J. A. Van Osdol, McConnell & Jenkines and Jenkines & Stuart, for appellant. Walters & Long, for appellees.

BLACK, J. This was a proceeding instituted by the Indianapolis Northern Traction Company, of which the appellant is the successor, for the appropriation, under the statute, of land for the way of an electric street and interurban railroad through agricultural lands of the appellees. The appellant presents for review the action of the court below upon certain instructions.

In one of the instructions given the court told the jury that, in determining the amount of damages, they should not consider or make any allowance for the benefits "which may have resulted, or may be supposed to result in the future, to defendants, or to their said lands by reason of the construction of said electric railway by plaintiff, for the purposes of which this appropriation is made, through the community in which defendants' lands are located. The law excludes any such benefits or supposed benefits from consideration in cases of this kind." Since the bringing of this appeal we have had occasion in a number of cases to consider the question presented in this instruction. See Indianapolis Northern Traction Co. v. Dunn (Ind. App.) 76 N. E. 269; Indianapolis Northern Traction Co. v. Ramer (Ind. App.) 76 N. E. 808; Carrell v Muncie, etc., Ry. Co. (Ind. App.) 78 N. E. 254. While a comparatively large portion of appellant's brief is given to this question, it is not improper to say that, in a recent oral argument of the cause, it was not pressed by the appellant, probably because of those intervening decisions, to which we still adhere.

The appellant objects here to the seventh instruction given at the request of the appellees, because in mentioning therein certain circumstances which it was said if they existed, might be considered by the jury, the court did not expressly confine such consideration to matters shown by the evidence to exist, and also on the ground that the instruction invited the indulgence of conjecture and the consideration of speculative and fanciful damages, and further because the instruction permitted consideration of inconvenience and danger, if any, to the owner or his family, in crossing the track and right of way of the appellant. The circumstances which the jury were thus permitted to consider were not submitted to them as separate and additional elements of damages, but the jury were told that they might consider them, if they existed, in determining the extent of the damage, if any, to the remainder of the farm, as affecting the extent of the depreciation in the value of the land, if any. No particular circumstance of those referred to in the instruction is specifically designated by the appellant as beIng objectionable, except that relating to in

convenience and danger to the owner "or his family"; emphasis being placed on the last three words, no objection being urged against the additional words "or his stock," in the instruction.

It is stated by the appellees in their brief that there is abundant evidence on all the points suggested in the instruction, and this statement is not contradicted by the appellant, nor is it claimed as to any matter referred to in the instruction that there was not evidence relating to it. In an instruction given at the request of the appellant, the court told the jury, amongst other things, that they should in their deliberations agree upon and find no damages for the appellees "until you can agree and find that a preponderance of all the evidence in the case sustains and justifies you in believing that a particular sum will be a fair measure of compensation and damages to which the appellees are entitled." In an instruction given at the request of the appellees, the jury were told that it was their duty to render a verdict in accordance with the law applicable to the case, as stated to them by the court, and in accordance with the evidence, as it had been given under the direction of the court in the trial of the cause; that they were not at liberty to disregard either the law or the evidence as thus placed before them, and were not at liberty to follow their own opinion, if contrary to the law or evidence so given. In other instructions given at the request of the appellant, the jury were told that they could not allow any damages in this case which were remote, imaginary, uncertain and conjectural, or speculative in their nature, even though testified to by witnesses; that the damages must be such, and only such, as would compensate the appellees for their actual pecuniary loss; and the damages were limited expressly by instructions given at the request of the appellant to the fair market value of the land taken for the right of way, the damage to the remainder of the farm, and the value of the crops, if any, growing on the right of way when possession was taken, and destroyed by appellant. The instructions must be considered as a whole, and the jury would not be misled by the mere omission from the seventh instruction above mentioned, of words expressly limiting their consideration to such matters therein referred to as were shown by the evidence. This would be especially true where there was, in fact, evidence relating to all such matters. And so far as the references in the instruction were general, the jury would not understand from the instructions as a whole that such references did not extend to merely conjectural or speculative losses. A party complaining here of an instruction given to the jury should be able to show how he was substantially injured by it. The seventh instruction above mentioned does not appear to have been ma

terially erroneous. See Indianapolis Northern Traction Co. v. Dunn, supra; Indianapolis Northern Traction Co. v. Ramer, supra.

