be void, otherwise to be and remain in full force and virtue in law; and, in the event the city shall extend the time for the completion of said work, such extension shall not in any way release the sureties on this bond." It is averred that, in the execution of the contract and the completion of the improvement, defendant Mankedick purchased of the plaintiff necessary material to be used in the work, and that the same was used by him in the completion of the improvement; that the fair value of said material was $449.89, and which remains due and wholly unpaid. A bill of particulars of the articles furnished was filed as an exhibit with the complaint. It was alleged that the work had been completed to the approval and acceptance of the city civil engineer and the board of public works of said city, and that the assessment roll therefor was done and completed upon the 16th day of July, 1897. Defendants separately answered (1) by general denial; (2) payment. For third paragraph, Rankin separately avers that the plaintiff is not the real party in interest. In a fourth paragraph, Rankin answered that there was no consideration for the contract "on which plaintiff seeks to recover, as between plaintiff and this defendant, Henry Rankin." To these paragraphs of answer, appellee replied by general denial. At the request of appellants the court made a special finding of facts, and stated conclusions of law thereon. Upon the conclusions of law, judgment was rendered in favor of appellee against the defendants for $350. Appellants severally assign errors as follows: The court erred (1) in overruling the separate and several demurrers to the complaint; (2) in overruling the separate and several motions for a new trial; (3) that the court erred in the conclusions of law as excepted to by Henry Rankin. In support of the first specification of errors, it is insisted that the complaint is defective because it does not show that the city extended the time for the completion of the work. Counsel claim that such showing is necessary, because the work was to have been completed by the 15th day of November, 1896, and that the articles for which it is sought to hold appellants liable were not furnished until June, 1897,-a period beyond the time at which Rankin, as surety, had contracted to be bound. This bond provided that an extension of the time should not release the surety. Whether the extension should be made verbally or in writing is not stated, so the extension could be granted in either form. The objection is not well taken, because the surety contracts to be bound for the faithful performance upon the part of his principal of the contract, whether he completed the work by the 15th of November, 1896, or was given further time. For this reason, no allegation that the time had been extended was necessary. The complaint proceeds upon one definite theory, and 57 N.E.-17 we need not, therefore, refer to the numerous authorities cited by counsel for appellants to the effect that the pleader is held to one definite theory. There are three reasons given in the motion for a new trial, viz. the special findings of facts are contrary to the evidence, are not sustained by the evidence, and are contrary to law. Counsel for appellants do not discuss these reasons, but an examination of the record shows that the special findings of facts are fully sustained by the evidence. It is insisted by counsel for appellants that the third specification of error (that the court erred in its conclusions of law) should be sustained, because there is no special finding that the time for the completion of the work had been extended. The contract in question was with the city to do certain work. The bond was given to secure its performance, and the payment by Mankedick for the labor performed and the material used in the work. The bill of particulars informed appellants as to the items and amount of damages claimed on account of the breach, but it is not the basis of the action. While the contract named the time for the completion of the work, the bond executed at the same time, and which must be considered with the contract, provided in advance for an extension of the time. It is specially found that the work was commenced in the fall of 1896; that it was com pleted under the contract and accepted by the city authorities on the 10th day of July. 1897. All the material allegations of the complaint are found to be true. Had a material change been made in the terms of the contract, not provided for either in the bond or contract, without the consent of the surety, such change would have released the surety. Counsel for appellants cite many authorities in support of this principle of law. But the only change made was stipulated for in the bond. See Higgins v. Quigley, 23 Ind. App. 348, 54 N. E. 136, and authorities there cited. Judgment affirmed. KELLY v. STATE. (Appellate Court of Indiana. May 17, 1900.) CRIMINAL LIBEL-LIBEL PER SE-SUFFICIENCY OF AFFIDAVIT AND INFORMATION. 