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A new trial may be granted only on the

of these bills and cannot therefore complain | 3. NEW TRIAL (§ 1*)-GROUNDS-STATUTES. when he is only charged with one-third of the amount. The conclusions already reach-grounds permitted by statute.

ed show the error of this position. The facts found do not show that credit was extended to appellant or that he became liable for any part of these bills. He is not shown to have waived his right under the statute or to have estopped himself to claim his full onethird part of the Indiana real estate as against these items.

[7] The findings that said items were proper charges against the estate is more of a conclusion of law than a finding of fact; but, if given any effect at all as a finding, it would necessarily be against appellee as showing that credit was not extended to appellant but to the estate. It therefore follows from the finding of facts that no part of said claims can be deducted from appellant's share of the funds derived from the sale of the Indiana real estate. The finding as a whole is defective and incomplete. It should have covered all the facts involved in the report and found all the ultimate facts in issue. As presented, it does not warrant the conclusions of law or sustain the judgment rendered. As throwing some light on questions more or less involved in this controversy, we cite the following: Oinson v. Heritage, 45 Ind. 73, 75, 15 Am. Rep. 258; Rariden v. Mason, 30 Ind. App. 425, 427, 65 N. E. 554; Arnold v. Brandt, 16 Ind. App. 169, 44 N. E. 936; Eiler v. Crull, 99 Ind. 375; Litson v. Brown, 26 Ind. 489; Schouler on Husband and Wife, §§ 119, 120; Schouler's Domestic Relations (4th Ed.) §§ 69, 70; 15 A. & E. Enc. (2d Ed.) 883-888; 21 Cyc. 1223.

The judgment is therefore reversed, with instructions to the lower court to sustain appellant's motion for a new trial and for further proceedings not inconsistent with this opinion.

[Ed. Note. For other cases, see New Trial, Cent. Dig. 88 1-3; Dec. Dig. § 1.*]

4. APPEAL AND ERROR (8 757*)—BRIEFS SET

TING OUT PLEADINGS.

An assignment of error in overruling a demurrer to an answer was waived by failure to set out in the brief either the answer sought to be tested or a sufficient statement of its substance.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] 5. USURY (§ 101*)-REMEDY OF DEBTOR.

Under Burns' Ann. St. 1908, § 7953, making a contract to pay usurious' interest void as to the excess over the legal rate of interest, the debtor, in an action on a contract affected with usury, may recoup the excess over the legal rate, and the same right exists at common law.

[Ed. Note.-For other cases, see Usury, Cent. Dig. § 235-240; Dec. Dig. § 101.*] 6. USURY (§ 82*) DEFENSES

WHO MAY

MAKE. The defense of usury is personal to the debtor or borrower, and his privies by law, blood, contract, or estate, and may not be set

up by a stranger.

[Ed. Note.-For other cases, see Usury, Cent. Dig. § 162; Dec. Dig. § 82.*] 7. USURY (§ 82*) - DEFENSES - PERSONS IN PRIVITY.

A wife who mortgaged her piano to secure her husband's debt, and who after his death was the one upon whom the burden of the debt fell, was not a stranger to the original transaction, nor a mere volunteer, but had such an interest in it that she might plead the defense of usury.

[Ed. Note.-For other cases, see Usury, Cent. Dig. § 162; Dec. Dig. § 82.*]

8. USURY (§ 82*) DEFENSES WHO MAY

PLEAD.

Under the statute giving the wife a part of her deceased husband's estate, she becomes self of the defense of usury against his debts. a privy with him, so that she may avail her

[Ed. Note.-For other cases, see Usury, Cent. Dig. § 162; Dec. Dig. § 82.*]

Appeal from Circuit Court, Henry County;

ADAMS, C. J., HOTTEL, P. J., and LAI- Ed. Jackson, Judge. RY, IBACH, and SHEA, JJ., concur.

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1. APPEAL AND ERROR (§ 757*) - ASSIGNMENTS OF ERROR-WAIVER.

