8. The policy provided that it should be void if foreclosure proceedings were commenced with the knowledge of the assured. Held, that the policy would not be rendered void by the pendency of such proceedings at the time of its issue.

Assumpsit upon a policy of fire insurance. Plea, the general issue. Trial by jury at the June term, 1893, Bennington county, THOMPSON, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

The plaintiff called her husband, F. H. Cooledge, as a witness, and the exceptions stated that "against the objection and exception of the defendant, the court allowed him to testify that he was the agent of his wife, the plaintiff, in the purchasing of goods and carrying on the business at the store insured; that the schedules attached to the proofs of loss were correct as to items, and that said items were correct as to price."

Further on the exceptions stated that "as bearing upon the admissibility of the evidence aforesaid, and as showing the exceptions by defendant as actually taken on trial to the admission of their testimony, the testimony of F. H. Cooledge (and others) is referred to."

The stenographic transcript showed that the testimony of Mr. Cooledge, in the respects mentioned, was objected to, and was received under the exception of the defendant; but further showed that the defendant did not object to the testimony upon the ground that the agency of the husband could not be proved by his own testimony, but did place its objection to said testimony upon other grounds.

In the opening of her case the plaintiff offered in evidence a policy of insurance issued to her by the defendant company. The defendant objected to the admission of this policy for the reason that there was a variance between the contract set forth in it and the contract declared upon in the plaintiff's declaration. This objection was overruled and

the policy was admitted, subject to the exception of the defendant.

The material part of the plaintiff's declaration was as follows:

"In a plea of the case for that whereas the plaintiff on the second day of January, A. D. 1891, at Arlington, in the county of Bennington aforesaid, was the owner of one twostory frame tin roofed building, occupied for tin shop, office and machine shop, situate in said Arlington, and then was the owner of stoves, tinware, and such other merchandise as is usually kept in a tin shop and hardware store, and of furniture, fixtures, tools and machinery, all then kept and located in said building, situated and standing upon certain land of the plaintiff, and all of the value of more than eighteen hundred dollars.

That said defendant was then, and ever since has been, and still is, a corporation organized and existing under the laws of the State of New York, and on said twenty-second day of January, A. D. 1891, had a license, in force, issued to it under, and by virtue of, and pursuant to the provisions of the laws of the State of Vermont, authorizing it to insure property against loss by fire, and transact insurance business in said each named state. That on the second day of January, A. D. 1891, said land of the plaintiff, upon which said building was situated, and said building was subject to a mortgage of five hundred dollars, with interest thereon for less than one year which had by the plaintiff, before said second day of January, A. D. 1891, been executed to Ernest E. Andrew, which said mortgage was on said second day of January, A. D. 1891, due and owing to the estate of said Andrew, he having deceased before that date.

"That on said second day of January, A. D. 1891, at Arlington aforesaid, the plaintiff made application to the defendant for insurance against loss by fire upon said building, and all said personal property, for the benefit of the plaintiff, and for the benefit of the said mortgage debt and the holder thereof.

"That thereupon, on said second day of January, A. D. 1891, the defendant made and delivered to the plaintiff its written contract and policy of insurance, and therein and thereby, in consideration of the sum of twenty-six and

twenty-five one-hundredths dollars to it in hand paid, by the plaintiff, did insure the plaintiff for the term of one year from said second day of January, A. D. 1891, at noon, to the second day of January, A. D. 1892, at noon, against all direct loss or damage by fire upon or to said building and said personal property to an amount not exceeding fifteen hundred dollars, subdivided and separated into items in said. contract of insurance as follows:

"Upon her two-story frame tin roofed building, occupied for tin shop, office and machine shop, situate in said Arlington, the sum of eight hundred dollars.

"Upon her stock of stoves, tinware, and such other merchandise as is usually kept in a tin shop and hardware store therein, five hundred dollars.

"Upon her furniture, fixtures, tools and machinery therein, two hundred dollars, with loss, if any, payable to mortgagee as interest may appear, and in case of loss or damage thereto by fire within said term therein, and thereby undertake and promise to pay, and indemnify the plaintiff for such loss or damage to an amount not exceeding the said sum for which each item of property was so respectively insured, all which will more fully and at length appear from said original contract and policy of insurance, now ready here in court to be produced; that plaintiff on her part faithfully hath kept, performed and observed each, every, and all of the conditions of said contract, by her to be kept, observed and performed.

"That upon the sixteenth day of June, A. D. 1891, and while said policy was in force, said building then being occupied by the plaintiff, and all said described personal property therein, mentioned and enumerated in said contract of insurance, all then being owned by the plaintiff, said building then being subject to said mortgage, were without the fault of the plaintiff, wholly consumed and destroyed by fire, and thereby wholly lost to the plaintiff at Arlington aforesaid, and to the direct damage and loss of the plaintiff more than fifteen hundred dollars as follows, viz.: Upon said first item of property one thousand fifty dollars, upon said second item five hundred seventeen dollars, and upon said third item three hundred fifty-seven dollars. That immediately after said fire the plaintiff, to wit, on the seventeenth day of June, A. D. 1891, gave notice in writing to

said defendant of such loss, and within sixty days after said fire rendered a written statement to the defendant, stating therein the knowledge and belief of the plaintiff as to the time and origin of said fire; the interest of the insured and all others in the property; the cash value of each item thereof, the amount of loss thereon; stating all encumbrances thereon; that there was no insurance on said property except that of the defendant; containing a description of all the description of said property as described in the said policy of the defendant; stating any changes in the title, use, occupation, location, possession, or exposure of said property since the issuing of said policy of defendant; by whom and for what purpose the said building, and the several parts thereof, were occupied at the time of said fire; all signed and sworn to by the plaintiff.

"That more than sixty days have now elapsed since said notice and sworn statement so was furnished to said defendant.

"That thereupon the said defendant wholly neglected and refused to ascertain, or to attempt to ascertain, the amount of said loss and damage to the plaintiff as said policy provided it should do, but alleged, claimed, and pretended to the plaintiff that said contract of insurance was wholly null and void, and of no binding force or effect upon it, and then did, and ever since has, and still does, wholly neglect and refuse to pay to or indemnify the plaintiff for the said loss and damage suffered and sustained by her by reason of the said fire, as in and by said contract of insurance it had promised and agreed to do."

The following was the policy of insurance offered in evidence:

"The Continental Insurance Company, of the City of New York, in consideration of the stipulations herein named and of twenty-six and twenty-five one-hundredths dollars premium does insure Eva P. Cooledge for the term of one year from the second day of January, 1891, at noon, to the second day of January, 1892, at noon, against all direct loss or damage by fire except as hereinafter provided, to an amount not exceeding fifteen hundred dollars, to the following described property while located and contained as described herein, and not elsewhere, to wit:

"$800 on her two-story frame tin roofed building, occu

pied for tin shop, office and machine shop, situate in Arlington, Vt.

"$500 on stock of stoves, tinware, and such other merchandise as is usually kept in a tin shop and hardware store, therein.

"$200 on furniture, fixtures, tools and machinery therein. Loss, if any, payable to mortgagee, as interest may appear. "$1,500. One year, $26.25. "To attach to policy No. 1320, Continental Ins. Co., of New York.

"Rutland, Vt., Agency.

"This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment of estimate shall be made by the insured and this company, or, if they differ, then by appraisers as hereinafter provided; and the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described.

"This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.

"This entire policy, unless otherwise provided by agree