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BEINQ A SUPPLEMENT OR CONTINUATION OF THE THIRD AND LAST EDITION OF LITTLETON & BLATCHLEY, CLARKE, AND BATES' DIGEST. FROM 1872 TO 1882. By GEORGE A. CLEMENT, OV TUB NEW YORK BAB. NEW YORK: BAKER, VOORHIS & CO., LAW PUBLISHERS, 00 NASSAU STREl!^. 1882. id ^Mered, accoraing to Act of Congress, !• the year eighteea hundred and eighty -two, by BAKER JORHIS & CO., Iq the Office of the Librwiao of Congress, at Waihiogton. MAY 3 1922 BAKRR * GODWIN, PRINTERS, No. V> Park Row, Ne* York. I PREFACE. This volume covers the period extending from 1872 to 1882, and is designed as a supplement or continuation of the third and last edition of the well known work of Littleton and Blatchley (ed- ited by Mr Bates), published in 1873. It contains an addition of abont 1,200 cases. On account of the familiarity acquired in the use of the first volume, it has been deemed best to follow substan- tially the same plan and arrangement in this. Beginning where Mr. Bates ceased, I have personally taken each volume of the official reports of all the courts, publishec". in the United States, Oreat Britain and Canada, to 1882, and faithfully endeavored to digest from each reported case on the subject everytliing of value to both the underwriter and lawyer. I have also included the cases contained in the various law and insurance journals to 1882, not taken from the regular or official reports. From the number, importance, and character of the cases de- cided during tlie past ten years, one cannot fail to be impressed with the fact that the law of fire insurance has received new and material light and development. True, conflicting opinions and decisions exist, and doubtless will continue to be announced and published, tending to add to the confusion and uncertainty, but it must be remembered that such is always the case in the es- tablishment of legal principles applicable to comparatively new subjects. If underwriters and their representatives would cease to be purely technical, and, instead of planting themselves upon their policies solely as contracts, would seek to develop and make plain the principles involved in their business, they would receive more frequently just consideration at the hands of both courts and juries. Judges most clearly and satisfactorily decide when they not only understand the policy of insurance as a naked contract, but are also made to comprehend the reason of the partic- w^^ IV PBEFAOB. nlar provision upon which reliance is placed — its practical course and operation, and evil eflfects, if not applied and enforced. This book being designed for the underwriter as well as the lawyer, it may not be out of place to caution the former that a particular case is not authority out of the territorial limits of the State whose court pronounces the decision, and is available only as argument in other jurisdictions ; and, also, that it is not safe to base an act, statement, or declaration upon any one particular case without first comparing all bearing on the subject. Courts quite frequently distinguish cases, and the more intelligently this is anticipated and determined by the underwriter or lawyer, the more satisfactory and successful the result. No one could more fully realize actual and possible errors than myself, and it would be esteemed a favor to be advised of all such not indicated in the errata. My thanks are due to William E. Iliflf, Esq., of the New York Bar, for aid in preparation of the Tables of Cases and Reports, and generally in putting the work through the press. In the hope that the book will be of some assistance in ascer- taining the true principles of the law of fire insurance, I have satisfaction for many hours of labor. Q. A. CLEMENT. Kbw Tore, Fbbbuabt 22, 1882. $ al course sd. sll as the ler that a limits of available i not safe )articular Courts mtly this ivyer, the le errors sed of all 1 William on of the the work in ascer- 3, I have lENT. Hi TABLE OF CONTENTS. PAGB ADJUSTMENT 1 AGENT 4, 389 ALIENATION 23, 389 ALTERATION 36, 890 APPLICATION 37, 390 ARBITRATION AND APPRAISEMENT 40. 890 ASSIGNMENT 43, 390 BONDS OP AGENTS 48 BOOKS OF ACCOUNT AND VOUCiIERS 40 BURDEN OP PROOP 50 BURNING BY DESIGN 51 BY-LAWS AND CONDITIONS 53 CANCELLATION 54, 390 CERTIFICATE 6o' 390 COLLISION ' 68 CONCEALMENT ,[[,, 64, 391 CONSTRUCTION [[,] 66^ 391 CONSUMMATION OF CONTRACT ' 69 CONTRIBUTION 74, 393 COVENANT TO INSURE ' 81 DAMAGES 81 DEFINITIONS 85 DESCRIPTION [ ['_[ 86 DISTANCE OP OTHER BUILDINGS 87, 393 ENCUMBRANCE 87, 398 ENTIRETY AND DIVISIBILITY OP POLICY 91 ESTOPPEL 93 398 EVIDENCE 103,394 EXAMINATION UNDER OATH 117 EXECUTIONS " " 118 394 liXPLOSIONS '119 FALLEN BUILDING .......[......[....... 123 FOREIGN COMPANY .' '.'.',[ 127, 394 FRAUD AND FALSE SWKARING 134] 395 GARNISHMENT OR TRUSTEE PROCESS 138 GOODS IN TRUST OR ON COMMISSION 189 ILLEGALITY OP CONTRACT I43 y{ TABLE OF CONTENTS. PAOK INCREASE OF RISK 1*^' ^^^ INSOLVENCY ^* INSURABLE INTEREST ^^^' '^^ INTEREST IN POLICY 159, 397 LIGHTING 1^5' 8^'' LIMITATION CLAUSE 167,897 MORTGAGOR AND MORTGAGEE 173, 397 MUTUAL COMPANIES 183, 398 NEGLIGENCE 818 NOTICE OP LOSS 214,899 OTHER INSURANCE 217, 899 OVERVALUATION 228, 401 PAROL CONTRACT 230, 401 PAYMENT OF LOSS 239 PLACE OP MAKING CONTRACT 240 PLEADING AND PRACTICE 241, 404 PREMIUM 246.403 PROOFS OF LOSS 251, 408 QUESTIONS FOR COURT AND JURY 2G8. 405 REBUILD OR REPLACE 271 RECOVERY BACK OF LOSSES PAID 273 REFORMATION OF POLICY 274,405 RE-INSURANCE 277 REMOVAL OF CAUSES TO UNITED STATES COURT 284. 405 RENEWAL OF POLICY 286, 40ft REPAIRS 289, 406 RISK 290, 4tl6 STORING OR KEEPING 290, 406 SUBROGATION 802, 407 TAXATION 305 THEFT 806 TITLE 300, 408 TWO-THIRDS OR THREE-FOURTHS CLAUSE 320 USAGE AND CUSTOM 320 USE AND OCCUPATION 823, 409 VACANT OR UNOCCUPIED 328, 409 VALUED POLICY 341 WAIVER 342, 410 WARRANTY AND REPRESENTATION 854, 411 WATCHMAN 376 WHAT PROPERTY IS COVERED BY POLICY 378 WHO MAY SUE 384,414 PAOK 143, 395 49 150, ;i96 159, 397 165, 897 167, 897 173, 397 183, 398 218 214, 899 217,899 228, 401 230,401 239 240 241,404 246, 408 251, 408 208. 405 271 273 274, 405 277 284, 405 286, 40ft 289, 406 290, 4t)6 290, 406 802, 407 305 806 300, 408 320 320 823, 409 328. 409 341 342. 410 354,411 376 378 384, 414 TABLE OF CASES. Abrahams v. Agricultural Ins. Co. 381. Acker v. Hite, 212. Adams v. Greenwich Ins. Co. 79, 96, 109, 382. V. Pittsburg Ins. Co. 321. iEtna Ins. Co. v. Baker, 182, 387. V. Burns, 329. V. Hannibal & St. J. R. R. 302. y. Johnson, 51, 82. V. Myers, 334. V. Reed, 8. V. Resh, 65, 369. V. Sparks, 258 Agricultural Ins. Co. v. Montague, 157, 812. Akin V. L.L. &Q.Ins. Co 171,178,253. Albion Lead Works v. Williamsburg City Ins Co. 147, 209, 338, 378. Alexander v. Germania Fire Ins. Co. 861, 368. AUemania Fire Ins. Co. v. Hurd. 223. Allison V. Phoenix Ins Co. 220. Alston V. Ins. Co. 336, 337. Amazon Ins. Co. v. Wall, 30. American Basket Co. v. Farmville Ins. Co. 312. American Ins. Co. v. Avery, 207. V. Butler, 137. V. Crawfonl, 3. V. Cutler, 206. V. Foster, 338. V. Galhigher, 196. V. Gallutiu, 18, 101. V. Gilbert, 37, 64, 356, 357. V. Henley, 207, V. Klink, 206. V. Luttrel], 101. V. Fadficld, 329. V. Pettijohn, 184. V. Story, 209, 212 V. Wellman, 135, • 213 V. WoodriiflF, 198. Am. Cent. Ins. Co. v. McLanathan, 16, 86,101,271,272, 807, 308. V. Rothschild, 62, 384. Andes Ins. Co. v. Fish, 101, 108, 168, V. Shipman, 100. 101, 376. Angell V. Hartford Ins. Co. 8, 15. Appleby v. Astor Ins. Co. 3x4. Appleton Iron Co. v. British America Ins. Co. 08, 181, 350. Archambeault v. Galamcau, 179. Argall V. Ins. Co. 399, 403. Arkell v. Commerce Ins. Co. 85, 166. Armenia Ins. Co. v. Paul, 65, 350. Arthur v. Homestead Fire Ins. Co. 172. Ashworth v. Builders' Mut. Ins. Co. 829. Atlantic Ins. Co. v. Manning, 83, 338. Aurora Fire Ins. Co. v Johnson, 49, 120,228,241,242. V. Kranich, 66, 101, 252. 287. Australian Agricultural Co. v. Sanders, 220. Babson v. Thomaston Ins. Co. 153. Badger v. Glen's Falls Ins. Co. Gil, 117, 253, 266. V. Phoenix Ins. Co. 206. Baile v. Equitable Fire Ins. Co. 134. V. St. Joseph F. & M. Ins. Co. 80, 237, 238, 267, 295. Baillie v. Provinciiil Ins. Co, 13. Baker v. Home Life Ins. Co. 11, 3<53. Baldwin v. Chouteau Ins. Co. 70, 247. V. Hartford Ins. Co. 35, 92. V. Phoenix Ins. Co. 35, 174. Baley v. Homestead Fire Ins. Co. 89. Ball V. Watertown Ins. Co. 49, Ballagh v. Royal Mut. Ina. Co, 64, 211. 890. Bammesel v. Brewers' Fire Ins. Co. 84, 263, 848. Vlll TABLB OP CASES. Bang V. FannviUe Ins. Co. 247. Bank of Hamilton v. Western Ins. Co. 387. Barber v. P. & M. Ina. Co. 801, 397. Bardwell v. Conway, 2, 38, 78, lOtt, 205. Barr v. Ins. Co. of N. A. 236. Barteau v. Phoenix Mat. Life Ins. Co. 361. Bartlettv. Chouteau I'ns, Co. 133. Basch V. HumbolcU Ins. Co. 246, 253. Bassall v. American Fire Ins. Co. 14, 53. Bassell v. Americnn Fire Ins. Co. 383. Batchelor v. People's Ins. Co. 34, 114, 353. Bates V. Commercial Ins. Co. 23. T. Equitable Fire Ins. Co. 23, 384. Bayly v. Loud. & Lane. Ins. Co. 145, 268, 298, 399. Beals V. Home Ins. Co. 271. Beaver Ins. Co. v. Trimble, 186. Beck V. Hibernin Ins. Co. 87, 360. Behlcr v. German Ins. Co. 20, 212. 335. Belding v. Floyd, 349. Bell V. Lycoming Fire Ins. Co. 99, 257, 264. Bellaty v. Thomaston Ins. Co. 354. Ben. Franklin Ins. Co. v. Gillett, 102, 130,275,405. V. Weary, 19. Bennett v. City Ins. Co. 7. T. Lycoming Mut. Ins. Co. 215. V. Maryland Fire Ins. Co. 249, '253 V. N. B. & M. Ins. Co. 113, 300, 301. Benson V. Ottawa Ins. Co. 65, 203. Bergan v. Manufacturers' and Mer- chants' Ins. Co. 390, 408. Beruheim v. Beer, 103. Berthold v. Clay, 385. Bicknell v. Lancaster City Ins. Co. 158. Bigelow V. Libby, 11)3. Billington v. Canadian Mut. Fire Ins. Co. 12, 322, 269. y. Provincial Ins. Co. 16, 99, 225. Birmingham v. Farmers' Joint Stock Ins. Co. 259. Birmingham Fire Ins Co. v. Kroegher 299. Bishop V. Clay Ins Co. 31, 103. Black V. Winnishick Ins. Co. 168. Blackstone v. Allcmania Firo Ins. Co. 278. Blaesor v. Milwaukee Mut. Ins. Oo. 61, 360. Bleakley v. Niagara Dist. Ins. Co. 16, 9L Bloomer v. Phoenix Ins. Co. 367, 877. Blossom T. Lycoming Fire Ins. Co. 339, 348. Boatman's Ins. Co. v. Parker, 130. Bodine v. Exchange Piro Ins. Co. 5, 346. Bocteher v. Hawkeyo, 15. Boot & Shoe Mfg. Ins. Co. v. Molroso Society, 196. Borden v. Provincial Ins. Co. 63. Boutelle v. Worcester Fire Ins. Co. 229,313. Bowman v. Agricultural Ins. Co. 106, 847. T, Franklin Fire Ins. Co. 87, 91. Bowser v. Lamb. 204. Hradfield v. Union Mut. Ins. Oo. 873. Bradford v. Homestead Fire Ins. Co. 331, 338. Brandaf v. St. Paul Fire Ins. Co. 99, 386. Bredow v. Erie Co. Mut. Ins. Oo. 808, 411. Brenner v. Ins. Co. 183, 145. Briggs V. N. B. & M. Ins. Co. 180. Brink v. Hanover Firo Ins. Co. 114, 360, 267, 353. V. Merchants' Ins. Co. 109, 110, 326, 327. British Am. Ins. Co. v. Wilkinson, 878. Broadhead v. Lycoming Ins. Co. 18, 100, 101. Brogan v. Manufacturers' & Mcrchiints' Ins. Co. 3fi0, 408. Brown v. Hartford Fire Ins. Co. 8. Browning v. Home Ins. Co. 89, 37, 178, 320, 363. Biucck V. Phoenix Ins. Co. 288, 878. Brugger r. State Investment Ins. Co. 9, 113, 150. Brunswick Savings Inst. v. Commer- cial Union Ins. Co. 31, 174. Bryan v. Peabody Ins, Co 88 800. Bryce v. Lorillard Firo lus. Co. 874, 855, 856. Buchanan v. Exchange Piro Ins. Oo. 8, 208, 381. v. Westchester Co. Mut. Ins. Co. 26. Buck V. Globe Ins. Co. 134. Buckley V. Columbia Ins. Oo. 804, 806, 898. I TABLE OF OASBS. w t. Ins. Oo. [n9. Co. 16, .. 367, 877. re Ids. Co. :er, 120. Ids. Co. 5, . V. Molroso 3o. 62. re Ins. Co. as. Co. 106, Ins. Co. 87, 5, Oo. 872. ire Ins. Co. [ns. Co. 99, DS. Co. 802, [5. Co. 120. IS. Co. 114, 0. too, 110, {insoD, 278. Ins. Co. 18, Mercliiints' s. Co. 2. 20, 37, 178, 288, 873. 3Dt Ins. Co. V. Comnier- , 174. 28 800. iH. Co. 274, ro Ins. Co. Co. Mut. )o. 204, 206, I Buell V. Connecticut Life Ins. Co. 362, Burbank v. McCluer, 46. Burger v. Farmers' Mut. Co, 43. 104. Burleigh v. GebliHrd Ins. Co. 375, Burnb'jm v. Lamar, 44. V. N. W. Ins. Co. 149. Burns v, Collins, 175. Burton v. Buckeye Ins. Co. 170. Bush V. ^tna Ins. Co. 385. V, Ins, Co, 231, V. Westchester Fire Ins. Co, 11. Butler V, Standard Fire Ins. Co. 315, 384. Byers v. Farmers' Ins. Co. 33, o9, 358. V. Ins. Co. 372, 378. Cady V. Imperial Ins. Co. 355, Cahill V. Andes Ins. Co. 5, Caley v. Hooper, 163, Cammell v. Beaver & Toronto Fire Ins. Co. 61, 62. Campbell v. ^tna Ins. Co. 217. V, Victoria Mut, Ins. Co, 4 13. Canada Farmers' Ins. Co. v, Watson, 273, Canada Fire Ins. Co. v. Northern Ins, Co. 365. Canada Ins. Co. v. Northern Ins. Co, 282. Canada Land Co. v, Canada Agricul- tural Ins. Co. 53, 229, 338. Cann v. Imperial Fire Ins. Co. 257. CarlxTry v. German Ins. Co. 241. Card V. Plucnix Ins. Co. 30, 349. Carr v. Hihernia Ins. Co. 86, 100. Carraway v. Merchants' Mut. Ins. Co. Hi 9. Carrigan v. Lycoming Ins. Co 23, 100, 143, 303, 318. <^arroll v. Ch;irter Oak Ins. Co. 343. Cary v. Nagel, 184. Caslinn v. Norlhwestem Nat. Ins, Co, 353, 254. 277, Casbman v, Lond. & Liv. Fire Ins, Co, 91, 343. Casscrly v. Manners, 380. Castner v. Farmers' Mut. Ins. Co, 318. Cerl V. Home Ins. Co. 165. Chamberlain v. Ins. Co, 331, 385, Chandler v, Commerct Fire Ins. Co. 156, 313, 333. V. St. Paul Ins. Co. 153, 169, Chaplain v. Provincial Ins. Co. 238, 335, Chapman v. Gore Dist. Mut. In8.Co.46, Chase v. People's Fire Ins. Co. 18, 101. Chatillon t. Canadian Mut. Fire Ins. Co. 38, 88, 97, 311. Check V. Columbia Fire Ins. Co. 64, 97, 154. Chicago Build. Soc. v. Crowell, 81. Church V. Lafayette Fire Ins, Co. 247. Citizens' Ins, Co. v. Parsons, 394. Citizens' Fire Ins. Co. v. Short, 229. City t'lve Cent Sav. Bank v. Penn. Ids. Co. 79, 901. City Ins. Co, v. Bricker, 39. City of Alton v. .^tna Fire Ins. Co. 133. City of Leavenworth v. Booth, 130. Citv of Mempliis v. Ins. Co. 183. Clay Fire Ins. Co. v. Bec^, 309. Clay Ins. Co. v. Huron Man. Co. 106, 131, "^09. Clark V. Brand, 233, v. Craig, 140. v. German Mut. Fire Ins. Co. 314. V. Mobile, 137. V. Scottish Imperial Ins. Co. 156, 397. Clippingerv. Miss. Valley Ins. Co, 284. CobI) v. Ins, Co. N, A, 68, 219, 253, 277, Cochran v. Ins, Co, 209. Colin V, Virginia Fire Ins, Co. 163. Cole V. Favorite, 139. Collins V. Phosnix Ins. Co. 72, 299, 350. Collingiidge v. Royal Exchange Assur. Co. 83. Colonius V. Ilibernia Fire Ins. Co. 3. Colt V. Phoenix Fire Ins. Co, 26. Columbia Fire Ins. Co. v. Bolton, 193. v.K°nyon,l30, 193. Columbia Ins. Co v. Buckley, 204,205. v.Masonheimer, 193. Combs V. Shrewsbury Mut. Fire Ins. Co. 47, 399. Commercial Ins. Co. v. Ives, 4, 100. V. liobinson, 40, 120. Commercial Union Ins. Co. v. Canada Mnnfg. Co. 53. Commercial Union Ins, Co. v. Scam- mon, 389, Commonwealth v, IIide& Leather Ins. Co, 153. 188. 324, 344, 380. Commonwealth Fire Ins. Co. v. llunt- zingcr. 32, 374, Commonwealth v. Mass, Ins. Co. 187, 188, 105, 196, 107, TABLE OF OASES. \- Commonwealth v. Mtjchauics' Ins. Co. 188. 199, 205. V. Merchants' & Mech. Ins, Co. 210. V. Monitor In? Co.188. Cone V. Niagara Fire Ins. Co. 154,161, 302. 347. Conn. Fire Ins. Co. v. Erie R. R. Co. 303. Con8ol.Rea!E8t.Co.v.Ca3liow,24fl,279. Continental Ins.Co. v. Horton, 1 05, 2 1 8. v.Hulm in, 113.165, 174, 18U, lal. V. Ji-nkins, 2H4. v.Kasey, 15,95, 132, 284, 357. v.Lip|)oId,253,25«. V. Randolph, 116. V. Ware, 229, 374. Cook V. Continental Ins. Co. 335. Cooke V. .^tna Ins. Co. 236. Co-operative Assoc, v. Leflore,358,363. Copp V. German Am. Ins. Co. 375. Cornish v. Farm Building Fire Ins. Co. 146. Corrigan v. Conn. Ins. Co. 33'2. Couch v.RochcsterGerman In8.Co.407. Cowan V. Iowa State Ins. Co. 27. Crane v. City Ins. Co. 391, 393, 395. Crawford v. Equitable Ins. Co. 150. V Wcsturn Ins. Co. 274. Crawford Oo. Mut Ins. Co. v. Coch- ran, 197, 253. Creighlon v. Homestead Fire Ins. Co. 118. 164. Crockford v. Lend. & Liv. Fire Ins. Co 300. Croghan v. Underwriter's A<,'ency, 280. Critchett v. American Ins. Co. 213. Crowley v. Agricultural Mut. Ins. Co. 185. Crozier v. Pliojnix Ins. Co. 43, 342. Cumberland Hone Co. v. Andes. Ins. Co. 153. Cumiugs V. Ilildretli, 195. V. Sawyer, 190, Cummings v. Ins. Co. 45, 85. Cammins v. Agricultural Ins. 254,330. Curtis V. Home Ins. Co. 168. Dacey v. Agricultural Ins. Co. 31, 84, 92, 101, 368. Dahlberg v. St. Louis Mut. Ins.Co. 223. Dailcy v. Westchester Fire Ins. Co. 33. Dakln v. Liv. L. & Q. Ins. Co. 203, 315, 386. Daly V. National Life Ins. Co. 184. Daniels v. Andes Ins. Co. 100. V. Citizens' Ins. Co. 13f?. V. Equitable Ins. Co. 148. V. Meinhard, 44. Darrell v. Tibbetts, 3(i5. Davenport Fire Ins. Co. v. Moore.Sll. Davey v. Glen's Falls Ins Co. 18. David V. Williamsburg Ins. Co. 158. Davidson v. Phoenix Ins. Co. 108. Davies v. Canada Farmtrs' Ins. Co. 107, 170. V. Home Ins. Co. 150, v. Lamar Ins. Co. 19. V. Stewart, 170. Dayton Ins. Co.v.Kelley,5,37,233,3l4. Dean v. Equitable Fire Ins. C*). 275. V. Western Ins. Co. 101, 2C9,;>8(». Denkler v. Ins. Co. 143. Dennison v. Phoenix Ins. Co. 335. Dermain v. Home Mut. Ins. Co. 27. Derrick v. Lamar. 44, 108. Devens v Mechanics' & Traders' Ins Co. 20, 295, 351, 352. Devine v. Home Ins. Co. 344. Uewees v. Manhattan Ins. Co. 3'>4. De Grove v. Metropolitan Ins. Co. 10, 233, 257. De Wolf V. Capital City Ins. Co. 313. Dick V. Franklin Fire Ins. Co. 178. Dickinson Co.v. Miss. Valley Ins.Co. 10. Dick80. Foote V. Hartford Ins. Co. 29. Forest City Ins. Co. v. School Direc- tors, 198, 254. Forgic V. Royal Ins. Co. 44. Foster v. Van Reed, 1 78. Fowle V. Springtield Fire Ins. Co. 156, 201, 304. Fowler v. Old North State Ins. Co. 83, 107. Co. 143. V. Chicago Ice Co. 289, 307. 343. V. Kepler, 409. V. Louisville Packet Co. 129. V. Martin. 98, 270, V. State, 3(15. V. Taylor, 233. 300, 307. V. Vaughan, 309. Frederick Co. Mut. Ins. Co. v. Deford, 318, 350. Frey v. Mut. Fire Ins. Co. 53, 307. Priemansdorf v. Watertowu Ins. Co. 897, 414. Foy v. .^tna Ins. Franklin Ins. Co. XI 1 TABLE OF OASES. Agricul- Fuller y. Madison Muf. Ins. Co. 53, 87. Galveston Ins. Co. v. Heidenheimer, 345. 333. Ganong v. .^tna Ins. Co. 59. <5an? V. St. Paul Ins. Co. 13, 243, 348, 349. GanlhiiT v. Canadian Mut. Ins. Co. 413. Oarlick v. Miss. Valley Ins. Co. 199. Oaskin v. Phoenix Ins. Co. 173. Gates V, Penn Fire Ins. Co. 14, 96. Giiult V. American Cent. Ins. Co. 280, 283. Gautliier v. Waterloo Ins. Co. 325. Gaytos v, Hibbard, 184. Gc, V. Ins. Co. 230. Georgia Home Ins. Co. v. .Tones, 153. V. Kincier, 15, 38, 101, 146, 163, 35«. Geraldi v. Provincial Ins. Co. 403. German v. Hand-in Hand Ins. Co. 382. German Ins. Co. v. Ward. 253, 263. German American Ins. Co. v. Davis, 270, 373, German American Bank v. tnral Ins. Co. 393. Germania Fire Ina. Co. v. Cassteel, 83, 110, 330, 2'53. V. Curran, 93, 128, 368, 385, T. Circuit Jud. 48. Germania Ins. Co v. McKee, 102. V. Sherlock, 63,108. Germond v. Home Ins. Co. 35, Gerrish v. Ins. Co. 333. Oershauser v. N. B. & M. Ins. Co. 100, 134, 268. 334. Gettius V. Scuddor, 139. Gf'ttworth V. Teutonia Ins. Co, 83. Gibbs V. Continental Ins. Co. 43, 133 331. V. Queen Ins. Co. 131. Giffard v. Queen Ins. Co, 69. Gilbert v. Post, 165. Gilchrist v. Gore Mut. Ina. Co. 219. Gilligan v. Commercial Ina. Co. 391 393,410,414, Girard Fire Ins. Co, v. Field, 138, V, Hcbard, 33. Glade v. Germania Fire Ins. Co. 90 Glass V. Walker, 168. Go.idard v. Monitor Ins. Co. 85. Godfrey v. Maconiber, 188. Goldsmith v. Gore Diet. Fire Ins. Co. 261. ▼. Home Ins. Co. 185. Goodwin v. Lancashire Fire Ina. Co. 64. 355. Gordon v. Ware Savings Bank, 175. V. Wright, 140, 386. Gore Dist. Mut. Fire Ins. Co. v. Samo, 93. Gorman v. Hand-in Hand Ins. Co. 41, 393. Gorton v. Dodge Co. Mut. Ins. Co.l97. Gouinlock v. Manuf. Ins. Co. 375. Gould V. Holland Purchase Ins. Co. 89. Grace v. Am. Central Ins, Co, 19, 57, ' Grady v. American Central Ins, Co. 9. Graham v. Firemen's Ins, Co. 253, 267, 398, 414. V. Phoenix Ins. Co. 365. Gram v. Heaver & Toronto Fire Ins, Co. 189. Grant v. Reliance Fire Ins. Co, 58. Greeley v. Iowa State Ins. Co, 807, Greene v. Equitable Fire Ins. Co. 223, V. Homestead Fire Ins. Co. 34, 90, 350. V. Lycoming Fire Ins. Co, 99. V. Republic Ins Co. 47, 888. Grecnwald v. Ins. Co, 119. Griswold v. American Cent. Ins. Co, 44, 145. 173. Grubb V, Ins. Co. 103, Guggisberg v. Waterloo Mut. Ins. Co. 203. Gulf City Ins. Co. v. Stephens, lOli. Iladley v. Ins. Co. 100, 170, 385. Haf penny v. People's Fire Ins. Co.206. Haganiiin v, Allemania Ins, Co. 389, 393. 403. Ilaight V. Kremer, 94. Haines v. Republic Fire Ins. Co. 105. Haley V. Manulacturers Ins. Co, 177. Hall V. Dorchester Mut. Fire Ins. Co.44, v. Ins. Co. of N. A. 307. Hnmhieton v. Home Ins. Co. 7. Hiimmcl V. Queen Ins. Co, 370, 887. Hand v. Williamsburg City Fire Ins. Co. 76, 154, Hanover Ins. Co, v. Manuason,185,38l. Hanson v. Milwaukee M, Ins, Co. 112, Harding v. Town of Townslitnd, 81, Harp V, Grangers' Mut, Ins, Co. 73, Harriman v, Quoon Ins. Co. 84, 101, 253, 327. Harrington v, Fitchburg Ins. Co. 80. 180, 884, 842. TABLB OF OASES. xiii Pi re Ins. Co. Jo. 185. rire Ins. Co. 3ank, 175. 30. Co. V. Samo, Ins. Co. 41, Ins. Co.l97, :o. 875. e Ins. Co. 89. Co. 19, 57. il Ins. Co. 9. Co. 253, 267, 0. 265. to Fire Ins. 1. Co. 58. Co. 207. ns. Co. 223. Ins. Co. 34, as. Co. 99. . 47, 388. int. Ins. Co, Tut. Ins. Co. liens, lOG. 0, 385. Ins. Co.206. IB. Cu. 389, ^ns. Co. 105. w. Co. 177. u Ins. Co.44. 07. :!o. 7. 27n, 387. ty Piro Ins. )on,125,88l. na. Co. 112, nslicnd. 81. 8. Co. 72. Jo. 84, 101, Ins. Co. 80, Harris v. Gaspee Fire Ins. Co. 173. V. Royal Canadian Ins. Co. 294. Hart V. Lycoming Fire Ins. Co. 242. Hartford Fire Ins. Co. v. Abbott, 385. V. Alcott, 179. V. Davenport, 96, 386. V. Doyle, 130. Hartford Ins. Co. v.Farrish, 15, 233, 82U, 356. V. Gray, 38. V. Owen, 129. V. Pennell. 304. V. Reynolds, 15, 56. V.Smith, 2, 332,364. V. State, 130. V.Webster, 343, 347. V. Wilcox, 4, 230. Harvey v. Cherry, 157. Haslctt V. Allegheny Ins. Co. 238. Hastings Mut. Fire Ins. Co. v. Shan- non, 38. Hastings v. Westchester Fire Ins. Co. 83, 179. Hawkc V. Niagara Dist. Ins. Co. 234, 248. Hay V. Star Fire Ins. Co. 172, 270, 287. Hays V. Lycoming Fire Ins. Co. 213. Hay ward v. Liv,, L. «&G. Ins. Co. 110. V. National Ins. Co. 101. Bazzard v. Canada Agricultural Ins. Co. 45, 88. 222. Heald v. Builders' Ins. Co. 152. Ilearn v. New England Mut. Ins. Co. 820. Heath v. Springfield FireTns. Co. 100. llebi-l v. Amazon Ins. Co. 132. Hebcrnia Mut. Fire Ins. Co. v. Meyer, 349. ^ ' Heilmnn v. Westchester Fire Ins. Co. 179. Hclbiner v. Svea Ins. Co. 127. Heller v. Crawford, 142. Hendrickson v. Queen Ins. Co. 03,218, 343. Hcnning v. U. S. Ins. Co. 280. Herbert v. Mercantile Fire Ins. Co.368. Herkins v. Provincial Ins. Co. 62, 270. Herman v. Adriatic Ins. Co. 840. v. Xlercliants Ins. Co. 08, 148, 889. Hews v. Atlus Ins. Co. 883. Hibernia Ins. Co. v. O'Conner, 7, 80, 214, 252. Hick.s V. Empire Ins. Co 106, 262. Hill V. Equitable Ins. Co. 883. V. Uibernia Ins. Co. 87. Hill V. Home InB. Co. 42, 118. V. Ins. Co. 831. Hingston v. ^tna Ip . Co. 10. Hinman v. Hartford Fire Ins. Co. 67, 91, 808, 857. Hoffecker v. N. C. M. Ins. Co. 52. Hoffman v. Banks, 185. Holbrook v. St. Paul Ins. Co. 157,164, 292, 293. Hollingsworth v. Oermania Ins. Co. 55. Hollister v. Quincy Ins. Co. 195. Holmes v. Drew, 92. Home Dist. Ins. Co. v. Thompson, 271. Home Ins. Co. v. Baltimore Ware- house Co. 75, 107, 140. V. Curtis, 65, 71, 247. V.Davis, 1.30,131,404. V. Duke, 61, 241, 405. v. Oaddis, 403, 410. V. Goldsmith, 135. V. Heck, 54, 307. V. Lindsey, 27, 241. V. Morse, 284. V.Myers, 84, 172,216, 276. v. Penn.R.R.Co.lO«, 303. v. Tighe, 59. Home Ins. Co. 259. Home Mut. Ins. Co, v. V. Garfield, 100, 271. Hauslein, 23, 43, 159. Fire Ins. Co. Hotchkiss V. Germania 51, .347, Hough V. People's Ins. Co. 66, 75,139, 140, 878. Houghtor V. Watertown Fire Ins. Co, 384. Ilovey V. Home Ins. Co. 280. How V.Union Mut. Life Ins.Co.20,353. Howard v. Hinckley Co. 192. Howard Ins. Co. v. Scribner, 75. Hubbard v. Hartford Fire Ins. Co. 69, 93,218,230,300. Hnchberger v. Home Ins. Co. 124,239. V. Merchants Ins. Co. 61, 124. Hughes V. City of Cairo, 136. V. Vinland Ins. Co. 208. Hummel's App. 194. Humphrey v. Hartford Fire Ins. Co. 82, 112, 174, 235, 287, 258, 827. V. City of Noifolk, 180. Huntley t. Home Ins. Co. 248. XIV TABLE OF OASBS. i Hurd V, St. Paul Ins, Co, 269. Hutchinson v. Niagara Dist. Ins. Co. 258, 882. IJc V. Phoenix Ins. Co. 168, 343. III. Mut. Fire Ins. Co. v. Andes Ins. Co. 82. III. Mut. Ins. Co. V. Archdeacon, 348, 350. Illinois Firo Ins. Co. v. Stanton, 4, 93, 174, 184. 241. Imperial Ins. Co. v. Express Co. 64. M^ V. Murray, 66, Imperial Fire Ins, Co,v, Gunning, 275, T, Murray, 152, 357, V. Sherman, 101. Imperial Marine Ins. Co. v. Fire Ins. Co. 73. In re Reis, 162. Insurance Company t. Boon, 292. V. C. D., Jr. 302. V, Chase, 201,302. V. Colt, 7. V. Dlggs, 50, 155. V. Haven, 310. V. Holt, 224. V. La Croix, 171, 348. V. Lewis, 86, 97, 276, 350. V. Long, 336. V. Lyons, 1.5, 219. V. Moore, 193. V. McCain, 14, 15. V. McGookey, 17, 215, 244. Norton, 348. O'Malley, 118. Stinson, 158. The Common- wealth, 805. V, Thompson. 155. Ins. Co. of N. A. V. Bninbridge, 263. V. Comm. 85. V. Hope, 271. V. Ziiinger, 257. International Life Ins. Co. v. Franklin Fire Ins, Co. 56. Iron Co. V. Maine Mut. Ins. Co 199. Irwin V. National Ins. Co. 54. Israel v. Teutonia Ins. Co, 124. Jackson v. Van Slykc, 186. James v. Lyroming Ins. Co. 289, 855. James River Ins. Co v. Merritt, 4, 879. Jameson ▼. Royal Ins. Co. 213. V. V. V. V. Jecks V. St. Louis F. & M. Inft. Oo. 32, 47. Jenkins t. Armour, 194. Johnson v. Brewer's Fire Ins, Co, 285, V, Campbell, 140. V. Canada Farmers' Ins. Co. 30, 108, 109. V. Continental Lh. Co. 273. V. Humboldt Ins. Co. 173. V. N. B. and M. Ins. Co. 79. V. Phojnix Ins. Co. 44, 61. V. Provincial Ins. Co. 13. V. Union Ins. Co. 142. Joliffe V. Madison Mut. Ins. Co. 193, 197. Jones V. iEtna Ins. Co. 250. V. Firemen's Fund Ins. Co. 144. V. Mechanics' Fire Ins. Co. 104, 124, 252. V. Taylor, 128. Kaler v. Builders' Mut. Fire Ins. Co. 107. Kanndny v. Gore Dist. Ins, Co. 43, 181. 224. Kline v. Ilibcrnia Ins. Co, 51, Kansas Ins. Co, v. Berry. ;5()7, V, Craft, 206, Keeney v. Home Ins, Co. 39, 50, 260, 326, Kelly V, Hochelnga Mut. Fire Ins. Co, 66, 207. V. Home Ins, Co. 329. V. Liv,. L & G, Ins. Co, 151,218, Kendall v, Holland Purchase Ins. Co, 214, Ken! edy v. Agricultural Ins, Co. 88. V. Ins. Co, 320, 360. Kensington Nat. Bank v, Yerkes, 89, 262. Kirr V. British America Assur. Co.60. V. Hastings Mut. Ins. Co. 46,365. King V. Enterprise Ins. Co. 55, 820. Kingsbury v. Buckncr, 159. Kline v. Queen Ins. Co. 155. Knickerbocker Ins. Co. v. Gould, 82, 221, 357. V, McGinnis, 315. Knight V. Eureka Fire Ins. Co. 164, 220, 385. Knox V, Lycoming Ins, (^o. 21. 277, Kronk v. Birmingham Ins. Co, 314, Lafiirgo V, Liv., L. & G, Ins. Co. 61. 255. Lamar Ins. Co. v. Moore, 807. TABLE OF CASES. %y a. Ina. Oo. Iu8. Co. 285. crs' Ins. Co. IIS. Co. 273. 1. Co. 173. Ins. Co. 79. :(>. 44, 61. • Co. 13. . 142. ns. Co. 193, 50. Ins. Co. 144. Ins. Co. 104, riie Ids. Co. Ins. Co. 43, 51. 307. }06. 39, 50, 260, Fire Ins. Co. !9. Co. 151,218. Iiaao Ins. Co. [ns. Co. 88. 260. Yerkes, 89, Usur. Co. 60, I. Co. 46,365. o. 55, 320, •9. r)5. Gould, 83, 331,357. . McGinnis, 215, 18, Co. 164, o. 21, 277. s. Co, 314. Ina. Co. 61, 207, Lamb v. Bowser, 132, 133, 203, 240, V, Lamb, 130, 197. Lancaster Fire Ins, Co. v. Lenheira, 301. Landers v. Watertown Ins. Co. 400. Landis v. Home Mut. Ins. Co. 191, 192. Langdon v. Minnesota Mut. Ins. Co. 28, 346. Langworthy v. Oswego Ins. Co. 295. Lapeer Ins. Assoc, v. Doyle, 67. Lasher v. Northwestern Nat. ins. Co. 43, 99, 316, 386. V. St. Joseph F. & M. Ins, Co. 409. Liitoix V. Germania Ins. Co. 10, 247. Lattonuis v. Farmers' Mut. Ins. Co. 6, 37, 144, 189, 239, 320. Law V. Hand-in-IIand Ins. Co. 406, 410. Lehigh Valley Ins. Co. v. Fuller, 138. Leland v. Kirby, 177. Lengsfield v. Richardson, 235. Leonard v. Lebanon Mut, Ins. Co. 204. Levy V. Peabody Ins. Co. 109, 348. Lewis V. Atlas Mut. Life ins. Co. 13, 13. Lias V. Roger Williams Ins. Co. 174. Liblong V. Kansas Fire Ins. Co. 133. Lindley v. Union Ins. Co. 233. Lindsay v. Lancashire Fire In?. Co. 3.)6. Lingley v. Queen Ins. Co. 150. Little V. Phoenix Ins. Co. 65, 124, 155, 171,348. Xiiv., L & Q. Ins. Co. v. Creighton,40, 306. V. McGuiro, 100, 310. V. Verdier, 80. V. Wyld. 333. Livingston v. Western Ins. Co. 173. Lockwood V. Middlesex Mnt, Ins. Co. 34, 54, 63, 89, 317, 245, 388, 318, 339, Lohnis V, Ins, Co. of N. A. 1 8. Longley v. Northern Ins. Co, 120. Loncjueville v. West. Asa. Co, 291. Looney v, Looney, 161. Lovewell v. Westchester Ins, Co, 383. Loy V. Home Ina. Co. 30. Luce V, Dorchester Mut. Ins. Co. 143. V. Springfield Ins. Co. 1, 341. Ludwig v, .Icrsey City Ins. Co, 66, 93, Luling V. Atlantic Mnt, Ins, Co. 186. Lungstrass v. German Ins. Co. 70. Lycoming Ins, Co. v. Barringer, 85, 101, 308. V. Bedford, 314. Lycoming Ins. Co. ▼. Dunmore, 253. V. Haven, 311. V. Jackson, 37, 87, 100, 108. V. Bought, 399. V. Rubin. 10r>, 238. V. Schwenk, 394, T.Ward, 16, 17. V. Woodworth, 13, 301. Lycoming Mut, Ins, Co. t. Stocklomn, 74, 183. Lyman v. Bonney, 149. Lyon v, Stadacona Ins, Co. 29S, 315, 369, Lyons v. Globe Mut, Fire Ins. Co. 303, 203. V, Manufacturers' Ins. Co. 332. V, Providence Ins. Co. 406. y, Washington Ins. Co. 21J6. Machctte v. Hodges, 4. Maher v. Hibcrnia Ins. Co. 95, 125, 3t3, 259, 374, 375. Maine Ins. Co. v. Farrar, 198. v. Pickering, 306, V. Slock well, 198. Maine Mnt. Ins, Co. v. Blunt, 193. Mamlok v. Franklin, 358. Manger v. Holyoke, 75. Manhattan Ins. Co. v. Bjirker, 307. v. Weill, 310. Manhattan Fire Ins. Co. v. Neill, 101. Manlove v. Burger, 185. V. Naylor, 185. Mansbach v. Metropolitan liifo Ins. Co. 57. Manufts. Ins. Co. v. Kunkler, 147. Maritime Bank v. Guardian Ins. Co. 387. Mark v. National Fire Ins. Co. 43, 1 16, 395, 818. Marland v. Royal Ins. Co. 346, 844. Marsh v. Northwestern Nut. Ins. Co, 54. Marshall v. Times Fire Ins. Co. 373. Martin v. Franklin Fire Ins. Co. 45, 115, 385. V. Mutual Fire Ins. Co. 53,343, Martz V, Detroit Ins. Co. 138. Marvin v, Stadacona Ins. Co. 56. Marx v. National Ins. Co. 70. Maryland Fire Ins. Co. v. Qusdorf, 291. 347. Mason v. Andes Ins. Co, 60. XVI TABLE OF CASBS. Masoa v. Citizens' P:re Ins. Co. 249, 253. V. Hartford Fire Ins. Co. 340. Massasoit Steam Mills v. Western As- sur. Co. 72. Masse v. Hochclaga Mut. Ins. Co. 207, 263. Mathews v. Queen City Ins. Co. 151, 323. Matson v. Farna Buildings Ins. Co. 167. Matterof Moore, 177. Mayor of N. Y. v. Brooklyn Fire Ins. Co. 354. \. Exchange Fire Ins. Co. 102. Mead v. Westchester Fire Ins. Co. 275, Meare v. Humboldt Ins. Co. 301. Mechanics' Building & Savings Socie- ty V. Gore Dist. Mut. Fire Ins. Co. 201. Mechanics' Society v. Gore Dist. Ins. Co. 32, 180. Mechler v. Phoenix Ins. Co. 154, 286. Medina v. Builders' Mut. Fire Ins. Co. 86, 382. Mentz V. Armenia Fire Ins. Co. 40. V. Lancaster Fire Ins. Co. 345. Mercantile Ins. Co. v. llolthorne, 258. Merchants & Miners' Transp. Co. v. Assoc. Firemen's Ins. Co. 293. Merchants' Mut. Ins. Co. v. Blandin, 128. Merrill v. Agricultural Ins. Co. 88, 92, 368. Mers V. Franklin Ins. Co. 101,811,315. Mersereau v. Phoenix Mut. Life Ins. Co. 11. Mershon v. National Ins. Co. 43, 246. Merwin v. Star Fire Ins. Co. 174, 362. Meyers v. Germania Ins. Co. 343, 347. Miagham v. Hartford Fire Ins. Co. 14, 102, 116, 267, 275, 341. Miami Valley Ins. Co. v. Stanhope, 119. ' Michigan Cent. R. R, v. Andes Ins Co. 285. Michigan State Ins. Co. v. Lewis, 25. 100, 345. Mickey v. Burlington Ins. Co. 168, 213, 355. ' Mickler v. Phoenix Ins. Co. 846. Midland Ins. Co. v. Smith, 61. Miller v. Aldrich, 176. V. Alliance Ins. Co, 280, 319. 401, 404, 409. V. Amazon In?. Co. 819. T. Ins. Co. of N. A. 821. Miller t. Oswego & Onondaga Ins. Co 327 Mills v.* Farmers' Ins. Co. 103,291,379, V. Ins. Co. 118. Millville Ins. Co. v. Collerd, 9, 71. Millville Mut. Fire Ins. Co. v. Wyl- gus, 313. Miner v. Judson, 26, 191. Minzesheimer v. Continental Ina. Co. 94. Mispelhorn v. Farmers' Fire Ins. Co. 50, 114. Mix V. Andes, 155, 172. Mobile Fire Dep. Ins. Co. v. Miller, 364. Monndnock R. R. Co. t. Manufactu- rers' T .. Co. 379. Monitor Ins. Co. v. Young, 7. Monitor Mut. Ins. Co. v. Buffum, 52,. 192. Monroe Co. Mut. Ins. Co. v. Robinson, 311. Monroe v. Southern Mut Ins. Co. 157. Montrgue v. Boston and Albany R. R. 180. Moore v. Virginia Fire Ins. Co. 53, 92. Morrow v. Waterloo Co. Mut. Fire Ins. Co. 53. Morse v. City of St. Paul, 131. V. Buffalo Fire Ins. Co. 66, 160. Moulthrop V. Ins. Co. 210. Moyes v. Mechanical Mut. Ins. Co. 136. Mueller v. Southside Fire Ins. Co. 67, 349. Muhlcmnn v. National 'ns. Co.104,187- Mullany v. Na'. Mullen V. Doi Co. 19t Mut. Assur. Sr . Mut. Fire Ini. >r 361. Mut. Fire Ins. 1 /O, )It, 209. Andes Ins. Co. 278. V. Coatsville Shoe Factory, 146, 160. L. & G Ins. Co. 235. McArthur v. Smith, 202. McBride v. Gore Dist. Mut. Ins. Co. 217, 306. V. Republic Fire Ins. Co. 97, 252, 854. McCabe v. Dutchess Co. Mut. Ins. Co. 17. V. Farm Buildings Fire Ins. Co. 111. McCann t. JEtna Ins. Co. 232. V. Waterloo County Fire Ina. Co. 106. McCIuer v. Girard Ins Co. 291. Myers v. Liv., TABLE OF CASES. XVI I londaga Ins. 103,891,379. rd, 9, 71. Co. V. Wyl- intal Ins. Co. 'ire Ins. Co. v^. Miller, 364. , Manufactu- g.7. Buffum, 52^ V. Robinson. Ins. Co. 157. 1 Albany R. 8. Co. 53, 92. itut. Fire lus. , 131. , Co. 66, 166. ). Ins. Co. 136. Ins. Co. 67, .Co. 104, 187. tOl. it. Fire Ins. 209. des Ins. Co. itsville Shoe itory, 146, '. Co. 235. ut. Ins. Co. Ins. Co. 97. Mut. Ins. gs Fire Ins. 232. ity Fire Ins. 1. 291. McClure v. Mississippi Valley Ins. Co. 13. V. Wiitertown Fire Ins. Co. 33.J. McClunkey v. Providence Jus. Co. 40, 103. "I^Cmw V. Old North State. 200. McCrca v. Waterloo Mut. Ins. Co. 221. McCulIoch V. Norwood, 241, 358. V. Gore Dist. Mut. Fire Ins. Co. 320. McCutcheon v. Kivers, 17. McDennott v. Lycoming Fire Ins. Co. 2G3. McFarhtnd v. Mtna Ins. Co. 162. V. Peabody Ins. Co. 64,94, 169, 380. McGuj^an v. Manufacturers and Mer- chants' Ins. Co, 393, 399. McTntire v. Plaisted, 168. Mcintosh V. Ontario Bank, 159. Mclntyre v. National lua. Co. 54. McKenzie v. Fire Ins. Co. !i4, 186. McKisslck V. Mdl Owners' Mut. Ins. Co. 30. McLiichian v. yEtna Ins. Co. (19, 217. McLeod V. Citizens' Ins. Co. 120, 269, 312. McMiiuus V. ^]tna Ins. Co. 251. McMaster v. Ins. Co. of N. A. 94, 104. McQueen v. Plicenix Mut. Ins. Co. 393, 414. McRossie v. Provincial Ins. Co. 60. National Bank v. Ins. Co. 303. Naughter v. Ottawa Ins. Co. 98, 101, 146. Nedrow v. Farmers' Tns. Co. 201, 325. N. B. & Mcrcjintile Ins. Co. v. Liv., L. & «. Ins. Cn. 79. Newhail v. Atlantic Fire Tns. Co. 284. Newman v. Home Ins. Co. 175. Newton v. Gore Dlst. Mut. Fire Ins. Co. 125. Niaijara Ins. Co. v. Hodecker, 133. Niairara Dist. Mut. Ins. Co. v. Gortlou, ' 398. Norman v. Ins. Co. of N. A. 10. North Am. Ins. Co. v. Whipple, 274. N. A. Fire Ins. Co, v. Zainijer, 328. Northamptoii Mut. Ins. Co. v. Stewart, 2(t3. v. Tuttle, 240. North British Ins. Co. v. Moffatt, 139. North Penn. Fire Ins. Co. v. Susque- hanna Mut. Fire Ins. Co. 281. Vol. II.— B Northrop v. Germania Fire Tns. Co. 18. Northwestern Mut. Life Ins. Co. v. Germania Ins. Co. 178, 299, 352. Norwood V. Resolute Ins. Co. 278. Noyes v. Ilartford Ins. Co. 160. Oakes v. Manufacturers' Ins. Co. 35. Of,'. Solomon v. Metropolitan Ins. Co. 201. Sossamnn v. Paniliro Irs. Co. 31. Southern Mut. Ins. Co. v. Freer, 110. V. Kloebcr. 371. V. Tnvlor, 213. V. Yates, 303. 3t»5. Southmaycl v. AVatertown Ins. Co. 18. Sowden v. Standani Ins. Co. 18, 371. Spooner v. Vermont ]\Iiit Iiis. Co. 400. Sprapue v. Holland Purchase Ins Vo. 14. 363. Stache v. St. Paul Fire Ins. Co. 136, 373. Stamps V. Codimcrciai Fire Ins. Co. 179. Standard Oil Co. v. Amazon Ins. Co. 114, WO. V. Triumph Ins. Co. 11. 107, 108. Stanton v. ^tna Ins. Co. 378 V. Home Fire Ins. Co. 258, 205. V. AVestern Ins. Co. 348. State V. Beard slev, 136. V. Byrne, 51. V. Richmond Fire Assoc. 134. V. Spooner, 136. State Ins. Co. v. Maackens, 117, 170, 173, 176, 21.-), 353, 258, 385. State Ins. Co. v. Todd, 111, 360, 201, 287. State Fire Ins. Co. v. Porter, 230. State of Wis. v. Farmer. l.'!6. Stearns v. Quincy Ins. Co. 180. Steen v. Niagara'ins. Co. 81», 172. Steinbach v. LaFayette Ins. Co. 105, 2'J7. V. Relief Ins. Co. 275. Steinmetz v.Franklin Fire Ins. Co. 323. Steward v. Plia-nix Fire Ins. Co. 850. Stewart v. Northampton Mut. Ins. Co. 200. Stickney v. Niagara Dist. Mut. Ins. Co. 355, 357. Stinchfield v. Miliken, 182. Stockton V, Firemen's Ins. Co. 403, Stohn V. Hartford Fire Ins. Co. 159 233. ' StoUe V. ^tna Ins. Co. 3, 46, 97, Storms V. Canada Mut. Ins. Co. 184. Stover V. Ins. Co. 300. Strong V. Phceni.x Ins. Co. 280. Stupctzki V. Tnin.-. V. Jolinson, Vv\h, 5{:«4. ?. Co. 3J7. >. J>3, 88;{. lion Ins. Co, Ajjonoy, 75. Co. •,>.•)•,'', 258. Ins. Co. :5!», N. W. K. U. , Co. 28. !.""»8. :Ui2. 'o. !». 2;n. . 287. :5. illns. «'o.3i. ^. Co. 284. utcliinw, 58, n;. m;, tl7, 27«, (50. s. Co. 10. .s. Co. 114, ins. Co. 221. Co. 41. Ins. Co. 102. Co. ;ia, 115, J8, 344, :{52, H. Co. 243. I. 'o. 100. ns. Co. 104, Idh. Co. 55, .'o. 103, 150, 5, 387. CO, 170. loiut Stock Underwriters' Agency v, Sutlierlin, 10, 170, 231. Un«;er v. People's Ins. Co. 81, 124. Union Ins. Co. v. Cliipp, 17, 101. V. C.riint, 240. V. Grc.-nleaf. 100. United Life Ins. (Jo, v. Ins. Co. N. A. (>. Untersiiiifer v. Niaifiinv Ins. Co. 3. Van Allen v. Fsirniers' Joint Stock Ins. Co. 1 1, 9(5, 07. Van Alstyne v. iEtua Ins. Co. 103, 320. Van Buren v. St. Jo.sepii Ins. Co. 173, 189. Van Inwagcn v. t'ity of Cliieago, 12 '. Van Loan v. Farmers' Miit. Ins. Co. 238. Van Sclioick v. Niagara Fire Ins. Co. 07. Van Tuvl v. Westebe-ster Fire Ins. Co. 10:i, 274. Van Volkenburgv. Lenox Fire Ins. Co. (5. 55. Vanslvke v. Trempealeau Co. Mut. Fire Ins. Co. 212. Vilas V. N. Y. Cent. Ins. Co. 308. Vilenlnirger v. Proteetive Mut. Fire Ins. Co. 112, 372. Vineland v. Security Ins. Co. 310. Virginia Fire Ins, Co. v. Feagin, 33, 113. V. Ivloci)er, 05, 147, 314,310. Vryan v. Peabody Ins. Co. 329. AVait V. Agricultural Ins. Co. 333. Wakefield v. Orient Ins. Co. 338. Waldeck v. Springfielil F. «.t M. Ins. Co. 403. Walker v. City of Springfield, 130. V. Farmers' Ins. Co. 72, 244. V. Linn County, 20. Wallace v. German American Ins. Co. 42. Walsh V. Hartford Fire Ins, Co. 18, 95.343, 347,410. V. Philadelphia Fire Assoc. 157, 314. Walters v. St. Joseph Fire Ins. Co. 55. VVarbasse v, Essex Co, Mut. Ins. Co. 174. Waring v. Lodcr, 174, Warner v. Burns, 187. V. Ins. Co. of N. A. 204, Washburn v. Artisans' Ins. Co. 123, \ ''ash burn v. Great Western Ins, Co. 275, V. Ins. Ca. 133. V. WeBtern Ins. Co. 122. Washington Mut. Fiie Ins. Co, v, Hosenberger, 204. Washoe Mantg. Co, v. Hibernia Fire Ins. Co. 24M. Wass V. Maine Mut. Ins. Co. 7. Waterhouse v. Gloucester Fire Ins. Co. 47. Watertown Ins. Co. v. Grover & B. Sewing M, Co. »0, 89, 310, 317, Watertown Fire Ins, Co, v. Simons, 138, 317. Watrous v. Miss. Valley Ins. Co. 180. Webster v. Phu'nix Ins. Co. 344. Wedrow v. Farmers' Ins. Co. 201. Weed V. Srheneclady Ins. Co. 241. Weeks v, Lvconiing Ins. Co. 101, 233, 230, 2(54. Weir V. Northern Cos. Ins. Co. 305. W«'st V. Citizens' Ins. Co. 27. Westchester Fire Ins. Co. v. Dodge, 172, 182. 387. V. Earl, 00, 222, 347. V. Foster, 105, 180, 327, 387. Western Ins. Co. v. Mason, 244, 310, 330. Westniacott v. Hawley, 170. West Rockingham Fire Ins. Co. v. Sheets, 243, 253, 309, 345. Wheeler v. American Cent, Ins. Co. 300. V. Ins Co, 103, 181. V. Liv., L. & G. Ins. Co. 385, 400. V. Watertown Fire Ins. Co. 42, 227, 250, 374. Whipple V. N. B. & M. Fire Ins. Co. 2. White V. Agricultural Ins. Co. 307. V. Connecticut Ins, Co. 11, 55 240. V. Robbins, 45. V. Western Ins. Co. 257, Whited V. Germania Fire Ins. Co. 19, 104, 350. Wbitehouse v. Ins. Cos. 285, Whitlaw V. Phoenix Ins, Co, 305, 377. Whitman v. Mason, 185, Whitney v. Black River Ins, Co. 146, 324, 333. Whittier v, Hartford Fire Ins, Co. 384. Wilkins v. Fire Ins. Co, 55, V, Ins, Co, 301. xxu TABLB OP CASES Wilkinson v. First Nat. Fire Ins. Co. 171. Williams v. Canada Mut. Ins. Co. 332. V. Firemen's Fund Ins. Co. 298. V. German Mut. Fire Ins. Co. 188, 189. V. Hartford Ins. Co. 43, 69, 116. V. Mechanics' & Traders' Iiis. Co. 298. V. Niagara Ins. Co. 62, 101, 112,253. V. People's Fire Ins. Co. 145, 297. V. Phaniix Ins. Co. 124. V. Roger Williams Ins. Co. 151. Williamsburg Ins. Co. v. Frothing- liam, 48. Williamsburg City Ins. Co. v. Cary, 145, 170, 253. Williamson v. Commercial Union Ins. Co. 228, 300. T. Iland-in Hand Mut. Ins. Co. 41. Willis V. Germania Ins. Co. 112, 215, 262, 300. I Wilson V. Citizens' Ins. Co. 106, 809. I V. Queen Ins. Co. 226. V. Standard Ins. Co. 412. Winans t. AUeuiania Fire Ins. Co. 9, 166. Winnisliiek Ins. Co. v. Schueller, 117, 241, 252. 307. Witte V. Western Mut. Fire Ins. Co. 200. Wolf V. Security Fire Ins. Co. 23. Wood V. Firemen's Ins. Co. 20, 229, 371. V. Northwestern Ins. Co. 103, 151.159,302. Wooddy V. Old Dominion Ins. Co. 216, 237, 240, 315. Woodruff V. Imperial Fire Ins. Co. 68, 101. 114, 339, 340, 373. Worswick v. Canada Ins. Co. 377. Wright V. Hartford Fire Ins. Co. 53, 61. Wynans v. Allemania Fire Ins. Co. 9, 166. Wynne v. Liv., L. & G. Ins. Co. .358. Yost V. American Ins. Co. 209. Young V. Hartford Ins. Cc. 9, 1 25, 252. \ Co. 106, 809. ). 226. Co. 412. re Ins. Co. 9, ^chueller, 117, Fire Ins. Co. IS. Co. 23. 1. Co. 20, 329, Ins. Co. 103, 02. in Ins. Co, 216, ire Ins. Co. 68, 373. 8. Co. 377. Ins. Co. 53, «1. "'ire Ins. Co. 9, . Ins. Co. 358. :'o. 200. Co. 9,125, 252. 4 TABLE OF KEPORTS. EEPORTS OF GREAT BRITAIN. LAW REPORT SERIES. LAW REPORTS, NEW SERIES VOL. VOL. IJouso of Lords : Chancery Division, 1-15 Eiifrlish and Irish Appeals, 5-7 Qucen'.s Bench, 1-6 Scotch and Divorce Appeals, 2 Exchequer, 1-6 Privy Council Appeal Cases, 4-0 Common Pleas, 1-6 Common Law: Appeal Cases, , 1-6 Queen's Bench, 7-10 Exchequer, 7-10 IRISH REPORTS. Common Pleas, 7-10 Equity : Equity Cases, 13-20 Law, Equity, 4-11 6-11 Chancery Appeals, 7-10 Law Reports, 1-4 REPORTS OF BRITISH AMERICA. CANADIAN REPORTS. NEW BRUNSWICK REPORTS. VOL. VOL. Canada Supreme, 1-4 Berton, 1 Upper Canada: Allen, 3-0 Taylor's King's Bench, 1 Hannay, 1-2 Draper's King's Bench, 1 I'ugsley, 1-3 King's Bench (Old Series), 1-6 Pugsley and B., 1-3 Queen's Bench (New Series), 30-46 Common Picas, Grant's Chancery, 21-31 i6-26 NOVA SCOTIA REPORTS. Grant's Errors and Appeals, 1-3 Thompson's Supreme Court, 1-2 Tupper, 1-3 Cochran's Supreme Court, 1 Lower Canada : 01dri3 6-17 2!t-52 2-3 1 1 TABLE OF ABBREVIATIONS. Abb. Ct. App. Dec Abbott's Court of Appenis Decisions. Abb. N. C Abbott's New Cases. X. Y. Affi'd Affirmed. Affi'g Affirming. Ala Alabama. Alb. L. J Albany Law Journal. Allen Allen, New ' -inswick. Barb Barbour, N Baxt Baxter, Tennessee. Bias Bissell, IT. S. Cireuit. Blatch Blatchford, U. S. Circuit. Cal California. Can. Sup Canada Supreme. Cin. Supr. Ct Cincinnati ir^uperior Court. Cliflf Clifford, U. S. Circuit. Cochran, N. S Cochran, Nova Scotia. Col Colorado. Conn Connecticut. Coop. Ch Cooper, Ciiancery. Tennessee. Dill Dillon, U. S. Circuit. Disney Cin. Sup Disney, Cincinnati Superior. Fed. Rep Federal Reporter. Ga Georgia. Grant, Cas Grant (!ase^ Canada. Gi'.ut, Ch Grant, Chancery. Canada. Grant, Err. & App Grant, Errors and Appeals. Canada. Grat Grattan, Virginia. Hoiist Houston, Delaware. Id Same, 111 Illinois. Ind Indinnn. Ins. L. J Insurance Law Journal, Irish Hep. C. L Irish Common Law Report. Jones rity to adjust a , adjust a differ- eference to a dif- Hartford Fire \, itself does not lat the company it of the adjust- n of the action. 507. 1877. papers to the company at another place, and that the as- sured would hear about a discount in a few days, or that he would get his money in sixty days, and assured never hears from him or the company, it may be inferred that the action of the adjuster is made known to the company on his return, and from the evidence there is a right to infer that an actual adjustment was made and a recovery under a count alleging adjustment would be sustained on such proof. StoUe v. ^tna Ins. Co. 10 W. Va. 546. 1877. § 11. An adjustment procured by fraud is not bind- ing. American Ins. Co. v. Crawford, 89 111. 62. 1878. § 12. Assured was induced by representations of an adjuster of the invalidity of claim under his policy, to set- tle for one hundred dollars, and to execute a release. He afterwards repudiated the settlement, and brought suit upon the policy, claiming that the release was procured by fraud and deceit of company's agent. Trial court sub- mitted adjuster's representation of illegality of claim as an element of fraud upon which assured had a right to rely. Held, error; that the representation of the ad- juster constituted an expression of opinion only as to legal rights, and, though erroneous, should not have been sub- mitted to jury as an element of fraud, ^tna Ins. Co. v. Reed, 8 Ins. L. J. 350. 1878. Sup. Court Commission, Ohio. § 13. A loiiS adjusted and paid becomes an accord with satisfaction, and when no fraud is claimed, is a bar to another action on the same claim. Untersinger v. Ni- agara Ins. Co. 10 Ins. L. J. 237. 1881. Ohio Dist. Court. See Agent, § 8. 34, FJ, 44, 70. Contribution, 19. Damages, 18. Estop- pel, 6, 10, 32. Evidence, 3, 19, 33, 34, 53, 67. Examination under Oath, 4. Mortgagor and Mortgagee, 36. Mutual Company, 53, 94, 134. Notice of Loss, 15. Otlier Insurance, 42. Payment of Loss, 3. Proofs of Loss, 2, 5, 6, 64, 56. Recovery Baclc of Losses, 3. Waiver, 32, 37, 83, 33, 46. War- ranty and Representation, 27. with the assured he will take the r ii In liiii AGENT. § 1. Company cannot be enjoined from collection of its premiums in suit brought by a dismissed agent. Ma- chette V. Hodges, 1 Brewster, 313. 1867. § 2. Soliciting agent or broker may be the agent of the company, and clause in policy making him agent of assured cannot operate to change his character. Com- mercial Ins. Co. V. Ives, 56 111. 402. 1870. § 3. The custom of agents ratified by the company sufficiently establishes their authority. Illinois Fire Ins. Co. V. Stanton, 57 III. 354 1870. § 4. A commission to two agents jointly expires with the death of one. The survivor cannot bind the company without proof of subsequent recognition or au- thority. Hartford Fire Ins. Co. v. Wilcox, 57 111. 180. 1870. § 5. Authority of agent is not limited by written in- structions and authority. Hartford Fire Ins. Co. v. Wil- cox, 57 111. 180. 1870. § 6. When the question is us to whetlier a certain machine is included in the term "machinery" as used in the policy, it is not error to charge the jury, that " if de- fendant's agent wrote the application, and did so in such form as to include the machine, and sucli was the inten- tion of the parties, defendant is liable for its loss." James River Ins. Co. v. Merritt, 47 Ala. 387. 1872. § 7. Assured may ratify action of another in obtain- ing a policy even after a loss. Excelsior Fire Ins. Co. v. Royal Ins. Co. 7 Lans. 138. 1872. Affi'd, 55 N. Y. 343. § 8. The fact that a local agent has to some extent taken an active part in business of ascertaining and ad- justing losses, does not prove a general authority to act in such matters. Such an authority is special in its nature, AGENT. 5 llection of rent. Ma- le agent of I agent of ter. Cora- j company 1 Fire Ins. ;ly expires bind the ion or au- 7 111. 180. written in- Co. V. Wil- a certain as used in lat " if de- so in such the inten- i." James in obtain- Ins. Co. V. N. Y. 843. )uie extent ig and ad- ty to act in its nature, and must be established. The adoption of an arbitrator previously selected by other parties is not within the ap- parent scope of his agency. Turner v. Quincy Ins. Co. 109 Mass. 568. 1872. § 9. The delivery of a policy to a broker for purpose of delivery to the assured, constitutes the former the agent of the company in receiving the premium. Cahill v. Andes Ins. Co. 5 Biss. 211. 1872. s. p. Planters Ins. Co. v. Myers, 55 Miss. 479. 1877. § 10. An agent can authorize his clerk to contract for risks, to deliver policies, to collect premiums, and to take payment of premiums in cash or securities, and to give credit; the act of the clerk in all such' cases is the act of the agent, and binds the company. Bodine v. Exchange Fire Ins. Co. 51 N. Y. 117. 1872. s. p. Eclectic Life Ins. Co. V Fahrenkurg, 68 111. 468. 1873. § 11. If company itself ignores a special authority and expressly gives or encourages an agent to exercise ad- ditional powers for several years, and ratifies and confirms the same, thus holding him out to the world as rightfully exercising all those powers, thereby inducing the public to believe in and rely upon his agency, company cannot after a loss repudiate his action and fall back upon written au- thority for the purpose of evading the legal effect of those acts. If company ratifies such acts people have a right to presume such continued acts within the scope of his au- thority, and act upon such presumption. Farmers' Ins. Co. V. Taylor, 73 Pa. 342. 1873. § 1 2. When company delivers blank receipts or cer- tificates signed by its officers to an agent, with authority to deliver them to applicants, it is bound by alterations and erasures made in such papers bv the agent before their delivery, although he may be acting in violation of his duty to the company. Dayton Ins. Co. v. Kelley, 24 Ohio, 345. 1873. § 13. There is no necessity for ratification of the acts of an agent authorized to procure insurance, when such "1 If '■mV hi! Mf! Q AOEMT. acts are within the scope of his authority. Excelsior Fire Ins. Co. V. Royal Ins. Co. 55 N. Y. 343. 1873. § 14. An agent of assured authorized to apply for permission to make an addition to policy, cannot be held to be his agent to consent to an abandonment or cancella- tion of the insurance. Van \ alkenburg v. Lenox Fire Ins. Co. 51 N. Y. 465. 1873. § 15. Policy provided that it should not be valid un- less countersigned by a duly authorized agent at a certain place. During such agent's absence his partner issued and signed a policy in Jlrm name, which aclion was adopt- ed and acted upon by former upon his return. The report of risk sent to general agent contained copy of the policy, and in it was notice of fact that it was issued in firm name. He expressed no dissent, but wrote for infonnation in reference to risk itself. Premium was paid and received by company with knowledge of preceding facts. Held, that there was a ratification of the acts of agents in issue of policy, and that company was liable. United Life Ins. Co. v. Ins. Co. N. A. 42 Ind. 588. 1873. § 16. Agent having a general authority to act binds company by acts and declarations within ordinary and usual scope of his authority, although in excess of private or secret instructions. Lattomus v. Farmers' Mut. Ins. Co. 3 Houston, 404. 1873. § 17. Evidence showed that an insurance broker was in the habit of bringing applications for insurance to the conapany in behalf of others. The practice was, when policies were issued upon such applications, to charge the cash premiums to the broker, who collected them of the assured, and accounted for them to the company in monthly settlements. In a suit by the company against the broker to recover certain premiums paid, Ileld, that the evidence was competent to show course of dealing be- tween the parties, the effect of which was to make the broker the agent of the company for the purpose of col- lecting the premiums. That company could not recover of the assured after payment to the broker, and that the AGENT. celsior Fire apply for lot be held or cancella- )x Fire Ins. )e valid un- at a certain ner issued was adopt- The report the policy^ ed in firm information id received JHeld, that in issue of iife Ins. Co. o act binds dinary and } of private i' Mut. Ins. broker was 'ance to the was, when charge the ;hem of the ompany in my against , Jlela, that dealing be- ) make the pose of col- tiot recover nd that the money collected by latter was received by him to the use of the company. Insolvency of company is no defense to such an action. Monitor Ins. Co. v. Young, 111 Mass. 537. 1873. § 18. Where a company gives an agent blank certifi- cates of insurance to be filled and signed by him, he is the agent of the company, and any limitation upon his authority not known to assured cannot aflfect the latter. Wass v. Maine Mut. Ins. Co. 63 Me. 537. 1873. § 19. When an agent of the company issues policy and renewal receipt with his name written upon them as completed instruments, company cannot object that they are not countersigned by such agent. Hibemia Ins. Co. V. O'Connor, 29 Mich. 241. 1874. § 20. When a policy is issued to a broker, it cannot be returned by him and a new one substituted in its place, without consent of the assured, or by his authority. Ben- nett V. City Ins. Co. 115 Mass. 241. 1874. § 21. An agent of a company which has become in- solvent is liable to assured for return of premium, he being notified of such demand, and at time of its receipt not having paid over the money to the company. In such a case the company could not maintain an action against the agent for the premium, as the consideration for it has failed. Smith v. Binder, 75 111. 492. 1874. § 22. An insurance broker or solicitor has no author- ity to make binding contract of renewal, or waive con- dition as to prepayment of premium. Hambleton v. Home Ins. Co. 6 Biss. 91. 1874. § 23. Agent authorized to make parol contract of in- surance may fill up policy after a loss. Ins. Co. v. Colt, 20 Wall. 5G0. 1874. § 24. Agent authorized by company to negotiate contracts of insurance, and intrusted with blank policies signed by the president and secretary, with authority to 1 9 AGENT. fill up and deliver the same, can make parol contracts of insurance ; and the fact that credit was given for premium -cannot affect company's liability. The proper measure of damages in such a case is the amount agreed to be insured. Angell V. Hartford Fire Ins. Co. 59 N. Y. 171. 1874. § 25. Owner of property having sold it to plaintiff, wrote on back of policy an assignment and sent it by his son to a former agent of the company, whose au- thority had been revoked, and the son was so notified. He, however, subscribed what had been written on the policy: "This policy to enure to the benefit of C. S. Buchanan. A. T. Holmes, agent." And it was thus re turned plaintiff. About two weeks later and day before the fire plaintiff delivered policy to his son, who at his request took it to the oflSce of the company, informed the secretary of the transfer and facts, showing him the policy, and asked him if it was all right. Secretary said it was. Held^ that the fonn of the memorandum was sufficient to «how consent to the assignment ; and that what took place in office of company could be regarded either as i ratification of what Holmes had done as an assumed agent, or as a consent then and there given. In either aspect company was bound. Buchanan v. Exchange Fire Ins. Co. 61 N. Y. 26. 1874. § 26. A local agent has no authority as such to re- ceive notice of loss, and is not bound to communicate it to the company. Edwards v. Ins. Co. 75 Pa. 378. 1874. § 27. When a sub-agent signs and issues a policy for agent of company which is subsequently returned to the agent who, after having retained it for some days, re- delivers the policy to the insured after being informed of the facts of the case and then receives the premium, com- pany is as much bound as though it was the original act of the agent himself. Evidence that other policies had been returned to the company signed by the sub-agent and that the premiums had been received on the same without objection is admissible as tending to prove that the company authorized or ratified the act of their agent AGENT. i) mtracts of r premium neasure of )e insured. 1874. plaintiff, ent it by whose au- JO notified, en on the t of C. S. 18 thus re [lay before k'ho at his 'ornied the the policy, aid it was. iifRcient to vhat took jither as i 1 assumed In either lange Fire uch to re- licate it to 1874. policy for led to the days, re- formed of lium, com- riginal act )licies had sub-agent the same prove that heir agent in transacting its business through a sub-agent. Grady v. American Central Ins. Co. 60 Mo. 116. 1875. § 28. The rule that an agent cannot delegate his authority to act does not apply to mere ministerial acts to be performed. It is not necessary that the agent should do such acts in person ; if he directs the act to be done or with a full knowledge of the act adopts it as his own, it is sufficient. Grady v. American Central Ins. Co. 60 Mo. 116. 1875. § 29. An agent authorized to take applications in so doing acts as the agent of the company and not of the as- sured. Simmons v. Ins. Co. 8 W. Va. 474. 1875. And see Brugger v. State Investment Ins. Co. 5 Sawyer, 304. 1878. § 30. Agent authorized to take risks and issue policies may waive by parol any condition in policy issued by him. Winans v. Allemania Fire Ins. Co. 38 Wis. 342. 1875. s. p. Waives prepayment premium by giving credit. Tay- lor V. Germania Ins. Co. 2 Dill. 282. 1872. Young v. Hartford Ins. Co. 45 Iowa, 377. 1877. § 31. Clause in policy making one who procures the insurance the agent of the assured is binding and opera- tive ; assured must be regarded as assenting to it when he accepts the policy. Millville Ins. Co. v. Collerd, 9 Vroom, N. J. L. R. 480. 1875. § 32. Person authorized to accept risks, to agree upon and settle terms of insurance, and to carry them into effect by issuing and renewing policies, must be regarded as the general agent of the company. Pitney v. Glen's Falls Ins. Co. Q:) N. Y. 6. 1876. § 33. Possession of blank policies and renewal re- ceipts signed by the president and secretary, is evidence of a general agency. Pitney v. Glen's Falls Ins. Co. 65 N. Y. 6. 1875. § 34. While agents or adjusters may have an implied authority to investigate into the origin and causes of a 10 AGENT. ^t i> n. Ill if ! ' I fire, they do not have right in absence of express authority to institute criminal proceedings under a charge of arson. Company is not liable in an action for false imprisonment of the accused, unless agent's act in instituting the pro- ceedings was expressly authorized or subsequently ratified. Norman v. Ins. Co. of N. A. 4 Ins. L. J. 827. 1875. U. S. Circuit, 111. § 85. Agent to make surveys and to take applica- tions has no authority to vi^aive conditions requiring writ- ten consent. Thayer v. Agricultural Ins. Co. 5 Hun, 566. 1875. § 36. An agent has apparent authority only to in^ sure in the modes authorized by the charter of the compa- ny, and upon the terms and conditions inserted in their policies in ordinary use. De Grove v. Metropolitan Ins. Co. 61 N. y. 594. 1875. § 87. Local .agents and adjusters have no authority to waive limitation clause, unless assured hud been in- duced by their fraud to delay bringing his action. Under- writer's Agency v. Sutherlin, 55 Ga. 266. 1875. § 38. If agent's authority is limited to the taking of ' applications for insurance, notice to him does not bind the company. Dickinson Co. v. Miss. Valley Ins. Co. 41 Iowa, 286. 1875. § 39. Character and extent of agency is a question of fact for jury to determine. Dickinson Co. v. Miss. Val- ley Ins. Co. 41 Iowa, 286. 1875. § 40. An agent of company who fills up an applica- tion without the knowledge, request or authority of the assured, cannot be regarded as agent of the assured in so doing. Kingston v. iEtna Ins. Co. 42 Iowa, 46. 