Objection is made to the tenth instruction given at the request of the appellees, wherein, after referring to the fact that the appellant's attorneys in cross-examination of witnesses of the appellees had been permitted to ask the witnesses what was the value per acre of certain portions of the farm of the appellees, taken separately, after the appropriation, the court instructed that these questions were proper only as a means of testing the knowledge of the witnesses as to the value of the land of the appellees concerning which they had testified, and to disclose the manner .in which the witness arrived at his estimate of value and the basis thereof, and for no other purpose. The land in question consisted of 65 acres in one body, used as a farm by its owners, the appellees, and the railroad ran across it diagonally. In such case the damages should be considered and assessed for the entire farm (Chicago, etc., R. Co. v. Huncheon, 130 Ind. 529, 30 N. E. 636), and an instruction was asked by the appellant, and given, in which the value of the land to be considered by the jury was said to be the price for which the real estate would have sold in a body. Elliott on Railroads, §§ 995, 1038.

See

The objections urged here against the eleventh instruction given at the request of the appellees are that in referring to certain circumstances which might be considered in assessing the damages, the court in this instruction failed to designate them expressly as matter shown by the evidence, and therefore virtually invited the jury to consider remote, conjectural and fanciful damages. What we have said of the seventh instruction of the series proposed by the appellees, is applicable to these objections.

In the fifteenth instruction given, at the request of the appellees, it was said that the appellant can hereafter lay any number of tracks it chooses on this right of way appropriated through the farm of the appellees, and can run any number of cars over such tracks, without being required to render to the appellees any additional compensation or additional damages; and that if the jury believed from the evidence that there was a probability of the appellant's laying more tracks in the future on this right of way and running a greater number of cars over those tracks, and "if you believe that such additional tracks and cars would be an additional damage to the defendants, then you may properly consider such probability as an element of damage and grant compensation therefor in your verdict." The only objections urged against this instruction were the same as those suggested as to the eleventh instruction above mentioned. The only portion of this instruction to which such objection is applicable is the omission of the words, from the evidence, after the word "be

lieve," in the portion of the instruction quoted above. While such words thus omitted would have been proper, yet we are unable to conclude that the jury would probably be misled by such omission. What we have said in considering the seventh instruction is also applicable here.

It was proper to consider in this proceeding all damages present and future, arising from the proper construction and operation of the railroad. Such damages not recovered in this proceeding could not be recovered in a subsequent action. By this proceeding the appellant obtains the right, as against the appellees, to construct additional tracks on its right of way now acquired, and the right to run any number of cars which it may find it profitable or convenient to run in the proper management of its business as an interurban railroad running through and connecting many towns and cities. At the time of the awarding of damages by the jury there could not be a certainty as to the number of tracks, or as to the number and location of side tracks or switches on the right of way upon the land of the appellees, or as to the number of cars that will be used; but there was a certainty that a right was being acquired in the present which constituted a certain present effect on the value of the real estate, and the compensation to the landowners must be made now, if ever. The amount of that compensation was dependent upon the probabilities shown by the whole evidence as to the extent of the injury. See White v. Chicago, etc., R. Co., 122 Ind. 317, 23 N. E. 782, 7 L. R. A. 257.

By the sixteenth instruction given at the request of the appellees, the court stated that the appellees "have no right to lay water pipes or to construct private drains across plaintiff's right of way without plaintiff's consent. This fact may properly be considered by you in fixing the amount of defendant's damage by reason of this appropriation by plaintiff, if you believe it would have any effect upon the amount of such damage." With regard to the omission of the words, from the evidence, after the word "believe," we may refer to what we have said concerning such omission in other instructions. This instruction is criticised by the appellant as not sufficiently confining the jury to the consideration of such pipes and drains as were shown by the evidence to be reasonably and properly necessary in the use of the land for farming purposes.

In other instructions, the jury were directed, in effect, to consider the difference caused by the appropriation between the cash market value of the land immediately before the appropriation and its cash market value immediately thereafter, to consider the farm as it then was, the uses to which the appellees were putting their farm at the time of the appropriation and to which it was adapted, and the jury were told that the damages should be assessed for the entire

farm as a whole, and that the fair value of the land at the time of the appropriation was the amount for which it would have sold, in a body, at that time, etc.; and, under the instructions as a whole, the jury cannot reasonably be supposed to have regarded themselves as at liberty to consider the reference to pipes and drains in the sixteenth instruction, as intended to apply to uses other than for farming purposes.

