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v. Hotel Co., id. 80. See also Livesey v. Omaha Hotel Co., 5 Neb. 50. Hale v. Sanborn. Opinion by Maxwell, J.

[Decided May 29, 1884.]

MORTGAGE-CONDITION TO SAVE HARMLESS-SURETY -DAMAGE.-When the condition of a mortgage is to save the mortgagee harmless from the payment of a debt owing by the mortgagor, for which the mortgagee was surety, held, that no action could be maintained on the mortgage until the mortgagee has paid the debt or some portion thereof; that is, until actual damages had been sustained by him. This question was before the court in Gregory v. Hartley, 6 Neb. 356, and it was held that where a condition or promise is only to indemnify and save harmless a party from some consequence, no action can be maintained until actual damages have been sustained by the plaintiff. Stout v. Folger, 34 Iowa, 74; Lathrop v. Atwood, 21 Conn. 117; In re Negus, 7 Wend. 499; Thomas v. Allen, 1 Hill, 145; Churchill v. Hunt, 3 Denio, 321; Wilson v. Stilwell, 9 Ohio St. 467. The plaintiff was merely surety on the note. The debt was not his own, but that of McCoy. This principle is clearly recognized In re Negus, supra, and Douglass v. Clark, 14 Johns. 177. In the case last cited the condition of the bond was that "if the said Sylvester Clark, above bounden, shall well and truly pay off and discharge said bond, and save the said Zebulon harmless, and indemnified from the payment thereof, or any part thereof, and from all costs, damages and charges thence arising to said Zebulon, then the above-written obligation to be null and void," etc. The court say: "Whether this plea be good or not will depend upon what is deemed the true construction of the bond. If the defendant is to be considered as undertaking to pay off and discharge the recited bond, the plea is bad; but if it be considered a bond of indemnity to save the plaintiff harmless from all damages by reason of the recited bond, the plea is good. 1 Saund. 117, n. We are inclined to think the good sense and sound interpretation of the bond is according to the latter construction. ** * This construction is much strengthened by the circumstance that it appears in the recited bond that the defendant was not the person who was to pay the duties. They were due from Rice, with whom the defendant was bound." In Thomas v. Allen, 1 Hill, 145, it is said the bond in suit was more than a bond of indemnity, because it bound the defendant to pay off the plaintiff's debt, and the breach was well assigned by alleging that the obligor had not paid at the day. In that case it is said that Douglass V. Clark was silently overruled in Port v. Jackson, 17 Johns. 239. Forbes v. McCoy. Opinion by Maxwell, J. [Decided May 29, 1884.]

KANSAS SUPREME COURT ABSTRACT.* JANUARY TERM, 1884.

CARRIER-BAGGAGE LOSS.- Where the duly authorized agent of a railroad company receives personal property to be transported as baggage, the railroad company must account for such property as baggage, although in strict language it might not be baggage. Where personal property is received by a railroad company to be transported as baggage, and while it is in the possession of the railroad company, to be so transported, it is lost or stolen, held, that the railroad company is responsible to the owner thereof for its loss. Chicago, etc., Railroad Co. v. Conklin. Opinion by Valentine, J.

OFFICE AND OFFICER-FORFEITURE CUMULATIVE REMEDY-FAILURE TO PERFORM DUTY-PUBLIC SENTI

Appearing in 32 Kansas Reports.

MENT.—(1) If a county attorney neglects or refuses to perform any act which it is his duty to perform, or corruptly performs any such duty, he forfeits his office, and may be removed therefrom by a civil action, in the nature of a proceeding in quo warranto, in the Supreme Court. (2) A civil action instituted in the manner provided in the Code of Civil Procedure for the removal of a county attorney who neglects or refuses to perform any act which it is his duty to perform, or who corruptly performs any such duty, reaches only to the possession of his office and its emoluments. The criminal prosecution provided for in section 12 of the Prohibitory Act is an additional or cumulative remedy, and in addition to the forfeiture of office, subjects the guilty official, on conviction thereof in the District Court, to the infliction of a fine not exceeding $500. (3) Where a county attorney is charged with neglecting or refusing to perform an act which it is his duty to perform under the prohibitory law, or is charged with corruptly performing any such duty, in a civil action to remove him from office, it is not a good defense to answer that the people of his county are opposed to the prosecution of the violators of the law, and therefore in the exercise of his official discretion, he dismissed all cases of this class brought by him. (4) If a law enacted by the Legislature has not the support of public sentiment, this may be,under some circumstances, a reason for its amendment or repeal; but in a civil action brought against a county attorney to remove him from office for neglecting to perform his duties thereunder, it is not a good defense for his refusing to attempt its enforcement. State v. Foster. Opinion by Horton, C. J.

