Reinhard, J.
Appellee sued and recovered judgment against appellant in the court below on a fire insurance policy on certain personal property, situated in the city of Hammond, in this State. At the time this policy was written the agent wrote another on a bouse owned by appellee, in said city of Hammond. The personal property destroyed and covered by the policy in suit was not contained in said house, but in a rented dwelling occupied by her, she having leased her own to others. The policies were written June 18, 1892, but not delivered until August 22, 1892, the agent having held them that long, it is claimed, so as to enable the appellee to procure the money with which to pay the premiums. The policy in suit was for one year, from June 18,1892, and the property was burned January 18,1893. The premium on this policy was $9.00, and on the policy covering the house $12.00. At the time of the delivery of the policies, the appellee paid the agent $10.00 on account of the premiums of both policies. Appellant claims and the agent testified that it was agreed that inasmuch as appellee [207]*207was unable to carry both policies, that the one, on the personal goods should be canceled at once, and that appellee agreed to send it to the agent’s office to be officially canceled, but that .she neglected to do so. The remainder of the premium was never paid, but soon after the fire and after said property had been destroyed, the appellee sept the remaining premium due on both policies to the agent, but he would not receive it, having knowledge of the loss.
The appellee’s version as to the matter of unpaid premiums of the two policies is that the agent credited her for the part still remaining due after the payment of the $10.00, saying at the time that she might pay it whenever she could, or whenever it was convenient for her to do so.
The appellee testified that at the time she paid the agent the $10.00 she told him she wanted the amount applied on the policy on the house, and that he told her she could keep both of the policies and pay the balance whenever she had the money. The appellant’s agent, who took the insurance, testified that the appellee did not pay anything on the policy in suit, but owed the full amount thereon, $9.00. There was no other evidence upon the subject.
It is, therefore, the undisputed evidence that no portion of the premium of the policy in suit had been paid when the policy was delivered, and that $10.00 of the premium was then paid on the two policies, leaving a balance of $11.00 still due, $9.00 of which was payable on the policy in suit. The appellee claims that the agent gave her time to pay this balance as long as she wanted; the agent testifies that no time was given her, but that the policy (on the furniture) was to be canceled. This appears to be the point of dispute between the parties, but it does not seem to us that it is [208]*208material whether the appellant or the appellee is right in this contention.
There was no clause in the policy providing for a forfeiture in case the premium remained unpaid for any certain period, or was not paid in cash. The only I>rovision relating to a forfeiture is that where a note is given for the premium and the same is not paid within thirty days after it becomes due, the policy shall be void until the note is paid, etc. As there was no note given in this case, the above provision cannot be made applicable.
We know of no reason for holding that an insurance company may not sell insurance on a credit. If the company, through its agent, accepted the insurance with the agreement that appellee should have a reasonable time in which to pay the remainder of the premium, the,policy did not become forfeited by reason of the nonpayment of such premium. The unpaid premium then simply became a debt due from the appellee to the appellant, to be collected like any- other debt. There being evidence to sustain appellee’s theory of the transaction, we cannot reverse the judgment on account of a failure of proof on the subject of the payment of the premiums.
The appellant argues that this case is governed by the law as declared in Continental Ins. Co. v. Dorman, 125 Ind. 189. But in that case a note was given for the premium, and the policy expressly provided that in case of failure to pay the note at maturity the policy should be void while the note remained unpaid. It was attempted to show that the note was taken in absolute payment of the premium, and it was held that this was no excuse for failure to pay the note, inasmuch as such an agreement would be in plain controvention of the terms of the written contract and hence void. No such case is here presented.
[209]*209The appellant vigorously assails the jury’s answers to the interrogatories propounded to them, and it must be confessed, they, or some of them, at least, are singularly repugnant to the positive and uncontradicted evidence. Thus it is found by the jury that the appellee paid the premium, or part thereof, on the policy in suit, when it is practically admitted by her that the payment of $10.00 made by her was on the other policy. More remarkable still is the finding that neither the appellee nor her brother for her offered to pay the balance of the premium still due on the two policies to the appellant’s agent at Hammond, Indiana, after the goods had been burned, and that said agent did not refuse to accept the same. On this subject the appellee testified without equivocation that either on the day of the fire or afterwards she sent the money by her brother to appellant’s agent, Knotts, to pay the balance due on both the policies, while Knotts stated in his deposition that appellee’s brother, after the fire, tendered him either $9.00 or $11.00 on these policies, which he refused to receive. There was no testimony in contradiction of this statement. Hence it is difficult to understand just where the jury obtained the testimony upon which they based their answer that no such tender had been made after the fire.
Again, the jury found that the premium for the policy in suit was paid to the appellant by Knotts on or before his final settlement with said appellant. Of this there is no evidence. The fact that Knotts testified that he owed the company nothing did not warrant the jury in finding that he had paid over to the company the premium due from appellee, in the absence of some testimony to that effect.
