through the agency of the intervenor; whether there was a consideration paid by Maynard or not. In other words, if the fund in the hands of Bradbury had been properly and wholly disposed of, and nothing undisposed of remained with him, there was an end of the process of garnishment, and the arrangement between Wood Bros. and Maynard, in regard to the distribution of the fund, was one in which appellant had no concern, and the same may be said in regard to the question of whether a consideration passed for a transfer of the claim of Wood Bros. to Maynard. It was a matter resting entirely with them, which in no way affected the right of appellant to reach the fund in the hands of Bradbury. "The general rule is that the garnishee is not chargeable unless the defendant could recover of him what the plaintiff seeks to secure by garnishment." Wap. on Attach. 202; Drake on Attach. § 458; Sickman v. Abernathy, 14 Colo. 184.

. Numerous cases might be cited, if necessary, in support of this rule. There is one notable exception to this general rule where the garnishee is in possession of effects of the defendant under a fraudulent transfer, but the principle is not involved in this case. Hence, if the assignment of Anderson & Son was such as to divest them of any interest in the fund remaining with Bradbury, and there was no money in his hands that Anderson & Son could reach by proceedings against him, there was nothing appellant could reach by garnishment.

. The execution of the instrument by which the assignment of Anderson & Son was made was properly proved, and it was put in evidence. All the evidence in regard to it was in support of its regularity,-no attempt was made to impeach it. The court was warranted in finding that the assignors had transferred all their present and future interest in the fund, and had no claim they could assert against the garnishee, consequently there was nothing appellant could reach by attachment and garnishment. That a debtor can prefer one creditor to the exclusion of others, where no

question of bona fides or fraud is raised, is too well settled to need disposition.

There being nothing in the record to show what the amount of the fund for distribution was, and that there was a balance remaining after the payment of the two claims, it is to be presumed that there was no surplus. The only question presented for review by the assignment of error being as to the sufficiency of the evidence to support the finding, the judgment is affirmed.

Affirmed.

THE STANDARD ACCIDENT INSURANCE Co., APPELLANT, v. PAUL FRIEDENTHAL, APPELLEE.

1. POLICY OF INSURANCE-EFFECT OF RECITALS.-Where a policy of accident insurance, properly executed by the officers of the insurance company, is signed and delivered by the agent of the company to the insured, it becomes the contract of the insurance company, and the language of the policy,-"in consideration ** and of $37.50 does hereby insure," etc., imports the payment of the premium prior to the delivery of the policy as the consideration for the contract of insurance. This contract can only be impeached by proof that the policy was improperly or fraudulently obtained by the insured.

2. CONTRACT BY AGENT TO GIVE TIME TO PAY PREMIUM.-If a general agent of an insurance company contracts to give the insured time for the payment of the premium, and to accept payment from him in a certain manner, thereupon delivering him the policy of insurance, payment of the premium by the insured in the manner specified subsequent to an injury received by him sustains the contract, and the policy is valid from the date of delivery, notwithstanding the clause therein, "this policy shall not take effect unless the premium is paid prior to the happening of any accident under which the claim is made."

3. ACTION ON INSURANCE POLICY-PLEADINGS.--It is only necessary, primarily, in an action on an insurance policy, to allege the contract of insurance, the happening of the contingency rendering the company liable under the contract, and the amount of indemnity to which the insured is entitled. Allegations of the answer setting

up misconduct of the insurance company's agent neither impeach the contract of insurance, nor otherwise constitute a defense to the action. But if the plaintiff, instead of demurring thereto, traverses such allegations by a replication, to which the defendant files a demurrer, it will be carried back and sustained to the answer.

4. EVIDENCES OF AUTHORITY TO ACT AS GENERAL AGENT.-Where an individual is permitted by an insurance company to act as its general agent, and is furnished with policies executed by the proper officers of the company to be filled up, countersigned and delivered by him, such individual is invested with all the indicia of a general agent as far as third persons are concerned.

5. WHEN ADMISSION OF INCOMPETENT TESTIMONY WILL NOT REVERSE. The reception of incompetent evidence is not ground for reversal where the trial was by the court, as it will be presumed, nothing appearing to the contrary, that the judge, being familiar with the rules of evidence, disregarded it.

Appeal from District Court of Chaffee County.

