it is without force or controlling influence. Geddes v. Blackmore, 132 Ind. 551, 32 N. E. 567.

The advice given to appellee by the brakeman, in view of the surrounding facts and circumstances, related wholly to the manner of his getting off the train, and was timely and manifestly right. Appellee was not without fault. Appellant had carried him, according to its undertaking, to his place of destination, and had given him ample time, as found by the jury, to alight. He did not take advantage of his opportunity to leave the train, but stopped in the car to talk to some one he met.

The train stopped as long at the station as it usually did, and all passengers who desired had gotten off and on. The conductor who had charge of the train did not know that appellee had not left the train. Appellee was as fully advised of the movement of the train as the brakeman. The brakeman had no more reason to anticipate that the movement of the train would be suddenly accelerated when the appellee was in the act of getting off than he did, for the brakeman had no control whatever of that matter. It is perfectly clear that appellee did not rely upon the advice of the brakeman, except to the manner of his getting off, and this advice was good, and was to the effect of diminishing, rather than increasing, the danger. Under the facts specially found, he was not compelled to the act of jumping off the train while it was in motion, and he therefore did it voluntarily. He could have remained on the car, and thus avoided injury. In the case of Railroad Co. v. Swift, 26 Ind. 459, it was held that where a passenger voluntarily leaves a train of cars while in motion, simply to avoid being carried beyond the station where he desires to stop, and he is thereby injured, his own negligence is the proximate cause of the injury, and that he cannot recover. In that case the passenger, when contemplating getting off the train at a station, and seeing that the train was not going to stop, remarked to the conductor that he could not take that risk, the conductor responding, "You could if you would," or "You might if you would." The court held that, notwithstanding what the conductor said to him, he assumed the risk, and it was such negligence in his making the attempt that he was chargeable with negligence contributing to his own injury. That was a much stronger case against the railroad than this, for there is no pretense here that the brakeman even intimated that appellee could alight in safety. The Swift Case is cited and approved in Railroad Co. v. Carper, 112 Ind., at pages 30, 36, 13 N. E. 122, 14 N. E. 352, 2 Am. St. Rep. 144; Woolery v. Rail way Co., 107 Ind., at page 387, 8 N. E. 226, 57 Am. Rep. 114; and in Railroad Co. v. Peters, 80 Ind. 175. In Railroad Co. v. Carper, 112 Ind. 26, 13 N. E. 122, 14 N. E. 352, 2 Am. St. Rep. 144, it is said: "There is an essential difference between a direction in the

* *

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nature of a requirement and a direction in the nature of advice or information. It is clear to our minds that, upon principle, a railroad company is not responsible for directions in the nature of information or advice given to a passenger." In Vimont v. Railroad Co., 32 N. W. 100, it was held by the supreme court of Iowa that where the conductor of a train said to a passenger, as the train was leaving a station, "Jump off quick, if you are going to," was not a command to leave the train, but must be considered as "advice, and good advice at that." In the case of Lindsey v. Railroad Co. (Iowa) 20 N. W. 737, the words spoken to a passenger "to get off quickly" were construed in the same manner. In the Swift Case, supra, referring to the words spoken to the passenger by the conductor, and which elsewhere appear in this opinion, the court said: "He did not tell him to leap, and the words used could scarcely, by a fair construction, be understood as advising him to leap, much less a command to do so." In this case the movement of the train was the sole cause of danger to appellee. He was a man of mature years and judgment, and was accustomed to traveling on trains. The day was clear, and his eyesight was unimpaired. He was familiar with the surroundings and conditions which confronted him, and it is manifest that the danger was as apparent to him as it was to appellant's brakeman. Notwithstanding the situation with which he was confronted, and the apparent danger that attended his undertaking, he was determined to get off. He simply carried out his intention and determination to leave the train, and all the brakeman did was to advise him the safest and best manner of doing so. Even then he admits that he did not follow the advice of the brakeman to step off with the train, but stepped "squarely off." It is a rule firmly established that a passenger is as much bound to use reasonable care to avoid injury as the carrier is to use the greatest degree of skill and care to save the passenger from harm. Railroad Co. v. Rutherford, 29 Ind. 85, 92 Am. Dec. 336. In Wood, Ry. Law, p. 1152, it is said: "A passenger would not, under any circumstances, in yielding to such advice when the train is moving at a high rate of speed, nor would a person who is lame, or laboring under any serious physical disability, resulting from age, disease, or other cause, be justified in getting off the train when it is moving at all. In these cases the passenger must think before he acts, and he is bound to think and act as a person of ordinary prudence under the same circumstances." The author cites many authorities, to which reference is made. We are led to the conclusion that the facts specially found show that appellee was guilty of contributory negligence, and hence are in irreconcilable conflict with the general verdict. In such case the general verdict must yield. Judgment reversed, and the court below is

directed to sustain appellant's motion for judgment on the answers to interrogatories.

