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passengers. It seems that others were on the running board as well as appellee, a fact which might have been considered by the jury as to whether appellee was acting as a cautious and prudent person in standing upon the footboard. The jury found the width of the footboard, and that appellee was standing in an erect position, and that the side of the car slightly projected out over the footboard. From these latter facts the inference might follow that the right side of appellee was against the side of the upright post used in sustaining himself on the car. Whether the other persons on the footboard were toward the rear or the front of the car from appellee does not appear, nor does their position on the footboard appear, except as to appellee's companion. The fact that no other passenger was ever injured by coming in contact with the upper structural work of the bridge, during the long use thereof by appellant, was a fact to be considered by the jury, but that fact alone would not relieve appellant from liability, if it maintained its road so as to endanger the lives and limbs of its passengers while riding on that part of its cars so used by its invitation and with its permission, and recognized by the public as a place for the carriage of passengers.

In the case of Thane v. Traction Co., 191 Pa. 249, 253, 43 Atl. 136, 71 Am. St. Rep. 767, the court, in speaking of the rule applicable to the risk assumed by a passenger on the platform of a car in case of vacant seats inside, and when the car is crowded, held that, in the latter case, a passenger, if admitted upon the car "must stand on the platform with its rods, etc., to hold by, or inside with a strap for that purpose, he is presented with a choice of evils, and his action must be adjudged by the jury, while, on the other hand, the carrier by receiving him undertakes and gives him assurances that it will take care of him and guard him against accident as far as the circumstances permit." The case of West Chicago Street Ry. Co. v. Marks, 82 Ill. App. 185, in many respects, is very similar to the case now under consideration. In that case Marks was a passenger over the company's line crossing Desplaines Street Viaduct. He was riding on the footboard of a car, the seats of which were all occupied and the aisles and platform and footboards were partly filled by people standing. In crossing the viaduct appellee was struck by one of the upright iron posts of the truss and was knocked off of the car and injured. The distance of the car from the projections of the truss was estimated to be from 12 to 19 inches, and by using extra precautions, such as bending the body in toward the body of the car or by standing straight up and close against the side of the car, a passenger on the footboard could pass in safety. Marks claimed not to know of the viaduct being on that route until he was hit. The court in passing upon this case, after quoting from North Chicago Street Railway Co. v. Williams, 140 Ill,

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It has been held that it is inexcusable for a railroad company to permit an obstruction to stand so near its tracks as to render the use of the step or running board dangerous to life or limb, inasmuch as exceptional cases may arise when it is lawful and proper for even a passenger to use such running board' "— said that "such doctrine must be doubly sound, when, as in this case, the company has, by persistent usage, allowed, and tacitly invited, its passengers to ride upon the footboards of its cars in such perilous proximity to dangerous obstructions, without warning of the risk." And upon the question of contributory negligence: "It was for the jury to say whether appellee had knowledge or notice of the existence of the proximate danger, or ought, under the circumstances, to have had it. We do not say that if the appellee had known of the viaduct the cars were to cross, and of the location of the tracks with reference to the truss [our italics], he would not have been bound to use more than ordinary cars to avoid being hit, but we do hold that under the proved facts and circumstances ordinary care for his own safety was all appellee was required to exercise, and that the verdict has settled that question in his favor upon evidence that would not have properly warranted any other result." On the question in the case at bar, as to the ownership and maintenance of the bridge by the municipality, the court said "it was no concern of the jury, so far as this case was concerned, what relationship existed between the city of Chicago and the appellant with reference to the use of the viaduct, nor whether the tracks were laid in the place they occupied by virtue of municipal direction. If, as a matter of fact, it were negligence for the appellant to lay its tracks so near the truss, and to operate them there without warning to passengers, no arrangement between it and the city concerning the matter would excuse the negligence in an action for damages because of it. West Chicago St. R. R. Co. v. Annis, 165 Ill. 475, 46 N. E. 264; same case, 62 Ill. App. 180." In Elliott v. Newport St. Ry. Co., 18 R. I. 707, 28 Atl. 338, 31 Atl. 694, 23 L. R. A. 208, it is held that a passenger riding on the running board of a street car was charged with the duty of protecting himself against the usual and obvious perils to which the public highway is used, but not the danger of being hit by a trolley pole, and the question of negligence is one for the jury. In City Railway Co. v. Lee, 50 N. J. Law, 435, 14 Atl 883, 7 Am. St. Rep. 798, a footboard passenger was knocked off the car by colliding with a like passenger on another car going in the

