dered to the vendee in a contract for the purchase and sale of real estate, and, being refused by him, has been deposited in a place subject to his call, the vendor may sue at law to recover the contract price agreed to be paid, with interest. 1 Sugd. Vend. (14th Ed.) p. 545, note; Richards v. Edick, 17 Barb. 265; Franchot v. Leach, 5 Cow. 506; Shannon v. Comstock, 21 Wend. 457, 34 Am. Dec. 262; Tripp v. Bishop, 56 Pa. 424; Jacobs v. Railroad Co., 8 Cush. 223; Sears v. City of Boston, 16 Pick. 357; Gill v. Bicknell, 2 Cush. 358; Oatman v. Cook, 33 Me. 67. The vendor in an executory contract of sale of real estate holds the title thereof as trustee for the vendee. Pelton v. Insurance Co., 77 N. Y. 605; Hathaway v. Payne, 34 N. Y. 92; Cogswell v. Cogswell, 2 Edw. Ch. 231. From the moment that the executory contract was completed by the acceptance on the part of the city of the vendor's written proposition to sell and convey the land, the equitable title was in the city, and the vendor is to be treated as the owner of the purchase money. Williams v. Haddock, 145 N. Y. 144, 39 N. E. 825. This title was transformed into a legal estate by the subsequent delivery of a deed which conveyed a good title.

We have said that the deed was delivered, and it seems to us that it was. How may an individual who has contracted to convey land to a city deliver the deed? Is not a delivery to the mayor or to the comptroller or treasurer good and sufficient to vest the title in the vendee? We are aware of no principle or rule of law to the contrary. It seems to have been assumed in this case that the approval or permission of the common council expressed in the form of a resolution accepting the deed was essential to the perfection of title in the city, and that, since such a resolution was defeated by the action of the mayor, there was neither delivery nor acceptance. It would, we think, be difficult to show that either the assumption or conclusion rested upon any sound principle, or is supported by any respectable authority. The mayor simply vetoed a resolution that was merely super fluous, and that had no effect whatever upon the rights of the vendor whether enacted or defeated. When the latter delivered a valid conveyance in pursuance of the contract to some proper executive officer representing the city, the law settled his rights, and they do not depend upon any subsequent action of the common council. That body having contracted for the purchase of the land, the examination of the title, the payment of the purchase price, the delivery and recording of the deed were matters of detail relating to performance that could be transacted between the vendor and the city officers exercising executive or administrative functions. It is not necessary to hold in this case, and we do not hold, that the mere tender of a deed by the vendor entitled him to maintain an action at law for the recovery of the contract price. In

some of the cases cited it will be seen that a rule as broad as that has been laid down; but there is much conflict of opinion upon the subject, and we will not attempt to formulate a rule beyond what is required by the circumstances of this case. Here there was much more than the mere tender of a deed. The vendor intended to and did devest himself of the title, and performed every act to that end that was within his power. There was a delivery of the deed to the clerk, and by him to the treasurer. There was a draft or order drawn for the payment of the purchase money, though not actually delivered. There was a change made of the assessment maps, and finally a delivery of the deed to the county clerk for record, and an actual recording of the same. When this action was commenced the legal title of record was in the defendant, and it is still there. On payment of the purchase price or judgment, the title of the city is complete and unquestionable. In such a case the vendor is entitled to recover the purchase price at law, and the formal acceptance of the deed by the common council was not necessary to perfect that right. Much less does the disapproval by the mayor of the resolution actually accepting it embarrass the plaintiffs' right of action. There was no actual refusal on the part of any city authority to accept the deed. The veto of the mayor disapproved of the resolution of the common council, but contained no objection to the deed or any affirmative refusal on his part to accept it, though possibly that may have been what was intended. But the defendant could not, under such circumstances, defeat the vendor's right of action through the mayor's veto. The transaction had reached such a stage that the mayor had no power to change the legal obligations of the parties to the contract. The fundamental error in the argument in behalf of the city is to be found in the assumption that the resolution of the common council accepting the deed was essential in order to vest the city with the title to the land, or to the consummation of the transaction. It seems to me, therefore, that the plaintiffs were entitled, so far as this question was concerned, to have the verdict directed in their favor. But the most favorable view for the defendant would not justify the direction made at the trial. If there was any conflict in the evidence,-which we are unable to perceive, or different inferences to be drawn from the facts, or any question of actual intention, or of the authority of the city officers, who were actors in the transaction, to do as they did, then the question of delivery and acceptance should have been submitted to the jury. It was shown that the deed was in the possession of the city clerk and city treasurer, and that the former procured it to be recorded, and that before the action was brought the grantor died. Under such cir cumstances the legal presumption is that the

