344. Misjoinder not cause for reversal.

Judgments will not be reversed on appeal because of rulings on demurrers as to misjoinder of causes of action. Murphy v. Branaman, 156 Ind. 77; Coddington v. Canaday, 157 Ind. 243; Brown v. Bernhamer, 159 Ind. 538; Board v. Redifer, 32 App. 93.

345. Amendment of pleadings.

The trial court may allow pleadings to be amended during the trial, and a judg ment will not be reversed because of an amendment unless it is shown that the complaining party was prejudiced by the amendment. Citizens R. R. Co. v. Heath, 29 App. 395.

If a demurrer is sustained to a pleading and an amended pleading is afterwards filed, any error committed in sustaining the demurrer is waived. Worl v. Republic Iron Co., 31 App. 16.

346. Objections by answers, waiver.

If a complaint fails to state facts sufficient to constitute a cause of action, or contains averments which precludes a recovery by the plaintiff, the sufficiency of the complaint may be raised on appeal by an assignment of error. City of South Bend v. Turner, 156 Ind. 418; Hall v. Brownlee, 28 App. 178; Middaugh v. Wilson, 30 App. 112.

An assignment of error on appeal that error was committed in not carrying a demurrer to an answer back and sustaining the same to the complaint, does not call in question the sufficiency of the complaint. Hall v. Brownlee, 28 App. 178.

If the question of a defect of parties is not raised by demurrer or a plea in abatement, the question will be deemed waived. Boseker v. Chamberlain, 160 Ind. 114; Ayres v. Foster, 25 App. 99; Hines v. Consolidated Co., 29 App. 563.

348. Demurrer overruled-Judgment.

Error in rulings on demurrers will not be cause for the reversing of a judgment if the record shows that the cause was properly disposed of on its merits. Lavene v. Jarnecke, 28 App. 221.

The statute permits a counterclaim to be filed as an answer, but it must allege facts sufficient to constitute a cause of action against the plaintiff. Flanagan v. Reitemier, 26 App. 243.

351. Set-off.

When no judgment is sought against a party to a suit on a note, such party can not plead a set-off against the plaintiff in the suit. Harris v. Randolph Co. Bank,

157 Ind. 120.

In an action by an agent to recover commissions due him under a contract, the defendant may plead as a set-off money collected by such agent for the principal and which he failed to pay over. Frankel v. Michigan Ins. Co., 158 Ind. 304.

Matters which may be pleaded as a counterclaim must be connected with the subject of the original action or with the transaction out of which it arose. Harris v. Randolph Co. Bank, 157 Ind. 120.

A counterclaim may be pleaded as an answer, but it must allege facts which would constitute a cause of action against the plaintiff.

26 App. 243.

356. Set-off, counterclaim, dismissal.

Flanagan v. Reitemier,

The dismissal of a complaint will not carry with it a counterclaim set-off or cross-complaint filed by the defendant. Judd v. Gray, 156 Ind. 278; Whitcomb v. Stringer, 160 Ind. 82.

Notice given to a judge out of court of an intention to dismiss an action, will not prevent the filing of a set-off when court convenes which will still remain pending after the original action is dismissed. Whitcomb v. Stringer, 160 Ind. 82.

359a. Personal injuries, contributory negligence.

The act of 1899, section 359a, Burns' R. S. 1901, making it unnecessary in actions for personal injuries or death caused by negligence, for the plaintiff to allege or prove that the plaintiff or the decedent was not guilty of contributory negligence, is constitutional. Indianapolis Ry. Co. v. Robinson, 157 Ind. 232.

The act of 1899, section 359a, Burns' R. S. 1901, concerning the pleading and proof of contributory negligence in certain cases, applies to actions commenced after such act took effect to recover on causes of action accruing before the taking effect of such act. Southern Ry. Co. v. Peyton, 157 Ind. 690; Wabash R. R. Co. v. De Hart, 32 App. 62.

Under section 359a, Burns' R. S. 1901, the burden to show that the plaintiff, or a decedent, was guilty of negligence contributing to the injury or death rests upon the defendant, yet if the evidence on behalf of the plaintiff establishes such negligence it has the same effect as if proven by the defendant. Indianapolis Ry. Co. v. Taylor, 158 Ind. 274; City of Evansville v. Christy, 29 App. 44.

If the evidence on the part of the plaintiff does not show contributory negligence on the part of the injured person, then the defendant must establish such negligence by a preponderance of the evidence in order that such negligence shall defeat a recovery. Southern Ry. Co. v. Peyton, 157 Ind. 690; Chicago Ry. Co. v. Turner, 33 App. 264; Chicago R. R. Co. v. La Porte, 33 App. 691.

