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Frankel v. Michigan Mut. Life Ins. Co.

which motions were overruled. Judgment was rendered against the appellant for costs in the action brought by him, and against the appellee for costs in the suit brought by it.

The errors assigned and discussed by counsel for appellant present for review the rulings of the court on demurrers to the pleadings and its decisions on the motions to consolidate the two actions, to render judgment for appellant notwithstanding the verdict, and for a new trial.

The second paragraph of the answer of the insurance company was directed to so much of the complaint as sought the recovery

of any sum from the company on account of the seven and one-half per cent. commissions on second and subsequent years' renewals, after the termination of the employment. It alleged, in substance, that, by the terms of the agreement sued upon, it was expressly provided, that, if the appellant should fail to remit to the company money collected by him belonging to the company, then all rights of the appellant under the agreement should be forfeited to the company, and the latter discharged from all liability to said appellant; that, before the termination of the employment, the appellant, as such agent, had collected more than $8,000 belonging to the company; that he concealed this fact from the company; that he failed to remit the sums so collected, but appropriated the same to his own use; and that for this cause he was discharged by the company. No defect in this answer is pointed out, and we are unable to perceive any. If the appellant had himself violated the contract without legal excuse, he could not maintain an action upon it. This paragraph of answer charges that he had so violated it. Board, etc., v. Hill, 115 Ind. 316, 327; Skehan v. Rummel, 124 Ind. 347.

The same facts, substantially, are pleaded in the third paragraph of the answer by way of set-off. The objection that this answer is bad, because it does not set out the agreement of employment, or make a copy of it an exhibit, cannot prevail. A copy of the agreement was filed with the

Frankel v. Michigan Mut. Life Ins. Co.

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complaint. It is referred to in the answer, and its execution is admitted. The defense set up arose out of the instrument sued upon, a copy of which was already before the court, not only for the purposes of the complaint, but equally in aid of any answer, set-off, or counterclaim founded

upon

it. It is sufficient in such cases to refer to the exhibit already on file. Additional copies of the same instrument, filed with the several paragraphs of the answer, would have served no useful purpose, but would have needlessly encumbered the record. Pattison v. Vaughn, 40 Ind. 253; Sidener v. Davis, 69 Ind. 336; Crowder v. Reed, 80 Ind. 1, 4; Cookerly v. Duncan, 87 Ind. 332; Gardner v. Fisher, 87 Ind. 369; Anderson v. Wilson, 100 Ind. 402; Grubbs v. Morris, 103 Ind. 166; Wadkins v. Hill, 106 Ind. 543.

Neither is there any force in the suggestion that the answer does not show that the set-off claimed arose out of a debt, duty, or contract held by the appellee at the time the suit was commenced, and that the same matured at or before the time it was offered as a set-off. $351 Burns 1901. The answer expressly avers that the appellant had collected moneys, under the agreement sued upon, which it was his duty to pay over and remit, but which he wrongfully retained, and appropriated, to the amount of $10,000, "for which sum said plaintiff is now indebted to this defendant." The agreement states that the agent shall immediately remit all moneys collected by him for the company. The answer shows that the set-off arose from a duty imposed by a contract; that it was held by the appellee at the time the suit was commenced; and that the claim had matured before the time it was offered as a set-off. The demurrer to the third paragraph of the answer was therefore properly overruled.

The fourth paragraph of answer goes to so much of the complaint only as charges the appellee with an indebtedness to the appellant accruing before March 15, 1894,—the date

Frankel v. Michigan Mut. Life Ins. Co.

of the accounting and settlement. The facts stated did not create an estoppel against the appellant, but they did show that on that day an adjustment of the account of the appellant with the appellee took place, and that, by the admission and agreement of the appellant, he had received credit for all sums due him from the company to that date, leaving due from him to the company a balance of $2,773.47. The answer was rather in the nature of a plea of payment than of a defense by estoppel, and, if such was the fact, the appellant had the right to plead and prove that by mistake or oversight items of indebtedness which should have been included in his claim against the appellee were omitted. The court did not err in overruling the demurrer to this paragraph.

