sured, "and in default thereof within ten days" it became lawful for the latter to effect such insurance at the expense of the mortgagor. This was done under the circumstances related on July 20th and the insurance which Forbes had previously placed canceled. Forbes and the attorney testify that, according to their agreement and understanding, the insurance to be effected by defendant was to be for the same amount and protect the interest of both parties as provided in that for which it was substituted. Whether intentionally or inadvertently, the somewhat peculiar policy issued to defendant guardedly refrains from disclosing the owner of the property insured. Forbes' name is not mentioned in it, as owner or otherwise, and it is nowhere stated that defendant is owner or mortgagee or has any insurable interest in the property. Manifestly Forbes was not a party to the contract of insurance, and the insurance company could, as it did, refuse to recognize him. His only claim and remedy, if any, was against defendant for breach of contract in failing to insure his interest also in the property as plaintiffs allege it promised to do through its then agent and attorney.

The trial court charged that the two possible questions for them to consider were whether there was any such contract to insure Forbes' interest as alleged, and, contingent on the jury so finding, the damages sustained by reason of defendant's failure to comply with the contract; that if there was no such authorized contract plaintiffs could not recover, and it was not sufficient to show that such agreement was made between Forbes and the attorney, but it must appear that the latter had authority to make such agreement, "or, if he had no such authority, then it must appear that defendant, or some one acting for it, afterwards consented to the agreement and took out the policy to protect his interest as well as their own."

own.

In any aspect of the case we are of the opinion that the quoted portion of this charge was misleading. Plaintiffs base their claim on an alleged contract made with Forbes at Chippewa Lake in July, 1912, by defendant's authorized attorney that it would take out a policy of insurance which would protect Forbes' interest and a breach of that contract. At most, what is claimed to have been subsequently done or said by defendant sustaining that claim would be but evidence that the attorney was authorized to so contract. There is no evidence that defendant, or any one acting for it, afterwards consented to the agreement and took out a policy to protect Forbes' interest as well as their The grievance is that it neglected or refused to do so. Damages are claimed in this action because such a policy was not taken out. If the attorney was not authorized to make the contract when and as it is claimed he did, plaintiffs' case fails. Conceding as true Mrs. Forbes' testimony that in the fall of 1913 she asked Harry Rindge whether the policy protected them also if anything should occur, and he said that "the policy did so," which he denies, it could, at most, only sustain the claim that the original contract was known and authorized. Such an answer, if made, would in no sense operate of itself as a contract or create any binding obligation upon defendant. As claimed, it was but an erroneous answer to an inquiry as to an existing fact made without consideration.

If the contract as claimed was authoritatively made, defendant's contention that it was nevertheless conclusively and as a matter of law void in its entirety for want of consideration is not tenable. Forbes' stock and fixtures were then insured. An increase of the incumbrance upon them might, and apparently did, jeopardize this insurance, as the attorney suggested, and in the negotiations for increased security, protected by insurance for which Forbes was to pay,

procuring another policy similar and for the same amount could properly be made of mutual obligation and an inducing consideration of value, involving the interests of both parties. Neither was it necessarily void as changing the terms of a written contract by oral testimony, if as plaintiffs claim, the mortgage provided Forbes should keep the property insured, and if he failed to do so defendant could effect the insurance of its interest and hold him responsible for the premium. The alleged agreement is not contradictory of the mortgage, but an additional arrangement as to the manner of procuring the required insurance which it is claimed defendant undertook to do for Forbes at his expense.

Defendant was entitled to have its requests 12 and 15, or at least the substance of them, given to the jury. Shaw testified positively to telling Forbes in September that his name was not mentioned in this policy and he had no interest in it. Forbes claimed that he understood it was, and denied any recollection of Shaw advising him to the contrary. If he was in fact advised of the claimed breach of agreement by defendant to procure insurance for him a sufficient time before his last fire to have attended to it himself, it was his duty under the rule of avoidable consequences to do so, and in such case the measure of damages is not the loss resulting from a subsequent fire, but the value of the policy at the time the failure to insure is discovered. 2 Sedgwick on Damages (9th Ed.), § 623. In Brant v. Gallup, 111 Ill. 487 (53 Am. Rep. 638), which was an action for an alleged breach of an agreement to keep a building insured for a certain amount, the court approved an instruction in substance that, if the jury believed from the evidence that plaintiff had been informed a sufficient time before the fire that his building was inadequately insured, then it was his duty to have effected additional insurance, if he deemed

it necessary, and, failing to do so, he could not recover. The same rule as applied to life insurance was approved in Grindle v. Express Co., 67 Me. 317 (24 Am. Rep. 31), and in its varied application has been recognized more than once by this court. Haines v. Beach, 90 Mich. 563 (51 N. W. 644); HarringtonWiard Co. v. Manufacturing Co., 166 Mich. 276 (131 N. W. 559); Sauer v. Construction Co. 179 Mich. 618 (146 N. W. 422).

Aside from the more technical questions raised, an examination of the testimony of the respective parties as to the stock and fixtures on hand and their value at or about the time of the fire impels the conviction that defendant's motion to set aside the verdict because against the great weight of evidence is of much force. The burden of proof rested upon plaintiffs to show by a preponderance of evidence that the insured property destroyed by the fire in question exceeded in value the amount defendant collected from the insurance company. Forbes and his wife are the primary parties in interest, and the only witnesses whose testimony tended to support the verdict. With the books and records by which their testimony might be tested destroyed, they testified to goods with values in excess of the amount of the policy. A year and a half before this trial, and but a comparatively short time after the fire, Forbes was examined before the insurance commissioner, and was only able to furnish a list of the goods constituting his stock valued by him at less than $1,000, which more nearly approximates the appraisal of three experienced men who examined his stock near the time of the fire. Young, the salesman sent by defendant to investigate conditions just before the fire, was accompanied by his father, who resided at Big Rapids. They drove over to Chippewa Lake together on Sunday, November 2d, and examined Forbes' stock with a view to determining its value.

The elder Young was a man familiar with inventorying general stocks, having 28 years' experience in mercantile business. He had been in Forbes' place of business on previous occasions, once the preceding fall. He testified that the stock had diminished by half since that time, described its condition, and estimated a fair value of what remained there that day as not to exceed $1,000 for stock and fixtures. A business man named Tice, experienced in running a country store, who had learned Forbes' stock was for sale and examined it that fall not long before the fire with a view to purchasing it, testified that in his opinion it was not worth over $500.

Mrs. Forbes, who assisted her husband in the store, but was absent at the time of the fire, testified along the same lines as her husband to the amount and value of the stock consumed by the fire, and also told of the attorney visiting Chippewa Lake in July, 1912, when he secured a larger mortgage, to which she asserts she "objected very much," and proposed instead to pay him $400 which they then had in bank, but he was not agreeable to the proposal, and said it would be better for them to put the money in stock. Her testimony is yet more difficult to reconcile with established facts. Recalled for further cross-examination by defendant as to this version of the transaction, the attorney testified that he would have brought back the $400 if given a chance, that he did not remember being told they wanted to pay instead of increasing the mortgage, and would have remembered it if proposed, stating, in substance, that an offer to him of $400 under the attending circumstances would have resulted in a fatal shock.

Forbes began business in 1909, renting the store, which he afterwards bought for $800, and the fixtures, consisting of showcases, counters, shelving, drawers, desks, safe, scales, ice box, etc., which he