attempt or suit be construed to revive this policy; but the same shall be and remain null and void during such default, and until said assured shall pay such premium note, interest and fees and costs, and until this company shall receive the same, and return said promissory note to said assured, and in such case such policy shall be revived." The note was not paid at maturity, but on July 5, 1885, a payment of $100 on account was accepted by defendants. At the time of the loss under the policy, April 25, 1887, a balance remained unpaid on said note. The court below gave judgment for plaintiff and defendant appealed.

HELD-There can be no controversy as to the effect of the provisions in the note and policy. The failure on the part of the assured to pay the amount due did not work a forfeiture of his rights under the policy, but suspended the same until payment was made. In the meantime the company had the right to collect the balance due by suit or otherwise. Upon the collection of the whole amount due, the policy would have revived, but this could not be the effect of the collection of a part of the amount only. In order to obtain the benefit of the insurance the assured was bound to pay the whole amount due by the express terms of his contract. As the company had the right to collect the money notwithstanding the suspension of the policy, the fact that it received a part of the amount could not amount to a waiver. It simply showed an intention to carry out the terms of the policy by collecting the premium, and thereby reviving the same upon full payment being made. This case differs widely from one in which the failure to pay at maturity works an absolue forfeiture of the policy. There the acceptance of the premium after forfeiture is inconsistent with the terms of the policy, and therefore it is properly held that such acceptance is a waiver of the forfeiture. For these reasons we think the court below should have granted the defendant a new trial." Judgment reversed. California Supreme Court-Curtin vs. Phenix Ins. Co.

PROCEEDS OF INSURANCE ON HOMESTEAD NOT EXEMPT FROM EXECUTION.

Action was brought to determine whether insurance money due on a house occupied as a homestead, which had been destroyed by fire, was exempt from execution under the homestead exemption law, the court

HELD-A homestead is exempt, and the house is a part of it, but the money due on a policy of insurance on the house is neither the house nor the representative of it. Such money is the result of a personal contract of indemnity against the loss of the house, which contract was founded on an independent consideration in the premium paid by the insured. While it is true that the house was the subject of the contract, yet the indemnity was purchased by its price, the premium paid. The law exempts the homestead, and not what may grow out of it or arise from it as the result of some contract made by the exemptionist-simply the homestead, and not the proceeds of it in another form, is exempt. Hence, even if the proceeds of the homestead were exempt the money due by the policy of insurance would not be, for it is not the proceeds of the house, but of the policy-an independent personal contract. That the house was not insured, but the owner was insured by the contract to pay him a sum of money as indemnity against loss.

Mississippi Supreme Court-Smith vs. Ratcliff.

BREACH OF WARRANTY AND TESTIMONY AS TO OVER VALUATION.

This was an action to collect money due on a fire insurance policy, the clauses of which provided that "any fraud or attempt at fraud, or any false swearing on the part of the assured, shall cause a forfeiture of all claim under the policy." At the trial court there was a judgment for plaintiff and defendant appealed.

HELD-If the insured was guilty of willful fraud or false swearing, the warranty was broken, and no recovery could be had. It was necessary for defendant to show that the fraud, or attempted fraud, or false swearing was willful, and not the result of inadvertence or mistake; but it was error to charge that before the plaintiff's right to recover was forfeited, it must appear that not only his own testimony, but also that of "other witnesses produced by him was false and corrupt." The policy contained a clause requiring the insured to produce account books and vouchers in case of loss by fire, which condition is not avoided by failure or refusal to produce them, unless the policy provides in express terms for such forfeiture; but the failure or refusal may be proven, and is a proper subject of comment before the jury as

to the extent of the loss. The extent of actual loss or injury to the property is the measure of damages recoverable under the policy; and that it was error to exclude testimony as to the excessive valuation placed on the goods insured, because the testimony was that of a witness who was an employee of the company's agent, as that fact, if it could affect the witness at all could only do so as to his credibility. But the opinion of a witness, as to whether the plaintiff's demand was based on a fair valuation of the property, was properly excluded. reversed on errors.

Texas Supreme Court-Lion Fire Insurance Company vs. Frank Starr.

ADDITIONAL INSURANCE WITHOUT CONSENT AVOIDS THE POLICY.

Judgment

A policy of insurance provided that either party might require an arbitration “ touching any loss or damage," and that the award "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 also provided that it should be void in case of other insurance "without notice and consent of this company." It also authorized the company to terminate the contract at any time, at its option, by giving notice and refunding a ratable proportion of the premium.

