where one party claims a large balance due, and the other party claims to the contrary. If there is an adequate remedy at law, by which the rights of the parties to this action may be determined, then it is not an action of equitable cognizance. In the case of Fowle v. Lawrason, 5 Pet. 495, 8 L. Ed. 204, an attempt was made by allegations in the bill to bring the case on the equity side of the court, but the bill was dismissed on the ground that there was a plain and adequate remedy at law. In the case of Root v. Railway Company, 105 U. S. 212, 26 L. Ed. 975, it was held that "wherever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which avers a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has the constitutional right to a trial by jury; and in such cases relief will be denied in equity, though the question was not raised by the defendants in their pleadings, nor suggested by the counsel in their arguments." Counsel for appellant, in their brief, say: "Actions praying an accounting, as this complaint does, are clearly of equitable jurisdiction wherever the accounts are complicated and are drawn into equity by such an allegation as that contained in this complaint, and this upon no other ground than the fact that the accounts are complicated." In support of this proposition, counsel have cited the following cas

es:

Palmer Steel Co. v. Heat, Light & Power Co., 160 Ind. 232, 237-238, 66 N. E. 690; Field v. Brown, 146 Ind. 293, 45 N. E. 464; T. H. & I. R. Co. v. State ex rel. Ketcham, 159 Ind. 438, 480-487, 65 N. E. 401; Towns v. Smith, 115 Ind. 480, 16 N. E. 811; Bowen v. State ex rel., 121 Ind. 235, 23 N. E. 75; McBride v. Stradley, 103 Ind. 465, 468, 2 N. E. 358; Fenno v. Primrose (C. C.) 116 Fed. 49; Gunn v. Brinkley Carworks, 66 Fed. 382, 13 C. C. A. 529; Pac. R. Co. v. Atl. R. Co. (C. C.) 20 Fed. 277; John Crossley Sons, etc., v. City of New Orleans (C. C.) 20 Fed. 353; Kilbourne v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594, 32 L. Ed. 1005. The examination of these authorities has led us to the conclusion that they do not support the asserted proposition of appellant. The case of Palmer Steel Co. v. Heat, etc., Co., supra, was clearly a suit of equitable cognizance, and so declared by the Supreme Court, upon the sole ground that the complaint asked for a reformation of a contract, and therefore is not authority here. The case of Field v. Brown, supra, is not in point, for there the complaint was in three paragraphs, the second and third

of which involved matters only cognizable in a court of equity. And even in that case, upon the question of complicated account questions, the court said: "We do not think that the dividing line between causes or defenses of equitable and those of legal cognizance is to be ascertained by counting the items of account subject to inquiry. If an accounting is necessary or desirable, by reason of the complicated condition of the transactions in dispute, an appeal may be made to the equitable | jurisdiction of our courts, either by complaint or cross-complaint seeking such relief. But it has never in this state been deemed a cause for equitable relief that one may set forth an account of numerous items. As early as Cummins v. White, 4 Blackf. 356, it was held that 'equity has no jurisdiction over accounts, however numerous and important the charges, where there is no mutuality of dealing, and discovery is not required, but law has.' That there should be affirmatively some cause for equitable relief, independently of the presentation of numerous items of account, before the equity side of the court will be opened to entertain the question, is manifest." In the case of Cummins v. White, 4 Blackf. 356, cited in the above quotation from 146 Ind. 293, 45 N. E. 464, it is said: "In matters of account which are mutual and complicated, or where a discovery is required, or a multiplicity of suits will be avoided, or a remedy at law is not full and adequate, or fraud, accident, or mistake is connected with the subject, equity has jurisdiction. On the contrary, where none of these characteristics are present, the mutual dealings of parties result in cases of action or matters of setoff or other defense cognizable only at law." In this connection, especially in view of what was said in the case last cited, it is important to understand what is meant by the expression "mutual account." In the case of Prenatt v. Runyon, 12 Ind. 174, it was held that where the items of an account are all on one side, there being none on the other side, except credits of payment, the account is not mutual, open, and current. In 1 Cyc. of Law & Pro. 424, it is said: "No such complication of accounts is shown as to justify equitable interference where the account consists merely of matters of charge on the one side and demands of set-off on the other, where no discovery is necessary or proper. This is upon the principle that such accounts are not mutual, within the meaning of the term, when applied to the independent jurisdiction of a court of equity over mutual ac counts." It would seem that these exposi tions of what is required to constitute mutual accounts would take this case out of that catalogue, for here there were sales of cedar blocks from the appellee's assignor to the appellant, on the one side, and payments of drafts, freights, etc., on the other side, and operating as credits on the other. There is no place in the complaint or elsewhere in the record which discloses the fact that the appel

lant sold to appellee or its assignor anything whatever, and hence there could be no mutual account.

