Robinson v. Jamison. or direction given therefor, or that the appellants were using any means whatever to procure the possession of the property. In the absence of any such allegations, the complaint fails to show either a necessity or reason for an injunction. The appellees did not appear in this court, and the case was submitted on default. Subsequently, they filed a written motion to dismiss the appeal, on the ground that no sufficient abstract of the record was filed, and for the further reason that but one copy of an abstract was filed, instead of two, as required by the rule of this court. The record is a brief one, and we think the abstract was sufficient, and the motion to dismiss because only one was filed comes too late, after the submission of the cause. The order of injunction is reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion. F. W. Viehe, for appellants. J. C. Denny and G. G. Reily, for appellees. ROBINSON V. JAMISON. SUPREME COURT.-Evidence.-The Supreme Court will not interfere with a finding because it is contrary to the weight of conflicting evidence. SAME.-Complaint.—Demand.— Verdict.—The Supreme Court will not reverse a judgment, in a cause in which there is an answer, because the amount of the finding is greater than the amount claimed in the complaint. APPEAL from the Howard Common Pleas. GREGORY, C. J.-This was a suit by the assignee against the maker, on a promissory note payable to one Jones. The defense was failure of consideration, payment to Jones before notice of the assignment, and breach of covenants in a deed executed by Jones and wife to the defend The Jeffersonville, Madison, and Indianapolis Railroad Co. v. Ghon. ant for real estate, the purchase-money of which was the consideration of the note. Reply by way of estoppel, that at the time the plaintiff was negotiating for the note, he called on the defendant to know if he had any defense to the note, and that the latter told the former he had not, and that the note was all right, and that he would pay it. The issues were submitted to the court; finding for the plaintiff for the amount of the note, including the interest; motion for a new trial overruled. It is claimed in argument, that the evidence does not sustain the finding. Whatever we might think of the weight of the evidence, the finding is not so clearly wrong as to authorize this court, under the rule of law on this subject, to interpose. The only other question presented by the argument for the appellant is, that the amount claimed in the complaint was only $1,400, whilst the amount found was $1,436.84, and therefore erroneous. This point was met, and decided adversely to the appellant, in Webb v. Thompson, 23 Ind. 428. Judgment affirmed, with costs. G. Holland and C. C. Binkley, for appellant. THE JEFFERSONVILLE, MADISON, AND INDIANAPOLIS RAILROAD COMPANY V. GHON. APPEAL from the Bartholomew Circuit Court. ELLIOTT, J.-Ghon sued, and recovered a judgment against the railroad company, for the value of a heifer, killed by a locomotive on the track of the company's road, at a point where the road was not fenced. Bowser and Another v. Palmer. The case is brought to this court on the evidence. The finding below is objected to on the ground that the company was not required to fence the road at the place where the heifer was killed. The jury that tried the case in the circuit court found otherwise, and we think the evidence sustains the finding. The judgment is affirmed, with ten per cent. damages and costs. S. Stansifer, for appellant. BOWSER AND ANOTHER V. PALMER. PROMISSORY NOTE.-Attorney's Fees.-Evidence.-On the trial of an action on a promissory note which provided for the payment of "all costs and attorney's fees for collection," if the note should not be paid at maturity, the only evidence introduced was the note sued on. Held, that there could be no finding for attorney's fees. APPEAL from the Allen Common Pleas. Suit by the appellee against the appellants on a promissory note for nine hundred and thirty-two dollars, with interest, and "all costs and attorney's fees for collection, if said note is not paid at maturity." Answer, the general denial. On the trial, the only evidence introduced was the note. The finding was for the plaintiff, and included fifty dollars for attorney's fees. The defendants filed a motion for a new trial for the reasons: "1st. That the finding of the court is not sustained by the evidence. "2d. That the finding of the court is contrary to law. "3d. That the court erred in making an allowance of attorney's fees in favor of said plaintiff, and that the same is not sustained by the evidence, and is contrary to law." Goings v. White. The motion was overruled, and the defendants excepted; and judgment was rendered on the finding. FRAZER, J.-The judgment below cannot stand. There was no evidence whatever upon which to base the finding of the court for attorney's fees. Reversed and remanded, with direction to grant a new trial. J. A. Fay, for appellants. W. H. Coombs and W. H. H. Miller, for appellee. GOINGS V. WHITE. FRAUD.-Pleading.—A complaint for damages for fraudulent representations by the vendor in the sale of land must contain an averment that the plaintiff relied upon the representations. The want of such averment cannot be supplied by a recital of evidence which might justify a presumption that the representations were relied upon, unless such evidence be conclusive of the fact. APPEAL from the Delaware Circuit Court. Suit by the appellee against the appellant. The complaint was in two paragraphs. The defendant filed a separate demurrer to each, for want of sufficient facts, which the court overruled, and the defendant excepted. The first paragraph alleged, that the parties resided in Delaware county, in this State; that on the 25th of February, 1867, the defendant owned forty acres of land, described, in Hardin county, Iowa, and the plaintiff owned some real estate in Selma, in said Delaware county; that the plaintiff had never seen said Iowa land and had no knowledge of it except such as he derived from the defendant; that the plaintiff and defendant exchanged said property, the plaintiff conveying to the defendant, and the de 33 125 141 479 Goings & White. fendant conveying to the plaintiff; that the defendant's land was taken at five hundred dollars, the price agreed upon; that at the time of the treaty between the parties, the plaintiff told the defendant that he, the plaintiff, knew nothing about the land, and if he took it, he must take it at the defendant's statements, and must rely upon the defendant's representations about the quality and value of the land; that the defendant assured him that he would find the laud just as he, the defendant, stated it; that the defendant assured him that the land lay within two and onehalf miles of Eldora, the county seat of said Hardin county; that said town was one-third larger than Muncie, Indiana; that said land was dry and tillable; that twenty acres of it was broken, and fenced on two sides; that the defendant's brother had entered it for him; and that it was worth five hundred dollars; when, in truth, said land lies twenty miles from Eldora, which is a town not one-fifth the size of Muncie; that said land is not dry, tillable land, but is all low, wet, swampy land; that it cannot be drained, and cannot be farmed; that no part of it is or ever has been broken; that there is no fence upon any portion of it; that the defendant's brother did not enter it, but the defendant bought it or traded for it of one Jones; and that, for the purpose for which the plaintiff bought it, it is of no value whatever. RAY, J.-The first paragraph of the complaint was insufficient, and the demurrer should have been sustained to it. There is no averment that the plaintiff relied upon the representations of the defendant. The want of such averment cannot be supplied by a recital of evidence which might justify a presumption that the representations were relied upon, unless such evidence be conclusive of that fact. The judgment is reversed, with costs; and the cause remanded, with directions to sustain the demurrer to the first paragraph of the complaint. C. E. Shipley, for appellant. |