owner of the note, and that it became such in August, 1870, one of them stating that it acquired its title by indorsement from the Clow Reaper Manufacturing Company, and that it has owned it ever since. If this were all the evidence on the point, the plaintiff would be entitled to a verdict. The indorsements on the note raise the doubt as to the ownership. These are without date, and are unexplained. The Reaper Manufacturing Company indorses the note in blank. The next indorsement is, Pay Messrs. Goodsell Bros., or order. Rock County National Bank of Janesville, Wisconsin.' From these two it appears that, previous to the last, the bank became the owner, and then transferred to Goodsell Bros. Then follows this indorsement: Pay to Rock County National Bank, Janesville, Wis., for collection." Goodsell Bros.,' which is the last on the note. If this last indorsement vested in the bank such title as to make it a proper plaintiff in a suit on it, then there is no conflict of evidence, and the verdict should have been for plaintiff. If it does not pass the title and interest in the note out of Goodsell Bros., then the indorsements make it appear that they are the owners, and a conflict is thus raised between_the_indorsements and the oral testimony. It was held, in some cases, that the beneficial owner of a negotiable bill or note, payable to bearer or indorsed in blank, might institute suit on it in the name of any one who would allow his name to be used for that purpose, and that unless the maker had a defence to the note, good against the real owner, he could not be permitted to show that the plaintiff was not the real party in interest. Morton v. Rogers, 14 Wend. (N. Y.) 575; Lovell v. Evertson, II Johns. (N. Y.) 52; Conroy v. Warren, 3 Johns. Cas. (N. Y.) 259, 264.

"Although this rule might be correct at common law, it certainly is not good under the statute of this State, which provides that 'every action shall be prosecuted in the name of the real party in interest.' Gen. Stat. ch. 66, 26. To this there are exceptions made by § 28, but the case of this indorsement would not come within them. Although this form of indorsement is, and probably has long been, in very common use, we find no case which decides its effect upon the title to the note. There are several cases, in England, of indorsements such as Pay to A. for the account of' the indorser, or Pay to A. or order, for my use,' in which cases it seems to be

And

held that the note and the money, when paid on it, are the property of the indorser. Trenth v. Barandon, 8 Taunt. 99; Sigourney v. Lloyd, 8 B. & C. 622; Lloyd v. Sigourney, 5 Bing. 525. this, we think, is the case with the indorsement under consideration. It is apparent from the language used that it was not the intention of the indorser to make the indorsee the owner of the note, or of the money after collection, but simply to give him authority on the note to collect it. The relation of the indorser and indorsee is that of principal and agent; the agent cannot be the real party in interest' in a suit brought on the note. This being so, there was a question of fact as to the plaintiff's title for the jury to determine upon all the evidence, written and oral, and we cannot say that there is not evidence to sustain the finding." Rock County National Bank of Janesville, Wisconsin, v. Hollister, 21 Minn. 385.

Therefore, where a note has been indorsed "for collection" the indorsement is restrictive, and parol evidence to show it absolute is inadmissible. Third National Bank of Syracuse v. Clark, 23 Minn. 263.

For or in consideration of.-Upon this phrase Lord Hobart says: "I must begin with the consideration of the nature and operation of a grant of one thing for another. Whereupon I lay this ground, that regularly this word (pro), or in consideration, doth not import a condition, or make the grant defeasable, though the thing taken in lieu be either taken away by the giver wrongfully, or by any other person upon a just title, so as the thing given be wholly lost. And therefore if J. S. give W. Acre to J. N. for B. Acre, and so e converso, without the word of exchange, it will not be defeasable; nay, more, if they use the proper word of exchange, and that be executed, a wrongful entry of either party will do no hurt, but a rightful eviction will. But without the proper word of exchange, though perhaps it were meant in the nature of an exchange, it will not defeat. But it is true that the word (pro) in some cases hath the force of a condition, when the thing granted is executory, and the consideration of a grant is a service or some other like thing, for which there is no remedy but the stopping of the thing granted, as in the case of annuity granted for counsel, or for doing the office of a steward of a court; or the service of a captain, or keeper of a fort. Ughtred's Case, Co. 7 lib. And in those cases the condition is not precedent, and

therefore needs not to be averred performed when the annuity is demanded; and these cases are within the reason of an exchange, where the land given is evicted, for here the failure of counsel or service is a kind of eviction of that that is to be done for the annuity, in as much as he hath no means either to exact the counsel or recompense for it. but to stop the annuity. And it is to be noted that this hath so far the force of a condition, that it being denied once, it doth avoid the annuity; not for that one payment, but forever, which is to be noted for use after in the principal case. 5 H. VIII. 10. I covenant with J. S. to give him ten pounds to serve me a year; in his action for his money he must count for his service done, and it seems, though he hath covenanted e converso to serve me, for though in that case I might have an action for the service, yet it is not as of an estate vested of land of inheritance, as the case is here. In another case it works by condition precedent, as in all personal contracts, as, I sell you my horse for ten pounds, you shall not take my horse except you pay me ten pounds. 18 E. IV. 5; and 14 H. VIII. 22. Except I do expressly give you day, and yet in this case you may let your horse go, and have an action of debt for your money, and so may the tailor retain the garment till he be paid for the making, by a condition in law." Cowper v. Andrews, Hobart, 39.

