against Thomas H. Shearer and another to enforce an assessment for municipal improvement. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

A. M. Richcreek, for appellant. B. F. Watts, for appellees.

COMSTOCK, J. Appellant instituted this action to enforce a lien on lot No. 208 of Fletcher's Second addition to the town of Brightwood for $2.50 and $25 attorney's fee for the construction of a sewer in said town, under sections 4273-4275, Burns' Rev. St. 1894. The complaint, after reciting the preliminary steps taken by the board of trustees of said town required to be taken by the statute, avers that: "On the 3d day of July, 1895, said board of trustees made and adopted a final estimate of the total cost of said improvement, the amount to be paid by the property owners bordering thereon, being the sum of $ —, and made a complete assessment roll for the cost of the same, a copy of which is filed herewith as 'Exhibit A,' and made a part of this complaint. Assessing each lot benefited by said sewer its pro rata share of said cost, the said lot above described, having a frontage thereon, as above stated, was assessed in the sum of two 50/100 dollars ($2.50); said sum to be paid by the owners of said lots, respectively, to said contractor. The said assessment roll was duly approved by said board on the 2d day of July, 1895, and delivered to the clerk of said town, and duly recorded by him, and the original roll was then delivered to the said contractor for the purpose of enabling him to collect the various assessments made to pay him for his work." It avers also that the contract for the construction of the sewer was awarded to C. M. Kirkpatrick, who performed the work in compliance with the contract, and who, before the bringing of this suit, sold and assigned in writing the assessment in suit to the appellant. Appellees answered in four paragraphs. The first was a general denial. A demurrer was sustained to the second. The third, under oath, denied that there was any record of any proceeding of the board of trustees of the town of Brightwood for the construction of the sewer named in the complaint, which included defendant's property; and that the same was not included in any contract made with C. M. Kirkpatrick or said board of trustees. The fourth paragraph alleges that said lot No. 208 does not abut on and has no frontage on said sewer, and was never benefited by the same; that the pretended assessment of defendant's property for the cost of the construction of said sewer was placed thereon since the same was passed upon by the board of trustees, without the knowledge or consent of said board. Appellant replied to these paragraphs by general denial. No question is raised upon the pleadings, and no further statement of their

averments seems necessary. A trial by the court resulted in a judgment in favor of appellee for costs. The errors assigned are: (1) That the court erred in overruling appellant's motion for a new trial; (2) that the court erred in entering judgment against appellant. The last specification presents no question for review. The motion for a new trial contains three reasons: (1) The decision of the court is not sustained by sufficient evidence, but is contrary to the evidence. (2) The decision of the court is contrary to the law. (3) The court erred in admitting evidence as to the benefit which the property in controversy received by the construction of the said sewer.

The examination of the record shows that the assessment roll made a part of the complaint was never recorded. The statute (section 4294, Burns' Rev. St. 1894) contemplates that such assessment shall be recorded in the proper record of the corporation, and that, when an assessment or an install. ment thereof is paid, it shall be entered upon that record. The assessment is the foundation of this action. Lewis v. Albertson (Ind. App.) 53 N. E. 1072. A proposed assessment could not become a lien until approved by the board of trustees. The original assessment roll prepared by the appraisers, which was introduced in evidence, has nothing upon it to indicate that it was approved,-no record evidence. No minutes of the town board showing the approval of the assessment was introduced. There was no evidence of records through which corporations speak. It was claimed by counsel for appellant that the book containing such record could not be found. It was sought to show the proceedings of this municipal body by the parol testimony of the officers whose duty it was to make a record of the same. There was evidence fairly tending to prove that the assessment was not in fact approv ed by the board. This is sufficient to uphold the judgment of the trial court. The third reason for a new trial is too general to present any question. Judgment affirmed.

(26 Ind. App. 122) HANOVER FIRE INS. CO. v. JOHNSON.1 (Appellate Court of Indiana. May 8, 1900.) INSURANCE-NOTICE OF LOSS-PROOF OF LOSS -CONDITIONS PRECEDENT-PLEADING - ALLEGATIONS — PROOF INCONSISTENCY-EFFECT.