EVIDENCE-PAROL ΤΟ SHOW AGENCY.-After a written agreement is executed, it is competent to show by parol evidence that both of the contracting parties were agents for other persons, and acted as such agents in making the contract. This evidence in no way contradicts the written contract. Butler v. Kaulback, 8 Kans. 668; Wolfley v. Rising, 12 id. 535-538; Railway Co. v. Thatcher, 13 id. 564; Dykers v. Townsend, 24 N. Y. 61. Nutt v. Humphrey. Opinion by Horton, C. J.

CONSTITUTIONAL LAW-PUBLIC OFFICE-CHANGING SALARY-PROSPECTIVE STATUTE.-(1) A county office is not a contract, and the incumbent is not protected in it by the prohibition of the Federal Constitution against the impairment of the obligation of contracts. A county officer has no such vested interest in the salary as will prevent the Legislature from diminishing it during his term of office. Public offices in this State are mere agencies for the benefit of the peoplenot contracts on their part with the officeholder for his benefit. Therefore there is no contract, express or implied, between a public officer and the State or county whose agent he is. Officeholders have no agreement or contract that they shall receive any particular compensation for the term they hold office. Their terms are fixed with the view to public utility and convenience, and not for the purpose of granting the emoluments or salary during any fixed period to the officeholder. The Legislature may exercise its control by increasing or diminishing the salary or emoluments of an office, except in those special cases in which the Constitution has forbidden its exercise. State Const., art. 3, § 13. Except in those special cases, the Legislature has the absolute power over the compensation of all public officers. Therefore there was no contract, express or implied, between the plaintiffs and Rush county or the State of Kansas regarding the compensation of their officers, and the plaintiffs had no property in the future compensation attached to them. Conner v. Mayor of the City of New York, 5 N. Y. 285; Farwell v. City of Rockland, 62 Me. 296; State v.

Davis, 44 Mo. 129; Hyde v. State, 52 Miss. 665. (2) Where a law is enacted diminishing the salary of a county officer during his official term, and such diminution applies after the law takes effect, the law is prospective, and not retroactive. Harvey v. Comrs. of Rush County. Opinion by Horton, C. J.

RAILROAD-KILLING STOCK-FAILURE TO FENCE.Where a person pastures a bull over one year old on his own inclosed premises, through which a railroad is constructed and operated, and the railroad company has not inclosed its road with a fence, as required by the provisions of the railroad stock law of 1874 (Comp. Laws of 1879, ch. 84, art. 2, pp. 784, 785), and the bull is killed by the railroad company in the operation of its road, held, that the bull was not so running at large, within the meaning of section 38, article 5, of the act relating to stock (Comp. Laws of 1879, ch. 105), as to prevent the owner from recovering for its value under the provisions of said railroad stock law of 1874. And so held, although the railroad company may own the strip of land upon which its track is located, and where the animal was killed. This case in principle comes entirely within the principles announced in the case of the A. T. & S. F. R. Co. v. Riggs, 31 Kans. 622, except that in this case the railroad company alleged that it "owned" a strip of land upon which its track was located and where the bull was killed; while in the Riggs case the decision of the court was upon the theory that the railway company simply had an easement over the plaintiff's land where its track was located and where the animal in that case was killed. We do not think however that this difference between the two cases will require a difference between the two decisions. The bull in the present case was rightfully pasturing upon its owner's premises, and it strayed from there upon the defendant's premises simply because of the neglect and wrong on the part of the defendant in not inclosing its road with a lawful fence. In addition to the cases above cited, see the following cases: Cressey v. Northern Railroad, 59 N. H. 564, and cases there cited; S. C., 29 Alb. L. J. 392; Pittsburgh, etc., R. Co. v. Smith, 38 Ohio St. 410; S. C., 13 Am. & Eng. Rld. Cases, 579; B. & M. R. Co. v. Brinkman, 14 Neb. 70. Gooding v. Atcheson, etc., R. Co. Opinion by Valentine, J.