An assignment of error in refusing to sustain a motion to strike out certain parts of defendant's answer is waived by failure to set out such motion and the ruling thereon in appellant's brief.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] 2. APPEAL AND ERROR (§ 1042*)-HARMLESS ERROR-RULING ON MOTION.

Error, if any, in refusing to sustain plaintiff's motion to strike out certain parts of defendant's answer was not reversible error.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 4110-4114; Dec. Dig. 1042.*]

Action by Lamont E. Jones against Martha Bryan and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Kittinger & Diven, of Anderson, and Barnard & Brown, of New Castle, for appellant. J. E. Beeler and Ellis & Ellison, all of Anderson, for appellees.

IBACH, J. This was an action brought by appellant on a note executed by appellee Martha Bryan, and to foreclose a chattel mortgage on a piano. Trial by the court resulted in a judgment for appellee for costs.

[1, 2] It is assigned as error that the court erred in refusing to sustain appellant's motion to strike out certain portions of appellee's answer. Under the rules of this court this error has been waived by failure to set out such motion and the ruling thereon in appellant's brief, but even if the court did err in its action on such motion, it would not

constitute reversible error. Crawford v. Anderson, 129 Ind. 117, 28 N. E. 314; Rowe v. Major, 92 Ind. 206.

It is also urged that the court erred in overruling appellant's motion for new trial. Appellant's failure to incorporate this motion in its brief has been supplied by appellee. This motion was upon the grounds that the judgment of the court is contrary to law, that the judgment of the court is contrary to the evidence, and that the judgment of the court is not sustained by sufficient evidence.

[3] A new trial may be granted only upon the grounds permitted by statute. The statute (section 585, Burns 1908), does not permit the granting of a new trial upon the grounds assigned by appellant. Under the following authorities we are constrained to hold that appellant's motion did not challenge the correctness of the court's finding or decision, and therefore presented no question to the trial court, and was correctly overruled: Rosenzweig v. Frazer, 82 Ind. 342; Rodefer v. Fletcher, 89 Ind. 563; Felt v. East Chicago, etc., Co., 27 Ind. App. 494, 61 N. E. 744; Weaver v. Apple, 147 Ind. 304, 306, 46 N. E. 642.

[4] Error is also assigned in overruling the demurrer to the fourth paragraph of appellee Martha Bryan's answer. By a strict construction of the rules of this court appellant has also waived consideration of this error, for he has not set out in his brief either the answer sought to be tested, or a sufficient statement of its substance. However, we think the answer was good.

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by him, but that she occupies the position of a mere volunteer who assumed the debt, and therefore is not entitled to recoup usurious interest paid by her husband. By statute (section 7953, Burns 1908), a contract to pay usurious interest is void as to the excess over the legal rate of interest, and in action on a contract affected with usury, the excess over the legal rate may be recouped by the debtor. This same right exists at common law. Baum v. Thomas (1897) 150 Ind. 378, 50 N. E. 357, 65 Am. St. Rep. 368, and cases cited.

