sum of $285. This paragraph of complaint was sufficient to withstand a demurrer for want of facts. The statement in the complaint that a certain amount was due and unpaid for services rendered under the contract of employment before appellee was discharged does not lessen the force of the material averments charging a breach of the contract and resulting damages.

The second paragraph of complaint declares upon a written contract of employment. The contract was made by correspondence which passed between the parties prior to the time appellee began work. The complaint being upon a written contract, it was necessary to the sufficiency of the complaint that the contract should be made a part of the complaint. It is argued by counsel for appellant that all the correspondence which went to make up the contract is not made a part of the complaint. Without stating in this opinion a great many of the allegations of the second paragraph of complaint leading up to the correspondence which appellee contends was the contract of employment, and which is made a part of his complaint, we set out only that part material to the discussion. On the 4th day of January, 1897, appellee addressed a letter to appellant, which in the due course of mail was received by appellant. This letter was as follows: "Philadelphia, Pa., Jan. 4th, 1897. J. A. Everitt, Indianapolis, Ind.-Dear Sir: Yours of Jan. 1st to hand. From it I infer that you offer me a position at $15.00 per week for the year 1897, in addition to the money advanced for transportation, providing I do not leave you during the year. This makes a total of 52x15-780, plus $75-$855; that is, $855 to be paid during the year. If I am correct, please advise me. I will accept it, and have sent in my resignation, which, I hope, lets me off on Saturday eve, so that I can get off by the middle of next week, and report to you by Jan. 14th. At any rate, I will lose no time in coming. Your letter will reach me on Thursday, which will confirm my impression. As to leaving you, I would not come if I thought there was the slightest danger, as I can have a position in New York at better salary in two or three weeks; but I prefer your place and Indianapolis, under the circumstances. Awaiting your reply, I am, respty., H. R. Bassler, 2436 No. 321⁄2 St." On the 6th day of January, 1897, appellant wrote and mailed to appellee the following letter in reply to the above, which reply was, in the due course of mail, received by appellee at Philadelphia: "Indianapolis, Ind., Jan. 6, 1897. H. R. Bassler-Dear Sir: Your letter came this morning. We reply at once, and will say your understanding is correct, and you should lose no time in making the change. Truly, J. A. Everitt, Seedsman." It is said in the case of Havens v. Insurance Co., 11 Ind. App. 315, 39 N. E. 40: "It is well settled that a proposition made by one party 57 N.E.-36

by letter to another party at a distance, containing a specific offer which is unconditionally accepted by the latter, will constitute a valid contract between them. The primary question in such a case is whether the correspondence shows an agreement upon which the minds of the parties met, or whether the negotiations are inchoate and unperfected until something should intervene and be determined in order to give it full effect." It does not matter what letters may have passed between the parties to this action prior to the letter of January 4, 1897; although appellee's letter of that date refers to prior correspondence. On January 4th appellee made his proposal by letter, stating the terms under which he would enter into the employ of appellant. On the 6th day of January of the same year appellant, by letter, unconditionally accepted appellee's terms. The minds of the contracting parties met, and a valid contract existed between them. It is alleged that appellee performed all the stipulations of said contract upon his part, but that appellant failed to perform the agreement upon its part, and, without cause, discharged appellee, to his damage. This paragraph of complaint also contains the averment that appellee has been unable to obtain other employment since his wrongful discharge by appellant, although he had diligently sought for work. The second paragraph of complaint is not subject to the objections urged against it by appellant's counsel.

We next pass to the questions presented by appellant's motion for a new trial. It is insisted that the amount of recovery is erroneous and excessive, and that there is an entire want of evidence to support the judgment. Counsel for appellee in their brier say that they base their right to recover in this cause solely on the second paragraph of complaint, which declares upon a written contract. Hence we will not consider the argument of appellant's counsel based upon the insufficiency of the evidence to support the first paragraph of complaint. Upon the second paragraph of complaint, appellee introduced evidence to support every material allegation of his complaint. He was compelled to follow the theory of his complaint, and to support that theory with competent evidence upon every material allegation. The correspondence which appellee made a part of his complaint, and which he alleges was the contract entered into with appellant, was introduced in evidence upon the trial. Appellee also introduced evidence tending to prove the breach of this contract upon the part of appellant, its performance on the part of appellee, and the damages resulting to appellee by the action of appellant in refusing to perform its part of the contract. This evidence supported the theory of the complaint, and this court will not pass upon the weight to be given it. The introduction in evidence of other letters

which passed between the parties prior to January 4, 1897, was improper under the averments of the second paragraph of complaint, but might have been proper under the averments of the first paragraph of complaint, as tending to establish a contract partly in writing and partly in parol. Their introduction, in any event, was harmless, because there was nothing in the letters which would change or vary the contract sued upon.

