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ed. 937, 6 Sup. Ct. Rep. 837; Murphy v. not appear whether the agent overlooked the Royal Ins. Co. 52 La. Ann. 775, 27 So. 143. fact that the clause itself granted this de

Defendant cannot be held to be bound, lay, or intended to grant a further delay of either by the first extension granted to the thirty days. Defendant's counsel, in their plaintiff in this suit, or by the second ex. brief, suggest this doubt, and argue that tension, which was an attempted waiver of the agent had no power to grant an extenthe forfeiture of the policy, which had en- sion of any kind. sued some ten days before said second ex- The policy in question was signed by the tension was granted.

president and secretary, and was to become Wood, Ins. | 423; Knickerbocker L. Ins. valid when "countersigned by the duly auCo. v. Norton, 96 U. S. 234, 24 L. ed. 689; thorized agent of the company at Opelou2 May, Ins. (511, p. 144; Kenyon v. sas." This agent had full power to make the Knights Templar & M. Mut. Aid A880. 122 contract of insurance, to fill in the blanks, N. Y. 257, 25 N. E. 299.

and to attach or indorse on the policy other A local or soliciting agent having no au- provisions, agreements, or conditions. He thority as to losses cannot waive the pro- was intrusted by the nonresident company visions of the iron-safe clause.

with blank forms of policy, and the assured Clements, Valid Contr. p. 271; 2 May, had no notice of the mandate, other than Ins. p. 1197.

that conveyed by the policy itself, and the

nature of the agent's employment. The Land, J., delivered the opinion of the last clause of the policy reads as follows, court:

viz; “This policy is made and accepted On August 25, 1903, plaintiff was insured subject to the foregoing stipulations and by defendant against loss by fire in the sum conditions, together with such other proof $1,000 on a small stock of merchandise. visions, agreements, or conditions as may The policy was countersigned and issued by be indorsed hereon or added hereto, and no the Roos-Edwards Agency, of the town of officer, agent, or other representative of Opelousas, Louisiana. The usual "iron- this company shall have power to waive any safe clause" was attached to the policy, and provision or condition of this policy except the following indorsement appears thereon, such as by the terms of this policy may be to wit:

the subject of agreement indorsed hereon or "Permission is hereby given for thirty added hereto, and, as to such provisions days to take complete inventory of stock.” and conditions, no officer, agent, or repreNo inventory was taken, and on Novem sentative shall have such power,

or be ber 5, 1903, the agency made the following deemed or held to have waived such proviindorsement on the policy, to wit:

sions or conditions, unless such waiver, if "The assured, under the above named any, shall be written upon attached and numbered policy, having been prevented hereto, nor shall any privilege or permisthrough illness from completing the inven- sion affecting the insurance under this tory of his stock of merchandise, a further policy exist or be claimed by the insured period of thirty days additional is hereby unless so written or attached.” given in which to complete said inventory.” It follows from the terms of this clause

On November 8th, five days later, the that “provisions, agreements, or conditions" stock of merchandise was destroyed by fire. indorsed on, or added to, the policy were The company received notice of the total subject to waiver written upon or attached loss before it received notice by mail of the to such instrument. The iron-safe clause extension of thirty days.

formed no part of the printed conditions of Payment of the policy having been re- the policy, but was added thereto by the fused, plaintiff brought suit thereon to re- agent, and hence was subject to the written cover the full amount, and obtained judg. waiver referred to in the last clause of the ment in the district court. The insurance policy. company appealed to the court of appeal, The agent had power to issue and renew which reversed the judgment, and the case policies, to make waivers, and grant peris now before us on a writ of review. mits, and the only question for discussion

The court of appeal held that the policy is whether his mandate or employment inwas forfeited by the failure of the assured cluded the power to waive the forfeiture of to make the inventory within thirty days, the policy resulting from the failure of the as stipulated, and that the agents had no insured to complete his inventory within power, express or implied, to waive such the thirty days stipulated. Doubtless the forfeiture by granting an extension of company or its agent could have insisted on time for the completion of the inventory. the forfeiture as a legal right, but at the It is to be noted that the written extension same time would have been compelled to refor thirty days is indorsed on the “rider” turn the unearned premium for eleven containing the iron-safe clause. It does 'months. The agent, being informed of the

or

a

surance.

