" The defendant introduced evidence tend- It evidence, was void as against the appellees, and that the disturbance of that possession by the appellees was not wrongful. To support an action for conversion, it must be shown that the plaintiff, at the time of the conversion, had a general or special property in the goods, and the possession or right of possession. Picquet v. McKay, 2 Blackf. 465; Fraylor v. Horrall, 4 Blackf. 317; Coffin v. Anderson, Id. 395; Barton v. Dunning, 6 Blackf. 209; Grady v. Newby, Id. 442; Redman v. Gould, 7 Blackf. 361. In an action for conversion, the defendant may show title in a third person. Schermerhorn v. Van Volkenburgh, 11 Johns. 529. In Coffin v. Anderson, supra, the declaration charged the defendant with having converted certain bank notes belonging to the plaintiff. It was held that a special plea that the notes belonged to a third person was an indirect denial of the plaintiff's property in the notes, and a denial in argumentative form of the alleged conversion, and that such defense, amounting to a good bar to the suit, should have been taken advantage of under the general issue. In Bricker v. Hughes, Ind. 146, it was held that in trover, under the general issue, the plain-erty in a third person, the execution debttiff must recover upon the strength of his own title and right of possession, and not upon the defendant's want of title. In replevin, the plaintiff must rely upon his own title, and not upon the want of title in the defendant; and under an answer of general denial the defendant may give any evidence tending to show want of title in the plaintiff, and hence may show title in himself or in a third person. Davis v. Warfield, 38 Ind. 461; Kennedy v. Shaw, Id. 474; Thompson v. Sweetser, 43 Ind. 312; Sparks v. Heritage, 45 Ind. 66; Caldwell v. Bruggerman, 4 Minn. 270, (Gil. 199.) In Woodworth v. Knowlton, 22 Cal. 164, an action of replevin against a sheriff, who had attached the goods as the property of a third person, it was held that an answer that at the time of the levy upon the property it was owned by said third person, and in his possession, was not new matter, and was but another form of denial of the plaintiff's ownership and right of possession set forth in the complaint. In Branch v. Wiseman, 51 Ind. 1, which was an action of replevin, it was beld that, under an answer of general denial, the defendant might prove that he was a constable, and held the property as such, by virtue of a levy made thereon by him under an execution in his hands, issued on a judgment against a third person, and that the property was owned by the plaintiff and such third person jointly as partners. Farmer v. Calvert, 44 Ind. 209, was an action of replevin. The defendant answered by a general denial, and by a special paragraph alleging, in substance, that be was a sheriff, and as such seized and held the property by virtue of a writ issued in attachment proceedings against the plaintiff's son, who was the owner of the property. The plaintiff in reply denied generally the allegations of the answer, and denied specially that his son was the owner, and reasserted the plaintiff's ownership. The plaintiff proved the purchase of the property from his son. or, and was included in the answer of general denial. In Robinson v. Frost, 14 Barb. 536, an action for conversion, it was held that an answer of general denial denied, not only the conversion, but also the plaintiff's title, and that under it evidence that the plaintiff had no title to the property was admissible. See Jones v. Rahilly, 16 Minn. 320, (Gil. 283.) In Davis v. Hoppock, 6 Duer, 254, an action for conversion, it was held that, under an answer of denial of ownership and right of possession in the plaintiff, it was competent for the defendant to prove ownership and right of possession in a third person. In Gerard v. Jones, 78 Ind. 378, an action for conversion, in considering the action of the court in striking out a portion of a paragraph of answer, it was said: "From the nature of the complaint, which charges the appellant with the wrongful conversion of property, there cannot well be a confession and avoidance, and any evidence which would tend to justify their appropriation of the money or property to their own uses must be admissible under the general issue." In Ford v. Griffin, 100 Ind. 85, an action for conversion, there was an answer of general denial, and a second paragraph of answer alleging, in effect, that a third person mortgaged the property to the plaintiff to defraud the creditors of the mortgagor; that in pursuance of the fraudulent conspiracy the mortgage was foreclosed, and the property was purchased at the foreclosure sale by the plaintiff for the mortgagor, who retained possession during his lifetime; and that the defendant was the administrator of the deceased mortgagor, and found