1. Under rule 21 of the appellate court (27 N. E. vi.), requiring the appeilee to file a brief within 90 days after the submission of a cause, where the appellee did not file his brief until more than a year after the cause was submitted his suggestion that the assignment of errors was not sufficient will not be considered, where such assignments were not so defective as to be regarded insufficient by the court of its own motion.

2. Conditions in an insurance policy that, if a fire occur, the insured shall give immediate notice of any loss thereof in writing, to the insurance company, and within 60 days render to the com

1 Rehearing denied.

pany proof of loss, are conditions precedent to the right of recovery.

3. Under Burns' Rev. St. 1894, § 373, providing that, in pleading the performance of a condition precedent in a contract, it shall be sufficient to allege generally that the party performed all the conditions on his part, a general allegation in an action on a policy that the insured had duly kept and performed all the conditions imposed on her to be kept by said policy was a sufficient averment that notice of loss and proof of loss had been given as required by the policy, since they are conditions precedent.

4. Where a policy required notice of loss to be given within 60 days after it occurred, a complaint which contained a general allegation that the insured had duly kept and performed all the conditions required to be kept by the policy, and the particular allegation that immediately after the loss, which occurred January 24, 1897, the insured notified the company of the destruction of the house by fire on the day of January, 1897, was not insufficient on the ground that the specific allegation showed that the general allegation was not true.

5. Where plaintiff sought to recover on a fire policy as assignee, and alleged performance of the conditions precedent by the assignor, but the jury, in answer to special interrogatories, found that such conditions had not been performed by the assignor, but found facts which would warrant a recovery by the plaintiff as subrogated to the rights of a mortgagee, judgment for the plaintiff was erroneous, since he cannot sue on one theory, and recover on another.

Appeal from circuit court, Delaware county; George H. Koons, Judge.

Action by Abbott L. Johnson against the Hanover Fire Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

somewhat lacking in proper formality, but its meaning cannot be mistaken, and it cannot be regarded as so defective that upon our own motion it would be treated as insufficient. It is therefore not necessary to set out the assignment, or to treat the matter as a question properly raised for decision. A motion filed by the appellant to amend the assignment and make it more definite in form is insufficient, because of failure to show any reason for neglect to make the correction before submission, but we will treat the proposed amendment as unnecessary.

The action was based upon a policy of fire insurance issued by the appellant, the Hanover Fire Insurance Company, of the city of New York, to Annie Wiley, owner of the insured property, and by her assigned to the appellee after the destruction of the property by fire. The complaint was in two paragraphs, but before trial the action was dismissed as to the first paragraph. A demurrer to the second paragraph for want of sufficient facts was overruled. It is claimed in argument that this ruling was erroneous, "for the reason that there is no averment in the complaint of the performance of conditions subsequent, as set out in the policy, by the holder of the policy, and no averment of denial of liability by the defendant company to the holder of the policy and owner of the policy at the time of the fire." And reference is made by counsel to a provision of the policy that, "if fire occur, the insured shall give immediate notice of any loss there

BLACK, J. Counsel for the appellee in their brief have suggested that the assignment of errors is insufficient. The appeal was taken in term, and within the required time after the filing of the appeal bond the transcript was filed in the office of the clerk of this court, on the 29th of August, 1898. The cause was submitted under the rule September 28, 1898, and on the 5th of November, 1898, the appellant's brief was filed. By rule 21 of this court (27 N. E. vi.), the appellee is required to file a brief upon the assignment of errors made by the appellant within 90 days after the submission of the cause. The appellee failed to comply with this rule, and the clerk on the 10th of August, 1899, pursuant to rule 32 (27 N. E. vi.), gave notice to the appellee to enforce the return of the papers. On the 2d of October, 1899, more than a year after the submission, the appellee filed his brief, in which he criticises the assignment of errors. Manifestly the appellee, by delay, forfeited all right to consideration of such a matter on his behalf; and unless we find the assignment so defective that, without any suggestion on the part of the appellee, it should be deemed by us so wanting in substance as not to present any question, we must treat it as a sufficient assignment. We find the assignment

