said Strickler without the knowledge or consent of the said Edwin Tucker, and that the said Richard M. Crouch did not comply with the conditions under which said deed was placed in escrow; that the appellant entered upon and appropriated the said lots for railroad purposes without the authority or consent of appellee, and without paying or tendering appellee, or any one in his behalf, any amount of money on account of its said entry and appropriation, and without instituting any legal proceedings by which to obtain authority for such entry and appropriation; and that the said entry and appropriation of said lots by appellant render them valueless to appellee. With these findings before us, we will proceed to determine whether the errors, if any, in the trial court, and brought to our attention by counsel for appellant, have been harmful.

The first alleged error of the trial court was the giving to the jury instructions numbered 17, 22, and 23. Each of these instructions stated to the jury practically the same rule, in different forms. They were all to the effect that a deed which has been surreptitiously and fraudulently obtained from the grantor without his knowledge or consent does not, even as against a subsequent purchaser without notice, transfer title. It is not necessary that we hold that the instructions complained of stated the law, because in this case the jury found that the appellant had notice of appellee's title before it took the deed from Crouch and wife, and for the further reason that the trial court, by its instruction numbered 24, corrected the alleged errors, if any, in instructions numbered 17, 22, and 23.

Instruction numbered 2 asked by the appellant and refused by the court was as follows: "A deed which has been surreptitiously obtained from the grantor, without his knowledge or consent, does not, as a general rule, transfer title; but a deed made by a grantor, and placed in escrow to be delivered to the grantee upon the performance of certain conditions, and which has been obtained from the party in whose possession it was placed, by untruthful statements, and afterward the condition upon which the deed was delivered was performed, and the grantor does not demand the possession of the deed, nor take any steps to recover the possession of the same, said deed will be effectual to convey title." This instruction ought to have been given. It stated a correct rule of law applicable to the issues and evidence. Connell v. Connell, 32 W. Va. 319,

9 S. E. 252; Blight v. Schenck, 10 Pa. 285, 5 Am. Dec. 478; 11 Am. & Eng. Enc. Law (2d Ed.) p. 350. But appellant was not harmed by the failure to give the instruction, because the jury found that Crouch and wife did not comply with the conditions upon which the deed was placed in escrow, and that the grantor demanded its return.

All the other questions argued by counsel for appellant arise upon the rulings of the court upon the admissibility of evidence. It is contended that the trial court erred in sustaining appellee's objection to the following question propounded by appellant to its witness Grook upon his direct examination: "At the time you sold to the railroad company, what reservation, if any, did you make on the property?" Appellee's objection to the question was sustained, and excepted to, after which appellant made its offer to prove. It has been often decided by the supreme court of this state that, in order to save an exception to the ruling of the court excluding an answer to a question propounded to a witness, a statement must be made to the court of the testimony the witness would give if permitted to answer the question, before a ruling is made on such question, and an exception reserved to the ruling at the time it is made. Shenkenberger v. State, 154 Ind. 630, 57 N. E. 519; Siple v. State, 154 Ind. 647, 57 N. E. 544; Whitney v. State, 154 Ind. 573, 57 N. E. 398; Gunder v. Tibbets, 153 Ind. 591, 55 N. E. 762; Bischof v. Mikels, 147 Ind. 115, 46 N. E. 348; Shepard v. Goben, 142 Ind. 318, 39 N. E. 506; Miller v. Coulter, 156 Ind. 290, 59 N. E. 853; Rinkenberger v. Meyer, 155 Ind. 152, 56 N. E. 913; Menaugh v. Railway Co., 157 Ind. 20, 60 N. E. 694; Railway Co. v. Martin, 157 Ind. 216, 61 N. E. 229; Dunnington v. Syfers, 157 Ind. 458, 62 N. E. 29; Hoover v. Patton (Ind. Sup.) 64 N. E. 10; Hart v. Miller (Ind. App.) 64 N. E. 239. The case of Breedlove v. Breedlove, 27 Ind. App. 560, 61 N. E. 797, seems to be in direct conflict with the rule here announced, and is to that extent overruled.

Other questions argued by counsel for appellant, arising upon the admission of certain evidence, are without merit when examined in the light of the facts found by the jury. The cause seems to have been fairly tried and determined. Judgment affirmed.

BLACK, ROBINSON, and WILEY, JJ., concur. ROBY, C. J., dissents. COMSTOCK, J., absent.

(30 Ind. App. 425)

RARIDEN V. MASON. (Appellate Court of Indiana, Division No. 1. Nov. 25, 1902.)

NECESSARIES FURNISHED A WIFE-ACTION AGAINST HUSBAND-NEW TRIALGROUNDS OF MOTION.

1. One furnishing necessaries to a wife living apart from her husband through his fault may recover therefor of him in an action in the form of a common count in assumpsit for goods sold and delivered.

