FIRE INSURANCE.

Assignment of Policy-Effect-Default of Assignor-Forfeiture. -On a sale of the insured property, and an assignment of the policy to the purchaser, duly assented to by the company, a new contract of insurance arises between the purchaser and the company which is not af fected by a default of the assignor before the assignment amounting to a forfeiture of the policy.

Continental Ins. Co. v. Munns (Ind. S. C.), 22 Northeastern Reporter (Oct. 4, 1889), p. 78; 17 Washington Reporter (Oct. 15, 1889), p. 669.

Policy-Construction of Chimneys--Cause of Fire.—A policy of fire insurance provided that the company should not be liable for any loss caused by "the use of fire unprovided with good and substantial stone or brick chimneys, the absence of which was the cause of the fire." Held, that the mere fact that there was no chimney of stone or brick. with a flue to it, but only a tile flue, did not avoid the policy. That was to be the result only in case the flue was "the cause of the fire."

Knowledge of Agent-Estoppel.-When the applicant for insurance states accurately the facts to the agent authorized to write up and issue the policy, he will not lose the protection bought and paid for merely because the agent failed to set out in the policy what was told him.

Same-Same-Sub-Agent.-An agent authorized to issue policies employed another as solicitor to make examinations. Held, that this solicitor was the agent of the company, so that information given to him should be considered as given to the company.

Boatman's F. & M. Ins. Co. v. Young (Ky. Superior Ct.), 11 Kentucky Law Journal (Oct. 1, 1889), p. 288.

Contract-When Complete.-The plaintiffs, a firm of merchants in New Zealand, in October, 1886, employed a firm of insurance brokers in London to effect for them insurances against fire upon goods in New Zealand. The brokers instructed B., an insurance broker at Lloyd's, to effect a portion of the insurances, and B. prepared a slip containing particulars of the risk, which was initialed by the defendant and other underwriters at Lloyd's. Owing to a misunderstanding between the insurance brokers no policy was put forward for signature by the defendant and the other underwriters, and in February, 1887, the goods in New Zealand were seriously damaged by fire. No premiums had then been paid, but two days after the fire the premiums were paid by the plain

tiffs to the insurance brokers. A policy was then tendered to the defendant for signature, but he refused to sign it or to pay the amount for which he had initialed the slip. Held, that the slip formed a complete and binding contract of insurance, that it was not subject to an implied condition that a policy should be put forward for a signature within a reasonable time, and that, in the absence of circumstances showing an intention on the part of the plaintiffs to abandon the insurance, they were entitled to recover.

Thompson v. Adams (Eng. C. A., Q. B. D.), 23 Queen's Bench Division,— Law Reports (Sept. 2, 1889), p. 361.

Policy-Forfeiture-Waiver.—Where an action on a policy is barred at its commencement by an express stipulation in the policy that the action shall be commenced within a certain time after loss, such bar is not waived by defendant's failure to mention it in an affidavit of defense filed, or by an offer to settle the suit made at the term when it is on trial.

National Fire Ins. Co. v. Brown (Pa. S. C.), 18 Atlantic Reporter (Nov. 13, 1889), p. 389.

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Statute-Notice and Proof of Loss-Jury.-Act Pa. June 27, 1883, for the protection of persons whose property is burned while insured, provides that "the conditions of insurance as to loss and the furnishing of preliminary proofs shall be deemed to have been complied with if the assured * shall furnish to the company the notice of loss within ten days from the date of the fire, and the preliminary proofs within twenty days from said notice." Held, that such act does not require such proofs shall be furnished within the time mentioned; but where no time is mentioned in the policy a reasonable time is allowed, and the question of what is a reasonable time is for the jury when the evidence is conflicting.

Springfield F. & M. Ins. Co. v. Brown (Pa. S. C.), 18 Atlantic Reporter (Nov. 13, 1889), p. 396.