the property at his residence, took possession as administrator, sold it, and distributed the proceeds under order of court, he having no knowledge but that it belonged to his intestate. It was said by the court that this special paragraph was merely an argumentative denial of the conversion alleged in the complaint, a record wherein the pleadings were not included would have been allowable, but is whether the pleadings were admissible as parts of a record otherwise admissible. In connection with other parts of the record so introduced, they showed that, a short time before the execution of the chattel mortgage by William Swope to the appellant, the appellee Jackson became a creditor of said William, and entitled to maintain an action to set aside his conveyances made to defraud his creditors. The entire record was material. the substance of it being that there was no conversion, and that every material fact alleged could have been given in evidence under the general denial. The decisions upon the matter in discussion are not harmonious. We deem it to be consistent with the meaning and purpose of our Code of Procedure to sustain the rulings of the court below in the admission of the evidence in question. It tended, not to prove title or right of possession in a third person, a fraudulent mortgagor, which he could assert, but to prove that at the time of the alleged conversion the goods were, as between the parties to this action, goods which the appellees had a right to take as the property of said mortgagor, by virtue of an execution as against which appellant's claim of property and possession was void. The facts so put in evi-sibility of evidence of fraud in the transacdence by the appellees tended to disprove the appellant's claim of lawful possession, and his charge of unlawful taking and conversion. They were admissible under the general denial. We cannot reverse the judgment because of alleged insufficiency of the evidence, inasmuch as there was evidence tending to sustain the verdict. Other questions discussed by counsel are sufficiently disposed of in what has been said as to the admistion between said William Swope and the appellant. The judgment is affirmed. REEVES' ESTATE V. Moore. (Appellate Court of Indiana. April 27, 1892.) CLAIMS AGAINST DECEDENT MEMBER OF FAMILY -SPECIAL FINDINGS. 1. Where plaintiff, an orphan, was from the time she was 14 years of age until she married well taken care of by decedent, who, under contract with her guardian, received her into his family as a member thereof, and treated her as such, she was not entitled to pay for services while she so stayed with him. 2. Answers to interrogatories override a general verdict only when both cannot stand together. Appeal from circuit court, Hancock county; W. R. HOUGH, Special Judge. The record shows that counsel for the appellant offered to introduce in evidence what they in the offer stated to be the papers and judgment in an action brought by the appellee Eli Jackson against said William Swope and his wife, Amanda Swope, to set aside as fraudulent a deed of conveyance of real estate by said William to said Amanda, which counsel stated to be a part of the transaction in which the chattel mortgage of the property here in dispute was given by said William to the appellant; it being also stated by counsel that in said action said deed was decided to be valid. The offered evidence was excluded. The appellees were not parties to the action in which said judgment was rendered, and that suit did not relate to the property here involved in controversy. That adjudication could not bind the appellees upon the question of fraud in the execution of the chattel Marsh & Cook, for appellant. John J. mortgage. The excluded papers and judg- | Blackford, Henry Warrum, and T. S. Ralment are not set forth in the record. We do not know their contents, subject-matter, or effect, except as stated generally in the offer of proof. As the record does not show what the rejected evidence was, we have no proper means of determining as to its competency or materiality, and we cannot reverse the judgment because of its exclusion, even if it were apparently competent and material upon the statement of Counsel in making the offer. Rucker v. Steelman, 97 Ind. 222; Wilcox v. Majors, 88 Ind. 203; Ferguson v. Hirsch, 54 Ind. 337. The appellees introduced in evidence the complaint, answer, judginent, and execution in the cause of the appellee Eli Jackson against said William Swope. Aside from the appellant's objection, already noticed, that this was not competent evidence under the general denial, the only reason urged against it is that the complaint and answer were immaterial and incompetent, and threw no light upon the issues. A judicial record as evidence is an entire thing, and, if it be admissible in evidence for any purpose, all its parts