and that within 60 days after the fire, unless the time should be extended in writing by the company, the insured should render to the company proof of loss, etc. The destruction of the building by fire was alleged to have occurred on the 24th of January, 1897. In the second paragraph of complaint it was shown that the insured "duly kept and performed all the conditions and requirements imposed upon her to be kept and performed by said policy." There were also averments that, "immediately after the destruction of the building, the insured and the appellee notified the appellant of the destruction of said dwelling house by fire and of said loss, to wit, on the day of January, 1897; that thereupon, immediately after said notice of said loss, said defendant, the Hanover Insurance Company, refused to pay the sum so secured by said policy, and the loss sustained by said Wiley by reason of the destruction of said building by fire, or any part or portion thereof, and immediately after said notice of said loss said insurance company denied any and all liability by reason of said loss and destruction of said property by fire, and on account of and by virtue of its said policy." Our Civil Code provides that, in pleading the performance of a condition precedent in a contract, it shall be sufficient to allege generally that the party performed all the conditions on his part, and that, if the

allegation be denied, the facts showing a performance must be proved on the trial. Section 370, Horner's Rev. St. 1897 (section 373, Burns' Rev. St. 1894). The provisions for notice of loss and for proof of loss are conditions relating to matters following the loss insured against, which operate upon the contract of insurance only subsequent to the loss, but they are usually called conditions precedent to the right of recovery, and are within the meaning of the provisions of the Code relating to the pleading of performance of conditions precedent. Under such a policy as that before us, notice in writing within a reasonable time after the loss by fire, unless waived by the insurance company, was a condition precedent to the right to recover for the loss. Germania Fire Ins. Co. v. Columbia Encaustic Tile Co., 11 Ind. App. 385, 39 N. E. 304; Insurance Co. v. Brim, 111 Ind. 281, 12 N. E. 315; Pickel v. Insurance Co., 119 Ind. 291, 21 N. E. 898. The furnishing of proof of loss as required by the policy is a condition precedent to the plaintiff's right of recovery. Insurance Co. v. Copehart, 108 Ind. 270, 8 N. E. 285. It was incumbent upon the plaintiff to show, in pleading and in evidence, that all conditions precedent to the right to recover had been performed, or to show a waiver, or other sufficient excuse for their nonperformance. Insurance Co. v. Deckard, 3 Ind. App. 361, 28 N. E. 868; Baker v. Insurance Co., 124 Ind. 490, 24 N. E. 1041. The rule of pleading, that specific averments shall control general ones, applies only where there is a necessary conflict between them. Insurance Co. v. Deckard, 3 Ind. App. 361, 365, 28 N. E. 868. Where the specific allegations of the complaint show that the general allegation of performance on the part of the plaintiff is not true, such inconsistency renders the complaint insufficient. Baker v. Insurance Co., 124 Ind. 490, 24 N. E. 1041. The complaint, as above indicated, contained a general averment sufficient under the provision of the statute above mentioned, and allegations of particular facts constituting performance on the part of the insured were not needed. Insurance Co. v. Sweetser, 116 Ind. 370, 19 N. E. 159. The complaint, therefore, was not insufficient, as claimed by the appellant, unless the allegations of particular facts are necessarily inconsistent with the general averment, and we think the particular averments have not such effect. The court therefore did not err in its ruling upon the demurrer. Insurance Co. v. Kittles, 81 Ind. 96; Underwriters v. Durland, 123 Ind. 544, 24 N. E. 221, 7 L. R. A. 399; Insurance Co. v. Leonard, 80 Ind. 272; Insurance Co. v. Pickel, 119 Ind. 155, 21 N. E. 546; Insurance Co. v. Deckard, 3 Ind. App. 361, 28 N. E. 868.

