Opinion of the Court, per BROWN, J.

Abb. Ct. App. Dec. 251; Lawrence v. S. M. Ins. Co., 43 Barb. 479; Redfield v. H. P. Ins. Co., 56 N. Y. 354; Waring v. I. Ins. Co., 45 id. 606; Cone v. N. Ins. Co., 60 id. 619; Cline v. Q. Ins. Co., 7 Hun, 267; 69 N. Y. 614; Creighton v. II. Ins. Co., 17 Hun, 78; Pelton v. W. Ins. Co., 13 Hun, 23; 77 N. Y. 605; Rohrback v. G. F. Ins. Co., 62 id. 47; Herkimer v. Rice, 27 id. 163; N. F. O. Co. v. C. Ins. Co., 106 id. 535; Stephenson v. L. & L. Ins. Co., 26 Q. B. U. C. 148; 5 Bennett's Ins. Cases, 94; I. Ins. Co. v. Murray, 75 Penn. St. 13; 5 Bennett's Ins. Cases, 526.) There can be no objection as to want of notice of loss in this case. (Pratt v. V. Y. C. Ins. Co., 55 N. Y. 595; Brink v. H. Ins. Co., 80 id. 108; Titus v. G. F. Ins. Co., 81 id. 410.) The fraud practiced upon the plaintiff by the defendant's agent, gave the court the right to afford the plaintiff affirmative relief from the unconscionable settlement made. (2 Pom. Eq. Juris. 8 841, 847, 849; Cook v. Nathan, 16 Barb. 342; Busch v. Busch, 12 Daly, 476; Boyd v. De La Montagnie, 73 N. Y. 498; Hunt v. Rousmanier, 8 Wheat. 174; Story's Eq. Juris.

138; M. Ins. Co. v. Bowen, 42 Mich. 10.) The defendant has its principal place of business in St. Louis. The plaintiff brought the draft into court, in fact, and by the complaint and the decree, provided that the draft should be put in the hands of the county clerk, subject to the order of the defendant. These propositions are a full compliance with the conditions necessary to be performed preliminary to bringing the suit. (Blewett v. Baker, 58 N. Y. 611; Hale v. Patton, 60 id. 233; Pequeno v. Taylor, 38 Barb. 375; Nichols v. Micheals, 23 N. Y. 264.)

BROWN, J. There was in this case no misrepresentation as to any fact which was material to the plaintiff's right to recover upon the policy. Indeed, there is no evidence but that the adjuster personally acted in entire good faith, and having no knowledge of the information received by the agents as to the title when the insurance was effected, doubtless believed that the policy was void. But any knowledge or information

Opinion of the Court, per BROWN, J.

which any of the defendant's agents received during the transaction with the plaintiff is by law imputed to it, and assuming that the plaintiff, at the time of effecting the insurance, stated correctly the facts as to the title, the statement made by the adjuster that the policy, by reason of its conditions and the fact that the plaintiff's son was the owner, were, as emanating from the defendant, fraudulent in law and deceitful.

The court found in substance that the settlement and the cancellation of the policy was procured by the statement made to the plaintiff that the policy was void, and that, relying upon such, plaintiff was led into a mistake as to his legal rights thereunder.

The evidence on the subject was that the adjuster read to the plaintiff the clause in the policy declaring that it should be void if the interest of the assured was other than that of sole and unconditional ownership, and told him that he was well acquainted with the law of insurance, and because the property belonged to his son, plaintiff had no right to insure it in his own name, and the policy was, for that reason, void, and nothing could be collected upon it.

The plaintiff was a man of little business experience, although he had education enough to understand the transaction and read the papers which he signed, and he made the settlement voluntarily, without any coercion upon him, but relied upon the representation as to the law governing his case which the defendant falsely made to him.

There is no question, of course, but that a court of equity cannot grant relief solely upon a mistake of law. But there was here more than a mistake. There was a surrender of legal rights intentionally induced and procured by a false representation as to the law governing the case. The defendant must be presumed to have known that it was liable for the whole loss and by falsely representing that under the law applicable to the case the policy was void, when in fact it was valid, it induced the plaintiff to rely upon the superior knowledge that it possessed upon the subject and to surrender to it his claim.

Opinion of the Court, per BROWN, J.

This clearly constituted fraud and there would be manifest injustice in upholding a settlement under such circumstances. We think the case falls within well settled rules of equitable jurisdiction, and that the decision of the Special Term was right. (2 Pomeroy's Eq. Jurisprudence, §§ 847, 848, 849; Willard's Eq. pp. 68, 69; Busch v. Busch, 12 Daly, 476; Wheeler v. Smith, 9 How. [U. S.] 55; Cooke v. Nathan, 16 Barb. 392; Boyd v. De La Montagnie, 73 N. Y. 498 ; Jordan v. Stevens, 51 Me. 78; M. M. L. Ins. Co. v. Bowes, 42 Mich. 19; Freeman v. Curtis, 51 Me. 140.)

