Pierce v. Goldsberry.

to admit anything affecting his own interest or his own rights, unless compelled to it by the force of truth; and the declaration, because it may give meaning and effect to the reply. In some cases where a similar declaration is made in one's hearing, and he makes no reply, it may be a tacit admission of the facts. But this depends on two facts; first, whether he hears and understands the statement, and comprehends its bearing; and secondly, whether the truth of the facts embraced in the statement is within his own knowledge or not; whether he is in such a situation that he is at liberty to make any reply; and whether the statement is made under such circumstances, and by such persons, as naturally to call for a reply, if he did not intend to admit it."

These authorities are directly in point and are decisive of the question. No one can doubt that Galdsberry heard and understood what was said by Pierce, or that he was properly and naturally and by the highest considerations called upon and required to speak. The evidence should have gone to the jury.

We are next to consider whether the court erred in the admission of illegal and incompetent evidence. The court admitted in evidence over the objection of the appellant a letter that purported to have been written by Loyed, the principal in the note, to Goldsberry. Goldsberry stated that he had received the letter through the post office, from Loyed. There was no evidence that the letter was in the hand writing of Loyed, or that it bore the post marks, or was received in due course of mail. But there was a more serious objection to the admissibility of this letter than proof of its identity. Process was issued, but not served on Loyed; he did not appear in person or by attorney; he made no defense to the note. His declarations whether made on the street, or in a letter, were inadmissible against the appellant.

The court erred in the admission of such evidence.

The judgment is reversed, with costs, and the cause is remanded, with directions to the court below to grant a new

Summers and Others v. Vaughan and Another.

trial, and for further proceedings not inconsistent with this

opinion.

Wallace & Hiett, for appellant.

SUMMERS and Others v. VAUGHAN and Another.

PLEADING.-Answer,-A paragraph of an answer pleaded to the whole cause of action, but answering only a part of it, is bad on demurrer.

WARRANTY.—If a sale of property is complete and perfect, by the terms of a written contract of sale, a subsequent warranty is void, unless some new con sideration be given to support it.

EVIDENCE. Where evidence is offered as a whole, and a part of it is not embraced in the pleadings and issues, it is not error to reject it.

APPEAL from the Henry Common Pleas.

WORDEN, J.-This was an action by the appellees against the appellants on promissory notes executed by the defendants to Bayless Vaughan & Co., and indorsed by the payees in blank to the plaintiffs.

Issue, trial, verdict, and judgment, for the plaintiffs, a motion for a new trial having been made by the defendants and overruled.

The second paragraph of the defendants' answer was as follows:

"And for a further answer, they say that the notes described in said complaint were given in part consideration for a portable saw mill, engine and boilers, with machinery thereto attached, which were purchased by the defendants of and from the plaintiffs' assignors, Bayless Vaughan & Co., and for no other or different consideration whatever; and that upon the sale thereof they, the said vendors, warranted the same to be in all respects perfect and complete, manufactured of good material and well put together, but the defendants in fact say that said machinery was not perfect, nor was the same well

Summers and Others v. Vaughan and Another.

put together; but, on the contrary thereof, the crown shield blew off, the boiler bursted, and said machinery was other wise imperfect and deficient, and in consequence thereof, for the purpose of repairing the same, the defendants actually laid out and expended a large sum of money, to wit, the sum of five hundred dollars, in and about the repairing thereof, of which the said Bayless Vaughan & Co. had notice; and the defendants say that in consequence thereof said mill was stopped and could not be run for one hundred days, and if the same had been perfect as represented, and in good running order, they could have made a large sum of money, to wit, the sum of five hundred dollars; wherefore," &c.

To this paragraph of the answer a demurrer, assigning for cause that the same did not state facts sufficient, &c., was sustained, and exception taken.

This ruling constitutes one of the errors assigned.

The notes sued upon amounted to two thousand dollars, and the plaintiffs demanded judgment for that sum. The answer in question was defective, and the demurrer to it was correctly sustained, for the reason that it is pleaded in bar of the whole action, whereas at most it sets up facts that bar only one thousand dollars, viz.: five hundred for the expense of repairs, and five hundred for loss of time. That such an answer is bad, was decided in the following cases in this court. Rose v. The North River Bank, 11 Ind. 268; Conwell v. Finnell, id. 527; Smith v. Baxter, 13 Ind. 151; Pratt v. Wallbridge, 16 Ind. 147; Webb v. Deitch, 17 Ind. 521; McDougle v. Gates, 21 Ind. 65; Louis' Adm'r v. Arford, id. 235; Richardson v. Hickman, 22 Ind. 244. These decisions show conclusively that the demurrer was properly sustained.