We do not think, however, that the determination of this case depends in any degree upon the truth or [210]*210falsity of these answers to the interrogatories. If the policy in suit was delivered to the appellee under the agreement that the latter should pay the balance of the premium when it was convenient, or within a reasonable time, it was an agreement which the parties had the power to make, and the policy would not be forfeited in the absence of a clause to that effect in the contract. Hence it would be wholly immaterial whether the appellant received the premium or not, or whether any tender of the balance was made after the fire, or before, for that matter. The answers to the interrogatories are therefore not inconsistent with the general verdict.
We have examined the evidence concerning the question of proof of loss, and our conclusion is that if no such proof was made it was waived by the appellant in denying liability upon other grounds.
There was no error in giving instruction one, two and three, requested by appellee.
We find no reversible error in the overruling of the motion for a new trial.
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Reinhard, J.
Appellee sued and recovered judgment against appellant in the court below on a fire insurance policy on certain personal property, situated in the city of Hammond, in this State. At the time this policy was written the agent wrote another on a bouse owned by appellee, in said city of Hammond. The personal property destroyed and covered by the policy in suit was not contained in said house, but in a rented dwelling occupied by her, she having leased her own to others. The policies were written June 18, 1892, but not delivered until August 22, 1892, the agent having held them that long, it is claimed, so as to enable the appellee to procure the money with which to pay the premiums. The policy in suit was for one year, from June 18,1892, and the property was burned January 18,1893. The premium on this policy was $9.00, and on the policy covering the house $12.00. At the time of the delivery of the policies, the appellee paid the agent $10.00 on account of the premiums of both policies. Appellant claims and the agent testified that it was agreed that inasmuch as appellee [207]*207was unable to carry both policies, that the one, on the personal goods should be canceled at once, and that appellee agreed to send it to the agent’s office to be officially canceled, but that .she neglected to do so. The remainder of the premium was never paid, but soon after the fire and after said property had been destroyed, the appellee sept the remaining premium due on both policies to the agent, but he would not receive it, having knowledge of the loss.
The appellee’s version as to the matter of unpaid premiums of the two policies is that the agent credited her for the part still remaining due after the payment of the $10.00, saying at the time that she might pay it whenever she could, or whenever it was convenient for her to do so.
The appellee testified that at the time she paid the agent the $10.00 she told him she wanted the amount applied on the policy on the house, and that he told her she could keep both of the policies and pay the balance whenever she had the money. The appellant’s agent, who took the insurance, testified that the appellee did not pay anything on the policy in suit, but owed the full amount thereon, $9.00. There was no other evidence upon the subject.
It is, therefore, the undisputed evidence that no portion of the premium of the policy in suit had been paid when the policy was delivered, and that $10.00 of the premium was then paid on the two policies, leaving a balance of $11.00 still due, $9.00 of which was payable on the policy in suit. The appellee claims that the agent gave her time to pay this balance as long as she wanted; the agent testifies that no time was given her, but that the policy (on the furniture) was to be canceled. This appears to be the point of dispute between the parties, but it does not seem to us that it is [208]*208material whether the appellant or the appellee is right in this contention.
There was no clause in the policy providing for a forfeiture in case the premium remained unpaid for any certain period, or was not paid in cash. The only I>rovision relating to a forfeiture is that where a note is given for the premium and the same is not paid within thirty days after it becomes due, the policy shall be void until the note is paid, etc. As there was no note given in this case, the above provision cannot be made applicable.
We know of no reason for holding that an insurance company may not sell insurance on a credit. If the company, through its agent, accepted the insurance with the agreement that appellee should have a reasonable time in which to pay the remainder of the premium, the,policy did not become forfeited by reason of the nonpayment of such premium. The unpaid premium then simply became a debt due from the appellee to the appellant, to be collected like any- other debt. There being evidence to sustain appellee’s theory of the transaction, we cannot reverse the judgment on account of a failure of proof on the subject of the payment of the premiums.
The appellant argues that this case is governed by the law as declared in Continental Ins. Co. v. Dorman, 125 Ind. 189. But in that case a note was given for the premium, and the policy expressly provided that in case of failure to pay the note at maturity the policy should be void while the note remained unpaid. It was attempted to show that the note was taken in absolute payment of the premium, and it was held that this was no excuse for failure to pay the note, inasmuch as such an agreement would be in plain controvention of the terms of the written contract and hence void. No such case is here presented.
