stockholder, "or the $8,000 belongs to said faith. He cannot, without the knowledge and corporation, Gary Heights Realty Company." consent of his principal, serve two masters. That said appellees knowingly and willfully He can make no secret profit out of any represented to appellant, and to said invest- transaction made by him in his master's beors, and to said corporation, that the actual price of said real estate was $40,000, and that they were to receive no commission. That said appellees, for and on behalf of said corporation, purchased said land from said Earl at and for the sum of $40,000. That before the instituting of this action demand was made upon the said corporation "to bring and maintain this action to recover said secret profit of $8,000." That said corporation has failed, neglected, and refused, and still "refuses to institute said action, and said corporation is made a party defendant as a party plaintiff herein." There was a prayer for judgment in the sum of $8,000, and that the court should determine as to whether said sum should be distributed to said investors, or should be paid to said corporation. [1] This complaint seems not to have been drawn upon any definite or well-defined theory, as we shall hereafter more fully notice. The demurrer thereto having been sustained, we, in our consideration of the sufficiency of said pleading, are not limited to any alleged deficiencies specified in the memoranda filed with said demurrers, but, if said pleading was bad from any cause, there was no error in sustaining said demurrers. State ex rel. v. Palmer, 184 Ind. 7, 110 N. E. 213; Poer v. State ex rel. Hinshaw, 188 Ind. 55, 121 N. E. 83; State ex rel. v. Sizelove (Ind. App.) 137 N. E. 616. [2-4] Considering said pleading first upon theory of a suit by the appellant, as being the real party in interest, as being entitled to recover of and from the individual appellees a proportionate part of said sum of $8,000, his part being in such proportion as the number of shares of stock owned by him bore to the total amount of stock issued, the said pleading is fatally defective. Conceding that said appellees received and still retain said sum of money, as claimed, and conceding also that it was obtained under the circumstances claimed, and further conceding that the said money so received by said appellees does not, in equity and good conscience belong to them, yet, the question remains, Is the appellant, in his own right, legally entitled to recover all or any portion of said money to his own use? It is alleged in the pleading in question that said individual appellees acted as agents for said corporation in the purchase of said land. We must assume this allegation as true. The duties of the agent to his principal, when representing such principal in a business transaction, are so well settled as to admit of no controversy. The agent must, as to his principal, exercise the utmost good half. Any money or secret profit, made by him in the transaction in equity belongs to the principal, by whom it may be recovered in an action "for money had and received." In Leake on Contracts, 109, it is said: "Any profit made by an agent in the execution of his agency must be accounted for to the principal, who may claim it as a debt for money received to his use. A gratuity given to an agent for the purpose of influencing the execution of his agency vitiates a contract subsequently made by him, as being presumptively made under that influence, and a gratuity to an agent after the execution of the agency must be accounted for to his principal." It has also been said that the interests of public justice will not tolerate, under any circumstances, that an agent shall retain any profit or advantage which he secretly gains while acting for his principal. U. S. v. Carter, 217 U. S. 286, 30 S. Ct. 515, 54 L Ed. 769, 19 Ann. Cas. 594. In Tyler v. Sanborn, 128 Ill. 136, 21 N. E. 193, 4 L. R. A. 218, 15 Am. St. Rep. 97, it was said: "The doctrine is familiar, and has often been recognized by this court, that an agent canest in the sale of the property of his principal not, either directly or indirectly, have an interwhich is within the scope of his agency, without the consent of his principal, freely given, after full knowledge of every matter known to the agent which might affect the principal." And it has accordingly been held that all profits and advantages procured by an agent in the transaction of any affairs inure to the benefit of the principal. Indiana Trust Co. v. Byram, 36 Ind. App. 6, 72 N. E. 70, 73 N. E. 1094; Lafferty v. Jelley, 22 Ind. 471. It therefore follows that, as the money in question belonged to and was, under the averments of said pleading, the property of Gary Heights Realty Company, the appellant, though a stockholder in said company, could not maintain, in his own name, an action