Appellant had the burden of proof to establish its counterclaim. That appellant had a perfect right to discharge appellee if there was a breach of the contract of employment upon appellee's part, there can be no doubt. Neither the motive that prompted the discharge, nor the intention of appellant, could be inquired into. The only issue to be established in such case is whether there was a breach of the contract of employment upon the part of the servant. Wood, Mast. & S. 229; Hamilton v. Love (Ind. App.) 43 N. E. 873; Pape v. Lathrop, 18 Ind. App. 633, 46 N. E. 154. The testimony of appellant was in conflict with that of appellee upon the issue raised by appellant's counterclaim. The question was passed upon by the lower court. The whole record shows that upon every issue appellant was given a fair and impartial hearing. We find no error. Judgment affirmed.

(24 Ind. App. 673)

SOUTH BEND CHILLED-PLOW CO. v.

GIEDIE.

(Appellate Court of Indiana. May 29, 1900.) APPEAL-BILL OF EXCEPTIONS-IMPERFECT STATEMENT OF EVIDENCE-INSTRUC

TIONS-REVIEW.

1. Where much of the evidence in the bill of exceptions contains references to models, and no diagrams or explanations of the models are given which would render such references intelligible, the bill of exceptions shows affirmatively that it does not contain all the evidence, notwithstanding it recites that it does.

2. The court's action in giving or refusing instructions will not be disturbed where such action was consistent with a case-made by any state of facts admissible under the issues, where the evidence is not in the bill of exceptions.

Appeal from circuit court, Marshall county; A. C. Capron, Judge.

Action by Joachim Giedie against the South Bend Chilled-Plow Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Andrew Anderson, A. L. Brick, and Samuel Parker, for appellant. F. J. Lewis Meyer and C. P. Drummond, for appellee.

ROBINSON, C. J. Appellee sued for damages for personal injuries. Trial resulted in a verdict in appellee's favor. Motion for a new trial overruled. Judgment on the verdict. Of the errors assigned, the only one discussed by appellant's counsel is overruling appellant's motion for a new trial. The

grounds for a new trial which are discussed relate to the rejection of certain offered testimony and the giving and refusal to give certain instructions. From the complaint it appears, among other averments, that appellee was employed by appellant as a plow polisher, and in his work used a machine consisting of a rapidly revolving wheel dusted with emery, and supported by a shaft fastened and revolving in boxes supported by bolts and screws, which permitted the revolving of a shaft between such boxes. Over the wheel, to protect the operator, was a guard consisting of a flat piece of iron, which was attached to the box by bolts. The machine was out of repair, in that the boxes were loose, and permitted a jolting motion of the polisher when in use. While appellee was polishing plows on this machine, this jolting motion caused the guard to break off and be thrown against appellee's hand. It is argued by appellee's counsel that it affirmatively appears from the bill of exceptions that it does not contain all the evidence, and that, therefore, the evidence is not in the record. All the questions argued in appellant's brief depend upon the evidence, and, if the evidence is not in the record, no questions are presented for decision. In determining the questions whether appellant was negligent, and whether appellee was guiltless of contributory fault, it was necessary to describe the particular machine, the manner of its construction and use, and the particular manner in which appellee was using it when injured. A large number of witnesses testified upon these particular questions, and a model polishing machine and model plow, which seem to have been exhibited to the jury, were used and referred to by them constantly in illustrating their testimony. The words "indicating" and "pointing to model" are used almost constantly by the witnesses, and were understood by the jury as a part of the answers to questions. In some instances the witness would answer exclusively by "indicating" with the models. There are no diagrams or explanations of these models in the bill of exceptions, and, as the evidence comes to us, much of it is absolutely meaningless. It is evident that many facts of vital importance in the case were in evidence only by the use of these models, that they were considered by the jury, and that they are in no way shown by the bill of exceptions. A reading of the record can lead to but one conclusion, and that is that all the evidence given to the jury at the trial is not contained in the bill of exceptions. Although the bill recites that "this is all the evidence given in the cause," yet it affirmatively appears that evidence was given at the trial which is not copied into the bill. The evidence is not properly in the record. Stone Co. v. Summit, 152 Ind. 297. 53 N. E. 235; Thorne v. Abattoir Co., 152 Ind. 317, 52 N. E. 147. As the evidence is not in the record, we must presume that the instructions requested were refused because they were not applicable to the case made by