1. A writing which states that the prosecutrix does not pay for anything she gets, but pretends to pay by handing the money to the seller, who returns it to her, is not libelous per se. 2. An information and affidavit which charged the publication of language not libelous per se, and stated that it was published concerning the prosecutrix, and that the defendant intended to charge that the prosecutrix was a lewd woman, and that the language was so understood by the public, is not sufficient to sustain a charge of criminal libel, as the facts showing the defamatory sense in which the language was used, to whom it referred, and to whom it was directed, should have been stated. Appeal from circuit court, Huntington county; C. W. Watkins, Judge. Hannah Kelly was convicted of libel, and from the judgment she appeals. Reversed. W. A. Mitchell, Will H. Hart, and France & Dungan, for appellant. Branyan & Searles, for the State. WILEY, C. J. This case was transferred from the supreme court. Appellant was prosecuted and convicted for criminal libel, upon affidavit and information. Omitting the formal parts, the affidavit is as follows: "Dora Mikesell, being duly sworn, on her oath says that one Hannah Kelly on the 10th day of February, A. D. 1899, at and in said county and state aforesaid, did then and there, unlawfully, maliciously, and libelously, and with intent to injure and defame affiant, write and publish of and concerning this affiant, Dora Mikesell, the following false, defamatory, and libelous words, to wit: 'I guess you think people don't know how you get anything you pretend to pay for it you hand them a piece of money and they pretend to chaing the money but it all handied Back to you you dont pay for thing you get i see that this afternoon i Beshamed,'— she, the said Hannah Kelly, then and there well knowing that such words and language were written by her and published by her concerning the said Dora Mikesell, were false, defamatory, and libelous, and she, the said Hannah Kelly, in the writing and publication of said letter, then and there and thereby intended to libel and defame this affiant, Dora Mikesell, and intended that the same should be understood by the public to mean that the said Dora Mikesell was a person of lewd life, and was receiving money, goods, and property for illicit intercourse with her by men, and for the purpose of prostitution, and it was so understood by the public; and she then and there and thereby intended that the public should read the same, and that thereby this affiant, Dora Mikesell, would be defamed and held in public contempt as a woman of lewd life." The charging part of the information is the same as the affidavit. Appellant moved to quash the affidavit and information, which motion was overruled, and she excepted. This ruling of the court is assigned as error, and is the first question discussed. The state, by the attorney general, has not confessed error, but in his brief he conceded that the affidavit and information are insufficient. The defamatory matter charged is not libelous per se, nor is it addressed to any person, nor does it name any person. This being true, it is the rule estabushed by the authorities that, to make good the charge for libel, such intrinsic facts must be alleged by way of inducement, to show the person against whom the charge is made, and also to show that the words published were libelous, and published in a libelous sense. In Harper v. Delp, 3 Ind. 225, the court say: "It was, no doubt, necessary that the court should show that the words were applicable to the plaintiff. It was for that purpose alone that the inducement was inserted. If the words are here shown to be so applicable, then this part of the declaration is unobjectionable. In ordinary cases it is sufficient on this subject to aver that the words were spoken of and concerning the plaintiff. But we understand the rule to be, where, as in the case before us, there is an ambiguity in the words laid, in regard to the person slandered, there must be an introductory averment showing that the plaintiff was the person aimed at." In the affidavit and information it is charged that appellant "did then and there, unlawfully, maliciously, and libelously, and with intent to injure and defame affiant, write and publish of and concerning this affiant, Dora Mikesell," etc. There is no allegation of any intrinsic fact showing that Dora Mikesell was the person to whom the alleged defamatory matter was directed, except the naked assertion that the words were written and published of and concerning her. The words used in the communication or writing are harmless in themselves. They do not charge a crime or impute any libelous misconduct, and, to make them libelous, there should have been alleged in the inducement such extrinsic facts as would show they were used in a libelous sense. It is not enough to set out the words, and then say by innuendo what they are intended to mean. The innuendo cannot change the natural meaning of the words. The office of the innuendo is to give to the defamatory words the construction they bear in reference to the extrinsic facts alleged to describe their particular meaning. Colloquialisms and innuendoes are only necessary to remove uncertainty that would otherwise exist as to persons, or the meaning of words and sentences and their application. Rodebough v. Hollingsworth, 6 Ind. 339. But an innuendo cannot aver a fact or change the natural meaning of language. This must be done by the inducement. Hays v. Mitchell, 7 Blackf. 117; Ward v. Colyhan, 30 Ind. 395; Hart v. Coy, 40 Ind. 553. Where the defamatory words are not libelous per se, and are ambiguous or equivocal, then extrinsic matter must be averred to show the objectionable character of the words or language used. Hart v. Coy, supra; Hays v. Mitchell, supra; Worth v. But ler, 7 Blackf. 