opposite direction, held that, while such injured person was bound to take knowledge of the ordinary uses of the street, he was not presumed to know that the company's road was constructed or its cars so run as to render a position in which it invites him to ride a dangerous one, and the question of con tributory negligence is one for the jury. In Dickenson v. Port Huron & N. W. Ry. Co., 53 Mich. 43, 18 N. W. 553, it is held that the question of contributory negligence, where a passenger while on the running board of a car was injured by colliding with coal bins coming within 111⁄2 inches of the side of the car standing on the track and within two inches of the step upon which plaintiff stood, and which could have been seen from the approaching car for a distance of 1,200 feet, had the passenger looked, was for the jury. Without extending this opinion for the purpose of specially referring to other cases, see the following: Burns v. Bellefontaine Ry. Co., 50 Mo. 139; Nolan v. Brooklyn City, etc., Ry. Co., 87 N. Y. 63, 41 Am. Rep. 345; Cummings v. Worcester, etc., St. Ry. Co., 166 Mass. 220, 44 N. E. 126; Smith v. St. Paul City Ry. Co., 32 Minn. 1, 18 N. W. 827, 50 Am. Rep. 550; Faris v. Brooklyn City & N. R. Co. (Sup.) 61 N. Y. Supp. 670; Hassen v. Nassau Electric R. Co. (Sup.) 53 N. Y. Supp. 1069; Matz v. St. Paul City Ry. Co. (Minn.) 53 N. W. 1071; Graham v. McNeill (Wash.) 55 Pac. 631, 43 L. R. A. 300, 72 Am. St. Rep. 121; Corlin v. West End St. Ry. Co., 154 Mass. 197, 27 N. E. 1000.

From the record now before us it appears that at the time of the injury the night was dark and cloudy and with every appearance of rain. The jury found that had appellée been looking in the direction in which the car was moving he could have seen the bridge before he was injured, but whether in time to have changed his position and avoided the injury does not appear; but, under the presumption prevailing in favor of the general verdict and against the isolated facts, it may be presumed that he could not. His companion testified that he was facing toward the bridge, but did not see it until after the collision. We are therefore not convinced that there is such antagonism between the general verdict and the facts as specially found by the jury as to warrant us in saying that both cannot stand.

2. The second error relied on by appellant is the overruling of its motion for a new trial. What we have said in disposing of the first error in a large measure applies to the first and second subdivision discussed by appellant under this error, and is against appellant's contention. The case of Craighead v. Brooklyn City Ry. Co., 123 N. Y. 391, 25 N. E. 387, in our opinion is not applicable to the case at bar, for the reason that the facts in the two cases are widely different.

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Other reasons assigned for a new trial are based upon the ruling of the court in admitting evidence, over appellant's objection, tend

ing to prove the amount of money appellee was receiving per day for services at the time of his injury, and that instruction No. 7, given by the court upon its own motion, authorizing the jury in case they found for appellee to consider in assessing damages "any suffering, loss of time, loss of ability to earn money in his personal avocation at the time of the injury and any personal derangement or impairment of the plaintiff physically." Appellant contends that this evidence tended to prove, and this instruction permitted the jury to consider, special damages, when under the issues only general damages are allowed. A witness for plaintiff, on his original examination, was permitted to give evidence as to the kind of work appellee was doing and for whom, at or about the time of receiving the injuries of which he complained. Following this evidence he was asked this question: "Tell the jury what he [Sullivan] was earning per day or month at the time he received these injuries; where he was working, if you know." To this question appellant interposed the following objection: "I object to the question because it is not within the issues of the case, but seeks to prove an element of special damages not averred in the complaint. There is no damage claimed for the loss of earning capacity, and for that reason it is incompetent." The trial court overruled this objection, and the witness was permitted to answer as follows: "Well, he was earning $2 a day."

