Same Same-Estoppel.-Such alleged award having been signed when it was incomplete because of the false assurance given by one of the adjusters, the other adjusters who were present, acting in concert with him, can not claim for their companies the benefit of the falsehood.

Herndon et al. v. Imperial Fire Ins. Co. (N. C. S. C.), 14 Southeastern Reporter (April 12, 1892), p. 742.

Complaint-Evidence-Immaterial Variance.-In an action on a fire insurance policy, which by its terms distributes the amount insured in certain sums on different articles, though the policy is an entire contract, and though the complaint alleges a total loss, plaintiff may recover the amount placed on some of the articles which are shown to have been totally destroyed, when other articles are not shown to have been destroyed, or where the action as to them is withdrawn, or may recover for a partial loss on any article.

Policy-Award and Arbitration-Condition Precedent.-Where a policy of fire insurance provides that, if any difference shall arise as to the amount of loss or damage, such difference shall, at the written request of either party, be submitted to arbitration, and the court holds that such action can not be maintained because as to a part of the articles insured and alleged to have been destroyed defendant demanded submission to arbitration, and the plaintiff had not complied with the demand, plaintiff may nevertheless maintain the action if he abandons it as to such articles.

Practice-Proof of Waiver-Amendment of Complaint.—Though, in an action on a fire insurance policy, where plaintiff relies on a waiver of some material requirement of the policy, he should allege the waiver in his pleadings, yet where, on the trial, he fails to prove sufficiently his compliance with some requirement that does not affect the substantial merits, he may then, for the first time, suggest and prove a waiver to help out his defective proofs, subject to the right of defendant, if surprised, to an allowance of a mistrial on just terms as to costs; or the court might allow an amendment of the pleadings.

Interrogatories to Jury-Failure to Answer-Harmless Error. -The failure of the jury to answer questions submitted to them by defendant does not affect the plaintiff's right to a recovery where the questions have become immaterial by reason of plaintiffs having abandoned the action as to the particular items embraced therein.

Pioneer Mfg. Co. v. Phœnix Assurance Co. (N. C. S. C.), 14 Southeastern Reporter (April 12, 1892), p. 731.

Adjustment of Loss-Fraud-Rescission.-The policy provided that it was to be void unless the interest of the assured was the entire, unconditional and sole ownership, or if the buildings stood on ground not

owned in fee simple by the assured; that no notice to, consent or agreement by any agent should bind the company unless the same was indorsed in writing upon the policy, and signed by such agent; also, that no agent had power to waive any of the conditions of the policy. The legal title was in plaintiff's son, who had made an agreement with his father whereby the latter was to occupy the property during life, and to keep it insured, in repair, and pay the taxes. This was known to the insuring agents, but a loss having occurred, the defendant's adjuster represented to plaintiff that the policy was void by reason of the breach of conditions as to title, and persuaded him to accept $400 in settlement, and to receive a draft for that amount, and cancel the policy. Thereafter plaintiff offered to return the draft, and demanded full payment of his loss, which was refused. Held, that the knowledge of the agent as to the title was imputable to the principal, and the statement by the adjuster that the policy was void for the reasons mentioned was fraudulent in law and deceitful, and the plaintiff was entitled to recover.

Same-Same-Same.-Plaintiff offered in his complaint to deliver up the draft, and upon the trial produced it in court, and by the decree it was to be deposited with the clerk, and delivered to the defendant or its agent. Held, sufficient tender and surrender.

Insurable Interest-Evidence.-Under the contract with his son plaintiff had agreed, among other things, to keep the property insured, and this agreement gave him a right to insure the buildings in his own name to their full value.

Waiver Knowledge of Agent.-Plaintiff informed the agent who issued the policy that his son, who lived in Chicago, had bought the property for him, and he was to have it as a home as long as he lived, and that he was to insure, etc. Held, that this fairly gave notice to the agent that he was not the owner, and that for its use he had agreed to insure it, and justified the finding that the conditions of the policy as to title were waived.

Same-Power of Agent.-The agents who issued the policy were general agents, having authority to make contracts without reference to the home office, and their power to waive conditions of the policy was co-existent with that of the company itself.

Berry v. American Central Ins. Co. (N. Y. C. A.), 43 New York State Reporter (April, 1892), p. 400; 30 Northeastern Reporter (April 8, 1892), p. 254; 21 Insurance Law Journal, 455; 45 Albany Law Journal, 402.

Insurable Interest-Evidence.—One who has agreed for a consideration to take possession of property and care for it, rent it and keep it insured, has an insurable interest in it, although he has no legal or equitable interest in the land.

Policy-Ownership-Estoppel.-The policy provided that it should be void if the assured was not the sole and unconditional owner of the

property, and the true title was not expressed in the policy. Plaintiff's son was the general agent of the defendant, and personally examined the buildings before the policy was issued, and knew they were vacant and unoccupied, and had notice of the nature of the title, and the policy described the plaintiff as trustee. No information was requested of plaintiff, and he made no representations to the agent, and as there was no claim of collusion, the defendant was bound by the contract even if it was deceived by the agent as to the condition or title of the property.

Cross v. National Fire Ins. Co. (N. Y. C. A.), 43 New York State Reporter (April, 1892), p. 482; 30 Northeastern Reporter (April 15, 1892), p. 390 · 21 Insurance Law Journal, 571.

Agency-Evidence.-Where in an action upon a policy of insurance, the person through whom the policy was procured testified that he acted for the insured, and the only evidence tending to show that he acted for the company is the fact that he procured the policy, and stated to the insured that he represented a number of reliable companies, it is error for the judge to assume in his charge that such person was the agent of the company.