are admissible. State v. Hawkins, 81 Ind. 486, and authorities there cited. The question here is not whether the admission of Proceeding by Emma L. Moore against the estate of Benjamin Reeves, deceased, to enforce a claim for services rendered for deceased in his lifetime. Verdict and judgment for plaintiff. New trial denied. Defendant appeals. Reversed. lins, for appellee. NEW, J. Einma L. Moore, the appellee, filed a claim against the estate of Benjamin Reeves, deceased, to recover $728 for work and labor alleged to have been performed for the decedent, at his request, beginning in the year 1882, and ending in the year 1889. There were no other pleadings. The cause was by agreement of the parties submitted to a jury for trial. The jury returned a general verdict for the appellee for $150, as also answers to interrogatories submitted by the court at the request of the parties. A motion by the appellant for judgment on the answers to the interrogatories, notwithstanding the general verdict, was overruled, and exception taken. A motion by the appellant for a new trial was also overruled, and exception saved. Judgment was rendered for the appellee for the amount named in the general verdiet. The appellant has assigned as error that the complaint does not state facts sufficient to constitute a cause of action; that the court erred in overruling the appellant's motion for judgment on the answers by the jury to the interrogatories, and in overruling the appellant's motion for a new trial. The first assignment of error is waived, because not discussed. We cannot say that the court erred in overruling the appellant's motion for judgment on the answers of the jury to the interrogatories. The answers to interrogatories override the general verdict only when both cannot stand together; the antagonism being such, upon the face of the record, as is beyond possibility of removal by any evidence admissible under the issues in the cause. Lockwood r. Rose, 125 Ind. 588, 25 N. E. Rep. 710; Weller v. Bectell, 2 Ind. App. 228, 28 N. E. Rep. 333; Gaar, Scott & Co. v. Rose, (Ind. App.) 29 N. E. Rep. 616. One of the grounds assigned for a new trial is that the verdict of the jury is not sustained by sufficient evidence. In our opinion, the appellant is entitled to a new trial upon this ground. Any benefit of a sort commonly the subject of pecuniary compensation, which one not intending it as a gift confers on another, who accepts it, is, although there be no agreement in fact, an adequate foundation for the law's implied or created promise to render back its value. Where one is employed in the service of another the law implies a promise to pay, and where one accepts and retains the beneficial results of another's services the law will imply a previous request for the services, and a promise to pay for them. Chamness v. Cox, 2 Ind. App. 487, 28 N. E. Rep. 777; James v. Gil. len, (Ind. App.) 30 N. E. Rep. 7; Moreland Tp. v. Davidson Tp., 71 Pa. St. 371; Perry v. Bailey, 12 Kan. 539; Ford v. Ward, 26 Ark. 360; Bish. Cont. § 217. The presumption of which we have spoken, however, may be removed by evidence that the relations between the parties were such as to exclude the inference that they were dealing on the footing of contract. Chamness v. Cox, supra; Webster v. Wardsworth, 44 Ind. 283; Hays v. McConnell, 42 Ind. 25. See, also, State v. Clark, 16 Ind. 97; Marquis v. La Baw, 82 Ind. 550; State v. Reche, 91 Ind. 406; Wright v. McLarinan, 92 Ind. 103. We have closely examined the evidence. It is voluminous, and we shall not attempt to give more than a condensed statement of what it establishes upon the leading and controlling question in the case. Benjamin Reeves, the decedent, and his wife, were living alone upon a farm of 90 acres. Reeves was an old man, in feeble health. He had his third wife, who enjoyed reasonable health. His land possessed a rental value of $3.50 per acre, and he owned personal property of the value of $300. The appellee was an orphan, one of five children, and aged about 14 years when she went to the decedent's to live. She was under the guardianship of one Benton L. Barrett, who was seeking a bome for her. For the purpose of securing her a home he saw the decedent. Barrett testified as a witness, and, among other things, said: "I was hunting a home for the girl, and the purpose of the conversation was to find a home, what the expenses would be, and he proposed to keep her as one of his family. I told hin the home she had been at was very objectionable, from the fact that she had very poor treatment, and that I wanted her to go to school, and that she must go to school; and with that fact he took the girl. I was looking for a home for the girl. He said he would take her as one of his family, and treat her as one of his family. The agreement was that he was to take her as a member of the