It is alleged in the complaint that Annie Wiley, the insured, after the fire and before the bringing of this action, assigned and transferred to the appellee "her interest on account of said loss and destruction by fire

of said property, and all her interest in said policy, and her right of recovery thereunder, by indorsing in writing on the back of said policy the following assignment, to wit: 'For value received, I hereby assign, transfer, and set over to Abbott L. Johnson the within policy, and all my right, title, and interest in and to the same, and hereby assign, transfer, and set over to him all my claims, interest, rights of action, and demands of every kind whatsoever against the Hanover Fire Insurance Company under and by virtue of said policy, and the loss and destruction by are of the property covered by the within policy; and I sell, assign, and transfer to said Johnson any and all rights, demands, debts, claims, and causes of action that I have and hold against said insurance company. Annie Wiley. January 15th, 189-.'" The policy filed with the complaint as an exhibit contained a "union mortgage clause," with a provision as follows: "Loss, if any, payable to the Wayne National Building and Loan Association of Indiana (home office, Cambridge City, Indiana), mortgagee or trustee, as hereinafter provided; it being hereby understood and agreed that this insurance, as to the interest of the mortgagee or trustee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy. * It is also agreed that whenever this company shall pay the mortgagee or trustee any sum for loss under this policy, and shall claim that as to the mortgagor or owner no liability therefor existed, it shall at once, and to the extent of such payment, be legally subrogated to all rights of the party to whom such payments shall be made, under any and all securities held by such party for the payment of such debt," etc. See Hastings v. Insurance Co., 73 N. Y. 141; Bank v. Leake, Id. 161; Insurance Co. v. Coverdale, 48 Kan. 446, 29 Pac. 682; Insurance Co. v. Upton, 2 N. D. 229, 50 N. W. 702; Davis v. Insurance Co., 135 Mass. 251; Meridian Sav. Bank v. Home Mut. Ins. Co., 50 Conn. 396. The complaint proceeds upon the theory that the liability under the policy had become a fixed and definite liability to Annie Wiley at the time of the assignment, and that this whole interest of Annie Wiley, with her right to sue therefor, was by the assignment transferred to the appellee, who became the real party in interest by virtue of this assignment alone.

Upon the trial by jury of issues formed, a general verdict was returned for the appellee in the sum of $1,606.75, and the jury also returned answers to interrogatories. The appellant's motion for judgment in its favor on the answers to interrogatories, notwithstanding the general verdict, was overruled. The jury specially found that immediately after the fire the appellee claimed the ownership and right to the proceeds of the policy in

suit, as his interest might appear; that up to January 15, 1898, he demanded the proceeds of the policy from the appellant, by virtue of his having liquidated the building and loan mortgage held by the Wayne International Building & Loan Association; that Annie Wiley assigned the policy to the appellee January 15, 1898, the consideration for the assignment being the paying off the building and loan mortgage; that up to January 15, 1898, Annie Wiley did not make any demand upon the appellant for the proceeds of the policy; that she did not at any time or in any manner give notice to the appellant of her loss by fire under the policy, and did not at any time furnish the appellant proofs, or make proofs to the appellant, of loss under the policy; that on the 15th of February, 1897, one Roscoe C. Griffith, who was not an agent of the appellant, wrote to the appellant about the policy, at the instance of the appellee, as a friend; that Griffith was not the agent or attorney of Annie Wiley, and she did not authorize or direct him to correspond with the appellant; that one Frank Ritchie replied to this letter about the 17th of February, 1897, and, on receipt of the letter in reply, Griffith gave it to appellee; that the appellee visited the office of the appellant, at the city of Chicago, about the 16th of February, 1897; that one John Stone, the adjuster of the appellant, in person denied liability of the appellant to the appellee about January 28, 1897; that at that time the appellee had an interest in the policy, by virtue of having liquidated the building and loan mortgage held by said building and loan association, and was then claiming the ownership or an interest in said policy by virtue of such liquidation of the mortgage; that appellee did not advise the appellant at any time that he was acting as agent for or on behalf of Annie Wiley in his negotiation for a settlement of the policy; that the appellant denied liability to Annie Wiley under the policy about January 28, 1897, to the appellee, and in a letter from Ritchie to Griffith about February 17, 1897, and by Stone in a letter to one Grady about January 29, 1897; that Annie Wiley on the 24th of January, 1897, was the sole and unconditional owner of the title to the real estate on which the house injured by fire was situated; and that the appellee, in his efforts to collect the policy, acted for himself. Our statute permits the plaintiff to plead generally the performance of conditions precedent, but it is a rule of pleading in this state that, where he intends to rely on an excuse for not performing, on the ground of waiver or negligence of the defendant, or a refusal on his part to perform, the particular circumstances constituting such excuse should be averred, as at common law, and, if the complaint allege full performance of the conditions precedent on the part of the plaintiff, he cannot recover upon evidence showing a failure to perform,