HELD-An arbitration and award, merely as to the amount of the loss, at the instance of the insurer, did not forbid the subsequent denial of legal liability upon the ground that the policy was void for reasons known to the insured when the arbitration was instituted. Additional insurance, unless consented to, or unless a waiver was shown, ipso facto avoided the contract, and the fact that the company had not, after notice of such insurance, cancelled the policy, did not justify the legal conclusion that it had elected to allow it to continue in force. Minnesota Supreme Court-Johnson vs. American Fire Insurance Company.

KNOWLEDGE OF MORTGAGE NULLIFIES CONDITION AS TO FORECLOSURE Proceedings. A policy of fire insurance on plaintiff's property, dated September 18, 1886, for three years, provided that it should be void "if proceedings to foreclose any lien shall be commenced in any way, or notice thereof shall be given." It appeared that defendant's agent was, at the time of making the contract, fully informed of a mortgage on the premises, and that he made the insurance payable to the mortgagee, as his interest might appear, but that such clause was accidentally omitted from the policy. The mortgage was then overdue, and a suit to foreclose was begun August 25, 1887, and a decree rendered in September, 1887, for a sale after September, 1, 1888. The loss occurred April 4, 1888. At the trial there was a judgment for plaintiff and defendant appealed.

HELD-The mortgage was known to be overdue and liable to foreclosure at any time, while the mortgagor could not be deprived of any of his possessory rights or rights of redemption until the sale, which could not be earlier than the fall of 1888. There could be no change affecting title or possession till that time, and there could be very little object in procuring and paying for insurance that might be avoided within twenty-four hours if the defense is available. It is unfortunate that the record does not show more fully the documents relied on. It is left in doubt by the return whether the defendant was not notified in writing of the whole title, and of the purpose to protect the mortgage interest. But we have enough to show that the existence of the mortgage was not, by itself, of any effect in impairing the policy, and the destruction of it by the beginning of foreclosure would be a consequence not reasonable, and not to be inferred without convincing provisions, which we do not discover, as changing the former decision of this court. Judgment affirmed.

Michigan Supreme Court-Butz vs. Ohio Farmers Mutual Insurance Company.

AUTHORITY OF AGENT.

This was an action on contract of insurance where the evidence showed that plaintiff's agent made a written application for insurance, specific in all its details, with satisfactory arrangement as to the payment of premium, and defendant's agent stated that he would "bind the risk" from that date if the company was not already on the risk, and that it was understood that the policy was binding from that time. Defendant's agents, at the time of making the contract with plaintiff, which was a "special" risk, had not received their commission of authority, but they had a letter written by the general agent, V., saying, "If your appointment is confirmed, your jurisdiction will be the city of Brooklyn, outside the shore line, but we

shall expect you to write no large risks for us until you know for certain that we are not in, through our New York office. As we are now on all Brooklyn specials of any size that we will write, please do not undertake to write any specials for us at present." Later they received a letter from the company saying, "We take very great pleasure in forwarding to your address by mail to-day a commission of authority as agents of this company in the City of Brooklyn. We deem it unnecessary to enter into any detailed instructions as to the conduct of our business at your agency, as our Mr. V. has written you upon that subject." This last letter only was shown to plaintiff's agent.

HELD-The jury were authorized from this evidence to find that a valid contract of insurance was made. The letter of appointment indicated a general agency, and the reference to V.'s letter was not sufficient to give plaintiff notice of any limitation of the agents' authority as to writing special risks.

New York Court of Appeals-Ruggles vs. American Central.

ACTS OF AGENT BINDING ON COMPANY.

This was an action on a policy of fire insurance, which forbade an assignment of the policy without consent of defendant. The plaintiffs alleged that with defendant's consent the policy was assigned to the firm of L. & Co. The policy offered in evidence showed that the assignment was to L. individually, and not to L. & Co. The company also alleged neglect to furnish proofs of loss.

HELD-The court erred in admitting the policy in evidence, the variance being material. The court properly permitted plaintiffs to show that when L., to whom the policy was assigned, purchased an interest in the insured property in his own name, and by a written contract, he in fact purchased it as agent, and for the benefit of his partner, and that the firm of L. & Co. thereafter owned the insured property, as alleged in the petition. Such evidence did not change the written contract. Where an act done by an agent of the company in relation to the insurance is within the scope of his authority, and is not promptly repudiated by the company, the act will be binding upon it, notwithstanding it does not conform to restrictions contained in the policy concerning the powers of agents, and the matter of their exercise.

