their children." Upon these facts the court concluded "that the decedent received the $600 as trustee for his wife, the plaintiff, and that the estate of the decedent is liable to her therefor, with interest thereon from March 28, 1893, the date of the filing of the claim." The errors assigned are (1) "that the court erred in the conclusions of law stated upon the special findings of facts;" and (2) "that the court erred in overruling the appellant's motion for a new trial."

There is no conflict in the evidence, and its tendency is to establish all of the facts found by the court. Counsel for the appellant insist that, when appellee turned the money over to her husband, it was in the nature of a gift, and for that reason no right of action exists in her favor for its recovery. In support of this contention, counsel cite us to Perry on Trusts (3d Ed., § 666), where the author says: "If the husband uses the wife's property in his business for the support of his family, with her knowledge and consent, a gift may be inferred." It will be noticed that the learned author does not say that when the husband uses the wife's property in his business for the support of his family, with her consent, a gift "is" inferred, but only that it may or may not be inferred, according to the attending facts and circumstances. In Bristor v. Bristor, 93 Ind. 281, the court says, "It has long been the rule of the courts that when the husband, with the knowledge and consent of the wife, applied the income arising from her separate estate to the benefit of the family, no charge could accrue against him, in the absence of an understanding or agreement on his part to repay her." As an abstract proposition of law, the above quotation from Perry on Trusts may be true, but it is surely subject to limitation in its application. Much depends upon the facts and circumstances of each particular case; hence, it is almost impossible to announce a rule applicable to every case. The trend of the more recent cases is that, on account of the peculiar relation existing between husband and wife, the inference which naturally arises from a transfer of her separate property to him is to create a trust, and if a gift was intended the onus is upon the party seeking to uphold it, for as Mitchell, J., in Armacost v. Lindley, 116 Ind. 295, 19 N. E. 138, says, "Transac tions between husband and wife are presumably influenced by the peculiar relation which exists between them, and, where a husband obtains possession of the separate money or property of the wife, it must appear from all the circumstances that the wife intended to make a gift of it to him." While it is true, as stated in Bristor v. Bristor, supra, that when a husband receives and applies the income arising from his wife's estate to the support and maintenance of their family, with her knowledge and consent, she cannot recover the same back from him, in the ab

sence of an understanding or agreement on his part to repay her, yet the rule is different when he receives and uses the principal of her separate estate. This distinction is clearly made in many of our cases. Parrett v. Palmer, 8 Ind. App. 356, 35 N. E. 713; Hileman v. Hileman, 85 Ind. 1; Denny v. Denny, 123 Ind. 242, 23 N. E. 519. Following these cases, which we think are decisive of the questions involved in this case, the judgment will have to be affirmed. Judg. ment affirmed.

NEW YORK, C. & ST. L. R. CO. ▾. ZUMBAUGH.

(Appellate Court of Indiana. Nov. 1, 1894.) ACTION AGAINST RAILROAD COMPANY INJURIES TO LIVE STOCK-DEFECTIVE CATTLE GUARDS. 1. Rev. St. 1894, § 5323, relating to the fencing by a railroad company of its tracks, though it does not compel them to fence their road through uninclosed and unimproved lands, leaves them none the less liable for stock killed by a failure to fence through such lands.

2. In an action to recover for stock killed by reason of defective cattle guards along defendant's railroad track, evidence as to the materials and construction of the fence, together with testimony that at different times various animals had crossed the guards without injury and without being forced over, supported a verdict that the guards were insufficient.

3. In an action to recover for injuries to stock caused by the maintenance of defective track guards it appeared that the guard in controversy was a metal surface guard, that all the guards along the track were similar in material and construction, and it was not claimed that they were out of repair. Held, that witnesses could testify that they had seen stock walk over a guard some three or four miles distant from the one in controversy.

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

Action by Henry Zumbaugh against the New York, Chicago & St. Louis Railroad Company to recover for the death of stock caused by reason of defective guards along defendant's tracks. Plaintiff had judgment, and defendant appeals. Affirmed.

Packard & Drummond and Morris, Bell, Barrett & Morris, for appellant. Charles Kellison, for appellee.

