Brown v. Buzan. tional limitations of legislative power, results from a failure to comprehend the character of our forms of government, and the fundamental basis upon which they rest. The legislature is peculiarly under the control of the popular will. It is liable to be changed, at short intervals, by elections. Its errors can, therefore, be quickly cured. The courts are more remote from the reach of the people. If we, by following our doubts, in the absence of clear convictions, shall abridge the just authority of the legislature, there is no remedy for six years. Thus, to whatever extent this court might err, in denying the rightful authority of the law-making department, we would chain that authority, for a long period, at our feet. It is better and safer, therefore, that the judiciary, if err it must, should not err in that direction. If either department of the government may slightly overstep the limits of its constitutional powers, it should be that one whose official life shall soonest end. It has the least motive to usurp power not given, and the people can sooner relieve themselves of its mistakes. Herein is a sufficient reason that the courts should never strike down a statute, unless its conflict with the constitution is clear. Then, too, the judiciary ought to accord to the legislature as much purity of purpose as it would claim for itself; as honest a desire to obey the constitution, and, also, a high capacity to judge of its meaning. Hence, its action is entitled to a respect which should beget caution in attempting to set it aside. This, with that corresponding caution of the legislature, in the exercise of doubtful powers, which the oath of office naturally excites in conscientious men, would render the judicial sentence of nullity upon legislative action as rare a thing as it ought to be, and secure that harmonious co-operation of the two departments, and that independence of both, which are essential to good government. With these preliminary observations, deemed called for at this time, as an expression of our purpose to adhere to ancient landmarks, let us examine the question in hand. Brown v. Buzan. The seventh article of the constitution of the state contains all that is relied on in support of the objection now made. It provides that the judicial power shall be vested in a supreme court, circuit courts, and such inferior courts as the legislature may establish; that the judges of the supreme and circuit courts shall be elected by the people, for six years, but that provision may be made by law, for holding the circuit court, when the judge thereof shall be temporarily unable to attend. It is argued, that inasmuch as the constitution expressly gives authority to the legislature to provide by law for holding the circuit courts, when their judges are unable to be present, and is silent as to the inferior courts, the maxim, "expressio unius est exclusio alterius," applies. We think not. Where there is a necessity for mentioning a particular thing, but none whatever for mentioning another thing, to regard the mention of the former as intended to exclude the latter, would be an exceedingly unnatural and unreasonable rule of interpretation. Here, the power of the legislature to establish courts, inferior to the circuit court, is given in the broadest terms, without any restriction as to the mode of selecting the judges; and, consequently, the legislature might provide for any number of judges, and any mode, or modes, for their selection, which its wisdom might suggest. Not so as to circuit judges; the constitution had fixed their number, one only for each circuit, who must be elected by the people. Without express authority, therefore, it would not have been competent for the legislature to provide by law for a temporary judge, to be appointed to act while the judge elected was in office. Hence, the necessity of an additional section to give that authority. But, as to the inferior courts, it would have been a work of supererogation to attempt to enlarge a power already given in terms comprehensive enough to include every possible thing. We conclude, therefore, not merely that it is not clear that the act in question is unconstitutional, but that it is Swank v. Nichols' Administrator. undoubtedly within the purview of legislative authority. That it is so is a matter of congratulation. The case at bar involves but a few dollars, but a different decision of the question would have involved consequences, and wrought mischief, which no man can calculate. All the judges concurring, the judgment is affirmed, with costs. T. A. Hendricks and O. B. Hord, for appellant. SWANK V. NICHOLS' Administrator. CONDITION-WAIVER OF.-Where money is stipulated to be paid upon a condition expressed, and, subsequently, a promissory note is given for the amount, payable without condition, the condition must, in the absence of fraud, be regarded as waived. INSTRUCTIONS.-Instructions based on a hypothetical case, where there is no evidence tending to make the case supposed, are out of place, and ought not to be given, as they are only calculated to mislead the jury. PROMISSORY NOTE.