contract, and the compensation fixed therein governs, and the broker is entitled to recover in accordance therewith: Levy v. Wolf, 2 Cal. App. 491, 494, 84 Pac. 313. For a case in which the issue of authority of an agent was raised by the pleadings, see Wales v. Mower, 44 Colo. 146, 96 Pac. 971. 8. Ratification by municipal corporation of unauthorized agent's acts.—A municipal corporation's act done through an unauthorized agent must be ratified in the manner in which original authority could have been conferred: See McCracken v. San Francisco, 16 Cal. 591; Grogan v. San Francisco, 18 Cal. 590; People v. Swift, 31 Cal. 26, 28. 9. Pleading the ratification is, however, unnecessary. It is sufficient to allege the execution by the defendant of the instrument upon which suit is brought, and which he has ratified: Porter v. Lassen Co. L. & C. Co., 127 Cal. 261, 271, 59 Pac. 563. 10. Agent suing alone. An agent contracting in his own name for the benefit of his principal, the agency being known, may sue in his own name without joining his principal as a party plaintiff: Salmon v. Hoffman, 2 Cal. 138, 56 Am. Dec. 322; Ord v. McKee, 5 Cal. 515; Winters v. Rush, 34 Cal. 136. See Weaver v. Trustee & W. E. Canal, 28 Ind. 112; Rice v. Savery, 22 Iowa 470; Wright v. Tinsley, 30 Mo. 389; Cheltenham Fire Brick Co. v. Cook, 44 Mo. 29; Considerant v. Brisbane, 22 N. Y. 389; Noe v. Christy, 51 N. Y. 270; Hubbell v. Medbury, 53 N. Y. 98. ....... Form No. 707. Upon fire insurance policy. (Common form.).. 1336 1337 1337 1339 Form No. 711. On agreement to insure and give policy.. 1342 1343 Form No. 713. By assignee, in trust for wife of insured... 1344 Form No. 714. By wife, partner, or creditor of insured........ 1344 Form No. 718. On vessel lost by perils of the sea. 1349 Form No. 725. Defense based upon denial of loss... 1351 Form No. 726. Defense of misrepresentation and concealment 1352 Form No. 727. Defense setting forth "fallen building" clause ... 1352 Form No. 729. Defenses-(1) denial of furnishing proofs of ..... Form No. 730. Transfer without insurer's consent.. 1353 1354 Form No. 731. Defense that a fraudulent account of loss was given . 1354 Form No. 732. Defense that risk was extra-hazardous.... 1354 Form No. 733. Denial of loss from peril or risk insured against 1355 1355 FORM No. 707-Upon fire insurance policy. (Common form.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That the defendant is a corporation duly created by and under the laws of the state of , organized pursuant to an act of the legislature of said state, entitled [give title of act], passed [give date of passage], and the acts amendatory thereof. day of 19 the plaintiff being the Street, the 2. That on the owner of a dwelling-house and furniture therein in in the city of , in consideration of the premium of $ defendant, by its policy of insurance in writing, a copy of which is hereto annexed, marked "Exhibit A," and made a part hereof, insured the plaintiff against loss or damage by fire to the amount of on said property, from the 19 at 12 o'clock noon, until the day of at 12 o'clock noon. $ day of , 19 day of 3. That the plaintiff has duly performed all the conditions on his part to be performed; that on the dwelling-house and furniture were totally destroyed [or greatly damaged, stating the extent thereof] by fire, which did not happen by [any of the causes excepted in the policy]. 4. That the plaintiff's loss thereby was $ 5. That the plaintiff immediately thereafter, on the notified the defendant of said loss, and on the day the defendant with due proof of said loss. 6. That no part of said loss has been paid, and the whole of said sum is now due thereon from the defendant to the plaintiff. [Concluding part.] FORM No. 708-By mortgagee as assignee of the policy. [Title of court and cause.] [As in preceding form to fifth paragraph, substituting the original insured's name for the word "plaintiff."] 5. That on the day of , 19, the said insured executed and delivered to the plaintiff his mortgage on said premises, to secure the sum of $ and assigned said policy to the plaintiff as further security, and thereupon the defendant, at the request of the plaintiff and of the insured, endorsed on said policy, "Loss, if any, payable to [plaintiff] as his interest may appear." 6. That said mortgage and the debt secured thereby is wholly unpaid and unsatisfied. [Continue as in preceding form, averring performance of conditions, giving of notice, and proofs of loss by the original insured.] [Concluding part.] FORM No. 709-Upon fire insurance policy.