Policy-Encumbrance-Waiver.-Where no written application is made for insurance of property, and the agent solicits the insurance without asking any questions as to incumbrances, and no representations relative thereto are made, the fact that incumbrances exist does not invalidate a policy which provides that it shall be void if the property shall be sold or incumbered.

Dwelling-House Ins. Co. v. Hoffman (Pa. S. C.), 18 Atlantic Reporter (Nov. 13, 1889), p. 397.

Mutual Company-Charter-Notice of Assessments.-Under a clause in the charter of a mutual insurance company which directs managers, when they make an assessment, to "publish" it, and provides that on neglect of members to pay their assessments within sixty days after "public notice" their insurance shall be suspended, and requires "public notice of this clause to be given when advertising an assess

ment," actual notice of an assessment to each member is not required, but notice by publication is sufficient.

Pennsylvania Training School for Feeble Minded Children v. Independent Mutual Fire Ins. Co. (Pa. S. C.), 18 Atlantic Reporter (Nov. 13, 1889), p.

392.

Agency-Policy—Evidence.—In an action to recover on a fire insurance policy, it appeared that one S. subscribed his name to plaintiff's application for insurance as agent for the company, made a statement of the exposures as agent, approved the risk as agent, and that, after these transactions were brought to the notice of the company, the policy was forwarded to S., who delivered it to plaintiff, lifted the premium, embraced it in a former report, deducting commissions, sent it to the special agent, and thereafter collected assessments, which were recognized by the company. Held, that the provision in the policy that "if any broker or other person than the assured shall have procured this insurance to be taken, he shall be considered the agent of the assured, and not of the company," referred to persons doing business on their own account, and not to agents of the company; and that S. was the agent of the company in effecting the insurance.

Application-Fraud of Agent-Estoppel.-Where the questions asked the assured by an insurance agent are answered truthfully, but the agent writes down false answers, and cheats the assured into signing a false warranty and paying the premium, a policy issued thereon can not be avoided on the ground that the warranty is false, nor will the assured be estopped to show the deceit and falsehood of the agent by the rule that oral evidence is inadmissible to vary or contradict his written warranty.

Policy-Encumbrance.-A condition of an insurance policy that it shall be void "if the assured have the property encumbered without notice to the company endorsed hereon," is not violated by liens placed on the property after it is insured, to take the place of liens thereon existing at the date of insurance, and of which the company then had notice.

Kistner v. Lebanon Mutual Ins. Co. (Pa. S. C.), 18 Atlantic Reporter (Nov. 13-20, 1889), p. 447.

Policy-Cancellation.--An insurance policy issued to a firm contained a condition that it "may also be at any time canceled by the company on refunding or tendering to the assured

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a ratable proportion of the premium for the time unexpired." Held, that a return of the policy by one of the partners for cancellation, without exacting payment of the return premium, and his agreement to await for the payment thereof until some future time, operated as a cancellation of the policy.

Evidence-Verdict of Jury-Error.-In an action on the policy the company's agent testified that one of the partners, on returning the

policy for cancellation, agreed to wait for the payment of the return premium, that he inquired the amount and made a memorandum thereof. The partner admitted that the agent had spoken to him, after the return of the policy, about the amount of the return premium. Held, that the jury's negative answer to the question, "Did defendant's agent at any time before the fire, and after the return of the policy, inform said partner of the amount of unearned premium?" was contrary to the evidence.

Bingham et al. v. Insurance Company of North America (Wis. S. C.), 43 Northwestern Reporter (Nov. 16, 1889), p. 494.

Policy--Risk-Use and Occupation.—The use by the tenants of the second story of a "dwelling-house, to be occupied by tenants for three years," in shaving hoops, is not a substantial breach of the condition of a fire insurance policy, that the policy should be wholly void if the premises should be, at any time, occupied or used, in whole or part, for any purpose different from that set forth in the application and policy, or if the risk should be increased by means within the control of the assured, where it appears that the building was at the time occupied by tenants as a dwelling, and that use of the second story for shaving hoops ceased three days before the fire, and the jury find that such use did not materially increase the risk.

