Held, That it was a New York contract, and the rights of the parties were to be determined by the laws of New York. A statute of New York prescribing the terms of forfeiture for nonpayment of premium governed. Rules laid down for substitution of plaintiff in case of death, and computation of interest. Equitable Life Assur. Society of U. S. vs. Trimble, 322.

2. OF REVIVED INDUSTRIAL POLICY.

An industrial policy in a New York company insured the life of C., a resident of Rhode Island, payable to one of certain persons whose relationship was described. The policy was taken out by an aunt (the plaintiff), living in Rhode Island, whose name nowhere appeared in connection with the contract. The policy having lapsed, a revival application was sent from Massachusetts, where she had moved, by the aunt, and the policy was stamped, revived, and returned to Massachusetts. The insured continued to reside in Rhode Island.

Held, That both the original and revived policy was a Rhode Island and not a Massachusetts contract.

Held, That the place of performance will be deemed the place of contract unless otherwise intended.

Held, That evidence to show that the revival was defeated by misrepresentation was admissible under the laws of Rhode Island, though no copy of application was attached to the policy. Bottomley vs. Metropolitan Life Ins. Co., 557.

LIFE COMPANY. See BENEVOLENT SOCIETY 9.

LIMITATION. See ADJUSTMENT; MORTGAGEE 2; PROOFS Of Death 2.

LLOYDS. See ARBITRATION 1.

LODGES. See BENEVOLENT SOCIETY 2.

MACHINERY. See ACCIDENT 17.

MEASURE OF DAMAGES.

1. ARBITRATION-THREE-QUARTER CLAUSE.

When insurer, in its answer, admits some liability and an arbitration as to value; this is a waiver of proofs of loss.

The statute required that companies should be liable for "the full estimated value of the property insured, as the value thereof is fixed in the face of the policy," provided that such value may be diminished to the extent of any depreciation between the dates of the policy and the loss. Held, That the insurer is liable for the full amount for which the premium was calculated within the policy, subject only to such deterioration, although the policy may contain a three-quarter value clause.

Held, That such liability is not affected by an arbitration. Caledonian Ins. Co. vs. Cooke, 318.

2. EVIDENCE OF VALUE.

If insured property is so damaged by fire as to render it useless for the purposes for which it has been used, it is a destruction in law.

In an action on an insurance contract, if the jury cannot find from the evi. dence the market value of certain property destroyed, they cannot find for plaintiff as to such property.

Where, in an action on an insurance contract, the court let in proof of the loss of property not included in the contract, an instruction that plaintiff could not recover anything for the loss thereof was proper. Manchester Fire Assur. Co. vs. Feibelman, 855, 856.

MEDICAL EXAMINER. See APPLICATION 5, 7; ASSIGNMENT 2; PAYMENT.

The plaintiff, a mortgagee, whose debt exceeded the loss, sued on an insur-
ance policy between the defendant (the insurer) and the mortgagor, which
provided, "Loss, if any, payable to Peck as his interest may appear."
Held, That the suit was properly brought by the plaintiff alone.

A deed, absolute in form, to secure a debt, is in effect a mortgage, and does
not pass the title to the land.

*

*

*

A mortgage of the property by the insured does not violate the following pro-
hibition: "This policy
shall be void
if any change,
other than by the death of the insured, takes place in the interest or title
of the subject of the insurance, whether by legal process, judg
ment, voluntary act of the insured, or otherwise." The term "change"
means a transfer of interest or title, not an incumbrance simply. Peck vs.
Girard Fire & Marine Ins. Co., 265.

2. WHEN CONDITIONAL.

A mortgage given which was by agreement not to be binding unless and until
certain moneys had been furnished is not a violation of a policy provision
against mortgage, unless effectuated by compliance with agreement.
Weigan vs. Council Bluffs Ins. Co., 260.

3. WHEN IT WILL AVOID-VACANT IN CASE OF.

Failure to notify the company of the existence of a mortgage is a fatal breach
of the condition that if the property is incumbered it must be expressed
in writing in the policy or it will be void.

A policy provision that it should be void and inoperative during vacancy,
renders the policy void during such vacancy.

Under such circumstances the subsequent attachment of a mortgage clause
providing that the interest of the mortgagee will not be invalidated by
acts or neglect of the mortgagor, will not validate a policy already void,
where no new consideration passed. Baldwin vs. Insurance Cos., 794.
See INCUMBRANCE; PARTNER; REPRESENTATION; TITLE 3, 4, 7; Vacant 2.

MORTGAGEE.

