want of facts was sustained as to the third. The issues joined were submitted to a jury for trial, which returned a general verdict for the defendant. The plaintiff's motion for a new trial was overruled, and judgment rendered on the verdict in favor of the defendant. The errors assigned are: (1) The overruling of the demurrer to the third paragraph of answer; (2) the sustaining of the demurrer to the third paragraph of reply; and (3) the overruling of the motion for a new trial. We will consider them in the order named.

The third paragraph of answer alleges that, after the recovery of the judgment as stated in the complaint, the plaintiff and one Sarah Farr and one William Farr desired to borrow $11,000, and to secure the loan by mortgage on 225 acres of land, situated in Wabash county, owned by the plaintiff, James B., Sarah, William, Charles, and Cora Farr, as tenants in common; that the purpose of securing said loan was to use the money to pay off judgments, aggregating the sum of $8,000, which had been rendered against the plaintiff and William and Sarah Farr, which were liens upon their respective interests in said lands; that at the same time the defendant held a judgment against the said Sarah Farr, in the sum of $868 and costs of suit, which was a lien on the interest of Sarah Farr in said lands; that the judgment named in the complaint was also a lien on the interests of the plaintiff, Sarah, and William Farr in said lands; that owing to the existence of said judgments, and the liens thereof, the plaintiff and Sarah and William Farr were unable to procure said loan unless the liens were removed; that, to secure a removal of said liens, the plaintiff and William Farr and Sarah Farr entered into a written agreement with the defendant, in which it was agreed that if the defendant would pay off one-half of the judgment held by the bank, and cancel and release 15 per cent. of the judgment held by him against Sarah Farr, and would release all liens, in judgment or otherwise, held by him against the plaintiff, James B., William, Sarah, Charles, and Cora Farr on said lands, they, the said James B., Sarah, and William Farr, would pay one-half of the bank's judgment, and release the defendant from all further liability thereon; and that it was further agreed with the defendant that the payment so made by William for Sarah Farr and the plaintiff should be a payment by William Farr on the debts of the firm of Farr & Bach; and that the defendant fully complied with said contract on his part. It is also averred that a copy of the written agreement "is filed herewith."

The second paragraph of answer, to which a demurrer was sustained, is copied into the record. This paragraph was based on the same written contract, and it is referred to therein, and it is alleged "that a copy of which is filed herewith." Following this

into the record. This is the only place in which it appears, and the appellant earnestly insists that the third paragraph is bad for want of the original or a copy of the contract. It is well settled that where several paragraphs are based upon the same written instrument, each professing to set out a copy, one copy is sufficient. To require more would unnecessarily incumber the record. Maxwell v. Brooks, 54 Ind. 98. The contract copied into the transcript conforms in all respects to that described in this paragraph of answer. It is sufficiently identified to make it a part of this answer. Engine Co. v. Hensel, 9 Ind. App. 328, 36 N. E. 716; Insurance Co. v. Hazelett, 105 Ind. 212, 4 N. E. 582.

The appellant further contends that the contract which is the basis of the pleading is invalid for want of consideration; that the appellee was bound in law to pay the whole of the judgment, while the appellant was only liable thereon as a surety; that they were each bound to pay the whole debt. It is well settled that a promise to pay a debt for which the promisor is already bound does not constitute a sufficient consideration to support a contract. Harris v. Cassady, 107 Ind. 158, 8 N. E. 29. But this principle has no application here. The relation of principal and surety is not identical with that of creditor and debtor. If a surety contracts to assume a part of the principal's obligation, and release him therefrom, he may do so. Here the principal was relieved of a part of his obligation, and his surety, with others, assumed it, and, in consideration therefor, he surrendered a part of another judgment held by him, and enabled the surety and others to raise money on their lands to discharge other liens. The answer is sufficient.

As to the second assignment of error, questioning the sufficiency of the third paragraph of reply, it is sufficient to say that the appellant admits this paragraph to be equivalent to a plea of want of consideration for the agreement referred to in the answer. The second paragraph of reply being want of consideration, there is no available error in sustaining a demurrer to the third.

The last assignment brings in review the overruling of the motion for a new trial. Many reasons for a new trial were urged. These reasons all depend upon the evidence, and on certain instructions given to the jury. The appellee makes the point that all the evidence is not in the record. The bill of exceptions recites, at the end thereof, that "this was all the evidence given in the above-entitled cause." In the body of the bill is this statement: "Counsel for the defendant here introduces and reads in evidence the contract between the Farrs and David Bach, which is marked 'Exhibit 1.'" This contract nowhere appears in the evidence, as appellant concedes. It has been uniformly held that the general statement will not control when it

affirmatively appears from the body of the bill itself that it does not embrace all the evidence given in the cause. If the omitted evidence be much or little, the appellate court will not decide any question which depends, for its proper consideration, on the evidence. Rhea v. Crunk (Ind. App.) 39 N. E. 879. True, this rule does not prevail when the question presented does not depend on the entire evidence. Insurance Co. v. Sisk, 9 Ind. App. 305, 36 N. E. 659. All the material questions presented under the motion for a new trial here depend upon a consideration of all the evidence.