at law to recover any portion thereof. In 7 R. C. L. p. 331, it is said: "In no case, however, can the stockholder bring suit for himself and in his own right." bring and maintain this suit in his own name [5] If the appellant was not entitled to and in his own right, what right, if any, did he have to bring an action on behalf of said corporation to recover said money? If he has any such right, has he, by the allegations of his said pleading, brought himself within the limits of such right? There is no pretense in this case that the appellant herein brought and is seeking to maintain this action as an "equitable plaintiff." It is nowhere even suggested that such is the theory of the said pleading. In cases (148 N.E.) 2. Reformation of instruments 17(1)—That assignment by insured was as collateral security instead of absolute was mistake of fact. where a demand is made upon the "govern- apply in actions to reform written instruments ing body" of a corporation that it take legal for mutual mistake. steps to protect or to enforce a legal right, and such corporation, by its governing body, refuses, after such demand, to take action as requested to protect its property or to enforce such legal property right, then it is Where insured, desiring to make absolute well settled that a stockholder in such corpo-assignment, instructed agent to prepare paration may, in equity, became a nominal or pers, and form for assignment as collateral se"equitable plaintiff," for and on behalf of curity was prepared and signed by insured, such corporation as the real plaintiff, naming mistake was one of fact rather than of law. it, not as a defendant but as the real plaintiff, and making the proper parties defend- 3. Reformation of instruments 17 (2)-Misants. See Miller v. Jackson School Township, 178 Ind. 503, 99 N. E. 102. The suit, in such case proceeds, not as an action at law, but as a suit in equity. The appellant has not sought this remedy. The averments of his said pleading do not bring him within the rule governing the rights of equitable of fact or law, mistake being that of draftsplaintiffs. See note to Johns v. McLester, 137 Ala. 283, 34 So. 174, 97 Am. St. Rep. 27. In the case of Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827, a leading case on the question now under consideration, it was said: "Before the shareholder is permitted in his own name to institute and conduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all the means within his reach to obtain, within the corporation it self, the redress of his grievances, or action in conformity to his wishes. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made to appear to the court. If time permits, or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body, in the matter of which he complains. And he must show a case, if this is not done, where it could not be done, or it was not reasonable to require it." Clearly, under the authorities, the appellant has not, by the allegations of his said pleading, brought himself within the limits of the rule as to "equitable plaintiffs," and, under any view of the case, the court did not err in sustaining said demurrer. The judgment is affirmed. HAY v. BILLETER et al. (No. 12293.) (Appellate Court of Indiana, Division No. 2. June 5, 1925.) 1. Reformation of instruments 44-Parol negotiations may be shown to reform written instruments for mutual mistake. Rule that parol negotiations are merged in subsequent written contract, and may not be shown to vary or alter its terms, held not to take of draftsman of instrument could be reformed whether one of law or fact. assignment, instructed agent to prepare papers, Where insured, desiring to make absolute and form for assignment as collateral security was prepared and signed by insured, instrument could be reformed whether mistake was man. 4. Reformation of instruments 8—One dollar sufficient consideration for assignment to justify reformation. Consideration in assignment of insurance policy of $1 held sufficient to justify action for reformation of instrument. NICHOLS, J. Action by appellee Mabel C. Billeter, mentioned hereinafter as appellee, against appellant and appellee bank, to determine the true ownership of the proceeds of two life insurance policies issued by the Gary National Life Insurance Company upon the life of David Rogers Robins, deceased, the proceeds of said insurance having been previously collected and deposited in said bank. Appellee's complaint was in three paragraphs, the first paragraph asking for reformation of a written assignment of a life insurance policy and the recovery of $3,000, the full amount of said insurance; the second for reformation of a written assignment of a second life insurance policy, and the recovery of $4,000, the full amount of said in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 U. S. 