1. ACTS OF MORTGAGOR-CHANGE OF TITLE.

Where a policy of insurance is issued to a mortgagor, and at the same time a
mortgage clause is attached, by which it is stipulated that the loss, if
any, shall be payable tola mortgagee therein named, or its assigns, and
that the insurance as to the mortgagee shall not be invalidated by any
act or neglect of the owner, and that the provisions of the mortgage
clause shall take precedence over the provisions of the policy, held: (1)
That the mortgage clause will be liberally construed, and that a breach
of the terms of the original policy which have especial relation to the risk
as between the mortgagor and the insurer will not invalidate the policy
in a suit brought by the mortgagee, unless the provision violated is con-
sistent with the mortgage clause; (2) that the commencement of a suit
to foreclose the mortgage, and the appointment of a receiver to take
charge of the property, are not such a breach as will avoid a policy con-
taining a clause providing that the policy shall be avoided upon the com-
mencement of proceedings of foreclosure, or any change in title or pos-
session, whether by legal process or judicial decree, such a clause being
inapplicable to the risks as between the insurer and the mortgagee
whose interest in the insured property is not impaired or diminished by
such proceedings. Lancashire Ins. Co. vs. Boardman, 470, 471.

3008 VOL. XXVII.-68.]

The loss was payable to mortgagee as interest might appear, and she was party to the suit to recover under a compromise agreement to pay. It appeared that the mortgage had been paid.

Held, That the liability of the company was not affected by the fact that she was not a party to the arbitration of the loss, under which the company agreed to settle.

Held, That the promise to pay sued on was not barred by the statute of limitations, because in a supplemental complaint the mortgagee stated that her mortgage had been paid in order that the decree might be for the real party in interest. Stockton Combined Harvester and Agricultural Works et al. vs. American Fire Ins. Co., 1001.

3. CLAUSE CONSTRUED.

Where the loss is payable to a mortgagee under a special mortgage clause or agreement, that as to the interest of the mortgagee only the insurance shall not be invalidated by any act or neglect of the mortgagor, an admission of liability to the mortgagee does not constitute a waiver of any of the conditions of the policy so far as the mortgagor is concerned. Burnham vs. Royal Ins. Co., 928.

The fact that the insured was allowed to and did use in his business the name of another merely to strengthen his credit, did not constitute him other than the sole owner of the insured stock of merchandise.

The fact that the holder of a mortgage on insured personal property was advised by the agent of the insurance company to allow the policy to stand without a provision making the loss payable to the lienholder, for the reason that the company did not carry insurance on mortgaged personal property, and would cancel the policy if the lien should be reported to it, and that the mortgagee followed this advice, does not constitute such collusion as will prevent a recovery by the mortgagee, the amount of the mortgage not being such as to materially increase the risk, and no apparent wrong being intended by the agent. Insurance Cos. vs. McKernan et al., 870.

See LESSEE; OTHER INSURANCE 2; TITLE 9.

MOSQUITO. See ACCIDENT 2.

MURDER. See ACCIDENT 7, 11, 18.

MUTUAL COMPANY. See INSURABLE INTEREST 3.

NEGLIGENCE. See ACCIDENT 9.

NONFORFEITURE.

MASS. LAW CONSTRUED-SURRENDER VALUE-WIFE'S POLICY.

The Massachusetts nonforfeiture law provides that, when after two annual payments of premium, the insurable interest has terminated, the net value of a policy shall be a surrender value payable in cash; also, that the insurable interest shall be construed to have terminated when he has no dependent child; and his wife, if any, and any living beneficiary, shall join in an application for surrender.

Held, That the law was a further application of the theory of the nonforfeiture law of 1861; that the insured was the equitable owner of some part of the premiums paid, and under certain conditions entitled to a surrender

value.

Held, That in case of a life policy payable to his executors for the benefit of his wife and surviving children, and all the children are of age, and the wife and children join in the application, the insured is entitled to re

cover the cash value, though he may leave other children surviving, and though he is not made the beneficiary, when he is the holder of the policy. Under this law the holder of the policy is entitled to recover. Massachusetts Mut. Life Ins. Co., 242.

NOTICE.

IMMEDIATE-WAIVER BY ADJUSTER.

Hazen vs.

The policy required insured to give the company immediate notice in case of loss. The fire occurred December 18th, and the company was not notified until January 5th. Held, not immediate notice.

An insurance company has the right to send its adjuster to the scene of the loss without running the risk of having its action attributed to an intention to waive breaches of the conditions in the policy. Burnham vs. Royal Ins. Co., 928.

See ACCIDENT 12, 13, 14, 15; ASSESSMENT 2; PROOFS OF Loss.

NOTICE OF DEATH.

WAIVER OF.

A condition requiring the giving of notice to the insurance company within a specific time will be deemed to be waived where notice of the injury or death is subsequently given together with proofs of loss, and the company retains the same without objection, and subsequently calls for and receives additional information and proof respecting the injury and death of the insured. Standard Life & Accident Ins. Co. vs. Davis, 898.

