The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-03-10

day 5 trial 1t did not work well, the purchaser should
give immediate notice to the agent and allow time TO
put it in order. and if it was not then made to work
well the purchaser should return it. The answer
alleged that the agent was present when the machine
broke down. on SATURDAY.. and agreed to return on the
following Tuesday aad put it in repair, which he failed
TO doi that appellee offered to return the machine. but
the agent informed him he need not DO so, as he would
not receive it. This answer showed "a sufficient notice
to appellant Of the defective condition Of the machine
and a sufficient excuse for his failure TO return ii.
Judgment affirmed.
RAILROADs-wILLFUL INJURY.
1927 l., b. & w. Railway Company VS.. Eli
Burdge. Marion S. c.
Bicknell G. G-Appellee's complaint charged that
he was a day laborer and was riding on the platform
of appellants train; that it was the custom Of such
passengers on said train. with the consent of those in
charge Of the train. to ride on the platforms and pay
their fares there; that the engineer Of the train. in 4
wiliful, reckless, careless and unlawful manner, let on
such a volume ST steam as caused the train TO jump
and jerk 50 suddenly that appellee was thrown from
the platform and injured. As the complaint charges
a %iiIini injury it presents no question as to coEtrlbg-
road company may be liable for the willful acts of its
servants within the scope of their employment. (3S
Ind, liG 81 i'd, 300 Under the allegations Of the
that the injury was willful. There was no evidence
tending to show a winful injury. Judgment reversed.
PLEADING-vERDIcT-HARMLEss ERROR.
HIPS; L. \. a. & G. BY, Co. VS.. VIM. 6. Davis.
Washington G. c..
road where the same was not fenced. The first para
graph Of the comrlai1t was good, and as the verdict
was for appellant ON the Second paragraph. there was
no available error in overruling the demurrer thereto.
If on the trial a pleading is found not to be true, the
error, if any, of overrulinga demurrer to it is harm
less. q Ind L. Mag, 25S) Judgment affirmed.
PLEADISG-PLAINT1FF IMPROPERLY JOINED.
10S22. Mahala Darkies ct al. VS.. Thos. L. Bellows.
Clark C. c.
Franklin. C.-Actio by appellants to quiet title. The
complaint alleges that Mahala narkies has a life es-
tate in the land. but afterward shows that she con-
veyed all her interest to her co-plaintifs, thus show
ing that she had no interest remaining Where two
or more plaintiffs unite in n joint action, and the
facts stated do not show u joint cause of action in
them, a demurrer viii lie upon the ground that the
complaint does not state facts sufficient to constitute
a cause of action. t23 Ind, 523: 80 id, O. IS id,
$40; 81 i'd, l17.) Judgment affirmed.
COMMISSIONERS COURTS - PLEADING COUNTY
BRIDGES.
lOS39. Commissioners Porter County VS.. Frank
Dombke. Porter G. G.
board OF commissioners for injuries sustained through
a DEFECTIVE county bridge. There was an appeal to
the Circuit Court. 1t is objected that the complaint
does not show that the injury occurred without
the fault of appellee. Facts sufficient care
shown to fully apprise appellant OF the
nature of s~pperees claim and to make a Judgment on
them a bar to any other action for the same cause.
This was sufficient. Formal p~leadings are not required
in the. commissioners court. go Ind, 362) A per-
son who knows OF the dangerous condition of a bridge
or highway, If the danger is not Of a character as that
a prudent man would not encounter it, may use the
bridge in a proper manner, but If he undertakes to use
1t he must exercise care proportional to the known
danger. (S9 Ind, 205; S3 i'd, T6; II i'd, 30; rs i'd,
49p) judgment affirmed.
10340. Commissioners of Porter County VS.. Rosa
kcselke. Porter c. G.
Elliott, This case is affirmed on the authority of
the Board VS.. Donbe. supra.
MoRTGAGED REAL EsTATE-wIFE's INCHoATE IN
TEREST.
10964. John D. Almond VS.. Preachers Aid Socie.
ty ct al. Decatur c. c.
