* *

premises named herein except in dwelling | the intent been the same it seems to us that houses where not exceeding five days are allowed for repairs."

such would have been the language.
And so in the case at bar. Had the intent
been to make a warranty of the stipulation
in relation to the sprinkler, it would have
been so expressed as it was in the other
clauses above mentioned.

The case of Au Sable Lumber Co. v. Detroit, etc., Ins. Co., 89 Mich. 407, 50 N. W. 870, was cited by this court in the case of

It is unquestionably true, however, that there are cases, though not by any means a majority of the hundreds of cases that have been decided upon this question, that hold to the strict rule contended for; but in grateful contrast to those courts which adopt the rule of strict construction by, it seems to us, making a fetich of words, expressions, and defini- | Hart, supra, and it was there said: "If it tions, and attributing potent magic to the word "warranty," or words of similar import, comes like a refreshing breeze from the sea of judicial enlightenment, the voice of the Supreme Court of Kentucky, in Germania Ins. Co. of New York v. Rudwig, 80 Ky. 223, where the rule is condemned. In the course of the opinion it was said: "There is no doubt that an insurance company relies upon the truth of the representations made in either case, and equally certain that, if untrue and material to the risk, no inquiry will be directed for the purpose of determining whether the statement was fraudulently or innocently made. The injury to the insurer is the same, but when no injury can possibly result to the company, where is the breach and what is the penalty? It would certainly be no breach of warranty in a chattel if the quality was better than that warranted, unless the inferior article alone would conform to the wants of the purchaser; and if a breach, the damages would be merely nominal; but in regard to insurance contracts, that it neither increased nor diminished the risk, and it could not have influenced the ac tion of either party in making the contract, is seized upon as a ground for forfeiting the entire policy and depriving the assured not only of the benefits of the contract, but permits the insurer to retain all the premiums paid. * * * Such contracts are to be interpreted like other agreements, and must be governed by the same rules, good faith being especially required, as one of the parties is necessarily less acquainted with the details of the subject than the other." The defense in this case was raised because the applicant had made a mistake as to the age at which his father and mother died; and had also violated the provisions of the contract in relation to going outside of certain territory for a limited time, which was forbidden by the contract.

was intended that any failure to keep a watchman rendered the policy void, the parties would have so declared." That case was expressly in point in the case considered, and we think is as clearly in point in this case. To the same effect is McGannon v. Michigan Fire Ins. Co., 127 Mich. 636, 87 N. W. 61, 54 L. R. A. 739, 89 Am. St. Rep. 501. Selby v. Mut. Life Ins. Co. (C. C.) 67 Fed. 490, was practically the same kind of a case, where the parties had fixed the penalty for breach of warranty by stipulations in the contract in relation to some things, but not in relation to the matter which constituted the defense. In Phoenix Assur. Co. of London v. Munger Mfg. Co. (Tex. Civ. App.) 49 S. W. 271, it was decided that a temporary breach of a stipulation in a policy to which there was not attached a specific forfeiture, which breach did not exist at the time of the fire loss, and which did not contribute thereto, does not prevent recovery on the policy. The appellant contends that this case is not applicable to the case at bar, but it seems to us that the case is exactly applicable, both as to what is stated in the opinion of the court, and as to the matters decided. In Sumter Tobacco Warehouse Co. v. Phoenix Ins. Co., 76 S. C. 76, 56 S. E. 654, 10 L. R. A. (N. S.) 736, 121 Am. St. Rep. 941, where an insurance policy provided that an increased hazard within the knowledge of the insured would avoid the policy, the owner of the building insured rented to a tenant a portion thereof to be used for a business more hazardous than contemplated by the policy, and it was held not to avoid the policy, because the temporary hazard ended without loss and the loss occurred from another source, the court saying: * And if a temporary change of position increasing the risk while it lasts, but discontinued before the fire, does not totally avoid the policy, but simply suspends it during the prohibited use, the provisions of the policy above quoted cannot avail the defendant."

In Westfall v. Hudson River Fire Ins. Co., 2 Duer (N. Y.) 490, where a clause in the policy of insurance declared against the use of camphene, etc., it was held that there was This case answers the contention that is no evidence that the loss resulted from the made much of, that by reason of the proviuse of camphene, and if there was no other sion in the policy that the sprinkler system evidence than the breach of the alleged war- should be employed the insured obtained inranty, the plaintiff was entitled to judgment. surance at a considerably less price than he Said the court: "If the use of camphene was could have obtained it for if there had been meant to be prohibited in the same sense as no such provision. But it seems to us there the storage of gunpowder, we can discover no is no merit in this contention, for the reareason why the prohibitions are not express, son that the limited price was accorded to