CONTRACT SPECIFIC PERFORMANCE -- STATUTE OF FRAUDS-UNCERTAINTY IN TERMS-AGENT SELLING TO

SELF. The plaintiff, James B. Fry, alleged in his petition in substance that the defendant, Alexander Platt, owned section 1, township 25, range 14, in Woodson county, Kansas, and that the defendant, through his duly authorized agent, Thomas M. Eads, sold the same to the plaintiff for the sum of $3,200, payable as follows: $50 cash down; $1,366.66% on the execution and delivery to the plaintiff of a good and sufficient warranty deed for the land; and the remainder in two equal payments as follows: $1,066.66% payable in one year from the date of the delivery of the deed, and $1,066.66% payable in two years from the delivery of the deed; the deferred payments to be secured by notes and mortgage on the real estate, to bear interest at the rate of 7 per cent per annum from date. The plaintiff further alleged in his petition that he paid the first payment of $50. On the trial it was shown that Thomas M. Eads was the agent of the defendant for the sale of said land; that the plaintiff paid Eads the $50; and that Eads executed and delivered to the plaintiff the following receipt, to-wit: "Yates Center, Kaus., June 13, 1883. Received of J. B. Fry $50, for part payment of purchase-money for section 1, township 25, range 14, Woodson county, Kans. T. M. Eads, agent for Alexander Platt." Held, that such receipt is not such a contract in writing within the statute of frauds as will authorize the specific enforcement of a

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contract on the part of the defendant to sell and convey to the plaintiff the above described laud, the receipt being indefinite and uncertain as to the consideration, and indefinite and uncertain in other particulars. Holmes v. Evans, 48 Miss. 247; S. C., 12 Am. Rep. 372; Minturn v. Baylis, 33 Cal. 129; McGuire v. Stevens, 2 Am. Rep. 649. Indeed such indefiniteness and uncertainty in the contract, where the statute of frauds requires that the contract should be in writing, would probably defeat any action upon the contract. Atwood v. Cobb, 26 Am. Dec. 657, 661 et seq., and especially 668, 669; Reid v. Kenworthy, 25 Kans. 701; Patmor v. Haggard, 78 Ill. 607; Riley v. Farnsworth, 116 Mass. 223; Jordan v. Deaton, 23 Ark. 704; Grafton v. Cummings, 99 U. S. 100. Neither can the present action be maintained, for the reason that the transaction would seem to be simply that of an agent selling his principal's property to his partner, and virtually to himself, without the knowledge or consent of his principal. 1 Pars. Cont. 87; 1 Wait Act. and Def. 245, 246 et seq., and cases there cited; Bain v. Brown, 56 N. Y. 285. Also with respect to certain essential elements and incidents inherent in or connected with the action of specific performance, see 3 Pameroy's Eq. Juris., § 1405, and cases there cited. Fry v. Platt. Opinion by Valentine, J.

MINNESOTA SUPREME COURT ABSTRACT

DAMAGES-MALPRACTICE-LOSS OF SERVICE-MENTAL ANXIETY.-In an action by a husband for damages resulting to himself from injuries to his wife caused by the malpractice of a physician, damages for loss of service which appears necessarily to result from the nature of the injury may be recovered as part of the general damages, without being specially pleaded. Damages for the mental anxiety or the injured feelings of a husband, father or master, if recov erable at all in such cases, are to be allowed by the jury as matter of aggravation, upon consideration of the facts and circumstances of the case, and not upon the statements of witnesses as to the amount of such damages. Stone v. Evans. Opinion by Vanderburgh, J.

[Decided June 30, 1884.]

