of the complaint, the judgment is reversed, with instructions to the court to overrule the said demurrers, and for further proceedings in conformity to this opinion. (28 Ind. App. 539) LUPTON et al. v. NICHOLS. (Appellate Court of Indiana, Division No. 1. April 1, 1902.) MONEY PAID COMPLAINT SUFFICIENCY USAGE-ADMISSIBILITY IN EVIDENCE. 1. A paragraph of the complaint in an action against certain individual defendants and against a railroad company, averring that plaintiff, at the instance and request of the individual defendants, paid a certain sum of money to the railroad company, which sum the individual defendants promised to pay to him, with interest, and alleging that the railroad company was made a party defendant to answer to any interest it may have in said sum, was sufficient. 2. A paragraph of the complaint averring, in substance, that plaintiff paid to the railroad company an account due to it from the individual defendants for freight, and that the account was by the railroad company assigned to plaintiff, and that the railroad company was made a party defendant to answer to any interest it might have in the claim, was sufficient. 3. Persons dealing with each other in a business in which certain usages exist are presumed to deal with reference thereto, unless such usages are expressly contracted against, and it is competent to show what such usages are. Appeal from circuit court, Jay county; John M. Smith, Judge. Action by William A. Nichols against Adelma Lupton, Nathan McCoy, and the Grand Rapids & Indiana Railroad Company, in which Adelma Lupton died pending suit, and Ambrose G. Lupton and another, his executors, were substituted as defendants. Judgment against the executors and McCoy, and the former appeal. Affirmed. David T. Taylor, W. F. MacGinnitie, and T. J. Taylor, for appellants. E. E. McGriff and A. L. Nichols, for appellee. HENLEY, J. This action was commenced by the appellee against appellants and the Grand Rapids & Indiana Railroad Company on an account for freight for the shipment of stock over the said railroad from North Carolina, by way of Cincinnati, to Portland, Ind. At the time the action was commenced, Adelma Lupton was alive, but died before the cause was tried. The appellants, Ambrose G. Lupton and John S. Emmons, the executors of the will of the said Adelma Lupton, were substituted as defendants. The complaint was in two paragraphs. Appellants demurred to each paragraph of the complaint, which demurrer was overruled. They answered the complaint by general denial, and the issues thus made were tried by jury, who returned a verdict in favor of appellee, upon which the court rendered judgment against appellants, as executors of the estate of Adelma Lupton, deceased, and one Nathan McCoy. It was assigned as error in this court that the trial court erred in overruling appellants' demurrer to the first paragraph of the complaint, that the trial court erred in overruling appellants' demurrer to the second paragraph of the complaint, and that the trial court erred in overruling appellants' motion for a new trial. It appears by the first paragraph of the complaint that in October, 1897, the appellee, at the instance and request of appellants, Nathan McCoy, and one Adelma Lupton, deceased, then living, paid to the Grand Rapids & Indiana Railroad Company the sum of $104.51, which sum the said McCoy and Lupton promised and agreed to pay to appellee, with interest, from said day; that said railroad company is made a party defendant to answer to any interest it may have in said claim; that said sum is due and wholly unpaid. Counsel for appellants has assigned no valid reason why this paragraph of complaint is not sufficient. It is clearly averred that the appellee, at the special instance and request of appellants, paid out for their use and benefit the sum of $104.51, which amount they expressly promised and agreed to repay, with interest from the day they so received the benefit of the same, and that the said sum is wholly due and unpaid. This paragraph of complaint is sufficient, and it is unnecessary for us to cite the elementary authorities to sustain it. In the second paragraph of the complaint, appellee avers that the account is for freight which was due from appellants to said railroad company, paid by him for them to the railroad company, and the account was by said railroad company assigned to the appellee; and the said railroad company is made a party defendant to answer as to any interest it may have therein. The averments of this paragraph of the complaint are very full, and cover the whole case. But what we have stated covers the substance of the complaint, and renders it sufficient against an attack by demurrer. Both paragraphs of the complaint stated a cause of action. Under the specification of the assignment of error that the trial court erred in overruling appellants' motion for a new trial, it is argued that the verdict is not sustained by sufficient evidence, and is contrary to law. We have carefully read the evidence in this case, and must conclude that the verdict of the jury was not only sustained by the evidence, but that the jury were fully justified in returning the verdict which they did in this case. It is also objected that certain evidence was admitted, tending to prove a general usage which obtained in the business carried on by the parties to this