251; Rodebough v. Hollingsworth, supra; Townsh. Sland. & L. § 308. The rules above stated are forcibly emphasized in the case of Ward v. Colyhan, supra, in the following language: "The court erred in overruling the demurrer to the second paragraph of the complaint. The words are not actionable per se. They could only be made actionable by proper averments. An innuendo cannot change the ordinary mean ing of language. In the language of Dewey, J., in Hays v. Mitchell, 7 Blackf. 117, the second paragraph of the complaint is not so framed as to make the words stated a good cause of action. Something more than an innuendo was necessary for that purpose. An innuendo cannot aver a fact, or change the natural meaning of language. There should have been a prefatory allegation of some extrinsic matter, or an explanation of the particular and criminal meaning of the words. This introductory matter having been stated, the colloquium should have connected with it the speaking of the words complained of, leaving to the innuendo its proper office of giving to those words that construction which they bore in reference to the extrinsic fact, or explanation of their particular meaning.' Again, in the case of Harrison v. Manship, 120 Ind. 43, 22 N. E. 87, it was said: "Where words are used, not actionable in themselves, there should be some prefatory allegation of some extrinsic matter, or an explanation of the particular and criminal meaning of the words. This introductory matter having been stated, the colloquium should connect with it the speaking of the words complained of; leaving to the innuendo its proper office of giving these words that construction which they bore in reference to the extrinsic fact, or explanation of their particular meaning. If a crime has been committed, and the words sued for were spoken in reference to it, that matter should be averred. If the defendant has been in the practice of using the words to express the commission of a crime, that fact should be alleged. If a word or a phrase has a particular and criminal meaning, different from its ordinary import, and was used in its opprobrious sense by the defendant, these facts should appear. Hays v. Mitchell, 7 Blackf. 117. There is no colloquium or innuendo laid in this complaint. We have simply the words, 'he drove off my ducks and sold them,' without any averment as to the circumstances under which the words were spoken, or as to the sense in which they were used, or as to how they were understood. The simple question, therefore, for our determination, is, do the words charged to have been spoken import the commission of a crime? We do not think they do. The verbs used are 'take,' 'drive,' and 'sell,' all of which, in their usual sense, denote innocent actions. Had the appellant averred any extrinsic facts tending to show the commission of a crime, and had in any manner, by averment, connected the speaking of the words charged in the complaint with the commission of such crime, no matter how defective such averments, the complaint would have been good after verdict; but here, as we have seen, there is a total absence of any averment that a crime had been committed. Where the language is susceptible of an innocent and a criminal meaning, the court, after verdict for the plain tiff, upon a motion for a new trial, in arrest of judgment, or upon an assignment of error, will adopt the latter meaning, and, where the language is rendered actionable by extrinsic circumstances defectively averred, the verdict will aid them; but language not actionable per se in the absence of extrinsic circumstances will not be so regarded, even after verdict." In McFadin v. David, 78 Ind. 445, at page 446, we find this language: "The words spoken were not ac tionable per se. They do not, in their usual sense, either import a charge of murder or of manslaughter. They do not amount to a charge that death ensued from the adminis tration of the morphine, or that it was ad ministered either improperly or feloniously Indeed, it does not appear that any harm resulted from its administration. It is true that it is stated by the innuendo that the defendant meant, by the language spoken, that the plaintiff had caused the death of Noah McFadin by the unlawful administration of poison, but an innuendo cannot enlarge the meaning of words. If the words themselves do not warrant the signification imputed to them, an innuendo cannot. Words not actionable per se cannot be rendered so by innuendo. "The absence of a colloquium, showing by extrinsic matter that the words charged are objectionable, is not supplied by an innuendo attributing to those words a meaning which renders them actionable.' Treating the paragraph in question as unaided by the averment of extrinsic facts, the innuendo cannot supply a meaning that the words themselves do not warrant. Taken in their usual and ordinary sense, they do not charge that the plaintiff caused the death of Noah McFadin by the administration of morphine or otherwise. and, as they do not, they are not actionable per se. Unless they do constitute such charge, they impute no crime to the plaintiff." In the case of Emig v. Daum, 1 Ind. App. 146, 27 N. E. 322, it was held that the words: "We had a fire in our neighborhood last night. Lee Daum's barn burnt. I don't know anything, but the report is that Mary Daum burnt the barn,"-were not actionable, without an allegation of some extraneous facts giving them a slanderous meaning, and a colloquium to connect them with such facts. In the same case it was held that the words, "It is the opinion of the people that Mary Daum burnt the barn, and it is mine," were not actionable, without an allegation of extrinsic facts showing that the barn spoken