COMSTOCK, C. J., and BLACK, HENLEY, and ROBY, JJ., concur. ROBINSON, J., dissents.

(29 Ind. App. 124)

RIDGEWAY v. HANNUM. (Appellate Court of Indiana, Division No. 1. May 21, 1902.)

TENANCY FROM YEAR TO YEAR-HOLDING OVER-CONSENT OF LANDLORD

TENANT'S RIGHTS.

Where a tenant, after the expiration of a lease for a definite period, holds over, either with express consent of the landlord and with the express understanding that the terms of the original lease shall continue except as to time, or with the landlord's implied consent and without any new contract, he is a tenant from year to year, whose rights are determined by the terms of the original lease, except as to time.

Appeal from circuit court, La Porte county; J. C. Richter, Judge.

Action by Jeremiah H. Ridgeway against Edward Hannum. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Weir, Weir & Darrow, for appellant. Nye & Sutherland, for appellee.

ROBINSON, P. J. Suit by appellant to recover the value of wheat grown upon appellant's land. We are of the opinion that the court properly overruled the demurrers to the second and third paragraphs of answer. The first paragraph of complaint avers that on the 1st day of March, 1897, appellant leased certain land to appellee for one year from that date, and in the fall of 1897 appellee, without appellant's consent, sowed 80 acres of wheat; that appellant never gave appellee permission to re-enter and harvest the same; that appellee did re-enter in July, 1898, and against appellant's express direction harvested the wheat, and appropriated the same to his own use. The second paragraph avers that appellant leased the land to appellee for one year from March 1, 1897, for $600 in cash; that in the fall of 1897 appellee sowed 80 acres of wheat, and on July 15, 1898, appellee re-entered, and harvested and removed the wheat, and appropriated the same to his own use; that the fair rental value of the land from March 1 to July 15, 1898, is $600. Appellee answered that on the 25th day of March, 1890, appellant leased, in writing, the lands described to appellee for three years, for an annual cash rental of $650; that after the term appellee continued in possession under the lease, to which appellant agreed, and received the annual rent of $650 up to March, 1896, when it was mutually agreed that the written lease, with all its terms and conditions, except the amount of rental, be extended oue year from the 1st day of March, 1896,

and that it was then mutually agreed that the rent should be $600, which agreement was indorsed on the lease, and signed by both parties; that on the 1st day of March, 1897, appellant leased to appellee the premises for one year commencing March 1, 1897, and that by express agreement appellee leased the premises for the year upon the terms and conditions specified in the written lease and indorsement thereon; that in pursuance of this agreement appellee held possession for the year, and paid to appellant $600 rental for the same; that the written lease contained a stipulation that, if the usual and proper proportion of the land was seeded to wheat, at the termination of the lease the tenant should have the right to re-enter and harvest the crop. A copy of the lease and indorsement is made part of the answer. The third paragraph of answer alleges the leasing of the premises, the extension of the time, and that appellee continued to hold possession up to March 1, 1898, and that appellant knew that appellee was holding over his term, and consented thereto, and received and accepted from appellee for the year the sum of $600, the amount specified in the lease and indorsement. It also alleges the stipulation in the lease, and makes a copy of the lease and indorsement a part of the answer. When appellee held over at the expiration of the three years, he was a tenant from year to year. Although holding over did not extend the term for another three years, yet when appellee continued in possession he was still a tenant by contract, and the rights of the lessor and lessee during the tenancy from year to year were controlled by the terms and conditions of the contract under which the original possession was taken. The tenancy after the expiration of the three years was a general tenancy, and, whether appellee held the premises by the express or implied consent of appellant, he was a tenant from year to year. Section 7089, Burns' Rev. St. 1901. See Coomler v. Hefner, 86 Ind. 108; Railway Co. v. Randall, 102 Ind. 453, 26 N. E. 122; Kleespies v. McKenzie, 12 Ind. App. 404, 40 N. E. 648; Tinder v. Davis, 88 Ind. 99; Tolle v. Orth, 75 Ind. 298, 39 Am. Rep. 147; Burbank v. Dyer, 54 Ind. 392; Tayl. Landl. & Ten. (8th Ed.) 525. "It is well settled," said the court in Harry v. Harry, 127 Ind. 91, 26 N. E. 562, "that where the duration of the tenancy is definitely fixed by the terms of the agreement under which the tenant goes into possession of the premises which he is to occupy, and he continues to occupy after the close of the term without a new contract, the rights of the parties are controlled by the terms and conditions of the contract under which the entry was made. The tenant is still a tenant by contract." In the case at bar it is alleged in one paragraph of answer that by express agreement the premises during the last year were held upon the terms specified in the written lease and the

indorsement, and in the other paragraph it is alleged that appellant knew appellee was holding over, and consented thereto, and received the cash rent stipulated in the lease and indorsement.

