4 Ind. App. 566 | Ind. Ct. App. | 1892
The appellant brought this action in the court below against the appellee on a promissory note executed by the appellee to the appellant for the premium on an insurance policy. The appellee answered in one paragraph, averring “ that the note mentioned in plaintiff’s complaint was given in payment of the premium due on. a certain policy of insurance executed by the plaintiff to the defendant insuring the defendant against loss by death of a certain stallion called 'Lord Darnley,’ owned by the defendant, for the sum of five hundred dollars, and for ño other consideration whatever; that before the maturity of said note said horse died; that the defendant made to plaintiff due proof of the death of said horse and said loss to the plaintiff; that thereafter, and before the maturity of said note, the plaintiff^ by its general agent, S. W. Clawson, to wit, on the 11th day of November, 1889, cancelled said policy upon the alleged ground that the defendant had violated certain conditions of said policy, and returned to the defendant said note, and demanded of him the surrender of said policy; that the defendant refused to surrender the same, and thereupon instituted an action in the HenryCircuit Court of said State against the plaintiff upon said policy to recover $500, the amount thereof, to which action the .plaintiff filed his answer and issue was joined thereon between the parties and such proceedings were had thereon, that afterward, to wit, on the — day of-, 1890, the same being the —judicial day of the said Henry Circuit Court, a judgment was rendered therein upon said
It was averred in the complaint that the note was in the hands of the defendant, and that, therefore, an exact copy could not be filed. An order was asked for and obtained requiring the appellant to produce the note in court, which seems to have been done. A substantial copy of the note was also filed with the complaint.
The appellant demurred to the answer, the demurrer was overruled, and the appellant excepted. This ruling is claimed to be erroneous.
Taking the averments of the answer as true, which we must do, for the purpose of the demurrer, we must assume that, notwithstanding the appellant’s attempt to cancel the policy, both that instrument and the note remained in force.
It is insisted in the brief of the appellant’s counsel that the company, as defendant in the suit on the policy, was not compelled to set up its cross-demand on the note, and
As to a set-ofi’ which was not presented in the former action, it is well settled that a failure to plead it will not bar a subsequent action upon it. 1 Freeman Judg. (4th ed.), section 277 and authorities; Judah v. Brandon, 5 Blackf. 506; Rankin v. Harper, 4 Ind. 585 ; Ulrich v. Drischell, 88 Ind. 354. It is further true that no judgment will be a bar to a subsequent action, unless the matter sued upon in such action might have been litigated in the action upon which the judgment rests. ■ But the question as to what might properly have been litigated in the former action must be determined by the pleadings therein, and can not be proved by parol evidence. Gentry v. Purcell, 84 Ind. 83 ; Howe v. Lewis, 121 Ind. 110 ; 1 Freeman Judg. (4th ed.), section 271 and notes; 2 Black Judg., section 614, et seq.
Appellee’s counsel contend that the appellee could not have recovered anything in the suit upon the policy without having first paid the premium for the insurance policy. In this contention we can not wholly agree with the counsel. Whether the appellee could or could not have recovered on the policy without first paying or tendering the premium would depend, we take it, upon the contract between the parties. If the policy so provided, then there must be payment of the premium before payment of the loss. But as the pleadings do not show the
It will thus be seen that the note contains no stipulation whatever that it must be paid before the payment of any loss by the company. And as there is no averment anywhere that such a stipulation was contained in the contract of insurance, it must be presumed that none such existed, the burden being on the appellee to plead and prove a valid defence. But conceding that the company had the right to deduct the premium note from the amount of the loss, it by no means follows that it was compelled to do so, or that by a failure to make the deduction it waived any right to enforce the collection of the note in the future. The most that could be claimed for the appellee by the silence of the pleadings as to what the actual facts were with reference to the deduction of the premium, would be that it raises a presumption of such deduction, and even this can not be the case unless it be shown that the policy or insurance contract provides
The averments of the answer were no defence to the action on the note, and the demurrer should have been sustained.
Judgment reversed.