« AnteriorContinuar »
Wall. 119; Porter's Case, 1 Coke's Rep. 24; Attorney- , town, at a regular or special election to be held therein, General v. Bonyer, 3 Ves. 714; Ingles v. Sailors' Snug shall assent thereto." Harbor, 3 Pet. 115; Sanderson v. White, 18 Pick. 356; In Harshmun v. Bates County, 92 U. S. 569, we inciTown of Paulet v. Clarke, 9 Cr. 292; Beaty v. Kurtz, 2 dentally decided the act to be unconstitutional, but Pet. 566; Vincennes University v. Indiana, 14 How. the point then specially in controversy was as to the 26: Mills v. Farmer, 19 Ves. 487; Attorney-Generul v. applicability of this constitutional prohibition to townBishop of Chester, 1 Bro. Ch. 444; Attorney-General v. ship organizations. It was impliedly conceded upon Downing, Ambler, 550; Sennet v. Herbert, L. R., 7 Ch. | the argument that if the constitution did apply, the 237; Chamberlain v. Brockett, L. R., 8 Ch. 206; Mc-| law could not be sustained, and we accepted this conIntire Poor School v. Zanesville Canal Co., 9 Ohio, 203; cession as truly stating the law of Missouri. Now, Miller v. Chittenden, 2 Iowa, 315; S. C., 4 id. 252; however, the question is directly presented whether Well-Belwed v. Jones, 1 Sim. & S., 40.) Judgment of the provisions of the constitution and the statute are Supreme Court, District of Columbia, affirmed. Ould, not substantially the same. On the one hand, it is plaintiff in error, v. Washington Hospital for Found contended that the constitution requires the actual lings. Opinion by Swayne, J.
vote of two-thirds of the qualified voters of the townWILL.
ship in favor of the subscription, and on the other, Construction of : conversion of real property into
that the requisite assent is obtained if two-thirds of
those voting at the prescribed election shall vote to personalty.-The testator directed that all his real estate except a single lot should be sold, and di
that effect. rected that the proceeds should be divided in the man The Supreme Court of Missouri has often been called ner and proportions stated in the will; then followed a npon to construe and give effect to this statute, and devise of the excepted lot and various pecuniary be
has never in a single instance expressed a doubt as to quests, succeeded by a residuary legacy to his son,
its validity. The first case was that of State v. Linn given in the following words: “I give and bequeath
County, 44 Mo. 504, decided in 1869, the year after the unto my kind and affectionate son, Carberry S. Hil law was passed. That was an application for a manton, all the rest and residue of my estate, of which I may damus to compel the County Court to issue bonds die seized or possessed, which is not herein otherwise npon a subscription made pursuant to a vote under devised and bequeathed, such as moneys, bonds, stocks,
the law, and it was contended that the act was repugjudgments, notes, household furniture, and all per
nant to article 11, section 14, of the constitution, besonal effects of every description and not herein other cause the bonds to be issued were the bonds of the wise disposed of, for his sole use and benefit and that
county and not of the township, and the voters of the of his children.” Carberry S. Hilton was a favorite
county had not given their assent, but the court held son and was not otherwise provided for. Held, that that they were the bonds of the township and granted by the sale the realty was converted into personalty
the writ. Following this are the cases of Ranney v. and was included under the residuary bequest. A
Bæeder, 50 Mo. 600; McPike v. Pen, 51 id. 63, decided construction that will prevent partial intestacy is pre
in 1872; State v. Cunningham, id. 479; Rubey v. Shain, ferred to one which will permit it. Decree of Supreme
54 id. 207, decided in 1873; State v. Bates County, 57 Court of District of Columbia reversed. Given, exec
id. 70, decided in 1874; State v. Clarkson, 59 id. 149, utor, appellant, v. Hilton. Opinion by Strong, J.
decided in 1875; State v. Davies8 County, 64 id. 31, and
State v. Cooper County, id. 170, decided in 1876, in all MUNICIPAL SUBSCRIPTIONS IN AID OF
of which the act was in some form brought under
consideration, and in no one was there a suggestion RAILROADS.
of its unconstitutionality by either the court or counSUPREME COURT OF THE UNITED STATES --OCTO- sel. BER TERM, 1877.
