said by some authorities that unless this is done, even though the opposite party consents to join, the court should refuse to entertain the demurrer; and that a judgment rendered on the demurrer will be set aside.59 That unless the facts are definitely stated, the court has no jurisdiction to pronounce judgment on the demurrer, and the voluntary joinder of the opposite party does not give it such authority.60 But the better reason supports the contrary rule, and the better authorities hold that where the parties voluntarily join, unless the facts established by the evidence, aided by all reasonable inferences that can logically be drawn therefrom will sustain the issue, the demurrant should have judgment.61 Where the evidence set out in the demurrer is so loose, uncertain and indeterminate that no verdict could be rendered upon it by a jury, the court should not give judgment, but should set aside the demurrer and award a venire de novo.65 62 The rule as to a demurrer to the evidence is different from that which governs demurrers to pleadings. A pleading must be definite and unequivocal, but the proof necessary to support the plea may be both equivocal and indefinite and yet be deemed sufficient. $3

Evidence in favor of the demurrant cannot be considered upon a general demurrer to the evidence ;64 and where the demurrer is so framed as to let in the demurrant's own evidence, and thus to defeat the case made out by the other side, it is the duty of the court to overrule the demurrer as incorrect and untenable in principle.65 The incorporation of a party's own evidence in his demurrer has been held sufficient ground for a refusal of the adverse

Ind. 435; Copeland v. New England Ins. Co., 22 Pick (Mass.) 135; Pickett v. Isgrigg, 10 Biss. (U. S.) 230; Gibson v. Hunter, 2 H. Black. 187.

59 Fee v. Florida Sugar Manuf. Co., 36 Fla. 612; Fowle v. Common Council, 11 Wheat. (U. S.) 320; Buller's Nisi Prius, 313.

60 Coates v. Galena, etc. Railroad Co., 18 Iowa, 277; Jones v. Ireland, 4 Iowa, 63; Western Assurance Co. v. Mayer, 64 Miss. 795.

61 Reynolds v. Baldwin, 93 Ind. 57; Thomas v. Hoosier Stone Co., 140 Ind. 518.

62 Higgs v. Shehee, 4 Fla. 382.

63 Miller v. Porter, 71 Ind. 521; Lemmon v. Whitman, 75 Ind. 318.

64 Copeland v. New England Ins. Co., 22 Pick. (Mass.) 135; Jones v. Ireland, 4 Iowa, 63; Fritz v. Clark, 80 Ind. 591.

65 Fowle v. Common Council, 11 Wheat. (U. S.) 320; Ruddell v. Tyner, 87 Ind. 529.

party to join in the demurrer, or for the court to set aside the demurrer as irregular. And it has been held that offering any evidence at all after the opposite party's evidence was closed was a waiver of the right to demur.67 While on the other hand, many cases hold that all the testimony given on both sides should be incorporated in the demurrer.68 The true rule would seem to be that all evidence offered up to the time the demurrer is filed should be set out in the demurrer, and then the issue tendered whether there are any facts shown by such evidence, or any inferences which may reasonably and legally be drawn from it sufficient to establish the issue to which it is directed. And the party hav. ing the burden of the issue should be given the benefit of all facts and inferences favorable to him which were before the court when the demurrer was filed, whether developed by the plaintiff or the defendant.69 If there were anything in the evidence of demurrant's witnesses favorable to his adversary, the jury could consider it in making their verdict; and a party should not be permitted, by demurring to the evidence, to place himself in any more favorable situation than he would have occupied before the jury.70 Cross-ex amining a witness does not make his evidence that of the cross-examiner so as to amount to a waiver of the right to demur to the evidence; but the evidence of each witness given on cross-examination should be consid ered in connection with his evidence in chief. A party cannot, by demurring, 72 cause his own evidence to be taken as true, any more than he can, by a demurrer, confess the truth of his own pleadings. A demurrer to evidence cannot be made the means of withdrawing a question of fact from the jury, and submitting its decision to the

73

66 Fritz v. Clark, 80 Ind. 591; Plant v. Edwards, 85 Ind. 588; Reynolds v. Baldwin, 93 Ind. 57; Woodgate's Admr. v. Threlkeld, 3 Bibb (Ky.), 527; Fowle v. Common Council, 11 Wheat. (U. S.) 320.

