The Jeffersonville, Madison, and Indianapolis Railroad Co. v. Parkhurst.

cepted to; third, that the verdict was contrary to the evidence; fourth, that the court overruled the motion of appellant for a new trial; fifth, the court overruled demurrers to the first and second paragraphs of the complaint.

Upon the saying that the first shall be last, and the last shall be first, we will commence with the last assignment; and upon this it is enough to say that, as no objection in any form was taken to these paragraphs in the common pleas court, though they were demurred to before the justice of the peace, and the demurrer by that officer overruled, we cannot inquire as to their sufficiency.

We cannot reverse, affirm, or modify, the rulings or judgment of a justice of the peace brought before us in this form. We can only take notice of the proceedings of the court of common pleas.

As to the fourth assignment, we think there was no error in overruling the motion for a new trial.

As to the third assignment, we have only to say, that it is not known to our law or practice as an assignment of error, and can only be regarded as an argument or reason under the fourth assignment of error.

As to the second assignment of error, refusing to give instruction asked, which was as follows: "If the jury find from the evidence that the cow in question came upon the railroad track, and was killed, within the corporate limits of the city of Franklin, then the plaintiff cannot recover on the first paragraph of the complaint herein," there was no error in refusing to give this asked instruction. The Indianapolis and Cincinnati R. R. Co. v. Parker, 29 Ind. 471, and cases cited there.

The first assignment of error is the giving of instructions, which are as follows:

"Ist. This is an action by the plaintiff against the defendant to recover damages for the killing of a cow on the track of the defendant, in Johnson county, and the plaintiff sets up in his complaint two grounds of recovery.

"2d. The first paragraph of the complaint alleges that the

The Jeffersonville, Madison, and Indianapolis Railroad Co. v. Parkhurst.

cow was killed at a point on the railroad where it was the duty of the defendant to fence against stock, and that the defendant had not so fenced in her track, by reason of which the cow strayed upon the track, and was thus killed.

"3d. The second paragraph of the complaint alleges, that the defendant so carelessly and negligently ran her locomotive and cars over the road, that the cow was killed by reason of such negligence in the defendant.

"4th. To enable the plaintiff to recover on the first paragraph of the complaint, he must show that the place where the cow strayed upon the railroad was at a point where the company were bound to fence the road, and that such point was not so fenced, or that such point was where the company were bound to maintain a cattle-guard, and that such guard was not in proper condition to keep stock off the track of the road.

"5th. If you should find from the evidence in this case that the place where the cow got on the track was inside the corporate limits of the city of Franklin, you must further find that such place was not at the crossing of any street or alley, or at a point where, from the necessary use of the grounds, it would be unlawful or unreasonable to require the railroad company to maintain a fence, before the road would be liable for not fencing.

"6th. The railroad company would not be bound to erect and maintain cattle guards at the crossings of the public streets and alleys inside the corporate limits of the city of Franklin, nor would said road be bound to fence the lots lying on either side of her track between the crossings of such streets or alleys over the railroad; but beyond such crossings, the road would be bound to maintain her fences and guards, the same as if running outside the corporation."

We think and hold that there was no error in giving these instructions, and that they were clearly the law of, and proper in, the case. The appellant could not complain of them.

The judgment is affirmed, with ten per cent. damages and costs.

Sangster v. Prather.

G. M. Overstreet, A. B. Hunter, D. D. Banta, and C. Byfield, for appellant.

S. P. Oyler and D. W. Howe, for appellee.

SANGSTER V. PRATHER.

VENDOR AND PURCHASER.-Fraudulent Representations.—Measure of Damages. Where in a sale of an undivided one-half of a tract of land, the vendor falsely and fraudulently represented to the purchaser that there was then upon said land a house of a particular size and description;

Held, that the measure of damages for the lack of such house, in a suit by the purchaser against the vendor for such fraudulent representation, was one-half the amount of the increase there would have been in the value of said land if there had been such a house upon it at the time of the sale, and not merely one-half the amount of money it would then have taken to put such a house on the land.

