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for that reason. The provision of the policy | ting it up as a defense.” We think an inon that point is as follows: “This policy, un- surance company which has issued its policy less otherwise provided by agreement in- with full notice of all the facts in the case, dorsed hereon or added hereto, shall be void and has received a party's money under cirif the subject of insurance be a manufactur- cumstances leading him to suppose he is ing establishment, and cease to be operated receiving indemnity, is estopped from refor more than ten consecutive days." It is pudiating the contract. Note 1 to Insurance also contended that said mill remained vacant Co. v. Lewis, 30 Mich. 41, contains a citation and unoccupied for a period of more than of numerous authorities illustrating the doc10 days, without the consent of the insurance trine of estoppel and waiver through the company indorsed on the policy, and was void acts of the agent of the insurance company. for that reason. The provision of the policy Waiver implies actual knowledge of some eson that point is as follows: “This entire sential or condition touching the liability of policy, unless otherwise provided by agree- the insurers. In the case at bar the agent ment indorsed hereon'or added hereto, shall of the insurance company had actual knowlbe void if a building herein described, wheth- edge of conditions which rendered the operaer intended for occupancy by owner or ten- tion of said mill impossible for several ant, be or become vacant or unoccupied, and months during the year; and we think it so remain for ten days." These contentions clear that this period of nonoperation was will be considered together.

incident to the use of the mill, and taken into The respondents contend that as the agents consideration by the insurance company of said insurance company knew that said when it issued said policy for a period covinill was run by water power, and also knew ering or including the time of such nonoperathat it could not be operated during cold tion of the policy, and the above-quoted conweather, and had not been operated during dition was waived. In Halpin v. Insurance certain months in each previous year, the Co., 118 N. Y. 165, 23 N. E. 482, the court above condition of the policy was waived; says, in discussing the nonoccupancy proin other words, that as the agent knew it vision in a policy of insurance: “Thus, as was an impossibility to operate said mill has been said, a policy on a church would during cold weather, he, having insured it not be deemed violated from nonoccupation on the 9th day of September, 1893, for one because it is only used on Sundays, nor year, and received the premium for that would a schoolhouse be deemed unoccupied period, had thereby waived the provision of during vacation, nor a manufactory during the policy first above quoted, and that as suspension of business, or on Sundays or said policy was issued with full knowledge holidays, or from breakage of machinery, by the insurance company of the facts that or from any other temporary cause, because had caused and must cause the operation of these periods of nonoccupation are incident said mill to cease for certain months during to the uses of the property, and in contemeach of the several years for which said in- plation of the parties to the contract. But surance company had insured said mill, by in this case there was a total and absolute renewals of the original policy, to hold, un- suspension of business. The tenants who der these facts, the policy void, would up- had used the property had moved away, hold the insurance company in perpetrating and the property was placed in the hands of a fraud upon the roller-mill company, and an agent for rent. The owner was seeking assist it in profiting by such fraud. In dis- for it new uses and new occupants." It is cussing the principle here involved, it is not contended that said mill building bestated in May on Insurance (volume 2, 8 came "vacant," but that it became "unoc497) as follows: "To deliver a policy with cupied" within the meaning of the term "unfull knowledge of facts upon which its valid- occupied," as used in said policy. No maity may be disputed, and then to insist upon chinery had been moved out of said build. these facts as a ground for avoidance, is to ing, but a certain feed mill had been moved attempt a fraud. This the courts will neither therein. A small amount of wheat and aid nor presume; and when the alternative bran was kept in said building from the is to find this, or to find that, in accordance time the mill was closed down, in Decemwith honesty and fair dealing, there was an ber, until the fire occurred, on May 10, 1894. intent to waive the known ground of avoid- No one had ever resided or slept in the mill, ance, they will choose the latter. Such an is- and no watchman was employed to look sue is tantamount to an assertion that the after it. N. C. Larsen, the president of the policy is valid at the time of delivery, and is roller-mill company, had charge of it, and a waiver of the known ground of invalidity. went to it, and into it at short intervals dur. * * * And any acts, declarations, or course ing the time it was not in operation. The of dealing after delivery by the insurers, owners were in the occupancy of the build. with a knowledge of the facts constituting a ing described in said policy. The building breach of a condition of the policy, recogniz- was not vacant or unoccupied. It contained ing the policy as still valid, and from which the machinery, in place, used for manufacthe insured might fairly infer that he is pro- ture of flour and feed, and was in the postected, will amount to a waiver of such session of, and under the control of, the breach, and estop the insurers from set- president of the roller-mill company.

