In Selby v. Mutual Life Ins. Co. (C. C.) 67 Fed. 490, it is held that, if the contract does not provide that the act complained of shall ipso facto avoid the insurance, such act merely renders the policy voidable, and the insurer is not entitled to defeat recovery thereon unless it has seasonably taken action thereon and has taken such steps as will call the forfeiture into existence. by-laws of the company then or thereafter its regulations rendered the bond void, but in force, whether by amendment or adop- the failure complained of was not among tion. The policy then provided that it should them. It was held that, as the omission be "liable to forfeiture" if said statements was not expressly made a ground of forfeiwere not true. Now, while the by-laws pro- ture, the same could not be declared nor vide that, upon the happening of certain relied upon. things and the commission of certain offenses against the society, the policy should be "void ab initio" and should become "null and void," yet the making of misstatements in the application is not one of them. The making of false statements in the application appears in a list of offenses upon which, before any effect is produced upon the insurance, a proceeding must be had by the company "under such rules as may from time to time be formulated by the board of directors." So that there is nothing in the contract of insurance providing that misstatements in the application shall automatically work a forfeiture, but only that the insurance was liable to forfeiture therefor. Black's Law Dictionary, p. 713, gives the second definition of the word "liable" as "exposed or subject to a given contingency, risk, or casualty, which is more or less probable." And the provision in section 81 of the company's by-laws for a proceeding and action on the part of the company as to the offense of which the one in question forms a part shows that the word "liable" is used in this very sense. The New Standard Dictionary defines the word as meaning "exposed, or contingently subject to." And both Anderson's and Bouvier's Law Dictionaries define "liability" as something which must "be enforced by action." Now, the answer in this case does not show that the company took any steps necessary to enforce the forfeiture. The amendment to the answer, sought at the close of the case, whether asked before defendant had rested or afterwards (as to which defendant and the trial court did not agree), stated a mere conclusion as to a forfeiture. No facts were pleaded stating a declaration of forfeiture, or upon which a forfeiture could be said to have come into existence. [2, 3] As the defense of forfeiture was not pleaded, no error can be charged against the trial court for excluding the application when offered by defendant; since the only purpose of having it in evidence was to lay the foundation for that defense. It is true the application is deemed to be legally "a part of the contract" when it is expressly stated to be such, but plaintiff was not therefore required to introduce the application along with the policy. The execution of the policy was admitted, and this established plaintiffs' cause of action, and it could only be defeated thereafter by pleading and proving a forfeiture. In the case of The Kate Heron, 14 Fed. Cas. 139, the words "liable to forfeiture" were held not to effect a present absolute forfeiture, but only gave a right to have a forfeiture thereafter declared. The same [4, 5] The admission of the proofs of death idea of liability is expressed in Haywood v. were not necessary to the establishment of Shreve, 44 N. J. Law, 94, loc. cit. 104. In plaintiff's cause of action; and the only Lobee v. Standard Ins. Co., 12 Misc. Rep. reason defendant desired them introduced 499, 33 N. Y. Supp. 657, it was held that, was to show the discrepancies between the where the insurance contract provided that facts therein stated and the facts stated in misrepresenting and mortgaging the insur- the application; i. e., to prove that mised property "shall cause a forfeiture of the statements were made in the latter. But certificate," those acts did not ipso facto this fact was irrelevant unless the answer annul it, but merely authorized the com- contained a defense. It did not, so far as pany to elect to declare it void. In Beasley v. Linehan Transfer Co., 148 Mo. 413, loc. cit. 421, 50 S. W. 87, the discussion as to the word "liable" shows that the court regards it as meaning that the result or consequence following the act is something which may happen but is not certain to happen. Now, the rule of law is strict as to forfeitures. If the contract provides that in a certain contingency a forfeiture may be declared, then such forfeiture cannot come into existence until it is declared. Keeton v. National Union, 178 Mo. App. 301, loc. cit. 307, 165 S. W. 1107. In Dixie Fire Ins. Co. v. American Bonding Co., 162 N. C. 384, 78 forfeiture was concerned. If it be contended that the policy, with the application and the proofs, showed on their face, as matter of law, that the insured had breached certain warranties which rendered the policy void, the answer to such contention is that no defense of that kind was raised. And here, it would seem, is where the question whether defendant is doing an old-line or fraternal insurance business may have some bearing. The answer to this last question is determined, not by what the defendant calls itself or its business, but by the character of the contract involved and the manner in which defendant conducts its business. Herzberg v. Modern Brotherhood, 110 Mo. App. Life Ass'n, 154 Mo. 618, 55 S. W. 999. Ac-[the case was to be argued and submitted to