The rule is that the defense of usury is personal to the debtor or borrower, and his privies by law, blood, contract, or estate, and that it may not be set up by a stranger. Webb, Usury, §§ 365, 366; Studabaker v. Marquardt, 55 Ind. 341; Lemmon v. Whitman (1881) 75 Ind. 319, 39 Am. Rep. 150. In our opinion, the fourth paragraph of answer shows that Martha Bryan was such a privy to the debt contracted by her husband that she might set up the defense of usury. It was said in the case of Faison v. Grandy, 128 N. C. 438, 38 S. E. 897, 83 Am. St. Rep. 693: "It is a well-established rule that the defense of usury is personal to the debtor or borrower and his privies by law or contract.' Webb on Usury, § 365; Davis v. Carr, 6 N. Y. 124, 55 Am. Dec. 387. And it is true that it is a personal defense, and the right of affirmative relief is likewise personal; but it is personal in the sense that it is to the exclusion of strangers or parties disconnected with the immediate transaction. It is limited to the borrower or debtor upon whom [5-7] The answer shows that the piano the burden falls whether he be the maker of was the property of Martha Bryan, and that the note (the evidence of the debt) or not, or she made an affidavit that it was the proper- otherwise has an interest in the transaction ty of her husband in order to enable him which can be injuriously affected by the to borrow money with it as security. The usury." In that case Frank Faison, the orighusband made several payments upon vari-inal debtor, whose debt was secured by mortous notes, but died owing, as appellant claim-gages upon land, had shifted the legal title ed, $74. Shortly after his death, in order to the land, accompanied with the debt, to to prevent her piano being taken to satisfy ⚫the mortgage, appellee executed a new note for $84, the balance on the old loan, and a new loan of $10. On this she paid $49; then ten months later gave a note for $71, the balance claimed by appellant to be due on the old note, and a new loan of $25. She avers an offer to pay $25 to appellant in full satisfaction of his claim, and a bringing of that sum into court for his use. The payments made by appellee's deceased husband and those made by appellee total more than the amount of the several loans and the legal rate of interest to the time of the trial. Appellant claims that this answer is bad because it seeks to recoup usurious interest paid by appellee's deceased husband to appellant, and it is not directly averred that appellee was the heir or personal representative of her husband; only that she was his wife. So appellant urges that it does not appear that she was privy with him, and

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his brother John Faison, who gave his own note secured by the land, an arrangement being made that upon payment of the debt the land should be reconveyed to the original debtor, Frank Faison. In an action upon the note and mortgage, Frank Faison interposed the plea of usury, and the court held that, although John Faison was the maker of the note, Frank Faison being the substantial debtor on whom the burden fell, might plead the defense of usury. So in the case at bar, appellee mortgaged her piano to secure her husband's debt, and being the one upon whom the burden of the debt fell, she had such an interest in the transaction that she might plead the defense of usury, and she was not a stranger to the original transaction, nor a mere volunteer. Our holding is also supported generally by the following cases: Coulter v. Robertson, 22 Miss. (14 Smedes & M.) 18; Merwin v. Romanelli, 141 App. Div. 711, 126

Conn. 276; Hazard v. Smith, 21 Vt. 123; [ from the language of the writing it appears that Lyon v. Welsh, 20 Iowa, 578. the statement with reference to the considera

[8] Further, the rule is that any one in privity of estate or contract with the original debtor may plead usury. By our statute the wife takes a portion of her deceased husband's estate, and thus becomes privy with him, so that she is permitted to avail herself of the defense of usury against his debts. No error having been shown, the judgment is affirmed.

(53 Ind. App. 583)

WABASH R. CO. et al. v. GRATE.

(No. 7,966.)

tion was contractual.

Cent. Dig. $8 1912-1928; Dec. Dig. 8 419;*
[Ed. Note. For other cases, see Evidence,
Contracts, Cent. Dig. §§ 229, 408.]
6. RAILROADS (§ 46*)-DIVISION BUILDINGS-
MAINTENANCE-CONTRACT.

Plaintiff having purchased certain real property in a town because of representations by the agents of defendant railroad company that it would locate and maintain its division point buildings, etc., there, evidence held insufficient to show the making of a parol contract between defendant railroad company and plaintiff binding defendant to maintain such division point buildings at that town, so as to entitle plaintiff to recover damages resulting from the depreciation of his property by the reason of

(Appellate Court of Indiana, Division No. 1. the railroad company's election to remove its

June 19, 1913.)