Referring again to the cases cited and relied upon by appellant, it is important to note their character, and what they decide. In the case of Townes et al. v. Smith et al., supra, the action was to recover a personal indebtedness and to set aside a conveyance of real estate as fraudulent. The action was therefore of equitable cognizance. The case of Brown et al. v. State ex rel., etc., supra, does not throw any light upon the proposition for which appellant contends, because that case also involved the question of the fraudulent conveyance of real estate. McBride v. Stradley, supra, is not in point, for that was an action between partners for an accounting, and therefore cognizable in a court of equity. The case of Gunn v. Brinkley Carworks, supra, does not sustain appellant's position, for the reason that in that case there was a running account embracing more than 500 items, extending over a period of six years, and these were complicated by fraudulent entries and omissions by a deceased partner of the firm. In that case it was simply held that an action at law for balance due, in the federal court, having no power to order a reference, would be an inadequate remedy, and that the case was within the jurisdiction of a court of equity.

Appellant relies upon the case of Terre Haute, etc., Ry. Co. v. State ex rel., supra, to support its contention that this was a suit for an accounting, and consequently cognizable in a court of equity. A careful consideration of that case fails to lead us to this conclusion. There the suit was brought for an accounting for money supposed to be due the state under a contract with the railroad

company of many years' standing. By that contract it was urged that the railroad company had agreed to pay to the state a certain per cent. of its earnings. The state thereupon proceeded by a bill both for discovery and an accounting, for it was impossible to make out its case except through an investigation of the books of the company. Upon this ground the court very properly referred the matter to a master to take the evidence and report his findings, and the Supreme Court sustained that action of the trial court. What was decided in that case does not lend aid to appellant's position.

We have examined all the other cases cited by appellant, and we have reached the conclusion that neither those to which we have referred, nor the remaining ones, support appellant's contention. We do not deem it important to review them further.

An examination of the record in this case discloses the undisputed fact that there were only five items in litigation about which there was any dispute. These matters in dispute involve questions of damages, and could only operate, if allowed, as credits 73 N.E.-64

against the amount which was found to be due appellee. A question of this character is exclusively within the province of a jury, if a jury should be demanded at the trial. These disputed items were not disputed on the ground of their several amounts. If the appellant was liable for the rejected car load of blocks, the amount of such liability was fixed, and there was no dispute about it. And the same rule applies to the item of interest and to every other disputed item.

Our ultimate conclusion is that there is no question of complicated accounts involved in this appeal, and no facts charged in the complaint from which it can be adjudged that this is a suit in equity; and we are firmly of the opinion that it is an action at law, and therefore must be tried and determined upon the law side of the court, and the rules pertinent thereto.

Having reached this conclusion, and the cause having been tried by the court, our next inquiry is to determine whether or not the evidence is sufficient to sustain the finding. There is ample evidence in the record to support the conclusion reached by the trial court, and, as we cannot weigh the evidence, we cannot disturb the finding where there is evidence to support it.

A careful consideration of every question discussed by counsel leads us to the conclusion that the trial court reached the correct result.

Judgment affirmed.

COMSTOCK, C. J., and ROBY, ROBINSON and MYERS, JJ., concur. BLACK, J., dissents.

(35 Ind. App. 167)

PICHON et al. v. MARTIN et al. (No. 5,000.) (Appellate Court of Indiana, Division No. 1. March 29, 1905.)

APPEAL-BILL OF EXCEPTIONS-PRESUMPTIONS

-HIGHWAYS-ESTABLISHMENT-EVIDENCEDAMAGES-INSTRUCTIONS.

1. Where on appeal it appears that a bill of exception containing the evidence was presented to the court on February 19th, and signed March 16th, it will be presumed that the trial judge signed the bill before he caused the same to be filed, and before ordering it to be made a part of the record, though on the date it was signed an order was entered in the order book showing that the bill "is now filed, signed by the court, sealed, and ordered made part of the record herein."

2. Where, on appeal, it appears that certain evidence could not have affected the general result of the controversy, any error in its admission is harmless.

3. On appeal every presumption in favor of the regularity and correctness of the proceedings and judgment of the trial court is to be indulged.

4. Only such reasons as are assigned in the trial court as objections to the introduction of evidence will be considered on appeal.

