cure compensation, the values and conditions are overestimated and erroneously stated. The insured, having no knowledge of its legal effect upon the insurance to be effected, executes it; is perhaps told that "it is only a matter of form," necessary to secure the insurance, in other respects unimportant. The company, by its policy, protects itself against the fraud, but the insured has no protection. It has been held by many respectable courts, and frequently urged in argument, that the agent, in the appraisal of the property and filling up of the application, was not the agent of the insurer, but the agent of the insured, who was responsible for his misrepresentations, when in fact, if the agent of either, it must of necessity have been that of his employer, who had given him the power to act in its behalf, and whose interests should have been guarded by the agent. The truth is that a person occupying such a hybrid, amphibious position is not the agent of either, but working for himself, regardless of the interests of both. Against his fraudulent acts the company, which has placed it in his power to defraud others, is amply protected, while the insured, who gives him credit as an agent, has no protection whatever. The whole system of representation by solicitors is vicious, and should be abrogated by legislation or otherwise, and the principals made responsible for the acts of the agents within the seeming and apparent limits of their authority.

The law, under the circumstances of this case, makes it obligatory upon the party dealing with an agent to ascertain the extent of the authority conferred. If he fails to do so, it is at his own peril. On February 4, 1889, the insurance was effected. The following paragraph appears in the body of the policy: "If an application, survey, plan, statement, or description of the property hereby insured is referred to in this policy, such application, survey, plan, statement, or description shall be considered a part of this contract, and to be a warranty by the insured, whether the same be written by the insured or by some other person; and this policy shall become void in the event of any false representation by the insured of the condition, situation, or occupancy of the property, or of any omission to make known any facts material to the risk, or of any other valuation or any misrepresentation whatsoever, either in a written statement or otherwise. And the society shall not be bound under this policy by any act of or statement made to or by any agent or other person which is not authorized by this policy, or contained therein or in any written paper above mentioned." It appears that the firm of Perkins, Hart & Co. had previously insured the same property, through the solicitor Carleton, for about $11,000. Soon after the purchase by appellee and his associates, Carleton again applied to insure it. The evidence shows he personally made an examination, and estimated the

value of the property; informed Wich he could put $15,000 on it; filled the application himself, and Wich executed it. Perkins, Hart & Co. could only take, of the $15,000, $13,470, and obtained the balance, $1,530, through the office of Packard, Wilson & Piper, which is the matter in controversy. The application to Perkins, Hart & Co., as made by Carleton, was presented to agents of appellant by the other firm, but, being unsatisfactory in some respects, a new one was required. Here occurs a peculiar conflict in evidence in regard to the person who wrote and secured the second application, delivered the policy, and collected the premium. Wich testified that it was Carleton, and that he had never seen Shreeve until he saw him in court during the trial. Shreeve testified that he was a member of the firm of Packard & Co.; that he called upon Wich with the Carleton application, and required another; and that he filled up the application, executed by Wich, upon which the policy in this case was issued. It appears to have been a case of mistaken identity, and that the Carleton application was the basis of the second application, which was only changed in some particulars and secured by Shreeve.

It is contended upon the part of appellee that the application, being detached and not specially referred to in the policy, is not a part of the contract. It is true that in the reference to the application its date is omitted, but it is not shown that the application need be dated. It was in this instance, but the date was not inserted in the reference attached to the policy. Such omission is unimportant when the instrument is put in evidence and identified by both parties, nor is it necessary that the paper be attached. Contracts are frequently evidenced by two, three, or more individual papers, the relevancy and connection being established by parol proof, in the absence of which the attaching of the papers would not establish their identity.

A principal contention by counsel of appellee is that, by reason of the acts and participation of the agent and Shreeve in getting up the application, it is not the act of nor obligatory upon the appellee; in fact, that there was no such contract as is evidenced by the papers. Many authorities are cited that are supposed to sustain that position, the first being Insurance Co. v. Taylor, 14 Colo. 499, 24 Pac. 333. A slight examination of that case will show that there was no application signed by the insured. It was made, signed, and delivered by the agent, and the insured had no knowledge of or connection with it; hence there was no contract, and nothing contained in the pretended application was obligatory upon the insured. Very many courts of great respectability have as far as possible relieved applicants from the full effect of statements made in the application. The "iron-clad" provisions of policies issued, together with

the manner of securing insurance through irresponsible agents, for whose acts the employer ignores all responsibility, have compelled courts to carry the law to the extremest possible limit to guard the rights of the insured, and afford him indemnity. Consequently, many authorities may be found seemingly sustaining the contention of counsel; but a careful examination of them shows not one going to the extent of shielding the applicant in this case from responsibility under the circumstances as shown.