NEGLIGENCE

EVIDENCE

CONTRIBUTORY NEGLI GENCE QUESTION FOR JURY.-Along and near a planing-mill, and within twenty feet of it, defendant laid a spur track for the purpose of loading and unloading lumber, etc., at the mill. A shed extended from the mill proper to within four feet of the track. There were several planers in the mill. The lumber was fed into the mill on the side way from the track, and passed through the planers at right angles and toward the track, and within a few feet of it. At each planer was employed a man who received the board as it came from it, carried it across the track to be piled up near the track convenient for shipment, and then returned for another board, the whole distance thus traversed being very short, and his employment requiring his crossing and recrossing the track constantly. The land on which the lumber was piled belonged to the defendant. The defendant knew of this mode of conducting the business, and this use of the land and track by the mill-owner was, with its consent and permission, express or implied. The planers made so much noise as to prevent a person from hearing an approaching car. This spur track was not used for the general and regular business of the road, but only to set in such cars as were needed to be loaded or unloaded at the mill or factory, and these were not set in at regular times, but only as occasion required, at irregular intervals. On the occasion of the accident

the deceased, one of the men employed in carrying the lumber from the planer across the track, had carried a board across to a pile about four feet from it, and set it down and turned around to go back to the mill for another board, when he was struck by defendant's car, which was being "kicked" in at an unusual rate of speed, without any warning to deceased. If deceased had looked up the track he could have seen the approaching car in time to have avoided the accident. Held, that under these facts the court could not say that the omission of the deceased to keep on the lookout for approaching cars was per se negligence. It was properly a question of fact for the jury to determine whether he ought to have kept on the outlook, or whether under the circumstances, he might not rely on being given timely warning of the approach of cars. See Kay v. Pennsylvania R. Co., 65 Penn. St. 269. Mark v. St. Paul, M. & M. R. Co. Opiniou by Mitchell, J.

[Decided June 12, 1884.]

DAMAGES-BREACH OF CONTRACT— WARRANTY.— A harvesting machine was sold to the defendants by plaintiff with warranty of its quality and capacity, and which he understood was purchased by them for actual use in harvesting a large crop of grain belonging to them. Held, that damages for injury to the grain from delay, while they were experimenting with the machine, and attempting to make it work, cannot fairly be considered such as would arise either naturally from the breach of the contract, or such as may reasonably be supposed to have been contemplated by the parties when making the contract as a probable result of the breach. Frohreich v. Gammon, 28 Minn. 477; McCormick v. Vanatta, 43 Iowa, 389; Hadley v. Baxendale, 9 Exch. 341. Wilson v. Reedy. Opinion by Vanderburgh, J.

[Decided June 30, 1884.]

OHIO SUPREME COURT ABSTRACT. JANUARY TERM, 1884.

MARRIAGE

SEPARATE

RATIFICATION -INDUCING FROM HUSBAND ACTION

WIFE TO EVIDENCE.

are

(1) While the parents of a married woman not liable in damages where they have encouraged her to separate from her husband, and supported her in such separation, in the honest belief that it was necessary for her protection, the appearances seeming to indicate such necessity, although in fact there was no ground for separation and no actual necessity for such protection; yet where the motive was not protection to the wife, but malice and ill-will toward the husband, an action may be maintained. Friend v. Thompson, Wright, 636, 639; Rabe v. Hanna, 5 Ohio, 530; Preston v. Bowers, supra; Schouler Hus. & W., § 64; Cooley Torts, 224. (2) A marriage entered into in this State when the wife is less than sixteen years of age becomes irrevocable by cohabitation at the time, and after she arrives at that age; and she may also ratify the marriage at that age in other ways, as by letters to her spouse, addressing him as her husband, and signing the letters by her Christian and his surname. Perry v. Lovejoy, 49 Mich. 529; Preston v. Bowers, 13 Ohio St. 1. (3) On the trial of an action against husband and wife for inducing the plaintiff's wife to abandon him, in which the illegal acts are charged to have been done by the female defendant, evidence of her acts is competent, even if such acts were unknown to the husband, and he had not encouraged her to commit them; and if a cause of action is proved, both are liable. (4) Evidence is also competent to show that the parents had, after such separation, knowingly encouraged her to associate with disreputable persons.

So letters written by the wife during such separation, in which she addresses him as her "dear husband," are competent to show the condition of her feelings toward him; and the husband is a competent witness to show that such letters are in the handwriting of his wife. Holtz v. Diek. Opinion by Okey, J.