GAVIN, J. The appellee recovered judgment against appellant for the value of stock which had entered upon its right of way by reason of insufficient cattle guards, and was then killed by its trains. The appellee's right of action is founded upon section 5312, Rev. St. 1894 (section 4025, Rev. St. 1881), and not upon section 5323, Rev. St. 1894, being the act of 1885, requiring in direct terms that railroad companies shall fence their lands under certain circumstances, and in default thereof the adjoining land owner may do so, and recover the cost thereof. Section 4 of this act of 1885, being section 5326, Rev. St. 1894, expressly provides: "Nothing in this act contained shall in any manner affect

or change the liability of railroad corporations, or of the assignees, lessees or receiver of such corporations for stock killed or injured upon their railroads; but such liability shall exist and be governed by laws now in force the same as if this act had never been passed." The liability of the railroad company for stock killed is not, therefore, in any degree limited or lessened by the terms of said section 5323. While they are not, by this section, compelled to fence their road through uninclosed and unimproved lands, they are none the less liable, under the former law, for stock killed by reason of their failure to fence their roads through such lands. Railway Co. v. Hughes, 2 Ind. App. 68, 28 N. E. 158; Louisville, etc., Ry. Co. v. Consolidated Tank Line Co., 4 Ind. App. 40, 30 N. E. 159; Railway Co. v. Wrape, 4 Ind. App. 108, 30 N. E. 427; Railroad Co. v. Dunlap, 112 Ind. 93, 13 N. E. 403.

Counsel urge the failure of the evidence to sustain the verdict, insisting that it fails to show the insufficiency of the cattle guards over which the horses passed in entering upon the right of way. The cattle guard was minutely described to the jury, both as to the materials and mode of construction. It also appeared from the evidence that at different times a bull, a colt, two mules, a cow, a buck sheep, and a cow and calf had been seen to walk over this guard, or similar ones in the vicinity of it, without any apparent injury, and without being forced across. In the light of all this evidence it was for the jury to determine the insufficiency of the guard, and we cannot overthrow its determination. Railway Co. v. Ritz, 33 Kan. 404, 6 Pac. 533; 3 Wood, Am. Ry. Law 1861, § 419. In our opinion, the evidence in all things sustains the verdict. Objection is made to testimony that a horse and a cow and some colts were seen to walk or pass over the guard, for the reason "that the cattle guard was not to be for a particular species of animals, but for all animals." It was certainly hardly to be expected that proof would be made by one witness that all kinds of animals walked over this guard upon one occasion. The fact that different animals, which ought to have been kept out by it, at various times crossed it apparently with ease, was a circumstance tending at least to establish its insufficiency.

Counsel protest earnestly against the action of the court in permitting witnesses to testify to seeing animals walk over a guard some three or four miles distant from the one in controversy. They insist that they ought not to be called upon to meet an issue as to a different guard, involving different occasions and facts from those under consideration. The guard in controversy was a metal surface guard. There was no evidence tending to show it to be out of repair, or imperfectly built. The vice, if any existed, was inherent in the plan and general make-up of the guard itself. There was evi

1. In replevin for an engine, where the defense was lawful possession under a purchasemoney mortgage executed by plaintiff, evidence is admissible in rebuttal to show that at the time possession was taken the damage to plaintiff by reason of a false warranty on the sale left nothing due on the mortgage.

2. In replevin for a traction engine sold to plaintiff, and afterwards seized by defendant for default in the payment of a purchase-money mortgage, evidence of a breach of warranty in the sale, without evidence of damage therefrom, does not justify a verdict for plaintiff.

Appeal from circuit court, Madison county; A. Ellison, Judge.

Replevin by Simeon Richardson and others against C. Aultman & Co. (a corporation), Amos G. Allen, and Mary Chapman for threshing machinery. From a judgment entered on a verdict for plaintiffs, defendant corporation appeals. Reversed.

F. W. Babcock and Chipman, Keltner & Hendee, for appellant. Goodykoontz & Ballard, for appellees.

LOTZ, C. J. This action was brought by the appellees against the appellant and Amos G. Allen and Mary Chapman to recover the possession of a traction engine, a separator, and straw stacker, of which the appellees claimed to be the owners. Allen and Chapman disclaimed any interest in the property. The appellant filed an answer in denial. Appellees had a verdict, in which all the property in controversy was found to be of the value of $500. The only questions presented for our consideration arise on the motion for a new trial. It appears from the evidence that the appellant sold to appellees a traction engine for $1,350. As part pay therefor, the appellant took an old engine at the agreed price of $400, and the appellees executed their notes for the remainder of the purchase money; one note being for $200 and two for $375 each. due at different times. The appellees, to secure the notes, gave to the appellant a chattel mortgage on the engine, separator, stacker, and a horse. One of the appellees also executed a mortgage on real estate to secure one of the $375 notes. At the time of the sale the appellant gave to the appellees a written warranty, in which it warranted the machinery to be made of good materials, and, with proper use and management, to do as good work as any other of its size, made for the same purpose, in the United States. The