There is no claim that appellee was uneducated and illiterate; the reverse appears from his own evidence. Nor was there any attempt to show fraud or imposition in obtaining the paper. True, the paper was filled by the other party. It was unimportant who I did the clerical work. It was executed and adopted by appellee. If he failed, as he testifies, to read it, his failure to do so cannot be imputed to the other party. Immediately above the signature of appellee, at the bottom of the application, printed in clear type, appears the following: "The applicant hereby covenants and agrees to and with the said company that the foregoing is a just, full, and true exposure of all the facts and circumstances in regard to the property heretofore mentioned, and said answers and representations are considered the basis on which insurance is to be effected, and the same is understood as incorporated in and forming a part of the policy, and further covenants and agrees that if the situation or circumstances are changed, or risk increased, or property become incumbered in any manner or way, during the term of any policy or policies of insurance of this company insuring the said property, will notify the agent of this company forthwith of such alteration, increase of risk, or incumbrance, and hereby declare and acknowledge that this is the act and statement of the owner of said property, and warranty on part of assured, whether the answers have been written by the applicant in person or not." It was impossible that appellee could have executed the paper without seeing it. If he failed to read it, he should suffer the consequences of his own negligence. No man can shield himself from the obligation of a contract he has executed, by a willful or negligent refusal to read the paper he signs. The theory upon which courts proceed in allowing the acts of the agent to be put in evidence to avoid the seeming contract is, in effect, that the supposed warranties of the insured in the application were put in by fraud on the part of the agent; that the insured did not participate; hence there was no contract; and, in all cases when the circumstances will warrant, holding the principal responsible for the acts of the agent, by estoppel. This seems a plausible evasion of the rule that verbal testimony is not admissible to vary a written contract.

The courts most strongly sustaining the

contention of appellee are those of Iowa, Indiana, and Minnesota. In the former state, where the decisions are extreme, they are founded upon a statute of that state holding the company to greater responsibility for the acts of the soliciting agent. None others go to the extent supposed by counsel. Among those cited and relied upon there are some which, under the circumstances of this case, maintain the opposite doctrine; notably, Insurance Co. v. Rogers, 119 Ill. 474, 10 N. E. 242; Rogers v. Insurance Co., 121 Ind. 570, 23 N. E. 498; Pickel v. Insurance Co., 119 Ind. 291, 21 N. E. 898. Until there is legislation curing the vicious course of insurance through the employment of solicitors, whose acts are repudiated by their employers, it is far safer, while protecting the insured as far as possible against the frauds of the agent, to hold cases of the character of the one under consideration as contracts where, as in other contracts, each party is responsible for his own acts and undertakings. In 1 May, Ins. § 138 et seq., the questions here presented are elaborately discussed; but the statements of different conclusions from different courts are so confusing and conflicting as to be of slight aid to the examiner, until section 144g is reached, where the following clear and logical conclusion is stated: "There being no usage or special evidence to the contrary, the very fact that his signature to the paper is required is notice to him that the company does not rely upon the agent, but requires the applicant's own authority." Under the circumstances and the employment of solicitors, it is safe and proper to hold that the agent, in writing the answers of the applicant, is not doing the work of the company, but of the applicant, and that the company are no more responsible for it than if done by a stranger. A solicitor working for commissions comes nearer being a broker than an agent. Their interests are often adverse to the company, making false statements to secure commis. sions; nor can the assured avoid responsibility by neglecting to read the paper, when, by so doing, the misstatements could have been corrected. In the same section of May on Insurance (section 144g) it is said: "It seems clear that, if [the insurer] is honest and fair, it should not be held for an omission or error of a really substantial nature, whether made by the insured or by the agent, through mistake or otherwise, in filling up an application from his answers, and which the assured might have discovered if he had taken the trouble to read the statement he signed." There is no reason, in contracts of insurance, that a party should be, by law, relieved from the duty of exercising the same ordinary care and prudence that is required in every other business transaction. It is the duty of every man to read what he signs. His failure to do so will or should not relieve him or allow him to avoid the contract.

