the defendants. Instead of this working an estoppel, the equitable operation of it would be to estop the defendants from asserting that the plaintiff was thereby estopped. The rights of no third parties had intervened, there were no creditors of the defendant corporation, except Robinson himself, so it cannot be said that plaintiff's delay would work an injury to third parties or creditors of the corporation. I do not find any direct authority for the position that under the circumstances the defendants would be estopped from pleading delay on the part of the plaintiff in bringing his action; but it is perfectly in accord with the principles of equity and right and just dealing. The plaintiff did not for a moment agree to stand longer by the contract or to ratify the same, but only at the suggestion of the defendant Robinson said he was willing to wait to see what he could do with the options, and thus relieve the defendants. The delay in any event was not a long delay; at most, but a year, and probably only six months. Defendants rely upon Boyce v. Gas Coal Co., 37 W. Va. 73, 16 S. E. 501, where it is held that a stockholder who had notice or the means at hand of becoming acquainted with the contract made by his corporation would not be allowed to remain quiet an unreasonable length of time, with a view to ascertaining whether his contract would result in profit to him, and then repudiate the contract if it had resulted in loss. That was a case in which the party had delayed nearly nine years before taking action. That case also refers to Insurance Co. v. Railroad Co., 32 W. Va. 257, 9 S. E. 180, where it was held that acquiescence in a contract for six years was sufficient to work an estoppel. In case at bar plaintiff never did acquiesce in the contract after he learned of material misrepresentation which had led him into the purchase of the stock, and only said to the defendants, in effect, "I will give you a reasonable time in which to sell the options, and relieve yourselves from the necessity of returning the money to me from your own pockets." In Cottrill v. Krum, 100 Mo. 397, 13 S. W. 753, 18 Am. St. Rep. 549, it is held: "A plaintiff does not waive his right to sue for damages for false representations by offering, after the purchase of the property, to sell it at the price which the defendant represented to be its value, nor by allowing four or five months to elapse before bringing his suit."

a

It is insisted that neither W. P. Robinson nor the company having received any money paid for stock purchased by the plaintiff, they cannot be held liable therefor. In a note to Cottrill v. Krum, 18 Am. St. Rep. 555, we find: "It is not necessary, in order to maintain an action to recover damages for a false representation, to show that the defendant was in any way benefited by the making of sich representation, or that he was in collusion with some one else who was benefit

ed. Pasley v. Freeman, 3 Term Rep. 51; Hart v. Tallmadge, 2 Day, 381, 2 Am. Dec. 105; Endsley v. Johns, 120 Ill. 469, 12 N. E. 247, 60 Am. Rep. 572; Fisher v. Mellen, 103 Mass. 503; Patten v. Gurney, 17 Mass. 182, 9 Am. Dec. 141; New York L. I. Co. v. Chapman, 118 N. Y. 288, 23 N. E. 187; Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30; Hubbard v. Briggs, 31 N. Y. 518; White v. Merritt, 7 N. Y. 352, 57 Am. Dec. 527; Upton v. Vail, 6 Johns. 181, 5 Am. Dec. 210."

It is claimed, also, that plaintiff cannot recover against Robinson and the other defendants because he bought the stock relying up on the guaranty of Spragg, but the evidence shows clearly that he bought, relying upon the representations made by Spragg and those contained in the publications made for the company by Robinson. The guaranty of Spragg filed with the deposition of Cox, shows that he agreed to protect Cox against any loss on decline of stock, and that, when the stock had advanced to 30 cents per share, said Cox was required to sell, or else the guaranty to be null and void. This was a guaranty of an agent of the company and Robinson, who was selling the stock, and doubtless at the time he was confident of the truth of the representations made by the defendants and by himself at the time that he sold the stock and gave the guaranty, and Cox says that, when he gave him the guaranty, Spragg said this would give him double security. It is not shown in the record that plaintiff relied upon the guaranty alone, and the guaranty does not show it. Can plaintiff in a suit in equity recover damages for false representations made by promoter and officers of a corporation? In 1 Cook on Corporations, 156, in treating of the cancellation of subscriptions to the stock of corporations, made upon false representations and misstatements, it is said: "A court of equity in these actions will give complete relief by decreeing that the directors guilty of the fraud shall refund to the subscriber payments made by him before discovering the fraud. This relief dispenses with an action at law for damages for deceit, and, when sought for in the bill in equity, the guilty directors must be made parties. The bill is not multifarious by reason of its containing prayers for these various kinds of relief." And authorities there cited. Bosher v. Land Co., 89 Va. 455, 16 S. E. 360, 37 Am. St. Rep. 879; Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. 340, 36 L. Ed. 83. And in Barcus v. Gates, 89 Fed. 783, 32 C. C. A. 337, it is held: "A court of equity has jurisdiction to afford relief to one who has been induced, through the fraud of the promoters of a corporation, to become a subscriber to its stock, and may rescind the contract, though fully executed, and compel restitution." Carey v. Coffee Stemming Machine Co. (Va.) 20 S. E. 778; Sherman v. Stove Co., 85 Mich. 169, 48 N. W. 537. At section 155, 1 Cook on Corporations,

