limited liability on account of the subject-matter of the policy, but the general ownership of the property. There is an express stipulation in the policy to the effect that the insurance evidenced by it shall not inure to the benefit of any carrier. This, we think, cannot be given any field of operation consistent with the contention of the appellant that the steam-ship company was the beneficiary under the contract. The contract also provides that the agents of the carrier might agree to insure third persons, and consummate such insurance by entries and notices thereof to the insurer. This is wholly incompatible with appellant's theory that these agents, or their principal, the steamship company, and not the third persons thus contracted with, were to be indemnified against loss. The stipulation that cancellation shall not prejudice pending risks must refer to the interest of third parties, and would have been wholly useless and meaningless, if the only parties to the transaction had been the insurer and the nominally insured.

It is not attempted to be denied that the owners of other merchandise, shipped on and lost with the steam-ship Vidette, and which was insured at the same time, and under the same circumstances, and by the same methods, that appellees' goods were insured, were paid the amounts of their respective losses, and no question as to the propriety of this course was made by any of the parties, nominal or beneficial, to the contract. It is in evidence that the alleged cancellation was consequent upon the information that the consignees had effected other insurance on their goods; and the effort to cancel must have proceeded on the theory that the insurance secured in Mobile covered the same interest in the property as that effected in New York, and this fact may therefore be looked to as showing a construction by the insurance company and the steam-ship company that the New York policy covered the general ownership and protected the appellees. These considerations force us to the conclusion reached in the court below, that the insurance was intended to cover the general property in the merchandise, and was for the benefit of Forcheimer & Co.; and in consonance with the intent thus arrived at, as well as in conservation of the natural arrangement of the opening words of the policy, we hold that the insurance was effected, not to cover the agents of the steam-ship company, but on account of whom it might concern, and inured to the benefit of the owners of the goods entered on the open or running policy, among whom were the plaintiffs.

It follows that the insistence of the appellant that there was a valid cancellation of the policy, consummated on June 16, 1887, by and between the agent of the steam-ship company and the insurer, must stand or fall, as it shall be determined that Best, who at that time was the regular agent of the steamship company, was, with respect to the cancellation, the agent of the appellees, or that he was not. Whether Best is to be regarded as the agent of the appellees in effecting the insurance is, at least, open to grave doubt. It is certain that in some sense he represented the appellant, and was authorized to agree with third parties for the entry of risks on the open or running policy, and that he did so agree with appellees' consignor for the risk taken on the goods involved here. It may be that he acted in that manner in a dual capacity, as the agent of both the insurer and the insured. We deem it unnecessary to fix his status with respect to the act of procuring the insurance. Even admitting that, in entering the goods of the appellees on the open policy of the appellant, he represented the former, it by no means follows that he was authorized to cancel the insurance thus made. The policy itself, to our minds, provides against such a cancellation to the prejudice of appellees' right under it, and the law appears to be well settled that authority to procure is not authority to cancel insurance once made. In England it is held that "the cancellation of the policy, being an act which destroys the relation, not only of the assured and the insurer, but of insurance broker as agent for the assured, cannot for that reason be justified by any supposed authority implied from

the existence of that relation, or from the fact of the policy being left in the broker's hands, and consequently depends for sanction on the express authority of the principal." 1 Arn. Ins. 190.

And in this country it is held that "an agency to procure insurance is ended when the insurance is procured and the policy delivered to the principal; and the agent employed to procure the insurance has no power, after the policy is so delivered to his principal, to consent to a cancellation." Rothschild v. Insurance Co., 7 Ins. Law J. 639. Bennett v. Insurance Co., 81 N. Y. 273; Latoix v. Insurance Co., 27 La. Ann. 113.

The policy sued on was delivered to the insured in the only way possible, under the circumstances, and in the way contemplated by the parties, before the alleged cancellation. The city court rightly found "that neither said Best, as such agent of such steam-ship company, nor defendant, had from the plaintiffs any express authority or consent that they, or either of them, might cancel said insurance." There could have been no implied authority, as we have seen, for such cancellation, and we accordingly hold that there was no cancellation of the policy.