GIFT -DEED DELIVERY AT GRANTOR'S DEATH. -A., having executed in due form a deed of gift of real estate to his son, said to B.: "Take this deed and keep it. If I get well I will call for it. If I don't, give it to Billy," the grautee. A. was then ill, and died within a few days thereafter of the same illness, and B. then handed the deed to the grantee, who caused it to be recorded. Held, that this did not constitute a delivery, and the instrument was invalid as a deed. B. was the agent of the grantor, and not of the grantee, and hence the instrument was not only revocable by the grantor at any time before his death, but not having parted with all dominion over it during life, it became on his death a mere nullity. Wellborn v. Weaver, 17 Ga. 267; Carey v. Dennis, 13 Md. 1; Hale v. Joslin, 134 Mass. 310; and see Phipps v. Hope, 16 Ohio St. 586; 1 Jar. Wills (by R. & T.), 33 et seq. In Crooks v. Crooks, 34 Ohio St. 610, it appeared that "the grantor, without reserving or intending to reserve any control over the instrument, delivered it to a third person to be by him delivered to the grantee at the death of the grantor," and "the depositary accepted the deed for the grantee, and at the death of the grantor delivered it to the grantee." This was held to constitute a delivery. That was upon the theory that the grantor had delivered the instrument as his deed, and that it took effect as of the date of the first delivery. The decision received the unanimous approval of this court in Ball v. Foreman, 37 Ohio St. 132. While this may be regarded as an exception to the rule as to deeds of this character, we regard the law as settled for this State as to any case fairly coming within these decisions. But neither of the cases was like this, and properly understood they are decisive against the validity of this deed. They were cases in which the grantors had parted absolutely with all dominion over the instruments, and there was no revocation or attempt to revoke. Here it was in terms stated by the grantor, that if he recovered he would call for the deed. As a deed of gift such an instrument was therefore a mere nullity, and required no revocation. Williams v. Schatz. Opinion by Okey, J.

STATUTE OF FRAUDS-BUILDING

SEVERED FROM LAND-PURCHASE-MONEY-RECOVERY.-The statute of frauds cannot defeat the recovery of the purchasemoney on a verbal contract for the sale of a dwellinghouse then annexed to real estate, but to be severed from the freehold and delivered on rollers, after the same has been so severed and delivered in accordance with the contract. Bostwick v. Leach, 3 Day, 476; Hallen v. Runder, Cromp. M.& R. 266; Curtiss v. . Hoyt, 19 Conn. 154; Shaw v. Carbrey, 13 Allen, 462; Hartwell v. Kelly, 117 Mass. 235, 237; Keyser v. District No. 8, 35 N. H. 477; Fortman v. Goepper, 14 Ohio St. 558; Wagner v. C. & T. R. Co., 22 id. 563, 576. Long v. White. Opinion per Curiam.

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served with process could not have been served, it was error to assess upun the stockholders served the whole amount of the indebtedness of the corporation. In an action of this kind all the owners of stock are necessary parties. Rev. Stat., § 3260; Wright v. McCormack, 17 Ohio St. 86; Umsted v. Buskirk, id. 113; Brown v. Hitchcock, 36 id. 667; Wheeler v. Faurot, 37 id. 26. (2) In such action it was error to give judgment for some of the stockholders releasing them from assessment, upon the finding that they did not own stock at the time the liability sought to be enforced accrued, without finding further that the stock held by these defendants had not been sold by the corporation prior to the time such liability accrued. Brown v. Hitchcock, 36 Ohio St. 667. Bonewitz v. Van Wert Co. Bank. Opinion by McCauley, J.

RECENT ENGLISH DECISIONS.

LIMITATION

STATUTE OF ACKNOWLEDGMENT.