132, 2 S. Ct. 375, 27 L. Ed. 678; Butler v. Barnes, 61 Conn. 399, 24 A. 328; 12 L. R. A. 273; 34 Cyc. 982. surance; the third alleging a parol gift of, 146 Ind. 77, 45 N. E. 41; Elliott v. Sackett, the two policies of insurance by the deceased to appellee, and asking a judgment for $7,000, the total amount of the two policies. The bank filed special answer to all three paragraphs of complaint, claiming no interest in the matter in controversy, save that the sum of the two insurance policies was held by it, at the request of appellant and appellee, as custodian. To the first and second paragraphs of the complaint appellant filed demurrer, which was overruled, to which ruling appellant excepted. [2, 3] Appellant next contends that the first and second paragraphs of complaint ask for a reformation of written instruments because of a mistake of law. It is averred in each paragraph that the insured caused an employee of the Insurance Company to prepare him an assignment transferring, assigning, and vesting in appellee entire title to the policy; but that such employee, though intending to prepare and supply an assignment in accordance with the wishes of the insured, mistakenly selected and submitted to him for his execution a form, then in use by the company, for assigning policies Appellant filed answer in general denial to each paragraph of complaint. Appellant also filed cross-complaint against appellees, alleging that appellant was the owner of the proceeds of said insurance policies, except ing that said policies were assigned to ap- as collateral security for present and future pellee by way of collateral written assign-indebtedness. The insured signed the same, ments for indebtedness. To which crosscomplaint appellee filed answer in general denial. At the trial appellee dismissed as to the third paragraph of her complaint. believing it to be an absolute assignment of the policy and its proceeds to appellee, and its execution was because of the mutual mistake of the insured and the employee of the The cause was submitted to the court up- company. It is sometimes most difficult to on the issues formed on the first and second determine whether the mistake claimed to paragraphs of the complaint, and the court have been made is a mistake of fact or of law, found for appellee on each of said para- and in the present case we have a striking ilgraphs, respectively, that the appellee was lustration of the court's difficulty in so deentitled to reformation of the written as- termining. It appears by the complaint that signments set out in said paragraphs, that the insured expressly instructed the emappellee should recover, on the first para-ployee of the insurance company to prepare graph of complaint, $3,000, and on the second paragraph, $4,000; that the bank should turn over said sums to appellee, and rendered judgment accordingly. The court found against appellant on his cross-complaint, and rendered judgment accordingly. Appellant's motion for a new trial was overruled, to which appellant excepted. The rulings of the court in overruling the demurrer to the first and second paragraphs of complaint and in overruling the motion for a new trial are the errors assigned. [1] Appellant, in presenting error of the court in overruling his respective demurrers to the first and second paragraphs of complaint, contends that each of said paragraphs seeks to add to and enlarge a written assignment and to make the same an absolute transfer of property, whereas such writing was executed as security only, and further contends that, by the averments of each paragraph of the complaint, appellee seeks to contradict and vary the terms of such written instrument. There is no doubt as to the general rule with reference to the merger of parol negotiations in a subsequent written contract. But there are exceptions to such rule, one of which is that it does not apply in actions to reform written instruments for mutual mistake. United States, etc., Insurance Co. v. Emerick, 55 Ind. App. 591, 595, 103 N. E. 435; Jones v. Sweet, 77 Ind. 187, 192; Morris, Administrator, V. Stern, 80 Ind. 227, 232; Cole v. Gray, 139 Ind. 396, 38 N. E. 856; Smith v. McClain, for him an absolute assignment of the pol- It was sought to reform the instrument because of a mistake as to its legal effect. The court said: "But as we see this case, it is one where the scrivener, through mistake or inadvertence, failed to reduce the actual agreement of the parties to writing. In such cases 'equity, will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation or by reformation, to the same extent as if the failure of the writing to express the real contract was caused by mistake of fact'" (citing authorities). (148 N.E.) [5] That the policies, being made payable The same authority quotes from the case! of Adams v. Wheeler, 122 Ind. 251, 23 