The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-02-02
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record, Yesterday.
Full Abstract of the Opinions Rendered
ny the Judges of the Supreme Court
Work in the Local Courts,
supreme Court-Feb. 1.
Hon. William A. Woods, Chief Justice.
GOOD WILLIAMSBURG OF DAMAGES.

GOOD WILL-MEASURE OF DAMAGES.
7,245. Chas RawsOn VS.. Fred 8. Pratt. Elk
hart c. G.
Howk, J.-suit by appellees on notes Appel
arts answered that the notes were given In part
payment for stock of merchandise and good
VIII. upon representations that the sales of the
store amounted to $50, 900 n year, when in fact
they only amounted to $4,000, wherefore the
consideration of the notes had Jailed. the court
instructed the jury that good will is inseparable
from the particular building in which business
is done, and that the value Of the good will coud
only be measured by the increased rental value
or the building; that ia, by showing how much
greater the rental value OF the building would
have been If the representations had been
true. This was not error. Good viii Is not an
incident of stock of merchandise, but OF
locality place. Appellants did not ailege
that they purchased from the appellees any in
owned or controlled any interest therein. tSee
Ia Wend., 159; 80 Mass. 3; 81 Ind, 13; 60 Pa.
St, 16l: Sedg. Dam, 6l2 Field Dam, 1861
Judgment affirmed.
CoMPLAINT-sTATUTE OF LIMITATIONS.
S,616 Lydia Devor VS.. Julia II. Rerick La
Bickneil, C.-The statute Of limitations must
be pleaded unless II atlirmativeiy appears upon
the complaint that the cause of action is barred,
notwithstanding the exceptions in the statute,
In which case the objection may be taken by de-
murrer. The complaint is on note dated Sept.
10, 1856, and due one year after date, aud moth
zig di.ile ara in reference to such exceptions.
The plaintIff was not bound to anticipate the de-
Tense OF the statute. (36 Ind, 231; 90 i'd; 1913;
n i'd, 1889 Judgment reversed
EvIDENcE-REs NEUTRALITY-SUSPICIOUS..
12,209. Alex. PUTT Jacob Beard. Mont
gomrry c. G.
Elliott i'm a suit for dam ages for an assault
and battery tine plaintiff permitted to prove
declarations made by himself in the presence of
the defendants while lying on the floor where he
had been thrown and while he was still calling
for assistance. This testimony competent
as part of the res gestie and also as being an
accusation against the defendants, which, if they
did not deny, they tacitly admitted TO be true:
n az a "a n
the refusal TO give instruction, the record must
affirmatively show that IL was asked at proper
time--that ia, before the opening OF the argH-
ment. go Ind 273; 80 i'd, 472; Busk. Prac.,
344) II the record does not show that il con-
tains all the instructions given it with be pre-
sumed that the instruction refused, II correct
one, embodied in other instruction
given, ~ Ind, 543, TT; II id; 100 Judg-
ment affirmed.
9,875. Lewis Hockett vs.. James Johnson.
Black C.-The bill of exceptions affirnatively
shows that 1t does not contain certain record
which was nut in evidence. This being so, the
questions presented by a motion for n new trial
cannot he considered, (34 Ind, ITO; AT id, 592;
4S i'd 1872. Judgement affirmed.
NEUTRALITY-SUSPICIOUS. AND PROFITS.
1882 Jonathan Edwards, trustee. VS.. James
johnson. Grant c. c.
Bicknel, Con February 6, 1873, the appel
lee recovered a judgment against one Harris,
whose land was sold execution to appel
lee and deed executed to him on March %,
1879, under which he took possession by a tenant
and held the premises until January l. 1880.
Appellant held mortgage on the
land which he foreclosed, and obtained
a sale on Sept 27, 1879, and a deed to the prem
ises on Sept 27, 1885, The question H. was APP
pellee liable TO appellant for rents from Sept.
27, 1879, to Jan. l., 1880 The case must be
held to lie governed by the act of 1861, and not
by that of 1879. The latter act TOOK effect on
May 81, 1879. The appellee was then in pos
session under his deed, and his title related
back to March 3. 1873 the date of sale. His
rights were then vested, and we're not impaired
t.afI xuht fha
owner of the property liable for rent. Appellee
was nor, therefore, liable for rent. Judgment
affirmed.
0,2l5. william FL Reed VS.. Andrew Higgins.
Shelby G. C.
Bicknel, Cit is admitted by the petit
toner that demurrer searches the record, but
1t is claimed that it only does so when the point
ia assigned for error and argued. This position
cannot be sustained. III Ind, 1922 Petition
for rehearihg overrused.
TENANCY FROM YEAR TO YEAR-NoTIcE.
$500. Elisha Comber VS.. John Hefner. Hunt
ingtOn c. G.
Woods, G. J.-Appellant rented farm from
appellee for one year, and at the expiration of
that time 1t agreed between them that ap-
pellant could continue to hold the farm as
long as he and the appellee could agree, and
that appellee should have possession whenever
he wanted it. Appellant continued 70 hold the
farm for seven years, and the question is
whether the appellee could terminate the ten
ancy without notice. The tenancy was origin
ally for year, at the end of which time it was
made n tenancy for an indefinite time, and he
came by force OF the statute tenancy from
year to year. Had there been mere holding
over without any new agreement at the end of
the first year, there would have been
an implied tenancy for another year;
out the express agreement that appellant
should stay long they agreed
and give up possession whenever the landlord
wanted it, excludes the application OF that doc
trine and makes the holding either tenancy
from year to year or tenancy at will, and in
either a notice to quit necessary.
tSee IL. Ind, 40S SO Id, ia; 40 Id, 52i. i6.)
Judgment reversed.
The following were also decided
1894. John kupper VS. Daniel Force. Pu-
laski g. c. Affirmed. Franklin, q.
1896. Henry County Turnpike Company VS..
jackson. Henry q. c. Affirmed. Black C.