10 Ind. 414 | Ind. | 1858
Suit upon a lease containing mutual obligations. Allegations of performance on the part of the
But two questions are presented by the record. The first is upon an- instruction, and is settled by the cases of Wood v. Commons, 3 Ind. R. 418, and Cory v. Silcox, 6 id. 39. The principle governing is this: that where an instruction is given narrower than the issues made by the pleadings, and yet assuming to cover the whole question in dispute, this Court will presume, the record not showing the contrary, that the parties, on the trial, had limited their controversy to the ground covered by the instruction; so that, in its application to the case it was right, if asserting no incorrect principle of law.
The other question is this: The lease was for one year, but did not, in the body of it, state when the year was to commence. It was dated on the 2d of October, 1854. The defendant proved that it was not actually signed till February, 1855. The plaintiff was then permitted to prove that the contract was made and reduced to writing Qn the 2d of October, 1854; that the year was to commence at that date; that possession of the mill was then given and received; and that, by accident, or carelessness the agreement was not actually signed till February, though it was then signed with reference to its having taken effect on the day of its date. We think the Court did not err in permitting the proof. See Taylor’s L. & T. p. 89; Chit, on Bills 615.
The judgment is affirmed" with 5 per cent damages and costs.