1875. § 41. Agent authorized to obtain insurance, having done so, has no authority to consent to its cancellation. Latoix v. Germania Ins. Co. 27 La. Ann. 113. 1875. § 42. Clause in policy making person who procures the insurance the agent of the assured in any transaction AGENT. 11 ss authority ;e of arson, iprisonment ig the pro- itly ratified. 1875. U. ake applica- [iiiring writ- Hun, 566. only to in- f the corapa- ted in their >politan Ins. 10 authority Ld been in- ;iou. Under- 75. he taking of not bind the Ina. Co. 41 a question of r. Miss. Val- p an applica- bority of the assured in so 16. 1875. •ance, having cancellation. 1875. rho procures y transaction 'i» relating to the insurance, does not make such person the agent of the assured to receive notice of its termination. White V. Connecticut Ins. Co. 20 Mass. 330. 1876. § 43. The facts that a person is authorized to solicit insurances, receive and forward applications, and on re- ceipt of the policy to deliver it and collect the premiums, and to collect the renewal premiums when in possession of the receipt of the company, and upon delivery of the same to the assured, are not suflficient as matter of law to make him a general agent. Merserau v. Phoenix Mutual Life Ins. Co. 66 N. Y. 274. 1876. § 44. The authority of a local agent authorized to leceive applications for insurance and to countersign and deliver policies does not extend to adjusting of losses, or waiving of proofs. The mere fact that such an agent assumes in a particular case to do these acts cannot es- tablish his authority. Bush v. Westchester Fire Ins. Co. 63 N. Y. 531. 1876. Rev'g 2 T. & C. 629. § 45. An insurance broker may be regarded by the company as clothed with full authority to act for the as- sured in procuring, modifying or cancelling a policy, and his acts in respect to the policy are same as if done by as- sured. Standard Oil Co. v. Triumph Ins. Co. 64 N. Y. 85. 1876. Affi'g 3 Hun, 591 ; 6 T. «fe C. 300. § 46. A local agent has no authority to waive condi- tion requiring proofs of loss. Van Allen v. Farmers* Joint Stock Ins. Co. 64 N. Y. 469. 1876. Rev'g 6 T. ut8ubmit- ade an oral was suffi- ntract was md that it 18. Co. 123 ^ent of the he agent of r or status, ^l. 1877. :)artie8 con- pmed of its .877. compaii'ifn ', and could application le company, the compa- 1 premiums as an oper- )o. 10 Hun, 38 not alone xpressed in :!o. 12 Hun, liat the one of the as- lade out by 8 made out n does not !o. 69 N. Y. § 64. A local agent of company, as such, does not have unlimited authority to represent his principal. Rey- nolds V. Continental Ins. Co. 36 Mich. 131. 1877. § 65. Authority of agent cannot be established by his assumption in doing the act relied upon. Reynolds v. Continental Ins. Co. 36 Mich. 131. 1877. § 66. Company is bound by the acts and declarations of its agent within apparent and general scope of his au- thority, and assured is not affected by limitation of such authority unless same is known to him. Rockford Ins. Co. V. Nelson, 65 111. 415. 1872. Eclectic Ins. Co. v. Fahrenkurg, 68 111. 463. 1873. Ins. Co. v. Lyons, 38 Tex. 253. 1873. Am. Cent. Ins. Co. v. McLanathan, 11 Kans. 533. 1873. Hartford Ins. Co. v. Farrish, 73 111. 166. 1874. Angell v. Hartford Fire Ins. Co. 59 N. Y. 174. 1874. Continental Ins. Co. v. Kasey, 25 Grat. 268. 1874. Georgia Home Ins. Co. v. Kinnier, 28 Grat. 88. 1876. Ins. Co. v. McCain, 6 Otto, 84. 1877. § 67. Notice to a soliciting agent authorized to re- ceive and forward applications is notice to the company. Agency clause in a policy subsequently delivered cannot make him the agent of assured. Boetcher v. Hawkeye Ins. Co. 47 Iowa, 253. 1877. § 68. Agent has no power to revive a cancelled pol- icy already rejected by the company without evidence of authority to rescind or recall the action of his principal. Such authority cannot be presumed. Hartford Fire Ins. Co. V. Reynolds, 36 Mich. 502. 1877. § 69. It is no part of an agent's duty to his company to look after insurance of other j)ersons, and all that he does in that way, beyond what relates to insurance in his own company in the usual course of business and for pre- miums paid, is outside of his official character. As an in- surance broker he represents the insured and not the in- surer. Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502. 1877. 16 AGENT. § 70. A local agent authorized to make contracts of insurance has no authority as such to adjust losses or waive conditions. Lohnes v. Ins. Co. of N. A. 121 Mass. 439. 1877. § 71. When application itself states that the agent making it is to be deemed the agent of the assured, the lat- ; f is bound by a false statement contained therein, even although inserted by the agent without putting^ the ques- tion to the applicant. Bleakley v. Niagara District Ins. Co. " ; Grant Ch. 198. 1869. And if the application coiitaiLt n. I such clause, company is not bound by notice to and knowledge of agent for such purpose. Billington V. Provincial Ins. Co. 2'Tupper, 158. 1878. Rev'g 24 Grant Ch. 299. § 72. An insurance broker delivers a check for pre- miums to company's local agent, with directions to retain it until he could ascertain whether policy would be ac- cepted by assured, and this condition is assented to by the agent, who agrees to retain it, and the assured refuses to accept the policy because it does not conform to the a\)- plication, and this refusal is forthwith communicated to the agent, who further agreed to retain the check until corrections could be made, and the agent in violation of these agreements gives up the check to special agent of the company, to injury of ::he broker. Ileld, that upon these facts the broker was entitled to recover amount of check from the local agent. Bobson v. Jordan, 124 Mass. 542. 1878. § 73. Whether a broker is the agent of assui'ed or of the company depends upon the knowledge of the assured ; if he deals with broker as agent of the company, and re- ceives the policy from him, and pays to him the premium under such belief, company is estopped by its act in de- livering policy to the broker from availing itself of agency clause in the policy, and payment of premium to the broker is payment to tlie company. Lycoming Fire Ins. Co. v. Ward, 90 111. 545. 1878. § 74. Conversations with broker may be admissible as part of the rei^ gtsfw upon the question of agency. AGENT. 17 contracts of st losses or .121 Mass. ,t the agent ired, the lat- herein, even ig the qiies- District Ins. ! application id by notice Billington Rev'g 24 jck for pre- ns to retain oukl be ac- ?nted to by ured I'efuses in to the ap- lunicated to check until violation of al agent of , that upon amount of ^1, 124 Mass. issured or of the assured ; any, and re- le premium act in de- If of agency the broker Ins. Co. V. admissible of agency. Lycoming Fire Ins. Co. v. Ward, 90 111. 545. 1878. Union Ins. Co. v. Chipp, 93 111. 96. 1879. § 75. The question is not merely what the real au- thority of agent was, but what was his apparent author- * ity, as shown by his acts, done with the knowledge and '^ assent of the company. McCabe v. Dutchess Co. Mut. I Ins. Co. 14 Hun, 599. 1878. I § 76. If agent is authorized to indorse written con- sent upon the policy, he is authorized to waive conditions requiring such consent. McCabe v. Dutchess Co. Mut. Ins. Co. 14 Hun, 599. 1 878. § 77. If an agent acting within the general scope of the business trusted to him fills up in his own language a written application from the statements of the assured fully and truthfully made, and receives the premium and issues the policy, the company shall not be permitted to defeat the contract by denying the truth of the applica- tion nor the authority of the agent, although he may have transcended his authority, unless the assured is chargeable with knowledge of his having exceeded his authority. Ins. Co. V. McGookey, 33 Ohio, 555. 1878. § 78. Agent of foreign insurance company who re- ceives premium after revocation of the license of the com- 5 pany to do business in the State, is liable for the return of .the premium to the assured, and such liability is not iaflfected by the fact that he had no notice of the revoca- tion of the license when he received the premium. McCutcheon v. Rivers, 68 Mo. 122. 1878. § 79. If an agent of company authorized to receive 'and forward application takes charge of the preparation of an application or suggests what shall be the answer or what will be sufficient answers, the company cannot avoid 'policy because they are false or untrue if full disclosures were made by tiie applicant to the agent. Under such circumstances the usual clause in the policy making the ^agent the agent of the assured is inoperative to prevent Isuch effect. Planters' Ins. Co. v. Myers, 55 Miss. 479. 1879. - Vol. II.~2 ) « ,lJ 18 AGENT. § 80. The mere fact that application for insurance ia forwarded to the office of the company for approval with knowledge of the assured, is not evidence that he had notice of any limitation upon the authority of such agent. American Ins. Co. v. Gallatin, 48 Wis. 36. 1879. § 81. When applicant leaves everything to tlie agent, and signs his name to a blank application, and the agent in filling it up makes a mistake as to the nature of the risk, the applicant is bound by it; the application contain- ing clause that the agent should be deemed his agent and not the agent of the company. Sowden v. Standard Ins. Co. 44 Up. Can. Q. B. 95. 1879. § 82. By consenting to company's decision to termi- nate his authority and agency at end of calendar year, a general agent loses his claim to salary after that time. Southmayd v. Watertown Ins. Co. 8 Ins. L. J. 914. 1879. Wis. § 83. Agent of company cannot be made agent of assured. Eilenberger v. Protective Mut. Ins. Co, 89 Pa. 464. 1879. 8. p. Broadhead v. Lycoming Ins. Co. 14 Hun, 452. 1878. Chase v. People's Fire Ins. Co. Id. 456. § 84. Agents who make contracts in behalf of com- pany, can dispense with conditions contained therein. It IS within the scope of their apparent powers and obliga- tory upon the company, unless assured is informed of their limitation. Knowledge of agent and his failure to cancel policy, or to inform the company of a fact occurring after issue of policy effecting a forfeiture without written con- sent indorsed, does not estop company from availing itself of the defense. Davey v. Glen's Falls Ins. Co. 9 Ins. L. J. 497. 1870. U. S. Circuit, Minn. s. p. Walsh v. Hart- ford Fire Ins. Co. 73 N. Y. 5. 1878. Rev'g 9 Hun, 421. § 85. The fact that the watchman or guard of the property of another who happens at the same time to be an insurance agent, does not thereby incapacitate him from writing a valid policy upon the property at the request of the owner. Northrop v. Germania Fire In*. Co. 48 Wis. 420. 1879. AGENT. 19 § 86. Where party employs a broker to procure his insurance, who employs another broker who procures the policy, containing clause making party who procures the insurance the agent of assured, and policy is accepted by the latter, Held, that such acceptance is a I'atification of the employment of the second broker, who under the con- dition as to agency must be deemed the agent of assured. Grace v. Am. Central Ins. Co. 16 Blatch. 433. 1879. § 87. A solicitor employed by a local agent of a com- pany is the agent of the latter. Davis v. Lamar Ins. Co. 18 Hun, 230. 1879. § 88. Company is not bound by knowledge of a broker. Ben. Franklin Ins. Co. v. Weary, 4 Bradwell, 74. 1879. § 89. If assured intrusts a written application to a broker, it is sufficient to establish authority of the latter as his agent ; notice to him or knowledge on his part of the use and occupancy of the premises does not bind the com- pany who issues a policy upon such application. In such a case proposition that company, by delivery of its policy to the broker, clothes him with the badge of agency upon which the assured may rely in receiving the policy and pay- ing his money thereon, has no application. Fame Ins. Co. V. Mann, 4 Bradwell, 485. 1879. § 90. Agent who takes an application on a form or blank sent to him by the company for the purpose, through a firm of insurance brokers, is the agent of the company, notwithstanding clause in policy making him agent of as- sured. The company is bound by his knowledge. Par- tridge V. Commercial Fire Ins. Co. 17 Hun, 95. 1879. § 91. Agency clause in policy cannot operate to make company's agent agent of assured. Whited v. Ger- mania Fire Ins. Co. 76 N. Y. 415. 1879. Affi'g 13 Hun, 191. § 92. Semhle a broker may be the agent of the com- pany as well as the assured, notwithstanding usual agency ao AGENT. 'i: I! I .tt •:{!- clause in the policy. Wood v. Firemen's Ins. Co. 126 Mass. 316. 1879. § 93. When policy provides that it shall be void in case of double insurance, unless consent of directors is in- dorsed upon it, an agent has no authority to give such consent, and his neglect to indorse it upon policy will not excuse assured. Behler v. German Mut. Ins. Co. 68 Ind. 347. 1879. § 94. Assured, by acceptance of policy containing usual agency clause is bound by it, and a broker who ob- tains the policy must be regarded as his agent, notwith- standing the provisions of the statute of 1861, chapter 170 (Mass.). Wood v. Firemen's Ins. Co. 126 Mass. 316. 1879. § 95. Under Maine Statutes (R. S. c. 49, sec. 49), when annual license of agent expires, in order to renew it, a certificate that the agency continues, not a new appoint- ment, is required of the company. Schottish Com. Ins. Co. V. Plummer, 70 Me. 540. 1880. § 96. Semhle broker's authority ends with delive; of policy. How v. Union Mut. Life Ins. Co. 80 ~~ 39. 1880. livery N. Y. I 97. Notice to an insurance broker, accustomed to receiving and forwarding applications and receiving and delivering policies, after policy is issued, is not notice to the company. His declaration when he solicits the insur- ance that he is company's agent does not bind the com- pany. Devens v. Mechanics &, Traders Ins. Co. 83 N. Y. 168. 1880. § 98. Assured may ratify unauthorized act of an agent in procuring insurance. Walker v. Linn County, 10 Ins. L. J. 666. 1880. Mo. § 99. Agent unable to take risk in any company represented by him, applied to another agent and ob- tamed policy of defendant and delivered it to the assured. At time of delivery of the policy the former knew and AGENT. 21 in consented to other insurance. The latter agent had no knowledge of the other insurance, and policy contained no consent. Held, by statute of Wisconsin (R. S. sec. 1977), that the agent who obtained and delivered the policy was the agent of the defendant, and that his knowl- edge and consent to other insurance bound the defendant, and that the defendant was estopped from claiming a for- feiture on ground of the other insurance. Schoener v. Hekla Fire Ins. Co. 10 Ins. L. J. 306. 1880. Wis. § 100. It is against the policy of the law for a person to act as agent for both the company and the assured. He cannot be the agent of both parties in the same trans- action ; if he so act the contract may be avoided by either party. People's Ins. Co. v. Paddon, 8 Bradwell, 447, 1881. § 101. Application for a policy having been made in writing to company, it has no right to rely on any verbal representations or statements made by a messenger or clerk sent by the broker to its agent, nor to assume that such statements or representations are made with knowl- edge and consent of the assured. Dolliver v. St. Joseph Fire Ins. Co. 10 Ins. L. J. 380. 1881. Mass. § 102. When company is advised of issue of policy by daily report of the agent, subsequently receives notice of loss, ana proofs, and requires assured to submit to on examination under a clause in the policy, and receives and retains the premium, without ever offering to return it, or raising any objection as to authority of the agent until after action is brought, it is estopped to deny agent's authority to issue the policy upon property located out of his territory as specified in his written certificate of au- thority, of which the assured has no knowledge. Knox v. Lycoming Ins. Co. 10 Ins. L. J. 89. 1881. Wis. § 103. Agent who receives and forwards applications to general agent of company, receives policies, delivers them and collects premiums, is, under the New Hamp- shire statute, the agent of the company and not of the as- sured in framing application. Company is bound by his 22 AGEMT. |) i knowledge of facts and his mistake in obtaining policy insuring interest of owner and mortgagor instead of inter- est of mortgagee as requested and so understood upon his representation. In such a case policy will be reformed to cover the interest as intended. Sias v. Roger Williams Ins. Co. 10 Ins. L. J. 500. 1881. U. S. Circuit, N. H. § 104. Policy contained condition that "no agent is empowered to waive any of its conditions without special authority in writing from the company." Ileld^ that it applied to local agents and not to general agents, who, in absence of proof to the contrary, are presumed to posp authority to transact all business relating to insurance business of the company generally. Carrigan v. Lycou*- ing Ins. Co. 10 Ins. L. J. 606. 1881. Vt. See Adjustment, § 8. Alienation, 38, 62. Alteration, 3. Application, 2, 9, 11, 15. Cancellation, 11, 16, 17. Certificate, 14. Concealment, 7. Con- eammation of Contract, 6, 9, 11, 13. Description, 2. Estoppel, 1, 2, 7, 8, 9, 12, 14, 17, 18, 19, 21, 22, 28, 24, 25, 26, 27, 28, 29, 30. 31, 38, 34. 35, 86, 37. Evidence, 1, 23, 82, 63, 58, 61, 65, 74, 75, 82, 83, 90. Fraud and F.lae Swear- ing, 7. Foreif!^ Company, 1. 4, 10, 23, 36, 62. Increase of Risk, 18. Inter- est in Policy, 25. Lighting, 8. Mutual Company, 55, 62, 74, 124, 139, 154. Notice of Loss, 1, 8, 21. Other Insurance, 1, 5, 12, 83, 85, 45, 46, 61, 54. Parol Contract, 4, 6, 9, 13, 22, 28, 38, 34. 41. Pleading and Practice, 20, 26. Premium, 4, 9, 15, 18, 24. Proofs of Loss, 16. 30, 54. Questions for Court and Jury, 14, 17. Rebuild or Replace, 8. Reformation, 8, 11. Renewal, 3, 11. Removal Causes to U. 8. Court, 1. Storing or Keeping, 18, 22. Tiile, 48, 67. Usage or Custom, 8, 9. Use and Occupation, 4, 9. Vacant or Un- occupied, 6, 18, 23, 40. Waiver, 2, 6, 8, 10, 11, 12, 18, 21, 28, 24, 23, 33, 84, 39, 45. Warranty and Representation, 84, 86, 87, 89, 40, 41, 68, 70, 8i, 98, ALIENATION. § 1. Condition avoiding policy in case of sale does not apply to a stock of goods kept for sale. Wolf v. Se- curity Fire Ins. Co. 4 Abb. Ct. App. Dec. 286. 1868. § 2. Assured sold the property and himself indorsed the policy, " Payable in case of loss to Edward C. Bates,'* the purchaser, and sent it to defendant, with request that they consent to the indorsement, but did not notify then of the transfer. Company indorsed upon the policy, "Consent is hereby given to the above indorsement." Policy provided that if property was sold without consent of the company indorsed upon the policy, it should be- come void ; that if sold it could be continued for benefit of purchaser if consent was given to be evidenced by a certificate of the fact, or by indorsement upon the policy. Heldj that company merely consented in case of loss to property of the assured to pay the amount to the plaint- ifl', and did not consent that policy should continue for benefit of any one except the insured. Verdict for plaint- iff set aside. Bates v. Equitable Fire Ins. Co. 3 Cliff. 215. 1868. § 3. Condition provided that if the " property be sold or conveyed " it should be void. Held, to avoid the policy assured must sell the wTwle of his interest ; so long as he retains any interest policy is binding. Scanlon v. Union Fire Ins. Co. 4 Biss. 511. 1869. § 4. A sale by assured to three persons, one of whom re-conveys ou b.im, and the other two giving him mortgages to secure the purchase-money, is an "aliena- tion " avoiding the policy. Home Mut. Ins. Co. v. Ilaus- lein, 60 111. 521. 1871. § 5. A sale and transfer of the property insured^ taking a mortgage back for the purchase-money, is such a transfer or change in the title as avoids the policy. Bates V. Commercial Ins. Co. 2 Cin. Supr. Ct. 195. 1872. 24 ALIENATION. 1.1 : i! 1'^ § 6. Where policy was issued to " the heirs and rep- resentatives of Andrew Kirk, deceased," and contained provision " if the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree, or voluntary transfer or con- veyance, without the consent of the company indorsed thereon, policy shall be void," and the executrix sold the property without consent or knowledge of the company, to a party in possession under a lease, for $8,000, taking back a mortgage for $7,000. After which the executrix re- signed and plaintiff was appointed trustee and adminis- trator with will annexed. lleld, plaintiff entitled to ben- efit of policy, although not specially named ; and that policy was rendered void by the sale of the property by the executrix. Savage v. Howard Ins. Co. 52 N. Y. 502. 1873. § 7. If the assured is dead and the property insured is sold under proceedings in the orphans court, and the loss having occurred between the sale and the confirma- tion, there is no such alienation as avoids the policy. In such a case legal title is in the heirs of the assured, and the action on the policy is rightly brought in the name of the administrators to the use of the vendee. Farmers' Mutual Ins. Co. v. Graybill, 74 Pa. 17. 1873. § 8. A void sale is not an alienation. School Dis- trict V. ^tna Ins. Co. 62 Me. 330. 1873. t9. Assured having sold property took his policy to roker who obtained it, who indorsed in pencil upon the back, " Loss, if any, payable to B. Transfer," and sent it to the defendant. The secretary read the memo- randum, wrote on the policy, " Loss, if any, payable to B.," and afiixed a stamp required only for a new policy, and returned it. Held.thdii the word "transfer'^ con- veyed sufficient notice to the secretary of what was de- sired, and the real character of the transaction to which it must be assumed he assented. Batchelor v. People's Ins Co. 40 Conn. 56. 1873. § 10. Condition provided that if " the interest of the parties should be changed " without written consent, pol- ALIENATION. 25 icy should be void. The assured by a contract under seal contracted to sell the property to one Scudder, who paid part of the consideration. Held^ that the contract of sale and payment constituted a change of interest. Germond v. Home Ins. Co. 2 Hun, 540. 1874. § 11. Policy provided that "in case any transfer or termination of the interest of the assured, or any part of his interest in the property hereby insured, either by sale, contract or otherwise, or in case any mortgage, lien or in- cumbrance shall be executed thereon, or shall attach thereto, or if the title thereto shall be in any way changed or aflfected after the date of this policy, or if any proceed- ings for sale thereof shall be had, commenced or taken, or if the title thereto shall be or become less than an abso- lutely perfect one without consent," it should be void. About a month previous to the fire the holder of a mort- gage upon the property insured commenced proceedings to foreclose it by advertisement, and such proceedings were brought to the knowledge of the assured about two weeks before the fire, but no notice thereof was given to the defendant. IleM^ that so far as any obligation to give notice to defendant was concerned, assured was entitled to a reasonable length of time for that purpose after learning that proceedings had been commenced, and that "what would be a reasonable time" would be a question for the jury, and "that the policy was not avoided by the commencement of the foreclosure proceedings." Michi- gan State Ins. Co. v. Lewis, 30 Mich. 41. 1874. § 12. The effect of a "transfer or change of title" is not altered by the fact that the loss, if any, was made payable to a mortgagee, as it is not the latter's interest which is insured. Perry v. Lorillard Fire Ins. Co. 61 N. Y. 214. 1874. § 13. An adjudication in bankruptcy and an assign- ment by the register is a " transfer and change of title." Perry v. Lorillard Fire Ins. Co. 61 N. Y. 214. 1874. § 14. Property was sold and policy transferred Feb- ruary 22, 1869. March 3d plaintiff mailed policy to de- I |g ALIENATION. fendant, requesting its consent to transfer. This was re- ceived on the fifth. Defendant's secretary answered de- clining to consent, inclosed check for unearned premium, and the policy was indorsed cancelled. Property was de- stroyed by fire on the fourth ; of this defendant had no knowledge when its reply was written. Policy contained clause against sale or transfer, providing that in such case insurance should immediately cease. Also clause giving option to company of cancellation on notice and payment of return premium, and there was a by-law of the compa- ny requiring surrender of policy in such case. Held, that policy was void at time of fire because of the sale, and that assured was entitled to return premium only on surrender of the policy, and his failure so to do could not give any claim or continue liability of company. Buchanan v. Westchester Co. Mut. Ins. Co. 61 N. Y. 611. 1874. § 15. Policy contained clause against alienation, and also " the commencement of foi'eclosure proceedings or the levy of an execution shall be deemed an alienation of the property." A mechanic's lien on the building insured was foreclosed, execution issued, and sale advertised. Held, that the words " foreclosure proceedings " were not intended to refer to proceedings to enforce a mechanic's lien, that they bad reference only to the foreclosure of a mortgage in the ordinary sen^e in which those terms are employed. That the " levy of an execution " had refer- ence only to a levy on personal property, as a levy upon real estate is now unknown to the law. Colt v. Phoenix Fire Ins. Co. 54 N. Y. 596. 1874. § 16. The taking of a purchase-money mortgage can- not change the character or effect of the alienation or sale. Savage v. Howard Ins. Co. 52 N. Y. 502. 1873. s. p. Miner v. Judson, 2 Hun, 441. 1874. § 17. When policy provides that the entry of a fore- closure of a mortgage or the levy of an execution shall be deemed an alienation of the property and terminate the insurance, to have such effect there must be a complete and technical foreclosure or such a levy as divests the title. Pennebaker v. Tomlinson, 1 Coop. Cb. 598. 1874. ALIENATION. 27 § 18. The transfer of the interest of one partner to gX another is not such a transfer or assignment of an interest as will avoid the insurance. Dermani v. Home Mut. Ins. Co. 26 La. Ann. 69. 1874. <- § 19. A policy containing condition against aliena- tion is avoided only by a transfer whereby assured parts with all his interest. A transfer by assured to a firm of which he is and remains one of the partners does not avoid policy. Cowan v. Iowa State Ins. Co. 40 Iowa, 551. 1875. § 20. Policy provided that it should be void in case of alienation and incumbrance. Also that assignment of it must be made 10 days after a sale of the property and that it must be sent to the office of the company forthwith for consent, which would then be given to the assign- ment. Property having been sold and consent of the com- pany not having been obtained, suit being brought upon the policy, Held^ that company was not absolutely bound to consent to the assignment, but that condition became operative only in case it had first consented to the sale of the property. Home Ins. Co. v. Lindsey, 26 Ohio, 348. 1875. ^ § 21. When policy insures a partnership the sale of the interest of one partner to the other is not such an assignment or alienation as will avoid it. West v. Citi- zens Ins. Co. 27 Ohio, 1. 1875. ^ § 22. When policy insures a partnership and one of the partners has retired having sold his interest to the other, the latter is entitled to sue and recover the whole amount of the loss. West v. Citizens' Ins. Co. 27 Ohio, 1. 1876. § 23. There can be no transfer of interest, where such transfer is invalid under the statute of frauds ; and it is im- material that the assured supposed that the title was changed. Pitney v. Glen's Falls Ins. Co. 65 N. Y. 6. 1875. § 24. Policy provided that it should ba void in case the property should be sold or transferred or any change :!■! 28 ALIENATION. should take place in title or possession, 80. Policy insured one Pomeroy " loss if any payable oote, mortgagee, as interest may appear." After its wsue Pomeroy conveyed his interest in the premises to Foote, and at same time took back a bond for reconvey- ance of the same to him, his heirs, or assigns, upon pay- ment of a 9um named which was the amount due on the ALIENATION. 20 mortgage. Held^ that Pomeroy's deed effected a change of title within meaning of policy. Foote v. Hartford Ins. Co. 119 Mass. 259. 1876. § 3?. An executory contract of sale without change of possession does not constitute a transfer or change of title. Browning v. Home Ins. Co. 71 N. Y. 508. 1877. Affi'g 6 Daly, 522. § 32. Policy provided that " when the property has been sold and delivered, or otherwise disposed of, so that all interest or liability on the part of the assured has ceased, the insurance shall terminate." Held, to mean a legal transfer which divests the party of title or control over the property. Browning v. Home Ins. Co. 71 N. Y. 508. 1877. Affi'g 6 Daly, 522. § 33. Policy insured Langer, official assignee, for bene- fit of creditors, another assignee of the estate being ap- pointed. Held, that the policy did not vest by law in the new assignee, and that there was a violation of the condi- tion to the eflfect that if the property was sold or trans- ferred, or if any change should take place in the title or possession, &c., that the policy should be void, and that the interest of th 3 assured expired upon the appointment of the new '- j^nee. Held further, that in such a case an assignee ought to disclose his real interest. Elliot v. Na- tional Ins. Co. 21 L. C. Jurist, 242. 1877. § 34. The appointment of a receiver of partnership property pending a suit for dissolution of the partnership, effects no change in the title, nor does the possession of such receiver constitute a change of possession, within meaning of policy. Keeney v. Home Ins. Co. 71 N. Y. 396. 1877. § 35. A mortgage or deed of trust before its fore- closure does not amount to alienation or change of title. Quarrier v. Peabody Ins. Co. 10 W. Va. 507. 1877. § 36. The execution of a mortgage after issue of pol- icy, sale of the property under a power of sale upon fore- closure of the mortgage by advertisement, pursuant to 30 ALIENATION. ..I ,1 statute, and a loss occurring bftfore the period for redemp- tion has expired, does not constitute such " a sale and transfer or chansje in the title as will render void the in- surance." Loy V. Home Ins. Co. 24 Minn. 315. 1877. § 37. After the insurance was eflfected the assured, Shultis and Neil, admitted one Kribbee as a copartner, his interest being one-third. Subsequently Shultis sold out to his copartners, Neil and Kribbee, his interest in the partnership and the property insured, and they gave him a chattel mortgage upon the property insured to secure the price for which he had sold his interest. Policy pro- vided that if the property be sold or transferred or an^ change should take place in the title or possession that it should be void, jffeld, that there was such a change as voided the policy. Card v. Phcenix Ins. Co. 4 Mo. App. 424. 1877. § 38. An assignment of the policy to a purchaser with consent of company's local agent indorsed, waives a forfeiture upon ground of alienation. Amazon Ins. Co. V. Wall, 7 Ins. L. J. 704. 1878. Ohio. § 39. Consent of company to a sale and transfer of property insured without knowledge of its terms ex- tended by construction to include consent to the execu- tion of a mortgage as part of the transaction. Farmers' Ins. Co. V. Ashton, 7 Ins. L. J. 594. 1878. Ohio. § 40. Sale of property under decree in foreclosure, time for redemption having expired, is an ''alienation," notwithstanding a misdescription in the mortgage, and a second suit and decree therein prior to expiration of time for redemption, correcting the mistake. MoKissick v. Mill Owners' Mut. Ins. Co. 50 Iowa, 116. 1878. § 41. Policy contained provision that " if, without the written consent of the company first had and obtained, the said property shall be sold or conveyed, or the interest of the parties therein be changed in any manner, whether by act of the parties, or by operation of law," it should be void. Policy was issued for three years, April, 1872. Assured died November, 1872, leaving a will devising all ALIBNATION. 31 his estate to four brothers, three of whom, including one appointed executor, were non-residents. Fire occurred August, 1874, previous to which the executor had died. Special administrator was appointed, who brought the ac- tion. Held^ that the change of interest was siich as to avoid the policy. Sherwood v. Agricultural Ins. Co. 73 N. Y. 447. 1878. Affi'g 10 Hun, 593. § 42. A sale in partition suit does not change the in- terest of assured until an order of confirmation of the sale has been granted by the Court. Terpenning v. Agricul- tural Ins. Co. 14 Hun, 299. 1878. § 43. Execution and delivery of a mortgage with power of sale is such an alienation and transfer or change of title and interest as will forfeit the policy. Sossaman V. Pamlico Ins. Co. 78 N. C. 145. 1878. § 44. A foreclosure of a mortgage, the equity of re- demption having expired, effects a change in the title. Brunswick Savings Inst. v. Commercial Union Ins. Co. 68 Me. 313. 1878. § 45. Plaintiffs while acting as trustees of second mortgage bondholders, and insured as such, were in pos- session of and operating a railroad. While thus engaged they advanced and became personally liable for upwards of $80,000, for benefit of the road. In a decree of fore- closure of the first mortgage this amount was declared a lien payable out of first earnings. Heldy that plaintiffs' interest as trustees did not include their interest in the amount of the decreed lien, and could not prevent forfeit- ure on account of the sale in foreclosure of first mortgage. Bishop V. Clay Ins. Co. 45 Conn. 430. 1878. § 46. The sale under foreclosure of a railroad mort- gage which has become absolute effects a " change of title " avoiding the policy. Bishop v. Clay Ins. Co. 45 Conn. 430. 1879. § 47. A sale of property for taxes being followed by its redemption as provided by statute does not effect such i I ififii ill \< t 32 ALIENATION. an alienation as avoids the insurance. Paquet v. Citizens' Ins. Co. 4 Quebec L. R 230. 1878. § 48. Execution of a mortgage held to be an aliena- tion within meaning of the statute, sec. 39 of 36 Vic. eh. 44. Mechanics' Society v. Gore District Ins. Co. 3d Tupper, 161. 1878. Rev'g 40 Up. Can. Q. B. 220. § 49. A condition against alienation or assignment does not prevent the assured from executing a mortgage. Sands v. Standard Ins. Co. 26 Grant Ch. 113. 1878. § 50. A quitclaim deed, executed and delivered as security, does not constitute a breach of the condition against transfer or termination of interest of the assured. Jecko V. St. Louis F. & M. Ins. Co. 7 Mo. App. 308. 1879. § 51. A void conveyance cannot operate to transfer interest of the assured. Jecko v. St. Louis F. & M. Ins. Co. 7 Mo. App. 308. 1879. § 52. Where the contract is with A. to insure his in- terest, no alienation by another person of the property, in respect of which the insurance is effected, can affect or prej- udice the rights of A. Humphrey v. Hartford Fire Ins. Co. 15 Blatch. 504. 1879. § 53. Where a policy is issued which covers personal property, such as hay, grain, live stock, tained. Held^ that the condition did not suspend assured's right of action. That it was merely collateral and not a condition precedent. Schol- lenberger v. Phoenix Ins. Co. 7 Ins. L. J. 697. 1878. U. S. Circuit, Pa. ^ 10. Company waives right to arbitration by omit- ting to make request as provided in the policy during the m ARBITRATION AND APPRAISEMENT. I! i '-I sixty days preceding time when loss becomes due and payable. Gibbs v. Continental Ins. Co. 13 Hun, 611. 1878. And same when company insists it is not liable for any loss. Id. § 11. When company denies all liability the arbitra- tion clause is not operative. Lasher v. Northwestern Nat. Ins. Co. 18 Hun, 98. 1879. § 12. An award made in the absence of a chosen ar- bitrator, without notice and consent, has no validity. Hills V. Home Ins. Co. 9 Ins. L. J. 814. 1879. Mass. § 13. Assured cannot be relieved from award of arbi- trators, even although he was induced by a mistaken as- sertion of company's agent in regard to condition in poli- cy to consent to arbitration, he having the opportunity of examining the policy before signing the submission. Wheeler v. Watertown Fire Ins. Co. 10 Ins. L. J. 354. 1880. Mass. § 14. When policy provides that an arbitration shall be had upon the written request of either party, it is necessary to aver and prove such written request to make condition operative. Wallace v. German American Ins. Co. 1 McCrary, 33.5. 1880. § 15. Policy provided that "damage to property not totally destroyed, unless agreed upon, shall be appraised by disinterested and competent persons mutually agreed upon by the parties ; when personal property is damaged, assured shall make an inventory thereof, and upon each article the damages shall be separately appi'aised, and the report of the apjn'aisers shall form part of the proofs, and until such proof and cei'tificates are produced loss shall not be payable." The insurance was upon a building, which the jury found was totally destroyed. Company insisted that an appraisal was a condition precedent to amount being due. Jlehl, doubtful whether condition was not void for uncertainty, but that if it was valid, it did not apply to a case where the dispute was as to whether loss wuh partial or total, and that so far as an ap- praisal was made a condition precedent by the condition ! ASSIGNMENT. 43 it bad reference only to personal property. Williai jis v. Hartford Ins. Co. 54 Cal. 442. 1880. § 16. Policy provided that in case diflterences shall arise touching any loss or damage after proof has been re- ceived in due form, the matter shall, at written request of either party, be submitted to impartial arbitrators whose award in writing shall be binding as to the amount of such loss or damage, but shall not decide the liability of the company under this policy. It is furthermore ex- pressly agreed that no suit shall be sustainable in any court of law or equity until after award shall have been obtained fixing the amount of such claim in the manner above provided. Held^ that the condition as to arbitra- tion was not a condition precedent but collateral to the agreement to pay. Mark v. National Fire Ins. Co. 24 Hun, 565. 1881. See Agent, § 3. By-Laws and Conditions, 8, 15. Construction, 16. Proofs of Losd, 48, 05. Questions for Court and Jury, 10. Waiver, 29. ASSIGNMENT. § 1. An invalid assignment of the policy cannot de- feat the insurance. Crozier v. Phoenix Ins. Co. 2 llannay, N.B. 200. 1870. § 2. Assignee takes policy subject to its conditions, and if his assignor has lost all right of recovery, he ac- quires no rights. K"»me Mut. Ins. Co. v. Ilauslein, GO 111. 521. 1871. 8. p. Burger v. Farmer's Mut. Co. 71 Pa. 422. 1 872. Smith v. Niagara Dist. Ins. Co. 38 Up. Can. Q. B. 570. 1876. Kanaday V. Gore Dist Ins. Co. 44 Up. Can. Q.B. 261. 1879. § 3. Under Iowa statute (Rev. Sec. 2757) policy may be assigned although prohibited by condition in it. Mershon v. National Ins. Co. 34 Iowa, 87. 1871. u ASSIGNMENT. - 1 §4. A sale of the property cannot operate as a trans- fer of the policy by law. Forgie v. Royal Ins. Co. 16 L. C. Jurist, 31 1871. § 5. When condition prohibits an assignment of the policy without consent, it is rendered void by such assign- ment, although it may have been made merely as and for the purpose of collateral security, and the assured cannot prevent such an effect by payment of the debt after the fire. Ferree v. Oxford Fire Ins. Co. 8 Phil. Rep. 512. 1871. § 6. Company remains liable to assignee of claim if it pays to assured after notice of the assignment. Hall V. Dorchester Mut. Fire Ins. Co. Ill Mass. 53. 1872. § 7. Assignee of policy after a loss takes it sub- ject to all equities and defenses which attach to it in hands of assured. Semhle otherwise where company as- sents to the assignment, or by its act or conduct induces the assignee to take the same under a belief that no claim exists against the assured. Johnston v. Phoenix Ins. Co. 39 Md. 233. 1873. § 8. An assignment of policy for less than the claim under it obtained by representative of company by false representations of its ability to pay amount due, will be decreed void in equity. Derrick v. Lamar Ins. Co. 74 111. 404. 1874. 8. p. Burnham v. Lamar Ins. Co. 79 111. 160. 1875. § 9. Entry in policy register of company "trans- ferred to William D. Griswold," made at the instance of the assured, is effectual to vest a right to the insurance in such party on the ground that the defendant accepted Griswold as the insured instead of the original assure^( ^/ .V* 4^ ^ 1.0 1.1 ltt|28 IttIM lit 14.0 2.5 2.2 2.0 Igi IE U 11.6 »" Photographic ScMioes Carparadon as wht main itrht WIMTM,N.Y. 14SM (7U)S7a-4S0l 4^ .^ G4 OONOBALMENT. burst into flames whicli destroyed moat of the train, in- cluding property insured. Held, that the loss was not covered by the policy. Imperial Ins. Co. v. Express Co. 5 Otto, 227. 1877. CONCEALMENT. , /here the circumstances do not themselves show M fraudulent intention, it is error to take a question of concealment from the jury. People v. Liv. Loud. &, G. Ins. Co. 2 T. & C. (N. Y. Sup.) 268. 1873. 8 2. The presence of benzine in a contiguous build- ing IS a fact material to risk, and if not disclosed in the application, it is fatal to the insurance without reference to the fact whether the omission was by design, ignorance or inadvertence. McFarland v. Peabody Ins. Co. 6 W. Va. 425. 1873. § 3. An omission to state a small mortgage in an ap- plication for an insurance existing upon the property, but which the vendor of the applicant is bound to remove by the terms of the contract of purchase, is not material to the risk. American Ins. Co. v. Gilbert, 27 Mich. 429. 1873. § 4. The fact that assured has previously applied to another agent of the same corapiny for insurance and been refused and omits to state such fact when he obtains policy in suit from another agent, is not such a conceal- ment of a material fact as to render it void. Goodwin v. Lancashire Fire Ins. Co. 18 L. C. Jurist, 1. 1873. Re- versing 16 L. C. Jurist, 208. § 5. In the absence of any inquiry or provision in the policy, concealment of litigation will not affect the in- surance. Cheek v. Columbia Fire Ins. Co. 4 Ins. L. J. 01). 1874. Tenn. CONCEALMENT. § 6. Under General Statutes, ch. 157, sec. 2, assured's omission to state the facts in regard to his title and inter- est does not avoid the policy unless such omission is in- tentional and fraudulent. Tuck v. Ins. Co. 56 N. H. 326. 1876. § 7. An omission to state in an application that which is known to company's agent, cannot under ordinary circumstances be such a concealment as to avoid the in- surance. Penson v. Ottawa Ins. Co. 42 Up. Can. Q. B.. 282. 1877. § 8. There can be no material concealment in absence of inquiry or express stipulation on the subject, in fail- ing to state that property insured is in the custody of lessee of assured, policy accurately describing location of building containing it. Little v. Phcenix Ins. Co. 123 Mass. 380. 1877. § 9. Concealment or omission to state the fact of a contingent right of dower in assured's vendor does not avoid the policy unless shown to increase the risk ; if such an omission is fraudulent, it would avoid the insurance, but such a question is properly submitted to the jury. Virginia Fire Ins. Co. v. Kloeber, 31 Grat. 749. 1879. § 10. Policy provided that it should be void if there was any omission to make known a material fact. There was a three hundred dollar mortgage on the property un- disclosed at the time of the obtaining of the policy. Held, that the existence of an incumbrance is material unless so trifling as to be manifestly unimportant, whether the con- ditions are or are not treated as warranties, ^tna Ins. Co. V. Resh, 40 Mich. 241. 1879. § 11. Semhle that a diagram cannot be regarded as important or material on an issue of concealment when there are no directions in the application specifying that it must delineate surrounding property for a certam dis- tance. Armenia Ins. Co. v. Paul, 91 Pa. 520. 1879. § 12. A threat to burn assured's property made sev- eral months prior to the fire, during the excitement attend- Vot. II.— 6 66 CONST RUCTION. ing an election, which was not stated by tl:e assured at the time of the obtaining of the policy, is not such £ '.^nceal- ment of a material fact as will avoid the insurance. Kelly V. Hochelaga Mut. Fire Ins. Co. 24 L. C. Jurist, 298. 1880. (Jf e Application, § 6. Consummation of Contract, 6. Entirety and Di- visibility of Policy, 8. Estoppel, 24. Pleading and Practice, 29. Title, 19, 80, 85, 50. Waiver, 18. Warranty and Representation, 3, 10, 89, 84, 89. CONSTRUCTION. § 1. Per Churchy Ch. J. In case of ambiguity knowledge of facts by company is potent upon the ques- tion of intention and construction. Reynolds v. Com^ merce Fire Ins. Co. 47 N. Y. 606. 1872. And see Lud- wig V. Jersey City Ins. Co. 48 N. Y. 379. 1872. § 2. Equivocal language, specially such as is calcu- lated to mislead, shall be construed most strongly against the company using the language and issuing the policy. Reynolds v. Commerce Fire Ins. Co. 47 N. Y. 697. 1872. § 3. When policy contains plain and unambiguous language, courts must look to it alone to find intention and meaning of the parties, and parol proof is inadmissi- ble. Hough V. People's Ins. Co. 36 Md. 398. 1872. § 4. Conditions working a forfeiture must be strictly construed. Morse v. Buffalo Fire Ins. Co. 30 Wis. 534. 1872. Westchester Fire In». Co. v. Earl, 33 Mich. 143. 1876. Aurora Fire Ins. Co. v. Kianich, 36 Mich. 289. 1877. ^ 5. Rights of the assured and liability of the com- panies are fixed at the time of the loss, provided the req- uisite notices and proofs are furnished. Imperial Ina €o. V. Murray, 73 Pa. 13. 1873. . 00N8TBUCTI0N. 67 § 6. Per Alleriy J, Contracts of insurance should be construed so as to give effect to intent of parties as indi- cated by language employed. Tiiey do not differ in any respect from other written instruments, but are interpreted by the same rules. Insurers and insured may agree upon terms of contract and make its validity or continuance de- pend upon any terms and conditions lawful in themselves, which they may deem reasonable and proper ; and whether reasonable or not is for them, not for the courts, to deter- mine. Savage v. Howard Ins. Co. 52 N. Y. 504. 1873. § 7. Conditions should not be extended by implica- tion so as to embrace cases not clearly or reasonably within the very words, as such words are ordinarily used and understood. Kann v. Home Ins. Co. 59 N. Y. 387. 1874. § 8. Policy read, " tl.e said buildings herein insured are more than * oix ' feet from any other buildings," &c. The case turned upon the question whether the word italicised was '* six," and hence sensible, or " oix," and therefore without meaning ; if the former, it was against tho right of the plaintiff to recover ; if the latter, it favored recovery. Trial court submittted the question to the jury to find wh(jther the word was written " six " or "oix," and received their verdict for the plaintiff. Held^ error, that tho court should have decided the point as a matter of construction and that inspection showed plainly that the word was "six" and not "oix." Lapeer Ins. Association v. Doyle, 30 Mich. 159. 1874. § 9. A contract of insurance contains two classes of stipulations: first, those relating to matters and things f>rior to tho loss and which define and determine tho imits of the risk ; and, second, those which relate to mat- ters and things occuriing after a loss an thus effectual must be given to an agent who is authorized to indorse consent upon the policy. Hendrickson v. Queen Ins. Co. 30 Up. Can. Q. B. 108. 1870. § 2. Oral consent of local agent to transfer of prop- erty pending obtaining of indorsement on the policy operates as an estoppel. Illinois Fire Ins. Co. v. Stanton, 57 111. 354. 1870. § 3. Statement in proofs of existence of other insur- ance cannot operate as an estoppel against evidence tend- ing to show that such other insurance was in fact invalid. Hubbard v. Hartford Fire Ins. Co. 33 Iowa, 325. 1871. § 4. Assured is not estopped by a statement made by him in his examination under oath, from establishing the truth to the contrary upon a trial. Germania Fire Ins. Co. V. Curran, 8 Kans. D. 1871. § 5. Defendant issued policy for one year covering goods on first floor of building specified. Year being about to expire, and the goods in meantime having been removed to an upper story of same building, plaintiff gave notice to defendant of such change of location, and paid for a renewal receipt delivered to him. No indorsement of the change. Hekl, that company intended to give valid insurance in the new location, and that they intended in- sured to believe that he had received such. To suppose otherwise would impute a fraudulent disposition. Ludwig V. Jersey City Ins. Co. 48 N. Y. 379. 1872. § 6. Compromise and payment is a waiver of objec- tion that premium has not been paid and is a recognition of the policy as a valid contract ; by acceptance assured ^■1 . 1' 04 ESTOPPEL. 18 estopped from maintaining an action for the difference "between such amount and the amount which would other- wise be due as adjusted and apportioned. Haight v. Kre- mer, 9 Phil. Rep. 50. 1872. § 7. Knowledge of company's agent does not operate as an estoppel when the defense is fraud and collusion between him and the assured. Rockford Ins. Co. v. Nel- son, 65 111. 415. 1872. § 8. Company is estopped from insisting on a defense in regard to other insurance when it is shown that the as- sured was induced to apply for the policy by the fraudu- lent misstatements and omissions of the agent, and that he was kept in ignorance of the existence of the stipula- tion in the policy by fraudulent conduct and statements of the agent which induced him not to open and read it. McKenzie v. Fire Ins. Co. 9 Heiskell, 261. 1872. § 9. The knowledge of insurance brokers is not the knowledge of the company so as to effect an estoppel. McFarland v. Peabody Ins. Co. 6 W. Va. 425. 1873. § 10. When party claims an estoppel upon a written statement furnished, it cannot be sustainetl when he is obliged to inquire for and establish the existence of other facts. Such facts jiay be contradicted. McMaster v. Ins. Co. of N. A. 55 N. Y. 222. 1873. § 11. The fact that company knew of the use of spirit gas by a former tenant does not justify a finding that the assured had permission for its continued or future use. Minzesheimer v. Continental Ins. Co. 5 Jones & Sp. 332. 1874. §12.^ Although the assured may have represented the premises to be frame and shingle houses, yet as the agent of the company was present and inspected the buildings at the time of the insurance and before the issue of the policy and inserted the description in the policy based upon his own inspection as well as the insured's representation, and such a description was a mistaken one, the company is estopped from insisting upon a breach ESTOPPEL. 95 1 of warranty in respect to sucb description. Continental Ins. Co. V. Kasey, 25 Grat. 268. 1874. § 13. The provision that an indorsement shall be made upon the policy is nothing but a direction that an act shall be done, and falls into the class of ordinary con- ditions precedent. And such provision may be waived or the company estopped by its conduct from insisting upon a forfeiture, by reason of facta occurring after issue and delivery of policy and during its continuance. Pech- ner v. Phcenix Ins. Cc. 35 N. Y. 195. 1875. But see Walsh V. Hartford Fire Ins. Co. 73 N. Y. 5. 1878. § 14. When policy is issued by an agent having knowledge of the actual condition of the chimney, stoves and pipes of the building insured, company is estopped from insisting upon any breach of warranty in relation thereto. If such a warranty should be promissory in its nature assured is bound only to keep them as secure as they were when the application was made, it not appearing that the company or its agent gave notice or intimated to the assured in any respect that the stove pipes and chimney were in anywise insecure or required them to be made more secure. Simmons v. Ins. Co. 8 W. Va. 474. 1875. § 15. When the insured is disposed and makes an effort to have a mistake corrected in the policy, but is pre- vented or thrown off his guard and dissuaded therefrom by the act or declaration of the company, the latter is es- topped from sotting up in bar of an action upon the pol- icy, the letter of the contract, and that the situation of the property does not agree therewith, and from claiming the strictly legal consequences. Maher v. Hibernia Ins. Co. 67 N. Y. 283. 1 870. Affi'g Ilun, 353. § 10. Policy j)rovided that if premises should be un- occupied for over thirty days without written consent in- dorsed, it should be void. About one week after property was left vacant assured asked company's secretary to put his consent on the policy, and he said in reply, " we waive all that." Fire occurred while premises were unoccupied, "■^h yM mM m Kr^ 96 ESTOPPEL. I-, .-I' -..(if.'. and about four weeks later. Held, that, as at time of in- terview with secretary forfeiture had not taken place, it could have been prevented by the assured had he not been misled by the verbal consent, there was a waiver. Company cannot insist upon a forfeiture for an act which they themselves induce the assured to do. Adams v. Greenwich Ins. Co. 9 Hun, 45. 1876. Affi'd 70 N. Y. 166, 171. 8. p. Van Allen v. Farmers' Joint Stock Ins. Co. 10 Hun, 397. 1877. Affi'd 72 N. Y. 604. § 17. Policy provided that if the premises should be- come vacated by removal, and so remain for a period of more than fifteen days without notice and consent indorsed upon the policy, it should become void. The premises were burned during such vacancy. Evidence was received that before the issumg of the policy the insured had stated to the agent that he expected, during the continuance of the policy, to leave the house vacant during a year or more, and was informed it would make no difference, such evidence being relied upon as an estoppel. Held, that the cases which hold that an estoppel is created by knowledge of the company relate to a knowledge of existing facts at the time of its uction, when such action would not be con- sistent with any idea that they were to be discharged from liability by reason thereof, but that in this case the vacancy concerning which the parties conversed was one contemplated in the future, and the stipulation or under- standing, if it amounted to anything, was an executory contract intended to form a part of the contract of insur- ance. This being so, the doctrine cannot be admitted that any part of the completed contract can rest in parol. The policy was the conclusion of the bargain, and its accept- ance would exclude any parol promises inconsistent with it, and that, therefore, the company was not estopped from insisting upon the defense. Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609. 1877. § 18. If agent's duty to insert in policy nature of as- sured's interest as disclosed to him, his failure to do it es- tops the company from objecting to validity of policy by reason of such omission. Gates v. Penn B^ire Ins. Co. 10 Hun, 489. 1877. ESTOPPEL. 97 § 19. When assured is induced by the act or declara- tion of company's local agent, accustomed to receive and forward notices of loss, to delay the furnishing of proofs, company is estopped from insisting upon such delay as ffround of forfeiture. Van Allen v. Farmers' Joint Stock Ins. Co. 10 Hun, 397. 1877. Affi'd 72 N. Y. 604 (on opinion of lower court). And same when the delay is in- duced by an adjuster. Id. § 20. When secretary states to the assured "that it is not necessary to have his indorsement of the approval of the company of an assignment on the back of the policy, company is estopped from setting up a defense founded upon such assignment. Stolle v. -^tna Ins. Co. 10 W. Va. 546. 1877. § 21. Policy required that if building insured stood on leased land, it must be so represented to company and expressed in written part. Company's agent knew when he accepted the risk that building stood on leased ground, but the fact was not inserted in the policy. Held, that company was estopped from setting up defense under con- dition. Van Schoick v. Niagara Fire Ins. Co. 68 N. Y. 434. 1877. It seems policy in this case did not contain usual agency clause. P. 441. § 22. Company is estopped by mistakes of agent in filling up an application, the facts at the time being cor- rectly stated to him by the assured. . Planters' Ins. Co. v. Sorrels, 1 Baxt. 352. 1872. McBride v. Republic Fire Ins. Co. 30 Wis. 562. 1 872. Cheek v. Columbia Ins. Co. 4 Ins. L. J. 99. 1874. Tenn. Parker v. Amazon Ins. Co. 34 Wis. 364. 1874. Chatillon v. Canadian Mut. Fire Ins. Co. 27 Up. Can. C. P. 450. 1877. Ins. Co. v. Lewis, 48 Tex. 622. 1878. Texas Ins. Co. v. Stone, 49 Tex. 4. 1878. § 23. Policy described the property as being occupied " as a dwelling and boarding house." The insurance was obtained through one Buckley, an agent of the company. The judge at the trial received evidence that he inspected the premises at the time of taking the application, and knew the manner in which they were thus used, and left Vol. II.— 7 til ■i'1';i '.■■a ft 1 ESTOPPEL. I •': the question to the jury whether the parties themselvea did not knowingly use the terra " boarding house," to de- scribe the very thing that was insured, and if they did in that view, the knowledge of the agent was material ; that if agent, acting on his own knowledge, making his own survey, undertook to describe the building, it is his de- scription of the risk, and if the company accepts it, it agrees that the term used shall describe the risk as it ex- isted. Held, error, as the effect given to the testimony was to change the teiras of the contract and reform it, and make another and a different contract ; such facts can- not operate as an estoppel. Franklin Fire Ins. Co. v. Martin, 11 Vroom, N. J. L. R. 568. 