The court refused an instruction asked by the appellant, as follows: "Verdicts are sometimes spoken of as 'compromise verdicts.' It is perfectly proper, and, indeed, it is his duty, for each juror to be open to the influence of such arguments and reasons advanced by his fellow jurors as shall appeal to his intelligence and understanding; but it is not right for any juror while holding an intelligent belief on any matter material to the issue, based on his understanding of the evidence in the case, to agree to a verdict which does violence to such belief. A compromise verdict which does violence to a candid belief of any juror derived from the evidence is an unjust verdict."

The only question in dispute was that relating to the amount of damages, and whatever may be said as to the correctness of the statements in the instruction thus refused, there could be no error in the refusal sufficient to warrant the reversal of the judgment, inasmuch as the court, in another instruction given at the request of the appellant, told the jury that the burden of proof being on the appellees, if the evidence as to any given amount of damages was equally balanced, the verdict as to such an amount should be against the appellees, and that the jury in their deliberations should agree upon and find no damages for the appellees until they could agree and find that a preponderance of all the evidence in the case sustained and justified them in believing that a particular sum would be a fair measure of compensation and damages to which the appellees were entitled.

We do not find any available error. Judgment affirmed.

(39 Ind. A. 11)

VANDALIA R. CO. v. STEPHENS. (No. 5,869.)

(Appellate Court of Indiana, Division No. 1. Oct. 30, 1906.)

1. PLEADING - COPY OF ACCOUNT-FENCE ALONG RIGHT OF WAY..

A claim by the owner of land adjoining a railroad right of way, shown by an itemized statement presented to the railroad company, under the statute providing that, if the company neglects for 60 days "to pay said account," the owner may bring suit and recover the reasonable value of a fence erected by him along the right of way, is not an account within Burns' Ann. St. 1901, § 365, providing that when a pleading is founded on an account the original or a copy must be filed with the pleading.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 996.]

2. RAILROADS-MAINTENANCE-FENCES-RECOVERY OF EXPENSE OF ERECTION BY ADJOINING OWNER.

The erection of a fence on the line between a railroad right of way and land of an adjoining owner is a substantial compliance with Burns' Ann. St. 1901, §§ 5323, 5324, requiring the fence to be built on the margin or border of the right of way as near as practicable to the line between the right of way and the abutting owner, and entitles the owner to recover from the railroad the expense of erecting the fence.

3. SAME-COSTS-ATTORNEY'S FEES.

In an action by an adjoining owner against a railroad to recover the expense of erecting a fence along the right of way, he was entitled to recover an attorney's fee without proof that he had employed an atttorney to enforce the collection of the cost of the fence.

Appeal from Circuit Court, Clinton County; Joseph Clay baugh, Judge.

Action by Stephen T. Stephens against the Vandalia Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Thomas & Foley, for appellant. Joseph Combs, for appellee.

ROBINSON, C. J. Appellee recovered a judgment for the cost of erecting a fence along appellant's right of way. Overruling a demurrer to each of the two paragraphs of amended complaint and overruling appellant's motion for a new trial are assigned as error.

The sufficiency of each paragraph of the complaint is questioned on the ground that no copy of the certified itemized statement of the expenses of building the fence is filed with either paragraph. While the statute says that if the company neglects or refuses for 60 days "to pay said account" the landowner may bring suit and recover the reasonable value of such fence, yet this itemized statement is not an account within the meaning of section 365, Burns' Ann. St. 1901, providing that when a pleading is founded on an account, the original or a copy must be filed with the pleading. The action is not based upon any demand arising out of any contract or other relation between appellee and appellant. The action is based primarily upon appellant's failure to perform a statutory duty. Appellee sues upon a claim he has against the company, and not upon an account which he has with the company. "The primary idea of an account, computatio," said Chief Justice Shaw in Whitwell v. Willard, 1 Metc. (Mass.) 216, "whether we look to the proceedings of courts of law or equity, is some matter of debt or credit, or demands in the nature of debt and credit between parties. It implies that one is responsible to another for moneys or other things, either on the score of contract, or of some fiduciary relation of a public or private nature created by law or otherwise." See Stringham v. Board, 24 Wis. 594, Bouvier L. Dict. A claim is defined to be, "in a juridical sense, a demand of some matter as of right made by one person upon another, to do or forbear

to do some act or thing as a matter of duty." Anderson's L. Dict. See Burrill; Prigg v. Pennsylvania, 16 Pet. (U. S.) 615, 10 L. Ed. 1060. It is quite true that every account upon which a sum of money is, or is claimed to be, due to the person prosecuting it, is a claim, but every claim is not an account. An account must arise out of some contract or other relation between the parties. A claim may arise in the same manner, and it may also arise out of a tort.