Judgment affirmed.

(29 Ind. App. 159)

FORREST et al. v. COREY. (Appellate Court of Indiana, Division No. 1. May 23, 1902.)

CORPORATION EMPLOYÉS-LIENS-SUFFICIENCY OF NOTICE-SCOPE OF LIEN-LABOR PERFORMED AFTER EXECUTION LEVY - PROCEEDINGS TO ENFORCE LIEN-ATTORNEY'S FEES SUFFICIENCY OF COMPLAINT-CURE BY VERDICT.

1. A complaint in an action for services rendered will not be held insufficient for failure to set out as an exhibit a bill of particulars of the services sued for, where the objection is raised for the first time by an assignment of

error.

2. Burns' Rev. St. 1901, § 7248, gives corporation employés a right to a lieu on its property and earnings for work performed. Section 7249 provides that an employé wishing to avail himself of his lien shall file in the office of the county recorder a notice of his intention to hold the lien given him, stating the name of the corporation, the date of his employment, and amount of his claim; which notice shall be recorded in the mechanic's lien docket, etc. Held, that a notice complying with section 7249 is sufficient to sustain a lien under section 7248, though it states that the employé intends to hold a "mechanic's lien," and the description of such property may be insufficient to sustain a mechanic's lien.

3. There being no requirement that the notice provided for by section 7249 shall contain any description of the corporate property, and it being expressly provided by section 7250 that in a suit to enforce the lien the court may direct the application of the corporate earnings, when the notice required by section 7249 is given the employé is entitled to a lien on all the corporate property, including earnings, whether such property is specifically described or not. 4. Burns' Rev. St. 1901, § 7248, gives corporation employés a right to a labor lien on the corporate property prior to all liens acquired subsequent to the employé's employment, except as provided by section 7249, which gives other lienholders, whose liens have remained of record for 60 days, priority over employés whose lien notices are filed after such 60 days. Held, that where corporation property was levied on under judgment and execution, but the officer did not take possession thereof, and the business was continued as before, an employé who filed his lien notice within 60 days after the rendition of the judgment was entitled to a lien, prior to that of the judgment creditor, for labor performed after the levy and before sale, especially in view of evidence that the corporate business was continued by agreement of all parties, and in the absence of anything to show that such continuance was not beneficial to the judgment creditor.

5. Under Burns' Rev. St. 1901, § 7253, providing that the law, rules, practice, and pleading in force in reference to the enforcement of mechanics' liens shall apply to suits to enforce the liens given to corporation employés by sections 7248, 7249, attorney's fees may be allowed in suits under the latter sections.

Appeal from circuit court, Grant county. Suit by John Corey against John H. Forrest and another. From a judgment in favor of plaintiff, defendant Forrest appeals. Affirmed.

Joseph L. Custer and Orlo L. Cline, for appellant. St. John & Charles, for appellee.

ROBINSON, P. J. Suit by appellee against appellant, Forrest, and the Sterling Oil Company, a corporation, to recover for labor performed in the operation of certain oil leases, and to enforce a lien upon the property used in the operation of the wells. The sufficiency of the complaint is first questioned on appeal. After the labor was performed, appellant, Forrest, purchased the corporate property at execution sale, with notice of appellee's claim. A complaint will not be held bad, when first questioned by an assignment of error, because it fails to set out as an exhibit a bill of particulars of the account for services for which suit is brought. The general rule is that, if no essential fact or averment is entirely omitted from a complaint, and it states sufficient facts to bar another suit for the same cause of action, all other defects are cured by the verdict, and the pleading will be regarded as sufficient to uphold the judgment when first called in question by error assigned in this court. School Tp. v. Hay, 107 Ind. 351, 8 N. E. 220; Old v. Mohler, 122 Ind. 594, 23 N. E. 967; Peters v. Banta, 120 Ind. 416, 22 N. E. 95; Colchen v. Ninde, 120 Ind. 88, 22 N. E. 94.

