Watertown Fire Ins. Co. v. Cherry (Va. S. C. A.), 3 Southeastern Reporter (Dec. 20, 1887), p. 876.

Policy-Ownership Incumbrance.-The policy provided that if the interest of the assured in the property 66 does not amount to the entire, sole and absolute ownership # there will be no liability." Held, that the stipulation does not refer to the matter of incumbrance, but to the character and quality of the title, whether that of a fee simple, leasehold, or otherwise.

Incumbrance-Assignment-Consent of Company-New Contract.-A policy covering property incumbered by mortgages executed subsequent to its issuance was assigned to the purchaser of the property with the consent of the company, "subject to all the terms and conditions of insurance mentioned and referred to" in the policy, which provided that the acquiring by a third person of all insurable interest in the property, by virtue of a mortgage executed by the assured subsequent to the date thereof, should cause the immediate termination of the policy, unless otherwise provided by special agreement expressed in the body of the policy. Neither the company nor the purchaser and assignee had any actual knowledge of the existence of the mortgages at the time the company gave its consent, or when the purchase and assignment were made. Held, that the consent of the company to the transfer of the policy was the creation of a new contract, and the assignee took it free of all vitiating circumstances, and upon the same terms as those upon which it was originally issued to the assignor, and that the company was estopped from denying its validity, either on the grounds of ignorance, or for want of consideration.

Ellis v. Ins. Co. of North America (U. S. C. C.), 32 Federal Reporter (Dec. 20, 1887), p. 646.

Agency-Evidence.-M. resigned his agency, and, seeking the appointment of his son in his place, wrote as an inducement that the work of the latter would be under his immediate supervision. Another agent, through whom this was communicated to the company, added that the business would be run the same as before, but that he, M., "desires his son to learn the business, and have some responsibility, and takes this method." The son, having been thereupon appointed, Held, that the evidence justified the finding that M. had authority to act for the com

pany.

Evidence-Complete Contract.-The evidence tended to show that it was understood between plaintiff and M., who had resigned the agency as above cited, that when the policy should expire a new policy should be issued instead of a mere renewal, and that $500 of the $2,000 insured should be placed on the engine and boiler, the terms remaining in other respects the same as before. Nothing further was done until a few days after the policy expired; then the son of M., who had been appointed

agent, went to plaintiff to learn how he wanted the new policy made, and the same terms were named, but, for some reason, the policy was not then made. On July 28, M., at the request of his son, went to plaintiff to ascertain again how he wanted the insurance placed, and the terms were again stated. M. then returned to the office, and a policy was made out-in accordance with this agreement-by a clerk in the office, who signed the agent's name to it. It was not, however, delivered until the next day. In the mean time, on the evening of July 28, the property was partially destroyed by fire. It further appears that it is the custom of this defendant, and of insurance companies generally, to make the contract to run from noon of the day when the agreement is made, and to collect premiums at the end of the month. Held, the con tract was complete.

Fraud-Pleading.-There being no averment by the defendant that the contract provided that fraud in the proof of loss should avoid the contract, and it not appearing that the plaintiff consented to litigate that question, the defendant was not in a position to avail himself of that defense.

Ganser v. Fireman's Fund Insurance Co. (Minn. S. C.), 35 Northwestern Reporter (Jan. 14, 1888), p. 584.

Policy-Construction-“ Premises" Defined.-The policy prohibited the keeping of fire-works on the insured premises. The building insured was situated in the exposition grounds, where there was also a stable some twenty-five or fifty feet distant, in which fire-works were stored at the time of the fire. Held, that the meaning of the word "premises" is confined to the building insured, and the policy was not avoided.

Same-Same.-A policy of insurance is in the words of the insurers, and, in case of doubt, should be construed against them.

Same-Proof of Loss-Waiver-Jury.-The policy required the insured, in case of loss, to furnish proofs, which he failed to do. The insurers submitted the amount of loss to be ascertained by appraisers. Held, sufficient evidence of waiver to go to the jury.

Allemania Fire Ins. Co. et al. v. Pittsburgh Exposition Society (Pa. S. C.), 11 Atlantic Reporter (Jan. 4, 1888), p. 572.