Appellee by his, complaint demanded of appellant only such damages as the law implies as resulting from his physical injuries alone, and are what may be termed general damages. There is no claim for special damages such as accrue from loss of time or for any interference with his business, trade or profession. In an action for personal injury, all damages which actually and proximately result from the wrongful act complained of may be recovered. While this is true, it is the settled law that, while the effect of the injury may cause a loss of time or interfere with the business, work, trade, or profession of the party injured, resulting in his damage, such damage is to be regarded as special, provable only when specifically averred in the complaint. This latter rule is based upon the theory that the law will not imply from the injury alone the damages peculiar to and resulting in each individual case. Lindley v. Dempsey, 45 Ind. 246; Ohio, etc., Ry. Co. v. Selby, 47 Ind. 471, 497, 17 Am. Rep. 719; Baldwin v. Western R. R. Co., 70 Mass. 333; Tomlinson v. Town of Derby, 43 Conn. 562; Krueger v. Chicago, etc., Ry. Co., 94 Mo. App. 458, 68 S. W. 220; Brown v. Chicago, etc., Ry. Co., 80 Mo. 457; Chicago, etc., Ry. Co. v. Emmert, 53 Neb. 237, 73 N. W. 540, 68 Am. St. Rep. 602; Chicago, etc., Ry. Co. v. Klauber, 9 Ill. App. 613; Slaughter v. Metropolitan St. Ry. Co., 116 Mo. 269, 23 S. W. 760; Wabash Western Ry. Co. v. Friedman, 146 Ill. 583, 30 N. E. 353, 34 N. E. 1111; Texas & P. Ry.

Co. v. Backelew, 3 Tex. Civ. App. 272, 22 S.
W. 994; Coontz v. Missouri Pac. Ry. Co., 115
Mo. 669, 22 S. W. 572; Hunter v. Stewart, 47
Me. 419; Comminge v. Stevenson, 76 Tex.
642, 13 S. W. 556; Stevenson v. Smith, 28
Cal. 102, 87 Am. Dec. 107; Hallock v. Belcher,
42 Barb. 199; Morris v. Winchester Co., 73
Conn. 680, 49 Atl. 180.

If appellee was entitled to prove the character of his business, which was that of conditioning race horses, and the amount of time lost on account of his injuries, and follow it up by proof that at the time he was injured he was receiving $2 a day, then on principle we see no reason why he might not, under allegations of a complaint merely describing his injuries, concluding with the general averment of damage, prove any damages, whether general or special, sustained for loss of time in any business, trade, or profession, limited only to the test of resulting damages. But this is not the rule, as will be seen from an examination of the authorities last above cited. By instruction No. 7 the jury was told that in assessing appellee's damages they might consider, among other things, "loss of time." The value of the time lost was fixed at $2 per day, and in our opinion, under the allegations of the complaint, was not a proper element of damages in the case at bar.

Appellant discusses one other cause for a. new trial; viz., that the court erred in giving instruction No. 3 asked by appellee. As this question may not arise on a second trial we will not consider it. A new trial should be granted.

Judgment reversed, with instructions to the lower court to sustain the motion for a new trial.

(38 Ind. App. 370)

COLLIER SHOVEL & STAMPING CO.
et al. v. CITY OF WASHINGTON.
(No. 5,122.)*

(Appellate Court of Indiana, Division No. 2.
Nov. 14, 1905.)

MUNICIPAL CORPORATIONS-CONTRACTS-DO-
NATIONS FOR PRIVATE PURPOSE.

A contract by a city to donate a sum of money to a corporation, if it would maintain a factory there for a certain period, is void, and on breach by the corporation the city cannot recover on a bond given by the corporation to secure performance.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 18451847.]

Appeal from Circuit Court, Pike County; E. A. Ely, Judge.