It is also argued that the notices of an intention to hold a lien are insufficient, because they do not sufficiently describe the leased land. Although the notices are that appellee intends to hold a mechanic's lien, and, while they might be insufficient as such, yet, if they comply with all the requirements of some other statute providing for a lien, they must be held sufficient. An instrument must be construed according to its terms, without reference to any particular name by which it may have been designated. Section 7248, Burns' Rev. St. 1901, provides that the employés of any corporation doing business in this state, whether an Indiana corporation or not, are entitled to hold "a prior lien upon the corporate property of any corporation, and the earnings thereof, for all work and labor done by them for such corporation" from the date of their employment, "which lien shall lie prior to any and all liens created or acquired subsequent to the date of the employment of such employés by such corporation, except as in this act provided." Section 7249 provides that: "Any employé wishing to acquire such lien upon the corporate property of any corporation, or the earnings thereof, whether his claim be due or not, shall file in the recorder's office of the county where such corporation is located or doing business, notice of his intention to hold a lien upon such property and earnings aforesaid for the amount of his claim, setting forth the date of such employment, the name of the corporation, and the amount of such claim; and it shall be the duty of the recorder of any county, when

such notice is presented for record, to record the same in the record now required by law for notice of mechanics' liens, and

the lien so created shall relate to the time when such employé was employed by such corporation or to any subsequent date during such employment, at the election of such employé, and shall have priority over all liens suffered or created thereafter, except other employés' liens, over which there shall be no such priority: provided, that where any person, other than an employé, shall acquire a lien upon the corporate property of any corporation located or doing business in this state, and such lien remains a matter of record for a period of sixty days in any county in this state where such corporation is located or doing business, and no lien shall have been acquired by any employé of such corporation during that period, then and in that case such lien so created shall have priority over the lien of such employé in the county where such corporation is located or doing business, and not otherwise: provided further, that this section shall not apply to any lien acquired by any person for purchasemoney." Section 7250 provides for enforcing the lien by suit, and that the court rendering judgment for such claim "shall declare the same a lien upon such property," and order the same sold "as other lands are sold on execution or decree, *

and in such action the court shall make such orders as to the application of the earnings of such corporation, if any there be, as shall be just and equitable, whether the same be asked for in the complaint or not." The notices in question comply with these provisions. They are directed to the Sterling Oil Company, averred to be an Illinois corporation, are for work and labor done by appellee for the corporation, and set forth (1) the date of such employment, (2) the name of the corporation, and (3) the amount of the claim.

The statute specifically designates what shall be set forth in the notice. It does not require that the notice shall contain a description of the corporate property. The notice may be of an intention to hold a lien upon either the corporate property or the earnings or both, but, whether the earnings are included or not, the court is authorized to make such orders as to the application of the earnings as shall be just and equitable, whether asked for in the complaint or not. Such statutes are to be liberally construed, so as to render effectual the purpose in view. The evident purpose of the legislature in enacting the statute was to secure to employés an efficient remedy for the collection of wages, and that employés should have a lien upon all the property owned by the corporation. The statute says they shall have a lien upon the corporate property, and in providing the notice that shall be given requires that the notice shall state the date of the employment, the name of the corpora

tion, and amount of the claim. If it had been intended that the lien should attach only to specific property described in the notice, the statute should have said so. In giving the notice the employé is required to do only what the statute requires, and when he has done that he has a lien upon all the corporate property. See Bank v. Black, 129 Ind. 595, 29 N. E 396. It is to be observed that the statute does not, as against the corporation, fix the time within which, after the work is done, the notice of the lien shall be filed. To determine priorities only is the time of filing the notice fixed. The statute (section 7248) makes the lien prior to any and all liens acquired subsequent to the date of the employment, except as limited by the proviso to section 7249. By that proviso a lienholder other than an employé cannot have priority unless his lien is a matter of record for 60 days before the employé acquires his llen under the statute. Forrest was a judgment creditor, having obtained a judgment against the corporation April 20, 1899, and became the purchaser of the property at a sale made under that judgment May 19, 1899. Appellee filed the second notice of his intention to hold a lien and the same was recorded June 13, 1899. So far as the record shows, Forrest was a lienholder other than an employé. No question is made as to priority of laborers' liens, but it is argued that no lien could be acquired for wages after the levy was made. It is true it appears that part of the wages accrued after the levy was made by the sheriff and before the sale. After the levy the officer had the right to the possession and control of the property for the purpose of making it answer the demands of the writ. But it is manifest that it was to the interest of all parties that the operation of the wells should not be suspended, and it appears that it was continued after the levy as before. Until the sale Forrest had only a lien. The property still belonged to the corporation, and the corporation might sell it, subject, of course, to liens. Until sold by the officer, liens might still be acquired against the property as corporate property. The statute fixes the priority. Moreover, there is evidence that the continued operation of the wells was by agreement among all the parties interested; that appellant requested that the wells should continue to be operated as they had been. In the absence of some showing to the contrary, we must presume from the evidence that the continued operation of the wells was beneficial to Forrest.

There was no error in allowing attorney's fees in the suit by appellee to enforce his lien. The statute (section 7253) provides that "the law, rules, practice and pleadings now in force in reference to the enforcement of mechanics' liens shall be applicable to all suits commenced under this act." Judgment affirmed.