Held, that, under the circumstances, the assignment was sufficient; and that if the subject-matter of the assignment was understood alike by the parties affected thereby, the court should disregard the abbreviation “K. C.," and treat the paper as properly addressed, and that evidence was competent to explain the intent, and charge the latent ambiguity. Adler v. Kansas City, S. & M. R. Co., 92 Mo. 242. Estimates of Engineers in Construction Contracts. See Kistner v. Indianapolis, etc., R. Co., 12 Am. & Eng. R. R. Cas. 314; note, 24 Ib. 352; Galveston, etc., R. Co. v. Henry, 25 Ib. 265. INDIANA, BLOOMINGTON, & WESTERN R. Co. ข. ADAMSON et al. (Indiana Supreme Court, Jan. 24, 1888.) Parties Death of Joint Contractor — Action by Survivor.- The Indiana Code of Civil Procedure does not change the principle of the common law which vests the whole right in a joint contract in the survivors; and such survivors, being the real parties in interest, may maintain an action thereon without joining as co-plaintiffs the representatives of a deceased joint contractor. Contract for Construction - Stone Culvert-Obligation upon Company. — Where a railroad company agrees with a party conveying land to it for the right of way to construct an embankment along a river, and to construct and maintain in and through such embankment a good and sufficient stone-box culvert of a specified size, so constructed that it will be sufficient to permit the escape of overflow water on adjacent land belonging to such party, the railway company are bound to put in the culvert in a reasonable and sufficient manner, so that it will fairly accomplish the object in view; and, even in the absence of any specific agreement to put back the dirt in the neighborhood of such culvert, the company will be bound to do so if it is necessary to a proper and reasonable performance of the work it undertakes to do. Agency Authority — Circumstantial Evidence. Where a person acts openly as the company's agent in the construction of a work under such circumstances as imply knowledge on the company's part, his agency to act on behalf of the company is established prima facie, and his declarations made while actually engaged in directing or supervising the work of the construction are admissible in an action connected therewith. APPEAL from Fountain County Circuit Court. Action to recover damages from the defendant company for failure to perform the obligations imposed on it under the contract with plaintiff. The opinion states the case. C. W. Fairbanks and Thomas F. Davidson for appellant. Facts. ELLIOTT, J.-The appellees describe in their complaint a tract of land owned by them and Nellie Adamson in October, 1880, and allege that they and Nellie Adamson entered into a contract—not a clear one-with the appellant. The statement of the contract is as follows; viz., that they, the plaintiffs, should execute to the defendant a quitclaim deed for a strip of land out of said land, 100 feet wide and 435 feet long; and permit the defendant to construct and extend an embankment from its then terminus over said land in an easterly direction, until it should meet with and intersect with the west end of said bridge; and release said defendant from all damages that should accrue to them on account of the said embankment or the overflow of water, in consideration of which the defendant agreed to maintain its road so the plaintiffs could have the benefit of the same, pay plaintiffs and said Nellie Adamson $100, and construct and maintain in and through the said river embankment enclosing said land a good and sufficient stone-box culvert, the hole of which should not be less than two feet wide by four feet high; that the same should be constructed in a reasonable time and at the point designated by the plaintiff, and should be so constructed that it would be sufficient to carry off and permit the escape of the overflow water on said land well and sufficiently, then and in the future; and it was further agreed by the defendant that the plaintiff and Nellie Adamson should have a passage-way along said embankment, along the river at the east end of the fill, so to be made by the defendant, the bottom of which was not to be lower than the high-water mark of said river; and it was further agreed by the defendant that the river embankment was to be left unimpaired, except where it was cut or removed by putting in said culvert." averred that the plaintiff and Nellie Adamson did execute a quitclaim to the defendant, and fully performed their part of the contract, and that Nellie Adam son has since died. It is also averred that the defendant did not perform its part of the contract, but of the provisions in violation thereof, tore down the river embankment, and has failed to put in a stone-box culvert. The appellant contends that the demurrer to the complaint on the ground of a defect of plaintiffs is well taken, because neither the heirs nor the representatives of Nellie Adamson are made parties to the action. In answer to the appellant, the counsel for the appellees assert that, as the contrary does not appear, it must be assumed that the heirs of Nellie Adamson are parties. This position is not tenable. The complaint does not profess to assert a right in any of the plaintiffs as the heirs or representatives of Nellie Adamson, but proceeds exclusively on the theory that the cause of Heirs not a party to the action. action is in them in their own right. They sue as in the right of original contracting parties, and not in the capacity of heirs or representatives of a deceased party. It cannot, therefore, be inferred in aid of the complaint that the heirs or representatives of Nellie Adamson are parties to the action. This inference cannot be made without assuming that the plaintiffs sue in a different capacity from that which they themselves profess, and this assumption cannot be justly made. It is a familiar rule of pleading, that a demurrer admits only such facts as are sufficiently pleaded; and it is quite as well settled that facts must be directly averred, and not pleaded by way of recital. School Tp. v. Farlow, 75 Ind. 118. There is no direct allegation that Nellie Adamson was the wife of John M. Adamson, although, in a deed set forth in the complaint, that fact appears by way of recital; but a reci of husband tal in an instrument not the foundation of the action Allegation is not the allegation of a traversable fact. It is, indeed, of relation very doubtful if a recital of the character here under and wife. discussion would be sufficient, even if found in an instrument on which the pleading was based. But, however this may be, it is quite clear that it cannot be regarded as sufficient when contained in a mere collateral instrument. This conclusion excludes from the discussion the authorities which bear upon the question of the right of a husband, as the survivor of his deceased wife, to maintain an action for injuries to property jointly owned by them. Authorities declaring