Citizens' Fire Insurance Security and Loan Co. v. Doll. solution of the partnership, which according to the appellee's own testimony occurred before that fire, this use of the property ceased, and the real owner resumed its exclusive use and control. This construction of the articles of copartnership is rendered free from all doubt, if we look to the acts and conduct of the parties themselves. It appears that they never supposed for an instant that the property had become partnership property, and therefore subject to all the rights and liabilities of the partnership. They did not so treat it; for, on the 29th of October, 1868, we find Floeckher making a mortgage to Castle of the property for $12,000; and in the agreement of the 18th of March, 1869, to which all the partners were parties, the mill property is dealt with and described as belonging to Floeckher alone. And as still more decisive of the understanding of the parties, in the sworn answer of Fangmyer, Doll and Castle, to the bill in equity of Floeckher against them, they say, "that whatever may be the common import of the words contained in the compact of copartnership, it was the meaning thereof, and the thought of the parties thereto, that the said Floeckher should contribute to the copartnership the use of his mill property, teams, etc., so long as it might last." And they further averred that Floeckher" contributed nothing to the prosecution of the business but his personal services, and the rent or use of his mill, teams," etc. This answer was objected to and excluded by the court, as we have already seen, but, as we have said, we think it was admissible, not as evidence to the jury, but as an aid to the correct interpretation of the articles of copartnership, which, as it did not depend upon other than written evidence, was a question exclusively for the court. And although it is very true, as contended by the appellee, that where an agreement is plain and free from all ambiguity, it will not be construed by the acts and admissions of the parties in references to it, yet, where the intention is obscure or doubtful, and extrinsic evidence can be invoked, no evidence is more reliable or entitled to greater consideration, as manifesting what their intention was, than the acts and conduct of the parties themselves. As was said by the supreme court, in the case of the Railroad Co. v. Trimble, 10 Wall. 367, where there is doubt as to the proper meaning of an instrument, the construction which the parties to it have themselves put upon it, is entitled to great consideration; but where its meaning is clear, an erroneous conVOL. VI. 47 Citizens' Fire Insurance Security and Loan Co. v. Doll. struction of it by them will not control its effect. The same principle of construction was fully stated by Chief Justice SHAW, in the case of Fogg v. The Middlesex Mut. Fire Ins. Co., 10 Cush. 337. Seeing, then, that the firm of Fangmyer, Doll & Castle had no estate or title in the property at the time they applied to have it insured, but only a temporary use of it, and that, notwithstanding this fact, they represented the property as theirs, and it was so stated in the policy, it follows that, by the second and fifth conditions, the policy was absolutely void from the beginning. These conditions. provide, as we have already stated, that if the interest of the assured in the property is not truly stated in the policy; or, if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, it must be so represented to the assurers, and so expressed in the written part of the policy, or else the policy to be void. Here there was an entire misrepresentation as to the nature and character of the interest of the assured in the property. They even failed to disclose the name of the real owner, or that he was in any manner connected with the partnership. And the loss having occurred after the dissolution of the partnership, even the temporary interest of the firm in the mere use of the property had ceased to exist; and the appellee does not even pretend to have derived his right to the property through the partnership, but from Floeckher, the real owner at the time the policy was obtained. This difficulty in the case, however, is sought to be obviated and removed, upon the theory that the assignment of the policy to the appellee, with the assent of the appellant, operated as, and constituted in fact and in law, a new contract between the parties to this cause, and that all antecedent causes for avoiding the policy are excluded. But to this proposition we cannot assent, as being applicable to a case like the present, if it can be applied to any case, in the sense and to the extent contended for by appellee. In this case, the risk contemplated by the policy never attached, because of the violation of the conditions, which were fundamental to the contract. The policy was void in its very inception. The parties making the assignment had no interest at the time in the subject of the policy, and, having no interest themselves, they could assign none. The policy being void in their hands, it was equally 30 in the hands of the assignee, who is one of the parties to whom the policy issued, and by whose misrepresentation it was rendered Citizens' Fire Insurance Security and Loan Co. v. Doll. void from the beginning. The mere assent of the assurers to the assignment gave no force and vitality to the policy that was before utterly void in the hands of the assignors. The policy was not assignable without such assent, and the object of obtaining it was simply to authorize the transfer for what the policy was wort]. By such assent the assurers only agreed to substitute the assignee in the place of the assignors; but the causes that operated to render the policy void in its inception still adhered to it, and affected it in the hands of the assignee. He could occupy no better position than the assignors in reference to the policy, unless it be by special contract with the assurers. It is true, as stated by writers of approved authority, that "if the assignment, taken in connection with the policy, plainly transfers the