Section 2594 of the Code provides that "actions on promissory notes, bonds, or other contracts, express or implied, for the payment of money, must be prosecuted in the name of the party really interested, whether he has the legal title or not." A contract of insurance is one within the meaning of this statute. Perry v. Insurance Co., 25 Ala. 355. The plaintiff being, as we have held, the beneficiaries under the policy,-the parties really interested in the contract, the suit was, under the section referred to, properly instituted in their names. But we apprehend that, even in the absence of the statute, suit on a policy running to nominal parties for the benefit of "whom it may concern," is properly instituted in the name of the parties intended to be protected. 2 Arn. Ins. 1120; Daniels v. Insurance Co., 5 Fed. Rep. 425, and cases cited.

There was no agreement and no evidence offered in the court below as to the rate of interest in the state of New York, where the contract was made and was to be performed. Under the decisions of this court, the table of interest rates in the several states, published with the acts of the general assembly, is only prima facie evidence of those rates, to be offered as other evidence, subject to the right of controversy by the party against whom interest is claimed. Courts cannot take judicial notice of the rates thus published. The judgment below was for the amount of the policy, with interest from the institution of the suit, amounting in all to the sum of $10,425. To thus include interest, without evidence of the rate applicable to the contract, was error, for which the judgment must be reversed. Clarke v. Pratt, 20 Ala. 470; Harrison v. Harrison, Id. 649.

It is insisted by appellees that, if the case is reversed on this ground alone, the judgment below should be corrected, and here rendered for the amount of the valued policy, with interest at 8 per cent. from the time of trial in the city court, on the assumption that the liability was then merged into the Alabama judgment, which bears interest at that rate. We do not think this can be done, for the reason that a judgment of reversal here operates to expunge the judgment in the court below, and to leave the claim for interest precisely where it was before the rendition of that judgment, -dependent upon the laws of New York, of which there was and is no proof.

Under the authority of Harrison v. Harrison, supra, however, judgment may be here rendered for $10,000, the amount of the policy, without interest, and it is accordingly so ordered.

The view we have taken of this case renders it unnecessary to consider the cross-assignments of error.

Reversed and rendered.

NIAGARA FIRE INS. Co. et al. v. RADEN.

(Supreme Court of Alabama. May 1, 1889.)

1. INSURANCE-AGENCY.

An agency to procure insurance is ended when the insurance is procured, and the policy delivered to the principal, and the agent has no power thereafter to consent to a cancellation. Following Insurance Co. v. Forcheimer, ante, 870.

2. SAME TERMINATION OF POLICY-NOTICE TO AGENT.

A provision in a policy of fire insurance, that it may be terminated at any time by the company by giving notice "to the person who may have procured this insurance to be taken," does not apply to a case where the person who procured the insurance was the agent of the company to issue it. If susceptible of such a construction, the provision would be contrary to public policy.

8. SAME-CANCELLATION-RATIFICATION.

Complainant held fire policies in defendant companies which defendants' agent, through whom they were procured by complainant, assumed to cancel, and to substitute therefor policies in other companies, without the knowledge of complainant, who was a foreign woman, and ignorant of her legal rights. After her property was destroyed by fire, she brought suit on the substituted policies; her attorneys being led by the agent to believe that the notice of cancellation of the original policies had been duly served on her authorized agent, and that those policies were no longer in force. It did not appear that complainant knew that the substituted policies had been procured upon the representation that there was no other insurance on the property. Held, that there was no ratification of the attempted cancellation, nor any abandonment of her vested rights under defendants' policies.

Appeal from city court of Birmingham, in equity; H. A. SHARPE, Judge. Hewitt, Walker & Porter, for appellants. Webb & Tillman, for appellee. SOMERVILLE, J. The bill is filed by the appellee, Mrs. Raden, to restore or reinstate two policies of fire insurance alleged to have been canceled by fraud or mistake of fact, and to re-establish these instruments as evidences of the liability of the defendant companies by which they were issued, and to incidentally enforce them by the rendition of moneyed decrees for the amount of the loss by fire, not exceeding the amount of the policies, which were each for the sum of $1,250. The court below granted the full relief prayed in the bill, holding both of the policies to be of binding force.