5. In proceedings for the laying out of a public highway a witness stated that he was acquainted with the value of the land in the neighborhood, and he was asked as to the highest

offer he had been able to get for his own land, to which he responded that there was a real estate man who would give a certain sum. Held, that a motion to strike out the answer for the reason, among others, that a portion of it was hearsay, was sufficient, and the motion should have been sustained.

6. In proceedings for the laying out of a highway a witness was asked as to whether certain land would be affected by the highway-whether it would be made better or worse-and the witness answered that he thought it would advance the price. Held, that such question and answer were improper.

7. The measure of damages for an injury to land in opening a highway through it is the difference between the market value at the time with the highway and its market value without it.

8. The fact that an attorney, without objection, has asked a question and obtained an answer on a matter purely collateral to the issue, does not justify the admission of evidence in rebuttal.

9. Where, on appeal, it is manifest from the record that in taking an exception to an instruction a clerical error was made in using the word "defendant" for "plaintiff," the rule that the record imports absolute verity is not to be indulged against the mistake.

10. In proceedings for the laying out of a highway the jury are only authorized to consider benefits and damages as specially applied to the specific real estate over which the road is laid out.

Appeal from Circuit Court, Allen County; J. H. Aiken, Special Judge.

Petition by Julian J. Martin and others for the laying out of a highway, to which Joseph H. Pichon and others filed a remonstrance on the ground that the highway would not be of public utility. From a judgment on a verdict finding that the highway would be a public utility, and assessing damages, Pichon and others appeal. Reversed.

E. V. Harris, for appellants. W. & E. Leonard, for appellees.

MYERS, J. Appellees filed a petition before the board of commissioners of Allen county, Ind., to lay out and establish a public highway. Viewers were appointed, who made a favorable report. Appellants and others filed a remonstrance on the ground that the highway would not be of public utility. One John B. Mason filed a separate remonstrance, claiming damages on account of the location of the road across his farm. Joseph J. Pichon et al., owners of certain land as tenants in common, filed a remonstrance, claiming damage by reason of the location of the said highway through their land. Reviewers were appointed, who reported in favor of the location of the highway across the lands of Mason and Pichon et al., and that the highway would be of public utility; also assessing damages in favor of Mason in the sum of $65, and in favor of Joseph J. Pichon et al. in the sum of $25, and in favor of Alpheus Swift in the sum of $25. The report of the reviewers was in all things approved and adopted by the board of commissioners, and the road by said board ordered opened and established as prayed for in the petition. John B. Mason and Joseph J.

Pichon et al., owners of two tracts of land crossed by said road, appealed from the order of the board to the Allen circuit court, where the case was tried before a jury, resulting in a verdict that the proposed highway is of public utility, etc., and assessing damages in favor of John B. Mason at $40, and in favor of Joseph J. Pichon et al. at $15. Motion for a new trial overruled. Judgment on the ver dict. Mason and the owners of the Pichon estate appealed to this court, and assign as error the overruling of their joint and separate motion for a new trial.

It appears from the record that while perfecting the record for this appeal John B. Mason died testate, and Joseph A. Mason qualified as his executor, and as such is prosecuting this appeal, as are also the devisees of John B. Mason. The motion for a new trial contains 39 reasons why it should be granted, but, as presented here, the only questions sought to be raised are based upon the admission and rejection of evidence and the giving and refusing to give instructions to the jury. Appellees insist that the evidence is not in the record, and therefore there is no question properly presented for our consideration. By reference to the record it appears from the certificate of the clerk of the lower court that the longhand manuscript of the evidence as made by the official court reporter was filed in his office on February 12, 1903. It also appears over the signature of the trial court that that part of the record designated as bill of exception No. 3, and containing the evidence, was presented to the court for examination and approval on the 19th day of February, 1903, and within the time given for the preparation of such bill, and that on the 26th day of March, 1903, it was signed by the court. On said last date the following order book entry was made: "Come now the parties, and the remonstrants' bill of exception No. 3 containing the evidence herein in these words (H. I.) is now filed, signed by the court, sealed, and ordered made part of the record herein." As the record comes to this court, the longhand manuscript and certificate thereto of the official court reporter is inserted after the letters "(H. I.)." Strictly speaking, the order book entry would indicate that that part of the record containing the evidence was filed before it was signed by the court, yet when we take into consideration the fact that it was presented to the court for signature on the 19th day of February, nothing to the contrary appearing, it is presumed that the trial judge did his duty, and signed the bill of exception before he caused the same to be filed, and before ordering it to be made a part of the record. Therefore we hold that the evidence is in the record.

