Action by the Indianapolis Water Company against Arthur Jordan and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Robert W. McBride, Caleb S. Denny, and Chambers, Pickens & Moores, for appellants. Baker & Daniels, for appellee.

WILEY, J. Appellee sued appellants upon a written instrument to collect what is termed in the complaint "water rent." The complaint avers that appellee was the owner of a certain artificial water course, known as the "Indiana Central Canal," and that it entered into a lease contract with appellant Butsch, by which it agreed to furnish water to her under specified conditions, with which to flood her ice pond, and for which she agreed to pay a specified sum annually. As the nature and character of the contract is of controlling importance, we deem it necessary to state fully its several conditions. It recites that appellee "hath demised and leased" for a term of five years "the right to draw sufficient water from the Indiana Central Canal to fill the ice pond," etc. The instrument locates the pond by describing the land where it is situated, said land being owned by appellant Butsch. It provides that Mrs. Butsch "shall draw said water from said canal during the months of November, December, January, February, and March in each ice season (provided said party of the second part shall need and require said water in said ice pond so long to enable her to gather ice), through a trunk not more than fifteen (15) inches in diameter inside, to be inserted in the embankment of said canal by said party of the second part at her own expense, and under the direction of" the appellee. It also provides that the appellant Butsch should, at the point of inlet, construct a proper stop gate, and at all times, except when drawing water to supply the pond, keep such stop gate fastened, so as to wholly prevent the flow of water from the canal. Appellant Butsch was required by the terms of the instrument "to maintain at all times a watchful supervision of said gate, in order to prevent mischievous persons from opening the same, and flowing water from said canal." She was also obligated to keep the gate and trunk constantly in repair, and to keep the bank of the canal and lands adjacent secure against injury or damage by reason of the construction of the trunk or gate. She was also required to keep the banks of the ice pond secure, and have them so constructed that the water from the canal would not overflow or waste, and not to draw more water than was necessary to flood the pond, and keep it in proper condition for "forming and securing ice." It was further provided "that said water shall not be drawn from said canal, nor shall any part of it, except when there is a surplus of water in said canal over what is required for supplying all mills, manufactories, or other

machinery, run in whole or in part by the water from said canal for hydraulic uses." It was also stipulated that appellee "does not engage or guaranty that there shall be any surplus water, nor are they to be in any wise liable by reason of any nonrepair of the said canal or break therein, or for other causes from which there shall not be surplus water enough to supply said ice pond." (The italicizing is our own.) By the terms of the instrument, Mrs. Butsch obligated herself "to pay for the supply of water to be drawn by said party from said canal, for the use of said ice pond, the sum of one thousand dollars ($1,000.00) per annum for each and every year of the term aforesaid." This annual payment was divided into two equal parts, and became due respectively June 1st and September 1st each year. It was stipulated that if, after the expiration of the first year, Mrs. Butsch should be served with notice by the property owners to remove the supply pipe or trunk from the head of the mill race immediately east of the pond, and the trunk and race should in fact be removed, then she should be relieved from the payment of "water rent," and the "lease" should cease and determine. It was also provided that if, during the ice season, there should be a break in the canal, in consequence of which the pond could not be supplied with water, or there should be a want of surplus water to supply the pond during the ice season, "then no rent shall be required for the water aforesaid." Following the last stipulation, there is a proviso that, should a break occur in the canal, or water supply be short. so that none could be furnished only a part of the ice season, then the "rent" should "be due and payable for the part of the season in which water is furnished in the proportion the time water is furnished bears to the whole ice season, and no more." The contract also provided that all the rights and privileges secured to Mrs. Butsch by its terms should be forfeited at the option of the appellee if she failed to comply with any of the agreements on her part to be performed, after notice, and 10 days' time allowed for compliance therewith; and in such case appellee was authorized to stop up the trunk or water way, and prevent the further flow of water to the pond, without in any way being liable for damages. It is also stipulated that, if said pond should be declared a nuisance, and by proper authority ordered to be abated, and the same should be abandoned by reason of such order, then no rent shall be required, and this lease shall cease and determine. Provision is also made by which the pond might be enlarged, and that, in such event, the "rent" should be increased proportionately. It was further stipulated that the instrument should not be transferred without the consent of appellee. The "lease," as it is termed in the complaint, was executed November 1, 1884. It is averred in the complaint that on October 21, 1887, ap