Cancellation of Policy-Notice to Broker.-The policy stated that notice of cancellation by the company should be given to the assured. It contained a further provision that, if the policy was procured by a broker, the broker should be considered the agent of the assured, and not of the company. The company canceled the policy on its books, and gave notice to the broker who procured the policy. Held, that the broker was not the agent of the assured to receive notice of cancellation.

Same-Custom.-Defendant pleaded that it was the custom in that particular city to give notice of the cancellation to the broker. Held,

that such a custom, even if it existed, could not avail to override an express stipulation in the policy requiring that notice should be given. to the assured.

Mutual Assur. Soc. of Va. v. Scottish Union & National Ins. Co. (Va. S. C. A.), 4 Southeastern Reporter (Jan. 10, 1888), p. 178; 25 The Reporter (Jan. 18, 1888), p. 88.

Statute-Acts XVIIIth General Assembly, Ch. 211, 22-Misrepresentations-Copy of Application not Attached to Policy-Demurrer. The defendant pleaded false representations in the application. Plaintiff demurred, for the reason that no copy of the application was indorsed upon, nor attached to, the policy, as required by the Acts XVIIIth General Assembly Iowa, ch. 211, 2, providing that "all insurance companies shall attach to such policy, or indorse thereon, a true copy of any application or representation of the assured which may, in any manner, affect the validity of such policy;" and that, "if any company or association neglects to comply with the requirements of this section it shall forever be precluded from pleading, alleging or proving such application or misrepresentation." Held, that the demurrer was properly sustained.

Premium Note-Notice of Maturity-Statutory ConstructionLaw, Iowa, 1880, Ch. 210, ? 2.-Laws of Iowa, 1880, ch. 210, ? 2 (McClain's Code, 299), relating to forfeitures of policies, provides that where a fire insurance company shall take a note for the premium on the policy, written notice of the maturity of the note shall be given to the insured, and that "such notice may be served by registered letter addressed to the insured, and no policy of insurance shall be suspended for non-payment of such amount until thirty days after such notice has been served." Held, that service is complete when the registered letter is mailed.

Mc Kenna et al. v. State Ins. Co. (Iowa S. C.), 35 Northwestern Reporter (Jan. 7, 1888), p. 519.

Sale-Deed as Mortgage-Defeasance Back Not Recorded-Statute. Where the owner of property conveys it to another by deed, absolute in form, and duly recorded, and at the same time, and as a part of the same tranaction, takes from the grantee a bond, which is not recorded, to reconvey the same upon his indemnifying the grantee against any damage by reason of his having become surety for the grantor upon a recognizance, the transaction is a mortgage and not a sale, and does not avoid a policy on the property under a provision that the same shall be void "if the said property shall be sold" without the written consent of the company; and Pub. St. Mass., ch. 120, ? 23, providing that persons having no notice of such an instrument of defeasance shall not be affected thereby if the same is not recorded, does not apply.

Bryan v. Traders' Ins. Co. (Mass. S. J. C.), 14 Northeastern Reporter (Jan. 20, 1888), p. 454.

Insurance by Mortgagee-Loss-Subrogation.-A vendor, who had not completed the sale of her property, held a policy of insurance on the house situated thereon; she had given a deed to the vendees, and had taken a mortgage back. The policy contained no undertaking on her part to assign to the underwriters in any event. In an action by the company to compel an assignment of the mortgage to it, Held, that the policy containing no contract for subrogation, the payment of the insurance discharged the mortgage to the extent of the payment, and the company was not entitled to an assignment of the mortgage.

Nelson v Bound Brook Mut. Fire Ins. Co. (N. J. Ct. of E. & A.), 11 Atlantic Reporter (Jan. 18, 1888), p. 681.

