it was stated in said contract that the plaintiff had the option of choosing between two rates of freight-the higher furnishing a higher degree of security, and the lower a less de gree and that he voluntarily elected the lower rate, the fact is that no such option was offered him, nor did he have any knowledge that he could exercise such option, nor did appellants have a schedule rate of freight for such purposes, and each and every one of the exemptions from liability of appellants were exacted by them as a condition to said shipment, and inserted in said contract without any consideration; that, in pursuance of the contract, appellee loaded his horses into a car designated by appellants; that, because of the short distance, and the time necessary, to wit, 3 hours, to transport the said horses to their destination, they needed no food, water, or care en route; that while in transit a part of the floor of the car, by reason of latent defects in its construction, and by reason of being decayed and unsound, which defective and unsound condition was at the time of the shipment known to appellants, broke through, producing a hole 8 by 14 inches in size, by reason of which breaking of the floor 10 of appellee's horses fell with their feet and legs through said hole, and were thereby injured. The third paragraph is like the second, with the additional averments that, when the appellee applied to appellants' agent for a car, he was shown and required to choose between two cars; that one of these was wholly unfit, on account of ice frozen over the floor; that appellee inspected the other, and it appeared to be sound and safe, and he believed it to be sound and fit for the carriage of his horses. It is further charged that appellants knew that the car floor was decayed, weak, and unsound, and on account of which unsoundness the horses were injured. A demurrer to each of the second and third paragraphs was overruled, and the defendants answered by general denial. Trial; verdict and judgment for appellee. The rulings of the court upon the demurrers and in overruling appellants' motion for a new trial are properly questioned.

1. The general assault upon these paragraphs is that, being suits upon a special contract, they each fail to disclose an actionable breach of the contract sued on; the argument being that, as the paragraphs imperfectly count upon the violation of an express contract, there can be no recovery upon a contract implied. We readily acknowledge the rule to be that, if a plaintiff recover, he must do so upon and in accordance with the allegations of his complaint; and, in the application of this rule, a suit against a common carrier for a breach of its common-law duty in the transportation of live stock must fail upon proof that the shipment was made under a special contract. Railway Company v. Bennett, 89 Ind. 457; Hall v. Pennsylvania Co., 90 Ind. 459. And vice versa, Fry v. Railway Company, 103 Ind. 265, 2 N. E. 744. But are these actions upon a special agree

ment, within the purview of the rule? A we understand the paragraphs-and there i really no difference between them in respec to the general questions-they proceed upo the theory that the plaintiff was compelle by his situation to assent to what purports t be a special contract of carriage under such circumstances and conditions as render the special stipulations void. He alleges that h did not choose between two rates of freight that he did not know he had a right to s choose; that appellants had no such thing as two rates of freight for the transporta tion of car loads of horses from Kokomo to Indianapolis, and that he was required by appellants to sign the bill of lading exhibited exempting them from liability, as a condition precedent to the shipment of the horses and that he received no consideration for relieving appellants of their common-law duty, It is well settled that a public carrier may, to some extent, limit by stipulation in the bill of lading his strict common-law liability. Insurance Company v. Lake Erie, etc., Co., 152 Ind. 333, 53 N. E. 382. But it is equally well settled that a contract qualifying the responsibility imposed upon the carrier by the common law must be supported by a valuable consideration, apart from the mere acceptance of the property for carriage. Rosenfeld v. Railway Co., 103 Ind. 121, 2 N. E. 344, 53 Am. Rep. 500; German, etc., v. Railway Co., 38 Iowa, 127; Wehmann v. Railway Co., 58 Minn. 22, 59 N. W. 546; Southard v. Railway Co., 60 Minn. 382, 62 N. W. 442, 619; McFadden v. Railway Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Potter v. Sharp, 24 Hun, 179; Gardner v. Railway Co., 127 N. C. 293, 37 S. E. 328; Schaller v. Railway Co., 97 Wis. 31, 71 N. W. 1042; Railway Co. v. Gilbert, 88 Tenn. 430, 12 S. W. 1018, 7 L. R. A. 162; Railway Co. v. Wright (Tex. Civ. App.) 58 S. W. 846; Stewart v. Railway Co., 21 Ind. App. 218, 225, 52 N. E. 89. A reduction in the usual freight rate is a sufficient consideration, but such concession in charges must be actual, and not fictitious; and a mere recital or acknowledgment in the bill of lading that such abatement has been made and accepted is not conclusive, but the real transaction is always open to explanation and contradiction by parol. McFadden v. Railway Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Railway Co. v. Weakley, 50 Ark. 397, 8 S. W. 134, 7 Am. St. Rep. 104; Railroad Co. v. Reid, 91 Ga. 377, 17 S. E. 934; Railway Co. v. Crawford, 65 Ill. App. 113; Railway Co. v. Reynolds, 17 Kan. 251; Railway Co. v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 565. Applying these principles to the averments of the complaint that there was no choice of rates, and no reduction in the usual freight charges, and no consideration for a waiver of appellants' legal liability, it follows, if these things are established, there was no valid contract to accept a qualified responsibility from appellants. It is contended on the third paragraph that it is bad because it

