Farrell v. Lafayette Lumber and Manufacturing Company.

A complaint under which the plaintiff is entitled to some relief is sufficient to withstand a demurrer for want of facts, even though the facts averred do not authorize all the judgment demanded by him. Levi v. Hare, 8 Ind. App. 571.

The court found the facts specially. Exceptions to the conclusions of law and the overruling of the motion for new trial are argued here as causes for reversal.

The facts as found show that appellant contracted with one Stokes to furnish all material and erect a building for him on a lot owned by him. In fulfillment of this contract, Stokes purchased the materials sued for which were furnished by appellees for the building, and used in its construction, and notice of lien given in proper time and manner.

Upon these facts appellee was entitled to enforce its lien for the balance due, but it did not show any right to a personal judgment against appellant, which was the only remedy to which it was entitled under its complaint. Lawton v. Case, 73 Ind. 60; Crawford v. Crockett, 55 Ind. 220.

We have searched the evidence diligently, and are unable to find any that indicates that the materials were furnished by appellee for the particular building under consideration. If they were simply sold and furnished to Stokes generally, without reference to their use in this particular building, appellee can not enforce the lien. The same rule which requires this fact to be alleged also necessitates its proof. Other errors are urged, but as they are not likely to occur again we will not consider them.

Judgment reversed, with instructions to sustain the motion for new trial, and grant leave to amend the complaint if desired.

Filed March 19, 1895.

The Louisville, New Albany and Chicago Railway Co. v. Terrell.

No. 1,253.

THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY V. TERRELL.

BILL OF EXCEPTIONS.-When Shown to be in Record.-No Independent Entry-Clerk's Certificate.-File Mark.-Where it is clearly and affirmatively shown in the clerk's certificate to the transcript that the bill of exceptions was duly and properly filed in his office, in vacation, within the time allowed by the court, in term, for the filing of such bill, the bill is sufficiently shown to be in the record, although there is no record or independent entry or statement except the file mark of the clerk and the clerk's certificate, showing the filing of the bill of exceptions. EVIDENCE.-Transcript of Judgment.-Best Evidence.-Breach of Contract.—Where, in a compromise agreement between a railroad company and an employe, it was agreed that judgment should be rendered in favor of the employe, and that in addition thereto such employe should have future, permanent employment furnished him by the railroad company, which agreement was set out in full in the judgment, it was not error to admit a transcript of such judgment in evidence in a subsequent suit for a breach of the contract for future employment, where no objection was interposed on the ground that it was not the best evidence.

SAME.-Cross-Examination.-Limits of.-The inquiry, on cross-examination, must be confined to what the witness testified to in chief. SAME.-Sufficiency of.―That the evidence is sufficient to support the finding, see opinion.

From the Orange Circuit Court.

G. W. Kretzinger, W. Farrell and E. C. Field, for appellant.

J. A. Zaring and M. B. Hottel, for appellee.

DAVIS, J.-This suit was brought by appellee to recover damages for the alleged breach of a written contract by appellant touching his employment as watch

man.

In substance, the complaint avers that prior to September, 1889, appellee instituted an action against appellant for alleged injuries received by him while in the employ of appellant, by reason of alleged negligence

The Louisville, New Albany and Chicago Railway Co. v. Terrell.

on its part; that on September 3, 1889, it was agreed between appellee and appellant that, in consideration of appellee's release and discharge of appellant from all liability growing out of such injury, appellee should have judgment against appellant for three thousand five hundred dollars and, in addition thereto, that appellant would furnish him with permanent employment as flagman at some crossing of its railroad over another railroad, at the usual rate of wages paid for such services, so long as "he is physically able to perform said services;" that said agreement was in writing.

Judgment was entered in said cause in pursuance of the terms of said agreement for three thousand five hundred dollars, and this judgment, with interest thereon, was afterwards fully paid by appellant to appellee. No judgment was entered on the agreement in relation to the employment of appellee.

A demurrer was interposed and overruled, to which appellant excepted. Thereupon, appellant filed an answer of general denial. Jury was waived and cause heard before the court. The court rendered judgment. in favor of appellee for eight hundred and fifty dollars. Appellant filed motion for a new trial, which was overruled and proper exception reserved.

On the 9th of November, 1893, appellant was granted ninety days in which to file its general bill of excep

tions.

There is no record or independent entry or statement, except the file mark of the clerk and the clerk's certificate showing the filing of the bill of exceptions.

On what purports to be the bill of exceptions, we find these words:

"Filed in my office, this 17th day of January, 1894.

"JOHN A. LINGLE,

"Clerk Orange Circuit Court."

The Louisville, New Albany and Chicago Railway Co. v. Terrell.

The clerk's certificate, found at the conclusion of the record, is as follows:

"STATE OF INDIANA, ORANGE COUNTY, SS:

“I, John A. Lingle, clerk of the Orange Circuit Court, do hereby certify that the foregoing is a full, true and complete copy of the entries made and papers filed in the Orange Circuit Court, in the cause of Charles Terrell against the Louisville, New Albany and Chicago Railway Company, including the general bill of exceptions filed in my office on the 17th day of January, 1894, and approved by the court, and ordered made a part of the record herein, and also, the original typewritten manuscript of the evidence made by the official reporter of said court herein and filed in my office with the defendant's general bill of exceptions on the 17th day of January, 1894; indorsed on the back thereof, 'Filed in my office this 17th day of January, 1894.

'JOHN A. LINGLE,

'Clerk Orange Circuit Court.' "In testimony whereof, I have hereunto subscribed my name and affixed the seal of said court this 7th day of February, 1894. JOHN A. LINGLE,

"Clerk Orange Circuit Court." In this connection we repeat what we said in Gish v. Gish, 7 Ind. App. 104," It is not essential that such independent entry, showing the filing of the bill, should be entered on the order book in vacation, but such statement or memorandum, appearing in the record on appeal, as clearly and affirmatively shows the filing of the bill in the office of the clerk, is sufficient, whether it immediately precedes the bill or is otherwise properly set out. The better practice in such cases is for the clerk to make a vacation order book entry showing the filing of the bill. This entry should be the same in form and substance as is made when the bill is filed in term. Whether the en

The Louisville, New Albany and Chicago Railway Co. v. Terrell.

try is so made or not, the clerk, when he prepares the transcript for appeal, should precede the bill of exceptions, with the copy of such vacation order book entry, if made, or in the absence thereof, he should incorporate in the transcript a preliminary formal statement or memorandum, in substance and effect, that the bill of exceptions had been duly filed, giving the date, in his office. The failure of the clerk to make such entry or to precede the bill with such formal statement will not be fatal to the rights of the appealing party, if it is otherwise clearly and affirmatively shown in the transcript that the bill was duly and properly filed in the office of the clerk of the trial court."

In this case, it is clearly and affirmatively shown in the clerk's certificate to the transcript, that the bill of exceptions was duly and properly filed in his office, in vacation, within the time allowed by the court, in term, for the filing of such bill. This, in our opinion, is sufficient.

The errors assigned are:

"1. The findings and judgment of the court below are contrary to the evidence and the law.

"2. The court below erred in the admission of improper testimony.

"3. The court below erred in refusing to admit proper and competent evidence offered by and on behalf of the appellant.

"4. There is a fatal variance between the evidence offered by appellee and his complaint.

"5. The contract sued on, by the terms upon its face, was determinable by the option of either party, for the reasons stated in the motion for a new trial.

"6. The court below erred in refusing appellant's motion for a new trial for and upon the reasons stated in