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its street improvements from a large extent of territory and brought to one locality, to which without such improvements it would not have come, and as to the right of the landowner to be protected by injunction from future recurrence of injury from such continuing cause, there can be no doubt, and in this appeal by the plaintiffs, in whose favor such remedies were provided by the court, no question as to such right and obligation is made; the purpose of the appeal being solely to seek a determination of the question as to the amount of damages, raised by their exception to the conclusions of law and by their various motions herein mentioned. One who has been injured, either in his person or in his property, by the negligence or misconduct of another, is under obligation to do whatever he may do reasonably to prevent the increase of damages. His negligence which does not operate to cause the injury, but which merely adds to the damage resulting therefrom, is not a bar to the action, but it will have the effect of diminishing the damages, or go in mitigation thereof. Only such portion of the damages as may be directly attributable to the plaintiff's failure to perform his duty in the premises should be deducted from the damages as a whole.

As a general rule, when contributory negligence constitutes a defense, it is a complete defense to the action and bars a recovery of any amount; but when the negligence of the plaintiff contributed, not to cause the injury, but only to aggravate it, the injury produced by the plaintiff's negligence being separable from that produced by the defendant's wrong, the defendant should be held. liable only for such portion of the entire damage as was produced by his negligence. The rule is applicable both in contract and in tort. The duty of using ordinary and reasonable care and diligence and making reasonable expenditures within his ability rests upon a person injured by another's tort or breach of contract, and, so far as the injury is unnecessarily enhanced by the negligence or willfulness of the injured party, the damages which might have been avoided by the performance of his duty in this respect will fall to him to bear. Where the performance of the injured party of such duty of cutting down the damages involves labor or expense, the party responsible for the injury is chargeable with such reasonable cost. In some cases the amount of the reasonable expense, not actually incurred, of restoring the loss originally, will measure the recovery of the injured party, though, by reason of delay, such expense has increased, as, where a defendant had obstructed the plaintiff's drain, and the plaintiff could have indemnified himself for $25, but by delay in making repairs the damages amounted to $100, it was held that the plaintiff could recover only $25. Lloyd v. Lloyd, 60 Vt. 288, 13 Atl. 638. Knowledge on the part of the injured party is an important and

necessary element of his responsibility in this regard. He is not required to anticipate that the wrong will be committed, even though it has been threatened by the wrongdoer, or to forego the lawful use of Lis premises. It is sufficient for the injured party to exercise ordinary care and diligence in preserving his property after he has knowledge of the wrong.

There are very many cases illustrating and applying the rule relating to the duty of the injured party to exercise in good faith ordinary and reasonable care and diligence to reduce the damages. Among them are the following: Chase v. N. Y. Cent. R. Co., 24 Barb. (N. Y.) 273; O'Neill v. N. Y. O. & U. Ry. Co., 45 Hun, 458; Gilbert v. Kennedy, 22 Mich. 117; Hopkins v. Sanford, 41 Mich. 243, 2 N. W. 39; Wright v. Ill. & Miss. Tel. Co., 20 Iowa, 195; Simpson v. Keokuk, 34 Iowa, 568; Allender v. C. R. I. & P. R. Co., 37 Iowa, 264; Davis v. Fish, 1 G. Greene (Iowa) 406, 48 Am. Dec. 387; Douglass v. Stephens, 18 Mo. 362; Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717, 26 Am. St. Rep. 101; Cargill v. Thompson, 57 Minn. 534, 59 N. W. 638; Reynolds v. Chandler River Co., 43 Me. 513; Sutherland v. Wyer, 67 Me. 64; Plummer v. Pen. Lumb. Ass'n, 67 Me. 363; Loker v. Damon, 17 Pick. (Mass.) 284; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Board v. Arnett, 116 Ind. 438, 19 N. E. 299; Summers v. Tarney, 123 Ind. 560, 24 N. E. 678; Standard Oil Co. v. Bowker, 141 Ind. 12, 40 N. E. 128; Wabash R. Co. v. Miller, 18 Ind. App. 549, 48 N. E. 663, and cases there cited. See, also, Suth. Dam. §§ 88 et seq., 1055; Beach Contr. Neg. § 69; Thomp. Neg. (2d Ed.) § 199 et seq.; Shearman & Redfield Neg. §§ 95, 741. In cases involving the question as to duty of the plaintiff to cut down the damages, whether in contract or in tort, or whether for personal injury or for injury to property or estate, the existence of fault in this respect on the part of the plaintiff, with the extent to which it contributed to his loss as a whole, constitutes matter of defense, and the burden of proof is upon the defendant. City of Goshen v. England, 119 Ind. 368, 21 N. E. 977, 5 L. R. A. 253; Terre Haute, etc., R. Co. v. Sheeks, 155 Ind. 74, 56 N. E. 434; Citizens' Street R. Co. v. Hobbs, 15 Ind. App. 610, 44 N. E. 377; City of Columbia v. Langohr, 20 Ind. App. 395, 50 N. E. 831; Dunn v. Johnson, 33 Ind. 54, 5 Am. Rep. 177.