facts, was called upon to take some action written upon or attached thereto, against in the premises. He elected to waive the the contention that at the very time of the forfeiture, rather than to cancel the policy making of the contract the parties thereto and return the unearned premiums. This had entered into a verbal contract waiving action induced the assured to rely on the the iron-safe clause and the three-fourths policy as still subsisting protection value clause, which were attached to the against loss by fire. This waiver was sent policy. The court decided correctly that to the company by mail in the usual man. the plain terms of the policy notified the ner, but was not received until the day af-assured that the agent had no power to ter the happening of the loss. The com- waive, unless by writing on or attached to pany did not notify the assured or the

the policy. agent that the waiver was repudiated, and,

In the case at bar the waiver was in after proofs were furnished, sent an adjuster to investigate the loss. The adjust writing attached to the policy, and was made

several months after the contract was exer, however, acted under a nonwaiver agreement, and therefore all the defenses of the ecuted. The waiver was in due form, and company were preserved.

the only question is one of power in the The agent was furnished with blank poli- | agent. There is in the last clause of the cies signed by the president and secretary policy a necessary implication that agents, of the company, and was in the habit of is. officers, or representatives may waive prosuing policies without requiring an applica- visions, agreements, or conditions indorsed tion, and without referring the subject-mat- on, or added to, the policy, and may grant ter to the company, in Springfield, Massa- privileges or permissions affecting the inchusetts. The agent had apparently undoubted power to issue policies, and to at- The iron-safe clause was therefore a subtach thereto all the usual and customary ject-matter of waiver. The printed policy agreements and "riders.”

is a general form applicable to all fire inIt is argued, however, that the agent had surance business, and, by its terms, contemno power to waive conditions added to, or plates that the agent making the contract attached to, the policy at the time of the shall have power to add other “provisions, issuance. The last clause of the policy au- agreements, and conditions,” and to grant thorized a written waiver of such conditions, permits or privileges affecting the insurprovided it be annexed to the policy. The ance. The policy bristles with forfeitures district judge said: “The term stipulating for causes existing at the date of the confor the completion of the inventory is a tract, or arising subsequently, unless othermere incidental portion of the contract en- wise provided by agreement indorsed on or tered into exclusively for the benefit of added to the policy. It is clear that the the insurer. The extension of time and im- agent making the contract of insurance unplied waiver of the expiration of the origi- der such a policy may modify or change the nal period for the completion of the in- forfeiture clauses by indorsements on, or ventory were acts done by the agent solely additions to, the instrument. With such for the purpose of making the contract of power over the matter of forfeitures, it is insurance available to the insurer as well not difficult to conclude that such an agent as to the insured.”

may waive a subsequent forfeiture, in the The district judge cited authorities to interest of the company which he represhow that the agent had general powers,

sents. and argued that, as the agent had author- “An agent authorized to issue policies ity to issue a new policy to the assured on binds the company by all waivers, representhe same conditions as those contained in tations, or other acts within the scope of the original policy, he had implied author. his business, unless the insured has notice ity to recognize the validity of the subsist- of a limitation of his powers. The quesing contract, and to grant additional time tion always is not what power the agent for the completion of the inventory.

did in fact possess, but what power the The court of appeal reversed the judg. company held him out to the public as posment of the district court on the authority sessing.” 1 May, Ins. 4th ed. § 126. “A of the case of Murphy v. Royal Ins. Co. 52 person authorized to accept risks, to agree La. Ann. 775, 27 So. 143.

upon and settle the terms of insurance, and While the case cited is a mine of insur- to carry them into effect,

must be ance law, the decision simply recognized regarded as the general agent of the and enforced the last clause of the policy, company pending negotiations.” Id. p. 235. to the effect that no officer or agent of the “And the possession of blank policies and recompany should have power to waive, or be newal receipts signed by the sident and deemed to have waived, any condition of secretary is evidence of such general agency.” the policy, unless such waiver should be ' Ibid. “If a foreign company appoints A.

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and B. as local agents, and supplies them surance policies comes clearly within such with blank policies signed by the company, scope, and is within the apparent authority and which they may fill up and counter- of such local agents. Every policy of insign, they are its general agents. Conti- surance is full of forfeiture clauses, many nental Ins. Co. v. Ruckman,” 127 Ill. 364, of which do not affect the soundness of the 11 Am. St. Rep. 121, 20 N. E. 77. Id. note. risk, but at the same time may avoid the “That an insurance agent authorized to policy at the option of the insurer. We make contracts of insurance and issue poli. consider that it is within the province of cies may waive forfeitures, and reinstate a local agent in such cases to decide and restore a void policy,

is held whether the policy shåll continue in force by numerous cases.” 2 Wood, Ins. $ 415. or be canceled. Justice to the insured re