the author says the bill in equity "is the fairest, safest, and most complete remedy that the subscriber has. It is a decisive notice to the corporation and all third parties not to rely upon the subscription in question." There is conflict in the evidence, and it has been many times held by this court that "where the decree sought to be reversed is based upon depositions, which are so conflicting and of such a doubtful and unsatisfactory character that different minds and different judges might reasonably disagree as to the facts proved by them, or the proper conclusion to be deduced therefrom, the appellate court will decline to reverse the finding or decree of the chancellor, although the testimony may be such that the appellate court might have pronounced a different decree, if it had acted upon the cause in the first instance." Smith v. Yoke, 27 W. Va. 639. "A decree of a circuit court founded on conflicting and contradictory testimony will not be disturbed unless plainly erroneous." Yoke v. Shay, 47 W. Va. 40, 34 S. E. 748. "An appellate court will not reverse the judgment of an inferior court unless error affirmatively appear upon the face of the record, and such error will not be presumed, all the presumptions being in favor of the correctness of the judgment." Shrewsbury v. Miller, 10 W. Va. 115, Syl. point 2; Richardson v. Donehoo, 16 W. Va. 685, Syl. point 14; Griffith v. Corrothers, 42 W. Va. 59, 24 S. E. 569; Spurgin v. Spurgin, 47 W. Va. 38, 34 S. E. 750.

We find no error in the decree, and the same must be affirmed.

The syllabus in Reger v. O'Neal, 10 S. E. 375, 33 W. Va. 159, 6 L. R. A. 427, approved. 2. ADMINISTRATORS-SALE OF CHATTEls.

An administrator, selling chattels of his decedent, taking neither cash nor security for the purchase money, is chargeable therewith.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 638.] (Syllabus by the Court.)

Appeal from Circuit Court, Randoph County.

Bill by Sallie J. Wolfe against S. D. Morgan and others. Decree for plaintiff, and defendant Morgan appeals. Reversed.

Geo. M. Fleming and J. F. Harding, for appellant. Jared L. Wamsley, for appellee.

BRANNON, J. S. D. Morgan qualified as administrator of C. P. Wolfe. Sallie J. Wolfe, the widow of decedent, in her own right and as guardian of her children, filed a bill in equity in the circuit court of Randolph county against Morgan to obtain a settlement of his accounts as administrator. The

case was referred to a commissioner to settle said accounts, and he reported an account finding a balance due the estate of $7,131.22, which the court decreed against Morgan, and he has appealed.

Morgan complains that the commissioner's report charges him with $1,070.10 advance in lumber. Before Wolfe's death he bought standing timber of Pickens and Roberts and Boyd, and after his death his administrator converted this timber into lumber, aggregating 530,050 feet. Morgan would account for a certain sum as realized from the sale of this lumber. It was sold to Kyle & Morgan, of which firm S. D. Morgan was a member. Morgan could give no definite account of what this lumber brought. His basis of accounting for it seems to be the price paid by Kyle & Morgan to Wolfe in his lifetime for some other lumber. Evidence was given that the price of lumber had advanced thereafter, and the commissioner, though not allowing the full extent of that advance, yet allowed the estate the said sum over what Morgan claimed was a proper charge against him. It was the plain duty of the administrator to keep an accurate account of the lumber sold and the price realized for it. Instead of doing so, he went before the commissioner without data in this important transaction. He was called upon by the commissioner, and also by counsel for the plaintiff, to furnish such data. He promised to obtain from Kyle & Morgan, the purchasers from him of the lumber, means of ascertaining what the lumber brought, and what the profit on it, and he was given a long time to do so, but failed to do so. He was given time while giving his deposition to furnish such information, but he never did

So.

