Imágenes de páginas

passengers. It seems that others were on the , 275, 29 N. E. 672: "'Where a railroad comrunning board as well as appellee, a fact pany places its tracks so near an obstruction, which might have been considered by the which it is necessary for its cars to pass, that jury as to whether appellee was acting as a i its passengers, in getting on or off the cars, and cautious and prudent person in standing upon while upon them, are in danger of being inthe footboard. The jury found the width of jured by contact with such obstruction, it is a the footboard, and that appellee was standing fair question for the jury whether the comin an erect position, and that the side of the pany is or is not guilty of negligence. * * * car slightly projected out over the footboard. It has been held that it is inexcusable for a From these latter facts the inference might railroad company to permit an obstruction to follow that the right side of appellee was stand so near its tracks as to render the use against the side of the upright post used in of the step or running board dangerous to life sustaining himself on the car. Whether the or limb, inasmuch as exceptional cases may other persons on the footboard were toward arise when it is lawful and proper for even a the rear or the front of the car from appellee passenger to use such running board'"does not appear, nor does their position on said that "such doctrine must be doubly the footboard appear, except as to appellee's sound, when, as in this case, the company companion. The fact that no other passenger has, by persistent usage, allowed, and tacitly was ever injured by coming in contact with invited, its passengers to ride upon the footthe upper structural work of the bridge, dur boards of its cars in such perilous proximity ing the long use thereof by appellant, was a

to dangerous obstructions, without warning fact to be considered by the jury, but that of the risk.” And upon the question of confact alone would not relieve appellant from tributory negligence: “It was for the jury to liability, if it maintained its road so as to

say whether appellee had knowledge or notice endanger the lives and limbs of its passengers of the existence of the proximate danger, or while riding on that part of its cars so used

ought, under the circumstances, to have had by its invitation and with its permission, and

it. We do not say that if the appellee had recognized by the public as a place for the

known of the viaduct the cars were to cross, carriage of passengers.

and of the location of the tracks with refer. In the case of Thane v. Traction Co., 191

ence to the truss (our italics], he would not Pa. 249, 253, 43 Atl. 136, 71 Am. St. Rep. have been bound to use more than ordinary 767, the court, in speaking of the rule ap

cars to avoid being bit, but we do hold that plicable to the risk assumed by a passenger on

under the proved facts and circumstances ordi. the platform of a car in case of vacant seats

nary care for his own safety was all apinside and when the car is crowded. held i pellee was required to exercise, and that the that, in the latter case, a passenger, if ad

verdict has settled that question in his favor mitted upon the car “must stand on the plat

upon evidence that would not have properly form with its rods, etc., to hold by, or inside

warranted any other result.” On the queswith a strap for that purpose, he is presented

tion in the case at bar, as to the ownership with a choice of evils, and his action must be

and maintenance of the bridge by the muadjudged by the jury, while, on the other

nicipality, the court said "it was no concern band, the carrier by receiving him undertakes

of the jury, so far as this case was concerned, and gives him assurances that it will take

what relationship existed between the city of care of him and guard him against accident Chicago and the appellant with reference to as far as the circumstances permit.” The

the use of the viaduct, nor whether the tracks case of West Chicago Street Ry. Co. v. Marks,

were laid in the place they occupied by virtue 82 Ill. App. 185, in many respects, is very

of municipal direction. If, as a matter of similar to the case now under consideration.