1878. § 24. Policy provided that if any misrepresentation or concealment of facts has been made in the r.pplication * * * or if assured shall, in any mannei", make an attempt to defraud this company, policy shall be void. It appeared that in the application assured had omitted to mention a small building, a water closet, within about forty-six feet of the premises. It appeared, before the issue of the policy, agent of the company inspected and surveyed the premises. Held, that the condition contem- plated fraudulent concealment only, and that the company -was estopped by the inspection of the acent. Naughter V. Ottawa Ins. Co. 43 Up. Can. Q. B. 12h 1878. § 25. Assured stated in his application for insurance upon a mill, that there was no other insurance, when, in fact, there was another policy on the machinery therein. Held, that the insurance was therel)y rendered void, and that company was not estopped by knowledge of its agent; that assured's remedy was in equity by reforma- tion of the policy. Shannon v. Gore District Mut. Fire Ins. Co. 2 Tapper, 396. 1878. Kev'g 40 Up. Can. Q. B. 188. § 26. When an agent authorized to take applications for a company intentionally or negligently writes a wrong answer, or misleads the assured in the taking and filling up of an application for insurance, it is error to exclude parol evidence of what actually did occur, and what was Co. ESTOPPEL. S9 ling said by the assured, at the time of the taking of his ap- plication. If such agent received correct information, company will not be permitted to escape from liability on account of his error or neglect. Smith v. Farmers' & Mechanics' Mut. Ins. Co. 89 Pa. 287. 1879. § 27. Assured being bound to represent the true state of title, before company can be bound by knowledge of its agent, it must appear that he knew the entire truth. It is not enough that he was put upon inquiry. Bell v. Lycoming Fire Ins. Co. 19 Hun, 238. 1879. § 28. Policy appointing payee to receive the loss, if any, " as interest may appear," does not show knowledge in agent or company of true conditioh of title. Such a statement cannot, of itself, operate as a waiver of condi- tions, or estop the company from insisting upon a breach as a bar to recovery. Lasher v. Northwestern Nat. Ins. Co. 18 Hun, 104. 1879. § 29. The giving of a certificate by a local agent, cer- tifying that a policy had been applied for and was ob- tained, to a sheriff, in consequence of which a writ of exe- cution is stayed and policy remains in possession of the agent, and is never delivei'ed to the assured or to the par- ties to whom the loss was made payable, does not operate as an estoppel. Greene v. Lycoming Fire Ins. Co. 91 Pa. 387. 1879. § 30. Semhle that to estop company from insisting upon forfeiture on the ground of agent's knowledge at the time of the issue of the policy, it must appear not only that the agent knew generally the fact of the existence of other insurance, but that he knew its amount. Billingtou. v. Provincial Ins. Co. 3 Can. Sup. 182. 1879. § 31. Notice to a soliciting agent of the existence of other insurance is notice to the company, which is estopped from defending upon that ground. Brandaf v. St. Paul Fire Ins. Co. 11 Kep. 434. 1880. Minn. § 32. When a company joins with others in an adjust- ment and promises to pay its allotted portion, and assured m 1 I ■4 i % ■'a'i -K! Mi \m Ml I'lii 100 ESTOPPEL. t|i settles with the other companies on basis of such adjust- ment, the former company is estopped to deny its liabil- ity. Fishbeck v. Phoenix Ins. Co. 54 Cal. 422. 1880. § 33. Promise of an agent to procure necessary in- dorsement of consent to an assignment of a policy does not estop the company from insistinjj upon a forfeiture. Shuggart v. Lycoming Fire Ins. Co. 55 Cal. 408. 1880. § 34. If a company insures goods, usin^ general terras in their description, and the agent who issues the policy tells the assured that the description includes ben- zine, it is estopped in case of loss from claiming that ben- zine is prohibited and that its being on the premises avoids the insurance. Carrigan v. Lycoming Ins. Co. 10 Ins. L. J. 606. 1881. Vt. § 35. It is not essential that knowledge of an agent be acquired in connection with issue of particular policy in suit, it being, in eflFect, a renewal of one previously existing, in course of issuing and transferring which agent acquired his information. Broad head v. Lycoming Fire Ins. Co. 23 Hun, 397. 1881. § 36. A soliciting agent has no authority by virtue of such employment to consent to other insurance, and notice to him of such other insurance is not notice to the company. Heath v. Springfield Fire Ins. Co. 12 Rep. 213. 188L *N. H. § 37. Issue of policy by agent with knowledge of facts constituting a forfeiture estops company from setting up same as a defense. Commercial Ins. Co. v. Ives, 56 111. 402. 1870. Home Mut. Ins. Co. v. Garfield, 60 111. 124. 1871. Gershauser v. N. B. and M. Ins. Co. 7 Neb. 174. 1871. Planters' Mutual Ins. Co. v. Deford, 38 Md. 382. 1873. Field v. Ins. Co. of N. A. 6 Bisa. 121. 1874. Rus- sell v. State Ins. Co. 55 Mo. 585. 1874. Michigan State Ins. Co. V. Lewis, 30 Mich. 41. 1874. Hadley v. Ins. Co. 55 N. H. 110. 1875. Andes Ins. Co. v. Shipman, 77 111. 189. 1875. Lycoming Ins. Co. v. Jackson, 83 111. 302. 1876. Liv. Lond. and G. Ins. Co. v. McGuire, 52 Miss. 227. 1876. Carr v. Hibernian Ins. Co. 2 Mo. App. 446. ESTOPPEL. 101 m 1876. Aurora Fire Ins. Co. v. Kranich, 36 Mich. 289. 1876. Mers v. Franklin Ins. Co. 68 Mo. 127. 1878. Weeks V. Lycoming Ins. Co. 7 Ins. L. J. 552. 1878. U. S. Circuit, Vt. In regard to storing or keeping of gun- powder. Reaper City Ins. Co. v. Jones, 62 111. 458. 1872. In regard to watch, clock. Andes Ins. Co. v. Shipman, 5 Ins. L J. 137. 1875. 111. In regard to value. Red- ford V. Mutual Fire Ins. Co. 38 Up. Can. Q. B. 538. 1876. Dacey v. Agricultural Ins. Co. 21 Hun, 88. 1880. In re- gard to incumbrances. Dean v. Western Ins. Co. 41 Up. Can. Q. B. 553. 1877. Nau^hter v. Ottawa Ins. Co. 43 Up. Can. Q. B. 121. 1878. Harriman v. Queen Ins. Co. 49 Wis. 71. 1880. And result is not affected by the fact that the application states that the agent is to be deemed in filling it up as the agent of the applicant and not of the company. Naughter v. Ottawa Ins. Co. supra. In regard to building being vacant or unoccupied. Georgia Home Ins. Co. v. Kinnier, 28 Grat. 88. 1876. Williams V. Niagara Ins. Co. 50 Iowa, 561. 1879. Imperial Fire Ins. Co. V. Sherman, 96 111. 580. 1880. Poor v. Hudson Ins. Co. 9 Ins. L. J. 428. 1880. U. S. Circuit, N. H. Woodruff V. Imperial Fire Ins. Co, 83 N. Y. 133. 1880. In regard to other insurance. Ilayward v. National Ins. Co. 2 Ins. L. J. 503. 1873. Mo. Farmers' Ins. Co. v Taylor, 73 Pa. 342. 1873. Lycoming Ins. Co. v. Bannmger, 73 111. 230. 1874. Sherman v. Madison Ins. Co. 39 Wis. 104. 1875. Pitney v. Glen's Falls Ins. Co. 65 N. Y. 6. 1873. Pechner v. Phcenix Ins. Co. Id. 195. Shannon v. Gore District Ins. Co. 40 Up. Can. Q. B. 188. 1876. Roberts v. Continental Ins. Co. 41 Wis. 321. 1877. American Ins. Co. v. Luttrell, 89 111. 314. 1878. Richardson v. Westchester Fire Ins. Co. 15 Hun, 472. 1878. Richmond v. Niagara Ins. Co. 79 N. Y. 230. 1879. American Ins. Co. v. Gallatin, 48 Wis. 37. 1879. Fish- beck v. Phoenix Ins. Co. 54 Cal. 422. 1880. In regard to interest or title. American Central Ins. Co. v. McLana- than, 11 Kans. 533. 1873. Rockford Ins. Co. v. Nelson, 75 111. 548. 1874. Andes Ins. Co. v. Fish, 71 111. 620. 1874. Manhattan Fire Ins. Co. v. Neill, 28 Grat. 389. 1877. Broadhead v. Lycoming Ins. Co. 14 Hun, 452. 1878. Chase v. People's Ins. Co. Id. 456. Phoenix Ins. Co. V. Tucker, 92 111. 64. 1879. Union Ins. Co. v. Chipp, !iH'.; m\ 102 EVIDENCE. 93 111. 96. 1879, Germania Ins. Co. v. McKee, 94 III 494. 1880. Farmers' Ins. Co. v. Meekes, 10 Ins. L. J. 707. 1880. Pa. Ben. Franklin Ins. Co. v. Gillett, 9 Ins. L. J. 774. 1880. Md. Smith v. Commonwealth Ins. Co. 49 Wis. 322. 1880. Miaghan v. Hartford Fire Ins. Co. 24 Hun, 68. 1881. See Adjustment, § 6, Agent, 11, 12, 25, 77, 79, 88, 89, 102. Application, 11. Assignment, 9. Cancellation, 9. Evidence, 57. Insurable Interest, 9. Limitation, 23. Mutual Company, 94, 107, 129. Notice of Loss, 15. Other Insurance, 12, 13, 24. 34. Parol Contract, 7, 13. Premium, 2, 5, 18. Proofs of Loss, 14, 25, 57, 58, 59. Renewal, 7. Storing and Keeping, 22, Title, 2, 31. Use and Occupation, 4, 9, 12. Vacant or Unoccupied, 23. Waiver, 15, 23, 25. m EVIDENCE. § 1. It is not proper to ask the agent of company as to whether he would have issued the policy if certain facts had been made known to him. Perkins v. Equita- ble Ins. Co. 4 Allen, N. B. 562. 1860. § 2. Proof that company had insured property for years, and knew purpose for which it was erected, the manner in which it was occupied, general character of its contents, and nature and extent of the risk, is admissible as tending to aid the court in applying descriptive lan- guage of policy to actual subject of insurance, and in giv- ing effect to the words of the contract in the precise sense in which they were understood and employed by the par- ties. Mayor of N. Y. v. Exchange Fire Ins. Co. 34 N. Y. 103. § 3. An adjustment of the amount of the loss, while not conclusive, may be adopted by the jury as evidence of value. Thompson v. Liv. Lond. &, Globe Ins. Co. 2 Han- nay, N. B. 259. 1870. § 4. In an issue upon cash value of a building de- stroyed, a witness may state what it cost to put up such EVIDENCE. 103 a building forty years ago, without being an expert. Tuckerman v. Home Ins. Co. 9 R. I. 414. 1870. § 5. A verdict as to value or extent of loss cannot be sustained upon vague assertion or guess work. Grubb v. Ins. Co. 8 Phil. Rep. 29. 1870. § 6. Court cannot take judi<;ial notice of inflammable qualities of kerosene and other liquids. These are facts which must be proved and established. Wood v. North- western Ins. Co. 4G N. Y. 421. 1871. § 7. In a suit upon the policy parol evidence is inad- missible to show intent of parties to be diflferent from what the words express, and when language employed has a settled legal construction, such evidence cannot be admitted to contradict such construction. All under- standings are merged in the written instrument, and neither party can be permitted to prove that the instru- ment does not mean what it says. Pindar v. Resolute Fire Ins. Co. 47 N. Y. 114. 1871. b. p. Mills v. Farmers' Ins. Co. 37 Iowa, 400. 1873. McCluskey v. Providence Ins. Co. 126 Mass. 306. 1879. § 8. Where plaintiff applied for insurance by mailing to defendant another policy, with request that its " word- ing should be followed exactly," and such policy in terms insured stock " such as is usually kept in country stores." Held, in a suit upon the policy, the evidence inadmissible for purpose of showing notice to defendant. That such notice was not material, so long as defendant did not ac- cept risk as offered, or insert in its policy permission to keep prohibited goods. If assured was not content with policy sent, he should have rejected it, and his failure to read it could not enlarge the liability imposed upon de- fendant. Pindar v. Resolute Fire Ins. Co. 47 N. Y. 114. 1871. § 9. The opinion of a witness as to the value of a stock of goods is not admissible unless he is an expert ; the question as to whether such witness is qualified as an expert must be determined by the court. Taylor v. Ins. Co. 51 N. H. 50. 1871. 11 >'! ■ ts 104 EVIDENCE. § 10. Upon an issue as to fraudulent statement of value and extent of loss upon a stock of goods, the ques- tion to a witness who resides at another place, whether the amount of stock carried by his firm for their average year's sales was or was not the prudent proportion of stock to sales in that business, is properly excluded. Semhle such evid^isuce may be competent where the wit- ness is in the same kind of business in the same place. Jones v. Mechanics' lire Ins. Co. 7 Vroom, N. J. L. R 29. 1872. § 11. The wife of the assured, although authorized to make the necessary proofs of loss cannot be examined as a witness in regard to the title of her husband and the as- sured. O'Connor v. Hartford Fire Ins. Co. 31 Wis. 160. 1872. § 12. Evidence that the company had in other in- stances as to other parties waived a compliance with the condition requiring notice in the case of transfer or aliena- tion is inadmissible, although it seems that such evidence may be admissible if shown to be the custom of all fire in- surance companies. Burger v. Firemen's Mutual Ins. Co. 71 Pa. 422. 1872. § 13. Evidence of offers of compromise may be ad- missible as bea''ng upon question of sufficiency of proof of "«>r,s, unless the^ appear to have been confidential over- tures of pacification, or expressly stated to be without prejudice. Townsend v. Merchants' Ins. Co. 4 Jones & Sp. 172. 1873. § 14. An insurance company acts and speaks by its officers and what they say and do when in the discharge of their duty in relation to the particular duty assigned to them is evidence against the company. Muhleman v. Na- tional Ins. Co. G W. Va. 508. 1873. § 15. The rule that parol testimony may not be given to contradict a written contract, is ap])lied only in suits between parties to the instrument or their privies. Tlie assured may give testimony by parol of another policy than one in suit, and tlie application of the description 29. i EVIDENCE. 105 therein. McMaster v. Ins. Co. of N. A. 55 N. Y. 222. 1873. § 16. The question as to whether lire- works are in line of a certain business is not one to be answered by opinion of experts, but by an investigation of facts. Such an opinion is properly excluded. Steinbach v. La Fayette Ins. Co. 54 N. Y. 00. 1873. § 17. Where application was made for a policy like one of another company, and, as issued, contained a printed clause which the other did not, and a blank form of latter was admitted in evidence under objection, Held, no error ; that as policies were to be alike, it was proper to show that latter policy did not contain the printed con- dition ; and this^ was properly shown by the printed form. Van Tuyl v. Westchester Fire Ins. Co. 55 N. Y. 657. 1873. Affi'g 67 Barb. 72. § 18. A daughter of the assured, who bought a good many of the articles insured and was present when others were bought, can testify upon the question of value. Con- tinental Ins. Co. V. Horton, 28 Mich. 173. 1873. § 19. The acts and declarations of an adjuster in the general scope of his employment are properly received in evidence and bind the company. Farmers' Ins. Co. v. Taylor, 73 Pa. 342. 1873. § 20. Upon an issue as to value of farm buildings evidence may be received of what was paid for a certam farm within two miles distance three years prior to the fire. Haines v. Republic Fire Ins. Co. 2 Ins. L. J. 833. 1873. N. II. § 21. Certificate of notary or magistrate is not com- petent evidence as to value, t'arrell v. ^tna Fire Ins. Co. TBaxt. 542. 1*^74. § 22. Witness was asked, " State whether or not you complied substantially with the conditions of the policy issued to you by the Andes Ins. Co. on the first of April last ? " He answered under objection, " I think I did; I did." Held, that the question was improper as m ■'* 111 1' 15" ll 106 EVTDENCE. being too general and leading, as the answer would neces- sarily be a conclusion of law. Daniels v. Andes Ins. Co. 2 Mont. 78. 1874. § 23. Prior policy covering goods in question and known upon its expiration to company's agent, who issues a new one for same amount, is competent evidence of value, it being shown that the quantity and value remains the same up to the time of the fire, uulf City Ins. Co. v. Stephens, 51 Ala. 121. 1874. § 24. Policy provided that any mortgage made sub- sequently to the insurance must be notified to the secreta- ry in writing forthwith, otherwise it would be void. Held^ that such condition was not complied with by de- posit of such notice in the mail properly addressed, with- out proof of its receipt. McCann v. Waterloo County Fire Ins. Co. 34 Up. Can. Q. B. 376. 1874. § 25. When assured holds policy upon goods in store, for which he holds warehouse receipts, in case of loss, it is not necessary to prove the actual identity of the goods as described in the receipt, when it is shown that goods of the same character, kind and quantity were in the build- ing in question at the time the policy was obtained and at the time of the fire. Wilson v. Citizens' Ins. Co, 19 L. C. Jurist, 175. 1875. § 26. A latent ambiguity in a description is remova- ble by parol testimony. Bowman v. Agricultural Ins. Co. 59 N. Y. 521. 1875. § 27. A clause in policy making loss payable to a certain person as interest migiit appear, does not necessi- tate proof of any interest by him in the insured property. Clay Ins. Co. v. Huron Man. Co. 31 Mich. 346. 1875. § 28. When it is established by the testimony in connection with the laws of matter, that the goods for which assured claims a total loss were not in building at time of fire, a verdict for assured will be set aside as against the evidence. Lycoming Fire Ins. Co. v. Rubin, 79 ni 402. 1875. EVIDENCE. 107 § 29. An error in admitting improper evidence is not cured by a direction to jury to disregard it. Lycoraisg Fire Ins. Co, v. Rubin, 79 El. 402. i875. § 30. Counsel for company is a competent witness in its behalf. Davis v. Canada Farmers Ins. Co. 39 Up. Can. Q. B. 452. 1876. § 31. The failure of assured to call as a witness one who was his clerk at the time of the fire, to prove value of his goods, is a proper subject of remark by company's counsel in presentation of the case to the jury. Fowler V. Old North State Ins. Co. 74 N. C. 89. 1876. § 32. Entries upon broker's books may be competent as bearing upon question of mistake and credibility of broker and his clerks. Standard Oil Co. v. Triumph Ins. Co. 64N. Y. 85. 1876. Affi'g 3 Hun, 591. § 33. A letter, being an offer of compromise, and containing no statement which can be separated from the offer and convey the idea which was in the witness' mind, is not admissible in evidence. Home Ins. Co. v. Bait. Warehouse Co. 3 Otto, 527. 1876. § 34. Evidence of statements or pluns of adjustment made by experts, may be properly received, not as evi- dence of facts stated in them, but for the purpose of as- sisting the jury in calculating amount of liability, upon the several hypotheses of fact stated in them, jury being left free to accept either hypothesis or reject all. Home Ins. Co. V. Bait. Warehouse Co. 3 Otto, 627. 1876. § 35. A letter written by agent of other companies, containing statement " all my companies have paid, and I see no reason why the others should not pay," cannot be used on cross-examination of defendant s manager and witness for purpose of contradicting him. Kaler v. Builders' Mutual Fire Ins. Co. 120 Mass. 833. 1876. § 36. Any person acquainted with property and its value, or the value of like property, is a competent wit- i% -1 !ii 108 EVIDENCE. I iij •; ness to prove its worth. Lycoming Ins. Co. v. Jackson, 83 111. 302. 1876. § 37. Testimony of experts is not admissible to prove the meaning of the terms " Dry Goods and Groceries " in a place other than the one where policy was issued. Aa to whether such testimony would be admissible if con- nected with the place where policy was issued query f Germania Fire Ins. Co. v. Francis, 52 Miss. 458. 1876. § 38. The evidence of a custom among brokers may be admissible. It is competent at least to explain con- duct of parties, and how they regard verbal arrangements and the acts necessary to be done to consummate it. Stan- dard Oil Co. V. Triumph Ins. Co. 64 N. Y. 85. 1876. Affi'g 3 Hun, 591. § 39. An averment of ownership is sustained by proof of an insurable interest. Andes Ins. Co. v. Fish, 71 111. 620. 1874. Lycoming Ins. Co. v. Jackson, 83 111. 302. 1876. Rockford Ins. Co. v. Nelson, 65 111. 415. 1872. § 40. Statements of assured are. not admissible in ev- idence against a party to whom policy is made payable and who brings the action. Smith v. Exchange Fire Ins. Co. 8 Jones & Sp. 492. 1876. § 41. Mailing a letter properly stamped and addressed is evidence tending to show that it was received, but there is no conclusive presumption, not even a legal presump- tion, that it reaches its destination. Edwards v. Missis- sippi Valley Ids. Co. 1 Mo. App. 192. 1876. § 42. Blank form in use by a company may be suffi- cient secondary evidence of the conditions in original, but not of the description of the property, if company has kept no copy of the latter. Johnson v. Canada Farmers' Ins. Co. 28 Up. Can. C. P. 211. 1877. § 43. In the absence of sufficient evidence of written description of property in the policy, court will assume that it is the same as contained in the application. John- EVIDENCE. 109 jkson, As con- lery f 415. gon V. Canada Farmers' Ins. Co. 28 Up. Can. C. P. 211. 1877. § 44. One wbo has charge of the business carried on in a manufactoiy, with special opportunity to know, and has actual knowledge of the details and processes of the manufacturing and liability to fire, may give his opinion as to whether the risk is or is not increased by reason of a change in business. Brink v. Merchants' Ins. Co. 49 Vt. 442. 1877. § 45. An allegation of performance of condition al- lows proof of a waiver. Levy v. Peabody Ins. Co. 10 W. Va. 560. 1877. § 46. In an action by an insurance company against a railroad company to recover amount paid for a loss caused by sparks from engines of latter, proof of prior and subsequent emission of sparks by defendant's engines is admissible. Home Ins. Co. v. Penn. R. R. Co. 11 Hun, 182. 1877. In such an action interest is part of the dam- ages, and its allowance a matter of discretion with jury. Id. § 47: It is not competent to corroborate an oflScer of company, when not impeached, by proof by himself of his general course of dealing, ard the extent and limit of his powers, in regard to waiver. Adams v. Greenwich Ins. Co. 70 N. Y. 166. 1877. Affi'g 9 Hun, 45. § 48. Upon issue as to value, it is proper to show what the land sold for after the buildings were destroyed, as affording evidence of the value of the buildings when connected, with proof of what both together had before been offered for at Hale, Bardwell v. Conway Ins. Co. 122 Mass. 90. 1877. § 49. Assured has a right, at the trial upon issue as to value, to inquire as to the nature and quality of the different parts of a building, the cellar inclusive, of any ferson acquainted with building. Bardwell v. Conway ns. Co. 122 Mass. 90. 1877. ■ »'i ? r a m lilli 110 EVIDENCE. ' If i m '. § 50. Assured is not bound by the valuation of an- other company, upon which a policy had been issued and accepted by him. Such evidence is not admissible. Bard- well V. Conway Ins. Co. 122 Mass. 90. 1877. § 5) ilnsi a wi Company has no ground of exception in the ex- evidence offered by it attacking the validity of . strument in evidence, and constituting an es- sential element of one of its defenses. Bardwell v. Con- way Irs. Co. 132 Mass. 90. 1877. § 52. As.-JurcLl nay be questioned as to what valua- tion the agent of the company put on the property of the insured at the time of the issue of the policy, and if such value is the same in the answer as that stated in the pol- icy it is admissible, not being in conflict with the written contract, but in confirmation of it. Southern Mut. Ins. Co. V. Frear, 29 Grat. 255. 1877. § 53. Declarations of an adjuster, made in the dis- charge of his duty, are properly admissibhs in evidence. Brink v. Merchants' Ins. Co. 49 Vt. 442. 1877. § 54. Service of a notice required by a condition in the policy by mail, raises a presumption that it was re- ceived ; but such presumption is not conclusive, and may be rebutted by other evidence that such notice was never, in fact, received. Plath v. Minnesota Farmers' Mut. Ins. Co. 23 Minn. 479. 1877. § 55. In a country village, where there are few trans- fers of real estate, the price which a building would bring at present sale for cash, is not a fair criterion to determine valuation. Germania Fire Ins. Co. v. Casteel, 7 Ins. L. J. 253. 1877. III. § 5G. Mailing of a notice or paper to company in an envelope properly addressed and stamped is presumptive evidence of its receipt, and if there is no evidence of its not being received, will sustain a finding that it was re- ceived. Shannon v. Hastings Mut. Ins. Co. 2 Tupper, 81. 1877. Confirming 26 C. P. 380. EVIDENCE. Ill §57. Property was first insured by a policy dated February 16, 1872, and expiring February 12, 1873. At time it was issued there was a mortgage existing, which, under the terms of the policy, rendered it void. Subse- quently another policy was issued to same parties upon same property, containing a clause making loss, if any, payable to the mortgagees. This policy was issued Octo- ber 12, 1872, for one year. February 13, 1873, the first policy was continued in force by a renewal receipt. Held, in suit upon first policy, that evidence was sufficient to sustain finding of jury that defendant, when it renewed the policy, had knowledge of the mortgage. State Ins. Co. V. Todd, 6 Ins. L. J. 893. 1877. Pa. § 58. Upon an issue as to whether agent who issued policy had notice of the existence of other insurance it is proper to ask, such agent being sworn as a witness on the trial, whether there was any rule that he followed, when be insured a piece of property, with reference to the amount of insurance, " assuming the value of the property to have been to your knowledge $1,800, and no more, with $600 insurance already upon it, would you have put $1,200 more upon it?" Roberts v. Continental Ins. Co^ 41 Wis. 321. 1877. § 59. An action against an insurance company must be tried upon the facts as they existed at the time it was brought, unless subsequently occurring fiicts be special- ly pleaded. People's Ins. Co. v. Straehle, 2 Cin. Sup. Ct. 186. 1878. § 60. Evidence of what another company has paid to the assured on account of the same fire may be prop- erly received as showing what has been paid in reduction of defendant's risk. If the loss should prove to be less, its liability is reduced in proportion. Pennsylvania Fire Ins. Co. V. Kittle, 39 Mich. 51. 1878. § 61. It is error to reject proof of agency where as- sured relies upon waiver of condition requii'ing written consent. McCabo v. Farm Buildings Fire Ins. Co. 14 Hun, 602. 1878. •■it 19 1 II II 112 EVIDENCE. § 62. A deed is not admissible in evidence to show a change of title or possession, without proof of record- ing, delivery, or possession under it. Humphry v. Hart- ford Fire Ins. Co. 15 Blatch. 35. 1878. § (i3. Oral evidence is admissible to show what property was intended to be covered by general language in policy. Snow v. Carr, 61 Ala. 363. 1878. § 64. Secondary evidence may be given of policies cancelled and returned to home office of company in a foreign country. Snow v. Carr, 61 Ala. 363. 1878. § 65. It is error to exclude evidence bearing upon question as to knowledge of the agent, of facts existing at the time he takes an application for insurance. Han- son V. Milwaukee Mechanics' Ins. Co. 45 Wis. 321. 1878. § 66. The fact that the assured, being required by the policy to save the property insured, gave instructions " not to interfere unless all could be saved," to prevent dispute as to what was consumed, is immaterial, when it appears that it was impossible to have saved anything. Willis V. Germania Ins. Co. 79 N. C. 285. 1878. § 67. Evidence by experts of manner of adjustment of losses is incompetent unless assured has knowledge thereof at time of the issue of policy, or at least that the custom was so general and well understood that it must have entered into and formed part of the contract. Wil- liams V. Niagara Fire Ins. Co. 50 Iowa, 561. 1879. § 68. In case of a mutual mistake between the par- ties, parol evidence is admissible to reform the policy. Vilenberger v. Protective Mutual Fire Ins. Co. 89 Pa. 464. 1879. 8. p. Brugger v. State Investment Ins. Co. 5 Saw- yer, 304. § 69. A letter from company to assured after the fire, being a written declaration of an officer in regard to his construction of the policy, is not admissible in evi- dence as against the assured. Planters' Mut. '^un. Co. v. Engle, 52 Md. 468. 1879. EVIDENCE. 113 Partridge v. Commercial Fire Ins. § 70. Assured was allowed to prove, under objection, that he told people, who put up at his house, that he did not keep a hotel. Held, that this was conversation char acterizing his act, and was proper to show in what waj- he received his guests. Co. 17 Hun, 95. 1879. § 71. Policy provided that it should be void if " camphene, burning fluid, or refined coal or earth oils are used on the premises." Held, that whether kerosene oil was a coal or earth oil, could not be judicially noticed, or found without evidence. Bennett v. N. B. . FALLING BUILDING. § 1. Building must cease to be such to be " fallen " within meaning of the policy. So long as standing, how- ever depreciated, it is not fallen. Firemen's Ins. Co. v. Sbolora, 80 111. 558. 1875. § 2. Where a portion of building falls, leaving three- fourths still standing, it cannot be deemed a " fallen build- ing," terminating the insurance. Breuner v. Liv., Lond. & Globe Ins. Co. 51 Cal. 101. 1875. 8 3. The policy contained provision that " if building shall fall, except as the result of a fire, all insurance on it or its contents, shall immediately cease and determine." The eastern and western halves of the insured building were substantially distinct, separated from each other by a brick partition which extended from the front to the rear and from cellar to roof, though with doors of com- munication in each story, and each of the two parts or buildings were capable of standing or falling by itself. In each of these two parts or buildings midway between the partition wall and the end wall there was a beam or girder in each floor, extending from the front to the rear, sup- ported by four brick piers in the cellar and by wooden posts in each story, and upon which the beams of the floors rested. By tiie giving way of the piers of the cellar in the eastern part or building, without the agency of fire, the beam or girder resting thereon fell down near the ground, bringing with it the floors and partitions and roof above, with the goods and merchandise in each story, in a mixed and confused mass, excepting only very small por- tions of some of the floors and of the roof and a single case of goods. Only the outer walls of this building, of which the brick partition walls separating it from the adjoining building was one, and an elevator five feet square in one corner, were uninjured by the full. After the fall the fire broke out whicli caused the injury, for which recovery was Bought in this action, to the goods which had fallen, and to 124 FRAUD AND FALSE SWEARING. the elevator and to the surrounding walls, with the doors and windows therein, which remained standing. The west half of the buildins; remained, in all its parts, undisturbed and uninjured. Held, that action could not be maintained, and that there must be judgment for defendant. Iluck v. Globe Ins. Co. 127 Mass. 306. 1879. FRAUD AND FALSE SWEARING. § 1. Circumstances in connection with the origin of the fire being suspicious, a false statement by the assured in his proofs as to his absence from the premises at the time of the fire, avoids the insurance. Smith v. Queen Ins. Co. 1 Ilannay, N. B. 311. 1868. § 2. Difference between amount of verdict and value, as sworn to in the proofs and on the trial, does not of itself establish fraud. Williams v. Phoenix Ins. Co. 61 Me. 67. 18f;9. linger v. People's Ins. Co. 4 Daly, 96. 1871. Gerhauser v. Mercantile Ins. Co. 7 Nev. 174. 1871. Rockford Ins. Co. v. Nelson, 75 111. 548. 1874. Israel v. Teutonia Ins. Co. 28 La. Ann. 689. 1876. Schulter v. Merchants' Mut. Ins. Co. 62 Mo. 236. 1876. Dogge V. Northwestern Nat. Ins. Co. 49 Wis. 501. 1880. § 3. To constitute fraud and false swearing a state- ment must be willfully made in respect to a material mat- ter and with intent to deceive the insurer. Gerhauser v. N. B. & Mercantile Ins. Co. 7 Nev. 174. 1871. s. r. Huchberger V. Merchants' Ins. Co. 4 Biss. 265. 1868. Id. v. Home Ins. Co. 5 Id. 106. 1870. Jones v. Mechanics' Fire Ins. Co. 7 Vroom, N. J. L R. 29. 1872. Planters' Mut. Ins. Co. V. Deford, 38 Md. 382. 1873. Parker v. Amazon Ins. Co. 34 Wis. 363. 1874. Little v. Phoenix Ins. Co. 123 Mass. 380. 1877. Gibbs v. Continental Ins. FRAUD AND FALSE SWEARING. 125 Co. 13 Hun, 611. 1878. Titus v. Glen'a Falls Ins. Co. 81 N. Y. 410. 1880. § 4. Defense was misrepresentation in stating value to be $4,500 ; false swearing in stating value was $3,206 ; the amount insured was $1,800, upon an estimated value at the time of the insurance of $4,.500. Jury found spec- ially, first, that the actual cash value of the goods at the time of the insurance was $1,000, and that the extent of the loss amounted to $1,100. Held^ that upon these facts defendant was entitled to succeed and plaintiff nonsuited. Newton v. Gore District Mut. Fire Ins. Co. 33 Up. Can. Q. B. 92. 1872. § 5. Under the charge of fraud and false swearing accused cannot excuse himself for including in his sworn account of the loss, property which had been removed by him from the premises before the fire, upon an alleged statement made by the company's agent, to " put into the proofs all the plaintiff had ; that there was a deduction to be made by the company anyway ;" the agent not know- ing of the removal of the goods. Hanover Ins. Co. v. Mannasson, 29 Mich. 316. 1874. § 0. There can be no designed deception in proofs of loss when company's agent is fully advised of the facts. Nor can an incorrect statement which cannot, and does not, mislead, be construed as fraud or an attempt at fraud. Rohrbach v. ^tna Ins. Co. 02 N. Y. 613. 1875. § 7. When agent knows facts, an incorrect statement in proofs cannot be construed as " fraud and false swear- ing." Maher v. Ilibernia Ins. Co. 67 N. Y. 283. 1876. s. p. Young V. Hartford Ins. Co. 45 Iowa, 377. 1877. § 8. When the assured swears in his proofs that the value of the property insured was $1,000, knowing at the time that it was materially less than such sum, actually believing his loss to be at least $600, for the purpose of inducing a speedy settlement and to prevent controversy, it constitutes fraud or attempt at fraud, causing forfeiture of the policy. Sleeper v. N. II. F. Ins. Co. 56^. H. 401. 1876. , I 120 FRAUD AND FALSE SWEARING. if. § 0. When assured had claimed that property de- stroyed was worth $2,000, and the evidence upon the trial convinced the court that the real value, when new, was not more than $1,000, and that, at the time of the fire, did not exceed $500 — Held, that, notwithstanding a verdict had been given once l)efore in favor of the plaintiflF, it must be set aside. McLeod v. Citizens' Ins. Co. 1 Rus- sel & G. N. S. 21. 1879. § 10. If assured includes in sworn statement of loss or proofs, articles not covered by the insurance, but which is done in good faith under his mistaken idea as to liabil- ity of the company, it does not constitute fraud and false swearing. Farmers' Ins. Co. v. Gargett, 9 Ins. L. J. 108. 1879. Mich. § 11. Jury found special verdict that loss was "over- estimated, but not with intention of fraud." There was evidence of a co-plaintiff implicating assured in the de- struction of the property, and as having intentionally made a false and fraudulent claim. The verdict was for $400. Claim had been made for $5G5. Held, the verdict must be set aside. Longley v. Northern Ins. Co. 3 Rus- sel&C. 516. 1879. § 12. The insertion in proofs by assured, in good faitli, with knowledge of the company, of articles of prop- erty belonging to other members of his family, and not cov- ered by the insurance, does not constitute fraud. Farm- ers' Mut. Ins. Co. V. Gargett, 42 Mich. 289. 1879. § 13. To sustain defense of fraud and false swearing in relation to title, it is necessary to show that the assured had not an absolute title at the time of the loss; that he knowingly, falsely and fraudulently assei'ted, at the time of making a settlement, and for the purpose of inducing the defendant to make the same, that he had a perfect title; that the defendant, relying upon such false assertion of title, was, in fact, induced to make the settlement alleged to have been made, and that defendant would not have made such settlement if such false reports had not been made. Stache v. St. Paul Fire Ins. Co. 49 Wis. 89. 1880. FOREIGN COMPANY. 127 § 14. Fraud cannot be inferred from a discrepancy in statements as to value in application and proofs. Helb- ing V. Svea Ins. Co. 54 Cal. 156. 1880. § 15. The fact that assured, in bis proofs, stated that his damages amounted to $1,017 64, and appraisers esti- mated same at $694, is not conclusive evidence of fraud. The question, in such a case, is properly left to the jury. Dolau V. ^tna Ins. Co 22 Hun, 396. 1880. See Entirety and Divisibility of Policy, § 1, 6. ing and Practice, 8. Waiver, 1. Evidence, 10. Plead- FOREIGN COMPANY. § 1. Under L. 1849, ch. 178, as amended by 2 L. 18')7, ch. 548, agent of foreign company, in any city or incorporated village, except New York, must give bond for accounting and payment of two per cent, upon the amount of premiums annually received, to representative of fire department. Fire Department of Troy v. Bacon, 2 Abb. Ct. App. Dec. 127. 1867. § 2. The deposit of secuiities made by a foreign in- surance company, is applicable only for the security of policy-holders. General creditors of the company cannot share in such deposit. He .^tna Ins. Co. 17 Grant Ch. 160. 1870. § 3. When, in distribution of securities or deposit made by a foreign insurance company, the assets prove to be deficient, the costs are added to the claims, and are proved and paid as part of it. Re ^tna Ins. Co. 17 Grant Ch. 160. 1870. § 4. When party holds himself out as agent of a for- eign company, and forwards an application to a broker in Boston, who obtains policy from a company in New York, i-V, 128 FOREIGN COMPANY. and delivers it to the former, who delivers it to the assured and receives a note for the premium, Ileld^ that the trans- action was an indirect carrying on of insurance business contrary to statute, and that such note ^ould not be col- lected. Jones V. Taylor, 2d Pugsley, N. B. 391 ; and see Id. 103. § 5. Under the Act of March 26, 1868, creating the office of insurance commissioner for the State of California, such officer may require an insolvent company to repair its capital, without revoking its certificate. Palache v. Pacific Ins. Co. 42 Cal. 418. 1871. § 6. In an action against a foreign insurance com- pany it is not necessary to aver that it has complied with statute governing its admission to the State and authority to do business. Germania Ins. Co. v. Currau, 8 Kans. 9. 1871. § 7. Section 5, Act Feb. 13, 1863 (111.), providing in substance that foreign insurance companies should pay two per cent, on premiums received in Chicago to the city treasury, was repealed by section 30, Act March 10, 1809, and that on account of such repeal the city lost its right to the percentage accrued at time of passage of repealing act, but not enforced. That the court could not take judicial notice of the existence of a fire department in Chicago to bring the case within a proviso of the repeal- ing act. Van Inwagen v. City of Chicago, 61 111. 31. 1871. § 8. Under Constitution of the State (La.), Act 118, an insurance company is not obliged to pay more than one license fee. Merchants' Mut. Ins. Co. v. Blandin, 24 La. Ann. 112. 1872. § 0. An insurance company which has not complied with the statute governing its admission to the State, has no right to ask any relief or require any official action in its favor within such State. People v. Com. of Ins. 25 Mich. 321. 1872. § 10. A policy of insurance delivered by a broker within the State, who icceives premium therefor, of a FOREIGN COMPANY. 129 foreign company which has not complied with statute governing its admission to State, cannot be enforced in courts of such State. Franklin Ins. Co. v. Louisville Packet Co. 9 Bush (Ky.), 590. 1873. § 11. The funds and securities deposited by a foreign insurance company with the State Treasurer is not liable to attachment when the company ceases to do business within the State and has satisfied all the claims of its citizens; such funds must be returned to the company and cannot be attached in an action brought by a foreign creditor. Kollo v. Andes Ins. Co. 23 Grat. 509. 1873. § 12. Funds and securities deposited by a foreign insurance company with a specified officer of tnis State are not attachable both on account of the tenure of the hold- ing and of the official character of the holder. A lien may be acquired on such a fund, but no priority. The law under which such securities are deposited is equiva- lent to a statutory mortgage for the benefit of all the citizens of the State. In such a case the rule is that the creditors share pro rata and neither can require any priority over the others. Peunebaker v. Tomlinson, 1 Cooper, ch. Ill, 594. 1873. § 13. A foreign corporation must comply with a statute prescribing the conditions upon which it will have authority to transact business within the State. Farmers' Ins. Co. v. Harrah, 47 Ind. 236. 1874. s. p. Doyle V. Continental Ins. Co. 6 Ins. L. J. 177. 1876. U. S. Sup. § 14. Under the Indiana statute (3 Ind. Stat. 315) a foreign company cannot insist upon certificate of nearest officer. Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315. 1874. § 15. Statute must be strictly followed to obtain jurisdiction over foreign insurance companies. Hartford Fire Ins. Co. v. Owen, 30 Mich. 441. 1874. § 16. The city of Norfolk has power to impose a license tax upon foreign insurance companies doing busi- VoL. IT.— 9 , ,\% 130 FOREIGN COMPANY. I ness within the limits of that city. Humphreys v. City of Norfolk, 25 Grat. 97. 1874. § 17. The lien upon notes deposited with the State officer as a " security " for risks taken by citizens of this State may be enforced by an assignee who resides with- out the State. It is the risk that secures the lien. If that be taken by a citizen it is a matter of no consequence whether the citizens retain the claim after it becomes fixed by the fire or has assigned it. Pennebaker v. Tom- linson, 1 Cooper, ch. Ill, 598. 1874. § 18. A contract of insurance made in Pennsylvania •on property situated in New Jersey, which would be void under the laws of the former State, is valid and will be enforced in New Jersey. Columbia Fire Ins. Co. v. Kin- yon, 8 Vroom, N. J. L. R. 33. 1874. § 19. An insurance company organized as a corpora- tion under laws of one State, and having an agency by which it conducts its business in another State, is not en- gaged " in commerce between the States," within meaning of U. S. Constitution. Farmers' Ins. Co. v. Ilarrah, 47 Ind. 236. 1874. § 20. A foreign corporation being a creature of lotfH law, must dwell in place of its creation. It It • no absolute right to recognition in other Sta with- out their assent, it follows that such assent i.iy be f ranted on such condlaons as may be imposed by statut iamb V. Lamb, 6 Biss. 420. 1875. s. p. Hartford Ius<. Co. V. State, 9 Kans. 210. 1872. Home Ins. Co. v. Davis, 29 Mich. 238. 1874. City Leavenworth v. Booth, 15 Kans. 627. 1875. Walker v. City of Springfield, 94 lU. 364. 1880. § 21. A statute prohibiting removal of suits into IT. S. court having been decreed unconstitutional, one of its provisions requiring Secretary of State in such case to revoke license is no longer operative, and lie may at the instance of a company be restrained by injunction. Hartford Fire Ins. Co. v. Doyle, 6 Biss. 461. 1875. FOREIGN COMPANY. 181 § 22. A statute which requires a foreign insurance company, as a condition precedent to its right to transact and carry on business within thei State, to waive all claim or right of removal of actions against it into the United States court, is unconstitutional and void. Railway Pas- senger Assurance Co. v. Pierce, 27 Ohio, 155. 1875. Contra, Home Ins. Co. v. Davis, 29 Mich. 238. 1874. § 23. Comp. L. § 1,683 (Mich.) governing insurance by agents of foreign corporation, applies to operations within the State and against the representatives of foreign incorporated and unincorporated interests. It does not assume to forbid the making of contracts of insurance in another State, nor does it assume to invalidate such agree- ments. A company sued upon a policy issued in another State, and which has not complied with the statute, can- not avail itself of a defense founded upon such non-com- pliance, upon the ground of want of authority to make its contract. Clay Ins. Co. v. Huron Manuf. Co. 31 Mich. 346. 1875. § 24. The common council of St. Paul, Minnesota, has no authority to require an agent of an insurance com- pany to pay for a license to transact insurance business in that city. Moss v. City of St. Paul, 21 Minn. 421. 1875. § 25. When a foreign fire insurance company has, imder the statute (L. 1853, p. 915; L. 1862, p. 65), ap- pointed an attorney upon whom process of law can be served, service of a summons upon sucli attorney as pre- scribed by the Code of Civil Procedure, is sufficient to give ihe State courts jurisdiction. Gibbs v. Queen Ins. Co. G3N. Y. 114. 1875. § 26. A foreign insurance company which has com- plied with the statute in regard to its admission into the Staio, and has appointed an agent to accept process, be- comes, as to all contracts with citizens of such State, domi- ciled there, and in controversies with other citizens, grow- ing out of policies of insurance, must sue and be sued in the State courts, and does not come within the terms of the Act of Congress relating to the removal of cases to the 132 FOBEION COMPANY. i 5;ti United States court. Continental Ins. Co. v. Kasey, 27 Grat. 216. 1876. § 27. The fact that statute under which an agree- ment is required not to lemove causes into the United States court is unconstitutional and void, does not pre- vent State from revoking its authority and license to a for- eign company to transact business within the State. Doyle V. Continental Ins. Co. 6 Ins. L. J. 177. 1876. U. S. Sup. § 28. Authority in a municipal charter to license and tax insurance companies for a specific purpose in connec- tion with fire department, cannot be extended to create a fund for benefit of department generally. City of Alton V. iEtna Fire Ins. Co. 82 111. 45. 1876. § 29. Although company may not have complied with laws of a certain State authorizing it to do business therein, such fact does not make its policy void, having been issued in another State upon an application for- warded by mail. Lamb v. Bowser, 7 Biss. '6X5. 1878. § 30. Superintendent of New York Insurance De- partment cannot voluntarily transfer his trust created by deposits made with him under the statute for benefit of policy holders. Ruggles v. Chapman, 59 N. Y. 163. 1874. 64 N. Y. 557. 1876. § 31. The State Act of 1875 which authorizes the treasurer department to collect from foreign insurance companies two dollars and fifty cents upon each one hun- dred dollars of premiums, " which shall be in lieu of all other taxes," prevents the city of Memphis from imposing any further tax. City of Memphis v. Ins. Cos. 5 Ins. L. J. 175. 1876. Tenn. § 32. Jurisdiction in garnishee proceedings is obtained over foreign companies only by a strict compliance with the statute. Hebel v. Amazon Ins. Co. 5 Ins. L. J. 599. 1876. Mich. § 33. To acquire jurisdiction ov3r a foreign insurance company, service of process must be made upon the per- the FOREIGN COMPANY. 133 son or agent designated for that purpose under the statute. Liblong V. Kansas Fire Ins. Co. 82 Pa. 413. 1876. § 34. It is not competent for a legislature to declare that the citizens of the State shall not be allowed to make such contracts as tbey please out of the State for the in- surance of their property. Lamb v. Bowser, 7 Biss. 315. 1876. § 35. The non-compliance by a foreign insurance com- pany with statute governing its admission to State, does not prevent a recovery upon a note given by a citizen of such State as subscription to capital stock. Bartlett v. Chouteau Ins. Co. 18 Kans. 369. 1877. § 36. In Iowa service of process may be made upon an agent authorized to solicit risks and forward them to the company. Farmers' Ins. Co. v. Highsmith, 44 Iowa, 330. 187t). And neglect of such agent to forward papers to company will not induce court to vacate a judgment en- tered upon default. Niagara Ins. Co. v. Rodecker, 47 Iowa, 162. 1877. § 37. Under the Iowa statute, service of process upon company admitted to the State may be made upon any of its agents in the State. Company will not be reliever' from a judgment obtained against it by default, process having been served on one of such accents, in absence of evidence that the latter used due diligence to notify the company or its general agent. Niagara Ins. Co. v. Ro- decker, 7 Ins. L. J. 824. 1877. Iowa. § 38. A foreign insurance company cannot be allowed to continue business after legal proceedings have been had in its domicile for purpose oi closing the affairs of the com- pany, and it is without regard tO the possible result of such proceedings upon the e>lvency of the company. Douglas V. Atlantic Mutual Life Ins. Co. 25 Grant Cn. 379. 1878. § 39. An insurance company created by Act of Con- gress is a foreign corporation witnin the meaning of stat- sjiA d 134 FOREIGN COMPANY. ,, ute of Indiana. (I R. S. 1876, p. 373.) Daly v. National Life Ins. Co. 64 Ind. 1. 1878. § 40. Under the Indiana statute (1 R. S. 1876, p. 594) a contjpany has until the last day of the months of January and July in each year to file certificate of author- ity, and may transact business until close of such months. American Ins. Co. v. Pettijohn, 62 Ind. 382. 1878. § 41. State Treasurer is not required to give up securities deposited with him by foreign insurance com- pany until full compliance is shown with Act of March 23d, 1874. State v. Richmond Fire Association, 67 Mo. 496. 1878. § 42. A company having under the statute appointed an attorney for the purpose of receiving service of legal process, such service to confer jurisdiction, can be made upon such person only. Baile v. Equitable Fire Ins. Co. 68 Mo. 617. 1878. § 43. The right of a company organized under a spe- cial charter to transact business in Chicago with a capital less than $150,000, is not aflfected by section 6 of ch. 73 Rev. Stat. 1874. People v. Empire Fire Ins. Co. 88 111. 309. 1878. § 44. In a controversy between various parties as to their interest in the fund deposited under the statute with the treasurer cf the State of Mississippi, Held, that the ob- ject of the statute was to give foreign insurance companies as far as possible the privileges coupled with the liabilities of companies chartered by that State. That the deposit was intended only for those who obtained their policies through agents appointed and doing business in the State, under the provisions of the statute. That no assignment or transfer of the fund deposito.,j^1 143 INCREASE OF BISK. fc,'|-!> snred. Hermann v. Merchants' Ins. Co. 81 N. Y. 184. 1880. § 26. The usual provision in policy for a renewal does not have the effect to continue policy in force during term for which it was issued, when there has been an in crease of risk Daniels v. Equitable Ins. Co. 10 Ins. L. J. 417. 1881. Conn. § 27. Propertv insured was described in the policy as follows : " Furniture, fixtures and tools used by the as- sured in his business as renovator of furniture, clothing and carpets, and on the improvements to the building put in by him." There was this clause inserted: "Assured has permission to use naphtha in his business, but fire or lights are not permitted in the building, except a small stove in office." At that time there was no other stove in the building. Policy issued July 7, 1877, for one year. About January Ist following, a large stove was placed in a room used for a drying room, and was thereafter used in connection with hot water pipes for warming the naphtha in tanks in the basement. Fire occurred in April, caused by an explosion of gas. Upon the trial uncontradicted evidence was given that the risk was increased. Verdict for plaintiff. Held^ that the verdict was contrary to law and evidence, and new trial granted. That it was no an- swer to say that company insured business carried on with naphtha, and that therefore assured had right to use ordi- nary means to carry on that business. The conditions and manner of use were defined and limited by agreement, nnd there was no right to use means which involved a viola- tion of his agreement. Insurance is rendered void without regard to cause of the fire. Daniels v. Equitable Ins. Co. 10 Ins. L. J. 417. 1881. Conn. § 28. If there is no express prohibition against use of a threshing machine in close proximity to a barn insured, although fire is caused by its explosion, the question is, at most, one of increase of risk, and tiiat is properly left to the jury. Farmers' Mutual Fire Ins. Co. v. Moyer, 10 Ins. L. J. 514. 1881. Pa. flee Alteration, § 2. Concealment, 9. Evidence, 44, 86. Lighting, 8, 4. 184. INSOLVENCY. 149 Other Insurance, 31. Overvaluation, 9. Pleading and Practice, 27. Ques- tions for Court and Jury, 13, 17. Renewal, 3, 12. Repairs, 2. Risk, 13. Storing and Keeping, 4. Use and Occupation, 2, 5, 15, 17, 19. Vacant or Unoccupied, 6, 12, 15, 31, 40. Warranty and Representation, 72, 88. INSOLVENCY. § 1. Mortgages were executed by an officer and stock- holder, in exchange for stock ; they contained a provision that they might be paid in stock of the company, were not recorded, but were advertised as assets of the company. After losses were incurred company became insolvent and the mortgages were surrendered and canceled, on return and cancellation of the stock certificates. Ileldj that the transaction was a fraud on the policy holders, and that as to them the mortgagor was estopped from denying the validity of the mortgages. Burnham v. N. W. Ins. Co. 36 Iowa, 632. 1873. § 2. Directors of an insolvent company are not re- sponsible for mere errors of judgment or want of pru- dence in conducting or closing up its business. Lyman V. Bonney, 118 Mass. 222. 1875. See Mutual Company, § 9, 28. 29, 32, 66, 78, 79, 84, 92, 120, 183, 136. Pleading and Practice, 7. Re-Insurance, 15. if m vn !*?■ I m INSURABLE INTEREST. ■ '' ha oDe § 1. Assured obtained policy as owner of building in his possession, on land subject to a lease, the title to which, prior to the insurance was in "W. from whom the assured had received a unrecorded assignment of the lease. Before the policy was obtained W. had assigned the lease to another party and this assignment was re- corded. ITeld, that by such recording, the title was in the latter assignee without entry and that the insured had no insurable mterest. Crockford v. Equitable Ins. Co. 5 Allen, N. B. 651. 1863. § 2. A stock of goods covered by policy was sold to M. who gave his notes therefor, indorsed by L. with an agreement that the proceeds of the sale of the goods shomd be paid over to L. and be applied in payment of the notes. Policy was assigned to L. by consent of the company, all parties having knowledge of the facts. Held, that L. had an insurable interest in the goods. Davies v. Home Ins. Co. 3 Grant Err. & App. 269. 1866. Revers- ing 24th Q. B. 364. § 3. Land uj^on which house insured stood was leased to plaintiff's husband who had died in 1860. Plaintiff retained possession from that time and paid the ground rent. No administration was taken out on the husband's estate, nor did it appear that any claim was made against the plaintiff in behalf of any of the next of kin. Held, that the plaintiff had an insurable interest either upon the ground of a presumption that the house belonged to the plaintiff, or as executrix de son tort, or as a widow under the statute of distribution. Lingley v. Queen Ins. Co. 1 Hannay, N. B. 280. 1868. § 4. An equitable interest is an insurable interest. If insured is in possession under a contract for purchase and has paid part of the consideration, he has an insura- ble interest. Tuckerman v. Home Ins. Co. 9 R. I. 414. 1870. INSURABLE INTEREST. 161 § 5. When a deed is shown to have been intended as a mortgage only it does not deprive the assured of an insurable interest. Kelly v. Liv., Lond. & Globe Ins. Co. 2 Hannay, 266. 1871. § 6. Owner of property, although having parted with possession under an executory contract of sale, retains an insurable interest. Wood v. North Western Ins. Co. 46 N.y. 421. 1871. § 7. On May 26, 1868, owner of property gave a mortgage to Little and Stanton to secure six notes. On Jan. 81, 1870, Little and Stanton assigned the mortgage and indorsed the notes to the plaintiflf. Policy was issued July 5, 1870, by which defendants insured "Little and Stanton, mortgagees^'' loss payable to plaintiff. Policy contained usual condition requiring interest to be stated in policy if not sole and absolute ownership, ^atiou State Ins. Co. v. Maackens, 9 Vroom, N. J. L. R. 564. 1876. § 19. When policy is issued to a mortgagor of per- gonal property, loss, if any, payable to mortgagee, after title of latter has become absolute at law by terms of the mortgage, and notice of amount due is filed as prescribed by the statute, the insurance is not limited to value of the equity of redemption, but covers the entire property. Smith V. F.vohnnw' Fii'«^ Tnss Cn k Jnnna .6r Sn ±Q9 Smith v. 1876. Fire Ins. Co. 8 Jones *& Sp. 492. MOBTGAOOB AND MOBTQAOEE. 177 § 20. Policy insured owner and mortgagee " as inter- est may appear," loss, if any, first payable to latter. Be- lieving defendant to be insolvent, the latter insured his interest as mortgagee in another company, and consented to cancellation of policy in suit. After the fire the owner repaired and restored building insured as i*: ./as previous thereto. Held, that mortgagee had no authority to consent to cancellation ; that as building had been restored he had sustained no loss or damage, which was payable to the owner alone. Matter of Moore, 6 Daly, 541. 1876. § 21. Property insured was mortgaged to plaintiff to secure $99,000. Policy insured his interest as mortgagee. Assured agreed to sell the mortgage /or $62,000, by an executory written contract, and at time of fire had re- ceived on account of the same, $20,000. Purchaser had agreed to keep property insured but had not done so. The insurance in question was procured and paid for by the plaintiff himself. Company claimed that the interest of the plaintiff was limited to the difference between the $60,000, at which he had agreed to sell the mortgage and amount received, $20,000, or $40,000, and that it was liable for its proportionate share of such amount only. Held, untenable ; that an executory contract to convey a mortgagee's interest does not deprive him of his right to insure or limit his recovery to amount of unpaid purchase- money, nor is the result affected by the fact that pur- chaser of the mortgage was responsible for the premium, and the amount could be treated as paid by him. Haley V. Manufacturers' Ins. Co. 120 Mass. 292. 