chattel mortgage contained a condition that in case default should be made in the payment of the notes, or either of them, or in case the mortgagors should misuse the property mortgaged, the mortgagee might take possession of the property, and sell or dispose of the same at public auction or private sale at the option of the mortgagee, and out of the proceeds deduct the expenses of the sale, and apply the remainder to the amount then due or to become due upon the notes, rendering the surplus money, if any, to the mortgagors. The first note became due November 1, 1891. This note remaining due and unpaid, in May, 1892, the appellant took possession of the property named in the complaint, on account of the breach of the condition in the mortgage, and proceeded to adver tise the same for sale. This action was commenced before the sale took place. On the trial of the cause the appellant gave in evidence the chattel mortgage, and also evidence of the breach of the condition, for the purpose of establishing that it was rightfully in possession. The appellees, in rebuttal, gave in evidence the written warranty, and other evidence which tended to show a breach of the warranty, in that the engine would not do good work, and that the materials were not good, and of the value of the engine at the time it was taken by appellant. This evidence was admitted over the objection of the appellant, and appellant also moved to strike it out, which motion was overruled. These rulings are properly assigned as causes for a new trial.

The appellant, with much earnestness, insists that it was error to admit this evidence. It is contended that a breach of warranty is a matter of counterclaim growing out of contract, and cannot be interposed in an action in replevin,-an action in tort; that in no case can it be made available, except it be specially pleaded. In the recent, well-considered case of C. Aultman & Co. v. Forgy (Ind. App.) 36 N. E. 939, this court decided adversely to the contention of appellant. A breach of warranty may be used as a cause for an original action, a counterclaim, or as a matter of defense, at the option of the war. rantee. Brower v. Nellis, 6 Ind. App. 323, 33 N. E. 672; Thresher Co. v. Kennedy (Ind. App.) 34 N. E. 856. Whenever a breach of warranty is used as a matter of defense, it is by way of recoupment; that is, it cuts back, and destroys the plaintiff's right to recover. If, as a matter of fact, at the time the appellant took possession of the property, there was a breach of the warranty, and there was as much due the appellees on account of such breach as there was due the appellant on account of the notes and mortgage, then the appellant would have no right to the possession of the property. It is true that this case differs somewhat from the case of C. Aultman & Co. v. Forgy, supra. There the breach of warranty was interposed as a matter of defense; here it is interposed in re

The principle,

buttal to defeat a defense. however, is the same. The defense sought to be established by the mortgage, and the evidence of the breach of its condition, was that the appellant was lawfully in possession of the property. The appellees had a right to show, in rebuttal of this evidence, that there was nothing due the appellant, by reason of the damages accrued to them on account of the breach of warranty. Hutt v. Bruckman, 55 Ill. 441. There was no erro in admitting this evidence.

There was evidence tending to prove a breach of the warranty, in that the engine would not do good work, and that it was not composed of good materials, but there is no evidence of the extent of the damages on account of such breach. There is evidence to the effect that the engine was of the value of $200 at the time the appellant took possession of it, but there is no evidence of its value at the time it was sold to appellees, nor is there any evidence as to its value, had it been as warranted. Nor was there any evidence of fraud. As there was no evidence of the damage on account of the breach of warranty, appellant's right to possession under the mortgage was not overthrown by the evidence in rebuttal, and the verdict is not sustained by the evidence. The case seems to have been tried in the court below upon the theory that the breach of the warranty constituted a want or failure of consideration for the mortgage, and that the mortgage was therefore void. The sale of the engine with the accompanying warranty, and the execution of the notes and mortgages, although done at different times, constituted one entire transaction. When the notes and mortgages were executed the appellees received what they contracted for,-the engine and the warranty. The engine was certainly of some value then. One of the appellees, in his affidavit to the complaint, fixed its value at $600, and on the trial he swore it was of the value of $200, and the jury found it was of the value of $200. There was then no want of consideration. The consideration may have been inadequate, but inadequacy of consideration, in the absence of fraud, does not render a contract void. Nor was there a failure of consideration, for the ap pellees still have the engine and the warranty. They still have everything they contracted for. Judgment reversed, at costs of appellees, with instructions to sustain the motion for a new trial.

WARD v. CHRISTY. (Appellate Court of Indiana. Oct. 30, 1894.) REVIEW ON APPEAL-WEIGHT OF EVIDENCE. Where there is any evidence to sustain the verdict, and the trial court refuses to disturb it, the supreme court will not reverse the judgment on the weight of the evidence.

