Opinion of the Court, per BRADLEY, J.

of the property after they were advised of the fact of its deterioration, and whether they were chargeable with negligence in that respect were questions properly submitted to the jury; and there was no error in the modification as made of the request to charge in that respect. The proposition which the defendant asserts in support of his claim is upon the assumption that the plaintiffs had the actual and exclusive possession of the property, and, therefore, assumed and were charged with the duty of exercising care to ascertain its condition and for its protection and preservation from injury from natural inherent causes arising from the situation in which it was in the warehouse where the defendant had so placed it. But the case as presented by the evidence was not necessarily that so assumed by the defense as has been already observed. While the plaintiffs had the right as against the defendant to have the property remain there, the opportunity of the latter to inspect the property and exhibit it for sale at his pleasure was not abridged. And it seems he took occasion to give the skins frequent attention. His interest was such as to naturally and reasonably actuate him to do so. And when occasion required the removal of the property from that warehouse it was taken by him to the plaintiffs' premises where it continued to have his care and supervision no less than before. It cannot as matter of law properly be said that although the defendant who frequently saw them, did not, the plaintiffs ought to have apprehended and by investigation discovered the degenerating process going on at the bottom and in the interior of the mass of skins before it was ascertained by the defendant. In view of the relation actually and practically assumed by the parties to the property and of its place of storage and situation, the court properly refused to direct the verdict as requested, and in submitting questions of fact to the jury charged as favorably to the defendant as he was fairly entitled. None of the exceptions seem to have been well taken.

The judgment should be affirmed.

All concur, except VANN, J., not voting.
Judgment affirmed.

Statement of case.

HERMAN BERRY, Respondent, v. AMERICAN CENTRAL INSUR-
ANCE COMPANY of St. Louis, Appellant.

A tenant who has agreed verbally with his landlord to keep the demised
premises insured has an insurable interest in the property, and may
insure in his own name to the extent of the amount agreed to be insured,
and when no amount is named, his interest is the full value.
Defendant issued to plaintiff a policy of insurance upon a buikling; the
legal title thereto was in plaintiff's son. Plaintiff was in possession
under a verbal agreement, whereby he was to occupy the premises
during his life, and in consideration thereof to keep the building insured,
in repair, and to pay the taxes. Held, that while the agreement might
be, as between plaintiff and his son, void because not in writing, yet
plaintiff, while in the unquestioned possession of the property, could
not deny his liability, and so was bound to keep the building insured,
and, therefore, had an insurable interest.

The policy provided that it would be void if, without notice to the com
pany and permission therefor indorsed on the policy, the interest of the
insured was other than absolute ownership. The policy also provided
that "no agent has any power to waive any condition of the policy;"
and that no notice to, or consent of, any agent of the company shall
bind the company until the notice or consent is clearly expressed and
indorsed on the policy, signed by the agent. Plaintiff informed defend.
ant's general agents, who issued the policy, that his son had bought the
property for him; that he was to have it as a home as long as he lived,
and was to insure it. Held, that this statement fairly gave notice that
plaintiff was not the owner, and that, as part of the consideration for its
use and possession, he had agreed to insure it; that this justified a find-
ing that the condition as to title was waived; that the agents, having
authority to make contracts without reference to the home office, their
power to waive conditions in the policy were co-existent with that of
defendant.

The amount of the insurance was $1,100. A loss having occurred, plaintiff, upon the representations of the defendant's adjuster that the policy was void by reason of the breach of the condition as to title, agreed to accept $400 in settlement of his claim. He received a draft for that sum upon defendant, drawn by its general agent, payable to his order, and executed a paper canceling the policy, which he delivered to the agent; thereafter he offered to return the draft and demanded full payment of the loss, which was refused. In an action to set aside the compromise and cancellation, and to recover upon the policy, the court found that the settlement was procured by the statement so made by the adjuster, and that plaintiff was entitled to the relief sought. Held, no error; SICKELS-VOL. LXXXVII.

7

Statement of case.

that there was not simply a mistake, but a surrender of legal rights intentionally induced by false representation as to the law; that this constituted fraud.

Plaintiff offered in his complaint to deliver up the draft, defendant claiming that as no proper or sufficient tender of the draft had been made before suit brought, the court had no power to grant relief. Held, untenable; that the offer in the complaint was sufficient.

(Argued January 27, 1892; decided March 8, 1892.)

APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made February 11, 1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

This action was brought to set aside a compromise settlement and a cancellation of a policy of insurance against fire and a release thereof, and to recover upon the policy.

The policy insured the plaintiff to the amount of $875 on buildings and $225 on personal property. Defendant was to make good all loss or damage, etc., not exceeding the abovenamed amounts, "nor the interest of the assured in the property," etc. The policy provided that it should be void if "without notice to this company and permission therefor in writing indorsed thereon the interest of the assured be other than the entire, unconditional and sole ownership, or if the property insured be a building standing on ground not owned by the assured in fee simple."