OCCUPATION. See ACCIDENT 9, 16, 20, 24.

OTHER INSURANCE.

1. ALLEGATION of.

An answer alleging other insurance, and in another court, asking to prorate such other insurance if found, does not allege that there is other insurance with which the loss must be prorated. O'Leary vs. German-American Ins. Co. of N. Y., 510.

2.

ARBITRATION AS A WAIVER-KNOWLEDGE OF AGENT-RIGHTS OF MORTGAGEE. An agreement for arbitration which provided that the submission should be without reference to any other matter of difference than the damage and should only be binding as to that, along with a policy stipulation that such arbitration should be held to waive any policy condition, was not a waiver of a provision avoiding the policy in case of other insurance. The policy was procured by mortgagees in the name of the mortgagor, loss payable to mortgagees, and the mortgagor afterwards paid to them the premium. Afterwards the mortgagor took out other insurance for his own benefit. The policy provided that it should be void in case of other insurance by the insured. The agent who issued the policy did so under an agreement with the mortgagees from whom he had procured the loan for the owner, and with the latter, the mortgage also stipulating for such insurance.

Held, That the mortgagees were not the insured within the policy. Held, That where the agent signed the application in the name of the owner, he was the agent of the owner under the circumstances, and his knowl. edge must be imputed to the owner.

Held, That in such case the policy was defeated by the act of the owner in procuring other insurance though he was at the time ignorant of its existence. Holbrook et al. vs. Baloise Fire Ins. Co., 639.

3. CONSENT OF AGENT.

Where the policy provides that it should be void if there is or shall be any other prior, concurrent or subsequent contract of insurance, whether valid

or void, on property covered in whole or in part by the policy, unless otherwise provided by agreement indorsed on said policy, such provision is valid, and other insurance without notice avoids the policy.

The policy also contained the following: "The company shall not be barred by any act or statement made to or by any agent unless inserted in this contract." Held, A valid limitation on the power of the agent who issued the policy, of which the insured was bound to take notice, and that the consent of such agent to other insurance was not binding on the company. The rule is otherwise where the insured has no notice of any limitation upon the authority of the agent. Wolf, Administrator, vs. Dwelling-House Ins. Co., 932.

4. EFFECT OF- -WAIVER OF.

Where an insurance policy provides that it shall be void if the insured, without the consent of the insurer, takes out additional insurance, the violation of the contract by the insured in that respect does not render the first policy absolutely void, but voidable only at the option of the insurer, since that provision is placed in the policy for the benefit of the insurer, and is one which it may waive.

Notice to an agent of an insurer that the insured has taken out additional insurance on the insured property is notice to such agent's principal. If an insurer has notice, before a loss occurs, that the insured has, contrary to the terms of his policy, taken out additional insurance, makes no objection thereto, and does not cancel its policy on account thereof, these facts constitute evidence which tends to show that the first insurer waived the forfeiture of the policy by reason of the insured's violation thereof, and elected to keep such policy in force. Slobodisky vs. Phonix Fire Ins. 53.

Co.,

5. KNOWLEDGE OF AGENT-CONTRIBUTION. Knowledge of other insurance by agent authorized to solicit insurance and receive premiums and write policies at the time of delivering policy is a waiver although the policy prohibits waiver by the agent except by a written indorsement.

Proof of such knowledge when the policy was written is proof of it at the time of delivery. Information which if pursued would have led to knowledge of other insurance is sufficient to establish a waiver.

Where the answer admits the issue of a policy countersigned by the party delivering it and collecting the premium and certifying that he was the agent, an instruction that no one can be presumed to be an agent without evidence is irrelevant.

Where the policy provides that it shall only be liable to a pro-rata amount in case of other insurance whether valid or not, its liability is restricted to such amount in case of other voidable insurance.

An erroneous charge of the amount of recovery is cured by a remittitur which reduces the amount to the greatest sum which could be legitimately given under the verdict, cures the error. Gandy vs. Orient Ins. Co., 575.

6. RECEIPT OF PREMIUM-A WAIVER OF.

The policy stipulated that it should be void in case of other insurance; also that it should not take effect until the actual payment of premium. It further recited that it was in consideration of the payment of the premium stated. Subsequent to its issue, but before the actual payment of premium other insurance was procured. This fact was known to the agent when he afterwards received the premium.

Held, That the receipt of the premium with knowledge by the agent was a waiver of forfeiture because of other insurance. Schrader vs. Springfield Fire and Marine Ins. Co., 150.

7. WAIVER BY AGENT.

Where the policy provided that it shall be void in case of other insurancewithout consent indorsed, the delivery of the policy without such indorse, ment by an agent authorized to issue and indorse policies, who knew that