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of the parties named in the complaint, and in peal has not been properly perfected as a whose favor judgment was rendered against the term time appeal. Penn, etc., Plate Glass Co. appellant, are not properly designated in the assignment of errors, either in its title or body, V. Poling (1913) 52 Ind. App. 492, 100 N. E. we are compelled to hold that the assignment 83; Kyger v. Stallings (1913) 55 Ind. App. does not comply with rule 6, and therefore that 196, 103 N. E. 674; W. C. Hall Milling Co. v. the appeal must be dismissed." Hewes (1914) 57 Ind. App. 381, 105 N. E. 241; Coxe Bros. Co. v. Foley (1915) 58 Ind. App. 584, 107 N. E. 85; Michigan Mut. Life Ins. Co. v. Frankel (1898) 151 Ind. 534, 50 N. E. 304; Tuttle et al. v. Fowler et al. (1915) 183 Ind. 99, 107 N. E. 674.

In this case appellee was a party to the judgment in his representative capacity, and not as an individual. Upon the authority of the cases cited, supra, we hold that he is not properly described as such representative in the assignment of errors, and is therefore not before this court in the same capacity in which he recovered judgment. This is ground for dismissal.

Appellant cites the case of First National Bank v. Farmers', etc., Bank (1908) 171 Ind. 323, 86 N. E. 417, in support of his contention that the assignment of errors is sufficient. It will be observed, however, that the name of the appellant in question in that case is set out as "Charles R. Wheeler, trustee for the First National Bank of Peoria, Ill.," and therefore the question here presented is not the same as the one decided in that case.

Appellant cites the case of Atkinson et al. v. Williams (1898) 151 Ind. 431, 51 N. E. 721, but this authority does not meet the question. We recognize the rule, as there stated, that when judgment is rendered before the motion for a new trial for cause is filed, the final judgment within the meaning of the statute governing appeals is the judgment of the court overruling such motion for a new trial for cause, and we have given it full effect, in passing upon the motion in this case, to dismiss the appeal. The final judgment in this case, according to the rule just stated, was rendered at the December term, 1915. In order to have a term time appeal, it was necessary that the penalty and surety of the appeal bond be fixed and approved at that term, but no surety was named or approved at such term. This was an omission of an essential requirement, and the filing and approving of a bond after the close of such term, and within the time given, would not have the effect of curing such omission.

This appeal has been on the docket of this court for more than 90 days, to wit, since April 11, 1916, and no steps have been taken to give notice, as required by section 681, Burns 1914, in cases of vacation appeal. Appellee has not joined in error or otherwise entered a general appearance. The authorities are controlling, and determine the duty of the court under the facts shown in the record.

Motion sustained, and appeal dismissed.

[2] Appellee urges as a further reason for the dismissal of this appeal that appellant has not complied with the statute providing for term time appeals, and has failed to give notice as required in case of vacation appeals. The facts are as follows: Judgment was rendered and entered by the trial court against appellant on the 12th day of March, 1915, the same being the eleventh judicial day of the March term, 1915. On the same date appellant filed a motion for a new trial, which was subsequently overruled on the 20th day of January, 1916, the same being the twenty-eighth judicial day of the December term, 1915, at which time appellant prayed an appeal to this court, which was granted on condition that appellant would, on or before the second Monday of the March term, 1916, file its appeal bond with penalty in the sum of $1,500. On the 13th day of March, 1916, the same being the seventh judicial day of the March term, 1916, of the trial court, and within the time given by the court, appellant filed such bond, with penalty in said sum, and with sureties as in said bond named, which bond was on said date approved by the court. The transcript was filed in this court April 11, 1916, and the cause submitted on May 11, 1916. Where, as here, the entry of the judgment preceded the ruling on the motion for a new trial, the latter action of the court marked the beginning of the time limited for an appeal. It will be found that neither at the time of the ruling on the motion for a new trial, nor at any time within Under Burns' Ann. St. 1914, §§ 251-263, the term at which the action was had, did in the subject of the action, and be united in all who join as plaintiffs must have an interest the court approve the bond or name or ap- such interest, though their interest may not prove the sureties thereon. Appellant con- be equal and may be severable, provided all cedes that an effort has been made to perfect have some common interest in the subjectmatter of a suit; and this rule applies in cases this appeal as a term time appeal under pro- involving loss by fire, where the owner and the vision of section 679, Burns 1914. The ap-incumbrancer join in a suit on the policy where For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(65 Ind. App. 502) CONTINENTAL INS. CO. v. BAIR et al.* (No. 8983.)

