any other contract. 14 R. C. L. 1021. Such a [appellant desires to challenge the correctrepresentation may be designated as a misrep-ness of any of the instructions given, he resentation. A misrepresentation, as that term must see that all of the instructions given is used in * * insurance policies, is the are in the record; but it is only necessary statement of something as a fact which is unthat he set out in his brief those that he true in fact, and which the assured states, If there are other knowing it to be untrue, with an intent to de- claims are erroneous. ceive the underwriter, or which he states posi-instructions given or tendered by appellant, tively as true, without knowing it to be true, which overcome the alleged error, it is the and which has a tendency to mislead; such fact duty and privilege of the appellee to call. in either case being material to the risk. Dan- our attention to them and to set them out iels v. Hudson, etc., Co., 66 Mass. (12 Cush.) in his brief. 416, 59 Am. Dec. 192; Clark v. Union, etc.,

Co., 40 N. H. 333, 77 Am. Dec. 721; 14 R. C. L. 1021. Such a misrepresentation has the force and effect of a positive fraud."

If this be true in cases where the statements are to be treated as representations, there is certainly more reason for so holding in a case like the present, where the contract

makes them warranties.

[9] Answers to questions propounded by an insurance company in an application for

insurance will not be construed as war

ranties, unless they are clearly shown by
the form of the contract to have been so in-
tended by the parties. But the parties have
a right to make them warranties if they so
desire, and when the contract so provides
they must be literally true, or the insurance
is voidable. A reading of the policy now
under consideration and the application
which is made a part of the policy leaves no
doubt as to the intention of the parties.
The statement, "I hereby expressly war-
rant * *
that my application to said
Monarch Life Indemnity Company and the
statements and warranties contained in said
application,
medical examination,
and health certificate made by me to said
Monarch Life Indemnity Company are and
were true when made," is as explicit as any
language can make it, and makes it clear
that a warranty was intended.

* ** *

The appellant's answer was sufficient, and it was therefore error to overrule the demurrer to the fourth paragraph of reply.

We have examined the instructions about

which complaint is made. There was no error in the giving of any of them.

[11] The appellant contends that it tendered instructions numbered from 1 to 19, and that the court erred in refusing to give certain of them. The appellee calls our attention to the fact that the record discloses that the bill of exceptions shows that appellants tendered instructions numbered 1 to 20, and that the record fails to show which were given and which refused. We have examined the bill of exceptions, and are of the opinion that appellee's point is well taken, and that no question is properly presented on the refusal of the court to give the instructions tendered.

The appellant also contends that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. The undisputed evidence shows that in 1911, and prior to the time when the insured applied to the Monarch Company for insurance, he had ap plied to the Hartford Life Insurance Company and also to the New York Mutual Life Insurance Company, and that both of said companies had refused him insurance because of the condition of his health; that on September 21, 1911, he applied to the Monarch Company for insurance and submitted to a medical examination, in which he stated that he had never been refused insurance by any company; that his said statement was false; that he knew it was false; that he signed and presented his ap[10] The next assignment of error relates plication to the appellant company as alto the overruling of the motion for a new leged in the answer, wherein he warranted trial. It is claimed that the court erred in that all the statements made by him in his giving instructions Nos. 8 and 18, given at application and medical examination to the the request of the appellee, and No. 3 given Monarch Company were true; that the apby the court on its own motion. The appel-pellant, when it issued the policy sued upon, lee calls our attention to the fact that the did not know that he had been refused inappellant has not set out all the instruc-surance; that it relied on the truthfulness tions given, and insists that it is the duty of of his statements, and did not learn of the the court to refuse to consider any question as to whether or not there is error in giving or refusing said instructions, and cites Chicago R. R. Co. v. Williams, 168 Ind. 276, 79 N. E. 442, and Ellison v. Ryan, 43 Ind. App. 610, 87 N. E. 244, in support of that contention. The rule was formerly as stated by appellee, but since the decision in the case of Simplex, etc., v. Great Western, etc., Co., 173 Ind. 1, 88 N. E. 682, the rule has been otherwise. The rule now is that, when an