It is true that the objection now made to the law
was in no case presented or considered, but this is sufCOUNTY OF CAss V. JOHNSON.
ficiently explained by the fact that in other cases a provision in the constitution of Missouri forbidding subscription by a town in aid of a railroad, "unless construction had been given to language similar to two-thirds of the qualified voters of the town at a reg
that employed in the constitutional prohibition, adular election shall assent thereto,” held, to be satisfied by an assent of two thirds of those voting at such elec verse to such a position. In State v. Winkelmeier, 35 tion, and an act of the legislature requiring only such
Mo. 103, decided in 1864, just previous to the adoption an assent to authorize subscription, held constitutional. Harshmun y, Bates County, 92 U. S. 569, reversed on this of the constitution, under a law which empowered the point.
city authorities of St. Louis to grant permission for IN error to the Circuit Court of the United States the opening of establishments for the sale of refreshI for the Western District of Missouri. Action upon ments on any day of the week, " whenever a majority railroad aid bonds. The facts appear sufficiently in of the legal voters of the city"authorized them to do so, the opinion.
it was held that there must be a majority of the voters Mr. Chief Justice WAITE delivered the opinion of participating in the election at which the vote was the court.
taken, and not merely a majority of those voting upon The first question presented for our determination that particular question. The judge who delivered in this case is, whether the “township aid act” of Mis the opinion of the court did, indeed, say, "the act exsouri is repugnant to article 11, section 14 of the con pressly requires a majority of the legal voters; that stitution of that State, inasmuch as it authorizes sub is, of all the legal voters of the city, and not merely scriptions by townships to the capital stock of railroad of all those who at a particular time choose to vote companies whenever two-thirds of the qualified voters upon the question;" but this must be read in connecof the township, voting at an election called for that tion with what follows, where it is said that “it appurpose, shall vote in favor of the subscription, while peared that more than thirteen thousand voters parthe constitution prohibits such a subscription, “ unless ticipated in that election, and that only five thousand two-thirds of the qualified voters of the * * * and thirty-five persons voted in favor of giving to the
city authority, * * * and two thousand and one per est language intimated its unwillingness to interfere sons voted against it. * * * It'is evident that the vote with its previous adjudications when property has of five thousand out of thirteen thousand is not the been acquired or money invested under them. Smith vote of a majority." Taking the opinion as a whole | v. Clark County, 54 Mo. 58; Stale v. Sutterfield, supra. it is apparent that there was no intention of deciding In St. Joseph Township v. Rogers, 16 Wall. 614, this that resort must be had elsewhere than to the records
| court gave the same construction to the phrase, “a of the election at which the vote was taken to ascer majority of the legal voters of a township," as used tain whether the requisite majority had been obtained. in an Illinois municipal aid statute, and Mr. Justice But, however this may be, in 1866 a similar question Clifford, in delivering the opinion, uses this language: was presented to the same court in the case of State “It is insisted by the plaintiff that the legislature in v. Mayor of St. Joseph, 37 Mo. 270. There it was pro
adopting the phrase, “a majority of the legal voters of vided that the mayor and council of St Joseph should
the township,' intended to require only a majority of cause all propositions “ to create a debt by borrowing
the legal voters of the township roting at an election money" to be submitted to a vote of the qualified
notified and held to ascertain whether the proposition voters of the city," and that in all such cases it should
to subscribe for the stock of the company should be require "two-thirds of such qualified voters to sanc
accepted or rejected, and the court is of the opinion tion the same.” A proposition to borrow money for
that such is the true meaning of the enactment, as the the improvement of streets was submitted to a vote
question would necessarily be ascertained by a count of the voters at an election called for that purpose,
of the ballot." Among other authorities cited in supand resulted in a majority in favor of the measure.