shows that appellee stipulated to inspect and select his own car, and to send an attendant with the stock, and to release appellants from all liability for damages to the animals, including those resulting from a defective condition of the car, and that, in accordance with the stipulation, he did inspect and seleet his own car, and that his failure to send a man to care for the stock precludes his recovery for their injury. Again, assuming the special contract as valid (which it was not, as we have seen), appellants extend their argent further than the law will warrant. If, as averred, appellants knew at the time the ear selected was unsound and unsafe, and appellee failed to discover such unsoundness y reason of the defects being hidden, and the car appeared to him to be sound and safe, and he believed it to be so, his proof of these facts would charge appellants with the damages accruing therefrom. Freeing themselves by contract from their usual common-law duties did not change the true character of their employment. They were public carriers still. Liverpool, etc., Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788: Railway Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239. And having accepted appellee's money for the transportation of his horses to Indianapolis, they were bound to furnish a car suitable for the purpose. With the knowledge that the car was unfit and unsafe, they could not rest upon appellee's agreement, induced by safe, but false, appearances, to take the risk. The duty to furnish a proper car rests upon the carrier, and not upon the shipper; and the failure to discharge this duty is negligence, from the consequences of which the carrier is not permitted to free itself by contract or otherwise. Insurance Co. v. Lake Erie, etc., Co., 152 Ind. 333, 53 N. E. 382; Railway Co. v. Pratt, 89 U. S. 123, 22 L. Ed. 827: Railway Co. v. Davis, 159 Ill. 53, 42 N. E. 382, 50 Am. St. Rep. 143; Railway Co. v. Harwell, 91 Ala. 340, 8 South. 649. Furthermore, it is alleged that the floor of the car, by reason of being decayed, weak, and unsound, and known to be so by appellants, broke, and the horses were injured by falling through the hole. If this was the cause of their injury-and it is so admitted by the demurrer-then the animals were not injured for want of feed, water, or care in transit, which appellee agreed to bestow, and appellants would be liable for their negligence in furnishing an unfit car. Railway Co. v. Sherwood, 132 Ind. 129, 136, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239.

We now return to appellants' insistence that appellee's right of recovery is confined to the bill of lading under which the horses were shipped, and which they assert is the foundation of the second and third paragraphs of complaint. We recognize the familiar rule of pleading that a plaintiff should not set forth in his complaint matters that should come more properly from the other