The appellant does not, however, question the power of the court to grant relief in such a case, and the only point seriously urged upon us in this connection is that the plaintiff made no proper or sufficient tender of the draft to the defendant before bringing suit. The plaintiff offered in his complaint to deliver up the draft, and upon the trial produced it in court, and by the decree it was to be deposited with the clerk and delivered to the defendant or its agent.

It was unnecessary for the plaintiff to do more than he did. In fact he had received nothing from the defendant. Between parties the note of one of them is not property, but a mere promise to pay, which is avoided by rescission of the

contract.

The draft which plaintiff held was drawn upon defendant by its own agent. It was of no greater force or value than the defendant's note would have been, and in such a case a tender and surrender upon trial was all that was essential to the plaintiff's right to the relief sought. (Thurston v. Blanchard, 22 Pick. 18; Nichols v. Michael, 23 N. Y. 264; Gould v. Cayuga Bank, 86 id. 75-82.)

But in an equity action to rescind a settlement, the rule invoked by defendant has no application. If the plaintiff had failed on the trial the settlement would have stood and he would have been entitled to retain and use the draft. And it is sufficient in such an action for the plaintiff to offer in his complaint to restore what he has received, and the rights of the parties are then regulated and protected in the judgment,

Opinion of the Court, per BROWN, J.

(Allerton v. Allerton, 50 N. Y. 670; Vail v. Reynolds, 118 id. 297-307.)

We come, therefore, to the question whether a recovery upon the policy can be upheld. The first contention of the defendant is that the plaintiff had no insurable interest in the buildings.

The rule is well settled that it is not necessary to support an insurance that the assured should have an interest, legal or equitable, in the property destroyed. It is enough if he is so situated with reference to it that he would be liable to loss if it is destroyed or injured by the peril insured against.

In brief, a person may insure against his liability with reference to a certain property as well as his interest therein. (Insurance Co. v. Chase, 5 Wall. 509-513; Nat. Filtering Oil Co. v. Citizens' Ins. Co., 106 N. Y. 535-541; 3 Kent's Com. [6th. ed.] 276.)

The test of insurable interest is whether an injury to the property or its destruction by the peril insured against would involve the assured in pecuniary loss. (Wood on Fire Ins. $282.)

Thus a common carrier may insure goods intrusted to him to their full value without regard to his liability to the owner. (Crowley v. Cohen, 3 B. & Ad. 478; London & N. W. Ry. Co. v. Glyn, 1 El. & El. 652.)

So may a warehouseman, although liable to the owner only for his own negligence. (Waters v. Monarch F. & L. Ass. Co., 5 El. & Bl. 870; Stillwell v. Staples, 19 N. Y. 401; De Forest v. Fulton F. Ins. Co., 1 Hall, 84.)

So may a charterer of a vessel, who is liable to pay its value in case of loss, or has contracted to insure it against usual risks. (Oliver v. Greene, 3 Mass. 133; Bartlet v. Walter, 13 id. 267.)

Insurers of a building have an insurable interest therein which they may reinsure. (N. Y. Bowery F. Ins. Co. v. N. Y. F. Ins. Co., 17 Wend. 359.)

And a tenant, who has agreed verbally to keep the demised property insured, is liable to the lessor for a breach of that

Opinion of the Court, per BROWN, J.

agreement, and has an insurable interest in the property to the extent of the amount agreed to be insured. (Lawrence v. St. Mark's F. Ins. Co., 43 Barb. 479.)

Other illustrations of this rule are to be found in Herkimer v. Rice (27 N. Y. 163); Kline v. Q. I. Co. (7 Hun, 267; 67 N. Y. 614); Waring v. Indemnity F. Ins. Co. (45 id. 606); May on Ins. ch. 6; 1 Wood on Fire Ins. ch. 8.

The principle upon which these cases all rest is that there is a possible liability arising out of the peril insured against, and that creates an insurable interest.

Under the contract with his son, the plaintiff had agreed, among other things, to keep the property insured, and this agreement gave him a right to insure the buildings in his own name to their full value. The defendant contends that, as the contract with his son was by parol and hence void, the plain. tiff had no interest in or liability towards the insured property. This proposition might have some weight if the insurance was upon the title or interest of the plaintiff as life tenant, or if there had been representations on the part of the plaintiff that such was the interest intended to be insured. But we think it has no application to the case made by the evidence. The plaintiff, while in the unquestioned enjoyment and possession of the property, could not deny his liability under the contract with his son to insure, and under that agreement, so far as is disclosed in this action, would have been liable for the loss of the buildings, if he had failed to insure them.

The defendant, if it had notice of the relation which plaintiff bore to the property, cannot deny the legality of its contract, although it may be that the plaintiff could not have enforced against his son his right to use the property for life had that been denied. The final question is whether the defendant had such notice of the facts as to the title to the property as justified the court in finding that it had waived the conditions heretofore quoted.

The question of waiver was one of fact, and we think the evidence was sufficient to support the conclusion reached.