port of this proposition is the case of State v. Mayor The mayor declined signing the necessary bonds be
of St. Joseph, supru. This we understand to be the cause "he was in doubt whether the matter was to be
established rule as to the effect of elections in the abdetermined by two-thirds of all the votes polled at
sence of any statutory regulation to the contrary. All the special election, or by two-thirds of all the voters
qualified voters who absent themselves from an elecresident in the city, absolutely, whether voting or
tion duly called are presumed to assent to the exnot.” Thereupon a suit was instituted to settle this
pressed will of the majority of those voting unless the question and compelthe mayor, by mandamus, to issue
law providing for the election otherwise declares. Any the bonds. In giving its decision the court said: “We
other rule would be productive of the greatest inconthink it was sufficient that two-thirds of all the quali
venience, and ought uot to be adopted, unless the legfied voters who voted at the special election, author
islative will to that effect is clearly expressed. Louisized for the express purpose of determining that ques
ville R. R. Co. v. Nashville, 1 Sneed, 692; Taylor v. tion, on public notice duly given, voted in favor of the
Taylor, 10 Mimn. 124; The People v. Warfield, 20 Ill. proposition. This was the mode provided by law for ascertaining the sense of the qualified voters of the
164; The People v. Garner, 47 id. 232; The People v.
Wiant, 48 id. 266. We conclude, therefore, that the city upon that question. There would appear to be no other practicable way in which the matter could be
Supreme Court of Missouri, when it decided the case determined.” The writ of mandamus was accord
of State v. Linn County, and held the law in question ingly issued. The same year the question came up
to be constitutional, did not overlook the objection again in State v. Binder, 38 Mo. 450. In that case the
which is now made, but considered it settled by prepoint arose under the refreshment act of St. Louis,
vious adjudications. That case is, therefore, to be which was considered in Slate v. Winklemeier. It ap
considered as conclusive upon this question as well as peared that the authority to grant the permission in
upon that which was directly considered and dequestion was giveu at a special election called for that
cided, and as a rule of State statutory and constitupurpose, and that out of a vote of seven thousand and
tional coustruction, is binding upon us. It follows eighty-five, five thousand and fifty-one were in favor
that our decision in Ilarshman v. Bates County, in so of the grant and two thousand and thirty-four against
far as it declares the law to be unconstitutional, must it. The cases of State v. Winkelmeier and State v. St.
be overruled. Joseph were both referred to, and after quoting from It is further insisted that the bonds sued upon are the opinion in the latter case, it was said: “We think invalid because the railroad company to which the the case made here comes within the reasoning and subscription was voted was not incorporated until the the principles of that decision, namely, that an elec day of the election, and Rubey v. Shain, 54 Mo. 277, is tion of this kind, authorized for the very purpose of cited in support of this objection. That case ouly dedetermining that question, on public notice duly given, cides, if it is to be regarded as authority, that a subwas the mode contemplated by the legislature, as well scription cannot be made by a township until the comas by the law, for ascertaining the sense of the legal pany is incorporated, or rather that township subvoters upon the question submitted, and that there scriptions cannot be used to bring the company into could not well be any other practicable way in which existence. They are, to use the language of the judge such a matter could be determined." These decisions in his opinion, not to be made the " nucleus around had all been made, and had never been questioned, which aid is to be gathered." Here the company had when the act of 1808, now under consideration, was been incorporated when the subscription was made. passed. They were also in force, as evidence of the The decision relied upon, therefore, does not aplaw of the State, when the bonds in controversy ply, and we are not inclined to extend its operawere issued, and, so far as we are advised, there tion. This makes it unnecessary to inquire whetber has been no disposition since on the part of the courts this defense could be maintained as against an innoof the State to modify them. In State v. Sutterfield, cent holder. 54 Mo. 391, the question was as to the construction of It is finally objected that as the bonds are in fact another clause in the constitution, and the decision the bonds of the township, no action can be mainwas placed expressly on the ground of a difference be- | tained upon them against the county. Without untween the two provisions. That court has in the strong. I dertaking to decide what would be the appropriate
form of proceeding to enforce the obligation in the sided in any part of the United States south of the State courts, it is sufficient to say that in the courts of 33d degree of north latitude, except in California, bethe United States we are entirely satisfied with the tween the 1st of July and the 1st of November, withconclusions reached by the court below, and that a out the consent of the company previously given in judgment may be rendered against the county, to be writing, the policy should be null and void. And the enforced, if necessary, by mandamus against the policy declared that agents of the company were not County Court or the judges thereof to compel the levy authorized to make, alter or discharge contracts, or and collection of a tax in accordance with the provis waive forfeitures. ions of the law under which the bonds were issued. The insured died at the city of New Orleans on the The reasoning of the learned circuit judge in Jordan 11th of November, 1872. Between the 1st of July v. Cass County, 3 Dill. 185, is to our minds perfectly and the 1st of November of that year he had resided conclusive upon this subject, and we content ourselves at that city which is south of the 33d degree of north with a simple reference to that case as authority upon latitude, without the previous consent in writing this point.