A demurrer was filed to the bill, but no assignment of error is based on the action of the court in overruling it. Objection to this ruling is expressly waived, and the only question presented by the record is whether the insurers, the Niagara Fire Insurance Company and the Hamburg-Bremen Insurance Company, one or both, are liable on these policies, under the facts disclosed by the evidence.

The complainant's property in Bessemer is shown to have been destroyed by fire on the night of July 19, 1887, and no controversy is raised as to its value, or the amount of the loss. The property was originally insured in the Liverpool, London & Globe Insurance Company, on July 2, 1887, for $2,500, but this policy was canceled, and the two policies here in controversy were substituted in its place by consent of the insured, a week or 10 days after this cancellation.

The defense to the present suit is that each of the policies in controversy was canceled on July 18, 1887,-the day before the occurrence of the loss. This is alleged to have been effected by giving notice of such cancellation to one Langley, who is claimed to have been the agent of Mrs. Raden, the insured, and to him was paid the return premium. It is not denied that cancellation was effected, if Langley was the agent of the insured for the purpose of receiving the notice and the return premium. The whole question of cancellation hinges on this one question of fact.

One John G. Smith was the agent of the defendant companies at Birmingham, Ala. He was also agent for the Liverpool, London & Globe Insurance Company, in which the first policy was obtained. Flanagan & Langley were insurance agents at Bessemer, Ala., their exact relations towards Smith not

being made very clear by the testimony. The testimony is very conflicting on the point as to whether they acted as agents of Smith, or of Mrs. Raden, or merely as insurance brokers in procuring the first policy, as to the cancellation of which no controversy exists. Flanagan says they acted for Smith, and Smith asserts they acted for Mrs. Raden. This Mrs. Raden denies. Langley says they acted as insurance brokers, dividing commissions with Smith. It is quite clear to us that Langley, as he himself testifies, solicited the insurance of Mrs. Raden; that she was induced to make a written application for the first policy; and that it was countersigned by Flanagan & Langley, as agents of the Liverpool, London & Globe Company, and was transmitted by them to Smith, at Birmingham. This document appears in the record as an exhibit to Langley's deposition, and is more trustworthy than the less certain memory of witnesses.

All of this testimony relates, as we have said, to the first policy, admitted to be canceled. We do not deem it necessary to discuss this part of the evidence, as it does not seem to be of controlling importance. The question is, who procured the issue of the policies here in controversy? Did Langley or his firm do so, as the agents of Mrs. Raden? If not, the notice to Langley, and the payment of the return premium to him, did not operate to cancel these policies, or rescind the contract of insurance evidenced by them.

We are satisfied from the testimony that Smith, and not Langley, procured these policies to be issued. There is scarcely enough conflict in the evidence to raise any serious controversy on this point. Smith was himself the authorized agent of these defendant companies at Birmingham. Flanagan and Langley had no connection with them. When ordered to cancel the Liverpool, London & Globe policy, he at once volunteered to substitute for the canceled policy the two policies in controversy, which he transmitted to Mrs. Raden, through Flanagan & Langley, for delivery, and this seems to be all the latter firm had to do with the matter. Smith, it is true, insists on the fact of this firm's agency for the insured, and testifies that they were her agents, but the facts stated by him refute the existence of the alleged agency. He says: "After the cancellation [of the Liverpool, London & Globe policy] Mrs. Raden's property was insured in other companies by me, and the policy in the Liverpool, London & Globe was surrendered by me to Flanagan & Langley. In order to secure her from loss, I insured her property in other companies." And again, on cross-examination: "When the Liverpool, London & Globe Insurance Company policy was canceled, I issued the policies in the defendant companies without the knowledge of Mrs. Raden, or her agents, Flanagan & Langley."

As to the policy of one of the defendants, the Hamburg-Bremen Insurance Company, we need say but little. Even if it were admitted that Langley had procured this policy to be issued, or if it be assumed that Smith did so, the agency ceased when the policy was delivered to the insured. We have decided at the present term that "an agency to procure insurance is ended when the insurance is procured, and the policy delivered to the principal; and the agent employed to procure the insurance has no power, after the policy is so delivered, to consent to a cancellation." Insurance Co. v. Forcheimer, ante, 870, (present term.) This doctrine is fully supported by the adjudged cases. Hermann v. Insurance Co., 100 N. Y. 411, 3 N. E. Rep. 341; 1 Wood, Fire Ins. (2d Ed.) p. 337, § 142. Notice of cancellation to Langley, therefore, with his consent to rescission, was no notice to or consent by Mrs. Raden. Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. Rep. 207.