It was

a flouring mill, complete, and in the posses- hereto, shall be void if, with the knowledge sion of its owners. The building itself was of the insured, foreclosure proceedings be constructed for the protection of the machin- commenced, or notice given of sale of any ery and temporary protection of the grain property covered by this policy by virtue of and the product manufactured therefrom. any mortgage or trust deed." As will be ob. It was not intended that the manufactured served, this provision provides that if, with product should remain in the building longer the knowledge of the insured, foreclosure than suited the owners' convenience; that proceedings be commenced, etc., the policy is, there is nothing in the policy prohibiting | shall be void. This was one of the defenses the removal of such product at such times set up by the appellant in this suit, and, in as the owners might desire. Except when order to make it available, it was incumbent in operation, there might be no necessity on appellant to establish that said foreclofor keeping stored there flour or wheat, and, sure suit was commenced with the knowlunder said policy, nothing was insured but edge of the insured. The record contains the building and machinery.

no evidence even tending to establish the It is contended by appellant that, to be fact that the insured had any knowledge vacant, the building would have to have whatever of the commencement of said fore. the machinery and everything moved out, closure suit until the summons was served but that it became unoccupied whenever it upon it. Under our law, a suit is comceased to be used in the manner in which it

menced by filing the complaint; and unless was ordinarily used. As the insurance com

the insured had knowledge that such company waived the provision of the policy plaint was going to be filed a sufficient which voided it on a cessation to operate length of time before it was filed to notify the mill for 10 consecutive days, it thereby the insurance company thereof, said requirewaived that particular occupancy of said ment was one of impossibility. Said provi. building which was necessary when the mill sion must receive a reasonable construction. was in operation. The policy prohibited the in case it requires construction, and not be operation of said mill after 10 o'clock at so construed as to require a party to give night, and did not require a watchman to be notice of a fact of which he has no informakept at or in the mill from that time until tion or knowledge. But said provision is too the following morning, or at all. The mill plain to require construction. It is that burned at about 11 o'clock at night. If it

“the policy shall be void if; with the knowl. had been in operation up to 10 o'clock of edge of the insured, a foreclosure proceeding that night, probably no one would have been be commenced.” Under this provision, if the present when it caught fire, for the reason insured has knowledge that a foreclosure that no one was required to remain in said proceeding is about to be brought, then he building during the night. We think the oc- is required to give notice to the insurance cupancy above shown satisfies the condition, company. Said forfeiture provision should and preserves the obligation, of said policy. not extend beyond the reasonable import of In Moody y. Insurance Co. (Obio Sup.) 38 the words used therein, and, as they include N. E. 1011, the court, in discussing the mean- the party insured only, it would be very maing of the term “occupancy,” as used in the terially extending it to include the party who insurance policy then under consideration, holds the policy as security for a debt due says: "Strictly construed, occupancy for any from the insured. lawful purpose would satisfy the condition The appellant contends that the answer of and preserve the obligation of the policy. the roller-mill company, in the foreclosure Nor does it follow that the dwelling house suit, set up as an offset against the mortis unoccupied merely because it has ceased gage sought to be foreclosed the negligence to be used as a family residence, when the of the First National Bank of Idaho for viohousehold goods remain ready for use, and lating said provision of the policy, in not it continues to be occupied by one or more notifying the insurance company of the com. members of the family for the purpose of mencement of said foreclosure proceeding, caring for it, and who do care for it." See and obtaining its consent to the bringing of Whitney y. Insurance Co., 72 N. Y. 117; In- said suit, indorsed on the policy in writing. surance Co. y. Smith, 3 Colo. 422; 17 Am. The fact that the First National Bank of Ida& Eng. Enc. Law, pp. 28-33; Williams v. ho was not a party to said insurance conInsurance Co., 24 Fed. 625; Albion Lead tract, and was not the party insured, and Works V. Williamsburg City Fire Ins. Co., therefore was not required to give notice to 2 Fed. 479; McMurray V. Insurance Co. said company of its intention to commence (Iowa) 54 N. W. 354.

