21 Ind. App. 429 | Ind. Ct. App. | 1899
Action by, appellee against appellants, one Honora L. Richardson and John W. Richardson, her husband. The allegations of the complaint were, in substance, as follows: That appellant Honora L. Richardson is the owner of eighty acres of land in Tipton county, Indiana, and that appellant John W. Richardson is her husband and her agent for said land; that in October, 1893, appellee rented from said agent said eighty acres of land for a term of one year, to begin on the 1st day of March, 1895, and among other things contained in said rental contract, appellants were to drill or cause to be drilled or dug a well upon said farm, which would furnish sufficient . pure and wholesome water to the appellee while upon said farm, all of which appellants have failed and refused to do. It is further averred, that no water was furnished appellee under said contract for his use as tenant on said farm, and that he proceeded to and did cause a well to be drilled upon said farm for the
It is assigned as error to this court: (1) That the court erred in overruling the demurrer to the complaint; (2) that the court erred in sustaining the demurrer ■ to the second paragraph of defendants’ answer; (3) that the court erred in overruling the motion for a new trial; (4) that the court erred in overruling the motion of appellant Honora L. Richardson in arrest of judgment; (5) that the court erred in overruling the motion of appellant John W. Richardson in arrest of judgment; (6) that the court erred in overruling the motion of defendants in arrest of judgment.
The first question discussed by appellants relates to the sufficiency of the complaint as to appellant John W. Richardson. It is provided by statute in this State, section 6960, Burns’ R. S. 1894 (5115, Horner’s R. S. 1897), as follows: “AH the legal disabilities of married women to make contracts are hereby abol
The third specification of the assignment of errors calls in question the overruling of appellants’ motion for a new trial. It is argued at length by counsel for appellants that the lower court erred in giving to the jury certain instructions and in refusing to give to the jury certain other-instructions,, but the instructions are not properly before the court. Appellants have attempted to bring the instructions into the record by bill of exceptions, but this bill of exceptions
The thirteenth and fourteenth reasons assigned for a new trial are as follows: “(13) That the verdict of the jury is not sustained by the evidence; (14) that the verdict of the jury is contrary to the evidence.” These will be considered together. The complaint proceeds upon the theory that appellants have failed to perform that part of a verbal rental contract entered into between appellee and appellant Honora L. Richardson, through her agent John W. Richardson, in the month of October, 1893, in which it was agreed that the owner of the leased land was to drill or cause to be drilled or dug a well upon said land which would furnish pure and wholesome water for appellee’s use while such tenancy existed. Thus it will be seen that by the averments of the complaint the agreement on the part of the lessor to furnish pure, wholesome water upon said leased premises was an inducement which entered into and was a part of the consideration of the rental contract as declared upon in the complaint. We have most carefully read all of the evidence in this cause, and fail to find any evidence- which supports the verdict and judgment upon the theory of appellee’s complaint. The evidence is to the effect that appellee’s rental contract with the owner of-the land was a written contract, in which nothing was said about drilling or digging a well or furnishing water, and that said written contract was not entered into until some time in December, 1893. There is not a word or syllable of evidence of any contract made ip October, 1893, to furnish a well of water to appellee, or of any rental contract at any other
The judgment is therefore reversed, with instructions to the lower court to sustain the motion for a new trial.