In view of the statements of the court relating to the conduct of the appellants with reference to the damage to merchandise in the year 1898 and succeeding years, it would be impossible for us to determine that the court erred in failing to conclude that the appellants were entitled to damages for such losses. So, also, we cannot hold that there was error in overruling certain motions of the appellants for judgment in their favor for damages in such sum as would include damages for such losses in those years.

A motion of the appellants for a new trial was overruled. The court in its finding stated a strong case of continuing injury extending through many years. It was found that ordinary rains of one or two hours duration caused great accumulation of water, so that the streets, gutters, and sidewalks were overflowed, and the water thus accumulating flowed with great force through the alley and on and over the premises of the appellants, spreading over the same and flowing into the buildings thereon, carrying débris and sediment of the street thereon, "and causing considerable and severe injury and damage to the plaintiffs' premises and merchandise kept and used in the business," and that this injury was a recurring one; yet no damages were awarded for damage to the premises, and the only damages awarded were given for injury to certain cement in one of the years during which the wrong was continued. There appears to have been evidence of the amount of diminution in the rental value of the premises caused by the nuisance. The nuisance appears to have continued during all the period in which the appellants had carried on their business. The damages given in the sum of $100 were awarded for injury suffered in the first year of their ownership of the property, so that it was impossible by comparison to show loss of profits occasioned by the wrong. The court should have formed from the evidence before it some amount of damages referable to the great injury to the premises mentioned in the finding.

Another matter deserves attention. As a part of its judgment, rendered in March, 1905, the court ordered the city to remedy the defects in the street grading and guttering within eight months thereafter, and to so much of the judgment as extended the time eight months for remedying such defects so as to avoid the overflow of the water, such "clemency" being granted over the objection of the appellants, they excepted. We cannot discover in the record any sufficient reason for granting such indulgence. The court should have caused the abatement of the nuisance more promptly.

Judgment reversed; cause remanded, with instructions to grant a new trial, and to grant the appellants leave, if asked, to amend their complaint.

(39 Ind. App. 289) DENKEWALTER et al. v. WILSON et al. (No. 5,832.)1

(Appellate Court of Indiana, Division No. 2, Oct. 24, 1906.)

APPEAL-JOINT ASSIGNMENTS OF ERROR.

Where a judgment was rendered against one of the defendants, and on appeal they jointly assigned error on the sustaining of a motion to strike out a paragraph of the answer, the assignment was not good because not good as to both.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2985-2989.] 1 Rehearing denied.

Appeal from Circuit Court, Owen County; Joseph W. Williams, Judge.

Action by John R. Wilson and others against Frederick W. Denkewalter and others. From a judgment in favor of plaintiffs, and against defendant Denkewalter, defendants appeal. Affirmed.

Homer Elliott, for appellant. I. H. Fowler, for appellee.

ROBY, J. Appellees brought this action, alleging that the appellants were indebted to them in the sum of $500 for legal services, bill of particulars of which was filed therewith.

The only error insisted upon is based upon the action of the trial court in sustaining appellees' motion to strike out the third paragraph of answer. The assignment of error is joint; both appellants joining therein. The judgment appealed from is against appellant Frederick W. Denkewalter, however. His coappellant is not a party thereto. The party against whom no judgment is rendered cannot have been injured by the action of the court as above indicated. The assignment, not being good as to both, is good as to neither. Bush v. McBride, 159 Ind. 663, 65 N. E. 1026.