N. E. to the estate of the insured, could be by him 760, to the effect that: "It is a well-established principle of equity jurisprudence, that where through the mutual mistake of the parties, the form of an instrument is such that it does not express the agreement as the parties intended it should, the aid of a court of chancery may be invoked to reform the contract or deed [citing authorities]. Courts of equity would be justly subject to reproach if they could afford no relief in cases like the present." In Parish v. Camplin, 139 Ind. 1, 37 N. E. 607, the court, speaking with reference to a mistake in a deed, says: "If this was a mistake of law, a mistake as to the legal effect of the deed, it was such an one as was common to all the parties affected. assigned, see Brown v. Farmers' State Bank, 70 Ind. App. 182, 123 N. E. 224, and cases there cited. There was no error in overruling the demurrer to the complaint. We have examined the questions presented by the assignment of error in overruling the motion for a new trial, the substantial ones of which have been considered in considering the court's action in overruling the demurrer to the complaint, and we find no reversible error in the court's action. Nothing can be gained by further considering them. The judgment is affirmed. BRUCE v. STUTZ MOTOR CAR CO. OF AMERICA, Inc. (No. 12208.) * Equity requires an amendment of the writing that will make the contract what the parties supposed it was, and intended it should be, although their mistake is one of law and (Appellate Court of Indiana, Division No. 2. not of fact." To the same effect, see Radebaugh v. Scanlin, 41 Ind. App. 100, 82 N. E. 544. In Walden v. Skinner, 101 U. S. 577, 25 L. Ed. 963, it is held that: "Where an instrument is drawn and executed that professes or is intended to carry into execution an agreement, which is in writing or by parol, previously made between the parties, but which by mistake of the draftsman, either as to fact or law, does not fulfill or which violates the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement." [4] By these authorities, it is apparent that, whether the mistake was one of fact or of law, it could be corrected so as to make the assignment conform to the intention of the parties. It is urged by appellant that appellee was but a mere volunteer, and that as such she cannot maintain an action to reform the assignment. If she was but a volunteer, appellant's position would certainly be well taken. Froman v. Froman, 13 Ind. 317; Randall v. Ghent, 19 Ind. 271; Mason v. Moulden, 58 Ind. 1; 34 Cyc. 928, 251. But the consideration in each of the assignments, which assignments are made exhibits to the complaint, was $1. It has been held by the Supreme Court of this state that such a consideration is sufficient to justify an action for the reformation of an instrument. Mason v. Moulden, supra. If there is any consideration at all it will be sufficient for that purpose. Comstock v. Coon, 135 Ind. 40. 643, 35 N. E. 909; Baker v. Pyatt, 108 Ind. 62, 72, 9 N. E. 112; Citizens' Nat. Bank v. Judy, 146 Ind. 322, 332, 43 N. E. 259; St. Clair v. Marquell, 161 Ind. 56, 66, 67 N. E. 693. June 5, 1925.) 1. Master and servant 419-Compensation agreement, not approved by Industrial Board, not "award" reviewable. A compensation agreement, which is not approved by the Industrial Board, is not an award which is reviewable, in view of Workmen's Compensation Act, § 45, as amended by Acts 1919, c. 57, § 1. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Award.] 2. Master and servant 419-Order of Industrial Board not condition to exercise of privilege to reduce compensation by procuring suitable work. Under Workmen's Compensation Act, § 32, order of Industrial Board is not necessary, as a condition to the exercise by the employer of his privilege. to reduce compensation by procuring for injured employé suitable employment and board has nothing to do in that connection until employment has been procured and refused. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 148 N.E.-11 William H. Bruce received a compensable until the defendant procure for him employinjury while in the employ of the Stutz Mo- ment suitable to his condition, provided that the tor Car Company and thereafter, on June total compensation hereby awarded, including 28, 1923, the employer and employé enter- that heretofore paid under the agreement of ed into an agreement by which compensation June 28, 1923, shall not exceed $5,000. was to be paid at the rate of $13.20 per week procure for the plaintiff work suitable to his "It is further ordered that if the defendant during temporary disability, not to exceed condition and the plaintiff refuses to accept the statutory period, beginning June 22, the same, then plaintiff's compensation shall 1923. There is a recital in the transcript terminate