Ill. 625, 54 Am. St. Rep. 486, 45 N. E. 563; Providence Life Ins. & Inv. Co. v. Baum, 29 Ind. 236. We are of the opinion that the complaint states a cause of action, and that the demurrer was erroneously sustained.

The judgment must therefore be reversed, with costs, and the cause remanded, with directions to the court below to overrule the demurrer and proceed in accordance herewith. It is so

ordered.

Baskin, C. J., and McCarty, J., concur.

Conditions in Policies of Insurance as to the time of giving notice of loss, accident, or death are construed reasonably and most strongly against the insured. If the condition is that the notice must be given immediately or forthwith, it is necessary only that due diligence be exercised and notice given within a reasonable time, regard being had to the circumstances surrounding the case: Woodmen Accident Assn. v. Pratt, 62 Neb. 673, 87 N. W. 546, 89 Am. St. Rep. 777, and cases cited in the cross-reference note thereto; Ward v. Maryland Casualty Co., 71 N. H. 262, 93 Am. St. Rep. 514, 51 Atl. 900; Horsfal v. Pacific Mut. Life Ins. Co., 32 Wash. 132, 98 Am. St. Rep. 846, 72 Pac. 1028. A condition requiring notice of death within ninety days does not defeat the claims of a beneficiary who does not know of the death until over a year thereafter, but who notifies the insurer at once upon acquiring the knowledge: McElroy v. Hancock etc. Ins. Co., 88 Md. 137, 71 Am. St. Rep. 400, 41 Atl. 112. See, in this connection, Matthews v. American Central Ins. Co., 154 N. Y. 449, 61 Am. St. Rep. 627, 48 N. E. 751.

HOGGAN v. CAHOON.

[26 Utah, 444, 73 Pac. 512.]

AGENCY-Tort of Agent-Indemnity from Principal-Pleading. If plaintiff alleges that defendant appointed him as his agent to take certain goods and transport them to a particular place, which he did without knowing that his act constituted a tort, and acting in good faith on the defendant's representation that such taking was lawful and proper, and that thereafter a third person recovered judgment against him for such act of taking, which judgment he was compelled to pay, together with expenses of litigation, and that defendant refused to reimburse him upon demand, his complaint states a cause of action, and is not subject to general demurrer on the ground that indemnity cannot be recovered between joint tort-feasors. (". 839.)

AGENCY-Tort of Agent-Indemnity from Principal.-If an agent acts in good faith for his principal under the latter's direction, relying upon his representations that the transaction is lawful, and it is not manifestly unlawful, the law implies indemnity from the principal to the agent, for damages of third persons, and if, as

the result of acts so performed, the agent is mulcted in damages, the principal must respond to the agent therefor, as well as for the necessary expenses incurred in resisting the claims of third persons 841.) who were injured in the transaction. (pp. 840,

AGENCY-Tort of Agent - Indemnity — Venue.-If a principal and agent reside in one county and the agent commits a tort in another county by there seizing property of a third person and bringing it into the county of the residence of his principal, under the latter's direction and acting on his representations and in good faith, such agent, in the event of being compelled to pay a judgment recovered by such third person, is entitled to bring an action to recover indemnity from his principal in the county where both agent and principal reside, and where the main facts of such cause of aetion arose. (p. 842.)

L. Larson, for the appellant.

W. K. Reid, for the respondent.

445 BARTCH, J. This action was commenced in the district court of Sanpete county on November 9, 1901, to recover from the defendant the sum of two hundred and ninety dollars and thirty-five cents and interest, alleged to be due on an implied contract of indemnity. It was alleged in the complaint, substantially, that on October 4, 1896, at Manti City, Sanpete county, Utah, the defendant constituted and appointed the plaintiff his agent specially to go to the city of Payson, Utah county, Utah, and take possession of, and bring to said Manti City, certain goods and chattels upon which the defendant held a chattel mortgage; that afterward on the fifth day of October, 1898, at said city of Payson, while he was acting in the capacity of agent for defendant as aforesaid, and at the special instance, request, and direction of defendant, the plaintiff took possession of said chattels and conveyed the same to said Manti City; that then, at Manti City, the defendant ratified the taking of the goods and chattels; that at the time they were so taken the plaintiff did not know that such taking was a tort, he acting in good faith as the agent of the defendant, and upon the faith of the representations and assurances of defendant that such taking was lawful and proper: that afterward one S. S. Johnson instituted suit against the plaintiff in the district court of Utah county, and on the second day of March, 1899, recovered judgment against the plaintif for the sum of three hundred dollars, besides costs of suit. amounting to thirteen dollars and ninety cents, all of which damages and costs were collected from him; that in addition thereto plaintiff was compelled to, and did, pay 446 fifty dollars to his attorney for defending him in that action, twelve

dollars reporter's fees, and forty-seven dollars for the transportation of the goods and chattels from the city of Payson to Manti City, all of which expenses were incident to said litigation; that the defendant had due notice of the pendency of the action, the rendition of the judgment, and the collection thereof from plaintiff; that the judgment and said expenses. and the payment thereof resulted from the taking of the goods and chattels; that the plaintiff and defendant were both domiciled in Manti City at the time of the institution of the agency, and at all times thereafter, up to and including the date upon which this suit was commenced; that plaintiff has at divers times demanded of defendant, at Manti City, payment of the damages and losses, and that the defendant every time, upon demand made, failed and refused to pay the same, or any part thereof, except one hundred and thirty-three dollars and fifty cents, and still does refuse and fail to pay the damages and losses, by means whereof plaintiff has been injured in the sum of two hundred and ninety dollars and thirty-five cents. For this sum judgment was demanded. To this complaint the defendant interposed a demurrer, as follows: "1. That this court has no jurisdiction of the subject matter of said action, in this: That, if any cause of action exists in favor of said plaintiff and against said defendant, that said cause of action arose in Utah county, state of Utah, and not in Sanpete county, or anywhere within the jurisdiction of this court; 2. That said complaint does not state facts sufficient to constitute a cause of action." Upon the hearing of the demurrer, the court decided against the plaintiff upon both grounds, and dismissed the action.