Judgment affirmed.

(38 Ind. App. 695) MILLER v. McKEAN et al. (No. 5,840.) (Appellate Court of Indiana, Division No. 1. Oct. 26, 1906.)

APPEAL-DECISIONS REVIEWABLE - FINALITY OF DETERMINATION.

A judgment "that the plaintiff pay the costs herein," following a general finding "for the defendants," is not a final judgment from which an appeal will lie.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 480, 481.]

Appeal from Circuit Court, Adams County; R. K. Erwin, Judge.

Action by Calvin Miller against George E. McKean and others. From a judgment in favor of defendants, plaintiff appeals. Appeal dismissed.

A. P. Beatty and Merryman & Sutton, for appellant. Shaffer Peterson and Smith & Moran, for appellees.

BLACK, J. The appellant sued to recover of the appellee George E. McKean contribution because of the payment by the appellant of certain alleged debts of these parties, and to set aside a conveyance of real estate made by said McKean to defraud his creditors. Upon the trial of issues formed there was a general finding "for the defendants." The only judgment shown by the record was entered as follows: "It is therefore considered and adjudged by the court that the plaintiff pay the costs herein paid, laid out, and expended." This is not a final judgment from which an appeal will lie.

Appeal dismissed.

(38 Ind. App. 673)
JESSUP et al. v. FAIRBANKS, MORSE &
CO. (No. 5,788.).

(Appellate Court of Indiana, Division No. 2.
Oct. 25, 1906.)
SALES CONDITIONAL SALE REMEDIES OF
SELLER.

The vendor in a conditional sale is entitled to recover the balance of the purchase price, though the property sold has been destroyed without the fault of the vendee.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, §§ 1362, 1436.]

Appeal from Circuit Court, Parke County; Gould G. Rheuby, Judge.

Action by Fairbanks, Morse & Co. against Lincoln R. Jessup and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Doan & Arbison and Hunt & Hancock, for appellants. Howard Maxwell and Harvey, Pickens, Cox & Kahn, for appellee.

COMSTOCK, P. J. Appellee, a corporation, brought this action against appellants to recover the purchase price of a certain gasoline engine, which had been sold to appellants upon condition that the title and right of possession should remain in the vendor until payment had been made in full as specified in the written contract. Before all the payments, provided for in the contract, had been made, and before all payments had become dre, the engine was wrecked by a fire which destroyed the building in which it was located. The issues were formed by the complaint and an affirmative answer by the appellants, in which they set up the destruction of the engine by fire without fault on their part as causing a failure of consideration for the contract in suit. A copy of the contract was filed with the complaint and with the answer. Appellee filed a demurrer for want of facts to this answer, which demurrer was sustained, and, defendants refusing to plead further, judgment was rendered against them for the sum of $499.87. From this judgment, appellants appeal.

The sustaining of said demurrer is charged as error for which a reversal is asked. We deem it necessary to set out only the following portions of Exhibit A, a copy of the contract filed with the complaint and answer. "Fairbanks, Morse & Company, Manufacturers of Gas and Gasoline Engines. Indianapolis, Ind., Oct. 3, 1903. Messrs. Jessup & Wheeler, Oakdale, Indiana-Fairbanks, Morse & Company hereby propose to furnish and deliver f. o. b. Beloit, Wis., one 25 H. P. Fairbanks-Morse gasoline engine, according to the following specifications: [Then follows the specifications, the guaranty, a list of supplies to be furnished with the engine.] The foundation plan will be furnished by us, foundation to be prepared and furnished by you. A competent man to superintend the erection of the engine will be furnished by us. You will supply all necessary labor and do all teaming. We propose to furnish the above