1876. § 22. Under usual covenant in mortgage authorizing mortgagee to effect insurance, the premiums paid by him may be added to the mortgage debt. Leland v. Collver, 34 Mich. 418. 1876. § 23. A mortgagee to whom loss is made payable with special " mortgagee clause or agreement," has no right to consent or authorize cancellation of policy as against the assured. Matter of Moore, 6 Daly, 541. 1876. § 24. When party to whom loss is made payable has Vol. II.— la VA 1' I! 178 MORTGAGOB AND MORTGAGEE. received before action is commenced an assignment of the whole right of action under the policy, he is entitled ab- solutely to the whole proceeds of the insurance, and it is immaterial that the debt which the assured owed the plaintiff was paid in part pending the Jitigation. North- westera Mutual Life Ins. Co. v. Germania Fire Ins. Co. 40 Wis. 446. 1876. § 25. Where loss is made payable to third party, a mortgagee, the owner and assured cannot maintain au ac- tion to recover a loss, while the mortgagee is unpaid. Roussel V. St. Nicholas Ins. Co. 9 Jones -fe Sp. 279. 1876. § 26. Policy about expiring plaintiff paid local agent premium for renewal, and received a renewal receipt. About same time the mortgagees in another place to whom policy had been assigned to extent of their interest, anx- ious to have policy renewed, applied to another agent. By company's mistake a new policy was made out in name of the raortL^agees as owners. It remained in office of local agent until after the fii-e. Company settled with the mortgagees by paying the amount of their interest. Ac- tion being brought by the owner and assured under origi- nal policy upon the renewal contract. Ileld^ that plaint- iff could not be prejudiced by mistake of the company in issuing policy to the mortgagees, that he was entitled to recover upon the completed contract of renewal the amount of the policy less the amount paid to the mort- gagees. Akin v. Li v., L. «fe G. Ins. Co. 6 Ins. L. J. 341. 1877. U. S. Circuit, Ark. § 27. Where loss is made payable to a mortgagee who brings suit upon the policy, evidence of admissions made by the owner and assured after the fire is not adrais- eible. Browning v. Home Ins. Co. 71 N. Y. 508. 1877. § 28. The authority conferred by a mortgage upon the mortgagee to procui'e insurance, does not prevent the latter from obtaining iin insurance upon Tiis interest as mortgagee,' and in such case the company is entitled to the benefit of a provision in its policy for an assignment of the mortgage and subrogation. Foster v. Van Reed, ro N. Y. 19. 1877. 8. p. Dick v. Franklin Fire Ins. Co. 10 Ins. L. J. 468. 1881. Mo. MOBTOAGOB AND MOBTGAOBB. 179 § 29. A creditor or mortgagee who obtains a policr' for his own protection at his own instance on his debtors property is not liable to account to the debtor for the money paid in case of fire. Archambault v. Galarneau 22 L C. Jurist, 105. 1877. § 30. By mortgage clause attached to policy, issued in name of owner and mortgagor, company agreed that <' the insurance, as to the interest of the mortgagee only, should not be invalidated by any act or ueglect of the mortgagor or owner, i^2 >•■<&( L 182 MOUTOAGOB AND MORTGAGEQ. § 45. The rights of a mortgagee to whom loss is pay. able, cannot be affected by death of the assured. West- chester Fire Ins. Co. v. Dodge, 9 Ins. L. J. 909. 1880. Mich. § 46. Mortgagee obtained policy upon his interest as such under and by virtue of an agreement with the owner and mortgagor that the insurance should be applied for benefit of latter in reduction of the mortgage debt. Pre- vious insurance had been upon interest of owner with loss payable to mortgagee. The mortgagee was not aware that this policy was different until after the fire, when he de- livered it to the mortgagor and at same time notified the company in writing that the insurance was for benefit of the owner. Building was repaired by the mortgagor. Heldy that there was an equitable assignment of the policy to the owner who could maintain action in his own name; that the repairing of the property and fact that the securi- ty afforded by the mortgage was unimpaired by the fire corstituted do defense; and that company could not be subrogated to mortgagee's interest, -^tna Ins. Co. v. B v'^er, 10 Ins. L. J. 275. 1880. Ind. § 47. Where a mortgagee insures property by au- thority of mortgagor and charges him with expense, any insurance recovered should be accounted for. Otherwise, when it is obtained on mortgagee's own account only. If insurance is collected under a policy in which it is agreed between the insured and insurer that the company, in case of loss, should be subrogated to right of the mortgagee, the insurance is not in fact on the mortgagor's account, nor is it such an insurance as could be made available to him. Stinchfield v. Milliken, 71 Me. 567. 1880. § 48. Policy insured a mortgagee upon his interest but by agreement, which existed for the benefit of the owner and mortgagor, the money received thereunder was to be applied to the reduction of the mortgage debt. In a suit brought upon such policy. Held, that it was no de- fense that the real estate was security for the mortgage debt, or that the building insured had been repaired and rebuilt. JCtna Ins. Co. v. Baker, 71 Ind. 102. 1880. MUTUAL COMPANIES. 183 § 49. If a mortgagor in the mortgage has agreed to effect an insurance upon the mortgaged property for the benefit of the mortgagee, the latter has an equitable lien upon the money due under the policy, in case of loss, to the extent of his interest. And this is so whether the policy is issued to and made payal»le to liim, or it be taken in name of mortgagor and no reference is made in it to the mortgagee, for equity would in such case presume policy was obtained in pursuance of the agreement in the mort- gage, and would so treat it. Duulop v. Avery, 23 Han, 509. 1881. See Alienation, § 12, 60. Assignment, 15, 17. Cancellation, 18, 14, 15. Contribution, 15. 17. Examination, 2. Evidence, 27. Interest in Policy, 1, 9, 18, 26. Mutual Company, 71, 07, 108, 144. Other Insurance, 47, 49. Proofs of Loss, 74, 75, 82. Kenewal, 4. Subrogation, 4. Who May Sue, 1, 6, 8, 11, 15, 17, 18. >Ui MUTUAL COMPANIES. § 1. When mutual company with knowledge of the existence of other insurance makes and collects au assess- ment upon a certain policy, it operates as a waiver of such defense. Lycoming Mutual Ins. Co. v. Stocklomn, 3 Grant Cas. 207. 1856. § 2. Assured in mutual company has right to look to entire capital — that is, whole amount of premium notes taken — for his indemnity, instead of being limited to the capital of that class of risks in which his policy may have been placed. Fitzpatrick v. Troy Ins. Co. 5 Biss. 48. 1857. § 3. When the original notice of assessment is lost and it appears that but one form was used for all such notices, proof that one of that form was sent is competent mode of pioof. Fogle v. Lycoming Mutual Ins. Co. 3 Grant Cas. 77. 1860. , . J$ m I' i 184 MUTUAL COMPANIES. § 4. The fact that a loss has been paid with borrowed money does not prevent subsequent assessment for the same loss. Tobey v. Russell, 9 R. I. 58. 1868. § 5. When receiver is authorized by statute to make an allowance for equitable claims, the mere fact of an as- sessment being excessive does not render it void. Tobey V. Russell, 9 R. I. 58. 1868. § 6. Premium note may be made payable " at such times as the directors may require," and becomes due and payable upon such requirement. Gaytes v. Hibbard, 5 Biss. 99. 1869. § 7. When mutual policy has been absolutely assigned with consent of the company, the original assured capiiot maintain an action in his own name. Fitzgerald v. Gore Mut. Fire Ins. Co. 30 Up. Can. Q. B. 97. 1870. § 8. Assured taking policy of a mutual company, au- thorized to transact business as a stock company, and pay. ing premium in cash, cannot be held to be a member. Illinois Fire Ins. Co. v. Stanton, 57 111. 354. 1870. s. p. When premium is paid part cash and part note. Farmers' Ins. Co. V. Smith, 63 111. 188. 1872. § 9. Insolvency of company is no defense to an action on a note given for a premium. Gary v. Nagel, 2 Biss. 244. 1870. § 10. Semhle^ assignee of a mutual policy does not be- come a member of the company so as to entitle him to give notice of loss and furnish the particular account re- quired by the conditions of the policy. Fitzfijernld v. Gore Mut. Fire Ins. Co. 30 Up. Can. Q. B. 97. 1870. § 11. The non-payment of premium given by the orig- inal insured, who has assigned a policy to a third part} with the consent of the company, cannot be set up as a v^lefense to an action upon the policy brought by the as- signee. Statute voids the policy only in the hands of the person in default. Storms v. Canada Mut. Ins. Co. 22 Up. Can. C. P. 75. 1871. MUTUAL COMPANIES. 185 § 12. A mutual company must aver compliance with certain steps required to be taken by statute in reference to notice of assessment before a plea founded upon non- payment can be made available. Crowley v. Agricultural Mat. Ins. Co. 21 Up. Can. C. P. 567. 1871. § 13. An assessment upon an alleged lost note can- not be sustained without proof of its having existed at some time unpaid and uncanceled. Ke Slater Mut. Fire Ins. Co. 10 R. I. 42. 1871. § 14. An assessment cannot be avoided by the fact thai it was made upon and included parties who were not liable. Re Slater Mut. Fire Ins. Co. 10 R. I. 42. 1871. § 15. "When premium note provides that it is due and payable at such times and by such installments as might be assessed, the statute of limitations does not begin to run against it until an assessment has been made thereon. Re Slater Mut. Fire Ins. Co. 10 R. I. 42. 1871. § 16. Insolvency of company no defense to an action upon premium note. Graff v. Simmons, 58 111. 440. 1871. § 17. A receiver of a mutual company must comply with the staiute in making an assessment on the premium notes. Embree v. Shideler, 36 Ind. 423. 1871. s. p. Manlove V. Burger, 38 Ind. 211. 1871. Manlove v. Nay- lor, Id. 424. 1871. Whitman v. Mason, 40 Ind. 189. 1872. § 18. The Indiana statute (1 G, & H. 396) in regard to personal liability of directors of mutual companies, is penal in its nature and must be strictly construed ; and such liability can only exist when a judgment has been recovered upon a policy, and not upon a note taken in set- tlement of a loss on exchange and surrender of a policy. Raber v. Jones, 40 Ind. 436.' 1872. § 19. A premium note given to a foreign insurance company which has not complied with the laws precedent to its admission to the State, is void. Hoffman v. Banks, 41 Ind. 1. 1872. 'Jii i't'ii ■I 11 186 MUTUAL C0MPAK1E8. ! \ I § 20. A condition that company shall not be liable for a loss occurring when note given for the premium is due and unpaid, is valid and binding. Its force and effect cannot be avoided by showing that note was taken in pay. ment for cash premium, and that further credit was stipu- lated by concluding words of the note, " with interest at ten ppr cent, after due." Watrous v. Miss. Valley Ins. Co. 35 Iowa, 582. 1872. § 21. Assessment with knowledge of forfeiture waives it. McKenzie v. Fire Ins. Co. 9 Heiskell, 261. 1872. § 22. A mutual insurance company which in addi- tion to its usual business issued policies both the pre- mium, and loss, if any, payable in gold, is not bound to pay dividends upon such policies in gold. Luling v. Atlantic Mutual Ins. Co. 51 N. Y. 207. 1872. § 23. The form of a note given to a mutual insurance company is not conclusive ; the question whether it was a premium or stock note may be established by circum- stances attending its making and deliveiy and is a ques- tion of fact for the jury. Jackson v. Van Slyke, 52 N. Y. 645. 1873. § 24. The liability of member of a mutual company upon premium note cannot be extended beyond the orig- inal limit by any amalgamation of the company with another, or by any dealings or contract between them to which he is not a party. Beaver Ins. Co. v. Trimble, 23 Up. Can. C. P. 252. 1873. § 25. Wiien policy states that it is issued in consid- eration of a note made by the assured the acceptance of a note signed by another, waives right of the company to a note signed by the former. When policy of a mutual company provides that a failure to pay premium note shall defeat the insurance, a waiver of such clause to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop the party from insisting on the performance of the contract or forfeiture of the MUTUAL COMPANIES. 187 condition. Muhleman v. National Ins. Co. 6 W. Va. 508. 1873. § 26. In absence of proof of order or requirement by- directors for payment, and that losses and expenses have occurred in recovery can be had on a premium note. Wain^T V. Beem, 36 Iowa, 385. 1873. § 27. Notwithstanding mutual company may wcive condition as to prepayment of premium, such waiver does not extend to a stipulation in the contract providing that company shall not be liable for loss occurring when note 18 unpaid and past due. Ferebee v. N. C. Mutual Home Ins. Co. 68 N. C. 11. 1873. § 28. A premium note may be compromised by agent of a mutual company after filing petition for dissolution and before publication of notice of appointment of re- ceiver. The word "transfers" in the provisions of the Statute 2 R. S. (N. Y.) 469, sec. 71, which declares void all transfers, &c., made after filing of a petition for disso- lution does not apply to such a case. Sands v. Hill, 55 N.Y. 18. 1873. § 29. Neither insolvency of the corporation, nor can- cellation of its policies will deprive the company of the right, or relieve its officers of the duty, to assess, upon those who were members, all losses that occurred while they were members. Commonwealth v. Massachusetts Ins! Co. 112 Mass. 116. 1873. § 30. The liability to assessment at any time, within the limit fixed by the statute, is measured only by the amount of the losses for which the company is then responsible. It is not apportionable according to the ratio ot time of the expired and the unexpired term of the policy. In casH of insufficiency " a just average shall be made to the Bufferers," each one receiving a share of the fund in pro- portion to the amount of his loss. This rule does not permit a setoff between the company and those who liave claims for losses upon which they are entitled to a distributive share of the proceeds of the assessment. '1 n ;1^« i., •jm^t v« l Toronto Fire Ins. Co. 34 Up. Can. Q. B. 78. 1873. f'^, m Ml 141 i Hi '^ ' ^ fe. '^ 'M '*V 1 .€ '^^ ■ -*■ 11 J 1 li 190 MUTUAL COMPANIES. § 42. Assured held an interim receipt which provided that the company " shall have power to cancel tliis con- tract at any time within thirty days from its date, by caus- ing a notice to that eflfect to be mailed to the applicant," at a certain address. Company mailed to the applicant such notice within thirty days, but it was not received in time for delivery at the post office to which it was ad- dressed until after the fire. Held, that the mailing of the notice was not sufficient to cancel the insurance. Tough V. Provincial Ins. Co. 20 L. C. Jurist, 168. 1874. Revg 37 L. C. Jurist, 305. s. p. Goodwin v. Lancashire Fire Ina Co. 18 L. C. Jurist, 1. 1873. § 43. Where a mutual company issue policies for cash premiums, with which losses are paid, these facts must he taken into consideration and allowance made therefor in making assessment upon premium notes. Sands v. Graves, r)8 N. Y. 94. 1874. § 44. The provisions of a statute requiring publica- tion of notice of assessment upon premium notes, are not merely directoiy; compliance therewith must be shown. Sands V. Graves, 58 N. Y. 94. 1874. § 45. A valid assessment upon maker of premium note must be based upon an actual prior examination and determination of amount of losses and expenses, and whole amount of notes liable to assessment, and the omission can- not be supplied by proof upon a trial showing that assess- ment would have been proper. Sands v. Graves, 58 N. Y. 94. 1874. § 46. A note given for premium is not a deposit note under H. S. ch. 49, sec. 2G (Me.). Union Ins. Co. v. Green- leaf, 64 Me. 123. 1874. § 47. The negotiability of a premium note is not takon away by indorsement upon its face " on policy No. 33,38(5 ;" although the policy contains a provision for set-off of not<'8 due company in case of loss. Union Ins. Co. v. Greenleaf, 64 Me. 123. 1874. MUTUAL COMPANIES. 191 § 48. In action brought by receiver upon premium note, declaration must show that court has examined and determined upon the validity of the claims against the company for p: 'ment of which assessment is made. Tlie amount of claims which court will allow, together with any indebtedness previously allowed by the directors, as shown by their books, must be ascertained before an as- sessment can be made to pay such indebtedness. A mem- ber of the company is liable only to assessment for losses occurring while his policy is in force. Downs v. Ham- mond, 47 Ind. 131. 1874. s. p. Embree v. Shideler, 36 Id. 423. 1871. § 49. The application for insurance in mutual com- pany was for insurance "on hay in the stack and in the field," and the policy I'ead " on his hay in stack within fifty feet of stable." Assured claimed to rescind the con- tract of insurance as soon as the error was discovered. On a suit upon the note, Held., that the misdescription was immaterial ; that the application being made a part of the policy, both must be construed together, and that hence the right of rescision did not exist. Edwards v. Farmers' Ins. Co. 74 111. 84. 1874. § 50. To make an assessment binding company must show a state of facts which authorizes the assessment to be made. Planters' Ins. Co. v. Comfort, 50 Miss. G62. 1874. § .51. Sale of property, taking back a mortgage for the whole of the purchase-money, is such an alienation as to render the insurance void, and relieve maker of note from liability to assessment for losses happening after- wards. Miner v. Judson, 5 T. 204 MUTUAL COMPANIES. removed. The fact that great indulgence was extended to delinquent membei-s of the company and that the com- pany was accustomed to receive assessments long after they were due, is entirely inconsistent with the fact that while the default continued the protection of the policy was suspended. A notice informing members that a pen- altj' would be exacted if assessments were not paid by a c'-^ ' I time, furnishes no excuse for non-payment. Wash- i.V' Oii '*^utual Fire Ins. Co. v. Rosenberger, 84 Pa. 373. .- O I I , ^113. Waiver of condition suspending policy during contiu ante ^i default in payment of an assessment, should not be infenvd fiom a mere reminder in a notice that the assessment is unpaid. Leonard v. Lebanon Mut. Ins. Co. 7 Ins. L. J. 79. 1877. Pa. § 114. Action was brought upon a premium note. The company was an Illinois corporation. The note was made by the assured in Indiana and made payable to the company. An agent of the company in same place re- ceived the note and application for insurance which he forwarded to the company in Illinois. The note and ap- plication were received and accepted and policy was re- turned by mail to the assured. The agent was only au- thorized to receive and forward applications, and neither the company nor the agent had complied w itli the statute in regard to foreign companies. Held, no defense. Bow- ser v. Lamb, C Ins. L. J. 375. 1877. U. S. Circuit, Ind. § 115. Policy does not become absolutely void on non-payment of assessment, but is voidable only. Its operation is suspended during continuance of default. Company waives forfeiture by claiming a subsequent as- sessment. Columbia Ins. Co. v. Buckley, G Ins. L. J. 031. 1877. Pa. § IIG. A question of notice to member of mutual company of an assessment should be submitted to the jury. Buckley v. Columbia Ins. Co. 83 Pa. 298. 1877. § 117. Condition of mutual policy provided that if assessment was not paid within 30 days after demand, MUTUAL COMPANIES. 205 that it should be void. One assessment was made May 10th, 1873, and another January 12th, 1874. Due notice was given and demand made. Held^ that the non-pay- ment of the first assessment within 30 days did not of itself avoid the policy so as to prevent a second assess- ment being lawfully made ; that the policy did not be- come absolutely void, but voidable only at option of com- pany; and that forfeiture might be waived. If ompany cancels the policy, the premium note is not liable to as- sessment for future losses, but if it does not elect to de- clare the policy void, the insurance ia suspended only during continuance of default in payment. Columbia Ins. Co. V. Buckley, 83 Pa. 293. 1877. § 118. If assured, after obtaining insurance by a valued policy, in which there is no provision as to contri- bution, finds his property still uninsured to three fourths its actual value, he may insure in any mutual company until this amount is reached. If, after prior policy is paid in full, the amount which such latter company is to pay does not exceed the proportion which its insurance bears to the whole, and if the assured is not to receive in all more than three-fourths of the value (as limited by the statute), there is no ground of defense. Bardwell v. Con- way Ins. Co. 122 Mass. 90. 1877. § 119. When statute gives a mutual company a lien in the nature of a judgment upon the property insured to the amount of his deposit note, if the insurance covers personal property only it is not within the statute. The fact that one-fifth of the whole risk covered by the policy is on personal property does not prevent tlie filing of a lien against the real estate. Such lien may be filed after the expiration of the policy. People's Fire Ins. Co. v. Hartshorne, 84 Pa. 453. 1877. § 120. Counsel employed by policy holders of an in- solvent mutual company to represent their interests, has no claim upon surplus fund in receiver's hands for his compensation. Commonwealth v. Mechanics' Ins. Co. 122 Mass. 421. 1877. i I i ■i-^.'iii"'^ m\:- 20C MUTUAL C03IPANIE8. S § 121. A premium note constituting part of the assets of an insolvent company cannot be surrendered and cancelled in consideration of a promise by the maker to claim nothing of company for its use. Maine Ins. Co V. Pickering, 66 Me. 130. 1877. § 122. Premium note appearing to have been given for value cannot be presumed that it was given in Michi- gan in violation of statute of the State. American Ins Co. V. Cutler, 30 Mich. 261. 1877. § 123. When charter of a mutual company provides that upon default in payment of an installment due upon a premium note, the risk shall be suspended during the continuance of the default, but that it should revive upon the payment of the note, the company may recover the full amount of the note, and upon the payment by the assured, whether voluntary or otherwise, he acquires a paid-up policy for the remainder of the original period of insurance. American Ins. Co. v. Klink, 65 Mo. 78. 1877. § 124. Notice to agent of mutual company through whom tlie insurance was obtained, that the assured does not wish longer to be insured in the company, cannot de- stroy the insurance relation. Assured cannot thus relieve himself from his obligation, nor is notice of his desire to such an agent notice to the company. Buckley v. Colum- l)ia Ins. Co. 83 Pa. 298. 1877. § 12.5. The lien of a judgment entered in a suit brought by mutual company against a member for an as- sessment, extends only to the property insured. Ilaf- penny v. People's Fire* Ins. Co. 85 Pa. 48. 1877. § 126. Sect. 20, L. 1871, p. 225 (Kansas), does not authorize a company to exchange its jiolicy for a mort- gage of the assured for the purpose of an otf-set. Kans. Ins. Co. V. Craft, 18 Kans. 283. 1877. § 127. There can be no liability on the part of u mutual company to the assured for the loss of his j^rop- erty unless he at the same time had payed, or assumed to pay, his proportionate share of the expenses and the losses MUTUAL COMPANIES. 207 sustained by other members. There is no contract of in- surance until the company could sustain an action against him on an assessment. Schaffer v. Mutual Ins. Co. 89 Pa. 296. 1877. § 128. It is requisite that the amount be correctly stated in a notice of assessment. If incorrect the notice is insufficient and non-payment is no defense to an action, upon the policy. Frey v. Mutual Ins. Co. 43 Up. Can. Q. B. 102. 1878. § 129. A mutual company which has given a receipt to the assured, acknowledging " that the plaintiff has given a deposit note and made a cash payment thereon of a certain amount, is estopped to take advantage of a con- dition providing that in case a note for the first payment should remain unpaid 30 days after it was due the policy should be void. Masse v. Hochelaga Mut. Ins. Co. 22 L. C. Jurist, 124. 1878. § 180. Under the statutes of Indiana a premium note of a married woman is void. American Ins. Co. v. Avery, eOlnd. 56G. 1878. § 131. A policy does not become void upon failure of assured to pay an installment of premium note, but is voidable only at option of the company. Assured remains liable upon his note. American Ins. Co. v. Henley, 60 Ind. 51G. 1878. § 132. Assured is not relieved from forfeiture by his not receiving notice of an assessment duly mailed, owing to his absence from the country. Greeley v. Iowa State Ins. Co. 50 Iowa, 80. 1878. § 133. By insolvency of company and a transfer of its assets to a leceiver a stock note can be enforced only to extent of the deficit, and tliat the declaration should show. Lamar Ins. Co. v. Moore, 7 Ins. L. J. 747. 1878. 111. § 134. Cliarter provided that every member who should sustain a loss should immediately notify the presi- dent, who should forthwith call a meeting of the directors: :i *'t vi-lh :i 1 !. ' \%''i IS 'Hi* 'l § 15. When an insurance company sends an agent to adjust a loss, it is estopped to subsequently deny that it had proper notice of loss, and it is, in the absence of fraud, concluded by the adjustment made by such ao^ent Home Ins. Co. v. Myer, 93 111. 271. 1879. § 16. Notice of loss was signed by mother of owner and advised company of fire and number of its policy. No objection was made, nor ciL^r to return it. Held, suffi- cient notice. . It advised defendant of the loss, which was all that was required. O'Brien v. Phoenix Ins. Co. 76 N. Y. 459. 1879. § 17. Policy required notice of loss forthwith, and that proofs should be furnished in fifteen days. Fire oc- curred January 17th. Next day assured notified local agent, who sent a dispatch to the general agent, and oa the 23d assured sent such agent a formal written notice, which was received January 27th. Proofs were prepared January 22d, and received by the agent of the company " early in February," the agent not recollecting the date. Ileldj notice sufficient and evidence sufiicient to sustain a finding that proofs were furnished within the required time. Peppit v. N. B. & M. Ins. Co. 1 Russel & G., N. S. 219. 1879. § 18. Provision requiring immediate notice requires due diligence under all circumstances. Wooddy v. Old Dominion Ins. Co. 31 Grat. 302. 1879. § 19. When contract is completed but the policy Las not been delivered, although assured is required by its terms to give immediate notice of the loss, a delay of eighteen days held, under the circumstances of the case, not to be a violation of the condition. Wooddy v. Old Dominion Ins. Co. 31 Grat. 302. 1879. § 20. Semhle that an assignee of a policy after a fire may give sufficient notice of a loss. Watertown Ins. Co. v. Grover &> Baker Sewing Machine Co. 41 Mich. 131. 1879. OTHER IXSUBANCE. 217 § 21. Notice of los8 may be properly given by a party to whom loss is made payable to local agent who issued tlie policy, same coming to the knowledge of at least the jreneral agent or adjuster of the company. Notice is dis- tinct fron* proofs of loss; the olgect is that the company may know that a loss has in fact occurred, that it may take such action as is advisable to protect its interests. Watertown Ins. Co. v. Grover & Baker Sewing Machine Co. 41 Mich. 131. 1879. § 22. The condition requiring immediate notice of a loss must receive a liberal construction, and the question is one to be determined by the jury. The word " imme- diate" must mean a reasonable time under the circum- stances. Lockwood v. Middlesex Mut. Ins. Co. 47 Conn. 563. 1880. Sec Agent, § 26. Examination, 4. Proofs of Loss, 2, 66, 63. Questions for Court and Jury, 1. Waiver, 19. 'mm OTHER INSURANCE. 1. Notice of other insurance to a broker does not hind the company. McLachlan v. -^tna Ins. Co. 4 Allen, N.B. 173. 1858. § 2. To constitute other insurance, policy must be upon the same interest, and it must be shown that the as- sured was entitled to recover. McLachlan v. -/Etna Ins. Co. 4 Allen, N.B. 173. 1858. § 3, Assured is bound to give notice of a second pol- icy obtained by him, whether valid or not. Campbell v. Mna. Ins. Co. 1 Cochran, N. S. 21. 1859. § 4. Clause requiring notice of other insurance is a condition precedent to a right of action. McBride v. Gore District Mut. Ins. Co. 30 Up. Can. Q. B. 451. 1870. i''^-^i 218 OTHER INSURANCE. N« § 5. Verbal notice to agent who issued the policy of the obtaining of subsequent insurance is insufficient to make the company liable, consent not being indorsed on the policy as required. Hendrickson v. Queen Ins. Co. 31 Up. Can." Q. B. 547. 1871. § 6. Other insurance to render policy void must be effected by the assured, or for his benefit, or with his knowledge and consent. Kelly v. Liv., Lond. & Globe Ins. Co. 2 Hannay, 266. 1871. § 7. The existence of other insurance does not make a policy absolutely void, but voidable only at option of the company. Hubbard v. Hartford Fire Ins. Co. 33 Iowa, 325. 1871. § 8. A secoud policy must be valid to be " other in- surance " making former void. Hubbard v. Hartford Fire Ins. Co. 33 Iowa, 325. 1871. § 9. The clause " other insurance permitted without notice," applies to prior as well as to subsequent insur- ance. Frederick Co. Mut. Ins. Co. v. Deford, 38 Md. 404. 1873. § 10. Policy contained provision that it should be void if the insured should have or should procure any other insurance without consent. Both parties were aware of the existence of a prior policy at the time of the issue of the former, and it was a part of their understand- ing that it should be canceled. It was canceled in fact, but not as was claimed by defendant until the day after the delivery of its policy. Held, that the first policy did not constitute other insurance ; that its cancelment was one of several steps which were to be taken to complete the second insurance, and whether taken a few minutes or a few hours before or after any other steps necessary to being a completed contract was immaterial if all were taken sub- stantially at the same time and before the transaction was considered closed. Continental Ins. Co. v. Horton, 28 Mich. 173. 1873. OTHER INSURANCE. 219 § 11. If company, without objection, accepts notice of other insurance eight months after their policy is issued, and the other policy is obtained, it is a waiver of a condi- tion requiring immediate notice. Farmers' Ins. Co. v. Tay- lor, 73 Pa. 342. 1873. § 12. Company is estopped from setting up want of written consent to other insurance which was obtained by assured upon its request, its own policy being reduced, ana assured having delivered the policy to defendants' agent for purpose of having consent indorsed, which was not done through his neglect. Cobb v. Ins. Co. of N. A. 11 Kans. 93. 1873. § 13. If company is advised by its agent of the exist- ence or obtaining of additional insurance, if it does not de- sire to give the necessary consent and remains silent, it is estopped from insisting upon such fact as a defense. Ins. Co. v. Lyons, 38 Tex. 253. 1873. § 14. Other insurance must be by the same person or cover the same interest to constitute a forfeiture. Gil- christ V. Gore Mutual Ins. Co. 34 Up. Can. Q. B. 15. 1873. § 15. Policy was originally issued $5,000 on stock of bides and leather May 2d, 1871. It was so written by mistake of the company's clerk. Error was not discov- ered until June 3d, when, upon application of assured, company made the following indorsement, " 1871, June 3d, after this date this policy covers $2,500 on stock and $2,500 on building." Held, that testimony of the mistake was admissible, and that the indorsement did not create a new contract of insurance, making it " other insurance" within meaning of provision of another policy containing a provision against subsequent insurance. Planters' 'Mut. Ins. Co. v. Deford, 38 Md. 382. 1873. § 16. Assignee's ignorance of other insurance by as- sured cannot deprive company of benefit of condition in regard to other insurance. Dickson v. Provincial Ins. Co. 24 Up. Can. C. P. 157. 1874. ™ ■ 'km 1 ( "v I I! I .;- i Hi .1 220 OTHER INSURANCE. § 17. Assured held a policy containing a condition that if assured should have any other insurance (whether valid or not) without consent, it should be void. With, out surrendering or canceling this policy he ^^I'ocured another from a second company, which also contained a similar condition against other insurance. Held, that the first policy remained in force, as the second never had any validity, and the plaintiff could not therefore recover. "Whether the words " valid or not " in the first policy are not void for repugnancy, query f Gee v. Ins. Co. 55 N. H. 65. 1874. 8. p. Allison v. Phoenix Ins. Co. 3 Dill. 480. 1873. Sutherland v. Old Dominion Ins. Co. 31 Grat. 176. 1878. Contra, Kennedy v. Ins. Co. 6 Ins. L. J. 359. 1877. Tenn. § 1 8. Upon an issue as to the existence of other in- surance and invalidity of policy on account of it, a let- ter containing notice of the existence" of such other insur- ance at the time of the delivery of the policy cannot be read in evidence upon proof of its delivery to a person in the ofiice of defendant's agent, but who is not called as a witness or shown in any manner to be connected with such agent or the company, both the company and its agent swearing that they never received such letter. Sun Ins. Co. v. Earle, 29 Mich. 406. 1874. § 19. Condition against obtaining subsequent insur- ance is valid and will be enforced. Phoenix Ins. Co. v. Midi. Southern R. R. Co. 28 Ohio, 69. 1875. § 20. A marine policy cannot be claimed to be other insurance when assured could not recover the loss upon it. Australian Agricultural Company v. Sanders, L. R 10 C. P. 668. 1875.' § 21. When policy contains condition against other insurance it is not avoided by an allec^ed contract for other insurance shown to be invalid. Knight v. Eureka Fire Ins. Co. 26 Ohio, 664. 1875. § 22. Policy issued to one of tenants in common, without stating joint ownership, is other insurance with- OTHER INSURANCE. 221 in meaning of clause relating thereto in another policy, coverino' joint interest. Pitney v. Glen's Falls Ins. Co. 65 N.Y.e." 1875. 8 23. Other insurance to avoid policy must be upon same interest. Roos v. Merchants' Mut. Ins. Co. 27 La. Ann. 409. 1875. § 24. At time of fire there were two policies covering the same property, obtained at different times, both con- taining condition against ol'ier insurance without assent of the company, and neither containing such consent. Held^ in a suit upon the fii'st policy, that the second being in- valid by reason of existence of first not consented to, by legal intendment there was no second insurance and, there- fore, no avoidance of the first policy. Nor is the fact that assured receives payment from the second company im- portant or material in this connection ; assured is not thereby estopped from asserting that there was no valid insurance. Thomas v. Builders' Mut. Ins. Co. 119 Mass. 121. 1875. § 25. Existence of other insurance may be proved by parol evidence. Knickerbocker Ina Co. v. Gould, 80 111.388. 1875. •• § 26. Statute provided that it should be void in case of other insurance ; that upon giving written notice to the company of the obtaining of other insurance that it should l)e deemed as assented to unless the company should, within two weeks after the receipt of such no- tice, notify the party in writing of its dissent. On the 5th instant notice was given of other insurance. The fire broke out at 10 p. m. on the evening of the 19th. Hdd^ that the company had fourteen days ending on and including the 19th day to dissent, and that the loss hav- ing occurred within the time limited for the exercise of the option of the company, {)laintiff could not recover. McCrea v. Waterloo Mut. Ins. Co. 26 Up. Can. C. P. 431. 1876. § 27. Statute provided that whenever any notice of the existence of other insurance was received by the com- '■mm : ^:i.UI> •if.' V>'|'; ■!;; .LJii !r:*i.'''i »ii.^l 222 OTHBB IXSUBANOE. |: I pany, that it should be deemed assented to unless within two weeks after its receipt company should in writing notify the assured of its dissent. Held, that notwith- standing the two weeks may not expire until after a loss notice must be given before it. Fair v. Niagara District Mut. Ins. Co. 26 Up. Can. C. P. 398. 1876. r^ § 28. To establish defense of other insurance it must be established that the policy covers the same property. Hazard v. Canada Agricultural Ins. Co. 39 Up. Can. Q.B 419. 1876. § 29. If other policy covers a part only of the same property insured, it is other insurance. Billington v. Canadian Mutual Fire Ins. Co. 39 Up. Can. Q. B. 433. 1876. § 30. When policy gives permission for $3,000 otiier insurance it must be assumed that consent is not required to be any more definite. In this respect policy furnishes its own rule of construction. Westchester Fire Ins. Co. v. Earl, 33 Mich. 143. 1876. § 31. Under the statute (Me.), R. S. ch. 49, sec. 19, the existence of other insurance, to be effectual as a de- fense, must be shown to have materially increased the risk. Lindley v. Union Ins. Co. 65 Me. 368. 1876. § 32. When statute requires receipt of notice of other insurance, assured must not only prove that he sent such notice but that it was actually received. Lyons v. Manu- facturers' Ins. Co. 28 Up. Can. C. P. 13. 1877. § 33. A policy which has been surrendered to a local agent, with mutual intent that it be surrendered and can- celed, and at the same time he is directed to obtain a pol- icy from another company in place of it, which he does, in a suit upon the latter the former cannot be considered as other insurance. Train v. Holland Purchase Ins. Co. 68 N. Y. 208. 1879. § 34. When company, by mistake or intent, indorses permission for $6,250 other insurance instead of $8,000, it OTHER IKSUSANCE. 223 is estopped to insist upon the defense of invalidity of its policy on account of the existence qf the excess of the in- surance over the amount so written. Greene v. Equitable Fire Ins. Co. 11 K. 1.434. 1877. § 35. Policy required written consent to be indorsed thereon in case of other insurance, otherwise to be void. In reply to a letter sent by assured to agent of the com- pany who issued the policy, the latter said : " We will, of course, allow other concurrent insurance with the Alle- mania policy, and will also place you more insurance at same rate that we charged you before, and do it in A 1 company or companies. Trusting to hear from you at your earliest convenience, we remain, «fec." Held^ that the correspondence between the parties could not take the place of the consent required by the terms of the policy, which became absolutely void upon obtaining additional insurance without consent. Allemania Fire Ins. Co. v. Kurd, 37 Mich. 11. 1877. 8 36. The motive or the intention of the party in ob- taining additional insurance is immaterial when such fact is relied upon as a defense to defeat an action upon an- other policy. Pennsylvania Fire Ins. Co. v. Kittle, 39 Mich. 51. 1878. § 37. The materiality of a representation in regard to the existence of other insurance is proper to be submitted to the jury. Parsons v. Citizens' Ins. Co. 43 Up. Can. Q. B. 261. 1878. 8 38. Other insurance, to render policy void, must be legal insurance, and the true issue in such a case is whether the policy, not on its face but on all the facts legally in evidence, is binding upon the insurer. Dahlberg v. St. Louis Mut. Ins. Co. 6 Mo. App. 121. 1878. § 39. There is no breach of condition against subse- quent insurance by the existence of a second policy which is void by reason of conditions contained therein ; such condition contemplates subsequent valid insurance, and is not broken by an attempt to obtain further insurance ;i-r- ;p is 224 OTHER INSURANCE. which is void by its terms. Ins. Co. v. Holt, 35 Ohio, 189 1878. § 40. Compromise, settlement and payment, on a sub- sequent void policy, is not a matter of defense to an actioa on a prior policy. Ins. Co. v. Holt, 35 Ohio, 189. 1878. § 41. A condition aojainst subsequent insurance ig not applicable to an invalid contract tor other and addi- tional insurance, and a policy is not voided by an abortive attempt to make other insurance which was never com- pleted or effected. If the second cannot be enforced, it is no breach of the condition. Sutherland v. Old Doniiuiou Ins. Co. 31 Grat. 176. 1878. § 49. Adjuster, after investigation of a loss, made an offer of compromise $375, and at same time objected to the existence of other insurance. Offer being declined he went away, and soon after wrote to the assured that he might go on and make out his proofs and the matter would then be taken into consideration. Subsequent cor- respondence took place respecting the proofs, the adjuster demanding more particularity in what was furnished, and it was not until six months after the offer of settlement was made that he informed the assured, who meantime had been endeavoring to make the proofs satisftictory, that in addition to the objections heretofore made the d fond- ant would insist upon forfeiture because of the • id in- surance. Held^ tiiat evidence justified a fi by the jury of a waiver of the defense founded upon ; existence of other insurance. Pennsylvania Fire Ins. Ca, v. Kittle, 39 Mich. 51. 1878. § 4.S. Policy containing usual condition against other insurance and alienation was assigned to M., with consent of the company. M., after a loss, assigned to plaintill'. Afterwards the assured encumbered the propei'ty by moit- gage, obtained other insurance, and then sold the property subject to the mortgage. Held,, that policy was voided; that plaintiff" could not recover. Kanady v. Goi'e District Mut. Fire Ins. Co. 44 Up. Can. Q. B. 201. 1879. OTHBB INSURANCE. 225 8 44. The validity of a policy claimed to be other in- surance cannot be tried in a suit against another company, specially when the former company has admitted its lia- bility and paid the loss. Gauthier v. Waterloo Ins. Co. 44 Up. Can. Q. B. 490. 1879. § 45. When assured holds a certificate of insurance subject to all the terms and conditions of a policy as usu- ally issued, assured is bound by such terms and conditions, and if the policy contains a clause against other insurance, the fact that agent knew that there was other insurance, without knowing its amount, will not estop company from insisting upon the fact as a defense, and policy will not be reformed on assured's application by making the proper indorsement of consent. Billington v. Provincial Ins. Co. 3 Can. Sup. 182; 1879. § 46. Assured, being an illiterate man, was told and induced to believe by an insurance agent that his policy with defendant had expired, and upon such representation received from suoh agent an interim receipt for thirty days for other insurance by such agent in another company. Fire happened within thirty days. The agent then ascer- taining that defendant's policy had not expired, withdrew plaintiff's application for the second insurance and received interim receipt from him. Held^ that condition in defend- ant's policy in relation to other insurance was nevertheless broken, and that plaintiff could not recover. Gauthier v. Waterloo Ins. Co. 44 Up. Can. Q. B. 490. 1879. § 47. Subsequent insurance, effected by a mortgagee in another company in the assured's name, is not other in- surnnce when it is effected without any authority from the assured and without his knowledge, subsequent adoption or ratification. Sauvey v. Isolated Ins. Co. 44 Up. Can. Q. B. 523. 1879. § 48. A policy of company which has not complied with statute governing its admission to the State and au- thority to transact business, is " other insurance," and can- not be claimed to be void. Behler v. German Mut. Ins. Co. 68 lud. 347. 1879. Vol. II.— 15 fsl|| lit i'H'i V 0mH H ' \: 226 OTHER INSURANCE. § 49. Policy was issued by defendant to one Merrill, loss payable to plaintiff as mortgagee, and contained usual clause against other insurance. It expired March 6, 1877, and was renewed. On March £, 1877, plaintiff procured of another company a policy insuring the same property in name of Merrill, loss payable to him as mortgagee. Merrill had no knowledge of this second policy until after the fire. The mortgage contained clause authorizing plaintiff to procure insurance in case of owner's default to iceep property insured. The proofs of loss were executed by Merrill at plaintiff's request for the second company. Held, that plaintiff was not Merrill's agent in procuring the second policy; that the clause in mortgage was not operative until some default was shown on Merrill's part, which could only be after notice or demand ; that there was no ratification by Merrill in the execution of the proofs ; that the second policy was not other insurance within meaning of policy procured by Merrill. Titus v. Glen's Falls Ins. Co. 81 j^. Y. 410. 1880. § 50. Agent of company and the assured acting under a mutual misapprehension as to existence of prior insur- ance, both in good faith assuming tha<- property was not insured, and agent wrote a policy whica remained in his office until after the fire, when it was marked "canceled." In a suit upon prior policy, Held, that the second policy was not other insurance. Wilson v. Queen Ins. Co. 10 Ins. L. J. 302. 1880. U. S. Circuit, Pa. § 51. When company sends its policy to its soliciting agent for purpose of delivery to the assured, and it is de- livered with the knowledge of such agent of the existence of other insurance, condition in policy in regard to other insurance is waived or the company is estopped from in- sisting upon it as a defense. Brandup v. St. Paul Ins. Co. 10 Ins. L J. 228. 1880. Minn. § 52. Two policies were obtained at different times and both contained condition against other insurance. In an action brought upon the one first obtained, it was claimed that the second w^ s absolutely void, and left the first in full force. Held, that vremium8. cent, and you charged me two and a half last year ; I don't want it in those local companies ; I would rather have it in the same company and have it renewed ; won't you do it at two per cent. ? ' Answer, ' I will.' I said again, ' I am going to leave for Palmyra, and be gone for a week or ten days ; is there anything dse you want me to do ? ' * No ; nothing else ; I have the description in the office, and will attend to it.' I said, ' Renew the old insurance policy for the same as it was before, and in the same company, and the same amount,' and he said, ' All right.' I went away that day and returned again in about ten days from the day before the fire." Held, not suffi- cient to constitute a parol contract of insurance. Taylor V. Phcenix Ins. Co. 47 Wis. 365. 1879. § 36. When contract for insurance is complete and a loss occurs before issue and delivery of the policy, assured may sustain a suit in equity to compel issue and delivery of the policy. Wooddy v. Old Dominion Ins. Co. 31 Grat. 362. 1879. § 37. A parol contract of insurance cannot be deemed to have merged into the policy where the latter is claimed not to conform to it, especially when assured has no knowl- edge of the terras of policy until after the loss. Humphry v. Hartford Fire Ins. Co. 15 Blatch. 504. 1879. § 38. There is no rule of law which, in cases outside of the statute of frauds, prevents policy from being changed by parol, or which requires insurance contracts to be in writing. Roger Williams' Ins. Co. v. Carrington, 9 Ins. L. J. 577. 1880. Mich. § 39. Charter of company providing that all policies issued should be in writing does not prevent a sufficient and valid oral contract of insurance. Baile v. St. Joseph Fire Ins. Co. 12 Rep. 366. 1881. Mo. § 40. When company institutes an action to have its policy declared void on the ground that it was issued after the loss upon an alleged parol agreement which the assured and agent knew to be insufficient, the assured 11 'J w I i| I, 1! *l 1 W '' k ill :t' .^s- f fi (' !,y RPl: 238 PAROL CONTRACT. m !, ■ may set up in his answer his claim under the policy, and recover the amount of his loss. Revere Fire Ins. Co. v. Chamberlin, 10 Ins. L. J. 397. 1881. Iowa. § 41. When company has failed to issue a policy, there being a sufficient parol contract of insurance, it can- not avail itself of condition in policy requiring written consent to other insurance indorsed upon it. In such a case mere notice of other insurance is sufficient. And semble, even if policy is issued notice to agent and his verbal consent to other insurance 'estops company from setting up defense on ground of want of written consent. Baile v. St. Joseph F. and M. Ins. Co. 1 Ins. L J. 657. 1881. Mo. § 42. In a suit brought upon a parol contract of in- surance, to avoid circuity of action, equity will not only decree the issue of a policy, but award judgment for the amount due under it. Baile v. St. Joseph F. and M. Ins. Co. 10 Ins. L. J. 657. 1881. Mo. § 43. The requisites of a verbal contract of insurance are that the minds of the parties must have met upon all the essentials of the contract. These essentials are the parties, the subject-matter of insurance, the amount, the limits of the risk including its duration in point of time and extent in point of hazards assumed, the rate of pre- mium, and generally all the circumstances which are peculiar to the contract and distinguish it from every other, so that nothing remains to be done but to fill up the policy and deliver it on the one hand and pay the pre- mium on the other. People's Ins. Co. v. Paddon, 8 Brad- well, 447. 1881. § 44. When minds of the parties have met upon all the essential elements of the insurance, there ia a sufficient parol contract binding the company in case of loss with- out delivery of policy, and such a contract is not void by the statute of frauds, although assured expected five years' policy. Van Loan v. Farmers' Mut. Ins. Co. 24 Hun, 132. 1881. See Agent, § 23, 24, 5S, Cancellation, 21. ConBummation of Contract, 13. Other Insurance, 43. Proofs of Loss, 16, 67, 86. Renewal, 2. Risk, 22. PAYMENT OF LOSS. 8 1. The limit of sixty days prescribed for loss be- coming due runs from the time of furnishing proof origin- ally, and not from time of a subsequent examination of assured had at the instance of the company. Huchberger V. Home Ins. Co. 5 Biss. 106. 1870. § 2. Payment of a partial loss operates to reduce the amount of insurance. Lattomus v. Farmers' Mut. Ins. Co. 3 Houston (Del), 404. 1873. § 3. The delay of sixty days to which a company is entitled after notice and proofs, is a substantial right secured by contract, not merely to enable it to prepare to pay, but also to investigate the circumstances under which loss occurred, with a view of determining whether or not the loss is of such a character as involves an obligation to pay at all. A general averment that plaintiff nas com- plied with all the conditions on his part to be performed, does not show that the time has passed, and that loss is due and payable. Doyle v. Phoenix Ins. Co. 44 Cal. 264. 1872. See Construction, § 5. Examination, 1. Proofs of Loss, 60, 78. « ,: ': l--' 4: .! -.''/ ^:i::-:M-H::i ai " 'iW'^^m tii-'{lL':iJi ,fj PLACE OF MAKING CONTRACT. § 1. Where application is forwarded from one State to agent of company in anor,her State, and policy is issued by such agent, the contract must be governed by the law of the latter State. Lamb v. Bowser, 7 Biss. 315. 1876. § 2. When policy is signed by the officers of a com- pany in Missouri, but the condition is attached that it shall have no validity until countersigned by an agent in New York, where the policy is fully executed and deliv- ered. Held, that the law of the latter State governs the rights of the parties under the contract. Todd v. State Ins. Co. 11 Phil. Eep. 355. 1876. § 3. When an application for insurance is accepted and the policy mailed in a certain State the contract must be adjudged to have been made in that State, and the contract is completed when the offer of the insured is accepted and the policy deposited in the post-office by the company, properly addressed to the insured. Northamp- ton Mutual Ins. Co. v. Tuttle, 1 i Vroom, L. R. 476. 1878. Sec Foreign Company, § 18, 2S, 39, 34. Mutual Company, 104, 114. ( I PLEADING AND PRACTICE. § 1. A pleading that does not aver every fact to show a foif'eiture, is bad on demurrer. Illinois Ins. Co. v. Stanton, 57 111. 354. 1870. § 2. A juror who admits a prejudice against all in- surance companies is not competent to serve in that capac- ity in a suit where an insurance company is a party. Winnesheik Ins. Co. v. Schueller, 60 111. 465. 1871. § 3. Performance of conditions precedent to loss being due and payable, must be alleged in complaint or declara- tion. Rockford Ins. Co. v. Nelson, 65 111. *15. 1872. Home Ins. Co. v. Duke, 43 Ind. 418. 1873. Home Ins. Co. V. Lindsey, 26 Ohio, 348. 1875. Edgerly v. Farmers' Ins. Co. 43 Iowa, 587. 1876. Dolbier v. Agricultural Ins. Co. 67 Me. 180. 1877. Carberry v. German Ins. Co. 51 Wis. 605. 1881. Perry v. Phoenix Ins. Co. 12 Rep. 584. 1881. U. S. Circuit, R. I. § 4. The defense of existence of warranty and a breach must be set up in the answer to be available. Weed V. Schenectady Ins. Co. 7 Lans. 452. 1872. § 5. A specific averment of an insurable interest is not necessary in the declaration under the Ohio Code. People's Fire Ins. Co. v. Heart, 24 Ohio, 331. 1873. § 0. It is not sufficient to allege generally a refusal to submit to an examination ; the answer should show when and by whom the request was made, that it was made within the sixty days, and time and place. Aurora Fire Ins. Co. V. Johnson, 46 Ind. 315. 1874. § 7. The dissolution of a corporation terminates an action pending against it, unless continued by order of the court, under L. 1832, ch. 295. McCulloch v Norwood, 58 N. Y. 562. 1874. Vol. II.-IO ^ :\-f:' Mm 242 PLEADING AND rBACTICE. ? J, § 8. Au answer setting up a fraudulent statement of claim, should aver to whom it was made. Aurora Fire Ins. Co. V. Johnson, 46 Ind. 315. 1874. s^ 0. A general averment " that plaintiff duly f"^'"' all the conditions on his part to be performed ,ulli. cient averment under practice act of compliance witli all conditions precedent. Ferrer v. Home Mut. In.s. Co. 47 Cal. 41(5. 1874. § 10. Where a condition becomes operative only in event of re(piest in writing, the answer must aver such re- quest. Aurora Fire Ins. Co. v. Johnson, 46 Ind. 31^ 1874. § 11. An answer setting up defense under condition in policy requiring assured to use his best endeavors to save property and prevent loss, «fec., must also aver that it was in his power either to prevent the fire or loss of property. Aurora Fire Ins. Co, v. Johnson, 46 Ind. 315. 1874. § 12. Waiver must be pleaded to be rendered avail- able to assured, Martin v. Mutual Fii'e Ins. Co. 3 Pugs- ley, N. B. 157. 1875. § 13. Service of summons without the State by i\iail is authorized by 66 Ohio L. 327, only in suits on policio outstanding in the hands of a resident of that State, Heart v. Lycoming Fire Ins. Co. 26 Ohio, 594. 1875. ' § 14. When there are exceptions in the policy which qualify the company's liability or render it irresponsible in certain instances, so that in law it is not absolutely bound, the declaration must aver such exceptions, al- though it is not necessary to negative them. Simmons v. Ins. Co. 8 W. Va. 474. "1875. 5$ 15. When policy refers to an application which in legfll effect may be a warranty, it is not necessary to set out in the declaration the warranties contained in the application in whole or in part. Simmons v. Ins. Co. 8 1875. application W. Va. 474. PLEADING AND PKACTICE. 243 ^ 16. An allegation of a performance of a condition allows proof of waiver. West Rockingham Fire Ins. Co. V. Sheets, 26 Grat. 854. 1875. § 17. Averments wliicli show that the parties were mistaken as to the effect of the language used in policy, are sufficient to authorize reformation of the contract, vvithout a specific allegation of a mistake of fact. Maher V. Hibernia Ins. Co. 07 N. Y. 283. 1876. Affi'g 6 Hun, 353. § 18. When complaint expressly avers an insurable ihtetest to have existed at time of effecting the insurance the legal presumption is that such interest continued until time of the loss. So held on demurrer, complaint not al- leging interest at time of fire. Roussel v. St. Nicholas Ins. Co. 9 Jones & Sp. 280. 1876. g 19. Declaration must contain an averment that property destroyed was in the place described in the pol- icy, otherwise it is bad on demurrer. Todd v. Germauia Fire Ins. Co. 1 Mo. App. 472. 1870. § 20. Issue being upon agent's knowledge of encum- brances, assured testified that the agent did know of the mortgages. The agent denied such knowledge, and defend ant proved and read a letter written by the assured to the home office after the loss, in which he stated " I know nothing about whether he (the agent) knew of the mort- gage or not," and the assured attempted no explanation. Jury found in favor of plaintifl^. Ileld, that verdict was contrary to the evidence, and judgment entered upon the verdict reversed. Huntley v. Home Ins. Co. 7 Ins. L. J. 134. 1876. Iowa. § 21. Evidence of waiver is properly received under a general allegation of performance of conditions. Gans v. St. Paul Fire Ins. Co. 43 Wis. 108. 1877. § 22. It is necessary to allege an interest in the prop- erty insured. Quarrier v. PoaboJy Ins. Co. 10 W. Va. 507. 1877. . U 1'^ 'Mi: •i 'i 244 PLEALING AND PRACTICE. § 23. A defense of willful burning must be specially averred to be available. Evidence establishing such a de- fense is not admissible under the general issue. Resideuce Fire Ins. Co. v. Hannawold, 37 Mich. 103. 1877. § 24. A company cannot be sued in covenant upon an indorsement made upon the policy. Shertzer v. Mu- tual Fire Ins. Co. 46 Md. 506. 1877. § 25. Semhle that when the truth of representations in an application are made condition precedent to a right of action on the policy, such an application and its cor- rectness should be pleaded. Ins. Co. v. McGookey, 33 Ohio, 555. 1878. § 26. A declaration upon a contract of insurance will not sustain a recovery upon ground of negligence of com pany's agent in forwarding an application for insurance. Walker v. Farmers' Ins. Co. 51 Iowa, 679. 