-VERBAL CONDITION.-A verbal condition cannot be annexed to a promissory note, or other written contract. A verbal contract may constitute the consideration of a written contract, but a note for a given amount cannot be trammeled with a verbal condition, which shall make it obligatory for a less sum. APPEAL from the Owen Common Pleas. FRAZER, J.-This case is now here the second time. Upon the last trial, the court below seems to have disregarded the law, as declared by this court when the case was formerly before it. 20 Ind. 198. The foundation of the action was, at first, two promissory notes, given by the intestate to the appellant. After the cause was remanded by this court for a new trial, a paragraph was added upon a quantum meruit, for services rendered as a physician. New pleadings were then filed by the defendant: 1. The general denial. 2. As to the notes, Swank v. Nichols' Administrator. that when they were given the intestate was insane, with some additional averments, which amount to nothing. 3. The same, in substance, as the second. 4. Fraud in procuring the notes, in this, that the plaintiff was treating the intestate for a cancer, and falsely and fraudulently pretended that he was curing it, relying upon which, the intestate was induced to execute the notes, and for no other consideration; that the plaintiff's representations were false; that the cancer was, in fact, growing worse, and the intestate afterward died of it. 5. Want of consideration for the notes. 6. As to the paragraph for services, that they were performed upon an express contract to cure, or receive nothing for the services. The reply was a general denial. There was a verdict for the defendant. The evidence disclosed that, in the first place, the plaintiff entered upon the treatment of the intestate for a cancer, in the month of June, under a contract to be paid $200 if he effected a cure; if no cure was effected, then he was to receive $100, he guaranteeing to do "$100 worth of good." It also appeared that the deceased, during treatment, refused to pursue the plaintiff's proper directions as to diet and exercise, whereupon the plaintiff, in September, informed him that treatment was useless, unless the directions were obeyed, and refused to treat him further, unless he would give his note for $200, which was done without conditions, the deceased being advised that he would be compelled to pay it. The medicines used were local applications, rendering him temporarily unfit for business, in consequence of the pain produced. Whether the treatment actually resulted in any benefit, or not, is not certain from the evidence. The deceased thought he was benefitted to the value of $100. The services of the plaintiff were worth $100. The note for $25 was for a surgical operation performed by another physician, on the face of the deceased, the cancer being on the under lip. The court refused to instruct the jury that, if the contract was made in June. and if the note for $200 was Swank v. Nichols' Administrator. given in September, the giving of the note would, in the absence of fraud, be a waiver of the conditions of the original contract. The court held in this case, when it was formerly here, that this instruction ought to have been given. The legal proposition is a very plain one, and was exactly applicable to the evidence upon the last trial. It is surprising that it was refused. The court instructed the jury, that "if the original contract was continued in force, qualified only by an increase of the amount to be paid, then the plaintiff must show that he has performed his undertaking in that behalf; and if the jury should believe that one of the stipulations of the original contract was that Swank should have only $100, and that the doctor was to render the deceased that much good, and that that stipulation was continued in force at the time that the notes sued on were given, and, further, that the doctor did, in fact, do said deceased $100 worth of good, then the plaintiff ought to recover $100, and no more, on the $200 note. But, if the plaintiff did not do the deceased $100 worth of good, then the plaintiff will not be entitled to recover anything on said note." This ought not to have been given, for the reason that there was no evidence, in this case, to which it could be applicable. Instructions based on a hypothetical case, when there is no evidence tending to make the case supposed, are simply out of place, and ought never to be given. They can only mislead the jury. But this did not contain the law. A verbal condition cannot be annexed to a promissory note, or other written contract. A verbal contract may constitute the consideration of a written contract, but a promissory note for $200 cannot be trammeled with verbal conditions, which shall make it obligatory for a less sum. The evidence of the conditions would be inadmissible. In this case, no such evidence was even offered. The proof was distinct, that, in consequence of a refusal on the part of the patient to obey directions, the physician refused longer to attend, unless a note for $200 was executed to him. No |