No. 14,363.

#### Rapp *v.*Kester et al.

*Practice.*— Rulings *of Trial Court.*— Presumption *m Favor of.*— Supreme *Cowrl. —Affirmance of Judgment.*— Every presumption in favor of the correctness of the ruling of the trial court will be indulged by the Supreme Court, and unless the record affirmatively discloses an error of which complaint is made, the judgment from which the appeal is prosecuted , will be affirmed.

Instructions to *Jury.*— Evidence *not in Record.*— Rules *that Govern.*— Where the evidence is not in the record, a cause will not be reversed for giving ( to the jury an instruction which would be correct under any evidence that } could have been admitted under the issues in the cause. If, however, *1*the instructions are in themselves radically wrong, under any state of facts that could have been proven under the issues in the cause, and direct the minds of the jury to an improper basis on which to place their verdict, the cause will be reversed though the evidence is not in the record.

*80
      *Same.*— Counter-Claim, *Pleading a Warranty.*— Instruction, *Enlarging Terms of Warranty.*— Cause *for Reversal.*— In an action on certain promissory notes and to foreclose a mortgage executed to secure the same, the defendant filed a counter-claim alleging that the payee of the notes warranted the boilers which constituted a part of their consideration, to be sound, perfect, and in good condition, except one small leak in the end of one of them. The court instructed the jury, in substance, that the defendant must not only prove these allegations, in order to succeed, but that he must prove in addition thereto that the payee warranted the boiler and machinery to be capable of performing the work of the mill to its full capacity.

*Held,*that the above instruction was erroneous, and although the evidence was not in the record, the cause should be reversed for the giving of it, since it could not be correct under any evidence that was admissible under the issues in the cause. A party is never compelled to prove more than he alleges in a good complaint, or answer, in order to •succeed.

From the Vigo Circuit Court.

*G. W. Kleiser*and *J. H. Kleiser,*for appellant.

*J. E. Piety*and *J.*P. *Stunkard,*for appellees.

Coffey, J.

— This was an action by the appellees against the appellant on three several promissory notes executed by the appellant to ZacharaT. Kester, and assigned by him to the appellees; and to foreclose a mortgage on certain described real estate in Vigo county, executed to secure the payment of said notes.

The appellant filed a counter-claim, in two paragraphs. The first paragraph alleges that the notes in suit were executed for the balance of the purchase-price of the property described in the mortgage, and that the appellant was induced to purchase said property and execute said notes by means of certain false and fraudulent representations made to the appellant by the payee of said notes as to the condition of said property, setting out the representations alleged to be false and fraudulent.

The second paragraph of the counter-claim alleges that the notes in suit were executed by the appellant to the payee thereof for the balance of the purchase-price of the property *81described in the mortgage, which consisted of a steam flouring mill and the real estate upon which it is situated ; that the payee of said notes warranted the boilers in said mill to be sound, perfect and in good condition, except one small leak in the end of one of said boilers; that said boilers were unsound and in bad condition, being worn, rusted, burnt out, and otherwise damaged, so that they leaked in many places and could not be effectually repaired; that said boilers, in their condition at the time of said purchase, were worth one hundred dollars only, when1 if they had been in the condition as warranted they would have been worth fifteen hundred dollars.

Upon issues formed the cause was tried by á jury, resulting in a verdict in favor of the appellees for the full amount of the notes, upon which the court rendered judgment and entered a decree of foreclosure.

The only error assigned here calls in question the correctness of the ruling of the circuit court in overruling the motion for a new trial.

One of the causes assigned for a new trial was that the court erred in giving to the jury instruction numbered two. So much of the instruction as the appellant claims to be erroneous is as follows:

> *“*It is the duty of the defendant to prove by a preponderance of the evidence that Zachara T. Kester * * warranted said machinery and boilers in the mill to be sound and in good condition except one leak in the south boiler, and capable of performing the work of the mill to its fullest capacity, * * and if the defendant Rapp fails to establish by a preponderance (of the evidence) that Zachara T. Kester warranted said machinery and boilers to be sound and in good condition except one leak in the south boiler, and capable of performing the work of the mill to its full capacity, then the jury should find for the plaintiff”

The evidence in the cause is not in the record, but it is *82contended by the appellant that this instruction is erroneous when applied to any case that could have been made by the evidence in the cause. The objection urged to the instruction is that it required the jury to find much more than was alleged in the counter-claim before it could find for the appellant ; that the counter-claim alleged a warranty of the boilers, and the instruction required the jury to find that Zachara T. Kester warranted the machinery and boilers except one leak in the south boiler, and that it was capable of performing the work of the mill to its full capacity.

Every presumption in favor of the correctness of the ruling of the trial court is indulged in by this court, and unless the record affirmatively discloses an error of which complaint is made, the judgment from which the appeal is prosecuted will be affirmed. *Davis*v. *Perry,*41 Ind. 305 *; Crowell*v. *City of Peru,*41 Ind. 308 ; *Myers*v. *Murphy,*60 Ind. 282 ; *Bowen*v. *Pollard,*71 Ind. 177.

For this reason it has been repeatedly held that where the evidence is not in the record a cause will not bé reversed for giving to the jury an instruction which would be correct under any evidence that could have been admitted under the issues in the cause. *Louisville, etc., R. W. Co.*v. *Harrigan,*94 Ind. 245; *Conden*v. *Morningstar,*4 Ind. 150; *Drinkout*v. *Eagle Machine Works,*90 Ind. 423; *Beller*v. *State,*90 Ind. 448; *Cartwright*v. *Yaw,*100 Ind. 119; *Smith*v. *Stanford,*62 Ind. 392 ; *Estate of Wells*v. *Wells,*71 Ind. 509.

It is held, however, that if the instructions are in themselves radically wrong under any state of facts that could have been proven under the issues in the cause, and direct the minds of the jury to an improper basis on which to place their verdict, the cause will be reversed though the evidence is not in the record. *Murray*v. *Fry,*6 Ind. 371; *Lindley*v. *Dempsey,*45 Ind. 246; *Evans*v. *Gallantine,*57 Ind. 367; *Terry*v. *Shively,*64 Ind. 106.

With some reluctance we have reached the conclusion that *83this cause should be reversed on account of the error committed by the court in giving the above instruction.

Filed Sept. 17, 1890.

It can never be true, as a legal proposition, that a party is compelled to prove more than he alleges in a good complaint, or answer, in order to succeed.

In this case the appellant alleged, in his counter-claim, that the payee of the notes warranted the boilers, which constituted a part of their consideration, to be sound, perfect, and in good condition, except .one small leak in the end of one of them; but the jury are told in the instruction before us, in substance, that he must not only prove these allegations, in order to succeed, but that he must prove in addition thereto that the boilers and machinery were capable of performing the work of the mill to its fullest capacity.

Had the proof shown that the warranty was as assumed, still the instruction would have been erroneous, for the jury may have believed the evidence so far as it sustained the allegations in the counter-claim, and may have disbelieved it as to the matter embraced in the instruction, and not embraced in the issues in the cause.

Instructions must be relevant to the issues in the cause. *Howe Machine Co.*v. *Reber,*66 Ind. 498; *Terry*v. *Shively, supra.*

For the error above indicated the judgment is reversed, with directions to grant a new trial.