Colerick, C.-Appellant alleged in his complaint
that he had a judgment against Burk which was a lien
on certain land encountered by a prior mortgage TO
appellee; that appellee brought an action to foreclose,
making appellant a party therefor that upon the as
suranee OF .appellee's attorney that nothing was sought
in tho action except an ordinary Judgment of fore
closure; appellant did not appear to the suit; that APP
pellee then dismissed the suit as to Mrs. Burk upon an
%agreement that her father would pay whatever sum
the interest Of Burk should fall short of paying the
mortgage debt in full; that bv this arrangement the
interest of Mrs. Burk in the land was protected
from sale under the mortgage. There was nothing
in this Of which appellant could complain.
action he could not have caused the interest of Mrs.
Burk to be sold to pay his Judgment, az it was against
only liable for its payment. (66 Ind, 5O5) Nor
could he have prevented her from obtaining an order
requiring the interest OF her husband to be first sold.
90 Ind, 5G7; 20 i'd. 500 Where the complaint is
insufficient an injunction in the action is properly re-
fused. (GS Ind, 32O) Judgments affirmed.
KILLING OBSERVATION-DISCLOSURES.
1854: Lake Erie & Western Railway Companyys.
VIM. r. Parker. Madison G. c.
Bicknell, c. G-ln an action against a railroad for
killing stock, it Is not necessary to show that the ami
NAL was struck by the train by a witness who saw 1t.
IL IS Sut1clent to prove facts from which the jury NAV
reasonably infer such contact. r.. Where, at the
trial, a question is objected to as being irrelevant and
immaterial, the objection that it sought the opinion of
the witness cannot be made in this court. (72 Ind.
81; so id, 60 Judgment affirmed.
MARRIED Observation-Disclosures DEBT.
1OO27. Mary E. Allen vs.. John Davis. Grant c.
Best C.-To an action to foreolose a MORTGAGE exc.
cnted Sept. %, 1881, appellant answered that she
owned the land and that the mortgage was given to
secure a debt of her husband. These facts, if estab-
hshed, rendered the mortgage void. At the trial she
testified to these facts, and adeposition of her deceased
husband was read, in which he testified similarly. II
was then shown that the husband had made state
ments to a different effect. This only tended to i'm
peach him and did not tend to establish the truth Of
such statements; nor could they be considered as dis
putting the facts to which appellant testified and ma
she was not otherwise contralicted her testimony was
undisputed. Her motion FOR a new trial should have
been sustained. Judgment reversed.
NFA MARRIED woMAN's MoRTGAGE-AFFIRM-
ANCE
1O3s1. Robert C. Losey ct al. VS.. Jonathan Ed
wards, trustee. Marion s. c.
Best, C-In 1874 Robert C. Losey borrowed So.
600 of appellee and he and his wife, Emma. executed
a mortgage on her real estate to secure the loan. She
was then a minor, but after coming of full age they
conveyed the land to Marquis d. Losey, the deed
STIMULATING that the grantee took the land subject to
the payment of the mortgage. Through subsequent
conyeyances the. land came again to said Emma, who
sets up her infancy as a defense to the mortgage. The
question is whether her subsequent conveyance
amounted to an afirmance of the mortgage. An in
FAINT feme covert may convey or incumbcr her lands
by deed IN winch her husband JOINS. "A Ind, 4O3; II
i'd, rs; 81 i'd, 6S( The instrument may he affirmed
by her after attaining full age. al Ind, $50; 81 id.
204l The recital of the imcumbranee in her subse-
quent deed was such a recognition Of its contin-
ued existence as amounted to an affirmation of it's
validity. Il Pass. Cont, 500; Is Mass, 22O; 10
Miss, 1913; 2 ed. Oh. r., 544; 5 4. B. Mon, 315J
The right reserved by the grantors to resort to the
property, and the promise thus made for its payment,
fixed the mortgage as a charge upon the land. and OPP
Grated as a confirmation of the mortgage. Judgment
affirmed.
SALE OF CHArTELS-NEAsURE OF DAMAGES.
11067. Mary Dwiggins VS.. Milton Clark. Mont
gomery c. c.
Black, C.-Appellant contracted with appellee for
the purchase of q monUmen to be manufactured ac-
cording to certain specifications. Upon its completion
she refused to receive it, and this action was to recover
the purchase price. In such contracts the measure of
damages is governed by the question whether the title
fine hu-ar orr MS sill. E....im:m- I'm .a ..IL.. l.. d.