was right. In disclosing the facts which he promises to introduce and establish the relevancy of the evidence offered, the facts themselves, and not the conclusions of the person making the offer to prove, should be stated. Ross v. State (1907) 169 Ind. 388, 82 N. E. 781. Counsel for appellant also complains of the exclusion of similar testimony from Ed Cassity, another witness offered in appel- | lant's behalf, but it is enough to say that no evidence sufficient to establish a concert of purpose and action on the part of the Troy crowd against Malone had been given at the time this witness was asked to testify to threats on the part of some of them. [5] The action of the trial court in refusing to give to the jury certain instructions requested by appellant is complained of as being erroneous. These instructions all related to the question of self-defense, and it may be said that those numbered 2 and 3 probably stated the law correctly. But error was not committed in refusing to give them for the reason that in substance and in legal effect instruction No. 6, given by the court of its own motion, and instruction No. 1, given at the request of appellant, covered the same ground, and were quite as favorable to appellant as the law justifies, to say the least; and the rule is too familiar to require the support of the citation of authorities that it is not error to refuse to give requested instructions which are substantially the same as those given. In instruction No. 2 the court was asked to instruct, in substance, that one in the reasonable exercise of his right of self-defense would be justifiable in killing his assailant, provided he use no more force than under all the facts and circumstances reasonably appear to him at the time to be necessary. In instruction No. 1, given by the court at the request of appellant, the jury was told that one attacked may use such force as he may reasonably think necessary to repel the attack to the extent of taking the life of his assailant. There can be no difference between the two terms "reasonably appear to him" and "he may reasonably think" in the connection in which they are used. The grounds of complaint of the court's action in refusing to give instruction No. 3 is based on the fact that in it the jury would have been given to understand that they might take into consideration the "situation and apparent surroundings" of appellant in determining whether he believed himself to be in danger of loss of life or great bodily harm, and that the question of the necessity of his use of force to protect himself was to be determined from his standpoint at the time and under all the existing circumstances. In instruction 6, given by the court of its own motion, and in instruction 1, requested by appellant, the jury had been well instructed generally as to appellant's right that, if he was assaulted in such a manner as to lead him to believe himself to be in danger of suffering great bodily harm, he might repel force without retreating; that he might use such force as he reasonably thought necessary to repel the attack, and that he might, if he reasonably believed it necessary under the circumstances to avoid danger to his life or great bodily harm to him, take the life of his assailant; and, finally, they were told that it was for the jury to say from all the facts and circumstances in evidence before them whether appellant had acted in reasonable self-defense. All this is gathered from the instructions given. Instruction 3 would not have put the rights of appellant in these particulars in a more favorable light. [6] In instructions 4 and 5, requested by appellant and refused by the court, it was attempted to apply the law of self-defense specifically to the facts of the case on which appellant relied for his defense. It is true as appellant claims that, when instructions of the court in a case of this kind are abstract and general, it is error to refuse to give upon proper request instructions specifically and correctly declaring the law applicable to the facts claimed to be proved and in relation to which material evidence has been given. Carpenter v. State (1873) 43 Ind. 371; Fleming v. State (1894) 136 Ind. 149, 36 N. E. 154; Bauks v. State (1901) 157 Ind. 190, 203, 60 N. E. 1087; Eby v. State (1905) 165 Ind. 112, 74 N. E. 890; Dunn v. State (1906) 166 Ind. 694, 702, 78 N. E. 198. [7] Without prolonging this opinion, it is enough to say that instruction 4 did not correctly apply the law to the facts assumed to have been proven, and that instruction 5 included in its hypothesis facts which there was no evidence to establish, and the court therefore properly refused to give each of them. A further cause for a new trial was alleged newly discovered evidence, and in support of the motion for a new trial for this cause appellant presented his own affidavit and those of Will Kincade, Cleve Gelardin, and Bert Severn, all of whom had been produced as witnesses, and testified in his be half on the trial resulting in the verdict from which the appeal is taken. It is very doubtful if the appellant has made a showing of proper diligence to entitle him to a new trial on the ground of newly discovered evidence, but it is not necessary to determine that question. The evidence alleged to be newly found is