with an excuse therefor. Purdue v. Noffsinger, 15 Ind. 386; Cromwell v. Wilkinson, 18 Ind. 365, 367; Insurance Co. v. Duke, 43 Ind. 418, 421; Insurance Co. v. Copehart, 108 Ind. 270, 273, 8 N. E. 285; Bowlus v. Insurance Co., 133 Ind. 106, 120, 32 N. E. 319, 20 L. R. A. 400. The plaintiff may proceed in one paragraph upon the theory of full performance of conditions precedent on the part of the plaintiff, and in another paragraph upon the theory of waiver of performance of particular conditions, as in Insurance Co. v. Copehart, 108 Ind. 270, 8 N. E. 285; but each paragraph must proceed upon some definite theory. Treating the complaint as proceeding, as is required, upon a consistent theory, and construing its averments most strongly against the pleader, we think it must be regarded as averring full performance by the owner of the property of all conditions precedent, without relying upon or sufficiently showing a waiver of any of them. The special findings of the jury are inconsistent with a recovery upon such a theory. What might have been the rights of the appellee by virtue of his payment or "liquidation" of the mortgage need not be considered. No reference is made in the complaint to the mortgage, or to his connection therewith. He sued as assignee of the owner of the property insured, and he could not recover unless she had a right of action at the time of the assignment, which was made about one year after the fire.

Whether or not, before the assignment, the appellee stood in the position of the mortgagee, and whether or not, in the relation which he held up to that time, he was affected by defaults of the owner of the property, he certainly was affected, as assignee, by any default which would deprive the owner of the right to recover upon the policy. If she at the time of the assignment could not recover on the policy, the appellee must fail. It is specially found that before the assignment she did not make any demand upon the appellant for the proceeds of the policy; that she never in any manner gave notice to the appellant of her loss by fire under the policy, and never made or furnished proof of loss. Though there were negotiations between the appellee and the appellant soon after the fire, the appellee therein was acting, not as the representative of the owner of the property, but solely for himself, in the capacity of one who had liquidated the mortgage debt. If the inference is not, indeed, irresistible that between the appellee's assignor and the appellant there were no negotiations or communications directly or through representatives, and no waiver of notice and proof of loss, it does appear affirmatively from the special findings that the appellee was not entitled to a recovery, as assignee of the insured, upon the cause of action shown by the complaint. The judgment is reversed, with instruction to sustain the appellant's motion for judgment.

(25 Ind. App. 287)

EVERETT v. INDIANA PAPER CO. 1 (Appellate Court of Indiana. May 11, 1900.) CONTRACTS - CONSTRUCTION AND OPERATION-CUSTOMS AND USAGES-APPEAL AND ERROR.

1. In a contract for the delivery of paper, the court cannot, in construing it, read into it the word "net" after the words "53,000 pounds book paper," as that term has a fixed and definite meaning in commercial transactions.

2. Only the grounds of objection to the introduction of evidence can be considered on appeal which are presented to the trial court.

3. Evidence of a usage in a paper business that an order for 53,000 pounds paper, "37x48, 53 lbs. 500 sheets," means that the weight of wrapping necessary to safely transport it is to be included in the specified weight, is admissible to show what is meant by the terms used, and does not contradict the express terms of the contract.

4. Where a usage of a trade is shown to exist, it is presumed that persons engaged in that business contract with reference to it.

5. Where a party to a contract testified that he had had considerable experience in buying paper, and did not deny knowledge of a usage of the trade in buying paper, it is presumed that he had such knowledge.