Increase of Risk-Jury-Witness.-It is a question of fact for the jury whether such use materially increased the hazard and risk, and involves no such special skill and knowledge as to render the opinion of "men skilled in business of insurance" admissible as expert testimony.

Practice-Harmless Error-Statute.-The fact that the plaintiff, in an action on an insurance policy, is allowed to testify as to the value of the insured building, though the question of value is not material to the issue, is not an error affecting the substantial right of the defendant, within Rev. St. Wis. 2829, and is not ground for reversal.

Same-Argument of Counsel.-It is not error to allow counsel to comment on the fact that the defendant did not call as witnesses persons who, according to a witness for the defendant, were with him when the events to which the witness testified occurred.

Kircher v. Milwaukee Mechanics Mutual Ins. Co. (Wis. S. C.), 43 Northwestern Reporter (Nov. 16, 1889), p. 487.

Policy-False Swearing--Construction.--A. was the owner of a stock of merchandise, and insured the same with the defendant, with leave to make concurrent insurance thereon, so that the aggregate amount thereon should not exceed $7,000. Insurance in various companies was effected for that amount. Some time afterward the stock was burned, there being a total loss, and notice was duly given. The proof tended to show that the amount of goods destroyed exceeded $7,000, and that there was no fraud by the insured in any matter affecting the risk prior to the loss. In making his proofs of loss, however, the insured in

creased his claim about $1,700 in excess of the actual loss, and changed the bills of purchase made for some time before the loss to conform to the proof thereof. Held, that as the rights of the parties were fixed by the contract of the insurance and loss, a provision in the policy that "all fraud or attempt at fraud, by false swearing or otherwise, shall forfeit all claim on the company, and shall be a complete bar to any recovery for loss under this policy," as it did not affect the risk, was not cause for declaring the policy void.

Springfield F. & M. Ins. Co. v. Winn (Neb. S. C.), 43 Northwestern Reporter (Nov. 16, 1889), p. 401.

Policy--Description of Risk-Construction.-A certain grain elevator was constructed in several parts, but so connected as to be operated as one structure, and designated by one common name. To distinguish the main or principal building from the addition, which was connected with it by covered passage-ways, through which the machinery was operated, it was called the "Main Elevator Building," and the addition was known as "Annex A." Held, that grain in “Annex A" was included in a policy of insurance describing it as being in the elevator under the general description or name applied to the entire structure; and where the several parts were similarly constructed and covered, language used in describing the elevator "as a frame, iron-clad, metal-roof building, occupied for the handling and storage of grain," was equally applicable to the whole or any part of the elevator known by the general description, and that if there is doubt or uncertainty as to the meaning of the policy it must be resolved in favor of the assured.

Same-Same-Duty of Agent.-The agent of an insurance company taking a risk under such circumstances is presumed to be familiar with the construction of the building and its divisions, manner of use, and description, and it was for him to limit the amount of insurance taken on grain therein, as he might deem necessary after proper inquiry.

Custom and Usage.--Where an elevator has been in use but a short time, the assured are not bound by any particular usage or rule of insurance companies in respect to risks upon grain therein, unless the evidence shows that notice thereof has been brought home to them.

Pettit et al. v. State Ins. Co. (Minn. S. C.), 43 Northwestern Reporter (November 9, 1889), p. 378.

Policy Ownership-Mortgagee's Policy-Forfeiture.-Plaintiff procured insurance on property mortgaged to him, and the policy purported to insure the "Estate of R.," the mortgagor, who was dead, but the insurance was payable to the plaintiff as his interest might appear. One of the conditions of the policy was that it should be void if the interest of the insured was other than "the entire, unconditional, and sole ownership," and that fact was not represented to the company, and expressed in the written part of the policy. R. had conveyed the property in trust to pay debts to one S., of which transaction the company had