Same-Broker as Agent-Notice of Encumbrance.-It is error to refuse to instruct the jury that, if they find from the evidence that the alleged agent was acting as an insurance broker at the time this application for insurance was made, and had not prior to that time been employed by that company in all matters appertaining to the procuring of that policy, he was the agent of the assured under said policy, and only the agent of the company for the purpose of delivering the policy and collecting the premium, and that notice to him that the property was mortgaged, or was situated on leased ground, would not be notice to the company.

Pleading-Practice-Waiver.-It is error to submit to the jury the question whether the insurance company waived the condition of the policy regarding incumbrances, where the plaintiff has not alleged such waiver in his pleadings.

Same Same Same.-Allegations in the petition that proofs of loss were made immediately after the fire under the supervision of the company's adjusters; that after the adjustment the adjusters informed the plaintiff that the company would not pay the loss; that the company never made any objection to the proof of loss until it filed its answer, and that the company thereby waived the filing of proof, are sufficient to justify submitting to the jury the question whether the company waived proof of loss, as provided for in the policy.

Policy-Building on Leased Ground-Instruction-Error.When the evidence tends to show that the building insured was on leased ground, and the policy expressly provides that it shall become void if

the insured building stand on leased ground, unless consent is endorsed thereon, and there is no such endorsement, it is error to charge that " as to the property being leased, the facts do not in law show such a lease as would affect the insurance policy."

Refusal to Pay-Waiver.-Where an adjuster representing the defendant adjusted the loss immediately after the fire, and then informed the insured that the company would not pay him, such a refusal constitutes a waiver of proofs of loss.

Interest on Loss-Instruction.-Where the policy calls for payment 60 days after proofs of loss, and the jury have been charged not to find for plaintiff unless there had been a waiver of proof by the company, a subsequent instruction that if the jury find for the plaintiff, they should calculate interest from 60 days after the fire, is not erroneous, as assuming the existence of the waiver, since the jury could not award interest under the instructions unless there had been such waiver; but such instruction is erroneous in failing to state that a cause of action would not accrue under the terms of the policy until after 60 days from the date of the waiver, and that interest would not begin until after an accrual of a cause of action.

East Texas Fire Ins. Co. v. Brown (Tex. S. C.), 18 Southwestern Reporter (March 28, 1892), p. 713.

Policy-Encumbrance-Construction.-A condition that a fire insurance policy shall become void if the assured shall encumber the premises without the consent of the company endorsed thereon, is not broken by the fact that the assured has allowed judgments to be entered against him, creating liens on the premises, provided that the total amount of encumbrance is no greater than when the insurance was effected.

Same-Foreclosure.-A condition avoiding the policy "if foreclosure suit shall have been or be hereafter begun, or if the title or possession be now or hereafter become in any way involved in litigation," is not broken by issue of a scire facias sur mortgage. The scire facias is not a technical foreclosure, and there was no alienation of title, or change of possession, and increase of risk, which is the gist of the reason for reference to foreclosure.

Same-Proof of Loss-Limit of Time for Filing-Waiver.--The policy provided that proof of loss should be given within thirty days from the time of the fire. After the fire the adjuster of the company called on the insured and offered to compromise, and left saying he would be back in a few days. Proofs were made 39 days after the fire, and retained by the company without objection until eighty-six days elapsed, when the affidavit of defense was filed herein. Held, (1) that by retaining the proofs for eighty-six days without objection the com

pany waived the objection as to the time when the same were filed; (2) that the company having denied liability on other grounds formal proofs were waived; and (3) that loss was a total loss upon buildings, and in such case the law is settled that formal proofs of loss are unnecessary.

Weiss v. American Fire Ins. Co. (Pa. S. C.), 1 Advance Reports (April 8, 1892), p. 494; 23 Atlantic Reporter, 991.

Receipt of Proof of Loss-Evidence-Jury.—Where proofs of loss were duly mailed by the assured, prepaid, and properly addressed to the insurance company, a presumption arises that they were received by the company, and, although one of the employes of the company, who had charge of its mail matter, testifies that he never received them, it is not error to submit the question of receipt to the jury.

Defects in Proof of Loss-Waiver.—If the insured, in good faith, and within the stipulated time, does what he plainly intends as a compliance with the conditions of his policy, in regard to furnishing proof of loss, good faith equally requires that the company will promptly notify him of its objections, so as to give him an opportunity to obviate them; and mere silence may so mislead him, to his disadvantage, to suppose the company satisfied, as to be of itself sufficient evidence of waiver by estoppel.

Whitmore v. Dwelling-House Ins. Co. (Pa. S. C.), 1 Advance Reports (April 22, 1892), p. 559; 23 Atlantic Reporter, 1131.

Attachment-Premature Action-Abatement.-Until proofs of loss are filed nothing is due to the holder of a policy of fire insurance, and an attachment issued and served upon the company by a creditor of such policy-holder before such time is ineffectual to create a lien on the claim.

Same-Jurisdiction.-A claim by a resident of this state against a domestic fire insurance company can not be attached in a foreign state by service on an agent of the company in that state.

Douglas v. Phenix Ins. Co. (N. Y. S. C.), 43 New York State Reporter (April, 1892), p. 309; 18 New York Supplement (April 21, 1892), p. 259.

Measure of Damage-Witness.-Where the defendant calls as a witness a carpenter and builder, who testifies to making measurements and estimate of the cost of re-building the property destroyed, and states the figures, it is not proper for the defendant to ask if he would be willing to rebuild at these figures, since what the witness is willing to do at the time of the trial is not a test of the amount of the loss.

Policy-"Unconditional and Sole Owner."-Where the pastor of a church, an ex officio trustee of the church corporation, on the foreclosure of a mortgage, buys the church edifice at public sale, with his own money, and enters into possession, and so continues, without objection