He did not complete his testimony. At the close of the report he filed an answer stating that Kyle & Morgan's books did not show the sales and profits throughout from the shipment of the Wolfe lumber. Morgan says that after the lumber was all disposed of he made up a statement, filed in the case, of the amount with which, as he claimed, he was chargeable; but he says, "I cannot say what became of my memoranda." Thus he gave no items entering in statement. He could not give the number of car loads of lumber shipped to Kyle & Morgan, or the quantity and grade shipped. In short, though called upon and given time to furnish information of this large transaction, he was unable to do so, or, rather, did not do so. Yet the data could have been, and should have been, carefully preserved. The idea of an administrator manufacturing that large quantity of lumber and keeping no account of its proceeds. How can he complain that the commissioner has done the best he was able? He fixed the price which the lumber was worth, and probably realized. If there is an element of uncertainty in this matter, but I do not say there is, who is to blame for it?

Here we must apply the rule, often laid down, that, where questions of fact are passed on by a commissioner, his finding will be given great weight, and should be sustained, unless plainly not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court. Reger v. O'Neal, 33 W. Va. 159, 10 S. E. 375, 6 L. R. A. 427.

As to the charge of $95.50 for rentals, the evidence is conflicting. We think it is supported by the evidence. I here apply the rule just stated, with the additional rule found in Reger v. O'Neal, just cited, that where a decree or finding of a commissioner is based on depositions conflicting, on which dif ferent persons might reasonably disagree as to the facts proved or the proper conclusion therefrom, the appellate court will decline to reverse the chancellor, although the testlmony might be such that the appellate court might have pronounced a different decree, if deciding the case in the first instance. Bartlett v. Cleavenger, 35 W. Va. 719, 14 S. E. 273.

Morgan complains of a charge of $700.49. We think this complaint is just. It grows out of a check in favor of the decedent, but which came to the hands of his administrator from Kyle & Morgan. Kyle & Morgan rendered an account against Wolfe's estate, charging it with that check, showing a balance in favor of Kyle & Morgan against the estate for $4,426.22. Morgan paid it. The commissioner refused to allow the balance shown by that account, but deducted from the $4,426.22 the $700.49. That check was charged to Morgan as administrator, and he should have been credited with the $4,426.22, the balance of account of Kyle & Morgan paid by him. We think the decree is erroneous in this matter. Morgan should have been credited with $4,426.22.

As to the charges of $25 for a safe, $12 for a desk, and $7 for a check perforator, Morgan claims that they were accounted for in his accounting for a sale of store goods belong. Ing to the decedent. But the evidence of Mrs. Wolfe contradicts this, and shows a sale of them by Morgan. We cannot overrule the commissioner and court in this matter.

As to the claim of $83 for the use of sawmill, the testimony is contradictory. We see no ground for overruling the circuit court in this, and especially under the legal rule above stated.

As to the item of $20 for cash paid on funeral expenses by Mrs. Wolfe, why is it charged to Morgan? We see no ground for it. As to a charge of $400 on account of part of the purchase money for which Morgan sold a sawmill, he sold it at private sale, taking no security, owing to his sickness at the time, as he says. He says that upon his recovery he found that the mill had been disposed of by the purchasers, who were worthless. This was a private sale; whereas, the usual rule

is a public sale. Hudson v. Hudson, 5 Munf. 180. But the fault here is in not taking security. That makes the administrator liable. 11 Am. & Eng. Ency. L. (2d Ed.) 1019; Schouler's Executors, § 355, 356. The sickness of Morgan may have been his misfortune, but the estate cannot bear the loss. He had no right to sell without security.

As to the items of $1.25, $15, $1.80, $8.75, and $16.70, which were disallowed in the report for expenses of administration, sworn to by Morgan, we think his oath justifies the allowance of these items, under principles stated in Barton's Ch. Prac. (2d Ed.) vol. 2, p. 731, § 210, pt. 1.

As to a claim of $2,856.29, credit for handling, hauling, and loading lumber, the commissioner allowed $2,036.21 of it, refusing to allow the balance, because vouchers were not presented. Those vouchers presented were allowed, a large number. The administrator was called upon for vouchers for the balance, but did not produce them. We cannot say that hundreds of dollars can be charged to a dead man's estate without vouchers. It was the duty of the administrator to take them. The commissioner says that a sum was placed in the account of disbursements under this head, apparently only to make the account balance, but without specification or vouchers. This claim is not of sufficient weight to overrule the report.

The refusal of commission is justified by the statute providing that, if an adminis-. trator fails to settle his accounts within the time required by law, he shall be denied commission.

