No objection seems to have been made to the contract when it was offered in evidence, and therefore the objection now made, that it is void upon its face, comes too late to be entitled to consideration. But the claim if seasonably made would have been unfounded.

The court, referring to this evidence, says: "There was no evidence as to the exact quantity of land except the recital in said deeds.' It properly regarded those recitals as inconclusive evidence.

The remaining reason of appeal is that the plaintiff had adequate remedy at law. The defendants claim that the equitable jurisdic tion of the courts in this State was restricted by the provision in the old Statute last found in the Revision of 1875, p. 413, § 5, that "courts of equity shall take cognizance only of matters in which relief cannot be had in the ordinary course of law;" and that that provision is still in force.

In the case of Hurley v. Brown, 98 Mass. 545, the only description in the contract of the property agreed to be conveyed was "a house and lot on Amity Street." The court admitted evidence that there was only one house and lot on Amity Street which the defendant had a right to convey, and that the parties had been in treaty for the purchase and sale of it, and held that the subject matter of the contract might be thus identified. See also Mead v. Parker, 115 Mass. 413; Robeson v. Hornbaker, 3 N. J. Eq. 60.

In the present case the court finds that the plaintiff owned no other real estate in Stratford, and that the same was occupied by him as a homestead and residence. But we think that the description of the land in this contract is so definite as not to require a resort to extrin sic evidence to identify it, other than such as is always necessary to apply a description of real estate to the premises described.

The language of the contract is: "We agree to purchase of P. H. Hodges his place at Stratford, containing fifteen acres, more or less." The import of the word "place "in this connection is reasonably certain. Its popular and correct meaning, as thus used, is the place where one resides-his homestead. Webster's Dict.,-in verbum.

The court finds that the plaintiff told the defendants, before they signed the contract, that the place contained about fifteen acres, and that this statement was made in good faith. The defendants assign as a reason of appeal that "there was not about fifteen acres of land."

It is enough to say that the court does not find that there were not fifteen acres in the place, but evidently declined to make such a finding.

The defendants introduced the recitals in two deeds as evidence of the quantity of land in the place. One was the deed to the plaintiff of the land, in which was added to the description of the quantity of land the words "more or less," and the other was a conveyance of a small strip of the land to a railroad company, specifying the quantity conveyed. Except for the words "more or less" in the deed to the

cause, in our view, it did not have the restrictive effect claimed for it. A similar claim was made by the defendant in the case of Munson v. Munson, 30 Conn. 425, and the court says the provision referred to "is simply an af firmance of a well-settled rule of equity." The rule of equity is thus stated by Judge Swift: "It is a leading principle that equity will not interpose where there is an adequate remedy at law. It is not sufficient that there is a remedy, but it must be as complete and beneficial as the relief in equity." 2 Swift, Dig. chap. 1, 1.

In the action at law for the breach of the contract the plaintiff could only recover the excess if any of the sum agreed to be paid for the land above its market value when the contract was to be performed. Such a remedy is manifestly inadequate, and courts of equity therefore bold, as a general rule, that when a contract for the sale of real estate has been fairly entered into, the party contracting to sell, as well as the party contracting to buy, is entitled to have it specifically performed.

The cases on this question are all one way. It is true courts of equity have, in the exercise of their discretion, refused to apply the rule in certain cases where it would be productive of hardship or inconvenience. The court did so in the case of Whitney v. New Haven, 23 Conn. 624. In that case the city had contracted to purchase from the plaintiff land and water rights for the purpose of providing a water supply, and afterwards voted to abandon the project contemplated by the purchase. The court dismissed the bill for a specific performance, but remarked as follows in their opinion: "As a general rule, where a purchaser of real estate can come into a court of equity to obtain a deed of it, the vendor can come there to get his money which was agreed to be paid; but the rule is not universally true, and should not be applied, we think, where it will do unnecessary mischief to one of the parties."

In the present case the contract appears to have been fairly made, and is subject to the general rule of equity.

There is no error in the judgment com plained of.

In this opinion the other Judges concurred.

that, where several persons jointly commit a tort for which an action in form ex delicto may be maintained, without reference to any contract relation between the parties, the plaintiff has his election to sue all or any one of those engaged in the wrongful act, even though the existence of a contract may have been the occasion, or furnished the opportunity, to commit the act complained of. But where the action is founded on a joint contract, and is in sub stance, whatever its form may be, to recover damages for a breach of the contract upon which the action is predicated, all those jointly liable must be sued, in case all are alive, and within the jurisdiction of the court. Low v. Mumford, 14 Johns. 426; Weall v. King, 12 East, 452; Whittaker v. Collins, 34 Minn. 299; 1 Lindley, Partn. 482; Bish. Non-Contract Law, 521; Chitty, Pl. 469.

