Johnson v. Gibson. the appellee individually. The case comes to us upon the answer, and upon the answer we decide it. The answer states a complete defence. It clearly shows that the mortgage was executed as the mortgage of the corporation, upon property which the corporation owned; that it was accepted as the mortgage of the corporation; that appellant paid the money to a corporate officer; that it was used with his knowledge for corporate purposes; that, with full knowledge of all the facts he sought and obtained against the corporation, not merely a decree of foreclosure, but also a personal judgment upon the promise embodied in the mortgage. The appellant has, in the clearest and most emphatic manner, given a construction to the contract. He can not "blow both hot and cold with reference to the same transaction." The case falls within the rule sanctioned in Aimen v. Hardin, 60 Ind. 119. It was there said by WORDEN, J: "The note would seem to have been the note of the company, and not that of the directors who signed it. The promise was made by them as directors of the company, and not as individuals. Pearse v. Welborn, 42 Ind. 331. See, also, Hays v. Crutcher, 54 Ind. 260. But, if the point were doubtful, the plaintiff herself has put a practical construction upon the note, by treating it as the obligation of the corporation, and not that of the individuals who signed it as directors. She has sued the corporation upon it, and obtained judgment. It is said, in a late work by a well-known legal writer, that, ‘In a doubtful case, the interpretation which the parties themselves have, by their conduct, practically given their contract will prevail.' Bishop Con., section 598." The doctrine declared in the case from which we have quoted is one often declared and enforced. Morris v. Thomas, 57 Ind. 316; Bell's Adm'x v. Golding, 27 Ind. 173; Crabb v. Atwood, 10 Ind. 322; Chicago v. Sheldon, 9 Wal. 50. In the mortgage on which appellant's case is founded, there is but one mortgagor and one promise. In the most solemn manner known to the law, he has obtained a judgment that the mortgage is that of the corporation, and he ought not now Cates v. Bales et al. to be allowed to insist upon a different construction of the contract. The construction which the court gave the contract at his solicitation was that which he had himself given it, and he is not in a situation to aver that it was not the correct one. It is urged in a supplemental brief filed by the appellant, that the answer does not show that there was any such corporation as the Brandywine, Boggstown and Sugar Creek Extension Turnpike Company. This question is really disposed of by what has already been said. The appellant has recognized the existence of the corporation and has treated it as having executed the very contract upon which he now sues, and can not now deny its existence. Baker v. Neff, 73 Ind. 68. But, more than this, the answer shows the use of a corporate name, the existence of corporate organization, and the exercise of corporate functions in which the appellant as a corporate officer participated. This abundantly shows corporate existence. Indeed, the rule is that where the pleading shows the name to be such as imports a corporation, it will be sufficient. Indianapolis Sun Co. v. Horrell, 53 Ind. 527; Mackenzie v. The Board, etc., 72 Ind. 189. Judgment affirmed. No. 8133. CATES v. BALES ET AL. VENDOR AND PURCHASER.-Contract.-Rescission.-Fraud.-A purchaser of Cates v. Bales et al. SAME. Consideration.—Copyright.-Insurance Plan.-A court can not say that the transfer of an instrument for the organization of insurance companies is of no value, as the vendor of such property, before publication, if not copyrighted, is entitled to control its disposition. SAME.-Instruction.-An instruction, that the transfer of a plan for the organization of insurance companies is of no value because there is no law in this State authorizing the formation of such companies, is erroneous. INSTRUCTION.-Evidence.-Issues.-Practice.-Supreme Court.-An instruction, which is not applicable to any evidence admissible under the issues, is erroneous, and will reverse the case, although the evidence is not in the record. From the Randolph Circuit Court. E. L. Watson, J. S. Engle and L. W. Study, for appellant. A. O. Marsh, A. Gullett and W. A. Thompson, for appellees. BEST, C.