Neb. 409, 66 N. W. 536; 34 Cyc. p. 1102, note 13.

The draft was merely a receipt, and not subject to the parol-evidence rule.

Realty & Constr. Corp. v. Bresnan, 137 Md. 276, 112 Atl. 182; Cramer v. Shriner, 18 Md. 146; Shepherd v. Bevin, 9 Gill. 32; 22 C. J. 1135; Lee v. Lancashire & Y. R. Co. L. R. 6 Ch. 527.

Even with sealed instruments, the payment of consideration may be rebutted by parol evidence.

Fry v. Talbott, 106 Md. 43, 66 Atl. 664; Velten v. Carmack, 23 Or. 282, 20 L.R.A. 101, 31 Pac. 658; Greenl. Ev. 16th ed. § 305, p. 434.

When the draft was signed there was an oral contract to repair, which, with the draft, was the whole contract. Roberts v. Bonaparte, 73 Md. 191, 10 L.R.A. 689, 20 Atl. 918.

When fraud is claimed, the terms of a written contract may be contradicted.

Stouffer v. Alford, 144 Md. 119, 78 Atl. 387; Wilson v. Pritchett, 99 Md. 583, 58 Atl. 360.

Where the contract offered is not the concluded binding contract of the parties, oral evidence is admissible.

Birely v. Dodson, 107 Md. 234, 68 Atl. 488.

Policies covering theft, robbery, or pilferage, cover damages to the car, or diminution in value as a result of being stolen.

Huddy, Auto. 6th ed. p. 1057; Berry, Auto. 3d ed. pp. 1510, 1511; Federal Ins. Co. v. Hiter, 164 Ky. 743, L.R.A. 1915E, 575, 176 S. W. 210; Stone v. Mutual F. Ins. Co. 74 Md. 579, 14 L.R.A. 684, 22 Atl. 1051; Franklin F. Ins. Co. v. Hamill, 5 Md. 170; Letendre v. Automobile Ins. Co. 43 R. I. 410, 112 Atl. 783; Hartford F. Ins. Co. v. Peebles Hotel Co. 27 C. C. A. 223, 54 U. S. App. 215, 82 Fed. 546; Fire Asso. of Philadelphia v. Rosenthal, 108 Pa. 474, 1 Atl. 303; Morrell v. Irving F. Ins. Co. 33 N. Y. 429, 88 Am. Dec. 396; 14 R. C. L. Ins. p. 1398, § 562; 26 C. J. p. 450, § 607; 1 Clement, F. Ins. pp. 297, 298; Winton v. Arlington F. Ins. Co. 16 Ann. Cas. 104 and note, 32 App. D. C. 61, 20 L.R.A. (N.S.) 960.

An election to repair under the New York Standard or other form of fire insurance policy need not be in writing, and may be shown by proof of any decisive acts in pais.

Fire Asso. of Philadelphia v. Rosenthal, 108 Pa. 474, 1 Atl. 303; 26 C. J.

p. 450, § 606; 1 Clement, Fire Ins. p. 301; 4 Cooley, Briefs on Ins. p. 3825; 5 Joyce, Ins. 2d ed. § 3165; Potomac Lodge v. Miller, 118 Md. 412, 84 Atl. 554; O'Connor v. Maryland Motor Car Ins. Co. 287 Ill. 204, 3 A.L.R. 787, 122 N. E. 489.

An adjuster has authority to elect to repair or replace the damaged property, under the rights conferred upon the insurance company by the customary form of fire-insurance policy.

Lancashire Ins. Co. v. Barnard, 49 C. C. A. 559, 111 Fed. 702; 26 C. J. pp. 413, 414, note 52; 1 Clement, F. Ins. pp. 295, 296; 4 Cooley, Briefs on Ins. p. 3825; Bond v. National F. Ins. Co. 77 W. Va. 749, 88 S. E. 389.

The adjuster, as a special agent, sent to investigate the loss, has power to waive the proofs of loss.

Hartford F. Ins. Co. v. Keating, 86 Md. 130, 63 Am. St. Rep. 499, 38 Atl. 29; Bakhaus v. Caledonian Ins. Co. 112 Md. 682, 77 Atl. 310.

The primary obligation of the insurer is to pay the loss, and not rely upon a provision for appraisal under the uncertain terms of the policy in question, which requires first that there shall be some disagreement as to the loss.

Shawnee F. Ins. Co. v. Pontfield, 110 Md. 353, 132 Am. St. Rep. 449, 72 Atl. 835; 26 C. J. 418.

The right to require an appraisal is waived by an exercise of the insurance company's election to repair.

Wynkoop v. Niagara F. Ins. Co. 91 N. Y. 478, 43 Am. Rep. 686; 14 R. C. L. § 528, p. 1358.

Messrs. Francis B. Wiers, George Ross Veazey, and Haman, Cook, Chesnut, & Markell for appellee.

