furnish the power with which to draw the separator from one setting to another; that in fact it was deficient in every particular and phase of mechanism to the extent that these defendants could not use the same for threshing purposes, the purpose for which they purchased the same." The plaintiff demurred to the second paragraph of the answer for want of sufficient facts to constitute a defense to the plaintiff's cause of action. The demurrer was submitted to the court, and overruled, to which the plaintiff at the time excepted, and thereupon he filed his reply in general denial thereto. Pending the action, the appellees Mitchell and Trott filed a cross complaint, and had a summons issued thereon against the appellant Michenor. The cross complaint, so far as it affects the plaintiff, is not materially different from the second paragraph of the answer, the same general facts being stated, except it charges that said Shirk colluded and conspired with said Michenor to cheat and defraud the cross complainants out of their legal rights by taking and accepting said notes, and the assignments thereof, thereby hoping to place the same in the hands of an innocent holder and beyond the reach of these cross complainants, as the statutes provide in the case of bank notes, well knowing at the time he so accepted said notes, and the assignments thereof, that the facts existed as therein alleged. The plaintiff filed his motion and written reasons to strike out the cross complaint. This motion was submitted to the court, and overruled, to which the plaintiff at the time excepted. The ruling upon this motion was saved by a proper bill of exceptions. There upon the plaintiff filed his demurrer to the cross complaint for want of sufficient facts to constitute a cause of action. The demurrer was submitted to the court, overruled, and an exception taken. Answers in general denial completed the issues in the cause. There was a trial by jury, and a verdict for the defendants. The plaintiff filed his motion and written reasons for a new trial, which were overruled, and exceptions taken. Thereupon the court rendered judgment upon the verdict. From the judgment so rendered, Milton Shirk and James B. Michenor desiring to appeal this cause to this court upon questions of law only, and so notifying the court, it is certified by the court as required by Rev. St. 1894, § 662, and Rule 30 of the supreme court. The sufficiency of the second paragraph of the separate answer of Mitchell and Trott upon demurrer is the first question for consideration.

It is a well-settled principle that a breach of warranty pleaded as a cause of action or defense must, to be good upon demurrer, aver the character and extent of the warranty, and the nature and particulars of the breach. Booher v. Goldsborough, 44 Ind. 490; Machine Works v. Chandler, 56 Ind.

575; Harvester Co. v. Bartley, 81 Ind. 406; McClamrock v. Flint, 101 Ind. 278; Flint v. Cook, 102 Ind. 391, 1 N. E. 633; Conant v. Bank, 121 Ind. 323, 22 N. E. 250; Aultman, Miller & Co. v. Seichting, 126 Ind. 137, 25 N. E. 894; Lincoln v. Ragsdale (Ind. App.) 31 N. E. 581. There may sometimes be an implied warranty that an article is fit for the purpose for which a purchaser buys it. Thus, it is said that if a manufacturer of an article sells it at a fair market price, knowing the purchaser desires to apply it to a particular purpose, he impliedly warrants it to be fit for that purpose. Brenton v. Davis, 8 Blackf. 317; Page v. Ford, 12 Ind. 46; Machine Works v. Chandler, supra; McClamrock v. Flint, supra; Conant v. Bank, 121 Ind. 323, 22 N. E. 250. If this were an answer seeking to establish and enforce an implied warranty, the averments of the answer would be insufficient. There is no positive allegation in it that the engine was purchased for the purpose of threshing, or that the Springfield Engine & Thresher Company, or its agent Michenor, knew the purpose for which Mitchell and Trott were buying the engine. The only reference in the answer as to the purpose of the purchase was as follows: "That in fact it was deficient in every particular and phase of mechanism to the extent that these defendants could not use the same for threshing purposes, the purpose for which they purchased the same." In School Tp. v. Farlow, 75 Ind., on page 122, it is said: "It was the rule at common law, and is the rule under the Code, that matters cannot be pleaded by way of recital. Facts must be positively alleged." We think the purpose for which the engine was bought should be positively averred in the answer, and not left to mere recital or inference, and in this respect the answer should be made more specific. But we need not consider in this case the question of implied warranties or oral warranties. The contract before us is a written one; it must speak for itself. Where a written contract of warranty is made, oral warranties and implied warranties are all merged in the written contract, and by its terms the parties must be bound as in other cases of written agreements. McClure v. Jeffery, 8 Ind. 79; Gatling v. Newell, 9 Ind. 572; Smith v. Dallas, 35 Ind. 255; Machine Works v. Chandler, supra; Harvester Co. v. Bartley, supra; Brown v. Russell, 105 Ind. 46, 4 N. E. 428; Conant v. Bank, 121 Ind. 323, 22 N. E. 250; Seitz v. Machine Co., 141 U. S. 510, 12 Sup. Ct. 46, and cases cited. There is no statement in the written warranty of the purpose for which the engine in controversy was made. It is described in the written order and warranty as a "traction Atlas secondhand, engine on wheels," but that does not define with certainty the use to which it was to be put. In Webster's Dictionary a "traction engine" is defined to be "a locomotive for drawing vehicles on highways or in the fields."