An acknowledgment, in order to be sufficient to take a debt out of the statute of limitations, must be absolute and unconditional-not controlled by any other language in the document-and must contain words of such a character that there may reasonably be inferred therefrom a promise to pay the debt. The acknowledgment must not only be clear in itself in order to raise the implication of a promise, but must be accompanied with words which prevent the possibility of the implication; though an expression of less than a promise will not necessarily put an end to the implication. It is not enough for the writer of an acknowledgment to refer to a debt as being due from somebody, but the latter, on its fair construction as read by the light of surrounding circumstances, must be an admission that the writer himself owes the debt. A debtor wrote to his creditor, "I thank you for your very kind intentions to give up the rent of Tyn-ybwrwydd next Christmas, but I am happy to say at that time both principal and interest will have been paid in full." When this letter was written a property called Tyn-y-bwrwydd belonged to the debtor's wife for her separate use, and for some time the rents of the property had been retained by the creditor in part satisfaction of his debt. Held (reversing the decision of Pollock, B., 48 L. T. Rep. [N. S.] 479; 23 Ch. Div. 207), that the letter was not a sufficient acknowledgment to take the debt out of the statute of limitations. Morgan v. Rowlands, 26 L. T. Rep. (N. S.) 855; L. R., 7 Q. B. 493; 2 Eng. Rep. 611, comments on. Ct. of App., March 31, 1884. Green v. Humphreys. Opinions by Cotton, Bowen and Fry, L. JJ. (51 L. T. Rep. [N. S.] 42.) (See 35 Am. Rep. 416; 24 id. 460; 26 id. 709.) WILL-LEGACY-CHARGE ON REAL ESTATE-ADDIBY CODICIL.-The principle TIONAL LEGACY GIVEN that where a will contains a gift of legacies and residue, the legacies are (in the event of the personal estate proving insufficient for their payment) to be deemed to be charged upon the real estate applies in favor of an additional legacy given by a codicil to a

legatee named in the will. A testator, by his will, gave 300l. to his wife, and "all the residue of his property, of whatever description," to his sister. By a codicil he left to his wife "the sum of 700l., in addition to what he had already left her by his will." The personal estate proved insufficient for the payment of debts and legacies in full. Held, that the 7001., as well as the 300l., was charged on the real estate. Ch. Div., June 21, 1884. Matter of Hall. Opinion by Pearson, J. (51 L. T. Rep. [N. S.] 84.

VENDOR AND VENDEE-CONDITIONS OF SALE-RIGHT TO RESCIND.-A sale took place under a condition pro

viding that if the purchaser shall take any objection or make any requisition as to the title, evidence or commencement of title, conveyance or otherwise, which the vendor is unable or unwilling to remove or comply with, the vendor may by notice in writing delivered to the purchaser or his solicitor, and notwithstanding any intermediate negotiation, rescind the contract for sale. The purchasers made fourteen requisitions. The vendor answered them. The purchasers considered several of such answers insufficient, and insisted on the requisitions. The vendor gave notice that he rescinded the contract. The purchasers waived the requisitions, and on the vendor neglecting to complete the contract, applied by summons for a declaration that they were entitled to a conveyance of the property. Held, that the vendor had expressed his inability or unwillingness, but the purchasers had insisted on their requisitions; that "unwillingness" meant unwillingness to go to the trouble and expense of removing or complying with requisitions; and that the vendor had a right to rescind the contract at any time without giving his reasons. Ch. Div., June 13, 1884. Dames v. Wood. Opinion by Bacon, V. C. (51 L. T. Rep. [N. S.] 109.) GAMING-AGENT-IMPLIED AUTHORITY TO PAY BET. -Where a person authorizes another to bet for him in the agent's own name, an implied request to pay if the bet be lost is involved in that authority; and the moment the bet is made, and the obligation to pay it if lost incurred, the authority to pay becomes irrevocable in law, and it is immaterial that such obligation is not enforceable by process of law, if the non-fulfillment of it would entail serious inconvenience or loss upon the agent. So held by Bowen and Fry, L. JJ. (affirming judgment of Hawkins, J., reported 48 L. T. Rep. [N. S.] 74), Brett, M. R., dissenting. Ct. of App., May 30, 1884. Read v. Anderson. Opinions by Brett, M. R., Bowen and Fry, L. JJ. (51 L. T. Rep. [N. S.] 55.)