1. FRAUD (8 45*)-DECEIT-COMPLAINT.

A complaint by a property owner against a railroad company for alleged wrongful removal of shops, etc., from a city, alleged that plaintiff had been induced to purchase certain property by representations of defendant's agents and officers, that defendant was to construct and maintain its shops, etc., at that point, that after constructing and maintaining them there for a short period they wrongfully removed them, but did not allege that the representations were false, or that they were falsely or fraudulently made knowing them to be false, or that they were recklessly made not knowing whether they were true and without any aver: ment that they were made to cheat and defraud plaintiff. Held insufficient to authorize a recovery for deceit.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. § 40; Dec. Dig. § 45.*]

2. FRAUD (§ 12*)-FALSE REPRESENTATIONS -NATURE OF REPRESENTATIONS · EXISTING OR PAST FACT.

division point and buildings to another place. [Ed. Note.-For other cases, see Railroads,

Cent. Dig. § 105; Dec. Dig. § 46.*]

Appeal from Superior Court, Allen County; Carl Yaple, Judge.

Action by George Grate against the Wabash Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed, with instructions.

Edwin P. Hammond, William V. Stuart, Daul W. Simms, and Allison E. Stuart, all of Lafayette, and Fred. E. Zollars, of Ft. Wayne, for appellants. Thomas S. Wickwire, of Angola, and Colerick & Hogan, of Ft. Wayne, for appellee.

HOTTEL, P. J. This is an appeal from a judgment recovered by appellee in an action brought by him in the De Kalb circuit Representations, acts, and conduct of de- court against appellants to recover damages fendant's agents and officers as to the construc- alleged to have resulted to appellee on action and maintenance of defendant's railroad count of the removal by appellant railroad shops, etc., at a certain place by which plain-Count tiff was induced to purchase and improve prop-company from the town of Ashley in said erty in question, related to things to be done county its division terminal and headquarin the future not with reference to an existing ters, and the resulting abandonment and disor past fact, and hence could not be made the mantlement of the roundhouse, shops, and other structures necessary to and connected with said terminal division at said place.

basis of an action for deceit.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. § 14; Dec. Dig. § 12.*]

3. CONTRACTS (§ 333*)-WRITTEN CONTRACT PRESUMPTION.

Where a contract sued on is not alleged to nave been in writing, it will be presumed to

have been verbal.

The complaint is in a single paragraph, a demurrer to which was overruled. Appellants filed a separate and several answer in six paragraphs. The first paragraph of this answer was a general denial; the second paragraph alleged that the contracts were not in writing; the third and fourth paragraphs each set up the six-year statute of limitations; the fifth paragraph alleged that the contracts were without consideration, [Ed. Note. For other cases, see Contracts, and the sixth paragraph alleged performance Cent. Dig. §§ 1714, 1718-1751; Dec. Dig. of the contracts sued on. The sufficiency of 346.*]

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1196, 1640-1657, 1690; Dec.Dig. § 333.*] 4. CONTRACTS (§ 346*)-ACTIONS - VARIANCE. Where plaintiff alleges an oral contract on which he seeks to recover, he will not be permitted to recover on proof of a contract in writing.

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the special answers were not questioned by demurrer, and the only reply thereto was a general denial. There was a trial by jury and a finding and a general verdict against both appellants. With the general verdict the jury returned answers to interrogatories. Each appellant filed in the following order a motion for judgment on the answers to interrogatories notwithstanding the general verdict, a motion for a new trial, and a mo

tion in arrest of judgment. These several | the offices, buildings, and structures aforemotions were each overruled, and each ap- said, and to fully equip, operate, and maintain pellant saved an exception to each ruling. These rulings and the ruling on the demurrer to the complaint are each assigned as error and relied on for reversal.

Many objections are urged against the sufficiency of the complaint, and in their discussion of these objections and the other errors relied on appellants have presented several questions to which there seem to be no decisions of either of the courts of appeal of this state directly applicable. In some of the objections to the complaint questions are presented concerning which we are not free from doubt, but assuming, without deciding, that the complaint states a cause of action, we have reached the conclusion that the evidence wholly fails to support the theory upon which it must be held to be predicated, and for this reason limit our discussion and decision of the questions presented to those alone which involve the theory of the complaint and the sufficiency of the evidence to support such theory.