No doubt in the trial of every case wherein a considerable amount of testimony is introduced, questions and answers may be selected from the record, which, when considered alone, would seem to be reversible error; but such questions and answers should be

considered in connection with all the other testimony given by the witness, or, in fact, if, when considered along with all the other evidence in the case, it does not appear that such testimony affected the general result of the controversy, the error will be considered as harmless. The Sunnyside Coal, etc., Co. v. Reitz, 14 Ind. App. 478, 39 N. E. 541, 43 N. E. 46; Miller v. Buchanan, 10 Ind. App. 474, 37 N. E. 187, 38 N. E. 56. This court will indulge every presumption in favor of the regularity and correctness of the proceedings and judgment of the trial court. The burden is upon the party appealing to affirmatively show that the error of which he complains was such as would substantially affect his rights in the premises, or the case must be affirmed. If upon the whole record "it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below," it is the duty of this court not to disturb the judgment. Sections 401, 670, Burns' Ann. St. 1901.

In the trial of this cause in the circuit court two issues were presented: (1) The question of public utility of the proposed highway; (2) benefits and damages accruing to the land caused by the location and opening of the proposed highway thereon. Appellants claim a reversal of the judgment below (1) because of the admission of improper evidence over their objection, and (2) because the court refused to admit certain evidence. We have carefully read nearly all the evidence in the record, and do not hesitate to say that quite a number of questions and answers complained of were clearly improper, but, as the objections were insufficient, the court committed no error in admitting the evidence. Only such reasons as were assigned in the trial court as objections to the introduction of evidence will be considered on appeal. All other objections are presumed to be waived. The Indiana, etc., Co. v. Wagner, 138 Ind. 658, 38 N. E. 49; Rhea v. Crunk, 12 Ind. App. 23, 39 N. E. 879; Gross v. Haisley et al., Ex'rs, 2 Ind. App. 23, 28 N. E. 123; Bass v. The State, 136 Ind. 165, 36 N. E. 124.

The evidence in the record, where an objection to its introduction was possibly saved, we now give attention. A witness for appellees on direct examination in rebuttal, after stating that he was the owner of 31 acres of real estate in the neighborhood of Mason's and Pichon's land, and that he was acquainted with the value of land in that neighborhood, referring to the land of the witness, was asked, "What is the highest offer, if any, you have been able to get with the highway proposed?" To this question an insufficient objection was interposed, and the witness answered: "Well, sir, there is a real estate man right here in Ft. Wayne-I didn't ask who he was-that would give- I was offered, if the public road was through there, they would give me $50 or $60 an acre if I had direct access to Ft. Wayne." A motion

to strike out the answer for the reason, among others, "that a portion of said answer is hearsay," was overruled. While the reason assigned was not the best which could have been given, yet that it was "hearsay” was sufficient, and the motion should have been sustained. Perkins v. The People, 27 Mich. 386; Winnisimmet Co. v. Grueby, 111 Mass. 543; Lehmicke, Adm'r, v. The St. Paul, etc., R. R. Co., 19 Minn. 464 (Gil. 204); The Montclair Ry. Co. v. Benson, 36 N. J. Law, 557. Another witness for appellees was asked, "Would or would not the land of Mason's —that is, the forty-eight acres now-be affected; that is, be aided, made better or worse, or what, if the road is established?" To this question appellants objected "for the reason that it is explanatory, and suggestive to the witness. It is not a proper question to propound to a witness, as a question asking for opinion evidence." The objection was overruled, and the witness answered, "Well, I think it would advance the price somewhat." Similar questions were asked other witnesses, and similar answers given as stated by the witness last above. That such questions and answers were improper there can be but little doubt. In view of the large amount of competent evidence on the question of benefits and damages, we would not feel authorized to disturb the judgment for these errors, if the record was otherwise clear. The evidence is so nearly akin to the opinion of witnesses as to the amount of benefits or damages sustained by the party whose land is appropriated as to require its exclusion on direct examination. Yost v. Conroy, 92 Ind. 464, 47 Am. Rep. 156. The measure of damages for an injury to land in opening a highway through it is the difference between the market value at the time with the highway and its market value without the highway. Watson v. Crowsore, 93 Ind. 220; Goodwine v. Evans, 134 Ind. 262, 33 N. E. 1031; Hire v. Kniseley, 130 Ind. 295, 29 N. E. 1132; Sidener v. Essex, 22 Ind. 201; Yost v. Conroy, supra. "If the benefits equal or exceed the damages, there can be no recovery for the latter." Renard v. Grande, 29 Ind. App. 579, 64 N. E. 644.

