Opinion of the Court.

only, signed by appellee, of the price he would take for the property, and a figuring of his own, made in the margin, of the net proceeds after deducting the commission to be paid to Kerfoot. It contains nothing more than a description of the lands, and the sum the owner was willing to take for them. Surely, Kerfoot was not bound by it, to take the lands at those terms, nor did he agree so to do. He informed appellee he was in negotiation with a party in the east, who he had no doubt would purchase, and wanted the price definitely stated, and he distinctly stated, he was acting for the owner in the sale, and would look to him for his commission. In truth, he was acting in a double capacity, that of agent of thel seller and of the purchaser. He was a real estate agent, whose business was buying and selling lots and lands for others.

The very form the transaction took, dissipates all idea of a sale to Kerfoot. If it was a sale to him, why should any commission or brokerage be stipulated? It may be true, "one man's money is as good as another's," and that Kerfoot had a right, in the first instance, to be the purchaser. Yet if he had been such purchaser, it is incredible, brokerage should be agreed upon.

But there is something more in support of appellee and LeMoyne, and that is, the letters by Kerfoot to Mr. Rives and his in reply. Those letters can not be read without forcing the conviction that the sale of these lands was effected by Kerfoot as an agent. Nowhere, in any one of them, is there the slightest intimation that Kerfoot was the owner of the property or intended to be, or that it was under his control. Mr. Rives, judging from the tenor of his letters, knew Kerfoot was acting for other parties. The negotiation with him was on that basis alone.

It appears the lots and land, for which appellee agreed to take the net sum of $6316, contained fifteen acres. Kerfoot sold to Mr. Rives thirteen acres thereof, for $6500, and proposes to put in his own pocket the difference, and hold as

Syllabus. Statement of the case.

his own the remaining two acres unsold; the legal title to which he has passed to his co-appellant, Gehr.

This claim is so at war with justice, equity and fair dealing, and so contrary to well established principles, that it can not be listened to for a single moment. A more distinctly marked case of agency rarely comes before a court of justice. The evidence is conclusive, and the court below, in decreeing to appellee the difference between the sum he stipulated to take, if no more could be had, and the sum actually received by Kerfoot, and that his grantee, Gehr, should release to appellee all his right to the two acres, carried out the true principles which govern this case, and the decree is affirmed in all its parts.

Decree affirmed.

CITY OF CHICAGO

v.

ANDREW GARRISON.

NEW TRIAL-verdict against the evidence. In this case the evidence was very conflicting, and it was only claimed that the preponderance was against the verdict, which the court refused to disturb as being against the weight of the testimony.

WRIT OF ERROR to the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action brought by Garrison against the city of Chicago. A trial resulted in a verdict and judgment for the plaintiff. The city thereupon sued out a writ of error.

Mr. S. A. IRVIN, for the plaintiff in error.

Opinion of the Court.

Mr. ANDREW GARRISON, pro se.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action brought by the appellee against the city of Chicago, to recover damages for injuries received in falling from certain steps that were a part of the sidewalk. No question of law is made upon the record, and the counsel for appellant asks a reversal solely on the ground that the preponderance of evidence, as counsel insists, shows the sidewalk was not unsafe, or, if it was, that the city had neither actual nor constructive notice of that fact, and that the plaintiff himself was guilty of carelessness.

As to the last point, we need only say there was not the slightest evidence of want of ordinary care on the part of the plaintiff.

As to the other points, the evidence is admitted by the counsel for the city to be very contradictory, and it is only claimed that the preponderance was for the defense. It would answer no good purpose to review it in detail. We have examined it with care, and find it conflicting to such a degree that we can not reverse the judgment and direct a new trial without disregarding the established rules of the court in regard to the respect due to the verdicts of juries in cases of contradictory testimony. We are very far from being able to say the verdict was against the weight of evidence.

Fudgment affirmed.

1. INSURANCE-reforming a mistake in a policy, as to the persons obtaining the insurance. Where a member of a partnership firm applied for insurance upon partnership property, and in the name of the firm, and the officers of the company so understood the application, but, by mistake, issued the policy in the name of the individual partner alone, it was held, a court of equity would reform the policy so as to make it conform to the intention of the parties.

2. SAME-how far companies are bound by the acts and knowledge of their agents. And where such application was made to an agent of the company insuring, who was informed that it was the interest of the firm, not that of the individual partner alone, which was to be insured, and agreed so to insure it, the agent at the time having full knowledge of the ownership of the property, the company would be bound by the acts and knowledge of the agent in respect thereto, which would form a sufficient basis upon which to require a court of equity to reform the policy issued by the officers of the company to the individual partner alone.

3. SAME by the acts and knowledge of what character of agents companies are bound. The fact that such agent was not a regular agent of the company would not relieve the latter from being bound, he having previously obtained insurance for the company for which they paid him a commission, and having also obtained the particular insurance and received his commission therefor,-holding such relation to the company he would be deemed their agent in respect to the insurance which he negotiated, and they would be bound by his acts and knowledge concerning it.

4. SAME-disclosure of facts affecting the risk. While it is a general rule, that on an application for insurance, all material facts which directly tend to increase the hazard must be disclosed by the applicant, the fact that he is obnoxious to numerous persons in the vicinity of the property sought to be insured, is not within that rule, and need not be disclosed unless he is interrogated on the subject.

5. In this case the property sought to be insured, was a lot of cotton in the State of Mississippi, the insurance being effected in Chicago, and it was held not essential to the validity of the policy that the applicant should disclose, unasked, that the guards who were in charge of the cotton smoked pipes, and had fire in the immediate vicinity for the purpose of warming

themselves.

Syllabus. Brief for the appellants.

6. SAME-effect of a seizure of the property insured, by a government officer. At the time the cotton was insured, the place where it was situated was under military occupation by the United States, and it was held that the mere seizure of the property under the order of a government officer, without evidence of its condemnation, or of an act of forfeiture, would not divest the owner's title, or affect his right to recover the insurance.

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

The opinion states the case.

Messrs. HIGGINS, SWETT & QUIGG, and Mr. ISAAC N. ARNOLD, for the appellants.

A mistake in putting the name of an individual partner in a policy of insurance, instead of the firm name, will not defeat the contract, but it may be reformed in a court of equity. Ellis v. Towsley, 1 Paige Ch. 278; Franklin Fire Ins. Co. v. Hewett, 3 B. Mon. 231; Harris v. Columbian Ins. Co. 18 Ohio, 121; New York Ice Co. v. Northwestern Ins. Co. 23 N. Y. Rep. 359; Malleable Iron Works v. Phoenix Ins. Co. 25 Conn. 465; The Bank v. Charter Oak Ins. Co. 21 Conn. 529.

Although a person may not be the general agent of an insurance company, he will be considered the special agent in the particular case, when he received a commission for effecting the arrangement with the assured. Woodbury Savings Bank v. Charter Oak Insurance Company, 31 Conn. pp. 518, 519, 526-7-8; 25 Conn. p. 477; Beebe v. Hartford County Fire Insurance Company, 25 Conn. p. 51; Malleable Iron Works v. Phoenix Insurance Company, 25 Conn. 465, 528, 529.

In regard to a failure on the part of an applicant for insurance, to disclose facts concerning the property, or circumstances affecting the risk, the rule is, a fraudulent concealment must be proved.

The presumption is that the contract was fairly made.