The material averments of the complaint are in substance as follows: In January, 1892, appellant railroad company owned and operated certain lines of railroad, and desired to build an additional line from the town of Montpelier, Ohio, through Indiana, to the city of Chicago, and to obtain at some suitable place along such proposed line, and adjacent thereto, a sufficient quantity of land (not less than 100 acres) about one mile in length on which to establish its division headquarters and terminal, and erect depots, roundhouse, side tracks, yards, and all other necessary buildings in connection therewith. To acquire such land from the owners by direct purchase or by condemnation would have cost such company a price far in excess of the actual acreage value thereof, because of the manner in which the farms comprising the land would have to be cut up, and to avoid paying such excessive price, and as an agency through which to purchase such land at a reasonable price appellant railroad company on March 14, 1889, through its officers and directors, procured and caused the organization of the appellant Indiana Improvement Company. The articles of incorporation of such company stated that it was organized for the purpose of buying and selling lands, etc., but the real purpose of organizing such corporation was to enable appellant railroad company to acquire through its agency the land needed by it at a reasonable price, and at the same time enable the organizers and stockholders of the improvement company to make a profit by platting into town lots and selling the lands purchased by it and not used by the railroad company, it being agreed by the railroad company that in consideration of the anticipated benefits to be derived by it from said transaction it would construct and permanently

said division headquarters thereon, thereby giving to said town lots a permanent and enhanced value, and also enabling appellant improvement company to more readily dispose of the same at a profit. The officers, directors, and stockholders of the improvement company were, with but one exception, also officers and directors of the railroad company, and seven-eighths of the capital stock of such improvement company was owned by officers, directors, and stockholders of the railroad company. The improvement company was practically an auxiliary to the railroad company, and was controlled and governed by the same men, and it with full knowledge and consent of the railroad company purchased and acquired title to more than 700 acres of land in the counties of Steuben and De Kalb, and platted thereon the town of Ashley, and procured the same to be incorporated as a town under the laws of the state of Indiana, and conveyed to the railroad company 112 acres of said land for the uses above specified, which land was conveyed for its actual acreage cost to said improvement company, which company, with knowledge of the railroad company, and for the purpose of inducing appellee and others to purchase lots and invest money in the improvement and development of the town of Ashley, represented and agreed with appellee and others that, if they would purchase lots and improve them, said railroad company would locate and permanently maintain all of the buildings, structures, etc., aforesaid, and would fully equip, operate, and maintain said division terminals and headquarters at said point; that the railroad company would give employment to a large number of persons at said place, who, with their families, would be sufficient in number to give to said town a population of from 6,000 to 10,000 persons, all of whom would become permanent residents thereof. Said promises, undertakings, inducements, and agreements thus made by the improvement company were all made with the full knowledge and consent of the officers and directors of the railroad company, and were all ratified and adopted by it as its personal promises, agreements, and undertakings, and were all made for the purpose of inducing appellee and others to purchase said town lots and to erect buildings thereon. As a further inducement to appellee, the railroad company did establish a division headquarters and division terminals at said point, and did erect certain offices, buildings, structures, etc., thereby giving employment to a large number of persons who became and were inhabitants of said town, and also thereupon agreed with appellee and publicly announced that it was the purpose and intention of appellant railroad company to keep and perform each and all of the several promises,

diana Improvement Company.
upon, and induced thereby,
'chased a certain lot in the town of Ashley,
to wit, lots 7 and 8 in block 38, De Kalb
county, Ind., and paid to said Indiana Im-
provement Company therefor $300, and erect-
ed on said lot a building of the value of
$1,700, which sum was actually expended in
its construction by appellee in reliance upon
said several promises and agreements of ap-
pellants, and appellee in all respects com-
plied with his part of said agreement; that
the railroad company, in violation of its
agreements abandoned said point as a di-
vision terminal and headquarters, demolished
and removed its said roundhouse from said
point, and dismantled its shops, and wholly
abandoned the said town of Ashley, to ap-
pellee's damage in the sum of $1,500.