cumulative, and not such as to authorize a new trial. [8] On the trial appellant testified, and the fact was in no wise controverted, that just at the moment before he struck Smith the blow which caused the prosecution of this case some one slipped an open knife into his hand, and that it was this with which he struck at appellant before he struck Smith with the knife. [10] We cannot review the jury's function of determining which set of witnesses was most credible. It may be said, too, that the testimony of appellant in his own behalf does not seem to be of the character, either as to the substance or the way it was given, to impress a fair-minded jury with the justice of his claim that he was acting in self-defense. fidavits in support of this cause for a new trial, it is shown that the person who did this was Kincade, and it is promised that on another trial he will so testify. We cannot see how this would change the case made against appellant or lend support to his defense. The question whether he used the knife put into his hand in self-defense could hardly be affected by the fact that Kincade or another put it there. It could add nothing material to the established fact in evidence in this trial that some one had placed a knife in his hand. Who had done so was wholly immaterial. The sole effect of this testimony would be to make Kincade legally as responsible for the cutting of Smith as ap- MARTIN. KOPPITZ-MELCHER BREWpellant himself. [9] The affidavit of Gelarden states that he heard the Troy boys making remarks about the Tell City boys, and that some of them fussed with appellant, who told them he did not want any trouble; that in a crowd of Troy boys he a short time before the cutting heard threats against appellant; that Berger and Smith were in the crowd; and that it was one of the two who made the threats. Gelarden had testified on the trial that he had heard Troy boys make remarks against Tell City boys on the night of the trouble. He was asked to state what was said, and, on objection being made, there was no offer to prove what the remarks were or what he knew. As to the rest of the matters involved in his affidavit, similar testimony had been given by other witnesses on the trial. One Morris, a witness for defendant, had testified to threats of Smith and Berger against appellant made before the cutting. Two other witnesses for the appellant testified that they had heard Smith say to Berger that the Tell City crowd was plotting against them, and that they must stand together. Malone himself had testified to threatening words and actions towards him by members of the Troy crowd. Severn had testified as a witness for appellant both on the trial and on a preliminary examination before a magistrate. On the trial he testified that he did not see the trouble. He was not asked about any threats. It is apparent that the alleged newly discovered evidence is merely cumulative, and therefore not such as to entitle appellant to a new trial. It is finally argued that the verdict of the jury is contrary to law, but no element of the state's case is pointed out as not being well sustained by some evidence. The evidence is sharply conflicting on the question of who began the fight and struck the first blow. Quite a number of witnesses for the state testified that appellant was unprovoked by word or act by Smith, or Berger who was near, at the time when he cut Smith with the knife. A lesser number of witnesses testified that both Smith and Berger The judgment of the lower court is affirmed. 1. ING CO. (No. 21,890.) (Supreme Court of Indiana. Oct. 10, 1911.) TION OF LEASE OR AGREEMENT GENERAL In the construction of a lease of premises to be occupied as a saloon, with a provision for a termination of the lease at the expiration of the license term of the occupant by the filing of a general remonstrance against the sale of liquors, the general law must be read into the agreement. Tenant, Dec. Dig. § 39.*] Parties to a lease for a term of years for a saloon, both of whom knew that the lessee could not itself obtain a license, but that some person selected by it would acquire a license, with a provision that, if at any time a major should file a general remonstrance against the ity of the qualified voters of the township granting of a license, the lease should expire at the expiration of the term of license held by such remonstrance was filed, will be held to the party occupying the building at the time have contracted with a view to application for license being made by some qualified person. [Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. § 39.*] 3. INTOXICATING LIQUORS (§ 75*) - PROCEEDINGS TO PROCURE LICENSE-RIGHTS PENDING APPEAL-DISPOSITION OF CASE. Where a liquor license was granted on February 5, 1907, and remonstrators appealed with in 10 days to the circuit court, and the next term at which the cause could have been tried ended March 30, 1907, such appeal vacates the license after March 30th, so that the licensee had no right to sell, but bis application stood for trial de novo; and if he obtained a license after that date it would not be a continuation of the original license term, but a license from the date when granted by the circuit court. Liquors, Dec. Dig. § 75.*] [Ed. Note.