67 Hart v. Calloway, 2 Bibb (Ky.), 460.

es Hyers v. Green, 2 Call. (Va.) 555; Childers v. Deane, 4 Rand. (Va.) 406; Green v. Judith, 5 Rand. (Va.) 1; Strough v. Gear, 48 Ind. 100; Thomas v. Ruddell, 66 Ind. 326; Baker v. Baker, 69 Ind. 399.

69 City of St. Louis v. Missouri Pacific Railway Co., 114 Mo. 13.

70 City of St. Louis v. Missouri Pacific Railway Co.,

114 Mo. 13.

71 McCreary v. Fike, 2 Blackf. (Ind.) 374. 72 Ware v. Stephenson, 10 Leigh (Va.), 155. 73 Woodgate's Admr. v. Threlkeld, 3 Bibb (Ky.),

527.

court.74 Permitting a demurrant to do this when there was evidence before the jury upon which, if it were believed, they might render a verdict against him, would defeat the right of trial by jury.75 But a party whose

evidence is insufficient to withstand a demurrer in proper form, cannot complain of the action of the court in sustaining a demurrer in which he voluntarily joins, even though it improperly tenders an issue as to the weight of the evidence.76 Where no evidence at all had been offered by the plaintiff in support of one of the material allegations of his complaint, it was held that a joinder in a demurrer offered by the defendant was an admission on the plaintiff's part that such allegation could not be supported by proof, and the defendant was entitled to judgment.77

But where a season

able application is made to withdraw from an issue that has been inadvertently joined upon a demurrer that omits one of the material facts necessary to make out the plaintiff's cause of action, he should be permitted to withdraw the joinder.78

A demurrer to the evidence does not call in question the sufficiency of the pleadings,79 and defects in them are no cause for sustaining such a demurrer.80 Having taken issue on a count, a party will not be permitted, by demurring to evidence pertinent to that issue, to object the insufficiency of that cause in law to sustain the action. The only question presented for the consideration of the court is whether the evidence supports the issue or not; and the judgment is that it does or does not support it.82 But the demurrer reaches a variance, which may be taken advantage of in this way

81

76 Reynoids v. Baldwin, 93 Ind. 57.

"Newhouse v. Clark, 60 Ind. 172; Lyons v. Terre Haute, etc. Railroad Co., 101 Ind. 419. See Comstock v. Union Railroad Co., 56 Kan. 228.

78 Peabody Ins. Co. v. Wilson, 29 W. Va. 528.

79 Stiles v. Inman, 55 Miss. 469; Lindley v. Kelley, 42 Ind. 294; Bish v. Van Cannon, 94 Ind. 263; Hartman v. Cincinnati, etc. Railroad Co., 4 Ind. App. 370.

80 Bish v. Van Cannon, 94 Ind. 263; McLean v. Equitable Life, etc., 100 Ind. 127.

81 Palmer v. Logan, 4 Ill. (3 Scammon) 56.

82 Riddle v. Core, 21 W. Va. 530; Humphrey v. West, 3 Rand. (Va.) 516; Gates v. Noble, 1 Root (Conn.), 344; United States Bank v. Smith, 11 Wheat. (U.S.) 172.