Agent-Delay in Canceling Risk-Liability to Company.-Upon being notified of the insurance the company wrote to the agent, "Please at once relieve us of the risk. The property, in itself, and the exposure of the same, would make it prohibited with us. Let us have policy by return mail." The agent replied that the company was, he thought, mistaken in the character of the risk; that there were no exposures, but that he was holding it subject to the company's orders, and would return the policy at once if desired. The company reiterated its demand, and the policy, which had not yet been delivered, was returned by the agent, but the contract had been made binding, and he failed to notify the insured of the cancellation prior to the fire, which took place a few hours later. Held, That the agent was liable to the company for a loss incurred through his delay in obeying imperative orders to cancel.

Washington F. & M. Ins. Co. v. Chesebro (U. S. S. C.), 17 Insurance Law Journal (Jan., 1888), p. 58.

Policy-Increase of Risk-Stopping Factory for Repairs.-The policy provided that if the risk was increased with the knowledge of the insured, and without notice to the company, the policy should be void. A manufacturing company stopped work for a few days and repaired its machinery, whereby no use could be made of a steam-pump and hose connected with the engine, in case of fire. The policy permitted stoppage for repairs. Held, that there was no increase of risk by this temporary stoppage.

Same-Device for Extinguishing Fires.-There being no covenant or undertaking on the part of the insured that the steam-pump and hose for extinguishing fires should be kept in the factory, the insured was not bound to maintain them.

Same-Vacant and Unoccupied Premises.-The policy provided that if the building insured became vacant and unoccupied, without the knowledge and consent of the company, the policy should be void. The insured temporarily stopped work and repaired its machinery; the night and day watchmen were on duty, and the employés were at and about the factory from its closing until it burned. Held, that the building was, in no sense, vacant and unoccupied.

Same "Cease to be Operated."-A manufacturing company, which closes temporarily for repairs, and is burned down in eight days, can not be said to have ceased operating so as to avoid the policy.

Brighton Mnfg. Co. v. Ins. Cos. (U. S. C. C.), 33 Federal Reporter (Feb. 14, 1888), pp. 232, 234, 235 and 236.

Policy Agency-Broker-Notice of Other Insurance.-The policy stipulated that any broker employed in effecting the insurance should be considered the agent of the insured; and if the party insured should have other insurance at the time the policy was issued, or should afterward effect such insurance, without the consent of the company, the policy should be void. Held, that the defendant was entitled to an instruction that, if any broker were employed in effecting the insurance, he was the agent of the insured, and notice to him of other insurance was not notice to the company.

Action-Evidence.-In an action on a policy taken out by plaintiff, in his name, for the benefit of a third person, it is not admissible for the defendant to show that, in other actions against the plaintiff, executions had been returned with the indorsement," no effects."

Instructions-Proof.-There being no proof that a gasoline-pump was in use on the premises, the court properly refused to instruct the jury that the use of such pump would avoid the policy.

Fire Association of Philadelphia v. Hogwood (Va. S. C. A.), 4 Southeastern Reporter (Feb. 14, 1888), p. 617.

Statute-Appellate Court-Practice-Final Judgment.-Under 2 Starr & C., Ann. St. Ill., ch. 110, 2 81, providing that, in all cases of appeal and writ of error, the supreme or appellate court may give final judgment, the appellate court is authorized to enter final judgment on reversal of findings of fact made by the court below.

Same Same--Same-Sufficiency of Finding.-Under 2 Starr & C., Ann. St. Ill., ch. 110, 2 88, providing that the appellate court on final determination of any cause resulting wholly or partially from a finding of facts different from that of the court below shall recite in its final order the facts as found, and its judgment thereon, the judgment must show a finding upon every point presented on appeal.

Commercial Union Assur. Co. v. Scammon (Ill. S. C.), 14 Northeastern Reporter (Feb. 10, 1888), p. 666; 20 Chicago Legal News (Feb. 11, 1888), p. 187; 12 Western Reporter (Feb. 25, 1888), p. 787.

Instructions Representation in Application - Statute.- The court instructed the jury that they should determine whether the representations made in the application, and alleged to be false, were material to the risk, and whether they were in fact false, and, if so, whether they were made innocently and by mistake, and so fairly made. Held, error under Pub. St. Mass., ch. 119, 281, which, in effect, declares that misrepresentations which increase the risk of loss will defeat the policy, though