-For other cases, see Intoxicating 4. LANDLORD AND TENANT (§ 93*)-TERM FOR YEARS TERMINATION. Premises were leased for three years from January 1, 1907, for a saloon; the parties knowing that the lessee could not itself obtain a license, and understanding that some one selected by it would acquire a license. The lease provided that, if at any time a majority of the qualified voters of the township in which the premises were situate should file a general remonstrance against the granting of a license to any person to sell intoxicating liquors therein, [Ed. Note. For other cases, see Landlord and Tenant, Dec. Dig. § 93.*] the lease should expire at the expiration of the [ At the time of the execution of the conterm of license held by the party then occu- tract, one Gabriel, agent of appellee, had pying the premises; and on February 5, 1907, made arrangements with one Hayes, wherean applicant obtained a license for one year, but an appeal by remonstrants within 10 days by the defendant was to furnish the buildvacated the license on March 30th, and pending ing for Hayes to use as a saloon; Hayes was that appeal a general remonstrance was filed on March 1st, and after April 25th the licensee to apply for a license to sell intoxicating dismissed his application and stopped selling, liquors at the December term, 1906, and and thereafter a second general remonstrance was conduct a saloon in the lower story of the filed, and no other license for the premises was building, and occupy the upper story as a granted. Rent was paid to July 1st, the furniresidence; there being an implied agreeture removed, and the keys tendered to the lessor, who refused to take them, and the prem- ment between Gabriel and Hayes that Hayes ises remained vacant until February 1, 1908. should buy at wholesale defendant's beer, Held, in an action for rent to February, 1908, and retail it in the saloon. There was no that, as the right to sell was terminated by the appeal, so that there was no one who had other consideration, as between the defenda right to obtain a license at the time the second ant and Hayes, for defendant renting and general remonstrance became effective, the lease fitting up the building for said purpose. The was thereby terminated. defendant, by its said agent, Gabriel, did furnish the building, as contracted, for the use of Hayes; Hayes was unable to procure license, but procured one Hostetter to make application for license to retail intoxicating liquors in the building at the February, 1907, session of said board of commissioners. A remonstrance for cause, alleging the moral unfitness of Hostetter to receive license was filed against him; the trial of the remonstrance and application was decided in his favor, and he was granted a license to retail intoxicating liquors in the building for one year from the 5th day of February, 1907. Hostetter paid the license fee of $100 and gave the necessary bond, to the approval of the auditor of Noble county, Ind., and procured license, and began and continued to retail liquors at said place until April 25, 1907. After Hostetter had procur Appeal from Circuit Court, Dekalb County; E. A. Batton, Judge. Action by John J. Martin against the Koppitz-Melcher Brewing Company. Judgment for defendant, and plaintiff appeals. Affirmed. Transferred from the Appellate Court under Burns' Ann. St. 1908, § 1405. P. V. Hoffman and L. W. Welker, for appellant. D. D. Moody and James E. Pomeroy, for appellee. MYERS, J. Action by appellant against appellee for rent under a written lease. The questions presented arise upon exceptions to the conclusions of law upon the facts found. The material facts under the issues are that on the 19th day of November, 1906, ap-ed license, and began selling, and within 10 pellant leased to appellee, through one Gabriel, its agent, the premises described in the lease, for the term of three years from January 1, 1907, at $25 per month, with an option for two additional years, upon giving notice of its intention 30 days before the expiration of the term; the first story of the building to be occupied for a saloon, and the second story for a residence, and for no other purpose. The building was located in the town of Albion, Noble county, Ind. The lessee was a Michigan corporation, organized to manufacture and sell beer and other malt liquors, and had an agent in Auburn, Ind., for selling and distributing beer and other malt liquors in Northern Indiana. Certain changes and repairs were to be made by the lessor, which he made. A clause in the lease provided "that, if at any time a majority of the qualified voters of the township in which the property and town of Albion are situate should file a general remonstrance against the granting of a license to any and all persons to sell intoxicating liquors in said township, the lease should expire at the expiration of the term of license held by the party, or parties, occupying the building at the time such general remonstrance should be filed." days from the time the license was granted, the remonstrators perfected an appeal to the Noble circuit court of Indiana. The next term of the Noble circuit court at which said cause might have been lawfully tried was the March term, 1907, which terminated by limitation March 30, 1907. On the first day of such term of said court, Hostetter, on his application, was