84

A

So,

as well as by a motion for a non-suit.83 demurrer to the evidence is only one of the modes of trial by which the sufficiency of the evidence may be tested, and a ruling on such a demurrer ordinarily has the same effect as a general verdict, except as to the assessment of damages. Objections to the sufficiency of the pleadings which have been taken by demurrer are not waived by demurring to the evidence, but the ruling on the pleadings may be assigned as error on appeal. after the demurrer to the evidence has been⚫ overruled, the defendant may take advantage of any objection to the declaration by moving in arrest of judgment, or by bringing a writ of error. But where one paragraph of complaint is good, and the evidence demurred to is sufficient to sustain it, the case will not be reversed because the court erred in overruling a demurrer to another paragraph which was insufficient.87 Under a statute which authorizes an amendment of the complaint at any time by the insertion of any material allegation necessary to conform it to the facts proved, so long as such amendment does not substantially change the cause of action, the court may permit an amendment to be made after a demurrer to the evidence has been submitted and the jury discharged. The demurrer may, however, be withdrawn after such amendment has been made, and refusal of the court to permit its withdrawal under such circumstances, is error. The court may always, in its discretion, permit a demurrer to the evidence to be withdrawn at any time before joinder by the other party.90

89

on appeal, to present an erroneous ruling on a demurrer to the evidence,91 nor can the party demurring have a bill of ex

83 Pearsons v. Lee, 2 Ill. (1 Scammon), 193.

84 Cort v. Birkbeck, 1 Doug. 218; Bish v. Van Cannon, 94 Ind. 263.

85 Bish v. Van Cannon, 94 Ind. 263; McLean v. Equitable Life, etc., 100 Ind. 127; U. S. Bank v. Smith, 11 Wheat. (U. S.) 171.

88 Cort v. Birkbeck, 1 Doug. 218; Bish v. Van Cannon, 94 Ind. 263; McLean v. Equitable Life, etc., 100 Ind. 127; Lindley v. Kelley, 42 Ind. 294.

87 Stolle v. Etna, etc. Ins. Co., 10 W. Va. 546; McLean v. Equitable Life, etc., 100 Ind. 127.

88 Hartford City, etc. Co. v. Love, 125 Ind. 275. 89 Hartford City, etc. Co. v. Love, 125 Ind. 275.

90 Holmes v. Phoenix Mut. Life Ins. Co., 49 Ind. 356.

91 Stiles v. Inman, 55 Miss. 469; Contra: Gruble v. Ryus, 23 Kan. 195.

ceptions by which to save questions as to the rulings of the court upon the trial.92 And a demurrer in which all the evidence is set out cannot be made to take the place of such a bill. 93 The demurrer waives all objections to the admissibility of the evidence to which it is addressed,94 and amounts to an admission that such evidence is competent, that the witnesses are entitled to credit, and that all inferences favorable to the opposite party which may reasonably be drawn from the evidence are true.95 But a party cannot, by offering a demurrer to the evidence which has been admitted, deprive his adversary of the benefit of exceptions taken to rulings of the court excluding competent evidence.96 To permit the demurrer to have this effect would enable a party who had secured erroneous rulings on the admission of evidence, by demurring, to deprive the opposite party of his exceptions to such rulings, however erroneous they might be, and however great the injury done to him by such ruling, and thus secure an unjust advantage. For the same reason, a party will not be permitted to demur to his adversary's evidence, until the latter has gone through with the whole of it and rested his case.98

97

A party who offers evidence after his demurrer has been tendered and overruled thereby waives the demurrer.99 A ruling on a demurrer to the evidence has the same effect in fixing the rights of the parties as a general verdict, and the prevailing party is entitled to judgment as of right, unless the ruling is changed,100 and the demurrant will

92 Lindley v. Kelley, 42 Ind. 294; Bulkley v. Butler, 2 B. & C. 445, per Best, J.

93 Palmer v. Chicago, etc. Railroad Co., 112 Ind. 250. 94 Lewis v. Few, 5 Johns. (N. Y.) 1; Chapize v. Bane, 1 Bibb (Ky.), 612; Miller v. Porter, 71 Ind. 521. 95 Newhouse v. Clark, 60 Ind. 172; Kincaid v. Nicely, 90 Ind. 403; Ohio, etc. Railway Co. v. Collarn, 73 Ind. 261; Palmer v. Chicago, etc. Railroad Co., 112 Ind. 250.