deed was delivered. Townsend v. Rackham, 143 N. Y. 516, 38 N. E. 731.

The judgment must be reversed, and a new trial ordered, with costs to abide the event.

GRAY, BARTLETT, HAIGHT, CULLEN, and WERNER, JJ., concur. PARKER, C. J., absent.

Judgment reversed, etc.

(158 Ind. 602)

KLINE v. KLINE.

(Supreme Court of Indiana. May 23, 1902.) ASSAULT-CIVIL LIABILITY-THREATS-MEAS

URE OF DAMAGES-MENTAL SUFFERING. 1. Defendant went to plaintiff's home, where she was alone with her young children, and told her to move out, as he intended to burn the house. Plaintiff found that defendant had poured kerosene oil on the house, and was scratching a match as if about to set fire thereto; and he pointed a pistol at her, telling her that if she did not go back into the house he would shoot her and the children, whereupon plaintiff fled with her children to the nearest neighbor's house, about a mile away, and, the weather being cold, she contracted a severe cold, etc. Held that, independent of whether there was a criminal assault, there was such an assault as subjected defendant to liability for damages in a civil action.

2. The wrong complained of being willful, plaintiff was entitled to recover full compensation for the damages sustained by her by reason thereof, including damages for fright and mental suffering, though there was no unlawful touching of her body, and no direct physical injury.

Appeal from circuit court, Jasper county; John S. Lairy, Special Judge.

Action by Addie Kline against Charles M. Kline. From a judgment in favor of plaintiff, defendant appeals. Transferred from appellate court under Acts 1901, p. 550 (Burns' Rev. St. 1901, § 1337u). Affirmed.

Fraser & Isham and Cummings & Darroch, for appellant. Saunderson & Hall and T. B. Cunningham, for appellee.

GILLETT, J. The appellee brought this action against appellant to recover damages for an alleged assault. The evidence shows, without dispute, the following state of facts: Late in the afternoon of January 2, 1899, appellant went to the home of appellee and her husband, where she was alone with her young children, and told her that he wanted her to move out, that he would help her do so, that he intended to burn the house, and that the sun would never shine on it again. Appellant then went away, but returned in a few minutes. When appellee was advised of his return, she went to the door, and found that he had poured kerosene upon the side of the house, and was scratching a match, for the seeming purpose of setting fire to the house. When she appeared, appellant pointed

gun at her, and told her that if she did not go back in the house he would blow her head off; and then he added that if she did not

leave the place he would shoot her and her children. Appellee and her children were greatly alarmed, and fled to the home of their nearest neighbor, who lived about a mile away. The air was cold, and appellee was insufficiently clothed; and she testifies that as a result of her exposure she contracted a severe cold, that settled in her head and lungs, and caused her to be ill for two or three months. Appellant made no attempt to gainsay the evidence of the outrageous conduct on his part contained in the above recital. There was a verdict and a judgment for appellee.