Offutt, J., delivered the opinion of the court:

This is an appeal from a judgment on a directed verdict for the defendant in an action of assumpsit in the superior court of Baltimore. city, brought by the appellant against the appellee. The record presents three exceptions, two of which relate to questions of evidence, and the other to the action of the lower court in granting a prayer at the close of the plaintiff's case, instructing the jury that the evidence offered by the plaintiff was not legally sufficient to entitle him.

to recover, and that therefore their verdict must be for the defendant.

Trial-prayer as to insufficiency of evidenceeffect.

Since the defendant's prayer concedes the truth of the evidence offered on behalf of the plaintiff, together with such inferences as may be legitimately drawn therefrom, the facts of the case are practically speaking undisputed, and thus dealt with, and in substance they are as follows:

On September 2, 1920, the appellant bought from the Woods Motor Company a motor car for $2,580, and financed the purchase through the Finance & Guaranty Company. The appellee had prior to that issued to the Finance & Guaranty Company a policy insuring it against any direct loss or damage occurring through the loss or damage by fire, theft, or pilferage of automobiles covered by it. The object of that policy, it may be inferred, was to protect the insured against loss through any of the causes covered by it on automobiles which it owned or on which it had a lien or claim, but under its terms it also inured to the benefit of purchasers of automobiles to whom the Finance & Guaranty Company issued insurance certificates, when countersigned by the policy agent of the company. Acting under that authority, that company issued such a certificate of insurance to Dr. Councill, the appellant, for $2,064 on September 2, 1920, covering the motor car purchased by him on that date. tween the date of its purchase and February 15, 1921, the appellant drove the automobile so purchased about 4,000 miles, although it was on the day last mentioned in excellent condition. On that day he "parked" it at the corner of Baltimore and Calvert streets in Baltimore city, while he went to a nearby drug store, and when he returned he found that it had been stolen. He promptly made an oral report of his loss to the insurance company, and on February 17, 1921, he was informed by a Mr. Cowan, an ad

Be

juster for that company, that it had been recovered, and that he (Cowan) had had it taken to Woods' garage in Baltimore city, where it then was. When it was recovered the machine was so badly damaged that it was necessary to tow it to the garage, and upon an examination it was found that extensive repairs were necessary to put it in a usable condition. Council inspected the car, but did nothing himself towards having it repaired, and a few days later Cowan approached him again, and told him that he (Cowan) had received an estimate from a Mr. Woods of the probable cost of the needed repairs, but rather discouraged the idea of having the work done by Woods, and suggested that the Auto Mart Company would be better equipped for it. Councill made no reply to that suggestion, and later Cowan returned and said that he had received an estimate from the Auto Mart Company of $380, later increased to $430, for repairing the car. Councill himself did nothing either in connection with that report, but Cowan, acting apparently for the insurance company, employed the Auto Mart Company to do the work.

That he acted for the insurance. company in doing that is one of the controverted points in the case, but, assuming the truth of all the testimony in the case tending to establish that fact, it is in our judgment sufficient to warrant the inference that in awarding the contract for repairing the car he was acting for the insurance company. The appellant, if we accept his testimony, had had nothing at all to do with awarding any contract for the repair of the car, nor is there anything in the record to show that he had at any time authorized Cowan to make a contract in his name, so that Cowan either made the contract for himself or for the insurance company, for he certainly had no authority to make it for Councill.

The appellant in his testimony, in referring to Cowan's acts in connection with the contract for repairs

made with the Auto Mart Company, said in part:

"Did you have any conversation with Mr. Cowan, the adjuster, with regard to getting estimates, or with regard to getting anybody else to repair the car? A. I said to Mr. Cowan, when he told me the Auto Mart Company was going to look after my car, I said, 'Why not get an estimate from the Zell and the Packard and the Cadillac people?' I knew the Zell people. I was next door to them. He said, "The Auto Mart is all right. Every time I get an estimate from these folks they charge me $5 or $10 for an estimate. The Auto Mart Company is all right. They have done work for me before.'

"Q. What did you tell him with regard to having the car repaired? A. I did not tell him anything.

"Q. In any event, he told you he had given the job to the Auto Mart people? A. That is correct.

"Q. What did he tell you about getting the Auto Mart to repair your car, if anything? A. He told me that the Auto Mart were the people to repair my car, he knew what they could do, and he had seen them work, and they did painting work and upholstering work and mechanical work right there at their place, and he said he knew they would fix my car up all right, and I need not worry about it at all; that he had given them work before.

"Q. In the meantime had you said or done anything to lead anybody to believe the car was taken from the Woods Motor Company at your request or suggestion? A. No, sir.

. . Well, after my car had been taken to the Auto Mart by Mr. Cowan, or sent there, I went to the Auto Mart to see my car, and see what they were going to do

"Q. What did you see on this occasion? Do you know whether it was before or after you saw the estimate? A. After that.