stalling of the sprinkler system there would be less liability of fire, the object and efficacy of the system being to put out incipient fires. It may have been that that object was attained in this case many times before the fire which had occurred, through the agency of this sprinkler system. But, in any event, the object was attained and inured to the benefit of the insurance company, when it is coneeded that the sprinkler system was in vogue and in good running order at the time of the fire; and when it must be further conceded that, if it had not been installed at the time of the fire the insured could not have recovered at all. The case just quoted, in the course of its argument, says: "The reasoning in Kyte v. Insurance Company [149 Mass. 116, 21 N. E. 361, 3 L. R. A. 508], the Massachusetts case just referred to, is that, unless the policy be regarded as at an end the moment the hazard is increased, the insurance company would be held to furnish insurance for which it had not received the compensation it was entitled to demand and which with knowledge of the facts it would have demanded. But this reasoning seems fallacious, for the insurer is generally held to be not liable at all if the fire occurs during the continuance of the increased risk and in consequence of it.

effect." These words are construed to mean that the policy shall become inoperative only while the increased risk shall be in existence, and when it terminates the liability of the company shall recommence. This case was reaffirmed in Insurance Company of N. A. v. McDowell, 50 Ill. 120. In Traders' Ins. Co. v. Catlin, 163 Ill. 256, 45 N. E. 255, 35 L. R. A. 595, it was held that the change of the use of an insured building increasing the hazard will not prevent recovery, where such use has been abandoned without the declaration of a forfeiture by the company before a loss occurred, and such increase of the hazard in no way continued to affect the risk at the time of the loss, although there had been a stipulation that there should be no increase of hazard. The language in that stipulation was plain and emphatic, being as follows: "If the assured shall fail to make known to the company at once any fact or circumstance which renders the risk more hazardous than at the time of the insurance or if the hazard be increased by any means within the control of the assured, or if gasoline or petroleum or any of its products are deposited or kept or burning gas is made, generated or carbureted within the building and contiguous thereto, then and in every such case this policy shall be void unless consent is indorsed by the company thereon."

Appellant in its reply brief answers this It was contended by the learned attorney case by saying that no warranty was involv- for the insurance company in that case that ed in it, and there was no discussion therein the case which we have just cited from Illiof the law of warranty; but there was a nois had been determined upon the authordecision of a case which involved the iden- ity of Insurance Company v. Wetmore, supra, tical question which is presented in this case. and that that case had not really determined The underlying principle was discussed and the questions raised in the subsequent cases decided without, possibly, any mention of and the question which was raised in the the word "forfeiture," and it is really a more case of the Traders' Insurance Company, helpful case in determining the question un- now under consideration. But, notwithstandder discussion than if it had been hampered ing that contention, which seems to have by a discussion of terms and expressions. some merit in it, the court refused to retreat In New England Fire & Marine Ins. Co. v. from the principles announced in the subseWetmore, 32 Ill. 221, where a policy of in- quent cases, and emphatically held that the surance provided that, should the premises representation was not a continuing one, insured be applied during the term of in- and did not avoid the policy. It is contendsurance to any prohibited use, the policy ed by appellant, as in the preceding case, thenceforth and so long as the same should that the court in Illinois was not considerbe so prohibited and applied or used shoulding a warranty, and that there was no discease and be of no force or effect, it was held that the application of the property to a prohibited use within the term would not affect the right of the assured to recover in case of a loss, if at the time of the loss the property was not being so improperly applied or used, and it did not appear that such antecedent misapplication or use increased the risk or contributed to the loss.

In Schmidt v. Peoria Marine & Fire Ins. Co., 41 Ill. 295, it was held that, where it was provided in a policy of insurance, that, "if after insurance is effected either by the original policy or the renewal thereof, the risk be increased by any means or occupied in any way so as to render the risk more hazardous than at the time of the insurance, such insurance shall be void and of none

cussion in the opinion as to a breach of
warranty, and no reference whatever made
to the law of warranty. But we have the
same answer to make to this criticism that
was made supra. It is insisted, however,
that the Supreme Court of Illinois in the
case of Norwaysz v. Thuringia Ins. Co., 204
Ill. 334, 68 N. E. 551, expresses the view of
the Supreme Court of that state on the
subject of forfeiture. This case is also cited,
by appellant in its reply brief, but an exam-
ination of the case shows that it in no way
contravenes the doctrine just cited. There
the policy provided that it should be void
if gasoline was kept on the premises except-
ing by permission, and the testimony shows
that not only was gasoline kept on the prem-
ises between the time that the policy was

issued and the time of the fire, but that it was on the premises at the time of the fire. The court in its opinion stated that that proposition had been firmly established and undisputed, and that the burden could not be thrown upon the insurance company to prove that the fire was attributable to the unlawful storing of the gasoline in the house. This opinion seems to be in consonance with both reason and authority.

