Practice-Parties--Trust Relations.--Where, in fixing the ultimate liability of the compress company to the owners through the railroads primarily liable, one of the railroads is not made a party, or in any way brought before the court, no liability can be declared against it, but that part of the insurance obtained by the compress company which would belong to such railroad as its pro rata share may be held in trust by the compress company.

Deming et al. v. Merchants' Cotton-Press and Storage Co. (Tenn. S. C.), 17 Southwestern Reporter (Sept. 14, 1891), p. 89; 13 Lawyers' Reports, Annotated, 518.

Policy--Arbitration--Condition Precedent.-The policy provided that if a difference arose at any time between the company and the insured as to the amount payable in respect of any loss or damage by fire, any such difference when it arose should be referred to the arbitration of a person or persons to be chosen by the parties. Held, that the terms of the clause of reference imputed more than a mere assessment of damages, and that the reference being to arbiters unnamed, was invalid and could not exclude an action on the policy.

Gilmour v. Caledonian Ins. Co. (Scot. Ct. of Sessions), 28 Scottish Law Reporter (Sept. 16, 1891), p. 899.

Application-Material Answers--Statute-Court and Jury.--The applicant in answer to a question stated that he had not had property destroyed by fire previous thereto, when in fact he had suffered several fires before the time of the application. The matter being submitted to the jury, they found that the answer was material to the risk. Held, that the matter was to be regarded with reference to R. S. Ont. c. 167, s. 114, s.-s. l.; and that it was for the judge to say whether or not, in the light of the condition there set out, the answer was material to the risk; and held, further, that it was not.

Scott v. Lancashire Fire Ins. Co. (Cana. H. C. of J.,—Q. B. D.), 11 Canadian Law Times (Oct., 1891), p. 278.

Policy-Change in Title or Possession.-Putting a lessee in possession of insured property under a contract that he shall buy the property on the expiration of his lease, or, at his option, at any time during its continuance, does not violate a condition of the policy that it shall become void if any change takes place in the title or possession, when, on application for the insurance, the building was in process of erection, untenanted, and the company had notice of the contemplated lease and change of possession, though not of the agreement to convey contained in the lease. Reversing 23 Pacific Reporter, 383.

Smith et al v. Phenix Ins. Co. (Cal. S. C.), 27 Pacific Reporter (Oct. 22, 1891), p. 738; 33 Central Law Journal, 397.

Location of Insured Property-Change Effected by Flood.-The fact that a tank containing oil insured against loss by fire was carried four or five hundred feet from its original location, as described in the

policy, but not off the premises occupied by the assured, does not relieve the company from liability for subsequent loss by fire, since the location of the tank as given in the policy can be regarded only as descriptive, and not as a warranty.

Same-Policy-Warranty.-The description of the tank's location, if regarded as a warranty, can be construed only as a warranty of location at the time of insuring, and not, in the absence of an express stipulation to that effect, that the location will not be changed afterwards.

Same-Same-Same.-Where the description of the tank's location is regarded as a warranty that the assured will not voluntarily change the location, the underwriter is liable for loss occurring after a change in the location, produced by a flood.

Ambiguity in Policy-Rule of Construction.-Where words used in an insurance policy are susceptible of two interpretations, that which will support the claim of the assured will be adopted.

Defense-Estoppel.-Where, in a letter to the assured, soon after the fire, and in the affidavit of defense, the sole defense relied on by the underwriter is the change in the location of the oil, he is estopped to claim afterwards, as another defense, that the assured was not the owner of the oil.

Issuing Policy Without Application-Ownership of Property— Estoppel.- Where a corporation, organized to transport, store, and insure petroleum, whose custom it is to contract with its customers to insure the oil in its tanks at its own expense, procures insurance thereon without any written request or representation as to ownership, the insurance company can not escape liability on the ground that the insured did not own the oil, since the insurance company is chargeable with knowledge of the nature of the business of assured, and will be held to have insured it against all loss which it might sustain by reason of fire.

Evidence-Contract of Carrier to Insure. In an action on the policy it was competent for the transportation company to show that it contracted with its customers to insure the oil, and was responsible to them for it.