the evidence. Jenkins v. Wilson, 140 Ind. 544, 40 N. E. 39; Holland v. State, 131 Ind. 568, 31 N. E. 359; Bank v. Cooper, 19 Ind. App. 13, 48 N. E. 236; Shafer v. Stinson, 76 Ind. 374; Blizzard v. Bross, 56 Ind. 74. The instructions given by the court, in the absence of the evidence, cannot be regarded as erroneous, if they can be considered correct upon any state of facts admissible under the issues. Rapp v. Kester, 125 Ind. 79, 25 N. E. 141; Hilker v. Kelley, 130 Ind. 356, 30 N. E. 304, 15 L. R. A. 622; Bank v. Cooper, 19 Ind. 13, 48 N. E. 236; Joseph v. Mather, 110 Ind. 114, 10 N. E. 78; Machine Co. v. Smith, 21 Ind. App. 617, 52 N. E. 1000; Insurance Co. v. Heimann, 93 Ind. 24; Byram v. Galbraith, 75 Ind. 134; Mining Co. v. Watts, 6 Ind. App. 347, 33 N. E. 662; Wright v. City of Crawfordsville, 142 Ind. 636, 42 N. E. 227. We have examined the instructions given by the court of which appellant complains, and find none of them substantially wrong in the abstract, nor are they in themselves radically wrong under any state of facts that could have been proven under the issues, nor are they such as might have misled the jury to place the verdict upon an improper basis. Judgment affirmed.

Under Burns' Rev. St. § 251, providing that every action must be prosecuted in the name of the real party in interest, and section 1086, providing that any person having a right to recover possession of real estate or quiet title in any other person or persons shall have a right to recover possession in his own name, and no action shall be defeated or reversed where it might have been successfully maintained in the name of another to inure to his benefit, a grantor of leased premises, who sold the same, agreeing that he would secure possession for grantee at the termination of the lease, the date of which was fixed, and that until such possession was secured the tenant thereon should be considered as the tenant of grantor, cannot maintain a suit against the tenant to recover possession after the expiration of his term, since the grantee is the real party in interest.

Appeal from superior court, Howard county; Hiram L. Brownlee, Judge.

Action by John Holliday against Ira Chism to recover possession of real estate. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

Blacklidge, Shirley & Wolf, for appellant. Kirkpatrick, Morrison & McReynolds, for appellee.

WILEY, J. This cause was transferred from the supreme court. The complaint was originally in three paragraphs, to the second and third of which a demurrer was sustained. Thereupon appellant dismissed as to the first, and elected to stand upon the ruling of the

court in sustaining the demurrer to the second and third paragraphs, and judgment was rendered against him for costs. By the assignment of errors the action of the court in sustaining the demurrer to the second and third paragraphs of complaint is presented for review. The second paragraph avers that on the 1st day of September, 1895, appellant leased in writing to appellee for a period of one year certain real estate; that by the terms of the lease appellee was to have possession of the buildings thereon till March 1, 1897; that subsequently the time for the expiration of the lease was extended by mutual consent to August 31, 1897, at which time the appellee agreed to surrender the possession of the premises to appellant; that said time has long since passed, but appellee refuses to surrender the same; that there is on said real estate a large amount of growing clover and standing corn, sown and planted under the terms of said lease, which belong to appellant; that appellee has removed the fences protecting the orchard, and exposed the same to the ravages of stock; that appellee refuses to surrender the possession of said premises, and avows his intention to hold the same, to pasture said clover, and trample said corn; that the damages that have thus been and will hereafter be inflicted thereon are irreparable, and that appellee is insolvent. It is then averred that, relying upon the agreement of appellee to surrender possession to appellant September 1, 1897, appellant, in May, 1897, sold the said real estate to one Troyer, agreeing with said Troyer, in consideration of said purchase, to secure from appellee and to deliver to such purchaser the full possession of said premises on the 1st day of September, 1897, and until said possession was secured said appellee should continue and remain the tenant of appellant; that appellant agreed with said Troyer that he would protect said premises from injury, and would indemnify him for any injury sustained after said sale. The prayer of this paragraph is that a temporary restraining order be issued restraining appellee from committing further waste or damage; that he have possession of said premises, and have judgment for damages, etc. The third paragraph is like the second, except it does not ask for injunctive relief, and it contains the additional averments that appellee knew when said lease was extended that appellant was contemplating a sale of the real estate, and that appellee agreed that, if such sale was made, he would surrender to the purchaser the possession September 1, 1897. The question thus presented is, does the complaint show any right of action in appellant? Appellant concedes the rule to be that, if a landlord conveys real estate in the possession of a tenant, and such conveyance is without any reservation, an action for possession must be brought in the name of the grantee or owner. This is evidently the view taken by the supreme court in transferring the case here,