(Appellate Court of Indiana. Jan. 5, 1917.) 1. APPEAL AND ERROR 1078(1) ASSIGNMENTS OF ERROR-WAIVER. Assignments of error are waived by appellant's failure to present any points or propo

sitions relating thereto.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4256; Dec. Dig. 1078(1).]

2. INSURANCE ~~624(5)

NECESSARY PAR

TIES-PLAINTIFFS-STATUTE.

*Rehearing denied, 116 N. E. 752. Transfer denied.

the total loss exceeds the amount of the in- | where, before the expiration of the ten days cumbrance.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 1568; Dec. Dig. 624(5).]

3. PLEADING 67 — REQUISITES-NEGATIVING DEFENSES.

Where the facts pleaded show a cause of action, and also a defense thereto, the complaint is insufficient unless it also contains other averments which avoid such defense.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 139; Dec. Dig. 67.]

4. EQUITY 57-MAXIMS-INDORSEMENT ON INSURANCE POLICY.

Where insured notified the insurer of a mortgage on the property and obtained its agreement to properly indorse the mortgagee's interest on the policy, as required thereby, and the insurer failed to comply with such agreement, equity would regard that as done which in good conscience ought to have been done. [Ed. Note.-For other cases, see Equity, Cent. Dig. 179; Dec. Dig. 57.]

5. INSURANCE →634(2) SUFFICIENCY.

PROOF OF Loss

Averments that a fire occurred on August 29th, and that due proof thereof was furnished the insurer October 7th, 39 days thereafter within the 60 days allowed by Acts 1911, p. 525, and the provisions of the policy, as against demurrer, sufficiently showed that the requisite proof of loss was made within the specified time.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1603-1605; Dec. Dig. 634(2).j 6. INSURANCE 115(5), 581 FIRE INSUR

ANCE-INSURABLE INTEREST.

The mortgagees of a house covered by a policy of fire insurance whose interest, though not in fact indorsed on the policy, was regarded by equity as having been so indorsed, had an insurable interest and a cause of action against the insurer after loss.

following the insurer's receipt of the objections to the proof of loss, and before service of the formal notice of rescission, the insurer denied all liability under the policy and so informed the insured, and also stated that its position could not be changed by any modification of the proofs or any affidavit or statement made in relation thereto, any further proofs or state ments from the insured, pursuant to Burns' Ann. St. 1914, § 4622g, were not required, as the law does not require the doing of a useless and unnecessary thing.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1391, 1392; Dec. Dig. 559 (1).j 11. INSURANCE 542(1) - PROOF OF LossSTATUTE.

Proof that a house was totally destroyed by fire on a certain date, that the loss amounted to $700, that insured owned the property in fee simple incumbered by mortgages, and stating the name of each mortgagee, and the amount of his claim, furnished a "detailed schedule of the claim," the character and extent of interests of other parties, and substantially complied with the terms of the policy requiring notice of loss, and with Burns' Ann. St. 1914, 4622g, relating to proof of loss.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1340, 1345; Dec. Dig. 542 (1).]

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Burns' Ann. St. 1914, § 4622g, requiring insured to furnish proof of loss within 60 days, and, if such preliminary proof is claimed to be defective and notice of the defects is given, to remedy them by amendment or by affidavit that the objections cannot be complied with, contemplates a bona fide claim that the proofs

are defective and a definite statement of the omitted facts in the notice of the defects in such proof, so that objections to the proofs [Ed. Note. For other cases, see Insurance, of loss because failing to furnish a detailed Cent. Dig. §§ 148, 1444-1447; Dec. Dig. schedule of claim, to state the interest of other 115(5), 581.]