engine and material for the sum of $800.00, payable at the office of Fairbanks, Morse & Company, Indianapolis, Indiana, of which amount $200.00 is to be paid upon shipment, balance as follows: "$200.00 when erected and $400.00 six months after shipment at 7 per cent. per annum after due, also all expenses incurred in the collection thereof secured by contract. It is agreed that the title and right of possession of said engine shall remain in Fairbanks, Morse & Company until payment has been made in full, as above provided, and in the event notes are taken representing the deferred payments, the title shall not pass until said notes are fully paid and satisfied. Upon default of any payment when due, said Fairbanks, Morse & Company or their agent, may enter the premises without process of law, take immediate possession of, and remove, said property and any payments theretofore received, they shall be entitled to retain to cover expenses of taking possession of the above-described property and to cover usage, and wear and tear upon the same. This proposal is binding when signed by the purchaser and approved by the Manager of Fairbanks, Morse & Company at Indianapolis, it being expressly understood and agreed that this is the only contract existing between the parties here mentioned and that there are no verbal agreements to the contrary. [Signed] Fairbanks, Morse & Company." Proposal accepted by Jessup & Wheeler.

The foregoing is a sale on condition. It is not a contract to make a future sale. It required nothing to be done by the vendor to pass title. It gives the vendor the right to retake the property which is a disaffirmance of the sale, or second, he may treat the sale as absolute, and bring an action for the price. Turk v. Carnahan, 25 Ind. App. 125, 57 N. E. 729, 81 Am. St. Rep. 85; Green v. SinkerDavis Co., 135 Ind. 438, 35 N. E. 262; Smith v. Barber, 153 Ind. 322, 53 N. E. 1014. The contract being a present contract of sale, its stipulation that the title should remain in the vendor until the full payment of the purchase price, did not relieve the vendees from the contract to pay, because the property was injured or destroyed. American Soda Fountain Co. v. Vaughn (N. J. Sup.) 55 Atl. 54; Osborne v. South Shore Lumber Co., 91 Wis. 526, 65 N. W. 184; White v. Solomon, 164 Mass. 516, 42 N. E. 104, 30 L. R. A. 537; Burnley v. Tufts, 66 Miss. 48, 5 South. 627, 14 Am. St. Rep. 540; Tufts v. Griffin, 107 N. C. 47, 12 N. E. 68, 10 L. R. A. 526, 22 Am. St. Rep. 863; Tufts v. Wynne, 45 Mo. App. 42; Planters Bank v. Vandyck, 4 Heisk. (Tenn.) 616; Humeston v. Cherry, 23 Hun, 141; Lavalley v. Ravenna (Vt.) 62 Atl. 47, 2 L. R. A. (N. S.) 97. In numerous decisions outside of Indiana, in cases of conditional sales, in which the property was destroyed before the payments were made in full, it has been held that the vendor may sue upon the promise of the vendee to make pay

ment. In the foregoing list we have given some of them. American Soda Fountain Co. v. Vaughn (N. J. Sup.) 55 Atl. 54, decided in the year 1903, was a case of destruction of property in the possession of the vendee under such contract, and the court said: "The question to be determined is, what was the consideration of the note. If the passing of the title to the apparatus was the consideration the defense must prevail. If the delivery of the apparatus with the right to acquire title was the consideration, the plaintiff shall prevail. We think the consideration for the note was the delivery of the apparatus with the right to acquire title. The title was retained by the plaintiff merely as security for the unpaid purchase money. Nothing remained to be done by plaintiff to perfect the title of the defendant. That title would have become perfect immediately upon payment [citing cases]. *** The exact question presented in the present case has been considered in other states and, although there is conflict in the authorities, the weight of authority is in favor of the plaintiff [cit. ing Burnley v. Tufts, supra; Osborne v. South Shore Lumber Co., supra]." In Lavalley v. Ravenna, supra, decided November 2, 1905, upon the sale of a horse, a written lien was executed reciting that the seller was to retain title until the balance of the purchase price was paid. The horse died before the balance was due. The court held that the seller was entitled to recover the balance. In our own state the cases hold that under such contracts as the one before us, the vendor has the right to elect whether to retake the property or sue for the purchase price on the promise to pay. Smith v. Barber, supra; Kilmer, etc., v. Moneyweight Scale Co. (Ind. App.) 76 N. E. 271; Gaar, Scott & Co. v. Fleshman (Ind. App.) 77 N. E. 744; Smith v. Barber, supra, distinctly holds that there is nothing to be done by the vendor, and nothing in the way of acceptance is necessary on the part of the vendee. Cases cited by appellant are distinguishable from those cited in this opinion, except, perhaps, Cobb v. Tufts, 2 Willson Civ. Cas. Ct. App. Tex. 141. regard the question as settled in this state. "In such a contract of sale the possession was to be in the buyer, the title to remain in the seller, until full payment, then a sufficient consideration for the absolute promise to pay the agreed price."

