mitted to the court; and the court finding no such motion on file, but a motion to strike the replications from the file, after consideration, the court overruled the motion to strike the said replications from the files."

On the trial, as the bill of exceptions shows, the plaintiffs offered the bill of exchange and acceptance in evidence, and the court admitted them, against the objection and exception of the defendants. It was proved that the accepted bill was given for the rent of house leased by plaintiffs, as agents for Cox, to W. W. Haughton, at a monthly rent as stipulated; but the evidence was conflicting as to whether this was a part of the original contract or not, the defendants insisting that the lease had already been signed and delivered before the bill of exchange was presented for acceptance, and that they accepted it for the accommodation of Haughton, without any consideration. As to the question of repairs, the bill of exceptions states: "The proof was without conflict that repairs had to be made, and Haughton knew it before he rented the premises; and there was no conflict whatever in the evidence as to the fact that Wilson and Cox agreed to repair and make the house tenantable. The plaintiff introduced several witnesses who had worked in making repairs on said house, and whose testimony was direct and positive that the premises were duly repaired by Cox, and that Haughton expressed himself satisfied with them; but one of the defendants, Espalla, testified, directly and positively, that the repairs were not made, that Haughton was dissatisfied, and for that reason quit the premises on June 1, 1885, after repeated notice to Cox and Wilson that he was going to quit on that account." The bill of exceptions purports to set out all of the evidence, but a fuller statement of it is unnecessary.

At the request of the plaintiffs, in writing, the court gave the following charges to the jury: (1) "The burden of proof is on the defendants in this case to make out a defense, and, if the evidence leaves the proof of that defense in doubt and uncertainty, the defendants must be cast in the suit." (2) "If the jury believe from the evidence that Haughton had not yet delivered the lease to Wilson, Sage & Co., but still held it until Espalla & Haynie accepted the draft, and that they accepted it as security for the rent due under the lease, and that the lease and draft were delivered together to Wilson, and that Cox, within a reasonable time thereafter, put the leased premises in reasonble tenantable order, and to Haughton's satisfaction, then the plaintiffs are entitled to a vereict for the full year's rent embraced in the acceptance." The defendants excepted to each of these charges, and here assign them as error, with the several rulings of the court on the pleadings and evidence, as above noticed.

W. E. Richardson, for appellants. R. Inge Smith, for appellees.

CLOPTON, J. We do not deem it material to consider the demurrer to the special count of the complaint; for, if conceded to be defective, it does not necessarily operate a reversal of the judgment. The complaint contains also the common counts. The special count claims of the defendants as acceptors of a bill of exchange. After following the form in such case prescribed by the Code, the special count sets out, in hæc verba, the draft or bill of exchange sued on, without showing an acceptance written thereon. The plaintiffs may recover under the special or common counts. The only difference is that, under the special count, the draft was receivable in evidence without preliminary proof of its execution, unless denied by verified plea, which was not filed. Under the common counts, proof of execution was requisite to the admission of the draft in evidence. True, it was received without such proof, but its execution, having been subsequently proved, cured the defect. It affirmatively appears from the record that the plaintiffs established by satisfactory proof their right to a recovery on the common counts, though the special count had been omitted or stricken out, and the defendants had the full benefit of every defense which they could have made under the special count. Under these

circumstances, if there was error in overruling the demurrer to the special count, it was without injury.

Several of the assignments of error relate to overruling demurrers to the replications filed to the special pleas. The record shows a motion to strike out the replications, but no demurrer interposed. When a plea is merely defective, not frivolous, nor a nullity, the trial court may, in its discretion, refuse to entertain a motion to strike out, and put the party on his demurrer. The refusal to strike out the replication is not revisable on error. Lankford v. Green, 62 Ala. 314.