pellee and said Butsch, by an instrument in writing, extended and renewed said contract until November 1, 1897. It is also charged that on June 10, 1891, at the request of appellant Butsch, appellee consented to an assignment and transfer by her of said contract to appellants Jordan and Caylor, they having acquired said Butsch's title to said pond, and appellee so indorsed its consent on said contract. It is then averred that appellant Butsch did, on June 10, 1891, assign and transfer in writing all er right, title, and interest in said contract to said Jordan and Caylor. It is then charged that appellant Butsch, up to and including the year 1891, paid all "rental" which she agreed to pay under said contract; that said Jordan and Caylor, under said assignment, entered into possession of said ice pond, and enjoyed all the rights and privileges secured by said contract; that they paid to appellee all money and rental payable under said contract up to and including that payable in September, 1894. It is then charged that during all the ice season November 1, 1894, to April 1, 1895, and during all the ice season November 1, 1895, to April 1, 1896, appellee had in its canal, "at the mouth of defendant's water inlet or trunk," surplus water over and above all water needed and required for supplying all mills, manufactories, or other machinery then run in whole or in part by the water of said canal for hydraulic uses, and sufficient to fill and keep filled said ice pond, and that appellee was ready during all of both of said seasons to supply and keep supplied water to fill and keep filled said ice pond, "and, if defendants did not take said water during all or during any part of said ice seasons, or during either of them, it was from no lack of water in the canal, and was because, and only because, the defendants did not see fit to open their water gate in said trunk or Inlet, and did not allow the said water to flow into their said pond." The complaint then avers that appellee has complied with all conditions imposed upon it by the terms of the contract, that there is due and unpaid the rental for the two ice seasons last mentioned, the sum of $2,000, and interest, and demands judgment, etc.

Appellants Jordan and Caylor and appellant Butsch demurred separately to the amended complaint, and each of such demurrers was overruled. Various other pleadings followed, but, as the first error assigned is the overruling of the demurrers to the amended complaint, we will dispose of the question thus raised, and, if our conclusion should be in harmony with the contention of appellants, it will be unnecessary to take up other questions discussed. If the amended complaint does not state facts sufficient to constitute a cause of action, it effectually disposes of the appeal. In this connection it is sufficient to say that the cause was tried by a jury, resulting in a verdict for appellee. The separate motions of appellants for a

new trial were overruled, and judgment rendered on the verdict.

It is urged with much force that the contract is wanting in mutuality, and hence will not support an action to enforce its terms. We will first discuss and dispose of this feature of the case. If the covenants of the contract are not mutual, or, in other words, if the contract is unilateral, it cannot be enforced. It is a principle of law well settled that an agréement or contract is not binding on either party unless both are bound. Doe v. Culverwell, 35 Cal. 291; Railroad Co. v. Terry, 13 La. Ann. 419; Crawford v. Parsons, 18 N. H. 293; Fanning v. Insurance Co., 37 Ohio St. 339, 41 Am. Rep. 517; Nunnelly v. Iron Co., 94 Tenn. 397, 29 S. W. 361, 28 L. R. A. 421. It has been held that it is necessary to set forth a contract binding on both parties where a suit is brought to recover damages for its nonperformance. Berry v. Harper, 4 Gill & J. 467. The supreme court of Michigan has ruled that there can be no contract without mutuality. Leather Co. v. Kurtz, 34 Mich. 89. Neither can there be an action successfully maintained upon a contract where the agreements are all on one side. Railroad Co. v. Brinckerhoff, 21 Wend. 139. Also it has been held that a promise made by one party without a corresponding obligation by the other is void. Corbitt v. Gaslight Co., 6 Or. 405, 25 Am. Rep. 541. In actions upon unilateral contracts it is only where the defendant has had the benefit of the consideration for which he bargained that he can be held bound. Richardson v. Hardwick, 106 U. S. 255, 1 Sup. Ct. 213, 27 L. Ed. 145; Jones v. Robinson, 17 Law J. Exch. 36; Mills v. Blackall, 11 Q. B. 358; Morton v. Burn, 7 Adol. & E. 19; Kennaway v. Treleavan, 5 Mees. & W. 498. In the case of Campbell v. Lambert, 36 La. Ann. 35, 51 Am. Rep. 1, the court had under consideration a contract of the following tenor: Appellants were to furnish and deliver to appellee at New Orleans such quantities of Pittsburg coal as might be required by appellee from January 1, 1879. to January 1, 1880, to the extent of 60,000 barrels with the privilege of 20,000 barrels or mo, to be delivered with dispatch in such quantities and at such places within the city limits as might be designated by appellee. The appellants were to receive for each barrel delivered 38 cents, payable at the end of each month. From January to June the price of coal was such that appellants could have supplied the coal under the contract without loss. During this period appellee ordered of them less than 15,000 barrels. From June 1st coal began to advance,. and on September 1st a disastro storm occasioned the sinking of a large portion of the coal fleet lying at the port, and this caused a large advance in the price of coal, and a corresponding increase in the size of appellee's orders on appellants. The latter, however, made every reasonable effort to com