DAMAGES-PENALTY OR LIQUIDATED DAMAGES.—An agreement for sale contained the two following provisions: (9) As an earnest hereof the purchaser has this day paid into the hands of S. the sum of 500l. as a deposit, the deposit to form part of the purchasemoney to be paid on the day of possession; and (10) should either vendor or purchaser refuse or neglect to carry out the above arrangement on her or his part, the one so refusing or neglecting shall pay to the other the sum of 500l. as or in the nature of liquidated damages. The purchaser was unable to carry out his part of the agreement. The vendor brought this action for specific performance of the agreement, or in the alternative, payment of the 500l. as liquidated damages. It was contended that this 500l. was a penalty, and was therefore not recoverable. Held, that the meaning of the agreement was that the 500%. should be recoverable, not if some minute provision were not carried out, but if owing to the fault of either party, the agreement were not carried out at all, and that that sum could be recovered in this case as liquidated damages. Held, that it could also be recovered if the action were looked upon as an action to enforce the forfeiture of the deposit. High Ct. of Just., Ch. Div., May 21. Catton v. Bennett. Opinion by Kay, J. (51 L. T. Rep. [N. S.]70.)

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strument delivered simultaneously with the policy, and for the same consideration, the company agrees, after the payment of three annual premiums, to issue a paid-up policy for a proportionate amount on the surrender of the policy to the company "on or before it shall expire by the non-payment of the fourth or any subsequent annual premium," the stipulation and agreement should be read together as one contract, and the word "on" in the contract should be construed to mean the instant of the expiration of the policy. (2) In such a case the time of the surrender of the policy is of the essence of the contract, and the insured is not entitled to a paid-up policy on the surrender of the original policy after it has expired by nonpayment of a premium. This court, while always inclined to follow the decisions of the State courts, be cause it administers the law concurrently with them, yet is not bound by such decisions. 16 Pet. 45; 102 U. S. 14. The very able opinion in Montgomery v. Phoenix Mut. Life Ins. Co., 14 Bush, 54, is not sustained by the weight of authority, and we think it, as well as the opinion in the demurrer in this case, is to be criticised, because they apply to the rules of construction applicable to contracts for land, to the construction of an insurance contract. Courts in construing contracts may look to the subject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties to the contract possessed. Merriam v. United States, 107 U. S. 441. In this case the language, strictly construed, binds the company to issue a paid-up policy only "after the receipt of not less than three annual premiums; * and on the surrender of said policy to the company on or before it shall expire," etc. The right to a paid-up policy commenced only after the payment of the requisite number of annual premiums, and it was on condition that the policy was surrendered "on or before it shall expire" by reason of the non-payment of premiums. This was the time fixed within which the company was bound to issue a paid-up policy. The effect of the surrender may or may not have deprived the assured of the full insurance for the remainder of the year. In our view, it is not material to determine the effect of such a surrender; the important question is, has the agreement limited the time within which the surrender must be made? If we consider the subject-matter of this contract, and the circumstances under which this and other insurance companies do business, we feel constrained to give defendant a strict construction of this agreement, even though it may be hardship upon complainants, who are infants. The overwhelming weight of authority is against the court in Montgomery v. Phoenix Mut. Life Ins. Co. Most of these decisions have been delivered since that opinion, and some of them since the overruling of the demur

rer.

* *

See Attorney-General v. Continental Ins. Co., 93 N. Y. 74; Hudson v. Knickerbocker Life Ins. Co., 28 N. J. Eq. 168; Bussing's Ex'r v. Union Mut. Life Ins. Co., 34 Ohio St. 222; Universal Life Ins. Co. v. Whitehead, 58 Miss. 226; S. C., 38 Am. Rep. 322; Coffey v. Universal Life Ins. Co., 10 Biss. 354; Smith v. National Life Ins. Co., 13 Ins. L. J. 330. Sheerer v. Manhattan Life Ins. Co. Cir. Ct., D. Ky., July 15, 1884. Opinion by Barr, J. (20 Fed. Rep. 886.)

