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company (Insurance Co. v. Wolff, 95 U. S. 326, 24 L. Ed. 387; Bennecke v. Insurance Co., 105 U. S. 355, 26 L. Ed. 990), this is true only of such facts as are peculiarly within the knowledge of the assured. If the company ought to have known of the facts, or with proper attention to its own business would have been apprised of them, it has no right to set up its ignorance as an excuse."

In the case of Jennings v. Chenango Ins. Co., 2 Denio (N. Y.) 75, in the opinion by Judge Depue, cited in the case of Northern Assurance Co. v. Grand View Building Ass'n, 183 U. S. 329, 22 Sup. Ct. 140, 46 L. Ed. 213, and of which it is said by Justice Shiras: "In the opinion by the court given by Judge Depue, there was a full examination of cases on the subject of the admissibility of parol evidence in actions on policies of insurance, and some of his observations are so weighty, and so applicable to the case before us, that we shall quote from them at length"-it is said by Judge Depue: "If strict compliance with the conditions of insurance with respect to matters to be done by the insured after the contract has been concluded has been waived, such waiver may, in general, be shown by extrinsic evidence by parol." And later, in the opinion by Justice Shiras in the case of Northern Assurance Co. v. Grand View Bldg. Ass'n, supra, after citing and quoting from numerous authorities, is the following: "What, then, are the principles sustained by the authorities, and applicable to the case in hand? They may be briefly stated thus: * * * That where waiver is relied on, the plaintiff must show that the company, with knowledge of the facts that occasioned the forfeiture, dispensed with the observance of the condition; that, where the waiver relied on is an act of an agent, it must be shown either that the agent had express authority from the company to make the waiver, or that the company subsequently, with knowledge of the facts, ratified the action of the agent."

Other authorities might be cited, but we think it unnecessary. The record discloses that the trial court held to the view that, unless the plaintiffs could show that the adjuster had express authority from the board. of directors or of the company, through some one who had the power to delegate that authority, the adjuster could not waive any of the conditions of the policy by any act of his. It is admitted by the answer of the defendant that it sent the adjuster to Anadarko for the purpose of adjusting this loss, and that he had the power to investigate and examine into all of the facts and circumstances with reference to the loss, and that he had authority to make a full and complete settlement with the plaintiffs. We may reasonably conclude, from our general knowledge as to such matters, in fact, although it is alleged in the petition that the adjuster by

his acts and conduct had waived the ironsafe clause in the policy, it is not denied by the defendant in its answer that the adjuster had the power and authority to waive such clause, but it is alleged that the plaintiffs signed a nonwaiver agreement, and delivered to the adjuster. The matter of securing invoices was clearly within the scope of the agent's authority in determining the amount of the loss, and where an agent acts within the scope of his authority, he will bind his principal; but we need not rest our conclusion in this case upon the question of the authority of the adjuster or agent, for we must presume that in the due and ordinary course of business, and within a reasonable time, the adjuster reported the facts to the defendant. In fact the answer of the defendant admits that, and the undisputed evidence is that the plaintiffs paid the premium due some days after the fire. Mr. Perry testified that he remitted the premium to the defendant on the 10th day of September, more than 30 days after the adjuster was at Anadarko, and that while he had no personal recollection as to whether at the time of making the remittance he reported to the company the particular policy upon which it should apply, it was his usual custom to do so, and it is admitted in the record that the defendant received the remittance of the premium made by Perry & Farmer, and that it has never returned the premium, or offered to do so; so that, in view of the allegations in defendant's answer and the facts and circumstances in existence, we must conclude that the defendant was fully informed as to the loss and as to the facts by reason of which it claimed a forfeiture of the right of the plaintiffs to recover at the time that it received the premium, and with full knowledge thereof retains the same. Having received and retained the benefits of the contract, and having required the plaintiffs to incur the expense of procuring the bills and invoices, and having obtained whatever benefits there were to be obtained from them, and it being for their information alone, it would manifestly be unjust to permit the defendant to now take advantage of the forfeiture.

