Equitable Life Assur. Soc., etc., v. Stough-45 Ind. App. 411. John B. Elam, James W. Fesler and Harvey J. Elam, for appellant. M. M. Bachelder, for appellee. COMSTOCK, J.-Appellee sued appellant on an insurance policy issued on the life of William E. Stough, in which appellee, his mother, was named as beneficiary. Issues were formed on the one paragraph of complaint by general denial. Trial was had by jury, verdict returned in favor of appellee for $———————, and over appellant's motion for a new trial judgment was rendered thereon. The action of the court in overruling the motion for a new trial is the only error assigned. As grounds therefor it is claimed that the verdict is not sustained by sufficient evidence, is contrary to law, and that the court erred in giving and in refusing to give to the jury certain instructions. The following facts, as shown by the evidence, are uncontradicted. Louis B. Noble, a local agent for Elkhart county, Indiana, of the Equitable Life Assurance Society, working under the direction of William B. Paul, in May, 1904. sold a policy of life insurance to William E. Stough. The premium for said policy was $31.31, and was paid at the time of the delivery of the policy, on or about May 14, 1904, $6.31 in cash and a note given to and payable to said Noble for balance of $25, payable sixty days after date, May 10, 1904. Said policy was issued by said company and sent to William B. Paul, its general agent, and by Paul was sent to Noble and by Noble delivered to Stough. Paul was connected with the company from June, 1904, to the latter part of the year 1905. Noble wrote business for the company. His contract was with William B. Paul, and was in force May 12, 1904. Paul paid the company all that it was entitled to of the premium from said Stough on said policy. Stough made no other payment than the $6.31 on said policy. After the death of the insured, Paul received from the company $7 or $8. The company retained a medical fee of $5, Equitable Life Assur. Soc., etc., v. Stough-45 Ind. App. 411. and a term rate on the policy up to the time it was canceled. Noble kept the note during the sixty-day limit allowed for the return of the policy, and after several attempts to collect it told Stough that he had to return the policy before the sixty-day limit was out, which would be about the middle of July. Stough said that he could not make the payment, that he had been disappointed in some help that he had expected, and that he would have to give up the policy. It was agreed between Noble and Stough that the said sum of $6.31 should be kept by Noble as reimbursement for medical fees and other expenses. Stough gave the policy to Noble at least two or three days before the time was out for him to return it. Noble delivered the note to Stough the same day the policy was returned. When the policy was returned to Noble, he wrote across the face of the note, words to this effect: "This note is returned because the policy was not taken out.' On August 15, Stough became sick with smallpox, and died after an illness of five days. At the time of his death the note was in the possession of Stough, and across the face of it was written: "This note was given for life insurance which was returned, N. T. O. Therefore the note was returned." The letters "N. T. O." meant not taken out. In addition to the foregoing undisputed facts, there was evidence, not wholly without contradiction, that Paul paid the company $15.65 which he received from Noble about August 1, 1905; that he paid for this policy about July 19, 1904, and charged it to Noble's account, and he told Noble that this Stough policy must be paid for or returned; that afterwards, in August. 1904, he received the policy in a letter from Noble. Paul testified that he had mislaid the letter: that it was his opinion that the letter stated that Stough was dead or about to die, and the policy had better be canceled; that he forwarded the policy to William T. Tasker, cashier of appellant society for the State of Indiana, and received from the company $7 or $8. There is evidence that the Equitable Life Assur. Soc., etc., v. Stough-45 Ind. App. 411. policy was not received at the home office until after the death of the insured. Noble testified that he mailed the policy to Paul the day after he received it. The complaint alleges that at the time of the death of decedent the policy was in force and in his possession, and that at about that time the defendant, unlawfully, wrongfully and without the knowledge or consent of the decedent, took the policy from his possession and deprived him of the use thereof. There is no evidence in support of these allegations. The question is not whether the local agent had authority to cancel the policy. The insured had the right, under 1. the terms of the policy, to change the beneficiary. The beneficiary therefore had no vested right. Denver Life Ins. Co. v. Crane (1903), 19 Colo. App. 191, 