Appeal from circuit court, Grant county; J. L. Custer, Judge.

Action by Oscar A. Christy against William Ward for a commission for the sale of real estate. Judgment for plaintiff and defendant appeals. Affirmed.

Stule & Ratliff and Carroll & Dean, for appellant. Brownlee & Paulus, for appellee.

ROSS, J.

Appellee sued and recovered judgment in the court below against the appellant for $200 for money alleged to be due him as commission for the sale of real estate. But one error is assigned on this appeal, namely, "The court below erred in overruling appellant's motion for a new trial of this cause." The motion for a new trial contains many causes, but counsel's argument is confined to the consideration of the sufficiency of the evidence to sustain the verdict. The rule is firmly settled that if there is any evidence to sustain the verdict this court will not reverse the judgment on the weight of the evidence. This court does not weigh the conflicting evidence, and determine which side has a preponderance, for that duty is delegated to the jury, and its decision is subject to review only by the court trying the cause. If that court determines that the party against whom the jury have returned a verdict has a preponderance of the evidence, and such that he would have felt to find different from the jury's verdict, it is the court's duty to grant a new trial. But when the lower court has approved the verdict, and there is any evidence to sustain it, this court is bound by that decision. After reading all the evidence, we are forced to the conclusion that the evidence is sufficient to sustain the verdict, the only perplexing question being to determine how the jury agreed upon so small a verdict. That the jury did not allow appellee all he claimed is no reason for setting their verdict aside at the request of appellant. Judgment affirmed.

1. Where the complaint states that the defendant railroad company negligently permitted its right of way to become overgrown with grass and weeds; that there had been but little rain, and that said grass and weeds were dry and easily fired; that sparks were negligently permitted to escape from defendant's engine, which ignited said weeds and grass; and that such fire was communicated to plaintiff's land through no fault of his own, but through defendant's negligence, and burned the same, to his damage, it is sufficient on demurrer.

2. On an issue as to the damage to a certain meadow from fire, it was proper to admit evidence that, as the meadow became older, the quantity and quality of the hay became better on land of that character, and to show how long the meadow would have continued to so improve.

3. In an action for damage to a meadow by fire, plaintiff, a farmer, was competent to testify as to what would be necessary to put the drainage in condition for draining said meadow.

4. Under an allegation that the fire consumed and destroyed a certain meadow, being 55 acres, to plaintiff's damage $500, it is proper to admit testimony as to the value of the meadow for pasture as a basis for estimating plaintiff's damages.

5. In an action for damage to a meadow by fire, the measure of damages is the difference in the value of the land affected by the fire before and after such fire.

6. Where the complaint in an action for the burning of a meadow alleges that defendant railway company negligently permitted grass to accumulate on its right of way, evidence of the presence of such materials, and that, shortly after the passage of a train, fire was discovered there, will support a verdict for plaintiff.

7. In an action against a railroad company for the burning of plaintiff's meadow, where a witness testified that he knew where said railroad (naming it) was located, and between what points it ran, and that it ran through plaintiff's farm, and that he saw its pay car running over the road on the day of the fire, the ownership and operation of said railroad were sufficiently established.

Appeal from circuit court, Fulton county; George Burson, Special Judge.

Action by Kyran Walsh against the Terre Haute & Logansport Railroad Company for damages to property. Judgment for plaintiff, and defendant appeals. Affirmed.

Enoch Myers, for appellant. Halman & Stephenson, for appellee.

REINHARD, J. Action by the appellee against the appellant to recover damages for injury to his land alleged to have been caused by the appellant's negligence in permitting fire to escape from its locomotive engine, and grass and weeds to accumulate on its right of way. The first question we are to determine relates to the overruling of the demurrer to the complaint. It is urged against the complaint that it states no fact from which the court could have inferred that the loss resulted from the appellant's negligence. The averments of the complaint touching upon the question of appellant's negligence are as follows: That from the 10th day of June, 1893, up to August 22d, of the same year, "there had been no rains of any consequence, and, as a result, vegetation had become dry and inflammable; that the company had negligently permitted grass and weeds to grow upon her said right of way on said land above described, and on said date the same was dry and easily fired; that in the afternoon of said day [August 22d] the pay car of the company passed over the road, going north, and attached thereto was an engine of the company, from which sparks were negligently permitted to escape, and fired the weeds and grass and other combustible matter then accumulated on the defendant's said right of way, on the land hereinabove described, on the west side of the company's track; that