-This action was brought by the appellant against the appellees, upon a note of $125, made by them to one Seth Symons and by him endorsed to the appellant. Each defendant filed a separate answer of two paragraphs, and both united in an answer of three paragraphs. Demurrers for want of facts were overruled to the second and third paragraphs of the joint answer, and a reply in denial was filed. The issues were submitted to a jury and a verdict returned for the appellees. A motion for a new trial was overruled, and a judgment rendered upon the verdict. The appellant appeals, and assigns as error that the court erred in overruling the demurrers to the second and third paragraphs of the answer, and in overruling the motion for a new trial. para The appellant, in his brief, concedes that the second graph of the answer is good, and this will not be noticed. The third averred in substance, that the payee of the note sued upon was engaged in organizing an insurance company in Randolph county, Indiana, during the month of October, 1876, under the following agreement and plan, viz. : "We, the undersigned, agree to form ourselves into a mutual insurance association, for the protection of our property against damages by fire and lightning, to be known as The Cates v. Bales et al. county, and of Farmers' Insurance Association of · State We bind ourselves and our property to pay five dollars as an initiation fee, to defray the expenses of getting up this organization; and we bind ourselves and our property to be assessed when a fire occurs to any amount not to exceed the amount we each have insured, the per cent. to pay the damages of any fire that may accidentally occur and the expenses of such notification by the actuary. No money to be paid except the initiation fee until a fire takes place, then we agree to pay the assessment within thirty days after the fire, into the hands of the actuary of the association, who shall pay said assessment to the persons damaged. The initiation fee to be paid to the person who gets up the organization. When any member of the association shall dispose of his property by sale or otherwise, he shall notify the actuary of the fact. He will be held responsible for the assessment of any fire that may occur until such notification has been received by the actuary." That under said plan the following agreement was written, viz.: "Each of us, whose names are subscribed below, agree to be one of one hundred or more freeholders, in Randolph county, and State of Indiana, to form an association upon the above plan and for the above purpose, under the specifications named therein as above; provided, however, that the signature shall in no case be binding on us if the above number is not obtained in our county to effect an organization. "Names. Postoffice address." That said Symons was the agent of said Mendinhall, and, to induce the makers to execute the note sued upon, represented to them that said Mendinhall had obtained a copyright of the agreement and plan above set out; that he had the exclusive right to use such plan in organizing insurance companies in Randolph county, Indiana; that he had already obtained the signatures of more than one hundred freeholders of said county to said agreement; that they had met, organized as a corporation, and were then ready to do business; that, if Cates v. Bales et al. the appellees would purchase said right to said county, they would have the exclusive right to organize such companies therein; that they could easily obtain additional names to such agreement, and would be entitled to five dollars for each additional name obtained. It was further averred that they were ignorant of the insurance business and of the manner of organizing such companies, but, relying upon the representations so made by said Symons, they purchased said right, which was duly transferred to them by written assignment, and they executed said note "in consideration of the sale to them of said right to said copyright in Randolph county, Indiana, and the right to organize said insurance companies in said county on said plan, and receive five dollars for each member thereof, and the right to procure and add additional names * * * to said association, and to receive five dollars for each member so added, and for no other consideration whatever, when, in truth and in fact, said Symons had not procured the names of one hundred freeholders of said county as members of said association, and said association was not a corporation, and is not now and was not ready for business, and these defendants did not have the exclusive right to use said form of agreement and organize insurance companies on said plan in Randolph county, and receive five dollars initiation fee therefor from each person who became a member thereof, and they did not have the right to receive five dollars for each member added to the association, which said Symons represented organized." It will be observed that there is no averment that the appellees returned, or offered to return, the right assigned, or that it was of no value, and for that reason it is insisted that the paragraph in question is insufficient. The purchaser of property, who has been induced to make the purchase by fraud, has an election of remedies. He may retain the property, and, when sued for the purchase-money, may set up the fraud as a defence. If the injury sustained by the purchaser be equal to or greater than the purchase-money, he may de |