In Insurance Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. 837, the agent set down false answers, and the applicant signed the application without reading it. "The policy issued upon it was conditioned that the answers were part of it, and that no statement to the agent not thus transmitted should be binding on the principal. These conditions, conspicuously printed upon it, accompanied the policy." The policy was held void. The court said: "It was the duty of the applicant to read the application he signed. He knew that upon it the policy would be issued, if at all. It would introduce great confusion in all business transactions if a party making written proposals for a contract, with representations to induce its execution, could be allowed to show, after it had been obtained, that he did not know the contents of his proposals, and to enforce it, notwithstanding their falsity as to matters essential to its obligation and validity. Contracts could not be made or business fairly conducted if such a rule should prevail.". See Lewis v. Insurance Co., 39 Conn. 10; Ryan v. Insurance Co., 41 Conn. 168; Richardson v. Insurance Co., 46 Me. 394. In 1 Wood, Ins. § 150, it is said: "When the policy refers to the application or other papers connected with the risk, and adopts them as part of the contract of insurance, all the statements of the assured contained therein relative to the situation, use, care, or character of the property are warranties on his part, and must be strictly complied with, whether material to the risk or not." In Marshall v. Insurance Co., 27 N. H. 157, it is said: "The application in such cases must truly represent the risk, and must be true in all respects, whether material or not." In New York the same conclusions as above are stated as the law. See First Nat. Bank v. Insurance Co. of North America, 50 N. Y. 47; Leroy v. Insurance Co., 39 N. Y. 91, 45 N. Y. 80; Ripley v. Insurance Co., 39 N. Y. 136. See, also, Garcelon v. Insurance Co., 50 Me. 580; Battles v. Insurance Co., 41 Me. 208; Kelsey v. Insurance Co., 35 Conn. 225; Gahagan v. Insurance Co., 43 N. H. 176; Tebbetts v. Insurance Co., 1 Allen, 305; Draper v. Insurance Co., 2 Allen, 569; Brown v. Insurance Co., 11 Cush. 280; Bersche v. Insurance Co., 31 Mo. 555; Edwards v. Insurance Co., 74 Ill. 84. That such has been the line of decision in England, see Insurance Co. v. Macmorran, 3 Dow, 255; Bufe v. Turner, 2 Marsh. C. P. 46; Britton v. Insurance Co., 4 Fost. & F. 905; Macdonald v. Insurance Co., L. R. 9 Q. B. 328; Thompson v. Weems, 9 App. Cas. 671.

The testimony clearly establishes the fact that the title to the property was misstated to the insurers; the deed having been made by the grantor, McCandless, to appellee, Herman Ells, Gottlieb Hess, and Paul Voght. There was no such corporation or association as the Arkansas Valley Brewing Company to take title. (2) That in the application appellee stated the value of the insured property to

be $25,000, and such application contains the following clause: "The value of the property being fixed and warranted by applicant;" when in fact the greatest valuation warrantable, including betterments made by the owners, was less than $14,000, some $1,500 of which was not covered by insurance, showing overvaluation of 100 per cent., and insurance exceeding the entire value nearly $2,500. W. H. Runkle, the agent who purchased the property for Wich and others, testified in regard to its value at the time of purchase (December 12, 1888) as follows: "I made the investigation, and found that the building and real estate, machinery, fixtures, barn, and all other property, personal or real, belonging to said company, could be bought for $12,500." And he bought it at that price. After the purchase, he, as agent, expended in improvements and for necessary articles $1,126.95, making the whole amount $13,676.95. Appellee testified: "I lost $15,000 by the fire.

* I made improvements to the extent of about $1,600. * * [Runkle, the agent made it $1,126.95.] The $15,000 I spoke about represents the amount paid in running the brewery. The total amount I paid out of my pocket I do not know, as it was a losing business." He also testified that the notes of McCandless for the purchase of the property had not been paid at the time of the trial. According to the testimony of appellee and Runkle, it will be seen that the verdict and judgment not only covered the full value of the property, but the losses sustained in carrying on the business. (3) By a provision in the policy, it was to become void in case there was any change of title, unless the fact was communicated to the company. About the 15th of August the other parties conveyed their interests to appellee, and he became sole owner. The fact was not communicated. The property was destroyed by fire September 5th. In the application appellee stated the business was profitable. That it never had been profitable was shown by the testimony of appellee and others. It was also shown that business was suspended for a long time, and there had been no watchman, the reason being that the men were driven away by the ghost of some poor fellow that chose the place for the purpose of suicide.