The engine was "to do as good work as any of its size made for the purpose," but it can not be assumed that it was purchased for threshing purposes in the absence of an allegation to that effect. The answer avers that "it could not be made to furnish power for ordinary threshing purposes,-to run an ordinary thresher;" but, as stated, we look in vain for an averment that it was bought for such purpose. It is averred "that it would not furnish sufficient power with which to draw the separator from one setting to another," but there is no averment in the answer that it was either made or sold for the purpose of drawing a separator from one setting to another, or that any other machine of the same size, made for the same purpose, would draw a separator from one setting to another. As heretofore suggested, it is averred "that in fact it was deficient in every particular and phase of mechanism to the extent that these defendants could not use the same for threshing purposes," but there is no averment that it was manufactured or sold to be used for threshing purposes, or that any engine of its size was manufactured by any person or firm for threshing purposes, or that any engine of any make, manufactured for the purpose for which this was manufactured, could be made with any degree of care or skill to do efficient work for threshing purposes. There should be a connection shown between the warranty contained in the written contract and the defects in the engine which are pointed out in the answer. It does not appear from these averments of the answer that these defects were within the terms of the warranty. The paragraphs of the answer adjudged to be bad in Aultman, Miller & Co. v. Seichting, supra, were based upon a written contract somewhat similar to that in the present case, and the averments as to the defects in the machine were fuller and more specific, but the court held such paragraphs insufficient on demurrer. In that case it is said on page 141, 126 Ind., and on page 894, 25 N. E.: "It is necessary to allege wherein it fails to comply with the warranty, or the particular defects by reason of which there is a failure to comply with the warranty." The answer in the present case does not allege wherein this engine fails to comply with the warranty, or the particular defects in it. Whether the failure to do the work for which the appellees purchased the engine was due to defects in the engine itself, or was due to the attempt by the appellees to use it for a purpose for which it was not made, does not appear from the answer. does not appear from the allegations whether the failure to furnish the power was due to some defect in the machine or not, unless it be inferred from the general averment that the machine was "deficient in every particular and phase of mechanism to the extent that this defendant could not use the same for threshing purposes," that some unstated

It

defect existed in the material of which the machine was made, or in its manner of construction. We think the answer is open to the objections stated, and that the demurrer to it, and to the cross complaint for like reasons, should have been sustained. In our opinion, the court did not err in overruling appellants' motion to strike the cross complaint from the files. The cross complaint was filed before the supplemental complaint. It contained averments concerning the two notes not included in the original suit. It was proper to have the entire controversy adjudicated in this manner. We do not see how these notes could have been canceled by the judgment of the court, or the contract rescinded, on account of the alleged fraud of the payee, unless by means of adversary proceedings brought for the purpose against all the interested parties. The first question arising upon the motion for a new trial is as to the burden of proof. The notes in suit are made payable at a bank in this state, and they were assigned to the plaintiff by indorsement in writing before maturity. The instructions have been brought into review before us. The court instructed the jury that "if the defendants have proven the breach of warranty, as alleged in the answer and cross complaint, then the burden of proof shifts to the plaintiff, and, before be can recover, he must prove by a preponderance of the evidence that he is a bona fide holder of the notes by indorsement for value before maturity in the regular course of business." "If the other material allegations of the answer and cross complaint have been established, then the plaintiff has the burden of the issue, and it devolves upon him to show that he is a bona fide holder of the notes."

The answer in the present case does not aver that any improper means were used by appellant Michenor to influence or induce the appellees to purchase the engine. There was no fraud in the execution of the notes, nor any unfairness in the transaction, so far as we are informed by the answer or cross complaint. The notes were given for an article of commerce, which was sold under a written contract of warranty, and the defense sought to be made is that there was a breach of the warranty, and that appellant Shirk had notice of the breach at the time he bought the notes. Under this state of the issues, it is clear the court erred in giving the instructions quoted. The principles governing cases in which the defense pleaded is fraud or illegality in the inception of a promissory note have no application to cases where the note has its origin in a lawful transaction, but there is a want of consideration or a failure of consideration maintained as a defense. In Rose v. Hurley. 39 Ind. 77, at page 81, the cour✦ said: "The same transaction cannot be charac terized as a warranty and a fraud at the same time. A warranty rests upon contract,

while fraud or fraudulent representations have no element of contract in them, but are essentially a tort." In Pursley v. Wikle, 118 Ind. 139, at pages 143, 144, 19 N. E. 478, the court said: "Fraud eonsists of an undue advantage taken of a party under circumstances which mislead, confuse, or disturb the just results of his judgment, and thus expose him to be the victim of the artful, the importunate, and the cunning. 1 Story, Eq. Jur. § 251; Turley v. Taylor, 6 Baxt. 376. It is a tort, and is so treated by all the authorities. Ordinarily, the essence of a tort consists in the violation of some duty to an individual, which duty is a thing different from the mere contract obligation. Rich v. Railroad Co., 87 N. Y. 382."