In a case like the present, where the gravamen of the action is the breach of a contract, by the terms of which two persons undertook, as partners, to reset the plaintiff's shoulder, and to treat him with the skill and diligence ordinarily displayed by competent surgeons, and the action is not maintainable without referring to the contract, it may well be, even though the action be laid in tort, that the nonjoinder of one of them would be ground for a plea in abatement. Collyer, Partn. § 721; Dicey, Parties, 455.

But a plea in abatement for nonjoinder of parties must, in order to be good, show that the person alleged to be jointly liable and not sued is living, and subject to the process of the court. Dillon v. State Bank, 6 Blackf. 5; Wil son v. State, Id. 212; Bragg v. Wetzel, 5 Blackf. 95; Levi v. Haverstick, 51 Ind. 236; Ferguson v. Hagans, 90 Ind. 38; Collyer, 'Partn. § 741; Merriman v. Barker (Ind.) 22 N. E. Rep. 992. If, in an action against partners to recover damages for a personal injury growing out of the breach of a contract, it is necessary, as in ordinary actions ex contractu, to join all the partners, it must follow that upon the death of one, notwithstanding the action may abate as to the deceased partner, the rule applicable to ordinary actions upon contracts against partners must obtain. At the common law, the contract of partners was always treated as a joint agreement, but the firm creditors could not proceed against the estate of a deceased partner, because the death of one of the partners extinguished the contract as to him, leaving it in force as the separate engagement of the survivor. The legal remedy of the creditor was thereafter confined exclusively to the surviving partner, except as the common law was modified by statutes, or by the principles of equity. Sherman v. Kreul, 42 Wis. 33.

Ralston v. Moore, 105 Ind. 243, 2 West. Rep. 747; Kimball v. Whitney, 15 Ind. 280; Gere v. Clarke, 6 Hill, 350.

If a partner dies pending an action against the firm, the death being suggested on the record, the action does not abate, but may proceed to judgment against the surviving partner unless the cause of action dies, not only as against the personal representative of the deceased partner, but as against the surviving partner also. Collyer, Partn. § 727; Pom. Rem. § 250, 251; Bates, Partn. § 1055; Williams v. Kent, supra.

When the damages sued for arise out of an injury to the person of the plaintiff, the cause of action dies with the person of either party; but the cause of action dies only so far as it affects the liability of the decedent, or his personal representative. Neither by the common law, nor under the Statute, does the cause of action die as to a surviving partner or defendant, who, as we have seen, remains liable for all claims against the firm. King v. Bell, 13 Neb. 409; 8 Wait, Act. and Def. 502.

While the members of the firm were all alive, each was liable in solido as principal, the firm being in law a single entity. Upon the death of one partner, his liability was extinguished, but the surviving partner, as the sole representative of the firm, continued liable. Ŝhale v. Schantz, 35 Hun, 622.

It is only where the cause of action does not survive in favor of, or against either of, the joint plaintiffs or defendants that the death of one abates the whole action. If the action is, as doubtless it should be, regarded as a suit quasi ex contractu for damages, for an injury to the person occasioned by the breach of a joint contract, the death of one of the defendants simply severed the joint liability and extinguished the claim against the decedent, while it continued in full force as to the survivor. If the action is regarded as purely in tort, as where the injury is willful and intentional, then the liability of the defendants may be joint and several, and the death of one does not abate the action as to the other. Collyer, Partn. 6th ed. 1079, note.

Upon the death of one partner, the creditor has a right to collect his claim at law from the survivor, or, if the cause of action survives against the personal representative, to proceed, in the manner pointed out by the Statute, against the estate of the deceased partner.

son v. Miller, 2 Ohio St. 203; Bailey v. Bussing, 28 Conn. 455; 4 Am. & Eng. Cyclop. Law, 12, 13; Lindley, Partn. 771.

That the cause of action died as to Luther W. Hess does not at all affect the question of the right of contribution between the survivor and his personal representative. The right of contribution grows out of the partnership relation, and rests upon the implied obligation of each partner to contribute his proportion to the

liquidation of all partnership liabilities, unless the liability arose out of an intentional tort, committed by the partner asking contribution, That the right of contribution exists, affords a persuasive reason for holding that the action may be maintained against the surviving part

ner.