of was the property of another, and was worth $20 or more. that case many authorities are collected, and we refer to it without further comment. By referring to the language used in the affidavit before us, it will be observed that it does not charge any person with any crime or any degrading or infamous act, or any female with a want of chastity. Neither is there anything in the language as to who is In meant by the writing. From the language itself, neither the public, nor any one person, could determine what was meant, or for whom it was intended, or to whom it referred. To make the affidavit good, as the language used is not in itself libelous, it was necessary in the prefatory or introductory part to show its libelous character, by averring extrinsic facts, and to connect appellant with such facts by proper colloquium or innuendo. Failing in this, under the authorities we must hold that the affidavit and information are insufficient, and the court erred in overruling the motion to quash. This conclusion makes it unnecessary to dispose of other questions presented. The judgment is reversed, and the court below is directed to grant appellant a new trial, and to sustain her motion to quash the affidavit and information. HENLEY, J. On the 17th day of March, 1897, appellant traded some lands he owned in the state of Michigan to appellee, and received in exchange certain mill property owned by appellee in Steuben county, Ind., the appellant paying appellee, in addition to the land conveyed, the sum of $1,000. Afterwards appellee commenced this action against appellant for damages on account of the alleged fraudulent representation of appellant in regard to the character and value of the lands which appellant had conveyed to appellee in perfecting the trade. Appellant answered the complaint by general denial, and also filed a counterclaim. To the counterclaim appellee filed a general denial. There was a trial by jury resulting in a verdict for $800. Over appellant's motion for a new trial judgment was rendered on the verdict. The only alleged error presented to this court relates to the ruling of the lower court in overruling appellant's motion for a new trial. Under this specification of error, the only question discussed by counsel is as to the correctness of the instructions given by the court to the jury. It is complained that the lower court, in instructing the jury, restricted the jury to a consideration of only In a portion of the material facts averred in the counterclaim, and this prevented the jury from considering the whole case made by the pleadings and supported by the evidence. Where an instruction purports to be a statement of all the material allegations necessary to a recovery, and a material allegation is omitted, the instruction is fatally defective. Voris v. Shotts, 20 Ind. App. 220, 50 N. E. 484; Jackson School Tp. v. Shera, 8 Ind. App. 330, 35 N. E. 842; Bridge Co. v. Eastman, 7 Ind. App. 514, 34 N. E. 835; Insurance Co. v. Pringle, 21 Ind. App. 559, 52 N. E. 821. structions must be considered as a whole, and where all the instructions, taken together, state the law correctly, no reversible error can be predicated upon a single incomplete statement of the law. Cromer v. State, 21 Ind. App. 502, 52 N. E. 239; Kennedy v. State, 107 Ind. 144, 6 N. E. 305; Boyle v. State, 105 Ind. 469, 5 N. E. 203. The instruction complained of states the law correctly as far as it goes. If it is objectionable, it is because of what it omitted to state, and, had it been the only instruction of the court in relation to the case made by appellant's counterclaim, it would be open to the criticism of appellant's counsel. See Railway Co. v. Grantham, 104 Ind. 353, 4 N. E. 49. Instruction numbered 7 cures the defect complained of in instruction numbered 2. Taking all the instructions together, they fully and fairly state the law applicable to the issues and evidence. There is no reversible error. Judgment affirmed. (24 Ind. App. 624) BROOKS v. KUNKLE et al. (Appellate Court of Indiana. May 15, 1900.) GRANT OF OIL AND MINERALS-CONSTRUCTION-LIABILITY OF GRANTEE. The owner of land granted to another the oil, gas, and other minerals underlying the land, on condition that the grantor should have a certain share of the oil, gas, and minerals so mined. The grant provided that, if no well was completed by the grantee within 90 days from and after the date of the grant, the same should be null and void, unless the grantee should pay the grantor a certain rental for each year the completion of the well was delayed. It was further stipulated that the grantee should have the privilege of surrendering the lease at any time by paying the rental on the land to the time of surrender. Held, since it was optional with the grantee as to whether or not anything should ever be done by him, and as no well was made, there was no obligation to pay any rent, or to make compensation for oil or gas. Appeal from circuit court, Wells county; E. C. Vaughn, Judge. Action by Madison Brooks against William A. Kunkle and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed. Christian & Christian, Mock & Sons, and Gavin & Davis, for appellant. Dailey, Simmons & Dailey, for appellees. BLACK, J. A demurrer for want of sufficient facts to the complaint of the appellant against the appellees was sustained. The complaint was based upon a written instrument alleged to have been executed by the appellant on the 13th day of May, 1897, to the appellee Kunkle, and by him assigned in writing on the 3d of