No. 11,753.

#### Hyler *v.*Humble.

*Pleading.*— Complaint.—Answer.— *Written Instrument.*— Where an answer sets up a different lease from that declared on in the complaint in the cause, it can not be considered in determining the sufficiency of the complaint on demurrer.

*Same.*— Mistake.—Reformation.—An answer, stating a lease differing in terms from that declared on in the complaint and contradictory thereof, but not averring a mutual mistake and asking reformation, is bad on demurrer.

*Same.*— Lease.—Subsequent *Parol Agreement.*— Consideration.—In an action for possession of real estate under a written lease, an answer which sets out a subsequent parol agreement to execute notes with security for the payment of the rent, but does not show any consideration for the subsequent agreement, so as to make it supersede the written agreement and bar the plaintiff’s right of possession until the notes were executed, is bad on demurrer.

From the Vigo Circuit Court.

*W. Eggleston*and *E. Reed,*for appellant.

*B. E. Rhoads*and *E. F. Williams,*for appellee.

*39Franklin, C.

Appellee sued appellant for the possession of certain real estate under a lease.

A demurrer to the complaint was overruled. The defendant filed an answer in four paragraphs. A demurrer was sustained to the first and fourth paragraphs, and overruled as to the third. A reply was filed to the third. There was a trial by the court, finding for the plaintiff, and over a motion for a new trial judgment was rendered upon the finding.

■ The errors assigned are the overruling of the demurrer to the .complaint, and sustaining demurrers to the first and fourth paragraphs of answer. The objection to the complaint is that it does not aver performance of a condition precedent in the lease. Appellant is certainly mistaken in this objection. The lease, as made a part of the complaint, contains no condition precedent to be performed. The lease declared on is not the lease as set up in the answer, and the lease as contained in the answer can not thereby be made a part of the complaint, so as to raise this question by a demurrer to the complaint. There was no error in overruling the demurrer to the complaint.

The first paragraph of the answer states a lease containing different terms from the written lease declared on, and in some respects contradictory thereto, but does not aver a mutual mistake in the written lease, and ask to have the same reformed. There was no erisor in sustaining the demurrer to this paragraph of the answer..

The fourth paragraph of answer sets forth a subsequent parol agreement to execute notes, with good security, for the payment of the rent. This paragraph does not show any consideration for this subsequent parol agreement, so as to make it supersede the written agreement and bar the plaintiff’s right to posssssion until the notes were so executed. There was no error in sustaining the demurrer to this paragraph of answer.

Under the third paragraph of answer, to which the demurrer was overruled, the.defendant had ample opportunity, under *40the charges of mutual mistake and the prayer for reformation, to introduce upon the trial all the facts in evidence necessary to establish the true contract, and to have a fair trial of its merits.

Filed Jan. 22, 1885.

*We*find no error in this record. The judgment ought to be affirmed.

Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be affirmed, with costs.