family." It was further shown that the appellee was a second cousin of the decedent. The guardian also testified that nothing was said about wages or board, nor is it established by the evidence how long the appellee was to stay at the decedent's. The evidence clearly shows without any contradiction whatever that the appellee was by the agreement of the guardian and the decedent received into the family of the latter as a member of it. Alice Redman, a sister of the appellee, and who was called as a witness for her, testified that it was her understanding that the appellee was staying at the decedent's as a member of the family. The work required of the appellee was such as she might reasonably perform as one of the family. She had clothing which was suitable to the condition in life of the parties. Some of the clothing was purchased by her with pension money in which she had an interest, and some was furnished by the decedent. It is not shown by the evidence that the decedent was at fault in that regard. Some goods for bedding were furnished to her by the decedent when she was making preparations to marry. She received and entertained company at the decedent's with as much freedom as if she were his own child. She was permitted to go and come with young company without unreasonable restraint. There is nothing to show that she was overworked, or in any respect treated with harshness or severity. There is reason to believe from the evidence that she was happy and contented there. The evidence shows that she went to the decedent's in May, 1883, and left there in May, 1889, when she married. During that period she attended school over one year, quitting of her own will, at the close of the winter term of 1885-86. It is not shown that she or her guardian ever asked of the decedent an accounting, or that either of them ever demanded of him pay or reward of any kind for her services. It was after her marriage, and after the death of the decedent, so far as can be known from the evidence, that she for the first time asserted her present claim. We think there is an utter failure of proof, and that the court erred in overruling the appellant's motion for a new trial. The case is strikingly like that of Brown v. Yaryan, 74 Ind. 305. The judgment is reversed, with costs. avoid injury, but an averment that the injury occurred without his fault is sufficient, and, if de fendant desires a more particular statement of facts, its remedy, if any, is by motion to make the complaint more specific. 2. It is negligence per se for a railroad company to run a train of cars in violation of a city ordinance limiting the rate of speed, and if any one is injured in consequence of such negligence, without fault on his part, he is entitled to recover damages. 3. In an action for personal injuries alleged to have been caused by defendant's negligence, the instructions as to the law of negligence and contributory negligence, if applicable to the facts as shown by the evidence, are not erroneous because they do not state any of the facts. 4. Courts will take judicial notice that a city is duly incorporated under the laws of the state. 5. An objection to the introduction of the copy of an ordinance in evidence as incompetent is too general, and where no more specific objec tion was made, so as to call the court's attention to the grounds relied on, it will not be considered on appeal. Appeal from circuit court, Porter county; E. C. FIELD, Judge. Action by Harvey Horton against the Pennsylvania Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed. Allen Zollars, for appellant. Crumpacker, for appellee. E. D. MILLER, J. This action was brought to recover for a personal injury suffered by appellee on the 13th of November, 1884, at a street crossing in Warsaw, Kosciusko county, by collision with the engine of a passenger train of cars running on the Pittsburgh, Ft. Wayne & Chicago Railway. At the time of the injury the appellee, as alleged in the complaint, was driving a horse and wagon along Washington street, in Warsaw, from the north to. wards the south. It is further alleged that the railway crossed the street on an embankment 12 feet high, maintained by the appellant; that the approaches to the track were steep and narrow, and that passengers on the street could with difficulty see approaching trains until they reached the top of the embankment at said crossing; that a side track was maintained by appellant along the north side of its main track across Washington street, and extended east and west therefrom a distance of 100 yards, and that adjacent to appellant's right of way, on the west side of Washington street, a large sawmill, sash factory, and manufactory of wooden wares was located, which, when in operation, made a noise so similar to that of an approaching train of cars that it was difficult to distinguish the