cording to the evidence on this point pre- the jury. It was the next morning when the served in the record, it would seem that the defendant should be considered as engaged in old-line insurance, since the facts are the same as are held, in Trenton v. Humel, 134 Mo. App. 595, loc. cit. 599, 114 S. W. 1131, to make the business of this same company that of ordinary life, and not fraternal, insurance. This being true, the above-named documents, namely, the policy, the application, and the proofs of death, could not defeat plaintiffs' cause of action on the ground of breached warranties; since there is neither pleading nor evidence to the effect that they were "material to the risk," as required by section 7024, R. S. Mo. 1909, to make them effective. requests for permission to amend and to introduce evidence in support of the new claim were made. This was at a time presumptively after the witnesses had separated and had gone their several ways, especially as the statement was made the night before that no more evidence would be introduced. There was nothing to show how much the additional evidence would further prolong the case, nor was there any reason or excuse for the failure to set up the additional claim at the start. Under all these circumstances, to convict the trial court of an abuse of discretion would allow a litigant to plead and present a portion of his case, and then, at the close thereof, when it is seen that such part is about to fail, to further prolong the case by bringing in new and additional matter and submit evidence in behalf of it, although perhaps the witnesses for the opposing litigant may have been discharged under the statement from both sides that the evidence had closed, and no more would be introduced. The answer to the question whether the court abused its discretion under such circumstances is obvious. The judgment must be, and is, affirmed. All concur. [6, 7] As to the claim that the verdict is greater than the amount provided in the insurance contract, it is clear that this does not appear from the policy. It promised to pay the maximum amount of $1,000. The answer admitted the facts necessary to a recovery, and set up no claim that under any by-law a reduction could be made from the amount specified in the policy of any premiums due for the first ten years remaining unearned between that time and the prior death of the insured. No claim was made that, if defendant was liable, the amount to be recovered was less than the amount demanded. The record clearly shows that after both sides had rested, and the instructions had been passed on by the judge, defendant asked leave to amend the answer, setting up the above provision of the by-laws, and also asked leave to introduce evidence 1. showing the amount of the unearned premiums which defendant could have collected between the death of deceased and the expiration of ten years from the date of the policy, had deceased lived that long, and which, under said by-law, could be deducted from the amount promised in the policy. The court refused to permit the amendment or to reopen the case. Section 1848, R. S. Mo. 1909, says the court may amend any pleading by inserting other allegations material to the case, but this doubtless has reference to the case as made by the evidence, and certainly does not require the court, after a trial is over and closed, to permit a litigant to bring in a new claim or defense upon which it is necessary to offer additional testimony. It is true that amendments are not entirely within the discretion of the trial court. Joyce v. Growney, 154 Mo. 253, 55 S. W. 466. But they are largely so, and that discretion will not be interfered with on appeal unless it is manifest that it has been abused. Carr v. Moss, 87 Mo. 447. There is no showing of abuse in this case. The hearing of evidence closed late in the evening of one day, and both sides rested, and the instructions were passed upon. Court then adjourned until the next morning, when UNITED STATES FIDELITY & GUAR- TRACT-TERMINATION. A contract between an insurance company, its general agent, and the manager of its surety and burglary departments, whereby the two agents were obligated to perform services not identical although similar in kind, the general agent having supervisory control of all departments, including that of the general manager of the surety and burglary departments, with the authority to employ solicitors in the interest of himself and the company, for the salaries of which he was liable in part, and having also the power to extend credit, the general manager having no such power and being a mere salaried employé, with no general powers or authority, and having no obligation to pay any expenses of the business, is several and not joint, and was not terminated as to the general agent by the retirement of the general manager of the surety and burglary departments. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 99, 100, 104; Dec. Dig. 74, 79.1 2. INSURANCE 74 - EMPLOYMENT OF INSURANCE AGENT-JOINT AND SEVERAL CONTRACT. Whether a contract between an insurance company and its agent creates a joint or several agency does not depend upon the number of agents contracted with nor on the form of the to be several if the express terms and purpose agreement, since a contract cannot be construed thereof show it is joint. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 99, 100; Dec. Dig. 74.] 3. DAMAGES 40 CONTRACT OF EMPLOYMENT-EXPECTED PROFITS. In an action for damages for the termination of an insurance agency, expected profits may be recovered, where there is actual data upon which a reasonable estimate thereof may be based. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. 40.] Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge. "Not to be officially published." Action by the United States Fidelity & Guaranty Company against Thomas S. Ridge. Judgment for defendant, and plaintiff appeals. Affirmed. fore the 25th of March, or, to state it another way, the contest is over the right of plaintiff to terminate the contract without giving notice 30 days before March 25th. No such notice was given, and, unless plaintiff had the right to terminate upon other grounds, defendant is entitled to recover damages therefor. The contested issue arises upon the counterclaim set up by defendant and the reply thereto filed by plaintiff. The counterclaim declared upon the written contract, and the reply admitted the execution thereof, and that it had been terminated, but set up certain grounds upon which its right to termiConsequently the ques Ball & Ryland, of Kansas City, for appel-nate were based. lant. Sebree, Conrad & Wendorff, of Kansas City, for respondent. TRIMBLE, J. Defendant, under a Defendant, under a contract with plaintiff, was its general agent in Kansas City and vicinity. Plaintiff terminated the contract on April 23, 1910. Defendant had in his hands money collected by him during the months of February, March, and April, 1910, as premiums on insurance written through his agency, and, deeming himself damaged by the termination of the contract to an amount in excess of the sum in his hands, refused to pay it over. Plaintiff thereupon brought suit to recover it from him. Defendant set up a counterclaim, asking $6,000 damages for breach of his agency contract. The jury found for plaintiff on its petition in the sum sued for, to wit, $4,262.52, and for defendant on his counterclaim in the sum of $4,580. The court thereupon rendered judgment in defendant's favor for $317.48. Plaintiff appealed. It seems that on June 20, 1907, plaintiff entered into a written contract wherein plaintiff was denominated the party of the first part, the defendant was termed the party of the second part, and one George O. Bacon was called the party of the third part. The subject of the contract was the transaction and management of plaintiff's business in Kansas City and in various contiguous counties in Missouri and Kansas. The contract provided that it was to terminate on the 25th day of March, 1908, but was to be renewed and continued from year to year, unless notice of a contrary intention was given in writing "by either party" 30 days before the 25th of March of any year for which the contract had been continued. The contract continued without interruption down to the 23d day of April, 1910, when plaintiff canceled it and revoked defendant's authority. There is no dispute over the fact that defendant owed plaintiff the amount found due it on the petition. The sole controversy is over the right of defendant to recover damages for the alleged breach of the contract by plaintiff in terminating it without giving notice 30 days be tion as to the right of plaintiff to terminate narrows down to the specific things alleged in the reply as the grounds upon which plaintiff bases its right to terminate. That pleading is the statement of its defense just as much as a petition is the statement of a plaintiff's cause of action. And, so far as the question now before us is concerned, we can no more consider grounds outside of those alleged in the reply than we could consider facts outside of a petition as constituting a cause of action. Of course, we could consider any fact appearing in defendant's counterclaim which would operate as a defense to plaintiff, but in such case it would afford plaintiff grounds for demurring to said counterclaim. There is nothing of this kind in the case, however, so that plaintiff's right to terminate the contract might perhaps be limited to the specific grounds it has chosen to rest that right upon in its pleaded defense to the counterclaim. Those grounds are: (1) That more than 30 days prior to the 25th of March, 1910, Bacon, the party of the third part in said contract, gave plaintiff notice in writing that he intended to terminate the contract and accept employment with another company; (2) that defendant, Ridge, did not comply with the contract, in that he failed to make monthly reports and settlements, on or before the 30th of each month, of all moneys due plaintiff; (3) that defendant, Ridge, negotiated for the sale of the agency to other parties prior to the termination thereof by plaintiff. There is no evidence that Bacon gave plaintiff 30 days' notice prior to March 25th that he intended to terminate the contract, or that he ever gave any such notice, so that, upon a strict and technical construction of the reply, it could be said that plaintiff had failed to establish the first statement alleged as a ground of defense. Strictly speaking, the allegation that one of the parties terminated the entire contract in accordance with a right or power plaintiff claims the contract gave him is not an allegation that the contract was for the joint services of defendant and Bacon, whereby the quitting of the service by Bacon, ipso facto terminated the con salary of Bacon's stenographer. Ridge was not obligated to pay anything thereon. Ridge kept the books, maintained all the correspondence, and was obligated to bear the expenses provided and called for in the contract. Bacon was a mere salaried employé, having specific and limited duties, with no general powers or authority, and having no obligation whatever to pay any of the expenses of the business, and carrying no joint obligations whatever with defendant. It is true he owed duties