granted a change of venue to the Elkhart circuit court, where the cause remained pending until May 9, 1907, when Hostetter dismissed his cause and application for license. Hostetter continued to sell liquor at said place under the license granted by the board of commissioners until the 25th day of April, 1907, having been advised that he had a right to continue to sell under his license until the said cause could be tried in the Elkhart circuit court, where the cause was pending on change of venue. He ceased selling April 25, 1907, because the remonstrators explained to him that he was liable for numerous prosecutions for sales made after March 30, 1907, and that such sales were without the protection of such license. Hostetter agreed with the parties that if they would not prosecute him for such sales, he would dismiss his application in the Elkhart circuit court, and discontinue selling its termination in case no person would be allowed to renew an existing license, it did not contemplate its termination simply because an unfit person was denied license; that it contemplated that only fit persons would apply for license. liquors, and under that agreement he did was defeated because he was an unfit perdismiss his application. No other license son; and that, while the lease contemplated was granted to any person to retail intoxicating liquors or conduct a saloon in the premises, after the execution of the lease. During the time Hostetter conducted a saloon in the premises, he bought of the defendant beer, for retail in the saloon, to the value of $200, and also bought of other brewing companies beer and malt liquors. A general remonstrance was filed with the auditor of Noble county against granting license to retail intoxicating liquors in Albion township, where the premises are situate, March 1, 1907, three days before the regular March, 1907, session of the board of commissioners of the county of Noble, state of Indiana, and a like remonstrance was filed July 5, 1907. In April, 1907, the agent, Gabriel, notified the plaintiff that he would surrender the lease and the premises; that the plaintiff should secure a new tenant; and that the defendant would remove the furniture as soon as wished. On the 24th day of June, 1907, Gabriel removed the furniture and vacated the premises, and paid the rent up to the 1st day of July, 1907, and offered to surrender the possession of the premises, and tendered the plaintiff the keys, but he refused to accept the keys on the surrender of the premises, claiming that defendant was liable for rent until February 5, 1908, under the provisions of said lease. [1, 2] Appellant has no contract with any other person than appellee, and both parties knew that under the law appellee could not acquire a liquor license, and it was understood that some one would acquire license and operate the saloon. Appellant was in no wise interested in, or responsible for, any one acquiring license, or operating a business in the room. Had no license been obtained, or attempted to be obtained, and had no remonstrance been filed, he would have been entitled to his rent. If, before any license could have been obtained, a general remonstrance had been filed, it could hardly be claimed that it was not contemplated that that should terminate the lease, though appellant's contention is that a general remonstrance could only terminate the lease "at the expiration of the term of license held by the party or parties occupying the building at the time such general remonstrance should be filed"-the terms used. The parties seem to have contracted upon the theory that no difficulty would arise as to some one acquiring license, and that a general remonstrance was the only contingency upon which Appellant did not take possession of, nor the right to vend intoxicants depended. But assume control over, the building until after the general law enters into the contract, so February 5, 1908. No rent was paid appel- that they must also have contracted with the lant after the 1st day of July, 1907. Under view to application being made by some the contract, the rental value of said build qualified person, and good faith on the part ing and premises from July 1, 1907, to Feb- of appellee required that a qualified person ruary 5, 1908, was $179.16, which is unpaid make the application; otherwise the situby the defendant. That the water and light ation would be precisely as if no application rentals for the premises for the time, which had been made, and other conditions would have been unpaid by the defendant, were have to be looked to in determining the $12.26, making a total of $191.42. The form question as to when the lease expired. of the contract was prepared by appellant [3] Hostetter was granted license February and submitted to Gabriel, who had it type- 5, 1907. The first general remonstrance was written in duplicate, with a few minor chang-filed March 1, 1907, and the second, July 5, es therein, but no material changes were 1907. The appeal of the remonstrators vamade by Gabriel. cated the license, with no protection to Hostetter after March 30, 1907. State v. Sopher, 157 Ind. 360, 61 N. E. 785. After that date, he had no right to sell, and his application stood for trial de novo, and on July 5, 1907, when the second general remonstrance was