OPINION
REINHARD, J.
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 no 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 Henry Circuit 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 policy by said court in favor of
said defendant, by agreement of the parties, for the sum of
one hundred and fifty dollars ($ 150), which judgment remains
in full force and effect, unreversed and unsatisfied, in any
manner; that said court had full and ample jurisdiction of
the parties and subject-matter of said action; that at the
time of the agreement between the parties for the rendition
of said judgment nothing whatever was said or agreed upon
between the parties as to said note, nor was the said note in
any manner mentioned in the pleadings constituting the issues
in said cause; that at the time of the agreement of the
defendant to accept said sum of one hundred and fifty dollars
and a judgment therefor against the defendant, he believed it
was a full and final settlement of all matters between him
and the plaintiff growing out of said policy and contract of
insurance, and that he was to receive the said one hundred
and fifty dollars without any deductions whatever, or further
payments of premium in payment for his said loss.
Wherefore," etc.
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 having failed to do so, the company is not
barred from afterwards bringing its action upon the same. In
this contention we are convinced the counsel are supported by
the authorities. Axtel v. Chase, 83 Ind.
546; 2 Black Judg., section 767. A defendant in such an
action is not bound to set up in a cross-action even a
counter-claim, but may bring a separate suit upon the same
afterwards. If he takes this course, however,...