foreclosure proceedings, must not be lost It is also contended that said policy be- sight of. In the answer referred to, it is came void by reason of foreclosure proceed- not shown that the insured had any knowlings having been commenced by the First edge of the commencement of said foreNational Bank of Idaho to foreclose the closure suit until after it had been begun. mortgage above referred to. The provision The forfeiture provision of the policy apof the policy upon that point is as follows: plies to the knowledge of the insured, and "This entire policy, unless otherwise provid- not to that of any other person. It is shown od by agreement indorsed hereon or added by the record that N. C. Larsen, the president

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of sald roller-mill company, did notify the (Utah) 37 Pac. 685. In that case the court agent of the insurance company of the com- says: “Many of the earlier decisions apmencement of said foreclosure suit within pear to hold parties rigidly to the terms of three or four days after the service of the the insurance contract. Upon examination summons in that suit, and several days be- of the more recent authorities, it seems clear fore the loss occurred; and fair dealing then that the rule of strict construction in regard demanded of the agent that he inform Lar- to the terms of the insurance policy has bee sen that his company would not consent to much relaxed; and the courts now hold that carry the risk longer, under said policy, and where the insurance company or its agent thus give Larsen opportunity to have pro- has been notified of additional insurance, or cured insurance elsewhere. The agent changes in the condition of the property, knew that Larsen had never seen said poli- and no objection has been made, the comcy, and knew nothing of its provisions. It pany will be estopped from insisting on a is a fact that the record contains the denial forfeiture because permission, in writing, of the agent that Larsen notified him of the was not indorsed on the policy. The agent commencement of the foreclosure suit, but who has power to enter into contracts of inwe infer that the jury accepted the evidence surance and issue policies may also waive of Larsen upon that point. It is further forfeitures.” There can be but one legitishown by the record that H. E. Miller, one mate purpose, but one purpose which is enof the stockholders in said roller-mill com- titled to recognition by the courts, for which pany, had talked with the agent of the insur- these multitudinous provisions are inserted, ance company, and had requested him to be and that is the protection of the insurer from very careful, and keep the mill amply in- liability from a greater hazard or risk than it sured, and stated to the agent that it was a is clearly evident that he intended to asmatter of much importance to him, for in sume; and as the case under consideration case the mill burned without insurance it does show that the insurer had full knowlwould ruin him; and the agent gave Miller edge of the conditions, and, with such knowlto understand that he would attend to it. edge, continued to carry the risks and receive Under all other facts of this case, good faith the premiums for a series of years, to permit and fair dealing required the agent of the him now to evade his liability would be a insurance company to notify Miller and the perversion of justice, and this we cannot do. roller-mill company if it intended to cancel We have carefully examined the errors asthe policy or hold it void for either of the signed by appellant's counsel, and the aucauses set up as a defense, for he knew of thorities cited in their support, and have the closing down of said mill months before reached the conclusion that judgment of the the loss, and of the bringing of said fore- court below should be affirmed, with costs in closure suit some two weeks before the loss. favor of respondents, and it is so ordered. He should have notified them of such intention, if he had it, so as to have given them MORGAN, C. J., and HUSTON, J., concur. opportunity to procure insurance elsewhere, if they desired so to do. We will not presume negligence' or cunning on the part of

(165 Cal. 514) the company, but that it acted in good faith,

MATTINGLY 1. PENNIE. (No. 14,967.) 1 and, with full knowledge, waived the provisions of the policy set up as a defense in

(Supreme Court of California. Jan. 5, 1895.) this suit. The object of the contract of in- APPEAL-LAW OF CASE-BROKERS - COMMISSIONS. surance is to secure to the assured indemni.