The court instructed the jury that the burden was on defendants to establish their defense, and, if the evidence left it in doubt and uncertainty, they must fail. The correctness of the charge, as an abstract proposition, is not controverted. But it is insisted that the evidence prima facie shows that the acceptance was an agreement to answer for the debt or default of another, and, not expressing the consideration, is within the statute of frauds, and that the burden of proof was thus shifted on plaintiffs. Defendants' acceptance of the draft was given by Haughton, the drawer, in consideration of the rent of a store-house for 12 months, and was part of the original agreement to lease. It was not a collateral promise, but an original, substantive contract, founded on a present, valuable consideration moving to Haughton. No question as to the statute of frauds arises on the evidence. Dunbar v. Smith, 66 Ala. 490. If the evidence presented such question, the defense, under the statute, must be pleaded; otherwise it is considered as waived, and, if the contract sued on be established, it will be enforced. Jonas v. Field, 83 Ala. 445, 3 South. Rep. 893; Lewis v. Teal, 82 Ala. 288, 2 South. Rep. 903; Shakespeare v. Alba, 76 Ala. 351.

The defendants also set up the defense that the lessors had failed to make repairs on the leased premises as agreed upon, in consequence of which the lessee abandoned them after having occupied them several months. There being evidence tending to show that the lessor had put the premises in a tenantable condition to the satisfaction of the lessee, the court instructed the jury, on this hypothesis, that plaintiffs were entitled to recover the rent for the full term. The rent was payable in monthly installments, and the installment for the first month had been paid. It is contended that the effect of the charge is that plaintiffs were entitled to recover the face amount of the acceptance, disregarding the payment made. In view of the defense and the evidence, we understand that the charge was intended by the court, and must have been so understood by the jury, as an instruction in respect to the extent of the liability of defendants,-whether for the entire term of the lease, or only for the time the premises were actually occupied. The amount of the verdict shows that the payment was allowed. It may be, as counsel insist, that it exceeds the sum actually due by a few dollars; but, if so, the mistake arose from a miscalculation of interest, or error in the addition, and not from a disallowance of the payment. The correction of such error, if it exists, was for the circuit court, and cannot be revised on appeal. The record presents no reversible error.

Affirmed.

INSURANCE CO. OF NORTH AMERICA v. FORCHEIMER et al.

(Supreme Court of Alabama. April 9, 1889.)

1. INSURANCE-CONSTRUCTION-CANCELLATION.

A steam-ship company took out an open policy of insurance with the defendant on merchandise to be shipped on its steamers, which the company might agree to insure prior to the sailing of its vessels, any losses to be paid to it or order. Goods shipped by plaintiff were insured under such policy. It was contended by the defendant that it was only intended by such policy to insure the interest of the steam-ship company in goods shipped, but it was held that it must be inferred that the general ownership by the plaintiff was to be insured from the facts that the

bill of lading issued to the plaintiff exempted the steam-ship company from liability for nearly all the losses covered by the policy; that the policy provided that it should not inure to the benefit of a carrier; that a stipulation permitting cancellation excepted "pending risks;" that the carrier could insure third persons by entries and notices thereof to the defendant; and from the further facts that losses on goods shipped by other owners, and insured under the same circumstances, had been paid without question; and that cancellation of the insurance on plaintiff's goods was sought to be effected only when it was learned that he had other insurance. 2. SAME-AGENTS.

An agent to procure insurance has no power to cancel a policy without express authority from his principal.

8. SAME-ACTIONS-PARTIES.

Plaintiff could maintain an action on such policy under Code Ala. § 2594, providing that actions on contracts, express or implied, for the payment of money, may be prosecuted in the name of the real party in interest, whether he has the real title or not.

4. EVIDENCE-JUDICIAL NOTICE.

The court will not take judicial notice of the rates of interest prevailing in other states.

5. INTEREST-CONFLICT OF LAWS.

Where a judgment rendered for the enforcement of a contract executed in another state is reversed because it includes interest from the institution of the action, without any evidence of the rate of interest applicable to the contract having been given, interest cannot be awarded from the time the judgment was rendered at the rate prevailing in the state where the action is prosecuted, on the assumption that the liability on the contract has been merged in the judgment; the effect of the reversal being to expunge the judgment in the court below. Appeal from city court of Mobile; W. E. CLARKE, Judge.