one from the other, but that the ringing of a bell or sounding of a whistle could have been distinctly heard; that at the time of the injury appellant negligently permitted its freight cars to stand all day on said side track and upon and into Washington street, and leaving only 15 feet between its cars for passengers and teams to pass along said street and on its track, although the street was open and used by the public to the width of 80 feet; that Warsaw was an incorporated city at the time of, and for a long time prior to, the injury, and by an ordinance duly passed by the common council, and then in force, prohibited steam cars and locomotive engines within said city from moving at a greater rate of speed than five miles an hour; that at the time of his injury the appellee was lawfully passing along Washington street from the north to the south, driving a horse, and was about to cross appellant's track where it crossed said Washington street, being a public street and much used by the public, and that by reason of said embankment, and its steep and narrow approaches, and the freight cars standing upon the side track and in said street obstructing the appellee's view of the main track, he was unable to see an approaching train passing westward along the main track, and by reason of said mill and factory being in action he was unable to see and hear said train approaching, and while so carefully passing along said street, and about to cross the railway track, and carefully seeking to avoid danger from any engine and cars, and without fault on his part, he was run into by a locomotive and train of cars of appellant, passing along the main track from the east to the west, unlawfully, carelessly, and running at the rate of 25 miles per hour, without ringing the bell or sounding the whistle within 100 yards to the east of said street crossing; that by reason of the foregoing premises the appellee was wholly unaware of the approach of the train until he was struck by the same, and violently thrown from his wagon, and his arm and leg broken; and all without fault or negligence on his part. A demurrer was overruled to the complaint, exception taken, and the ruling is assigned as error. The counsel for appellant do not assert that the complaint does not sufficiently charge negligence on the part of the defendant, but insist that the facts stated show that the appellee was, at the time of his injury, guilty of contributory negligence. A general averment that the injury happened without the fault or negligence of the plaintiff is sufficient, unless it appears from other more specific averments that he was in fact negligent. The complaint charges, in effect, that the crossing was a dangerous one; and, while it is incumbent upon a traveler in approaching such a crossing to use care and caution reasonably commensurate with the known or apparent danger to be apprehended, it is not necessary to set out affirmatively all the precautions taken to avoid injury. The general allegation that the injury occurred without his fault or negligence is all that is necessary. We find no averment in the complaint inconsistent with the statement that he was without fault. If the defendant desired a more particular and definite statement of the facts, his remedy, if any, was a motion to compel the plain. tiff to make the complaint more specific. Pennsylvania Co. v. O'Shaughnessy, 122 Ind. 588, 23 N. E. Rep. 675; Railway Co. v. McCartney, 121 Ind. 385, 23 N. E. Rep. 258; City of Anderson v. East, 117 Ind. 126, 19 N. E. Rep. 726; Railway Co. v. Crist, 116 Ind. 446, 19 N. E. Rep. 310; Rail way Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234. The appellant insists that the court erred in giving the first instruction to the jury. The portion of this instruction objected to is as follows: "If you find from the evidence that the view of the approaching train was obstructed by buildings, trees, and cars on defendant's railroad at such crossing to a traveler on such street from the north, and at the time of the injury a valid ordinance of the city of Warsaw was in force limiting the rate of speed of defendant's trains to five miles an hour in said city, and that the train which injured plaintiff was at the time of the injury running at the rate of ten or fifteen miles an hour, then the defendant was guilty of negligence; and if you find that such negligence produced the plaintiff's injury without any negligence on the plaintiff's part which contributed to the injury, then your verdict should be for the plaintiff." This instruction contained a correct enunciation of the law relating to what it took to establish actionable negligence on the part of the defendant. It is negligence per se to run a train of cars in violation of a city ordinance, and, if any one is injured in consequence of such negligence, without being