from and after the date of the rethat the agreement was filed with the in-fusal. dustrial board on July 26, 1924, but it appears that the agreement has never been approved by the Industrial Board. On July 28, 1924, the employer filed an application for a review of the award on account of changed conditions. It is impossible to determine from the transcript what change in the conditions the employer relied on as constituting ground for relief from the payment of compensation. However, it appears from the briefs that the employer's contention before the Industrial Board was that the employé's disability has ceased. On September 19, 1924, the petition was heard by one member, who five days thereafter made a finding and an award, which is substantially the same as the finding and award afterward made by the full board on review. The full Industrial Board reviewed the evidence adduced at the first hearing, refused to hear additional evidence offered by the employé, and made the following finding, award, and order: "The full board finds that on May 23, 1923, plaintiff was in the employment of the defendant and had a weekly wage in excess of $24; that on that date he received a personal injury by an accident arising out of and in the course of his employment, of which the defendant had knowledge and furnished medical treatment; that on June 28, 1923, plaintiff and defendant entered into a compensation agreement whereby the defendant agreed to pay to the plaintiff compensation at the rate of $13.20 per week, beginning June 22, 1923, and continuing during temporary disability; a copy of the agreement was filed with the Industrial Board on July 26, 1924; that under the agreement the defendant paid to the plaintiff compensation up to and including July 27, 1924; that on July 28, 1924, the defendant filed, with the Industrial Board, its application for the review of the award on account of a change in conditions, alleging that the employé's disability on account of the injury had ended since the date of the award. "And the full board finds that defendant's application for review on account of a change in conditions should be granted; that there has been a change in plaintiff's condition, in that plaintiff was at the time of the hearing on September 19, 1924, able to do work of a light character, although he was not able to go in a factory and work where there was machinery. "It is therefore considered and ordered that the plaintiff be and is hereby awarded against the defendant, compensation at the rate of $13.20 per week, beginning June 22, 1923, and to continue so long as the plaintiff is totally disabled for work, on account of his injury, or "It is further ordered that the defendant have credit on this award for all compensation heretofore paid." The undisputed evidence shows that on May 23, 1923, the employé was hit on the left side of the head with the iron handle of a windlass. The blow lacerated the skin above the left side of the forehead, and left him dazed and unconscious. The injury resulted in a deplorable physical and mental condition which we need not specifically describe. The appellant contends (1) that there is no evidence to sustain the finding that there has been a change in condition; (2) that the Industrial Board was not authorized to order the appellant to accept other employment when procured by the employer, on penalty of forfeiting his compensation; and (3) that the board erred in rejecting the additional evidence offered. J. Fred Masters, of Indianapolis, for appellant. White, Wright & McKay, of Indianapolis, for appellee. DAUSMAN, J. [1] In determining whether or not there has been a change in conditions, the inquiry must necessarily relate to a definite period of time. That period is the time which has elapsed since the last preceding adjudication-that is to say, since the conditions were last officially determined. The compensation agreement has not been approved by the Industrial Board, and therefore has not become an award. It follows that the petition for a review of "the award" on account of a change in conditions, was premature. There was no award to review. Section 45, Compensation Act (Acts 1919, p. 167); Pedlow v. Swartz Electric Co., 68 Ind. App. 406, 120 N. E. 603; Indianapolis Bleaching Co. v. Morgan, 75 Ind. App. 672, 129 N. E. 644. [2] The spirit of our compensation law is that total disability is to be determined primarily by reference to the kind of work the employé was doing at the time of the injury. It is also the spirit of the compensation law, that compensation for total disability shall continue until the employé is able to resume, at full wages, work of the same kind and character as that in which he was engaged at the time of the injury. Artman's Manual, p. 145. That proposition is subject to the qualification stated in section 32 of the Com |