Therefore it was held that a workman, having bestowed his labor upon a chattel, in consideration of a price fixed in amount by his agreement with the owner, may detain the chattel until the price be paid, and this though the chattel be delivered to the workman in different parcels and at different times, if the work to be done under the agreement be entire, the court, Lord Ellenborough, C. J., saying: Considering the operation of the word 'for,' as noticed by Lord Hobart. whose opinion is confirmed by the cases he refers to, and by others also, no reason can be assigned for saying that it shall not have the same effect in a contract to grind a load of wheat for 15 shillings, as in a contract to sell a load of wheat for 15 pounds." Chate v. Westmore, 5 Maule & Selwyn, 180.

And Lord Chief Justice Holt, in holding that if A, having mortgaged certain lands to B, agree to make a release of his equity of redemption, in consideration of which B agrees to pay A the sum of seven pounds, the making of the release a condition precedent to the pay

ment of the money, he said: "The whole question will be here, whether the plaintiff could have an action before the release. And as to that, it has been urged that in this case there were mutual promises, and the one promise is the consideration of the other, and that then he that brings the action needs not aver any performance of his side; and this likewise would be a true and necessary consequence if the premises were true. But where the one promise is the consideration of the other, and where the performance, and not the promise is it, is to be gathered from the words and nature of the agreement, and depends entirely thereupon; for if in this case there were a positive promise that one should release his equity of redemption, and on the other side that the other would pay seven pounds, then the one might bring his action without any averment of performance; but this agreement is not so, but that the plaintiff should release his equity of redemption, in consideration whereof the defendant was to pay him seven pounds; so that the release is the consideration, and therefore being executory is a condition precedent which must be averred. And whereas there seems to be a variance in the books upon this learning, it will be fit on this occasion to settle it: and I agree the case in Hob. 58 to be good law; for there is a positive agreement that one shall deliver a cow to the other, and that the other shall give him so much money, and therefore the action lies for either side, without performance of his promise; but if by the agreement A were to deliver B a cow, and that for it B were to deliver him a horse, there the delivery of the cow would be a condition precedent, and therefore ought to be performed before A can bring his action, and upon this diversity the books are reconcilable. 15 H. VII. 10, pl. 17. If A covenant with B to serve him for a year, and B covenant with A to pay him ten pounds, then A shall maintain an action for the ten pounds before any service; but if A had covenanted to pay ten pounds for the said service, there A could not maintain an action for the money before the service performed. And there is great reason for this diversity, for when one promises, agrees, or covenants to do one thing for another, there is no reason he should be obliged to do it till that thing for which he promised to do it be done; and the word 'for' is a condition precedent in such cases. But upon this head some diversities are to be observed. First, if there be a day set for the payment of money, or doing the thing which

one promises, agrees, or covenants to do for another thing, and that day happens to incur before the time the thing for which the promise, agreement, or covenant is made, is to be performed by the tenor of the agreement; there, though the words be, that the party shall pay the money,' or 'do the thing for such a thing,' or 'in consideration of such a thing,' after the day is past the other shall have an action for the money or other thing, although the thing for which the promise, agreement, or covenant was made was not performed: for it would be repugnant there to make it a condition precedent; and therefore they are in that case left to mutual remedies, on which, by the express words of the agreement, they have depended. See 48 Edw. III. 2, 3, cited in Ughtred's case, 7 Co. 10, b, where the diversity is taken when there are mutual remedies and not. Secondly, if there be a day for the payment of money, or doing of other act for another, and that day is to be after the performance of the thing for which the promise, etc., was made, there, if the agreement be to pay the money, or do other thing, 'for' or 'in consideration,' or such other words that would make a condition precedent, these such things, for the doing or performing of which the other agrees to pay the money, or do other thing, must be averred to maintain an action; and for this see Sir W. Jones, 318. The executor of A brought an action on the case against B, declaring, that in consideration A in his lifetime did promise to assure certain lands to B before Michaelmas next, B promised to pay him so much money for the land; so the assurance was to be made before Michaelmas, and the money was to be paid for the land and consequently after Michaelmas, for A had time till Michaelmas to make the assurance; and be cause the assurance was to have been made first, and the money by agreement to be paid for the land, though there were mutual promises, yet it was ad judged the action would not lie for the. money without making the assurance first. . . . Ughtred's case has afforded a ground for a variety of opinions upon this question; but such as seem against these diversities laid down by me shall receive a full answer. . . . There are some other scattered authorities in the books of this kind. But let us now see the reason of the thing. What is the reason that mutual promises shall bear an action without performance? One's bargain is to be performed according as he makes it. If he make a bargain, and

