Further,

RICHMOND, P. J. In this action plaintiff, Rebecca Jones, sought to recover of defendant, H. F. Jones, a certain sum of money claimed to be due under contract between them. Prior to the 29th of November, A. D. 1876, plaintiff and defendant were husband and wife, and on that day articles of separation were entered into, whereby H. F. Jones obligated himself to pay to Rebecca Jones certain sums of money for her support during the time they should remain separated. Previous to the 31st day of August, 1887, H. F. Jones procured a decrce of divorce, and on that day entered into the contract sued on. The contract recites the existence of the previous “articles of separation," and the fact that they had been kept and maintained in force until that date. that acertain change of circumstances had arisen, which rendered it desirable that there should be changes and modifications in the original articles; and in consideration of this fact and one dollar H. F. Jones contracted to pay to Rebecca Jones during the time she should remain single the sum of $45 per month. Up to March 1, 1889, defendant fulfilled the contract. Thereafter he defaulted, and suit was brought to recover the amount due, $405. To the complaint a demurrer was. Interposed and sustained, and leave was granted to amend the complaint. Demurrer was filed to the amended complaint, which was overruled, and subsequently default and final judgment entered against the defendant, he having failed to answer. To reverse this judgment this error is prosecuted.

The contention of plaintiff in error is: First, that the contract was void, it being in restraint of marriage, and therefore against public policy; second, that the contract was without consideration. Addressing ourselves to the first proposition, we must call attention to the language of the contract: "It is hereby mutually contracted and agreed that the party of the first part agrees to and with the party of the second part to pay to her for so long a time as she does not marry again the sum of $45 per month for each and every month that the party of the second part shall remain single and unmarried up to the date of her death." This is not a contract in restraint of marriage. No obligation is imposed upon the woman not to marry. She is at liberty at any time to marry whom

and where she will. The condition is that he will pay the $45 per month, presumably for her maintenance and support, so long as she may remain an unmarried woman; and this was her situation, as averred in the complaint, at the time of the institution of the suit. There is nothing in the agreement, so far as we can discover which in any way involves the question of morals or public policy. It is unnecessary for us to express any opinion relative to the contention of the plaintiff in error that a contract in restraint of marriage is void as against public policy, because it is evident from what we have already said that we do not consider the question involved in this case. Now, as to the second proposition,-that there was no consideration to support this agreement. We must differ also with counsel upon that proposition. Let us take into consideration the situation of the parties. Unable or unwilling to dwell together as man and wife, they entered into an agreement to separate and live apart, she sacrificing the comforts of home upon his promise to furnish her adequate means of support. Thereafter, and while this contract is in existence, the plaintiff in error procures a divorce,-upon what grounds the record is silent. But it is evident from the agreement entered into and sued upon that practically no defense was made, and no alimony sought on the part of the wife. After the divorce, and up to the date of this agreement, the former contract was recognized as binding, and acted upon by both parties, and in consideration of the agreement to pay her at the rate of $45 per month she agreed to release him from his former contract. What the exact terms of the previous contract were we are not informed, except so far as it is set out in the agreement here. Its existence and legality is admitted, and by the terms of this contract the defendant is released from its performance, and the divorced wife surrenders what rights or interests she had thereunder, and accepts in lieu thereof this promise to pay. So far as is shown in this case, the original agreement did not provide for its rescission or termination upon a divorce being obtained. The promised support would be just as much needed after divorce as before. The record discloses that there was no agreement of parties for the divorce, nor was there any in the negotiations preceding the divorce that the contract should be annulled thereby. A decree of divorce of its own force does not have the effect of terminating the prior agreement for separate support. "Some contracts of separation might offend public policy and others not. Certainly there are cases where a wife would be justified in separating from her husband and asking support from him, notwithstanding the separation." Carey v. Mackey, 82 Me. 516, 20 Atl. Rep. 84. An agreem nt for support is not abrogated by a subsequent divorce of the parties, at least when no provision for alimony was made in the decree of divorce. Clark v. Fosdick, 118 N. Y. 7, 22 N. E. Rep. 1111; Galusha v. Galusha, 116 N. Y. 635, 22 N. E. Rep. 1114; Pettit v. Pettit, 107 N. Y. 677,14 N. E. Rep. 500. The agreement conclusive

