The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-03-09
THE COURT RECORD.
SUPREME COURT.

oSL LN@A
1880. Talbot VS.. English. Marion S. c.
Affirmed. Hadley, il. To constitute an
eviction of a tenant by a landlord ii must
appear that the interruption of the land
lord has for its object a dispossession of
the tenant. and is so direct and positive,
and so substantial, and permanent in char
acter, as to operate as a material, eff
%fectual, exclusion of the tenant from the
beneficial enjoyment of some part of the
leased premises. 2 Any act of a landlord,
transitory and fleeing in character, and
not performed with intent to Gust the ten
ant, must be regarded as a treSpass for
which an action for damages will lie, and
not as an eviction. 3. Eviction is either
actual or constructive. Actual, when the
tenant is deprived of the occupancy of
some part of the demiSed premises; con-
structive. when the lessor, without intend
ing to Gust the lessee, does an act by which
the latter is deprived of the beneficial en-
joyment of some part of the premises in
which case the tenant has his right of cleo
ton to quit, and avoid the lease and rent,
or abide the wrong and seek his remedy
in an action for the trespass. But In every
case of constructive eviction the tenant
must quit the premises If he would relieve
himself from liability 10 pay rent; and
whether or not he is justiiabie in so doing
is a question of fact for the jury. 4. The
covenant in a lease for quiet enjoyment
relates only TO paramount titles and TO the
personal conduct of the c~ovenantor, either
as active or permissive' and not TO third
persons. 8. A lessee is as much duty-bound
to defend his demesne against strang-
ers as to defend any other individual right.
6. While a landlord may not put another In
a situation that Will necessarily in1ure his
tenant without being answerable, he is not
precluded from making repairs. alterations
and improvements upon adjacent property,
if the work may be reasonably accom-
plished without material impairment of
the tenants enjoyment of the leased prem
ises; nor in the latter case is the landlord
prohibited from contracting with O third
person to do the work, so as to exonerate
himself from liability to the tenant. When
the situation is such as to reasonably per-
nit and the landlord provides the means
without any invasion of the tenants rights,
the law permits the contract TO be so
framed as to constitute the contractor an
independent actor, to whom alone the ten
ant must look for wrongs committed by
him, or his workmen in the performance
of the contract. And the fact that such
repairs are made under the direction, and
subject to the approval of the landlords
architect as being in conformity to the
contract, does not divest the contractor
of his independent character. nor impose
upon the landlord liability for the wrong
ful acts of the contractor, or his employees.
z. Before a creditor Is compelled to go with
less than the amount actually due him Ii
must be perfectly clear that he accepted
less with the full knowledge that II was
offered him only upon the condition, that
its acceptance should be in discharge OF
the whole claim.
1853. Litttell VS.. Burns. Clark c. G.
granted.
Minutes
1880. Henry NJ. Talbot ct al. VS.: VIII
liam E. English. Marion s. &. Eighty
ninth day of November term.
1889. c., c., c. & st. l.. Ry. Co. VS..
James B. Coffman. Marion C. c. Appel
lant,s ADDITIONAL authorities
1868. The Baltimore & Ohio southwest
ern Railway Company VS.. Thomas Il.
Jones. Jennings c. c. Appellee's brief CO.
APPELLATE COURT.
S40S. Birdsell Manufacturing Company
VS.. Loughman. St. Joseph c. c.. Affirmed.
Black, il. 1t is the duty of one who
drives or causes TO be driven by his serv-
ants upon a public highway his vehicle,
drawn by animals, to exercise due care to
have and keep the whole outfit In such
~roadworthy condition as not TO cause in
jury to others who are exercising reason
able care in the premises, and a higher
degree OF caution must be exercised In a
street of a city frequented by many per-
sons and vehicles than upon an unfre-
quented road. .. One who uses a vehicle
upon a public highway has a right to stop
and allow his vehicle TO remain a reason
able time by the roadside for his own con-
venience If thereby he does not unduly
interfere with the rights of others in their
lawful use of the highway. 3. To allow a
horse and buggy 10 remain at the edge of
a highway or at the curb of a street, If
done with due regard 10 the rights of 9TH
crs using due care TO protect themselves
and not TO injure others, is not contributing
tn an injury received by a collision with a
runaway team and wagon.
1913 Holloran VS.. Moran. Upton c. G.
Reversed. Wiley, il. When a property
owner In a city has made an improvement
in front of his lot in accordance with the
general plan for the Improvement before
the contract for the same Is made he is
entitled TO a reasonable allowance there
for upon his proportion of the cost of such
Improvement, which allowance shall be
determined by the engineer. 2. A deviation
from the contract for a public improve
ment will not vitiate the proceedings
where there is no harm done to the land.
owner and the deviation Is caused by the
direction of the City Council and a decree
of court. 3. Where a contractor for a pub
lie street Improvement has completed mis-
work and it is reported TO the City Council.
which accepts the work as completed. and
a final estimate is ordered. made and ap-
Is given where property owners affected
can appear and make objections and fail
40 do SO. they are bound by the assess
ments, even though the work was not done
In substantial compliance with the ordi-
nance and contract, except where fraud is
shown.
SiI4. City of Evansville VS.. Lenhenn.
Warrick c. G.. Affirmed. Comstock, j.
i. The law announced on former appeals
is the law Of the case. =. IL is for the jury
lumber. causing the injury complained of.
had been left in the street OF a city a suf-
ficient length of time for the latter TO have
had notice OF IL by the use OF reasonable
diligence. 3. 1t is for the court TO instruct
the jury as to the diligence required of a
city to avoid liability in an action for
damages.
1912. City of Evansville VS.. Mary f..
christy. vanderburg :. c. Appellee
ssca. e. c.. C. s St. L. Railway Com