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A provision in a fire insurance policy that if the property should be mortgaged the policy should be void relates to liens voluntarily placed on the property by the insured, and does not apply to judgments obtained against him or other liens upon the property created by law, such as a money judgment in a suit for divorce. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 831-835, 837, 839; Dec. Dig. 330(2).]

persons, to state knowledge and proof as to time and origin of the fire, and because incumbrances had been placed on the property without the insurer's knowledge and consent, were insufficient.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1357; Dec. Dig.

551.]

13. INSURANCE 551-PROOF OF LOSS-ADDITIONAL PROOF-AFFIDAVIT.

Under Burns' Ann. St. 1914, § 4622g, the insured's failure to submit an affidavit showing that the proof of loss could not be made more

8. TRIAL 359(2)—ANSWER TO INTERROGATO-specific, within ten days from his receipt of the RIES JUDGMENT.

In passing on a motion for judgment on the answer to the interrogatories, the court can only consider the general verdict, the questions and answers, and the issues formed by the pleadings.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 875, 877, 878; Dec. Dig. 359(2).] 9. TRIAL 359(1)-GENERAL VERDICT-PRESUMPTION.

Every reasonable presumption is indulged in favor of the general verdict, and the answers will not overcome it if it can be sustained by any facts provable under the issues.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 857-860, 875, 878; Dec. Dig. 359(1).] 10. INSURANCE 559(1)-FIRE INSURANCEPROOF OF Loss-NECESSITY.

Where the proofs of loss submitted could not be made more definite and specific, and

insurer's objection thereto, was the omission of nished, fairly construed, supplied all the inforonly a technical detail, where the proofs furmation called for, and were not subject to the objections.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1357; Dec. Dig. 551.] 14. INSURANCE

375(2)-FIRE INSURANCEINDORSEMENT OF

AUTHORITY OF AGENT MORTGAGE. An insurer's local agent's written authority to effect insurance, to countersign, issue, and renew policies, and to consent in writing to their assignment and transfer, authorized him to consent to a mortgage of the property insured and to indorse the insurer's consent thereto upon the policy, so that his agreement to do so was binding upon the insurer.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 962; Dec. Dig. 375(2).]

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An insurance agent's written authority is to be liberally and fairly construed, and a row and limited meaning is not to be given to it, unless the language employed clearly indicates that such was the intention of the parties.

[Ed. Note.-For other cases. see Insurance, Cent. Dig. 103; Dec. Dig. 78.] 17. INSURANCE x372 STIPULATIONS WAIVER.

The stipulation in a policy that none of its provisions can be waived by an agent except by consent of the company indorsed on the policy may itself be waived either by express agreement or by conduct.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 941; Dec. Dig. 372.] 18. INSURANCE 390- INCUMBRANCE-INDORSEMENT-WAIVER.

Where an insurer, through its authorized agent, obtained knowledge of a mortgage on the premises covered by its policy, and agreed on January 28, 1913, to indorse on the policy the mortgagee's interest, but the policy was not at any time so indorsed before the loss August 29, 1913, the insurer waived the condition requiring its consent to be indicated in writing upon the policy.

tended to contradict and weaken his testimony in chief.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. 410.] 23. TRIAL 295(1) — INSTRUCTIONS-CONSTRUCTION AS WHOLE.

Instructions should be considered together. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 703, 704, 713, 714, 717; Dec. Dig. 295 (1).]

Appeal from Circuit Court, Tipton County; James M. Purvis, Judge.

Continental Insurance Company. Judgment Suit by Lytel Bair and others against the for plaintiffs, and defendant appeals. Affirmed.

Burke G. Slaymaker, of Indianapolis, for appellant. Alfred Ellison, of Anderson, for appellees.

FELT, C. J. This is a suit by appellees, Lytel Bair and others, against appellant, Continental Insurance Company, to recover on a policy of fire insurance. The other appellees are alleged to hold liens on the property covered by the policy. From a judgment in appellee's favor for $600, appellant has appealed, and assigned as error: (1) The overruling of its demurrer to the complaint; (2) the sustaining of the separate demurrer to [Ed. Note. For other cases, see Insurance, the eighth and ninth paragraphs of appelCent. Dig. 88 1037, 1038; Dec. Dig. 390.] lant's answer to the complaint; (3) the over19. EVIDENCE 587- WEIGHT AND SUFFI- ruling of the demurrer of appellant to the CIENCY-CIRCUMSTANTIAL EVIDENCE. second paragraph of reply of appellees to each of the fourth, fifth, and sixth paragraphs of appellant's answer; (4) overruling the motion of appellant for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict; (5) overruling the motion for a new trial; and also (6) in arrest of judgment.