1879. § 27. The defenses of other insurance, existence of a mortgage, encumbrance, and a change of the occupancy of the premises, having a tendency to increase the risk, are all available to defendant and may be proved and estab- lished under the genei-al issue. The rule is that under the general issue any matter which shows that the plaintiff never had a cause of action may be given in evidence, and also most matters in discharge of the action which show that, at the time of the commencement of the suit, the plaintiff had no subsisting cause of action. Western As- surance Co. V. Mason, 5 Bradwell, 141. 1879. § 28. Under Illinois practice a default on part of company admits every material allegation of the declara- tion, and leav(!8 nothini; but the assessment of daniacres to be determined. Pha'nix Ins. Co. v. Perkey, 92 111. 164. 1879. § 29. A waiver, whether relied upon to prevent a forfeiture of policy on ground of concealment or breach of warranty, must be specially pleaded, and it must amount either to an agreement or an estoj)pel. In the latter case PLEADING AND PRACTICE. 245 the particulars, representations or conduct that have been relied or acted upon should be stated with reasonable certainty. Texas Banking Co. v. Hutchins, 53 Texas, 61. 1880. § 30. Waiver must be pleaded, and must amount to an agreement or estoppel. Galveston Ins. Co. v. Heiden- heimer, 9 Ins. L. J. 592. 1880. Texas. § 31. It is not necessary for assured to aver and prove application made a warranty ; he must show affirm- atively performance of conditions precedent. It is for the defendant to aver and prove breach of warranties and conditions subsequent. Redman v. ^tna Ins. Co. 49 Wis. 431. 1880. § 32. When a renewal of policy originally issued in the name of two parties is made out in the name of one of them only and suit is brought by him alone, there i^s no variance. Lockwood v. ISliddlesex Mut. Ins. Co. 47 Conn. 553. 1880. § 33. When terms of policy are set out in the declar- ation, there must be a specific averment of performance of all conditions precedent. Perry v. Phoenix Ins. Co. 8 Fed. Rep. 643. 1881. U. S. Cir., R I. See Adjustment, § 9. Alteration, 2. Certificate, 16. Evidence, 45, 59. Foreign Company, 6, 33, 80, 43, Mortgagor at\d Mortgagee, 18. Mutual Company, 13, 36, 60, 69, 63, 133. Payment of Loss, 3. Proofs of Loss, 35, 85. Valued Policy, 2. Waiver, 57. Warranty and Representation, 73. m , '. I PREMIUM. § 1. Receipt of premium by company with knowl- edge f f facts constituting breach of condition in the pol- icy operates as a waiver. Mershon v. National Ins. Co. U Iowa, 87. 1871. § 2. An acknowledgment of the receipt of a premium in a policy of insurance operates as an estoppel prevent- ing the company from setting up as a defense non-payment of the premium. Basch v. Humboldt Ins. Co. 6 Vroom, N. J. L. R. 429. 1872. § 3. A condition making payment of the premium essential to validity of policy may be waived by the com- pany or its authorized agent, and such waiver may be shown by direct proof that credit was given or can be in- ferred from circumstances. Bodine v. Exchange Fire Ins. Co. .51 N.Y.I 17. 1872. § 4. When policy is delivered to a broker to bo handed over to the assured if the premium note is paid, and the broker keeps the policy at the request of the assured, and while in his possession property is desti'oyed, premiuui not having been paid and condition in policy requiring its prepayment, Jleld, that company would not be bound by any credit or arrangement made by the brokei* with the assured. Marland v. Royal Ins. Co. 71 Pa. .'{93. 1872. § 5. If a policy be executed and delivered containing an acknowledgment of receipt of premium, company will not be permitted to allege a want of consideration for their promise when sued thereon after u loss. Consol. Real Est. Co. v. Cashow, 41 Md. 59. 1874. § G. Company was accustomed to charging premiums to an agent authorized to receive and submit applications and to receive and deliver policies for such as were ac- cepted. Credit for the premiums was given by .such agent. Ileld^ that by this usage premium was paid. ■m PREMIUM. 247 Train v. Holland Purchase Ins. Co. 62 N, Y. r/JS. 1875. Rev'g 1 Hun, 527. 8 7, Policy provided that (1) premium was due and payable on delivery of policy ; (2) that when credit was given to the extent of four months, policy should be in force during that time ; (3) but unless premium was paid within the four months, company should not be liable for a loss occurring thereafter. It was delivered without ex- acting payment, and no time of credit was specified. The premmm upon a previous policy obtained under similar circumstances had been paid and accepted after the expi- ration of the four months. A loss occurred after expira- tion of four months, and premium had not been paid. Beld, evidence sufficient to sustain a finding of waiver of condition in regard to payment of premium. Bowman v. Agricultural Ins. Co. 59 N. Y. 521. 1875. § 8. If agents of company acting for themselves ad- vance the money for the premium to the company and afterwards take the assured's note for the amount thereof as their own and negotiate the same, this is a sufficient compliance with a condition of the policy requiring pre- mium to be actually paid before company should become liable. Home Ins. Co. v. Curtis, 32 Mich. 402. 1875. § 9. The delivery to an insurance broker of a policy and charging him with the premium in a general account in usual course of business by the agent of the company with its knowledge, is the equivalent of payment. Bang V. Farmville Ins. Co. 1 Hughes, 290. 1870. § 10. Whenever it can be inferred from all the eir- cumsstances ami previous dealings between the parties, that credit was given for the premium, it is error to hold as matter of law tliat there was no waiver of prepayiueut of the i)ren)iun» according to condition of the policy, and to witiihold that question from the jury. Church v. La- faj^ette Fire Ins. Co. CO N. Y. 222. 1876. s. p. 8ociete Bienfaisance v. Morris, 24 La. Ann. 347. 1872. Baldwin V. Chouteau Ins. Co. 50 Mo. 151. 1874. Latoix v. Ger- raania Ins. Co. 27 La. Ann. 113. 1875. ip" iMit ;;■ i:B'! 248 PREMIUM. I^i mi m m I 't; i § 11. Policy was delivered by defendant's agent with- out payment of the premium, and no time was fixed when it should be paid. Payment was demanded several times and on last occasion plaintiff said he would pay it in a few days. Policy was not canceled, nor was plaintiff notified that it would be void or canceled unless payraent was made. Held, evidence of waiver of condition requir- ing prepayment. Washoe Manufacturing Co. v. Hibernia Fire Ins. Co. 66 N. Y. 613. 1876. Affi'g 7 Hun, 74. § 12. If a company chooses to issue its policy and to look to its agent for the premium, it must be considered as paid so far as the liability of the company is involved. Planters' Ins. Co. v. Ray, 52 Miss. 325. 1S7G. § 13. When a clerk leaves office of a eomp.iny with a receipt which he is on certain terms empowered to give up to a person desiring to renew an insurance, and where the company has money of such person under its control, and where the premium is offered to the clerk and by him refused, and the receipt is left and no demand is made for its return, and the person holding it relies upon it as an insurance, company is estopped from denying its liability, even although private instructions may have been given to the clerk which he did not disclose, not to leave the re- ceipt unless he was paid in cash. Staunton v. Western Ins. Co. 21 Grant Ch. 578 ; and see 23 Id. 81. 1876. § 14. Assured is only entitled to a return of the pre- mium when the risk never attached. Ilawke v. Niagara District Ins. Co. 23 Grant Ch. 139. 1876. § 15. It was the custom of company to deliver poli- cies to broker without requiring cash payment of premium, charging the same to his individual account, and rendering to him monthly bills, deducting an agreed commission for obtaining risks. In his monthly settlements the broker {)aid the premiums charged to him, whether he had col- ected them or not, and m this particular case he offered to pay the premium at his first settlement after the issue of the policy, and after the fire. Held, evidence justified finding that company had accepted the individual credit ill ill PREMIUM. 249 74. with a of the broker as a payment of the required premium. White V. Connecticut Ins. Co. 120 Mass. 330. 1876. § 16. Delivery of policy to the assured waives condi- tion requiring prepayment of premium. Mason v. Citi- zens' Fire Ins. Co. 10 W. Va. .572. 1877. J} 17. A negotiable promissory note of broker accepted by the company on account of the premium, is prima facie payment of it, and discharges the assured. Union Ins. Co. V. Grant, 68 Me. 229. 1878. § 18. The giving of credit by a local agent to a broker may operate as a payment, in legal effect, of the premium, preventing cancellation by the company without paying or tendering the return premium. Bennett v. Maryland Fire Ins. Co. 14 Blatch. 422. 1878. § 19. Policy having once attached, company can rely upon a forfeiture without the return or offer to return any portion of the premium. The usual provision in a policy giving company the option to cancel it applies only where the company sees fit to cancel the policy, and not in cases where there is a forfeiture resulting from the act of the assured. Phcenix Ins. Co. v. Stevenson, 78 Ky. 150. 1879. § 20. President of an insurance company who issues policies with knowledge that the statute authorizing its organization has not been complied with, is guilty of fraud, and personally liable for the repayment of premiums thus obtained. Belding v. Floyd, 17 Hun, 208. 1879. § 21. When assured tenders the money to local agent of the company for the premium and he declines to take it, saying that he has in his hands money belonging to him for rent, and will credit him by that amount, it is equivalent to payment. Wooddy v. Old Dominion Ins. Co. 31 Grat. 362. 1879. § 22. Evidence that company had marked policy re- newed, and of custom thus to mark policies renewed be- fore payment of premium, and that such practice was re- cognized by the general agent, and that such renewals 250 PREMIUM. I t i-,;i!i were understood to be subject to such agent's disapproval and the local agent being charged with the amount of the premium, and that the condition in regard to payment of renewal premiums was not attended to, and that on previous renewal of policy issued premium was received and accepted after the issue of the policy, Held^ to be evi. dence of waiver of condition in regard to prepayment of the premium for renewal. Peppit v. N. B. : .** '/ Photographic Sdenoes CorptaTatian n WHT MAM STRMT WnSTn,N.Y. 14SM (7U) 172-4503 f 6^ 252 PROOFS OF LOSS. amount and extent of his loss as the nature of the case will admit. Jones v. Mechanics' Fire Ins. Co. 7 Vroora, N. J. L. R 29. 1872. § 5. Proofs were served April 3d, 1871. Objections were made and further particulars were required May 24th, 1871. Additional proofs were served June Cth, 1871. July 20th, 1871, further proofs were required. All the books and proofs in the assured's possession had \u' '\ submitted to the inspection of the company's ad- ju t"^ig agent before suit was brought. Heldy that these fads vvpve proper to be submitted to the jury as evidence of er of complete preliminary proofs on the part of tht :ured at the first service. Jones v. Mechanics' Fire Ins. Oo. 7 Vroom, N. J. L. R 29. 1872. § 6. Where an adjuster, after having examined into the facts relative to the fire and the amount of the prop- erty, states to the assured that he could not recommend company to pay the loss, as it appeared from their state- ments that they had sold more goods than they had pur- chased, in substance claiming that the assured had no claim under the policy, it is in legal efiect a denial of all liability and operates as a waiver of the right to demand proofs of loss. McBride v. Republic Fire Ins. Co. 30 Wis. 562. 1872. § 7. Company's objections to proofs must be prompt- ly made. O'Connor v. Hartford Ins. Co. 31 Wis. 100. 1872. Planters' Mut. Ins. Co. v. Deford, 38 Md. 382, 404. 1873. Patterson v. Triumph Ins. Co. 64 Me. 500. 1874. Hibernia Ins. Co. v. O'Connor, 29 Mich. 241. 1874. Swan V. Liv., Lond.and G. Ins. Co. 52 Miss. 704. 1876. Young V. Hartford Ins. Co. 45 Iowa, 378. 1877. Mer- cantile Ins. Co. V. Holthouse, 9 Ins. L. J. 535. 1880. Mich. And if not specifically made and pointed out, tliey are waived ; and same result follows if objection is made to the loss upon a certain ground, in reference to all other objections which could have at the time been made. Au- rora Fire Ins. Co. v. Kranich, 36 Mich. 289. Ins. Co. N. A. V. Hope, 58 III. 75. 1871. Winnesheik Ins. Co. v. Schuller, 60 111. 405. 1871. Humphrey v. Hartford Ins. PROOFS OF LOSS. 253 2ase 'ire Co. 15 Blatch. 504. Basch v. Humboldt Ins. Co. 6 Vroom, N. J. L. K. 429. 1872. State Ins. Co. v. Maackens, 9 Vroom, N. J. L. R. 66'r. 1876. Mason v. Citizens' Fire Ins. Co. 10 W. Va. 572. 1877. Enterprise Ins. Co. v. Parisot, 35 Ohio, 35. 1878. Williams v. Niagara Ins. Co. 50 Iowa, 561. 1879. German Ins. Co. v. Ward, 8 Ins. L. J. 607. 1879. 111. Phoenix Ins. Co. v. Tucker, 92 111. 64. 1879. Planters' Mut. Ins. Co. v. Engle, 52 Md. 468. 1879. Badger v. Glen's Falls Ins. Co. 49 Wis. 389. 1880. Titus v. Glen's Falls Ins. Co. 81 N. Y. 410. 1880. Graham v. Firemen's Ins. Co. 8 Daly, 420. 1880. § 8. Claiming policy to be void and denial of all lia- bility operates as a waiver of proofs. Batchelor v. Peo- ple's Ins. Co. 40 Conn. 56. 1873. Lycoming Ins. Co. v. Dunmore, 75 111. 14. 1874. Parker v. Amazon Ins. Co. 34 Wis. 364.' 1874. Planters' Ins. Co. v. Comfort, 50 Miss. 662. 1874. Field v. Ins. Co. N. A. 6 Biss. 121. 1874. West Rockingham Fire Ins. Co. v. Sheets, 26 Grat. 854. 1875. Williamsburg City Ins. Co. v. Cary, 83 111. 453. 1870. Akin v. Liv., L. and G. Ins. Co. 6 Ins. L. J. 341. 1877. U. S. Circuit, Ark. Germania Ins. Co. v. Castrel, 7 Ins. L. J. 2.')3. 1877. 111. Blennett v. Mary- land Ins. Co. 14 Blatch. 422. 1878. Crawford Co. Mut. Ins. Co. V. Cochran, 88 Pa. 230. 1878. People's Ins. Co. V. Straehle, 2 Cin. Siipr. 186. 1878. ^tna Ins. Co. v. Sparks, 62 Ga. 187. 1879. Portsmouth Ins. Co. v. Rey- nolds, 32 Grat. 613. 1880. Ilarriman v. Queen Ins. Co. 49 Wis. 71. 1880. Rumsey v. Ph(enix Ins. Co. 17 Blatch. 527. 1880. Farmers' Ins. Co. v. Meckes, 10 Ins. L. J. 707. 1880. Pa. Farmers' Ins. Co. v. Moyer, 10 Ins. L. J. 514. 1881. Pa. And loss becomes immedi- ately due and payable notwithstanding the limitation of sixty days contained in tlie policy. Cobb v. Ins. Co. N. A. llKans. 93. 1873. § 9. Whore condition requires immediate notice or proofs, it means " as soon as possible under the circum- stances" (Cashau v. N. W. National Ins. Co. 5 Biss. 476. 1873), "due diligence" (Continental Ins. Co. v. Lippold, 3 Neb. 391. 1874), "within reasonable time" (Rokes v. Amazon Ins. Co. 51 Md. 512. 1879). Ill i 254 PROOFS OF LOSS. § 10. A mere letter of advice from a soliciting agent of company to the assured, on receipt of notice of loss, to the effect that he would notify the company ivA that some one would come to adjust the loss, cannot be con- strued as a waieer of proofs. Forest City Ins. Co. v. School Directors, 4 Brad well, 145. § 11. Objections to proofs must be made known to assured in such time that they can be remedied. Ex Parte Norwood, 3 Biss. 504. 1878. § 12. Service of copies of notice and proofs on re- insuring company, and retention without objection, suffi- cient compliance with conditions in regard to them. Cashau v. Northwestern Nat. Ins. Co. 5 Biss. 476. 1873. § 13. A statement in proofs of loss that there was other insurance, is not an admission that the assured had other insurance. Insurance had by the assured and other insurance upon the property are not the same. When, therefore, the company is obliged to supplement the state- ment in proofs by other evidence, the assured has a right to contradict it, and a finding in his favor l)y the trial court or jury is conclusive. McMaster v. Ins. Co. of N. A. 55 N. Y. 222. 1873. § 14. Assured is not estopped by a statement in proofs of loss from proving the contrary or different fact. Parmelee v. Hoffman Fire Ins. Co. 54 N. Y. 193. 1873. s. p. McMaster v. Ins. Co. N. A. 55 N. Y. 222. 1873. Cummins v. Agricultural Ins. Co. 67 N. Y. 260. 1876. § 15. Policy insured " the People." Proofs were made and furnished by the vice-president of an asylum, the property insured and burnt. Held, that as the State can only act through agents, and the legislature having recognized the board of trustees and placed them in charge of the asylum as such agents, the authority of the vice-president could not be disputed. People v. Liv., Lond. and G. Ins. Co. 2 T. & C. (N. Y. Sup.) 268. 1873. PROOFS OP LOSS. 259 8 16. If company denies all liability under an interim receipt for insurance, there is no necessity of assured com- plying with conditions precedent, to loss being due and payable as contained in the policies that are ordinarily used and issued. Goodwin v. Lancashire Fire Ins. Co. 18 L. C. Jurist, 1. 1873. Reversing 10 L. C. Jurist, 298. § 17. Policy provided that proofs should be furnished within 15 days, and that " until such proofs were furnished no right of action should accrue." Held, that the last clause qualified the former and must be considered in con- nection, and that therefore the furnishing of f»roofs by the assured, although after the expiration of the 15 days, was in time. Lafarge v. Liv., Lond. It t,* I' I 264 PROOFS OF LOSS. § 67. When action is brought upon a parol contract of insurance, evidence that a policy was refused is equiva- lent to a denial of all liability, and is a waiver of proofs. Weeks v. Lycoming Ins. Co. 7 Ins. L. J, 552. 1878. U. S. Circuit, Vt. § 68. Notice of loss was given to the local agent, who informed the company, and latter sent an adjuster to ascer- tain the loss. The adjuster told the assured to go before a justice of the peace and make proof of the loss, saying he had blanks for the purpose. They started together, and then occurred conversation in reference to settlement, and an attempt to fix the sum, which however was not agreed upon. Finally adjuster left, saying he would pay a cer- tain sum which was not accepted and afterwards with- drawn. Subsequently assured called at oflSce of local agent to accept proposition of settlement and was informed that it was withdrawn. Held^ that while constituting a waiver as to time, it was no evidence of a waiver of con- dition requiring proofs. When informed of the with- drawal of the offer it was the duty of the assured then to have complied with the condition. Warner v. Ins. Co. of N. A. 7 Ins. L. J. 628. 1878. Pa. § 69. It is a question for a jury to determine whether delay in furnishing proofs is unreasonable and whether they have been furnished "as soon as possible " after a fire. O'Brien v. Phcenix Ins. Co. 76 N. Y. 459. 1879. § 70. Mailing proofs of loss, postage prepaid, is, in the absence of evidence that they were not received, pre- sumptive' evidence that they were received by the com- pany in due course of mail. Bell v. Lycoming Fire Ins. Co. 19 Hun, 238. 1879. § 71. Waiver of proofs may be inferred from acts and conduct of the company inconsistent witli an intention to insist upon strict performance of the condition. Ilokes v. Amazon Ins. Co. 51 Md. 512. 1879. § 72. Policy provided that assured should give notice of fire forthwith, " and within fifteen days at latest, fur- PROOFS OP LOSS. 265 nish a particular account, &c., * * * and in default thereof, no claim should be payable until such notice, ac- count, 2. 1878. Texas Ins. Co. v. Stone, 49 Tex. 4. 1878. § 1'^ Policy containing a mutual mistake in descrip- tion will be reformed in equity. Home Ins. Co. v. Myer, y;i 111. 271. 1879. § 14. Negligence of assured in not discovering changoa in policy delivered as a renewal, and laches in not seeking relief, are questions which make the propriety of granting relief (reformation) in a given case discretionary. Hay v. Star Fire Ins. Co. 77 N. Y. 235. 1879. § 15. A party whose duty it is to pre[)are a written contract in pursuance of a previous agreement, to prepare one materially changing the terms of such previous agree- ment and deliver it as in accordance therewith,, commits fraud which entitles other party to relief. Equity will reform a written instrument where there is mistake on one side and fraud upon the other. Hay v. Star Fire Ins. Co. 77N. Y. 235. 1879. § 16. Prayer for reformation gives jnrisdiction in equity. If policy is reformed court retains juiisdiction for the determination of all issues which may be made upon it; and issues of fact will, if required, be tried by a jury. Hammel v. Queen Ins. Co. 50 Wis. 240. 1880. § 17. By agreement between local agent of company and assured risk was to commence when premium was paid, which was on May 12, 1877. The agent subse- quently made out a policy on May 14th and mailed it to the assured. The risk was made to commence from the BE-INSURANCB. 277 day it was written, May 14th, 12 o'clock, noon. The lum- ber insured waa destroyed by fire during the forenoon of May 14th. Ileld^ that policy should he reformed to ex- press contract actually made, and that plaintiff was enti- tled to recover. Knox v. Lycoming Ins. Co. 10 Ins. L. J. 89. 1881. Wis. § 18. A mutual mistake of law induced by represen- tation of company'?, agent may be corrected in equity by reformation. Sias v. Roger Williams' Ins. Co. 10 Ins. L. J. 500. 1881. U. IS. Circuit, N. H. See Agent. § 63, 103. Description, 2. Estoppel, 25. Evidence, 68, Mortgagor and Mortgagee, 18. Other Insurance, 45. Parol Contract, 7. Pleading and Practice, 17. Proofs of Loss, 41. Questions for Court and J,ury, 10. Warranty and Representation, 107. RE-INSURANCE. r 'I ! 1 § 1. The right of a re-insuring company to relief in equity, does not depend upon the fiict of payment to the original assured. Phil. Trust Ins. Co. v. Fame, 9 Phil. Rep. 292. 1872. § 2. The meaning of clause in re-insurance policy, " loss if any payable at same time and pro rata with the insured," is that tlie liability of the re-insuring company is to be no greater than that of the original company ; that they are not to be compelled to pay any faster, and are to have the benefit of any defense which original company would have had. Any deduction, any equity, which orig- inal company would have had against the original as- sured, enures to benefit of re-insuring company. The company primarily liable cannot have its claim limited by its ability to meet its own obligation. Ex Parte Norwood, 3 Biss. 504. 1873. See note on liability of re-insurer. Id. s. p. Cashau v. Northwestern Nat. Ins. Co. 5 Id. 476. 1873. WtT 278 RE- INSURANCE. § 3. Where an agent of a company is directed by it to cancel a policy issued by him, and he makes an appli- cation to another company for re-insurance, which is ac- cepted, but subsequently it is agreed that latter shall issue policy directly to the assured, and does so, Ileld^ that former company could not maintain an action upon ground of re-insurance ; but that when claim svas made against it, and the question of liability is not clear, it could purchase and take by assignment from the assured his claim against the latter after a fire. Excelsior Fire Ins. Co. V. Royal Ins. Co. 55 N. Y. 343. 1873. § 4. Original company insured to amount of $6,000. Amount re-inrured, $2,000. Former paid $C00 in full dis- charge of liability. Re-insurance policy contained clause " loss, if any, payable pro rata at the same time and in the same manner as the re-insured company." Ileld^ that the reinsuring company was bound to pay only at the same rate as the re-insured, and as the latter paid only ten cents on the dollar of its insurance, the former was only liable to pay at same rate — that is, ten cents on the amount re-insured, or $200. 111. Mut. Fire Ins. Co. v. Andes Ins. Co. 67 111. 362. 1873. s. p. Norwood v. Reso- lute Ins. Co. 4 Jones «fe Sp. 552. 1873. § 5. Under a contract of re-insurance, the extent of the liability of the re-insurer is not aftected by the insol- vency of the reassured nor by its inability to fulfil its own contract with the original insured. Blackstone v, Allemania Fire Ins. Co. 56 N. Y. 104. 1874. § 6. Where re-insurance is for one-half the original amount, and policy contains clause as follows : " Loss, if any, payable pro rata at the same? time with the re-insured," and loss is less than amount of original insurance, JTelii^ by virtue of first part of the clause defendant not bound to pay full amount reinsured, but only such })roportiop of amount of loss as is in the ratio of amount of re-insurance to amount originally insured. That defendant was liable therefore for only half the loss. The latter part of the clause looks to time of payability and not to iact of pay- ment. It fixes same period for duty of payment by re- RE-INSORANCE. 279 1 by it appli. is ac- tU issue ^A that upon made clear, it assured ior Fire $6,000. full dis- clause Lid iu Id^ that at the 'nly ten as only on the Co. V. J. Reso- tent of J insol- ilfil its ;one v. riginal 1<0S8, if lured," HeU, bound iiop of irance liable )f the : pay. by re- insurer as was fixed for payment by the re-insured. Blackstone v. AUemania Fire Ins. Co. 56 N. Y. 104. 1874. § 7. The 4th section of the Statue of 19 Geo. II, ch. 37, which has been adopted and is in force in Maryland, prohibiting re-insurance, applies exclusively to marine in- surance, and does not prohibit re-insurance by fire com- panies. Consol. Real Est. Co. v. Cashow, 41 Md. 59. 1874. § 8. The insolvency of the original insurer in no wise affects or limits responsibility of the re-insuring company. If the original assured be paid but a small dividend, the reinsurer is still liable to pay the whole amount due un- der its contract to the trustee of original insurer, without deducting the dividend, and the original assured has no claim in respect of the money so paid. Consol. Real Est. Co. V. Cashow, 41 Md. 59. 1874. § 9. Under the clause in re-insurance policy " loss, if any, payable 'pro rata, «fec.," the insurance being for one- half of the original amount, company is liable for only one-half of the loss. Consol. Real Est. Co. v. Cashow, 41 Md. 69. 1874. § :• 0. Under clause in re-insurance policy that loss is payable at same time with the re-insured it is not neces- sary that actual payment by the re-insured precede or accompany payment by the re-insurer. It looks to the time of payability and not to the fact of payment. It fixes the same period for the duty of payment by the re- insurer as was fixed for payment by the re-insured. Consol. Real Est. Co. v. Cashow, 41 Md. 59. 1874. § 11. Clause in re-insurance policy, that it is "subject to same risks, valuations, conditions, and mode of settle- ment as are or may be adopted or assumed by said (re- insured) company," dispenses with preliminary proof, and fastens the responsibility of the re-insurer to the settle- ment and adjustment made by the re-insured company with the original assured, as to the amount of loss. Con- sol. Real Est. Co. v. Cashow, 41 Md. 59. 1874. 1 t'i ( l! JJ 280 RE-INSURANCE. § 12. A re-insuring company may purchase claims under the policies re-insured by it, and in an action brought by assignee of re-insured company, may set-off the amount of such claims against its liability under the contract of re-insurance. Ilovey v. Home Ins. Co. 3 Ins. L. J. 815. 1874. U. S. Circuit, Ohio. § 13. Re-insurer is bound by the result of a litigation between the original insured and the re-insured, provided he has notice of the litigation and has an opportunity to manage and control it. Strong v. Phcenix Ins. Co. G2 Mo. 289. 1876. § 14. There is no priority between the original as- sured and the re-insured ; the liability over of the re- insured is exclusively and solely to there-insured. Strong V. Phoenix Ins. Co. 62 Mo. 289. 1876. Gantt v. Ameri- can Central Ins. Co. 68 Mo. 503. 1878. § 15. Where company is in fact insolvent, although unknown to its diiectors, it cannot re-insure a limited por- tion of its risks without rendering the directors person- ally liable to holders of policies not covered by the re- insurance, under 2 R. S. (5th ed.) 519. 1 Edm. Stat. 549, 550. And such liability is not affected by the fact that the re-insuring company is not authorized to do busi- ness in the State, it having performed the agreement on its part. Ileld^ however, m such an action there should be credited and deducted from the sum paid for the re- insurance, the amount of losses company or its receiver would have been ol)liged to pay under the re-insured policies. Casserly v. Manners, 9 Ilun, 695. 1877. § 16. A court of equity has jurisdiction to entertain and enforce a bill by assignee of a re-insured company against a re-insuring company to enforce the latter's con- tract, and resort may be had to ecpiity before payment to the original insured ; the loss was jiayable pro rata at such times and in such manner as the reinsured company may pay. Held, that the words " may ])ay " are equivalent to liable to pay. Fame Ins. Company's Ajipeal, 83 Pa. 396. 1877. claims action J ■^et-off tider the o. 3 Ins. itigation jrovided unity to 02 Mo. ginal as- the re- Stronjr Amei Ithouffli ted por- persou- tlie re- in. Stat, the fact lIo busi- lent on ' should the re- receiver insured itertain >nipany r's con- lent to at such ly may lent to a. 39G. RE-INSDKANCE. 281 § 17. Re-insurance policy contained clause as follows : " subject to the same conditions and mode of settlement, payable p7'0 rata, of that irit gas. )p. 235. 1 explo- cplosive issunied f9 N. C. erosene, is upon . Wil. of oils erosene 3. Co. 8 landise Policy lage as There not be »g, iu irticles >entine P ¥ and benzine were usually kept as part of the stock of country stores would not prevent the last condition being operative, and if benzine and turpentine were kept and used, even altliougb a part o^ the stock of country stores, company is not liable. Lancaster Fire Ins. Co. v. Lenbeim, 89 Pa. 497. 1879. § 21. Policy prohibited the keeping or having upon the premises benzine, and the keeping, having or using, camphene, spirit gas or any burning fluid or chemical oils. A can of benzine was procured by the assured and placed and kept in a warehouse about fifty feet distant, from which it was brought on the premises and used for clean- ing the machinery. Held, that the assured did not keep , or have benzene on the premises within meaning of the policy, and that its use on the premises did not avoid the policy, because the use of benzine not being prohibited iu terms, if prohibited at all, it must be because it is included within burning fluid or chemical oils, but that these words must be construed with what precedes them in the condi- tion, and that under such construction the words burning fluid or chemical oils must mean only such fluids or oils as are in their nature like camphene or spirit gas, and that this was not a matter of which court would take judicial notice, but that it was a fact to be determined by the jury. Hears v. Humboldt Ins. Co. 9 Ins. L. J. 139. 1879. Pa. § 22. Policy contained condition that " if camphene, burning fluid, or refined coal or earth oils are kept for sale, stored or used on the premises without written con- sent, it should be void." Assured at time of issue of policy and thereafter used kerosene for lighting without consent, which fact was known to defendant's agent when policy was issued. Held, that while kerosene was included in the terms " Refined coal or earth oil," company was estopped by knowledge of its agent from setting up a breach of the condition. Bennett v. N. B. and M. Ins. Co. 81 N. Y. 273. 1880. § 23. When policy covers "stock of drugs and medi- cines and raetchandise usually kept in country stores," if benzine is a drug or is usually kept in country stores, it '"V ■ i ■ V-'i '; ':| j I <' i • ' % ■ :'|yi I 302 SUBROGATION. is covered by the insurance, notwithstanding a printed prohibition against the storing and keeping of benzine. The question as to whether benzine is a drug and whether it is usually kept in a country store should be submitted to the jury if there is any evidence legitimately in the case on either question. Carrigan v. Lycoming Ins. Co. 10 lus. L. J. GOG. 1881. Vt. See Estoppel, § 11, 34, 37. Evidence, 16, 71, 89. Increase of Risk, 8, 37. Illegality of Contract, 4. Lighting, 2, 6. Use and Occupation, 6, 7, 13. Warranty and Representation, 108. SUBROGATION. § 1. Where property is negligently lost or destroyed in transportation, and company pays the loss to the as- sured, it can recover the sum so paid from the party re- sponsible for the loss, although it was not legally bound to indemnify the assured. Ins. Co. v. C. D. Jr. 1 Wood. 72. 1870. § 2. Where, under an executory contract of sale, the vendee agrees to pay the expense of insuring, and does so, the insurance exists for his benefit, and company has no right of subrogation. Wood v. North W.^stern Ins. Co. 46N.Y. 421. 1871. § 3. On payment of loss, company cannot sue wrong- doer who occasioned it in its own name, either at common law or under statute of Missouri. Suit, although for use of insurer, must be in name of person whose property was destroyed, ^tna Ins. Co. v. Ilannibal & St. J. R. R. 3 Dill. 1. 1874. § 4. There can be no subrogation when policy insures owner, loss, if any, payable to a mortgagee. Cone v. Ni- agara Fire Ins. Co. GO N. Y. 619. 1875. SUBROGATION. 303 § 5. Insurance company, having paid a loss caused by sparks from an engine, it is subrogated to rights of assured as against the railroad company, and may bring suit to re- cover the amount paid. Such an action cannot be claimed to be local as being one to recover damages for injuries to real estate; it is personal and transitory, its gravamen negligence, and is hence maintainable in another State than the one where fire occurred. Home Ins. Co. v. Penn. K. R. Co. 11 Hun, 182. 1877. ^ G. Building insured was burned through negligence of railroad company. Assi'.red settled with it for a sum less than the actual damage and gave a release, in which it was stated : " This settlement is not intended to dis- charge the Connecticut Fire Insurance Company from any claim, tfec." It was insisted that as the assured had set- tled and released all his claim for damages, the insurance company could take nothing by subrogation or assignment. Held, that as the insurance company could not have inter- posed tiie release as a defense in an action by the assured upon the policy, and the assured having released only such damages as he could without interfering with his claim against the insurance company, the legal conse- quence — subrogation — must be regarded as part of the exception. That insurance company acquired the claim by subrogation, and was entitled to recover. Connecticut Fire Ins. Co. v. Erie R. R. Co. 73 N. Y. 399. 1878. Rev'g 10 Hun, 59. § 7. If a loss is occasioned by the wrongful act of an- other, company is subrogated to the rights and remedies of the assured, and may maintain an action in its own name asrainst the wrong-doer. If the assured receives the damages from the wrong-doer before payment by the in- surer, the amount so received will be applied in discharge of the policy. If the wrong-doer pays assured after pay- ment by the insurer, with knowledge of the facts, it is re- garded as a fraud upon the insurer, and he will not be protected from liability to the latter. Connecticut Fire Ins. Co. V. Erie R. R. Co. 73 N. Y. 399. 1878. Rev'g 10 Hun, 59. •; t;S i;, t ki l.-T: !il : J.' /A m rf ^ 304 y SUBROGATION. S8. § o. Semhleihfit an insurance company acquires no right by subroga'Won until full payment of the loss to tlie assured. People's Ins. Co. v. Straehle, 2 Cin. Supr. Ct. 18C. 1878. § 0. Assured, being insolvent, after payment of his loss by an insurance company, commenced an action against a railroad company whose engines, it was alleged, caused the lire. The insurance company filed a bill in equity for an injunction restraining the settlement of such claim, and asked to be subrogated to the extent of the in- surance. Held, that such injunction was proper, and should be continued until the case against the rai^ 1 company was finally determined. Hartford Fire In V. Penuell, 2 Brad well, 609. 1878. § 10. One Forbes, owner of the building in question, leased it to another by the name of Bonner, by a lease which rendered the latter bound to repair, " except dam- aged, by fire, destruction by storm or tempest of the build- ing or any part thereof, or destruction by foreign 2nemies." Forbes insured the house by a policy against fire, covering injury by explosion of gas. In 1877 the corporation of Brighton, while repairing the streets with a steam railway, owing to its great weight damaged a pipe and caused an escape of gas into the building, where it exploded and did considerable damage. Forbes sold the house and the pol- icy to a third party, and after some negotiation the iiisur- ance company paid the latter the sum of £750. The lessee received from the corporation of Brighton the amount of damage done to the house by the explosion, and with the sum received reinstated the house. At the time the insur- ance company paid to the purchaser the sum of £750, they were not aware that, by the terms of the lease, the lessee was bound vO make good the injuries done by an explo- sion of gas. The insurance company, upon learning that the building had been reinstated by the lessee, claimed from the purchaser the sum which had been paid by them, £750, and upon his refusal brought an action to recover it. Held, that such action would lie, and that defendant was liable ; that the company, upon payment of the loss, was subrogated u all the rights of the assured as against the TAXATION. 305 lessee, iiiul tliat, when the latter did repair, the insurance company must have the benefit. Darrell v. Tibbetts, L R. Q. B. Div. 5G0. 1880. § 11. When a fire has occurred occasioned by negli- gence of a third party, and destroying property insured by several companies, the latter, by their payment of the loss, are subrogated to the rights of the assured against such third party, and may maintain an action in their own names jointly with the assured. Swarthout v. Chicago i 1 , i ; '; li 324 USB AND OCCUPATION. the insurance was void by its terms, and that there could be no application of the doctrine of estoppel founded upon the knowledge of the agent. Dewees v. The Manhattan Ins. Co. 6 Vroom, N. J.L. R 366. 1872. § 5. If an engine is occasionally used on premises in- sured at time policy is issued, its use thereafter caij.ot be relied upon to defeat the policy on the ground that the risk is thereby increased. Commonwealth v. Hide (k Leather Ins. Co. 112 Mass. 186. 1873. And see Whitney V. Black River Ins. Co. 72 N. Y. 117. 1878. § 6. Policy covered merchandise hazardous and not hazardous, which included "cabinet ware." At time of its issue plaintiflfs were lessees of entire building containing the stock. Subsequently ]:)laintiffs permitted a firm to come in and occupy several floors for their business of fin- ishing chairs. They employed glue, paint, alcohol, var- nish, and benzine, requiring four or five barrels at a time. An alcohol lamp used for heating glue, exploded, and the fire ensued in consequence. Policy provided " that if premises should be used for purpose of carrying on any trade or occupation, or for keeping any articles specified as hazardous or especially hazardous in the second class of hazards, so long as same should be so used, policy shall be of no force or effect." And, also, "if the risk shall bo in- creased by any means within control of assured, or l)y oc- cupation of premises for more hazardous purposes than permitted by this policy, it shall be void." Oil, alcohol, painters' stock, tur[)entiue, and varnish were specified as hazardous or specially hazardous in second class, and among the trades specified in same class as specially liaz- ardous were " all workshops, manufacturing establish- ments, trades and mills not above enumerated as hazard- ous or extra hazardous." No ]irevious mention made of trade of "chair finishing." JlcM, verdict sliould have been directed for defendant, and that conceding that a stock of "cabinet ware" was covered by the policy, it could not be so construed as to permit occui)ation of premises for purposes established by the evidence. That the term had reference to article m the finished state. Appleby v. Astor Ins. Co. 54 N. Y. 253. 1873. USE AND OCCUPATION. 325 § 7. When policy insures stock of family groceries contai.-ed in a building occupied as a meat and family- grocery store, and there is a prohibition against the use of the building as a retail liquor store, and also a clause pro- viding that nothing else than a distinct agreement clearly expressed and indorsed upon the policy should be con- strued as a waiver of any condition or restriction, and building was used as a retail liquor store, Held^ that the fact that liquors were usually kept in a family grocery store did not prevent a forfeiture of the insurance. Peo- ple's Ins. Co. V. Kuhn, 12 Ileiskell, 515. 1873. § 8. The terms " machine and repair shop " do not necessarily mean that no work is to be carried on in such an establishment except in iron ; it being shown in evi- dence that assured also carried on the business of making shingles. Held, that it was proper to be left to the jury to detennine whether the business carried on was that of a machine and repair shop, it being manifest from the tariif of rates that if the term, machine shop, had alone been used, such term might have allowed the insured to do wood work on the premises. Chaplain v. Provincial Ins. Co. 23 Up. Can. C. P. 278. 1873. § 0. Policy insured the premises as a " dwelling, «fe." This was found to mean " &c.," and that it was equivalent to the assertion that the premises were occupied for the purpose of a dwelling and other purposes. Building was, as a matter of fact, also used as a diinking saloon, which was known to the agent at the time he issued the policy. Held, plaintiff was entitled to recover. Gouinlock v. Man- ufacturers' Ins. Co. 43 Up. Can. Q. B. 563. 1873. § 10. Effect of returning a policy by company to assured after notification of change in occupation operates as a waiver of a forfeiture by reason of such use. Ned- row V. Farmers' Ins. Co. 43 Iowa, 24. 1876. § 11. The facts that business of pianino and sawing lumber is carried on in an adjoining building, and the shavings are conducted by a tube to the boiler room in building insured, and there used for fuel, do not change if' m: iiej Mv ii m :' 'i' 326 USB AND OCCUPATION. the nature of occupation of latter. Keeney v. Home Ins Co. 71 N. Y. 396. 1877. § 12. When new business is incidental to the general business done when the insurance was effected and agent of the company having issued policy with full knowledge of the facts as to the use and occupation of the premises, company is estopped from setting up any defense predi- cated upon assured's omission to give formal notice. Brink v. Merchants' Ins. Co. 49 Vt. 442. 1877. § 13. Company is presumed to know the business which is made the subject of insurance, and for that rea- son to intend to protect what may properly appear to con- stitute a portion of it, as it is usually carried on. And it is error to reject evidence bearing upon this question. St Nicholas Ins. Co. v. Merchants' Ins. Co. 11 Hun, 108. 1877. § 14. If with other inquiries company fails to inquire as to occupation unless there is proof of concealment of the fact, it is not evidence of bad faith which will vitiate the policy. In such case and no statement is made in policy as to occupation, it must be assumed that the insur- ance was made without regard to occupation. Browning V. Home Ins Co. 71 N. Y. 508. 1877. § 15. When policy describes building insured as be- ing occupied for the manufacture of toys and it contains a condition *' if the occupation be changed from one of the class denominated specially hazardous to that of another of the same class without written consent, that it should be void " ; and subsequently the assured manufactured toy trunks, small nursery chairs, berry and market basket*?, ta- ble mats, chair stretchers and mop handles. Held, that a change of occupation to defeat the insurance must be of a substantial substitution of one distinct and specially defined kind of manufacturing from tliat of another equally dis- tinct and definite kind of business, and that the condition referred to a permanent abandonment of the old business and the adoption of a new business of a like hazardous risk ; that the business of the manufactory in question USB AND OCCUPATION. 327 was not substantially changed, as the new business was incidental to that which was done when the insurance was eflPected. Brink v. Merchants' Ins. Co. 49 Vt. 442. 1877. § 16. An occasional use by a carpenter will not make policy void. Westchester Fire Ins. Co. v. Foster, 90 111. 121. 1878. § 17. Policy provided that "if any change whatever shall take place in the situation, occupation, use or condi- tion of the premises insured without written consent," it should be void. Part of second floor was let for a Tilden and Hendricks club room. In what manner the club used it did not appear. Held, that the object of the clause was to protect against increased risk ; that the change must be substantial, and that a mere change of tenants was not such a change in the use and occupation as to forfeit the policy. Miller v. Oswego and Onondaga Ins. Co. 18 Hun, 525. 1879. § 18. Policy provided that if property should cease to be operated as a mill, it should be void. Local agent of company knew when policy was issued that building was used for storage purposes, and was not being operated as a mill. Hekl^ that the continuance of such use did not violate the condition. Humphry v. Hartford Fire Ins. Co. 15 Blatch. 504. 1879. § 19. Under Maine statute change in occupancy or vacancy is not available as a defense unless risk is there- by materially increased. Company has right to have this question submitted to jury. Thayer v. Providence Ins. Co. 70 Me. 531. 1880. § 20. The fact that a large building covering less than one-fourth of an acre, besides being the residence of the assured is also used as a hotel does not effect the oper- ation of statute making it a homestead so that judgments against the assured are not liens upon it. Harriman v. Queen Ins. Co. 49 Wis. 71. 1880. See Alteration, § 2. Cancellation, 23. Evidence, 44, 70, 73. Illegality of Contract, 3. Increase of Risk, 17. Lighting, 1. Pleading and Practice, 27. Storing and Keeping, 3, 5, 0. Title, '^ao. Usage or Custom, 10, War- ranty and Ropre«entation, 5, C, 31, 55, 57, 71, 73, 84, 100, 100. ;^rl '« V VACANT OR UNOCCUPIED. § 1. Policy provided that if the building insured should become vacant or unoccupied, notice should be ^iven to the company that directors may decide whether it would be prudent to retain the risk. Failing such notice and consent on part of the company, policy should be void. Held, that the condition did not relate to an absence from personal occupation for a day or so ; that when the non-occupation is longer the policy remains valid until the insured has had a reasonable time for ^ivins rotice to the company, and that if a fire takes place be- iovB such reasonable time has expired, company is liable. Three days' time under the circumstance oF this case held not to be unreasonable. Canada Land Co. v. Canada Agricultural Ins. Co. 17 Grant Ch. 418. 1870. § 2. There is no "change of possession" within the meaning of policy, by temporary absence of assured and family, leaving property in charge of agent or servant. Shearman v. Niagara Fire Ins. Co. 4G N. Y. 526. 1871. § 3. Condition was that " if premises shall become vacant and unoccupied, or the risk be increased by erec- tion of neighboring buildings, or by any means whatever within the control of the assured," without consent of the company policy should be void. //^'W, that condition was in nature of a warranty, that plaintiff could not recover, house being vacant, without proof that the vacation of the house was beyond his control. N. A. Fire Ins. Co. v. Zaenger, 63 111. 4G4. 1872. § 4. Policy provided that " buildings unoccupied are not covered by this policy, unless insured as such." As- sured and his servants while engaged in carrying on a farm contiguous to the house and barn insured, took their meals in the house, and the barn was used for the usual purposes for storing hay and tools, but no cattle were kept in it. Held, that the buildings were not occupied. That occupancy as applied to such buildings implies an that i VACANT OR UNOCCUPIED. actual use of the house as a dwelling place, and such use of the barn as is ordinarily incident to a barn belonging to an occupied house, or at least something more than a use of it for mere storage. Ashworth v. Builders' Mut. Ins. Co. 112 Mass. 422. 1873. § 5. The fact that assured stated to the agent that she would leave the premises temporarily does not prevent a forfeiture under condition in policy providing that if premises should become unoccupied it should be void, ^tna Ins. Co. v. Burns, 5 Ins. L. J. 69. 1874. Ky. § 6. Vacancy of a part of the property insured does not avoid the insurance ; if it increases the risk it may do so, but the burden of proof rests upon the company. Vryan v. Peabody Ins. Co. 8 W. Va. 605. 187r). § 7. Policy provided that "if the above-mentioned preuiises shall become vacant or unoccupied and so remain with the knowledge of the assured without notice and consent in writing," it should be void. At time of fire premises had been vacated by the tenant, and had been unoccupied about thirty-three days with the knowledge of the assured, and without notice to or consent of the com- pany. During all this time assured was endeavoring to obtain a tenant. Ildd, that the words " and so remain " qualified the condition which had no application to a taii- j)orary vacancy caused by a change of tenants. Kelley v. Home Ins. Co. 3 Ins. L. J. 134. 1875. U. S. Circuit, Kans. § 8. Tenant in possession removed from the house in question about two months prior to the fire. He notified the assured who requested him to lease to some one else, but afterward countermanded this direction, and property remained unoccupied until the fire. The tenant retained the key for purpose of delivery to assured on his return from another State. There was a table, crib, and a straw tick in house at time it was burnt. IMd. that house was "vacant and unoccupied and that policy was void." American Ins. Co. v. Padfield, 78 111. 167. 1875. f»l| ill', ■> „ /:! :ii i .:;.;! in 330 VACANT OK UNOCCUPIED. § 9. Policy provided that " in case the house be left unoccupied without giving immediate notice to the com- pany " it should be void. Assured left the house Jan. 15, 1871, and thereafter boarded twelve miles distant until March 30, 1871, when fire occurred. During this interval the house was not inhaVnted by any human being, except one night when plaintiff remained there. All the house- hold goods and effects were left in the house and so re- mained until the fire. Plaintiff visited the house occa- sionally and maintained a general oversight over the prop- erty. Held, that occupation of a dwelling-house is living in it, not mere supervision over it, that there could not be a cessation of occupancy for any considerable time and that under facts of this case plaintiff could not recover. Paine v. Agricultural Ins. Co. 5 T. «fe C. 619. 1875. § 10, Policy contained this provision: "If the dwell- ing house hereby insured becomes vacated by the removal of ilie owner or occupant^ it would be void unless written consent was obtained. The absence of assured and his family was for a considerable period but was temporary in its nature and for a special purpose. There was evi- dence that he still retained the house as his residence and left his furniture and clothing of his family there ; that during this absence his wife took care of the house, going there every week to cleanse it and from time to time ob- tain such articles as were required for use, and it was the intention to return as soon as the assured returned from his business trip, the cause of the absence. Ileld^ that it should have been left to jury to determine whether house had been vacated by removal ; the words of condition had reference to a permanent removal and entire abandon- ment as place of residence. Cummins v. Agricultural Ins. Co. 67 N. Y. 260. 1876. llev'g 5 Hun, 554. § 11. Policy provided that if the premises should be- come vacated by the removal of the owner or occupant without notice or consent it should be void. Building was occupied by a tenant of assured and rent had been settled for up to May, 1872. The tenant left in July, 1871, and went to another place, his family having left a VACANT OR UNOCCUPIED. 331 short time previous. The wearing apparel of the tenant and his family had all been taken away and a portion of what little furniture he possessed. He intended to return the next spring or earlier if business should be dull at the place where he went. No person lived in the build- ing after he left. Fire occurred October 30th, 1871, up to which time he had not decided to return at any definite time. Neither the assured nor the defendant had any notice that the tenant had vacated the premises until after the fire. Held^ that the premises were vacated within the meaning of the policy and that the neglect of the plaintift' to give notice to the company could not be construed as a mistake under Gen. Stats, ch. 157, sec. 2. Sleeper v. Ins. Co. 56 N. H. 401. 1876. Overruling Chamberlain v. Ina Co. 55 N. H. 249. 1875. And see Hill v. Ins. Co. 6 Ins. L. J. 314. 1«77. § 12. Policy provided that company should not be liable for any loss which may happen while the house is "left without an occupant or person actually residing therein ;" but that a temporary absence of the members of his family, none of the household fixtures being re- moved, should not be construed as non-occupancy. It ap- peared that the house insured was in possession of a ten- ant ; that the fire took place on the 10th of September, 1875, but that the tenant did not reside, sleep or eat on the premises for 6 or 8 days before the fire, nor did any other person. The goods of the tensnt were removed about forty-eight hours before the fire. The assured was not guilty of any personal default ; he lived 7 miles from the house and was not aware that the tenant had ceased personally to occupy. Tenant held the premises by the month ; he was in arrears for rent and his goods distrained. The month did not e: pire until the 24th of September. The assured did not suppose he would quit the premises before that day and had a person ready to take possession as soon as the tenant left. Jleld^ thei'e was a breach of the condition, and the plaintiff could not recover. In such a case the question of increase of risk is immaterial. Abrahams v. Agricultural Ins. Co. 40 Up. Can. Q. B. 175. 1876. ■i. ■■ .•^■' \ %Am \\- i «i! 1:!l; ! i u I 332 VACANT OR UNOCCUPIED. § 13. When a company receives a fee and executes an assent to a transfer or assignment through a local agent, assured is warranted in assuming that notice of a vacancy to such local agent is sufficient. Williams v. Canada Mut. Ins. Co. 27 Up. Can. C. P. 119. 187G. § 14. A building does not become vacant or unoccu- pied if a person retains a room in which he is accustomed to sleep, taking his meals elsewhere. Hartford Fire Ins. Co. V. Smith, 3 Col. 422. 1877. § 15. Under a clause providing that if any change should occur affecting the occupancy of the property whereby risk should be increased, the same should be made known to the company and policy canceled or a cor- responding increased premium paid at the option of the company, it is proper for the court to refuse to charge the jury that leaving the premises vacant without notice avoided the policy, and to charge them that it would not do so unless done in bad faith and with a design to expos- ing the building to extra hazard. Ilesidence Fire Ins. Co. V. Hannawold, 37 Mich. 103. 1877. § 16. Policy contained provision that " if house shall remain vacant or unoccupied for the space of ten days without written notice and consent," it should be void. The trial judge charged the jury that if the house had not been used as a dwelling place by some one within ten days of the fire, policy would be void. Also that the facts that the tenant's furniture, or some of it, remained in the house, and the key had not been surrendered to the land- lord until within less than ten days of the fire, would not be an occupancy of the premises, if the tenant and his family had moved into another house, where they slept and took their meals. Held, no error. Corrigan v. Con- necticut Ins. Co. 122 Mass. 298. 1877. § 1 7. Policy provided that if building should be va- cated by owner or occupant, notice should be given to company, stating particulars and length of time. Assured notified agent that house was to be vacant about four weeks and stated that " they would not move their VACANT OR UNOCCUPIED. 333 things." Assured did in fact substantially remove all his household property. Held^ that defendant having no notice of removal of the property, plaintiff could not re- cover. Hill V. Equitable Ins. Co. 6 Ins. L. J. 314. 1877. N.H. § 18. Policy provided that if "premises should be- come vacant or unoccupied " it should be void. Premises in question were occupied by a tenant of assured, who moved into another house shortly before the fire, leaving some of his furniture, which had not been removed at time of loss. Court charged the jury that " if the vacancy of the building was not within the means or control of the plaintiff" he could recover. Ileld^ no error. Atlantic Ins. Co. V. Manning, 3 Col. 224. 1877. § 19. Delays and interruptions incident to the busi- ness of conductim? a saw-mill, althouifh involvinsr a tem- porary discontinuance of the active use of the mill for sawing purposes, do not make it " vacant and unoccupied " within meaning of the policy. Whitney v. Black lliver Ins. Co. 72 N. Y. 117. 1878. Affi'g 9 itun, 37. § 20. A tenant having removed from a dwelling- house a day before it was destroyed by fire. Held, that whether the house was "occupied" or not within the meaning of the policy, a proper question for the jury. Wait v. Agricultural Ins. Co. 13 Ilun, r.71. 1878. § 21. An occasional absence for a single night, even though it should so chance to be the night of the fire, does not make a house vacant or unoccupied. It' there is any evidence tending to show that the house was occupied, it is error to take the case from the jury. Chandler v. Com- merce Fire Ins. Co. 88 Pa. 223. 