From every point of view the conclusion follows that the cause of action did not die as to both partners because one member of the firm died, and that the proceeding to judgment against the survivor was not of itself erroneous. The court permitted the plaintiff to testify as a witness in his own behalf, as a matter of right, and to describe the acts and repeat declarations made to him by Luther W. Hess, deceased, while engaged in resetting his shoulder, and while treating him afterwards for the injury sustained. It is insisted that this testimony was improperly admitted, because the declarations were not made in the presence of the defendant, and for the further reason that the testimony falls within the prohibition of section 498, Rev. Stat. 1881.* The declarations were made by a partner while engaged in the business of the firm, and they were therefore admissible on the ground that the law implies an agency on the part of each partner to bind the firm in respect to transactions pertaining to the business of the firm, when the declarations are made during the progress of the partnership business to which they pertain. Boor v. Lowrey, 103 Ind. 468, 1 West. Rep. 548; Williams v. Lewis, 115 Ind. 45, 14 West. Rep. 825, and cases cited.

After some hesitation we have concluded that the testimony does not fall within the prohibition of the Statute. Durham v. Shannon, 116 Ind. 403.

As we have already seen, upon the death of Luther W. Hess the plaintiff's cause of action died, because extinguished as to the decedent. The only cause of action remaining was that which existed against the appellant; and, while the transaction with the decedent is incidentally involved, his estate is not concluded by the judgment in the present case. Even though the appellant may be entitled to enforce contribution from the estate, that right cannot be regarded as settled by this judgment.

It was not error to permit the plaintiff below to exhibit his shoulder to the jury. The jury were, after seeing the condition it was in, better able to apply the evidence of the witnesses. It is settled by the decisions of this court that evidence such as that complained of is admissible. Indiana Car Co. v. Parker, 100 Ind. 181; Louisville, N. A. & C. R. Co. v. Wood, 113 Ind. 544, 12 West. Rep. 303; Hart v. State, 15 Tex. App. 202.

It appeared at the trial that the plaintiff's shoulder had been reduced or reset principally by Dr. Luther W. Hess, the father of appellant. For the purpose of affecting the knowledge and skill of the surgeon who set the shoulder, the court permitted the plaintiff to prove, by the cross-examination of the appel

lant, that his father was extensively engaged in farming at and prior to the time of the injury, and that he devoted a considerable share of his time to the management of several farms. The appellant complains that this evidence tended to prove that Dr. Hess was wealthy, and that it was therefore incompetent as tending to induce the jury to give enhanced damages. The evidence was not admitted for the purpose of showing the relative pecuniary condition of the parties. It would have been clearly incompe tent for any such purpose. It was, however, entirely competent as tending to show that one who undertook to perform professional servicesrequiring peculiar skill and knowledge, as well as constant study and close application, was devoting himself principally to some other avocation. After the plaintiff had closed his evidence in chief, and while the appellant was examining a medical expert as a witness, he asked the court to order the plaintiff below to submit to a private examination by the appellant's medical experts. The court refused to make the order, the plaintiff having offered to submit to an examination in the presence of the jury, or to a private examination on the next morning, or as soon as he could secure the presence of his own expert witnesses. It is undoubtedly true that the court may in its discretion, in a proper case, if application is seasonably made, require the plaintiff to submit his person to a reasonable examination, by competent physicians and surgeons, when necessary to ascertain the nature, extent and permanency of injuries; but where the application is not made until after the close of the plaintiff's evidence, and no reason is shown for the delay in making the application, it will not be error to refuse the order, especially where the plaintiff offers to submit to a private examination as soon as the attendance of medical experts on his behalf can be secured. White v. Milwaukee City R. Co. 61 Wis. 536; Miami & M. Turnp. Co. v. Baily, 37 Ohio St. 104; Schroeder v. Chicago, R. I. & P. R. Co. 47 Iowa, 375; Shaw v. Van Rensselaer, 60 How. Pr. 143; Shepard v. Mo. Pac. R. Co. 85 Mo. 629; Atchison, T. & S. F. R. Co. v. Thul, 29 Kan. 466, 10 Am. & Eng. R. R. Cas. 783; Thomp. Trials, § 859.

Complaint is also made that the court erred in admitting in evidence extracts from certain books or treatises on surgery. It does not appear that extracts from the books were read in evidence, or admitted in evidence as such. In the cross examination of a medical expert, the witness was asked whether certain statements were not made by certain writers on surgery, the statement referred to being read from a book held by counsel as part of the question. It is recognized as a proper method of crossexamination, in order to test the learning of a witness who testifies as an expert, to refer to books of approved authority upon the subjects under investigation. Ripon v. Bittel, 30 Wis. 614; Conn. Mut. Ins. Co. v. Ellis, 89 Ill. 516; Pinney v. Cahill, 48 Mich. 584; State v. Wood, 53 N. H. 484; Rogers, Exp. Test. §§ 181, 182.