It is alleged that on the 21st day of April, 1886, the appellant issued and delivered to Eugene H. Teats an accident insurance policy, to be effective for twelve months from its date, whereby Teats was to receive from the Insurance Company $25 a week for loss of time in consequence of any bodily injury sustained by him during the existence of such policy, through external, violent and accidental means, which should wholly disable him from transacting his business as a mining superintendent.

That on the 26th day of April, 1886, Teats received a bodily injury that entitled him to such compensation by the terms of the policy of insurance, and that he was wholly disabled for the period of thirteen weeks, and was entitled to receive the sum of $325.

That on the 7th day of August, 1886, Teats sold, transferred and assigned his claim against the appellant to Friedenthal, the appellee. Friedenthal brought suit for the sum of $325 and costs. The appellant answered, denying the material allegations in the complaint, and for further and special answer alleged that Teats did make application to one A. R. Hoyt, then acting for an agent of the appellant, as alleged in the complaint; and that by the terms of the application, and

the policy which was issued, it was provided that Teats should pay as a premium to the appellant for the policy, and as a condition of obtaining it, $37.50. That Teats did not pay the sum of $37.50 nor any part of it, and that the policy of insurance was, by Hoyt, without any right or authority, delivered to Teats without the payment of the premium as required; and that by reason of the failure of Teats to pay the premium the appellant was not liable.

That after the accident and on the 28th day of April, Teats paid to A. R. Hoyt $10, which Hoyt had no authority to receive, and that at the time of receiving the injury there was none of the premium paid, consequently, that the appellant was not liable upon the policy of insurance.

A replication was filed in which it was denied that Hoyt, at the time of issuing the policy of insurance, was acting for an agent of the appellant, and alleging that Hoyt was the agent of appellant, and had full power and authority to make contracts for insurance and to issue and deliver policies of insurance; and that by virtue of such agency he made the contract of insurance and issued the policy, and signed and executed the same as the agent of the appellant, and delivered the policy to Teats; admits that there was a condition in the policy, and in the application, to the effect that Teats should pay $37.50 premium; and admits that the condition provides that the policy should be void unless the premium is paid before the injury was received, but alleges that the agent Hoyt waived the condition and delivered the policy, and expressly agreed with Teats that the premium should not be paid in cash, and was to be paid at some subsequent time; that Teats had under his control as mining superintendent, a large number of men, whom Hoyt was desirous of insuring, and solicited Teats to use his influence with the men to induce them to insure with Hoyt, and that Teats was pay $10 in cash at some future time, and the balance was to be paid in services in soliciting the insurance of the men; and that he paid $10 to Hoyt as alleged in the answer.

to

A demurrer was filed to the replication. The demurrer

was overruled. A trial to the court without a jury,—judgment for the appellant in the sum of $310. From such judgment this appeal was taken. Testimony was very brief and uncontradicted. The deposition of Teats was read, in which he testified to the arrangement and agreement with Hoyt, by which the condition of the policy was waived, and the policy was delivered, to be effective and operative from its date; that he, Teats, was to pay $10 and use his influence with the men to secure business and insurance for the company of appellant, and that the contract was that the premium should be $25, instead of $37.50; that he paid the $10, but not until after the accident occurred, and that it was accepted by Hoyt. That within three days after the accident he furnished appellant proof of the injury as required by the policy. A copy of the insurance policy was also put in evidence, signed at the bottom, "A. R. Hoyt, Agent at Leadville, Colorado; C. C. Bowen, Secretary; D. M. Ferry, President. Countersigned this 21st day of April, 1886, A. R. Hoyt, Agent." Indorsed upon such policy, among other conditions, was the following: "The policy shall not take effect unless the premium is paid prior to the happening of any accident under which claim is made." Also a copy of the application, in which, among other statements, occurs the following, which is the only one necessary to be noticed in this connection: "9.- My premium for this period is $37.50."

Proper proof, as required by the company, appears to have been made of the injury and its nature, and the length of time that Teats was disabled by reason of such accident, accompanied by the certificate of the attending physician. In the deposition of Teats it is stated, "An officer of the company from Detroit, Michigan, also General State Agent Harrison, of Denver, notified me that they would be in Buena Vista to adjust the claim. They came, and in the presence of D. C. Sindlinger asked me to discount the claim, but no special amount was offered." The appellant objected to the reading of this portion of the deposition. It was allowed