The plaintiff brought this action to recover the principal and interest of a note executed by the defendants and payable to him for the sum of $675 dated April 19, 1898, and due in twelve months after date. The answer admits the execution of the note but sets up in defense the following facts, viz.: That the defendants had assigned to the plaintiff a certain policy of insurance issued to the defendants by the Town Mutual Insurance Company of Excelsior Springs, Missouri, for $800, indemnifying them for loss by fire on their mill at Waverly, Missouri; that the loss if any, was made payable to the plaintiff, as mortgagee, who held a mortgage from defendants to secure the payment of the note in suit; that on December 29, 1898, said mill was destroyed by fire; that plaintiff negligently failed and refused to make proof of loss and converted the policy to his own use thereby preventing defendants from making such proof of loss; and that by reason of said negligence of plaintiff and said conversion of said policy, defendants were damaged $800, which they plead as a setoff and counterclaim against plaintiff’s demand. The plaintiff’s reply put in issue the allegations of the defendants’ answer.
The evidence was undisputed that there was a fire which destroyed the defendants’ mill, upon which the plaintiff held *685a mortgage to secure the payment of said note; that Breckenridge, through defendant White, duly made proof of loss which was filed with the said insurance company at its place of business at Excelsior Springs, Missouri; and that some-time in April, 1899, the said company made an assignment. The defendants offered evidence tending to prove that if the plaintiff had pressed the claim for said loss that all, or a greater part thereof, would have been paid. On the other hand the evidence of the plaintiff was to the effect that the insurance company was wholly insolvent.
The court gave several instructions amongst which was one that the jury would find for the plaintiff for the amount of the note and interest. The defendants. contend that the giving of said instruction was error for the reason that there was evidence tending to show that the plaintiff, by the exercise of diligence, could have collected a part of said insurance. And we are cited to many authorities to sustain the proposition that where the evidence is conflicting it is error for the trial court to give a peremptory instruction upon the issue. The soundness of this position can not be controverted, for the law, as a general proposition, is well settled in this State. . But it seems to us that the application of the rule is not proper in this case for the reason that there was no issue made by the pleadings that the plaintiff had negligently failed or refused to collect the policy, but that he had negligently failed to p'ove the loss by fire. It is true that both parties had introduced evidence upon the question not put in issue by the pleadings, but it seems that notwithstanding such evidence the plaintiff sought to hold the defendants to the real issue by asking and obtaining said peremptory instruction. And we must presume that the court, by the giving of said instruction, intended to confine the parties to the real issue so made by the pleadings. It would set a bad example for this court to reverse the action of a trial court in giving instructions ignoring evidence not responsive to the issues, for as a rule no such evidence should *686be offered and admitted. As all the evidence tended to show that the plaintiff timely and duly made proof of loss and filed it with the insurance company, there were no' controvertible facts arising on the pleadings; therefore, the giving of said instruction was justifiable.
The respondent insists further that the judgment should be affirmed on the ground that under the law the defendants had the same right to prosecute the collection of the claim for insurance as the plaintiff had, and that such being the case the plaintiff is not chargeable with negligence when it is shown that if there was any such negligence, that of the defendants was equal to that of the plaintiff. It is a rule of reason and right, as well as law, that where the same duty rests equally upon two persons to do or not to do a particular thing, one of the parties can not have a remedy against the other for failure to do or not to do the particular thing, for the reason that he, himself, ought to have acted or refrained from acting, as the case might be. In Anthony v. Ins. Co., 48 Mo. App. 65, it was held that in an insurance policy which was made to A, and payable to S the mortgagee, that A was a trustee of the express trust and S the beneficiary thereof, and that either or both could maintain an action on the policy, and a recovery by either would bar any further action. And a similar principle was applied in Rogers v. Gosnell, 51 Mo. 466. It follows, therefore, that the defendants were not in a position to charge the plaintiff with negligence for failure to do an act which, under the law, it was as much their duty to do as it was that of the plaintiff.
It seems to us that under no sound theory of the case can the action of the lower court be successfully assailed'. Cause affirmed.
All concur.