of the company; and the annual premium due on The judgment of the Circuit Court is affirmed. the first of that month was not paid on or before that
day. CONDITIONS IN LIFE INSURANCE POLICIES,
By this residence of the insured within the prohibWAIVER OF, BY INSURER AND
ited district of country during the period designated, BY AGENT.
without the previous consent of the company, and the
failure of the holder of the policy to pay the annual SUPREME COURT OF THE UNITED STATES - OCTO
premium when it became due, the policy, by its exBER TERM, 1877.
press terms, was forfeited, and the company released GLOBE MUTUAL LIFE INSURANCE CO. OF NEW YORK, from liability, uuless the forfeiture was waived by the plaintiff in error, v. WOLFF.
action of the company, or of its agents authorized to By conditions in a life insurance policy, the same was to
represent it in that respect. become void in case of failure to pay the regular pre The waiver of the forfeiture for the non-payment mium on the day it was due, and also if the insured,
of the premium due on the 1st of November, 1872, is without the consent of the company, should reside within a certain prohibited district. It was, however, alleged on the ground that the premium was subseprovided that even after the day for the payment of the premium had passed, the company would waive the
quently paid to an agent of the company, he deliverfailure upon being satisfied that the insured was still in ing its receipt for the same, signed by its secretary and health, and it was customary for an agent of the com
countersigned by the manager and cashier of the local pany to receive premiums after they were due, and his acts in doing so were sanctioned by the company, who office, the plaintiff contending that the company, by furnished him with renewal receipts for the purpose. The agent had, however, no authority to waive the for
its previous general course of dealing with its agents, feiture arising from residence in the prohibited district. and its practice with respect to the policy in suit, The insured, who had failed to pay a premium when due and was residing within the prohibited district
had authorized the premiums to be paid and the without consent, was taken sick with yellow fever, of agent to receive the same after they became due, which he shortly after died. While he was sick his agent called upon the insurance agent and paid the
and thus had waived any right to a strict compliance premium and received a receipt renewing the policy for with the terms of the policy as to the payment of preone year, signed by the company and countersigned by its agent. The agent of the insured was asked nothing
miums. about the health of the insured, and he said nothing. The waiver of the forfeiture arising from the resiHeld, that while the insurance agent would be presumed to have authority to waive the failure to pay the
dence within the prohibited district between the premium when due, he would not be to waive the for 1st of July and November, without the previous confeiture caused by residing in the prohibited district,
sent of the company, is also alleged from the subseand the receipt of the premium by him and issue of the renewal receipt would not operate as a waiver. Even quent payment of the premium and its receipt by the for the purpose of making the waiver of the failure to pay effective, the insurance agent should have been in
local agent, the plaintiff contending tbat the premium formed of the state of the health of the insured.
was received with knowledge by the agent of the preIN error to the Circuit Court of the United States for vious residence of the insured within the prohibited
the Eastern District of Missouri. The opinion district. states the case.