It is not essential that facts be established by direct and positive testimony, and it is sufficient on appeal if from the facts and circumstances proven the jury may reasonably have referred the ultimate and essential facts necessary to sustain the verdict.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2436; Dec. Dig. 587.]

20. INSURANCE 146(3) - FIRE INSURANCECONSTRUCTION OF POLICY.

Where a policy of fire insurance was written by the insurer's local agent without any formal or written application, and by special arrangement was kept in his office and was not seen by the insured until after the loss, the contract was not to be construed with that strictness obtaining where the parties have like opportunity to be advised as to its provisions.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 295; Dec. Dig. 146 (3).] 21. INSURANCE 146(3)-FIRE INSURANCE— FORFEITURE.

Where the premium has been paid and the risk attached, every presumption will be indulged in favor of the good faith of the parties and

to avoid a forfeiture.

[1] The second, third, and sixth assignments are waived by the failure of appellant to present any points or propositions relating thereto.

The complaint, in substance, alleges that on January 3, 1913, Lytel Bair owned a frame dwelling in Summittville, Ind., and on that day for a cash premium of $7.50 appellant insured the same for $600 for three years from that date. That appellee duly performed all the conditions of the policy of insurance so issued to him, and on the night of August 29, 1913, said building was totally destroyed by fire. That at the time Bair and was of the value of $700, and his of the fire the building was owned by said loss occasioned by the fire was $700. That within four days after the fire appellee Bair Where a witness has been impeached by the notified appellant of the fire, and within fiftestimony of another witness that he had made teen days from the date of the fire appellant statements out of court inconsistent with his sent an adjuster to Summittville, who investestimony in court, it is proper to corroborate such witness by proving that he had also made tigated and inspected the loss. That on Ocprevious statements in harmony with his tes- tober 7, 1913, appellee Lytel Bair furnished timony at the trial; but the rule does not per- appellant due proof of the loss of said buildmit such corroborating testimony to support the testimony of such witness in chief on the ing. That on January 27, 1913, said appellee ground that his evidence on cross-examination by a single mortgage incumbered real estate

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 295; Dec. Dig. 146(3).]

22. WITNESSES 410-IMPEACHMENT COBROBORATION.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on which said building was located to secure amount is due any of the plaintiffs on the indebtedness as follows: To George Bair, policy; that it does not appear that any of $140; Pearl McLead, $14.30; James L. Noble, the plaintiffs have furnished the proof of $50; Summittville Bank, $100; James F. loss required by the policy and by the laws Sparks, $22.07; Alfred Ellison, $20; William of the state; that it affirmatively appears Kittinger, $25; Warner & Sons, $18.75; Vin- that Lytel Bair has himself breached the son & Potts, $- -. The appellant was du- contract sued upon. ly notified of the giving of said mortgage immediately after its execution and assented thereto, and then agreed with appellee Lytel Bair to cause said policy to be made payable to said mortgagees as their interests might appear. That appellant failed to make the necessary indorsement on the policy. That the appellees other than Lytel Bair join in the action that their interest in said policy may be protected by the court. That each has an interest therein to the amount of the respective claims above set out. That there is due on said policy the sum of $600, and no part of same has been paid by appellant. Prayer for judgment for $700.

The policy was made a part of the complaint by exhibit, and, among other terms, provided that:

[2] Under our Code, all who join as plaintiffs must have an interest in the subject of the action and be united in such interest; but their interests need not be equal, and may be severable, provided all have some common interest in the subject-matter of the suit and each is interested in seeing that all who join as plaintiffs obtain relief in respect to such subject-matter.

This rule has been specifically applied in cases involving loss by fire where the owner of the property insured and the holder of incumbrance thereon joined in a suit upon the policy against the insurance company, it appearing that the total loss exceeded the amount of the incumbrance. Sections 251263, Burns 1914; Home Ins. Co. v. Gilman, 112 Ind. 7-9, 13 N. E. 118; Franklin Ins. Co. v. Wolff, 23 Ind. App. 549-551, 54 N. E. 772; Troxel v. Thomas, 155 Ind. 519-522, 58 N. E. 725; Judy v. Jester, 53 Ind. App. 7485, 100 N. E. 15.