The point is made that depositions were read relating to matters in two amended bills taken before they were filed. We do not sustain this contention, for the reason that the original bill called for a full account, under which any part of the assets chargeable to the administrator could be taken cogniz ance of. The amended bills sought to charge the administrator with lumber manufactured from timber belonging to the estate. They could only have the effect of charging him with assets with which he could be charged under the original bill. Those depositions could be read under the original bill. I consider this opinion unnecessary in the case, because it stands on a commissioner's report, and on oral evidence somewhat conflicting, certainly on its weight, involving no legal principles. No opinion should be written in such a case as this, dependent on more evidence and old established law. But for the useless practice of writing opinions in every case, simply to repeat fixed law, we should simply specify the contested items allowed or disallowed.

The commissioner did not make settlement by annual rests. There was no exception or that account, nor is there in this court Complaint is made that he charged interest on balance from close of first year of ad ministration, but should not have charged

"Interest until six months after the first year." This point is not good. Interest is charged on each year's balance from its close. We do not see that the result would be different if the settlement had been with annual rests. We do not see that the balance did not exist at the end of the first year.

We have dealt with items presented as erroneous in a brief of appellant's counsel.

We therefore reverse the decree, and remand the cause to the. circuit court, in order that a decree may be pronounced in accordance with principles herein stated.

There is no evidence whatever that the alleged relation between Solomon and Viley, existing prior to the war, was continued and terminated into a marriage under the act of March 10, 1866. The declarations of Viley and the evidence of "general reputation," therefore, tend to prove, not a lawful marriage, but only that Solomon prior to the War lived and cohabited with Viley, and that in 1867 they renewed such relation. Such evidence was incompetent to prove that on March 10, 1866, the relations between Solomon and Jackie were not exclusive. Petition dismissed.

On rehearing. Petition dismissed.
For former opinion, see 53 S. E. 439.

PER CURIAM. We have carefully considered the petition to rehear this cause and the brief of the learned counsel for defendants. We are unable to find any material point overlooked in our former decision at last term (53 S. E. 439), or any error in the conclusion arrived at. The plaintiff's right to recover depends upon the establishment of a legal marriage between Solomon Nelson and Jackie Cook. The uncontradicted evidence proves that a form of marriage between them took place during the year 1861, or not long thereafter, and that they continued to live together during and after the War, and were living together at the date of the ratification of the act of March 10, 1866. Pub. Laws 1866, p. 99, c. 40. The plaintiff was the issue of such cohabitation, and was born in January, 1867. We find nothing in the record tending to prove that such relationship was not exclusive in March, 1866. It may be that after that time Solomon Nelson returned to Beaufort county and resumed his ante bellum relations with the woman Viley; but, as we have declared in our former opinion in this case: "By virtue of the provisions of that act [March 10, 1866] the relation of man and wife existing between Solomon and Jackle, if continued until the passage of the act, culminated into a valid marriage and was legalized by the statute. The act has a retroactive effect, so as to legalize the relation from its beginning, thereby legitimating the offspring of such cohabitation born during the entire period. If Solomon resumed his cohabitation with Viley after March 10, 1866, it could have no effect upon the legitimacy of his and Jackie's children."

The "general reputation" that Viley was Solomon's wife in ante bellum days, and her declarations claiming him as her husband, are utterly valueless and incompetent; for there is no pretense that any valid marriage ever took place between Solomon and Viley after they became free, and they could not enter into the marriage contract while slaves.

An "iron safe clause" when properly made a part of a policy of fire insurance is a valid and binding stipulation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 853.]

2. SAME-INVENTORIES.

Invoices and entries in a ledger made from them, stating the aggregate value of goods sent from one store to another by the proprietor of both, not in all cases specifying the kind of goods, was not an inventory within the iron safe clause of a policy of fire insurance making the taking of "inventory" at least once a year a condition precedent to the insurer's liability on the policy.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 853.]

3. SAME IRON SAFE CLAUSE FAILURE TO COMPLY WITH EFFECT INSURANCE ON STOREHOUSE AND GOODS-IDENTITY OF RISK -Loss of BUILDING.

Insured, in a policy of fire insurance covering a storehouse and a stock of goods therein, failed to comply with the iron safe clause of the policy. The policy, the premium of which was entire, provided that a failure to produce the set of books and inventories required by the contract rendered the policy void, and constituted a perpetual bar to any recovery thereon. The contract also provided that the goods were insured while contained in the storehouse and not elsewhere. Held, that the insured's failure to comply with the iron safe clause precluded him from recovery on the policy, not as to the stock alone, but as to the storehouse as well, although the policy placed a definite portion of the insurance on the building, since the risks on the goods and on the building were substantially identical.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 853.]

Appeal from Superior Court, Jackson County; McNeill, Judge.

