The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-26

1856. f. IL L. Fl. Railroad Company VS..
Charles f. Montgomery. Gibson G. c.
Woods. c. J.-Where, in a suit for breach of
contract to transport flour, one witness gave
the value of the flour at Petersburg, Ind, but
all the rest of the evidence as to it's value IN
New Orleans, and the court charged the jury
that the damages should be estimated from the
proof OF values at the latter place. the defendant
was not injured by the evidence of value at
Petersburg. Where, in impeaehing q witness,
the time and Place are so fixed that there can be
no doubt that che witness spoke in reference TO
the same conversation. it is sufficient. (23 Ind,
6O4; 81 i'd, l72; 73 Id, 577J Judgment al
trmed
AFFIDAVIT AND OBSERVATION-DISCLOSURES.
1o,635. George Dyer VS. The State. Morgan
Elliott. Jan information must be supported
by an affidavit, and must charge the Same
otense as that described in the affidavit, and
where the affidavit charges that the ohense
was committed Dec, -, 1881, and the
on Jan. "a, 1881, it cannot be held that the
same otfense is intended Is Tex, 465. Ind,
quash should state specifically the grounds of
objection. $50 Ind, 1909 There is doubt
that Justice would be subserved by requiring
this but 1t is for the Legislature, and not the
courts to make the requisite change in the law.
Where a motion to quash is interposed, there is
no right TO amend the Information in this court.
t7o Ind, 1907 Judgment reversed.
TITLE To observation-disclosures
1927. sitha somers VS.. Isaac somers ct al
Marshall c.. G.
Best C-AppeIlee recovered ,judg-
execution thereon was levied on the
property in controversy, which appellant
claimed to have purchased from said Joshua
long before the Judgment was rendered. Appel
lee was permitted 10 show that Joshua claimed
the property until about the time the judgment
was rendered. This error.
Joshua Somers was not party to the suit, ana
his statements, not made in appellants presence.
were mere hearsay. (65 Ind, 49, IT i'd, 1901
The claim was not a statement in diRparagement
of his title, and WAS therefore, not admissible on
that ground. Judgment reversed.
10,493. America Peaoher vs. The State Or
Woods, g. J.-Appellant was convicted OF open
ana notorious tornlcation under section u OF
the misdemeanor act. q R s., 1876. 1860 The
conviction. Judgment reversed.
LEAsE-TERMfNATIoN BY NOTICE
981o. James G Ricketts, We. Joseph P. Rich
ardson. Ripley G. c.
Bickpell, C-Where land is leased for cultivR-
ton, and a house with it in the same contract,
the land to be paG for by part OF the crop, aud
$25 to be paid for the house six months before
the expiration OF the lease, the nOnDayment OF
the S25 will not authorize the land
lord to determine the entire lease
by notice to quit In ten days,
nor will the breach of a stipulation to keep down
weeds in the fence corners enable tina landlord
to terminate the tenancy upon such notice
Judgment affirmed.
CONTRACT TO coNvEY-wIFE's INcHoATE INTER
1868. Matilda Jarooe vs. Henry SEVERN.
Clay c. C.
Black, C.-Compaint by appellant alleging
that she Joined with her husband in deed of
conveyance to the appellees OF certain land in
which she had au lnchoate interest of the value
of 50 900. IN consideration of which appelIees
agreed to convey to her a certain house and lot,
but refused ts do 40. Prayer for damages, and
that the amount be declared lien said lot.
The contract for tho conveyance of said lot net
being alleged to have been in writing, must be
regarded as verbal. t57 Ind, 1929 The com
plant cannot, therefore, be regarded suffi-
GENTLY setting forth cause of action for the
breach OF contract to convey land, ana damages
cannot be recovered for such a breach
because OF the statute of frauds. party
who has performed his part must recover upon
an agreement implied from the facts. This i'm
plieo agreement is that the vendor, unable or
unwilling to convoy, will return Whatever he has
received its value. (3Towns, Stat. Frauds.
section lis: 90 Ind, 1. z; 2 Chit. Pl, 287; 60
Ind, 62.) The statute OF frauds merely prevents
an action upon the contract, but does not forbid
proof OF the special contract, ami upon this APP
pellant has the right to recover back the value
of what she parted with. Judgment reversed.
EsTATEs-sTATUTE OF LIMITATIONS.
1904. Uriab Candy vs. Elizabeth Coppoek.
Grant c. @.
Franklin, C.-In the trial of claims against
estates prior to Feb 4, 1881, the statute of limi
tations may be enforced without specially plead
ing it. (67 Ind, l74 &c i'd, 345.) Aud the same
is true of trials of such claims had after Sept.
10, 1881. But between those dates there was an
in force Iacts, 1881 2O), which required spe
cal def Asses in snch cases TO lie pleaded 80 Ind,
531) That act was in force when this case was
tried, and the sum of 1926 of the claim was for
services rendered within six years prior to filing
the Claim. For That amount the Judgment Is
good. For the services rendered the decedent
while she was feme covert her estate is not
liable. Her mere acknowledgement after she
became feme sole OF prior agreement to pay
for the services did not constitute promise to
pay. Affirmed conditionally.
EQUITY CAsEs-RIGHT TO TRIAL BY COURT
9,943. Victor K Hendricks ct. al. vs.. Mayer
Frank eJ al. Hamilton G. G.
Morris, C-The complaint of the anpelleas al
legged that they severally held claims against
John W. Sanders, who was possessed of a stock
of goods worth $4,000; that he transferred the
stock to appellants, who agreed to sell enough of
the goods to pay their own claim OF $4,000 ANA
return the residue to Sanders for the benefit
of his other creditors; that they kept all the
goods, etc. Prayer that appellants might be re-
quired to account and for judgment against
Sanders. The question is whether, under SEQ
ton 400 of the code of 1881, the case was one
which appellees had right TO have tried by the
court as of exclusive equitable jurisdiction Tho
manifest purpose of the section to dispense
with jury in cases which. before the adoption
of the code OF 1852 were triable by the court as
a court of equity. His Honor considers the
complaint, the rights of the plaintiffs and the
relief demanded, and concludes that at law they
could not have maintained an action unon the
facts alleged. 4 Ind, 6l5; Bkf., 347 z i'd,
544 Ind, 176; Id, 1919 The complaint is
in the nature of bill in equity 10 enforce "A
tract made by other parties for their ben eff, and
to charge appellants as trustees liable to account
to appelees for funds in their hands Prior to
June 1S, 1882, a court OF equity would have
mad exclusive jurisdiction of the cause, and
pelees had right to have trial by the court.
Judgment reversed
Tho following cases were also decided:
5000. Rogers VS.. ZOok. Huntington c. C.
Affirmed. Howk, j
9.651. Stout VS.. Duncan. Monroe c. c. Re-
versed. Bieknell, G.
9,545. Hopper vs. Lucas. Montgomery c. C.
Reversed. collars, j.
$500. McCOmus vs. Long. Montgomery c. c.
Alarmed. Morris. C.
9,747. NugenU vs.. I4aduke. Clark c. C. Re
versed. Black c.
1O,022. Jeffries VS. Kilroy. POsey c. c.
Affirmed. Franklin, c.
9,9O3. Wilson VS.. Moore. Sullivan c. c.
Affirmed. Franklin, G.
Superior Court
Rnnm No l-Hnn. Nannlann Ii. TAYLOR Inhrn