himself guilty of contributory negligence, he may recover damages for such injury. Railroad Co. v. Mathias, 50 Ind. 65; Pennsylvania Co. v. Hensil, 70 Ind. 569; Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 20 N. E. Rep. 843. The instruction does nothing more than inform the jury of the law upon this subject, leaving it to the other and subsequent charges to direct their attention to the subject of contributory negligence. We discover no infirmity in this instruction. Complaint is also made of the second and third instructions. They are as follows: "Second. The plaintiff was bound to use ordinary care, under the circum. stances shown to have existed in this case. He was bound to approach the railroad carefully, and to look and listen for the approach of trains; and if the evidence shows that he did this with that degree of care that an ordinarily prudent person would have exercised under all the circumstances, and was unable to hear or see the train approaching until it was too late to avoid the collision, then he was not guilty of contributory negligence. Third. There is no law requiring a man, in the lawful use of a public street approaching a railroad crossing, to stop his vehicle before crossing, but he is bound to use such care, under all the cireuinstances, as a man of ordinary care must have exercised under like circumstances; and, if you find that Horton ex. ercised such care at the time of and preceding the injury, he was not guilty of contributory negligence." Counsel for appellant concede the law to be as laid down in these instructions as an abstract proposition, but insist that when applied to the facts of this case they were too general and indefinite, and such as tended to mislead the jury. We are satisfied that these instructions were not only correct as abstract propositions of law, but that, when taken in connection with the other instructions, they correctly and fairly submitted the questions of law involved in the case to the jury. The objections urged to these charges are that they do not state any facts, nor advise the jury what the appellee should have done under the circumstances to have shown him to be in the exercise of due care. It was not necessary, nor would it have been proper, for the court to have entered into a dis. cussion of the facts. The court stated the law to the jury applicable to the case, and left it to them to determine from the evidence whether there had been negligence on the part of the plaintiff contributing to the injury. In the eighth instruction the jury were told that, "if safety under the circumstances required that he should stop his horse to ascertain whether it was safe to cross the track or not, it was his duty to stop, and look and listen, and if, failing in this, he was caught by the engine and injured, he cannot recover. We think it apparent that the appellant has no cause to complain of this instruction. In the tenth instruction the court told the jury: "If you find that at the time of and just preceding the injury Horton approached the railway crossing, and could, by looking in the proper direction, have seen the train coming towards him in time to have avoided the injury, although the engineer gave no warning of his approach by ringing the engine bell or otherwise, and though the train was run. ning fifteen or twenty miles an hour, still your verdict must be for the defendant; for if you find, under such circumstances, Horton omitted to look for the train, he was guilty of such negligence as deprives him of the right to recover." This instruction was pertinent to the theory of the defense. That the plaintiff might, by looking, have seen the approaching train, was not objectionable on account of the omission of the elements of listening, which was fully treated of in other instructions. Some criticism is made of other instructions, but, as no objections were made to them upon the trial, we cannot consider them now. Taken as a whole, the instructions were quite favorable to the defendant. An ordinance of the city of Warsaw was, over the objection of the defendant, given in evidence, and this is claimed to have been erroneous. The objections were that there was no evidence that the city had been legally incorporated, and because the copy was incompetent. We take judicial notice that Warsaw is an incorporated city, under the general laws of this state. Stultz v. State, 65 Ind. 492; Town of Albion v. Hetrick, 90 Ind. 545; Woodward v. Railway Co., 21 Wis. 309; Com. v. Intoxicating Liquors, 103 Mass. 448. The other objection is too indefinite and uncertain to raise any question. If the objection was to the authentication or proof of the ordinance, the specific objec tion should have been pointed out. This would have been fair to the court and to the adverse party. We cannot consider questions for the first time in this court |