fact, it were negligence for the appellant to In that case Marks was a passenger over the lay its tracks so near the truss, and to operate company's line crossing Desplaines Street | them there without warning to passengers, no Viaduct. He was riding on the footboard of arrangement between it and the city concerna car, the seats of which were all occupied ing the matter would excuse the negligence in and the aisles and platform and footboards an action for damages because of it. West were partly filled by people standing. In Chicago St. R. R. Co. v. Annis, 165 Ill. 475, crossing the viaduct appellee was struck by 46 N. E. 264; same case, 62 Ill. App. 180." one of the upright iron posts of the truss and In Elliott v. Newport St. Ry. Co., 18 R. I. was knocked off of the car and injured. The 707, 28 Atl. 338, 31 Atl. 694, 23 L. R. A. 208, distance of the car from the projections of the it is held that a passenger riding on the runtruss was estimated to be from 12 to 19 ning board of a street car was charged with inches, and by using extra precautions, such the duty of protecting himself against the as bending the body in toward the body of usual and obvious perils to which the public the car or by standing straight up and close highway is used, but not the danger of being against the side of the car, a passenger on the hit by a trolley pole, and the question of footboard could pass in safety. Marks claim- | negligence is one for the jury. In City Railed not to know of the viaduct being on that way Co. v. Lee, 50 N. J. Law, 435, 14 Atl. route until he was hit. The court in passing 883, 7 Am. $t. Rep. 798, a footboard passenupon this case, after quoting from North Chi ger was knocked off the car by colliding with cago Street Railway Co. v. Williams, 140 Ill. a like passenger on another car going in the opposite direction, held that, while such in. ¡ ing to prove the amount of money appellee jured person was bound to take knowledge of was receiving per day for services at the time the ordinary uses of the street, he was not of his injury, and that instruction No. 7, presumed to know that the company's road given by the court upon its own motion, auwas constructed or its cars so run as to ren. thorizing the jury in case they found for der a position in which it invites him to ride appellee to consider in assessing damages & dangerous one, and the question of con. "any suffering, loss of time, loss of ability to 'tributory negligence is one for the jury. In earn money in his personal avocation at the Dickenson v. Port Huron & N. W. Ry. Co., 53 time of the injury and any personal derangeMich. 43, 18 N. W. 553, it is held that the ment or impairment of the plaintiff physquestion of contributory negligence, where a ically." Appellant contends that this evipassenger while on the running board of a dence tended to prove, and this instruction car was injured by colliding with coal bins permitted the jury to consider, special damcoming within 1142 inches of the side of the ages, wbén under the issues only general car standing on the track and within two damages are allowed. A witness for plaintiff, inches of the step upon which plaintiff stood, on his original examination, was permitted and which could have been seen from the ap to give evidence as to the kind of work approaching car for a distance of 1,200 feet, had pellee was doing and for whom, at or about the passenger looked, was for the jury. the time of receiving the injuries of which he Without extending this opinion for the pur complained. Following this evidence he was pose of specially referring to other cases, see asked this question: "Tell the jury what he the following: Burns v. Bellefontaine Ry. (Sullivan) was earning per day or month at Co., 50 Mo. 139; Nolan v. Brooklyn City, etc., the time he received these injuries; where Ry. Co., 87 N. Y. 63, 41 Am. Rep. 345; Cum he was working, if you know." To this quesmings v. Worcester, etc., St. Ry. Co., 166 tion appellant interposed the following obMass. 220, 44 N. E. 126; Smith v. St. Paul jection: "I object to the question because it City Ry. Co., 32 Minn. 1, 18 N. W. 827, is not within the issues of the case, but seeks 50 Am. Rep. 350; Faris v. Brooklyn City & to prove an element of special damages not N. R. Co. (Sup.) 61 N. Y. Supp. 670; Hassen averred in the complaint. There is no damv. Nassau Electric R. Co. (Sup.) 53 N. Y. age claimed for the loss of earning capacity, Supp. 1069; Matz v. St. Paul City Ry. Co. and for that reason it is incompetent.” The (Minn.) 53 N. W. 1071; Graham v. McNeill trial court overruled this objection, and the (Wash.) 55 Pac. 631, 43 L. R. A. 800, 72 Am. witness was permitted to answer as follows: St. Rep. 121: Corlin v. West End St. Ry. Co., "Well, he was earning $2 a day." 154 Mass. 197, 27 N. E. 1000..

Appellee by his, complaint demanded of From the record now before us it appears appellant only such damages as the law imthat at the time of the injury the night was plies as resulting from his physical injuries dark and cloudy and with every appearance alone, and are what may be termed general of rain. The jury found that had appellee damages. There is no claim for special dambeen looking in the direction in which the car ages such as accrue from loss of time or for was moving he could have seen the bridge be any interference with his business, trade or fore be was injured, but whether in time to profession.' In an action for personal injury, have changed his position and avoided the all damages which actually and proximately injury does not appear; but, under the pre result from the wrongful act complained of sumption prevailing in favor of the general may be recovered. While this is true, it is verdict and against the isolated facts, it may the settled law that, while the effect of the be presumed that he could not. His com injury may cause a loss of time or interfere panion testified that he was facing toward the with the business, work, trade, or profession bridge, but did not see it until after the colli of the party injured, resulting in his damage, sion. We are therefore not convinced that such damage is to be regarded as special, there is sucb antagonism between the general provable only when specifically averred in the verdict and the facts as specially found by complaint. This latter rule is based upon the the jury as to warrant us in saying that both theory that the law will not imply from the cannot stand.