Appellant's counsel, in a variety of ways, have sought to present the question whether there can be a recovery of damages for mere fright. Apart from any consideration as to whether there was any showing of a present ability to commit the threatened violence, so as to give a remedy for the public wrong, by way of prosecution for assault, we feel clear. that there was such an invasion of appellee's private right as would authorize a recovery for such damages as she sustained. Even if we were to grant, for the sake of the argument, that there was not an assault, within the meaning of our criminal statute, yet there was such an assault as clearly subjected the offender to a civil action at common law. A reputable writer upon the criminal law thus defines the term "assault": "An attempt, or the unequivocal appearance of an attempt, with force or violence, to do a corporal injury; and may consist of any act which shall convey to the mind of the person set upon a wellgrounded apprehension of personal violence." 2 Archb. Cr. Prac. & Pl. 41. Whatever may be the changes in the public remedy, the right of private action, in the absence of other legislation, must remain as at common law. Sir William Blackstone, in his book on Private Wrongs, said: "The rights of persons, we may remember, were distributed into absolute and relative,-absolute, which were such as appertained and belonged to private men, considered merely as individuals or single persons; and relative, which were incident to them as members of society and connected with each other by various ties and relations. And the absolute rights of each individual were defined to be the right of personal security, the right of personal liberty, and the right of private property." 3 Bl. Comm. p. *119. Judge Cooley, in his Elements of Torts (page 9), said: "The right to one's person may be said to be a right to complete immunity; to be let alone. An attempt to commit a battery usually involves ar insult, a putting in fear, a sudden call upon the energies for prompt and effectual resistance; and the law, for these reasons, makes the assault a wrong, even though no actual battery takes places." The same learned writer, in his work on Torts (note to page *161), said: "Presenting an unloaded gun at one who supposes it to be loaded, within shooting distance, is not such an assault as can be punished criminally, although it may

sustain a civil action." As said by Gilchrist, C. J., in Beach v. Hancock, 27 N. H. 223, 229, 59 Am. Dec. 373: "One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel security against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being put in fear of personal harm. But it must be a reasonable fear of which we complain. And it is surely not unreasonable for a person to entertain a fear of personal injury when a pistol is pointed at him in a threatening manner, when, for aught he knows, it may be loaded, and may occasion his immediate death. The business of the world could not be carried on with comfort if such things could be done with impunity." See, also, State v. Rawles, 65 N. C. 334, 337. In this case there was a willful and distinct invasion of appellee's right of personal security by an act of inchoate violence. We do not doubt that this was actionable. There was a touching of the mind, if not of the body. Newell v. Whitcher, 53 Vt. 589, 38 Am. Rep. 703; Bish. Noncont. Law, §§ 16, 31, 190, 191, 194, 417.

Having reached the conclusion that an actionable wrong was done appellee by appellant's willful act, we assert that, as the law imports some damage, she was entitled to recover full compensation, which includes compensation for her mental suffering, even if there was no unlawful touching of the body and no physical injury. While the current of authority supports the doctrine that there can be no recovery for mental suffering, where there has been no physical injury, in ordinary actions for negligence, yet that is not the law as applied to a willful injury committed against the complaining party. It was said in the reporter's note to Wyman v. Leavitt, as reported in 36 Am. Rep. 303, 306: "There can be no doubt that mental suffering forms a proper element of damages in actions for intentional and willful wrong, and in actions for negligence resulting in bodily injury; but whether it forms an independent ground of action, disconnected from these facts, is more doubtful." In Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759, it was held that a trespasser is bound to make full compensation. The supreme court of Massachusetts, in passing upon the question as to whether a recovery could be had, in an ordinary action for negligence against a carrier, for bodily injury resulting solely from mental distress, gives a pretty thorough exposition of the rationale of the subject of damages for mental suffering. It was said: "Rules of law respecting the recovery of damages are framed with reference to the just rights of both parties,-not merely what it might be right for an injured person to receive, to af

*

ford just compensation for his injury, but also what it is just to compel the other party to pay. The law of negligence, in its special application to cases of accidents, has received great development in recent years. The number of actions brought is very great. This should lead courts well to consider the grounds on which claims for compensation properly rest, and the necessary limitations of the right to recover. We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and, if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, without there is an injury to the person from without. The logical vindication of this rule is that it is unreasonable to hold persons, who are merely negligent, bound to anticipate and guard against fright and the consequences of fright, and that this would open a wide door for unjust claims that could not be successfully met. These views are supported by the following decisions [citing cases]. It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is shown or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution, or arrest, and some others." Spade v. Railroad Co., 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393.