If the property "be or become mortgaged or incumbered, or if the interest of the assured be other than unconditional or sole ownership, or if the policy be assigned, or if the risk be increased by any means within the knowledge of the assured, then in each and every one of It is contended by appellant that the comthe above cases this entire policy shall be null plaint shows upon its face a breach of the and void unless otherwise provided by agree-insurance contract by the execution of the

ment indorsed herein."

"No officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be subject to agreement indorsed hereon or added hereto and as to such provision and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provision or condition unless such waiver, if any, shall be written upon or attached here

to."

mortgage by appellee Lytel Bair to his coappellees, and that the averments which show a request to have the policy made payable to the mortgagees as their interest may appear, and the failure of appellant to comply with such request, fall short of showing any right of action in appellees; that, if there is any liability, before a recovery can be had there must be a reformation of the contract to make the policy payable to the mortgagees as their interests may appear; that the terms of the policy require the interest of the mortgagees to be shown upon the policy itself.

[3] Where the facts pleaded show a cause of action and also a defense thereto, the complaint is insufficient unless it also contain other averments which avoid such defense. Mallow v. Eastes, 179 Ind. 267, 270, 100 N. E. 836; Johnson v. Harrison, 177 Ind. 240-248, 97 N. E. 930, 39 L. R. A. (N. S.) 1207.

The policy further provided that in case of loss the assured should within 15 days give notice in writing to the company, and within 60 days after loss should render a statement to the company, signed and sworn to by the assured, "stating the interest of the assured and all others in the property, the cash value of each item and the amount of loss thereon, all other insurance, whether valid or not, covering any part of said property, and shall furnish an itemized statement of loss and damage to any building described in the policy. The policy further stipulated that to secure mortgages, if desired, the policy should be made payable on its face to such mortgagee, as follows: "Loss, if any, payable to John Doe, mort-avoided by the averments which show notice gagee."

The memoranda accompanying the demurrer states that the complaint does not show that the plaintiffs other than Lytel Bair have any interest in the insurance contract and that a joint action cannot be maintained; that none of the plaintiffs are shown to have an insurable interest in the property covered by the policy; that it is not shown that any

The averments which show the execution of the mortgage and the failure to have the interest of the mortgagees shown upon the policy defeat any recovery thereon, unless

to appellant of the execution of the mortgage, its assent and its agreement to have the policy made payable to the mortgagees as their interests appear, without actually so indorsing the policy.

[4] The averments are sufficient to show notice to appellant of the execution of the mortgage and an agreement with appellee Lytel Bair to properly indorse the interests

of the mortgagees upon the policy, and a fail- | him to effectuate the transfer, and being in all ure to comply with such agreement.

Under our Code (Burns' Ann. St. 1914, 8 249) we have but "one form of action for the enforcement or protection of private rights and the redress of private wrongs." Equitable principles may be invoked to relieve against a wrong where the facts are sufficient to warrant the application of such principles. The averments of the complaint show that appellee Bair did everything necessary on his part to have the policy made payable to the mortgagees as their interests should appear, and that appellant agreed to so indorse the policy and failed to carry out its agreement. The failure to have the interests of the mortgagees duly indorsed on the policy was, under the averments, due to the fault of appellant. In such situation, the principle may be invoked that equity regards that as done which in good conscience ought to have been done. Sourwine v. Supreme Lodge K. of P., 12 Ind. App. 447-451, 40 N. E. 646, 54 Am. St. Rep. 532; Modern Bro. of America v. Matkovitch, 56 Ind. App. 8-15, 104 N. E. 795, and cases cited: Isgrigg v. Schooley, 125 Ind. 94-99, 25 N. E. 151; Kentucky Mutual Ins. Co. v. Jenks, 5 Ind. 96104; Stewart v. Gwynn, 41 Ind. App. 320325, 82 N. E. 1000, 83 N. E. 753; Randall v. White, 84 Ind. 509-514; German-American Fire Ins. Co. v. Sanders, 17 Ind. App. 134138, 46 N. E. 535; Pomeroy's Equity (3d Ed.) §§ 106, 109, 111, 364, 365.