In the Murphy Case this court cited with quires an immediate decision of such quesapproval the doctrine that an insurance tions, which could not be had if the rules company is bound by the acts of its agent of the company required the reference of “in all matters within the scope of his real such cases to the general management, peror apparent authority,” and that third perhaps in a distant state or foreign country. sons, in dealing with such agent, are not No holder of a policy could afford to await bound to go beyond the apparent authority the result .of such a reference, nor could conferred on him. Murphy v. Royal Ins. any insurance company afford to transact Co. 52 La. Ann. 782, 27 So. 143. In the business under such conditions. The agent case at bar the agent apparently had orig. is present as the representative of his cominal powers to make contracts of insurance pany in all matters of insurance within without previous applications, and without his territorial district, and his apparent referring the matter to the company. In authority cannot, as to the public, be limissuing the policy in question he exercised ited by private instructions. such original powers, and the company ac- "The authority of an agent must be dequiesced therein. The agent had a power of termined by the nature of his business, and attorney, but the assured knew nothing of is prima facie coextensive with its requireits provisions, and it therefore matters not ments.” May, Ins. 4th ed. 126, p. 231. whether it was general or special. The “With respect to waiver of the breach of a testimony of the agent is positive that the condition in a policy, the most liberal view second extension was not subject to the is that the agent's authority is coextensive approval or ratification of the company, with the business intrusted to his care.” but was simply notified as in other in- Id. p. 232, note, citing Weed v. London & L. stances. It is certain that it was written F. Ins. Co. 116 N. Y. 106, 22 N. E. 229; and attached to the policy prior to notice German Ins. Co. v. Gray, 43 Kan. 497, 8 to the company.

L. R. A. 70, 19 Am. St. Rep. 150, 23 Pac. Speaking of general agents, Ostrander 637. says: “Having power to make a completed the case at bar we are of opinion contract, they will also be presumed to have that the agent had the apparent power to power, by agreement with the assured, to waive the forfeiture resulting from the change, alter, or nullify its terms and con- failure of the insured to complete the inditions at any time after the delivery of ventory within the thirty days specified the contract, and after it has become bind in the contract. ing between the parties, unless limitations This was the only issue discussed or are imposed, of which assured has notice.” decided by the court of appeal. As to Fire Ins. § 265, p. 551.

keeping a set of books, the obligation did Hence there can be no real distinction not arise until after completion of the inbetween a local agent with power to make ventory. contracts of insurance and issue policies, As to the charges of fraud and bad faith, and general agents having the same power. they were decided by the district judge The power to make and complete con- to be unsupported by evidence, and were tracts differentiates such agents from solic- not noticed by the court of appeal. The itors and other intermediaries between the writ of review is intended to correct errors assured and the company.

of law, and this court will not review Agents, whether local or general, with questions of fact, save in exceptional cases. power to contract, represent the company It is therefore ordered that the judgment within the territorial limits to which they of the Court of Appeal herein rendered be are assigned. Their knowledge is imputed annulled and reversed, and it is further to the company, and their acts bind the ordered that the judgment of the District company within the scope of their employ- Court be affirmed, and that defendant pay ment. The question of the forfeiture of in. I costs in both appellate courts.

UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT.

THREE STATES LUMBER COMPANY,

Piff. in Err.,

H. B. BLANKS.

(133 Fed. 479.)

1. A plaintiff in replevin who obtains

actual possession of property seized under the writis estopped from claiming that the writ was wrongfully executed, upon a proceeding to assess damages against him for seizure of property upon which he had

no rightful claim. 2. The Federal court is not bound to

follow a decision of the courts of the state in which it is sitting, declaring that a plaintiff in replevin is not bound to

return the property replevied if prevented by act of law, which is based not upon a

statute, but upon general principles. 3. A plaintiff in replevin who took in

to his possession, under the writ, lumber to which he was not entitled, cannot plead, in defense of his liability to return the property, that he had caused it to be sold to satisfy his own claim for salvage in recovering and preserving the property, after the vessel on which it was stored, whlle in

his possession, had sunk. 4. A plaintiff in replevin cannot claim

salvage for rescuing the replevied property after it had sunk while in his possession, since it was his legal duty to care for and preserve it.

(December 1, 1904.)

.