2. The motion for a new trial in an action for the value of necessaries furnished defeudant's wife not having included as ground therefor any assignment relating to the amount of recovery, the fact that some of the articles were for the use of the wife's children by a former husband is not ground for reversing the order refusing the new trial.

Appeal from circuit court, White county; T. F. Palmer, Judge.

Action by Cullen C. Mason against Elliott Rariden. Judgment for plaintiff. Defendant appeals. Affirmed.

Davidson & Boulds, for appellant. Reynolds, Sills & Reynolds, for appellee.

BLACK, P. J. The appellee recovered judgment against the appellant for the price of certain goods and merchandise; the complaint being in the nature of common counts for goods sold by the plaintiff to the defendant and his family, with bills of particulars attached, and the answer being a general denial. The cause was tried by the court without a jury, and the only matter presented on appeal is the action of the court in overruling the appellant's motion for & new trial. The discussion of counsel relates to the evidence.

The goods were sold and delivered by the appellee to the appellant's wife, and were charged by the appellee to the appellant. At the times of the sales the appellant's wife was living and keeping house with her two children, the issue of marriage to a former husband; the appellant at the time residing on his farm, about 10 miles distant, where his wife had left him for the purpose of living apart from him. The articles sold were such that the court might find them to be necessaries; a portion, of comparatively small price, being for the exclusive use of the children. There was evidence from which the court might well find that the separation of the husband and wife, and their living apart, were occasioned by the wrongful conduct of the husband. Under such circumstances, the wife, excluded from the home of her husband, is, in effect, abandoned by him; and he continues, in law, bound to provide her with suitable maintenance, and is responsible to one furnishing her, on the husband's credit, with necessaries proper in view of the condition of the parties, though without his per

1. See Husband and Wife, vol. 26, Cent. Dig. I 124 Rehearing denied February 3, 1903.

sonal request, and though the person furnish ing the necessaries knew at the time, as did the appellee, that the husband and wife were living separate and apart from each other. The husband cannot by his wrongful conduct relieve himself of the legal obligation to support his wife. The law treats her in such case as having authority to contract for such necessaries upon his credit. It is necessary for her to do so in order to obtain the benefit of his obligation to support her, which the law so confers; and she, for the practical purposes of an action to enforce his liability, may be treated as his agent in the contracting of the indebtedness. 15 Am. & Eng. Enc. Law, 886; Litson v. Brown, 26 Ind. 489; Arnold v. Brandt, 16 Ind. App. 169, 44 N. E. 936; Watkins v. De Armond, 89 Ind. 553; Eiler v. Crull, 99 Ind. 375; Scott v. Carothers, 17 Ind. App. 673, 47 N. E. 389.

We do not understand counsel for appellant as controverting these legal principles concerning the obligation of a husband for necessaries furnished his wife absent from him through his fault, but they contend that the remedy of the appellee could not be pursued under the form of complaint adopted in this case, or without specially pleading the facts in the complaint. This seems to be the substance of the contention on the part of the appellant. It must be conceded, we think, that the burden is upon the plaintiff to show that the necessaries sold to the wife were furnished under such circumstances as rendered the husband responsible for the wife's support. It appearing in evidence that she was living apart from her husband, the burden was upon the appellee to show such circumstances of the separation as would render the appellant liable notwithstanding the wife's separation from her husband; yet as in such case the wife has, in legal contemplation, authority to so bind her delinquent husband, and is in effect, therefore, his agent, we regard it sufficient to declare against him either by a complaint setting forth the facts specifically, or by a complaint as upon account, or in the form of a common count in assumpsit for goods sold and delivered. Under such complaint the facts establishing the implied obligation of the appellant to pay could be proved. The recovery in Arnold v. Brandt, supra, was upon a complaint on an account for goods and merchandise alleged to have been sold and delivered to the defendant and his family at his instance and request. See, also, Watts v. Moffett, 12 Ind. App. 399, 40 N. E. 533.

It has been suggested that there could be no recovery because it appeared in evidence that some of the articles furnished by the appellee were for the use, not of the wife alone, but also of her children, who were not the children of the appellant. As already stated, It also appears that some of the articles were for the exclusive use of the children. It is sufficient to say concerning this portion of the

MATURE SUIT-OBJECTION-HOW RAISED.

1. Where it appears on the face of a complaint that the action is prematurely brought, the objection may be taken by demurrer.

2. Burns' Rev. St. 1901, § 342, cl. 5, provides that a defendant may demur to a complaint on the ground that it does not state sufficient facts. Held, that a demurrer on the ground that the action is prematurely brought is within such clause.