Judgment affirmed.

(38 Ind. A. 678)

POLLEY v. POGUE et al. (No. 5,883.) (Appellate Court of Indiana, Division No. 1. Oct. 25, 1906.)

1. DESCENT AND DISTRIBUTION-LAND INHERITED FROM HUSBAND-ALIENATION BY WIDOW ON REMARRIAGE.

A mortgage executed by a woman, having children by a former deceased husband, and her second husband, conveying land inherited from the former husband, is void under Burns' Ann.

St. 1901, § 2641, providing that a widow, remarrying, cannot convey the property inherited where there are children by a former marriage. [Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Descent and Distribution, § 310.] 2. JUDGMENT-CONFORMITY TO FINDINGS.

Burns' Ann. St. 1901, § 585, provides that, when a judgment is to be executed without relief from appraisement laws, it shall be so ordered therein. A note sued on stipulated that it should be collectible without relief from appraisement laws. Held, that a finding in favor of plaintiff must contain the fact that the amount due was without relief before a judgment containing such a stipulation could be rendered.

Appeal from Circuit Court, Jay County; John W. Macy, Special Judge.

Action by Jennie C. Polley against Josephine A. Pogue and others. From a judgment granting insufficient relief, plaintiff appeals. Reversed.

Smith & Moran, for appellant.

ROBINSON, C. J. Suit by appellant upon a promissory note and to foreclose a mortgage. John R. Bolen died intestate the owner in fee of certain lands leaving as his only heirs at law appellee Josephine Pogue, his widow, and the other appellees (except John Pogue), his children. During her widowhood, Josephine borrowed $300 of appellant and executed her note and mortgage to secure the payment. Afterward, and before her mar riage with Pogue, the land having been set off to Josephine as her interest in the lands of Bolen, Josephine sold a part of the land to Bickel, who assumed and agreed to pay $200 of such mortgage, which he paid, with interest. Josephine intermarried with John Pogue, and is now his wife. Afterward she borrowed of appellant $175, and agreed to pay commission and expenses of $10 for the same, and executed the note in suit in consideration of such loan and commission, and to secure the same she and her husband, John Pogue, executed the mortgage mentioned in the complaint. This mortgage was not a renewal of any part of the first mortgage, but was a loan made to Josephine Pogue. The $175 loan has never been paid, and is due, in the sum of $405.70. Upon the above finding of facts the court stated a conclusion of law that appellant "is entitled to recover of the defendant Josephine A. Pogue the sum of $405.70, together with her costs of suit so far as it relates to the suit on the note"; that the other defendants should recover costs; and that appellee should recover all costs made by her on her defense against the mortgages sued on.

We cannot disturb the court's finding, upon the evidence, that the mortgage given to secure the note in suit was not a renewal of any part of the first mortgage given by Josephine Pogue while she was the widow of John Bolen. The second mortgage was void. Burns' Ann. St. 1901, § 2641. There is evidence authorizing the finding that this note was a loan made to Josephine Pogue. The

judgment follows the conclusions of law, and the conclusions of law upon the facts found are right. But, under the motion for a new trial, it is argued that the finding should contain the fact that the amount due appellant was without relief. The note stipulated that the note should be collectible without relief from valuation or apppraisement laws. The statute provides that, when a judgment is to be executed without relief from appraisement laws, it shall be so ordered in the judgment. Section 585, Burns' Ann. St. 1901. The stipulation in the contract, unimpeached in any way, entitled appellant to a judgment without relief; but the judgment rendered does not so stipulate, and could not so stipulate, based upon the conclusions from the facts as found. Duchwall v. Kisner, 136 Ind. 99, 35 N. E. 697. "Where pertinent and material facts are proven," said the court in Gray v. Taylor, 2 Ind. App. 155, 28 N. E. 220, "but the court does not find upon them, and thereby impliedly finds that they are not proven, the finding in such respect is contrary to law, as well as contrary to the evidence, and good cause arises therefrom for a new trial." See, also, Spraker v. Armstrong, 79 Ind. 577; Robinson v. Snyder, 74 Ind. 110. The motion for a new trial should have been sustained.

