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STATE OF INDIANA,
AT INDIANAPOLIS, MAY TERM, 1882, IN THE SIXTY-SIXTH

YEAR OF THE STATE.

No. 10,178.

BOARD OF STATE-HOUSE COMMISSIONERS v. WHITTAKER.

STATE-HOUSE.—Statute Construed.— The new State-House is, by the act of

1877 (Acts 1877, Spec. Sess., p. 68), required not to cost for its construc-
tion more than $2,000,000, but this does not include incidental expenses,
such as salaries, travelling expenses of the board and rents; and the
board has authority to expend that sum for construction alone.
From the Marion Circuit Court.
D. P. Baldwin, Attorney General, for appellant.
J. L. Griffith and A. F. Potts, for appellee.

WORDEN, C. J.—This was a complaint by the appellee against the appellants, to enjoin the latter from expending more than the sum of $2,000,000 in the construction of the new State-House, including all incidental expenses.

The complaint charges, among other things, that the defendants “are about to make certain changes, alterations and modifications in the construction of said State-House, which will increase the cost of the same beyond the said $2,000,000

Board of State-House Commissioners r. Whittaker.

limit, provided the said defendants are required to pay out of said $2,000,000 all incidental expenses connected with the erection and construction of said State-House building, such as the architect's salary, the superintendent's salary, the travelling expenses of the board, etc.; which items of expense your petitioner respectfully contends said commissioners are obliged to pay out of said $2,000,000 appropriation; that said contemplated changes, alterations and modifications consist in part in the substitution of marble wainscoting for wainscoting of Indiana wood and stone, as originally arranged and contracted for, at an additional cost of $50,000; that the changing of the main staircases in said State-House building, from iron to marble, will increase the cost of the same at least $20,000; that the said defendants have in contemplation, and are about to make, a number of other changes in the construction of said building, which, in connection with the changes already detailed herein, and under the construction of said law contended for by this petitioner, will materially increase the cost of said State House building beyond the said $2,000,000 limit. Your petitioner further charges that said defendants, unless restrained by the order of this court, will proceed to make the above indicated changes, alterations and modifications,” etc. The defendants answered, “That the alleged changes, to

, gether with the original contract price of the new State-House, exclusive of incidental expenses, will not exceed $2,000,000; but if the incidental charges (expenses), such as the salaries of the board, their travelling expenses, and other incidental expenses named in the plaintiff's complaint, are taken from the $2,000,000, the total cost will exceed $2,000,000, and said changes and improvements can not be made. Wherefore," etc.

A demurrer for want of sufficient facts was sustained to this answer, and there was judgment enjoining the defendants from expending more than two million dollars in the construction of the building, including salaries, travelling ex

Board of State-House Commissioners i'. Whittaker.

penses, commissions of architects, and every other expense named in the plaintiff's complaint connected with the building of said new State-House. We are of opinion that the decision below was wrong,

and based upon a wrong construction of the statute providing for the erection of a State-House. Acts 1877, Spec. Sess., p. 68.

In the case of Williams v. Mansur, 70 Ind. 41, we held that the rent of a building for the use of some of the officers of State, the State-House commissioners being required to furnish the building for the use of such officers, was payable out of the fund designated the “New State-House Fund;

” but that the sum so paid constituted no part of the $2,000,000 which might be expended in the construction of the new State-House. There is, however, the following dictum in that case, which was not necessary to the decision of the cause and

upon
which

we may suppose the court below acted. We said: “The sum of $2,000,000 was doubtless intended to cover everything pertaining to the construction of the new State-House, including salaries of commissioners, secretary to the board, etc.” This proposition was unadvisedly embodied in the opinion with a view to point out a distinction between the rent then in question, and expenses more nearly connected with the construction of the building, the question concerning the rent being the only one involved in the case.

Upon a more careful consideration of the various provisions of the statute, we are of opinion that it was the legislative intention, that the sum of $2,000,000 might be expended in the construction of the new State-House; and that, in addition thereto, all incidental expenses, such as salaries and travelling expenses of the board, compensation of architect, secretary and superintendent, rents, etc., may be paid out of the fund denominated the “New State-House Fund," but that these expenses are not to be deducted from the $2,000,000 which may be expended in what may be strictly called the construction of the building.