action. It is the law that persons dealing with each other in a business in which certain usages exist are presumed to deal in reference to such usages and regulations, unless such usages are expressly contracted against, and it is competent to show what such usages are. Morn ingstar v. Cunningham, 110 Ind. 328, 11 N. E. 593, 59 Am. Rep. 211; Mooney v. Insurance Co., 138 Mass. 375, 52 Am. Rep. 277. None of the other questions raised by the motion for a new trial are argued by counsel for appellants. The judgment of the trial court is affirmed. (28 Ind. App. 584) CITY OF INDIANAPOLIS v. CRANS. (Appellate Court of Indiana, Division No. 2. April 3, 1902.) MUNICIPAL CORPORATIONS-DEFECTIVE STREET-COMPLAINT-SUFFICIEN- 1. A complaint in an action against a city for injuries resulting from a defect in a street, which alleges that plaintiff is a resident of the city, but does not allege such street to be within the corporate limits, is insufficient. 2. A complaint in an action against a city for injuries owing to a defect in a street alleged that the drainage and grading of the street were faulty, as defendant knew, and that by reason thereof there was a washout, and that defendant had, or might have had, knowledge of the dangerous condition. Held, that the complaint was insufficient, for not alleging the dangerous condition to have been caused by acts of omission or commission on the part of defendant. 3. The insufficiencies of the complaint were properly taken advantage of by demurrer. Appeal from superior court, Marion county; James M. Leathers, Judge. Action by Margaret E. Crans against the city of Indianapolis. From a judgment for plaintiff, defendant appeals. Reversed. Jno. W. Kern and J. E. Bell, for appellant. Guilford A. Deitch and Daniel Wait Howe, for appellee. COMSTOCK, C. J. Appellee sued appellant to recover damages on account of personal injuries occasioned by her stepping into a gutter caused by the flow of surface water at the intersection of the two streets named in the complaint. Upon trial of the cause, she recovered a judgment for $400. The first error assigned and argued challenges the sufficiency of the complaint to state a cause of action. It is argued that the complaint contains no allegation to the effect that the place where the accident occurred was within the limits of the city of Indianapolis. The complaint is as follows: "Margaret E. Crans complains of the city of Indianapolis, and says that she was a citizen of Indianapolis, and on September 1, 1896, about half past 8 o'clock, she was walking with her husband on Orange avenue, across Hamilton avenue, at the intersection of said avenues; that there had been heavy rainfalls on the 7th and 23d days of August, and also during the months of May, June, and July of said year; that the drainage and grading of said avenues was faulty and imperfect, and insufficient to properly carry off the rainfall on said avenues; that by reason of said faulty, imperfect, and insufficient means of drainage, the water had caused an excavation and washout to the depth of thirteen or fourteen inches at said intersection, the north bank or side of the said washout being perpendicular and dangerous and unsafe; that the defendant had full knowledge of said washout, and of the unsafe condition of said avenue, or might have had knowledge by the exercise of reasonable diligence and supervision over said avenue; that said condition had existed for some time prior to September 1, 1897, but that she could not state how long; that the only light furnished at said place was given by an electric light located on Hamilton avenue, 350 feet south of said Orange avenue, and that said light was insufficient to afford any warning to said plaintiff, or to others passing on said avenue; that while walking on said avenue as aforesaid, holding the arm of her husband, who was to the north of her, and exercising all caution, walking slowly and carefully, and using her sense of sight as best she could in said darkness, she, without any fault on her part, and without knowledge of the existence of said excavation, stepped into it, and was thrown violently down, causing a sprain to, and fracture of, the ankle, and a fracture of some of the bones of the foot," etc. We find no averment that the street on which the plaintiff was injured was within the corporate limits of Indianapolis. The allegation that the appellee had resided in Indianapolis 20 years last past, and at the date named was walking upon "Orange avenue, across Hamilton avenue, at the intersection of said streets," does not locate these streets in the city of Indianapolis. Municipal corporations are only required to maintain public streets in a reasonably safe condition for travelers when they are within their corporate limits, and this obligation must appear from the averments of the complaint. Railroad Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. 