5.

6.

7.

the instrument sued on is the joint note of the parties, and the note
filed as an exhibit recites that "we" promise to pay, etc., states a
cause of action against Stafford and Zapf, as individuals.

Albany Furniture Co. v. Merchants Nat'l Bank, 531.
Promissory Note.-Judgment Against Agent of Endorser.- When
Erroneous. Where a note sued on is endorsed "S, by G," and
the cause is dismissed as to S, and judgment is taken by default
against the makers and "G," the judgment so taken against "G" is

erroneous.

Ib.

Payment.-Note Given in Payment of Debt.-The acceptance by
a creditor of the note of a third person in full satisfaction of an
existing debt is an extinguishment of the original indebtedness
although the note is taken for a less sum than the whole debt.
Wipperman v. Hardy, 142.

Payment.-Note Given in Payment of Debt. -Burden of Proof.
-To establish the defense of payment of a preexisting debt by the
note of a third person, it is necessary for the defendant to prove
that the note was given to the creditor and received by him upon the
express agreement that it should be in satisfaction of the previous
debt, and the burden of proof is upon the defendant setting up such
defense.
Ib.

BOARD OF PUBLIC WORKS―Jurisdiction of in Indianapolis to
make assessments for the construction of a sewer, see SEWERS, 3;
Byram v. Foley, 629.

BONDS-As to action on guardian's bond, see ACTION, 2; Green v,
Simon, 360.

As to action by wife on saloonkeeper's bond for unlawful sale of
liquor to her husband, see INTOXICATING LIQUORS, 4, 5, 6, 7, 8;
Brandt v. State, ex rel. Boyer, 311; Smiser v. State, ex rel. King,

519.

BRIEF-As to dismissal of appeal for failure to file brief, see APPEAL
AND ERROR, 35; Cline v. Gould, 647.

Errors assigned but not discussed in brief are waived, see APPEAL
AND ERROR, 37; Alfred Shrimpton & Sons v. Keyes, 305.

BUILDING AND LOAN-Sufficiency of complaint to recover de-
posits made in building and loan association, see COMPLAINT, 1, 2,
3; People's Building, Loan, etc., Assn. v. Reynolds, 453.
CARRIERS-

1.

Passenger.-Common carriers are required to exercise the highest
degree of care, diligence, vigilance and skill in the transportation
of passengers.
Hammond, etc., R. W. Co. v. Spyzchalski, 7.
2. Willful Injury of Trespasser by Conductor.-Liability of Com-
pany. Where the conductor of a passenger train, while acting
within the scope of his authority in ejecting a trespasser from
the train, willfully injures such trespasser, the company is liable.
Baltimore, etc., R. R. Co. v. Norris, 189.

3.

Tender of Fare by Third Party.-Wrongful Ejectment of Pas-
senger. - Plaintiff, in company with others, took passage upon a
railroad train to go to a certain other station, not knowing at the
time that the train did not stop at such station. Plaintiff offered
the cash fare to the station to which he desired to go, which was
refused by the conductor. A companion of plaintiff then stated

that he would pay plaintiff's fare to the next regular stopping sta-
tion, and took out his money, having more than enough money to
pay the fare, but the conductor refused to receive the fare and com-
pelled plaintiff to get off the train. Held, that the offer to pay the
fare was sufficient to make the expulsion wrongful.

Ib.
4. Passenger.-Offer of Fare.-Where a person goes to a railroad
station to take passage to a certain other station, and, finding
the ticket office closed, gets upon the train without a ticket, and
without knowledge that the train does not stop at the station to
which he desires to go, he is entitled, by payment of the fare to the
next regular stopping station, to remain upon the train.
Ib.

5.

Provocation.-Ejectment of Passenger.-A railroad company can-
not justify the act of its conductor in the ejectment of a pas-
senger, whose fare had been tendered, on the ground that in an al-
tercation at the time between the passenger and the conductor, the
passenger accused the conductor of violating a rule of the com-
pany on a former occasion, which violation he threatened to report
to the company.
Ib.

CERTIORARI-Lost pleading brought into the record by, see AP-
PEAL AND ERROR, 31, Ross v. Stockwell, 77.

A corrected record of the trial court is properly brought to the ap-
pellate court by a writ of certiorari, see APPEAL AND ERROR, 30,
31; Ross v. Stockwell, 77; Lake Erie, etc., R. R. Co. v. Bates, 386.
COLLATERAL ATTACK-When the assessment for the construc-
tion of a sewer cannot be declared void in, see SEWERS, 2, 3, 4;
Byram v. Foley, 629.

COMPLAINT See PLEADING.

In an action on account for goods sold to defendant's agent, see
PLEADING, 11; Fry v. Colborn, 96.

When in an action for breach of contract complaint need not allege
performance by plaintiff, see CONTRACTS, 10, 11; Romel v. Alex-
ander, 257; People's Building, Loan, etc., Assn. v. Reynolds, 453.
In an action on gas lease, see PLEADING, 12; Indianapolis Natural
Gas Co. v. Spaugh, 683.