injury alone the damages peculiar to and re2. The second error relied on by appellant sulting in each individual case. Lindley v. is the overruling of its motion for a new trial. Dempsey, 45 Ind. 246; Ohio, etc., Ry. Co. v, What we have said in disposing of the first Selby, 47 Ind. 471, 497, 17 Am. Rep. 719; error in a large measure applies to the first Baldwin v. Western R. R. Co., 70 Mass. 333; and second subdivision discussed by appellant Tomlinson v. Town of Derby, 43 Conn. 562; under this error, and is against appellant's | Krueger v. Chicago, etc., Ry. Co., 94 Mo. App. contention. The case of Craighead v. Brook. 458, 68 S. W. 220; Brown V. Chicago, etc., lyn City Ry. Co., 123 N. Y. 391, 25 N. E. 387, Ry. Co., 80 Mo. 457; Chicago, etc., Ry. Co. v. in our opinion is not applicable to the case Emmert, 53 Neb. 237, 73 N. W. 540, 68 Am. at bar, for the reason that the facts in the St. Rep. 602; Chicago, etc., Ry. Co. v. Klauber, two cases are widely different.

9 Ill. App. 613; Slaughter v. Metropolitan St. Other reasons assigned for a new trial are Ry. Co., 116 Mo. 269, 23 S. W. 760; Wabash based upon the ruling of the court in admit Western Ry. Co. v. Friedman, 146 111. 583, ting evidence, over appellant's objection, tend- | 30 N. E. 353, 34 N. E. 1111; Texas & P. Ry. Co. v. Backelew, 3 Tex. Civ. App. 272, 22 S. 1 their bond in the penal sum of $2,500 condiW. 994; Coontz v. Missouri Pac. Ry. Co., 115 tioned as follows: “The conditions of the Mo. 669, 22 S. W. 572; Hunter v. Stewart, 47 above obligations are such tbat, whereas the Me. 419; Comminge v. Stevenson, 76 Tex. above corporation and the city of Washington 642, 13 S. W. 556; Stevenson v. Smith, 28 have entered into a written agreement in Cal. 102, 87 Am. Dec. 107; Hallock v. Belcher, duplicate whereby the said corporation bas 42 Barb. 199; Morris v. Winchester Co., 73 undertaken to perform the stipulation and Conn. 680, 49 Atl. 180.

agreement in said undertaking set forth: If appellee was entitled to prove the char Now, if the said corporation well and faithacter of his business, which was that of con- fully fulfills its said agreement and underditioning race horses, and the amount of time taking, then this obligation to be void, else to lost on account of his injuries, and follow it remain in full force and virtue in law." By up by proof that at the time he was injured the contract referred to the shovel company he was receiving $2 a day, then on principle agreed to construct a plant for the manufacwe see no reason why he might not, under al ture of shovels, shovel bandles, and pressed legations of a complaint merely describing steel work at the town of Washington, emhis injuries, concluding with the general aver ploying therein 50 people at the start, and 150 ment of damage, prove any damages, whether when in full operation, to keep said plant general or special, sustained for loss of time running for at least 10 years, not to sell to in any business, trade, or profession, limiteu any trust, and not to sell to any one unless only to the test of resulting damages. But the purchaser assumed all its obligations. this is not the rule, as will be seen from an The breach averred is that the said Collier examination of the authorities last above

Shovel & Stamping Company ceased to opercited. By instruction No. 7 the jury was

ate its plant in September, 1901, and since told that in assessing appellee's damages they said time has continued to fail to operate its might consider, among other things, “loss of

plant; that the stockholders sold out all the time.” The value of the time lost was fixed

machinery connected with said plant and all at $2 per day, and in our opinion, under the

its property used in connection therewith, and allegations of the complaint, was not a proper all other property owned by it was by agree element of damages in the case at bar.

ment withdrawn and refunded to the stockAppellant discusses one other cause for a. holders, since which time there has been no new trial; viz., that the court erred in giving

property belonging to said company and it has instruction No. 3 asked by appellee. As this

ceased to do business. Appellant answered question may not arise on a second trial we

by a general denial, and in a second parawill not consider it. A new trial should be

graph set up the agreement and undertaking granted.

