119 Ind. 269 | Ind. | 1889
The counties of Hamilton and Madison constituted the twenty-fourth judicial circuit at the time this action was tried. On the 29th day of the regular November term, 1885, an order was made reciting that the judge of the
It is here insisted that as the time appointed for the adjourned term fell within the time for holding court in the county of Madison, the.adjourned term could not be legally held in the county of Hamilton. The appellee insists that the question is not presented, because the objections appear only in the reporter’s long-hand manuscript, and that the .statute does not authorize the reporter to note such objections. We are referred to sections 1405 and 1407, R. S. 1881, which seem to support the appellee’s contention, but we do not deem it necessary to decide this point. Nor do we deem it necessary to decide whether, if there had been opposition, instead of acquiescence, the appellant could have successfully maintained the proposition that the adjourned term of the Hamilton Circuit Court was illegally held, for we are satisfied that by acquiescence the appellant Avaived the
There was no plea of non estfaotum, and the execution of the deed, on which the action is founded, was admitted. The delivery was essential to its validity, and was a part of its execution.
The deed purported to be executed to the Chicago and Indianapolis Air Line Eailway Company, and this was not the
It was competent to prove the facts connected with the preparation of the deed by parol, and in permitting this-to be done the court did not violate the familiar rule forbidding the contradiction or change of a written instrument by parol evidence. It was, indeed, proper, as it always is, to prove the contract between the parties, where, as here, there was a mistake of fact. To deny this would be to affirm that a mistake can not be corrected, since, without evidence of the facts, it can never be made to appear that there was a mistake.
The facts, so far as concerns the amount of' the recovery, are substantially the same as those of the case of Louisville,, etc., R. W. Co. v. Sumner, 106 Ind. 55, and the decision in that ease rules here. The rule there declared for the ad-measurement of damages is the correct one, and has been approved. Indiana, etc., R. W. Co. v. Adams, 112 Ind. 302; Chicago, etc., R. W. Co. v. Barnes, 116 Ind. 126. That rule is this: “ For the breach of a contract by a railroad company with a land-owner to fence its right of way, the cost of erecting the fence and also special damages for animals killed, for
Judgment affirmed.