The foundation of the action may be the work and labor done and the materials furnished, but the work and labor were not done nor the materials furnished by virtue of any contract, express or implied, between the appellant and appellee. When the company failed to build the fence after the statutory notice had been given, it must know that the landowner might build it and collect the cost. The purpose of the verified itemized statement is to notify the company that the landowner has built the fence, and of the expense that has been incurred in building it. With this itemized statement the company has 60 days to investigate the correctness of the claim, and, if not then paid, the statute gives the landowner the right to sue and recover the reasonable value of the fence, together with reasonable attorney's fees. When the landowner has complied with the statute he has a demand as of right against the company for the reasonable value of the fence built, and not a demand due him by virtue of his having complied with any contract, express or implied, between him and the company.

Further objection is made that the pleading does not show that the fence was placed upon the right of way as near as practicable to its outer margin. The averment is that "the plaintiff entered upon said right of way at the point where said real estate abutted on the same, and built a good, substantial post and wire fence on the lines dividing said real estate from said right of way, on both sides of said right of way where the same runs through said real estate." By sections 5323 and 5324, Burns' Ann. St. 1901, construed together, the fence should be built on the margin, edge, or border of the right of way, as near as practicable to the line between the right of way and the abutting owner. Chicago, etc., R. R. Co. v. Wood, 30 Ind. App. 650, 66 N. E. 923; Evansville, etc., R. Co. v. Huffman, 32 Ind. App. 425, 70 N. E. 173. It is clear that the landowner should not be permitted to build the fence away from the line on the right of way, and thus wrongfully deprive the company of part of its right of way. Even if the pleading be construed to mean that the imaginary line dividing the right of way and the abutting land passed through the center of each post, we could not say that there had not been a substantial compliance with the requirements of the statute. It might still be said that the fence

was on the edge or border of the right of way. Moreover, if one-half of the posts extended over on appellee's land he is the only person affected. Such construction of the fence could not injure the company. A fence so built would be none the less the property of the company. Keeping in view the purpose for which the statute was enacted (Terre Haute, etc., R. Co. v. Salmon, 161 Ind. 131, 67 N. E. 918) we think it would be a technical and narrow construction of the statute to hold that the above averment makes the complaint bad against a demurrer.

In support of the motion for a new trial, it is argued that appellee was not entitled to recover an attorney's fee in the absence of proof that he had employed an attorney to enforce the collection of the cost of the fence. In Terre Haute, etc., R. Co. v. Salisbury (Ind. App.) 77 N. E. 1097, the question here presented was decided against the position taken by appellant's counsel in this case. Judgment affirmed.

(39 Ind. A. 39)

ELWOOD NATURAL GAS & OIL CO. et al. v. KULLMAN. (No. 5,933.)

(Appellate Court of Indiana, Division No 1. Oct. 31, 1906.)

PLEADING-SETTING OUT CONTRACT.

An action which is based upon a complaint alleging a contract under which complainant was to be furnished gas in his dwelling, and which asks an injunction restraining the threatened disconnection of complainant's service pipe in violation of such contract, to his irreparable injury, etc., is, in substance, an action on the contract so as to require the contract to be made a part of the complaint.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 936.]

Appeal from Circuit Court, Madison County; Dan'l W. Comstock, Special Judge.

Action by Leo Kullman against the Elwood Natural Gas & Oil Company and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Gilbert R. Call, for appellants. B. H. Campbell and Bagot & Bagot, for appellee.

MYERS, J. In the court below, by this action, appellee sought and obtained a permanent injunction restraining appellants from in any manner interfering with his supply of gas at his residence, as now furnished by them. From the complaint it appears that on October 31, 1902, appellee entered into a written contract with appellant, Elwood Natural Gas Company, whereby, on the payment of $75, which he avers to have paid said appellant, he was entitled to be furnished by said appellant gas in his dwelling for fuel and light, and otherwise averring the effect of the various stipulations of the contract. Also, that appellants are threatening, and will, unless enjoined, disconnect his service pipe from their gas mains, in violation of the terms of said contract, to his irreparable

injury, etc. A demurrer of each appellant to this complaint was overruled.