the rule in cases of partnership are not of controlling force. The rules which apply to contracts with partners rest upon essentially different principles from those which govern cases of joint contracts. The rights of partners are, in many respects, very different from those of joint obligees. The relations of the partners are different; and the rules which govern actions brought by them, or against them, are not the same as those which obtain where parties are united in a joint obligation, and not associated in a partnership. We exclude, as without controlling force, although they may be remotely analogous, the authorities which govern actions brought by surviving partners. The process of elimination which we have pursued, trims the case down to the question whether, under the Code of Civil Procedure, the survivors may bring an action on a joint contract, without joining the heirs Death of joint That they Action by suror representatives of the deceased obligee. That they might have done so at common law is indisputable. vivor. Dicey, Parties, top page 149. If the Code has not changed the rule, they may still do so. The question with which we have to deal is important, and not entirely free from difficulty; but, after the most careful study we have been able to give the 34 A. & E. R. Cas.-9. contractor. subject, we feel bound to hold that the Code does not change the common-law rule. The question goes back of the procedure, and takes up the element of the right itself. The right the statute does not profess to change; it reaches only the remedy. In the case of a joint contract, the whole right, the unified interest, vests in the survivors. Upon them falls the entire right. If they do possess the entire right, then they are the real parties in interest; since it is inconceivable, that, if they do profess the entire right, any other person can be a real party in interest. The principle of the common law, vesting the whole right in the survivors, is not changed by the Code; and so long as the principle remains unchanged, the persons possessing this entire right must be regarded as the real parties in interest. It requires legislation to abrogate a rule of law, and the courts cannot assume the func tions of the Legislature. Mr. Pomeroy, who has as strongly as any one urged a liberal construction of the Code, and an extension of its provisions, affirms that the common-law principle has not been abrogated. In discussing the question he said, "In actions ex contractu, all persons having a joint interest must be made plaintiffs; and, when one of them dies, the action must be brought and must proceed in the names of the survivors; the personal representatives of the deceased obligee or promisee cannot be joined as co-plaintiffs; and in the same manner, in actions ex delicto, for injuries to personal property, all the joint owners must unite, and, if one of them dies, the action is to be prosecuted by the survivors alone. These common-law rules remain in full force." Pom. Rem. sect. 226. Breach of contract for con. struction of culvert. We think it was competent to prove what it would cost to repair the embankment along the river. The appellant, in cutting through this embankment, and failing to do the work properly and with reasonable care and skill, violated the contract made with the appellees, and must respond in damages. We regard it as settled law that a party who agrees to perform an act, and fails to keep his agreement, must pay compensation for all injuries that naturally and proximately result from the breach. The result is to be reached by taking into consideration the contract and attendant circumstances; for, as the books frequently say, a contract to be read by "the light of the surrounding circumstances." It would be productive of confusion and injustice to take a contract and enforce it without regard to the situation of the parties and of the subject-matter. No rule of law of which we have any knowledge will sustain such a course. A contract cannot be isolated and construed without regard to the circumstances under which it was made. Where a party agrees to construct, maintain a river embankment, or do other work upon it, and the circum stances are such as show that it was the intention of the parties that the embankment should be so maintained as to prevent overflows, and so that it might be used as a roadway or the like, the promising party is answerable for the consequences resulting from the action of freshets and floods upon the embankment. It seems clear to us, that, where such a contract is made, the parties must have had in contemplation such a probable result. There was, therefore, no error in permitting the appellees to prove the cost of repairing the break or hole in the river embank ment. Same. Duty to put back the It is urged that the questions asked the witnesses on this subject were in the present tense, and therefore had reference to the time of trial. But no such objection was stated to the trial court, and the objection cannot be considered here; for, on appeal, only such objections are dirt. available as were specifically stated to the trial court. The contract between the parties must receive a reasonable construction; and, giving it such a construction, it requires that the appellant should put in the culvert in a reasonably careful and skilful manner, so that it will fairly accomplish the object the parties designed that it should do. While it is true that there was here no specific agreement to put back the dirt, yet that was unquestionably the duty of the appellant, if it was necessary to a proper and reasonable performance of the work it had undertaken to do. Whether it was necessary was a question to be decided on the whole evidence; and it could not be decided on an objection to the admission of testimony, if there was any evidence fairly warranting the conclusion that it was a necessary part of the work which the appellant had undertaken to perform. Pedigo v. Grimes, 13 N. E. Rep. 700 (this term). There unquestionably was such evidence. struct a permanent culvert. One of the appellee's witnesses was asked this question: "How would a culvert have to be made over there, at the locality mentioned in the complaint, to endure the ordinary pressure of the water and be secure?" There was no Proof of possi error in overruling the objection of the appellant to bility to conthis question. The stone-box culvert contracted for was clearly intended by the parties to be one reasonably well suited to the purpose it was intended to accomplish. Where parties contract for such work, it is understood as part of the contract that it shall be so placed and so constructed as to be reasonably well adapted to accomplish the purpose designed. We suppose it to be perfectly clear that the appellant had no right, under the contract, to construct a stone-box culvert at such an elevation or angle as that it would be practically useless. What the parties contemplated was a culvert of the kind |