substantially as is done by the plaintiff, Judgment reversed, with instructions to

averring further a sale of said plant to a corthe lower court to sustain the motion for a

poration of Hammond, and the performance new trial.

of all the terms and conditions of said con

tract by said purchasing corporation at said (38 Ind. App. 370)

town of Hammond. A demurrer was 808COLLIER SHOVEL & STAMPING CO. tained to this answer, and, in view of the fact et al. V. CITY OF WASHINGTON. that the central purpose of the contract was (No. 5,122.)*

to procure the erection and operation of the (Appellate Court of Indiana, Division No. 2.

plant at Washington, the correctness of such Nov. 14, 1905.)


The evidence shows that appellee is a muNATIONS FOR PRIVATE PURPOSE. A contract by a city to donate a sum of

nicipal corporation of this state; that the money to a corporation, if it would maintain shovel company was a private corporation; a factory there for a certain period, is void, and that the common council of the appellee coron breach by the corporation the city cannot re

poration appropriated and paid to the shovel cover on a bond given by the corporation to secure performance.

company $2,500 of the public funds, whicb (Ed. Note.—For cases in point, see vol. 36, fund formed the consideration for the conCent. Dig. Municipal Corporations, $8 1845 tract, failure to perform which is alleged as 1847.)

the breach of the bond sued upon. The terms Appeal from Circuit Court, Pike County; of said contract relative to said money, and E. A. Ely, Judge.

the payment, and repayment thereof, are as Action by the city of Washington against follows: "And, whereas, the city of Washthe Collier Shovel & Stamping Company and ington, by its common council, duly accepted others. From a judgment for plaintiff, de said proposition on condition that said comfendants appeal. Reversed.

pany when started in business would keep its Padgett & Padgett and Herod & Herod plant running for at least ten years as con(Hugh D. Merrifield, of counsel), for appel templated by said proposition, and not to sell lants. O'Neal & O'Neal, for appellee.

to any trust whatsoever, and not to sell to

any one unless the purchaser would assume ROBY, J. The Collier Shovel & Stamping all obligations of the party of the first part: Company, Austin F. Cabel, and Richard C. and on further consideration that said comDavis on March 29, 1901, executed to appellee pany would give to the party of the second

• Rehearing denied. Transfer to Supreme Court | part a bond with good and sufficient securities denied.

to secure the faithful performance of its obli- , 30 C. C. A. 305; Feldman v. State, 23 S. C. gations to the city, and agreed to place in the 63, 55 Am. Rep. 6; Dodge v. Mission Town. hands, and did place in the hands, of John T. | ship, 107 Fed. 831, 46 C. C. A. 661, 54 L. R. Neal twenty-five hundred dollars as evidence A. 242. The contract sued upon is not ultra of good faith, to be by him held in trust until vires, but it is void as against public policy. said company should complete its plant and Elkhart Lodge et al. v. Crary, 98 Ind. 242, start in business; and, whereas said company 49 Am. Rep. 746; Brown v. First National has its plant completed and has now started in Bank of Columbus, 137 Ind. 655, 37 N. E. business: Now, therefore, it is agreed that 158, 24 L. R. A. 206; Greenhood on Public the said John T. Neal is requested to turn Policy, 35. A contract void as against public said money over to said company to be used policy stands upon the same footing as one by said company without interest for the made in contravention of the statute. Frankperiod of ten years, or for such period as said lin National Bank et al. v. Whitehead et al., company shall fully comply with the condi- 149 Ind. 560, 49 N. E. 592, 39 L. R. A. 725, tions of this agreement, and in the event said 63 Am. St. Rep. 302; Winchester, etc., Co. company shall faithfully carry out its agree. v. Veal, 145 Ind. 506, 41 N. E. 334, 44 V. E. ment for the full period of ten years, then 353; State Bank v. Coquillard, 6 Ind. 232. said money is to become the money of said To the general rule of invalidity, which is company without any further claims of the | presumed when the statute is silent and concity thereto. But in the event that said com- tains nothing from which the contrary can be pany shall fail to fully carry out its under properly inferred, there is a well-settled extakings for the full period of ten years, then ception. Sometimes contracts are prohibited from the time of such failures said twenty for the protection of one of the parties, and, five hundred dollars, with interest from the | "whenever a case falls within the limitations date of such failure, shall be due from said and not within the general rule, the courts company to said city, and shall be payable may give relief against the improper transacwithout relief from the valuation and ap- tion, or even enforce this tainted agreement, praisement laws of the state of Indiana.” at the suit of one of the parties." Pomeroy's The cause was tried without a jury, a finding Equity Jurisprudence, & 403. This is but an made in favor of appellee, and judgment ren- expression of the maxim that “the law ceases dered thereon for $2,726.20. Appellants' with the reason thereof.” Deming v. State, motion for a new trial was overruled, and the 23 Ind. 416; Harris v. Runnels, 12 How. 79, action of the court therein, as well as in over- | 13 L. Ed. 901; Scotten v. State, etc., 51 Ind. ruling the demurrers to the complaint, are 52; Walter A. Wood Mowing, etc., Machine assigned for error.