to the plaintiff similar to those Ridge owed, such as to be zealous, attentive, watchful, careful in the business, and to be in every way helpful when called upon by plaintiff. But these did not pertain to joint services. There were obligations resting on Bacon to the company and other obligations resting on Ridge to the company, but these obligations, although a few of them were similar in kind, were several and not joint. tract as to Ridge also. Nor is there an alle- | sponsible. Plaintiff agreed to pay $100 on the gation in the reply to the effect that such is the nature of the contract. However, Bacon did, on the 12th of March, 1910, enter into a contract with another company to act as its agent, and about the 1st of April, 1910, he did quit the service of plaintiff. And, perhaps, if Bacon could terminate the entire contract, not only as to himself, but also as to Ridge, by giving 30 days' notice prior to March 25th, then it might be he could terminate it by ceasing to work thereunder without giving notice. In the one case his act of termination would be in accordance with the contract, while in the other his act would be a violation thereof. However, his wrongful termination of the contract might not affect Ridge's right to continue working thereunder unless it could be said that the contract necessarily or impliedly called for the joint services of the two men, whereby the ceasing to work on the part of one terminated the contract as to the other. So that, finally, the question narrows down to whether or not the contract is or is not one calling for the joint services of the two men. For this For this reason it may not be out of place to put a gracious and liberal construction upon the reply as a pleading and treat it as though it, in effect, contained such ground as a defense to the counterclaim. [1] What then is the nature of the contract? Was it for the joint services of Bacon and Ridge? If so, then, by the voluntary retirement of Bacon, the contract with Ridge was also at an end. 1 Mechem on Agency (2d Ed.) § 198. [2] Whether a contract creates a joint or several agency does not necessarily depend upon the number of agents contracted with, nor upon the mere form of the agreement. Of course, a contract cannot be construed to be several if the express terms and purpose thereof show it is joint. But although more than one agent is appointed in a contract, this does not necessarily mean that their authority is joint. 1 Mechem on Agency (2d Ed.) p. 143, note; United States Fidelity, etc., Co. v. Ettenheimer, 70 Neb. 144, 97 N. W. 227, 113 Am. St. Rep. 783, loc. cit. 787. As said in Atlanta, etc., R. Co. v. Thomas, 60 Fla. 412, loc. cit. 422, 53 South. 510, 513: "Even though a contract be in form joint in its obligations, if the real rights and interests of the obligees among themselves be several and by the obligees as their rights and interests apnot joint, actions may be maintained severally pear, when the express terms and purpose of the contract are not in substance thereby violated or disregarded. In ascertaining the intenthe rights and interests of covenantees are in tion of the parties and in determining whether reality joint or several, the subject-matter of the contract, the language used, the purpose designed, the consideration furnished, and the circumstances that induced the making of the contract may be considered." In Davis v. Hendrix, 59 Mo. App. 444, loc. cit. 448, it is said: In the first place, it may be observed that the contract nowhere expressly says the services are to be joint. Nor were the two agents required to perform the same services. Bacon was to be the general manager of the surety and burglary departments, but he was to actively engage in the solicitation of business. Ridge had supervisory control of all departments. Bacon's duties were specified and restricted and his authority limited, while Ridge's duties were those of a general agent. Bacon was on a fixed salary of $2,000 per year, of which plaintiff was to pay $1,200 and defendant $800. Ridge was to receive as his compensation 25 per cent. commission on all business written by the agency, including that in Bacon's department. Ridge had authority to employ an active solicitor to be kept in the field, in the interest of himself and plaintiff, and he was ob-contract discloses that as to any part of it there ligated to pay one half of this solicitor's salary and plaintiff the other half. Ridge was to furnish office accommodations for the agency and telephone service and pay one half of the cost of all telegrams to the home office of the company, and it was to pay the other half. Ridge had authority to extend credit; Bacon had no such authority, unless permission in each instance was first obtained from Ridge, and if he extended credit without "In construing contracts, isolated phrases or sentences should not be allowed to govern or subvert the evident intention of the parties as shown by the contract as a whole. If the whole is imposed upon the obligors distinct and several ourselves, will not make the contract joint.' 1 duties, 'words of plurality, such as, We bind Addison, Cont., 86. 