It is next insisted that the court erred in excluding testimony whereby it was sought to prove that other lands of appellants, not connected with the lands through which the proposed highway runs, would not be benefited by the proposed road. The purpose

of this offer, as we take it, was to combat the testimony of appellees, introduced without objection. tending to prove that such land would be benefited. All this evidence was on a collateral matter and incompetent. This court has answered adversely appellants' contention in the language following: "The mere fact that an attorney is, without objection, permitted to ask an irrelevant question and obtain an answer to it cannot be used to open the doors for the admission of evidence of facts purely collateral to the

issues. Such a course would tend to make the litigation almost interminable, and cause the fundamental and paramount issue of a cause to be lost sight of. There was no error in the ruling." Indianapolis Journal Co. v. Pugh, 6 Ind. App. 510, 33 N. E. 991. The rule is different where the fact is one within the issues, and proof is made by incompetent evidence without objection. Judd v. Small, 107 Ind. 398, 8 N. E. 284; Graves v. The State, 121 Ind. 357, 23 N. E. 155; Stockwell v. State ex rel., 101 Ind. 1.

Lastly, appellants contend that the court erred in giving to the jury each of the instructions requested by appellees. It is perfectly plain on the face of the record that a clerical error was made by appellants in taking their exceptions to the instruction tendered by appellees and by the court given to the jury in the use of the word "defendants," when it was clearly their intention to use the word "plaintiffs." While it is true, as appellees insist, that the record is supposed to import absolute verity, yet, when it is manifest from the record that the mistake is clearly clerical, it should not be indulged to prevent a hearing on the merits of the

case.

Instruction No. 12 requested by appellees and by the court given to the jury is very long, and we quote only so much of it as will illustrate its erroneous features. This instruction is solely on the question of benefits and damages, and the court undertook to tell the jury what they should consider in estimating benefits, and we quote the following: "In ascertaining or assessing the damages suffered by one who has property taken for public use, it is necessary to consider in connection therewith any and all benefits that he may receive on account of such proposed improvement, if any; and in fixing and ascertaining such benefits it is necessary to take into consideration all the roads in the vicinity of such proposed highway; * * the fact, if it be a fact, that the gravel pits are so located in that immediate neighborhood that over this proposed road a more direct route is afforded to enable the gravel to be more quickly and cheaply distributed upon the roads of the township; the fact, if it be a fact, that the proposed highway will enable any number of residents of such vicinity to reach Robinson Park by a more direct route than now exists; the fact, if it be a fact, that it will afford the remonstrators residing along the Leo Road quick and easy access to that territory north of their lands and of the place of the proposed road without going miles around; the fact, if it be a fact, that such new road through the lands of the remonstrators will afford them access to portions or all of their said lands without devoting parts of it to lanes and private ways; together with all other facts and circumstances disclosed by the evidence that may enable you to determine the benefits enjoyed

by the establishment of such highway and damages, if any, suffered by the remonstrators." That part of the instruction referring to gravel pits, and what the highway would enable other residents of that vicinity to do, and that by the opening of the road it would furnish remonstrators quick and easy access to the territory north of the lands on which the proposed road was to be located, without further explanation or qualification, were facts going to the public utility of the road, and were not proper to be included in an instruction solely on the question of benefits and damages. It was also error to tell the jury without any explanation that they might consider in assessing benefits "all other facts and circumstances disclosed by the evidence that may enable you to determine the benefits enjoyed by the establishment of such highway."

We think the law well settled that the jury in cases of this kind are only authorized to consider benefits and damages as specially applied to the specific real estate over which the road is laid out. If benefits accrued to other lands of appellants by the opening of this road, or by the opening of the road it made it less expensive to the county or township in hauling gravel to repair other roads, or it made it more convenient for travel to other residents in that vicinity, these were benefits enjoyed alike by all the landowners in the neighborhood of the proposed highway, and were common benefits to all, and which the remonstrators enjoyed in common with other landowners, and were not properly chargeable to remonstrators as a set-off against damages caused by the opening of the highway over the particular land abutting on such highway. In Angell v. Hornbeck, 31 Ind. App. 59, 67 N. E. 237, this court said: "The authorities are agreed that where facts are given in evidence upon two issues, as in this case, the instructions of the court when instructing on any one issue should confine the jury to the matter as presented in said issue on which the instruction was given." The law as announced by the court in the Angell Case is well supported by authority, and, as bearing upon this question and in support thereof, we cite Lipes v. Hand, 104 Ind. 503, 1 N. E. 871, 4 N. E. 160.

In view of the fact that we find no other instruction given to the jury in this case which would in any wise tend to lessen the damaging effect of instruction No. 12, this case should be reversed. Judgment reversed.