The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-05-31
THE COURT
APPELLATE COURT.

3076. Holt, ETC., Company VS. Arthur Jor-
dan Company. Marion s.. c.. Affirmed.
Robinson, c.. il. Where a recovery is
sought upon a breach of contract 1t is not
necessary to aver the absence of contribu-
tory fault on the part of plaintiff. 2. The
distinction between actions ex delicto and
actions ex contractu is as substantial and
material under the code as before it's adop-
ton. The code may abolish the formal diff
farences between such actions, yet the In
trinsic and substantial differences remain as
before. 3. Whether the action is ex contrac-
tn or ex delictO must be determined from
the facts which are averred as constituting
the causdNof action and not from m
which are neither issuable nor material. 4.
While an express promise or words equiva-
lent to the averment of an express prom
ise was absolutely necessary In a declara-
ton In assumpsit. yet under the code a
promise need not be averred. IL from The
facts pleaded a promise would be implied
by law. 5. The paramount rule In assess
ing damages Is that every person unjustly
deprived of his rights should at least be
compensated for the injury sustained. s..
An obligation to return property in as good
condition as when received in bailment, ex-
cept II may be injured without the bailee's
fault, continues until the bailment shall
end. Z. Where a contract of bailment is
broken by the bailee the measure of the
bailoI's damages Is whatever il will take
to place him in as good condition as he
would have been had the contract been full
filled; the value should be fixed at the time
when the loss eliminates. s. A bailee cam
not terminate the bailment by taking adj
vantage OF his own breach of contract. 9.
tract is the obligation to deliver over the
property at the termination of the bail
ment; and In an action for a breach of con-
tract by the bailee when the bailor proves
the contract, the delivery of the goods to
the bailee and their return in a damaged
condition.. the inference is deducible tina
the bailee is at fault.
BIAS. Wolfe VS.. Pierce. Howard s. c..
AAHrpoA1 WILEY II II docs NOT fn11nur
that because a boy is only nine years of
age that he Is not possessed OF sufficient
discretion to realize the danger in a hazard
Gus undertaking. 2. Where there are no
facts alleged TO the contrary this court
must presume that a boy nine years old
possessed the ordinary discretion and Judg-
ment of one of his age. and was sui juris.
3. The doctrine of contributory negligence
applies to Children: varying only TO fit the
different aye and conditions.
3256. Foiz VS.. Wagner. Vanderburg C..
c.. Affirmed. Black, il. In an action for
a breach OF marriage contract where II is
shown that the defendant married another
woman IL Is not necessary to aver a request
TO marry on the part OF the plaintif. 2.
Where the evidence sustains the verdict OF
the jury. in the absence of any improper
motive of the jury I'm assessing the dam
ages, the judgment Will not be reversed on
account OF the verdict being excessive,
$500. Holiday VS.. Clusin. Howard s. c..
Affirmed. Wiley, il. II a landlord con-
veys real estate In the possession of a ten
ant. and such conveyance Is without res
ervatiOn, an action for possession must be
brought In the name of the grantee or
owner. 2 This court has not Jurisdiction
In possessory actions for real estate I'M
less the relation of landlord and tenant
exists between the parties. 3. An action
can only be prosecuted by the real party
In interest.
29Ss. Jones Co. VS.. Perry. Madison c.. c.
Reversed. Hawley. J.-Nyhere "A street i'm
provement Is made under the Barrett law
and Ia abutting property owner executes
a waiver and agrees TO pay his assessment
In ten annual fnstaliments with interest,
which waiver Is as follows: The under
signed, who have been respectively assessed
10 the excess OF so. in considera-
ton OF having the right 10 pay their re-
spective assessments for said Improvement
I'm installments. that they will not make
any objection to their respective assess
ments as 10 the iilegality or ~irregularity OF
the same. but will respectively pay the said
installments with interest thereon at such