INSURANCE:

In an action on a fire policy, stipulating that it shall be void if insured conceals any material fact concerning the insurance or the subjectmatter thereof, evidence held not to show any concealment in view of the fact that no inquiry was made by insurer about the matters alleged to have been concealed; "'concealment" being an intentional withholding of any fact material to the risk, which the insured in good faith ought to communicate. A concealment within a fire policy stipulating that it shall be void if insured conceals any material fact concerning the insurance of the subject-matter thereof, involves not only the materiality of the fact withheld and which he ought to have communicated, but also the design of the insured in withholding it; and the facts alleged to have been concealed must be material; and insured must have intentionally and fraudulently concealed them. Where the materiality of facts withheld by insured in a fire insurance policy stipulating that it shall be void if insured conceals any material fact is not fixed by any writing, the materiality, together with the fraudulent intent of insured, must be determined by the jury from the circumstances.

Where insured in a fire policy stipulating that it shall be void for fraud by insured touching any matter relating to the insurance or the subject thereof, took out the insurance with a fraudulent purpose and speculative design of reaping pecuniary profit in the event of a loss, held, under the evidence, for the jury.

An insurer in a fire policy stipulating that it shall be void if interest of insured be other than conditional and sole ownership, seeking to defeat the policy for defects in title of insured, must allege and prove the same, and where insurer proved that a tax certificate was transferred to insured subsequent to the issuance of the policy, but failed to prove that insured was not the holder of the certificate when the policy was issued, it failed to prove that the tax certificate was outstanding against insured at the time the insurance was effected.

A purchaser in possession under a contract of purchase is the unconditional and sole owner within a fire policy though the purchase

INSURANCE - Continued.

money has not been paid in full; the purchaser not being in default. A fire policy stipulating that it shall be void if the interest of the insured be other than unconditional and sole ownership, is not rendered void merely because of the issuance of a tax certificate creating, at most, a lien for taxes in existence in substance before the tax sale. Page 69a, No. 1431.

A stipulation in a fire policy that it shall be void if the interest of the insured be other than unconditional and sole ownership does not distinguish between a legal and an. equitable estate in fee, but the latter is sufficient.

In an action on a fire policy issued and taking effect without any application therefor, an application for insurance made by insured to another insurer several days after the issuance of the policy sued on is inadmissible.

In case of doubtful meaning, a policy must be construed in favor of insured.

Forfeitures of policies are not favored, and a court will not declare a forfeiture by application.

in

A fire policy stipulating that insured shall within sixty days after fire render a statement, and that no action shall be brought on the policy until compliance with its requirements, and providing separate clauses for forfeitures in enumerated instances, is not invalidated by insured's failure to make the statement within sixty days after a loss, but his failure merely postpones the time of payment, and does not defeat a recovery in an action commenced sixty days after the statement was furnished, and within twelve months after the loss. Page 69a, No. 1431.

Loss having been suffered under a hail policy, two separate adjustment papers were made out; one, signed by the adjuster and left with the insured, adjusted the loss to the several fields of grain at a per cent. of total loss on each field; the other, signed by the assured and the adjuster, as to which assured claimed his signature had been secured by fraud, adjusted the total loss in a lump sum. Held that, in the absence of fraud on the part of the adjuster, the two papers executed at the same time should be construed together, and when so construed, it being apparent that the

INSURANCE

Continued. naming of the lump sum was at best a mistake, the amount of the loss as itemized, field by field, in the other should control. Page 43a, No. 1414.

A stipulation in a fire policy for ap praisal of a loss when required, as a condition precedent to an action on the policy, is valid, and when required is a condition precedent to an action for loss.

Though contracts of insurance are liberally construed in favor of the insured, he must comply with the plain provisions of the policy. A fire policy, stipulating that insured

shall have sixty days from the date of a fire to deliver proof of loss, and that the loss shall not become payable until sixty days after delivery of proof of loss, including an award by appraisers, where an appraisal is required, gives to insurer the right, at any time within sixty days after the delivery of proof of loss, to demand an appraisal. Page 120a, No. 1461.

Assent to the retention and deposit in bank by a purchaser of property of an employer of part of the price to await the outcome of an appeal by the employer from a judgment for damages for the death of an employee, in which a sufficient appeal bond had been filed, did not violate a policy of employer's liability insurance, which provided that "the assured shall at all times render to the company all co-operation and assistance in his power," in that it made the claim less easy to settle by inspiring confidence in the claimant of ultimate collection of the claim.

con

An offer by an indemnity company to pay an employer a pro rata share of an amount paid by the employer to discharge a judgment for an injury to a servant, with a refusal by the employer to accept anything less than the full obligation of the indemnity company, does not stitute an agreement to release the company from liability to the limit specified in its policy, and to permit the prorating of the amount paid. Where a contract of indemnity insurance provided that the insured should not settle any claim without the consent of the insurer, contemplated only settlement of claims before trial, which did not reduce the amount of judgment below the sum which the insurer was obligated

to pay.