Action by the city of Washington against the Collier Shovel & Stamping Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

Padgett & Padgett and Herod & Herod (Hugh D. Merrifield, of counsel), for appellants. O'Neal & O'Neal, for appellee.

ROBY, J. The Collier Shovel & Stamping Company, Austin F. Cabel, and Richard C. Davis on March 29, 1901, executed to appellee • Rehearing denied. Transfer to Supreme Court denied.

their bond in the penal sum of $2,500 conditioned as follows: "The conditions of the above obligations are such that, whereas the above corporation and the city of Washington have entered into a written agreement in duplicate whereby the said corporation has undertaken to perform the stipulation and agreement in said undertaking set forth: Now, if the said corporation well and faithfully fulfills its said agreement and undertaking, then this obligation to be void, else to remain in full force and virtue in law." By the contract referred to the shovel company agreed to construct a plant for the manufacture of shovels, shovel handles, and pressed steel work at the town of Washington, employing therein 50 people at the start, and 150 when in full operation, to keep said plant running for at least 10 years, not to sell to any trust, and not to sell to any one unless the purchaser assumed all its obligations. The breach averred is that the said Collier Shovel & Stamping Company ceased to operate its plant in September, 1901, and since said time has continued to fail to operate its plant; that the stockholders sold out all the machinery connected with said plant and all its property used in connection therewith, and all other property owned by it was by agreement withdrawn and refunded to the stockholders, since which time there has been no property belonging to said company and it has ceased to do business. Appellant answered by a general denial, and in a second paragraph set up the agreement and undertaking substantially as is done by the plaintiff, averring further a sale of said plant to a corporation of Hammond, and the performance of all the terms and conditions of said contract by said purchasing corporation at said town of Hammond. A demurrer was sustained to this answer, and, in view of the fact that the central purpose of the contract was to procure the erection and operation of the plant at Washington, the correctness of such ruling is manifest.

The evidence shows that appellee is a municipal corporation of this state; that the shovel company was a private corporation; that the common council of the appellee corporation appropriated and paid to the shovel company $2,500 of the public funds, which fund formed the consideration for the contract, failure to perform which is alleged as the breach of the bond sued upon. The terms of said contract relative to said money, and the payment, and repayment thereof, are as follows: "And, whereas, the city of Washington, by its common council, duly accepted said proposition on condition that said company when started in business would keep its plant running for at least ten years as contemplated by said proposition, and not to sell to any trust whatsoever, and not to sell to any one unless the purchaser would assume all obligations of the party of the first part; and on further consideration that said company would give to the party of the second part a bond with good and sufficient securities

to secure the faithful performance of its obligations to the city, and agreed to place in the hands, and did place in the hands, of John T. Neal twenty-five hundred dollars as evidence of good faith, to be by him held in trust until said company should complete its plant and start in business; and, whereas said company has its plant completed and has now started in business: Now, therefore, it is agreed that the said John T. Neal is requested to turn said money over to said company to be used by said company without interest for the period of ten years, or for such period as said company shall fully comply with the conditions of this agreement, and in the event said company shall faithfully carry out its agree. ment for the full period of ten years, then said money is to become the money of said company without any further claims of the city thereto. But in the event that said company shall fail to fully carry out its undertakings for the full period of ten years, then from the time of such failures said twentyfive hundred dollars, with interest from the date of such failure, shall be due from said company to said city, and shall be payable without relief from the valuation and appraisement laws of the state of Indiana.” The cause was tried without a jury, a finding made in favor of appellee, and judgment rendered thereon for $2,726.20. Appellants' motion for a new trial was overruled, and the action of the court therein, as well as in overruling the demurrers to the complaint, are assigned for error.