untruthfulness of his statement until August 10, 1914, when it elected to rescind the insurance contract, and, as we have heretofore stated, mailed a check to appellee for the amount of premiums paid to appellant, and afterwards tendered her a sufficient amount of money to pay such premiums, interest, and costs, and afterwards paid the same into court for the use of appellee; that the insured died April 30, 1914; that proof of death was received by appellant May 8, 1914;

that this proof of death consisted of an af- [in making payment. The appellant had emfidavit made by appellee in which she gave ployed the Hooper Holmes Bureau to investithe cause of death as "chronic nephritis" gate the facts, and on the 14th of July re(which is a disease of the kidneys); that she ceived a letter to the effect that the bureau did not know how long the insured had had had information to the effect that the inthis disease, and that Charles N. Brown had sured was in bad health when he applied for been the attending physician of the deceas- the insurance and that he had been rejected ed for the last five years. by two different companies. July 16th apThe affidavit of Dr. Brown as the attend- pellant wrote to appellee to the effect that it ing physician was also made a part of the had learned that her husband had been proof of death. His affidavit, dated May 5, treated by Drs. Davis, Holliday, and Green1914, stated that he had attended the de- leaf during the past three years, and inclosceased during his last sickness, and that the ing blank affidavits, with a request that she health of the deceased began to be affected secure an affidavit from each of these phyabout a year before. (The policy in question | sicians, and promising to make prompt diswas issued October 1, 1913.) Dr. Brown also stated in his affidavit that he was first consulted by the insured concerning the disease which caused his death in September or October, 1913, and that, in his opinion, the deceased had been afflicted with such disease one year, and that the final illness was not complicated with or preceded by any other disease. On the 26th day of June, 1914, appellant wrote a letter to appellee, calling her attention to the fact that her affidavit stated the cause of death to be "chronic nephritis," and that the insured's health first began to be affected about 7 or 8 months prior to his death, and asking her to strengthen her memory to the utmost, to indicate more exactly, if possible, when it became known to her or to the insured that he was afflicted with nephritis, and also calling her attention to the statements in the affidavit of Dr. Brown, and also asking her to favor appellant with her knowledge as to the condition of Mr. Couch's health for the last two years, and that she supply appellant with what information she had concerning applications which he had made for insurance in recent years. This letter ended by telling her that, when appellant received her reply, it would act promptly in disposing of her claim.

position of the claim upon receipt of these affidavits. The appellee secured these three affidavits and mailed them to appellant some time in July. Appellant continued its investigations through the Hooper Holmes Bureau until the 10th of August, 1914, when it wrote to appellee, giving her a full report of the facts disclosed by the investigation, informing her that it elected to rescind and cancel the policy, and inclosing her a check for the premiums paid to appellant. It also appears from the undisputed evidence that, after appellee received the letter of July 16th, she secured the three affidavits called for; that her expenses in securing them were $25, not including her personal expenses.

[12] The claim of appellee that the appellant ought to be estopped is based upon the fact that, after it received the letter from the investigating bureau on July 14th, it called upon appellee for the affidavits of the three physicians, which she secured, and which cost her $25. The claim of appellee that appellant should be estopped cannot be upheld. When appellant requested that appellee secure these affidavits, it informed her and her attorney that if, upon full investigation, her claim was found to be valid, it would be paid without delay, but if it was determined otherwise, she would be frankly informed of the facts and the reasons why it would not be paid. Appellee and her attorney both knew that appellant was investigating the facts connected with the application for insurance, and that the validity of the policy would probably be contested. Appellee is therefore in no position to claim that she was misled by appellant.