*

the fire so negligently started, but without

fault on the part of plaintiff, as hereinabove averred by the defendant, was by it negligently permitted to escape from off its right of way, but without any fault on the part of the plaintiff, onto said tract of land of the plaintiff, and spread over, consume, and burn and destroy plaintiff's meadows," etc. The complaint is sufficient to withstand the demurrer. Railroad Co. v. Clark, 7 Ind. App. 155, 34 N. E. 587; Railway Co. v. Trapp, 4 Ind. App. 69, 30 N. E. 812; Railroad Co. v. Griffin (Ind. App.) 35 N. E. 396; Railroad Co. v. Williams, 131 Ind. 30, 30 N. E. 696; Railway Co. v. Burger, 124 Ind. 275, 24 N. E. 981.

The next alleged error arises from the overruling of the appellant's motion for a new trial. It is urged, in the first place, that the court erred in permitting appellee, as a witness in his own behalf, to state his opinion as to the depreciation of his meadow from the first to the second year. It appears that the meadow had been used some four years, and three crops of hay had been harvested from it before the fire. The only discussion of this question in the brief of appellant's learned counsel, after stating the point substantially as we have stated it, is as follows: "Now, appellee could only recover for the value of the meadow at the time of the fire, under the most favorable view; and to permit him to state what the condition of the meadow was two years before that time was certainly an error on the part of the court. The answer to the effect that the meadow was better the second year than the first in no way tends to inform the jury as to the value of the same two years later. Its only effect must have been to confuse and mislead the jury." The question before the court and jury was as to what extent the meadow had been damaged by the fire. The claim of the appellee was that the meadow had been entirely destroyed. If this was true, in order to arrive at the approximate amount of the injury, the jury would be entitled to know the probable quantity and quality of hay that could have been made from the meadow but for the fire. It was therefore proper to show, if true, that, as the meadow becomes older, the quantity and quality of the hay becomes better on the kind of land upon which this meadow was located, and how long the meadow continues to improve until it begins to deteriorate. This was the nature of the testimony the appellee was permitted to give. It furnished the jury some basis for estimating the value of the meadow before and after the fire, and there was no error in overruling the objection to the testimony. The court permitted the appellee, over the appellant's objection and exception, to answer the following question: "What will be necessary to be done to put that drainage in condition for draining the land?" It is insisted that, as the appellee had not been shown to be an expert upon the subject of

drainage, he could not properly be permitted to give an opinion except upon facts testi fied to by him. The witness answered the question by stating that the portion of the lowland that was burned out beneath the tile bed would not hereafter have sufficient fall for drainage. We are of opinion that the appellee, who was a farmer, and the owner of this particular farm which it was claimed had been damaged by fire, was sufficiently competent to testify upon the subject. The weight and importance of the testimony were for the jury.

Another question propounded to this witness relates to the value of the meadow for pasture. It is urged in this connection that nothing is claimed in the complaint on account of the loss of pasture, and that the question was therefore not within the issues. Appellee's counsel insist that this question is not properly presented in the record. Assuming, without deciding, that the question is before us, we do not think there is any available error on account of the admission of this testimony. The damage to the pasture was a legitimate element in the case. If no specific damages for this item had been claimed in the complaint, the court would, upon application, have permitted the appellee to amend his pleading. This court will deem the amendment to have been made. It is proper to state here, however, that the complaint alleged that the fire consumed and destroyed the meadow, being 55 acres, to his damage $500. We think this averment included any portion of such 55 acres of meadow which was used for pasturing purposes.

Other testimony was admitted over appellant's objection, but, without stopping to notice each ruling complained of in detail, suffice it to say that we have examined the same; and have not been able to discover any erroneous ruling in connection with the admission of testimony. We also think the measure of damages was correctly declared and acted upon by the trial court as being the difference in the value of the land (the 80 acres affected by the fire) before and after the fire. Railroad Co. v. Smith, 6 Ind. App. 262, 33 N. E. 241; Railroad Co. v. Kern (Ind. App.) 36 N. E. 381.

There was no evidence of the manner in which the fire originated. One witness testified that he saw the appellant's pay car pass over the track shortly before the fire; but he did not pretend to state that the sparks emitted from the engine attached to it started the fire on appellant's right of way, as alleged in the complaint, nor did he testify that the pay car had an engine attached to it. The appellant, therefore, insists that there is a total failure of proof of the negligence set up in the complaint. The negligence relied upon was twofold: (1) Negligently allowing sparks of fire to be emitted from the engine; (2) negligently allowing grass and other combustible material to accumu