Medical books may be read to the jury, not for the purpose of proving the substantial facts therein stated, but to discredit the testimony of experts who refer to books as authority for or in support of their opinions. Pinney v. Cahill, supra.

Among other things, the court charged the jury that "the credit and weight that should be attached to the testimony of a witness depends upon his disinterestedness in the result of the suit and his freedom from bias or prejudice. Whenever a witness is lacking in any of these respects, it tends to a greater or less degree to weaken the force of his testimony." This instruction runs upon the very edge of propriety, and while it applies alike to the testimony of both parties, both having testified as witnesses, yet, if it had been pointed out to us, or if we could discover that there was any serious conflict between the

strained to reverse the judgment. Instructions such as the one in question have so often been the subject of animadversion that courts should not put their judgments in jeopardy by putting such charges in the record. Union Mut. L. Ins. Co. v. Buchanan, 100 Ind. 63-82; Dɔdd v. Moore, 91 Ind. 522; Woollen v. Whitacre, 91 Ind. 502; Cline v. Lindsey, 9 West. Rep. 218, 110 Ind. 337, and cases cited.

Without in any wise approving the instruction, since it was general, and may have been as injurious to one side as the other, we cannot reverse the judgment in the absence of anything to indicate that it was especially applicable to the appellant. Some of the other instructions are subjected to criticism. We have considered the objections urged, and do not find them objectionable.

The judgment is affirmed, with costs.
Petition for rehearing denied February, 1890.

Thomas PICKLE, Appt.,

v.

PEOPLE'S NATIONAL BANK of Shelbyville and John T. Muse.

(....Tenn.....)

1. The possession by a bank of a check which is not indorsed does not raise a presumption that it was paid to the payee named therein, when such payment is denied by the payee, and the only other proof of payment is a custom of the bank to pay checks without indorsement only when presented by the payee.

amount alleged to be due upon a bank check. Reversed.

The facts sufficiently appear in the opinion. Messrs. Cooper & Frierson for appellant. Messrs. Ivie & Ivie for the defendant Bank. Mr. Thomas R. Myers for defendant Muse.

Lurton, J., delivered the opinion of the court:

of action thereon against the bank.

3. The acceptance of a check, so as to give a right of action to the payee, is inferred from the retention of the check by the bank, and a subsequent charge of its amount to the drawer, although it was presented by, and payment made to, an unauthorized person. 4. The payee of a check which never came into his hands, but which was paid to some person who had no right to collect it, or left with the bank to be credited to him and credit not given through mere oversight, by suing the bank upon it ratifies the receipt of the check from the drawer as if it had been received by his agent for his use and benefit.

(Snodgrass and Caldwell, JJ., dissent.)

(January 16, 1890.)

being indebted to complainant in the sum of $600, claims on the 26th of March, 1887, to have paid the debt in a check drawn by himself, against his account with the defendant Bank, payable to complainant or his order, and that the check had been paid by the Bank, and charged up against his account. The defendant Bank claims that the check was presented and that it was paid to him. Complainant to it for payment by complainant in person, charges that the check has never been paid to him, or to his order, or to anyone authorized by him. Upon these facts he prays for a decree against the defendants or either of them, as the law and facts may justify. The defendant Muse, in his answer, admits the indebtedness as charged, but insists that he has fully paid same by drawing and delivering his check for the sum of $600 to complainant, and that

Chancery Court for Bedford County in favor of defendants in a suit to recover the

NOTE.-Banks and banking. See notes to Richards v. Attleborough Nat. Bank (Mass.) 1 L. R. A. 781; Lewis v. Lynn Sav. Inst. (Mass.) 1 L. R. A. 785; Atlanta Nat. Bank v. Burke (Ga.) 2 L. R. A. 96; Philadelphia Nat. Bank v. Dowd (N. C.) 2 L. R. A. 480; Manufacturers Nat. Bank v. Continental Bank (Mass.) 2 L. R. A. 699; Marshall v. 7 L. R. A.

Thomas Pickle, and charged up to the account of the drawer. The answer of the Bank ad

Farmers & M. Sav. Bank (Va.) 2 L. R. A. 534; Freeman v. Citizens Nat. Bank (Iowa) 4 L. R. A. 422; National Exch. Bank v. Gay (Conn.) 4 L. R. A. 343; Cutler v. American Exch. Nat. Bank (N. Y.) 4 L. R. A. 328; Harrison v. Harrison (Ind.) 4 L. R. A. 111; Fowler v. Bowery Sav. Bank (N. Y.) 4 L. R. A. 145; Schluter v. Bowery Sav. Bank (N. Y.) 5 L. R. A. 541.