The remaining question in the case is raised by an assignment of error on the refusal of the court to grant a new trial.

The ground on which a new trial was asked was that the court excluded certain evidence offered by the defendants. It appears by a bill of exceptions that the contract for the

Summers and Others v. Vaughan and Another.

sale of the saw mill, &c., which was the consideration for the notes in suit, was in writing.

On the trial, the defendants offered to prove that after the execution of the written contract, but before the delivery of the mill, &c., and before the execution of the notes, the vendors warranted the machinery to be manufactured of good materials, and skilfully put together, and to be in all respects a first rate saw mill. This evidence was rejected.

We cannot say that the ruling was erroneous. It is assumed in the bill of exceptions and in the brief of counsel for the appellant that the sale of the mill and machinery was perfect and complete by the terms of the written contract. No written contract is set out in the bill of exceptions, nor in any manner identified, nor is the evidence in the record. The counsel for the appellants say in their brief, "It is not pretended that there was any warranty in that writing, but the appellants were attempting to prove another and different contract made some time subsequent," &c. Now, assuming, as is done in the bill of exceptions and brief of the counsel for the appellants, that by the terms of the written contract the sale of the mill and machinery was complete and perfect, a subsequent warranty is void, unless some new consideration be given to support it. "The consideration already given is exhausted by the transfer of the property in the goods without a warranty, and there is nothing to support the subsequent agreement to warrant, unless a new consideration be given." Benj. on Sales, 453; Roscorla v. Thomas, 3 A. & E. 234.

There is still another reason why the evidence was properly rejected. There was but one paragraph of the answer (the fourth) to which the evidence was at all applicable. That paragraph set up a warranty much less extensive in its terms than the one offered in evidence. It is alleged that "the vendors warranted the same to be perfect and complete, manufactured of good material, and skilfully put together." The warranty as offered in evidence embraced an important proposition not alleged in the answer, viz.: that

Ewing and Others v. Patterson.

the mill was to be, in all respects, a first rate saw mill. The
warranty offered in evidence was offered as a whole, and as a
whole not being embraced in the pleading, there could be no
error in rejecting it. Leave might have been given, in a
proper case, to amend the pleading, but none was asked.
The judgment below is affirmed, with costs.

M. L. Bundy and E. H. Bundy, for appellants.
7. H. Mellett and M. E. Forkner, for appellees.

EWING and Others v. PATTERSON.

COURT OF COMMON PLEAS.-Jurisdiction.—Title to Real Estate.-The court of common pleas has jurisdiction to foreclose mortgages, and the right to do so also confers the power to settle in such proceedings the title to the mortgaged premises.

PLEADING.-Fraudulent Conveyance.-Evidence.-To sustain an action by a judgment creditor to set aside conveyances alleged to be fraudulent, and to subject real estate held by the wife of the judgment debtor to the payment of the judgment, it is necessary to allege in the complaint, and to prove on the trial, that the judgment debtor does not possess other property subject to sale upon execution for the payment of the judgment.

SAME.-Cross Complaint.-The only difference between a complaint and a cross complaint is, that the first is filed by the plaintiff, and the second by the defendant. Both contain a statement of the facts, and each demands affirmative relief. In the making up of the issues and the trial of questions of fact, the court is governed by the same principles of law and rules of practice in the one case as in the other.

AMENDMENT.-Section 53 of the code (2 G. & H., 81), which provides for the amendment of pleading after a demurrer has been sustained, seems not to be discretionary, but imperative, and, in the absence of sham or frivolous pleading, a party should be allowed to amend.

APPEAL from the Wabash Common Pleas.

BUSKIRK, J. This action was brought by John M. Patterson against John G. Ewing and Hannah M. Ewing, his wife, upon a note executed by Hannah M. and John G. Ewing, payable to John M. Patterson, for the sum of twelve hun