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Washer v. The Allensville, Center Square and Vevay Turnpike Company.

The record further shows that, at the time thus appointed, the court met, and due proof was made of the publication of a duly certified copy of the said order of the 6th of November, 1878, in the issue of the said Vevay Reveille, on the 7th of November, 1878, and that afterwards, on said November 11th, 1878, the parties in this cause appeared, and a jury came, and there was a trial, without any objection to the jurisdiction.

We think the record shows a substantial compliance with the statutes, and that the court, at said adjourned term, had jurisdiction of the subject-matter and of the parties; the second assignment of error can not be sustained.

As to the motion for a new trial, it was founded on eleven alleged reasons:

1st. That the court admitted in evidence, over the objections of the appellant, a certified copy of a copy of the articles of association. There was no available error in this.

1 R. S. 1876, p. 654, section 1, and p. 662, section 26. It was proved that after a copy of the original articles was filed in the recorder's office, the original articles were lost, and after diligent and proper search could not be found, and the person, who was recorder when the original articles were filed in his office, brought in the record book in which the articles were recorded, and stated that he recorded the copy filed with him, and then compared the record with the original, and found the record to be a correct and true copy, and said record was read in evidence; the lost articles of association were sufficiently proved.

The second reason for a new trial is, that the court admitted in evidence the record book of the company containing the notice of a call for an election of directors, and in admitting a printed notice of said call.

The third reason is, that the court erred in admitting in evidence that part of the record containing the oath and transactions of the board of directors, on pages 2, 3 and 33 of said record.

Washer v. The Allensville, Center Square and Vevay Turnpike Company.

The fourth reason is, that the court erred in admitting in evidence the newspaper notice of the call for stock, and the testimony of Wm. J. Baird in connection therewith.

The fifth reason is, that the court erred in admitting the record of the articles of association; and reason five and a half is that the court erred in excluding the testimony of John P. White.

As to these objections, the law is that the books of a corporation are competent evidence for and against its members in an action between the corporation and its members. Fox v. The Allensville, etc., T. P. Co., 46 Ind. 31, on p. 38.

The notice of the call was given for the proper length of time and was sufficiently proved, and was sufficient in substance. There was no error in admitting in evidence the record of the articles of association, and the record does not show that John P. White was offered as a witness and excluded.

The sixth reason for a new trial is, that “the court prevented the defendant from going to the jury on the question whether the defendant had sworn that he had subscribed, or authorized John P. Butts to subscribe, for the defendant, the sum of $50 payable in work and materials, or $50 with the privilege of paying it in work or materials, if the defendant obtained a contract thereon, or, if he did not, then to have the privilege of paying the same by work and material on the contract of somebody else, and the court announced that he had watched the testimony of the defendant, and that he had sworn to the latter state of facts, and that they amounted to an unconditional subscription, and declined to take up the time of the court in permitting the defendant's counsel to argue to the jury which state of facts the defendant, Washer, had sworn to, and gave the charge given in the record No. 1, of its own motion.”

The bill of exceptions contains the testimony of the defendant, but contains nothing whatever in reference to any action of the court in refusing to permit the defendant's coun

Washer v. The Allensville, Center Square and Vevay Turnpike Company.

sel to go to the jury on the questions stated in said sixth reason for a new trial. Upon the sixth reason for a new trial, therefore, no question is presented for consideration. Wood v. Crane, 75 Ind. 207.

The other reasons for a new trial are:

7th. Error in giving to the jury instruction number one, of the court's own motion.

8th. Error in refusing to give to the jury instruction number one, asked for by the defendant.

9th. That the verdict is not sustained by sufficient evidence. 10th. That the verdict is contrary to law.

Instruction number one, given by the court of its own motion, is as follows:

“In this case you will find for the plaintiff and assess her damages at the amount of the subscription therein, with interest thereon from April 15th, 1872."