The judgment comes to this court with every presumption in favor of its correctness, and it is incumbent on him who assails it to present a record affirmatively showing its infirmity. In the absence of all the evidence, this presumption must prevail. Judgment affirmed.

1. In an action to recover for injuries suffered by falling into an open ditch in the street, findings that plaintiff knew of the ditch; that the night was dark; that she had reasonably good eyesight, and was walking carefully when injured, are not sufficient to support a verdict in her favor, in the absence of a finding that she was looking out for the ditch, or paying attention to where she was stepping, at the time of the injury.

2. In an action to recover for injuries suffered by falling into an open ditch in the street in front of plaintiff's residence, there is no error in admitting evidence touching the surroundings, and the means of ingress and egress to and from plaintiff's residence.

Appeal from circuit court, Lawrence county; R. W. Miers, Judge.

Action by Rachael Rogers against the city of Bloomington to recover for injuries suffered by her through defendant's negligence in leaving an open ditch in one of its streets. On a former appeal a judgment for plaintiff was reversed (36 N. E. 439), and from a second judgment for plaintiff defendant again appeals. Reversed.

Duncan & Batman, for appellant. & Miller, for appellee.

East

DAVIS, J. This case is here for the second time. 9 Ind. App. 230, 36 N. E. 439. On return to the lower court, the venue of the cause was changed, an amended complaint was filed, and a trial by a jury resulted in a special verdict, on which judgment was rendered in favor of appellee for $1,600. The jury find, among other facts, that appellee knew the ditch was in the street, that the night was dark, that she had reasonably good eyesight, and that she was walking slowly and carefully when she was injured. There is no finding that she was using her

sense of sight, or that she had the ditch in mind, at the time, and that, in view of her knowledge of its existence, she was looking out for the ditch, or paying attention to where she was going. Neither is the inferential fact found that she was, under the circumstances, using due care and caution on her part at the time she was injured. City of Bluffton v. McAfee (Ind. App.) 40 N. E. 549; Railway Co. v. Grames, 136 Ind. 39, 34 N. E. 714; Railway Co. v. Costello, 9 Ind. App. 463, 36 N. E. 299; Railway Co. v. Sears (Ind. App.) 38 N. E. 837; Railway Co. v. Klitch (Ind. App.) 37 N. E. 560. The finding, in a special verdict, that an injured party, at the time of receiving the injury, was in the exercise of due care, is in many cases such a conclusion as should be disregarded; but, where two inferences may be reasonably drawn from the facts and circumstances descriptive of the acts and conduct of the injured party at the time of receiving the injury, then, under the authorities cited, it becomes a question for the jury to determine, whether the injured party did or did not exercise ordinary care under the circumstances surrounding her when she was injured. The facts descriptive of appellee's conduct on this occasion are not fully and clearly found in the special verdict. If it appeared in the special verdict, in addition to the facts therein found, descriptive of her conduct, that she had the ditch in mind at that time, and that in view of this knowledge she was using her sense of sight in looking out for the ditch, or paying attention to where she was stepping, and then, on the facts and circumstances so found, the jury should draw and find the inference that she was using due care and caution on her part when she was injured, the verdict would perhaps be sufficient, under the rule enunciated in the cases hereinbefore cited. All, however, that it is necessary for us to determine, and all, therefore, that we do decide, on this question, is that. on the facts and circumstances as found in the verdict, we cannot adjudge, as a matter of law, that appellee was entirely free from fault at the time she was injured.

There was no error in admitting the evidence touching the surroundings, and the means of egress and ingress to and from appellee's residence. These circumstances were proper to be considered, in connection with the other facts, in determining whether appellee, at the time she was injured, was in the exercise of care commensurate with the known danger.

The earnings of a married woman ordinarily belong to her husband, but there may be circumstances existing which would entitle appellee to recover for the value of her own services. Railway Co. v. Cosby, 107 Ind. 32, 7 N. E. 373; Railway Co. v. Twiname, 121 Ind. 375, 23 N. E. 159. Assuming that appellee was a married woman; that her husband had abandoned her, or was not supporting or providing for her; and that

she was engaged in carrying on any trade or business on her own account,-such facts should be averred in the complaint, proven on the trial, and found in the verdict. Judgment reversed, with instructions to sustain appellant's motion for a new trial, with leave to appellee to amend complaint, if desired.

ROSS, J., concurs in result.