Upon a consideration of the premises and a review of the authorities. we are persuaded that it is proper, where a cause of action accrues to a person through the willful wrong of another, and damages are thereby sustained by way of fright, to allow therefor, whether the person complaining received any physical injury or not. This conclusion is not out of accord with the case of Telegraph Co. v. Ferguson, 157 Ind. 64, 60 N. E. 674, 1080, 54 L. R. A. 816. As the complaint was sufficient, and the result clearly right, upon the evidence, we refuse to reverse for other possible errors that do not, in a substantial sense, relate to the merits. Judgment affirmed.

(158 Ind. 524).

HOOVER v. PATTON et al. (Supreme Court of Indiana. May 21, 1902.) EVIDENCE-OFFER TO PROVE-TIME FOR MAKING.

An offer to prove, made after an objection to the question asked has been sustained, comes too late, and is not available as a basis for an exception.

Appeal from circuit court, Montgomery county; Jere West, Judge.

Action between James F. Hoover and Edward Patton and others. From the judgment rendered, Hoover appealed to the appellate court, from which the appeal was transferred

to the supreme court under Act March 13, 1901 (Acts 1901, p. 590). Affirmed.

Livengood & Livengood and Clodfelter & Fine, for appellant. Crane & Anderson and S. J. Newlin, for appellees.

DOWLING, J. The only errors complained of on this appeal are the rulings of the trial court excluding certain evidence offered by the appellant. In every instance the appellant failed to state the facts expected to be elicited until after the objection to the question had been decided by the court. The proper practice in such cases has often been announced. The rule is thus stated in Gunder v. Tibbits, 153 Ind. 591, 55 N. E. 762, by Baker, J.: "It has been repeatedly decided that the only proper practice is to propound the question to the witness on the stand, and, if objection to the question is made, to state to the court what the examiner proposes to prove by the witness' answer to the question, and then, if the objection is sustained, to reserve an exception to the ruling on the question." In the present case the question was asked by counsel for appellant, counsel for appellees objected to the question, the court sustained the objection, and appellant excepted to this decision. He then stated what he expected to prove by the witness in answer to the question, the court held the evidence inadmissible, and the appellant again except

MAGIC PACKING CO. et al. v. STONEORDEAN-WELLS CO.

(Supreme Court of Indiana. May 22, 1902.) CONTRACT OF SALE-ACTION FOR BREACHALLEGATION OF CONSIDERATION-PRESUMPTION FRAUDULENT ASSIGNMENT — SUFFICIENCY OF COMPLAINT-CONDITIONS PRECEDENT-NOTARIAL CERTIFICATES-NECESSITY OF REVENUE STAMP.

1. A written contract for the sale of canned apples, subject to the approval by the purchaser of sample when packed, being assignable, under Burns' Rev. St. 1901, § 7515 (Rev. St. 1881, § 5501; Horner's Rev. St. 1901, § 5501), which provides that written contracts for the delivery of a specific article, etc., shall be negotiable by indorsement, imports a consideration; and, in an action for a breach of the contract, it was not necessary to allege

one.

2. In an action to recover for breach of a written contract of sale, the allegations of the complaint that the vendor, a corporation, transferred, without consideration, to the defendant, a corporation composed of substantially the same stockholders, and incorporated after the execution of the contract sued on, all its property, including its contracts for the sale of goods, with the intent, participated in by the defendant, of defrauding its creditors, and that it was at the time of bringing suit insol

vent, were sufficient, as against the defendant, although it was not a party to the contract.

3. Under Burns' Rev. St. 1901, § 373 (Rev. St. 1881, § 370; Horner's Rev. St. 1901, § 370), providing that, in pleading the performance of a condition precedent in a contract, it shall be sufficient to allege generally that the party performed all the conditions on his part, the complaint in an action for the breach of a contract, which failed to allege that the party seeking to enforce the same was ready and willing to carry out its part, was bad. state,

4. Depositions taken in another though not having revenue stamps on the notary's certificates, as required by Internal Revenue Law June 13, 1898, § 14, will not be suppressed.