filed, there was clearly no license in force. Hardy v. McKinney, 107 Ind. 364, 8 N. E. 232, and cases cited. If, after March 30, 1907, Hostetter had been successful in obtaining license, it would not have been from February 5, 1907, but from the date it might have been granted upon a trial de novo. Brown v. Dicus, 172 Ind. 51, 87 N. E. 716. The court concluded that the plaintiff is not entitled to recover any amount, and that defendant is entitled to recover its costs. As we gather from the briefs, the court's conclusions were based upon two propositions: (a) That the contract was ultra vires the power of the corporation defendant, and (b) that the lease terminated with the vacation of Hostetter's license by the appeal, with the protection afforded him under the statute until the expiration of the March term of the Dekalb circuit court. Appellant's contention is that the contract was executed, and hence no question of its being ultra vires is present; and that the lease could only be terminated, as to an existing license, by the operation of a general re [4] There was a tentative license held by Hostetter when the first general remonstrance was filed March 1, 1907, and had he obtained license on trial that remon FECTIVE STREETS-QUESTIONS FOR JURY. has exercised reasonable care to keep the streets It is a question for the jury whether a city free from obstructions or to prevent injury therefrom, unless fair-minded men could reach but one conclusion thereon. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1753; Dec. Dig. § 821.*] 5. MUNICIPAL CORPORATIONS (§ 763*)-STREETS -OBSTRUCTIONS-CARE REQUIRED. is much traveled than where it is little used. 6. MUNICIPAL CORPORATIONS (§ 821*) — De- newal of the license at the expiration of one | 4. MUNICIPAL CORPORATIONS (§ 821*) — DEyear from its being granted, and would have terminated the lease at that time by its express terms. At the time the remonstrance of July 5, 1907, was filed, there was clearly no right in any one to obtain license. Is it material, then, why Hostetter did not obtain license? We think not, and that the matter stands as if no application for license had been made; and the question is whether the failure to obtain license until a gen-walks free from obstructions, where the street Greater care may be required to keep sideeral remonstrance became operative terminated the lease. Taking the law which must be read into contracts of this character, coupled with the terms of the lease, it seems to us that a fair construction is that the parties contemplated that, if the right to sell should be prohibited by a general remonstrance, the lease should terminate with that right. If Hostetter had been successful, the remonstrance of March 1, 1907, would have been effective for two years from that date; and it seems to us that it is a fair construction of the contract, as within the intention of the parties, that at any time when the right to sell should be discontinued the lease should terminate, and not that it could only terminate at the expiration of the term of a license, though that is the language used; for, as it seems to us, both parties were equally interested, and both imbued with the idea that there would be no difficulty in obtaining license before a general remonstrance would become operative. GENCE. Plaintiff was injured by falling over a wire or a string placed around a grass plot between the sidewalk and the curb at the intersection of much traveled streets in a business district. The public had been used to walking across the grass plot. Held, that the question whether the city was negligent in permitting the fencing around the plot was for the jury in an action for resulting injuries. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1757; Dec. Dig. § 821.*] Appeal from Circuit Court, Allen County; Edward O'Rourke, Judge. Action by Frank Shreve against the City of Ft. Wayne. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed, with directions to overrule demurrer and for further proceedings. This cause was transferred from the Appellate Court under the provisions of section 1405, Burns' Ann. St. 1908. George W. Louttit, for appellant. Guy Colerick, for appellee. MYERS, J. The action is upon a complaint in one paragraph for personal injuries to appellant in being tripped by a wire or string upheld by stakes at right angles along the curb line of two intersecting streets for the apparent purpose of protecting a grass plot between the sidewalks and roadways from persons passing over it. The question turns upon the effect to be given the following material averments of the complaint, to which a demurrer for want of facts to constitute a cause of action was sustained: "That at a point on said strip of ground and in front of a dwelling house on West Jefferson street, which runs east and west, in the city of Ft. Wayne, the street is improved with a paved roadway, with a grass plot seven feet four inches wide between the curb of the roadway and the sidewalk from Fulton to Broadway streets, the latter being alleged to be the main north and south business street of the city; that at a point within 70 feet of the main business portion of Broadway and on the south side of West Jefferson street there were two small rods or stakes extending about a foot from the surface and |