HOLLIDAY v. GARDNER. (Appellate Court of Indiana. June 27, 1901.) On petition for rehearing. Petition overruled.

For former opinion, see 59 N. E. 686.

PER CURIAM. Petition for a rehearing overruled.

ROBY, J. (dissenting). The record herein furnishes a very excellent illustration of the wisdom of the rule, long established in this state, which leaves the decision of questions of fact with the jury to whom the cause is submitted in the trial court. Two members of this court have attentively read the evidence, and have reached different conclusions. Neither of them had the opportunity of observing the witnesses, and applying to their testimony the tests of credibility which men use when the truth is desired. The son of the appellee was driving west along Sixteenth street, in Indianapolis, with one horse and a single buggy. At the intersection of Sixteenth and Meridian streets the horse, which belonged to appellee, was struck by a runaway team owned by appellant, and injured. To recover damages for such injuries, suit was brought in a justice court, and a jury trial had, resulting in a verdict for appellee. An appeal was taken to the superior court of Marion county, and again tried before a jury, which returned a verdict for appellee for $54.25. From a judgment on the verdict, this appeal is taken.

There is no evidence tending to show that appellee's son was guilty of contributory negligence. He was driving along the street in a usual and proper manner, and was struck by a runaway team coming down an intersecting street. It is established by the testimony of all the witnesses that as soon as he discovered the danger he stopped his horse, and did what he could to escape the collision. The rule applicable to accidents at railway crossings has, for obvious reasons, no application. Scofield v. Myers (this term) 60 N. E. 1005.

The more serious question arises in regard to the appellant's alleged negligence. It is conceded in the briefs that there can be no

recovery unless the evidence shows that the appellant's driver, in the management of the horses, either did something that he ought not to have done, or left undone something that he ought to have done, under the circumstances. Why the horse became frightened is not shown. The driver gives no explanation. While being cross-examined he was asked, "What started those horses?" and answered, "I could not say." This comes far short of an explanation, while, if the appearance of the witness was not greatly in his favor, the jury might, so far as can be determined from the record, have properly refused to believe him. Appellant's wife and another lady were in the carriage at the time, but they were not called as witnesses. The appellee's horse, when struck, was "right on a line with the curb,"-"the east curb of Meridian street." The driver of appellee's horse testified: "When I saw him, it seemed like he pulled the horses right towards my horse." Mr. Weaver, a wholly disinterested witness, testified in part as follows: "What did you observe in reference to the direction the runaway team was going at the time it reached Sixteenth street, and from that until it struck the horse driven by young Mr. Gardner? A. I thought he was trying to head them east. Q. Into Sixteenth street? A. Yes, sir. Q. Did they veer to the eastward as they got into Sixteenth street? A. Yes, sir." Immediately after the collision, young Gardner asked appellant's driver "who this team belonged to." He said he could not say. He "did not know who it belonged to." Appellant's driver also said that he was "glad he struck the horse; it was no telling when he would have stopped." Appellant's driver testified that he was perfectly calm when the collision occurred, and not scared, and that he "pulled" the team "a little to the left." The position of Gardner's horse, as shown by some of the evidence, is such as to have rendered it impossible for the collision to have occurred except by the swerving to the right of the runaway team. If the jury, after seeing the parties to the occurrence on the witness stand and hearing all the evidence, concluded that the driver of appellant's team did pull them into Sixteenth street, and against appellee's horse, or if they believed that he did not use reasonable effort to pull them away from it, the verdict was right.