1878. § 22. Building was described in the policy as a " ten tenement frame block." There did not appear to be more than one building, which at time of fire was fitted up for ten tenements, two of which were actually occupied by assured and his family, and he was in legal possession of the whole and had control of the same. Policy contained :iii|M:.| I! M^ v. : I \ 1\ \ 4! 1. , il: ', l! m mm i}:p\ V- 'ii:. !' 334 VACANT OR UNOCCUriED. provision that it should be void " whenever a building hereby insured shall be unoccupied." Held, that a tene- ment block insured as a single building could not be re- garded as unoccupied with two of the tenements in actual use and occupation as residences. Harrington v. Fitch- burg Ins. Co. 12-fc Mass. 12G. 1878. § 23. When house is vacant with knowledge and consent of agent of company, and policy remains in his possession until after the fire, when it is delivered to the assured who had no knowledge of its terms, company is estopped from availing itself of condition in policy as to vacancy. St Paul l^'ire Ins. Co. v. Wells, 89 111. 82. 1878. § 24. Premises do not cease to be occupied when as- sured sleeps in an adjoining house, leaving furniture and wearing apparel in former to which he was accustomed to return daily. Gibbs v. Continental Ins. Co. 13 Ilun, 611. 1878. § 25. Policy provided that "so long as property in- sured should be unoccupied it would cease and be of no force or effect." Upon the trial court charged jury in sub- stance that a few days vacancy pending a change of ten- ants would not void the policy in case of loss. Held, error, that the contract by its terms was suspended during such short and temporary i)eriod of unoccupancy, and became operative on re-occupancy. vEtna Ins. Co. v. Myers, 03 Ind. 238. 1878. § 26. Assured, about two weeks before the fire, went to another place to reside and liv^ed there imtil after the fire. A car load of furniture was shipped to the new dwell- ing place and there was about $300 worth of furniture left in the house. Assured left instructions with an agent to sell this furniture and also to rent the house. Another person was left in possession witli instructions to remain in possession and sleep in the house until it was rented. This latter person left the house three or four days before the fire occurred, and was at the new residence of the as- sured when the fire occurred. lie left no one in the house, VACANT OK UNOCCUPIED. 335 building i a tene- >t be re- in actual V. Fitch- idge and s in his to the ipany is cy as to 111. 82. vhen as- iure and ;oraed to un, 611. )erty iu- 36 of no y in sub- 3 of ten- Id, error, ing such became [yers, 63 re, went fter the w dwell- ture left igent to Another remain rented. s before ' the as- e house, but gave the keys to another agent with instructions to take charge of the house and rent it if he could before he returned. Policy contained condition if house should be- come unoccupied it should be void. Held, that the house was unoccupied within the meaning of the policy. Cook V. Continental Ins. Co. 70 Mo. 610. 1879. § 27. Tenant of assured moved out of the building seventeen days before the fire, and it remained tenantless and unoccupied until it was destroyed. Policy provided that " if premises should become vacant or unoccupied, and so remain, without consent in writing, &c.," it should be void. Court was requested to charge jury that " if they found from the evidence that premises were vacant and unoccupied at time of fire without notice to defendant, ' plaintiff could not recover," which was refused. Jury were then charged that " to avoid policy building must have been vacant for an unreasonable length of time as to ma- terially increase the risk, and the question of an unreason- able length of time was for them to determine." Held, error; that instruction asked by defendant should have been given to the jury. Dennison v. Phcenix Ins. Co. 52 Iowa, 457. 1879. § 28. A boat which has been left lying on the beach without any occupants, her furniture removed, and no use made of her, is " unoccupied." Ileid v. Lancaster Ins. Co. 19 Hun, 284. 1879. § 29. AVhen policy provides that it should be null and void, if without written consent, the house insured should become vacant by removal of owner or occupant, or cease to be occupied in the usual or ordinary manner that dwelling-houses are occupied, Held, that the assured was not relieved from the effect of this condition by show- ing that his tenant left the premises without his knowledge and consent, and that as soon as he discovered the fact he endeavored to procure a new one. McClure v. Watertown Fire Ins. Co. 90 Pa. 277. 1879. § 30. Semhle that the assured is not required to give notice of a temporary vacancy, such as is incidental to a ' 1^1 '11 1 ?- 1 i:: i I I n I!" 336 VACANT OR UNOCCUPIED. F ^! ir' change of tenants. 1879. Alston V. Ins. Co. 80 N. C. 326. § 31. When policy provides that it shall be void in case the premises insured shall become vacant or unoccu- pied, the question of increase of risk is immaterinl it is error for the court to charge the jury in such a ciise that they could not find for defendant unless they found that the risk was increased by the vacancy. Ins, Co. v. Lonsr, 51 Tex. 89. 1879. § 32. Assured was accustomed to occupying house insured as a summer residence, and in the early part of De- cember of each year family would leave it for the win^ i and occupy rooms in another place. The house was quii;' expensively furnished. When the family moved, in De- cember, 1876, for the winter, this furniture was left in the house in the same situation as when in use, and the house, when no member of the family was there, remained locked up, no custodian being left in possession. It appeared that assured, during the entire winter, visited the premises as often as once a month, and that her husband during tlie whole time, with the exception of a few days Avhen he was absent in New York, visited the house several times a we(;k and slept there from two to five nights each week. IL^ prepared and took his meals in the house, and on several occasions he received and entertained his friends tuerc. The last of these occasions was Sunday, the second d:.j before the fire. On that day he spent nearly the entire day and evening in the house with a number of his asso- ciates. Held, that the house during none of this period was unoccupied. The building being insured as a dwell- ing, the occupancy stipulated for must be deemed to be such as properly pertained to a building of that char;i«;tor ; that the assured was only bound to maintain such occu- pancy as pertained to the ordinary use of the building in the luanncjr and for the purposes for which it was designed to be used ; and the fact that the building had been used previously for a summer residence was a circumstance of considerable signiticance, and that the question of occu- pancy or non-occupancy was propeily left to the jury. Western Assur. Co, v. Mason, f) Bradwell, 141. 1879, . C. 326. void in !ll, :i '. It ouse that und that V. Long, ng house art of De- le win^.cr was qiiUe d, in De- eft in the lie liouso, sd locked sared tliat 3Uiises as ai'ing the :^n lie was es a week eek. He n several ds til ere. ?oud d'.y lie entire his asso- is period ! a dwell- ed to be haraotor ; ich occii- lilding in desiij-iied een used stance of of occu- the jury. 187U. VACANT OR UKOCCUPIED. 337 § 33. Assured being required to give notice to the company when house becomes unoccupied, is bound to do so within a reasonable length of time, and a failure to give such notice for six weeks, when the company's principal office is but a few miles distant, cannot ])e regarded as rea- sonable time. Alston v. Ins. Co. 80 N. C. 320. 1879. § 34. Assured had determined to leave the premises and move to another State, and for several days before the fire was actively engaged in making preparations to do so. He had alrendy rented premises to anotht^r who was to have taken possession on Saturday, but was prevented from doing so by rain. The day before assured sold such articles as he did not wish to take with him, and in the evening of same day his family left the premises without any intention of returning, at least until after assured's re- turn from Nevada, where he subsequently went. Assured lemained in premises Friday and Friday night, having re- tained bed, bedding, and some other articles of little value, his family in meantime having stopped in a neighboring city, waiting until he could perfect his arrangements for leaving. He also remained on premises the next day until about nine o'clock in the evening when he went to the city where he spent balance of the night. On Sunday he re- turned to the premises and remained there until seven o'clock in the evening, when he went to the city and spent night there, leaving his bed, bedding, cfec, on the premises. That night hre occurred. Held, that premises were not vacant and unoccupied. Question depends upon intent and proper to submit to jurv. Phtenix Ins. Co. v. Tucker, 92 111. 04. 187t>. ij 35. School-house insured November 21, 1871, for five years. After Aj)ril, lili), no school was held, furni- ture was removed, and l»uilding was then rented and used as a dwelling. Last occupied as a dwelling April, 187G, from Avhich time to the fire, October 14, 1870, house re- mained vacant and unoccupied. Plaintiff contended that company insuring }>roperty -is a school-house must be as- sumed to have intended that the building should be va- cant as school-houses are occasionally, especially daring Vol. II. -'22 ! ■ I fc 'r'ui m li U \'' ii ! I I ■ li 338 VACANT OR UNOCCUPIED. vacation. Held, that policy was void. Aiiiei'ican Iiis. Co. V. Foster, 92 111. 335. 1879. ^ 36. A company does not waive condition In regard to occupancy by recjuiring a^^sured to furni;sl» proofs of loss. Fitch [)atrick v. ILiwkeyo Ins. Co. 53 Iowa, :i35. 1880. § 37. Policy provided that " if the premises iiiiured shall, at any time during the life of this policy, become vacant, by the removal of the owner or occu})ant, without immediate notice to tliis company and indorsement made on the policy, this insurance shall be void and of no eft'ect." It also contained provision for cancellation at option of com})any by giving notice in writing and payment of un- earned premium. Jleld, tliat vacancy did not of itself avoid the policy, and that the object of requiring notice was accomplished by receipt of the notice. Company hav- ing thus acquired knowledge of vacancy may, in its dis- cretion, terminate the insurance only by written notice and payment of the unearned premium. Wakefield v. Orient Ins. Co. 50 Wis. 532. 1 880. § 38. Work, at time of fire, had been stopped for five days, and how soon it would have been renewed was \\\\- certain. Mill continued to be used for storage and deliv- ery of goods, requiring daily visits of one or two person;^. Jield, not to be "unoccupied;" that such term in the ])ol- icy liad no inference to a temporarv suspension of work in a mill. All>ion Lead Works v. Williamsburg City Ins. Co. 9 Ins. L. J. 435. 1880. U. S. Circuit, Mass. § 39. Family leaving house on e.xcrrsions, visits, or on other tenqjorary occasions, tin're hein:..; n;) intoiitioii of leaving it, do not cease to o^nnipv it. S'cupetzki v. 'J'rans- atlantic Ins. Co. 9 Ins. L. J. 521." 1880. Mich. § 40. Policy insured building, of the buildings were in actual occupation, their use did not extend to and take in the dwelling burned. Ilerni/mn v. Adriatic Ins. Co. 12 N. Y. ge of situ- iioving in, lid not })e- say what oodruff V. live in tlie f the sum- the hotel, ork about ider diiec- these em- d most of pt in hotel Qg outside al times a d escaped ^e is or is be detor- 3f persons rit or head, amily. It ^'liere tlioy em[)loyod t they are <; there to- ne of fact, 'r jdaintiff, a Ins. Co. a couiitry ' liabit of ienib(;rs ot' i3urs of in- se. IMI, liouQ-h the I in actual ake in the . 12N.Y. VALUED POLICY. 34L Week. Dig. 293. 1881. N. Y. Ct. App. Rev'g 13 Jones & Sp. 394. § 46. Policy provided, that, " if the premises hereby insured shall become vacant or unoccupied, or if the prop- erty insured be a mill or factory, and shall cease to be op- erated, and so remain for a period of more than fifteen days without notice to the company and consent indorsed thereon, in every such case the policy shall be void." Held, that by construction policy is to be void if the premises (a dwelling-house in this case) become vacant or unoccupied, and so remains for a period of more than fifteen days without notice. Miaghan v. Hartford Fire Ins. Co. 24 Hun, 58. 1881. See Alienation, § 25. Estoppel, 16, 17, 37. Evidence, 86. Increase of Risk, 1, 3, 4, 16, 19, 25. Use and Occupation, 19. Waiver, 11, 23, 24, 37. Warranty and Representation, 50, 74, 100. VALUED POLICY. § 1. Policy insured $2,500 on oil paintings, as per schedule, &c. The schedule referred to was made up and furnished to defendant's agent .after the application and date of policy, enumerating over one hundred paintings, as follows : President Taylor and Cabinet . . $1,000 <* Harrison " " . . 1,000 " Washington "... 1,000 Ac. Ifdd, not a valued policy. Luce v. Springfield Ins. Co. 2 Ins. L. J. 443. 1873. Xj. S. Circuit, Mich. § 2. In an action upon a valued policy plaiutitf is not required to prove his interest in subject insured by a plea of the general issue. Koos v. Merchants' Mut. Ins. Co. 27 La. Ann. 409. 1875. s ^ '- V':': ii':.i :ii:^ J..' i 342 WAIVER. § 3. When statute provides that the amount of insur- ance written in the policy shall be taken and deenit d the true value of the property at the time of the loss, and that it shall be the measure of damages, such an act is founded upon public policy, and its provisions cannot be waived even by express contract, hence the stipulation in the con- tract providing for another measure of damages is inoper- ative. Reilley v. Franklin Ins. Co. 4.*i Wis. 449. 1877. § 4. Valuation agreed upon, and for which insurance is issued, though it exceeds the real value of the property, if made in good faith and without fraud, is conclusive be- tween the parties. Harrington v. Fitch burg Ins. Co. 124 Mass. 126. 1878. WAIVER. § 1. The mere fact that an agent of the company has given evidence as to the origin and circumstance of the fire under legal proceedings instituted for that purpose, is not evidence of waiver of objection in regard to assured's having made false statements in proofs of loss. Casiunan V. Lond. & Liv. Fire Ins. Co. 5 Allen, N. B. 246. 1 862. § 2. Renewal by agent, with knowledge of existence of other insurance, waives indorsement upon the policy. Carroll v. Charter Oak Ins. Co. 1 Abb. Ct. App. Dec. 810. 1868. § 3. Assured's attorney met agent of the conii)any on the street and said that proofs were ready except certifi- cate, which he said it was doubtful whetiier he would get in time, to whicii the agent replied, \\, was not material, and to procure a certificate as soon as he could. Jleld, evidence of waiver. Crozier v. Phcenix Ins. Co. 2 Ilannay, N. B. 200. 1870. WAIVER. 343 § 4. WLen no particular form of approval to a trans- fer IS required, knowledge by company of the facts and retention of the ])reniiuni, with such knowledge, is evi- dence from whicli jury may find that assent was given. Hendriekson v. Queen Ins. Co. 30 Up. Can. Q. B. 108. 1870. ^ 5. A local agent waives conditions requiring proofs of loss and suit to he brought within limited time by stating that the former are " all right," and loss would soon be paid, Ide v. Pheenix Ins. Co. 2 Biss. 333. 1870. § 6. There can be no waiver where the act or omis- sion to act or statement oq part of the company is pro- cured by tiie false reprejjentation of the assured. Taylor V. Ins. Co. 51 N. II. 50. 1871. § 7. A condition of forfeiture may be waived by any act from which consent of company may be inferred. Shearman v. Niagara Fire Ins. Co. 46 N. Y. o26. 1871. § 8. Agent proniising, on being notified of a transfer, that lie would indorse consent on the policy on its produc- tion, does not operate as a waiver. Equitable Ins. Co. v. Cooper, (U) 111. 509. 1871. § 0. Policy j>rovided that " nothing but a distinct, specific, agreement, clearly expressed and indorsed, shall operate as a waiver of any printed or written condition, warranty or restriction therein." Company relied upon tliis clause to defeat a claim of waiver in connection with proofs. Ifeld, that it referred to those conditions and provisions of the policy which enter into and form a part of the contract of insurance and are essential to make it a binding contract, and which are properly designated as conditions; and tliat it has no reference to those stipu- lations whidi are to be perfoi'med after a loss has occur- red. Franklin Fire Ins. Co. v. Chicago Ice Co. 36 Md. 102. 187-2. s. i>. Rokes v. Amazon liis. Co. 51 Md. 512. 1879. And see Walsh v. Hartford Ins. Co. 73 N. Y. 5. 1878. Hartford Ins. Co. v. Webster, 69 111. 392. 1873. Meyers v. Germania Ins. Co. 27 La. Ann. 63. 1875. rAM '■>: \ ■i'-' jil I ,;t;|ll Mfi I tt m :il ill i 344 WAIVER. 5^ 10. A broker cannot as agent of the company waive condition requiring prepayment of the premium. Mar- land V. Royal Ins. Co. 71 Pa. 393. 1872. § 11. If agent witli knowledge that the building is imoccupied issues a policy with a clause providing that it is void if vacant, there is a waiver of any written or printed condition respecting the occupation of the prem- ises. Deviue v. Home Ins. Co. 32 Wis. 471. 1873. § 12. The charging of the premium to an agent, and the agent's agreement to give time for its payment, and subsequent payment to the company, constitute a waiver. Dayton Ins. Co. v. Kelley, 24 Ohio, 345. 1873. § 1 3. Policy contained pro^ysion that " the assured hereby covenants that the representation given in the ap- plication for this insurance contains a just, true and full exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property in- sured, as far as the same are known to them and material to the risk, and that if any material fact or circumstance shall not have been fairly represented, policy shall be void." Policy was issued upon a printed slip describing the property without requiring any representation in re- gard to its situation, value and risk. Held, that company must be deemed to have waived above condition and could not claim that policy was void because the assured did not fully disclose situation and risk. Commonwealth v. Hide and Leather Ins. Co. 112 Mass. 136. 1873. § 14. Company by demanding from the assured after a loss plans and specifications of the building destroyed with knowledge of the existence of other insurance, is estopped from msisting upon a forfeiture of the policy on the ground of other insurance. Such an act must be treated as an election on the part of the company to treat the policy as a valid and subsisting contract. Webster v. Phoenix Ins. Co. 36 Wis. 67. 1874. 8. i>. Titus v. Glen's Falls Ins. Co. 81 N. Y. 410. 1880. § 15. A mortgagee applied to an agent for an insur- ance upon his interest, and form of policy was left to lat- WAIVER. 345 ter. It was issued in name of owner loss payable to the mortgagee as interest might appear. Subsequently, the mortgagee acquired the title by foreclosure, gave notice to the agent and received consent "that the policy might stand as security for plaintiff's interest," the agent agree- ing that the proper entries would be made. Policy con- tained usual condition against transfer or change of title. Held, that the forfeiture was waived, and that company was estopped after a loss from averring want of considera- tion, and also from insisting upon previous forfeiture. Pratt V. N. Y. Central Ins. Co. 55 N. Y. 505. 1874. Affi'g 64 Barb. 589. § 16. Policy provided that "there shall be no waiver or evasion of any of the terms or conditions of this policy, and no agent or servant of this company has any right or power to waive or to dispense with any of the terms or conditions of insurance as printed and contained in the application or in this policy." Whether this should be construed as speaking from the time when the policy is received instead of being made to operate by relation from the date of the application when no conditions were brought to the knowledge of the assured except those which were made a part of the application itself quei^y ? Michigan State Ins. Co. v. Lewis, 30 Mich. 41. 1874. § 17. Waiver is a question of fact and it is error to refuse to submit to the jury where there is contradictory testimony. Underwood v. Farmers' Joint Stock Ins. Co. N. Y. 500. 1874. 57 § 18. A general agent has power to waive any ex press condition in the policy, and his statement to the as- sured that a condition in the policy in relation to other in- surance has been sufficiently complied with estops the com- pany from controverting that fact. Mentz v. Lancaster Fire Ins. Co. 79 Pa. 475. 1875. § 19. If company acts upon an informal notice of the loss, it is a waiver of its insufficiency. West Rockingham Fire Ins. Co. v. Sheets, 26 Grat. 854. 1875. :] m i: IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^^ li& ^^s Itt IM 12.2 1.1 f.-*"^" 11.25 I U 11.6 6" Photographic Sdmoes Corporation 23 WIST MAM STIHT WIIITIR,N.Y. 14SM (7U)l7a-4S03 9 J V fs 346 WAIVER. § 20. After issue of policy assured and his wife con- veyed property to another by whom and his wife it was immediately conveyed to the wife of the assured. Action was brought in the name of both the assured and his wife. In order to establish a claim of waiver of condition in the policy, making it void in event of a change in the title of the property, it was proved that after the execution of the conveyance the wife of the assured, for the purpose of having the policy changed if necessaiy, went to the oflSce of the company and notified the secretary that the deed had been made and was informed by him " that it made no difference, and that no change was necessaiy;" and that upon being so informed she took no further steps, but suffered the policy to remain as it was. Ilelfl, that the evidence did not establish claim of waiver ; first, it does not aid the assured, because having parted with his inter« est the loss was not his ; second, it does not aid his wife, because it was not alleged in the complaint nor was there any evidence in the case tending to show any assignment of the policy to her by her husband. Without such as- signment she would have no interest in the policy which the waiver could affect. Langdon v. Minnesota Mut. Ins. Co. 22 Minn. 193. 1875. § 21. If at the time of a renewal of a policy agent knows of a change which has taken place in regard to the title of the premises, such reiiev^al is a waiver of conditions of the policy in relation thereto. Mechler v. Phoenix Ins. Co. 38 Wis. 665. 1875. § 22. An adjuster having authority to examine into the circumstanceH of a fire to adjust the loss and settle and report to the office, cannot waive a condition in re- spect to other insurance or in any way except in writing. Mason v. Hartford Fire Ins Co. 37 tjp. Can. Q. B. 437. 1876. § 23. Policy contained provision " that no agent of the company shall be deemed to have waived any of the terms and conditions of the policy unless such waiver is indorsed in writing," and also required consent to V>e in- dorsed in case of vacancy. After policy was issued as- WAIVER. 347 sured applied to local agent of company for permission that the h^^u8e insured should remain vacant, asking if it was necessary to have it indorsed on the policy. Agent replied that it was not necessary, that he had entered it in the books and it was ull right. No report was made to the company. Ileld^ plaintiff presumed to have known what contract contained, and that the oral consent was an act in excess of the known authority of the agent, who could waive condition only in prescribed manner, that is by indorsement on policy. Walsh v. Hartford Fire Ins. Co. 73 N. Y. 5. 1878. Rev'^ 9 Hun, 421. Over- ruling Hotchkiss V. Germania Fire Ins. Co. 5 Hun, 90. 1875. 8. p. Hartford Ins. Co. v. Webster, 69 III. 392. 1873. Meyers v. Germania Ins. Co. 27 La. Ann. 63. 1875. § 24. Condition that policy shall be void " if prem- ises are or shall become vacant or unoccupied, without consent indorsed," is waived by knowledge of company's agent of the facts at time of issuing of policy and his assent to an understanding that property shall be vacant for a certain time. Cone v. Niagara Fire Ins. Co. 60 N. Y. 619. 1875. § 25. Policy contained condition " that anything less than a distinct agreement indorsed on this policy shall not be construed as a waiver, cfec." After issue of the policjr the president of the company giave verbal consent to the assured to remove goods into the adjoining building, as- suring him it was not necessary to bring the policy. Held, company estopped from insisting upon above con- dition as a defense. Maryland Fire Ins. Co. v. Gusdorf^ 43 Md. 500. 1875. § 2G. Local agent may vary and waive the terms of a policy by parol, notwithstanding it expressly provides that consent can only be given by a written indorsement, even after its issue. In such a case knowledge and con- versation with the assured upon the subject, without ob- jection or any suggestion that any breach of condition had been created or would be relied upon, is sufficient to make a case of estoppel. Westchester Fire Ins. Co. v. Earle, 33 Mich. 143. 1876. ii Mr? 348 WAIVER, '!| § 27. The facts that an adjuster visited place of fire and made inquiries without authority from defendant and without knowledge of the plaintir, xre no evidence of waiver of condition requiring proofs within specified time. It seems, that if even the plaintiff had known of the acts of the adjuster they could not have legitimately influenced his action or omission to act in respect to the proofs. Blossom V. Lycoming Fire Ins. Co. 64 N. Y. 162. 1876. § 28. A waiver to be operative must be supported by an agreement founded upon a valuable consideration, or the acts relied on as a waiver must be such as to estop a party from insisting on a performance of the contract or the forfeiture of the conditions. Ins. Co. v. La Croix, 45 Tex. 158. 1876. See §§ 48, 52, 53. § 29. Submission to arbitration is a waiver of all proof. Bammessel v. Brewers' Fire Ins. Co. 43 Wis. 463. 1877. § 30. As an insurance company may waive any con- dition in the policy inserted for its benefit, a forfeiture does not necessarily follow upon a breach, but depends upon option of the company. Ins. Co. v. Norton, 6 Otto, 234. 1877. • § 31. Condition in policy requiring written indorse- ment of consent may itself be waived. Gans v. St. Paul Fire Ins. Co. 43 Wis. 108. 1877. § 3"J. An adjustment of a loss made with a knowl- edge of all the facts amounts to a waiver of all the de- fenses based on provisions in the policy. Levy v. Pea- body Ins. Co. 10 W. Va. 560. 1877. And see Eagan v. ^tna Fire Ins. Co. 10 W. Va. 583. 1877. Smith v. Glen's Falls Ins. Co. 62 N. Y. 85. 111. Mut. Ins. Co. v. Archdea- con, 82 111. 236. 1876. § 33. Agent charged with duty of settling a loss as a necessary incident has power to dispense with those con- ditions of the policy which have reference to the mode of ascertaining liability and limiting right of action. Little v. Phcenix Ins. Co. 123 Mass. 380. 1877. WAIVER. § 34. Statement made by local agent after fire assured that the company would regard the loss as honest one and pay, does not amount to a waiver of of the company's legal rights. Card v. Phcenix Ins, 4 Mo. App. 424. 1877. § 35. A delay of 45 days in making objection proofs at which time it would be too late to complete ._, proofs and retain the right of action under the policy Held, evidence of waiver. Hibernia Mutual Fire Ins. Co V. Meyer, 10 Vroom, N. J. L. R. 482. 1877. § 36. Policy is voidable at option of the company, and does not become absolutely void upon the happening of facts which may work a forfeiture. If the company with knowledge of such facts after a loss subjects the as- sured to further expense and delay after his proofs are once furnished it estops the company from insisting upon a forfeiture. Semhle, that constructive notice to the com- pany of facts which might be claimed to effect a forfeiture IS sufficient. Gans v. St. Paul Fire Ins. Co. 43 Wis. 108. 1877. See §§48, 52. § 37. When a local agent during the continuance of the policy is informed of a proposed change of tenants, and that the former tenant had quit possession, and he re- plies that it is " all right," there is a waiver of the condi- tion in regard to occupancy. Palmer v. St. Paul Fire Ins. Co. 44 Wis. 201. 1878. § 38. Where no word or act has been said or done to mislead the insured or throw him off his guard, mere silence is not enough to infer waiver. Mueller v, side Fire Ins. Co. 87 Pa. 399. 1878. Scuch- § 39. When defendant had consented to other insur- ance in a certain company, both policies being issued bv the same agent, and subsequently another policy is substi- tuted in the place of the second and no consent of defend- ant is indorsed upon its policy, such substitution being made with knowledge of defendant's agent, and no objec- tion being made upon au attempted acljustment or before 350 WAIVEK. action was brought, Held^ a waiver of the objection that consent was not indorsed upon the policy. Collins v. Ins. €0.79^0.280. 1878. § 40. The authority of a president of an insurance company to receive notice will not be presumed to ustain a waiver. Ins. Co. v. Lewis, 48 Tex. 622. 1878. Texas Ins. Co. V. Stone, 49 Tex. 4. 1878. § 41. Policy is voidable at option of insurance com- pany, which cannot sleep upon its intention to avoid the policy to the prejudice of the assured. The forfeiture may be waived by laches of the company misleading per- sons interested in the policy to their prejudice. Appleton Iron (yo. V. British America Assurance Co. 46 Wis. 23. 1879. § 42. The issuing of a policy when a portion of the questions in the application remain unanswered is a waiv- er of answer to such questions. Armenia Ins. Co. v. Paul, 91 Pa. 520. 1879. § 43. Knowledge of facts constituting forfeiture is essential to effect a v ver of it by any act or declaration on the part of the company. Ryan v. Springfield Fire Ins. Co. 46 Wis. 671. 1879. § 44. Semhle, that where condition requires written consent, to be operative it must ])e shown that assured had knowledge of facts requiring such consent. Green v. Homestead Fire Ins, Co. 17 Ilun, 467. 1879. § 45. Assured on asking for a renewal of his policy made known to agent of company facts which constituted a breach of conditions in it, and upon paving the premium received a renewal receipt, the agent stating that he would " make it all right," Held, to constitute a waiver ; that policy continued valid for another term, notwithstanding clause requiring waiver to lie evidenced by writing in- dorsed thereon. Whiced v. Germtinia Fire Ins. Co. 76 N. Y. 415. 1879. § 46. Signing by a secretary of an order for payment of the adjustment of a loss with knowledge of the facts WAIVER. 351 constitutes a waiver of a rfeiture. Farmers' Mutual Ins. Co. V. Gm-gett, 43 Mich. :i89. 1870. And see Smith v. Glen's Falls Ins. Co. 62 N. Y. 85. 18T5. § 47. Assured was notified by letter that it would be " necessary for him to furnish proofs of loss as required by conditions of the policy,'' and that the company claimed the policy to be void on ground of existence of other in- surance not consented to. Ileld^ that although assured was put to trouble and expense in the furnishing of proofs, company was not thereby estopped from insisting upon the forfeiture caused by the other insurance. Phoenix Ins. Co. V. Stevenson, 8 Ins. L. J. 922. 1879. Ky. § 48. The doctrine of waiver should not be extended so as to deprive a i)arty of a defense merely because he negligently or incautiously when a claim is first presented, while denying his liability, omits to disclose the ground of his defense, or states another ground than that upon which he finally relies. There must in addition be evi- dence from which the jury would be justified in finding that with full knowledge of the facts there was an inten- tion to abandon, or not to insist upon the particular de- fense afterward relied upon, or that it was purposely con- cealed under circumstances calculated to and which actu- ally did mislead the other party to his injury. Devens v. Mechanics' and Traders' Ins. Co. 83 N. Y. 168. 1880. See § 52. § 49. Policy provided that the acts of the insurers in saving and preserving the property insured should not be considered as affirming or denying any liability under the policy. Company after a fire directed master of boat in- sured to store the anchors and other articles saved. Ileldy not to constitute a waiver of a breach of warranty in re- spect to requiring notification of time and place of boat being laid up. Devens v. Mechanics' and Traders' Ins. Co. 83N. Y. 1G8. 1880. § 50. Company does not waive defense of breach of warranty by stating when it receives proofs that they con- sider they owe nothing as fire was caused by carelessness. The omission to put its disclaimer upon ground of breach f; % $m WAIVER. of warranty in answer to an inquiry as to amount due is not a waiver of such defense. Devens v. Mechanics' and Traders' Ins. Co. 83 N. Y. 168. 1880. § 51. Company does not waive defense of the exist- ence of other insurance by refusal to pay, when demand is made, upon other grounds. Galveston Ins. Co. v. Hei- denheimer, 9 Ins. L. J. 592. 1880. Texas. § 52. Where there has been a breach of condition company may or may not take advantage of such breach and claim a forfeiture. It may, consulting its own inter- ests, choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal result. A waiver cannot be inferred from its mere silence. It is not obliged to do or say any- thing to make the forfeiture effectual. It may wait until claim is made under the poilcy, and then in denial thereof or in defense of a suit commenced therefor allege the for- feiture. But it may be asserted broadly that if in any ne- gotiations or transactions with the assured, after knowl- edge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the assured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is as matter of law- waived; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel. &rl. J. Titus V. Glen's Falls Ins. Co. 81 N. Y. 410. 1880. See § 48. § 53, Where company, with knowledge of the facts constituting breach of a condition, requires assured to sub- mit to an examination, and he does so under clause in pol- icy in reference thereto, it operates as a waiver of the for- feiture. Titus V. Glen's Falls Ins. Co. 81 N. Y. 410. 1880. s. p. Northwestern Mut. Ins. Co. v. Germania Fire Ins. Co. 40 Wis. 44G. 187C. § 54. Knowledge of company of all the facts consti- tuting a forfeiture, and its act or declaration with such knowledge, are essential to sustain a claim of waiver. Fitch patrick v. Ilavvkeye Ins. Co. 53 Iowa, 335. 1880. WAIVER. 353 § 55. Company may refuse to pay without specifying any ground, and insist upon any available ground, but if they plant themselves upon a specified defense, and so notify the assured, they should not be permitted to retract after the latter has acted upoii their position as announced, and incurred expenses in consequence of it. Brink v. Hanover Fire Ins. Co. 80 N. Y. 108. 1880. § 56. Delay and silence, assured being in no way harmed, do not justify un inference of waiver. How v. Union Mutual Life Ins. Co. 80 N. Y. 32. 1880. § 57. Assured may declare upon his policy as written, and if the company avers and proves breach of a conditioa assured may prove a waiver of it, without its being neces- sary to reform the policy. Smith v. Commonwealth Ins.. Co. 49 Wis. 322. 1880. See Adjustment, § 4. Agent, 22, 30, 35, 37, 44, 46, 50, 55, 70, 76, 84, 93,. 99, 104. Alienation, 9, 38, 02, 68. Application, 3,6, 7. Arbitration, 10, 11. Cancellation, 11, 12. Certificate, 14, 17. Construction, 9. Contribution, 19. Encumbrance, 7. Evidence, 12, 46, 47, 61. Examination, 4. Insurable In- terest, 38. Lighting, 3. Limitation, 2, 4, 6, 7, 8, 18, 19. 22, 29, 30. Mutual Company, 1, 21, 25, 27, 63, 69, 83, 90, 96, 99, 105, 109, 111, 113, 116, 117, 138, 140, 149, 153. Notice of Loss, 6, 8, 9. Other Insurance, 5, 11, 35, 42, 51, 54. Parol Contract, 21, 33. Pleading and Practice, 12, 16, 21, 29, 30. Premium, 1, 3, 7, 10, 11, 16. Proofs of Loss, 1, 2, 5, 6, 7, 8, 10, 10, 19, 22, 20, 28, 30, 34, 35, 39, 40, 43, 44, 46, 47, 48. 49, 50, 53, 54, 55, 61, 62, 64, 65, 67, 68, 71, 79, 80, 81, 83, 88. Questions for Court and Jury, 1. Rebuild, 5. Renewal, 1, 9. Risk, 6, 20. Storing and Keeping, 13. Title, 30, 37, 50, 56. Use and Occupation, 7, 10. Valued Policy, 3. Vacant or Unoccupied, 3, 5, 36. Warranty and Representation, 27, 35, 40. im ' di Vol. IL— 23 WARRANTY AND REPRESENTATION. § 1. A verbal representation to vitiate a contract of insurance, must relate to some past or existing fact mate- rial to the risk ; if in the nature of a promise or stipulation for future conduct it must be inserted in the policy, or company cannot avail itself of it. Mayor of N. Y. v. Brooklyn Fire Ins. Co. 3 Abb. Ct. App. Dec. 251. 1868. § 2. Description of property insured as a " brick building," is not a warranty that the building is construct- ed entirely of brick. Gershauser v. N. B. & Mercantile Ins. Co. 1 Nev. 174. 1871. § 3. If there is any danger of incendiary fire, reason- ably to be apprehended, known to the assured, it is his duty to state it in his application and inform company of it ; and if he answers falsely in that legard, and a loss en- sues, company is relieved from liability. But such incen- diary danger must be real and substantial, one that nec- essarily enhances the risk, one which a man of ordinary prudence and caution would regard as not mere idle talk or reports, which if the assured knew of, he might ba excused from repeating to the agent. McBride v. Repul> lie Fire Ins. Co. 30 Wis. 562. 1872. § 4. The question of materiality in case of misrepre- sentation as to title must be submitted to jury. Bellatty V. Thomaston Ins. Co. 61 Me. 414. 1873. § 5. A statement in policy that building is " occupied as a country store," is a warranty that the building was used at the date of the agreement for the purpose speci- fied. Dewees V. Manhattan Ins. Co. 6 Vroom, N. J. L. R. 366. 1872. § 6. When property is insured aa a dwelling-house, the fact that it is or was after the insurance occupied as a boarding-house does not constitute a breach of warranty. Planters^ Ins. Co. v. Sorrels, 1 Baxt. 352. 1872. WARRANTY AND REPRESENTATION. 3W ION. >n tract of Pact inate- tipulation policy, or N. Y. V. 1. 1868. a "brick construct- lercantile e, reaaon- , it is his mpany of a los8 en- ich incen- that nee- ordinary idle talk might ba V. RepuV misrepre- Bellatty ' occupied ding waa ose speci- N.J.L.R. [ng-hou3e, pied as a warranty. § 7. A warranty that stoves and pipes shall be kept well secured is not broken by a temporary removal of f)ipe at a time when stove is not in use. Mickey v. Bur- ington Ins. Co. 35 Iowa, 174. 1872. § 8. An answer " W. D." to question as to title can- not be held to mean " warranty deed" without extrinsic evidence, and even if so found it does not necessarily fol- low that it is equivalent to representation that assured, owned property in fee. Rockford Ins. Co. v. Nelson, 65 111. 415. 1872. § 9. While a warranty relating to an existing fact must be literally true, or policy does not attach, that which is promissory in its nature is not so strictly con- strued. In latter case it is sufficient if suhstantially true or performed. Cady v. Imperial Ins. Co. 4 Cliff. 203. 1873. 8. p. James v. Lycoming Ins. Co. Id. 272. 1874. § 10. Warranty was " that the forcing pump and hy- drants should be kept in good working order; also a good supply of water casks and buckets in each room." Held, promissory in its nature, and no breach if substantially complied with, as by proof of the existence of the pump and hydrants and reasonable skill and care in keeping same m order, and by keeping the casks and buckets in an accessible place convenient for use, although in an ad- joining connected room or entry. Cady v. Imperial Ins. Co. 4 Cliff. 203. 1873. § 11. Whatever is expressed, whether with perspicu- ity or obscurity, that is what is warranted. If there be latent ambiguity it may be removed by testimony. Bryce v. Lorillard Fire Ins. Co. 55 N. Y. 240. 1873. § V?. Policy insured merchandise " contained in letter C.J Patterson Stores, South Front, below Pine street, Phil- adelphia." Patterson stores was a warehouse, divided in- to eight sections or buildings, being designated by the let- ters A, B, C, &c. The sections were divided from each other by substantial brick walls, with no communication between. The walls extended twelve inches above the 356 WARRANXr AND REPRESENTATION. roof. At time of issue of policy and, at time of fire the property was in fact in letter A and not in letter C. Held, description a warranty ; that the latent ambiguity in use of the term " letter C " was removable by testimony ; that there was a breach and there could be no recovery ; that assured could not itivoke the aid of the maxim '■''falsa demonatratio non nocet ;" there must be in the description so much that is true, as that, casting out that which is false, there is still enough left to clearly point out the place in which is the property. Bryce v. Lorillard Ins. Co. 55 N. Y. 240. 1873. s. p. Hartford Ins. Co.- v. Par- ish, 73 111. 166. 1874. § 13. A description of the place of deposit of per- sonal property inserted in the policy is a warranty, and a condition precedent, not to be avoided by the fact that the truth of the description is not essential to the risk, nor an inducement for company to enter into contract. Bryce v. Lorillard Fire Ins. Co. 55 N. Y. 240. 1873. § 14. A statement that "there is $4,000 insurance on the property now " does not constitute a warranty that it is upon the interest of the applicant and assured. If not expressly stated the interest insured may be shown by parol testimony. Planters' Mut. Ins. Co. v. Deford, 38 Md. 382. 1873. s. p. Frederick Co. Mut. Ins. Co. v. De- ford, Id. 404. § 15. Policy contained provision that an overvalua- tion either in written application or otherwise should ren- der it void. Assured stated in his written application that the value of the property was $8,000 or more. Upon the trial he admitted that he knew it was worth at tlie time of his application not more than $4,000. Its real value was then about $3,000. Held, to constitute a breach of warranty ; that the question of overvaluation in the application was not one to be submitted to the jury as a question of good faith or fraud. American Ins. Co. v. Gilbert, 27 Mich. 429. 1873. § 16. Policy provided that false representations by the assured of the condition, situation or occupancy of the WARRANTY AND REPRESBXTATION. 357 property, or any omission to make known any fact mate- rial to the risk, or an overvaluation or any misrepresenta- tion whatever either In the written application or other- wise, shall render it void. Held^ that the intent of the whole provision was to make all representations in legal eflfect warranties, breach of which to render policy void, whether material to the risk or not, while the mere sup- pression of or omission f r^ state any other fact should only have that effect when tLe fact suppressed was one mate- rial to the risk. American I:; 3. Co. v. Gilbert, 27 Mich. 429. 1873. § 17. A representation that assured held building in fee is rendered false by the fact that lie had a leasehold interest only and his right to remove the building cannot help the assured. Stickney v. Niagara District Mut. Ins. Co. 23 Up. Can. C. P. 372. 1873. § 18. If assured fairly represented what he honestly believed, it will not defeat the action where the statement of fact does not amount to a warranty. Imperial Fire Ins. Co. V. Murray, 73 Pa. 13. 1873. § 19. It is not necessary that a misrepresentation should be made with intent to defraud. The false repre- sentation of a material fact voids the insurance if policy is issued on faith of it whether the false representation was by mistake or designed. Continental Ins. Co. v. Kasey, 25 Grat. 268. 1874. § 20. Assured stated in his application that the prop- erty was not mortgaged, that he was the sole and undis- puted owner of the property and that he owned the ground on which the building stood by contract. Held^ that this must be construed as equivalent to a representa- tion that no person other than himself had any substan- tial interest in the property, and it appearing that there was an interest or lien upon the premises in favor of the vendor to the amount of the unpaid purchase-money that there was a breach of warranty. Hinman v. Hartford Fire Ins. Co. 36 Wis. 159. 1874. )i; ■I--; i '. i m \ 358 WARRANTY AND REPRESENTATION. §21. An application made part of the policy con- tained " how often is account of stock taken, when was it last taken and what amount did it reach ?" Answer : " Ever>^ three months ; Ist January, 1872 ; $4,000." Held, that this could not be construed as a warranty obliging the assured to take an inventoiy precisely upon the expi- ration of every three months. Wynne v. Liv., Lond. & Globe Ins. Co.* 71 N. C. 121. 1874. § 22. Application being made part of policy both instruments must be construed together. Edwards v Farmers' Ins. Co. 74 111. 84. 1874. § 23. No part of an application can be regarded as a warranty unless made so by the contract of insurance. To do this the same stipulations must be inserted in the contract, or, if not so, the paper containing them must be referred to and adopted, so as to become part of the con- tract. Owens V. Holland Purchase Ins. Co. 56 N. Y. .565. 1874. 8. p. Co-operative Assoc, v. Leflore, 53 Miss. 1. 1876. Byers v. Farmers' Ins. Co. 9 Ins. L. J. 743. 1880. Ohio. § 24. A warranty should be construed without refer- ence to its effect upon the risk. Schultz v. Merchants' Ins. Co. 57 Mo. 331. 1874. § 25. Where an application, made a warranty, con- tained several answers to effect that "assured was the owner of the property, and that no other person was inter- ested," and in response to a question as to encumbrances stated " held by contract," and it appeared assured was in possession under a contract of sale, IleM, the several an- swers must be construed together, and that as plaintiff's interest was correctlv stated, there was no breach. Mc- Culloch V. Norwood, 58 N. Y. 562. 1874. § 26. Where distance between buildings is made a warrantv, if actually less than stated, there is a broach. Mamlokv. Franklin, 65 N.Y. 556. 1875. § 27. Where company after a loss, in consideration of the surrender and cancellation of the policy, agrees to pay WARRANTY AND REPRESENTATION. licy con- n was it Answer : " IhU, obliging the expi- Lond. perty, so are mate- lifies and ict could )pear not atements and that ny prom- was con- WARRANTY AND REPRESENTATION. 371 cerned, true when made hut afterwards departed from, it must appear that tlie change increased tlie risk. Redman V. Hartford Fire Ins. Co. 47 Wis. 89. 1879. § 89. Application made a warranty contained ques- tion as follows : " Is your property encumbered, by what, to whom, and what amount ? " Ans. " Vendor's lien of about $3,500." The wife of the vendor had a contingent right of dower in the property. Held, that this was not such an encumbrance as to constitute a breach of warranty, and policy cannot bo avoided upon the ground of conceal- ment or omission to state such fact. Southern Mut. Ins. Co. V. Kloeber, 31 Grat. 739. 1879. § 90. When a question in an application calls for title or interest, and the answer is " fee simple," made a warranty the fact that the wife of the assured's vendor has a contingent right of dower, does not constitute a breach. Southern Mut. Ins. Co. v. Kloeber, 31 Grat. 739. 1879. § 91. Policy contained provision as follows: "As- sured hereby covenants that the representation given in the application for this insurance contains a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property insured, and that if any material fact or circumstance shall not have been fairly represented," it shall be void. Upon the trial the judge instructed the jury, that if the repre- sentations in regard to the painting insured were falsely and fraudulently made and relied on by the insurer, and were untrue, it would void the policy, and that mere ex- pressions of opinion and belief were not to be taken as misrepresentations of fact. Held, no error. Wood v. Fire- men's Ins. Co. 126 Mass. 316. 1879. § 92. A representation that there is a solid brick fire- wall between each store in the building is one material to the risk. Sowden v. Standard Ins. Co. 44 Up. Can. Q. B. 95. 1879. § 93. Assured is not bound by a statement which he did not make and did not intend to make, but which he :i III I 11 i i . ■I'.i% In 372 WARRANTY AND REPRESENTATION. I ^ was induced to sign by the fraud of company's agent. In such case the assured may show the facts by parol evi- dence, and prevent the effect ot a breach of warranty. Eilenberger v. Pioteetive Mut. Fire Ins. Co. 89 Pa 404. 1879. § 94. When application made a warranty contains a statement that property is encumbered to the amount of $2,000, when, in fact, there is a mortgage of $3,400, there is a breach avoiding policy by the terras of the contract. Byers v. Ins. Co. 35 Ohio, 606. 1880. § 95. Company cannot avail itself of any breach of warranty to defeat an action brought upon an agreement to pay the loss made after the loss has occurred, and after the company has had opportunity to investigate the facts and circumstances without any interference, deception or fraud practiced by the insured at the time of the investi- gation. Stache V. St. Paul Fire Ins. Co. 49 Wis. 89. 1880. s. p. Smith V. Glen's Falls Ins. Co. 62 N. Y. 85. § 96. The application for a renewal, without notice of any change in the risk, is, in legal effect, a warranty on part of assured tliat no change, substantially increasing the risk, has taken place, policy containing usual condi- tion in regard to renewal. Brueck v. Phoenix Ins. Co. 21 Hun, 542. 1880. § 97. A broker applied for insurance with a paper in his hand which he used in describing the risk and answer- ing questions. The president, to whom the application was made, asked for a copy of this paper, which had been made by the broker two years previously to obtain insur- ance upon the same risk from another company. It con- sisted of a plan, with statements in relation to the risk. Copy was accordingly sent to defendant and policy was issued, which stated situation, cfec, " as per plan filed in office of M. P. Kollins (the broker), a copy of which is filed, No. 168,732, in this office." Policy^ provided that " the application, survey, plan or description of property referred to in this policy, shall be a warranty, «fec." A force pump was shown upon the plan so referred to. ileld^ that the application was oral ; that the leference to agent. In parol evi- warranty. ^9 Pa 404. contains a amount of ,400, there le contract. breach of agreement , and after ;e the focts jception or he investi- 89. 1880. lout notice arranty on increasing i^ual condi- Ins. Co. 21 a paper in nd answer- ipplication 1 had i)eeu )tain insur- y. It con- 3 tlie risk, policy was fin filed in f which is vided that f property Y,&cr A eferred to. eference to WARRANTY AND REPRESENTATION. 373 the plan did not make it a warranty in reference to the pump. That the reference to the plan was like the ordi- nary reference in a deed for the purpose of identifying the subject-matter, and ha** a similar meaning. Albion Lead Works V. Williamsburg City Ins. Co. 9 Ins. L. J. 435. 1880. U. S. Circuit, Mass. 8 98. § vo. Party in possession of insured premises under a valid subsisting contract of purchase is the equitable owner, and has an insurable interest, although he has not paid the whole consideration. He is not guilty of misrep- resentation, if he represents the house as his, and there is no breach of warranty if house is described in policy as •'his dwelling-house." Rumsey v. Phcenix Ins. Co. 17 Blatch. 527. 1880. § 99. Representation was that the mortgage was only $2,000. The truth was that it was $3,440, including $240 of accrued interest. Held, a representation material to the risk. Byers v. Farmers' Ins. Co. 9 Ins. L. J. 743. 1880. Ohio. § 100. Application made a warranty contained the ^' Uowing question and answer : " For what purpose used. State fully ? A71S. Dwelling." Held, that the question did not call for the present as distinguished from the ap- propriate use of the building. That the answer was de- scriptive, not of any present occupation or actual use, but simply of the class or character of the building. Wood- ruff V. Imperial Fire Ins. Co. 83 N. Y. 133. 1880. § 101. A representation as to a mortgage made a warranty if untrue avoids the policy, and it is not proper to leave Question of materiality to the jury. Marshall v. Times Fire Ins. Co. 4 Allen, N. B. 618. 1860. s. p. Byers V. Farmers' Ins. Co. 9 Ins. L. J. 743. 1880. Ohio. § 102. A false representation of encumbrance by mortgage upon tlie property insured is material to the risk. Ryan v. Springfield Fire Ins. Co. 46 Wis. 671. 1879. Byers v. Ins. Co. 35 Ohio, 606. 1880. ' ' % 'I 5'0 ih ■i ,1] r. 1 :i; 374 WARRANTY AND REPRESENTATION. ; ( i § 103. When wife insuring her own building in which she lived and controlled, and regarded herself as did the agent of the company, as the owner of the house- hold goods, her representation as to the latter, although not in a legal sense true, Held, not material to the risk. Continental Ins. Co. v. Ware, 9 Ins. L J. 519. 1880. Ky. § 104. Application made a warranty contained the following: "Is there any encumbrance by mortgage or otherwise, and for what amount ? " ^^Ans. Yes, 12,500." Policy was dated March 6, 1876. The mortgage was for $2,500, and all the interest due had heen paid ; but the in- terest thereon running from December 27, 1875, was un- paid. Held, that the representation as to amount was substantially true, and that there was no breach of war- ranty. Titus V. Glen's Falls Ins. Co. 81 N. Y. 410. 1880. § 105. By Mass. statute (L. 18G4 c. 196) warranty cannot be created by a reference in policy. The statements or representations relied upou must be stated in body of policy. Wheeler v. Watertown Fire Ins. Co. 10 Ins. L. J. 354. 1881. Mass. § 106. A statement in policy that building is used for storage of ice is not a warranty that ice is there stored when policy is written. Dolliver v. St. Joseph Fire Ins. Co. 10 Ins. L. J. 380. 1881. Mass. § 107. Knowledge by the company or its agent and the assured of the breach of a warranty at time it is made, does not relieve the assured from the consequences of the breach, and is no basis for reformation of the policy, unless there be a mutual mistake as to facts. The purpose in re- quiring a warranty is to dispense with inquiry and cast upon the assured the obligation that the facts shall be as represented. That which is a warranty in a policy cannot be shown by parol evidence to have been inserted by mis- take. Where the answer in a written application, and a warranty, is written by agent as made, there is no mutual mistake and no relief for assured, unless agent is guilty of fraud in deceiving hira into making it. Commonwealth Fire Ins. Co. v. Huutzinger, 10 Ins. L. J. 618. 1881. Pa. WARRANTY AOT) REPRESENTATION. 375 ildinor in herself as he house- although the risk. B80. Ky. lined the rtgage or , $2,500." e was for ut the ill- was un- ount was 1 of war- 0. 1880. warranty tatements body of Ins. L. J. ^ 18 used jre stored Fire Ins. § 108. Assured was bound by terms of the policy to " use only lard and tallow, or sperm or lard oils for lubri- cating, and to keep a force-pump on the premises, with a proper supply of good hose on hand." Held, that to make a forfeiture the breach must be a substantial one. That if the assured, in usual course of business, ordered lard and sperm oil for lubricating purposes, and believed they ob- tained and were using what they ordered, and if the oil used contained lard and sperm oil and (although com- pounded with a product of petroleum) was equally as good and safe as pure lard and sperm oil, there is no substantial breach of the condition as to lubricators. That the ques- tion as to whether there was a proper supply of hose or not, should be submitted to the jury. Copp v. German American Ins Co. 51 Wis. 637. 1881. § 109. Statement in policy that building is "situate detached 100 feet " is a warranty that it is distant 100 feet from any building. Burleigh v. Gebhard Ins. Co. 12 N. Y. Weekly Dig. 235. 1881. See Agent, § 101. Application, 8, 13. Cancellation, 22. Description, 4. Encumbrance, 21. Estoppel, 12, 14, 23. Fraud and False Swearing, 4. Mutual Company, 111. Other Insurance, 37. Overvaluation, 3. Pleading and Practice, 4,15, 2», 31. Questions for Court and Jury, 3, 4, 17. Refor- mation, 11. Risk, b, 12, 13, 20, 24. Title, 8, 43, 44, 50. Usage and Custom, 10. Waiver, 40, 50. Watchman. \m ,*'f the fire, ire was a igation to ustee were ity. First i N. Y. 45. bed of the ib, cooper- m the dis- i, and the >t covered ed as part and night the office. lises until office and he discov- >vatchinan sufficient to watch- 1875. d the fol- emises at WATCHMAN. 377 night and at all other times when works are not in opera- tion, or when the workmen are not present ? Ans. Yes." Held, to be a continuing representation, and that the watchman being withdrawn several weeks prior to fire constituted a breach of warranty. Whitlaw v. Phoenix Ins. Co. 28 Up. Can. C. P. 53. 1877. § 4. A warranty is as much controlled by conditions in the policy as a representation ; and if by its conditions the parties have agreed that alterations to avoid the in- surance must be within the control or with the knowledge of t': . assured, and such control or knowledge must be shown as an essential element of a breach of warranty in relation to a watchman who by the terms of the applica- tion made a warranty was kept upon the premises, but had been withdrawn a short time previous to the fire. Worswick v. Canada Fire Ins. Co. 25 Grant Ch. 282. 1877. § 5. Application made a warranty contained the fol- lowing : Q. " Is there a watchman in the mill during the night ; is the mill ever left alone ? " to which the answer was, "no regular watchman, but one or two hands slept in the mill. Held, that this was equivalent to an undertaking by the assured that one or two of his em- ployees lodged in the mill each night, although they were not regular watchmen, and furtljer that the same was a promissory and Continuing undertaking which hound the assured to a substantial compliance with its terms from the time the policy was delivered until the mill and ma- chinery were burned. Blumer v. Phoenix Ins. Co. 45 Wis. t)22. 1878. Id. 48 Wis. 535. 