side; that a plaintiff should not anticipate the defense, but be content with making his own case, and leave the defendant to choose his own line of defense. Stephen, Pl. 350; Bliss, Code Pl. § 200. It is also elementary that a plaintiff having suffered an actionable injury must aver in his complaint all the facts essential to a disclosure of his right of recovery, or suffer a nonsuit. In brief, it may be affirmed that a complaint good at common law, or under the Code, must contain a clear statement of all the facts necessary for the plaintiff to prove in the first instance, under an answer of general denial, to show that he is entitled to judgment. And under the operation of this rule, it has been held in some cases, where the relation of the facts seem to require it, that a necessary and incidental disclosure of a defense in stating a cause of action is permissible, and should not be regarded as anticipating a defense, within the rule. Latta v. Miller, 109 Ind. 302, 306, 10 N. E. 100; Hunt v. State, 93 Ind. 311, 316. But in this case we are not called upon to define the limits of this rule of pleading. For it is undoubtedly true that a complaint which contains facts sufficient to constitute a cause of action is good on demurrer, though it also contains additional immaterial matter. So the mere fact that a complaint otherwise good sets out the defense does not make the pleading bad, if it goes far enough to exhibit sufficient matter in avoidance. Morgan v. Railway Co., 130 Ind. 101, 28 N. E. 548; Latta v. Miller, 109 Ind. 302, 306, 10 N. E. 100; Railroad Co. v. West, 37 Ind. 211. We conclude, therefore, that the, facts set forth in the second and third paragraphs of the complaint, and which are admitted to be true by the demurrers, show that the pretended special contract of shipment was void, and left the transaction standing precisely as if no contract, other than the one implied by law, had been attempted by the parties. So it cannot be accurately said that the paragraphs were founded on a written contract, for no such thing existed in this case. Each of the paragraphs avers the public character of appellants, a delivery to them of the horses for transportation, payment of the freight, negligence in furnishing an unsuitable car, and injury and damages thereby. These facts constitute a good cause of action, and the demurrers were properly overruled. As independent pleadings, the latter paragraphs are not invalid because the same things are alleged in the first paragraph.

2. Appellants assail the action of the court in the giving of certain instructions of its own motion, and in refusing to give certain instructions requested by them. The instructions are not brought into the record by bill of exceptions, but are attempted to be brought in by order of the court: the only reference to the subject of instructions being the following recital of the clerk, and noted copy of entry: "Come again the parties,

and the plaintiff and defendants each file their request for instructions, and, the argument being heard, the court instructs the jury, which retires to consult of the verdict; ** * and the instructions asked and refused and the exceptions noted thereon, and the instructions given by the court of its own motion, are now filed and made a part of the record herein by order of the court, and are as follows, viz." It will be observed that the clerk informs us that two classes of instructions, namely, those “asked and refused," and those "given by the court of its own motion," were filed and made part of the record by order of court, and which he says "are as follows." Then next appears in the transcript what purport to be three series of instructions-one series requested by the plaintiff, one by the defendants, and one as given by the court of its own motion. Of all those requested by the parties, Nos. 1 and 6 of the series requested by the defendants are the only ones that appear to have been "asked and refused." What went with the instructions requested by the respective parties, and given by the court, is left to conjecture, since it does not appear that they were filed or brought into the record by order of court, or any other method recognized by the law. A spreading of them upon the court's minutes, and copying of them into the transcript by the clerk of his own motion, amounts to nothing, and gives us no authority to heed them. Here, then, we have a record which affirmatively shows that all of the instructions given by the court are not in the record. We cannot, therefore, consider an objection to the giving or refusing to give any instruction that may be properly in the record. The settled rule of this state goes even further than applies to this record, namely, that the record must affirmatively show that it embraces all the instructions given to the jury; and, upon failure to do so, we must presume that the substance of instructions asked and refused was embraced in charges given by the court, and not contained in the record, and that objectionable instructions given by the court of its own motion, and set out in the record, were corrected or withdrawn in others given and not embraced in the record. State v. Winstandley, 151 Ind. 495, 51 N. E. 1054, and cases cited. See, also, Board v. Gibson, 158 Ind. 473, 490, 63 N. E. 982.

It is suggested, but not argued, that the court erred in permitting an agent of the consignee of the horses to testify, as a witness for appellee, to what was said over the telephone between him and some one whose voice was not recognized, but who answered a call for appellants at their office in Indianapolis. The substance of the communication is that the witness notified the person who answered for appellants that the car floor had broken and some of appellee's horses had been injured, and appellants

should give the matter attention, and the response over the wire was that they would send a man over and attend to the matter We need not decide whether or not the evi dence was competent, since it is apparent that appellants could not have been injured by anything said over the telephone. Judgment affirmed.

