Agency should give such party a rating or report, and such rating or report is sufficient to be covered by the system of this company, then and in that case the said L. A. Shakman & Co. may use Bradstreet's Mercantile Agency as a basis for such party. This special permission to take effect November 13, 1889." The plaintiff testified that he read the letter, but not the slip, and paid no attention to it, though he did not return it. The finding of the trial court was in favor of the plaintiff with respect to all disputed questions of fact, and that he had suffered losses covered by the contract amounting to two thousand eight hundred and fifty-six dollars and seventy-five cents, for which judgment was entered in favor of the plaintiff, and the defendant appealed.

Winkler, Flanders, Bottum & Vilas, for the appellant.

Bloodgood, Bloodgood & Kemper and W. J. Turner, for the respondent.

374 WINSLOW, J. We regard the contract before us as unquestionably a contract of insurance. An insurance contract is a contract whereby one party agrees to wholly or partially indemnify another for loss or damage which he may suffer from a specified peril. The peril of loss by the insolvency of customers is just as definite and real a peril to a merchant or manufacturer as the peril of loss by accident, fire, lightning, or tornado, and is, in fact, much more frequent. No reason is perceived why a contract of indemnification against this ever-present peril is not just as legitimately a contract of insurance as a contract which indemnifies against the more familiar, but less frequent, peril by fire. This very contract has been (sub silentio) construed as a policy of insurance by the supreme court of New Jersey: Robertson v. United States etc. Co., 57 N. J. L. 12.

The contract being, then, a contract of insurance, and the defendant's business being the making of such contracts, it follows that the defendant is an insurance corporation, within the meaning of sections 1977, 1978 of the Revised Statutes. Langsdorf was its agent for the purpose of soliciting insurance, transmitting applications, and collecting premiums, and received pay therefor. He was, consequently, under section 1977 of the Revised Statutes, its agent for all intents and purposes, and had power to make the additional agreement contained in the indorsement dated November 8th: Renier v. Dwelling House Ins. Co., 74 Wis. 89. The court has found, on ample evidence, that he did make that agreement, and the fact is, therefore, 375 settled. It is, then, a fact in the case that a complete contract of

insurance was made, on or about November 8th, by the terms of which the plaintiff was to have the right to use the Bradstreet's ratings in case a given customer was given no rating by Dun.

But it is said that the memorandum sent to the plaintiff November 26th, which permitted the use of Bradstreet's reports only after November 13, 1889, became effective and binding by reason of the plaintiff's receiving it and failing to object thereto. We are unable to agree with this contention. The agreement of November 8th, being perfect, the letter and inclosed memorandum of November 26th could, at the most, amount to nothing more than a proposal to change the terms of the existing contract. This the plaintiff could do or not, as he chose; but it cannot be said that he did so unless he expressly agreed to the change, or unless his silence was legally equivalent to an express consent to the proposed change. There was no express agreement to make the change, nor do we think that the simple failure to answer the proposal should be construed as such an agreement, in the absence of all evidence showing that the defendant was influenced in its conduct by plaintiff's silence. An agreement inferred from silence must, in such case, rest on the principle of estoppel; and one essential element of estoppel is lacking here, namely, a change of position on the part of the defendant, relying on the plaintiff's silence, which would result in substantial injury to the defendant were it not permitted to rely on the estoppel. The conclusion necessarily is, that the contract which became perfected, November 8th, with the Langsdorf indorsement, became the contract governing the rights of the parties.

Another question now arises upon the construction to be given to the Langsdorf indorsement. It will be noticed that the policy, though dated October 23, 1889, in terms 376 covers the period of one year commencing on the 1st of July, 1889, and that it insures against losses accruing for merchandise sold and delivered during that period. Thus, the contract covers several months' business transactions previous to its date. It appears in evidence that a considerable number of the losses for which the plaintiff has recovered judgment were suffered between July 1, 1889, and the delivery of the contract, and that these losses arose from credits given to parties who had no credit rating in Dun's reports, but did have such rating in Bradstreet's reports. It is now contended that the Langsdorf indorsement is purely prospective in its operation, and only insures losses occurring after November 8th; so that, for the losses occurring before that date, covered by Bradstreet's reports only, there can be no recovery.

The indorsement reads: "Should any party to whom abovenamed firm may sell goods not be rated, within the system of this company, at Dun's Mercantile Agency," etc. The argument cannot prevail. This indorsement is part of the whole contract. It must be read in connection with all the other provisions of the contract, and as though it were incorporated in the contract at the proper place. So read, there can be no doubt that the contract refers to all goods sold and credits given between July, 1889, and July, 1890, and that the right to use the Bradstreet ratings in the proper cases was intended to be as broad in its terms as to time as the right to use the Dun ratings.

Subdivision 2 of the terms and conditions of the policy provides that, in calculating "losses, no credit that may have been given shall be included therein exceeding a credit of thirty per cent on the lowest capital rating such party or parties were rated at in said Mercantile Agency's books or reports." In a number of instances of losses, the plaintiff had given the insolvent debtors a larger credit than thirty per cent of their lowest capital rating. The court allowed, in such cases, thirty per cent of such rating, and disallowed 377 the excess. It is claimed by appellant that the clause means that the entire credit is to be excluded, and not simply the excess above thirty per cent of the rating. This is purely a matter of construction of language, and our construction agrees with that of the trial court, namely, that it is only that part of the credit exceeding thirty per cent of the rating which is to be excluded.