APPEAL from the Fountain Circuit Court.

DOWNEY, J.-This was an action brought by the appellee against the appellant for fraudulent representations with reference to the quality, situation, improvements, and value of certain real estate, the undivided one-half of which he had conveyed to the appellee. Among other alleged false representations was this: that there was erected and finished on the land a frame house containing three rooms, except that the rooms were not plastered.

Issues were formed, and there was a jury trial of the case, and finding and judgment for the plaintiff. A motion for a new trial was made, on the grounds that the verdict was contrary to law and not sustained by sufficient evidence, and because the court refused proper, and gave improper, directions to the jury. This motion was overruled, and the defendant excepted. The evidence is not in the record.

It is assigned for error, first, that the court erred in refusing to give a certain instruction asked for by the defend

ant, as shown by the bill of exceptions; second, the court erred in giving a certain instruction over the objection of the defendant below; third, in overruling the defendant's motion for a new trial.

The whole case is reduced down to the single question relating to the instructions.

The defendant asked this instruction: "That in case the jury find from a preponderance of testimony that the defendant represented a house of a particular size and description, and further that the jury find that the plaintiff is not barred by the statute of limitations, that there is a measure of damages for the lack of such house in the amount of money that it would have taken at the time to put such a house on the land, and that one-half the value of such house will inure to the benefit of such joint owner."

The court refused to give this charge as asked, but modified it by leaving off all commencing with the word "amount," and extending to the end of the charge, and giving in lieu of that part of it these words: "difference in the value of said land with said house on it and the value without it, and one half the increased value of the land with the house on it would inure to the benefit of such joint owner."

Without avoiding the direct decision of the question presented, which, as the evidence is not in the record, perhaps we might do, we think the instruction as modified was right, and that the instruction as asked was not correct. To estimate the damages at one-half of what it would cost to build the house as the rule, would deprive the plaintiff of the use of the house during the time that would be consumed in its building. We think that the rule given by the court to the jury by which to measure the damages was the correct one. The charge of the court, as modified, was sufficiently favorable to the defendant, and he has no good reason to complain of it. This was not a suit for breach of contract, but was for a tort. The rule applied to the case by the court was the rule in suits on contract. Jones v. Van Patten, 3

Ind. 107; Street v. Chapman, 29 Ind. 142.

The President and Trustees of Hartsville University v. Hamilton.

But this was a suit for fraud, in which the jury is not confined to exact pecuniary compensation, but may, under some circumstances, go beyond that. Millison v. Moch, 17

Ind. 227; Taber v. Hutson, 5 Ind. 322.

The judgment is affirmed, with five per cent. damages and

costs.

J. Ristine and S. C. Willson, for appellant.

T. F. Davidson and J. M. Butler, for appellee.

THE PRESIDENT AND TRUSTEES OF HARTSVILLE UNIVERSITY V. HAMILTON.

PLEADING.-Abatement.—Corporation.—In a suit on a promissory note executed to a corporation, brought by the payee against the maker, the fact that the corporation has ceased to exist since the execution of the note may be pleaded in abatement, but not in bar. Such answer in abatement must show that the corporation has come to an end by some legal process; the facts upon which the forfeiture of its franchises might be declared cannot be tried in such collateral suit.

Fraudulent Representations.—A false representation upon which fraud may be predicated must be of an existing fact, or a fact alleged to exist at the time, and cannot consist of a promise to be performed in the future or of a false statement as to the legal construction or effect of a written contract executed by the person to whom the representation is made at the time of the making of the representation. CONTRACT.-Consideration.—Certificate of Scholarship in University.—In a suit on a promissory note executed by the defendant to a university for a perpetual scholarship therein, the fact that no certificate of scholarship has been delivered or tendered to the defendant cannot constitute a defense.

APPEAL from the Clinton Common Pleas.

PETTIT, C. J.-Suit by appellant against the appellee on five promissory notes, all of the same date, tenor, and effect, except as to the time of payment, as the following copy: