*355Opinion Concurring in Part; Dissenting in Part
Staton, J.I concur with the majority in affirming the trial court’s judgment as to Michigan Mutual Liability Company. When this cause of action arose, IC 1971, 27-7-6-6; Ind. Ann. Stat. § 39-4318 (Burns 1971 Supp.) was not in effect. Therefore, the majority opinion of this court makes no determination of its effect upon the merits in this action. IC 1971, 27-7-6-6; Ind. Ann. Stat. § 39-4318 (Burns 1971 Supp.) provides:
“Notice of intention not to renew. — No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty [20] days’ advance notice of its intention not to renew. In the event such policy was procured by an agent duly licensed by the state of Indiana notice of intent not to renew shall be mailed or delivered to such agent at least ten [10] days prior to such mailing or delivery to the named insured unless such notice of intent is or has been waived in writing by such agent.
“This section shall not apply: (a) if the insurer has manifested its willingness to renew; nor (b) in case of nonpayment of premium: Provided, That, notwithstanding the failure of an insurer to comply with this section, the policy shall terminate on the effective date of any other insurance policy with respect to any automobile designated in both policies.
“Renewal of a policy shall not constitute a waiver or estoppel with respect to grounds for cancellation which existed before the effective date of such renewal.”
I dissent from the majority opinion where it reverses the judgment of the trial court as to Buckeye Union Insurance Company. The trial court’s judgment should be affirmed as to Buckeye Union Insurance Company too for these reasons:
REASON ONE: Answer mandatory under Rule TR. 7(A) (2) of the Indiana Rules of Procedure; otherwise admitted. Buckeye Union Insurance Company joined Michigan Mutual Liability Company in its cross-claim. No answer was ever filed by either Mrs. DeLeon or the Cooks as required by Rule TR. 7 (A) (2) of the Indiana Rules of Procedure. The filing of *356an answer to the cross-claim is mandatory. Commercial Credit Corp. v. Miller (1972), 151 Ind. App. 580, 280 N.E.2d 856.
REASON TWO: New Amsterdam Casualty Co. v. New Palestine Bank (1915), 59 Ind. App. 69, 107 N.E. 554 does not support the proposition for which the majority has cited it. This was a fraud case employing the equitable theory of estoppel. Any similarity in fact or law to the present case begins and ends with the return of the policy for correction.
REASON THREE: Manifest mutual rescission of the Buckeye Union insurance policy before Mrs. DeLeon purchased her second insurance policy at Meridian Mutual Insurance Company and before her accident is evident. The majority opinion cites Bills v. Boettcher (1946), 116 Ind. App. 631, 65 N.E.2d 495, as supporting the following proposition:
“In the instant case were we to supplant the findings of the trial court by looking to the uncontroverted facts contained in the record before us, we would find that the only mutual agreement for rescisson took place on the day after the accident when DeLeon communicated to the agent of the insurer that she had other insurance coverage.”
I suggest that “. . . were we to supplant the findings of the trial court by looking to the uncontroverted facts contained in the record before us, we would find . . .” mutual rescission a week before she purchased insurance with Meridian Mutual Insurance Company on July 17, 1967 and before the accident on July 24, 1967.