This action was brought by M. Forcheimer & Co., merchants and partners. doing business in Mobile, Ala., against the Insurance Company of North America, a Pennsylvania corporation, to recover $10,000 insurance on "315 double bags of coffee," which had been shipped to the plaintiffs from New York on the 1st June, 1887, by steamer Vidette, and was lost with the vessel, in the Gulf of Mexico, on the night of June 13th or the morning of the 14th. The defendant pleaded the general issue, and also several special pleas, denying any contract of insurance with the plaintiffs, denying their right to sue on the policy claimed to have been made for their benefit with the defendant, and alleging a cancellation of that contract. By agreement in writing, entered of record, the parties admitted the material facts, as to which there was no dispute, waived a trial by jury, and submitted the case for decision to the decision and judgment of the court, asking for a special finding of the facts, and reserving to each party the right to appeal, as provided by the statute. Code, §§ 2743-2745. The facts thus admitted and found by the court, in which the policy of insurance, with its indorsements, the bill of lading for plaintiffs' goods, and all other documentary evidence, as are set out in full, are, in substance, as follows:

The steamer Vidette belonged to the New York & Mobile Steam-Ship Line, of Arnold & Co., who were engaged as common carriers in transporting goods between New York and Mobile and other places, and Bowring & Archibald were their agents in New York. On January 5, 1887, said Bowring & Archibald, as such agents, took out an open policy of insurance with the defendant company, on merchandise to be forwarded by the steamer Lorenzo D. Baker, "not exceeding $75,000 at any one time;" the first clause of which, as construed by this court, was in these words: "Bowring & Archibald, agents, on account of whom it may concern, to cover shipments made on and after January 5th, 1887, which the assured or their agents in Mobile, Ala., may agree to insure prior to the sailing of the vessel, and prior to known loss to property or vessel, note thereof being made by the assured or their agents, at their office, in the manifest and bill of lading, in case of loss, to be paid to them or order, do make insurance, and cause to be insured," etc. The policy was partly written and partly printed, the above italicized words being printed, and the written words being so interlined that, according to the defendant's

contention, the clause should read thus: "Whom it may concern: To cover Bowring & Archibald, agents, on account of shipments made," etc. The policy contained a stipulation printed, "that this insurance shall not inure to the benefit of any carrier;" and another stipulation, also printed, “that either party is at liberty to cancel this policy at any time, on giving notice to that effect, which, however, is not to prejudice any risk then pending." The perils insured against were those "of the seas, fires, jettisons, barratry of the master and mariners, and all other perils, losses, misfortunes," etc. The policy was to continue in force for not more than one year, unless by agreement indorsed thereon. The original policy applied only to goods forwarded by the said Lorenzo D. Baker; but, by written indorsement dated January 26, 1887, it was agreed "that this policy shall cover steamer Vidette, as well as steamer L. D. Baker." Early in April, Bowring & Archibald, as agents, were succeeded by W. J. Best; and thereupon a memorandum was indorsed on the policy, dated New York, April 13, 1887, in these words: "On and after this date it is understood and agreed that this policy shall cover in the name of W. J. Best, agent, instead of Bowring & Archibald." On June 14th another indorsement was made on the policy, to the effect that it should "cover goods shipped on deck" of each of said steamers.

The plaintiffs' goods were shipped on the Vidette, and a bill of lading given, which was dated New York, June 1, 1887, signed by said Best as agent, and containing numerous exceptions from liability for losses, among which were: "Fire from any cause, on land or on water, jettison, ice, freshets, floods, weather, pirates, robbers, or thieves, acts of God or the country's enemies, etc. Stamped or indorsed on this bill of lading, by the said Best, as agent, were these words: "Insured from New York to Mobile, subject to the terms and conditions of our open policy No. 2,076, with the Insurance Company of North America, for $10,000;" but it was admitted, and was so found by the court, that the defendant had no notice or knowledge of this bill of lading, or of its contents. The defendants had furnished to Bowring & Archibald, while they were acting as agents of said carriers, "a book in which they were required to enter all risks under said policy No. 2,076, and exhibit the same to the defendant's New York agents, within seventy-two hours after the sailing of the vessel from New York with the insured goods;" and this book, with the said policy, was turned over to the said Best, as agent, when he succeeded them. The policy and the book were kept for Best by one Bascome, an insurance broker, through whom he conducted his insurance business. By the course of dealing between them Bascome made, under Best's directions, entries of the risks in this book, and made report of the same to defendant's agents in New York. On the 5th of June, 1887, Best instructed Bascome, in writing, as follows: "Please insure, under open policy issued to N. Y. to Mobile S. S. Line, as follows: Steamer Vidette, N. Y. to Mobile, Mobile cargo, $18,726; Montgomery, $10,234; Selma, $2,532," etc. In accordance with these instructions, Bascome made the necessary entries in the book, and exhibited them to the defendant's agents, by whom they were approved. In the heading of this book, or on the first page, was a memorandum signed by the defendant's attorneys and agents, in these words: "It is understood that all indorsements herein made apply to open policy No. 2,076, and are approved subject to the conditions therein expressed." The entry as to the cargo of the Vidette, dated June 6, 1887, only stated that it was “Mdse., $18,726," which included plaintiffs' said bags of coffee at a valuation of $10,000; "but neither defendant, nor its New York agents, had any knowledge or notice that said coffee was included in the merchandise so insured, nor of any of the items making up said cargo."