Appeal from circuit court, Delaware county; Joseph G. Lefler, Judge.

Action by the Stone-Ordean-Wells Company against the Magic Packing Company and others for breach of contract. From a judgment for plaintiff, defendants appeal. Transferred from the appellate court under Burns' Rev. St. 1901, § 1337u (Acts 1901, p. 590). Reversed.

Bingham & Long, for appellants.

MONKS, J. Appellee sued appellants to recover damages for breach of a written contract, and recovered judgment. The assignment of errors calls in question the action of the court in overruling the separate demurrer of each appellant to each paragraph of the complaint, and the action of the court in overruling the separate motion of each appellant for a new trial.

By the terms of the written contract sued upon, dated September 9, 1898, the Magic City Canning Company sold to appellee "250 cases (one dozen cans to the case) gallon apples, at $2.00 per dozen, less 15 cents per cwt. freight allowance. Cans to be well filled with new Michigan winter apples. Shipment to be made as soon as possible after packing, subject to approval of sample when packed. To be packed at Grand Rapids. Mich. Swells guarantied until July 1, 1899. * * Terms: 60 days' acceptance, or cash, less 11⁄2 per cent., in ten days."

It is insisted by appellants that the contract sued upon was "a mere option; that appellee was not bound to accept and pay for the apples, but only had the privilege of doing so, which privilege it would exercise, and approve said apples if it desired them, but if the price went down, and it did not desire the apples for that reason, it was at liberty to reject the samples submitted, on any ground and for any reason it saw fit, without assigning any cause; that such a contract was without consideration." An optional agreement to sell property, without any obligation to purchase or accept, may be enforced, if made upon a proper consideration. 1 Mechem, Sales, §§ 263, 264; Herman v. Babcock, 103 Ind. 461, 464, 3 N. E. 142; Souffrain v. McDonald, 27 Ind. 269; Cherry v. Smith, 3 Humph. 19, 39 Am. Dec. 150, and note page 152; Dambmann v. Lo

rentz, 70 Md. 380, 17 Atl. 389, 14 Am. St. Rep. 364; Wat. Spec. Perf. § 200; Pom. Cont. § 169; Clark, Cont. 49-52, 666. See, also, Singerly v. Thayer, 108 Pa. 291, 2 Atl. 230, 56 Am. Rep. 207; Gibson v. Cranage, 39 Mich. 49, 33 Am. Rep. 351; Zaleski v. Clark, 44 Conn. 218, 26 Am. Rep. 446; Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463; McCarren v. McNulty, 7 Gray, 139; McClure v. Briggs, 58 Vt. 82, 2 Atl. 583, 56 Am. Rep. 557; 1 Mechem, Sales, §§ 657-668; Benj. Sales (7th Ed., by Bennett) pp. 607, 608, note 12; Leake, Cont. (3d Ed.) 554, 555. In this state, contracts negotiable under the law merchant, or assignable under the provisions of the statute, import a consideration, and in an action thereon no consideration need be averred. Durland v. Pitcairn, 51 Ind. 426, 438, and cases cited; Railway Co. v. Caldwell, 98 Ind. 245, 252. The contract sued upon was assignable under the provisions of section 7515, Burns' Rev. St. 1901 (section 5501, Rev. St. 1881; section 5501, Horner's Rev. St. 1901), in force since July 1, 1861; and, even if no consideration is shown on the face thereof,-a question we need not and do not decide,-it was not necessary to allege in the complaint a consideration therefor.