783; Thiele v. McManus, 3 Ind. App. 132, 28 N. E. 327, and cases cited. It is insisted that the complaint does not aver that the defect was caused by the negligence of the appellant, or that it was its duty to repair. It is averred that the "drainage and grading of said Orange and Hamilton avenues was faulty and imperfect, and insufficient to properly carry off the rainfall on said avenues, as the defendant well knew," and that by reason of said faulty and imperfect means of drainage there was an excavation or washout as set out, and the defendant had, or might have had, full knowledge of the dangerous condition of the avenue. The knowledge of the conditions charged would apply to a private right of way or private walks which had never been dedicated to the public, as well as to a public street. The averment of facts is wanting, showing that the faulty drainage was caused by the acts of omission or commission of appellant. Counsel for appellee contend that the objections urged to the complaint are such as can only be taken advantage of by motion to make more specific; citing City of Hammond v. Myers, 23 Ind. App. 235, 55 N. E. 102; Jones v. State, 112 Ind. 193, 13 N. E. 416; Railroad Co. v. Jones, 108 Ind. 551, 9 N. E. 476. These and numerous other cases in this state are to the effect that "when a pleading contains a statement of all the facts essential to constitute a cause of action, although such facts may be stated in general, indefinite, and ambiguous terms, it is nevertheless good, as against a demurrer, notwithstanding a motion to make more specific might be entertained with propriety." All the essential facts are not averred in the complaint before us. A cause of action should not be left to inference. "A pleading is to be liberally construed as to matters of form, but where, in its statement of facts, a pleading is ambiguous or defective, it will be construed most strongly against the pleader." State v. Casteel, 110 Ind. 187, 11 N. E. 226, and cases cited. The other specification of error, to wit, that the court erred in overruling appellant's motion for judgment on the answers of the jury to interrogatories, need not be considered. The trial court is directed to sustain appellant's demurrer to the complaint. Judgment reversed. (28 Ind. App. 583) LILLARD et al. v. MATHER et al. (Appellate Court of Indiana, Division No. 1. April 3, 1902.) APPEAL-SPECIAL FINDINGS-CONCLUSION OF LAW-RECORD-SIGNATURE OF JUDGE-BILL OF EXCEPTIONS ORDER OF COURT REVIEW. Where special findings of facts, and conclusions of law thereon, are not signed by the judge, or brought up on appeal by bill of exceptions, or made part of the record by order of court, no question as to the conclusions of law based on the findings is before the appellate court. Appeal from circuit court, Blackford county; Levi Mock, Judge. Action between Darius Lillard and others and Charles F. Mather and others. From the judgment, Darius Lillard appeals. Affirmed. Gregory, Silverburg & Lotz, for appellant. A. E. Steed, Cantwell, Cantwell & Simmons, and Elliott & Elliott, for appellees. HENLEY, J. In this case counsel for appellants have argued but one question, that question being the one arising under the specification of the assignment of errors that the court erred in its conclusions of law stated upon the special finding of facts. The record does not present this question, and it cannot, therefore, be considered. It appears from the record that the court made a special finding of facts, and stated its conclusions of law thereon, but the special finding of facts and the conclusions of law were not signed by the Judge so making them; neither was it made a part of the record by order of the court, nor by bill of exceptions. In order to become a part of the record, the special finding must either be signed by the judge, or made a part of the record by bill of exceptions or order of the court. Ferris v. Udell, 139 Ind. 579, 38 N. E. 180; Winstandley v. Breyfogle, 148 Ind. 618, 48 N. E. 224; Board v. Fertich, 18 Ind. App. 1, 46 N. E. 699. If the special finding of facts so made by the court, and the conclusions of law stated thereon, are not signed by the judge, or brought up by a bill of exceptions, or made part of the record by an order of court, the finding must be treated as a general one, and no question as to the conclusions of law based thereon is presented by the record. Board v. Fertich, supra; Smith v. State, 140 Ind. 343, 36 N. E. 708. Judgment of the trial court is affirmed. (28 Ind. App. 610) ROBISON et al. v. PEASE. (Appellate Court of Indiana, Division No. 2. April 4, 1902.) CONFLICT OF LAWS-CONTRACT BY MARRIED WOMAN-SURETYSHIP. The defense, in an action against a married woman on a note given in Indiana to make good the default of one for whom, as surety, she executed a bond in Ohio, that under the laws of Indiana she cannot make a contract of suretyship, is unavailing, the bond being governed by the laws of Ohio, under which she can contract as if unmarried. Appeal from circuit court, Monroe county; Wm. H. Mastin, Judge. Action by Horace S. Pease against Mary C. Robison and others. Judgment for plaintiff, and defendants appeal. Affirmed. Henley & Wilson, for appellants. Miers & Corr, for appellee. ROBY, J. The appellee's action was founded upon a promissory note for $300, executed to him by appellants on January 24, 1898, at Bloomington, Ind., and payable at a bank in said town one year after date. The appellant Mary C. Robison defends upon the ground that she was and is a married woman, and executed said note as surety for, and to secure a debt of, one Borgman. The appellee, on June 10, 1897, lived at Cincinnati, Ohio. Borgman, a son-in-law of appellants, was taking an agency of some kind from him, and gave a bond conditioned to collect and pay over moneys received by him in such capacity. He