It further provided that "no agent has any power to waive any condition of this policy. No notice to, and no consent of, or agreement by any agent of this company shall be binding on this company until such notice, consent or agreement, as the case may be, is clearly expressed and indorsed in writing hereon and signed by such agent."

The legal title to the real property was in the plaintiff's son, and the plaintiff was in possession under a verbal agreement, whereby he was to occupy the property during his life, and in consideration thereof was to keep it insured, in repair, and pay the taxes thereon.

Statement of case.

There was a total loss by fire of the buildings within the life-time of the policy, and a loss on personal property of $128.20.

Subsequent to the service of proofs of loss plaintiff, upon the representations of defendant's adjuster that the policy was void by reason of the breach of the conditions as to title, agreed to accept $400 in settlement of his claims, and thereupon received from such adjuster a draft signed by the general agent upon the defendant for such sum, payable to his order and attached to a blank receipt, and which provided “that it would not be paid if detached from the receipt therein referred to."

Upon receiving this draft, plaintiff executed a paper cancel ing said policy and delivered it to the agent.

Thereafter, being advised that his policy was not void, he offered by letter to return the draft and demanded full payment of his loss, which being refused, he brought the present action.

Further material facts appear in the opinion.

I. N. Ames for appellant. Plaintiff had no insurable interest in the buildings. As to the real estate, it was a wager policy. (1 May on Ins. [3d ed.] §§ 74, 75; Marshall on Ins. 104, 116; Rohrback v. G. F. Ins. Co., 62 N. Y. 53; 4 R. S. 2586; Ruse v. M. B. Ins. Co., 23 N. Y. 523.) Plaintiff, when he accepted the policy, became chargeable with knowl edge of its contents, and took it subject to its terms. (Allen v. G. A. Ins. Co., 126 N. Y. 6.) Even, if for the sake of argument, the contract between the father and son had given the plaintiff an insurable interest in the buildings, still the learned trial court erred in its measure of damages as to the said buildings. (Read v. S. Ins. Co., 1 Metc. 16; Turner v. Barnes, 5 Wend. 541; Murray v. C. Ins. Co., 11 Johns. 302.) The objections and exceptions of the defendant to the evidence given upon the trial to modify, contradict or change the terms of the policy under the pleadings, and all the conversations between the parties to the policy prior to the delivery

Statement of case.

thereof, were merged in the policy. (Walton v. A. Ins. Co., 116 N. Y. 317.) There was no proper or legal tender by the plaintiff to the defendant of the $400 draft before the action was brought. (Graham v. Myer, 99 N. Y. 611; Gould v. C. C. N. Bank, 86 id. 75; Cobb v. Hatfield, 46 id. 533; Evans v. Gale, 17 N. H. 573; Thayer v. Turner, 8 Metc. 550; Kimball v. Cunningham, 4 Mass. 502.)

Hannibal Smith for respondent. The conditions in the policy as to the unconditional and sole ownership in the assured were waived by the defendant; and the policy took effect as if the conditions were not in the policy. (Van Schoick v. N. Ins. Co., 68 N. Y. 434; Miaghan v. H. Ins. Co., 24 Hun, 58; Whited v. G. Ins. Co., 13 id. 191; 76 N. Y. 415; Broadhead v. L. Ins. Co., 14 Hun, 452; 23 id. 397; Chase v. P. Ins. Co., 14 id. 456; Bennett v. N. B. Ins. Co., 81 N. Y. 273; Woodruff v. I. Ins. Co., 83 id. 133; Haigh v. C. Ins. Co., 92 id. 51; Couch v. R. G. Ins. Co., 25 Hun, 460; Short v. H. Ins. Co, 90 N. Y. 16; Bennett v. A. Ins. Co., 106 id. 243; Smith v. II. Ins. Co., 47 Hun, 30; Pitney v. G. F Ins. Co., 65 N. Y. 6; McCabe v. F. B. Ins. Co., 14 Hun, 602; Pelton v. W. Ins. Co., 77 N. Y. 605; Sprague v. H. P. Ins. Co., 69 id. 128; Ellis v. A. C. Ins. Co., 50 id. 402; C. Ins. Co. v. Spranknieble, 52 Ill. 53; N. F. Ins. Co. v. Boomer, Id. 442; Dohn v. F. J. S. Ins. Co., 5 Lans. 275; Viele v. G. Ins. Co., 96 Am. Dec. 83; Kruger v. W. F. & M. Ins. Co., 1 Am. Rep. 42; Vanderhoer v. A. Ins. Co., 46 Hun, 328; Wood on Fire Ins. § 86; Huff v. C. F. Ins. Co., 29 Conn. 10; I. F. Ins. Co. v. Dunham, 117 Penn. St. 460; Elliott v. A. M. F. Ins. Co., Id. 548.) The plaintiff being in possession of the property under a verbal agreement that he should have the use of it during his natural life on paying taxes upon the same and making improvements thereon, had an interest and title in the property, good as against the world, except the true owner; and in equity his interests would be protected, notwithstanding it was not in writing. (Wood on Ins. §§ 257, 266; Mayor v. B. Ins. Co., 41 Barb. 231; 5