The driver, Ryan, stated that the horses started from New York street or Vermont street; that they ran north; that he tried to stop them by sawing on them; that it did no good: that he pulled them back against the dashboard, and then they would kick; that all he could do then was to let them go, and keep them in the road as much as he could; that one of the tugs came loose, and struck the horse around the legs and under the belly; that he did not notice whether the leather holding the tug was broken or not; that he always fastened it on when he

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hitched up; that he did not strike the horse with the whip in starting; that he had not so stated; that the horses had run about two squares before the tug came loose; that the tug was pushed off by the hindquarters of the near horse. The witness further testified as follows: "Q. They were pretty skittish horses to manage, wern't they? A. I don't know. One of them was considered that way, but the other was all right. Q. One was considered quite skittish? A. He is right high-spirited, was all. Q. That is the horse that got the tug loose? A. Yes, sir." Appellee insists that the fact that the horses were running away raised a presumption of negligence against the owner. forceful statement of the position was made by the supreme court of California, as follows: "The question at issue became narrowed down to the point whether Jones, who had charge of the cattle, and the persons assisting him, were guilty of negligence and want of due care in driving the cattle from the place where they landed to the slaughter house, and also in their endeavors to capture the steer after he became separated from the herd. The burden was upon plaintiff to prove, in the first place, that he received the injury for which he sought redress, and that such injury was done by the animal of the defendant within the city of San Francisco, and that it happened without any fault on his part. These facts proved afforded prima facie evidence of negligence on the part of the defendants, and then the burden of proof became cast on them to show that the injury did not occur by reason of any default on their part." Ficken v. Jones, 28 Cal. 618; Gannon v. Wilson (Pa.) 5 Atl. 381; Hummel v. Wester, Brightly, 133. In Gray v. Tomp kins (City Ct. N. Y.) 15 N. Y. Supp. 953, it is held that the mere fact that a team of runaway horses collided with plaintiff's horse and vehicle did not, in the absence of any evidence of negligence, either at the time the horses ran away or thereafter, raise any presumption of negligence. In Gottwald v. Bernheimer, 6 Daly, 212, it is held that the mere fact that a team of horses attached to defendant's wagon ran away and injured plaintiff proves no wrongful act of the defendant. To the same effect are the following cases: Quinlan v. Railroad Co., 4 Daly, 487; Sullivan v. Scripture, 3 Allen, 564. The better reason is with the last-cited authorities. Negligence, being alleged, must be proven, and no presumption of law arises to take the place of proof. The true rule relative to the matter is stated by the supreme court of Connecticut: "There is no rule of law that shifts the burden of proof upon the defendant; that where the neglect of the defendant to explain the facts which indicate negligence operates to strengthen the inference of negligence it does so wholly as a matter of evidence, producing its effect in the ordinary manner on the judgment of the jury, and not by any superadded force of 61 N.E.-2

law; that the cases where the proof on the part of the plaintiff of the damage done him by the defendant is enough to make a prima facie case of negligence on the part of the defendant are cases where the act causing the damage was of a nature to indicate negligence, and this as the act addressed itself to the judgment of the jury on this point, and is distinguishable by their judgment from an act which does not indicate negligence, they judging for themselves of the character of the act in this respect." Button v. Frink, 51 Conn. 351, 50 Am. Rep. 24. ""There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' This statement of doctrine has met with judicial approval in many subsequent cases. Bovill, C. J., in Czech v. Navigation Co., L. R. 3 C. P. 14, 18; Transportation Co. v. Downer, 11 Wall. 129, 134, 20 L. Ed. 160; Dougherty v. Railroad Co., 9 Mo. App. 478, 485." Hill v. Scott, 38 Mo. App. 370, 374. The failure of appellant to explain the cause of the horses running away was a proper matter for the jury to consider in connection with the statement of the driver to the effect that one of the horses was all right, and the fact of the runaway. “Now, it is a well-settled rule of evidence that when the circumstances in the proof tend to fix a liability on the party who has it in his power to offer evidence of all the facts as they existed, and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would support, the inferences against him, and the jury is justified in acting upon that conclusion. 'It is certainly a maxim,' said Lord Mansfield, 'that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.' Blatch v. Archer, Cowp. 63, 65. It is said by Mr. Starkie in his work on Evidence (volume 1, p. 54): "The conduct of the party in omitting to produce that evidence in elucidation of the subject-matter in dispute which is within his power, and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him, since it raises strong suspicion that the evidence, if adduced, would operate to his prejudice.'" Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed. 180, 198, 36 C. C. A. 135; Railway Co. v. Ellis, 54 Fed. 483, 4 C. C. A. 454; Hart v. Washington Park Club, 157 Ill. 9, 41 N. E. 620, 29 L. R. A. 492, and authorities cited, pages 12-17, 157 Ill., pages 621, 622, 41 N. E, and pages 494, 495, 29 L. R. A. It therefore