-Total loss. (In Clayburg v. Agricultural Ins. Co., 155 Cal. 708; 102 Pac. 812.) [Title of court and cause.] Plaintiff complains of defendant, and alleges: 1. That defendant now is, and at and during all the times hereinafter stated was, a body corporate, duly created, formed, and organized under the laws of the state of New York. 2. That on, to wit, the 8th day of March, 1905, at the city and county of San Francisco, state of California, defendant, in consideration of the payment to it by plaintiff of the sum of $60.60, did then and there execute and deliver to plaintiff, its certain policy of insurance in writing, a copy whereof is annexed hereto, marked "Exhibit A," and made a part of this complaint, and in and by which said 1 Exhibit A to the foregoing form No. 709 (action upon an insurance policy) is a copy of said policy. The policy contains the following clause, which was the subject of much litigation over the losses from the great San Francisco fire, April 18 to April 21, 1906, and upon which the defenses to the actions instituted upon policies were generally based. The clause referred to is as follows: "If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease." defendant did insure plaintiff for the term of one year from the 23d day of April, 1905, at noon, to the 23d day of April, 1906, at noon, against all loss or damage by fire except as in said policy provided, to an amount not exceeding $6,000, on the property described in the slip attached to said policy, which slip was then and there attached to said policy, and is in words and figures as follows, to wit: [Here follows copy of said slip set out in haec verba, describing the property insured, its location, and granting permission to make alterations, repairs, to use electric power, and to effect other insurance.] 3. That on said 8th day of March, 1906, and at the time of the execution and delivery of said policy of insurance, and continuously thereafter, up to and including the time of the fire hereinafter mentioned, plaintiff was the owner in fee-simple of the ground on which the building described in said slip was erected, and plaintiff at and during all said times was the sole owner of said brick building and of all the property described in and insured by said policy of insurance. 4. That at and during all said times, said building was occupied as an art store, and was known and designated as No. 113 Geary Street, in said city and county. 5. That on the 19th day of April, 1906, all the property described in and insured by said policy of insurance was totally destroyed by fire; that the destruction of said property was by fire direct, and was not caused directly or indirectly by invasion, insurrection, riot, civil war, or commotion, or military or usurped power, or by order of any civil authority, or by theft, or by neglect of the insured to use all reasonable means to save and preserve the property at and after the fire, or by explosion of any kind, or by lightning, or by any cause or causes which by the terms of said policy of insurance are excepted therefrom. 6. That the building described in said policy and every part thereof fell as the result of said fire, and that the fall of said building and every part thereof was caused solely by said fire. 7. That the loss of plaintiff by said last-mentioned fire to said insured property was $55,159; that at the time of said fire the aggregate amount of insurance upon the property insured by said policy was $30,000 and no more. 8. That on the 4th day of June, 1906, at the city and county of San Francisco, state of California, plaintiff delivered to defendant a veri fied proof of loss in writing of his said loss and interest in said property so destroyed as aforesaid, and did in all matters and things fully and completely perform all the conditions of said policy on the part of the insured to be kept and performed. 9. That more than sixty days have elapsed since delivery to defendant of said verified proof of loss; that said defendant has not notified plaintiff of any objections to said proof of loss, and no disagreement has arisen between plaintiff and defendant as to the amount of plaintiff's loss; but defendant has failed and refused to adjust plaintiff's loss unless plaintiff would agree in advance to accept from defendant, in full of plaintiff's said claim, a sum materially less than the proportion of said loss for which defendant is liable under said. policy; that the proportion of the loss of said insured property payable by defendant under its said policy of insurance is the sum of $6,000; that defendant has refused to pay its proportion of said loss to plaintiff, although demand therefor has been made; that the amount owing by defendant to plaintiff for the loss as aforesaid sustained by plaintiff to the property insured by defendant under its said policy of insurance is the sum of $6,000, all of which is due and unpaid. Wherefore, plaintiff prays judgment against defendant for the sum of $6,000, with interest at the rate of seven per cent per annum from the 4th day of August, 1906, and for costs of suit. Naphtaly & Freidenrich, Attorneys for plaintiff. [Verification.] FORM No. 710-Upon fire insurance policy.-With averments as to waiver of written statement. (In McCollough v. Home Ins. Co. of N. Y., 155 Cal. 659; 102 Pac. 814.) [Title of court and cause.] Comes now C. M. McCollough, the plaintiff herein, and by leave of court first had and obtained, files this, his amended complaint, and for cause of action against the defendant herein alleges: 1. That the defendant is a corporation, organized and existing under the laws of the state of New York, and licensed and empowered to transact business in its special line in the state of California. 2. That heretofore, to wit, on the 31st day of July, 1905, the plaintiff was the owner of, and used and occupied as a dwelling-house only, that certain building located on the southwest corner of Villa and |