The statute changing the rule as to pleading and proof of contributory negligence in a certain class of cases, does not change the rule that persons must use due diligence to avoid injuries. Malott v. Hawkins, 159 Ind. 127; Wabash R. R. Co. v. Keister, 163 Ind. 609.

The act of 1899 regulating pleading and proof in actions to recover damages for personal injuries caused by negligence, applies to actions against physicians and surgeon for negligence in treating injuries to persons. Aspy v. Botkins, 160 Ind. 170. In an action to recover damages for personal injuries caused by negligence when the relation of master and servant did not exist between the parties, it is not necessary to allege in the complaint that the injured person was ignorant of and had no notice of the danger from which the injuries resulted. Indiana Gas Co. v. O'Brien, 160 Ind. 266.

Section 359a, Burns' R. S. 1901, relating to pleading and proof of contributory negligence, does not change the rule that when an employe sues his employer to recover damages for injuries that he must negative by his complaint knowledge of the danger resulting in such injuries. Bowles v. Indiana Ry. Co., 27 App. 672. Section 359a, Burns' R. S. 1901, regulating pleading and proof in actions for personal injuries, applies to actions brought by employes under the statute known as the employers' liability act. Pittsburgh Ry. Co. v. Lightheiser, 163 Ind. 247; Pittsburgh Ry. Co. v. Collins, 163 Ind. 569.

360. Reply, demurrer, paragraphs.

A demurrer to a reply for the reason that it does not state facts sufficient to constitute a defense or reply to the defendant's answer, is not sufficient in form to raise any question. Sovereign Camp v. Haller, 30 App. 450.

365. Exhibits with pleadings.

In order to make a writing upon which a pleading is founded a part of the pleading, it is not necessary that the writing, or a copy thereof, be attached to the pleading, it only being necessary that an exhibit shall be filed with the pleading. Thompson v. Recht, 158 Ind. 302.

Notice of a mechanic's lien is a written instrument within the meaning of the statute requiring that, when pleadings are founded on written instruments, that the originals or copies must be filed as exhibits. State v. Phillips, 157 Ind. 481.

If there is a variance between an exhibit filed with a pleading and an instrument offered in evidence, the exhibit filed may be amended so as to correspond with the offered instrument. Allen v. Hollingshead, 155 Ind. 178.

If the instrument sued on is copied into the body of the pleading, it is a sufficient compliance with the statute requiring the filing of the original instrument or a copy thereof with the pleading. Miller v. Wayne Ass'n, 32 App. 480.

If a contract made with a testator is bequeathed by will, a suit by the legatee to enforce the contract is not founded on the will, and such will need not be made an exhibit to the complaint. Jester v. Gustin, 158 Ind. 287.

In an action against the assignee of a lease to enforce the lease, a copy of the assignment of the lease need not be filed with the complaint as an exhibit. Indiana Gas Co. v. Hinton, 159 Ind. 398.

367. Execution of instruments, proof, verified plea.

When it is desired to question the authority of an officer of a corporation to assign an obligation upon which a pleading is founded, or which is referred to therein, such authority must be questioned by a pleading under oath. Harris v. Randolph Co. Bank, 157 Ind. 120.

Pleadings denying the execution of written instruments sued on must be verified under oath to justify proof disputing the execution of such instruments, and a failure to move to strike out such pleadings for want of verification does not waive the right to object to such proof. Penn Mutual Ins. Co. v. Norcross, 163 Ind. 379.

368. Dilatory pleas verified-Abatement, issue.

It is too late to file a plea in abatement raising the question of jurisdiction over the person of the defendant after a full appearance to the action. Eel River R. R. Co. v. State, 155 Ind. 433.

If the authority of a receiver to sue is not questioned by a plea in abatement, the question will be waived, and no proof of such authority need be made on the trial. Ayres v. Foster, 25 App. 99.

When it is claimed that a foreign corporation has not complied with the statutes of this state, and is not authorized to do business in the state, the question must be raised by a plea in abatement, and the issue thereon tried, before issues in bar are formed and tried. North Mercer Co. v. Smith, 27 App. 472.

Matters which go to the right of a plaintiff to maintain an action are not matters in abatement. Chicago Stone Co. v. Nelson, 32 App. 355.

369. Consideration, failure, want, pleading.

A general plea of no consideration is good, but a plea of entire or partial failure of consideration must state facts showing such failure. Osborne Co. v. Hanlin, 158 Ind. 325.

371. Payment, demand at place.

If a note is made payable in a bank, the depositing in the bank, when the bank is not in possession of the note, of money to pay such note, and the notice to the holder of the note of such deposit, is not such a payment or tender as will have any effect in a suit on the note. Dillingham v. Parks, 30 App. 61.