In Sourwine v. Supreme Lodge K. of P., supra, this court considered a case in which a member of the endowment rank of the K. of P. lodge complied with all of the conditions under which he was entitled to transfer to the fourth class, which paid a larger indemnity than the class from which he sought to transfer. He took this action in March, 1889, and died on May 5, 1892, without having obtained the transfer. His beneficiaries brought suit to recover on the ground that the insured was equitably a member of the fourth class, but the trial court sustained a demurrer to the complaint on the theory that he was not actually a member of such class at the time of his death. The court by Gavin, J., said:

"Clearly, Croasdale possessed all the necessary qualifications, complied strictly with the requirements of appellee's constitution, and was in fact entitled to be, and under the allegations of the pleadings ought to have been, transferred. Appellee's position is that nevertheless he was not transferred in fact, and could not be without the approval of the medical examiner in chief, and for this reason his beneficiaries cannot recover. It is further contended that he had, by not asserting his legal right to the transfer and not tendering the dues, acquiesced and abandoned his right to the transfer.

"The constitution and by-laws of such an organization are elements of the contract of in

surance.

*

*

"Under the averments, the action of the medical examiner in chief, in rejecting the application solely by reason of Croasdale's age, was in direct violation of the constitution. * * * Having done everything that was to be done by

things entitled to it, it did not rest in the disHere is a manifest wrong. Yet it is asserted cretion of the examiner to refuse him. that although there was a wrong there is now no remedy. To so hold would be, to use a favorite phrase of Judge Elliott's, a reproach to the law. The arm of the law has not been so shortened as to leave the appellants remediless. If the application of the stricter rules of law, as formerly administered, do not furnish principles of equity are ample for the purpose. the remedy, the more expansive and beneficent

"An eminent law-writer speaks thus: 'Equitable remedies, on the other hand, are distinguished by their flexibility, their unlimited variety, their adaptability to circumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application; the court of equity has the power of dethe changing circumstances of every case and vising its remedy and shaping it so as to fit the complex relations of all parties.' 1 Pom. Eq. § 109. Again he says, at section 111: 'It has, therefore, never placed any limit to the remedies which it can grant; either with re spect to their substance, their form, or their extent; but has always preserved the elements of flexibility and expansiveness, so that new order to meet the requirements of every case, ones may be invented or old ones modified, in and to satisfy the needs of a progressive social condition, in which new primary rights and duties are constantly arising, and new kinds of wrongs are constantly committed.' "So equity will grant relief here, although Croasdale never in his lifetime compelled the transfer, by mandate, as he might have done. We do not think it lies in appellee's mouth to complain that some hardship may be imposed on it by reason of his failure to insist on his rights in a court of law before his death. For whatever hardship may arise therefrom, appellee, and not he, is responsible. Our conclusion, therefore, is that the trial court erred in sustaining the demurrer to the complaint."

In Modern Brotherhood of America v. Matkovitch, 56 Ind. App. 8, 104 N. E. 795, this court held that there could be a recovery by an intended beneficiary where there had been an ineffectual effort to have such person named as the beneficiary in the certificate and such change has been prevented by the wrong of the beneficiary named in the certificate.

Our Supreme Court, in Isgrigg v. Schooley, supra, made a similar holding, and on page 99 of 125 Ind., on page 152 of 25 N. E., said: change; he did all that was within his power to do in compliance with the by-laws governing such change; the appellee, the beneficiary named in the original certificate, prevented him from a formal compliance in the delivery of the certificate, and equity will regard that as done, since he had the right to its possession, and the right to have delivered it, but could not do so by reason of the acts of the appellee, and equity requires no impossibilities."

"The assured had the right to make the

We therefore conclude that the averments are sufficient to avoid the defense above indicated and to warrant the maintenance of the suit by appellees.

[5] The averments show that the fire occurred on August 29th, and that due proof thereof was furnished appellant on October 7th, or 39 days after the fire. Both the statute (Acts 1911, p. 525) and the provisions of the policy require proof of loss to be made

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