It is claimed that a loss of three hundred dollars suffered by the failure of one Simansky was improperly allowed. It appears that Simansky's name appears in Dun's reports with the notation "Blank 3"; that is, no capital rating, and credit "fair." In Bradstreet's reports, however, he appears rated "X D," which means one thousand dollars to two thousand dollars capital, credit fair. It seems to us that this loss was properly allowed. Simansky had no capital rating in Dun's reports. The system of the defendant required both a capital and a credit rating. This was, therefore, a case clearly within the Langsdorf indorsement, where the party was not “rated, within the system of the company, at Dun's Agency," and was so rated in Bradstreet's Agency.

This case was tried and submitted to the court February 20, 1894, and taken under advisement by the court, and held under advisement until October of the same year. The original findings were signed and filed October 2d, and, on motion of defendant, were amended in some particulars on the twenty-seventh

day of October, on which day the appellant's attorneys made proof to the court that, on the second day of October, the court of chancery of New Jersey had by decree declared that the defendant had ceased to be a corporation and had forfeited its franchises and rights under the laws of New Jersey, and appellant's attorneys objected to the entry of judgment for that reason. Thereupon the court ordered the findings to be dated and filed as of March 3d, so as to bring them within the term at which the case was tried, and also rendered judgment nunc pro tunc as of that day. This was right. 378 The action was upon contract. Where such an action has been fully tried and submitted and taken under advisement by the court, and, pending the decision, a party dies, the court will not allow the action to abate, but will enter judgment as of the time when the action. was submitted. The judgment forfeiting the franchises of the corporation could amount to nothing more than the death of an individual: 1 Black on Judgments, sec. 127; Mitchell v. Overman, 103 U. S. 62.

By the Court. Judgment affirmed.

INSURANCE-WHAT IS A CONTRACT OF.-A contract of insurance is an agreement by which one person, for a consideration, promises to pay money or its equivalent, or to do some act of value to the insured, upon the destruction or injury of something in which he has an interest: Claflin v. United States Credit System Co., 165 Mass. 501; 52 Am. St. Rep. 528.

ESTOPPEL BY SILENCE.-If a man is silent when he ought to speak, equity will debar him from speaking when conscience requires him to be silent: Phillips v. Clark, 4 Met. 348; 83 Am. Dec. 471. The silence of a party having full knowledge of his own rights, so as to intentionally permit others to be deceived and misled in relation to them, will conclude him from afterward interposing his claim to the prejudice of the party thus deceived or misled: Titus v. Morse, 40 Me. 348; 63 Am. Dec. 665, and note. See on this subject the notes to Cook v. Walling, 10 Am. St. Rep. 22; Marines v. Goblet, 17 Am. St. Rep. 24, and the extended note to Ward v. Williams, 79 Am. Dec. 387-389.

THE INSURANCE OF MERCANTILE CREDITS OR ACCOUNTS is discussed in the case of Claflin v. United States Credit System Co., 165 Mass. 501; 52 Am. St. Rep. 528.

HAYES V. DOUGLAS COUNTY.

[92 WISCONSIN, 429.]

TAXES, RELIEF AGAINST IN EQUITY.-Though the manner of levying a tax is so irregular as to render it void, still, unless the tax is excessive or unequal or unjust, so as to affect its substantial justice, equity will not interfere to declare it invalid or to enjoin its enforcement.

ASSESSMENT BY FRONTAGE.-If the cost of a street improvement is directed by statute to be assessed against the lots chargeable therewith, in proportion to the benefit secured thereto, an assessment according to the frontage rule, and without any actual view or consideration by the officers making the assessment of the benefits actually accruing to each parcel by reason of the improvement, is invalid.

AN ASSESSMENT BY THE FRONTAGE RULE is presumed to be erroneous and invalid, when the property is required to be assessed according to the benefits accruing to it. This presumption can only be rebutted by proving that the board or officers authorized to make the assessment considered and passed upon all questions made material by the statute, and thereby reached a conclusion that the assessment computed by the frontage rule will, as to each parcel assessed, represent its proportion of the benefits accruing thereto.

ASSESSMENTS. WHILE MERE ERRORS OF JUDGMENT do not invalidate an assessment, it must appear to be a fair attempt at compliance with the statute, and an assessment made in entire disregard of the statute is presumed to be unequal, and to justify the interference of a court of equity to prevent its enforcement.

ASSESSMENT NOT INCLUDING ALL THE PROPERTY BENEFITED.-Where an assessment is made by law chargeable to the lots and parcels benefited thereby, and officers are authorized to ascertain and determine what parcels are benefited by a proposed improvement, such officers should include in the assessment district all the lands which, in their judgment, fairly exercised, would be benefited; and if, instead of so doing, they impose an assessment only on the lands directly fronting upon the improvement, others being also benefited thereby, the assessment is unequal and invalid.

EQUITY.-AN ASSESSMENT MAY BE ENJOINED THOUGH THERE IS NO OFFER to pay such part as may be rightfully due from the complainant, where such assessment is shown to be unequal and to be imposed upon a part only of the property rightfully subject thereto.

DUE PROCESS OF LAW.-A statute providing that no action shall be maintained to avoid any special assessment levied pursuant thereto for which improvement bonds have been issued, and making such bonds conclusive proof of the regularity of all proceedings upon which they are based, is an attempt to deprive property owners of due process of law, where no actual notice is provided for, and the time within which they may bring an action may expire before they have any notice of the proceeding by which their property is sought to be made answerable for the supposed charges against it, and the whole time within which it is possible to commence such action may not exceed forty days.

CONSTITUTIONAL LAW.-A STATUTE OF LIMITATION WHICH ATTEMPTS TO CUT OFF A RIGHT OF A PROPERTY owner without affording him a just and reasonable opportunity to try his rights in the courts savors of spoliation and pillage, and is unconstitutional,