'In the construction of contracts, the court will look at all the circumstanc es of the case, the nature of the property, the occupation and relation of the parties, the usages of the place and of the business to which the contract relates, and ascertain, by reasonable inference, what the parties must have understood and mutually expected at the time of the making of the contract, and then adopt that construction which will best and most nearly car understood it.'" See, also, Riffe v. Proctor, 99 business than with only one. He closed by Mo. App. 601, loc. cit. 612, 74 S. W. 409. In Cross v. Williams, 72 Mo. 577, loc. cit. 581, it is said: "That where the interest in the subject-matter secured by a covenant is several, although the terms will naturally bear a joint interpretation, yet if they do not exclude the inference of being intended to be several, they shall be so taken; they shall have a several construction put upon them. *** Especially the entire ness of the consideration is of great importance in determining whether the promise be joint or several; for if it moves from many persons jointly, the promise of repayment is joint, but if from many persons, but from each severally, then it is several." See, also, Bowman v. Branson, 111 Mo. 343, 19 S. W. 634. In Sharp v. Conkling, 16 Vt. 355, loc. cit. 359, it is said: "Where the interest in the subject-matter se cured by covenant is several, although the terms of the covenant will more naturally bear a joint interpretation, yet if they do not exclude the inference of being intended to be several, they 'shall be so taken'; they shall have a several construction put upon them. This is just and sensible, and a rule by which this court are willing to abide." See, also, Shipman v. Straitsville, etc., Co., 158 U. S. 356, 15 Sup. Ct. 886, 39 L. Ed. 1015; Wills v. Cutler, 61 N. H. 405; Albers Com. Co. v. Spencer, 236 Mo. 608, loc. cit. 642, 139 S. W. 321, Ann. Cas. 1912D, 705. It would seem, therefore, that although the contract in question is tripartite in form, yet when its provisions are all considered it created two agents, but they were not joint agents, rendering joint services, but their duties, interests, responsibilities, and obligations were separate and distinct. There is only one place in the contract where Ridge is required to suffer for the acts of Bacon, and that is when Bacon extends credit by authority of Ridge. In other words, in the one instance where Ridge's rights are affected by Bacon's act, it is expressly stipulated that such act must be one that Ridge sanctioned and approved. It would seem that his express stipulation would exclude by implication the idea that Ridge's rights could be destroyed by a wrongful act of Bacon not participated in nor consented to by Ridge. This construction of the contract is supported when the construction placed upon it by the parties themselves is examined. When Bacon made his contract with the other company, Ridge on March 12, 1910, wrote plaintiff, telling the company of it and expressing his vexation thereat, but saying he could not see Bacon's services would be worth "any such money to us" as the salary the other company was going to pay him. Ridge also stated in this letter that he had made arrangements with another man to take his place on a salary of $1,000 per year if it met with the company's approval. He also said in this letter he had in view the engagement of another man, and that if he could get two men for the same money they had thereto asking the company its approval of what he proposed to do, as he did not want to obligate himself to these new men without the company's approval. To this the company answered, giving its entire approval. Nothing whatever was said about the agency being joint, or that the withdrawal of Bacon terminated the contract as to Ridge, but, on the contrary, the contract was treated just as defendant insists it should be considered, a contract with him for a general agency, with an agreement therein for the employment of a salaried employé under him, the expense of which was to be borne by plain tiff and defendant. The evidence of what took place thereafter bears out this view of the contract. Ridge thereupon employed the new man pursuant to the approval of the company, and the business continued as usual until an agent of the company appeared in Kansas City and attempted to terminate the agency on the ground that Ridge was trying to sell the agency, and was intending to give up the agency and go to Europe. Ridge was much surprised, and assured him there was nothing to it, to which the agent replied he thought defendant was right about that, but to telegraph the president of the company and explain it to him. Ridge did so on April 5, 1910, and received a telegram from the president, insisting that Ridge had tried to sell the agency, and that if he contemplated going to Europe and be away from the office during the summer, "you should relieve us of any embarrassment and resign the agency." Two days later the special agent returned to Ridge's office and renewed his demand that Ridge surrender the agency, and told Ridge that the company was going to establish a department in Kansas City; that is, a branch of the company co-ordinate with the home office. Ridge refused to surrender the agency or terminate it unless he was compensated in some way for the loss he would sustain, and evidently so informed the president of the company, for on April 8th the latter, relying to a telegram of Ridge's dated the 6th, told him the company could not consider paying him anything, as the contract "was terminated March 25th by the retirement of George O. Bacon." This, notwithstanding the fact that the president had, on April 5th, requested him to resign the agency. Again on April 16, 1910, plaintiff wrote defendant: "We propose to open our own office in Kansas City through which we intend to handle our own business." And on April 23, 1910, plaintiff formally canceled the agency. There is no dispute over the foregoing facts. We are therefore of the opinion that the contract was several and not joint, and that the retirement of Bacon did not terminate Ridge's contract. Hence this fact cannot be relied upon as a |