[209]*209The appellant vigorously assails the jury’s answers to the interrogatories propounded to them, and it must be confessed, they, or some of them, at least, are singularly repugnant to the positive and uncontradicted evidence. Thus it is found by the jury that the appellee paid the premium, or part thereof, on the policy in suit, when it is practically admitted by her that the payment of $10.00 made by her was on the other policy. More remarkable still is the finding that neither the appellee nor her brother for her offered to pay the balance of the premium still due on the two policies to the appellant’s agent at Hammond, Indiana, after the goods had been burned, and that said agent did not refuse to accept the same. On this subject the appellee testified without equivocation that either on the day of the fire or afterwards she sent the money by her brother to appellant’s agent, Knotts, to pay the balance due on both the policies, while Knotts stated in his deposition that appellee’s brother, after the fire, tendered him either $9.00 or $11.00 on these policies, which he refused to receive. There was no testimony in contradiction of this statement. Hence it is difficult to understand just where the jury obtained the testimony upon which they based their answer that no such tender had been made after the fire.
Again, the jury found that the premium for the policy in suit was paid to the appellant by Knotts on or before his final settlement with said appellant. Of this there is no evidence. The fact that Knotts testified that he owed the company nothing did not warrant the jury in finding that he had paid over to the company the premium due from appellee, in the absence of some testimony to that effect.
We do not think, however, that the determination of this case depends in any degree upon the truth or [210]*210falsity of these answers to the interrogatories. If the policy in suit was delivered to the appellee under the agreement that the latter should pay the balance of the premium when it was convenient, or within a reasonable time, it was an agreement which the parties had the power to make, and the policy would not be forfeited in the absence of a clause to that effect in the contract. Hence it would be wholly immaterial whether the appellant received the premium or not, or whether any tender of the balance was made after the fire, or before, for that matter. The answers to the interrogatories are therefore not inconsistent with the general verdict.
We have examined the evidence concerning the question of proof of loss, and our conclusion is that if no such proof was made it was waived by the appellant in denying liability upon other grounds.
There was no error in giving instruction one, two and three, requested by appellee.
We find no reversible error in the overruling of the motion for a new trial.
Error is predicated upon the overruling of the appellant’s demurrer to the complaint. The grounds of objection are (1) that the court has not jurisdiction of the person of the defendant, or of the subject-matter of the action, and (2) that the complaint does not state facts sufficient to constitute a cause of action.
It is alleged in the complaint that the appellant was ■a foreign corporation, doing business in this State in 1892. The policy filed with the complaint shows that the property insured and burned was situated in the city of Hammond, State of Indiana, and it appears from the pleading under consideration that the agent who issued the policy, as well as the insured, resided in said city. From these facts it is contended by appellant’s counsel that the action is local and can only [211]*211be brought in the county in which the city of Hammond is located, and not in the county of Marshall, where this action was commenced.
Section 4915, Burns’ R. S. 1894 (8765, E. S. 1881), prescribes the terms upon which foreign insurance companies may transact business in this State. It is argued that the compliance with this section of the statute, which must be presumed, fixes the legal residence of such company in the county in which this particular agency is located, and that suits must be brought against the company, if at all, in such county.
Section 313, Burns’ E. S. 1894, authorizes the bringing of any action against a corporation in any county in which it has an office for the transaction of business. Evansville, etc., R. R. Co. v. Spellbring, 1 Ind. App. 167. It is averred in the complaint that there was at the time of the bringing of this action a duly authorized and acting agent in Marshall county, where the action was instituted.
By section 4916, E. S. 1894, process may be served upon the agent of any foreign insurance company in any county in the State where consent has been entered of record. But conceding without deciding that under the circumstances of the present case the action must be instituted in the county in which the insurance was contracted for and the loss occurred, if at the time of the suit there be an agent in such county, we do not think it appears anywhere that there was such agency in said county at the time of the commencement of this action. If the appellant desired to present the question of jurisdiction it should have filed its proper plea averring such facts as are necessary to raise that issue.
It is further insisted that the complaint is insufficient because it fails to aver that the appellee paid, or agreed to pay anything for the policy. The complaint [212]*212does aver, however, that the policy was executed and delivered to the appellee in consideration of the sum of |9.00 as a premium. It is immaterial, as we have already shown, whether the premium was paid in cash or whether a credit was given for the same. There is no stipulation in the policy that the contract shall be void upon failure to pay the premium in cash or to give a note for the same. Besides, there is an averment that all the conditions in said contract have been fulfilled, by the appellee.
The demurrer to the complaint was correctly overruled.
The overruling of the appellant’s demurrer to the second paragraph of appellee’s reply is assigned as error.
Each of the paragraphs to which the reply was addressed avers that the delivery of the policy and the extension given thereon was without consideration. The reply demurred to sets forth the facts relied upon in full and alleges that a certain amount of money was paid upon the two policies mentioned, and time was given for the balance. It also avers that more than enough was paid in money to cover the premium on the policy in suit. This reply is not a departure from the complaint. The court did not err in overruling the demurrer to the pleading under the circumstances.
We find no reversible error.
The judgment is, therefore, affirmed.