It appears from the record that the deceased was Mr. Justice FIELD delivered the opinion of the taken sick with the yellow fever at New Orleans on court.
the 6th or 7th of November, 1872, and died on the 11th This was an action on a policy of insurance issued of the month, between the hours of eleven and twelve by the Globe Mutual Life Insurance Company of New in the forenoon. On the previous day a telegram was York on the 5th of November, 1869, upon the life of sent by Mrs. Garber from New Orleans to a geutleman Charles H. Garber, commencing on the first of that in St. Louis, directing the latter to go to the agency month. The insurance was for the amount of $5,000, of the company in that city, at which the policy was and was effected by the wife of the insured for her sole | issued, and pay the premium due on the first of the benefit. The premium designated was made payable | month. Accordingly on the following moruing, at annually on the 1st of November. The policy stipu about uive o'clock, the premium was paid by this genlated for the payment of the amount of the insurance tleman, and a renewal receipt was thereupon delivwithin sixty days after due notice and proof of the ered to him. This renewal receipt was dated in New death of the insured, subject, however, to certain York and signed by the secretary of the company. It express conditions. One of these conditions pro not only acknowledged the receipt of the premium, vided that if the premiums were not paid on or before but continued the policy in force for another year. the days mentioned for their payment, the company | The practice of the company was to send to its agents should uot be liable for the sum insured or any part in St. Louis receipts in this forin sigued by its secreof it, and that the policy should cease and determine. tary, to be countersigned by the local manager aud Another condition provided that if the insured re- cashier before being used. The receipt given was thus countersigned. The payment was made in the pres. retary, to be used when countersigned by its local ent case to a boy in the office of the agent, and by him manager and cashier, leaving their use subject entirely the renewal receipt was delivered. It was his habit to to the judgment of the local agent. The propriety of receive premiums and deliver the proper renewal re their use, in the absence of any fraud in the matter, ceipt in the absence of the agent. In this case the could not afterward be questioned by the company. money was given by him on the latter's coming to the Accompanying these receipts was a notice, printed on office the same morning. The agent credited the the same paper, that policies which became null for amount to the company in his semi-monthly account non-payment might be renewed at the home office, transmitted to the home office. The gentleman who within a reasonable time, upon furnishing satisfactory paid the premium was not aware at the time that the evidence of good health, such satisfactory evidence insured was sick, and no inquiries were made by the being left to the judgment of the local agent, and the boy or the agent as to his health. It is conceded that renewal by the home office consisting of a receipt they had no information on the subject. A few days signed by its secretary, transmitted to such agent, to afterward the agent learned of the death of the in be used when countersigned by the local manager and sured, and of the sickness which was the immediate cashier. It was the habit of the agent to give such cause of it, and informed the home office. The com renewal receipts whenever the premiums were paid pany at once telegraphed the agent to return the pre after the time stipulated, and his accounts to the mium and demand a surrender of the renewal receipt. home office showed such subsequent payment. His The money was accordingly tendered to the gentle action in this respect was not questioned by the comman who paid it, and a surrender of the renewal re pany, and the premiums were retained by it without ceipt demanded, but the tender was not received, nor any pretense that the policies had ceased to be obligathe receipt returned.
tory for want of punctuality in their payment. The The conditions mentioned in the policy could, of mode of dealing by the agent with persons taking out course, be waived by the company, either before or policies at the local office, his use of renewal receipts, after they were broken; they were inserted for its his acceptance of premiums after the day on which benefit, and it depended upon its pleasure whether they were payable, were all known to the home comthey should be enforced. The difficulty in this case, pany, and its retention of the premiums thus received and in nearly all cases where a waiver is alleged in the was an approval of his acts. So far, then, as the absence of written proof of the fact, arises from a con waiver of the forfeiture incurred for non-payment of sideration of the effect to be given to the acts of agents the premiums is concerned, it is clear that the comof the company in their dealings with the insured. pany by its course of dealing had, notwithstanding the Of course such ageuts, if they bind the company, must provision of the policy, left the matter to be deterhave authority to waive a compliance with the condi mined by its local agent to whom the renewal receipts tions upon a breach of which the forfeiture is claimed, were intrusted. or to waive the forfeiture when incurred, or their acts But so far as the forfeiture arose from the residence waiving such compliance or forfeiture must be subse of the insured within the prohibited district, the case quently approved by the company. The law of agency is different. There is nothing in the acts of the comis not different when applied to the acts of an pany which goes to show that it ever authorized its agent undertaking to continue a policy of insurance, agents to waive a forfeiture thus incurred, or that it and when applied to any other act for which his prin ever knew of any residence of the insured within the cipal is sought to be held responsible. .
