ment of facts filed by the plaintiff alleges that the plaintiff effected the insurance as the agent of the wife, the said Sarah E. Deitz, and at the time informed the agent of the defendant that the property belonged to his wife. In Hunt v. Insurance Co., 22 Fed. Rep. 563, it was held: "Where a company's policies provide that 'any interest in property insured not absolute, or that is less than a perfect title, must be especially represented to the company and expressed in this policy in writing, otherwise the insurance shall be void,' it is the duty of the agent who makes the contract in behalf of the company, if he knows that the property upon which insurance is desired belongs to the applicant's wife, to state that fact in the policy, and if he fails to do so, the policy will not be invalid on that account." And in the same case it was further held that "a husband who has taken out insurance as his wife's agent upon her property in his own name may, sue in his own name for her benefit in case of loss." It is a general principle, well settled by the authorities, that agents of an insurance company authorized to procure applications for insurance, and to forward them to the company for acceptance, must be deemed the agents of the company in all they do in preparing the application, or in any representation they may make as to the character or effect of the statement therein contained; and when, either by his instruction or direct act, such agent makes out an application incorrectly, notwithstanding all the facts are correctly stated to him by the applicants, the error is chargeable to the company. This rule is not affected or changed by a stipulation inserted in the policy subsequently issued, that the acts of such agent in making out the application shall be deemed the acts of the insured unless written in the application or expressed in the policy. Such stipulation does not convert the acts done for the insurer into the acts of the insured: Kausal v. Minnesota etc. Ass'n, 31 Minn. 17; 47 Am. Rep. 776; Poughkeepsie v. Insurance Co., 30 Hun, 473; Rowley v. Insurance Co., 36 N. Y. 550; Woodbury v. Insurance Co., 31 Conn. 417; Wood on Insurance, secs. 400, 401; Schwarzbach v. Ohio etc. Union; 25 W. Va. 622; 52 Am. Rep. 227; Travis v. Insurance Co., 28 W. Va. 584, 598. Parol evidence is competent to prove that the application was filled up by the agent of the company, and that the facts were fully and correctly stated to him, but that he, without the knowledge of the insured, misstated them in the applica tion. This is not a violation of the rule that verbal testimony is not admissible to vary a written contract. It proceeds upon the ground that the contents of the paper was not his statement, though signed by him, and that the company, by the acts of its agent in the matter, is estopped to set up that it is a representation of the insured: Union etc. Ins. Co. v. Wilkinson, 13 Wall. 222; May on Insurance, sec. 143, and cases cited. These principles and these authorites are conclusive of the case at bar. The facts alleged in the plaintiff's special statement, if established by sufficient proof, would clearly show that the mistake in the policy was the act of the defendant, through its agent, and that the defendant cannot avoid its liability on account of such mistake.' The judgment of the circuit court must, therefore, be reversed, the defendant's demurrer overruled, and the case remanded for further proceedings according to the principles announced in this opinion. AGENCY.-Where a contract has been made by an agent in his own name, but for the benefit of his principal, he may sue in his own name upon it: Cremer v. Wimmer, 40 Minn. 511. But an agent who loans the money of his principal in the name of the principal cannot himself sue to recover back: Chin Kem You v. Ah Joan, 75 Cal. 124. Where an insurance agent AGENT TREATED AS PRINCIPAL-INSURANCE. is not required to consult his principal before making an insurance contract, he is regarded as though he himself were the principal: Hartford Ins. Co. v. Haas, 87 Ky. 531. INSURANCE. An insurance company is bound by the acts of its agent: Menk v. Home Ins. Co., 76 Cal. 51; 9 Am. St. Rep. 158, and note 162, 163. EFFECT OF STIPULATIONS IN A POLICY making the insurance agent the agent of the insured: Continental Ins. Co. v. Pearce, 39 Kan. 396; 7 Am. St. Rep. 557; note to Clark v. Union Fire Ins. Co., 77 Am. Dec. 721. INSURANCE COMPANY IS CHARGEABLE WITH NOTICE of facts brought to the knowledge of its agent: Continental Ins. Co. v. Pearce, 39 Kan. 396; 7 Am. St. Rep. 557, and note. INSURANCE AGENTS. — Where an agent authorized to take applications for insurance writes false answers to questions, without the knowledge of the applicant, or contrary to his directions, and the applicant makes the true answers to such questions, the company is estopped by the falsehoods of its agent: Pickel v. Phœnix Ins. Co. of Brooklyn, 119 Ind. 292. And to the same effect, substantially, is Brown v. Commercial Fire Ins. Co., 86 Ala. 189. INDEX TO THE NOTES. ACTIONS, appearance by defendant, general and special, effect of, 233. 