was insured and $500 was added to the insurance upon contents in the dwelling house, officers of defendant were at the home of plaintiffs discussing the matter of the additional insurance. Martha A. Wilson said, in substance, that she thought they were not carrying enough insurance on the contents of the barns because "at times, when we have our barns full, our crops all gathered, the crops alone would more than amount to what you are carrying on your buildings," to which her husband replied that, since he had his tools in the new shed, the amount carried was about right. To this there was, it is said, some expression of assent from one or both of the officers of defendant. It is argued for plaintiffs that from this the jury had the right to infer that the officers must have understood that the tools referred to, formerly kept in and about the barns, were insured while in the new shed-at least that plaintiffs so understood it-and if it were not so that the officers of the company should have spoken. It is claimed, further, that defendant is estopped to deny liability be

cause:

(a) Down to the time of the trial the ground of nonliability asserted was that the tools were not kept in an insured building; that, having invited plaintiffs to make proofs of loss and to go before the board, it cannot now be claimed that the property was not covered by the terms of the policy.

(b) After the tools had been stored in the new shed, assessments were paid, which assessments were based in part upon the valuation of personal property stated in the policy.

(c) The defendant invited plaintiffs to arbitrate the matter and after they had been put to some expense in that behalf declined to submit the matter to arbitration.

It was agreed that the destroyed tools were worth $300. At the time of the fire, there were contents in the insured buildings. The company reserved the right to cancel any policy whenever, in the opinion of its board of directors, its interests required such cancellation. The insurance was to continue in force so long as the insured paid assessments, or until the policy was canceled.

OSTRANDER, J. (after stating the facts). It will be observed that the personal property is not described otherwise than by its location. The contents of a barn or of barns, on a farm, unlike the barn or barns, are not permanent, and the risk assumed by the insurer is not limited to the contents at the time the policy is issued. It is the general rule that place and location are of the essence of a risk, especially when the property insured is not described otherwise than by location. The policy in question differs slightly from the one considered in Benton v. Insurance Co., 102 Mich. 281 (26 L. R. A. 237). That policy described "one barn" and, in a separate item, “on contents in said barn." It described "one toolhouse," and, separately, "on contents in toolhouse." Plaintiff built a new barn, and in it he stored grain and tools. This barn and its contents were destroyed by fire. It was held that the contents of the barn were not within the protection furnished by the policy. There is no intimation, however, in the opinion, and none in the numerous cases cited, sustaining the proposition that, if tools actually in the insured barn when the policy was issued had been for convenience placed in the insured toolhouse and had been there destroyed by fire, the owner could not have recovered for them as for contents of the toolhouse. So, under the provisions of the policy in suit, there can be no doubt that the risk covered at the time of the fire the contents of any of the barns described in the policy wherever they may have been situated when the policy was issued, and however much they may have changed by use, replacement, and season.

But when it is attempted to extend the risk to the contents of one or of several other barns, not in existence when the policy was issued, the case is brought within the rule of Benton v. Insurance Co., unless the defendant is estopped to demand the application of the rule. If it is estopped, it is because it consented, in substance and effect, that the property destroyed should be, in the new and uninsured building, considered as contents of barn

buildings within the meaning of the policy. One conclusion to be legitimately drawn from the conversation with the officers of defendant company which has been referred to is that, in deciding not to increase the amount of insurance upon the contents of the barns, plaintiffs regarded the tools stored in the new shed as withdrawn from the protection of the policy and considered and understood the word "barns" to mean the barns mentioned in the policy, and the contents of such barns and of no others to be the "contents of barn buildings" referred to in the policy. But this is not the only conclusion which may be reasonably drawn. Plaintiffs regarded the risk of loss to be diminished by placing these larger farm implements in the detached and little-visited new building. In consequence they considered themselves fairly protected against loss of the contents of their barns without increasing the amount of the indemnity and the attendant cost. Assuming this to be what plaintiffs meant, and that the officers of defendant so understood, and in view of the fact that the company itself employed in the policy the term which is of importance here, and that the conversation in question was upon an occasion when the officers of defendant had called upon plaintiffs to determine the amount of insurance they should carry, there is reason for saying that both parties regarded the destroyed property as covered by the very general terms of the policy, and that assessments were thereafter paid and received with that understanding.

We reach the conclusion that the court was not in error in refusing to direct a verdict for defendant.

The judgment is affirmed.

BLAIR, C. J., and GRANT, MONTGOMERY, and HOOKER, JJ., concurred.

FULWELL v. BROWN.

1. VENDOR AND PURCHASER-SALES-WARRANTY OF TITLE-EVIDENCE.

The modern and general rule is that a sale of personal chattels implies an affirmation by the vendor that the chattels are his, and he therefore warrants the title, unless it appears by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold.

2. SAME.

On a bill for the reformation of a contract for the purchase of a lease of a hotel and its appurtenances, and to enjoin the defendant from negotiating certain promissory notes given in payment therefor and from enforcing a chattel mortgage given to secure the payment of said notes, on the ground of the failure of title in defendant of certain machinery connected therewith, evidence examined, and held, insufficient to establish that defendant claimed to own said machinery or attempted to transfer a greater title in said premises than he possessed, and that the bill was properly dismissed.

Appeal from Wayne; Brooke, J. Submitted February 24, 1909. (Docket No. 55.) Decided May 25, 1909.

Bill by George Fulwell against John H. Brown for the reformation of a contract, and to enjoin the negotiating of certain promissory notes and from enforcing the terms of a chattel mortgage given to secure their payment. From a decree dismissing the bill, complainant appeals. Affirmed.

Bowen, Douglas, Whiting & Eaman, for complain

ant.

Maybury, Lucking, Emmons & Helfman, for defend

ant.

On September 16, 1905, the defendant was engaged in the operation of the Hotel Normandie in the city of De

troit. His lease of the premises from the owner of them is dated April 30, 1904, and the term created by the lease expires May 1, 1914. He covenanted with the lessor to make necessary repairs to the interior of the building, the machinery, elevator, and other appliances. The said lease contains the following provision:

"This lease is made to take the place of a certain other lease made by said first party to one Charles Roe, dated December 31, A. D. 1901, the rights of said Roe having been acquired by said Brown, which lease is hereby surrendered and canceled."

In the building were some large steam boilers, bricked in, an electric lighting plant, two engines, some steam pumps, and various other machinery which appeared in an inventory kept by the defendant, and appeared upon the regular monthly balance sheets made up by the proper employés of the hotel at a value somewhat in excess of $7,000. The complainant, introduced to this property and to the defendant by a broker, after an examination of the hotel property and on September 15, 1905, submitted to the defendant a proposition reading as follows:

"Dear Sir: I beg to submit the following offer to purchase your title and interests in 'The Normandie' Hotel, Detroit, Mich. :

"First, I agree and will pay you for the lease, furniture, and such machinery as you own and now contained in said Normandie Hotel, also all fixtures, equipment and good will, viz., thirty ($35,000.00) five thousand dollars.

"Furthermore, I agree to purchase and pay you additional for all merchandise (at cost price) contained in said hotel at date of transfer-estimated about $3,000 more or less, said stock not to exceed $4,000. I also agree to pay you for unexpired insurance and unexpired liquor license -prorated; payments to be made as follows: Ten ($10,000.00) thousand dollars in cash on date of transfer of your title and interests in The Normandie' and possession given me. Balance at deferred payments to be discharged and paid in the following manner:

"A series of certain promissory notes will be issued and signed by myself bearing six (6%) per cent. interest, which amounts will cover my entire indebtedness to you.