PROOFS-A Company having informed the insured after the loss that by reason of unauthorized transfers of the policy or property the policy was avoided, and that the loss would not be paid, the insured was released from the obligation to furnish proofs of loss. Texas Supreme Court- Niagara vs. Lee et al.

PAYMENT OF PREMIUM NOTE A CONDITION OF THE CONTRACT.

An insurance policy insured defendant's property against fire for a period of five years, in consideration of $41.50 cash and a note for an additional sum, of even date with the policy, and due ten months after date; the note, by the terms of the policy, being taken as payment until its maturity or default, but, if not paid at maturity, the policy should be null and void, " and so remain until the same shall be fully paid." Action was brought to recover on the note. There was a judgment for defendant and appeal taken.

HELD-Defendant could not claim that the cash payment was the consideration for the insurance during the ten months before the note matured, and that as on its default the policy became null and void the consideration for the note had failed. The contract being an entirety, the note is as much the consideration therefor as the cash payment, and, having had the benefit of the contract for ten months, defendant cannot avoid paying the entire consideration. Arkansas Supreme Court-Robinson vs. German.

MERGER OF VERBAL AGREEMENT IN THE POLICY.

The plaintiff in this case agreed with the agent of the defendant for insurance upon his property, the agent promising to deliver the policy in accordance with the agreement. At different times the agent assured plaintiff that the policy was made out and was in his safe. The property was burned, after which the agent denied that it was insured in the defendant company, but claimed that it was insured in another company of which he was agent. Later, he gave to the attorney of plaintiff a policy in the defendant company, which was dated so that it expired two weeks before the loss occurred. The attorney took this policy to the secretary of the company, who kept possession of it. Suit was brought to recover for breach of parol

contract; the defense claimed that the parol contract was merged in the written contract which expired before the loss; also that proof of loss had not been furnished as required by the written contract. At the trial court there was a judgment for plaintiff, and defendant appealed. HELD-The point that the parol contract to insure was merged in the written policy delivered, is raised principally upon the ground that the proof of loss made by the defendant in error some six months after the loss, sets up this policy. The proposition of law stated by the plaintiff in error, to which counsel cites authorities, that a verbal contract reduced to writing, which covers all branches and elements of the contract, is merged therein, is conceded. If the written policy had contained or fairly covered all branches and elements of the verbal contract, the verbal contract would have been merged and absorbed and no action for a breach of it would have been maintainable. But, in order to avail itself of this point, the plaintiff in error would have to admit the written contract as binding upon it. This it does not do, but has constantly repudiated it. Even this is scarcely necessary, as, on its face, it was executed and delivered, not only long after the time which it assumed to cover had expired, but upon its face, and by its terms, it was made to expire before the happening of the loss by fire, which is the event of this controversy, and which made it an object of interest to the parties. It was, therefore, at the moment of its execution, utterly null and void for any and all purposes Being so, its recital in the proofs of loss, by the plaintiff, was merely encumbering that paper with an extraneous fiction without any legal significance whatever. Again, it is contended by the plaintiff in error that the proofs of loss was made and presented long after the time required by the usages of the insurance company for a proof of less under its policy to be made, and hence was inoperative and insufficient as proof. Here arises the question whether, in an action upon a parol contract to insure, it is necessary, as a condition precedent to his right of action, for the plaintiff to prove the making of proof of loss. The plaintiff in error contends that it is, and to that point cites the case of McCann vs. Ætna Fire Insurance Company, 3 Neb. 198. We concede the authority to its full extent. Were it not for that precedent, we would be inclined to hold with the Supreme Court of the United States in Taylor vs. Merchants Fire Insurance Company, 9 How. 390; the Supreme Court Commissioners of California in Gold vs. Sun Fire Office, 73 Cal. 216, 14 Pac. Rep. 786, and the Supreme Court of Missouri in Baile vs. St. Joe Fire and Marine Insurance Company, 73 Mo. 371-10 the effect that when an insurance company enters into a parol contract to issue a policy, and fails to issue such policy, it waives its right to demand proof of loss arising under such contract of insurance. It would seem to be claimed that where a company enters into a parol contract of insurance, or a contract to make and deliver a policy, that it is a condition precedent to the maintaining of an action by the assured, for a loss arising thereunder to make and present proof of such loss within the time which would have been limited for the same by the terms of such policy, had it been executed and delivered. The rule in McCann's case, cited, falls far short of that requirement, while it does hold that proof of loss shall be made and served on the company, as a condition precedent to the bringing of an action. The only ground of contention against the proof of loss is that it was not made and presented in limited, specified time; whereas, under the rule in McCann's case, we have not been able to sustain that opinion. Judgment affirmed.