It is contended by defendant that, by signing what is called the "nonwaiver agreement," the plaintiffs cut themselves off from relying upon the acts of the adjuster as constituting a waiver of the forfeiture. This was an instrument without consideration, and could be only received in evidence for the purpose of determining what the intentions of the parties were at the time. It is alleged in plaintiffs' reply that he signed the same upon the false and fraudulent representations of the adjuster, and when the same should be received in evidence it would be competent for the plaintiffs to show the circumstances under which it was signed, that the jury might determine what the facts were. However, the fact that the instrument was writ

ten up at the time by the adjuster, and that the defendant in its answer seeks to take advantage of the provisions thereof, if not a clear admission that the adjuster had the authority to waive the forfeiture conditioned in the policy, is a circumstance tending strongly to sustain the position of the plaintiffs that he had such authority. In the case of Thompson v. Insurance Co., 104 U. S. 260, 26 L. Ed. 765, in the opinion of the court by Mr. Justice Bradley, it is said: "It is always open for the insured to show a waiver of the condition, or a course of conduct on the part of the insurer which gave him just and reasonable ground to infer that a forfeiture would not be exacted." In the case of Hartford Life Ins. Co. v. Unsell, 144 U. S. 448, 12 Sup. Ct. 671, 36 L. Ed. 496, the question involved was whether under the circumstances, the defendant waived a strict compliance with the stipulation in the contract as to the payment at the time specified of the premiums or dues on the certificate of insurance. The trial court instructed the jury: "But the plaintiff says that, beyond these receipts of money after the day specified, there were instances in which money was received without any such notice. Now the question comes up in respect to that, was there such a continuance of business, was the whole course of business, from the commencement to the close, such that from this and that, and ́ from all the receipts and all the transactions, he had a right to believe, and did believe, that the question of health even would not be considered, and that it would be willing to take his money shortly after it had become due without inquiry as to his health? If so, that makes a waiver. If the company by its conduct led him, as a reasonable and prudent business man, to believe that he could make payments a few days after, sick or well, it cannot turn around now and say, 'You did not pay at the time.' I cannot say to you, as a matter of law, that one receipt after the time specified would make a waiver, or that fifty would. It is not in the numbers. The question is for you to consider and determine from all of them, and from the whole course of business, whether, as a prudent business man, he had a right to believe that it was immaterial whether he paid on the day or a few days later. If the course of conduct was such that he had a right to believe that he could pay only in good health, then there was no waiver applicable to the case at bar. It must have been such a course of conduct as would lead a reasonably prudent man to believe that the company was willing to take payment, sick or well." Justice Harlan, who wrote the opinion of the court, with reference to this instruction says: "The law applicable to the case was stated to the jury with substantial accuracy. It is a mistake to suppose that the charge was inconsistent with the principles announced in Thompson

v. Insurance Co., or any other case decided by this court."

The trial court erred in excluding the testimony offered, and in sustaining the demurrer to the evidence. The jury should have been permitted to say, under proper instructions, whether the defendant, after full knowledge of all the facts upon which it claims a forfeiture, had received and retained the premium, the consideration for which the policy was issued, and whether, with knowledge of the facts, the defendant had ratified the actions of its adjuster and agents.

It is argued by defendant that this case cannot be reversed except by overruling the previous decision of this court in the case of Liverpool & L. & G. Ins. Co. v. Richardson Lumber Co., supra. The question upon which this case must be reversed was not involved in that case. There a waiver of the conditions in the policy was claimed by reason of a parol contemporaneous agreement with the agent of the company, and the knowledge of such agent, at the time that the policy was issued, of facts as were in plain violation of the express stipulations and conditions in the policy. In this case the alleged acts which constitute the waiver of the stipulations and conditions in the policy occurred after the contract of insurance was fully consummated, and after the loss occurred and a liability upon the policy was claimed; and in that case it is held: "Where the waiver relied on is the act of the agent of the company, it must be shown that the agent had express authority from the company to make the waiver, or that the company subsequently, with knowledge of the facts, ratified the unauthorized action of the agent." All of which can be established by proof of such facts and circumstances as would necessarily result in that conclusion, and, under the pleadings and circumstances of this case, are questions of fact to be determined by the jury under proper instructions.

Our attention is called by defendant in error to the case of Smith et al. v. Insurance Co. (Dak.) 43 N. W. 810, and Burner's Adm'r v. German-American Ins. Co. (Ky.) 45 S. W. 108, which holds that "acceptance of the premium on a forfeited policy after loss of the property by fire does not waive the forfeiture where the premium was due and a part thereof earned before the forfeiture." The case of Smith v. Insurance Co., supra, was a case in which the violation of the conditions in the policy of insurance relied upon as a forfeiture was the giving of a chattel mortgage and the taking of an additional insurance upon the property by the insured. In the opinion it is said: "It must be borne in mind that the policy had been in force more than one year when the chattel mortgage was given, and over two years when the additional insurance was obtained. The risk had attached, the note and interest were past due.

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The whole premium was earned, although the full term fixed for the running of the policy had not elapsed. The risk had terminated through no fault of the insurer, and the defendant was legally entitled to collect and retain the premium. Had the policy in this case been voidable in its inception, and no risk had ever attached, counsel's position would have been tenable."