INSURANCE Continued.

A contract of indemnity insurance is to be construed the same as other insurance contracts, i. e., most favorable to the insured. Page 164a, No. 1488.

Provisions in the charter of a foreign life insurance company making a person who insures therein a member of the company, and fixing his interest at the amount of his insurance, give no right of recovery for death by legal execution for crime, where, under the laws of the place of contract, the policy does not cover a death so caused. Page 000a, No. 1487.

The holder of a valid policy of insurance upon his own life may make a valid assignment of the policy to a person having no insurable interest in the life of the insured, in consideration of a sum of money and an undertaking to pay the premiums due and to become due, and the as signee takes the entire interest in the policy, as against the personal representatives of the insured. A clause in a policy of life insurance that any claim against the company arising under any assignment of the policy shall be subject to proof of interest does not diminish the rights of an assignee with no insurable interest, as against the personal representatives of the insured, if there is no rule of law to that effect, and the company sees fit to pay. Page 162a, No. 1486. Death by a legal execution for crime is not covered by a policy of life insurance, though the policy contains no provision excepting such manner of death from the risks covered by it. Page 000a, No. 1487.

A policy of life insurance, though executed at the company's office in Wisconsin, is a Virginia contract, where the application was made by a resident of the latter State at a place in that State, and the policy was delivered to him there, when he gave his note for the premium, which was payable at that place, and subsequently paid there, the policy providing that it should not take effect until the first premium should be actually paid. Page 163a, No. 1487.

Rev. St. (Mo.) which provides that any action against any insurance company to recover the amount of any loss under a policy of fire, life,

66

marine or other insurance," the court may allow damages and attorney fees where it appears that such company has vexatiously refused to settle, is highly penal, and should not be held to apply to any company or class of insurance which is not plainly included therein. In construing Rev. St. (Mo.) the fact that indemnity insurance was not in existence at the time of enactment may be considered in determining whether or not the general words inIclude that class of insurance. The fact that the statute was amended in 1911 to include indemnity insurance is strong evidence that such insurance was not included in the

original statute. Page 164a, No.

1488.

Where a loss by fire is occasioned to insured property by a wrongdoer and the loss exceeds the amount of the insurance, the insured owner is the only proper party to recover damages from the wrongdoer. In such case, if the insured brings an action for the recovery of the loss from the wrongdoer and the insurer is informed of the pendency of the action, that the insured does not wish to represent the interests of the insurer, and that there is talk of a settlement between the insured and the wrongdoer, it is the duty of the insurer to intervene in the action, and protect his own interests.

Where in such case the insured accepts, on settlement, damages from the wrongdoer which added to the amount of the insurance, is less than the amount of his loss and expenses of litigation, the insurer, having made no effort to intervene, and protect his own rights, can recover nothing from the insured Page 66a, No. 1429.

A mortgagee of real estate has an insurable interest therein, and when he insures the property at his own expense and solely for his own benefit, the insurer, if obliged to pay a loss occasioned by injury to the property, may be subrogated pro tanto to the rights of the mortgagee under the mortgage. Page 68a, No. 1430.

The insurer was not estopped from insisting on an appraisal; for, to create an estoppel by conduct," the party sought to be estopped must have caused the other party to occupy a more disadvantageous position than that which he would have occupied, except for such conduct. Page 120a, No. 1461.

A condition in a policy of life insurance that it shall be void if premiums are not paid when due means only that it shall be voidable at the option of the company, and a breach of the condition may be waived. Page 162a, No. 1486. INTEREST:

On specific performance of a contract to convey, the purchaser should not be required to pay interest from the date of a refused tender of payment. Page 119a, No. 1460.

LIMITATION OF ACTIONS: Where a conditional promise is relied on to avoid a plea of limitations, performance of the condition must be shown, whether the promise is made before or after the statute has run.

A promise by a debtor to pay a debt when her father's estate is settled, if constituting an acknowledgment of the debt to avoid the defense of limitations, is conditional on settlement of the estate, and mere proof that the debtor has received from her father's estate a sum sufficient to pay the debt, in the absence of evidence of the amount of the bequest to her, is not proof of the performance of the condition, and the defense of limitations is not avoided; the word "settlement" involving a finality, and to "settle" a debt meaning to discharge it. Page 129a, No. 1466.

MISTAKE OF FACT:

One who pays money under a mistake of fact to one who is not entitled

The rule that one who pays money under a mistake of fact to one not entitled thereto may recover it back is subject to the limitations that the mistake must arise in the transaction between the parties to the action, and there can be no recovery where by reason of the payment, the party receiving it has so changed his position, to his prejudice, that it would be unjust to require him to pay.