Supreme Court of Nebraska-Nebraska and Iowa Insurance Company of Omaha vs. Seviers.

VOID BY REASON OF OTHER INSURANCE.

This was an action to recover upon a policy of fire insurance the defendant company interposed three separate defenses, viz. Other insurance in violation of the conditions of the contract; vacancy of the house insured and that appellee burned the building. From a judgment for plaintiff rendered in the trial court the defendant appealed.

HELD-Where a policy of fire insurance contains a clause making it void in case of other insurance on the same property, and there is a prior policy on the property which expires before the second policy, such second policy attaches and becomes operative upon the expiration of the prior policy. The fact that an insured house has become vacant, and that the policy of insurance contains a clause making it void in event of such vacancy is not sufficient in a suit upon a subsequent policy to show that the first policy has become void without proof that the company had elected to hold the policy void. The fact that the insured attempted to collect the prior policy, and that he stated that he did so at the request of the insurer, are sufficient evidences of waiver of the forfeiture to justify submitting the question of waiver to the

jury. Where two concurrent policies on the same property, issued at different dates, both contain a clause making them void in case other insurance is taken out on the property, the first policy makes the second void, but is not affected by it. A policy that is issued on a vacant building, the receipt of the premium by the insurance agent with knowledge of the vacancy, and without objection on that ground, is a waiver of a clause making the policy void in case of vacancy. The company having alleged that the plaintiff set fire to the building himself, it must prove such plea beyond a reasonable doubt. But where such plea is joined with other plans, that do not charge a criminal offense, it is error to instruct the jury that defendant must establish its other defenses by more than a preponderance of the evidence. Reversed on errors and remanded.

Illinois Supreme Court-Germania Fire Insurance Company vs. Klewer.

MECHANICS WORKING WITHOUT PERMISSION VOIDS THE POLICY.

Action was brought to recover on an insurance policy issued upon a certain dwelling-house unfinished at the time of issuing the policy. The description of the property in the policy contained the following words: "To be occupied as a residence when completed," and, also, the further provision: "In consideration of three dollars extra premium paid, permission is hereby granted to mechanics to work in and around the building for ninety days from date." The ninety days expired on September 25, 1881, and the building was not completed. Its destruction by fire occurred May 13, 1882. The evidence showed that the insured was a carpenter; that he worked in the building finishing the kitchen, placing crocks for stove-pipes to go through, and put drawers in closets, etc., all without consent of the insurer. The last work done was a few days before the fire. The trial court ruled that the insured, though a mechanic, had a right to work upon his own building, and directed a verdict for plaintiff. Defendant appealed.

HELD-Where an insurance policy on an unfinished house contained the words, "to be occupied as a residence when completed," and gave permission to mechanics to work in and about the house for a period of ninety days, that, while insured was to have the right to complete the building, this was to be done within ninety days, and that work done in the construction of the house after the expiration of that time was a violation of the clause in the policy prohibiting carpenters or other mechanics from working on the house without written permission, even though done by the insured himself. Judgment reversed.

New York Supreme Court-Smith vs. German American Insurance Company.

A REFERENCE NOT NECESSARY TO ASCERTAIN AMOUNT OF Loss.

In an action to recover for total loss of a stock of drugs, the defendant moved for a reference, which motion was denied, and an appeal taken.

HELD-Though the examination of numerous items of damage may be involved, they do not constitute an account, technically and properly speaking. An account implies dealings and transactions between the parties, and where the action is based upon such an account, which has to be examined and investigated, a reference can be made. It is where the action is based upon the account itself, that a compulsory reference can be made. But it does not follow, because a variety of items has to be examined to ascertain the amount of damage recoverable, that the same rule obtains. There the examination of the account is merely an incidental matter, and not the main issue in the cause. We therefore hold that the inquiry as to the list of articles or items destroyed by the fire, though it may be necessary and proper to determine the account of loss or the damage recoverable on the policy, still, in a legal sense, does not require the examination of a long account, as where the action is upon the account itself, which is the real subject of investigation. Order affirmed.

Wisconsin Supreme Court-Andrus vs. Home Insurance Company.

INCUMBRANCE ON PROPERTY WITH AGENT'S KNOWLEdge. Action was brought to recover upon a policy containing the usual forfeiture clauses. The company refused payment on the ground that the application signed by plaintiff and wife warranted the property in question to be unincumbered, when in truth it was not unincumbered at the time, and that a further incumbrance had been placed upon it without consent or notice to defendant. The evidence showed that plaintiffs, at the time of making the application for