The judgment of the district court of Caddo county is reversed and remanded, with costs to defendant in error, and with directions to that court to grant a new trial, overruling the demurrer to the evidence, and to proceed in accordance with the views herein expressed.

BURWELL, J., who presided in the court below, not sitting; all the other Justices concurring.

(17 Okl. 117)

CRISMON, Sheriff of Pawnee County, v. BARSE LIVE STOCK COMMISSION CO. (Supreme Court of Oklahoma. Sept. 5, 1906.) 1. ANIMALS-AGISTMENT-LIEN-WAIVER.

One who has a lien on cattle for pasturing them, under the terms of sections 108, 110, c. 3. Wilson's Rev. & Ann. St. 1903 of Oklahoma, waives such lien by suing for the amount of the debt and causing the property covered by such lien to be attached in such suit, as the lien under the statute and the lien under the attachment are inconsistent, and cannot coexist in favor of the same person.

Commission Company on these same cattle to secure the payment of $8,316.66. The commission company company took the cattle from the pasture for the purpose of foreclosing its mortgage; there being a balance due thereon. Stribling, through s agent, J. M. Moody, commenced suit in the district court of Pawnee county against Palmer & Brigham, claiming that there was due him, for pasturing these cattle, the sum of $2,000, and alleging that there existed in his favor a lien under sections 108 and 110 of chapter 3 of Wilson's Rev. & Ann. St. 1903 of Oklahoma, which provides as follows:

"Sec. 108. That any person or persons employed in feeding, grazing, or herding any domestic animals, whether in pasture or otherwise, shall for the amount due for such feeding, grazing or herding, have a lien on said animals."

"Sec. 110. All liens, not to exceed in the aggregate twenty-five per cent. of the value of such animals, against any domestic animal or animals for labor, grazing, herding or feeding, or for corn, feed, forage or hay, furnished the owner of such domestic animals as herein provided, and actually used for such purpose, shall be prior to all other liens thereon, and no recital or stipulation in any mortgage or other incumbrance on any cattle so fed shall be held to supersede or vitiate the lien here provided for."

At the time of the commencement of that action an affidavit of attachment was filed

[Ed. Note.--For cases in point, see Cent. Dig. by Moody (Stribling's agent) on the ground vol. 2, Animals, § 64.]

MORTGAGES-LIEN-PRIORITIES

2. CHATTEL ATTACHMENT.

The rights of a mortgagee to the possession of personal property covered thereby are superior to those of a sheriff who claims under a writ of attachment, sued out at the instance of another creditor of the mortgagor, and levied on the property after the filing of the mortgage for record in the office of the register of deeds of the county; the attaching creditor not having paid off the mortgage or deposited the amount thereof as required by the statute. (Syllabus by the Court.)

Error from District Court, Pawnee County; before Justice Bayard T. Hainer.

Action by the Barse Live Stock Commission Company against John H. Crismon, sheriff. Judgment for plaintiff, and defendant brings error. Affirmed.

Wrightsman & Fulton and James B. Diggs, for plaintiff in error. Biddison & Eagleton, for defendant in error.

BURWELL, J. One J. C. Stribling controlled a certain pasture in the Osage Indian Reservation. Palmer & Brigham, through their representative, J. B. Middlebrook, entered into a contract with Stribling for the pasturing of a bunch of cattle. This contract was entered into on April 2, 1902. On May 17, 1902, Palmer & Brigham executed a chattel mortgage to the Barse Live Stock

that Palmer & Brigham were nonresidents. An order of attachment was issued thereon, placed in the hands of the sheriff, and the cattle in question seized thereunder. They were being held by the sheriff under this writ when the present suit was commenced by the plaintiff, Barse Live Stock Commission Company, against the sheriff, John H. Crismon, to recover possession of the cattle for the purpose of foreclosing its chattel mortgage.

The question presented for our consideration is, which lien is superior?-the lien of the Barse Live Stock Commission Company under its chattel mortgage, or the lien of the attachment under which the sheriff held the cattle. This question is easily answered. The chattel mortgage was executed and properly filed long prior to the levying of the writ of attachment. There was no contention that the mortgage was not a valid and subsisting mortgage. The plaintiff in the attachment suit never paid off the mortgage or offered to do so, nor did he make a deposit of the money to pay off the mortgage as provided by the statutes. Therefore, not having complied with the requirements of the law, the attachment must fail as against the chattel mortgage. But the plaintiff in error contends that he claims under his statutory lien for pasturing the cattle and

not under the writ of attachment.