The instructions given by the court, 1 to 7, both inclusive, are correct statements of the law, with the exception that in the second and third the court said: "If you find him [John Wich] the legal or equitable owner of the property," etc. There was no evidence whatever of equitable ownership. The title, as shown, was purely legal, vested, first, in the four, and later in appellee, as sole owner. To submit the question of equitable ownership was error. The ninth instruction is correct; a clear statement of the law of the case. The eighth, tenth, and eleventh were faulty, and at variance with others given, allowing the jury to relieve the appellee from the force or effect of his contract if they

found he signed it at the suggestion of the solicitor, and did not know what it contained, etc. The fourteenth was particularly faulty, in effect allowing the jury to find the entire title in appellee by virtue of some alleged verbal arrangement, whereby their title was to fail in the future on failure to pay their respective shares of the purchase. The judgment will be reversed, and cause remanded for a new trial. Reversed.

On Rehearing.

(March 14, 1895.)

PER CURIAM. The property covered by the policy on which this suit is based was insured in other companies for various sums. One of the policies was the subject-matter of another suit, which came to this court by appeal, and is reported in 2 Colo. App. 484, 31 Pac. 389. The apparent diversity in the opinion of the court in the two cases has been made the subject of much argument. Counsel also urged with apparent sincerity and unusual insistence two propositions which we regard as of vital consequence in the settlement of the issues. These things have moved the court to a practical reconsideration of the case, and have led us to supplement the principal opinion. To make the present discussion plain, a little fuller statement must be made of some of the elements of the case. The brewery property was bought on the 20th of December, 1888, from one James McCandless. The consideration was $12,150, of which $4,000 was paid in cash, and the balance by the notes of the purchasers. The abstract does not show how many notes were executed, nor the time for which they ran. They were made by John Wich, Herman Ells, Gottlieb Hess, and Paul Voght. The cash was paid by Wich. There is evidence tending to show that the proportionate interests of the respective parties were to be two-fifths to Wich, and one-fifth to each of the others. No cash was paid save by Wich. What, if at all, the others were of necessity to contribute, otherwise than as to these proportionate interests, is not clear. Some of the parties testified the contributions were to be in these stated proportions; while Wich says each was to put up $3,000, and to advance it within two months. There must be some mistake about this, because a contribution of $9,000 by the other three would be a larger sum than they were bound to pay, according to the testimony of the copartners. However this may be, the testimony is not as definite as it ought to be concerning the terms of the agreement. If these parties went in together to buy the brewery and run it on some antecedently settled plan, which is highly probable, they ought to be, and probably are, able to state the exact terms of the agreement, both in respect to the amount to be contributed by each, the time within which it was to be paid, and the conditions which were annexed to the contract.

Counsel complain that in the Equitable Co.'s Case, in 2 Colo. and 31 Pac., the court took a totally different view of the contract from the one now arrived at. The reason for this is very plain. The point on which that case turned respected the alleged equitable title of Wich. It was there insisted, as it is here, that, notwithstanding the apparent interest of Hess, Ells, and Voght, in reality the title was in Wich, who was the equitable owner of all the property, and therefore had an insurable interest to the extent of its entire value; and consequently there had been no breach of one of the conditions, to wit, that respecting the sole and unconditional ownership. There was some attempt to establish this on the former hearing, but the plaintiffs were nonsuited, on the theory that there had been a breach of this condition. This court held this specific issue should, under the testimony, have been submitted to the jury. The court did not go further than to decide this narrow question. We have examined the abstract in that case, and it contains nothing to indicate the real facts concerning the title as they are stated in the present record. It is manifest that on the 20th of December, 1888, whatever may have been the agreement between the copartners respecting the conditions on which the purchase was made, as they are at present disclosed, they acquired an undivided interest in the property by the deed from McCandless. Wich's contribution of the cash in no wise affected the legal rights of the other copartners. In legal effect, they paid a part of the consideration money when they executed their notes for the unpaid portion of the purchase price, and delivered them to the grantor. They became invested with both a legal and an equitable interest in the property. They proved no sort of an agreement inter se which would leave Wich the holder of the entire equitable interest, and the other three with none. It was not established that the other three were to pay the totality of their part of the purchase price, regardless of the notes, before they should be invested with an interest in the property. As between themselves, the copartners could only be called upon to advance their proportionate share of the capital paid for the conveyance and of what might be put in to start the business. Wich alone testifies that this contribution was to be paid within two months, or the nonpaying members were to have no interest. His evidence on this subject is not satisfactory, and is not in harmony with that of his copartners. They all agree they went into the enterprise, and were to advance their proportionate part of the necessary money, or else were to forfeit their claim. It appears to us that the tenor and exact terms of this condition ought to be shown. Any failure in this particular would resolve the legal question on which the plaintiff predicates his right to maintain the action against him.