control, not only of the adjustment of the loss, but of the action. The assured is the party named in the contract, and bound by it, and the one to whom the insurance company is bound; and in such a case as this the authorities seem to agree that the assured is the only person to be consulted in determining the amount of the loss, and that he is the only party to bring and control the action.”

So, the Connecticut court has held that an open mortgage clause attached to a policy of fire insurance, providing merely that the loss, if any, shall be paid to the mortgagee, as his interest may appear, gives the mortgagee no right to participate in arbitration. proceedings to fix the amount of loss, so that he will, therefore, be bound by the adjustment and award, although an erroneous rule of law was applied by the appraisers in the determination of the value of the property, and although the mortgagee was given no opportunity to be heard. Collinsville Sav. Soc. v. Boston Ins. Co. (Conn.) supra. The court states: "We find it difficult to harmonize the accepted proposition that a mortgagee, by force of the appointment clause in question, does not become a party to the insurance contract, and is not in privity with the insurer, with the other proposition, that nevertheless he acquires the right to intervene between the only parties having contractual relations, and to exercise the functions which are created by the contract to which he is a stranger, and which are exercised in pursuance of its provisions. . . . It is easy to understand how a mortgagee, having acquired the status which the 'union mortgage clause' gives one, whatever that status, technically regarded, may be, might be fairly entitled to be comprehended within the descriptive term 'the insured,' and, if not, that the express language of that clause so defines his rights and limits the rights and powers of the property owner that the right to participate in any adjustment of the loss is impliedly accorded him. On the other hand, it is not easy to discover upon what theory it can be reasonably claimed that a person who

has not come into contractual relations with the insurer, who has obtained no insurance protection, and who is only an appointee of the owner as respects whatever may become due under the contract of insurance, to which he is a stranger, acquires the right, even by indirection, to assume the title of 'the insured.''

And the Canadian court has held that under a statute providing that if a difference shall arise as to the value of the property insured, or the amount of the loss, the matter shall be submitted to arbitration by arbitrators to be chosen by the assured and the insurance company, who in turn shall choose a third, and the award shall be conclusive as to the amount of the loss, a mortgagee to whom loss under an insurance policy was payable as his interest might appear is bound by an appraisement of the loss by arbitrators appointed pursuant to the statute, if there was no fraud or collusion in securing the arbitration, for the rights of the mortgagee are subject to all statutory conditions, and the words. "the assured" in the provision for arbitration manifestly apply only to the mortgagor. Haslam v. Equity F. Ins. Co. (1904) 8 Ont. L. Rep. 246.

And in Chandos v. American F. Ins. Co. (1893) 84 Wis. 184, 19 L.R.A. 321, 54 N. W. 390, it is held that a mortgagee to whom insurance is made payable as his interest may appear, but who is not entitled to the whole insurance, is not a necessary party to an adjustment of a loss on the property insured, and need not be given notice of an appraisement of damage, although it might have been proper for the insured to consult him, or join him as a party plaintiff. The court states: "Nearly all, if not all, the authorities cited . . . which hold that the mortgagee is the sole party in interest in the insurance, and must be represented in the arbitration or other adjustment of the loss, are cases where the direction is to pay the whole insurance to the mortgagee or other third person, who thereby becomes the assignee of the policy and the loss. In this case it could not be known what interest the mortgagee might have in the

insurance, or what interest in her might appear. First, her interest was not commensurate with the insurance; second, it was not known what part, if any, of the mortgage, would remain unpaid by the mortgagor. It was therefore uncertain what interest the mortgagee had, if any, in the insurance; and the assured, as the mortgagor, had at least controlling interest in it. She was the owner of the property and of the equity of redemption in the mortgaged premises, and as much or more interested in paying the mortgage as or than the mortgagee in obtaining payment. It follows that in all cases where the language of direction is that the insurance should be paid to the mortgagee 'as her interest may appear,' the assured mortgagor remains the responsible party, or the party in interest, to control the insurance and the adjustment of the loss." Under union mortgage clause policy.

The courts are, with one exception (see Erie Brewing Co. Case (Ohio) infra), in accord in holding that, under a union mortgage clause policy, -viz., a policy providing that no act or neglect of any person other than the mortgagee shall affect the latter's rights or interest in a policy on the mortgaged property, payable to him,— the mortgagee is not bound by an adjustment between the mortgagor and the insurer, without his knowledge or consent, since such a clause creates a new and separate contract between the insurer and the mortgagee, effecting an insurance of the mortgage interest. Scottish Union & Nat. Ins. Co. v. Field (1902) 18 Colo. App. 68, 70 Pac. 149; Collinsville Sav. Soc. v. Boston Ins. Co. (1905) 77 Conn. 676, 69 L.R.A. 924, 60 Atl. 647; Hartford F. Ins. Co. v. Olcott (1881) 97 Ill. 459; McDowell v. St. Paul F. & M. Ins. Co. (1913) 207 N. Y. 482, 101 N. E. 457.

