The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-10-20

plalnt containing all the averments necessary to
identify the land. g Ind, 3l6; 20 i'd, 11S) 1t
was averred that the plaintiff offered to make the
advance payment as required by the contract,
and that the defendant refused to receive it
to Keep the contract on his part, This was
sufficient excuse for not making demand for
the fulhllment of the contract. The demurrer
60 the complaint should have been OveTruled.
Judgment reversed.
PLEADING-ESToPPEI.
1861. Barney Stewart vs.. Alfred D. Beck.
Boone G.. c.
Elliott, J.-Complaint by appellant to enjon
the construction of gravel road across his
land, averIing that the engineer and contractor
were opening the road on line different from
that ordered. Answer: That the engineer and
viewers at the time of surveying the line, set
stakes along the center of the proposed road and
proceeded to construct road accordingly; that
appellant was one of the petitioners was present
when the road was located through his premises,
gave bis consent thereto, and with knowledge of
all the facts permitted the work to progress I'M
VI more than half completed plea OF estop-
pei must clearly and fully set forth all the facts
essential to the existence OF an estoppel leaving
nothng to lntendment. az Ind, AS; rs i'd,
3Sl.J THIS answer is bad. IL does not deny that
the road was being opened off the line ordered,
and fails to show with sufficient certainty any
act OF appellant estOppng him from enjoining
! appellees from taking part of his land not EN-
Draced in the order judgment reversed.
CoMPLAINT-FAILURE TO FILE COPY.
1854. Anderson School Township James
A. Thompson. Madison c. G.
Howk, J.-Action by appellee on a written
contract for the building of a school-house No
copy OF the contract was filed with the com
plHlnt, the excuse assigned for the failure being
that the original was in the hands of the defend
ant, who refused to surrender it. This excuse
was not sufficient. The township trustees office
is public one, and its records are open to the
public, and appellee was entitled 10 an inspec-
ton OF his original contract on file in the office,
! from Which he might have obtained COPY. 1t
| Is also to be presumed that upOn reasonable re-
quest the trustee would have furnished copy
OF the contract The complaint was bad on de-
murrer Judgment reversed.
BILL OF ExCEPTIoNs-FILING,
$500. Isaac d. Armstrong ct al. vs. Enos
Hershman. CLINTON G. q.
Hammond, J.-Thls is the third appeal in this
case. (43 Ind, 1876: 81 i'd, 52) On Jan 20,
1880, sixty days were given appellants In which
to fe their bill of exceptions. What purpOrts
TO be a bill of exceptions, containing the evil
uence, appears in the record but there is no
statement in the body of the record showing
that IL was ever filed in the clerks Office. The
| Transcript of the clerk however, Is dated March
10. $780, which was within the sixty days. he
certificate OF the clerk following the transcript
Is that the above and foregoing is full, true
ana complete Transcript in the above entitled
cause, as the same appears of record on file in
my office" Under the authority OF 43 Ind, 1872,
and 60 i'd. $685. the bill must he regarded as
flied and as filed in time. There 10 evidence
| fairly tending to sustain the verdict. Judgment
affirmed.
RAILROAD OBSERVATION-DISCLOSURES
1896 l.. B. & W. Railroad Company VS..
Elam s. McBrOom. Vermillion C. G..
Morris, C.-Appeilee's comp lant alleged that
the company negligently permitted combusthe
matter 60 gather on the line of it's road. and
neggently set fire to the same, and that the fire
so started communicated to appeee's fence and
destroyed it. This complaint insufficient.
because there is no averment that appellant
neggently suffered the fire to escape from its
right-of-way 100 Ind, 469; 70 i'd, 111) Judg-
menJ reversed.
MISUNDERSTANDING.
10479. Town Of Albion vs. John Hetrck.
Bickneu, C.-Appellee's complaint alleged
that the defendant after notice, permitted
gully from one TO three feet deep TO be in its
street; that in attempting to said gully
with load of hay the plaintiff was iujured that
he saw the gully but believed it reasonably
safe 10 attempt TO cross it. etc. The question
whether in attending to cross the gnilv the
plaintiff was in fault, was question of fact for
the jury. 1t Is only when the standard of duty
is fixed and certain, where the measure of
duty is defined by law and is the same under all
circumstance, or when the negligence is so clear
and palpable that no verdict could make it
otherwise, that the question of negligence be-
comes one of law and not of fact 90 Ind, 500;
IS i'd, 261; II i'd, 90; 2 Thomp. Neg, sec 52.j
(2l witness may give his opinion as to
whether a road is out of repair or In "A dangerous
condition, but not as to whether a prudent man
would have ventured to cross it with a load OF
hay. That would be equivalent to saying
whether or not the plaintiff was guilty Of con
tributory negligence There no error in
giving or refusing Instructions Judgment af-
hrmed.
LEAsE-DEscRIPTIoN-No TO QUIT.
1912. Olney Whippe VS.. James A. shewal-
ter. Jay c. c.
Black, C-sut by appellee to recover possess
sion of real estate, unpaid rent and damages for
unlawful detention. Held: the complaint so far
as it it sought TO recover possession and damages
for unla wful detention. was not founded on the
lease, and it was not necessary to file a copy of
it with the complaint. The appellee sought also
the recovery of unpaid rent due under the lease,
which described the premises as the appellee's
"brick stOre-roOm." Having gone into posses
sion under the lease, appellant could not eseape
payment of rent on the ground that the premises
not described in the lease as to their lOca-
ton, The lease was sufficient exhibit to Ihe
~ N "a nj Dn nOfin
to quit described the premises held as the tenant
of the person who gave IL by the person to whom
given with sufficient certainty to apprse the re-
elpient as TO what premises were demanded.
This was sufficient. If the complaint showed
two causes of action impro perry joined, appel
liant should have demurred for that cause. The
case having gone to trial upon the complaint,
the plaintiff was entitled to recover, not only
damages for the unlawful detention, but the rent
due up to the time when the possession became
unlawful. Judgment affirmed.
JUDGMENT-ACcoRD AND SATISFACTION.
1O,526. Thomas A. Fletcher VS.. Adolph
Wurgler. Marion c. C.
Morris, C.-Proceedlng by appellant to revive
a Judgment against apptllces. Answer, admit
ting the Judgment but averring that atIerward,
while proceeding was pending against defend
ant and his wife (who was not a party To the
judgment) to subject property claimed bv the
wife TO the payment of the same, plaintiff and
defendant entered into an agreement by which
the defendant was TO pay $3.50 in full payment
and satisfaction of said Judgment, which was
done, and the pending action dismissed bv the |
plalntiH. Where a debt Is due the payment of
a sum less than the whole will not discharge the !
debt. unless there Is some new consideration. |
The dismissal of the pending suit could not con
stitute such consideration. as 1t must have pro- !
ceeded from the defendant, and not from the |
plaintiff, nor did the expressed desire of the par
ties to avoid liTiggtIon not constitute such con-
sideration, nor the agreement OF the plaintiff to
save the defendant harmless from the payment |
of the Judgment. The court erred in overruing
the demurrer to the answer.
The following also decided, of which alb
stracts will appear on Monday:
Vim. F. Combs VS.. VIM. Nelson. Posey G. c.
Affirmed. Bicknel, G.
Theodore Heagy va. Noah Black KOsciuskO
c. C. Reversed. Black, G.
Reuben Shaetfer VS.. Elizabeth Shaeffer. St.
Joseph G. c. Affirmed. Best, Z.