and his wife signed this bond at Cincinnati. Appellee's attorney examined and approved its form. Borgman mailed it to appellants, who received and signed it at Bloomington, Ind., where they lived, and deposited it in the mail, through which it was conveyed to appellee at Cincinnati. The appellants were sureties upon this bond. Section 3113, Rev. St. Ohio, then in force, was as follows: "A husband or wife may enter into any engagement or transac tion with the other, or with any other person, which either might if unmarried, subject in transactions between themselves to the general rules which control the actions of persons occupying confidential relations with each other." The note in suit was given to make good the default of Borgman and on account of moneys which it was his duty to pay. If the bond referred to was governed by the law of Ohio, then the appellant Mary C. Robison became personally liable thereon, and her defense of suretyship must fail. Bowles v. Field (C. C.) 78 Fed. 742. In Millikan v. Pratt, 125 Mass. 374, 28 Am. Rep. 241, the facts before the court seem to have been identical. In Bank v. Mitchell, 34 C. C. A. 542, 92 Fed. 565, they were likewise analogous to those in the case at bar. Following those authorities, it is held that the bond referred to was governed by the law of Ohio, and was therefore the valid and enforceable contract of both appellants. Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251; Evans v. Beaver, 50 Ohio St. 190, 33 N. E. 643, 40 Am. St. Rep. 666; Pritchard v. Norton, 106 U. S. 124, 27 L. Ed. 104; Cochran v. Ward, 5 Ind. App. 89, 29 N. E. 795, 31 N. E. 581, 51 Am. St. Rep. 229; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 25 L. R. A. 188, 34 Am. St. Rep. 473. See note, Ruhe v. Buck (Mo. Sup.) 25 L. R. A. 178 (s. c. 27 S. W. 412, 46 Am. St. Rep. 439); Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 3 L. R. A. 214, 10 Am. St. Rep. 690. Judgment affirmed. (28 Ind. App. 542) ALDAG v. OTT. (Appellate Court of Indiana, Division No. 2. SUMPTION. PRE 1. Where defendant on appeal does not bring the evidence before the appellate court, the material allegations of the complaint will be presumed proven. 2. Where a workman employed by a landlord to make repairs on the leased premises breaks a board in a floor over which the tenant has frequent occasion to pass, and the landlord tells the workman he will fix the break, and gives no further attention to it, and the tenant, in the exercise of due care, is injured by stepping into the hole, the landlord is liable. Appeal from superior court, Marion county; Jno. L. McMasters, Judge. Action by Olive Ott against August Aldag. From a judgment for plaintiff, defendant appeals. Affirmed. Chas. A. Dryer, for appellant. Wilson & Tounley, for appellee. ROBY, J. Appellee rented a house and lot from the appellant. She paid one month's rent, and took possession. Before the expiration of the month, she discovered that the privy vault was directly connected with the family cistern. She requested appellant to clean the vault and cistern, which he did. The person doing the work "fractured" a board in the woodhouse floor, over which appellee and her family had frequent occasion to pass, thereby rendering the place dangerous and unsafe. One of the workmen proposed to replace the board with a new one, but appellant told him to go about his work, and said that he would see to the broken board himself. He gave no further attention to it, and six days later appellee stepped on the fractured board, which broke under her weight, causing her to fall, and breaking her leg above the ankle. She had no notice of the danger or defect, and was in the exercise of due care. The foregoing facts are extracted from a multitude of averments contained in the complaint. Appellee had a verdict for $600, upon which judgment was rendered. The material facts averred in the complaint are therefore presumed to have been proven, no attempt being made to bring the evidence before this court. The relative duty of landlord and tenant with regard to making repairs upon the leased premises is not involved herein. The appellant entered upon the premises, and whether he could have been compelled to do so or not is immaterial. He did enter, and while there prepared a pitfall, by reason of which appellee's limb was broken. He had a license to be upon the premises. His presence was for a laudable purpose; i. e., the removal of a nuisance. He had no license to do the thing on account of which appellee received her injuries, and in that regard stands exactly as any other wrongdoer. Whether he hired men to remove the nuisance, and paid them by the day or by the job, is unimportant. The thing on account of which he becomes liable was an affirmative and wrongful act of his own. The workman breaking the board may have done so unavoidably. He, at least, was proceeding to replace it. Appellant adopted the act as his own, and refused to permit the repair. He took no steps to prevent injury, and thereby became responsible for the condition. Because of his negligent acts and omissions the woman was severely injured. According to the elemental principles of law, he is liable for the resulting damages. Judgment affirmed. (28 Ind. App. 578) ROEHRS v. TIMMONS. (Appellate Court of Indiana, Division No. 1. April 3, 1902.) LANDLORD AND TENANT-INJURY FROM DEFECT-AGREEMENT TO REPAIR. 