Action by M. L. Coggins against the Etna Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Civil action to recover on a policy of insurance, tried before McNeill, J., and a jury at May term, 1906, of Jackson superior court. There was evidence tending to show that plaintiff, having conducted for several years a general mercantile business at Fernhurst, Jackson county, N. C., in May, 1904, establish

ed a subsidiary business at Erastus, N. C., two miles distant from the other store, and conducted same till the loss hereafter referred to. This second enterprise was carried on in a small storehouse 18 by 25 feet, and a sideroom 7 by 25 feet, making the entire floor space 25 by 25, the house being valued by estimate at $300. In January, 1905, the plaintiff procured a policy of insurance in defendant company on the structure at Erastus, N. C., and the merchandise therein contained, consisting principally of groceries, boots and shoes, and clothing; the amount of insurance on the store being fixed in the policy at $200 and that on the goods at $1,500. On the night of the 17th of April, 1905, the storehouse at Erastus and all the goods therein contained was destroyed by fire, and defendant company, having failed and refused to pay the insurance, the plaintiff, claiming that his loss, by reason of destruction of store was $300 and that the goods destroyed at the time amounted to $2,100, instituted the present action to recover the amount due on the policy. At the close of plaintiff's testimony, on motion of defendant, the action was dismissed as on judgment of nonsuit, and plaintiff excepted, and appealed.

Walter E. Moore, Shepherd & Shepherd, and Coleman C. Cowan, for appellant. Merrick & Barnard and King, Spalding & Little, for appellee.

HOKE, J.

Defendant resists recovery in this case by reason of alleged breach of certain stipulations of the policy comprehended under the general term, the "iron safe clause." These stipulations, as contained in the present policy, are as follows: "1st. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date shall be returned. 2nd. The assured will keep a set of books which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory as provided for in first section of this clause, and during the continuance of this policy. 3rd. The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fire proof safe at night, and at all times when the building mentioned in this policy is not actually open for business; or, failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building. In the event of failure to produce such set of books and inventories for the inspection of this company,

this policy shall become null and void and such failure shall constitute a perpetual bar to any recovery thereon." And the breach assigned is for violation of the first and second items of the clause, to wit, that the insured made no inventory and kept no books as required by these provisions of the contract. This "iron safe clause," frequently attached to policies of insurance has been very generally upheld by the courts as a reasonable contract limitation on the risk which should be properly borne by the company. Insurance Co. v. Knight, 111 Ga. 622, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216; Sowers v. Insurance Co., 113 Iowa, 551, 85 N. W. 763; Lozano v. Insurance Co., 78 Fed. 278, 24 C. C. A. 85; Insurance Co. v. Kearney, 94 Fed. 314, 36 C. C. A. 265. These decisions and the reasons given to support them are, we think, well considered, and the clause, therefore, when properly made a part of the contract of insurance, will be adjudged with us a valid and binding stipulation.

In the two cases before this court where the question has been raised, Bray v. Ins. Co., 139 N. C. 390, 51 S. E. 922, and Parker v. Insurance Co., 143 N. C. 55 S. E. 717, and in which recovery by the plaintiff was sustained, the fire occurred within 30 days from the date of the policy, and, by the express terms of the contract, the provision known as the "iron safe clause," while incorporated in the policy, had not become effective. In construing this clause the better-considered authorities seem to be to the effect that it should receive a reasonable interpretation, and that only a substantial compliance should be required. Brown v. Insurance Co., 89 Tex. 591, 35 S. W. 1060; Insurance Co. v. Kemendo, 94 Tex. 367, 61 S. W. 1102; Insurance Co. v. Redding, 68 Fed. 708, 15 C. C. A. 619; Insurance Co. v. Kearney, 94 Fed. 314, 36 C. C. A. 265; Id., 180 U. S. 132, 21 Sup. Ct. 326, 45 L. Ed. 460. There are decisions, however, which hold that a literal compliance should be exacted. But, whatever may be the correct rule, there has been no compliance in the present case.

The plaintiff, giving evidence in his own behalf (and his was the only oral testimony produced at the trial), testified as follows: "The defendant's agent asked me in regard to an inventory, and I said to him I did not have an inventory; that I only took an assay of the goods about once a year. He then asked me if I had any inventory of my stock here at home and I told him 'No.'" Record, p. 17. And again, on pages 21 and 22, plaintiff testified further as follows: "Yes; I had another store. The two stores were two miles-maybe a little further-apart. I have been running the other store about six or seven years. The first stock in the new store was made partly out of the old store, the goods were in boxes, and were just carried to the other store. I had moved these goods there in May, 1904. They had been in my