REASON FOUR: All reasonable presumptions support the theory of rescission and sustain the trial court’s judgment. The trial court’s judgment can easily be sustained upon the theory of mutual rescission. The trial court’s judgment should be affirmed. To indulge the contrary is to act improvidently. This Court has recognized the general rule which has been set forth in State ex rel. Tittle v. Covington Etc., Schools (1951), 229 Ind. 208, 96 N.E.2d 334 and in Ross v. Review Bd. of *357Ind. Emp. Sec. Div. (1962), 243 Ind. 61, 182 N.E.2d 585. In Lewis v. Burke (1968), 143 Ind. App. 696, 242 N.E.2d 382, this Court clearly stated in an opinion written by Judge Cooper that:
“The general rule of law is well settled that on appeal all reasonable presumptions are indulged in favor of the rulings and judgment of the trial court. Generally speaking, if the action of the trial court is sustainable upon any theory, it must be affirmed. In support of this general rule, our Supreme Court in the case of Ross, et al., v. Review Board of Indiana Employment Security Division (1962), 243 Ind. 61, 65, 182 N.E.2d 585, stated:
‘As long as there is any substantial ground upon which the decision of the lower tribunal may be sustained on appeal, the judgment will not be reversed. The reviewing court may examine the entire record to sustain the lower court’s action. The court does not search the record to reverse, although it may do so in order to affirm. State ex rel. Tittle v. Covington, etc., Schools (1951), 229 Ind. 208, 96 N.E.2d 334; City of Ft. Wayne v. Bishop (1950), 228 Ind. 304, 92 N.E.2d 544; 2 I.L.E. Appeals, Sec. 461, p. 332, 333; F. W. & H. Ind. Tr. and App. Pract. 1961 Pocket Supp. Sec. 2783, p. 134.’
“See also Snauffer v. Peoples Trust and Savings Co. (1965), 140 Ind. App. 491, 212 N.E.2d 165.” Lewis v. Burke, supra, 143 Ind. App. at 697, 242 N.E.2d at 382.
Some expanding remarks are necessary to fully implement the reasons given above. This is especially true where reference has been made to inapplicable authority as in Reason Two and where reference has been made to the record in Reason Three. Reason One and Reason Four need none. They are quintessential.
REASON TWO: New Amsterdam Casualty Co. v. New Palestine Bank, supra, has no applicability to the question before this Court. The enforceability of the policy springs from the insurer’s general agent’s knowledge of the misrepresentations and the application of estoppel by the court. No question of rescission was ever considered nor do the facts lend themselves to such a consideration by inference.
*358A summary of the facts is as follows: The bank by one of its four partners submitted a policy which was presently in force to the general agent of the insurer. This policy contained all of the necessary information that the general agent needed. It listed the four partners of the bank and stated that the bank had no other burglary insurance. A policy was issued by the insurer without naming two of the four partners and without stating that the bank had no other burglary insurance. These omissions and facts to the contrary were known to the general agent. Later, the bank returned the policy to the general agent to insert the omitted items. The insurer decided to refuse the business and can-celled the policy. This cancellation was not communicated to the bank. The bank had a loss and made a claim. The Indiana Appellate Court held that “Since the misrepresentations were made by the agent of the appellant with knowledge of the truth, his knowledge estopped the company from claiming that the policy was void because of false warranties.”
No question of rescission was presented to the court. Charles J. Richman, the inquiring partner of the bank, definitely stated that “He was ready to take out the burglary insurance.” There were never any calls made by him to the insurer or the general agent stating that he “. . . was going to inquire of other companies . . .” as did Mrs. DeLeon. There was no “. . . teetering . . .” uncertainty or indecision on his part as to with whom he was insured. He did not purchase other insurance prior to the bank’s loss which is an undeniable act of rescission. The New Amsterdam Casualty Co. case, supra, turns on the point of responsibility for omissions within the knowledge of the general agent and cancellation without notice under the term of the policy. It has nothing to do with rescission. It has no application to the question before this Court.
REASON THREE: The majority does not deny that a mutual rescission took place. Buckeye Union Insurance Company’s liability is predicated upon the time when rescission *359took place — the day after the accident on July 24, 1967. I disagree. I suggest that “. . . were we to supplant the findings of the trial court by looking to the uncontroverted facts contained in the record before us, we would find . . .” not a binding contract of insurance as did the majority, but a mutual rescission which took place before Mrs. DeLeon purchased her insurance policy at Meridian Mutual Insurance Company on July 17, 1967 and before the accident on July 24, 1967. The record strongly supports a reasonable inference that Mrs. DeLeon intended to rescind her policy with Buckeye and made declarations of intent to seek insurance coverage elsewhere. The following testimony by Mrs. DeLeon relates a communication which took place a week before she was insured with Meridian Mutual Insurance Company: (T. 110; L. 32: T. Ill; L. 1-29)
“Q. Did I understand you to say that at the time, at the end of the thirty day grace period when you decided to contact the Isenbarger Agency that you called the Hattendorf Agency and told someone that you were going to be contacting the Isenbarger Agency?