96 Washburn v. Board, etc. Shelby County, 104 Ind. 321; Bonebrake v. Board, etc. Huntington County, 141 Ind. 62.

97 Washburn v. Board, etc. Shelby County, 104 Ind. 321.

98 Proprietary v. Ralston, 1 Dall. (U. S.) 18.

99 Bowen v. Chicago, etc. Railway Co., 95 Mo. 268. See Atchison, etc. Railway Co. v. Reecher, 24 Kan. 228; Mynning v. Detroit, etc. Railroad Co., 64 Mich. 93.

100 Golden v. Knowles, 120 Mass. 336; Williams v. McCorico, 27 Ala. 572; Commonwealth v. Parr, 5 W. & S. (Pa.) 345; Davis v. Steiner, 14 Pa. St. 275; Knox v. Garland, 2 Call. (Va.), 241; Griggs v. Seeley, 8 Ind. 264; Fouch v. Wilson, 60 Ind. 64.

not be permitted to dismiss his suit after such ruling is announced.101 It is error for the court on overruling a demurrer to the evidence to award a jury trial.102 But the ruling on a demurrer is only an interlocutory order of court subject to change or modifica tion at any time until judgment is rendered, and not a final judgment from which an appeal can be taken.108 And after judgment

has been entered on the demurrer, the court has the same authority to set aside the judgment that it has in a case tried in any other way. 104 After a judgment overruling a demurrer to the evidence has been set aside, the court may permit the plaintiff to dismiss his action or to suffer a non-suit as in ordinary cases. When it is manifest, from a consideration of the demurrer, that the merits of the cause have not been tried, the court is not compelled to render a final judgment, but may, in its discretion, set aside the demurrer and remand the cause that a venire facias de novo may issue.10

105

106

Whenever a demurrer to the evidence

is allowed the jury may assess the damages conditionally, or they may be discharged without discharged without making the assessment. 107 But it is error for the court to retain the jury after the demurrer has been allowed, and, after overruling it, to have the damages assessed by the same jury.108 The usual and better practice is to discharge the jury without a conditional assessment of the damages. In such case, should the ruling be in favor of the party seeking to recover, the damages may be as sessed by another jury called for that pur pose, 109 or by the court by consent of the parties or upon the failure of either party to de

101 Plant v. Edwards, 85 Ind. 588.

102 Hall v. Browder, 5 Miss. (4 How.) 224. 103 Thomas v. Chicago, etc. Railway Co., 139 Ind.

462.

104 Oakland Home Ins. Co. v. Davis (Tex. Civ. App.), 33 S. W. Rep. 587.

105 Oakland Home Ins. Co. v. Davis (Tex. Civ. App.), 33 S. W. Rep. 587.

106 Gazzam v. Bank of Mobile, 1 Ala. 268. ¡See Duer. hagen v. U. S. Ins. Co., 2 Serg. & R. (Pa.) 185.

107 Humphreys v. West, 3 Rand. (Va.) 516; McCreary v. Fike, 2 Blackf. (Ind.) 374; Holmes v. Phoe nix Mut. Life Life Ins. Co., 49 Ind. 356; 1 Arch. Pr.

209.

108 Obaugh v. Finn, 4 Ark. 110.

109 McCreary v. Fike, 2 Blackt. (Ind.) 374; Andrews v. Hammond, 8 Blackf. (Ind.) 540; Lindley v. Kelley 42 Ind. 294; Strough v. Gear, 48 Ind. 100; North British, etc. Ins. Co. v. Crutchfield, 108 Ind. 518; Tidds' Pr. 865; Buller's Nisi Prius, 313.