1879. See Agent, § 85. Questions fur Court and Jury, 4. Ml i I \ s \ I 1 I I' 1 1 1'l m [f^ I'. WHAT PROPERTY IS COVERED BY POLICY. § 1. Policy covering oil, "his own, in trust or on con- signment," covers loss upon oil in warehouse for which warehouse receipts had been given in favor of one Ruston, and by him assigned to the assured and npon which the assured had made advances to Ruston. Stanton v. -^tna Ins. Co. 17 L. C. Jurist, 281. 1872. § 2. Cotton was stored in warehouse at various in- tervals, fiictor receiving for each lot deposited warehouse company's receipt specifying number of bales, date, and mark on bales. These receipts were numbered ; that for a deposit on 20th June, 1,221, and on 27th June, 1,238. Policies of insurance were at once taken out to cover par- ticular number of bales deposited, loss being made pay- able to warehouse company as security for money ad- vanced. On one policy was indorsed in pencil in figures, 1,221, and upon the other, 1,238. Held^ that the insur- ance was specific and was intended to cover only the spe- cific number of bales in each deposit. Hough v. Peoples' Ins. Co. 36 Md. 398. 1872. § 3. Policy insured a frame steam saw mill and a spe- cific amount on " boiler, engine, machinery, and belting contained therein." Tliere was a planing machine in the mill in a shed, on the same floor with the machinery proper of the saw mill, about twenty-five or thirty feet distant, but connected with it by belting and plainly visible. Com- pany's agent, previous to issue of pt)licy, inspected the premises with a view to insuring, lleld^ that the planing machine was included in the term " machinery," as used in the policy. James River Ins. Co. v. Merritt, 47 Ala. 387. 1872. § 4. Property was described as "contained in the frame building known as the Hunt Building, situate in Northhampton, as per plan." At time policy was issued, BY POLICY. I'ust or on con- ouse for wbicli • of one Ruston, ipon which the tanton v. -^tna at various in- ited warehouse jales, date, and )ered; that for th June, 1,238. it to cover par- ing made pay- for money ad- encil in figures, that the insur- i^r only the spe- ugh V. Peoples' mill and a spe- y, and belting machine in the ichinery proper ;y feet distant, J visible. Com- inspected the lat the planing 3ry," as used in t, 47 Ala. 387. itained in the ing, situate in icy was issued, WHAT PROPERTY IS COVERED BY POLICY. 379 the main floor was divided into three stores, as shown on the plan, assured occupying the west store, the others by other persons. At time of fire assured occupied the whole floor, having removed the partitions. Company contended that policy covered goods in west store only. It was not shown or claimed that there was any increase of risk. Held, that language of policy included all tliiee of the stores ; that reference to the plan was for the purpose of showing situation of building in reference to other build- ings, and that assured was entitled to recover for all loss of or injury to goods, in any part of the building. Fair v. Manhattan Ins. Co. 112 Mass. 320. 1873. § 5. A company is liable for loss of a horse, although acquired after date of policy, which insured "live stock," •«-'' Mills V. Farmers' Ins. Co. 37 Iowa, 400. '^''^ ifec. 1873. § 6. Policy insuring a railroad company upon its wood and logs cut and piled along its line, does not cover and in- clude such property belonging to other persons, and set on fire by sparks from the locomotives, and to whom the rail- road company has paid the value of such property, it being liable therefor. Monadnock R. R. Co. v. Manufacturers' Ins. Co. 113 Mass. 77. 1873. § 7. Where statement in proofs was " stock in tan- nery, hides and leather, $56,500," it was held erior to as- sume that it referred exclusively to hides and leather. Planters' Mut. Ins. Co. v. Deford, 38 Md. 382. 1873. § 8. The word " machinery " covers all instruments intended to be operated exclusively by machinery in busi- ness of assured, and which are so operated from time to time in regular and ordinary prosecution of the business referred to in the policy. Movable dies worked by a press, and when not in use deposited or kept on shelves apart from the press, may be included in the term machineiy. Searing v. Central 'ins. Co. Ill Mass. 540. 1873. § 9. Policy insured $8,350 "on all or either of the freight buildings at Charlestown." One of them being burnt, Ildd, that company was liable for full amount of %: Hi m 380 r WHAT PROPERTY IS COVERED BY POLICY. the loss not exceeding the amount insured. Common- wealth V. Hide and Leather Ins. Co. 112 Mass. 136. 1873. § i 0. Policy insuring *' freight cars owned or used hy the railroad company " covers cars of another road in pes. session and used of the assured. Commonwealth v. Hide and Leather Ins. Co. 112 Mass. 136. 1873. § 11. Policy insured " property in freight buildings." One of its terms provided that books and furniture " are not to be insured, unless by special agreement." There were books and furniture contained in the freight build- ings and destroyed, but they were not specially insured. field, that assured could not recover for books and furni- ture. Commonwealth v. Hide and Leather Ins. Co. 112 Mass. 136. 1873. § 12. Policy insured steam barrel factory, manufac- tured barrels and materials for the same therein. It con- tained provision that camphene or burning fluid, coal oil, petroleum, or any of their products by whatever name des- ignated, unless otlierwise specially provided for, if used company would not be liable for damages occasioned by such use. The assured, for the purpose of storing and painting empty barrels, used a certain portion of the prop- erty in which at the time of the fire was a barrel of ben- zine, conceded to be one of the products of petroleum, whicji was used in their business. Held, that the word " materials " could not be construed to cover the benzine in the absence of proof that it was usually or commonly used in the manufacture of barrels. The presumption as to knowledge of company of the use of an article in busi- ness insured extends only to such articles or materials as are necessarily and usually employed in connection with such business. McFarland v. Peai)ody Ins. Co. 6 W. Va 425. 1873. § 13. A cellar wall is part of a building and covered by insurance of the latter. Ervin v. N. Y. Cent. Ins. Co 3 T. & C. (N. Y. Supr.) 213. 1874. § 14. Where policy covered ''machinery" of a paper mill, Held, that the word was used in its most comprehen- CY. Common. 136. 1873. I or used by road in pos. ilth V. Hide buildings." niture "are nt." There 'i^iit build- lly insured. and furni- [us. Co. 112 f, m^anufiic- in. It con- lid, coal oil, ir name des- for, if used tasioned by storing and >f the prop- rrel of ben- petroleum, t the word •he benzine commonly umption as icle in l)U8i- laterials as 3ction with J. G W. Va. nd covered nt. Ins. Co of a paper comprehen- WHAT PROPERTY IS COVERED BY POLICY. 381 sive sense and included all the machinery and tlie tools and implements used therewith in the manufacture of pa- per. Buchanan v. Exchange Fire Ins. Co. 61 N. Y. 26. 1874. § 15. Policy covered household furniture, beds, bed- ding, wearing apparel, and family stores. One clause in the policy provided that the company was not to be liable for loss on plate unless particularly specified. Certain sil- ver forks, tea and tablespoons being destroyed by fire, and not being specified in the policy, company claimed that it was not liable for their loss. Held, that such claim was not well founded. Hanover Fire Ins. Co. v. Mannasson, 29 Mich. 316. 1874. § 16. Policy covered a certain amount on barn, live stock, and one item covered $300 on grain in barn or in stack. Fire occurred by which wheat of the value of $300 was destroyed, which was stacked upon laud in the town of Chester, owned by the assured when the wheat was burned, but not when the policy was issued. Application upon which policy was issued contained the following specifications : "In the town of Chester, county of Dodge, State of Wisconsin. Description of land on which build- ings stand, Sec. 19, Town 13, Range 15." Held, that the contract in respect to the wheat in stack is not limited to that stacked within the curtilage of the buildings, nor to wheat grown on Sec. 19, nor yet to wheat grown or stacked on lands which plaintiff owned when the policy issued ; but that it was in terms an agreement to insure against loss by fire to his wheat in stack in the town of Chester; that defendant was liable. Sawyer v. Dodge County Mutual Ins. Co. 37 Wis. 503. 1875. § 17. Policy covered grain, flour and fixtures consist- ing of working tools. Held, that paper bags were not cov- ered by the term " tools." Hutchinson v. Niagara District Ins. Co. 39 Up. Can. Q. B. 483. 1876. § 18. Policy covering " stock of hair, wrought, raw, and in process," does not extend to fancy goods made of other materials, although such as are usually kept and sold 1 ■■,«, ' I' m T^ 4;!fi li .fit! If 1' m m i \ WHAT PROPERTY IS COVERED BY POLICY. in a retail hair store. Medina v. Builders' Mut. Ins. Co. 120 Mass. 225. 1S7C. § 19. A heater, bricked in, is properly included in estimate of value of a buildinjjj. Adams v. Greenwich Ins. Co. 9 Hun, 45. 1876. Affi'd, 70 N. Y. IGti. § 20. The question whether " boots and shoes, hats and caps," are embraced in the term " dry goods," may be prop, erly left to the jury, there being evidence of usage and custom and understanding of the term in trade. Bassell V. American Fire Ins. Co. 2 Hughes, 531. 1877. § 21. Policy insured "on risk of hay in haggard at rear, £400. On smaller risk of hay in said haggard, £200." Held, to apply only to specific risks existing at date of policy. Gorman v. Hand-in- Hand Ins. Co. Irish Rep. 11 C. L. 224. 1877. § 22. Policy on a "mill" covers both building and effects, and movable machinery in it. Shannon v. Gore District Mutual Fire Ins. Co. 2 Tupper, 39G. 1878. Rev'g 40 Up. Can. Q. B. 188. § 23. Policy insuring "fixed and movable machinery, engines, lathes, and tools" covers wooden patterns which, from their size and shape, admit of being applied and managed by the hands of one man. And such patterns are covered, notwithstanding a clause excepting company fi'om liability on "jewels, plate, watches, medah, patterns, sculpture, casts, models, or curiosities, unless particularly specified. Lovewell v. Westchester Ins. Co. 124 Mass. 418. 1878. § 24. Policy describing property as " his own or held by him in trust," covers a piano left with assured for sale or to rent. Snow v. Carr, 61 Ala. 363. 1878. § 25. Policy insured as follows : $500 on their brick pottery building and ells, three stories with basement and flat roof; $500 on machinery, shafting, belting, machines, and all implements used in their business ; $9.')0 on stock in trade, consisting principally of earthenware, and on ma- [CT. Tut. Ins. Co. included in Greenwich GO. 5es, hats and aay 1)6 prop. I sage and le. Bassell 77. haggard at ?ard, £200." at date of ish Rep. 11 Liilding and lion V. Gore 378. R WHAT PROPERTY IS COVERED BY POLICY. 383 xevg machinery, erns which, ipplied and 3li patterns ig company Is, patte7'?is, particularly 124 Mass. >wn or held ed for sale their brick lement and , machines, on stock and on ma- terials for manufacturing the same ; $50 on oflBce furniture, including safe, contained in said building, situate, &c! The factory consisted of two large three-story brick build- ings, connected by a three-story wooden corridor six feet wide and fifteen feet long. One of these buildinn existence )rior policy ;nd increase prior insiir- Held, error ; was avoid- ition subse- election of d not, ipso rtown Fire ion provid- er insurance a providing ixistence of r insurance, s was made intiff. The ce by mort- nsured was er company fs covenant ere was de- ult only by r some sort 1 Ijy him of 18 to make t" the mort- Ooran as to I' insurance, t condition, ipportioned trial court ire Ins. Co, SUrPLBMBNT. OVERVALUATION. 401 § 1. Overvaluation to render insurance void must not only be extravagant, but must have been intentionally made in bad faith. The question is proper to be deter- mined by a jury, and their verdict is conclusive. Miller v. Alliance Ins. Co. 7 Fed. Rep. 649. U. S. Circuit, N.Y. § 2. Condition provided that if assured should insure his property, or cause the same to be described otherwise than as it really exists, to prejudice of company, or shall misrepresent or omit to communicate any circumstance which is material to be made known to the company in order to enable them to judge of the risk they undertake, such insurance shall be of no force in respect of property in regard to which the misrepresentation or omission is made. In application assured stated value to be $900, and obtained insurance for $600. Jury found that actual cash value was $450, but that assured's representation was made in good faith, and that he had not been guilty of any fraud. Held, that the question of value was a material fact, and the representation being untrue, policy was thereby rendered void. That it was immaterial whether such representation was in good faith or fraud- ulently made. Sly v. Ottawa Agricultural Ins. Co. 29 Up. Can. C. P. 557. 1879. See a. c. 29 Up. Can. C. P. 28. PAROL CONTRACT. § 1. Plaintiff, a merchant, discounted paper with his bankers on security of warehouse receipts, and at same time signed an application for insurance upon the prop- erty, to be held by the bank as additional security. The bank's agent was also agent of the defendant. The agent either charged plaintiff with premium or received it in cash, but did not then liU up and sign any interim receipt or any other wi'itten contract, stating he was too busy to do so. Home office of defendant was advised of the in- surance, but not of the mode of effecting it, and after the losi agent filled up and delivered an interim receipt. Vol. II.-20 ■ ii \ k Hi i: , ^! !• ;| i'l ::'l; .. : f;^ Sfi'll ■ H I T vmt ; i' 402 SUPPLEMENT. There was no evidence of any express authority to the agent to enter into verbal contracts, while application stated that insurance was on usual terms and conditions of the company. One of these conditions was that no receipt or acknowledgment of insurance should be bind- ing unless made by and on one of defendant's printed forms, and signed by their authorized agent. Held, tliat the question of liability must be tested or considered as it stood at time of fire, and that tliere was no sufiicient con- tract of insurance. Parsons v. Queen Ins. Co. 29 Up. Can. C. P. 188. 1878. § 2. When by conversation of applicant with agent, the mutual understanding is that future insurance is to be made in usual way by force of written policies, and the choice of companies and management of details are left to the agent, a promise by him " to keep applicant insured " is inoperative to effect a sufficient parol contract of insurance. Sargent v. National Fire Ins. Co. 10 Ins. L. J. 852. 1881. N. Y. § 3. The extent of agent's authority was permission granted to him by company to solicit and receive appli- cations for insurance, which were to be presented by him to the company for consideration, and if accepted he would be entitled to a certain commission. An applica- tion was signed and delivered to this agent, who stated to applicant, on receiving it, that " risk attached from noon of that day." Application was not presented to company until next day, but during the meantime prop- erty wur. destroyed by fire. The application was rejected, and applicant brought suit and sought to maintain it on a parol contract with the agent. Held, that agent had no authority to bind the company by contract. To con- vert a proposition into a contract, it is not sufficient to show strong probability that it would have been accepted ; acceptance, actual, final and irrevocable, must be proved. Stockton V. Firemen's Ins. Co. 10 Ins. L. J. 834. 1881. La. ty to tlio pplication ;onditioim 3 that no be bind- s printed lldd, that ered as it 3ient con- ' Up. Can. til agent, nee is to icies, and etails are applicant 1 contract 10 Iu8. L. erraission [ve appli- by him pted he applica- lo stated led from lented to me prop- rejected, in it on rent had To con- icient to .ccepted ; I proved. 1881. SUPPLEMENT. rSEMIUM. 408 § 1. A condition which provides that no insurance shall be considered to be binding until actual payment of the premium, is not governed by the statute relating to conditions of insurance or variations. That Act relates to contracts of insurance which have been made. The above condition refers to a precedent act to be done, with- out which there is to be no contract. Geraldi v. Provin- cial Ins. Co. 29 Up. Can. C. P. 321. 1878. PROOFS OF LOSS. § 1. Denial of all liability waives proofs of loss, and also clause limiting time in which suit must be brought. It is a well settled principle of the law of contracts, as ap- plicable to contracts of insurance as to any other class of contracts, that if one party to a contract gives notice that he will not perform his part, such refusal is of itself a breach of the contract, and the other party in suing upon it need not allege performance or readiness to perform con- ditions which he would have otherwise been required to perform, or offer to perform, before commencing suit. Home Ins. Co. v. Gaddis, 10 Ins. L. J. 774. 1878. Ky. § 2. When condition of insurance requires statement of loss to be sworn to by assured, his failure to make such oath renders statement defective in a material respect. Spooner v. Vermont Mut. Ins. Co. 12 Rep. 764. 1881. Vt. s. 0. 10 Ins. L. J. 737. § 3. Defects in proofs of loss must be specifically point- ed out ; otherwise they are waived. Argall v. Ins. Co. 84 N. C. 355. 1881. § 4. When assured has made an honest mistake in his proofs of loss as to a material fact, he may on the trial give evidence to correct it, where it will not operate as a surprise to the company. The mistake in this case related to cause and origin of fire. Waldeck v. Springfield F. and M. Ins. Co. 12 Rep. 768. 1881. Wis. 8. o. 10 Ins. L. J. 930. 404 SUPPLEMENT. ! \ i > § 5. The effect of failure to object to proofs of loss as a waiver cannot be obviated or removed by fact that de- fects were not known at time. It is the duty of company or its agent to ascertain whether proofs furnished comply with condition. Miller v. Alliance Ins. Co. 7 Fed. Rep, 649. 1881. U. S. Circuit, N. Y. § 6. Assured, having been misled by acts and declara- tions of companv's adjuster, is excused from furnishing proofs of loss within the thirty days as prescribed by policy in suit. This may be so held on the ground of " mistake " under Insurance Policy Act, R. S. O. cL. 162. Robbins v. Victoria Mutual Ins. Co. 31 Up. Can. C. P. 562. 1881. § 7. Policy required that proofs of loss should be made and forwarded to company as soon as possible after the happening of the fire by which loss occurred. The fact was that proofs thus required were not furnished until nearly three months after the fire. There was some evidence explanatory of the delay. Held, that without such evidence lapse of three months would be too late, but that with it, the question as one of reasonable time was proper to be submitted to and determimed by the jury. Home Ins. Co. v. Davis, 10 Ins. L. J. 754. 1881. Pa. See Waiver, § 4. I PLEADING AND PRACTICE. § 1. Report of referee as to facts is, like verdict of a jury, conclusive in a case of conflict of evidence, and is, like such verdict, to be set aside only when the finding of fact is clearly against the weight of evidence. Putnam v. Commonwealth Ins. Co. 18 Blatch. 368. 1880. § 2. Where terms of policy are set out in declaration, specific performance of all conditions precedent must be averred, otherwise demurrable. Perry v. Phoenix Ins. Co. 24 Alb. L. J. 519. 1881. U. S. Circuit. § 3. When terms of policy are set out in declaration, compliance with conditions precedent must be specifically fs of loss as st that de- )f company led comply Fed. Rep, nd declara- furnishing scribed by ground of 0. c::. 162. Can. C. P. should be isible after rred. The furnished was some it without too late, aable time ed by the .'54. 1881. irdict of a ce, and is, finding of Putnam v. eclaration, b must be ix Ins. Co. eclaration, pecifically SUPPLEMENT. 405 averred, otherwise pleading is bad on demurrer Perry V. Phoenix Ins. Co. 8 Fed. Rep. 643. 188 1. U. S. Circuit iV. 1. § 4. Form of case agreed upon for submission to Court —a case stated for the opinion of the Court in the nature of a special verdict. Hagaman v. AUemania In? Co 10 Ins. L. J. 838. 1881. Pa. § 5. Complaint should not only aver an insurable in- terest at time of issue of policy, but also at time of loss. Home Ins. Co. v. Duke, 10 Ins. L. J. 857. 1881. Ind. Questions fob Court and Jury. See OTervaluation, § 1 ; Proofs of Loss, 7. REFORMATION. § 1. To warrant reformation of policy mistake must be mutual, and the facts necessary to prove such mistake must be established by clearest and plainest evidence. Farmer's Ins. Co. v. Butler, 24 Alb. L. J. 399. 1881. Md. § 2. When agent of company intrusted with power to make and issue policies, and the assured fully and frankly discloses all facts material to the risk, and the agent in making out the policy, through fraud or mistake, fails to state such facts, such error or fraud cannot be relied upon as a defense, and a court of equity will reform the policy so as to make it express the real contract between the parties. Ben Franklin Ins. Co. v. Gillett, 24 Alb. L J. 518. 1881. Md. REMOVAL CAUSES TO UNITED STATES COURT. § 1. A uniform rule to be drawn from the various de- cisions upon question of right of removal to U. S. Circuit Court under Act of Congress, 1875, is about as follows in substance : The latest term at which a cause can be removed is at the first term when it is at issue on its merits, or T -m }■■! yi ?!■ 406 SUPPLEMENT. should be at issue but for the fault of the petitioner. Whether the business of the Court will admit of the case being then tried, or the parties are otherwise ready, are not material iuquiries. If the issue is not made up until after the term fixed by the law of procedure of the State as the trial term, the cause cannot be removed. Wheeler V. Liv., L. and G. Ins. Co. 10 Ins.L. J. 794. f* 1881. N. H. RENEWAL. § 1. Renewal by company or its agent with knowl- edge of forfeiture, waives it. Law v. Hand-in-Hand Ins. Co. 29 Up. Can. C. P. 1. 1878. Sliafer v. Phcenix Ins. Co. 12 Rep. 736. 1881. Wis. Sec Warranty and Representation, § 8. Repairs. Bee Increase of Risk, § 2. RISK. 8 1. Policy insured certain household furniture de- scribed as "all contained in Louse McMillan St., Providence, R. I." At time of fire furniture had been re- moved and was in another house. Defendant was not informed of the removal. Plaintiff nonsuited on ground that contract was that goods should remain in or be in house on McMillan Street. Held., that there was no war- ranty in description as to location, and that liability of company was not limited to a loss in tlie particular house described. To thus limit lial)ility company should have expressly prohibited removal without consent. Lyons v. Providence Ins. Co. 10 Ins. L. J. 733. 1881. R. I. • STORING AND KEEPING. § 1. During occupation of store by assured he used kerosene and naphtha for j)urj)ns(! of lighting the same, using naphtha for the first wei'k he was there, and kciro- sene for remainder of the time. During same period naphtha was also used in the store by a stranger, to (!x- SUPPLEMENT. 407 ►etitioner. the case eady, are up until he State Wheeler I N.H. b knowl- land Ins. oenix Ins. liture de- illan St., been re- was not n ground I or be in 3 no war- ibility of lar house uld have Lyons v. I he used ;he same, md k(!io- e period er, to (!x- hibit a stove of which he had the agency. There was no naphtha on premises at time of fire, nor any kerosene, ex- cept a small quantity used for purpose of filling lamps in store. Kerosene was permitted for lights. Condition provided that " if in said premises there be kept * * * petroleum, naphtha, gasoline, benzine * * * o^ there be kept or used therein, caraphene, spirit gas, or any burn- ing fluid, or any chemical oils, policy should be void. Ilel^, that the naphtha was not kept within meaning of condition ; that the term meant keeping as objects of mer- chandise or manufacture. That the naphtha could not be deemed to be a hurtling fluid under last clause of condi- tion ; being specifically named in first part, it could not be so assumed without evidence that it was so known. That the clause against keeping or using should be con- strued as affecting the policy only so long as the articles are kept or used. Putnam v. Commonwealth Ins. Co 18 Blatchf. 368. 1880. » * § 2. Policy contained condition that, if * " petroleum, fluid, or crude earth or coal oils * should be used or kept, it should be void, except kerosene oil may be used for lights in dwellings." Property insured was a factory. There was no permission in policy to use any kind of oil. At time of fire there were used for lights two ordinary lanterns filled with " headlight oil." Held, that headlight oil being a refined petroleum product, was within the condition, and its use constituted a breach. Couch V. Rochester German Ins. Co. 13 N. Y. Week. Dig. 254. 1881. N. Y. Sup. § 3. Issue by company with knowledge of use of pro- hibited article, operates as a waiver of the condition, and if such knowledge is possessed at time of issue of policy, it is immaterial how or when acquired. Couch v. Roch- ester German Ins. Co. 13 N. Y. Weekly Dig. 254. 1881. N.Y. Sup. SuniiOGATION. See Who May Sue, § 3. 408 SUPPLEMENT. i n Ir s :tl, ill I J 4 !r i^ 1 ■ I Brogan v. Maniifecturers' & Merchants' Fire Ins. TITLE. § 1. Clause in policy making loss payable to a third party is notice to company of such party having some in- terest. Parson v. Queen Ins. Co. 2d Up. Can. 188, 210. 1878. § 2. Application contained following : " Q. State nature of your title; whether fee simple, &c. If others are interested, give name, interest and value? Ans. Owner. Q. What incumbrance, if .any, is now on the property? Ans. $60, balance of payment, to be paid in four years." It appeared that assured had purchased the land from a minor for $60, to be paid for and deed to be delivered in four years, when minor became of age ; that house was so built as to be capal)le of removal. AH these facts were known to company's agent when policy issued. Held, that defense of fraudulent representation was not sustain able. Co. 29 Up. Can. C. P. 414. 1878. § 3. Semble, that when insurance is obtained upon a written application, although assured may have therein agreed to be bound by conditions of policy, the condition requiring statement of interest when not sole and uncon- ditional ownership, is inoperative when assured was not questioned in regard to title, «fec., in the application. O'Neill V. Ottawa Agricultural Ins. Co. 30 Up. Can. C. P. 151. 1879. § 4. A representation that assured "owns land in fee Bimple," is not rendered untrue by the fact that price has not been paid, he holding a deed. O'Neill v. Ottawa Agricultural Ins. Co. 30 Up. Can. C. P. 151. 1879. § 5. Assured was in possession of certain furniture under a contract of purchase, with condition that title was not to pass until price was paid. Loss was made payable to vendor as interest migiit appear. Policy contained clause that if the interest of assured, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or other- wise, be not truly stated, it should be void. Assured rep- resented property as hers. Held, that insurance was void. to a third y some in- 188, 210. Q. State If others 18. Owner, property ? ur years." nd from a livered in ise was so 'acts were d. Held, >t sustain- Fire Ins. id upon a e therein condition id uncon- I was not •plication. :!an. C. P. md in fee price has . Ottawa 79. furniture i title was 3 payable contained 18 owner, or other- ured rep- wan void. SCrPLEMBNT. 409 That while assured had an insurable interest, it was not truly stated as required. That the clause making loss payable to vendor was not equivalent to notice that he owned the furniture. At most it implied that he had some lien or some interest in the furniture which was con- sistent with title and ownership in assured. Lasher v. St. Joseph F. & M. Ins. Co. 13 N. Y. Weekly Dig. 146. 1881. N. Y. Ct. App. B. c. 10 Ins. L. J. 845. § 6. Policy provided that " if the interest of the as- sured be any other than the entire, unconditional, and sole ownership, for use and benefit of assured, * * * it must be so represented and expressed in policy, otherwise it should be void. Defendant offered to prove that grantors of plaintiffs grantor were only entitled to an easement in the property. Evidence was excluded. Held, no error ; that offer was only in substance to prove a de- fective title. The condition in question refers to extent of the insurable interest of plaintiff, and not to validity of his title. So long as he had, under claim of right, exclu- sive use and enjoyment of the insured property, without any assertion of an adverse right or interest in it by any other person, he was the owner of the property. Miller V. Alliance Ins. Co. T Fed. Rep. 649. 1881. U. S. Cir- cuit, N. Y. See Mortgagor and Mortgagee, § 2. Waiver, 6. Use and Occupation. See Increase of Risk, § 3. Warranty and Representation, 8. VACANT OR UNOCCUPIED. § 1. Condition provided that " this policy shall not cover unoccupied buildings unless insured as such, and if premises insured shall be vacated without consent in- dorsed * * * " insurance should be void. Assured having left premises for temporary purpose of attending funeral of a friend, Held, that there was no breach of the conditions. Franklin Fire Ins. Co. v. Kepler, 10 Ins. L. J. 784. 1880. Pa. .If m 1 410 8UPPLEMBNT. hi i ■ WAIVER. § 1. The fact that a statute makes policy void in cer- tain event8, does not prevent a revival thereof by acts rec- ognizing its continued existence, and dealing with as- sured, and allowing him to pay money or alter his posi- tion on the assumption that he is still insured. Law v. Hand-in-Hand Ins. Co. 29 Up. Can. C. P. 1. 1878. § 2. Policy having been assigned before a loss with- out written consent, as required by its terras, but with verbal assent of the agent, Held, that validity of contract must be determined by law and not by stipulation be- tween the parties ; and although parties may agree that a contract which they have voluntarily reduced to writing shall not be altered or modified unless the agreement for such alteration or modification be evidenced by writing, yet a subsequent agreement by parol to alter or modify will be as valid if no stipulation had been in the original contract, and it follows that having consented by parol to the transfer, defendant is as much bound as if its con- sent was in writing. Home Ins. Co. v. Gaddis, 10 Ins. L. J. 774. 1878. Ky. Co7itra, Walsh v. Hartford Ins. Co. § 23, page 346. § 3. There is no waiver of objections to a certificate by retaining it sixteen days after its receipt before mak- ing the objection, assured having an opportunity to cor- rect or amend the defect. Gilligan v. Commercial Ins. Co. 20 Hun, 93. 1880. AflS'd by N. Y. Ct. App. (without opinion) 24 Alb. L. J. 480. § 4. Where a written agreement for appraisal states expressly that it is to determine amount of loss only, and that it is made without reference to other questions or matters of difference, the submission cannot be construed as a waiver of defects in proofs of loss. Gilligan v. Com- mercial Ins. Co. 520 Hun, {>3. 1880. Affi'd by N. Y. Ct. App. (without opinion) 24 Alb. L. J. 480. § 5. Policy requiring consent in writing to an in- crease of risk notice to agent does not operate as a waiver SUPPLEMENT. 411 oid in cer- y acts rec- with as- r his poai- . Law V. 78. loss with- but with f contrast [lation be- ree that a ;o writing ement for jr writing, )r modify e original by parol f its con- 10 Ins. L. I Ins. Co. certificate fore mak- ty to cor- l1 Ins. Co. (without isal states only, and istions or 3onstiued 1 V. Com- N. Y. Ct. to an in- a waiver of such a condition. Pottsville Mut. Ins. Co. v. Horan 10 Ins. L. J. 771. 1881. I 6. If assured correctly states his interest in property at time he obtains the insurance, it operates as a waiver of the condition requiring it to be stated in policy of any other or less than absolute ownership. Bredow v. Erie Co. Mut. Ins. Co. 18 N. Y. Weekly Dig. 211. 1881. N Y.Sup. See Encumbrance, § 2. Evidence, 1. Mutual Company, 5. Other In- surance, 3. Proofs of Loss, 1, 3, 5, 6. Renewal, 1. Storing and Keeninff 3. Title, 3. ^ ^' WARRANTY AND REPRESENTATION. § 1. Policy contained condition that if applicant should make an erroneous or untrue representation or statement in application or diagram, or omit to make known any fact material to the risk, policy should be null and void. Company set up breach of warranty in stating that there were no buildings within one liundred feet of insured property other tlian those mentioned in ap- plication, survey, and diagram, whereas there were other buildings. Application contained a number of questions, none of which referred to existence of buildings within one hundred feet. Below questions was a square space headed " Diagram," with a note at side, " Give all ex- posures within one hundred feet, and mark distances be- tween buildings." At foot of application " it is hereby expressly agreed and warranted that each and every of the answers as above made is true, and that the same and this application, survey and diagram shall be part of the in- surance contract and policy, and that the foregoing is a fiill, just, and true exposition of all facts and circumstances, condition, situation and value of property to be insured, so far as the same are material to the risk." Held, that warranty set up was not established. That application showed that only warranty was as to the answers to questions none of which related to distance of buildings; and that assured was bound only to make known such * 4 412 SUPPLEMENT. ; t' buildings a5 vveie material to the risk. Wilson v. Stand- ard Ins. Co. 29 Up. Can. C. P. 308. 1878. § 2. Although by statute when an indorsement is made upon a policy, it does not become a part thereof as a warranty, it becomes so on renewal authorized by the same statute. Gauthier v. Canadian Mut. Ins. Co. 29 Up. Can. C. P. 593. 1878. § 3. Property was insured as a tenement dwelling. By an indorsement, subsequently made, building was al- lowed "to be occupied as a refreshmeut room — no liquor sold." Building was occupied by a tenant, and liquor was sold by him, but without knowledge or consent of assured. Held^ that indorsement created a warranty, ana inat there was a breach avoiding the insurance. Gauthier v. Mutual Ins. Co. 29 Up. Can. C. P. 593. 1879. § 4. Assured stated in application that there was only one stove in the insured premises, when in fact there were two. Held^ an untrue statement, avoiding the in- surance. O'Neill V. Ottawa Agricultural Ins. Co. 30 Up. Can. C. P. 151. 1879. § 5. Policy referred to application and survey as part of it. Back of application was hearlod (''nf^ram, with directions as to filling up. Ther w e two Imildings, one 18x20, and another smaller > thin the j't-escribed distance, omitted from the diagri; Semhle^ th: diagram was part of application within m^ iiing o^ condition mak- ing statements in application wari-antic > ; that the omis- sion of the two buildings constituted a breach of warranty ; but that a statement of distance between buildings as 190 feet instead of 178 feet was so slight as to be immaterial O'Neill V. Ottawa Agrcultural Ins. Co. 30 Up. Can. C. P. 151. 1879. § 6. Application contained following: "^. Is there reason to fear incendiarism, or has any threat been made ? Ans. No," It appeai'ed from tiie evidence that about a week before application was made for the insurance, that a servant of assured had threatened to beat him, and lat- ter being a nervous imd timid man, being alarmed, ob- SUPPLEMENT. 413 1 V. Stand- rsemenfc is thereof as sed by the Oo. 29 Up. dwelling, ng was al- -no liquor liquor was of assured. itiiit there V. Mutual there was fact there 3g the in- :!o. 30 Up. survey as nam, with buildings, f»rescribed diagram ition mak- the omis- warranty ; igs as U>0 [imateriaL Can. C. P. . Is there Jen made? t about a ance, that 1, and lat- irmed, ob- tained the insurance ; that he had set up and watched for a night, and that he believed premises were set on fire. Held, that plaintiff was not entitled to recover ; that hav- ing admitted his own lielief in the danger and acted upon it, his answer to the question in the application was un- true. Campbell v. Victoria Mut. Fire Ins. Co. 45 Up Can. Q. B. 412. 1880. § 7. Condition provided that " company would not dispute the correctness of any diagram or plan prepared by its agent from a personal inspection." Application re- quired assured to state all buildings within one hundred feet of insured building, and assured omitted to state ex- istence of a small building used for storing coal oil within that distance. A diagram was made and filled in by agent and signed by him in his own name as well as that of assured, but no reference was made to this building. Diagram was not made from a personal inspection at the time, but from a previous inspection and knowledge there- by acquired. Held, that even if assured under above con- ditions would be relieved from effect to make known the building in question, when there was a personal inspection by the agent, there was none in this case, as condition re- quired it to be one made for the purpose of this particu- lar insurance. Quinlan v. Union Fire Ins. Co. 31 Up. Can. C. P. 618. 1881. § 8. Property was insured as a frame building situ- ate on west side of Liberty street in village of Fairhaven, Vermont, as per diagram No. 134,767 on file in this office. Policy provided that any plan, survey, or description, of property, referred to should be considered as a part of it. The diagram referred to was a map or plan in which property insured was laid down as being on one side of Liberty street, with a dwelling-house on one side, about thirty feet distant, a hotel barn on the other side about fifty feet distant, and hotel on same side, distance not in- dicated. There was a barn or stable at that time stand- ing nineteen feet from the insured property, which was not represented in the diagram. The distance between the hotel barn and insured property was actually 36^ feet as found by the referee, instead of 50 feet as stated in dia- \ 1 1 H' ; I 414 SUPPLEMENT. gram. Ileld^ tliat there was a breach of warranty in re- spect to the diagram, and that plaintiff could not recover. Gilligan v. Commercial Ins. Co. 20 Huu, 93. 1880. Affi'd by N. Y. Ct. of App. (without opinion) 24 Alb. L. J. 480. § 9. If by terms of policy misrepresentations are con- verted into warranties by stipulation, an untrue answer will avoid the policy, without reference to materiality, Graham v. Firemen's Ins. Co. 13 N. Y. Weekly Dig. 338. 1881. N. Y. Ct. App. Sec Risk, § 1. WHO MAY SUE. § 1. When policy is issued to a mortgagor with the loss payable to the mortgagee, suit must be instituted in name of former, and cannot be instituted in name of party to whom loss is made specifically payable. The contract is with the mortgagor, and any violation hjhim of its con- ditions voids the insurance. Friemansdorf v. Watertown Ins. Co. 1 Fed. Rep. G8. 1879. § 2. The provision in policy making loss payable to a third party operates to enable company in fulfillment of that covenant to pay party named, and set up such pay- ment in an action by assured. But if loss is not s' paid, a breach of the covenant with assured is committed and he is the pei'son in whom the right of action for such bleach is vested ; he is the proper person to sue. Mc- Queen V. Pha3nix Mut. Fire Ins. Co. 4 Can. Sup. 660. 1880. § 3. Several insurance companies upon payment of a loss, caused by negligence of a third party, become subro- gated pro tanto to claim of assured against wrongdoer. Where common law procedure prevails action of insur- ance companies would necessarily be brought in name of the insured. But under Code of Practice (Wis,) companies must be joined with assured as plaintiff, unless made de- fendant, on acc'^unt of refusal. Pratt v. Radford, 52 Wis. 114. 1881. ity in re- } recover. I. 1880. 4 Alb. L. 8 are cou- e answer Eiteriality, Dig. 338. with the sitiited in ! of party ! contract of its con- atertown ayable to llment of mch pay- b s' paid, tted and for such ;ue. Mc- 5up. 660. ment of a ne 8ubro- rongdoer. of insur- inieof the ompanies made de- , 52 Wis. INDEX. ' I INDEX. The Utiferences are to Pages and Scdionn. ACTION, on adjustment, 3 § !). not maintainable on policy after adjustment and payment without firs!- return of the money, 2 § 5. parties to, (Sec Wno may Sue.) ADJUSTER, acts and declarations of, 3 § 8; 105 § 19; ItO § .)3. authority of, as to criminal proceedini^s, 9 § !J4. authority to waive limitation clause, 10 § 37. inducing assured to delay proofs, 97 § 19. representations of, ;58 § 12. waiver by, 224 § 42 ; SIC. § 22 ; 348 § 27, 3:j. (See Adjustment.) ADJUSTMENT, authority of agent, 2 § 8 ; 4 g 8 ; 1 1 § 44 ; 10 § 70. effect on limitation clause, 358 § 27. elfect of, on breach of warranty, 358 § 27; 372 § 95. estoppL 1 by, 93 § ; 99 § 32. evidence o^f experts in, 107 § 34; 112 § 07. made subject to terms and conditions of policy, 2 § 4. as an agreement must bind both parties, 1 § 2. ert'ect of company joining in, 7!) § 19. does not ])rcvent "tfect of violation of conditions, 2 § 0. no evidence of value as to third parties, 2 § 7. action does not lie upon, alone, 2 jj 9. may be adopted by jury as evidence of value, 102 § 3. and payment is an accord and sitisfaction ; if no fraud a bar, 3 § 13, procureil by fraud not binding, 3 § 11. evidence neceasary to sustain count on, 2 § 10, rescission of, obtiinetl by fraud, 1 § 1. Willi minor obtained by frauil. 2 § 5. with firm tlirtugli a minor, 3 ^ 5. no a Uion maintainable on policy without first returning money re- ceived, 2 § 5. waiver in. 348 § 32 ; 349 § 39 ; 350 § 40. witli assured does not bind mortgigeo, 180 § 30. receipt binding only as to amount paid on particular item, 1 § 3. ADMfNISTRATOR, when may sue, 384 § 2 ; 388 g 15, 10. AOENT, authorityof, 5§ 11, 12;0§l0;7§18;10§3fl: 14 §60,61; 15 §64, 05, 00 ; 17 § 75 ; 18 § 80, 85; 389 i5 1. facts necessary to establish authority of general, 9 § 32, 33 ; 1 1 § 43. acts within apparent scope of authority binds company, 11 § 47. Vol. II.— 27 ill 418 INDEX. AGENT— cantinv^d. adoptiou of arbitrator not within apparent scope of authority, 4 § 8. authority not limited by written instructions, 4 § 5. autliority not qualified by word "surveyor," 1] § 48. df^legation of authority, 9 § 28; 13 § 54. authority of, established by custom, 4 § 3. commission to two, jointly expires on death of oi;e, 4 § 4. clerk ot, Irinds company, 5 § 10. authority, question Cor jury, Id § 56. authority under Maine statute, 2u § 95. authority as to adjustment, 4 § 8; 11 § 44; 16 § 70. authority of, to write out of territory, 21 § 102. authority to waive written consent, 10 § 35. authority to waive limitation clause, 10 § 37. authority of, in reference to estoppel, 93 § 1. authority to waive proofs, 11 § 46. authority to consent to otiier insurance, 20 § 93. autliority to institute criminal proceedings, 9 § 34. authority assignment, 8 § 25. authority, notice of loss, 8 § 26. authority to cancel, 6 § 14; 10 § 41 ; 300 § 2. authority to revive cancelled policv, 15 § 68. authority of, to make parol contract, 7 § 24; 13 § 58; 230 § 5; 232 § 9; 234 § 22; 236§ 33, 34; 401 i5 1 ; 402 § 3. authority to waive, 11 § 44 ; 16 § 70; 17 § 76 ; 18 § 84 ; 22 § 104 ; 410 § 2. broker of assured, 19 tf 86. broker may be company's agent. 4 § 2; 5 § 9; 14 § 59. cannot be of both parties, IS § 83 ; 19 § 91 ; 21 § 100. solicitor of agent of company, 19 § 87. countersigning by partner of agent in firm name, § 15. countersigning by, 7 § 19. effect of agency clause in policy, 9 § 31 ; 10 § 43; 13 § 57; 14 §61,63; 15 §67; 17 §79; 18 §81; 19 § 90. effect of representation as to the law, 277 § 18. knowledge of, as aflecting terms of policy, 14 § 63; 16 § 71; 112 §65; 227§54 ; 323§4; 325§9; 326§ 12; 337 § 18 ; 313§2; 343 § 8 ; 344 § 11, 15 ; 394 § 1 ; 399 t? 5 ; 400 § 3; 410 § 2. knowledge of breach of warranty, 360 § 34, 35, 37; 361 § 39, 40, 41. knowledge of, as utfecting concealment, 65 § 7. knowledge of other insurance, 20 § 99 ; 93 § 1 ; 218 § 5; 235 § 45; 226 § 51 knowledge of storing or keeping, 299 § 13; 301 § 23. knowledge of vacant or unoccupied, 96 § 17; 329 § 5; 333 § 13; 334 §23: 347 §24. knowledge incrense of risk, 410 § 5. knowledge of, does not alter terms of policy, 97 § 33 ; 274 § 3 ; §11. knowledge of, as an estoppel, 95 § 14; 97 § 31, 33 ; 98 § 34, 25 § 27, 28, 30; 100 § 35, 37 ; 393 S 2. knowledge of, as evidence of value, 106 § 33. renewal by, with knowledge of forfeiture, 340 § 21 ; 350 § 45 ; 406 § I. notice to soliciting, 99 § 31 ; 100 § 3(i. assurance l)y, that d scription covers as an estoppel, 100 § 34. notice of intended act, 96 § 17. estoppel by failure to insert interest in policy, 00 § 18. no estoppel by promise to broker, 100 § 33. no estopf^el by knowledge ot, when charged v/ith fraud and col- lusion with assured, 94 § 7. aii) 09 >rity, 4 § 8. INDBX. 419 !30§5;232 04; 410 §2. 3 § 57 14 0§71; 8 ; ai2 10 § 3. j 39, 40 113 §2; 41. i; 235 §45; i2§ 10; 334 !74§3; 375 § 24, 25 ; 09 4r);40G§l. '§34. id and col- AGENT — continued. estoppel by fraud or mistake, 405 § 2. in taking application, 4 § 6 ; 9 § 29 ; 10 § 38, 40 ; 13 8 50, 51; 13 8 55 ; 15 S 67 ; 17 § 77, 79; 21 § 103; 38 § 11; 72 § 13; 97 §33; 98 ^ :2(i ; 303 § 53. mistake of, in writing description, 85 § 2 ; 94 § 12. of foreign company, liable to tax to iire department, 127 § 1. of foreign company liable for premium to assured, 17 § 78. of foreign company subject to penalty, 394 ^ 4. consent to assignment waives alienation, 30 g 38. issues policy when forwarded by him to broker, 69 § 1. claim to salary, 18 § 83. liability to return premium to assured company insolvent, 7 § 31. custom of, 4^8. cannot prevent collection of premium by company, 4§ 1. measure of damages in suit against company, 13 § 53. agency question of fact, 10 § 39. completing policy after loss, 7 § 33. liability of, for premium to company, 7 § 31. oral consent to transfer, 93 § 3. fraudulent representations as afiiccting defense of other in3urance,94 § 8 . rule (ji\ as to amount of insurance. 111 § 58. liable to broker, amount of chack left conditionally with him, 16 § 72. insolvency no defense breach of contract with agent, 13 § 53. of mutual company, authority to consent to assignment, 195 § 74. ratification by assured of act in procuring insurance, 20 § 98. assured uiav ratify (after fire) action of, in obtaining policy, 4 § 7. waiverby,9§30;13S50;13§55;34S63;345§18;346§33;347§36; 349 g 34, 38, 39, and see knowledge of, supra, (Sec BiioEGR ; Ratification.) ALIENATION, consent necessary, 28 § 37. execution of a mortgage, 28 §29; 39 §35 ; 31 §43; 33§48,49;3:J §55, 57; 389 §1. chattel mortgage, 32 § 53; 34 § 61. foreclosure proceedings, 35 § 1 1 ; 36 § 17 ; 39 § 36 ; 30 § 40 ; 31 § 44 , 45, 40; 33 §60. whether consent to sale includes consent to mortgage, 30 § 39 ; 393 §3. oral consent of agent, 93 § 3. interest of one partner to another, 37 § 18, 19, 21. transfer of interest to partners, 30 § 37 ; 46 § 18. by partner to third party, 34 § 63. entire interest must be sold, 23 § 3 ; 27 § 19 ; 29 § 33. waiver, 104 § 13. trust deed as security, 33 § 54. void sale under mortgage, 33 § 58. conveyance by assured to mortgiigce, 33 § 50. sheriff's deed, 389 §3. quit claim deed as security, 33 § 50. void conveyance or sale, 34 § 8 ; 3'i § 51. not affected by act of third party, 33 § 52. docs not effect transfer of policy, 44 § 4. stock of goods kept for sale, 33 § 1. , • j effect of consent making loss payable to party, without knowledge of transfer, 23 § 3. conditional sale, 28 § 26 420 INDEX. ALIENATION— wn § 13. effect of Side, 25 § 14. sale and re-conveyance, 23 § 4 ; 28 § 30. appointment of receiver of partnership, 29 § 34. etfect ^lecd of trust, 29 § 35 ; 3H9 § 2. consent to, must be indorsed, 35 § 08. cffectf not altered by loss payable to mortgp ;ee, 25 § 13. executory CwnuaO*- of sale, 29 § 31. waiver by consent o assignment, 30 § 38. levy of an execution, 20 § 15, 17. purchase money mortgage does not change elTect, 20 § 10. appointment of a new assignee, 29 § 33. foreclosure of mechanic's lien, 20 § 15. the word ' transfer" sufficient notice, 24 § 9, effect of death, 28 §28. death of executor and appointment of special administrator, 30 § 41. sale in partition, 31 g 42. transfer by one tenant in common to another, 34 § 03. transfer by husband to wife, 34 § 05. notice filed of mechanic's lien, 34 § 04. effected by deed valid between parties, 35 § 66. assignment intended as a mortgage, 156 § 34. property insured by mutual company, 210 § 14n. by mortgagor after assignment of mutual policy to n;ortgagee,200 ^ 97. sale for taxes, .'Jl § 47. witii reconveyance of life interest, 35 § 07. poli(7 providing for consent of company not bound to give it, 27 §20. effect of, in mutual companv, 191 § 51 ; 190 § 79. ALTERATION, of property, 30 § 1, 2, 3. as affecting inircase of risk, 395 § 2. of policy, 52 § 4. AMBIGUITY, in description, 100 § 20. other insurance, 350 § 14. warranty and representation, 355 j5 11 ; 303 § 81. (Sue KviDiiNCH.) APPLICATION, agent taking. 9 § 29; 10 55 38, 40; 11 §47; 12 8 50, 51; 13 S55; 10^71; "l7 § 77, 79; 21 § 103; 38 § 11 ; 72gl3; 97 §22; 98 § 20; 112 § 05. effect agency clause in policy, 18 § til ; 19 § 90. (Heo AonNT.) part of poli(7 and warranty, 39 § 10; 358 § 22, 23 ; 308 § 79 ; 390 § 1: 411 ■§ 1. assured bonmi hy, 12 § 49; 37 § 2; 38 § 9 ; 39 15. v/aivcr hy ununswerea questions, 37 § 3, 0, 7 ; 38 § 8 ; 350 § 42 ; 408 § 3. effect of omission to inrpiire as to budding on leased ground, 39 § 14. in writing not affected by statements of broker'.^ clerk, 21 § 101. written by company's agent, 4 § 0; 413 § 7. INDEX. tor, 30 §41. ;ee,200 5i97. > give it, 27 50, 51; 13 lil; 97 §23; 8 § 7U ; 390 42 ; 408 § 3. nd. 39§14. 1 §101. WPLlCATlOS-rontinnal. proof of signature presumption of knowledge, 38 § 12. siguin-j;- blank form afterwards filled up by agent, 363 S 53. assured's failure to read, 305 § 65. "" ' to another company made warranty, 3G5 § 64. no inference that policy is issued in compliance with, 290 § 1. effect of signing l)y assured, 189 § 39. if part of policy, must be proved with it, 110 § 87. intrusting broker with, establishes authority, 19 § 89. additions to, by secretary, 37 § 1. not aflectcd by note below signature, 37 § 4. must be authorized, 37 § 5. effect of, not altered by writing on blank of another company, 39 § 13, memorandum annexed, 38 § 10. as notice of incumbrance, 393 § 1. (See Diagram ; Survey.) APPORTIONMENT OF LOSS. (See Contribution.) APPRAISAL. (See Arbitration and Appraisement.) ARBITRATION AND APPRAISEMENT, as waiver of proofs, 20 1 § 05 ; 348 § 29. denial of liability a waiver, 42 § 11. company must offer to have appraisers appointed, 40 § 1. effect of appraisal agreement as waiver, 410 § 4. award binding only by agreement, 40 § 2. stipulated value renders arbitration clause inoperative, 41 § 8. bar to' recovery, 40 § 5. what necessary to constitute a defense, 40 § 4. court not deprived of jurisdiction unless a condition precedent, 40 §3. not valid made in absence of arbitrator, 42 § 12. company must make request during tlie 00 days, 41 § 10 ; 42 § 14. effect on right of action, 41 § 7, 9 ; 43 § 16. construed to apply only to personal property, 42 § 15. no application case of total loss, 40 § 6. no application where dispute is whether loss partial or total, 42 § 15. award binding, 42 § 13. failure to put damaged pro|)erty in order, 53 § 3. condition not operative in Canada unless statute as to printing com- plied witii, 54 § 15. local agent no authority, 4 § 8. award nullity should not be considered by jury, 209 § 10, mutual companies, 207 § 134. ASSESSMENT, effect of, with knowledge of forfeiture, 183 § 1. (See Mutual Companies.) ASSIGNMENT, as collateral security, 44 § 5 ; 47 § 27. assignee takes policy subject to conditions, 43 § 2; 44 § 7. C' consent of company necessary to, 47 § 23, 24. loss payable to third party is not an assignment, 45 § 13. invalid, cannot defeat insurance, 43 § 1. ^ in Iowa, valid tliougii prohibited by condition, 43 § 3. ^ sale of property does not operate as, 44 § 4. interest in property necessary to sustain alter loss, 47 § 25, company liable to assignee if it pays after notice of, 44 § 6. ^ interest of one partner to another not of the policy, 40 § 18. not effected by arrangement between assured and payee, 46 § 17. n\\ V, ll i 422 INDEX. ASSIGNMENT— w/< {^ 21. foreign company cannot insist upon, in Indiana, 129 S U. waiver, 03 § 14; 343 ^5 3; 410 i< 3. CLIiKK, of agent binds company, 5 § 10. C'OIjLISION, liability for loss occasioned bv, 63 ? 1, 3. CONCE.XLMENT, knowledge of agent, 05 § 7. benzine, 04 § 2. of application for insurance to another agent, 04 § 4. of litigation, 04 § 5. mortgage, 04 § 3, assignee's interest, 39 § 33. cannot be by unanswered question in application, 37 § 0. incumbrance, 05 § 10; 87 § 3. right of dower, 'i5 § 9. possession of property, 05 § 8. danger of incendiary lire, 05 § 13. title, 65 g 6. in diagram, 05 § 11 ; 3!»1 § 1. fraudulent, 98 § 34. fraudulent omission, question for jury, 05 § 9, question for jurv, G4 § 1. CONDITIONAL SALE,' as alienation, 28 § 26. CONDITIONS. (See By-Laws and Conditions; Constkcction.) CONSENT must be indorsed, 85 § 18. (See Agent; EsxoppEii; Waiver.) CONSTITUTION, U. S. policy not an instrument of commerce, 85 § 4. CONSTRUCTION, contract shoidd be enforced uccor ling to true sinrit and intent, 07 §6; 08 §10, 11, 14; 391^1,3. warranty not extended by, 361 § 43; 363 § 54. as a question for court or jury, 208 § 3, 5, 7. ambiguity, knowledge of facts by company, CO § 1. of writing must be by court, 370 § 10. total loss not absolute extinction, 08 § 15. word need not be taken in sense understood by company, 08 § 13. forfeitures not encouraged, 68 § 13. error i writing word determined by court, 67 § 8. rights fixed at time of loss, 60 § 5 ; 401 § 1. strict against company, 06 § 3, 4. parol proof inadmissible, 60 § 3. wlien language has settled legal construction, parol evidence not ad- mi?sible'to vary, 06 § 3 ; 103 § 7. conditions divided into two classes, 67 § 9. machinery, 4 § 6. tavern and hotel, 86 § 4. BtandJug detached, 87 § 1. legal process, 393 § 3. ; ' il i\ k' 1! V I ■. A. J ^1 .: 42G INDEX. (CONSTRUCTION— ro/!ition8 ; Construction.) DESCRIPTION, error in name immaterial if identity established, 86 § U. three stciry huildini; a])i)lics to front only, 86 § 5, 6. when niistiiko in, atlVctH validity of contract, 86 § 7. atdumed to be same as in application, 108 § 43. latent ambijiiiiiy is removable, 106 § 20. assured bound by acceptance of policy, 85 § 1. mistake of agent, 85 i? 2; 1)4 § 13. mistake in, prevented from being corrected by company, 05 § 15. knowledge of comjjany admissible as enabling court to apply, 103 § 2. (See AprLicATioN.) DEVIATION, 1)y boat, 361 § 43. DIAGRAM, concealment. 65 § 11 ; 301 ,^ 1. Aviien assured bound bv, 3.i8 § 79. warranty by, 411 § 1 ; 412 § 5; 413 ? 7, 8. (See Suiivky; Waukanty and Repkksentation.) DISTANCE BETWEEN BUILDINGS, warranty and representation, 358 § 26; 375 § 100; 412 § 5; 413 § 8. standing detached not limited by custom, 87 § 1. (Sec DiAOKASi.) DOWER, as affecting title, 314 § 40 ; 316 § 52. \m> ENCUMBRANCE, must be valid, 80 § 17. must be created by act of assured, 89 § 16, 18; 90 § 19. materiality of, 88 § 8. materiality question for jury, 87 § 1. effect of knowledge of agent, 100 § 37. renewal with knowledge of, 111 § 57. goods in auctioneer's hands, 309 § 18. balance due on purchase at orphans' court sale, 312 § 37. iudgment, 87 § 2 ; 88 § 12; 327 § 20. mortgage, 34 '-i 01 ; 87 «; 3 ; 88 § 6, 10, 1 1 ; 89 ? 14 ; 224 § 43 ; 393 § 3. misrepresentation of, '.10^21; 368§S1; 370^86; 371 §8!); 373§04; 373 § 99, 101, 102 ; 374 § 104 ; 408 § 2. defense of, available under general issue, 244 § 37. issue of policy without a|)plication, 310 iJSl. notice of, in applic;ition, 393 ■! 1, piiyment not presumed, 80 Jt 15. condition reasonable, 87 § 4. validity of a mortgage may be tried in a suit for insurance, 87 s 5. must not exceeii permitted amount, 80 § 13. sending mcmev, after loss, to mortgagee, is equivalent to written consent to, 88 § 7. vendor's lien, 88 JJ 9. mortgage p;iid but not safistied of record, 90 §20. chattel mortgage, 90 i? 20. assessment and seizure under revenue laws, 393 § 3. (Sec MouTdAoio.) ENDORSEMENT, (■onsent to alienation, 35 § 68. when warranty in Canada, 413 §3. (See Aoknt; Estoitkl ; Waivku.) INDEX. 429 (^.85 §3, 4; .) 95 § 15. ply, 103 §2. 5; 413 §8. 3; 393 §3. ; 373 §04; to written ENTIRETY ANP DIVISIBILITY OP POLICY, contract entire, brejicl'. a3 to part avoids the whole. 91 U 3 3 4 -.- 92 §0,10; 143 §3. - ■ s - , , . j, if property covers several items, contract is divisil)U!. and assured can recover upon all items not affected by broach, 92 § 7, 8, 9. other insurance, ?33§2!i. breach of warranty as to one item, ;JTO 8 So. ESTOPPEL, authority of agent, 93 §1. authority of agent to write risk out of territory, 21 §102. fraud or mistake of agent, 94 1 8 ; 40.1 § 3. knowledge of agent, 18 §84; 20 §99; 34 §02; 94 §12; 9r, Sl4; 97 § 21, 23 ; 98 § 24, 25 ; 99 § 27, 38, 30 ; 100 § 35, 37 ; 301 §22; 323 § 4 ; 32G § 12 ; 327 § 18 ; 334 § 23 ; 344 § 15 ; 393 §1,2. agent taking application, 17 ^77; 38 § 11; 97 * 22; 93 § 2(i- 99 § 31 ; lUO § 3(). knowledge of broker, 94 § 9. renewal witli knowledge of forfeiture, 93 §5; 287 §7, 9. knowledge not equivalent to permission, 94 J 11. knowledge of agent, when fraud and collusion between him and assured, 94 § 7. not created by mere knowledge of eoniininy, 9(i § 17. other insurance, 219 § 13, 13 , §31; ■45; 238 j 41; ? iglS. payment of premium, 210 § 2, 5. by statement of agent, reference to description, 100 §34. by promise of agent to procure consent, 100 15 33. by taiiure of agent to insert interest in policy, 90 § 18. by statement that written consent is unnecessary, 97 j 20. oral consent of agent to transfer, 93 § 3. oral consent to vacancy, 95 § 10. not effected by notice to agent of an intended vacancy, 90 ;^ 17. claimed upon a written instrument, 94 § 10. as to provision of written ron.si'nt, 95 § 13. by statement in examination under oath. 93 g 4. none by statement in proofs of other insurance, 93 § 3. induced to delay proofs, li7 § 19. correction of mistake prevented by company, 95 § 15. etVect of representations to sheriff holding execution, 99 § 29. by adjustment and payment of loss, 93 § (5. by joining in an adjustment, 99 § ;i2. by mutual company in acknowledging receipt of premium, 207 § 129. defense founded on non-payment of premium note, 202 § 107. negotiations for compromise mutual company, 200 § 94. by acceptance of policy, 231 § 7. V)y retention of policy as to cancellation, 55 § 9. company by delivery of policy to broker as to payment of premium to latter, 10 § 73. (See Wmveh.) EVIDENCE, agent's daily report, 114 § 80. whether agent would have issued policy if facts were known, 10 2 § 1. custom of' agent as to amount of insurance, 111 § 58. knowledge of agent, 113 s 75. authoritv of agent, 389 S 1- limitation authority of agent, 18 § SO. book of agent, 48 § 2. authority of agent to make parol contract, 230 § 5. uiemoraudura made by ugent in his book, 287 § 11. 