1. On appeal by plaintiff, a decision that ty from loss, for which he agrees to and does the evidence was sufficient, under the instrucpay a certain stipulated sum. While the in

tions actually given and not objected to by

him, to support a verdict in his faror had one surance contract cannot be strictly called a

been rendered, and reversing the lower court for unilateral contract, it is prepared by the in- an erroneous instruction given at defendant's surance company, and all of the conditions request, does not preclude defendant, on appeal

from a verdict against him rendered on the sec. are asserted and included by the insurer;

ond trial, from urging that the evidence, which and a complete knowledge of all the terms was substantially the same as on the first trial, and conditions are seldom read, and more was insufficient to justify a verdict for plainseldom understood and considered, by the in

tiff under the rules of law as they should have

been given to the jury, since defendant could sured. It is a fact verified by experience not, as appellee on the first appeal, assign error of all who have any knowledge of insurance, on the instructions given in plaintiff's favor. as now conducted, that after the insured has

2. Where no sale has been actually con

summated, a broker is not entitled to his comsigned the application he considers he has

missions, under a contract authorizing him to done all that is required of him, except the negotiate the sale of property at a specified payment of the premium. The responses in price, unless he shows that he found a purthe application are usually made largely up

chaser ready, able, and willing to buy on the

terms fixed, and either that he procured from on suggestions of the agent, and written

that person a valid contract binding him to down by him and signed by the applicant. purchase the property on those terms, or that This being the recognized method, it is, we

he brought the vendor and the proposed pur

chaser together, so that the vendor might have think, a conclusive argument in support of

secured such contract if he desired. the rule laid down in West v. Insurance Co. 3. The refusal of the vendor to carry out

i Rehearing denied.

that ceny

the contract, when informed of the agent's suc- instructions and other rulings of the court, cess in finding a purchaser on the terms fixed, and insufficiency of the evidence to justify does not excuse the agent from procuring from the proposed purchaser a binding contract, or

the verdict. Respondent contends that on the an offer from him directly to the vendor.

former appeal the question of the sufficiency 4. In an action by a stockbroker for his of the evidence to sustain a verdict for plaincommissions, evidence that the principal had re

tiff was decided in favor of plaintiff; that fused to make the sale on being handed a letter from the broker informing him that the

plaintiff's evidence was substantially the broker had sold the stock in London at the same on the last trial as on the first; and price agreed on, is not sufficient to show a re

that the decision on that point has become pudiation by the principal of the contract, which made the price payable in San Francis

the law of the case and precludes us from co, and not in London.

now considering the sufficiency of that evi5. Where the proposed purchaser admits dence.

The facts upon which this contention is fixed, his testimony that he was acting in behalf of a syndicate, and that he would have

based are these: On the former appeal plainbeen prepared, when the time arrived to com- tiff (then appellant) contended that a certain plete the purchase, to find the money required, instruction, given at the request of defenddoes not satisfactorily show his ability to buy. 6. Wnere plaintiff's case depends entirely

ant, was erroneous. In reply defendant (then on oral testimony as to transactions with his respondent) urged that the evidence would deceased principal, defendant's intestate, and not have supported a verdict for plaintiff even the testimony is such as to make direct contra

if the instruction in question had not been dictions impossible, a proper occasion does not exist for charging that plaintiff's oral admis given, and that, therefore, the alleged error sions inconsistent with his cause of action was without prejudice to plaintiff. In reshould be received with caution by the jury, sponse to that objection we said that, in our within the meaning of Code Civ. Proc. $ 2061, subd. 4, requiring this charge to be given on

opinion, plaintiff had produced testimony "proper occasions."

tending to sustain his side of the case, that 7. In an action for commissions alleged to no motion for nonsuit had been made, and have been earned by procuring a purchaser for

that the case was properly subrnitted to the certain stock, evidence that defendant placed the stock in the hands of a third person for de

jury for its determination as to the facts. livery to any purchaser whom plaintiff might The instruction in question was held erroneprocure under the contract is competent, in con- ous, and the judgment was reversed for that tradiction of evidence that defendant repudiated the contract.

reason alone.