The first question here presented challenges the sufficiency of the complaint. By the averments of this complaint it is clear that it rests upon the theory of a right in appellee to the continued use of gas, and the liability of appellants to furnish the same, created by a written contract. This contract is not made a part of the complaint either by exhibit or otherwise. While this action is one sounding in tort, the wrong is the threatened malfeasance of appellants or breach of duty arising out of the contractual relations, for which the remedy sought, in effect, imposes upon appellants specific performance of the contract on their part. The action is therefore, in substance, on the contract. See Schoppel v. Daly (La.) 36 So. 322; Whittaker v. Collins, 34 Minn. 299, 25 N. W. 632, 57 Am. Rep. 55. The failure of the pleader to make it a part of the complaint is a question discussed and decided in Elwood, etc., Oil Co. v. Glasby (Ind. App.) 77 N. E. 956, and, upon the authority of that decision, the judgment in this case is reversed.

(39 Ind. A. 28)

VAN CAMP v. CITY OF HUNTINGTON. (No. 5,843.)

Division No. 1.

(Appellate Court of Indiana. Oct. 31, 1906.) CORPORATIONS-CONTRACTS

1. MUNICIPAL

EXECUTION-SUFFICIENCY.

Where a city council, on motion, authorized the mayor to enter into a contract with a certain person as janitor of the city building, one of the members of the council giving notice that he would vote with the majority so that he could reconsider his vote at the next meeting, and a written contract was drawn and signed by the mayor and the person named, and filed with the city clerk, but the council refused to approve the contract, and reconsidered the former motion and selected another janitor, the contract was not duly executed so as to become binding on the city.

2. PLEADING - GENERAL DENIAL TION-DEMANDS.

VERIFICA

Where a paragraph of a complaint alleged the execution of a contract of defendant city for plaintiff's services as janitor, and the answer consisted of a general denial, not sworn to, the execution of the contract was conclusively admitted, but the city was not concluded as to the amount of damages recoverable. [Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 864.] 3. JUDGMENT-MATTERS TION OF CONTRACT.

CONCLUDED

EXECU

A judgment denying the relief asked, in a suit by a city to enjoin the exercise of the duties of janitor by defendant, where the answer alleged the execution of a contract authorizing him to act as janitor, was conclusive as to the execution of the contract in a subsequent action by the janitor for his services and for breach of the contract by the city, though the execution of the contract was admitted by the pleadings in the injunction suit by failure to verify the reply.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § 1266.]

Appeal from Circuit Court, Huntington County; Hiram Brownlee, Judge.

78 N.E.-67

Action by J. Locksley Van Camp against the city of Huntington. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

Lesh & Lesh and C. W. Watkins, for appellant. W. A. Branyan, for appellee.

BLACK, J. The appellant sued the appellee upon a written agreement dated December 29, 1904, and signed by the mayor of the city and the appellant, as follows: "By this agreement between the city of Huntington, Indiana, through J. Fred France, mayor of said city, all of which has been duly authorized by resolution of said council adopted the 27th day of December, 1904, J. L. Van Camp is employed to act in the capacity of janitor for the city building in said city for one year from December 28, 1904, to December 28, 1905, at a fixed salary of $40.00 per month, payable on the last day of each calendar month. The said Van Camp is to faithfully perform all the duties as janitor of the entire building and to keep the same properly heated and cleanly, and to look after the lighting and ventilation. In witness whereof" etc. The complaint contained two paragraphs, the first being for services rendered under the contract for a specified period; the second alleging that the appellant entered upon the discharge of his duties under the contract immediately after the execution thereof and continued to do all the things required of him until March 15, 1905; that he had been ready and willing, etc., but that the appellee had broken the terms of the contract and failed to comply therewith, in that it had refused to pay terms, and it had hampered him in the perhim moneys earned as they fell due by those formance of his duties by locking up the fuel, brooms, brushes, and other appliances provided for his use as janitor, and by such conduct made it impossible for him to carry out the contract; and the appellant had been damaged by said breach of the contract in an amount stated. Issues were formed, which were tried by the court, and a special finding was rendered. Counsel for the appellant, in argument before us, state their belief that "the substance of this controversy, the merits thereof, is fairly presented under the exception to the conclusions of law." Therefore we may confine our attention to the special finding, in which the court stated the facts substantially as follows:

The appellant was a resident of the city, whose common council consisted of 10 members. On December 19, 1904, and thereafter there was in force an ordinance of the city which provided: "When any question has once been decided in the affirmative or negative, any member voting with the majority may move a reconsideration thereof on the same, or at the next subsequent regular meeting." At a regular meeting of the common council, December 19, 1904, it fixed the salary of the janitor of the city building