6. A contract for the delivery of 53,000 pounds paper, on the basis of "37x48, 53 lbs. 500 sheets," is not so plain as to the manner of weighing the paper as that there could be but one conclusion, and evidence of a custom as to the manner of weighing paper was admissible.

Appeal from superior court, Marion county; J. L. McMasters, Judge.

Action by the Indiana Paper Company against J. A. Everett, Seedsman, on contract. From a judgment for plaintiff and refusal to grant a new trial, defendant appeals. Affirmed.

Florea & Seidensticker, for appellant. W. E Jeffreys and M. E. Forkner, for appellee.

ROBINSON, J. Appellee sued upon the following agreement: "Order from J. A. Everett, Seedsman. Indianapolis, Ind., Nov. 9, 1895. To Indiana Paper Co., P. O. City: Deliver to our printers, as instructed with later specifications. [Signed] J. A. Everett, Seedsman. 53,000 lbs. book paper, @ 3.75 per cwt. This paper is to match the paper in our 1894 catalogue for quality, finish, and appearance, except the color is to be white, like sample attached, marked 'J. A. E.,' and attached to this copy, marked 'C. E. G.' Weight to be on basis of 37x48, 53 lbs. 500 sheets. Specifications for size will be given early next week. Delivery to be made, Dec. 10th or before, 1⁄2 Jan. 1st or before. Terms, 90 days. Accepted: Indiana Paper Co., per Claude E. Geisendorf. 'C. E. G.' and ‘J. A. E.' match as nearly as possible for color." It is averred that, after a part of the paper was furnished, appellant refused to accept any more, and refused to pay for the part delivered; that appellee then had on hand a quantity of the paper, which it had caused to be manufactured especially to fill this contract, and which was, because of its size and quality, unmerchantable. Appellant answered: General denial; payment;

Rehearing denied,

and special defense that, appellant desiring to publish a catalogue for 1896, appellee represented it would furnish the same kind of paper used in the 1894 catalogue, and, in consideration of such representations, appellant entered into the written agreement sued on, and thereby purchased from appellee 53,000 pounds of white book paper, of the same kind, class, grade, and quality that was used in its 1894 catalogue; that appellee knew the purpose for which the paper was to be used, and undertook that every 53 pounds delivered should make 500 sheets of paper 37 by 48,-no more, no less; that the paper appellant used was delivered to its printers and used by them before it learned of its quality, but, immediately upon learning of the quality and weight, it notified appellee not to deliver any more of that quality, but to deliver the paper purchased, which appellee failed to do; that 500 sheets would not weigh 53 pounds, was unfit for appellee's use, and worth not to exceed $2.50 per hundredweight; that appellant was compelled to go into the market, and pay $4.60 per hundredweight for paper to complete its catalogue, causing appellant a loss in a named sum, for which judgment is asked. Upon a trial by the court, appellee had judgment. Motion for a new trial overruled. The only questions discussed arise on this ruling.

The contract must be construed as a whole. The contract calls for 53,000 pounds of paper to match the paper in the 1894 catalogue for “quality, finish, and appearance, except the color"; but this must be taken in connection with that part of the contract which says, "Weight to be on basis of 37x48, 53 lbs. 500 sheets." The contract does not necessarily mean that the paper shall be like the sample in weight. The quality, finish, and appearance are to be gathered from the sample, and we can only conclude that the parties did not intend that the weight should be so determined, because they made distinct provision for determining that in another way. We cannot read into the contract the word "net" immediately after “53,000 lbs. book paper," as argued by counsel. That term, in commercial transactions, has a fixed and definite meaning. Scott v. Hartley, 126 Ind. 239, 25 N. E. 826.

The evidence upon some questions in issue was conflicting. This evidence we cannot weigh. Whether there was a substantial compliance with the contract by appellee was a question to be determined from all the evidence. The contract required the paper to match the paper of the old catalogue for quality, finish, and appearance. There is evidence that the paper furnished by appellee did this. There was a conflict as to whether the paper furnished reached the weight required by the contract. Appellant required that the weight should not exceed 53 pounds, and there is no evidence that it did. There is no evidence that any of it fell below 50 pounds. There is evidence that it is not