The Ohio, etc., R. W. Co. v. Selby. ness of the plaintiff himself and his servants and employees, and would have done so had the allegation been made originally in said complaint, and believes he can do so if time is granted defendant; that he has no witnesses now in attendance, nor in this county, by whom he can prove such facts, which he believes to be true, but expects to do so by the next term, if a continuance is granted for such purpose. In our opinion, the court committed no error in refusing to continue the cause. The amendment made on the trial did not change the issue, or add anything to what was already charged in the complaint. The complaint charged that the plaintiff was grievously bruised, hurt, and injured. Under these general allegations, the plaintiff was entitled to prove any and all injuries which he received, and which were the natural consequence of the wrongful act of the appellant. It did not add a new or different cause of action, but simply specified an injury received, the proof of which was admissible under the general allegations. The specific averments of injury did not limit and restrict the proof of the plaintiff to the specific injuries charged. Where the law does not imply the damage, as the natural and necessary consequence of the wrongful act, it should be set forth with particularity. See sections 89 and 91, 2 Greenl. Ev.; The Jeffersonville, etc., R. R. Co. v. Hendricks, 41 Ind. 48, but special reference is made to pp. 62, 63, and 64. This leaves for our examination and decision the seventh reason for a new trial, which is, that the answers of the jury to the special interrogatories submitted are not sustained by the evidence. We have carefully read, and duly considered, all the evidence in the record, and while we would have found differently upon some of the questions submitted, the evidence being conflicting, we cannot disturb the finding of the jury upon the questions of fact submitted. It should be observed, in this connection, that the appellant did not assign as a VOL. XLVII.—32 Huddleston et al. v. Ingels et al. reason for a new trial, that the general verdict was not sustained by the evidence. With a general verdict in favor of the appellee, the correctness of which is not questioned, we could not reverse the case on the sufficiency of the evidence, especially where it is directly conflicting, to support the special findings. The general and special verdicts are consistent with each other. If the general and special verdicts are consistent with each other, then both should stand. If they are inconsistent, and the special verdict is not supported by the evidence, the appellee, and not the appellant, had the right to complain. Suppose we should find that the special findings were not supported by the evidence, how would that aid the appellant? The general verdict is unquestioned, and necessarily implies that the appellant was guilty of negligence. The general verdict includes all that is in the special findings, and more. The judgment is affirmed, with costs. 47 498 136 427 47 498 139 197 HUDDLESTON ET AL. V. INGELS ET AL. PRACTICE.-Bill of Exceptions.-Deed.-A bill of exceptions may show that a certain deed was given in evidence; yet if it is not set out, its contents cannot be known or considered on appeal. EVIDENCE.-Sheriff's Deed.-A sheriff's deed of conveyance, of itself, is not evidence of the authority of the sheriff to sell, or of a judgment or execution. SAME.-Action to Recover Real Estate.-In an action to recover real estate, the plaintiff must recover upon the strength of his own title, and not upon the weakness of his adversary's. SAME. Title. It is not sufficient, in an action to recover real estate, for the plaintiff to trace his title back to a remote grantor, without further evidence of title or possession in such grantor. From the Wayne Circuit Court. Huddleston et al. v. Ingels et al. W. A. Peelle, H. Fox, and C. Ballenger, for appellants. WORDEN, J.-This was an action by the appellants against the appellees, to recover possession of lot No. 3 in block No. 9, in the town of Milton, in Wayne county, Indiana. Issue, trial by the court, finding and judgment for the defendants. The plaintiffs below appealed, and the only question presented is, whether the finding is sustained by the evidence. As the evidence comes up to us, it fails to make out any title in the plaintiffs, or any right to the possession of the property. A deed was given in evidence from Alexander Jones and his wife to John Miller, dated August 18th, 1841, for the premises in controversy. The bill of exceptions also shows that a deed was given in evidence from John C. Page, sheriff, to John N. Seebrick, but this deed is not contained in the bill of exceptions, the clerk stating that it is not on record or on file, and the record does not show for what property it was executed. There was no evidence