prohibited district until informed of his death there. The principle that no one shall be permitted to deny
In every case where premiums were received after the that he intended the natural consequences of his acts day they were payable, the fact that a forfeiture had when he has induced others to rely upon them, is as been incurred was made known to the company from applicable to insurance companies as it is to individ- the date of the payment, and the retention of the uals, and will serve to solve the difficulty mentioned. money constituted a waiver of the forfeiture; but no This principle is one of sound morals as well as of information of a forfeiture on any other ground was sound law, and its enforcement tends to uphold good | imparted by the date of such payment. The agent refaith and fair dealing. If, therefore, the conduct of ceiving the premium, in the case at bar, testified that the company in its dealings with the insured in this he knew nothing of the residence of the insured case, and with others similarly situated, has been such within the prohibited district during the excepted as to induce a belief that so much of the contract as | period, and the evidence in conflict with his testiprovides for a forfeiture if the premium be not paid mony was slight. He knew that the insured had a on the day it is due, would not be enforced if pay place of business there, and he was permitted to make ment were made within a reasonable period after occasional visits there within the prohibited period, ward, the company ought not in common justice to be and to reside there at other times. Every thing propermitted to allege such forfeiture against one who duced as evidence of knowledge of residence within has acted upon the belief and subsequently made the the prescribed district is consistent with these occapayment. And if the acts creating such belief were sional visits and residence at other times than during done by the ngent and were subsequently approved by the excepted period. But even if the agent knew the the company, either expressly or by receiviug and re fact of residence within the excepted period, he could taining the premiums, the same consequences should not waive the forfeiture thus incurred without aufollow.
thority from the company. The policy declared that This principle applied to the case at bar will render he was not authorized to waive forfeitures, and to the the question presented one of easy solution. The
provision effect must be given, except so far as the company, notwithstanding the provision in the policy subsequent acts of the company permitted it to be dis. that its agents were not authorized to waive forfeit- regarded. There is no evidence that the company in ures, sent to them renewal receipts sigued by its sec- | any way, directly or indirectly, sanctioned a disregard
of the provision with reference to any forfeitures ex
NOTES OF RECENT DECISIONS. cept such as occurred from non-payment of premiums.
Banking: ultra vires : limitation of authority of directAs soon as it was informed of the residence of the in
ors of bank. – Under general authority to the presisured within the prohibited district, it directed a re
dent and cashier of a bank, giving them entire control turn of the premium subsequently paid. It would be against reason to give to the receipt of the premium
of all financial matters of the bank, unrestricted by by the agent, under the circumstances stated, the effi
any by-laws or rules of the board of directors or
stockholders, they have no power to use the property cacy claimed. The court, in its instructions, treated
of the bank in the private business, or for the indi. the receipt of the premium by the agent, with knowledge of the previous residence of the insured within
vidual benefit of one of themselves. Under such gen
eral authority they cannot bind the bank by any conthe prohibited district, if the agent had such knowl
tract to which they, or either of them, are parties. W., edge, as itself a sufficient waiver of the forfeiture in
a director of the bank, owed it a note of $1,000, and curred, without any evidence of the action of the
held $1,000 of its stock. T., the president, made an company when informed of such residence, and in
agreement with him, to purchase the stock for himthis respect we think the court erred. It is esseutial
self, and to carry out this agreement the president rethat the company should have had some knowledge
ceived the stock from W., handed it to the cashier, of the forfeiture before it can be held to have waived
instructing him to hold it in place of W.'s note, and to it.