An insurance company is estopped to declare a forfeiture of an insurance contract, if, with full knowledge of the facts, it states to the beneficiary, or causes the beneficiary reasonably to believe, that the in

On July 8, 1914, appellant again wrote to appellee, saying that no reply had been received to the letter of June 26th, requesting further information, and insisting that appellee give the information requested before appellant would make any definite disposition of the death claim, notwithstanding the threats made by her attorney to bring suit in case the claim was not paid before the 15th of July. On July 16th, appellant wrote a letter to J. L. Crouse, attorney for the appellee, acknowledging the receipt of his letter of the 11th instant, inclosing proofs of loss, and stating that additional affida-surance company does not intend to stand vits which it deemed necessary were that day being mailed to appellee; that if, after a thorough review of all the available proofs, the appellant felt compelled to deny payment of the claim, it would frankly give him the reasons for so doing, and that if, on the other hand, it found that the proofs supported the claim, no time would be lost

upon the right of forfeiture, and with such representations and actions causes the beneficiary to do any act entailing expense and trouble, upon the belief that the company had waived the right of forfeiture. No such state of facts is shown to exist in this case. There is no evidence that appellee was misled by anything that appellant did, or that

2. INJUNCTION STRAINING FORCE.

150 TEMPORARY REORDER-EXPIRATION OF OWN

5. EVIDENCE 266-TRIAL 54(1)—TESTIMONY AS TO DECLARATIONS-LIMITATION TO PURPOSE OF IMPEACHMENT.

Declarations and statements of a party made out of court may be proven, not merely to impeach the party, but as substantial proof of the fact in controversy; but, where the particular matter involved in declarations was not in controversy in suit on an injunction bond, but had been disposed of in the injunction proceedings, testimony of witness was properly limited to show statements made by plaintiff out of court in conflict with statements made in court. 6. INJUNCTION 252(4)—INJUNCTION BOND

-MEASURE OF RECOVERY.

In suit against surety on injunction bond given plaintiff tenant when enjoined from cutting or removing wheat, plaintiff was entitled to recover fair market value of wheat when taken by surety's principal, and personal expenses and loss of time necessarily spent in action, together with reasonable attorney fees incurred on account of injunction proceedings.

MCMAHAN, J. This is an action for damages on an injunction bond given by Walter Stigleman as principal and the ap

An order restraining defendant from cut-pellant as surety in an action brought by ting any wheat or removing it from land in liti-Walter Stigleman against the appellee. The gation until notice and further order, it being cause was tried by a jury, and resulted in a ordered that defendant be notified that an ap- judgment being rendered against appellant plication for temporary injunction would be in the sum of $300. heard on a fixed future date, did not fix a definite limit as to when it should expire, so that, no further action having been taken, it did not expire on any date fixed.

The only error assigned and not waived is that the court erred in overruling appellant's motion for a new trial.

Appellant's contentions that the verdict 3. INJUNCTION 235—AccrUAL OF LIABILI- of the jury is not sustained by sufficient eviTY ON BOND "FINAL JUDGMENT"-JUDG-dence and is contrary to law will be considMENT FOR COSTS.

Where there was trial on the issues, evidence was heard, and a general finding made for defendant, whereon it was adjudged that plaintiff pay the costs, such judgment was "final" as disposing of the entire controversy, settling the rights of the parties, and leaving nothing for further consideration, so that defendant could sue on an injunction bond given by plaintiff.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.] 4. EVIDENCE

332(1)—TRANSCRIPT OF PROCEEDINGS-ACTION ON INJUNCTION BOND.

In action against surety on injunction bond, transcript of, proceeding in injunction suit by defendant's principal against plaintiff held admissible.

ered together. The facts are, in substance, as follows: On June 20, 1910, Walter Stigleman filed a complaint against the appellee in the Clinton circuit court, and on the same day he applied to the court for a temporary restraining order, gave the bond sued on, which was signed by appellant as surety, and the court on said day issued a temporary restraining order, restraining the appellee, until notice and further order of the court, from cutting, harvesting, and disposing of certain wheat which was on farm which said Stigleman had recently purchased, and which had been occupied by appellee as tenant.

a

The said order provided that the defendant, appellee, be notified that an applica

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*Rehearing denied.

tion for a temporary injunction in said would appear that the judge who had issued cause would be heard on the 24th day of the temporary restraining order and the June; this order was served on appellee the same day it was issued. No action was taken in said cause on the 24th of June, and nothing further was done until in September when the appellee appeared and filed his