One NOTE.--Duty to preserve and return property

who replevins cattle, which, without seized under writ of replevin.

negligence upon his part, die wbile in his pos

session, will not, upon that account, be exI. Loss or destruction of the property. cused from satisfying a judgment for their a. In general, 283.

return or value. De Thomas v. Witherby, 61 b. Emancipation of slaves, 286. Cal. 92. 44 Am. Ren. 542. The court says: II. Depreciation of the property, 286.

“A plaintiff, not being the owner of goods, who

takes them out of possession of the real owner, I. Loss or destruction of the property.

holds them in his own wrong, and at his own

risk a. In general.

He has deprived the real owner of the

possession, and has also deprived him of the With the exception of a few decisions, which means of disposing of the property pending the have in almost every instance been subjected to litigation ; and when, at the end of perhaps a criticism and disapproval, the rule is that the protracted litigation, it is determined that the plaintiff in replevin, in possession of the prop- plaintiff in the replevin suit had no right to erty under a replevin bond, or the defendant in

the possession of the goods, and judgment is replevin, retaining possession of the property rendered against him for the return of the under a forthcoming bond, 18 liable, at all property or its value, he cannot, on principle events, for its return, if the action is decided

or authority, be excused from satisfying said against him, and the fact that his failure to judgment under a plea that the property has make return is caused by an act of God or been lost in his hands, even by the act of God." other circumstance beyond his control, and

If it appear that the property in controversy notwithstanding all due care upon his part, is has been hopelessly lost or destroyed, a judg. of no avail to relieve him from his obligation. ment for its value only, without a demand for The principle upon which the rule rests is the

its return, will be regarded as a technical erold common-law theory that one in possession ror merely, not requiring reversal. Brown v. of property seized in replevin, under a replevin Johnson, 45 Cal. 76. or forthcoming bond, is claiming the property It appearing that corn which had been reas owner, not as a bailee during the pendency plevied had perished or been consumed, a verof the action, and, if his claim is decided dict and judgment for the value thereof is against him, his possession has been wrongful proper. Clark v. Adair, 3 Harr. (Del.) 113. and in violation of the rights of the true own- Plaintiff's in replevin, detaining property er; and therefore he cannot escape liability without a valid claim, act at their peril, and under his hond for a failure to return the the destruction of the property by fire does not property, as conditioned therein, by showing release them from the liability assumed to rethat the failure comes from circumstances be- turn it or respond in damages for a failure to yond his control, and notwithstanding such

do so.

Suppiger v. Gruaz, 137 Ill. 216, 27 N. reasonable care by him as is required of bailees E. 22, Affirming 36 ni. App. 60. or others rightfully in possession.

This last decision was expressly followed in This principle first appears in 7 Hen. IV., Schott v. Youree, 142 II. 233, 31 N. E. 591, 18. “So, if the defendant claims property, or Affirming 41 III. App. 476, sustaining demurrer says that he did not take, etc. If in the mean- to the plea that property was burned after it time the beasts die, or are sold, so that he can- was replevied, and that it was therefore imnot have a return, he may recover all in dam- possible to make return in accordance with the ages, if it be found for him." Hale's Notes, judgment in the replevin suit. Fitzherbert, Nat. Brev. 69.

So, one who wrongfully takes the property The question does not arise, so far as dis- of another, although under a writ of replevin, covered, in any other English decisions, but cannot escape liability for the value thereof by in this country, where the old common-law ac- showing that it was destroyed by act of God. tion of replevin has, by statutory enactment Scott v. Rogers, 56 Ill. App. 571. in almost every state, been adapted and en- A defendant in replevin, who gave a delivery larged to meet modern needs, the following bond in the statutory form, and retained pos. decisions are found:

session of horses replevied, cannot be dis

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States for the Western District of Ten- plaintiff's title to 15,000 feet of lumber so renessee to review a judgment awarding dam- plevied, and pleaded the general issue as to ages to defendant in a replevin suit for fail the remainder. Upon the issues joined, the ure to return the property. Affirmed. jury found for the defendant as to 235,000

feet of lumber, and assessed the value at Statement by Lurton, Circuit Judge:

time of taking at $2,820 and interest thereThe plaintiff in error instituted an action

on from that time, amounting to $241.11. of replevin in the court below to recover They also awarded the defendant $822.50 as 250,000 feet of lumber which it claimed bad been unlawfully taken out of its possession damages for the seizure and detention. A by the defendant. The writ was returned as judgment was thereupon rendered for the reexecuted "by taking the within-described turn of the lumber so assessed, or its value, property out of the possession of the within with interest, and for the damages for named H. B. Blanks, and delivering the said wrongful detention, as assessed by the jury. property to 0. H. Scoggins, agent of the From this judgment the plaintiff has sued Three States Lumber Company. ." out this writ of error. charged pro tanto thereunder, by the fact that preciated by use, or been destroyed by fire or one of the horses died while in his possession. other accident

since the service of His undertaking is absolute to become liable in the writ, the bond would still continue to repdamages for a failure to return the property resent it; and the remedy upon the bond is unin as good condition as it was when the action derstood to be its equivalent.”