(13 Ind. App. 134)

WALDORF v. ELKHART & W. R. CO. 1 (Appellate Court of Indiana. Sept. 19, 1895.) RESERVATIONS IN DEED-RIGHTS OF GRANTOR.

was

Plaintiff, who owned land upon which a brickyard and a clay bed (already opened), both of which were unfit for any use but brickmaking,-conveyed the land, reserving to himself the right of possession of the entire tract for one year, except a strip for a right of way. Held, that plaintiff was entitled, not only to the naked possession of the land, but to the use and enjoyment thereof, including the right to dig clay from the opened pit.

Appeal from circuit court, St. Joseph county; Daniel Noyes, Judge.

Action by Cyrus Waldorf against the Elkart & Western Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

A. L. Brick and Alexander Wilhelm, for appellant. Henry C. Dodge, for appellee.

GAVIN, J. Appellant owned a tract of 11 acres of land, upon the south part of which was located a brickyard. Upon this there were machinery and sheds worth about $800, Intended and adapted for carrying on the business of brickmaking; also, a clay bed, already opened, from which clay had been recently taken, and brick manufactured. The brickyard, including the clay bed, was adapted for that purpose, and the land was unfit for any other use. In the spring of 1893 the appellee, desiring to construct its railroad over said land, bought it, and received a deed containing (after correction of mistakes) the following clauses: "Said grantor reserves the right❘ to possession of the entire tract of land above described for a period of one year from the date hereof, except a right of way 66 feet wide across the first above described tract of land; also, the right of possession, for a period of two years from date hereof, to all that portion lying south of said right of way, unless said party shall desire all or any portion thereof, except that portion occupied by said brickyard, for railroad purposes. The grantee hereby agrees to put in all necessary crossings for the use of the grantor during his occupancy of said premises. Grantee reserves the right to enter any portion of said premises at all times to make any needed repairs, or to protect said property in any manner. Said grantor, dur- | ing his tenancy, agrees to keep the same occupied and cared for, the same as if he was the owner." Shortly after the execution of 1 See 46 N. E. 88.

this deed, appellee entered the brickyard, and constructed a track across the clay bed, making it impracticable to dig the clay and run the brickyard. For this invasion of his rights appellant sought damages.

There is some evidence given or offered to sustain the above facts, upon which the claim of the appellant is based. The trial court seems to have disposed of the case upon the theory that, under the provisions of the deed, appellant had no right to dig up the clay for brick. Counsel for the appellee are of the opinion that the truth of this proposition is self-evident, and needs no authority. With this view we are unable to agree. It is true that, as a general rule, reservations and exceptions in a deed are to be construed against the grantor. Nicholson v. Caress, 45 Ind. 479; City of Ft. Wayne v. Lake Shore, etc., Ry. Co., 132 Ind. 558, 32 N. E. 215. Yet it has been said that this "rule is one of dernier ressort, applicable only where the language of the instrument will equally admit of either of two or more interpretations. In such a case that effect will be given which is most unfavorable to the grantor. Adams v. Warner, 23 Vt. 395." Falley v. Giles, 29 Ind. 114. Where the intention of the parties can be fairly ascertained from the instrument, such intention will govern. 5 Lawson, Rights, Rem. & Prac. § 2293. In Allen v. Scott, 21 Pick. 25, it is said: "When property is granted, all that is necessary to the enjoyment of the grant is impliedly granted as incident to the express grant, and the same rule of construction applies to an exception in a grant." The case is cited with apparent approval by Judge Hackney in Indianapolis, etc., Ry. Co. v. First Nat. Bank, 134 Ind. 127, 33 N. E. 679. It is settled law that tenants for life or years are entitled to work mines, quarries, clay pits, or gravel beds which had been opened and used before the time of the commencement of the particular estate. Reed v. Reed, 16 N. J. Eq. 248; Findlay v. Smith, 6 Munf. 134; Neel v. Neel, 19 Pa. St. 323; Lynn's Appeal, 31 Pa. St. 44; 1 Wood, Landl. & Ten. p. 138, § 53; 1 Washb. Real Prop. 111, 314; Co. Litt. 546. This rule is founded upon the principle that the holder is entitled to use and enjoy the land according to the previous and accustomed method. The opening of new mines would be waste, but the working of the old ones is a simple continuation of the use of the land made by the owner. In Allen v. Scott, supra, it was held that where a deed conveyed a tract of land and the buildings thereon, "except the brick factory," the reservation included the right to occupy the land on which it stood, and the water privilege necessary to the carrying on of the factory. In Russell v. Bank, 47 Minn. 286, 50 N. W. 228, it is decided that where a brick factory had been erected upon lands owned by tenants in common, and the business lawfully undertaken, the grantee of an owner of an undivided interest was not authorized to prevent its continuation by the cotenant. In this case it was clearly the in

tention of the parties, as expressed in the deed, that the grantor was to have, not only the naked possession, but the use and enjoyment, of the land; and that certainly included the right to use it for a brickyard, and to dig the clay from the opened pit, these being essential to the use of that portion of the land for the only purpose for which it was fitted.