73 Pac. 875; Milne v. Northwestern Life Assur. Co. (1898), 23 Misc. (N. Y.) 553, 52 N. Y. Supp. 766. The insured had complete control of the policy. A policy may be surrendered by mutual agreement so as to terminate the rights and obligations of the parties. Ohio Farmers Ins. Co. v. Hunter (1906), 38 Ind. App. 11; 2. Mutual Life Ins. Co. v. Phinney (1900), 178 U. S. 327, 20 Sup. Ct. 906, 44 L. Ed. 1088; Mutual Life Ins. Co. v. Sears (1900), 178 U. S. 345, 20 Sup. Ct. 912, 44 L. Ed. 1096; Mutual Life Ins. Co. v. Hill (1900), 178 U. S. 347, 20 Sup. Ct. 914, 44 L. Ed. 1097; Mutual Life Ins. Co. v. Allen (1900), 178 U. S. 351, 20 Sup. Ct. 913, 44 L. Ed. 1098; Mosser v. Knights Templars, etc., Co. (1898), 115 Mich. 672, 74 N. W. 230; Van Wert v. St. Paul Fire Ins. Co. (1896), 8 App. Div. 107, 40 N. Y. Supp. 463. The evidence shows, without contradiction, that Stough voluntarily rescinded his contract of insurance and surren dered his policy. This he had the right and was 3. competent to do. The policy of insurance and the premium note given therefor constituted the contract between the insurance company and the insured. They had Holtz v. Gaidry-45 Ind. App. 415. the same power to rescind it by mutual agreement as they had to make it. Akers v. Hile (1880), 94 Pa. St. 394, 39 Am. Rep. 792; German Ins. Co. v. Davis (1889), (Ark.), 12 S. W. 155. The fact, that the company at the home. 4. office at New York charged the general agent, under whom the policy was issued, a short rate premium for the time the policy was outstanding, without knowledge of all the facts, would not change the situation in any respect. It cannot successfully be contended that, after the note was surrendered and canceled, and the insured had delivered the policy to the agent from whom he obtained it, Stough could have been successfully sued upon the note. And, by 5. parity of reasoning, the representative of the insured would be estopped to deny that he intended to do just what he did, and that he dealt with the agent as one having full authority, and that he fully intended to surrender his policy. The verdict is not sustained by the evidence. Other alleged errors need not be considered. Judgment reversed, with instructions to sustain appellant's motion for a new trial. HOLTZ ET AL. v. GAIDRY. [No. 6,584. Filed April 1, 1909. Rehearing denied June 8, 1909. Transfer denied February 24, 1910.] 1. CONTRACTS.-Sales.-Acceptance.-Fraud.-A contract requiring the vendor to furnish to the purchaser machinery of a certain kind "to the acceptance of" such purchaser, ordinarily makes the decision of such purchaser final, except in case of fraud. p. 416. 2. APPEAL.-Parties.--Where the record is uncertain and the verdict and judgment were against one defendant alone, another defendant who was made a party to the case at his own request, will not be considered as a party to the appeal. p. 418. 3. APPEAL.-Affirmance.-Death of Party.-Where an appellant dies before the judgment appealed from is affirmed, it will be affirmed as of the date of submission. p. 419. From Warrick Circuit Court; Roscoe Kiper, Judge. Holtz v. Gaidry-45 Ind. App. 415. Action by J. Wilfred Gaidry against Ferdinand Holtz and another. From a judgment for plaintiff, defendants appeal. Affirmed. DeWitt Q. Chappell and Henry F. Fulling, for appellants. J. E. Williamson and Hatfields & Hemenway, for appellee. ROBY, J.-Action by appellee against appellant Holtz to recover money under a contract as follows: "Whereas, C. F. Breidenbach has sold and promised to deliver on a hull of a steamboat to be built for J. Wilfred Gaidry, when said hull is ready to receive the same, the following engines and machinery, to wit: The contract price for the machinery and boiler is $1,050, which sum of money, to wit, $1,050, has this day been deposited with F. Holtz, doing business as the Mechanics Foundry, in the city of Evansville, by J. Wilfred Gaidry. Now it is agreed that when the machinery, boiler, etc.. have been delivered in the condition as herein set out and to the acceptance of said Gaidry, then said sum of money is to become and be the absolute property of said F. Holtz, and until said Gaidry shall have received and accepted said machinery and boiler said sum of $1,050 is to be and remain the property of said Gaidry, and is to be returned to him, on demand, by said F. Holtz. C. F. Breidenbach, F. Holtz, Mechanics Foundry, By Charles H. Thuman, Superintendent. Dated at Evansville, Indiana, August 28, 1902.” Gaidry refused to accept the machinery because of defective cylinders, which the United States government inspector would not permit to be used, and demanded the return of the money from Holtz. The provision in the contract "to the acceptance of said. Gaidry" constituted Gaidry the judge of his own satisfac tion. His refusal to accept terminated the contract. 1. and until he "received and accepted," the money in Holtz's hands was Gaidry's money. Gray v. Central |