It is true that the statute gives a lien on cattle to one who feeds or pastures them for such feed or pasture. However, conceding that Stribling had a lien for such pasturing. he waived it when he caused a writ of attachment to be issued and levied on the cattle. The lien given under the statute on domestic animals for feed or pasture is similar to a lien under a chattel mortgage. It may be foreclosed and the property sold to satisfy it. Where one by contract or statutory provisions has a special lien upon property to secure the payment of a debt, he must either enforce his lien or he may attach the property, if legal grounds exist therefor, but he cannot acquire both liens on the same property to secure the payment of the same debt. They are inconsistent, and cannot coexist in favor of the same person. The Supreme Court of Massachusetts in Evans v. Warren, 122 Mass. 323, said: "A mortgagee of personal property, by attaching the same in an action for the debt, waives his claim under the mortgage." See, also, Cobbey on Chattel Mortgages, vol. 2, § 746, and Jones on Chattel Mortgages, § 565. And again Mr. Cobbey, in the section referred to above, says: "The liens created by mortgage and by attachment on the same property are essentially different, and cannot coexist. The effect of an attachment by a mortgagee is to put the property out of his control, and into the custody of the law. Therefore, where the mortgagee attaches the property covered by the mortgage for another debt, not secured, due him from the mortgagor, he waives his right under the mortgage, and is estopped to plead his mortgage against subsequent attaching creditors. After thus putting the property into the custody of the law voluntarily it would not be equitable to allow him to set up his mortgage to defeat the custody of the law." To the same effect is the case of Dix v. Smith, 9 Okl. 124, 60 Pac. 303, 50 L. R. A. 714. This identical question was decided in the case of Legg v. Willard, 17 Pick. (Mass.) 140, 28 Am. Dec. 282. S. N. Warren and L. Eames were copartners. They made an assignment for the benefit of creditors. On the day of the assignment one Brooks and another party by the name of Curtis had in their possession about 100 pairs of shoes, the stock of which had been delivered to them by Warren & Eames under a contract that it should be made up into such shoes. Under the law Brooks and Curtis had a lien on the shoes for the labor performed in manufacturing them, but, when they heard of the assignment they sued Warren & Eames for the amount due them for making the shoes, and caused a writ of attachment to be levied thereon. The court after holding that Brooks and Curtis were entitled to a lien on the shoes for manufacturing them, further stated that, "when

Brooks and Curtis attached the shoes, they waived their lien."

Nor can it be said that the sheriff held the cattle as the agent of Stribling. He did not take the cattle by reason of such agency, but in obedience to the command of the writ of attachment. Whitaker v. Sumner, 20 Pick. (Mass.) 399. Other authorities might be cited, which support the rules announced in this opinion, but it is unnecessary, as this court in the case of Dix v. Smith, supra, adopted the rule stated, and we are satisfied with the conclusions therein reached. By attaching the cattle Stribling waived his lien for pasturing them. He had no right to attach the cattle without first paying off the chattel mortgage. As the mortgage was duly filed with the register of deeds before the levying of the attachment, the mortgagee's lien was superior to the lien of Stribling under the writ.

The judgment is therefore affirmed, at the cost of the appellant. All the Justices concur, except HAINER, J., who presided at the trial below, not sitting.

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2. SAME-NOTICE OF DISAFFIRMANCE. fendant pleaded are of such a nature as to create a reasonable belief that he has abandoned the contract involved, the vendor may rescind, and bring his action without notice to the vendee to do so, and without pleading notice of disaffirmance in his petition.

In such case, where the acts of . the de

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments, §§ 30, 71.] 3. SAME TRIAL-SUBMISSION TO JURY.

In an equitable proceeding for the cancellation of a deed, the jury sits merely in an advisory capacity to the court, and a party cannot complain of the refusal of the court to submit special interrogatories, as their submission or rejection by a court of equity lies solely within its sound discretion, and it may adopt or reject such as it deems proper, and no error can be predicated thereon, unless such discretion has been abused.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8. Cancellation of Instruments, § 106; vol. 19, Equity, §§ 788, 789.]

(Syllabus by the Court.)

Error from District Court, Comanche County; before Justice F. E. Gillette.

Action by Minnie E. Walter against W. E. Mosier and the First National Bank of Walter. Judgment for plaintiff, and defendants bring error. Affirmed.

Parmentor & Myers, for plaintiffs in error. McElhoes & Ferris, for defendant in error.