It has been the settled law of this state ever since the decision in Harbison v. Bank, 28 Ind. 133, and it is the law of other courts as well, that in a suit by an indorsee upon a bill of exchange or promissory note, alleged and shown to have been obtained by fraud, it is incumbent upon him to prove that he is a bona fide holder of the bill or note for value. Giberson v. Jolley, 120 Ind. 301, 22 N. E. 306, and cases cited; Bank v. Ruhl, 122 Ind. 279, 23 N. E. 766; Schmueckle v. Waters, 125 Ind. 265, on page 268, 25 N. E. 281; Bank v. Leonhart, 126 Ind. 206, on page 210, 25 N. E. 1099; Stewart v. Lansing, 104 U. S. 505; Vosburgh v. Diefendorf, 119 N. Y. 357, 23 N. E. 801; Henry v. Sneed, 99 Mo. 407, 12 S. W. 663; authorities cited [Bedell v. Herring (Cal.) 20 Pac. 129] 11 Am. St. Rep. 324, 325. Where the defense pleaded and proved is a want or failure of consideration, or a breach of warranty, or any such answer averring matters arising subsequent to the execution of the note, the transaction out of which the notes arose being fair and lawful, the defendant has the onus of the issue to establish that the holder of a note governed by the law merchant took it with notice of a defense thereto. Bank v. Ruhl, 122 Ind. 281, 282, 23 N. E. 766; Galvin v. Bank (Ind. Sup.) 28 N. E. 847; Pana v. Bowler, 107 U. S. 529-541, 2 Sup. Ct. 704; Bank v. Bridgers, 98 N. C. 67, 3 S. E. 826; Mitchell v. Deeds, 49 Ill. 416; Collins v. Gilbert, 94 U. S. 753; Hotchkiss v. Banks, 21 Wall. 354; Murray v. Lardner, 2 Wall. 110; authorities cited [Bedell v. Herring (Cal.) 20 Pac. 129] 11 Am. St. Rep. 324.

In the seventeenth instruction, given by the court of its own motion, the jury were told that, in a case when it is shown by the defendants that the instruments originated in fraud, the burden of proof will be shifted to the holder, and he must then show that he is a bona fide holder for value. The same statement, in substance, is repeated in the fifth instruction given at the request of the defendants. Then the court proceeds to apply this recital of the law to the facts of the case at bar as follows: "In this case, if you find from all the evidence adduced before you that James B. Michenor obtained

the notes in suit by fraud and misstatements made by him for the purpose and intention of inducing the defendants to sign or make said notes, and if you find that prior to the maturity of said note the plaintiff Milton Shirk bought the notes for value, and that James B. Michenor indorsed his name on the back thereof, and delivered the same to the plaintiff, he cannot recover in this action against the maker of the notes, unless he has also proven to your satisfaction that he had no knowledge of the fraud of Michenor, and the burden of proving that he had no such knowledge rests upon him. It is not enough to say that he bought them in good faith for value, but he must prove, in order to recover, that he had no knowledge of the fraud." The court gave the jury the sixth instruction asked by the defendants, as follows: "Where one is induced to sign a promissory note by a cunningly devised scheme, preconcerted for the purpose of deceiving him, and made effective by false statements, a conclusion of fraud is warranted. Therefore, in this case, if you believe, from all the evidence adduced, that the notes in suit were given by the defendants to the payee, J. B. Michenor, in payment of a secondhand threshing machine, sold by said Michenor to the defendants; and if you believe that said engine was an old and worn-out machine; and if you believe that, for the purpose of inducing the defendants to purchase the said machine and give the notes in suit in payment therefor, he painted, or caused to be painted, and repaired the said machine, so as to give it the appearance of a new engine, or to make it look like an engine as good as new; and if you believe that he represented to the defendants, and stated, that said engine was as good as any 10 horse power engine; and if you further believe that said defendants were deceived thereby, and by reason thereof were induced to, and did, sign and make the notes in suit,-you would be warranted to find that said Michenor obtained the notes from said defendants by fraud." It is quite apparent that the last two instructions are not applicable to any evidence which was admissible under the issues in this case. It is established by a long line of decisions that a party must recover, if at all, upon the facts stated in his pleadings. It would be a | dangerous practice, subversive of legal principles, to permit a party to plead that a note was executed for the purchase money of an engine, and make no complaint as to the fairness of the transaction of purchase, and then defeat the action by proof that he had been induced to enter into such contract through the fraud of the seller. An answer of fraud is essentially and radically different from an answer of breach of warranty, and there is nothing in the answer or cross complaint in controversy which would give the appellants an intimation, before the trial, that the fairness of the transaction in which