Appellee's right to recover, in any event, depends upon the validity of this contract; the action being expressly founded upon it. Funds raised by taxation cannot be applied to private uses. The very essence of the right of government to levy a tax lies in the public nature of the use to be made of the moneys thus collected. McClelland, Trustee, v. State ex rel. Speer, 138 Ind. 321, 37 N. E. 1089; City of Parkersburg v. Brown et al., 106 U. S. 487, 27 L. Ed. 238; Cooley's Constitutional Limitations (7th Ed.) 184, 243, 678. There have been many attempts made to appropriate public funds for the encouragement of manufactories, but the power to do so has been universally denied. The benefit resulting to the local public of a town by the establishment of manufactories is not different in kind from the benefit to such public arising from the establishment and operation of grocery stores. The manufacturer, the merchant, the mechanic, and the laborer are equal promoters of the public good and equally entitled to public aid. No line can be drawn in favor of one of them to the exclusion of the others, and a recognition of the right to thus distribute money procured by taxation would subject the municipalities to importunities and impositions innumerable. Citizens' Savings & Loan, etc., v. Topeka City, 87 U. S. 655, 22 L. Ed. 455; Cole v. City of La Grange, 113 U. S. 1, 5 Sup. Ct. 416, 28 L. Ed. 896; Sutherland-Innes Co. v. Evart, 86 Fed. 601,

30 C. C. A. 305; Feldman v. State, 23 S. C. 63, 55 Am. Rep. 6; Dodge v. Mission Township, 107 Fed. 831, 46 C. C. A. 661, 54 L. R. A. 242. The contract sued upon is not ultra vires, but it is void as against public policy. Elkhart Lodge et al. v. Crary, 98 Ind. 242, 49 Am. Rep. 746; Brown v. First National Bank of Columbus, 137 Ind. 655, 37 N. E. 158, 24 L. R. A. 206; Greenhood on Public Policy, 35. A contract void as against public policy stands upon the same footing as one made in contravention of the statute. Franklin National Bank et al. v. Whitehead et al., 149 Ind. 560, 49 N. E. 592, 39 L. R. A. 725, 63 Am. St. Rep. 302; Winchester, etc., Co. v. Veal, 145 Ind. 506, 41 N. E. 334, 44 N. E. 353; State Bank v. Coquillard, 6 Ind. 232.

To the general rule of invalidity, which is presumed when the statute is silent and contains nothing from which the contrary can be properly inferred, there is a well-settled exception. Sometimes contracts are prohibited for the protection of one of the parties, and, "whenever a case falls within the limitations and not within the general rule, the courts may give relief against the improper transaction, or even enforce this tainted agreement, at the suit of one of the parties." Pomeroy's Equity Jurisprudence, § 403. This is but an expression of the maxim that "the law ceases with the reason thereof." Deming v. State, 23 Ind. 416; Harris v. Runnels, 12 How. 79, 13 L. Ed. 901; Scotten v. State, etc., 51 Ind. 52; Walter A. Wood Mowing, etc., Machine Co. v. Caldwell, 54 Ind. 270, 276, 23 Am. Rep. 641; New England Fire & Marine Ins. Co. v. Robinson, 25 Ind. 536; State ex rel. v. Levi et ux., 99 Ind. 77; Wabash R. R. Co. v. Kelley, 153 Ind. 119, 52 N. E. 152, 54 N. E. 752. The essence of the policy, which requires contracts for the application of public funds to private purposes to be held void, lies in the protection of such fund. Winchester, etc., Co. v. Veal, supra; Armstrong v. State, 145 Ind. 609, 43 N. E. 866. If to deny recovery upon the contract in this case is to go counter to the purposes for the bringing about of which the invalidity of such contracts is declared, then such holding should not be made. In other words, if the reason ceases, the law ceases with it. The right of the city to protect itself against the unlawful depletion of its funds is undoubted, but it is not essential to such end that the validity of the contract sued upon be asserted; while, if the city may recover upon contracts of this nature, the doctrine denying the right to thus contract becomes at once a mere platitude, and every practical obstacle to the loaning of credit by municipalities to private enterprises of every sort is removed. The reason of the law therefore impels us to hold that the contract sued upon is void. Being void, a judgment based upon it will have to be vacated.

Judgment is reversed, and cause remanded, with instructions to sustain appellants' demurrer to the complaint and for further proceedings consistent herewith.

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Parol evidence is admissible to complete the description, "the land north and west of the graveyard," in a contract of sale.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 2121.]

