On Petition fob Reheabing.
Comstock, J.Appellees Moore and Moore ask a rehearing in this cause upon the alleged error of the court in holding that the first paragraph of the complaint did not show a cause of action. The holding was upon the authority of Moellering v. Evans, 121 Ind. 195, 6 L. R. A. 449. The case was cited by appellant, and the argument against the sufficiency of the paragraph based upon said case. Appellees met the argument with the claim that that ease, to *369quote from appellees’ brief, “was not applicable to a party wall built, as in this case, one-lialf on each of the adjoining lots, each adjoining proprietor owning one-half of the wall and having an easment in the other half.” This position was fairly taken as an admission that if the paragraph did not show that the wall in question was a party wall, the case was controlling. It did not show such fact, and the reason upon which appellees contended the case was not applicable failed.
But counsel insist that the averments of this paragraph that defendants negligently and unlawfully did the excavation that- caused plaintiff’s building to fall are sufficient to make it good. The characterization of the acts without averments showing that the acts were unlawfully done is not sufficient. THe purpose of a party in doing a particular thing is not material, if he had the right to do it.
Appellee Moore testified, over appellant’s objection, in his examination in chief, to the value of different items of property in question,, by reference to an invoice made by himself and his wife with a view of selling a half interest in the same to a third party, the prospective purchaser taking no part in the invoice. Upon cross-examination, appellant propounded to him the following questions: “I will ask this witness to state on your cross-examination, in reference to the value that you fixed on this type that you had on hands at the time that this building fell, what was the fair market value of that type that you had on hands at that time, if placed on the market for sale, without any reference to the list price ?” “Mow, then, do you know, without reference to the figures, that you testified from here — do you know what the fair market value, without any reference to any list price or any figures you made — the fair market value of all that type that you had on hands at that time ?” “Mow, then, will you tell this jury, without any reference to any inventory or price lists, if that engine was put on the *370market for sale, what would be the fair market value of that engine at the time that this building fell ?” “Then, it was a second-hand engine, wasn’t it?” “Now, then, Mr. Moore, without reference to the list price you spoke about in your answer on the list prices of second-hand engines, or the list price of first-class engines or new engines, what would you say the fair market value of that efigine was, if placed on the market for sale on the 19th day of last June?” “In making your estimate on yesterday of the values of this engine, from what source did you get the value, if any?” “Did you take it from figures or from an invoice ?” “It is listed at $550 ?” In response to the following question propounded to him on his cross-examination: “Now, then, you may tell the jury, if you know, what the fair market value of that press was at the time that this building fell, if placed on the market. Tell the jury what it was.” To each of the foregoing questions the court sustained appellees’ objection. The questions were proper upon cross-exarqination, and the court erred in excluding them.
Petition overruled.