In Born v. Home Ins. Co., 110 Iowa, 379, 81 N. W. 676, 80 Am. St. Rep. 300, where a policy on property provided a forfeiture for mortgaging it without the company's consent, and assured did mortgage a portion of the property, but before loss paid the incumbrance. It was held that such payment operated to restore the property to the protection of the policy, and hence plaintiff was entitled to recover for the loss thereof. "The theory," said the court, "upon which an existing mortgage is held to be a violation of the clause in a policy against an increase of risk is that it does increase the risk." But, according to the opinion of the court, there was no increase of the risk after the mortgage had been paid off. So the theory upon which the insurance company in this case stipulated for the installment of the sprinkler system was that such installment would decrease the risk. And it did increase the risk during the time it was not in working order, but the same reasoning would apply as in the mortgage case in holding that, after its installment, the increase of risk would be at an end.

had been insured and contrary to the provisions of the insurance policy, he was allowed to recover the value of the insured property destroyed by showing that, at the time of its destruction, it was free from the lien of the mortgage; citing Ins. Co. v. Schreck, 27 Neb. 527, 43 N. W. 340, 6 L. R. A. 524, 20 Am. St. Rep. 696. In Hinckley v. Germania Fire Ins. Co., 140 Mass. 38, 1 N. D. 737, 54 Am. Rep. 445, it was held that the temporary illegal use without a license of property insured, if uncontemplated at the time of taking the policy, would not of itself and as a matter of law render the policy void during the whole of the rest of the time it was to run. It would simply vitiate the policy during the time of the illegal use and, when the illegal use stopped, the policy would revive; the court saying: * It is not the necessary meaning of the word 'void,' as used in policies of insurance, that it shall under all circumstances imply an absolute and permanent avoidance of a policy which had once begun to run; but the meaning of the word is sufficiently satisfied by reading it as void or inoperative for the time being"-citing Phillips on Insurance, § 975, where it is said: "After the policy has begun, so that the premium has become due, it assuredly is but equitable that a temporary noncompliance should have effect only during its discontinuance. To carry it further is to inflict a penalty on the assured, and decree a gratuity to the insured, who is thus permitted to retain the whole premium when he has merited but part of it"-citing many cases to sustain the rule.

It is useless to cite a greater number of cases. But we are satisfied, from an examination of all the cases cited by both appellant and respondents, and of all that we have examined on our own motion, that the statement of Elliott on Insurance above quoted, to the effect that the weight of authority seems to support the view that a violation of a condition that works a forfeiture of the policy, merely suspends the insurance during the violation, is a correct announcement. In Traders' Ins. Co. v. Catlin, supra, the court, to show the fallacy of the rule contended for, says: "That a recovery on a policy on a building in the center of the burned district in Chicago's great fire should be defeated because a gallon of gasoline was therein kept and used a year before that time, does not commend itself as a reasonable rule."

In Athens Mut. Ins. Co. v. Toney, 1 Ga. App. 492, 57 S. E. 1013, the policy contained the following provision: "This entire policy unless otherwise provided by agreement indorsed herein or added hereto shall be void * if a building herein described whether intended for occupancy by owner or tenant be or become vacant or unoccupied and so remain for ten days." The house covered by the policy became vacant and unoccupied and so remained for 30 days, when it was reoccupied. The house was destroyed after reoccupancy. Held, that the policy did not become absolutely void by reason of the house having become vacant and remaining so for 30 days, but the insurance was merely suspended during the period of violation and revived upon the reoccupancy of the house and became again of binding force and effect. In President, etc., of Ins. Co. v. Pitts, 88 Miss. 587, 41 South. 5, 7 L. R. A. (N. S.) 627, under a provision of a fire policy that it should be void if the building To still further show the fallacy, by disbe or become vacant or unoccupied and so torting the proposition, yet still leaving it remain for 10 days, where the building was within the bounds of possibility or even unoccupied for more than 10 days, but a probability, under the rule contended for if fire occurred afterwards during its occu- the holder of a life insurance policy in the pancy, it was held that the policy did not state of Washington, which prohibits by its become void. In Omaha Fire Ins. Co. v. terms the departure of the applicant from Dierks, 43 Neb. 473, 61 N. W. 740, where an the territory of the United States, should insured incumbered his personal property inadvertently or otherwise straggle across

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Okl.)

