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Frankel v. Michigan Mut. Life Ins. Co.

peace; and the transcript of the proceedings of the court below shows that said complaint, and the copies of said bonds filed therewith as exhibits, were filed by the justice of the peace with his transcript in the court below. Said complaint is copied in the transcript of the proceedings of the court below, and immediately following said complaint copies of the bonds which are the foundation of the complaint are copied into the transcript. The complaint de scribes said attachment bonds, and the action in which they were executed and filed, and makes them a part thereof by alleging as to each bond "a copy of which is filed herewith and made a part hereof." Under the authorities cited, this was all that was required to make the bonds a part of the complaint. It follows that the court erred in refusing to permit each of said bonds to be read in evidence.

Judgment reversed, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion.

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FRANKEL v. THE MICHIGAN MUTUAL LIFE

INSURANCE COMPANY. (No. 19,360. Filed February 5, 1902. Rehearing denied April 8,

1902. ] CONTRACTS.—Principal and Agent.--Forfeiture.—Where a contract be.

tween an insurance company and an agent provided that in case the contract of employment should be terminated by either party the agent should receive certain renewal commissions for the term of five years, and contained the further stipulation that upon any violation of its conditions, or upon his failure to remit the company all moneys collected by him the company should have the right to terminate the agreement, and in such case all the rights of the agent under the agreement should be forfeited and the company discharged from every liability to the agent, an answer, in an action by the agent for the renewal commissions, that before the termination of the agreement the agent failed to remit money belonging to the company, collected by him, and appropriated the same to his own use, and for such cause was discharged by the company, constitutes a defense to such action. pp. 306–309.

Frankel v. Michigan Mut. Life Ins. Co.

PLEADING.-E.chibits.-Reference. - Where a defense set up in an an

swer arose out of the instrument sued upon, a copy of which was filed with the complaint, the instrument was before the court, not only for the purposes of the complaint, but equally in aid of an answer, set-off, or counterclaim founded upon it, and it is sufficient in such cases to refer to the exhibit already on file with.

out making an additional copy. pp. 309, 310. SAME.-Set-Off.-An answer to a complaint in an action by an agent

against an insurance company for renewal commissions under a contract of employment pleading a set-off to such demand premi. ums collected by plaintiff and appropriated to his own use is not objectionable as failing to show that the set-off arose out of a debt, duty, or contract held by defendant at the time the suit was commenced, within the meaning of 9351 Burns 1901, where the answer averred that the plaintiff collected moneys under the agreement saed upon, which it was his duty to pay over to defendant, but which he wrongfully retained and appropriated to his own

use. p. 310. CONTRACTS. Breach. - Payment. Demand. -Where an agreement

between an insurance company and its agent provided that the agent should immediately pay over and remit all moneys collected by him, his failure to do so was a breach of his contract, and

authorized the company to sue at once without demand. p. 310. SAME.Release. Estoppel.—Where an agent of an insurance com

pany failed to remit to the company all moneys collected by him, and an examination of the accounts was made and a statement of the amount found to be due made, the company is not bound by such memorandum of settlement where the agent failed to report

all sums due from him at the time of settlement. pp. 310, 311. SAME.Payment.—Where in an action between an insurance com

pany and an agent it appeared that an accounting was had between the parties and a partial payment made by the agent and a memorandum statement made of the balance due, it was competent for the company to show that a supposed payment made to it by the agent by an attempted conveyance of his wife's real estate

had been set aside by the judgment of the court. p. 312. ACTION.--Consolidation of Causes.-Actions between an insurance com

pany and an agent involving substantially the same causes of action and the same defenses were properly consolidated, and the fact that the action of the company was also against the sureties on the agent's bond did not constitute an obstacle to the consoli. dation where the defenses set up by the sureties were not differ

ent in any respect from those of the principal. pp. 312, 313. TRIAL.-Special Finding.-In an action by an agent against an in

surance company to recover renewal commissions under a contract between the parties, an answer to an interrogatory, “Did the

VOL. 158-20

Frankel v. Michigan Mut. Life Ins. Co.

plaintiff forfeit his contract with the defendant?" "No,"-was

a mere conclusion, and not the finding of a fact. p. 313. APPEAL AND ERROR.Instructions.When Not in Record.Presump

tions.-A cause will not be reversed on alleged error in giving and refusing to give certain instructions where it does not appear that the record included all of the instructions given. pp. 313, 314. From Hendricks Circuit Court; T. J. Cofer, Judge.