In an action on an insurance policy, where the company claims a
forfeiture, see INSURANCE, 3; Union Central Life Ins. Co. v. Jones,
592.
Omission of averment as to ownership of property in an action on
a fire insurance policy renders complaint fatally defective, see
INSURANCE, 9; Western Assurance Co., etc., v. Koontz, 54.
Sufficiency of in an action on an accident insurance policy, see
PLEADING, 13; Pacific Mut. Life Ins. Co. v. Turner, 644.
Sufficiency of in an action against a railroad relief association, see
ACCIDENT INSURANCE, 4; Voluntary Relief Department, etc., v.
Spencer, 123.

Sufficiency of in an action for conversion against a warehouseman,
see CONVERSION, 2, 3; Baker v. Born, 422.

Sufficiency of in an action to enforce drainage assessment lien, see
DRAINAGE, 1, 2, 3, 4; Hoefgen v. State, ex rel. Brown, 537.

For the collection of assessments for the construction of a sewer,
see SEWERS, 1; Byram v. Foley, 629.

Sufficiency of in an action for damages for personal injuries, see
PLEADING, 9; Chicago, etc., R. R. Co. v. Wagner, Admr., 22.

In an action against a railroad company for an injury resulting
from a defective roadbed, see RAILROADS, 1, 2; Chicago, etc., R. R.
Co. v. Lee, Admr., 215.

Sufficiency of in an action for slander, see PLEADING, 14; Alcorn v.
Bass, 500.

In an action against a telegraph company for failure to deliver a
message, see TELEGRAPH COMPANIES, 1; Western Union Tel. Co.
v. Bryant, 70.

In an action for willful injury, see PLEADING, 10; Miller v. Miller,
605.

Overruling of motion to paragraph, not available error, see APPEAL
AND ERROR, 5, 6; Louisville, etc., R. W. Co. v. Norman, 355; Shaw
v. Ayers, 614.

Defective complaint, how affected by verdict and judgment, see AP-
PEAL AND ERROR, 13, 16; Western Assurance Co. etc., v. Koontz,
54; Alcorn v. Bass, 500.

Amendment of pending trial, see INTOXICATING LIQUORS, 4; Brandt
v. State, ex rel. Boyer, 311.

When sufficiency of may first be assailed by assignment of errors,
see APPEAL AND ERROR, 3; Western Assurance Co. etc., v. Koontz,
54.

1. Sufficiency of in an Action to Recover Deposits Made in a Build-
ing and Loan Association.-Demand.-An averment in a com-
plaint in an action to recover from a building and loan associa-
tion deposits made by plaintiff, which avers that defendant neg-
lected, failed and refused to return the sums of money paid, are
equivalent to a positive allegation that a demand had been made,
and a return thereof refused.

2.

People's Building, Loan, etc., Assn. v. Reynolds, 453
Need Not Aver an Offer to Return Certificate in an Action to
Recover Funds Deposited in a Building and Loan Association.-In
an action to recover deposits made in a building and loan associa-
tion under a certificate of stock, which, by the terms thereof, had
been forfeited by nonpayment of installments, need not show an
offer on plaintiff's part to return the certificate, where such certifi-
cate was brought into court as the basis of the action.
Ib.

3. Sufficiency of in an Action to Set Aside Sale of Letters Patent
on the Ground of Fraud.-A complaint in an action to set aside
the sale of certain letters patent which alleges that defendants
were the owners of such letters patent, that they conspired with a
third party and thereby induced plaintiff to purchase and pay $1,200.00
for the letters patent upon the representation that other parties, whom
said third party pretended to represent, were ready and willing to
take the same from him at an agreed price, should he procure the
same, and which also alleged that plaintiff stated to defendants that
the letters patent, if purchased, would be of no value to him and
that defendants knew that plaintiff was purchasing same for the
sole purpose of conveying same to the persons represented by said
third party, contains facts sufficient to constitute a cause of action
against defendants.
Hay et al. v. Landis, 91.

4. School Supplies.

-

Averment as to Necessity Of. Where a
complaint against a school township to recover for supplies sold to
the trustee thereof shows on its face that the supplies purchased and
delivered to the township are wholly unauthorized by law, such com-
plaint cannot be made good by an averment that such supplies were
useful and necessary for the thorough organization and efficient
management of such schools.

First Nat'l Bank, etc., v. Adams School Tp., 375.
CONSIDERATION—Mere inadequacy of is not sufficient to defeat a
contract, see CONTRACTS, 1; Pierce v. Pierce, 107.

A promise to do what the promisor is under previous obligation to do
is insufficient as a considaration for an agreement of which it
constitutes a part, see CONTRACTS, 2; Sargent v. Robertson, 411.
CONTINUANCE-Application for addressed to the sound discretion
of the court, see PRACTICE, 1, 2; Brandt v. State, ex rel., Boyer, 311.
CONTRACTOR-Action by to enforce the collection of assessment
for the construction of a sewer, see SEWERS, 4; Byram v. Foley,
629.