Relying there- I was then the intention of the railroad comappellee pur- pany to permanently locate its division and the necessary shops and structures at said town of Ashley, and that the said improvement company had in fact made a contract with the appellant railroad company for the benefit of the purchasers of the lots in said town of Ashley, wherein and whereby such railroad company had agreed to permanently locate its division buildings and structures, and permanently maintain its division shops, etc., at said town, when in truth and in fact it was not then the intention of such railroad company to permanently locate its division shops, structures, etc., at said town, and when in truth and in fact the improvement company had no such contract or agreement with the railroad company for the permanent location of said division buildings, shops, etc. Nor is it averred that the railroad company authorized and permitted such statements and representations by the improvement company, knowing them to be false or by its officers and agents made the same or similar statements, knowing them to be false and for the fraudulent purpose of aiding and assisting the improvement company in inducing the appellee and others to purchase and improve lots in said town, and to cheat and swindle such purchasers. On the contrary, the complaint proceeds on the theory of a valid binding agreement between the appellants made for the benefit of the purchasers of lots in said town of Ashley, wherein and whereby it was agreed by the railroad company that, if the improvement company [2] It also appears that the statements, would sell and convey to it the ground necrepresentations, acts, and conduct relied on essary for its buildings for division purposes as the inducement to appellee to purchase at the price per acre originally paid by such and improve the lots in question related to improvement company, it would in considand were representations, statements, and eration therefor agree to erect and permaconduct with reference to a thing to be nently maintain its buildings, structures, etc., done in the future, viz., the location and thereon, and that pursuant to this arrangepermanent maintenance of the buildings, etc., ment between the two appellants the imat Ashley, and were not made with reference provement company sold the lots in question to an alleged existing or past fact, and hence to appellee, and with the knowledge, conas averred furnished insufficient ground upon sent, and acquiescence of the railroad comwhich to predicate fraud. Bennett v. Mc-pany agreed with appellee that the railroad Intire, 121 Ind. 231, 234, 23 N. E. 78, 6 L. R. A. 736, and authorities there cited; Robinson v. Reinhart, 137 Ind. 674, 682, 36 N. E. 519; Smith v. Parker, 148 Ind. 127, 132, 133, 45 N. E. 770; Fouty v. Fouty, 34 Ind. | 433, 435, 436; Burt v. Bowles, 69 Ind. 1, 6; Kain v. Rinker, 1 Ind. App. 87, 89, 27 N. E. 328; Ayres v. Blevins, 28 Ind. App. 101, 104, 62 N. E. 305.

[1] Some of its averments indicate that the complaint proceeds on the theory that appellee was induced to purchase and improve the lots in question by the fraudulent representations, acts, and conduct of the agents and officers of the appellant companies, but, when carefully read, it will be seen that it is not sufficient on this theory. There is no averment that such representations were false, or that they were falsely or fraudulently made knowing them to be false, or that they were recklessly made not knowing whether they were true; nor is there any averment that they were made for the purpose of cheating and defrauding appellee. New v. Jackson, 95 N. E. 328, and authorities there cited.

We do not mean to be understood as say ing or holding that, under the facts pleaded, a complaint might not be so worded as to make it sufficient on such theory. Upon this question we express no opinion. It is sufficient to say that the complaint does not proceed on the theory that the agents and officers of the appellant improvement company, for the purpose of inducing the appellee to purchase and improve the lots in question,

company would permanently maintain its division and necessary shops, buildings, etc., at said town.

Appellee in his brief concedes that the theory of the complaint above indicated "is one of the theories upon which the appellee predicates his right of recovery," but contends that, "in addition to the right of appellee to recover upon said oral contract" that the public declarations of the highest officials of the two companies and their acts and conduct made and performed with the knowledge on the part of each, “that the people were being informed of the existence of said oral contract and were so informed for the purpose of inducing such purchasers to act thereon and purchase lots, created a contract between said companies and such purchasers upon which such purchasers had

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