Jacob Frankel brought suit against the Michigan Mutual Life Insurance Company for renewal commissions alleged to be due under a contract. Thereafter the insurance company brought suit against Frankel for premiums collected by him as agent and not accounted for. The causes were consolidated and the insurance company's action pleaded as a set-off and counterclaim to Frankel's action. From a judgment for the insurance company on its set-off, Frankel appeals. Affirmed.

M. E. Clodfelter, H. N. Fine, G. W. Brill and G. C. Harvey, for appellant.

E. G. Hogate, J. L. Clark, A. H. Wilkinson and J. W. Holtzman, for appellee

DOWLING, J.-In January, 1889, the appellant was employed by the appellee as its agent to manage its business in the State of Indiana. The contract of employment was in writing, and among its provisions were the following: The appellant was to procure applications for insurance; to collect when due, so far as practicable, when authorized so to do by the appellee, all premiums payable to the appellee; to remit all sums due to the appellee immediately upon collection; in case of his inability to collect premiums on policies and renewal receipts, appellant was to return the same to the appellee; and he was to be governed in all respects by the rules and regulations of the company and its officers. The appellee was to pay to the appellant commissions on first annual premiums on all business procured by him or his agents according to certain schedules of rates attached to said contract. It was also provided that the appellee should pay to the appellant a collection fee of

Frankel v. Michigan Mut. Life Ins. Co.

seven and one-half per cent. upon all second and subsequent years' premiums collected by him in cash, and, in case the contract of employment should be terminated by either party, that the appellant should receive the renewal commissions of seven and one-half per cent. before mentioned, for the term of five years, upon each policy. The contract contained the further stipulation that upon any violation of its conditions by the appellant, or upon his failure to remit to the appellee all moneys collected by him, as required by the agreement, or to make any and every report required, the appellee should have the right to terminate the agreement, and that in any such case all the rights of the appellant under the agreement should be forfeited, and the appellee discharged from every liability to him. The term for which the contract was to continue seems otherwise to have been indefinite. On March 23, 1893, a bond, with sureties, was executed by the appellant to the appellee, conditioned for the payment by the appellant to the appellee of all moneys then due or thereafter to become due from the appellant to the appellee on account of any and every kind of employment or service. Another bond of like character was executed by the appellant, with other sureties, March 25, 1893. The appellant remained in the service of the appellee for several years, and shortly before March 15, 1894, an examination of his proceedings and an accounting became necessary. It was discovered that the appellant had collected and had not paid over upwards of $8,000. An arrangement was entered into between the appellant and the appellee by which a portion of this sum was paid, and a further part was supposed to be secured to the appellee. There remained, however, a balance of $2,773.47, which the appellant neither paid nor secured. Thereupon the following agreement was executed: “It is hereby agreed between the Michigan Mutual Life Insurance Company of Detroit, Michigan, and Jacob Frankel, state agent of said company for the State of Indiana, that all of the accounts

Frankel v. Michigan Mut. Life Ins. Co.

of said Frankel have been carefully examined, and it is found by such examination that there is now due and unpaid the sum of $2,773.47 from said Frankel to said company on account of moneys collected by said Frankel for said company, for which he, the said Frankel, had not accounted, and which he has not paid over. The sum is the amount unaccounted for after giving the said Frankel all of the credits of every kind to which he is entitled up to this day. In witness whereof the said parties have hereunto set their hands this 15th day of March, 1894. Jacob Frankel. H. S. Frede, Secy. Mich. Mutual Life Ins. Co." The appellee retained the appellant in its employment until April, 1895,-a little more than one year after the accounting referred to in the foregoing instrument,—and then discharged him. This action was thereupon brought by the appellant against the appellee, in the superior court of Marion county, to recover damages for alleged breaches of the contract of employment by the appellee. These supposed breaches consisted of (1) the failure of the appellee to pay to the appellant the commissions of seven and one-half per cent. on second and subsequent years' premiums collected by appellant while acting as the agent of the appellee; and (2) the denial by the appellee of the claim of the appellant to such commissions for the term of five years after the termination of his agency. Shortly after the commence ment of the action by the appellant against the appellee, the latter brought suit against the former in the said superior court of Marion county. Pleadings were filed in each case, and on the application of the appellant the venue of each cause was changed to Hendricks county. On motion of the appellee, the two actions were consolidated. The issues were made up, and the case was tried by a jury, who returned a general verdict for the appellee, together with answers to certain questions of fact. The appellant moved for judgment in his favor upon the answers to the questions of fact, for a venire de novo, and for a new trial, all of

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