of any judgment or execution against Miller, nor was any authority shown by which the sheriff could sell the property of Miller, even had it appeared that the deed from the sheriff was for the property in controversy. Then there was a deed from John N. Seebrick and his wife to John W. Macy, Zimri Plummer, and John Confair, trustees of the Wesleyan Methodist Church, in the town of Milton, and their successors, for the lot. This deed bears date September 5th, 1859. This was followed by a deed from John H. Frazee, John Confair, and Jeremiah H. Martin, trustees of the Wesleyan Methodist Church, in Milton, of Wayne county, in the State of Indiana, to Zena Powell, John Spangler, and Thomas I. Shawcross, trustees of the United Brethren Church in Christ, of Milton, of Wayne county, in the State of Indiana, for the undivided half of the lot, the deed bearing date February 14th, 1861. Then follows a deed from Frazee and Plummer, as such trustees, to John Huddleston, for the undivided half "of the Huddleston et al. v. Ingels et al. brick church property, known as lot No. three (3) in block No. nine (9), in the town of Milton, except so much off the west side of said lot as has been heretofore taken by the railroad and sold to Daniel Miller." This deed bears date September 20th, 1869. This is all the plaintiffs' evidence of title. The ancient rule of the law, that in actions to recover real estate the plaintiff must recover upon the strength of his own title, and not upon the weakness of his adversary's, is still in force. Assuming that Alexander Jones had title to the property when he executed a deed for it to John Miller, the title, for aught that appears in the evidence before us, is still in the latter, for it does not appear that he ever conveyed it, nor that any one else, having competent authority, ever conveyed it from him. We have already seen that the deed from Page, the sheriff, is not before us, nor was there any evidence of his authority, nor, indeed, does it appear that he made any conveyance of the property in controversy. Moreover, it will scarcely do to assume that Jones had title to the property without some further proof on the subject, as that he was in possession, or that he had in some way acquired a title. The plaintiffs entirely failed, so far as we can see from the evidence before us, in showing title in themselves, and therefore they can not recover, whether the defendants have any title or not. There are some other questions discussed by the counsel for the appellees, upon which they ask us to pass; but this we decline to do, as the judgment must be affirmed for the reasons before stated; and whatever our views might be on those questions, they could not affect the result. It may be observed that the counsel for the appellees make the point here that the appellants failed in the court below to trace title to themselves. The judgment below is affirmed, with costs. Lindman et al. v. Wolf et al. LINDMAN ET AL. v. Wolf ET AL. PLEADING.-Contract.-Where damages are claimed for a breach of a contract to deliver certain kinds or brands of tobacco at certain prices, the quantity and kind or brand demanded must be specified. From the Allen Circuit Court. 7. A. Holman, L. Newberger, and — Felsenthal, for appellants. OSBORN, J.-This was an action brought by the appellees against the appellants, upon a bill of exchange drawn by the appellees, payable to their order on and accepted by the appellants, for one hundred and fifteen dollars and twentyfive cents. A demurrer was filed to the complaint for want of sufficient facts, and overruled. An answer of three paragraphs was then filed. The first admitted drawing and accepting the bill, and alleged that it had been paid. The second alleged, that prior to the acceptance, the appellees sold and contracted to deliver to the appellants, on demand, certain tobaccos of certain qualities, and certain prices, and upon such terms, and of such quantities as were in the contract stipulated; that the contract is in writing, signed by the appellees, a copy of which was properly filed and made a part of the answer; that the appellants agreed to take certain quantities of the tobacco at the price and upon the terms in the agreement mentioned, and due acceptance to make upon the receipt of the invoice and bill of lading of such quantities of tobacco as they might from time to time demand; that the tobacco, as it is in the contract agreed, was so sold to defendants at a less price and upon better terms than the then actual marketable rates; that they have frequently made demand of the appellees for divers quantities of the tobacco according to the terms of the agreement; that the appellees, although often requested as aforesaid, have wholly failed and refused to do so, to the damage of the appellees in the sum of fifty dollars, which they ask to have set off against the appellees' demand. |