assured's whole interest, the underwriter's assent to it is evidently equivalent to his agreement to be directly answerable to the assignee. In such case, the proceedings to enforce payment may be in the assignee's name, and he becomes to all intents and purposes the substituted party to the contract." Phill. on Ins., § 84. But this, as is manifest, pre-supposes that the policy was at the time of assignment valid and operative; that the assured held such interest in the subject-matter of the insurance as was assignable, and sufficient to keep alive and subsisting the policy according to the terms and conditions upon which it was issued. That was far from being the case in this instance. The policy was simply void, and the assent of the assurers to its assignment was neither intended nor operated to impart to it validity and a value that it never before had. In the case of the State Mut. Fire Ins. Co. v. Roberts, 31 Penn. St. 438, in speaking of the effect of the assurer's assent to the assignment of the policy by the assured, the court said: "The supposition that there is some magic in the assent of the underwriters to an assignment, which converts the policy into a new contract with the assignee, arises out of a misapprehension of the purpose for which such assent is required. As already stated, it is not to enlarge the engagement of the insurers, nor to enable them to waive any of the conditions on the performance of which their liability depends. It is not to give new privileges to the assured, which without it he would not have, but it is solely for the protection of the insurers. It would be a perversion of its design to give it any other effect." See, also, the case of Eastman v. Carroll Co. Mut. Fire Ins. Co., 45 Me. 307, where it was decided that a void policy is Stirling v. Nevassa Phosphate Company. not rendered valid by an assignment of the holder, with the assent of the assurers. As the case is finally disposed of in the question just decided, we sball reverse the judgment appealed from, without awarding a new trial. Judgment reversed. STIRLING et al., appellant, v. NEVASSA PHOSPHATE COMPANY. (35 Md. 128. ) Liability of owner of ship for acts of master — repairs. In an action by the owner of a cargo against the owners of a vessel to recover for the contributory share for certain jettisoned cargo and expenses charge able to the vessel and freight for certain bottomry bonds, in a general average contribution it appeared that the vessel and freight being insufficient to meet this contribution the cargo was taken for the payment of the deficiency, and the owner of the cargo claimed indemnity of the owners of the vessel. Held, that the owners of the vessel were not bound by the acts of the master, it being conceded that no prudent owner, if present, would have made or authorized such expensive repairs as were made by the master without any special authority. ACTION by the Nevassa Phosphate Company against Wm. Stirling, Washington Tall and others. The opinion states the case. Judgment was entered below on a demurrer for plaintiff by consent, subject to the decision of the court of appeals. The appeal is by defendants. T. W. Hale, Jr., and Geo. Wm. Brown, for appellants, cited 1 Parsons' Marit. Law, 60, 63, 288, 315, 320, 435; The Star of Hope, 9 Wall. 228; The Amelie, 6 id. 18; De Cuadra v. Swann, 16 C. B. N. S. 111; Eng. Com. Law, 792; The Bonaparte, 3 W. Rob. 302; The Ship Packet, 3 Mason, 255; The Gratitudine, 3 C. Rob. 240; 1 Parsons Ship. and Adm. 416; Naylor v. Baltzell, Campb. 65 (TANEY, C. J.); The Virgin, 8 Pet. 553, 554; The Grapeshot, 9 Wall. 141; The Aurora, 1 Wheat. 96; Emerigon on Marit. Loans (Contrat a la Grosse), 101-113; Wattson v. Marks, 2 Am. Law Reg. 166, 167; Lloyd v. Guibert, Law R., 1 Q. B. 124; Insurance Co. v. Dunham, 11 Wall Stirling v. Nevassa Phosphate Company. 26-28; New Jersey Navigation Co. v. Merchants' Bank, 6 How. 344; Morewood v. Enequist, 23 How. 493; 1 Parsons' Ship. and Adm. 21, 22. The Vibilia, 1 Pope v. NickHow. 24; The ' S Teackle Wallis, for appellee, argued that the validity of the bonds were not questioned. Abb. on Shipping, 161; Wm. Rob. 1. The master was bound to repair. erson, 3 Story, 487; The Niagara v. Cordes, 21 Maggie Hammond, 9 Wall. 458; 1 Parsons' Marit. Law, 415; The Ship Packet, 3 Mason, 263; The Grapeshot, 9 Wall. 135; The Bonaparte, 1 Eng. Law & Eq. 641; La Constancia, 2 W. Rob. 406. This case is not one of general average on account of sacrifice, but of contribution on account of expenditure. Spafford v. Dodge, 14 Mass. 64, 74, 80; 2 Arnould on Insurance, 893, 921, 925; 2 Phillips on Insurance, §§ 1319, 1356; 2 Parsons' Mar. Ins. 295; Stevens and Benecke on Average, 69, 70, 196, 199, 200; Tudor's Mercantile Cases, 71, 73, 106; Duncan v. Benson, 1 Exch. 537, 556; Benson v. Duncan, 3 id. 644; Benson v. Chapman, 2 House of Lords Cases, 713. STEWART, J. The act on in this case was brought by the appel lee, the owner of the cargo, against the appellants, the owners of the brig Georgia, to recover for the contributory share for certain jettisoned cargo, and expenses chargeable to the brig and freight for certain bottomry bonds, in a general average contribution. The brig and freight being insufficient to meet this contribution, the cargo was taken for the payment of the deficiency, and the appellee claims to be indemnified by the appellants. Under an agreement of the parties, the question to be determined arises out of the facts averred in the third plea of the appellants to the third count of the appellee, to which third plea the appellee demurred. From the allegations of the third plea, with its reference to the statements of the third count, it appears that, on the 11th day of November, 1868, the appellee being the owner of 450 tons of guano, valued at $8,000, at the Island of Nevassa, in the Caribbean sea, shipped it on board the brig Georgia, belonging to the appellants, to be conveyed to the port of Baltimore, in the State of Maryland, triler a contract of affreightment containing "the exceptions of tne dangers of the sea," for the sum of $8 per ton freight; that in |