We will, in the first instance, consider the question whether the complaint states a cause of action. The appellant insists that facts sufficient are stated to constitute a case for indemnity, within the exceptions to the rule refusing indemnity between joint tort-feasors. For the purpose of this decision, the judgment appealed from having been rendered upon demurrer, the facts alleged in the complaint must be assumed to 447 be true. Therefrom it appears that the defendant appointed the plaintiff as his agent for the purpose of transacting certain specific business, which was to take into possession certain goods and chattels, and transport them to a particular place named. The agent proceeded to, and did, transact the business of the agency at the special instance and under the direction of his principal. and, although the goods and chattels were covered by a mort

gage held by the principal, the agent was not aware that the taking and carrying away of them as directed by the principal constituted a tort. He, as appears, acted in good faith, and upon the faith of the representations and assurances of the principal that such taking was lawful and proper. Thereafter a third person brought suit against the agent for the goods and chattels, and recovered judgment against him for a considerable sum, which sum the agent was compelled to, and did, pay, together with the expenses incurred in the defense of the suit. The principal was aware of that litigation and of the payment of the resulting judgment and expenses, but, upon demand made by the agent for reimbursement, refused to comply with the demand. While some of the allegations showing these facts may be subject to the criticism of being indefinite and uncertain, and might be vulnerable to a specific plea, we apprehend the ultimate facts are sufficiently alleged to withstand a general demurrer. If the allegations are in fact true, the plaintiff has a right of recovery. The facts stated are such as to characterize the case as an exception to the rule of law that tort-feasors or wrongdoers cannot have redress against each other. That rule applies to cases where he who seeks redress knew or must be presumed to have known that the transaction which resulted in the damages he was compelled to pay was tortious and unlawful. But where, as appears from the allegations in this case, an agent acts in good faith for his principal, under the principal's direction, and relies upon his representations that the transaction is lawful, and the same is not manifestly 448 unlawful, the law implies indemnity, for damages of third parties, to the agent from the principal; and if, as the result of acts so performed, the agent is mulcted in damages, the principal must respond to the agent for the same, as well as for the necessary expenses incurred in resisting the claims of third parties who were injured by the transaction. "The agent has the right to assume that the principal will not call upon him to perform any duty which would render him liable in damages to third persons. Having no personal iLterest in the act, other than the performance of his duty, the agent should not be required to suffer loss from the doing of an act apparently lawful in itself, and which he has undertaken to do by the direction and for the benefit and advantage of his principal. If in the performance of such an act, therefore, the agent invades the rights of third persons, and incurs liability to them, the loss should fall rather upon him for whose benefit and

by whose direction it was done, than upon him whose only intention was to do his duty to his principal. Wherever, then, the agent is called upon by his principal to do an act which is not manifestly illegal, and which he does not know to be wrong, the law implies a promise on the part of the principal to indemnify the agent for such losses and damages as flow directly and immediately from the execution of the agency. Thus an agent is entitled to be indemnified when he is compelled to pay damages for taking personal property by direction of his principal, which, though claimed adversely by another, he has reasonable ground to believe to belong to his principal": Mechem on Agency, sec. 653. In Story on Agency, section 339, the author says: "It may be stated, as a general principle of law, that an agent who commits a trespass or other wrong to the property of a third person by the direction of his principal, if at the time he has no knowledge or suspicion that it is such a trespass or wrong, but acts bona fide, will be entitled to a reimbursement and contribution from his principal for all the damages which he sustains thereby. 449 For, although the general doctrine of the common law is that there can be no reimbursement or contribution among wrongdoers, whether they are principals or are agents, yet that doctine is to be received with the qualification that the parties know at the time that it is a wrong. And in all these cases there is no difference whether there be a promise of indemnity or not, for the law will not enforce a contract of indemnity against a known and meditated wrong; and, on the other hand, where the agent acts innocently and without notice of the wrong, the law will imply a promise on the part of the principal to indemnify him. The same doctrine applies to all other cases of losses or damages sustained by an agent in the course of the business of his agency, if they are incurred without any negligence or default on his own part." In Jacobs v. Pollard, 10 Cush. 287, 57 Am. Dec. 105, Mr. Justice Bigelow said: "It is undoubtedly the policy of the law to discountenance all actions in which a party seeks to enforce a demand originating in a willful breach or violation on his part of the legal rights of others. Courts of law will not lend their aid to those who found their claims upon an illegal transaction. No one can be permitted to relieve himself from the consequences of having intentionally committed an unlawful act by seeking an indemnity or contribution from those with whom or by whose authority such unlawful act was committed. But justice and sound policy, upon