Meaning of the Term.—A contractor is one who agrees to do a piece of
work for another on his own responsibility and credit.

Caulfield v. Polk, 429.
CONTRACTS-Respective remedies for breach. of executed and ex-
ecutory contracts, see SALES, 2; Branigan v. Hendrickson, 198.
Power of school board to revoke contract with teacher, see SCHOOLS;
School City of Lafayette v. Bloom; 461.

1.

2.

3.

Consideration. -Mere inadequacy of consideration is not sufficient
to defeat a contract.
Pierce v. Pierce, 107.
Consideration.-A promise to do what the promisor is under a
previous valid, legal obligation to do, is insufficient as a consideration
for an agreement of which it constitutes a part.

Sargent v. Robertson, 411.

Valid and Illegal Considerations in Same Contract. - Where
valid and illegal considerations in the same contract are susceptible
of division, that part of the consideration which is legal may be en-
forced.
Pierce v. Pierce, 107.

4. Executory.-May be Abandoned by Agreement of all the Parties.
—A contract which is wholly executory may be abandoned by the
agreement of all the parties, the renunciation of each party of his
rights under the contract being a sufficient consideration for his
release from obligation by the other parties.

5.

Sargent v. Robertson, 411.
Whether Executed or Executory a Question of Fact.- Whether
any particular contract is executed or executory is generally a
question of fact depending upon the intention of the parties to be
gathered from the terms and stipulations of the agreement.
Branigan v. Hendrickson, 198.
6. Between Employer and Employe.—Construction.—A contract of
employment, whereby the defendants agreed to pay plaintiff $25.00
per month for a period of three months, “as it would take plaintiff
that long to learn the business of defendants; that after said time
defendants could afford to pay plaintiff more," in the absence of a
new contract did not entitle plaintiff to wages in excess of $25.00
per month for the time he remained in defendants employment after
the expiration of the three months.
Munchoff v. Ford, 131.

7. Guaranty.-Notice.-Acceptance.-An agreement in the words:
"Gentlemen-R. E. Emerson, of Pueblo, Colorado, desires to make
purchases from your firm. I will engage to secure sales you make
to the above named, in the sum of $300.00." is not a strict guaranty,
but an original undertaking, and in an action based thereon it is un-
necessary to aver or prove notice of acceptance thereof.

8.

9.

Newcomb Brothers Wall Paper Co. v. Emerson, 482.
Breach Of.-Nominal Damages. -Where there has been a breach
of contract by one of the parties thereto, the other is at least entitled
to recover nominal damages for such breach.

Browning v. Simons, 45.
Breach Of.-Measure of Damages. -Where a contract is made for
the sale and delivery of personal property and the vendee refuses to
receive the same at the time and place of the delivery thereof, the
measure of damages is the difference between the contract price and
the market value at such time.

Ib.

10. Complaint for Breach of, When Need Not Aver Performance by
Plaintiff.-An action may be maintained for breach of contract,
without alleging performance on the part of plaintiff, where the
plaintiff's covenant or stipulation constitutes only a part of the con-
sideration, and the defendant has received a partial benefit, and the
plaintiff's breach might be compensated in damages.

Romel v. Alexander, 257.
11. Breach Of.-When Complaint Need Not Allege Performance on
the Part of Plaintiff.-In an action for breach of a contract con-
taining reciprocal covenants or mutual conditions to be performed,
and one of the parties puts it out of, or beyond the power of the other
to perform the covenants or conditions to be performed by him, the
latter is thereby relieved from such performance, and if the com-
plaint avers such facts it will not be demurrable for failure to allege
performance on the part of plaintiff.

People's Building, etc, Assn. v. Reynolds, 453.
CONTRIBUTORY NEGLIGENCE-Of passenger in alighting from
train, see RAILROADS, 6, 7; Louisville, etc. R. R. Co. v. Espen-
scheid, 558; Cincinnati, etc., R. R. Co. v. Revalee, 657.
CONVERSION-

1.

Plaintiff Must be the Owner or Entitled to Possession.-A person
cannot maintain an action for conversion where he neither owns
nor is entitled to possession of the property alleged to be converted.
Baker v. Born, 422.

2. Sufficiency of Complaint in Action Against Warehouseman.-
In an action against a warehouseman for the conversion of certain
corn deposited with him, the complaint should allege that prior to
the commencement of the action defendant did not have a sufficient
quantity of corn of the kind and quality deposited with him with
which to meet a demand by plaintiff; that a demand was made;
that storage charges and expenses were tendered, or that storage
charges had not attached.
Ib.

3. Complaint in Action Against Warehouseman.- An allegation
in a complaint in an action against a warehouseman for conversion
of a quantity of corn deposited with him, that on and before a specified
date defendant had no corn in his warehouse or under his control,
of the quality of plaintiff's corn deposited prior to a specified earlier
date, but had sold such corn, is not equivalent to an allegation that on
a day certain the defendant did not have in his warehouse sufficient
corn of the kind and quality deposited by plaintiff.

Ib.