3. Burns' Rev. St. 1901, § 346, provides that a failure to object to a complaint by demurrer or answer on the ground that it does not state facts sufficient to constitute a cause of action does not waive the objection. Held, that the objection that the action is prematurely brought, where apparent on the face of the complaint, may be presented on appeal by assigning as error that the complaint does not state sufficient facts.

4. Burns' Rev. St. § 346, provides that, where it does not appear on the face of a complaint that it does not state sufficient facts, the objection may be taken by answer. Held, that the objection that the action is prematurely brought, where not apparent on the face of the complaint, must be made by answer in abate

ment.

5. A note for $300, payable six years from date, was subject to a written, contemporaneous contract, which provided that the maker would support the payee during his life, and give him $25 per annum; that, if he were living at the end of six years, the note should be regarded as paid, but that at his death before the six years it should be paid to the daughter. Held that, though the payee died within the six years, the note was not payable to the daughter until six years from date.

Appeal from circuit court, Wells county; E. C. Vaughn, Judge.

Action by Martha Middaugh against Bethilda Wilson and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Dailey, Simmons & Dailey, for appellant.

the transaction, and as part of the consideration of the deed and of the purchase money for the land, the appellee Bethilda executed her promissory note (made an exhibit) for $300, payable to the grantor six years after that date. The note contained the following: "This note is subject to satisfaction according to the terms of a written agreement of this date executed by said payee and payor and one John A. Wilson." At the same time, and as a part of the same transaction, the appellees executed a contract in writing, which was signed by them and said Jacob (also made an exhibit), wherein it was recited that certain matters of indebtedness existed between the parties; that they desired to settle all matters in controversy between them and all such indebtedness, and desired to make provision for a home for said Jacob, and to provide for his wants, during his natural life; that the parties to said contract were all living on said tract of land belonging to said Jacob (describing it); that it was agreed that the land should be conveyed by said Jacob to said Bethilda by a deed referring to this written instrument in such manner as to make the land security for the performance by the appellees of the terms of this contract; that said Jacob, at the time of his executing this contract, also executed to said Bethilda a warranty deed for the land, the consideration whereof was that the grantee assumed and agreed to pay a certain mortgage debt upon the land, not here in controversy; that said Bethilda had that day also executed to said Jacob "her promissory note for $300, to come due six years hereafter, without interest, but which note shall become wholly satisfied, and shall not be collectible, in the event that said Jacob Bushee shall continue to live for a period of six years from this date, it being expressly agreed and understood by the parties hereto that, in the event that said Jacob Bushee shall be living at the end of said six years, that fact shall be conclusive that said promissory note has been fully paid and satisfied, and the note itself surrendered to said Bethilda Wilson." It was agreed in the written contract that Bethilda, during the natural life of Jacob, should pay to him $25 each year, and should maintain him, and provide a home for him, during the rest of his natural life; also that all indebtedness between the parties to the contract was thereby satisfied, except as in this contract specified; that the land was made subject to the performance by Bethilda of her agreement to maintain and provide for Jacob and to said annual payment. It was also agreed "that at the death of said Jacob Bushee, if he should not live six years from this date, the said $300 note shall be paid to Martha Middaugh, who shall, in such event, become sole owner of said note, but not otherwise; for, if he lives six years, this note is not to be paid." It was alleged in the

complaint that during the lifetime of Jacob Bushee he presented this note to the appellant, and she accepted it, and took it into her possession, and she has ever since that time retained the possession thereof; that Jacob died in February, 1901, leaving no estate and no indebtedness; that before the commencement of this action she demanded payment of the note of the appellee Bethilda, but she failed and refused to pay it; that the note, "by terms and conditions of said written contract, is now due and owing the plaintiff, and remains wholly unpaid; wherefore," etc. It is said in the brief for the appellant that the court below adopted the theory, in harmony with the only objection urged in that court by appellees in support of the demurrer, that the complaint did not state sufficient facts, because it showed on its face that the action was prematurely brought. Where it appears on the face of the complaint that the action is prematurely brought, the objection for this cause may be taken by demurrer. Machine Co. v. Caldwell, 54 Ind. 270, 281, 23 Am. Rep. 641; Norris v. Scott. 6 Ind. App. 18, 20, 32 N. E. 103. Such objection, not being included in any of the other statutory grounds of demurrer, is within the ground stated in the fifth clause of section 342, Burns' Rev. St. 1901, that the complaint does not state facts sufficient to constitute a cause of action. The objection apparent on the face of the complaint may also be presented on appeal by assigning as error that the complaint does not state facts sufficient to constitute a cause of action. Section 346, Burns' Rev. St. 1901. If the objection does not appear on the face of the complaint, it must be taken by answer in abatement. Section 346, Burns' Rev. St. 1901; Moore v.