3. SPECIFIC PERFORMANCE-PAROL CONTRACT -PART PERFORMANCE.

A contract of sale of land is taken out of the statute of frauds, and will be enforced, where partial payment is made and the vendor gives and the purchaser takes possession of the land.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Specific Performance, § 126.]

Appeal from Circuit Court, Monroe County; Jas. B. Wilson, Judge.

Action by Ira E. Stansifer against Martha J. McFarland. Judgment for plaintiff, and defendant appeals. Affirmed.

Miers, Corr & Miers, for appellant. Duncan & Batman, for appellee.

COMSTOCK, J. The complaint is in two paragraphs. The first alleges that the appellant was the owner of certain real estate in Monroe county, and that she entered into a contract with appellee, by which she agreed to convey to him a certain part of said real estate described in the complaint. It alleges that the contract was in writing, and sets forth a copy of said written contract, which is as follows: "August 31, 1903. Received of Ira E. Stansifer fifty dollars ($50) in payment for the land north and west of the graveyard, the same to be valued or sold at twelve dollars per acre, and the remainder to be paid on receipt of deed. Martha J. McFarland.” The paragraph alleges that in pursuance of said agreement he entered into possession of said real estate, and made valuable and lasting improvements thereon, and continued in possession thereof up to the present time; that he tendered appellant the balance of the puchase money for such real estate, and demanded a deed therefor, which appellant refused to make. The second paragraph of the complaint is like the first, except that the contract is not alleged to be in writing.

Appellant's demurrer to the complaint was overruled. She then answered, first, by general denial, second, by special answer, alleging that appellant agreed to sell appellee certain real estate which was north and west of a certain graveyard, and east of a fence, and south of a certain highway, and being about two acres less than the real estate described in the complaint; that said real estate

was to be paid for at the rate of $12 per acre, and was to be surveyed in order to determine the amount, which was afterwards surveyed by the parties, and is the same real estate described in the answer; that appellee paid $50, and was to pay the remainder upon the execution and delivery of a deed by appellant; that appellee directed the deed to be made to himself and one Festus Thresher; that in pursuance of said agreement and request appellant made and tendered a deed for the real estate described in the answer, naming appellee and Festus Thresher as grantees, but that appellee refused to accept said deed, and demanded that other land which appellant did not sell should be included therein; that appellee did not take possession of said real estate; that appellant never consented that he should take possession thereof until a full compliance with the terms of said sale; that said agreement was in parol. Appellee's demurrer to the second paragraph of the answer was sustained. Upon the trial the court found for the plaintiff, and rendered judgment directing appellant to convey to appellee that part of the real estate described in the second paragraph of the answer; and, upon failure of appellant to make said conveyance, a commissioner was appointed to convey said real estate to appellee.

Appellant contends that the court erred in sustaining the demurrer to the second paragraph of answer. Under the first paragraph of answer, evidence of every fact averred in the second was admissible. There was, therefore, no error in sustaining the demurrer thereto.

Did the court err in overruling appellant's motion for a new trial? There is no question as to the agreement to sell the land. Was it in parol or in writing? The receipt already appears. "A receipt signed by the vendor of real estate for part of the purchase money may constitute a sufficient memorandum of sale." Waterman on Specific Performance, §§ 235-237. In Tewksbury v. Howard, 138 Ind. 103, 37 N. E. 355, the court say: "The rule often recognized in this state is that where the description given is consistent, but incomplete, and its completion does not require the contradiction or alteration of that given, nor that a new description should be introduced, parol evidence may be received to complete the description"-citing a number of cases. See, also, Maris v. Masters, 31 Ind. App. 241, 67 N. E. 699. Interpreting the decisions, and they are numerous, liberally in favor of appellant, there may be some question as to the sufficiency of the receipt alone to take the transaction out of the statute of frauds. It is, however, a settled rule that where a vendor takes possession under a parol contract for the conveyance of lands, resting upon a valuable consideration, and has made permanent and valuable improvements, specific performance of the contract will be enforced. Swales v. Jackson, 126 Ind. 282, 26 N. E. 62.

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