commenced. Hinkson V. Morrison, 47 A defendant in replevin, who had given a Iowa, 167.

bond for the forthcoming of the property, is And so, notwithstanding part of the animals not released from her liability thereunder by die while in plaintiff's possession, a success.

the destruction of the property, even though ful defendant in replevin may recover the val

it resulted from circumstances beyond her conue of all the property, including that which trol and without her fault. George v. Hewlett, died. Lillie v. McMillan, 52 Iowa, 463, 3 N. 70 Miss. 2, 35 Am. St. Rep. 626, 12 So. 855. W. 601.

Such as the burning of the property while in Evidence in replevin action that sheep de- his possession. McPherson v. Acme Lumber tained by defendant in replevin under a rede- | Co. 70 Miss. 649, 12 So. 857. livery bond died from unavoidable causes is When the defendant in replevin gives a inadmissible, since one wrongfully detaining forthcoming bond, liability for the goods is property cannot be excused from satisfying a thereby fixed upon him and his sureties, which judgment therefor under a plea that it has is not affected by the partial destruction of the been lost in his hands, even by the act of God. property; and a tender of the partially deBlaker v. Sands, 29 Kan. 551.

stroyed property will not relieve them. Haz. The death of a slave pending an action in lett v. Witherspoon (Miss. ; 25 So. 150. replevin does not relieve from the obligation A tender in money of the value, as found by to account for the value thereof. Gentry v. the court, of articles replevied, but which are Barnett, 6 T. B. Mon. 113. This decision is lost or cannot be returned, is the proper course. based upon a similar holding in Carrel v. Early, Reavis v. Horner, 11 Neb. 479, 9 N. W. 643. 4 Bibb, 270, which was an action in detinue. It appearing that the property replevied was The court, in discussing that case, says : "It destroyed by fire, a failure to render an aiteris nard to conceive of a reason supporting this native judgment is not prejudicial error. Richdecision (Carrel v. Early) which will not equal. ardson Drug Co. v. Teasdall, 59 Neb. 150, 80 ly apply to the death of a slave pending the N. W. 488. To the same effect is Brown v. action of replevin. Indeed, the reason in the Johnson, 45 Cal. 76, supra. latter case is much stronger. In the first case In a few states-Maine, New York, and Tenthe defendant is charged because of his wrong nessee decisions more or less at variance with only ; in the latter, he is not only guilty of the the rule above shown are found. same wrong, but has expressly stipulated in Thus, in Maine, the natural death of a the replevin bond that he will restore, not ex- horse without the fault of anyone, while in cepting the death of the slave."

the possession of the plaintiff in replevin, but And so, the death of a slave while in the before the determination of the action, was possession of a defendant in replevin, during held a valid excuse for a failure to return it the pendency of the action, is not a sufficient according to the condition of the replevin bond, plea in avoidance of a judgment de retorno in an action thereon. Melvin v. Winslow, 10 Me. habendo. Scott v. Hughes, 9 Mon. 104. 3.97. Tbis decision is expressly disapproved in

And, likewise, in a statutory action in anal- De Thomas v. Witherby, 61 Cal. 92, 44 Am. ogy to the common-law action of replevin, the Rep..542, supra. claimant of attached property may not escape In a subsequent Maine case, Walker v. Os. liability upon his bond by reason of the death good, 53 Me. 422, the court distinguishes Melof the animal in question during the pendency vin v. Winslow, and limits the rule therein laid of the action, since by his wrongful interfer- down by holding that the death of an animal ence he protracted the litigation, resulting in without fault, pending the replevin action, the loss of the attached property. Dear v. exonerates the plaintiff in replevin from lia. Brannon, 4 Bush, 471.

bility in an action upon the replevin bond, if the The court says, obiter, in Stevens v. Tuite, replevin suit was instituted and prosecuted in 104 Mass. 328: "Even in the case of perishable good faith and in the honest belief of a good title. property, or such as has been worn out or de- In New York, upon the principle that when

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