1. A landlord is not liable to a tenant for an injury from the defective condition of the premises, he not having let them with knowledge thereof, or covenanted to make repairs. 2. A promise of a landlord, before executing a lease, to make repairs, is unavailing, the written lease containing no covenant to repair. 3. The promise of a landlord, during the term of a lease, to make repairs, is without consideration. Appeal from circuit court, Allen county; W. J. Vesey, Judge. Action by Bertha Timmons against Henry Roehrs. Judgment for plaintiff, and defendant appeals. Reversed. Barrett & Morris, for appellant. Henry Colerick, for appellee. ROBINSON, P. J. Suit by appellee for personal injuries from alleged defective leased premises. Appellant purchased, in 1892, a certain brick building, having at the rear end, at the second story, an uncovered porch about three and one-half by five feet, to enable tenants occupying the second floor to go out upon the porch and by the stairway reach the roof of the building for the purpose of drying clothes thereon, the porch being for no other purpose. This porch was not constructed in a safe and substantial manner, but from the time of its construction it was a fragile, insecure, and dangerous place for a person to go upon and to cross over. July 1, 1896, appellant leased the building to one Levy, the written lease simply providing that Levy was to rent the building, the rent to be paid on July 1, 1896, and each succeeding month thereafter, at a specified rate, and if a certain arch was cut in a room each was to pay half the expense. Under this lease Levy took possession, and afterwards, in the same month, sublet the second story to appellee for her husband, who paid to Levy the monthly rental up to the date of appellee's injuries. During the three and one-half years which appellee occupied the premises she had used the porch once or twice a week for going upon the roof. Appellee could not have examined the porch without trespassing upon the premises of others, nor could she have discovered whether it was defective, weakened, and unsafe if she had made an examination thereof. The porch was not in good condition and safe for the uses for which it was intended at the beginning of appellee's occupancy, and continued in that condition up to the time of her injuries. Levy continued to be the lessee of the building up to and after appellee's injuries. Appellee and her husband, as tenants, had the sole use and control of the sec63 N.E.-31 ond story and the porch, and during all this time Levy occupied the room immediately below. During this time there was a door opening upon and into an area in the rear of the lower room immediately below the porch, and from this area the manner in which the porch was attached to the building could be seen by one looking at the same, and at all times during appellee's occupancy she could, by going through this door, have ascertained the condition of the porch, and how it was fastened or supported. But prior to and at the time of the leasing from Levy appellee did not know of this rear door, and she never made such examination prior to her injury. Appellant, prior to July 1, 1896, had made an agreement with Levy that he would keep up and pay for all repairs of the building. Appellant had no knowledge or notice prior to appellee's injuries that the porch was unsafe, and at no time did appellee notify him that it was unsafe or out of repair, and at no time did she request him to repair it. The porch was not open to view as to its construction both from below and above. The falling of the porch with appellee was the result of decay in the supports, and this decay resulted from use of the porch, the weather, and age. From July, 1896, up to the time of the injuries appellant made all repairs on the premises at his own expense, and after the tenancy of Levy he made repairs upon the upper story. Levy made no repairs at his own expense. During the time appellee occupied the premises appellant informed her that he was to make all repairs. From the time appellant became the owner of the building until the time of the accident, being a period of more than seven years, he made no examination at all of the porch or its condition. By the exercise of ordinary care he could have discovered the fragile, dangerous, and unsafe condition of the porch in its construction. The apparent condition of the porch to persons occupying the second floor was that it was ordinarily safe for the uses and purposes for which it was intended. Appellee was seriously injured by a portion of the porch breaking down and throwing her down a distance of about 13 feet. The complaint avers that the porch was dangerously, carelessly, and negligently constructed by appellant. The findings show that it was constructed by appellant's vendor, but they also show that appellant could, by the exercise of ordinary care, have discovered the fragile, dangerous, and unsafe condition of the porch in its construction; but whether before, or after the beginning of the tenancy is not shown. The complaint also avers that appellant negligently and carelessly permitted the supports to become rotten, and carelessly and negligently failed to repair the same, and carelessly and negligently permitted the same to be and remain to those using and occupying the second floor in an apparently reasonably safe |