It is settled beyond controversy that a deIn bank. Appeal from superior court, city

cision of this court on appeal, as to a quesand county of San Francisco; John Hunt,

tion of fact, does not become the law of the Judge.

But plaintiff contends that the quesAction by S. Mattingly against James C. Pennie, administrator of Thomas Blythe, de

tion thus presented of the insufficiency of the

evidence to support a verdict for plaintiff ceased, for commissions alleged to have been

was a question of law, and was the very fact earned under a contract authorizing plaintiff to sell certain mining stock of the deceased.

in judgment on that appeal. Assuming, with

out deciding, that that view is correct, we From a judgment for plaintiff, defendant ap

nevertheless of opinion that the point peals. Reversed.

now presented is not the same as that so supNaphtaly, Friedenrich & Ackerman and w. posed to have been decided on the former apH. H. Hart, for appellant. Edward J. Prin- peal, and that we are therefore now entitled gle and D. Wm. Douthitt, for respondent. to consider it without being concluded by the

former decision. We adhere to what was VAN FLEET, J. This is an action to re- said on that subject in Wixson v. Devine, so cover the sum of $125,000, commissions for Cal. 388, 22 Pac. 224, and will not extend the the sale of mining stocks. Plaintiff alleges application of the doctrine of the “law of the that by a written contract with Thomas H. case" beyond the cases in which it has hitherBlythe, defendant's intestate, he was author- to been held to apply. ized to negotiate a sale of said stocks for On the former appeal defendant was not $300,000, and was to receive as bis commis- entitled to dispute the correctness of the rulsion all that he could obtain for the stock ings of the court below, or of the theory on above that price; that he procured a pur- which the case had been submitted to the chaser at the net price of $125,000, who was jury. The verdict being in his favor, he ready, willing, and able to pay that sum for could not assign error; and, on plaintiff's the stock; and that Blythe refused to make appeal, we were bound to assume the corthe sale or convey the stock to the purchaser. rectness of the instructions given at plainThe cause was tried before a jury, and a ver- tiff's request. Those instructions, whether dict was rendered for the defendant. Plain- correct or otherwise, were binding upon the tiff appealed to this court, and the judgment jury; and plaintiff was entitled to a verdict was reversed, and the cause remanded for a in accordance with those instructions, if the new trial. Mattingly v. Roach, 84 Cal. 207, evidence warranted it. Emerson v. Santa 23 Pac. 1117. A second trial was had before Clara, 40 Cal. 513; Aguirre v. Alexander, a jury, which resulted in a verdict for the 58 Cal. 21, 30; Declez v. Save, 71 Cal. 552, plaintiff for the full amount claimed. The 12 Pac. 722. On that appeal, therefore, the defendant appeals, and assigns error in the only question which we could possibly con

case.