for water of the defendant in error with the ditch company was to be assigned, transferred, or sold to the plaintiff in error, or was to pass with the land under the option. It was shown by the testimony that the deed was accepted, and the trade consummated without any assertion of claim on the part of the plaintiff in error to have the water-right transferred. It will be observed that there is nothing in the written contract referring to the matter in controversy. The land was sold by one Millington as agent of the owner. The testimony in regard to the under standing of the parties with reference to the water-right is very meager and contradictory. Plaintiff in error testified that Millington, the agent, "stated that the land had been cultivated the year previous, and that it had the English ditch water-right, which was included in the purchase price." This appears to have been all that was said on the subject, and even this was not embraced in the writing. It is very indefinite. It does not show whether the contract, as it then stood, between defendant and the ditch company, was to be transferred, or whether it was to be secured, and final payments made by the buyer or seller. Where nothing is said with regard to it, under such circumstances, it is presumable that the future payments are to be made by the purchaser, else there would have been some contract or obligation on the part of the seller to pay in future; or, if the understanding had been that the seller should make the payments, it is to be presumed the buyer would have investigated the matter, and retained the amount from the purchase money. The strongest construction the language of the agent can really bear is that the land was susceptible of cultivation by the use of water from the company's ditch, and that the right to the water for the land was secured, and such right would go with the land. But this cannot be construed as a promise to pay the money to perfect the purchase of such right. The contention of counsel of plaintiff in error that the water was appurtenant and went with the land, and, consequently, there being a failure of title as to part, the money could be recovered, cannot be sustained for two or three very good reasons: First, there was no conveyance of the right, and no covenant; second, if such had been the case, plaintiff in error could not recover the money, as neither land nor water was conveyed to him. It could, if recoverable at all, be recoverable only at the suit of the grantee. Wood having been the purchaser and grantee direct from the defendant in error, and the paper given the plaintiff in error having been but an option, he could acquire no right individually to the water, separated from the land, unless by showing that he had been damnified and had been compelled to pay the money to make good Wood's title, and therefore had a right to have it refunded. It is not pretended that such was the fact. In any view I can take of it, plaintiff failed to make a case which would warrant a recovery. It follows that the judgment of nonsuit was right, and should be affirmed.

(1 Colo. App. 5) STANDARD ACCIDENT INS. Co. v. FRIEDEN

THAL.

(Court of Appeals of Colorado. June 23, 1891.) ACCIDENT INSURANCE-CONDITIONS-WAIVER-AC

TIONS.

1. In an action on an accident policy the answer alleged that one acting for defendant's agent delivered the policy without authority, before the premium had been paid, and then, likewise without authority, received part of the pre- . mium after the assured had been injured. The reply alleged that the person delivering the policy was an agent himself; that he waived the condition requiring payment of the premiums in advance, agreeing that part should be paid in cash later, as was done, and part in services. Held that, in view of the new matter set up in the answer, the reply was not a departure, and a demurrer thereto was properly overruled.

2. The person who delivered the policy having all the apparent authority of a general agent, and therefore being such as to third persons, the insurer is bound by his waiver of the condition as to payment of premiums.

3. The reception of incompetent evidence is not ground for reversal where the trial was by the court, as it will be presumed, nothing appearing to the contrary, that the judge, being familiar with the rules of evidence, disregarded it.

Appeal from district court, Chaffee county.

It is alleged that on the 21st day of April, 1886, the appellant issued and deliv. ered to Eugene H. Teats an accident insurance policy, to be effective for 12 months from its date, whereby Teats was to receive from the insurance company $25 a week for loss of time in consequence of any bodily injury sustained by him during the existence of such policy, through external, violent, and accidental means, which should wholly disable him from transacting his business as a mining superintendent; that on the 26th day of April, 1886, Teats received a bodily injury that entitled him to such compensation by the terms of the policy of insurance, and that he was wholly disabled for the period of 13 weeks, and was entitled to receive the sum of $325; that on the 7th day of August, 1886, Teats sold, transferred, and as signed his claim against the appellant to Friedenthal, the appellee. Friedenthal brought suit for the sum of $325 and costs. The appellant answered, denying the material allegations in the complaint, and for further and special answer alleged that Teats did make application to one A. R. Hoyt, then acting for an agent of the appellant, as alleged in the complaint; and that by the terms of the application and the policy which was issued it was provided that Teats should pay as a premium to the appellant for the policy, and as a condition of obtaining it, $37.50. That Teats did not pay the sum of $37.50 nor any part of it, and that the policy of insurance was by Hoyt, without any right or authority, delivered to Teats without the payment of the premium as required; and that by reason of the failure of Teats to pay the premium, the appellant was not liable. That after the accident, and on the 28th day of April, Teats paid to A. R. Hoyt $10, which Hoyt had no authority to receive, and that at the time of receiving the injury there was none of the premium paid; consequently, that the appellant was not liable upon the policy of