As to the policy of the defendant the Niagara Fire Insurance Company a slightly different view must be taken, because of the following provision relating to the cancellation of policies: "This insurance may be terminated at any time, by request of the assured, or by the company on giving notice to that effect, or to the person who may have procured this insurance to be taken. On surrender of the policy the company shall refund any premium that may

have been paid, reserving the usual short rates in the first case, and pro rata rates in the other case."

This policy, as we have shown, was obtained for Mrs. Raden by Smith, not by Langley. Smith was the person who procured it to be taken, within the meaning of the policy. Now, Smith is the agent of the company to issue the policy. He therefore occupied an ambiguous attitude, or a double agency involving conflicting rights and duties. The provision above cited was not intended to cover a case of this character. It could not have been contemplated that the agent of the company should give notice to himself, as agent also of the insured, of the cancellation or rescission of the contract of insurance, nor that he should pay to himself the return premium required to be paid under the terms of the contract, without which payment there could be no cancellation. If susceptible of this construction, the provision would be invalid as in violation of all sound principles of public policy, and we would so declare it. The law will not permit an agent thus to serve two masters, with conflicting interests. Insurance Co. v. Allen, 80 Ala. 571, and cases cited on page 576, 1 South. Rep. 202, 206; Insurance Co. v. Young, 58 Ala. 476; 2 Wood, Fire Ins. (2d. Ed.) 833 et seq., § 409; Kansel v. Association, 16 N. W. Rep. 430.

Under these principles, Mrs. Raden had no notice of the cancellation until the loss by fire had occurred, and the liability for such loss had been fastened on the insurers. Nor was the return premium paid back to her before such loss, the payment to Langley being no payment to her.

We come next to the question of ratification. It is contended that Mrs. Raden ratified the alleged cancellation in two ways: First, by accepting two other policies of insurance,-one in the Mobile Fire Insurance Company, and the other in the St. Paul Fire & Marine Insurance Company,-which were substituted by Smith for the policies in controversy, covering the same property, and for like amounts; and, secondly, by having brought suit on these substituted policies before filing the present bill. And it is said that all this was done by Mrs. Raden with a full knowledge of the facts of the case on her part.

These policies were not delivered to Mrs. Raden until after her property was destroyed by fire, and her right to indemnity for the loss had accrued, although they had been taken out by Smith without her knowledge before the fire. Smith, again, in this matter acted as agent for Mrs. Raden. He was an insurance agent, shown to be intelligent, and presumably an expert in matters pertaining to this subject. She was a foreigner by birth, and evidently ignorant as to her legal rights, unless fully instructed as to them. Under this state of facts, Smith owed her peculiar duties. Before she can be declared by a court of equity to have voluntarily abandoned her claim under these policies against the defendants, he should not only have disclosed to her all the facts bearing on the case known to him, but it should be shown to the court that she knew the transaction to be impeachable; that is, that she knew she had a legal right to refuse to accept the new policies and to claim indemnity under those in controversy. Voltz v. Voltz, 75 Ala. 567. The inference is fair that Smith was aware of the fact that Mrs. Raden had a valid claim against the defendant companies, and it is clear that she was ignorant of this legal right. This misapprehension he should have rectified, and his failure to do so is a suflicient ground for equitable relief. 2 Pom. Eq. Jur. § 847.

It is not shown, moreover, that Mrs. Raden knew, at the time of her alleged ratification, that Smith had procured the new policies upon the representation that no other insurance existed on the property, based, no doubt, on the idea that the policies in the defendant companies had been canceled, which, as we have seen, was not true. Whether this would or would not vitiate the new policies in the Mobile and St. Paul companies we do not decide. We say only that the fact in question was one material in its bearings, and that a ratification made in ignorance of it can not be held to be binding.