PANCOAST, J. This is an action seeking cancellation of a deed from the defendant in error to the plaintiff in error Mosier. On June 9, 1902, the defendant in error was the owner of lots 29, 30, 31, and 32, in block 76, in the town of Walter, Okl. In pursuance of an attempt to encourage building in that portion of the town, for the purpose of locating as nearly as possible at that point the center of business and increasing thereby the value of the remainder of her property, the defendant in error, Mrs. Walter, entered into a written contract with the Owl Drug Company, owned by the plaintiff in error Mosier and his wife, wherein it was agreed that the said drug company would move its stock of goods and business from the place then occupied by it to lots owned by Mrs. Walter, in consideration for which Mrs. Walter was to deed the lots to Mosier or the drug company, provided such removal was accomplished on or before July 1, 1902; otherwise, the contract to be null and void. Some time during June of that year, Mosier represented to Mrs. Walter that, in order to comply with his contract and erect a building on the Walter lots, he would have to have title to the tract in question, in order to enable him to procure a loan and with the proceeds erect a suitable building. Thereupon Mrs. Walter executed and delivered to Mosier a warranty deed to the premises. Mosier failed to procure a loan, and made no attempt to move his stock of drugs or business known as the "Owl Drug Company," as required of him, to the lots which Mrs. Walter had conveyed to him, but instead moved his business to another portion of the town, and afterwards conveyed a portion of the lots to the First National Bank of Walter, which joins in this appeal.

On September 12, 1902, Mrs. Walter commenced this action, and later, on May 12, 1903, filed an amended petition, setting up, in substance, the above facts, alleging fraud on the part of Mosier, and pleading, further, that Mosier entered into the contract referred to with no intention of complying with its provisions, but for the sole purpose of acquiring title to the land described, and that the sale to him was without consideration. To this petition Mosier demurred, upon the general ground that it did not state facts sufficient to constitute a cause of action against him in favor of the plaintiff. The demurrer was overruled, and exception saved. March 10, 1905, the First National Bank of Walter, also plaintiff in error, made application to be made a party defendant, alleging that on January 4, 1904, it purchased from Mosier and wife a portion of the lots in controversy. The bank and Mosier denied generally the allegations of plaintiff's petition, and upon the issues thus formed a trial was had to a jury, which resulted in a verdict for the plaintiff, and a decree canceling the deed to Mosier. From an order overruling motion for new trial, the bank and Mosier have appealed.

On

It is contended that the evidence did not justify the verdict and the judgment thereon. We have examined the record with much care, and are satisfied it is sufficient. There was evidence offered bearing on all matters essential to be proved, and this court will not disturb a verdict, where the jury had evidence upon which to found it, unless manifestly wrong; and that is not this case.

The overruling of the demurrer is also assigned as error, and the point is made that the petition is defective, in that it fails to allege that plaintiff has no adequate remedy at law, and also because notice of disaffirmance of the contract is not alleged therein. It is not the better practice, we think, to plead the lack of an adequate remedy at law in so many words, particularly where a petition upon its face shows that an action at law will not suffice to restore the complainant to his original position and compensate him for the injuries he has sustained. The exercise by a trial court of its equitable jurisdiction will not be deemed erroneous because the inadequacy of the legal remedy is not specifically pleaded. The jurisdiction to cancel an instrument does not depend upon the inadequacy of the complainant's legal remedy, but is a matter of sound discretion in a court of equity, to be assumed or refused according to its own ideas of what is reasonable and right. 1 Story, Eq. Jur. Nos. 206, 692; Jones v. Bolles, 9 Wall. (U. S.) 364, 19 L. Ed. 734; Pomeroy, Eq. Jur. pars. 221, 911, 914, 1377; Gefken v. Graef, 77 Ga. 340; Shaeffer v. Sleade, 7 Blackf. (Ind.) 178. Equitable jurisdiction, as a general rule, will not be exercised when the remedy at law, by way either of action or defense, is adequate and plain; but in such a case as the one at bar, where from the face of the pleading it is amply evident that an action at law will not compensate for injuries sustained, it would be a highly inequitable rule to require a plaintiff to plead a conclusion, after having pleaded the facts from which the conclusion must necessarily be drawn. In the consideration of this question, it should be remembered that the object sought by the defendant in error in entering into the agreement for the transfer was solely to encourage building in that part of the town, for the purpose of locating there the business section, and enhancing thereby the remainder of her property. The damages she sustained by reason of the default of Mosier, so far as indicated by the record before us, were not. alone the loss of the property conveyed, an action for the value of which might lie, but the decrease in value to remaining portions of her property, resulting from Mosier's failure to move his business and erect his building, and his removal to another part of the town. Anticipated increase in the value of her property, while entirely proper to be considered by Mrs. Walter, in determining her to enter into the contract she did, is in its nature speculative,

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