Barker v. Wallace.

the ruling below on the demurrers and in overruling a motion for a new trial.

The objection which the counsel for the appellant make to the first paragraph of the complaint is, that it does not show that the plaintiff performed a condition precedent, which she was bound by the contract to perform. They insist that as the plaintiff was to emigrate to Missouri she was not only to settle in that State, but that she was to make it the place of her fixed, continuous and permanent residence and domicile. And it is insisted that as the plaintiff did not do this, but on the contrary returned to the State of Indiana, at the end of six months from the time she left it, she can not recover.

It is clear from the allegations of the complaint, that the plaintiff was not required to reside in Missouri for the residue of her life, as a condition precedent to her right to recover the whole sum of five hundred dollars. The one hundred dollars was to be paid to her in two or three weeks after she started for Missouri, and the remaining sum of four hundred dollars was to be paid to her along, "as she might require it for the support of her family." Without stopping to inquire whether the allegations of the complaint were sufficient to entitle the plaintiff to recover the four hundred dollars, we think it is manifest that they were sufficient to entitle her to recover the one hundred dollars, and, therefore, that the demurrer to the paragraph was correctly overruled. As to the sum of one hundred dollars, it is clear from the allegations that the plaintiff' did all she was bound to do before being entitled to recover it.

The objection urged to the second paragraph is, that it does not aver that the defendant had notice that the plaintiff had conveyed the land to the child, nor that any demand was made before the action was brought.

If the defendant had notice that the plaintiff had conveyed the land according to the contract, then it is clear

Barker v. Wallace.

that no demand was necessary before bringing the action. And, from the manner in which the matter is stated in the pleading, we think it must be inferred that the defendant had such notice. It is alleged that the defendant made to the plaintiff the proposition, which she accepted, and that she conveyed the land accordingly.

From the pleading it does not appear that the plaintiff was to convey the land at some future time, but the inference is that the making and acceptance of the proposition and the execution of the deed were parts of a continuous transaction, and we think it is not to be presumed, from the allegations, that the defendant was ignorant of the fact that the plaintiff complied with the contract on her part by executing the deed. The objection to the paragraph is not, in our opinion, well taken.

On the trial of the cause the court gave to the jury the following instruction, to which the defendant excepted: "Gentlemen of the jury, if you believe from the evidence in the case that the contract set forth in the first paragraph of the complaint was made, and that the defendant agreed in that contract to pay the plaintiff the sum of five hundred dollars to move to, and remain in, the State of Missouri, and that for that sum the plaintiff was to remove to the State of Missouri and remain there during her life, or any other given length of time, and she did not remain the agreed length of time, if there was one, she could not recover on that contract unless she was prevented from remaining there by some act of the defendant. In other words, if you find from the evidence that the payment of the money (whatever sum was agreed upon, if any,) was the condition on which she was to remain the agreed length of time, if there was any such agreement, and it was necessary for her to have the money to remain in the State of Missouri the agreed length of time, and it was understood that her continuing to live there was conditional upon the

Barker v Wallace.

payment, and that the money was not paid by plaintiff to the defendant" [defendant to plaintiff?], "she could recover, although she did not remain in the State of Missouri the agreed length of time. And she would be entitled to recover whatever sum the defendant agreed to pay her for going and remaining in the State of Missouri for the entire time she was to remain."

We think the latter branch of the charge, in regard to the measure of damages, was erroneous.

The substance of the charge in respect to damages was, as we understand it, that, if the plaintiff was prevented from performing her part of the contract in full, by the failure of the defendant to perform his part, in not paying her as by the contract he was to pay her, and if such payment was the condition on which the plaintiff was to perform her part of the contract by remaining in Missouri for the stipulated length of time, she may recover the full amount which he was to pay her for the full performance of the contract on her part, though only partially performed by her.

We see no substantial difference between the case here and a case which, for illustration, we will suppose. Suppose that A. hires B. to build a house for $6,000, one-half of which is to be paid when the walls are up, and the other half when the house is completed. B., having erected the walls, expects his $3,000. He needs it to enable him to go on and complete the house. Its payment was a condition. precedent to his obligation to finish the house. But A. refuses to pay it or any part of it; whereupon B. abandons the work and sues A. upon the contract. It is clear that his measure of damages is not the full sum that he was to have for the full and complete construction of the house. The rule of damages in such case, it seems to us, is recompense at the contract price for the work done, and indemnity for loss in respect to the part unexecuted. See Sedgwick Damages, 6th ed., top pages 250, 265, and notes.

Reeder v. English et al.

The judgment below is reversed, with costs, and the cause remanded for a new trial. It having been suggested that one of the parties has departed this life since the cause was submitted, it is ordered that judgment be entered as of the term when the cause was submitted.

REEDER V. ENGLISH ET AL.

SUPREME COURT.—Assignment of Error.-Record.—An assignment of error, questioning the correctness of an alleged ruling, which in fact does not appear by the record to have ever been made, presents no question for decision.

SAME.-Bill of Exceptions.--The signature of the proper judge is necessary to the validity of a bill of exceptions.

From the Tipton Circuit Court.

M. Bell, C. E. Hendry, J. W. Robinson and McDowell, for appellant.

D. Waugh and J. A. Swoveland, for appellees.

WORDEN, J.-This was an action by the appellant, against the appellees, to set aside a certain judgment which had been taken against the appellant by default.

Issue; trial by jury; verdict and judgment for the defendants.

Two errors are assigned:

First, in overruling the demurrer to the first paragraph of the answer of John English, Thomas E. Miller and George B. Joice; and,

Second, in overruling the motion for a new trial.

Upon turning to the record we find that the defendants. named in the assignment of error filed an answer of two paragraphs, the first of which set up new matter in avoidance, and the second was the general denial. No demur

Hessong et al. v. Rosenstihl.

rer was filed to the first paragraph, but there was to the second.

Had the assignment of error alluded to the demurrer to the right paragraph of answer, still it would have been. unavailable, as the general denial, to which the demurrer was addressed, was well pleaded. Doubtless the pleader intended to address his demurrer to the first paragraph of answer, but we must take the record as we find it.

No question is raised by the motion for a new trial, because there is no bill of exceptions in the record. There is a paper in the record purporting to be a bill of exceptions, but it lacks an indispensable requisite to a bill of exceptions, viz., the signature of the judge.

The judgment below is affirmed, with costs.

HESSONG ET AL. v. ROSENSTIHL.

SUPREME COURT.-Exception to Judgment.—Practice.—An objection to the form or substance of a judgment can not be made for the first time in the Supreme Court on appeal.

SAME.-Record.-New Trial.-Where error is assigned on the ruling on a motion for a new trial, such motion should be in the record on appeal to the Supreme Court.

From the Boone Circuit Court.

C. C. Galvin and C. S. Wesner, for appellants.

Howk, J.-In this action the appellee, as payee, sued the appellants, as makers, of a promissory note.

Two of the appellants, Sassman and Conrad, though duly served with process, made default.

The appellant Hessong answered in a single paragraph, setting up that he was a surety merely on the note in suit, and that the appellee had, after the note became due, for a valuable consideration paid to