"Q. Had you seen Mr. Cowan any more in the meantime? A. I saw him after March 12th.

"Q. Did he say anything who was doing the work? A. He had al51 A.L.R.-3.

ready told me he had given the work to the Auto Mart; the Auto Mart had made an estimate on it, and he showed me a bill received from the Auto Mart.

"Q. Had you made any arrangements yourself with the Auto Mart or with anybody with regard to having your car repaired further than what you have testified to as to what Mr. Cowan said to you? A. No, sir."

Forasmuch as the proof of loss which the insurance company afterwards submitted to Councill was based upon the contract which Cowan had made with the Auto Mart

surer.

Company, the insur- Insuranceance company by recognition of that act, and by its agent by inpayment of the amount named therein to which we will presently refer, recognized Cowan as its agent authorized to adjust the appellant's claim against it.

After the repair work had been started, Cowan, acting for the insurance company, wrote to Councill, telling him what the estimated cost of the repairs would be, and asking him to submit proofs of loss for that amount, together with the expense of towing the car in, which the Woods Motor Company had charged against Cowan. Upon receiving that letter, Councill went to the garage and found that the repairs covered by the estimate would not place the car in good condition, and he also desired to be reimbursed for the loss of the tires, which had been damaged when the car was stolen. The estimate of his loss was then increased to $530, but he hesitated to sign proofs of loss for that amount, because at that time the repairs had not been completed, and before he did sign them the Auto Mart Company's representatives brought the car to him, and asked him for a check for the work done on it, although the repairs were not then completed. He told them that he had nothing to do with the contract for repairs, and they then went with him to see Cowan, who told him that it was true that the

Auto Mart Company wanted its money, and that he (Councill) would have to sign a proof of loss; that later Cowan brought him a proof of loss, in which his loss was placed at $530, and he signed it. Some time after he signed it, he was notified that a draft for that amount had been received by the Finance & Guaranty Company, from which he had borrowed the money to buy the car, and to which he was still indebted, and requested to call at its office and indorse it. At that time, however, the work on the car was not progressing satisfactorily, and the appellant doubted whether he ought to sign the draft, but he finally did sign it under the circumstances described in the following extracts from his testimony:

"That he refused to sign that draft because his car had not been fixed, and that, when that letter was written to come down and sign the draft, he had been down to see Mr. Fisher, and talked to Mr. Cowan, and told them he would not sign the draft until his car was fixed. He had several interviews with them. That he had made a demand on the Auto Mart and had written them a letter, copy of which witness then produced, the same being letter signed by witness dated May 28, 1921. . That up to that time his car had not been fixed; that hardly anything had been done. The knock was still in the motor; running board had one color brown, and the other was green; his fender and his upholstery and his tools, none of these things had been completed, fixed, or touched at the date of the letter referred to. . . That on May 28, 1921, he made a written demand upon the Auto Mart to have his car fixed. That a carbon copy of a letter that he wrote the Finance & Guaranty Company on June 12, 1921, enables him to fix the date of the interview, concerning which he and Dr. Dietrich had testified as after June 12th. That at the time he signed the draft in evidence his car had not been fixed.

"Q. State your recollection of

what took place at this interview at which you and Dr. Dietrich and Mr. Cowan and Mr. Fisher were present. A. Mr. Fisher said, 'Mr. Cowan, can we not have this thing fixed up for Dr. Council if he signs the draft?' He said, 'We can get the car'

"The Court: Who said that? A. Mr. Cowan said, 'Yes; if Dr. Councill signs the draft, we can get the car.' I was kind of dubious about signing the draft. I had not signed it for six weeks before. It had been six weeks since I had been notified about the draft

"Q. You had not signed the draft? A. No; I started to talk with Mr. Fisher and, he said, "The only thing you can do is to sign the draft;' so in the presence of Mr. Cowan and Mr. Fisher, after this assurance they would get my car from the Auto Mart and fix it up

"The Court: Who said that? A. In the presence of Mr. Cowan and Mr. Fisher, both said, if I signed the draft I could get my car.

"The Court: Who said they would fix the car? A. Mr. Cowan and Mr. Fisher.

"Q. Which one said it? A. They were talking there together; Mr. Cowan said it, 'The only way we can get the car is for Dr. Councill to sign the draft;' the Auto Mart would not release it

"Q. (Mr. Mullen). Both said it? A. Both of them, if I would sign the draft.

"Q. What part did Mr. Cowan have in connection with any promise to see that the car was fixed up, if he had any connection? A. Mr. Cowan was really the real man who told me; he said, "The only way to get the car you will have to sign the draft before you get the car,' and Mr. Fisher said, 'Doctor, that is the only thing you can do; if you sign the draft Mr. Cowan can get the car.' He did not say 'Mr. Cowan;' he said, 'We can get the car and have it fixed up for you then, and that is the only way to get the car; the Auto Mart will not give to you.'

The Fisher referred to in this tes