The appellant was entitled to have his evidence admitted in support of his theory. Whether all the evidence would then have sustained, it would have been for the court to determine. Counsel for appellee are in error in their statement that there is no map in the record. As the transcript comes to us, it is attached to the evidence. Judgment reversed, with instructions to the trial court to sustain the motion for a new trial

NEGOTIABLE INSTRUMENTS-BILLS OF EXCHANGECONSIDERATION-ACCEPTANCE-PLEADING. 1. An oral acceptance of a bill of exchange is valid.

2. The complaint, in an action by the payee of a bill of exchange against the drawee on an oral acceptance thereof by the latter, need not allege that defendant had, at the time of his acceptance, funds of the drawer in his hands wherewith to meet the bill.

Appeal from circuit court, Delaware county; G. H. Koons, Judge.

Action by Elihue L. Swain against William A. Spurgeon on a bill of exchange. There was judgment for plaintiff, from which defendant appeals. Affirmed.

Wagner & Bingham, for appellant. Warner & Brady, for appellee.

DAVIS, J. The writing on which this action is based is in the words and figures following, to wit: "Muncie, Ind. July 7th, 1893. Mr. William A. Spurgeon: Pay to E. L. Swain or order seventy-five 00/000 dollars as balance due on painting of your house, and charge to account of J. B. Miller. $75.00." It is conceded that this is a bill of exchange. The definition of a bill of exchange by Chancellor Kent is: "A written order or request by one person to another for the payment of money at a specified time, absolutely and at all events." See 3 Kent, Comm. 74, side paging. It is alleged in the complaint that appellant accepted said bill, and that the same is due and unpaid, but it does not aver that appellant had, at the time of his acceptance, funds of the drawer in his hands wherewith to meet the bill. Is the complaint sufficient to withstand a demurrer for want of facts? Counsel for appellant insist that an oral acceptance is within the statute of frauds, unless it appears that there was a consideration for the acceptance; that, where no consideration is shown, the oral acceptance is the promise to pay the debt

of another. It is, and long has been, the law that a consideration is presumed in the case of bills of exchange and promissory notes. and in complaints thereon it is not necessary to aver the consideration. Fisher v. Fisher, 113 Ind. 474, 15 N. E. 832; Hinkley v. Bank, 77 Ind. 475. The consideration being presumed, the oral acceptance by appellant was a promise to pay his own debt to Miller, and not the debt of Miller to appellee. Railway Co. v. Caldwell, 98 Ind. 245. In our opinion, the court did not err in overruling the demurrer to the complaint. In view of the fact that the jury found in answer to an interrogatory that appellant was indebted to said Miller at the time he accepted the bill of exchange, there was no available error on account of the giving of the fifth instruction. In the light of the fact that the jury expressly found that appellant's acceptance was unconditional, there was no harmful error against appellant in the seventh instruction. We find no reversible error in the record. Judgment affirmed.

GERMAN-AMERICAN BUILDING ASS'N

V. DROGE.1

(Appellate Court of Indiana. Sept. 17, 1895.) SALE-ACTION TO RECOVER PRICE PAID-AUTHORITY OF AGENT-BEST AND SECONDARY

EVIDENCE.

1. A complaint stating substantially that plaintiff purchased of defendant building association nine shares of stock, for which he paid a certain sum, and that defendant neglected and refused to issue such stock, states a good cause of action for recovery of price paid.

2. Where defendant gave a person credit to the public as a suitable and worthy agent for the transaction of the business in which he was engaged, and plaintiff acted in good faith in dealing with him within the scope of his apparent authority, he will be protected as against the principal.

3. Where defendant brought into court copies of letters written to its agent, who had absconded, it was proper to permit plaintiff to introduce such copies in evidence, in the absence of the originals.

Appeal from circuit court, Jackson county; S. B. Voyles, Judge.

Action by Garrett F. Droge against the German-American Building Association to recover the value of certain shares of stock. Plaintiff had judgment, and defendant appeals. Affirmed.

Carson & Thompson and Burrell & Branaman, for appellant. A. M. Munden, for appellee.

DAVIS, J. The substantial averments in the complaint are that appellee purchased of appellant nine shares of prepaid stock for $450, which he paid, and that appellant neglected and refused to issue such stock to him, to his damage in the sum of $1,000. The complaint is not a model pleading. The theory of the pleader is not clear and definite. The trial court proceeded on the theory that 1 Superseded by opinion, 43 N. E. 475.