372. Judgment of court of special jurisdiction.

In proceedings under Section 5317, Burns' R. S. 1901, to enforce judgments recovered before justices of the peace for animals killed on railroads, the applications must contain allegations sufficient to show that such justices had jurisdiction to render the judgments. Chicago Ry. Co. v. Adams, 26 App. 443.

373. Condition precedent, pleading, proof.

In an action on a contract containing precedent conditions it must be alleged generally that the plaintiff performed all the conditions on his part, or state facts showing an excuse for not doing so; and, as to concurrent conditions, it must be alleged that the plaintiff was ready and willing to perform the conditions on his part. Magic Co. v. Stone-Ordean Co., 158 Ind. 538.

If an insurance policy exempts the insurer from liability if the insured dies by his own hand, a general allegation in a complaint on such policy that the insured performed all the conditions of the policy is sufficient. Modern Woodmen v. Noyes, 158 Ind. 503.

The performance of precedent conditions may be shown either by general or specific allegations of performance. Kenney v. Bevilheimer, 158 Ind. 653; Security Ass'n v. Lee, 160 Ind. 249; Penn Mutual Ins. Co. v. Norcross, 163 Ind. 379.

If the performance of precedent conditions is made by special averments, such averments must contain all the particularity required by the rules of the common law. Collins v. Amiss, 159 Ind. 593.

Provisions in a policy of insurance as to notice of loss are regarded as precedent conditions, and a general allegation of performance of all conditions show a performance thereof. Hanover Ins. Co. v. Johnson, 26 App. 122.

A general allegation in a complaint on a policy of insurance of the performance of all conditions of the policy, applies to conditions as to payment of premiums. Penn Mutual Ins. Co. v. Norcross, 163 Ind. 379.

The allegation in a complaint on a certificate issued to a member of a beneficial association that, at the death of such member, he was entitled to all the privileges of a member of the association, is not equivalent to an allegation that such member. had performed all the conditions required by such certificate. Grand Lodge v. Hall, 31 App. 107.

375. Libel or slander, pleading.

Words not actionable within themselves can not be rendered so by an innuendo without an averment of extrinsic facts which make them slanderous. Stutsman v. Stutsman, 32 App. 73.

379. Construction of pleadings, indefiniteness.

If it is shown by the title to a complaint and the allegations therein that the plaintiff sues in a representative capacity, the complaint will not be so construed as to apply to the individual capacity of the plaintiff. Toner v. Wagner, 158 Ind. 447.

Pleadings are not necessarily to be construed most strongly against the pleader, but such a construction will be given as will promote substantial justice between the parties. Smith v. Borden, 160 Ind. 223; Wabash R. R. Co. v. Schultz, 30 App. 495.

380. Evidence under general denial.

Under a general denial any fact may be proven which tends to negative or dispute the truth of the allegations of the complaint. Hess v. Union State Bank, 156 Ind. 523. If a suit is brought to recover for services performed for a decedent under a promise to make provisions by will for payment, it may be proven without special plea that the plaintiff accepted a bequest under the will in satisfaction of the claim sued for. Alerding v. Allison, 31 App. 397.

382. Lost pleadings or papers, substitution.

If a pleading is lost, the court may order a substituted pleading to be filed, and when so filed such pleading takes the place of the lost pleading from the date of the filing thereof, and is presumed to be an exact copy of the lost pleading. Pape v. Ferguson, 28 App. 298.

385. Sham pleadings.

If a pleading is shown by answers to interrogatories to be false, such pleading may be stricken out. Tilden v. Louisville Co., 157 Ind 532.

Pleadings can not be stricken out as sham pleadings upon answers to questions to a party, given upon an examination by the adverse party, before trial, as provided by statute. Stars v. Hammersmith, 31 App. 610.

386. Allegations taken as true.

If a demurrer is sustained to a reply to an affirmative answer, and the plaintiff refuses to plead further, the answer is taken as true, and judgment is properly rendered for the defendant. Hibberd v. Trask, 160 Ind. 498.

393. Personal judgment.

If, in an action of attachment against a foreign corporation, the defendant appears to the main action, a personal judgment may be rendered. Hartford Ins. Co. v. Bryan, 25 App. 406.

394. Variance, materiality, misleading.

If there is a variance between the contract described in the complaint and the one produced at the trial, the variance may be cured by amendment, and the amendment will be deemed made on appeal. Allen v. Hollingshead, 155 Ind. 178.

If an alleged variance between the allegations of a pleading and the evidence is not presented to the trial court, the question can not first be made on appeal. Latshaw v. State, 156 Ind. 194; Hartwell v. Peck, 163 Ind. 357.

397. Amendments, delay, affidavit.

Amendments to complaints may be made without leave of court at any time before answer is filed. Frankel v. Garrard, 160 Ind. 209.