Where one under a mistake of fact pays money to another who does not share in the mistake, and who receives the money in good faith in the regular course of business and for a valuable consideration, he cannot recover back the money. A third person purchased bonds from

defendant, a stockbroker, and directed that they should be sent to plaintiff, also a stockbroker, who would pay for them. Plaintiff delivered a check to defendant in payment, relying on the third person's fraudulent misrepresentations. The third person was employed by plaintiff as a "customer's man at a regular salary, but the third person was also engaged on his own account in the sale of bonds and unlisted securities, and in such transactions he sometimes "cleared" through plaintiff. Held that, after the payment of the check, plaintiff could not recover from defendant the money paid; the defendant not being chargeable with the fraud of the third person.

Where a stockbroker purchased bonds from another stockbroker through a third person fraudulently misrepresenting the facts to the former broker, who delivered to the latter broker a check for the price, and check was paid in the usual course of business without fraud or collusion, the former broker could not recover from the latter broker the amount of the check. Page 76a, No. 1436.

MORTGAGES:

A mortgage recited that it was on condition that plaintiff, who was indebted to the mortgagees in a certain sum, evidenced by a note of even date, "due after date with interest," should pay such moneys "at the times and in the manner aforesaid, and the above conveyance shall be null and void." Held, that the

MORTGAGES - Continued.

mortgage, in not naming any date for maturity of the debt, was so contrary to the ordinary course of business as to put an assignee thereof upon inquiry, which would have shown that the note was past due, so that he was not an innocent transferee for value.

If the assignee of a mortgage has notice that the second note was past due when he purchased the mortgage, he took it subject to any defenses available against the payee by the original maker. Page 146a, No. 1474.

MORTGAGES INSURANCE:

Where insurance has been taken by the mortgagee of real estate at the expense and for the benefit of the mortgagor, as well as for his own protection, the mortgagor in case of loss is entitled to have the avails of the policy applied for his benefit toward the discharge of the indebtedness. Page 68a, No. 1430. MORTGAGES INSURANCE - SUB

ROGATION:

Where an insurance clause in a mortgage gave the mortgagee the option to take out insurance at the expense of the mortgagor, but did not compel him to do so, the mortgagee was at liberty to insure at his own expense and solely for his own benefit; and, in the absence of proof that the insurance effected was for the joint benefit of the mortgagor and mortgagee, or at the mortgagor's expense, except the fact that the insurance, in amount, was in excess of the amount due on the mortgage, it could not be held that the mortgagor was entitled to have the amount of the loss credited on the mortgage; and hence the insurer, having paid such loss, was entitled to be subrogated to the rights of the mortgagee. Page 68a, No. 1430.

MONEY PAID:

One who voluntarily pays the debt of another, or expends money on another's account without his consent, cannot recover, for no man can of his own volition make another his debtor. Page 152a, No. 1479.

NAMES:

Pub. Laws (Mich.) 1907, prohibiting the transaction of business under an assumed name, or any other than the real name of the individual conducting the same, unless such per

son shall file with the county clerk a certificate, setting forth the name under which the business is to be conducted, and the name of each of the owners, with their residences, and making a violation a misdemeanor, is a proper exercise of the police power to protect the public from imposition and fraud. Pub. Laws (Mich.) 1907, prohibiting business under assumed name, unless a certificate is filed of the real name, residence, and address of each of its owners, and declaring a violation a misdemeanor, renders contracts made in violation of it unenforceable at the instance of the offending party only, but not as to parties who have dealt with the offenders in ignorance of their violation of the statute. Page 171a, No.

1493.

NEGLIGENCE:

In an action founded simply upon negligence, whether the injury was the natural and probable result of the negligence complained of is ordinarily a question of fact for the jury. Page 81a, No. 1439. Where the danger to be anticipated is great, ordinary care may call for the highest vigilance and attempt to guard against it.

In an action for injuries to a street car passenger, required to alight from a car to board another car, evidence held to justify a finding of actionable negligence.

Whether the street car passenger was guilty of contributory negligence held, under the evidence, for the jury. Page 152a, No. 1479. PARENT AND CHILD: Plaintiff sold a piano to defendant's infant son, who did not state that he bought as agent, but merely stated that he had to consult his folks before buying. A receipt for part payment was issued to the infant in his own name, and plaintiff took the infant's own note for the balance, and brought suit thereon, which he discontinued when learning of the infancy. Defendant had paid for necessary articles for use on his farm bought by the infant son. Held, not to show that the son acted as the agent of defendant in making the purchase, or that plaintiff was justified in assuming that he so acted, precluding a recovery from him for the balance due. Page 73a, No. 1434.

PAYMENT DURESS: Plaintiff having an option to purchase a lot of hogs from defendant, within a specified time, within the period of option resold a portion of them, but was then informed by defendant that he could not have the lot without paying a sum in excess of the contract price, and to obtain possession, in order to fulfil his contract with his vendee, plaintiff paid the sum demanded. Held, in an action by plaintiff to recover the excess, a question for the jury whether the conduct of defendant placed a restraint on plaintiff so as to destroy his free moral agency and whether plaintiff had_ratified payment of the excess. Payment under constraint that takes away free agency, amounts to duress, irrespective of any manifestations or apprehension of force. A contract made under duress is not void, but voidable and may be rendered valid by ratification. Page 155a, No. 1482.