KEISER et al. v. MILLS et al. (Supreme Court of Indiana.

Nov. 24, 1903.) DRAINAGE PROCEEDINGS-CHANGE IN LAWFILING REMONSTRANCE-APPEAL-ASSIGNMENT OF ERRORS.

1. Proceedings for construction of a ditch under the drainage law, instituted before passage of the amendatory act of March 8, 1901 (Acts 1901, pp. 161-170; Burns' Rev. St. 1901, § 5623, 5624, 5626, 5628), are by express provision of section 4 thereof (Burns' Rev. St. 1901, § 5628) not affected thereby.

2. Assignments of error need not give the names of parties other than those necessary to the appeal.

3. Where an assignment of errors complains of the refusal to strike out the remonstrance "of James * A. Commons, signed ** J. A. Commons," it will be presumed, in the absence of a showing to the contrary, that James A. Commons is the correct full name of the J. A. Commons named in the record.

4. Though Sup. Ct. rule 6 (55 N. E. iv), requiring the assignment of errors to contain the full names of the parties, does not apply in proceedings under the drainage law, the giving in the assignment of the full name is not ground for dismissing the appeal.

5. Under Burns' Rev. St. 1894, § 5623, providing that the petition for drainage is sufficient to give the court jurisdiction over all the lands described and to fix the lien, if they are described as belonging to the person who appears to be the owner according to the last tax duplicate or record of transfer, it cannot be presumed that no land belonging to a petitioner and appellant was assessed with benefits merely be cause his name was not given in the report of the drainage commissioners as the owner of land benefited by the ditch.

6. That persons not named in a drainage petition, but who are interested in lands affected by the proposed ditch, may file a remonstrance after the original parties have lost the right under Burns' Rev. St. 1894, § 5624, by lapse of time, they must show that their failure to act sooner was not due to lack of diligence.

Appeal from Circuit Court, Hamilton County; R. K. Kane, Special Judge.

Petition by Frank H. Keiser and others under the drainage law. William A. Mills and others filed a remonstrance, and there was judgment for them. Certain petitioners appeal. Reversed.

Stuart & Reagan, for appellants. Roberts & Vestal, for appellees.

MONKS, J. A petition was filed by appellants and others on January 24, 1901, in the clerk's office of the court below, for the construction of a ditch under the drainage law of 1885 and the amendments thereto (sections 5622-5631, 5644-5646, Burns' Rev. St. 1894). Notice was given to the owners

2. See Appeal and Error, vol. 3, Cent. Dig. § 2992.

The

and occupants of the several tracts of land described in the petition in the manner prescribed by law, and the case was docketed. No remonstrance having been filed, the same was referred to the drainage commissioners as required by section 5624, supra. Said commissioners afterwards made their report to the court, from which it appeared that lands were named as affected by said drainage which were not named in the petition. The court fixed February 15, 1902, as the time for the bearing of said report, and the petitioners gave notice to the owners of such lands of the filing of said report and the date fixed by the court for the hearing thereof. rotices were served on such landowners, which included appellees, on January 29 and 30, 1902. On February 15, 1902, appellees filed a verified application for leave of court to file a remonstrance against the construction of said ditch, signed by more than twothirds of the landowners named in the report of the drainage commissioners. On the same day appellees, who were owners of land named in the report of the drainage commissioners and not named in the petition, each filed a separate verified remonstrance against the report of said drainage commissioners, for the first, fifth, eighth, ninth, and tenth statutory grounds of remonstrance provided in section 5625, supra. On March 3, 1902, the court denied the motion of appellees asking leave to file the remonstrance of two-thirds of said landowners, and refused to permit said remonstrance to be filed, to which ruling of the court appellees jointly and severally objected and excepted. Afterwards appellants filed a separate motion to strike from the files each remonstrance of appellees setting up said statutory causes, upon the ground that the same was not filed within the time required by statute, which motion the court, on April 11, 1902, overruled, to each of which rulings of the court appellants at the time objected and excepted. A trial of said cause resulted in a judgment in favor of appellees. Each of said rulings of the court on the motions to strike out said remonstrances is challenged by appellants jointly.