Denial of Liability-Waiver-Interest on Loss.-Where an insurance company denies all liability under its policy, it thereby waives the right to 60 days within which to pay the loss, and the insured may begin action immediately, and interest will begin to run from the date of the loss.

Western and Atlantic Pipe Lines v. Home Ins. Co. (Pa. S. C.), 22 Atlantic Reporter (Oct. 28, 1891), p. 665; 22 Pittsburgh Legal Journal (Oct. 28, 1891), p. 105; 48 Legal Intelligencer (Oct. 30, 1891), p. 440; 21 Insurance Law Journal, 24.

Practice-Conflicting Claimants-Parties-Judgment.-Defendant issued its policy to B on his stock of goods in Iowa. B sent the policy to plaintiffs in New York as collateral security to a loan made to him by them, but did not assign it in writing. The property was destroyed by fire, and B afterwards assigned it to one Kelly. Held, that in this action by the plaintiffs upon the policy Kelly was a necessary party, and the court erred in rendering a judgment restraining the payment of the loss to B or Kelly, and ordering the company to pay the loss to plaintiffs, Kelly not being a party to that action.

Mahr et al. v. Norwich Union Fire Ins. Co. (N. Y. C. A.), 40 New York State Reporter (Nov., 1891), p. 218.

Leading Article - The Term "Wholly Destroyed" as Applied and Used in Policies of Fire Insurance.-In this Article the writer discusses what is known as the “valued policy" laws under the heads (1) Such laws valid and enforcible. (2.) Form and specific character. (3.) Total loss not an equivalent, and (4.) The questions of values. 33 Central Law Journal (Oct. 23, 1891), p. 219.

Statute-Abatement of Action.-Under Acts 18th Gen. Assemb. Iowa, c. 211, 23, providing that no action on an insurance policy shall be begun within 90 days after notice of loss has been given, an action on a policy must fail, as being prematurely brought, if commenced before the expiration of the 90 days, though brought after the loss became payable by the terms of the policy, the policy providing that the loss should become due 60 days after notice.

Policy "Change in Title, Ownership or Possession"—Chattel Mortgage. A chattel mortgage given on insured personal property does not avoid a policy which contains a stipulation that any change in the title, ownership, or possession of the insured property shall avoid it. Taylor v. Merchants and Bankers Ins. Co. (Iowa S. C.), 49 Northwestern Reporter (Oct. 31, 1891), p. 994.

Practice Assignment of Error.—An assignment of error which states that the court excluded evidence offered to prove a certain fact, is sufficiently specific; and it need not show the name of the witness, and the questions the answers to which were excluded.

Policy-Payment of Premium-Loss Payable to Mortgagee.— An insurance policy was issued with the provision that the loss, if any, should be paid to the mortgagee of the property, and that it should not be of any effect until the premium was paid; and the policy was sent to the assured at his request, with directions to remit the premium. The assured sent the policy to the mortgagee, but never paid the premium, of which failure the mortgagee had no notice. Held, that the company was not estopped to set up such non-payment in an action by the mortgagee on the policy.

Union Bldg. Ass'n v. Rockford Ins. Co. (Iowa S. C.), 49 Northwestern Reporter (Nov. 7, 1891), p. 1032.

Statute-Company Doing Two Classes of Business-Levy of Execution.-Session Laws Kans., 1875, c. 111 (Comp. Laws 1879, c. 50a), provides that the business of each class of a mutual fire insurance company must be conducted separately from the other, and that in no case shall an assessment be made upon the premium notes of one class to pay the losses or expenses of the other. The statute provides also “that the goods, wares," etc., “contained in buildings used for merchandise, must be insured in the second, not the first, class. Held, that where one insures with knowledge of the above requirements, and the policy shows upon its face that it was issued as "class No. 2," a general judgment rendered upon such a policy can not be enforced against property expressly devoted to payment of losses on property of the first class; but may, however, be enforced against property of any other class. 26 Pac. 944, affirmed. Valentine, J., dissenting.