Co. v. Caldwell, 54 Ind. 270, 276, 23 Am. Appellee's right to recover, in any event, Rep. 641; New England Fire & Marine Ins. depends upon the validity of this contract; Co. v. Robinson, 25 Ind. 536; State ex rel. v. the action being expressly founded upon it. Levi et ux., 99 Ind. 77; Wabash R. R. Co. v. Funds raised by taxation cannot be applied to Kelley, 153 Ind. 119, 52 N. E. 152, 54 N. E. 752. private uses. The very essence of the right | The essence of the policy, which requires conof government to levy a tax lies in the public tracts for the application of public funds to nature of the use to be made of the moneys private purposes to be held void, lies in the thus collected. McClelland, Trustee, v. State protection of such fund. Winchester, etc., ex rel. Speer, 138 Ind. 321, 37 N. E. 1089; Co. v. Veal, supra; Armstrong v. State, 145 City of Parkersburg v. Brown et al., 106 U. Ind. 609, 43 N. E. 866. If to deny recovery S. 487, 27 L. Ed. 238; Cooley's Constitutional upon the contract in this case is to go counter Limitations (7th Ed.) 184, 243, 678. There to the purposes for the bringing about of have been many attempts made to appropri which the invalidity of such contracts is deate public funds for the encouragement of clared, then such holding should not be made. manufactories, but the power to do so has In other words, if the reason ceases, the law been universally denied. The benefit result ceases with it. The right of the city to proing to the local public of a town by the estab tect itself against the unlawful depletion of lishment of manufactories is not different in its funds is undoubted, but it is not essential kind from the benefit to such public arising to such end that the validity of the contract from the establishment and operation of sued upon be asserted; while, if the city may grocery stores. The manufacturer, the mer recover upon contracts of this nature, the chant, the mechanic, and the laborer are equal doctrine denying the right to thus contract promoters of the public good and equally en. becomes at once a mere platitude, and every titled to public aid. No line can be drawn in practical obstacle to the loaning of credit by favor of one of them to the exclusion of the municipalities to private enterprises of every others, and a recognition of the right to thus sort is removed. The reason of the law theredistribute money procured by taxation would fore impels us to hold that the contract sued subject the municipalities to importunities upon is void. Being void, a judgment based and impositions innumerable. Citizens' Sav. | upon it will have to be vacated. ings & Loan, etc., v. Topeka City, 87 U. S. 655, Judgment is reversed, and cause remanded, 22 L. Ed. 455; Cole v. City of La Grange, with instructions to sustain appellants' de113 U. S. 1, 5 Sup. Ct. 416, 28 L. Ed. 896; | murrer to the complaint and for further proSutherland-Innes Co. v. Evart, 86 Fed. 601, "ceedings consistent herewith.

(36 Ind. 486)

was to be paid for at the rate of $12 per MCFARLAND V. STANSIFER. (No. 5,221.) acre, and was to be surveyed in order to (Appellate Court of Indiana, Division No. 2. determine the amount, which was afterwards Nov. 14, 1905.)

| surveyed by the parties, and is the same real 1. PLEADING - ANSWER - GENERAL DENIAL estate described in the answer; that appellee AND SPECIAL ALLEGATIONS.

paid $50, and was to pay the remainder upon Sustaining a demurrer to the second para

the execution and delivery of a deed by apgraph of the answer is not error, where every fact averred therein may be proved under the

pellant; that appellee directed the deed to be general denial of the first paragraph.