are

sider as to the sufficiency of the evidence the property on the terms fixed, and either was whether the evidence was sufficient, un- that he procured from that person a valid der the instructions actually given and not contract binding him to purchase the propobjected to by plaintiff, to have supported a erty upon those terms, or that he brought the verdict in his favor had one been rendered. vendor and the proposed purchaser together, On the present appeal defendant contends so that the vendor might have secured such that the theory on which the case was given contract if he desired. On no other terms to the jury, which was substantially the can he recover. Gunn v. Bank, 99 Cal. 319, same as at the first trial, was incorrect, and 33 Pac. 1105. The readiness and willingthat the instructions were contrary to law; ness of a person to purchase the property and that the evidence is insufficient to justi- can be shown only by an offer on his part fy a verdict for plaintiff, under the rules of to purchase; and unless he has actually enlaw as they should have been given to the tered into a contract binding him to purjury. It is evident that no such question chase, or has offered to the vendor, and not was or could have been considered or decid- merely to the broker, to enter into such a ed on the former appeal; and, if there are contract, he cannot be considered a “purany expressions in the former opinion which chaser." Such a contract, in this case, at first glance might appear to refer to that would be within the statute of frauds, and question, they must be confined in their ap- must be in writing (Code Civ. Proc. $ 1973, plication to the question then actually be- subd. 4; Civ. Code, § 1739), there being no fore the court. In addition to these consider- pretense that the purchaser had received ations, we are also of opinion that as to at any part of the stock or paid any part of the least one material point-the alleged repudi-price. The court should have instructed the ation of the contract by Blythethe evidence jury in accordance with these principles, is, as we shall show, materially different and the above instructions were erroneous. from that on the former trial. For these 2. It follows, also, from these principles reasons we think that we are at liberty to that the evidence did not justify the verconsider the points made by appellant with- dict. The evidence produced by plaintiff, out further reference to the former opinion. at the most, tended only to show that plain

1. At the request of the plaintiff, the court tiff, within the time limited, found a person gave the jury the following instruction: in London who offered verbally to purchase "The authority given to the plaintiff by Ex- the stock for $425,000 net; that plaintiff hibit B to sell the stock of the Blue Jacket communicated that fact to Blythe without Mining Company for a sum not less than in any way naming or pointing out the pur$300,000 did not authorize the plaintiff to ex- chaser; and that Blythe thereupon refused ecute, in the name of Thomas H. Blythe, to make the sale. No contract was obany written contract with a purchaser or to tained from the supposed purchaser which bind Blythe to a purchaser, but only to pro

could bind him in any way, nor was it cure a purchaser, and this might be done shown that Blythe was aware who he was verbally by bargain with the purchaser.” or did anything to prevent plaintiff from It is evident that the question of the power performing the condition of the contract. of plaintiff to bind Blythe by a contract of Counsel for plaintiff contend that the evisale of the stock does not arise in this case; dence shows that Blythe unequivocally reand this instruction, therefore, means, and fused to perform his contract; and they must have been understood by the jury to claim that, under section 1512 of the Civil mean, that plaintiff would fully perform the Code, his refusal to perform entitled plainconditions of his contract with Blythe, and tiff to all the benefits which he would have earn his commissions by merely obtaining obtained if the contract had been performed from a purchaser a verbal bargain to buy by both parties. Such is not the law. In the stock. The court also, at the request of some cases of bilateral contracts, a refusal plaintiff, gave the following instruction: on the part of one party to perform the con"If the jury believe that the plaintiff found tract has been held to amount to a prevena purchaser who was able, ready, and will- tion of performance by the other party. But ing to purchase and pay for the stock of where, as here, the contract is unilateral, the the Blue Jacket Mine at $500,000, or any party to whom the promise is made cannot sum above $300,000, before the 15th day of recover without proof of performance of the February, 1883, and informed Thomas H. condition upon which the promise depends; Blythe of the fact in season, so that a sale and in such cases a mere refusal by the could have been consummated before the promisor to perform, or even an entire repu15th day of February, 1883, and the said diation by him of the contract, does not, of Blythe refused to make a sale, then the itself, amount to prevention. In no event plaintiff is entitled to recover.” These in- could plaintiff become entitled to commis. structions do not correctly state the law. sions without procuring a purchaser in the In order to entitle a broker, under such a manner before pointed out.

If he had procontract, to recover commissions where no cured such a purchaser, Blythe's refusal to sale has actually been consummated, it is sell would not have strengthened plaiv tist's incumbent on him to prove that he found a case; as he did not procure one, and was purchaser ready, willing, and able to buy not prevented by any act of Blythe from

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