insurance. A replication was filed, in which it was denied that Hoyt, at the time of issuing the policy of insurance, was acting for an agent of the appellant, and alleging that Hoyt was the agent of appellant, and had full power and authority to make contracts for insurance and to issue and deliver policies of insurance; and that, by virtue of such agency, he made the contract of insurance and issued the policy, and signed and executed the same as the agent of the appellant, and delivered the policy to Teats. Admits that there was a condition in the policy and in the application to the effect that Teats should pay $37.50 premium; and admits that the condition provides that the policy should be void unless the premium is paid before the injury was received, but alleges that the agent, Hoyt, waived the condition and delivered the policy, and expressly agreed with Teats that the premium should not be paid in cash, and was to be paid at some subsequent time. That Teats had under his control, as mining superintendent, a large number of men, whom Hoyt was desirous of insuring, and solicited Teats to use his influence with the men to induce them to insure with Hoyt, and that Teats was to pay $10 in cash at some future time, and the balance was to be paid in services in soliciting the insurance of the men; and that he paid $10 to Hoyt us alleged in the answer. A demurrer was filed to the replication. The demurrer was overruled. A trial to the court without a jury. Judgment for the appellant in the sum of $310. From such judgment this appeal was taken. Testimony was very brief and uncontradicted. The deposition of Teate was read, in which he testified to the arrangement and agreement with Hoyt, by which the condition of the policy was waived, and the policy was delivered, to be effective and operative from its date. That he (Teats) was to pay $10, and use his influence with the men to secure business and insurance for the company of appellant, and that the contract was that the premium should be $25, instead of $37.50; that he paid the $10, but not until after the accident occurred, and that it was accepted by Hoyt. That within three days after the accident he furnished appellant proof of the injury as required by the policy. A copy of the insurance policy was also put in evidence, signed at the bottom: "A. R. HoYT, Agent at Leadville, Colorado. C. C. BOWEN, Secretary. D. M. FERRY, President. Countersigned this 21st day of April, 1886. A. R. HOYT, Agent. Indorsed upon such policy, among other conditions, was the following: "The policy shall not take effect unless the premium is paid prior to the happening of any accident under which claim is made." Also a copy of the application in which, among other statements, occurs the following, which is the only one necessary to be noticed in this connection: “(9) My premium for this period is $37.50. Proper proof, as required by the company, appears to have been made of the injury and its nature, and the length of time that Teats was disabled by reason of such accident, accompanied by the cer

tificate of the attending physician. In the deposition of Teats it is stated: "An officer of the company from Detroit, Michigan, also General State Agent Harrison of Denver, notified me that they would be in Buena Vista to adjust the claim. They came, and, in the presence of D. C. Sindlinger, asked me to discount the claim; but no special amount was offered." The appellant objected to the reading of this portion of the deposition. It was allowed to be read, and the court reserved the decision of its admissibility until the final decision of the case. The overruling of the demurrer to appellee's replication is assigned for error. Also the overruling of the objection made to the deposition of the witness Teats, and that the judgment in favor of appellee and against the appellant was er

roneous.

Patterson & Thomas, for appellant. George K. Hartenstein, for appellee.

REED, J., (after stating the facts as above.) There were no issues of fact to be determined in the case. The facts appear to have been conceded, at least there was no serious controversy. The first question arises upon the pleading. It is claimed that there was a departure, that the replication set up a new cause of action not embraced in the complaint, and that the court erred in overruling the demurrer. I cannot adopt this contention. The contract of insurance was one of in. demnity, to indemnify the insured to the extent of $25 a week for all time he should, by accident, be disabled from performing the duties of a mining superintendent for the term of one year from date. The premium expressed in the policy was $37.50. The language of the policy is "in consideration of the representations in the application for this policy and of thirtyseven dollars and fifty hundredths, does hereby insure, etc. The policy, though not containing a receipt for the $37.50 in so many words, was signed by the agent, and delivered, and became the contract of appellant, and the language used, ". "in consideration * and of $37.50 does hereby insure," etc., imports the payment prior to the delivery as the consideration for the delivery of the contract to the insured. When delivered, it became operative, and could only be impeached by showing that it had been obtained improperly or fraudulently by the insured in such manner as to negative the fact of the legal and voluntary delivery of the policy by the appellant. When delivered and operative, all that was necessary primarily was to allege the contract of insurance,the happening of the contingency whereby the insurer became liable to pay by reason of the contract, and the amount of indemnity to which the insured was entitled. Anything impeaching the validity of the contract should have been alleged by way of defense. This was attempted, but the matters set up were not such as impeached the contract,-not acts of the insured by which the policy was defeated or improperly obtained, but the alleged improper acts of appellant's agent, which could not amount to a defense. Had appellee demurred to the special defenses

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