Sargent, 112 Ind. 484, 14 N. E. 466; Norris v. Scott, supra. The note and the contemporaneous written contract, each of which refers expressly to the other, construed together, indicate that, while the note given as part consideration for the real estate conveyed by the payee to the maker was to be paid at all events, it was to be paid to the payee only by way of providing for his support for six years, if he should so long survive; but, if he should die before the expiration of that period, it was to be paid in money to the appellant. It was referred to in the contract as a "promissory note for three hundred dollars, to come due six years hereafter," but not to be collectible in the event that the payee should live for that pe riod. In the contract it was stated, that “at the death" of the payee before the end of six years "the said three hundred dollar note shall be paid to" the appellant, who, in that event, but not otherwise, was to become "sole owner of said note." It was not expressly provided that it should become due at any time prior to its maturity as indicated by its terms, and the claim that it was due at the commencement of the action is based solely upon the part of the agreement in the words above quoted that at the death of the payee, if he should not live six years, the note should be paid to appellant. Taking the entire transaction into consideration, we think it is sufficiently indicated to be the intention of the parties that the note, in any event, was to run for the full period expressed therein, and that, if not paid by services rendered and maintegance furnished for that period, it would be treated as a promissory note, payable according to its terms to the appellant.

Judgment affirmed.

JUDICIAL NOTICE.

1. While plaintiff was a passenger on defendant's train at night, defendant's employés negligently called the station which was her destination, stopped the train, and opened the door of the car as an invitation for her and other passengers to alight, though the train was not within 40 rods of the station. As she attempted to alight, supposing the train was at the station as called, the train suddenly jerked, and threw her off the car to the ground, dislocating her shoulder, and bruising and permanently sabling her. Held, that the negligent calling of the station was the proximate cause of the injury.

2. Where there is nothing in the record to indicate that the damages assessed for personal injury are so outrageously large as to induce the belief that the jury must have been actuated by prejudice, partiality, or corruption, or that they were influenced by improper cousiderations, or that they misunderstood or misapplied the evidence, the judgment will not be reversed on the ground that the damages assessed are excessive.

3. In an action against a railroad company for negligently throwing plaintiff to the ground as she was about to alight from a car, evidence examined, and held to justify a finding that she was not guilty of contributory negligence.

4. The court wil take judicial notice that about 3:20 a. m. on Cctober 12th it is not daylight.

train was not within 40 rods of said station; that when appellee attempted to alight from said train, supposing it was at the station, as had been called by appellant's servants, said train suddenly jerked and threw her off of the car to the ground below, dislocating her shoulder, and bruising and permanently disabling her. The complaint furthers avers that appellec's injuries were caused by the carelessness and negligence of appellant, and without any fault on her part.

The objection urged to the complaint is that the negligent acts charged against appellant were not the proximate cause of the injury, but that appellee's injury was directly chargeable to the sudden jerking of the train, after she had gone to the platform and was in the act of getting off. Because the complaint fails to aver that the train was negligently "Jerked" counsel contend that no actionable negligence is charged. It is the duty of the employés in charge of passenger trains to call stations, in order that passengers may be advised so that they may be ready to leave the train at their destination promptly and Passengers with all reasonable dispatch.

have the right to rely upon such announcement, and this right is emphasized when it is dark, and they cannot see for themselves. It may be conceded that if the calling of the station, which it is averred was negligently done before it was reached, was not the proximate cause of appellee's injury, then the

WILEY, J. Action by appellee against appellant to recover damages for injuries sustained while a passenger upon one of appellant's trains. Answer in denial, trial by jury, and verdict for appellee. Over appellant's motion for a new trial judgment was entered upon the verdict.

Overruling a demurrer to the complaint and overruling the motion for a new trial are assigned as errors.

The complaint avers that on the 11th day of October, 1900, appellee purchased of appellant at Rushville, Ind., a ticket from Rushville to Indianapolis and return; that on the

The complaint avers that it was dark, and, as above stated, she had a right to rely upon the announcement made, and it was her duty to make all reasonable preparation to alight. The moving cause of her leaving her seat and going to the platform of the car, in the discharge of her duty to leave the train with all reasonable dispatch, after she had reached her destination, as she supposed, was the fact that the station where she desired to alight and to which her ticket entitled her to be carried was announced by the servant of ap

pellant. The train came to a stop immediately following the announcement of the station. Appellee was thereby induced to go to the platform of the car upon such invitation to alight, and was thus placed in a position of peril. If the station had not been so announced, it is reasonable to suppose that she would have remained in her seat in a place of safety, and in such a position the sudden jerking of the train would have been harmless to her. It must necessarily follow that her in

of appellant's servant in calling the station before it was reached. The calling of the station, the stopping of the train, appellee's going to the platform, and the sudden jerking of the train, are so intimately connected that they must be considered as one transaction, and this leads to the conclusion that the proximate cause of the injury was the negligence charged.