In Dodge v. Gaylord, 53 Ind. 365, this court cited with approbation the following language of the Supreme Court of Wisconsin: “The practice * * of directing a verdict in proper cases, when the evidence is all in, in favor of the party who may be entitled to it, seems never to have been questioned.” Cutler v. Hurlbut, 29 Wis. 152. See also Rudd v. Davis, 3 Hill, 287. Upon the evidence given in the bill of exceptions, no other verdict than the one directed by the court could have been given. There was no error in said instruction. Musselman v. Pratt, 44 Ind. 126.

The instruction number one, asked for by the defendant, is as follows:

“The defendant asks the court to instruct the jury that the plaintiff can not recover in this case, unless the jury find, from the evidence, that the plaintiff located their said turnpike before the commencement of this action.”

This instruction was properly refused; the road was sufficiently described in the articles of association; no other location was necessary.

The verdict was sustained by sufficient evidence and was

Cottrell et al. r. Cottrell.

not contrary to law. There is no substantial error in the record. The judgment ought to affirmed.

PER CURIAM.— It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is hereby in all things affirmed, at the costs of the appellant.

81 87 126 476

No. 6766.

COTTRELL ET AL. v. COTTRELL.
SPECIFIC PERFORMANCE.—Contract for Sale of Land.Complaint.--Title of

Deceased Vendor. -A complaint against the heirs of a deceased vendor, for
a specific performance of his parol contract, need not allege that the an-

cestor had any title to the property which he agreed to convey. EVIDENCE.— Witnesses.Heirs.Statement of Party.On trial of an action

against heirs, founded on a contract with the ancestor, to obtain title to real property, a party incompetent under section 499, R. S. 1881, to testify, can not call from a witness his own statements of fact made to the

witness before and during examination. SAME.—What may not be given in evidence directly, can not be given in

directly. SAME.--A party who is an incompetent witness to give in evidence a con

versation with a deceased person, can not give it in evidence as rehearsed

by him to another. PRACTICE.— Separation of Witnesses. Parties.- Guardian.—The guardian of

a minor defendant is within the rule that a party, although a witness, may not be excluded from the court room, under an order for the separation of witnesses.

From the Parke Circuit Court.

R. Dunnigan, W. Mack, J. M. Allen and S. C. Davis, for appellants.

A. B. Carlton and J. E. Lamb, for appellee.

ELLIOTT, C. J.—The complaint of the appellee is against the children and heirs of Joshua Cottrell, deceased, and seeks to enforce the specific performance of a parol contract made with the deceased in his lifetime.

Cottrell et al. v. Cottrell.

The complaint is badly drawn, but we think states a cause of action. The principal objection urged against it is that the first paragraph does not allege that the ancestor of appellants had any title to the property which it is alleged he agreed to convey, and is, therefore, bad. There are facts stated which show some title in the decedent. It certainly appears that his title was sufficient to put and keep the appellee in possession of the land for many years. If the appellee is content with such title as a conveyance from the heirs of the deceased vendor will convey, the appellants should not be allowed to prevent him from securing it. The ancestor had bargained away all the title he had, and, whether that was much or little, the appellee's contract vested in him a right to have that for which he had contracted. It can not be of importance to appellants whether that title was perfect or imperfect, for the appellee has a right to it, whatever its character may be. If he is satisfied, they can not complain, for it never descended to them, but' had vested in the appellee prior to the death of their ancestor.

The appellee called as a witness one of the defendants, Isaac Cottrell, and, in a long and involved interrogatory, stated a conversation in which the witness was given, by the appellee, a history of his claim, and asked if such a conversation did not take place. In permitting this question to be asked and answered, the court committed an error. The appellee, under the statute in force at the time of the trial, was not a competent witness, for the action was upon a contract made with the deceased ancestor of the heirs against whom the action was instituted. It is settled that in such cases the plaintiff is not competent to testify as to matters which occurred prior to the death of the ancestor. Wiseman v. Wiseman, 73 Ind. 112. Such a method as that adopted would enable a party to get before a jury his own statement of a transaction with the deceased person. A party prohibited from testifying can not secure the benefit of his version of such a transaction in this manner. To permit such a practice would make it easy to

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