FIRE-VOID POLICY-CHANGE OF TITLE OF PROPERTY.-Where one of the provisions of an insurance policy given to a partnership is that "if the title of the property is transferred, incumbered or changed,

* *the policy shall be void," a dissolution of the partnership, and a sale by one partner to the other of his interest, is a change of title to the property, and will render the policy void. The case of Hoffman v. Etna Ins. Co., 32 N. Y. 405, is probably the leading case holding this doctrine. The policy in that case

provided that it should be null and void "if the said property shall be sold or conveyed." The policy was issued to a partnership, one member of which sold his interest in the property to his copartner before the loss, and it was held that this did not have the effect to avoid the policy. Another holding is followed in Dermani v. Insurance Co., 26 La. Ann. 69; Pierce v. Insurance Co., 50 N. H. 297; Burnett v. Insurance Co., 46 Ala. 11; West v. Insurance Co., 27 Ohio St. 1, in each of which cases the policy contained substantially the same provision. The conclusion we reach is also sustained by the following authorities: Keeler v. Niagara Fire Ins. Co., 16 Wis. 523; Hartford Fire Ins. Co. v. Ross, 23 Ind. 180; Dix v. Mercantile Ins. Co., 22 Ill. 272; Wood v. Rutland Ins. Co., 31 Vt. 552. Hathaway v. State Ins. Co. Sup. Ct. Iowa, July 22, 1884. Opinion by Reed, J. (20 N. W. Rep. 164.)

FIRE-OVERVALUATION-VERDICT NOT DISTURBED -"OTHER INSURANCE."- When under the terms of the policy, the assured will not gain any thing by an overvaluation, the evidence of a fraudulent intent in overvaluing the property should at least be of a satisfying character to warrant a court in disturbing a verdict for the assured. Bonham v. Iowa Cent. Ins. Co., 25 lowa, 328; Franklin Ins. Co. v. Vaughan, 92 U. S. 519; Williams v. Phoenix Fire Ins. Co., 61 Me. 67; Wood Ins., § 426; Dogge v. Northwestern Ins. Co., 49 Wis. 501. (2) If the policy contains a provision that it is to become void in case of other insurance being subsequently effected without the written consent of the first company, such company cannot escape liability thereby when the "other insurance" is void, and known and accepted by all parties as being void. Hubbard v. Hartford Fire Ins. Co., 33 Iowa, 325. Sup. Ct. Iowa, June 7, 1884. Behrens v. Germ. Fire Ins. Co. Opinion by Seevers, J. (19 N. W. Rep. 838.)

FIRE-CONDITIONS- FAILURE TO COMPLY-RECOVERY OF PREMIUMS-ACTION WITHIN A YEAR.-Where an insurance policy contains a condition that if the person assured is not the sole owner of the property the insurance company must be informed and the fact expressed in the written part of the policy, and that otherwise the policy is void, a failure to comply with the condition renders the policy void ab initio. Where money is paid upon an insurance policy with the expectation of receiving a return, and in good faith, the element of fraud not existing upon a failure of the consideration, the policy being void ab initio, the premiums paid may be recovered, and it is immaterial whether or not there has been a loss under the policy. Taylor v. Sumner, 4 Mass. 56; Richards v. Marine Ins. Co., 3 Johns. 307; Murray v. Columbian Ins. Co., 4 id. 443; Elbers v. U. S. Ins. Co., 16 id. 129; Delavigne v. Same, 1 Johns. Cas. 310; Murray v. Same, 2 id. 168; Robertson v. Same, id. 250; Holmes v. Same, id. 329; Jackson v. New York Ins. Co., id. 191; Forbes v. Church, 3 id. 159; Steinback v. Rhinelander, id. 269; Donath v. Ins. Co. of N.A.,4 Dall. 463; Clark v. Manfrs. Ins. Co., 2 Wood. & M. 473; Scriba v. Ins. Co. of N. A., 2 Wash. C. C. 107; Stevenson v. Snow, 3 Burr. 1237; Feise v. Parkinson, 4 Taunt. 640; Routh v. Thompson, 11 East, 428; Oom v. Bruce, 12 id. 225; Penson v. Lee, 2 Bos. & P. 330; Hentig v. Staniforth, 5 Maule & S. 122; Colby v. Hunter, 3 Car. & P. 7; May Ins., § 4; 4 Wait Act. & Def. 119. (2) Where a fire insurance policy contains a condition that no action shall be brought against the insurance company upon the policy unless within one year after a loss by fire, but the policy is void ab initio, held, that an action may be brought and maintained by the assured to recover the amount of premiums paid, even after one year from a loss by fire, the condition not applying to such an action. Taylor v. Sumner, 4 Mass. 56; Murray v. Columbian Ins. Co.,

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