surrender the note to W., saying that he, the presiIt is true that where an agent is charged with the
dent, would pay the amount to the bank. The cashier collection of premiums upon policies, it will be pre
received the stock, stamped the note paid, and surreusumed that he informs the company of any circum
dered it to W. Held, that the bank, there being no stances coming to his knowledge affecting its liability,
ratification of the transaction, was not bound by it, and if subsequently the premiums are received by the
and that it did not discharge W.'s liability to the bank company without objection, any forfeiture incurred
upon the note. Sup. Ct., Minnesota, Nov. 30, 1877. will be presumed to be waived. But here there was no
Rhodes, assignee, v. Webb (N. W. Rep.). ground for any inference of this kind from the sub
Constitutional law : act requiring license to employ sequent action or silence of the company. There was
laborers to work out of State valid. — The act of Februno evidence of a disregard of the condition as to the
ary 16, 1876, requiring any person engaged in hiring residence of the assured in any previous year, and con
laborers in this State for employment beyond the sequently there could be no inference of a waiver of
limits of the same, to procure a license and pay thereits breach from a subsequent retention of the pre
for $100, and making it penal to carry on (the business mium paid. This is a case where immediate enforce
without such license, is constitutional. Money propment of the forfeiture incurred was directed when
erly paid into the county treasury, by a person who has information was received that the condition of the
applied for and obtained the license, cannot be repolicy in that respect had been broken.
covered back, by mandamus or otherwise. Sup. Ct., Not only should the company have been informed
Georgia, Oct. 9, 1877. Shepherd v. Taylor. of the forfeiture before it could be held by its action
Contract: construction of : sale of goods : what constito have waived it, but it should also have been in
tutes agency.- Where A agreed to furnish goods to B, formed of the condition of the health of the insured
at schedule prices, less a certain discount, and B was at the time the premium was tendered, upon the pay.
to pay all freight, storage, and other charges, and, at ment of which the waiver is claimed. The doctrine
the end of every three months, was to settle for all of waiver as asserted against insurance companies to
goods sold by him or shipped from his warehouse, by avoid the strict enforcement of conditions contained
giving his notes for the stipulated price, and, at the in their policies is only another name for the doctrine
end of a year from the date of the agreement, to settle, of estoppel. It can only be invoked where the con
if required, for all goods remaining on hand, held, duct of the companies has been such as to induce ac
that this arrangement created the relation of seller tion in reliance upon it, and where it would operate
and buyer, and not that of principal and agent or as a fraud upon the assured if they were afterward al
factor, aud that on the bankruptcy of B, A could not lowed to disavow their conduct and enforce the con
recover from his assignees the proceeds of goods sold ditions. To a just application of this doctrine it is
by B and collected by them, or notes of purchasers of essential that the company sought to be estopped from
such goods in their hands as assignees. U. S. Dist. Ct., denying the waiver claimed should be apprised of all
California, Nov. 22, 1877. In re Linforth, Kellogg & Co. the facts: of those which create the forfeiture and of
Fire insurance : stipulations in policy: warranty: effect those which will necessarily influence its judgment in
of statute as to avoidance : ownership.-The policy stipuconsenting to waive it. The holder of the policy can
lated that the application should be considered a part not be permitted to conceal from the company au im
thereof and a warranty, and that any false representaportant fact, like that of the insured being in extremis,
tions as to the condition, situation or occupancy should and then to claim a waiver of the forfeiture created
render it void; also, that if the interest of the insured by the act which brought the insured to that condi
was any other than that of sole and unconditioned owntion. To permit such concealment, and yet to give to
ership, it must be so expressed or the policy should be the action of the company the same effect as though
void; also, if the house should remain vacant for ten days no concealment were made, would tend to sanction a without notice or consent, the policy should be yoid. fraud on the part of the policy-holder, instead of
Held, that, if the house was not occupied as represented, protecting him against the commission of one by the ||
the contract was violated at its inception, and never company.
became binding on the company; that a stateIt follows that the judgment must be reversed and ment in the policy of the existing use of the premises the cause remanded for a new trial; and it is so or was a warranty that they were so used in presenti ; that dered.
| the policy was avoided by any false statement, whether