It

Counsel for the Magic Packing Company, one of the appellants, insist that, as said appellant was not a party to the contract sued upon, the court erred in overruling its demurrer to each paragraph of complaint. appears from the second paragraph of complaint that the Magic City Canning Company, with the fraudulent intent and purpose to cheat, hinder, and delay its creditors, including appellee, transferred and conveyed, without any consideration whatever, to the said Magic Packing Company, all of its property, real and personal, described in said paragraph, including its orders and contracts for the sale of goods, and that the Magic Packing Company participated in said fraudulent intent and purpose; that said Magic City Canning Company had at the time of making said transfer and conveyance, and at the time of bringing this suit, no other property subject to execution with which to pay its debts, except that transferred and conveyed as aforesaid, but was when the same were made, and at all times since has been, and now is, insolvent and unable to pay its debts; that said Magic Packing Company was incorporated on January 28, 1899, after the execution of the contract sued upon, by the members and stockholders of the Magic City Canning Company and others; that the incorporators of the Magic Packing Company were substantially the stockholders of the Magic City Canning Company. We think said allegations were sufficient as against said Magic Packing Company, although it was not a party to said contract. Shew v. Hems, 126 Ind. 474, 475, 26 N. E. 483; Crow

v. Carver, 133 Ind. 260, 32 N. E. 569; Slagle v. Hoover, 137 Ind. 314, 316, 36 N. E. 1099; Vansickle v. Shenk, 150 Ind. 413, 414, 50 N. E. 381. Moreover, it has been held that if a corporation which is insolvent and unable to pay its debts transfers all of its property, without any consideration whatever, with the fraudulent intent to cheat, hinder, and delay its creditors, to a new corporation incorporated by substantially the stockholders of the old corporation for the purpose of receiving the transfer, such new corporation is liable for the debts of the old corporation, at least to the extent of the property so acquired; that equity will regard such a transaction as a mere continuation of the former corporation under a different name. Blanc v. Mining Co., 95 Cal. 524, 532-535, 30 Pac. 765, 29 Am. St. Rep. 149; Montgomery Web Co. v. Dienelt, 133 Pa. 585, 595-598, 19 Atl. 428, 19 Am. St. Rep. 663; Tayl. Corp. (4th Ed.) §§ 657, 667. In this state, in an action on a contract for a breach thereof, it must be alleged, as to conditions precedent, that the party seeking to enforce the same has complied with all such conditions of said contract on his part (section 373, Burns' Rev. St. 1901; section 370, Rev. St. 1881; section 370, Horner's Rev. St. 1901), or state facts showing a proper excuse for not doing so, and, as to concurrent conditions, must allege facts showing that he was ready and willing to perform the same on his part. 4 Enc. Pl. & Prac. 932; Clark, Cont. 664, 665, 668; Chun v. Howard, 3 Blackf. 163, 165, and cases cited; Vankirk v. Talbot, 4 Blackf. 367; Bailey v. Ricketts, 4 Ind. 488; Adams v. Dale, 29 Ind. 273; Skehan v. Rummel, 124 Ind. 347, 348, 24 N. E. 1089. See, also, Armstrong v. Rockwood, 53 Ind. 506, 508; Melton v. Coffelt, 59 Ind. 310, 314; Association v. Reynolds, 17 Ind. App. 453, 456, 46 N. E. 1008. For the failure to comply with this rule of pleading, each paragraph of complaint was bad.

The court overruled appellants' motion to suppress two depositions taken in another state, for the reason that no revenue stamp was placed on the certificates of the notary public before whom the depositions were taken, as required by section 14 of the internal revenue law of June 13, 1898. This ruling of the court was correct. Smith v. Hunter, 33 Ind. 106; Wallace v. Cravens, 34 Ind. 534; Prather v. Zulauf, 38 Ind. 155, 159; Moore v. Quirk, 105 Mass. 49, 7 Am. Rep. 499; Green v. Holway, 101 Mass. 243, 3 Am. Rep. 339; Burson v. Huntington, 21 Mich. 415, 4 Am. Rep. 497; Sammons v. Holloway, 21 Mich. 162, 4 Am. Rep. 465; Duffy v. Hobson, 40 Cal. 240, 6 Am. Rep. 617; Moore v. Moore, 47 N. Y. 467, 7 Am. Rep. 466.

Judgment reversed, with instructions to sustain appellants' demurrers to each paragraph of the complaint, and for further proceedings not inconsistent with this opinion.