Volume 120 — Indiana Appellate Court Reports

1. BAILMENT — <italic>Nature and Elements — Delivery and Acceptance.</italic> — It is essential in bailment that there be a delivery of the property to the bailee. p. 462. 2. BAILMENT — <italic>Nature and Elements.</italic> — Strictly speaking the letting of all personal property is a bailment. p. 462. 3. BAILMENT — <italic>Contract of Bailment — Rights of Parties</italic> <italic>Determined by Terms of Contract.</italic> — Where a truck was leased under a contract whereby the lessor agreed to furnish the vehicle, lubricants, fuel and a driver, all to be under the exclusive control of the lessee who was to return the vehicle at the expiration of the lease in good condition, regardless of whether or not the contract was classified as a bailment, the rights and liabilities of the parties were to be determined by its terms. p. 462.<page_number>Page 459</page_number> 4. APPEAL — <italic>Evidence — Weight and Sufficiency — Sufficient To</italic> <italic>Sustain Verdict.</italic> — On appeal in an action by a lessor for the loss of his truck which was destroyed by fire while under the control of the lessee, there was sufficient evidence to sustain the verdict in favor of the plaintiff. p. 463. 5. PLEADING — <italic>Complaint — Demurrer — Failure To Demur Waives</italic> <italic>Questions on Insufficiencies of Complaint.</italic> — In an action by a lessor for the loss of his truck which was destroyed by fire while under the control of the lessee, the question as to the insufficiency of the complaint in the failure to allege performance of the contract by plaintiff was waived by defendant's failure to demur to the complaint. Burns' 1946 Replacement, § 2-1011. p. 464. 6. CONTRACTS — <italic>Performance or Breach — Discharge by</italic> <italic>Impossibility — Lease of Truck — Destruction of Truck</italic> <italic>Foreseeable — Obligation Not Discharged.</italic> — In an action by a lessor to recover for the loss of a truck destroyed by fire in a collision while under the control of defendant lessee, the lessee was not relieved of its obligation to return the vehicle by reason of the fact that the accident created an unforeseen impossibility of performance not in contemplation of the parties, because it could not be asserted that it was unreasonable to assume that the parties had in mind the possibility of the occurrence of such an accident in the performance of the contract. p. 465. 7. APPEAL — <italic>Briefs — Failure To Set Out Objections to</italic> <italic>Instructions — No Questions Presented.</italic> — Appellant, in failing to set out in its brief its objections to instructions given by the trial court, presented no questions on appeal concerning these instructions. p. 465.