No application was made for a temporary injunction, and nothing was done except to put the cause at issue until December 11th, when the cause was submitted to the court for trial. The court found the facts specially, and, after stating its conclusions of law, rendered a judgment against the ap- declarations and statements of a party made pellee, wherein it was adjudged that the "temporary injunction heretofore granted, entered and issued in this cause be, and the same hereby is, made perpetual." Thus it

Major A. Downing, of Indianapolis, for ap

Quincy A. Myers, Edward E. Gates, and Samuel M. Ralston, all of Indianapolis, for appellee.

troversy in the case now before us. That
controversy was disposed of in the injunc- pellant.
tion proceedings. There was no error in
thus limiting the testimony of the witness.
Complaint is also made that the court
erred in giving instructions Nos. 3, 4, and 5,
tendered by appellee, and in refusing to give
No. 5, tendered by appellant. The objection
made to Nos. 3 and 4 is that there was no
final judgment in the injunction proceed-
Ings. We have held otherwise. These in-
structions were not objectionable.

[6] Instruction No. 5 related to the measure of damages, and told the jury that, in case they found for the appellee, he was entitled to recover the fair market value of the wheat when taken, personal expenses and loss of time necessarily spent in the action, together with such reasonable attorney fees as he may have incurred on account of the injunction proceedings. This is a correct statement of the law.

ENLOE, J. Action by appellee, as relator, upon two bonds, executed by one Denny J. Bush, as principal, and appellant, Equitable Surety Company of St. Louis, Mo., as surety thereon, to secure the due performance by said Bush of his contract for the making of certain improvements in a public highway, in Marion county, Ind.

The cause was tried upon two paragraphs of amended complaint, to each of which a demurrer for want of facts was interposed, and overruled. The only alleged error we are called upon to consider, upon the record before us, is the action of the trial court in overruling the demurrers to the amended paragraphs of complaint. A consideration of the alleged error necessitates a construction of Acts 1911, p. 437 (sections 5901a,. 5901b, Burns' R. S. 1914).

Instruction No. 5 tendered by appellant asked that the jury be instructed that the judgment rendered in the injunction proceedings was not a final judgment. We have held otherwise. There was no error in repeal is clear-cut; the appellant insisting fusing this instruction.

Appellant also contends that the amount of the verdict is excessive, but that contention is also based on the theory that there was no final judgment in the injunction proceedings, and that there could be no recovery for that reason.

The issue between the parties to this ap

that, before suit can be maintained on the bond, the materialman (appellee in this case was such) must have filed his claim therefor with the "agents of the county" within 30 days from the time such materials were furnished, as a prerequisite to his right of suit. Appellees, on the other hand, insist

There was no error in overruling the mo- that the remedy given by the act in question tion for a new trial.

A materialman may recover on a public contractor's bond without complying with Burns' Ann. St. 1914, §§ 5901a-5901c, providing that materialmen must file their claims within 30 days from completion of work "with agent of county," since such act expressly provides it is supplementary to, and does not exclude, other

remedies.

Appeal from Circuit Court, Shelby County; Alonzo Blair, Judge.

Action by the Indiana Fuel Supply Company against the Equitable Surety Company of St. Louis and another. Judgment for plaintiff, and the named defendant appeals. Affirmed.

is cumulative; that the materialman has a choice of remedies; that he may, if he desires, so file his claim with the agents of the county, and obtain his money directly from such source, and without the expense and delay of litigation, or he may, in case his claim is not paid, have his action on the bond.

The third section of the act in question (section 5901c) provides:

"This act shall not be construed as conflicting with any other laws for the protection of labor, subcontractors or materialmen, but is supplemental thereto."

This statute was designed to further protect the parties named therein, as it expressly declares. The construction thereof contended for by the appellant would deprive these persons of rights they theretofore had, and make any right they sought to enforce dependent upon the doing by claimant of a preliminary act, filing his claim within 30 days, etc. Such a construction would turn the act in question into one for the protec tion of bondsmen on contractors' bonds, by having the effect of limiting the liability, and would in no way give additional protection to those who are, by its express terms, made within its provisions. Illinois Surety Co. v. State ex rel., 122 N. E. 30.

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