552-554. ASSIGNMENT of part of a debt or chose in action, 674. ATTACHMENT of property does not confer jurisdiction over defendant, 354. 297. contracts by, champertous, what are, 299. contract by, for contingent fee, 300. contract by, to attend to claim before Congress, 298. contract by, to collect claims against United States on a contingent fee, 298, 299. contract by, to procure passage of a law, 298. contract by, to procure pardon, 298. contract by, to procure signatures to petition for pardon, 298. contract by, to secure release of soldier, 298. contract by, which tends to encourage litigation, 299. contract by, with wife, to secure alimony for a contingent fee, 299. BANKS, liability of, when acting as collecting agent, 253. CERTIORARI, relief, when may be granted upon, 869. CONSTITUTIONAL LAW, departments of government, separation of, 139. libel and slander, province of court and jury in prosecution for, 625–627. offices, power of legislature to fill, 125–147. practical exposition controls interpretation of, 145. CONTRACTS, Construction, when two or more are made at the same time, 351. oral conditions precedent to operation of, 352. wagers on market price of grain, 362. with attorneys at law, to resist enforcement of laws, 297. CORPORATIONS, before incorporation, actions against, when may be brought, 220. before incorporation, acts done in name of, bind the assumed officers before incorporation, acts done or promises made, 28, 30. before incorporation, agreements with promoters, 29. before incorporation, contracts made cannot bind, 29. before incorporation, have no franchise or powers, 28. before incorporation, officers and agents, employment of, 29. before incorporation, ratification of acts of promoters and assumed agents, 29. CORPORATIONS, contracts made in anticipation of existence of, 30. existence of, estoppel to deny, 55. existence of, when must be proved, 54. estopped to deny contracts made before incorporation, 30, 31 estopped to deny corporate existence, 909. foreign, contracts with, when not void, 60. foreign, right of to recognition in other states, 60. promoters and organizers, contracts of, when corporation is estopped to avoid, 28, 31. promoters of, cannot bind, 28. ratification by, of acts and contracts entered into by promoters and records of, admissibility of, in evidence, 550, 552. records of, parol evidence to show omissions in, 551. records of, parol evidence to vary or add to, 550. records of, verity of, 550, 551. CRIMINAL LAW, bad character of deceased, when admissible in prosecution for homicide, 710. forgery, indictment for, 381. threats made by deceased, when are admissible in prosecution for homi- DEEDS, acknowledgment of, and its effect, 280. construction of two or more made at one time, 351. married women, acknowledgment of by, when invalid, 83. DEFINITION of "expressly," 136. of "legislative" and "legislative power," 134, 135. EMINENT DOMAIN, damages allowed in proceedings under, 242. expert, when admissible, 488. judicial notice, of what taken, 738. records of corporations, 550, 554. records of town meetings and of corporations, 550–552. records of town meetings, omissions in, 551. records of town meetings, parol evidence to add to or vary, 550. EXECUTION, vacating sale under, for inadequacy of price, 800. EXECUTORS AND ADMINISTRATORS, purchase by, of property of decedent, 46 FISHING AND FOWLING on bays and navigable waters, right of public to en- on the lands of another, 416. on private soil covered by navigable waters, 417. on unnavigable waters, 420. FIXTURES, actions by mortgagee for removal of, 154. FRAUD, representations which are fraudulent, 431. FRAUDULENT CONVEYANCE, lien of judgments against grantor notwithstand- ing, 860. priority obtained by bringing suits to vacate, 864. HOMESTEAD, removal from, when not an abandonment, 800. |