Willcuts v. The Northwestern Mutual Life Insurance Company.

The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.

81 300 124 512 125 86 125 195

81 300 130

No. 8649.

81 300 132

81 300 131 685 136 684 81300 144 451

WILLCUTS v. THE NORTHWESTERN MUTUAL LIFE INSUR

ANCE COMPANY.

DEMURRER TO EVIDENCE. Practice.- A demurrer to the evidence admits

81 300 159 675

81 300 163 393

81 171

300 414

all facts which the evidence tends to prove, and all such inferences as can be reasonably drawn therefrom, but forced and unreasonable infer

ences are not admitted. SAME.— Effect of.—The effect of a demurrer to the evidence is to concede

the truth of all the facts of which there is any evidence against the de. murring party, and to prevent him from insisting upon the benefit of

evidence in his favor, if there is a conflict in the evidence. LIFE INSURANCE.- Provision Forfeiting Policy for Non-Payment of Premium.

Where a policy expressly and fully provides that a failure to pay premiums at the times therein stipulated shall cause a forfeiture, the failure to pay as stipulated will, unless some excuse or waiver is shown,

work a forfeiture of the policy. SAME.- Right to Recover Proportionate Part of Insurance on Partial Payment of

Premium.- Where the policy expressly provides that a failure to pay premiums at the times stipulated shall cause a forfeiture, the insured is not entitled because of payment of part of the premium to recover a proportionate amount of the policy. In such a case the rule that where one does work under a special contract, but does not perform the entire contract, he may recover upon the quantum valebat, has no application,

for such a contract of insurance is an indivisible one. SAME.—Custom as to Payment of Premium.-A custom, that a payment of the

premium may be made in a different manner from that provided in the policy, can not, even upon a demurrer to the evidence, be inferred from a single act. The fact that the insurance company in one instance allowed credit to the insured for a claim for services, and accepted the balance of the premium in money, does not warrant the inference of a

custom to accept pay in services. SAME.— Policy. - Conditions. - Covenants.- Where there is a full and valid

express covenant or condition in a policy of insurance, there can be no implied one, respecting the same subject.

Willcuts v. The Northwestern Mutual Life Insurance Company.

a

SAME.- Modification of Policy by New Purol Contract.-A policy may be mod

ified by a new and distinct parol contract. SAME.— Member of Mutual Insurance Company.—The fact that the insured

becomes a member of a mutual life insurance company does not prevent a lapse of his policy and a termination of liability upon it by reason of his failure to perform the conditions required by the terms of the policy to keep it in force. The stipulations of the contract and its construction are none the less binding, because made between the corpora

tion and a member. SAME.- Waiver of Condition in Policy. Power of General Agent.--A general

agent of a foreign insurance company, possessing competent authority, may waive the condition in the policy that the premium should be paid in money. A mere local agent could not. (As to what will constitute

such waiver see opinion p. 309.) SAME.- Payment of Purt Premium.-An insured member of a mutual life

insurance company is not entitled to a proportionate part of the amount of his policy of insurance, when only a part of the premium is paid, in contravention of the conditions of the policy, that if not paid on a cer

tain day it should cease. SAME.— Tender of Premium.-An insurance company, by demanding more

than it is entitled to receive, and notifying the insured that nothing but a compliance therewith will be deemed performance, will excuse the insured from tendering the premium; but a notice requesting payment of a premium, calling attention to the conditions of the policy, etc., can not be construed as intended to mean that the company repudiated an agreement to receive as part payment of the premium a bill for services of the insured, and excuse him from the payment of the balance of the

premium, in accordance with the terms of the policy. SAME.-- Construction of Policy.—Where parties have, by their own acts under

the policy, placed a construction upon a policy of insurance, the courts will carry that construction into effect.

From the Grant Circuit Court.

F. M. Finch, J. A. Finch, G. W. Harrey, L. D. Baldwin and — Baldwin, for appellant.

T. A. Hendricks, C. Baker, A. W. Hendricks, O. B. Hord, I. Van Devanter and J. W. Lacey, for appellee.

ELLIOTT, J.—The complaint of the appellant is in three paragraphs. The first alleges that the appellee issued a policy of insurance upon the life of Leander E. Willcuts, the appellant's husband; that, at and prior to the time the policy was issued, the insured was appellee's examining physician for

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