Same-Stay of Execution-Practice-Jurisdiction.-Where an execution against an insurance company is directed to the sheriff of another county, who attempts to levy on property which is exempt under Sess. Laws Kans. 1875, c. 111 (Comp. Laws 1879, c. 50a), the company, having its place of business in the same county, may apply to the court of that county to prevent the unlawful sale, and is not obliged to proceed in the court from which the execution issued.

On rehearing. For former opinions in this case see 14 Pac. 454, 25 Pac. 211, and 26 Pac. 944.

Naill et al. v. Kansas Farmers Fire Ins. Co. (Kan. S. C.), 27 Pacific Reporter (Nov. 12, 1891), p. 854.

Statute Cancellation.-Under Laws 1880, ch. 110, 23, providing that "any * * corporation transacting the business of fire * * * insurance in this state shall cancel any policy of insurance hereafter issued or renewed at any time by request of the party insured;" the sole requirement to set the command in motion is the request of the insured, and after that request is made the further continuance of the contract would be in contravention of the statute.

Request for Cancellation - When Complete.-Plaintiff's agent sent certain fire policies to the agent of the companies with a request that they be canceled on July 28. On July 30 the agent of the company, in response to a telegram, returned the policies to the plaintiff. On the night of July 29 the property was destroyed. It was not clearly shown, and the referee refused to find, that the policies reached the agent before the fire. Held, that the burden of proving the cancellation was on the companies, and, it not being shown that the request for cancellation reached the agent before the fire, the defense was not made out. Affirming 25 N. Y. St. Rep. 728. Reversing 26 N. Y. St. Rep. 983.

Crown Point Iron Co. v. Elna Ins. Co. and Five Others (N. Y. C. A.), 40 New York State Reporter (Nov., 1891), p. 426; 28 Northeastern Reporter (Nov. 20, 1891), p. 653; 14 Lawyers' Reports, Annotated, 147; 21 Insurance Law Journal, 31.

Policy-Change in Interest-Chattel Mortgage.—The execution of a chattel mortgage on partnership property by one of the partners to secure his individual debts works a change of "interest" in the property, within the meaning of a policy of insurance placed thereon by the partnership, which provides that the policy shall become void, if any change, other than by death of the insured, takes place in the "interest, title or possession" of the property insured.

Olney et al. v. German Ins. Co. (Mich. S. C.), 50 Northwestern Reporter (Nov. 14, 1891), p. 100; 13 Lawyers' Reports, Annotated, 684.

Premium Note-Notice of Maturity-Statute.-Laws Iowa, 1880, c. 210, provides for notice to an assured by the company of the maturity of his premium note, and declares that "such notice may be served either personally or by registered letter addressed to the assured at his postoffice address named in or on the policy, and no policy of insurance shall be suspended for non-payment of such amount until thirty days after such notice has been served." Held, that service is complete, and the thirty days begins to run, as soon as the letter is mailed as provided by law.

Ross V.

Hawkeye Ins. Co. (Iowa S. C.), 50 Northwestern Reporter (Nov. 14, 1891), p. 47; 21 Insurance Law Journal, 121.

Risk-Divisible Contract.-Where in a policy of insurance a separate valuation has been placed upon each subject of insurance, as $300 on the dwelling-house, $175 on household furniture, $75 on barn, $500 on horses, etc., the contract is severable, and not entire and indivisible.

Same-Same.--In such case the consideration for the insurance on the house might be stated in the policy as a separate item, so of the consideration of the household furniture, barn, horses, mules and colts, and the stating of the aggregate of these sums in the policy as the consideration, instead of the items separately, does not make the contract indivisible and entire.

Phenix Ins. Co. v. Grimes (Neb. S. C.), 50 Northwestern Reporter (Nov. 21, 1891), p. 168; 21 Insurance Law Journal, 9.

Policy-Appraisement of Loss.-A submission to appraisal of damages by fire provided that two persons named, with a third person to be appointed by them if necessary, should appraise and estimate the damage, which appraisement by them or any two of them should be binding on both parties. The two appraisers selected a third person to act with them, but made the appraisal alone. Held, that the position of such third person was that of umpire, who should act only when the arbitrators differed, and the fact that he was chosen before any difference had arisen did not deprive the others of their power to act without him, or vest in him all their authority.