112

mand jury.110 When the damages are unliquidated, the question as to their amount should always be submitted to a jury, unless the right to a jury is expressly waived by the parties. In some States it is held that the damages must in all cases be assessed by a jury, and it is always the safest practice to call a jury for this purpose. If such a jury is summond or evidence is heard by the court as to the amount of damages, after a demurrer to the evidence has been overruled, a motion for a new trial may be made because of an error in such subse113 quent proceeding. But, under the practice in most courts, an erroneous ruling on demurrer to the evidence cannot be presented by a motion for a new trial,114 but must be questioned by an assignment of error on appeal. 115 In Kansas and other States however where the laws provide generally that a motion for a new trial may be made to review any errors occurring at the trial, an erroneous ruling on a demurrer to the evidence may be taken advantage of by a motion for a new trial.116 Such an erroneous ruling is held to be clearly an error occurring at the trial, and, as such, must be presented to the trial court for review, or it will not be considered in the supreme court on appeal. 117

On the whole, it is clear that demurring to the evidence is a dangerous practice, by which the demurrant can succeed only when there is such a failure of evidence on his adversary's part, that he could have a verdict against him set aside: by which he is shut off from all benefit, not only from his own evidence, but from that of his adversary; and by which he waives the benefit of all exceptions which he has taken to prior rulings of the court upon the trial, and stands solely npon the total absence of evidence upon some material part of his adversary's case. LOUIS B. EWBANK.

Indianapolis, Ind.

110 Strough v. Gear, 48 Ind. 100; North British, etc. Ins. Co. v. Crutchfield, 108 Ind. 518.

11 Galveston, etc. Railway Co. v. Templeton, 87 Tex. 42.

112 Hanover Fire Ins. Co. v. Lewis, 23 Fla. 193. 113 Lindley v. Kelley, 42 Ind. 294; Strough v. Gear, 48 Ind. 100.

114 Strough v. Gear, 48 Ind. 100; Radcliff v. Radford, 96 Ind. 482.

115 Wabash, etc. Railway Co. v. Nice, 99 Ind. 152.

116 Lott v. Kansas City, etc. Railroad Co., 42 Kan.

203.

117 Gruble v. Ryus, 23 Kan. 195.

Supreme Court of Iowa, May 11, 1897.

A purchaser of land, who has paid part of the price, and fails to carry out his contract, cannot recover the money paid, though the contract does not provide for a forfeiture.

DEEMER, J.: According to the allegations of the petition, defendant on the 14th day of November, 1891, sold to the plaintiff certain real estate for the agreed price of $3,000, and on the same day executed a bond to convey, which recited that plaintiff had paid $100 down, and had executed his promissory note for the sum of $2,900, payable on the 3d day of January, 1892. This bond contains this concluding sentence: "Now, if the said Isaac Downey shall well and truly pay the full amount of said note, without any interest, then the said W. H. Riggs agrees to convey unto the said Isaac Downey, his heirs or assigns, by a good and sufficient deed, the abovedescribed premises; but, should said note not be paid by the time it becomes due and payable, then this obligation is to be null and void; otherwise in full force and virtue in law." At the time the note matured, plaintiff was sick and unable to pay the note; and defendant agreed to extend the time of the payment of the note until such reasonable time as plaintiff could go to Fairfield, make out the papers, and pay the money. On the day of February, 1892, plaintiff notified defendant that he was ready to pay said note and receive his deed. Defendant at that time refused to stand by the contract and complete the sale, and informed plaintiff that he would not let him have the land; that he could have his note, but not the money,—and has ever since refused to receive his money and deliver the deed. Afterwards defendant, without any request from plaintiff, returned his note, through the mail, but refused, and still refuses, to return the $100. Defendant answered, admitting the execution of the bond, the payment of the $100, and the delivery of the note; that plaintiff was sick at the time the note matured, and that he agreed to give him further time, but avers that this extension was only until a particular Saturday, and that plaintiff failed to make the payment on this particular day, or at any other since that time; that on the 25th day of January, 1892, plaintiff informed the defendant that he was unable to carry out his contract, and asked defendant to give him back his note and repay the $100; that soon thereafter he returned the note, through the mail, but that he refused to return the money, for the reason that he believes plaintiff has abandoned his contract. He further averred that plaintiff has never tendered the balance of the purchase price, and says that plaintiff has at no time been ready or able to pay the same. All other allegations of the petition are denied. The demurrer was to