So, in Scottish Union & Nat. Ins. Co. v. Field (1902) 18 Colo. App. 68, 70 Pac. 149, where a policy providing that the ascertainment or estimate of the loss should be made by the insured and the insurance company, contained a union mortgage clause, the court held that the trustee, to whom the policy was payable under the union

mortgage clause, would not be bound by an adjustment of the amount of the loss between the property owner and the insurance company, since, under the union mortgage clause, the mortgagee's rights could not be affected by any act of the mortgagor subsequent or prior to the loss. 1

And in Hartford F. Ins. Co. v. Olcott (1881) 97 Ill. 459, it was held, under a policy containing the union mortgage clause, that the mortgagor could not "invalidate" the interest of the mortgagee in the insurance by agreeing to an appraisal of loss to which the mortgagee was not a party-citing Hastings v. Westchester F. Ins. Co. (1878) 73 N. Y. 141, to the effect that the provision that the mortgagee's interest should not be "invalidated" meant that it should continue valid for the full amount, regardless of any act or neglect of the owner or mortgagor. The court reasoned that the union mortgage clause distinctly recognized an interest separate from that of the mortgagor or owner of the property; that this interest was for the security of the mortgagee; that, in substance, the policy as to the mortgagor was one thing, and as to the mortgagee, another and very different thing; that as to the former, the policy was to be read without the mortgage clause, while as to the latter, it was to be read as affected by that clause; and that in effect there were two distinct contracts of insurance,-one by the mortgagor, the other by the mortgagee.

In Collinsville Sav. Soc. v. Boston Ins. Co. (1905) 77 Conn. 676, 69 L.R.A. 924, 60 Atl. 647, the court remarked, in passing, that it required no argument to demonstrate that the union mortgage clause precludes a submission to appraisers which should be binding upon the mortgagee without his concurrence or ratification.

However, in Ohio it has been held that a mortgage clause attached to a fire policy at the time it was issued, making the loss payable to the mortgagee, as his interest may appear, and which provided that "this insurance, as to the interest of the mortgagee only therein, shall not be invalidated

by any act or neglect of the mortgagor,

is not an assignment of the policy to such mortgagee, and, in the absence of fraud or collusion, the mortgagee is bound by an award of appraisers provided for and required by the terms of the policy in event of disagreement between the insurer and the insured, as to the amount of the loss, although the mortgagee was not a party to, and had no notice of, the appraisal and award. Erie Brewing Co. v. Ohio Farmers Ins. Co. (1909) 81 Ohio St. 1, 25 L.R.A. (N.S.) 740, 135 Am. St. Rep. 735, 89 N. E. 1065, 18 Ann. Cas. 265. The court here was of the opinion that the union mortgage clause contained in the policy in this case did not create a new and separate contract between the insurer and the mortgagee, but merely designated the mortgagee as payee of the proceeds of the insurance, as though the policy contained merely a losspayable clause. The decision on this point, as well as the decision that the mortgagee to whom a policy containing a union mortgage clause is payable is bound by an award without

notice to him, is contrary to practically every reported case. One of the cases which the court relied on, and the one most nearly in point, was Chandos V. American F. Ins. Co. (1893) 84 Wis. 184, 19 L.R.A. 321, 54 N. W. 390, supra, which, as above shown, involved a simple loss-payable clause, that is, one which did not expressly provide against acts of the mortgagor affecting the mortgagee's interest. In this connection it will be noted that the Connecticut court in Collinsville Sav. Soc. v. Boston Ins. Co. (1905) 77 Conn. 676, 69 L.R.A. 924, 60 Atl. 647, supra, in holding that a mortgagee is bound by an adjustment between the mortgagor and the insurer, made without his knowledge or consent, where the policy contains a simple loss-payable clause, stated that it required no argument to demonstrate that under a policy containing a union mortgage clause,—one of the character contained in the Erie Brewing Co. Case, supra,-a submission to appraisers which would be binding on the mortgagee could not be made without his consent or knowledge.

2. In the absence of evidence as to earning capacity of a dressmaker injured by another's negligence, the jury should not be permitted to award

damages for impairment of such capacity.

[See 8 R. C. L. 652, 653; 2 R. C. L. Supp. 636; 5 R. C. L. Supp. 479. See also notes in 9 A.L.R. 510; 27 A.L.R. 430.]