Judgment reversed.

(39 Ind. App. 51)

UNION TRACTION CO. v. PFEIL et al. (No. 5,836.)

(Appellate Court of Indiana. Division No. 1. Nov. 2, 1906.)

1. EMINENT DOMAIN RAILROAD RIGHT OF WAY-DAMAGES-BENEFITS.

In a proceeding to condemn land for an interurban electric railway, no deduction should be made for benefits accruing to the landowner from the construction and operation of the road.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 378-385.] 2. TRIAL-INSTRUCTIONS.

In a proceeding to condemn land for a railroad right of way, the court charged at defendant's request that if the jury found inconvenience and danger to the owner of the adjoining land and his family in crossing the track and right of way to exist, they might consider the same in estimating damages. There was evidence on all the points suggested in the instruction, and the jury was charged, at plaintiff's instance, that they should find no damages for defendant until they could agree that a preponderance of all the evidence in the case justified them in believing that a particular_sum would be a fair measure of compensation. Held, that defendant's instruction was not objectionable for failure to expressly confine the jury's consideration of matters "shown by the evidence" to exist, and as authorizing the allowance of speculative and fanciful damages.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 535.]

3. EMINENT DOMAIN-DAMAGES.

Where a railroad right of way was sought to be condemned diagonally through a farm consisting of 65 acres of land in one body, dam

ages should be considered and assessed for the entire farm.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 367-370.] 4. TRIAL - INSTRUCTIONS MISLEADING STRUCTIONS.

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In a proceeding to condemu land for a railroad right of way, an instruction that if the jury believed that certain additional tracks and cars would be an additional damage to defendants, then the probability of the laying of such tracks and running of the cars was an element of damage for which they were entitled to award compensation, was not misleading for failure to require that the jury should believe such facts "from the evidence.'

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, § 535.]

5. EMINENT DOMAIN-FUTURE DAMAGES.

In a proceeding to condemn land for a railroad right of way, all damages present and future arising from the proper construction and operation of the railroad must be recovered and such damages not recovered in that proceeding cannot be recovered in a subsequent action.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 627.]

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6. SAME EXTENT OF RIGHT TO USE OF PROPERTY - RAILROADS RIGHT OF WAYUSE.

-

Where an interurban railroad company condemned land for the right of way, it acquired the right as against adjoining landowners to construct additional tracks on such right of way, and to run any number of cars thereon in the proper management of its business.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, 8 841.]

7. SAME-INSTRUCTIONS.

Where, in a proceeding to condemn land for a right of way, the jury were directed to consider the difference caused by the appropriation between the cash market value of the remaining land immediately before the appropriation and its cash market value immediately thereafter; to consider the farm as it then was, and that the damages should be assessed for the farm as a whole, etc., another instruction that defendants had no right to lay water pipes or to construct private drains across the right of way without plaintiff's consent, which was an element of damage for consideration, was not objectionable for failure to confine the jury to the consideration of such pipes and drains as shown by the evidence to be reasonably and properly necessary in the use of the land for farming.

8. TRIAL INSTRUCTIONS-COMPROMISE VER

DICT.

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Where in a proceeding to condemn land, the only issue was the amount of damages, it was not error to refuse an instruction that while each juror should be open to influence by argument of his fellow jurors, he should not, while holding an intelligent belief, agree to a compromise verdict which did violence to his belief, the court having charged at plaintiff's request that the burden of proof being on the defendants, the jury should not agree or find damages for defendants until they could find that a preponderance of all the evidence sustained the sum found to be a fair measure of damages.

Appeal from Circuit Court, Cass County; Jno. S. Lairy, Judge.

Condemnation proceedings by the Union Traction Company against Catherine Pfeil and others. From an award in favor of de fendants, plaintiff appeals. Affirmed.

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