July, 1897, to the other defendant, the Ohio & Indiana Oil Company, which caused it to be recorded in the office of the recorder of Hancock county on the 19th of March, 1898; the instrument and assignment being set out in the complaint. The written instrument was as follows: "In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, Madison Brooks, of Hamilton county, in the state of Indiana, first party, hereby grant unto W. A. Kunkle, of second part, his heirs and assigns, all the oil and gas and other minerals and mineral water in and under the following described real estate, together with the right to enter thereon at all times for the purpose of drilling for oil and gas and all other minerals and mineral water, and to erect and maintain all buildings and structures and lay all pipes necessary for the production and transportation of oil, gas, minerals, and mineral water taken from said premises, excepting and reserving, however, to first party, the one-sixth part of all oil or other minerals produced and saved from said premises, to be delivered in tanks at wells or in pipe lines with which said second party may connect his well or wells; said real estate being described as follows [describing a tract of one hundred and sixty acres in Hancock county]; to have and to hold the said interest in and to the above premises on the following conditions: If gas only is found, second party agrees to pay $100.00 per year for the product of each well while the same is being marketed off the premises, and first party may use gas free of cost to heat and light dwelling house during said time, whenever said first party shall request it. Said second party shall bury all oil and gas lines being laid through tillable lands below plow depth, and pay all damages to growing crops by reason of the burying and removing said lines. No well shall be drilled nearer than three hundred feet of the house or barn on said premises, and no well shall occupy more than one acre. In case no well is completed within ninety days from this date, then this grant shall become null and void between the parties thereto, unless the second party shall pay to said first party one dollar per acre for each year thereafter the completion of such well is delayed, said rental to begin at date of lease. The second party shall have the right to use gas, oil, or water to run all necessary machinery for operating for any purpose on said real estate, and shall also have the right to remove all its property from said premises at any time. It is understood that second party shall have the privilege to surrender this lease at any time by first paying the rental on said land to date of such surrender. It is understood between the parties to this grant that all conditions between the parties hereto shall extend to their heirs, executors, and assigns. In witness whereof the parties to this grant have hereunto set their hands and seals," etc. The instrument was signed and sealed and acknowledged before a notary public by said Madison Brooks only. It is further alleged "that ever since the execution of said lease said defendants have had possession of said real estate for all the purposes therein stipulated, and have failed and refused to drill for oil, gas, minerals, and mineral water, as stipulated in said lease, and have failed and refused to pay the rental therefor, and have failed and refused to perform their part of said agreement; and plaintiff says that there is due and owing him for rental on said lease the sum of," etc., "wherefore," etc. Where a person against whose capacity to make a contract nothing appears has thus executed and acknowledged such a formal instrument to one who has assigned it to another, who has caused it to be recorded in the office of the county recorder, and it is brought into litigation by the party who executed it, asserting rights and obligations thereunder, it will not be presumed that it was therein intended by the parties, or either of them, to do a useless or absurd thing; yet where there is no averment of fraud or mistake the intention of the parties must be sought in the terms of the instrument. A capable party might execute such a contract lawfully, and with reasonable expectation of deriving benefit upon the occurrence of events contemplated by its provisions, but not from mere lapse of time. No absolute obligation to drill a well or do any act whatever was cast upon the party of the second part by the terms of the instrument, which, by its language, is characterized both as a grant and as a lease, and which is referred to in the complaint as a lease. It was, by its terms, to be entirely optional with the party of the second part whether or not anything should ever be done by him by way of use of the land; and, as no well was made, there arose no obligation to pay for oil or gas. It was provided that, in case no well should be completed within 90 days from the date of the instrument, the grant should become null and void, unless the party of the second part should pay the party of the first part one dollar per acre for each year the completion of a well should be delayed thereafter, said rental to begin at date of lease; and the party of the second part was to have the unconditional right to remove all "its" property from the premises at any time, and to have the privilege of surrendering the lease at any time by first paying the rental on the land to the date of surrender. It does not appear that any of the property of the second party was ever placed on the land |