“A. I didn’t tell them who I was going to contact, I told them that I was going to inquire of other companies.
“Q. Did you tell them—
“A. At the time I told them that I wasn’t sure where I was going to inquire.
“Q. That was before July 15,1967 ?
“A. Yes.
“Q. And how did you communicate that to the Hattendorf Agency?
“A. By telephone.
“Q. Where did you do that?
“A. Why did I do that?
“Q. Why did you communicate to the Hattendorf Agency the fact that you were going to inquire of other companies?
“A. Because I was getting to the point where I was beginning to feel that I couldn’t trust Paul, I mean I thought for awhile I could and then when he sent me this policy with all the wrong information on it I *360began to think that he was just as negligent as he had been before, so I wanted to be fair to them and told them that I was still going to inquire from other companies.
“Q. You wanted them to know that you still might place your business elsewhere?
“A. Yes.
“Q. Did I ask you who you talked to on that occasion?
“A. I think it was Paul, but I can’t say for certain.”
Mrs. DeLeon further testified:
“A. That’s right, I was just teetering, you might say.
“Q. And at the time that you went out to the Isenbarger Agency, were you in the same frame of mind with reference to your indecision as to which company you wanted to be insured with ?
“A. Yes, I was still undecided, when you talked to them— that’s when I called them.
“Q. I presume then that on July 15th of ’67 you finally made up your mind that you wanted to be insured with Meridian Mutual ?
“A. Well, I talked to them and found out what the benefits were and all and I decided for them.”
* * *
“Q. Did you ever intend during the thirty day period between June 15 and July 15 of 1967, to have coverage with more than one insurance company?
“A. No, be too expensive for me.
“Q. It was your understanding during that period that you had coverage with Michigan Mutual Liability Company?
“A. Yes.”
These statements, when read in context with the entire record, do not support a conclusion that Mrs. DeLeon intended to be bound by the terms of the Buckeye Union policy on the date of the accident. To the contrary they lead to the conclusion that: After the Buckeye Union policy arrived with the wrong information, Mrs. DeLeon “. . . began to think that he [Buckeye’s agent] was just as negligent as he had been *361before, so . . . [she] still was going to inquire from other companies.” And, prior to the date of the accident, she did purchase insurance elsewhere.
To rescind a contract there must be an intention by all contracting parties to terminate the contract. Ralya v. Atkins & Co. (1901), 157 Ind. 331, 61 N.E. 726; Commercial Acceptance Co. v. Walton (1931), 93 Ind. App. 136, 176 N.E. 244; Dotson v. Bailey (1881), 76 Ind. 434. The facts show that Buckeye Union Insurance Company never sent a new, corrected policy to Mrs. DeLeon after she informed them she still might place her insurance elsewhere. Nor did they ever bill her for premiums or communicate with her in any way after July 15, 1967. I believe that these facts support the conclusion of the trial court that there was no binding insurance contract between Mrs. DeLeon and Buckeye Union Insurance Company on the date of the accident.
“(An) implied agreement to rescind may consist in an abandonment or repudiation of the contract by one of the parties assented to or acquiesced in by the other; . . . Conduct on the part of both the vendor and the purchaser which is inconsistent with the continuance of the contract . . . constitutes rescission by abandonment.” Brannock v. Fletcher (1967), 271 N.C. 65, 155 S.E.2d 532, 542.
The conduct of the parties can hardly be said to be consistent with the continuation of the contract of insurance. The trial court’s judgment should be affirmed as to both Michigan Mutual Liability Company and Buckeye Union Insurance Company.
Note. — Reported at 289 N.E.2d 754.