BROOKS v. HINTON STATE BANK.

therefor and swore thereto before S. B. Gor-, tablished when the evidence discloses that man, township trustee; that on the same one person has another's money which he day, being indebted to plaintiffs for mate- in equity and good conscience has no right rial furnished him in the construction of the to keep. In such a case there arises an imbridge, he made out an order, which read: plication of law that he will pay it over. "Bridgeport, O. T., 4-18-1904. To the Hon- This was so held by this court in Allsman v. orable Board of County Commissioners of Oklahoma City, 21 Okl. 142, 95 Pac. 468, 16 Caddo County, O. T.-Gentlemen: Pay to L. R. A. (N. S.) 511, where the second section Brooks & Flanagan out of contract for what of the syllabus reads: "An action will lie to is known as Henley Bridge, sections 10 and recover a sum certain whenever one has the 15, amount of it to be paid Brooks & Flana- money of another which he in equity and gan is $165.00. C. H. Patterson"-and pin- good conscience has no right to retain." The ned it to said claim. In this shape it was doctrine is thus broadly stated by the Suthen turned over to said township trustees, preme Court of the United States in Myra who turned it over to defendant in error, Clark Gaines v. Charles Miller, Adm'r, 111 U. which procured an assignment written upon S. 395, 4 Sup. Ct. 426, 28 L. Ed. 466, where the body of the claim, which reads: "Bridge- the court said: "Whenever one person has port, O. T., April 20-1904. I hereby assign in his hands money equitably belonging to Pickthe within claim to the Hinton State Bank, another, that other person may recover it by C. H. Patterson." With both assignments assumpsit for money had and received. on the claim it was, by the bank, then for- ard v. Banks, 13 East, 20; Spratt v. Hobwarded to the county clerk, filed, approved, house, 4 Bing. 173; Isreal v. Douglass, 1 H. audited, and allowed, and the following in- Bl. 239; Beardsley v. Root, 11 Johns. [N. Y.] 406; Hall v. Marston, 17 Mass. 575; Claflin dorsements made thereon: V. Godfrey, 21 Pick. [Mass.] 1."

No. 2953. Claim of C. H. Patterson against Caddo county, Oklahoma, for bridge material. Filed 22d day of April, 1904.

Fremont Boyle, County Clerk. $258 82 Amount claimed Amount approved 22d day of April, $258 82 1904, for building bridge. Audited and allowed on R. & B. fund this 22d day of April, 1904.

C. W. Ludwick, Chairman.

While in the office of the county clerk the assignment by Patterson to Brooks & Flanagan of their part of the claim became detached and lost, and a controversy arose as to whom and in what amounts the claim should be paid. In passing on the matter the board of county commissioners made the following order: "There seeming to be a controversy over claim 2953 allowed to C. H. Patterson, different parties claiming to have an assignment of said claim, the clerk is hereby directed to draw one warrant for $194.12, and one warrant for $64.70, the two warrants to cover claim 2953; and he is further directed to hold said warrant awaiting the further direction of the board."

Later, the attorney for defendant called for and received the warrant for $194.12, the amount of plaintiffs' claim, concerning which there appears this entry: "Paid by warrant No. 193, claim 2953, $194.12, issued July 29, 1904, Series C, in favor of C. H. Patterson. For what purpose: Building bridge. Received this order the 6th day of August, 1904. Carl Glitsch, Attorney." Plaintiffs sue to recover the $194.12 paid by the treasurer to defendant on the warrant. We think they are entitled to recover, and that the court erred in sustaining the demurrer to the evidence.

Sebastian Brand et al. v. James W. Williams, 29 Minn. 238, 13 N. W. 42, was a suit in assumpsit for money had and received. The facts set forth in the complaint in substance were that the sheriff of Lyon county held in his possession a stock of goods belonging to Robinson & Mass under certain levies of executions against them, in favor of certain creditors, including plaintiffs; three of said executions, amounting to some $2,000, were prior to plaintiffs', which was next, and amounted to over $1,000; that under these executions the sheriff sold the goods for $4,000 in cash, sufficient to cover costs and fees, and to satisfy all said executions; that defendant knowing plaintiff to be entitled to satisfaction out of said sum induced the sheriff to turn over to him all of the proceeds of said sale left after payment of the first The court gave execution, and refused to pay plaintiff his share thereof on demand. judgment for defendant on the pleadings. Held error, and the case reversed. The Supreme Court in passing, in effect, held, and declared the proposition elementary, that an action in assumpsit for money had and received would lie whenever one man has received or obtained the possession of the money of another, which he ought in equity and good conscience to pay over; that there need be no privity between the parties or any promise to pay other than that which results or may be implied from one man's having another's money, which he has no right in conscience to retain; that when the fact is · proved that he has the money, if he can show no legal or equitable ground for retaining it, the law implies the privity and the promise.

Zwang Brewing Co. v. Bernheim, 7 Colo. We gather from the briefs that the trial court predicated its action on the ground that App. 528, 44 Pac. 380, was a suit by Bernthe evidence failed to disclose any privity of heim Bros. against the brewing company to compel them to pay over money had and recontract on which to found the action. think there is sufficient privity. This is es-ceived for plaintiff's use. They and Uri were

We