It will be observed that the report of the drainage commissioners was filed in October, 1901, and the report of the drainage commissioners was set for hearing on February 15, 1902, long after the taking effect of the act approved March 8, 1901 (Acts 1901, pp. 161170, being sections 5623, 5624, 5626, 5628, Burns' Rev. St. 1901), but as these proceedings were instituted before the passage of said amendatory act of March 8, 1901, by the express provision of section 4 of said act (being section 5628, Burns' Rev. St. 1901) said act does not apply to this case, but the same is governed by the law in force when this proceeding was begun.

Appellees insist that the appeal should be dismissed "for the reason that appellants have not giver the names of all the parties

to the record in their assignment of errors." Only parties to the judgment appealed from are necessary parties to an appeal. Moore v. Franklin, 145 Ind. 344, 44 N. E. 459; Lowe v. Turpie, 147 Ind. 652, 690-693, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233; Capital National Bank v. Reid, 154 Ind. 54, 55 N. E. 1023; McClure v. Shelburn Coal Co., 147 Ind. 119, 46 N. E. 349. This was a term-time appeal, and appellants were not required to make their co-parties to the judgment coappellants with them in this cause. Burns' Rev. St. 1901, §§ 647a, 647b; Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233; Roach v. Baker, 145 Ind. 330, 43 N. E. 932, 44 N. E. 303; Goodrich v. Stangland, 155 Ind. 279, 281, 282, 58 N. E. 148.

Objection is made that the names of appellees in the assignment of errors are not the names by which they are known in the record. In the transcript the initials of the Christian names of many of the appellees are given, while in the assignment of errors the first Christian name is given in full. For example, lands of "J. A. Commons," whose name appears in the assignment of errors as "James A. Commons," were assessed with benefits, and he filed a separate remonstrance to the report of the drainage commissioners, signed "J. A. Commons." Appellants' motion to strike out this remonstrance was overruled by the court. This ruling of the court was challenged by the assignment of errors in this language: "The court erred in overruling the motion of appellants to strike from the files and reject the remonstrance of James A. Commons, signed by the name and style of J. A. Commons." As it is not shown that James A. Commons is not the correct full name of the J. A. Commons named in the record, we must presume that it is.

Rule 6 of this court (55 N. E. iv), requires that the assignment of errors shall contain the full names of all the parties. In giving the full names of all appellees in the assignment of errors, said rule was complied with. This court has refused to dismiss appeals in drainage cases under the act of 1885 and amendments when this rule was not complied with, on account of the fact that it is only necessary, in proceedings under the circuit court drainage law (section 5623, Burns' Rev. St. 1894), to describe the lands affected as belonging to the person who appears to be the owner according to the last tax duplicate or transfer book kept by the county auditor. Goodrich v. Stangland, 155 Ind. 279, 58 N. E. 148; Gunn v. Haworth, 159 Ind. 419, 421, 64 N. E. 911. This, however, furnishes no ground for dismissing an appeal in such cases when said rule is complied with by giving the full names.

It is claimed by appellees that the record does not show that any land belonging to Thomas C. Lennen, a petitioner and appellant, was assessed with benefits, and that, therefore, no error was committed by the

court against him in overruling the joint motions of appellants to strike out said remonstrances; that for this reason the assignment of errors is not good as to him, and, being joint by all the appellants, must fall as to all of them, under the rule that a joint assignment of error must be good as to all or it is good as to none. Armstrong v. Dunn, 143 Ind. 433, 436, 437, 41 N. E. 540. Under the liberal provision made by section 5623, Burns' Rev. St. 1894, that it is sufficient to give the court jurisdiction over all the lands described and the power to fix the lien, “if they are described as belonging to the person who appears to be the owner according to the last tax duplicate or record of transfer," we cannot presume that no land be longing to the petitioner, Thomas C. Lennen, was assessed with benefits merely because the name of Thomas C. Lennen was not given in the report of the drainage commissioners as the owner of land benefited by the construction of said ditch. For aught that appears from the record, said appellant, Thomas C. Lennen, was the owner of several tracts of land assessed with benefits, but described as belonging to the person who appeared to be the owner according to the last tax duplicate or record of transfer.