made to himself and one Festus Thresher; (Ed. Note.For cases in point, see vol. 39, that in pursuance of said agreement and Cent. Dig. Pleading, $ 284.]

request appellant made and tendered a deed 2. VENDOR AND PURCHASER-DESCRIPTION

for the real estate described in the answer, PAROL EVIDENCE. Parol evidence is admissible to complete

naming appellee and Festus Thresher as the description, “the land north and west of grantees, but that appellee refused to ac. the graveyard," in a contract of sale.

cept said deed, and demanded that other [Ed. Note. For cases in point, see vol. 20, land which appellant did not sell should be Cent. Dig. Evidence, 2121.)

included therein; that appellee did not take 3. SPECIFIC PERFORMANCE-PAROL CONTRACT

possession of said real estate; that appellant -PART PERFORMANCE A contract of sale of land is taken out of

never consented that he should take possesthe statute of frauds, and will be enforced, sion thereof until a full compliance with the where partial payment is made and the vendor terms of said sale; that said agreement was gives and the purchaser takes possession of the

in parol. Appellee's demurrer to the second land. (Ed. Note.--For cases in point, see vol. 44,

paragraph of the answer was sustained. UpCent. Dig. Specific Performance, g 126.]

on the trial the court found for the plaintiff,

and rendered judgment directing appellant to Appeal from Circuit Court, Monroe County;

convey to appellee that part of the real estate Jas. B. Wilson, Judge.

described in the second paragraph of the anAction by Ira E. Stansifer against Martha

swer; and, upon failure of appellant to make J. McFarland. Judgment for plaintiff, and

said conveyance, a commissioner was appointdefendant appeals. Affirmed.

ed to convey said real estate to appellee. Miers, Corr & Miers, for appellant. Duncan Appellant contends that the court erred in & Batman, for appellee.

sustaining the demurrer to the second para

graph of answer. Under the first paragraph COMSTOCK, J. The complaint is in two of answer, evidence of every fact averred in paragraphs. The first alleges that the ap the second was admissible. There was, there pellant was the owner of certain real estate fore, no error in sustaining the demurrer in Monroe county, and that she entered into thereto. a contract with appellee, by which she agreed Did the court err in overruling appellant's to convey to him a certain part of said real motion for a new trial? There is no question estate described in the complaint. It alleges as to the agreement to sell the land. Was that the contract was in writing, and sets it in parol or in writing? The receipt al. forth a copy of said written contract, which is ready appears. "A receipt signed by the as follows: "August 31, 1903. Received of vendor of real estate for part of the purIra E. Stansifer fifty dollars ($50) in payment chase money may constitute a sufficient memfor the land north and west of the graveyard, orandum of sale." Waterman on Specific the same to be valued or sold at twelve dol. Performance, 88 235-237. In Tewksbury v. lars per acre, and the remainder to be paid | Howard, 138 Ind. 103, 37 N. E. 353, the on receipt of deed. Martha J. McFarland.” court say: "The rule often recognized in The paragraph alleges that in pursuance of this state is that where the description given said agreement he entered into possession of is consistent, but incomplete, and its comsaid real estate, and made valuable and last pletion does not require the contradiction or ing improvements thereon, and continued in alteration of that given, nor that a new depossession thereof up to the present time; scription should be introduced, parol evidence that he tendered appellant the balance of the may be received to complete the descrippucbase money for such real estate, and de tion"-citing a number of cases. See, also, manded a deed therefor, which appellant re Maris v. Masters, 31 Ind. App. 241, 67 N. E. fused to make. The second paragraph of the 699. Interpreting the decisions, and they are complaint is like the first, except that the | numerous, liberally in favor of appellant, contract is not alleged to be in writing.

there may be some question as to the suffiAppellant's demurrer to the complaint was ciency of the receipt alone to take the transoverruled. She then answered, first, by gen action out of the statute of frauds. It is, howeral denial, second, by special answer, al ever, a settled rule that where a vendor takes leging that appellant agreed to sell appellee possession under a parol contract for the concertain real estate which was north and west | veyance of lands, resting upon a valuable of a certain graveyard, and east of a fence, consideration, and has made permanent and and south of a certain highway, and being valuable improvements, specific performance about two acres less than the real estate de- l of the contract will be enforced. Swales' v. scribed in the complaint; that said real estate Jackson, 126 Ind. 282, 26 N. E. 62.

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