The plaintiffs carried an open policy of insurance with the Factors' & Traders' Mutual Insurance Company, Mobile; and on receipt of the bill of lading for the coffee, June 6th, they had it included in this open policy, at a

valuation of $10,000, and so informed the agent of the steam-ship company in Mobile. Said Mobile agent thereupon informed Best, the New York agent, by letter, of the fact that the plaintiffs had fully insured the coffee in Mobile, but plaintiffs denied that they ever authorized him to do so. Best received the letter on the 13th of June, and on the next day proceeded to obtain a cancellation of the risk on the coffee, as entered on the open policy with the defendant. It was admitted that everything was done by said Best and the defendant which was necessary to effect a cancellation of said policy as to the risk on the coffee, and this was done without any knowledge or notice by either of them of the loss of the vessel and cargo. It was admitted, also, that neither the steam-ship company, nor Best as agent, had any express authority from the plaintiffs to make any such cancellation, or that they agreed to any such cancellation; and plaintiffs denied that Best had any implied authority to do so.

All the premiums due on insurance for goods covered by said open policy No. 2,076 were paid to the defendant by the steam-ship company, and the plaintiffs neither paid nor were responsible for the premium paid on their shipment of coffee. Soon after the loss of the Vidette, the necessary proofs of loss and value of cargo having been made, the loss was settled and adjusted between said defendant and Best, as agent of the steam-ship company, except as to the plaintiffs' shipment; and all the owners of the other portions of the cargo were paid by the defendant, on the production of an order and certificate from Best as to the amount due to each of them. These facts were admitted, "but with the understanding that the defendant does not admit their relevancy, nor their binding legal effect upon it." It was further admitted, also, that the plaintiffs had never collected anything on account of their loss from the Factors' & Traders' Insurance Company, which denied its liability, on the ground that the coffee was fully insured by the policy effected with the defendant in this case, on the facts stated. No question was raised as to the proofs of loss or value.

On these facts the court rendered judgment for the plaintiffs for $10,000, with interest at 6 per cent. from the commencement of the suit. The defendant excepted to the judgment of the court, and here assigns the same as error. R. H. Clarke and Wats & Son, for appellant.

MCCLELLAN, J. It is not denied that the purpose of the policy was to insure property, the general ownership of which was in the appellees. It may be admitted that the steam-ship company had an insurable interest in the subject-matter insured. The company had the custody and possession of it for the purpose of transportation; and had the property been lost in the transit through the fault of the carrier, or its agents or employés, the steam-ship company would have been liable to appellees for its value. Loss without fault on the part of the carrier would have entailed no liability on it under the stipulations of the bill of lading. In effecting the insurance the agents of the steam-ship company went much further than was necessary to cover the interest of their principal, and protect it from ultimate liability to the owners of the property. The insurance is against "perils of the seas, fires, jettison, barratry, and all other perils, losses, and misfortunes.' These were not the risk of the steam-ship company. It was under no obligation to save the plaintiffs harmless from losses resulting from these perils. On the contrary, it was expressly stipulated in the contract of shipment that the carrier should not be liable to the owner for any loss or damage arising from any one of a number of specified causes, among which were all of those embraced in the policy of insurance, except such as involved fault on the part of the carrier, or on the part of its agents and employés. This fact, in our judgment, tends strongly to show that it was the intention of the insurers and the agents of the carrier to cover, not the latter's special interest in and

* *