a number of the employés of the appellee responded, and helped push the car. Neither appellee nor the foreman was aware that the board had not been removed from the tops of said cars; it being a thick, heavy piece of lumber, 20 inches or 2 feet wide, and an inch thick, and 8 or 9 feet long. The appellant was ignorant that the running board had not been removed or secured. The appellant could easily have seen it, if he had looked, and, in his testimony, gives as the only reason for not looking that he supposed it was not his duty to look, but that it was the duty of somebody else to look out for his safety. He took a position at the drawbar immediately under the running board, and, in common with the other employés, began pushing the car; and, as soon as it was moved enough to pull one end of the board off of one of the cars, it fell on the appellant, and inflicted the injury complained of. None of the other employés was hurt, appellant being the only one struck by the falling board.

In a case where the servant is one of mature age and experience, as in this case, the law never imposes the duty on the master of becoming eyes and ears for his servant, where there is nothing to prevent the servant from using his own eyes and ears to avoid danger. In this case there was nothing to prevent appellant, as such servant, from seeing the danger to which he was exposing himself, and there could be no possible question in the mind of any rational being, who took the precaution to look, that it was not only a danger, but that appellant's act must inevitably result in his injury. We need not stop to inquire whether the foreman's act was the act of the principal, and binding on the appellee, nor whether appellant rightly interpreted the motion of the foreman's head to mean an order to him to engage in helping to push the car, nor whether such order, if given, amounted to an order to appellant, as a servant, to engage in a different and more hazardous service than that for which he had been employed. Such an order did not imply that the work was to be so done as to endanger any one. Rather, such an order would imply that the work was to be done in a careful and prudent manner. Had it been so done, no harm could have resulted to any one. Had prudence and care been observed, either the board would have been shoved over onto one or the other of the cars before attempting to move one of them, or the appellant would have done as the other employés did,-taken a position at the car to be pushed that would not expose him to the danger of the board falling on him. The only reason he assigns in his testimony for not exercising either of these precautions

is that he did not look, and that he did not think it was his duty to look; that it was somebody else's duty to look out for his safety. He admits these precautionary measures might have been taken by him, and, if so taken, no harm could have come to him. This is not a case where the master had furnished an unsafe place, machinery, or appliances with or in which he required his servant to work, nor is it a case where the danger was known to the master, and unknown to the servant, but is a case wherein the place and appliances were all safe and suitable, if the servant would only use his senses with ordinary prudence and care. He had the same opportunity of knowing of the danger that his master had. And in such a case it has been held that the injured servant must, in order to recover, aver and prove that he did not have the means of knowing, equally well with the master, of the danger, and of the means of avoiding it. Railway Co. v. Dailey, 110 Ind. 82, 10 N. E. 631. In Griffin v. Railway Co., 124 Ind., at page 328, 24 N. E. SSS, it was said by this court that: "Where the danger is alike open to the ob servation of all, both the master and servant are upon an equality, and the master is not liable for an injury resulting from the dangers of the business." To the same effect is Water-Supply Co. v. White, 124 Ind. 376, 24 N. E. 747. The law requires that men shall use the senses with which nature has endowed them, and when, without excuse, one fails to do so, he alone must suffer the consequences; and he is not excused, where he fails to discover the danger, if he made no attempt to employ the faculties nature has given him. Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. 741; Railway Co. v. Pinchin, 112 Ind. 592, 13 N. E. 677; City of Plymouth v. Milner, 117 Ind. 324, 20 N. E. 235; Stewart v. Pennsylvania Co., 130 Ind. 242, 29 N. E. 916; Pennsylvania Co. v. Myers (at this term) 36 N. E. 32. Therefore, on the appellant's own testimony, and all the other evidence tending to support it, and giving it a construction the most favorable to appellant, he cannot recover. In such a case, it is the duty of the trial court to instruct the jury to find for the defendant. Purcell v. English, 86 Ind. 34; Washer v. Turnpike Co., 81 Ind. 78; Dodge v. Gaylord, 53 Ind. 365; Railway Co. v. Williamson, 104 Ind. 154, 3 N. E. 814; Vance v. Vance, 74 Ind. 370; Faris v. Hoberg, 134 Ind. - 33 N. E. 1028; Railway Co. v. Dunn (at this term) 36 N. E. 702. We therefore hold that the special term properly instructed the jury to find for the defendant, and that the general term did not err in affirming the judgment of the special term. The judgment of the general term is affirmed.