The fifth paragraph of the answer, which was a set-off, is objected to for the same reasons urged against the third, and also upon the grounds that no demand for the moneys alleged to have been held by the appellant was averred, and that the appellee cannot dispute the correctness of the amount found to be due upon the accounting of March 15, 1894, while retaining any of the money paid to it under that settlement. No demand before suit was necessary. By the terms of the agreement, it was made the duty of the agent to pay over and remit all moneys collected by him immediately after collecting them. His failure to do so was a breach of his contract, and authorized the company to sue at once. Field v. Brown, 146 Ind. 293; Cree v. Sherfy, 138 Ind. 354; Richards v. Reeves, 149 Ind. 427.

It appears from the answer that the appellant did not faithfully account for the moneys collected by him, and that a much larger sum was in fact in his hands, on March 15, 1894, than that reported by him. The memorandum of settlement made on that day did not operate as a release of the appellant from his obligation, as agent, to pay over all moneys in his hands belonging to the appellee, or give him any title to the moneys wrongfully retained by him. Not

Frankel v. Michigan Mut. Life Ins. Co.

withstanding the accounting and settlement, the appellee had the right to recover from the appellant not only the moneys he then admitted to be due, but all which he had failed to report at the time of the settlement; and it could not be required to return to him that portion of the amount due to it which the appellant paid at the time the pretended accounting was made.

The answer further stated that the appellee, at the time said supposed accounting took place, received from the appellant and his wife a conveyance of certain real estate in part payment of the amount admitted to be due from the appellant to the appellee, but that afterwards appellant's wife recovered a judgment against the appellee setting aside said conveyance on the ground that it was intended as a mortgage to secure a debt due from her husband; that the real estate was her separate property, and that said conveyance was void except as to a preëxisting lien of $3,000, which had been paid out of the proceeds of a mortgage executed by the appellant and his wife to a building and loan association, and which mortgage debt had been assumed by the appellee in the said accounting and settlement. It was competent for the appellee to show that a supposed payment made to it by the appellant had been set aside by the judgment of a court, and thereby rendered unavailing, and to charge the appellant with the amount due to the company at the time the ineffectual payment was made. In our opinion, the fifth paragraph of the answer was sufficient to withstand a demurrer.

The ruling of the court upon the appellant's demurrer to the first paragraph of the reply of the appellee to the answer of the appellant to the cross-complaint of appellee, if erroneous, was harmless, for the reason that the appellee was defeated upon its cross-complaint. The judgment upon this branch of the case was that the appellee take nothing, and that the appellant recover his costs.

The two actions between the appellant and the appellee

Frankel v. Michigan Mut. Life Ins. Co.

pending at the same time in the Hendricks Circuit Court were properly consolidated. They involved substantially the same causes of action and the same defenses, and there was no reason why all the issues should not be tried in a single suit. The circumstance that the action of the insurance company was against the sureties on Frankel's bonds, as well as against him, did not constitute an obstacle to such consolidation. The controversy was between the appellant and the appellee, and the defenses set up by the sureties do not appear to have differed in any respect from those of their principal.

Nothing contained in the answers of the jury to the questions of fact submitted to them authorized a judgment in favor of the appellant. The answers did not cover the issues, and many of them related to the evidence, merely, and not to the ultimate facts of the case. The answer to the question, "Did the plaintiff forfeit his contract with the defendant?" "No," was a mere conclusion, and not the finding of a fact.

The motion for a venire de novo rests upon the alleged uncertainty of the verdict. The form of the verdict was “We, the jury, find for the defendant." Throughout the proceedings the appellant had been described as the plaintiff, and the appellee as the defendant. There was no motion that the jury be required to make their verdict more certain, and indeed there seems to have been no occasion for any change in it. The appellee was the only party who could have objected to it. Nothing was said in the verdict concerning the cross-complaint of the company, but this did not harm the appellant.

The last question to be determined is whether the court erred in overruling appellant's motion for a new trial. The evidence is not in the record. The sole ground upon which the claim for a new trial is placed is that the court erred in giving and in refusing to give certain instructions. But an examination of the record discloses that, while cer

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