11 •I 430 INDEX. :U EVIDENCE— con/wiMfirf. ratification, acts of Bub-agcnt, 8 § 27. knowle(l£ce of company as enabling court to apply description, t02 § 2. knowledge of agent as to value, 106 § 23. knowledge of incumbrance. 111 § 57. presumption as to knowledge of company, 380 § 13. of motive on issue of willful burning, 51§1; 115SWI of application, not admissible to show notice ' .'''>• ^'^^ § ^• authority of broker, 19 § 89. custom among brokers, 108 § 38. entries upon broker's books, 107 § 32. conversations with solicitor or broker, 114 § 82. of knowledge of agent in taking application, 112 § 65. of agency, conversations with broker, 16 § 74. course of business as affecting liability of broker for premium, G § 17. parol contract, 233 § 18. renew^al by parol, 233 § 19. to sustain suit on parol contract, 232 § 10, 12. conditions of policy should be proved in action on p irol con ract, 231 § 6. of written description, 108 § 43. of circumstances attending application admissible, 98 § 26. application, if made part of policy, must bo proved with it, 116 § 87. parol, admissible to reform, 112 § 68. to warrant reformation, 40.5 § 1. parol proof inadmissible when language plain, 66 § 3. intent to cover certain interests may be shown by parol testimony, 161 §11. rule excluding parol applies only to the parties to written instru- ment, 140 § 8. ambiguity, 106 § 2,6; 355 § 11; 356 § 14; 368 § 81. parol, to prevent effect of breach of warranty, 371 § 93. parol, inadmissible to alter warranty, 374 § 107. parol not admissible in action l)y mortgagee to show interest, l80 § 37. parol evidence not admissible to show interest when party specifi- cally named, 163 § 19. parol not admissible to prove instrument does not mean what it says. 103 § 7. parol admissible to show property covered, 112 § 6!j. other insurance, 113 § 73; 302 § 1. notice of other insurance, 220 § 18, other insurance by parol, 221 § 25. overvaluation, 401 § 1. title, 307 §5, 6; 309 4i 21. fraud and false swearing, 305 §1,2. necessary to sustain delonsc of willful burning, 51 § 3. explosions, 121 § 7. kerosene oil, 113 §71; 116 §89. declaration of assured as to occupancy, 113 § 70, 72. of entry by company on the book of Civnccllation. 5.) § 5. necessary to sustain defense of cancellation, 390 § 1. payment of incumbrance not presumed, 89 § 15. article used for lighting, 106 § 6. estoppel, 394 § 1. opinion of experts as to line of business, 105 § !6. of insurance exports, 146 § 20. insurable interest presumed to continue, 243 § 18. INDEX. 431 EVWEifiCE— continued. of insurable interest sustains averment of ownership, 108 § 39. opinion as to increase of risk, 109 § 44. notice increase of risk, 394 § 1. inflammable qualities of liquids must be proved, 103 § 6. effect of average clause, 114 § 78. efforts to save property, 112 § 6(5. certiticate, not as to value, 105 § 31. acceptance of certiticate, 62 § 17. ability of assured to furnish duplicate bills, 113 § 77. diligence in furnishing proofs, 114 § 79. signature of magistrate to proofs presumed to be genuine, 01 J o. receipt of proofs of loss mailed, 264 § 70. waiver prools of loss. 343 § 1. proofs of loss as, 116 § 91 ; 257 § 31. of experts in adjustment, 107 § 'k; 112 ? 67. acts and declarations of adjuster or agent, 3 § 8 ; 105 H9 ; 1 10 § 53. adjustment no evidence of value as to third parties, 3 § 7. of adjustment may be adopted by jury as to amount, 103 § 3. necessary to sustain action on adjustment, 3 § 9, 10. cash value, 110 § 55. value, 113 § 74. valuation of another company, 110 § 50. valuation by agent, 110 § 53. expert as to value, 113 §'7(5; 114 § 81. competency of witness as to value, 107 § 36; 109 § 49. opinion as to value, 103 § 9. of value, not sufficient if vague assertion or guess work,- 103 § 5. of cost of erection of building, 103 § 4. building total loss, 84 § 21. rental value of building upois question of loss, 83 § 13. daughter of assured upon value, 105 § 18. of what was paid for farm within two miles upon issue of value, 105 § 30. of witness in same trade as to amount of stock, 104 § 10. for what lands sold for after building was destroyed, 109 § 48. ofltrs of compromise, 104 § 13; 107 § 33. not necessary to prove identity of goods covered by warehouse re- ceipt, 106 § 35. of what another company pays in mitigation of damages. 111 § 60. of waiver, 109 §45; 340 § 35. of waiver in other cases, 104 § 13. of officer as to extent and limit of his power to waive, 109 § 47. error to reject, of agency when waiver relied upon, 111 § 61. waiver as to payment of premium, 5i> § 11. service of notice by mail, 106 § 34; 108 § 41 ; 110 § 54, 56. usage and custom, 330 § 1, 3. 3, 4; 331 § 6, 7, 8; 333 § 9, 10. of custom, when admissible, 110 § 88. general ami leading question as to compliance with conditions iui- proper, 105 § 23. docliirations of company's officers, 104 § 14. parol of another policy thiin one in suit, 104 § 15. printed blank admisMble, 105 § 17; 108 § 43. competency of wife of assured, 104 § 11. companv c.mnot attack validity of iuslrumcnt relied on as a defense, 110 §51. of prior and subsequent emission of spiirks in suit against railroad company, 109 § 46. 432 INDEX. EVIDENCE— continued. declarations of assured not admissible against payee of policy, 108 § 40. of experts, meaning of certain terms, 108 § 37. counsel for company competent witness, 107 § 30. error in admitting not cured by direction to disregard, 107 § 2!). failure of assured to call clerk as witness, 107 § 31. letter written by agent on cross-examination for the purpose of con- tradiction, 107 § 35. not sustaining verdict, being contrary to laws of matter, 106 § 28. no necessity of proof of interest in party to whom loss is payabU', 100 § 27. only of facts as existing at time suit is brought unless supplemental plea, 111 §oi). deed not adraissil)le without proof of record, delivery or possession, 112 §03. reading of policy, 1 IG § 90. of usual rates of premium on same class of property, 114 § 83. identity of agent investigating loss, 115 § 85. of insurance expert as to risk, 115 § 80. otters of purchase, issue of overvaluation, 229 § 8. letter of company construing policy, 112 § 09. secondary, of cancelled policies sent to home office in foreign coun- try, 112 § 04. presumption from special premium, 120 § C. no judicial notice of existence of lire department, 128 § 7. of actuary in suit against company, 12 § 52. meml)ers of mutual company presumed to know coiulitioiis, 189 § 3a. secondary, of notice of assessment, 183 § 3. declarations of owner in suit brought by mortgagee, 178 § 27. i)rcsumption as to knowledge of eliurter, 234 § 22. uncontradicted letter by assured, 213 § 20. mitigation of damages, suit by agent against company, 12 § 52. EXAMINATION UNDEU OATH, waives condition in regard to notice, 117 § 4. no part of ))roofs of loss, 117 § 1. demand must be clear and distinct, 117 § 3. demand upon party to whom loss is payable, 117 § 2. assured bound to answer only suiih ([uostions as are material, 117 §5- not estopped by statement in, 93 § 4. averments necessary to sustain defense, 241 § 0. docs not extend time for payment of loss, 239 § 1. EXECUTION, levy of, 20 § 15, 17. must be rightful levie.-, 118 § 1. attachment, 119^5. insurable, interest, property 8olval of suits to the United States Court, 130 S 3i; 13: § 22. admitted (o State, case against, canuot be removed to the United States ('(Uii't, l:il §2i>. taxatinn of, 130 § 51. dilTor-nt cla« for tixition purposes, 135 g 48. deposit not liable to attanhineiit i)y foroi^a creditors, 139 § 11, ri.jht of crediors to deposit, 129 § 13. Vol. II.— 28 434 niDBX. FOREIGN COMPANY-con^nttcrf. right of assin^nce to deposit, 130 § 17. costs added to claims in diBpnsiii^ of deposit, 127 § 8. deposit security only for policy holders, 137 «J 3, iusurfince dupurtment cannot voluntarily transfer trust created by deposit, 132 § HO. power to tax for specific purpose of fire department cannot be ex- tended, i:)3 § 28. rights of policy Itolders to deposit, 184 § 44. right to collect interest on deposit, I'M ^ 51. when department required to give up deposit, 1B4 § 41. created by act of Congress, a foreign corporation, 133 § 89. liability to tux in Georgia, 135 § 46, 47. when may file certificate of authority in Indiana, 184 § 40. in Iowa, jurisdiction obtained by service upon agent authorized to take applications, 133 § 3ti, 37. liability of, to tux in Memphis, 133 § 31. power insurance commissionci-, California, 128 § 5. effect of, Canada statute prescribing conditions of insurance, 894 g 1.3. Ii:iblc to one license in Louisiana, 138 § 8. cfiect of Mi8i:;outi statute, 3£4 § 8. liabilily of, to tax in the city of Norfolk, 120 § IC. liability of, to tax in Chicago, Illinois, 128 § 7. in Indiana cannot insist upon a certificate of nearest magistrate, 129 §14. PR.\UD, rescission of adjustment for, 1 § 1. vitiates adjustment, 3 (^ 11. in obtaining insunincc void.i it without express provision, 53 § 12. as ground of reformation, 27(3 g 15. question for jury, 31U ij 52. FRAUD AND FALSE HWEAUING, essential elements of. 124 j^ 3; 895 §1,3. none il company knows lacts, 125 S 0, 7. question for jury, 3ii!» § S. not justified by statements of company's agent, 135 § 5. including goods removed, 12.» t^ 5. inciuding articles not covered by insurance, 120 § 10, 13. false statement of ubsenee from tire, lit tj 1. cspontials o', in relation to title, 12G § 13. value, 125 ^4,^; 126 g », 11. evidence of witness in Kunie trade ns to amount of stock, 104 § 10. diirerenee as to value in iipplieation ami proof's, 137 § 14. diflereneo between statement in proofs and appraiser's estimate ns to value, 127 § 15. diirereneo between verdict and value as sworn to in proofs stud on trial, 124 g 3. GARNISHMENT OR TRUSTEE PRO0ES3, an (inndjusted claim subject to, 138 t^ 1. pot liable si) long ai co npmy h.»< option of rdplaciog, 133 g 8. juriadiution over foreign coinputics, 182 § 83. tisscismeiit mutual com^nnies, 313 ^ loU. Bervico oi process, 13t; § 2. INDICX. 435 horized to GASOLINE, lighting, 146 817; 100^3,4, 5. storing or keeping, 299 § 12. (8cc Btouino and KiiiirTNo,) i QEORGIA, verbal consent to rfimoval, 2:53 § 13. estoppel, pirol contract, 2;53 g 13. statute as alluctins warranty and repve-cntatAon, 884 § 80. under code jury may apportion loi^ to e:ich company issuins ioint policy, 75 g 8. "^ ' *' liability of foreign company to tax, 135 § 46, 47. GOODS IN TRUST OH ON COMMISSION, what is mcimt by, 139 § 3. or on consignment, what included by, 378 § 1. when property covered, 139 § 1. what property is covered by policy, 383 § 24. party to whom loss is piyable, 385 § 5, 7, 9. liability of assignee for negligence, 140 § 5. assured trustee for actual owners as to excess over individual claim, 140 § «. liability of assignee to the assignor, 140 § 7. liability of bailee, 140 § 8. liability of warehouseman, 139 § 3. assured cannot insist upni m^ney lirst applied to tbs satisfaction of individual claim, 141 § 9. whether property owned was held in trust, question for jury, 141 § 10. who may sue, 385 § 5, 7, 9. trustee does not guarantee solvency of company, 139 § 4. (See Intekkst in PoLicy.) GUNPOWDER, storing or keeping, 299 § 14. use of, to blow lip burning building, 119 § 1. (See Stoking and Keepinq.) II ■:\ 111 m ILI..EGALITY OF CONTRACT, contract made on Sunday, 143 § 1. liquors kept for sale contrary to law, 142 § 4. policy covering luture material in course of business, 143 § 2. ii relates to one item only, voids entire insurance, 143 § 3. ILLINOIS, elFocts of dctault, 214 § JS. li il)ility of foiTiLi;!! companies to tax in Chicago, 128 § 7. INCENDI \RY FIRE, warranty and repres-ntation, 354 §3; 3«8 §78;412§0. (tr, to 5? ;J7 : 1U7 § 3, 4 ; IBS'g fl, 7, 8; 170 § 18; 171 §2:3, 2^; 172i?2»; ;?4;?§r); 40:5 i^l. effect oi' ncp;oli;ilion for sctttcmcnt, lO.SSJ 8 ; 170 g 19. effect of iifljiiHtincnt iiiul pronii.^o lo p;iy, 358 § 27.' amcndmont of process, 170 g 17. operative !iUlioii'j;li nssurc(J deponclsupon parol contract, 233 § 17. spociiil nuitnul companies, 101 § Ct-i. stockholder personally liublo for debts cannot avail bltnscU of, lij!) S 14. notice and demand not construed as proaccutiou, 170 § 21. inoperative under Maine statute, 171 g 24. nojTlcct to sue receiver, 10!) 55 H. effect of attacliment, 107 ^ '.i. effL'ct of option to rebuild, 173 § 31. effect of an injunction, 171 § 25, 36. etTect of war, 169 § 10. (ffect of failure previous action, 109 § 9. clfcct of discontinuance of first action. 167 § 1. discontinuance induced by promise of settlement, 172 § 80. cffcctot suit bcinpt brought in behalf of all creditors againBt in- solvent company after limited time, 170 § 16. LOCALITY OP PROPERTY INSURED, warranty and representation, 890 §3, 3, 4; 391 § 2. 5, 8; 293 § 11, 13; 303 §13; 204 § 18; 295821; 355 §13; 356 §13; 406^51. (See Risk ; Warranty and Rbprbsehtatios. ) LOUISIANA, foreign company liable to only one liconso fee, 128 § 8. MAIL, . notice by, 106 t? 31 ; 108 § 41 ; 110 § 54, 56. furnishing proofs of loss by, 264 § 70. MAINE, authority of agent under statute, 20 § 95. defense of other insurance, 233 8 St. lion of mortgagee on insurance money, 175 § 14. limitation clause inoperative, 171 § 34. defense of overvaluati(m, 239 § 9. defense of use and occupation, 337 § 19. MARYLAND, re-insurance, 279 § 7, MASSACIIUSET rs, effect of statute on warranty and representation, 800 §38; 363 15 40; 374 §105. M.VTERIALITY, benzine, 64 § 3. concealment of application to other agent, 64 § 4. incumbrance, O.! § 10; 87 g 1 ; 83 § 8; 373 § 90, 101, 102. mort'jcage, 64 g 3. other insurance, 223 §87. distance between huiltlings, 413 § 5. incrcas-'c of lisks, 395 § 1, «, 3. of representation, 357 § 19; 363 § 49. value. 238 g 1. 3; 2ti0 g 6; 401 § 3. „„,„,„ „„o warranty, S.'.e g i:i, 16; 358 g 24; 360 § 33, 34, 37; 363 g 45; 863 g 56 ; 364 g (!3 ; 365 g 67 ; 370 § 88. if facts undisputed (juestion of law, 309 § 12. determined by contract, 339 § 7; 268 § 3; 414 § 9. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ■tt 182 12.2 Hf Hi ■" ■>; |4£ 12.0 Hi Fhotographic Scimoes GarpoHtion 23 WMT MAIN STMIT VVIUTn,N.Y. MSM (n«)t7a-4S09 4^ 1 s 440 INDEX. MEASURE OF DAMAGES, action by agent against company, 12 % 52, (See Dahaqbs.) MECHANIC'S LIEN, confers an insurable interest, 158 § 46. contractor insured not bound to proceed, 84 § 19. effect of filing notice, 34 § 64. effect of foreclosure, 26 § 15. no incumbrance, 89 § 18; SO §19. executions, 118 § 3. (See Title.) MERCHANDISE, does not include petroleum, 299 § 18. MISSOURI, statute giving damages for vexatious delay, 894 g 3. MISTAKE, in ordering or consenting to cancellation, 54 g 2. (See Refukmation.) MORTGAGE, as alienation, 29 g 35 ; 81 § 43 ; 82 § 48, 49 ; 82 g 53 ; 83 g 55, 67; 34 ^ 61 : 389 g 1. as affecting title. 28 g 29 ; 807 § 8 ; 309 g 16 ; 811 g 82 ; 312 g 34 ; 818 g39; 314 g 41. eflFect of foreclosure, 25 § 11; 26 g 17; 29 g 36; 80 g 40; 31 g 44, 46, 40. incumbrance, 34 g 61. concealment, 64 § 3; 65 g 10. consent to sale includes consent to mortgage, 30 g 30. void sale under, 33 g 58. consent to, does not include foreclosure proceedings, 33 gOO. (See Encumbrancr.) MORTGAGOR AND MORTGAGEE, effect of foreclosure, 173 g 2; 176 g 17. effect of mortgagee clause, 79 § 17 ; 178 g 30 ; 307 g 2; 898 g 8. effect of clause making loss payaLIe to mortgagee, 173 g5; 174 § 6; 176 §18. effect of nssignmcnt of whole right of action to party to whom los« iapuyable, 177 § 24. effect of option to rebuild, 179 § 31, 82. effect of repairing or restoring building, 177 § 20; 182 § 46, 48; 807 § 1. money received by mortgagee takes place of property destroyed, 175 § 12. amount received by mortgagee deducted from amount due uudcr policy, 173 §3; 178 § 26. how affected by other insurance, 179 § 30; 180 § 33; 181 § 41 ; 82r» §47; 226 §49; 400 § 5. contribution, 78§ 14; 79 § 15: 181 § 42; 400 § 5. subrogation, 178 § 28; 179 § 30 ; 182 § 46. 47; 303 § 4. company compelling assignment of mortg.igc, 174 g 9. insurance on iuterest of mortgagee, 174 g 10; 175 g 11. interest of mo.-tgagee in insurance, 174 g 7 ; 179 g 32; 180 g 34, .{5, 89; 183 g 49. insurance nioney applied upon mortgage debt, 174 i; 8. raortirugee not liable to account lor insurance obtained by him, 179 820. who may furnish proofs of loss, 265 g 74. 75 ; 207 g 82 ; 384 g 1 . who may sue, 178 g 25 ; 385 g 8, 11; 386 g 17; 387 g 18; 4 14 g 1,2, f)nyment to mortgagee t < whom loss is [)ayablc, 3S.'> ij 6. ien upon insurance money under Maine statute, 175 g 14. reformation of the mortgage, 175 § 8. IKDEX. l%62. 33 §55, 57; 12 §34; 818 40; 31 §44, §00. ?98 § 3. i5; 17456; I whom loss. 82 §40. 48; f destroyed, it duu uudcr 1 §41; 23r» 180 g34, W, by him, 179 384 8 1 . ; 4i4§i.a, MORTGAGOR AND MORTGAGEE-Mnitnuei. premiums paid by mortgagee added to debt, 177 § 22. eflect of agreement to sell mortgage, and partial payment on account of it, 177 §21. ^^ mortgagee no authority to consent to cancellation, 177 § 20, 28. evidence of declarations of owner in suit brought by mortgagee, 178 § 27. aesarcd not prejudiced by mistake in making policy to mortgagee, 178 §26. rights of, to return premium, 181 §40. parol evidence in action brought by mortgagee to bIiow intent, 180 37. mortgagee not bound by adjustment with assured, 180 § 30. assignment by mortgagee, 181 § 43. legal title to policy. 181 § 44. liable to account for insurance, 182 § 47. effect of death of assured, 1 82 j? 45. mortgngee takes assignment subject to being declnred void by nets of assured, 180 §38. not necessary to establish lien upon whole property covered by in- surance, 173 §4. liability of company not affected by any question of security, 178 § 1. insurance not limited to value of equity of redemption, 170 §19. effect of stipulation in mortgage for insurance, 175 § 15 ; 170 !5 10; 400 § 5. mortgagor remains liable to assessment, 195 § 71. mortgagee assignee of mutual policy, 200 § 97. right of mortgagee to deposit premium with mutual company, 210 §144. conveyance by former to latter, 33 § 50. MUTUAL COMPANIES, effect non-payment of assessment, 212 § 155. assessment liable to garnishment, 213 § 159. assessments, 190 §43, 44, 45; 191 §48. 50; 192 §60, 67; 193 § 00, 64,65; 194 §08, 09; 201 §100; 204 §117; 207 §128; 208 §180: 210 §147; 399 §4. payment of assessment, 209 § 139 ; 211 § 148. validity of assessment as depending on ability to collect, 898 § 2. waiver in receipt of assessment, 203 § 111 ; 2i)4 § 115; 211 § 149. waiver non-pi^yment of assessment, 203 § 109 ; 204 § 113; 200 § 140. effect of taking promissory note for assessment, 398 § 3. waiver other insurance by receipt of assessment, 203 § 109. waiver by knowledge of agent and payment of dividend, 399 § 5. notice of assessment, 183 ^ 3 ; 187 4$ 40; 207 § 132. nctico of assessment to legal representatives. 202 § 103. waiver by assossment, 18(5 § 21 ; 300 § 90 ; 202 § 105. EBsessmcnt when insurance eilcctcd by ngent not having complied with statute, 2ii0 § 93. liability to nssessment, 189 § 41 ; 108 § 89; 200 § 95; 200 § 127; 207 §131; 209 § 141; 210 §140. assessment and cancellation, 199 § 01. lien of judgment for assessment, 200 § 125. invalid assessment, 208 § 135. assured cannot relieve himself from his obligation, 200 § 124. dccltiration to sustain suit for an assessment, 193 § 59. ' assessment under Massiichusotts stututc, 188 § 33, 84. assessment upon lost note, 185 § 18. 442 INDEX. MUTUAL COMPANIES— (»»«irc?/f. recovery on premium note, 187 g 20. condition suspending liabili'.y. premium not paid, 187 § 37. compromise of premium note by agent, 187 § 28. effect of misdtaciiption in suit on note, 191 § 40. negotiability of premium note, 190 § 47. premium note not deposit note, 190 § 4G. effect of alienation, 101 § 51; 190 § 77 ; 210 § 145. assignment, 195 § 74. authority of agent to consent to assignment, 195 § 74. cancellation, 190 § 43; 191 §51; 197 § 83; 201 § 117; 310 § 143; 213 §157. poliev voidable only, 204 § 115, 117 ; 207 § 131 ; 200 § 140. insolvency. 181 i? 9; 185 4! Itl; 199*5 93; 207 § 133. member no claim for reimbursement on ground of inBolvcnqy of eon)|) my, 199 J? 93. set-oti; 1H7 S 30; 194 § 00 ; 190 § 75 ; 200 § ISO. Bct-olf company in hands of roceivei', 188 § 33. nssignees l)ccome members, 188 § 31. suspension of liability, 180 § 3i- ; 187 8 37 ; 103 § 03: 194 § 67, 09; 197^80, 81; 198 §S7; 203 § 113; 201 § 115, 117. liability of fund in hundd of receiver, 100 g V8 ; 107 § 79. IKDEX. it mua!; lands, 205 § 120. to, 135 !; 813 for in- §143; ncjf of 07, 00; MUTUAL COmPXmE^—eontinu'd. liahility of member to receiver, 103 § 54. claim of counsel on fiiiui in receiver's hai waiver of notice by assured, 194 § 60. notice to ngenl, SOii S 134. notice question for jury, 204 § U6. publication of notice, 303 § lio. cllect of signing application, ISO § 30. meinb:^r3 prcsunieil to know conditions 180 § 38. two-tliinis and tlii'ee-foiirtlis clause. 180 § 37. legal projcecling.-i as waiver, l!)7 § 83. eftect surrender of palicy to a stranger, lO'S 8 88. statute of limitations, 103 § CI. claun of member to interest, 105 g 70. effect of act of forfeiture by member of a partnership insured, 193 § 73. right of mortgagee to deposit premium, 310 § 144. issuing of policies for cash premiiuns, 210 § 143. effect of payment of loss borrowed money, 184 § 4. statute voids policy in hands of person in default, 184 § 11. right of assignee to give notice and proofs, 184 § 10. wlio may sue, 184 § 7. personal liability of directors in Indiana, 185 § 18. liability of member not extended by amalgamHtion of company with another, 186 i| 34. policies payable in gold, 186 § 33. special limitation clause, 101 § 53. mortgagee assignee, 200 § 07. effect of judgment bankruptcy court, 197 § 81. authority ot agent, 300 § 139. effect of paying premium in cash, 184 § 8. waiver of clause in regard to premium, 186 § 35. estoppel by acknowledging receipt of premium, 207 § 129. waiver payment of premium, 209 § 138. installment note, 208 § 137. arbitration, 207 § 134. effect of negotiations for compromise as an estoppel, 300 § 94. tender of premium after loss ineffectual, 301 § 01!. return of policy with knowledge of forfeiture, waiver, 301 § 99. alteration of receipt given for premium, 302 § 103. directors cannot ratify what cannot authorize, 301 § 101. right of mortgagee to maintain action, 303 § 108. insurance limited to three-fouitbs of the value, 205 § 118. premium part cash, 311 § 150. waiver prepaymenc by deliviry of policy, 313 § 153. member when entitled to policy. 313 § 150. effect of uli'jnatuin under Canada statute, 393 § I. NAPHTHA, lighting, 400 § 1. (8ec Stouiko and Krhtino.) NEGLIGENCE, (lo(;3 not avoid policy, 313 § 1. does not amount to increase of risk, 147 § 24. NEW YORK, under tho code an equitable assignment is a legal aaslgnment, 47 § 38. NOTICK, reasonable time, 35 § 11. vacant or unoccupied, 337 § 83. INDEX. mOTlCE—eontinued. constructive, 349 § 36. to agent. 394 § 1. to secretary on (street of fact affecting risk, 5& § 22. by mail, 106 § 24; 108 § 41 ; 110 § 54, 56. (See Agent; Esvoppel; Waivkb.) NOTICE OP LOSS, authority of agent, 8 § 26. condition precedent, 215 § 12, 14. sufficiency of, 214 § 4, 5, 8; 215 § 10, 11, 18; 216 § 16, 17, 18, 19; 399 § 1. BOfficiency question for jury, 214 § 7; 217 § 23. •waiver of, 214 § 8; 215 § 9; 216 § 17; 845 § 19. waiver of proofs waives notice, 214 § 6. waiver question for jury, 268 § 1. waived l)y examination, 117 § 4. local agent, 214 § 1,8. by assignee, 216 § 20. by party to whom loss is payable, 217 § 21. vendee assured dead, 214 § 2. re-insurance contract, 281 § 17. OCCUPATION. (See Use and Occupation.) OHIO, averment of insurable interest, 241 § 5. service of summons, 242 § 13. . OPEN POLICY, overvaluation immaterial, 228 § 2. i-iBk under, 291 § C OTHER INSURANCE, autlioritv of agent to consent to, 20 § 03. notice ol', 220 § 18; 222 § 32. notice of, to soliciting agent, 99 § 31 ; 100 § 36. notice to agent to take application not binding, 12 § 50. notice of, to agent, 93 § 1 ; 218 § 6. notice to broker, . '7 § 1. effect of knowledge >>f agent, 20 § 99; 180 § 37; 225 § 45. knowledge of agent not equivalent to consent iu writing, 227 § S4. knowledge of soliciting H,'»«nt, 220 § 51. waiver by agent, 349 § 39, Chtoppel by statement of ngbiS 345 i) 18. renewal by agent, with knowl!"^ge, J43 § 2. assured bound to give notice, Ji7 § 8. consent to, 221 § 26, 27. consent to, does not prevent change of companies, 809 § 1. consent must bo given as required, 22b > 35. mistake of company in indorsing consint, 222 § 34. consent definite only as to amount, 222 5 80. notice of, sufficient in case of parol con act, 233 § 8; 234 § 21 ; 230 §31; 238^41. contract invalid, 220 § 17, 21; 221 § 24; 228 § 39; 224 §41; 227 § S«. fi5. validity of policy, 225 § 44. waiver, 219 § 11, 12, 13; 351 § 47; 852 § 51 ; 899 § 5; 403 § 3. waiver of, by mutual company, by receipt ot assessment, 203 § 109. effect of statement iu proofs, 93 § 8. INDEX. 445 ', 18. 19; i7 § 64. OTHER INSURANCE-(»n«r -^. waiver by adjuster, Si' 3 42 ; 346 § 23. effect of compromise, settlement and payment, 831 8 24: 234 8 40- 237 § 53. B • 8 I wiiat constitutes, 217 § 2; 318 § 6, 8. 10; 219 8 14; 221 S 21 23- 222 § 28, 29. 33; 233 § 38, 39; 335 § 46; 238 § 50; 227 § 55'; 3!)9g2; 400§4, 5. ^ ** ' two policies containing same condition, 220 § 17; 331 §84; 320 §52. mortgagor and mortgagee, 181 § 41, 48. effected by mortgngee, 225 § 47; 236 § 49; 400 § 5. mortgagee, how aflected by, 179 § 80; 180 § S3. by mortgagor, after assignment of mutual policy to morteaprcc, 20O § 97. ^ policy voidable only, 218 § 7; 326 § 53 ; 400 § 4. estoppel parol contract, 238 § 41. csfo])pti by fraudulent representations of agent, 94 § 8. motive in obtaining, immaterial, 323 § oO. assured holding certificate sul)ject to terms and conditions of policv, 325 i? 45. after assignment of policy, 224 § 43. company not having complied with statute, 225 § 48. renewal not effecting, 28(5 1^ 5. defense of, available luider general issue, 344 § 37. prove! by parol, 331 § 25. niateriaiily of representation, 223 § 37. warranty and representation, 356 § 14. condition precedoit, 317 g 4. ignorance of assignee, 219 § 16. indorsement does not create. 219 § 15. permission applies to prior as well as sul)acqucnt, 218 § 0. policy issued to tenants in common, 230 § 22. marine policy 230 § 20. c § 19. defensu of, under Maine statute, 223 § 31. conditional on termination of another policy, 71 § 10. OVERVALUATION, what constitutes, 339 § 0, 7, 10; 401 § 1. eftect of, 228 § 4. etlect of knovvledgs of agent. 100 § 37. representation material, 228 § 1 ; 401 § 3. as question lor jury, 356 § 15; 401 § 1. warranty and representation, 350 § 15 ; 363 § 53, 56. open policy immaterial, 238 § 3. renders policy void, 328 § 3. not established by a mere overestimate, 338 § 5 ; 839 § 6. evidence offers of purchase, 339 § 8. defense of, under Maine statute, 229 § 9. I 21 ; 33« 41 ; 887 13. J§ 109. PAROL CONTRACT, authority of company to make. 2:',0 § 3; 233 § 14; 837 § 88, 89. authority ofagenl. 7 §24; 13§58; 3;>-0§5; 232 § fl; 234 § 83; 2S6 §33, 34; 401 § 1; 403 § 3. authority of clerk, 335 § 28. sutlicicnt to sustain action, 230 §3. evidence to sustain, 232 § 10, 13. „,> „„„o.,. essentials of, 233 § 16, 19; 234 § 23; 285 § 24; 230 § 35; 838 § 4J, 44; 403 §3, 3. 446 INDEX. PAROL CONTRkCT— continued. evidence must be clear, 233 § 18. eabject to tertna and conditions of policy as nsanlly issued, 225 § 45 ; 230 § 1; 231 § 8; 332 § 11 ; 2H;i ^ 17; 234 § 20; 235 § 25. subject to statutory conditions in Canada, 23ii § 30. assured bnund to rIvc notice of other inaurance, 234 § 21 ; 238 § 41. not necessary that consent to other insurance indorsed, 232 § 8: 236 §31. damages, 7 § 24 ; 235 § 27. decree for delivery of policy and recovery of amount in one action. £33 § 15; 235^26; 238 § 43. by marine company, inference as to, 295 § 22. in Qcorgia, sustained by estoppel, 233 § 18. premium as an clement, 336 § 29. to renew, 333 § 19. not extended by implication, 236 § 32. suit in equity, 337 § 36. no merger into policy, 337 § 37. aBSured may recover amount under policy in suit by company to have parol contract decreed void, 237 § 40. PARTIES TO ACriON, partner who has acquired entire interest, 27 g 23. administrators to use of vendee, 24 § 7. (See Who May Sob.) PARTNER, transfer of interest, 27 § 18, 19, 21 ; 30 § 37; 46 § 18. PARTNERSHIP. transfer by one partner o" interest to third party, 84 § 63. as affecting title, 308 § 14. effect appointment of reeeiver, 89 § 34. one who has acquired entire interest may sue, 27 § 22. cttect of act of forfeiture by one insured by mutual company, 195 g 72. PAYMENT OF IiO.SS, delay of sixty days substantial right, 239 § 3. loss becomes immediately due on denial of all liability, 253 § 8. sixty days runs from time furnishing proofs originally, 239 J? 1. sixty da>s runs from time examination delivered to company, proof being waived, 260 § 78. examination docs not extend period for, 117 § 1. to mortgagee, efl'ect of, 3a5 § (J. payment of partial loss reduces insurance, 238 § 2. PLACE OF .MAKING CONTRACT, application forwarded from one State, policy is- 1 in another, 240 81- countersigning by agent, 210 § 2. where application iiccepicd i;nd policy mailed, 240 § 3. bonds of agents, 48 § 4. PLAN, reference to, 37 2 g 97 ; 378 i^ 4. (See Diagram; Wahuanty and Rephebbntation.) PLEADING AND PRACTICE, pleading must show forfeiture, 241 § 1. pleading applicition, 244 § 85. other insurance, incumbrance, use and occupation, increase of risk, mav be proved under general issue, 244 i? 27. waiver must be pleaded, 2i2 {5 12; 844 § 29; 245 § SO. reformation not necessary to sustain proof of waiver, 358 g 67. averment of pcrlurmaDce allows proof of waiver, 100 ^ 45; 243 8 16, 21. INDEX. 447 225§4?5; 25. 238 § 41. !§8: 230 ne action. y to have ,105 g72. §8- iiy, proof ther, 240 H.) of risk, 57. 45; 243 PLEADING AND PRkCTlCE-continued. if condition requirea written request, answer must aver it. 242 S 10 necessary to prove request for arbitration, 42 § 14. avermentof compliance with conditions precedent, 241 § 3; 242 § 0; conditions of policy by parol contract, 231 § 6 in suit upon parol contract, compliance with' "conditions precedent, 8 g 33, 87 ; 403 § 3. may be furnished by wife of assured, 104 § 11 ; 251 § 3. by mortgagee or party to whom loss is payable, 2155 § 73, 74, 75 ; 207^83; 384 § 1. sworn to by one partner, 258 § 30. by whom furnished policy assigned in trust, 257 § 29. ent, 7 g 21. r § 73. J18 § 15. §4. 34. 10; 248 §11; 14. J, 249 §19, 13. to storing or 70^7. INDEX. 449 193 § C3. 181 § 40. §83. uutof S2)0cial, 253 §9; 355 §7. 3. ' § 73, 74, 75 ; PROOFS OP LOSS— eontimed. policy insuring the people, 254 § 15. objections must be promptly and specifically made, 253 8 7- 256 § 24; 261 §50; 403 § 3. ' 8 . objections must be pointed out in time to be remedied, 254 8 11. in objection compnny not bound to specify all its defenses, 2B0 § 47i eflfect of statement of amount claimed, 257 § 25, effect of false statement as to title, 255 § 30', statement as to incumbrances, 258 § 38. as evidence, IIG § 91 ; 257 § 31. * , honest statement of facts, 201 § 52. substantial compliance all required, 262 ^ 56. assured bound only to furnish such particulars as within his power 251 §1; 201 §51. assured not bound by statement in, 254 § 13, 14; 262 § 57; 267 8 85; 403 §4 ° delay of sixty days substantial right, 239 § 3. mailing of. 264 § 70. waiver; 97 § 19; 251 § 1, 2; 252 § 5; 254 § 10: 256 § 22; 357 § 28, 30; 258 § 34, 35, 39; 259 § 40, 43; 200 § 44, 46, 47, 48; 261 § 49, 63, 54 ; 262 § 55, 58, 59 ; 263 § 61 , 63, 64, 65 : 264 § 67, 68, 71 ; 26(1 § 78. 79, 80, 81; 267 § 83, 86; 3i ,•. § 1; .'?43 § 5; 349 § 35 ; 404 § 5. waiver by arbitration, 263 § 65 ; 348 § 29 ; 410 § 4. denial of liability as waiver. 252 § 6 ; 253 § 8 ; 403 § 1. authority of agent to waive, 11 § 46. waiver under Canada statute, 404 § 6. facts undisputed question for court, 257 § 27. compliance and waiver question for jury, 255 § 19; 256 § 23; 257 § 32; 264 § 69; 267 § 84; 404 § 7. signature of magistrate presumed to be genuine, 61 § 5. conditions in regard to, annexed to policy, 262 § 60. assured holding iour policies bound to furnish one, 2C3 § 66. right to inventory. 266 § 76. if waived and assured examined, sixty days runs from latter time, 266 § 78. sufficiency of, furnished to re-insuring company, 254 § 13. piirticular account of each item insured must be furnished, 256 § 21. reformation does not require new, 259 § 41. compliance with condition must be pleaded, 241 § 3. QUESTIONS FOR COURT AND JURY, alteration. 36 § 3. cancellation, 55 § 7. payment return premium on cancellation, 59 § 24. agent lor purpose ol cancellation, 270 § 14. concealment, 64 § 1 ; 65 § 9. incumbrance, 87 § 1 ; 373 § 101. fraud and falce swearing, 2a9 § 8. increase ol risk, 144 § 6, 8; 145 § 11, 12; 148 § 28; 269 § 13 ; 297 § 4 ; 316 § 52 ; 3^8 § 40 ; 395 § 3. risk in use of stove, 293 § 15. notice of fact affecting risk, 58 § 28. misrepresentation, 270 § 17 ; 365 § 69. overvaluation, 228 § 1 ; 239 § 10; 350 § 15; 401 § 1. reformation, 275 § 8 ; 276 § 16. Btoring or keeping, 298 § 11 ; 801 § 31, 28. Vol. 11.-39 450 INDEX. QUESTIONS FOR COURT AND JURY— continued. use and occupation, 825 § 8 ; 327 § 19. vacant or unoccupied, ViQ § 1 ; a80 § 10 ; 833 § 20; 387 g 34 ; :539 §42, 48; 34U§44. waiver, 247 § 10 ; 845 §17. , breach of warranty. 268 S 4 ; 875 § 108. kerosene oil, 118 § 71 ; 1 10 § 80. explosive nature of nlcohol, 300 § 17. innanimable qualities of liquids, 103 § 6. identity of agent, 115 § 85. nutliority of agent as to premium, 13 § 50. error in writing should bu determined by court, 07 ^8; 208 § 2 ; 270 § 10. meaning of words, 208 § 5, 7 ; 883 § 28. knowledge, 804 § 08. materiality, 208 g 8; 200 § 12; 804 § 03. materiality representation other insurance, 223 § 37. materiality as to title, 354 § 4 notice of loss, 214 g 7; 215 § 10; 217 § 22; 208 § 1. waiver of proofs of loss, 255 § 10 ; 256 § 23 ; 257 g 27, 82 ; 264 § 60 ; 267 §84; 414 §7. opinion as to value, 103 §0. adjustment may be adopted by jury as evidence of value, 102 § 3. building total "loss, 84 §21. ability to furnish bills of purchase, 50 § 5. facts undisputed in regard to certificate, 01 § 0. efforts to save property, 269 § !). jury should give credit for property saved. 269 § II. form of note given to mutual company, 1H6 g23. purpose for which note given to mutual company, 198 §80. alterations, receipt given for premium, mutual company, 802 § 103. notice of assessment, 204^110. reasonable time, 25 § 11 ; 39 g 15 ; 414 § 7. imder Georgia code, jury may apportion loss to each company is.suing joint policy, 75 4^ 8. existence of a fire department, 128 § 7. interest as damages in Buit against railroad company fur negli- gence, 109 § 46. wuat property is covered by policy, 382 § 20. if award nullity should not be considered by jury, 2G9 ^ 10. right of appellate court ns to amount, 268 § 6. flax included in term grain, 270 § 15. whether goods owned or held in trust, 141 § 10. liquors kept for sale contrary to law, 142 § 4. agency, 10 §39. RATIPIOATION, by assured of act of mortgagee in procuring other insurance, 226 § 49 ; 400 § 5. employment of broker, 10 § 86. nets of sub-agent, 8 § 27. necessity of authority, 201 §101. issue of policy, 70 §6; 72 § 11. of acts of agents in countersigning, 6 § 15. of giving of premium note, 192 § 65. acts of agent, 5 §11; 8 §25; 18 §58. no necessity for, when withiu scope of authority, 5 §13. by company custom of agents, 4 § 3. 187 g 34 ; :539 ?8; 3C8§2; 38; 264 §60; m\ue, 103 § 3. 98 § 80. ny, 303 § 103. mpany is.suing iny fur ncgU- insuiaucp, 220 §13. INDEX. 451 RATIFICATION-con«/itMrf. autbority of agents, 4 § 4, by assured, of agent's act in obtaining policy, 4 § 7 ; 80 S 98 (oee AoKJtT.) REIUILD OR REPLACE, damages for failure to rebuild, 371 § 4. company liable to damaKca .■ .used by delay, 378 S 6 when assured has claim for r( nt, 373 § 8. contract of insurance converted to building contract 271 S 3 election must be made in prescribed time, 271 §3 ' ' niust be provided for in contract as origin.illy wriLten. 372 5 10 cttect of rebuilding In u third party, 2?^ §9. ' eflect of rebuilding, mortgagor and mortgagee, 397 S 1 as waiver of conditions in polity, 371 §5. assured should point out ohjectrons during progress of work 373 S 7 an injunction not sustainable restraining exercise of optiou'bv com- pany, 371 § 1. f J ^ RECEIPT, cannot be a release; binding only as to amount paid on one item, 1 § 3. RECEIVER, partnership, no alienation, 39 § 34. of mutual companies, liability to counsel, 205 § 180. mutual company, 19t5 § 78; 197 §79; 207 § 133. (See Insolvency ; Mutual Companib? ) RECOVERY RACK OP LOSSES I'AID, suit on note given by assured for amount paid on policy, 373 5 1 effect of compromise settli-ment, 373 § 3. action maintainable in assumpsit, 373 § 3. (See Adjustment.) REFORMATION, as remedy for fraud or mistake, 93 §25; 274 S5: 276 S I3 13 15 • 377 §18; 405 §2. » . . ^. mistake of law, 377 § 18. mistake as to interest, 21 § 103. what will warrant. 274 § 4, 5. proofs should be clear and satisfactory, 274 § 1 ; 375 § 9 ; 405 § 1 . must express contract actually made, 276 § 17. question for jury, 276 § 16. suit brought for, by company, 874 § 2. company no relief in equity after loss, 275 § 10. suit for, and recovery in one action, 275 §8. parol evidence admissible, 112 §68. mutual mistake necessary, 374 § 107. averments in suit for, 243 § 17. assured not estopped by acceptance of policy, 231 §7. consent to other insurance, 225 § 45. does not require new proofs of loss, 259 § 41. terms of policy cannot be altered by knowledge of agent, 274 § 3; 275 §11. suit not maintainable after failure of action at law, 274 § 6. court cannot make new contract, 375 § 7. laches of assured, 876 § 14. RE-INSURANCE, effect of pro rata clause, 877 § 8; 878 § 4, 6 ; 279 § 9. time of payment, 879 JjlO. right to, does not depend upon payment to assured, 870 g 10 ; 280 § tG. 452 IKDEX. RE-INSURANCE— eonirnwd. notioe of loss, 281 § 17. famishing prnofs of loss, 254 § 13. re-insuring compiiny bound by adjustment of reinsured company with assured, 279 §11, re-insuring company bound by litigatioo, 280 §13; 282 §21. effect of in-iolvency, 278 § 5 ; 279 §6, 8; 280 § 15, rights of re-assui-ed, 281 S 19, 20. company may purchase claims under policies re-insured, and set-off same, 2»0§12. no privity between originally assured and re-insurer, 280 § 14. in Maryland, 279 J? 7. personal liability of directors, 280 § 15. right of re insuring company to relief in equity, 277 §1. policy issued directly to assured, 178 § 3. condition against, 281 § 18, effect of violation of condition by originally assured, 283 § 23. effect of increase of risk by consent rc-insured compiiny, 283 § 22. REMOVAL, of property insured, 145§15; 287§11; 290§1,4,5,8; 292§11,12; 2P3 § 13: 294 § 18; 295 § 24. verbal consent in Georgia, 233 § 13. (Sue Locality; Warranty and Representation.) REMOVAL OF CAUSES TO UNITED STATES COURT. when petition can be filed, 284 §4, 6; 285 §7, 10; 405 § 1. cause must be at issue, 284 § 6. effect of jdinder in aciion with home corporation, 285 §9. effect or anpointnicnt of agent within State, 284 § 1, absolute right under Constitution, 284 g 2. corporation citizen of State which creuti.s it, 284 § 2, 3, right to removal docs not depend on order of State court, 284 § 5. citect of relusal of State court, 2S5 § 8. statute prohibiting, 130 §21; l;)l§22, (See Foreign Company,) RENEWAL, with knowledge of forfeiture as waiver, 280 § 1 ; 287 § 7, 9 ; 842 § 2 ; 318 §21 ; 350 §45; 400 § I. effect of, with knowledge of change of interest, 16t § 25, delivery of, witii knowled;e of changt* of location, 93 §5, with knowledge of incumbrance, 1 1 1 § 57. knowledge ofasHurcd of increase of risk immaterial, 288 § 12. effect of alteration, 30 j} 3, authority of broker, 7 § 23, by parol, 233 § 10. warranty by, 372 § 90. continues conditions in force, 287 § 8, 10. representations in original application considered as being made at time of renewal, 288 § 14. promise not equivalent to contract, 280 §2. change of risk means increase of risk, 286 § 3. premium may bo paid by any person, 280 § 4. not effecting of other innurance, 28(1 § 5. what constitutes, 280 §6, may be issued to one of several parties originally insured, 288 18. clause for, docs not continue policy when there has been increase of risk, 148 §20. policy treated as written on day of, 160 § 6, application for, by assignee, 46 § 16. i INDBX. 453 REPAIRS, 160 § ; 380 § 1. S, 3 ; 395 g 3. (Sec Rebuild ou Replace.) RESCISSION, of adjustment obtiiincd bv fraud, 181. RETURN PREMIUM, ® must be paid or tendered to assured to efTeat cancellation, 518-1. (See Cakcellation; Premium.) " RIOT, 394 8 19. RISK, locality of property insured, 390 §3.3,4: 39185.8: 392 8 11 12' 393 §18; 294 818; 3i)3§ 24; 400 gl. 8 - . (See Locality; Warranty and Representation.) ' removal of goods, SS? § 11. may terminate before expiration of policy, 394 §31. under open policy, 391 § 6. use of stove, 293 § 15. riot, ,294 §19. invasion, 293 § 9 ; 294 § 17. on vessel, 294 § 30 ; 295 § 23. veasel submerged to prevent damage, 3C3 § 14. vessel in dry dock, 391 § 7. vessel lying at anchor, 293 § 16. vessel lying at wharf, 393 § 10. exemption from liability, 53 § 3. delivery of renewal with knowledge of change of location, 03 § 5. loss by freshet not covered by insurance against loss by storm, 290 § 1. insurance by marine company authorized, to insure against firo, 895 §33. SALTPETRE, storing or keeping, 39b § 10. (See Stoking and Keeping.) SAVING OP PROPERTY, efforts of assured, 113 3 08. SET-OFF, claims purchased by ro-insuring company against amount due under cpntract of re-insurance, 280 i? 13. (See Damages; iNsoiiVENCY; Mutual Companies.) SOLICITOR, agent of company, 19 § 87. (See Agent; Hiioker.) STATUTE. effect of, on right to contract, 334 § 61. valued policy, 343 § 3, STATUTE OP FRAUDS, alienation void by, 37 § 33. STATUTE OP LIMITATION, assessment in mutual companies, 193 § 61. declaring contrict void, eti.-ct of, upon waiver, 410 § 1. (See Limitation Clause.) STORING AND KEEPING, knowledge of agent, 100 § 37; 399 § 13; 301 § 33; 407 § 3. estoppel by statement of agent that policy covers, 100 § 34. presumption as to knowledge of company, 297 ^ 5. notice to company in applicati(m, i03 § 8. quantity, 396 Ji 2 ; 398 § 11 ; 399 § 13. question for jury, 298 g 11 ; 301 § 21. 23. prohil)ited article part ol stock, 297 § 3, 6; 299 § 13, 14, 15; 800 820; 301 §33 lino of business, 296 § 1 ; 397 § 3; 399 § 14, 15; 300 § 30. expert testimony, line of business, 105 § 16. materials used in busines.s, 297 § 6. kerosene oil, 397 § 7 ; 298 § 8; 299 § 13; 300 § 18; 301 §33; 406 § 1. flour dust, 122 § 9. 454 INDEX. STORING AND KEEPING— eontinved. liquors contrary to law, 14^ § 4. saltpetre, 298 § 10. gasoline, 299 g 12. fluid for lighting purposes, 300 § 16 ; 407 § 2. alcohol, 800 § 17. naphtha, 406 § 1. gunpowder, 209 § 14. evidence of, on issue of fraud, 298 § 9. effect of rate of premium charged, 297 § 3. does not affect clause against increase of risk, 297 § 4. no in'crence that policy is sent as compliance with application, 296 1$ 1. STOVES AND PIPES, warranty and representation, 355 § 7; 412 § 4. SUB-AGENT, authority of, 8 § 27. (SeeAoENT; Bbokeb.) SUBROGATION, who may sue, 802 § 3; 305 § 11 ; 414 § 3. damnges, 303 § 7. interest part of damages, 109 § 40. mortgagor and mortgagee, 176 § 16; 178 § 28; 179 § 30; 180 § 42 ; 182 §46, 47; 302 § 4. lessor and lessee, 804 § 10. vendor and vendee, 802 § 2. when company acquires right, 304 § 8. liability of party whose wrongful act caused loss, 303 § 7. suit maiutamable in another State, 803 § 5. not prevented by release signed by assured, 303 § 6, action should be brought iu name of company and assured jointly, 887 § 20. right to, does not depend upon company being legally bound to in- demnify assured, 302 g 1. injunction at instance of company restraining settlement of suit brought by assured against wrongdoer, 304 § 9. (See MoBTGAflOR and Mortoagkk.) SUNDAY, contract made on, 142 § 1. SURVEY, omission to mention house, 360 § 84. reference to, in policy, 359 § 30. (See Diagram; Plan; Warranty and Representation.) SURVEYOR, the word, does not limit the word agent in written nuthurity,ll g 48. TAXATION, foreign comfinny, 185 § 48; 116 g 64. agent of foreign company, 127 g 1. for purpose of fire department, 132 § 28. sale for taxes, 81 § 47. tnx on premiums, 305 § 2. on amount of premiums collected, S05 § 1. foreign companies in Georgia, 135 § 40, 47. in St. Paul, 131 § 24. in Memphis, 132 §81. (See Foreign Companies.) TENDER, of amount received on adjustment rescinded for fraud, 1 § 1. of return premium. (See Cancellation.) THEFT, 306 §1. INDEX. TITLE, plication, §4. 180 g 42 ; 1 jointly, ind to in- tt of suit STATION.) y,ll§48. 1. knowledge of agent or company, 100 § 37; 300 § 2; 307 ^ U; 315 § 4b; 411 § 0. estoppel by agent's failure to insert interest in policy, 96 ? 18 policy issued without application. 31J ^ 43; 310 § 51. ' waiver by unanswered questions in application, 408 § 3 warranty and representation, 355 § 8; 357 § 17, 20; 358 8 25; 359 g 28, 29; 364 g 63; 365 § 60; 3(17 § 75; 308 § 80; 369 8 82; 371 § 90; 373 § 98 ; 374 § 103; 408 § 4. fraudulent representation as to iacumbrance, 408 § 2. concealment, 65 § 6, 9. what constitutes ownership, 409 ^0. interest under contract of purchase, 309 § 17; 312 § 35. possession under contract of purchase-, 308 S 13; 310 !^ 23 ; 314 S 43• 310 § 54 ; 408 § 5. ' lien reserved by vendor, 307 § 10 ; 3i0 ^ 26; 311 § 29; 314 § 45. clmttel mortgage, 306 § 4; 307 § 8 ; JOO § 16; 311 § 32 ; 313 § 34 ; 313 §39; 314 §41. * ' deed of trust, 310 §23. void tax sale, 154 § 21. of assignee, 29 § 33. assured insured as superintendent, 318 § 57. married woman under will, 315 §47. tenant from year to year, 306 § 1. possession of tenant, 317 § 56. letting house to tenants, 33 § 59. " partial vacancy, 28 § 25. partnership, 308 § 14. lease, 310 § 25, 27; 311 § 28, 31 ; 313 § 39. warehouse receipts, 300 g 3; 309 § 20. trespasser, 311 § 30. purchase at orphans' court sale, 312 § 37. dower, 814 § 40; 316 § 52. lien, 317 § 50. when required to disclose, 309 § 19, 21. competency of evidence of assured's wife, 104 § 11. insurance under an assumed name, 157 § 45. conveyance obtained by fraud, 308 § 12. goods in auctioneer's hands, 309 § 18. wood piled under contract, 307 § 9. policy to separate parties lamed, 308 § 15. naked possession, 310 § 24. not wholly detirmined by record, 312 § 33. interest of third party in profits, 313 § 38. as interest may appear, 313 § 30 ; 316 § 49. owning majority of shares, 315 § 46. variance in name, 306 § 2 ; 314 § 44. what sufficient description. 314 § 43. ert'ect of acceptance of policy, 315 § 48. notice l>y making loss payable to third party, 315 § 30; 403 Jj 1, 5. right of reconveyance, 318 § 59. policy issued to two jointly, 318 § 00. lien lor unpaid debt, 318 § 58. buying property tiirough another, 317 § 55. possession under verbal gift, 316 § 58. half owned by assignee, 318 § 61. as affected by validity, 319 § 63; 409 § 6. as affected by verbal arrangements, 318 § 01. 456 INDEX. TITLE— emtinued. eate on judgment and execution, 807 § 7. possession and ants of ownership, 307 § 5, G. effect of false statement in prools, 255 i; 20. waiver of objection by renewal, 340 § 21. materiality question for jury, 254 g 4. effect of mortgagee clause, 397 § 2. deed not admJEsible in evidence without proof of record and de- livery, 112 § 02. (See iNSUKABTiE Inteuest ; Interest in Policy.) TOTAL LOSS, not absolute distinction, 68 § 15. TURPENTINE, storing or keeping. 300 § 20. (See Stohing and Keei'ino.) TWO-THIRDS OR THREE-FOURTHS CLAUSE, effect on contribution, 74 § 1. applies to each item, 320 § 1. mutual companies, 189 § 37; 205 § 118. UNITED STATES CONSTITUTION, foreign compnny transacting business through agent not engaged in commerce. 130 § 19. USAGE AND CUSTOM, when evidence admissible, 110 §68; 330 § 1, 2, 8, 4. cnncellation, 57 j5 17, 18. effect of, on consummiition of contract. 73 § 14. relerence to business or occupation, 322 tj 10. what property is covered by policy, 382 ^ 20. other companies in writing policies, 320 «? 3. as to policies issued to other parties, 56 § 11. presumption, 320 § 4. cannot be inTerrcd, 321 § 5. amount of stock on hand. 320 § 2. wiicn assured bound by, 87 § 1. among biokers, 108 § 38. USE AND OCCUPATION. knowledge of agent, 323 § 4 ; 325 § 9: 336 g 12; 327 § 18. i)i-esumption ns to knowledge of company, 380 i^ 12. incidental to business, 324 t? ; 325 ^7;' 326 g 12. presumption as to knowled^ e of business, 320 § 13. change of, 326 ^15, by tenant, 323 § 1. change of tenants, 327 8 17. extra hiiziirdous purpose, 323 § 8. occasional use, 327 ^ 16. as affected by taking shavings from one building to another,325 g 11. increase of risk, 324 g 6. not affected by question of increase of risk, 323 g 3. when policy issued as affecting question, increase of risk, 824 § 5. hotel, does not prevent being homestead, 327 § 20. qutstion for juiv, 325 J? 8; 327 g 19. waiver, 325 S 10; 326 § 14. warranty and representation, 854 ^ ; 350 § 31 ; 363 § 48: 308 g 5"), 5? ; 360 S 71, 72 ; 869 § 84 ; 373 § 100 ; 374 § 106 ; 4 12 § 3. declaration of assured, 118 g 70, 72. explosion of engine incidental and essential to business, 110 § 2. dctensc of, available imder general issue, 244 § 37. effect rate of premium, 825 § 8. • defense of, under Maine statute, 837 § 10. I IliDBX. 457 VACANT, OR UNOCCUPIED, notice ce to or knowledge of agent or comuanv I00aft7. aud de- ;agcd in I25gll. 1§B. fi3 g 0.-.. ^3. 333 §13; verbal consent to, 95 § IfT. notice to agent of intended vacancy, 06 8 17: 329 8 6 whatj|tUute8. 330 § 11 ; 331818; 334§26; 335§87; 837§34; within control of assured, 146 § 16; 333 818 beyond assured's control, 328 § 3. as to increase of risk, 143 § 1, 3; 147 § 25 ; 332 § 15; 836 S 81 leaving few articles of property in the house, 829 § 8 ; 833 § 16 ; 884 8 a ; oaV 9 41. «» > leaving tenant, 338 § 40. change of tenimts, 335 § 29, 30. Eortion of a tenement-house. 833 8 22. otel. 340 8 44. ** dwelling, 341 § 46, summer residence, 336 § 32; 340 § 45. school-house, 387 § 35. mill or factory, 338 § 88. boat, 835 § 28. sawmill, 333 § 19. s3, 117 § 4 ; 314 § 0, 8 ; 215 § 9 ; 216 § 16 ; 268 § 1 ; 345 §19. certificate, 62 § 14 ; 342 § 3; 410 § 3. must be pleaded, 242 § 12 ; 244 § 29; 245 § 30. averment performance, allows proof of, 343 § 16, 21. evidence of, 109 § 45. question (or jury, 255 § 19; 345 § 17. of unanswered questions in application, 37 § 3, 6, 7 ; 350 § 43 ; 408 §3. defense, increase of risk by neglect to cancel, 144 § 7 ; 145 § 15. alienation, 30 § 38 ; 34 § 62. other insurance, 319 § 11, 13, 13 ; 234 §42 ; 226 § 51 ; 337 § 54 ; 345 § 18; 349 § 39; 351 § 47; 353 § 51 ; 400 § 3. title, 306 §3; 307 §11; 313 §30; 315 §48; 411 §6. use and occupation, 325 § 10; 326 § 14. vacant or unoccupied, 338 § 36; 344 § 11 ; 349 § 37. payment premium, 9 § 30 ; 56 § 11 ; 212 § 153 , 246 §1,3; 247 § 7, 10 ; 248 § 11 ; 249 § 16, 22 ; 344 § !«, ; :. limitation clause by agents and adjust-.' ;• -' 37; "167 § 2, 4; 108 § 6, 7, 8; 170 8 18 ; 171 § 22, 33 , J'. ^ ;■ • 343 § 5 ; 403 § 1. breach of warranty, 351 § 50. cannot cure want of insurable interest, ii'<>l 1 knowledge essential, 849 § 86; 350 § 43, 4« ; 351 § 48; 353 § 5',>, 63, 64. failure to make objection, 351 g 50; 353 § 51. laches of company misleading, 350 § 41. policy voidable only, 348 § 30 ; 349 § 36 ; 350 g 41. authority not presumed, 350 § 40. what constitutes, 846 § 30; 847 § 36; 348 § 38; 849 § 35; 361 § 48; 353 § 63 ; 353 § 55. by verbal consent, 346 § 23; 347 § 35. delay and silence not enough, 349 § 38; 358 § 66. evidence of officer as to his own power, 109 § 47. evidence of, in other cases, 104 § 12. must be intentional, 36 g 68. distinction between conditions affecting claim and those operative after a loss, 843 § 9. INDEX. 45d WAIVER— eoMinued. ■ promise to indorse consent, 343 § 8. may bo inferred, 343 § 7. effect false representation of assured, 343 § 6. not necessary to reform policy, 353 § 57. condition requirinsf written consent, 348 p 31. when conditions of policy operative, 34^ § 16. after issue of policy, 346 § 33 ; 410 § 2. by demanding proofs of loss, 349 g 36. by demanding plans and specifications, 344 § 14. condition requiring full disclosure of facts effecting risk, 344 § 13. by direction of company, to save property, 351 § 49. by silence, on notice of risk under open policy, 391 § 6. by election to rebuild, 271 § 5. not 80 easily established when relates to validity of claim, 67 § 9. by mutual companies in receipt of assessment, 203 § 111 ; 204 8 115 : 211 §149. non-payment of assessment, 204 § 1 1 3. mutual company, by assessment, ISO g 21 ; 200 § 96; 202 § 105. by mutual companies, payment of premium, 209 § 138. mutual company, of assessment, 209 § 140. by mutual company in assessment, with knowledge uf forfeiture, 183 § 1. payment of premium to mutual companies, 186 § 25. by mutual company, 203 § 109. by return of policy by mutual company, 201 § 49. forfeiture by mutual companies, 197 § 83. (See Mutual Companies.) acceptance of premium waives condition suspending liability, 103 §63. by payment of dividend, 399 § 5. of proofs, under Canada statute, 404 § 6. effect of statute declaring contract void, 410 § 1. WAREHOUSE RECEIPTS, 306 § 3 ; 309 § 20. WARRANTY AND REPRESENTATION, distance between buildings, 358 § 26 ; 375 § 109; 411 § 1 ; 412 § 5; 413 §7,8. incumbrance, 90 § 21 ; 368 § 81 ; 370 § 80; 372 § 94 ; 373 § 99, 101, 102; 374 § 104; 377 § 89; 408 § 2. incendiary fire, 354 § 3; 367 § 78 ; 413 § 6. other insurance, 356 § 14. overvaluation, 356 § 15; 363 § 53. 56 ; 401 § 2. title, 309 § 31 ; 355 § 8 ; 357 § 17, 20 ; 358 § 25 ; 359 § 28, 29; 304 § 63; 365 § 66; 367 § 75; 368 § 80; 369 § 83; 371 § 90; 373 §98; 374 §103; 408 g 4- occupation, 822 § 10; 323 § 4 ; 354 § 5, 6 ; sno § 31 ; 362 § 48; 363 § 55, 67 ; 366 § 71, 72 ; 369 § 84 ; 373 § 100 ; 374 § 106 ; 412 § 3. vacant or unoccupied, 362 § 50 ; 366 § 74. value, 360 § 36 ; 361 § 44. goods in store when contained in tavern, 86 § 4. void tax sale, 154 § 21. mortgage, 307 § 8. brick fire wall, 371 § 92. 8 § 3; iiU § 4 ; 857 § 19; 362 § 45, 49; 803 § 50 ; 804 §03; 365 §67; 370 § 88. ambiguity, 355 § II ; 368 § 81. not extended by construction, 861 § 48; 363 § 54. breach must be substantial, 355 § 9, 10; 375 § 108. representations made warranties by coudilion, 856 § 16; 360 § 88; 414 § 0. question for jury, 270 § 17; 375 § 108. parol evidence inadmissible, 374 § 107. waiver, 851 § 50. promise or stipulation, 354 § 1. breach in respect to one item, 370 § 83. in regard to time, 354 § 1. warranties must bo true at time delivery of policy, 367 § 77. effect of statute, 364 § 61. under Oeorgia statute, 364 § 60. under Massachusetts statute, :!00 § 38; 363 § 46; 374 § 103. under Kentucky statute, 334 § 58 induced by fraud of compiiny's agent, 371 § 93. use of word warranty not necessary, 370 § 87. representation honestly made, 357 § 18. ■ warranty construed without reference to risk, 358 § 24. not necessary to refund premium, 800 § 33. as to rate of premium, 305 § 68, 00. expressions of opinion and belief, 371 § 91. breach of, must bu set up in answer, 211 § 4. effect of application for renewal, 378 § 90. no forfeiture if representation true at time of renewal, 888 § 14. truth of condition precedent, 302 § 47. indorsement becomes warranty on renewal under Canada statute, 412 § 2. INDIilX. 461 12; 293 CI); 373 3 § 7, 8. [cnt, 863 CO; 364 C6; 864 (60 § 82 ; §14. . statute, WATCHCLOCK, effect of knowledge of agent, 119 8 P7 WATCHMAN, ' ' continuing obligation, 370 § 3. effect of levy by sheriff, 376 § 1. warranty and l)reach, question for jury, 268 § 4. effect ot knowledge on breach of warranty, 377 8 8 substantial compliance, S78 § 2; 377 § C. WHAT PROPERTY 18 COVERED BY POLICY, in trust or on consignment, 378 § 1 ; 382 § 24. belonging to assignee, 45 § 14. additions to stock, 231 § 7 ; 383 § 29. machinery, what includes, 378 § :j ; 379 § 8; 880 § 14 ; 383 § 27 tools and apparatus, 381 § 17: 382 § 23. stock of hair, wrought and raw, and in process, 381 § 18. heater, 382 § 19. dry goods, 382 § 20. all or either of certain buildings, 379 § 9. freight cars, owned or used, 380 § 10. property in freight buildings, ;i80 § 11, effect of use of word " materials," 380 § 13. specific property in warehouse, 378 § 2. live stock, 379 § .5. mule-power r.ot part of gin-house, 160 5 6. stock in tannery, 379 § 7. hay existing at date of policy, 382 § 21. what included by mill, 382 § 22. cellarwall, 380§ 13. plate, 381 § 15. wheat, in stack, 381 § 16. guano includes fertilizur, 383 § 20. dies, 383 § 28. presumption as to knowledge of company, 380 § 13. removal partitions in a store, 378 § 4. contained in, 382 § 25. as a question for court or jury, 270 § 15; 382 § 20; 383 § 28. oral evidence admissible to show, 112 § 63. property belonging to other persons destroyed by sparks from plaint- iff's engines, 379 § 6. WHO MAY SUE, administrator, 162 § 13; 384 § 2; 386 § 15. administrator and heir may join, 383 § 16. party to whom loss is payable, 161 § 9; 884 § 3, 4; 385 § 11; 386 §12, 14; 414 §2. mortgagor and mortgagee, 174 § 6; 178 § 23; 384 § 1; 386 § 17; 387 §18; 414 §1,2. mortgagee and assignee of mutual policy, 203 § 108. pioper to join assured and party to whom loss is payable, 386 § 13. insurance on goods in trust or on commission, 385 § 5, 7, 9. subrogation. 302 § 3; 305 § 11. State in possession, 152 § 12. all parties interested in insurance, 159 § 6. policy obtained account of other owners, 385 § 5. assured may recover to extent of interest, 885 § 10. factor holding policy in his own name, 885 § 9. assured not necessary party, 385 § 8. r 402 INDEX. WHO MAY SUE—eontinued. trustee of espress trust, 885 § 7. companies nnd assured should join to recover damages from (Ire caused by wrongful act, 387 § 20; 414 § 3. assignee and real party in interest, 887 § 19. parties to mutual policy, 184 § 7. WILLFUL BURNING, must be specially averred as a defense, 244 § 23. company not liable for act of agent or adjuster, unless autharizod or ratified, § 34. (Bee BcRNiNO dt Dbsiqk.) WISCONSIN STATUTE, as to valued policy, 83 § 17. ,N '^O ^l:i WaoiK NuMBEB OP Paoes, 490. from fire larjzcjcl or N, N. ■\