Many other objections are made to the record by appellees, as reasons why the judgment should be affirmed, but all of them fall within the rule that parties to an appeal can bring before the court only such questions as affect their rights, and not such as affect the rights of others. Poundstone v. Baldwin, 145 Ind. 139, 143, 144, 44 N. E. 191; Cooper v. Shaw, 148 Ind. 313, 316, 47 N. E. 679.

Appellants insist that the said remonstrances for statutory causes filed by appellees on February 15, 1902, were not filed within the time required by statute, for which reason the court erred in overruling appellants' motion to strike out the same. This question was decided by this court in favor of appellants' contention in Goodrich v. Stangland, 155 Ind. 279, 285, 58 N. E. 148. In that case the report of the drainage commissioners, which named lands as affected by said proposed ditch which were not named in the original petition, was filed on January 4, 1898, and the court fixed Monday, March 7, 1898, for hearing the report, and directed notice accordingly, as required by section 5624, Burns' Rev. St. 1894. Notices containing the information of the filing of said report and the date of the hearing thereof were served on or before February 23, 1898. On March 7, 1898, the day fixed for the hearing of said report, the appellants in that case each filed a remonstrance. A motion to strike out said remonstrances for the reason that they were not filed within the time required by the statute was sustained by the trial court. On appeal this court held that said ruling was correct. This court said on page 285, 155 Ind., and page 150, 58 N. E.: "The remonstrance was ordered to be stricken out. This was right. It was not filed within ten days after

the service on the appellant of the notice of hearing the report." It follows that, said remonstrance not being filed within ten days after the service of notice on appellees, the court erred in overruling said motions to strike them from the files.

Appellees, by an assignment of cross-errors, question the action of the court in refusing to permit them to file said remonstrance of twothirds of the landowners named in the report of the drainage commissioners, as provided in the first proviso in section 5624, Burns' Rev. St. 1894. It is admitted by appellees that under the law as declared in Yancey v. Thompson, 130 Ind. 585, 30 N. E. 630, the new parties brought in by the report of the drainage commissioners have no right to file a remonstrance under said first proviso of said section 5624, supra. Appellees, however, seek to avoid the effect of the statute by alleging in their application to file said remonstrance that "the petitioners, for the fraudulent purpose of preventing said petition from being dismissed by the filing of a remonstrance signed by twothirds of the persons named in the petition, failed to name forty-five owners of land named in said report as the owners of land benefited by said proposed drain; that petitioners well knew, if they named in the petition all the owners of land that would be benefited, that such a remonstrance would be filed, and that their petition would be thereby dismissed; that by said failure to name all the persons whose lands would be benefited by said proposed drain the petitioners have sought to practice a fraud upon the court and those remonstrators whose names are signed to the attached remonstrance."

It was held by this court in Bell v. Cox, 122 Ind. 153, 23 N. E. 705, that persons not named in the petition for drainage under said act of 1885 (sections 5622-5631, 5644-5646. Burns' Rev. St. 1894), if they have an interest in the lands affected by the proposed ditch, may be admitted to defend on application to the court, and, if made parties at the proper time, may attack the petition or remonstrate under said first proviso the same as if they had been named in the petition, their rights being substantially the same as those of the original parties, except in so far as they are limited or qualified by law.

Under the decision in the case last cited, appellees had the right to be admitted on application and to file said remonstrance; if the time for filing the same had not expired, and it was their duty to make said application at the first opportunity. If they knew of such drainage proceedings and the facts alleged in their application before the original parties by lapse of time lost their right to file the remonstrance under said first proviso, and failed to take the necessary steps to be made parties and to file said remonstrance, they will not be permitted to file the same after that time has expired. The proceedings in this case were commenced in January, 1901, and for aught that appears in appellees' application they then