for, if the relation of landlord and tenant does not here exist, it is clear that this court is without jurisdiction. This court has not jurisdiction in possessory actions for real estate unless the relation of landlord and tenant exists between the parties. It follows from this that the supreme court must have held that at least one of these paragraphs of complaint for the purposes of this action showed that the relation of landlord and tenant did exist; otherwise, the jurisdiction was in that court. In any event, the statute makes a transfer by either court to the other final. If appellant is the real party in interest, as shown by his complaint, then he may maintain the action; for, under the statute, an action can only be prosecuted by the real party in interest. Section 251, Burns' Rev. St. 1894. As to whether appellant can maintain the action under the averments of the complaint depends upon the construction of sections 251 and 1086, Burns' Rev. St. 1894 (sections 251 and 1073, Horner's Rev. St. 1897). Section 251, supra, is as follows: "Every action must be prosecuted in the name of the real party in interest," etc. Section 1086 (1073), supra, reads as follows: "Any person having a right to recover the possession of real estate or to quiet title thereto in any other person or persons, shall have a right to recover possession or quiet title in his own name, and no action shall be defeated or reversed where it might have been successfully maintained in the name of another to inure to his benefit," etc. The case of Chapman v. Jones, 149 Ind. 434, 47 N. E. 1065, is decisive of the question here presented. There appellees prosecuted an action to quiet title to real estate. The complaint averred that they had conveyed the real estate to certain persons, naming them; that their grantees had also conveyed the land to other persons; and that appellants were claiming some right or interest in said real estate, which they asserted was paramount to the title conveyed by appellees. It was urged by appellees that, where an action of ejectment is brought, the defendant may notify his grantor, where the grant was by warranty deed, to come in and defend the title, and upon such notice he may be permitted to defend; and that, when such notice is given, whether the grantor defends or not, the judgment, if in favor of plaintiff, will be conclusive upon such grantor that such successful plaintiff's title was paramount to such grantor's title. In deciding the question the court said: "Conceding, without deciding, that such is the law, yet it would not follow that such grantor by warranty deed could prosecute a suit against one who might seize the possession of the land granted by him to another by warranty deed for the purpose of protecting his warranty, or for any other purpose. To permit such a suit to be maintained would violate a fundamental principle of our Code requiring every action to be prosecuted in the name of the real

party in interest. Section 251, Burns' Rev. St. 1894 (section 251, Rev. St. 1881). So strong is this rule that, notwithstanding section 1086, Burns' Rev. St. 1894 (section 1073. Rev. St. 1881), authorizing any person having a right to recover the possession of real estate, or to quiet title thereto, in the name of another person or persons, to prosecute either action in his own name, it has been held that it must be construed along with section 251, supra, so that under the two sections no such action can be brought in any other than the name of the real party in interest. Peck v. Sims, 120 Ind. 340, 22 N. E. 313. Prior to the enactment of section 1086 (1073), supra, if lands were conveyed while in the adverse possession of a third person, a suit for possession could be prosecuted in the name of the grantor for the use of the grantee. Steeple v. Downing, 60 Ind. 478; Burk v. Andis, 98 Ind. 59. But that can no longer be done under the two sections of the Code. The action now must be brought in the name of the real party in interest, under the operation of the two sections," etc. The case of Peck v. Sims, supra, is also in point, and it was there held that one who has conveyed land adversely occupied by another cannot maintain an tion in his own name to recover possession for the benefit of his grantee, and that such action must be brought in the name of the grantee, who is the real party in interest. The rule announced in these two cases is certainly a sound one. If the rule were otherwise, the party in possession might be harassed by two suits. If the grantor can prosecute the action, and should be defeated, then the grantee could also bring his action in ejectment, as he was not a party to the action of his grantor, and hence would not be bound by it. The party in possession would thus be harassed by a multiplicity of suits. Each paragraph of the complaint affirmatively shows that Troyer was to have possession of the real estate conveyed September 1, 1897. It therefore appears that he was the real party in interest, and, under the statutes and the authorities cited, was the only person authorized to prosecute an action against appellant for possession. The court correctly sustained the demurrer to the second and third paragraphs of complaint. Judgment affirmed.

ac

(24 Ind. App. 694)

FOLZ v. WAGNER. (Appellate Court of Indiana. May 29, 1900.) BREACH OF PROMISE-DEMAND-RELEASE. 1. Even if a woman, to perfect her suit for breach of promise, must ever demand fulfillment of his promise, it is not necessary where he notified her of his intention to, and did, marry another.

2. Defendant having written plaintiff merely telling her that he had proved false to her, and was in a few days going to marry another. no release from his contract is shown by her letter stating that, heartbroken, she answered