rely on the other's covenant or promise to have what he would have done to him, it is his own fault. If the agreement be that A shall have the horse of B, and A agree that B shall have his money, they may make it so, and then there needs no averment of performance to maintain an action on either side; but if it appear by the agreement that the plain intent of either party was to have the thing to be done to him performed, before his doing what he undertakes of his side, it must be then averred: as where a man agrees to give so much money for a horse, it is plain he meant to have the horse first, and therefore he says the money shall be given for the horse. And it would be very dangerous to make every cursory agreement of parties to amount to mutual promises to bear an action without averment of performance; and therefore if two meet, and the one has a horse to sell, and the other would buy one, and they agree on the price, and then part without any earnest, or reducing the matter solemnly into writing, there, though there be no words of condition precedent, such cursory agreement ought not to be admitted as evidence of a mutual agreement; and it ought not to pass for a contract, but rather for a bare communication. But if there be a solemn transaction, as writing, as that A should deliver his horse to B, and no time appointed, and that B should pay so much money to A there, if there be not the word 'for,' or other words of condition precedent, a mutual action will lie, without averment of performance, but if it be only a discourse, without the solemnity of writing, earnest, etc., it ought not to be allowed. Covenants were between A and B that A should bring 500 soldiers to such a place by a day certain. to be transported, and that B should attend there with ships to transport them, and both parties failed; and the question was whether, though A had brought no soldiers, B had broke his covenant, in not being ready with ships? And held that B had broke his covenant, though A had not brought the soldiers. But this differs from our case; for there are two distinct acts to be done; one is to be ready with the soldiers, and the other with the ships; and the performance of the one does not depend upon the other; the doing of the one is not the reward for the doing of the other; but they are distinct acts, and each party to do his part, there was also a day appointed. And this is not a hard case, for they are mutual acts, not depending the one on the other. But in our case the money was

to be paid for the release; and a vast difference. And the seven pounds being to be paid in consideration of making the release, the words in consideration make a condition precedent, which till performed does not entitle the plaintiff to action. Then the seven pounds were not demandable here, and consequently not dischargeable by the general release of all demands." Thorp v. Thorp, 12 Modern Rep. 455, 460.

For whom it may concern.-(See CONCERN.(-D. effected an insurance on the ship Mohawk, in his own name, "for whom it might concern,” being at the time agent of one K., who subsequently sold the ship to N., administrator of C. In an action by N. against D. to recover the amount paid to him as insurance of the ship, it was held that the phrase "whom it may concern" in a policy meant not any and every body who might chance to have an interest in the thing insured, but such only as are in the contemplation of the contract, Buchanan, C. J., saying: "But 'whom it may concern is a technical phrase, common to policies of insurance, and is understood to mean not any and every body who may chance to have an interest in the thing insured, but such only as are in the contemplation of the contract. Such a policy supposes an agency, and proceeding upon that ground looks only to the principal in whose behalf or on whose account the agent moves in the transaction; and he for whose benefit the insurance is procured is the person in the contemplation of the contract-is he whom it alone concerns. The inquiry, therefore, in such cases, always is for whose benefit, on whose account, was the insurance obtained, and that not appearing upon the face of the instrument is a proper subject of extrinsic evidence, which comes in aid of the policy by pointing out the person to whom it is applicable, the party who is in fact concerned. And this is not confined to policies of insurance; but in the application of every instrument of writing, evidence aliunde is necessarily used to designate the proper subjectmatter to which it relates. The letters of Kane, therefore, were properly admitted in evidence for the purpose of showing that the defendant effected the insurances as his agent and under the authority derived from him, which disposes of the first exception, leaving the question of property in the ship, and the intention of Kane, at the time of directing her to be insured, to the effect and operation of the other evidence in the cause. It is well settled that where a policy has not

the general clause contained in this, or one of similar import, none can avail themselves of it but those who are named as the parties insured or on whose account it is expressed to be made. But it is equally clear that a policy in the name of one, with the general clause 'for whom it may concern,' will cover and protect the interest of any person for whose benefit it was intended, and who authorized it to be effected. And if, in the absence of any express order or authority from the owner, or any previous communication with him upon the subject, such policy is effected in his behalf, the intention at the time of the party effecting it to cover his particular interest will so connect him with the policy as that his adoption of it afterwards will cause it to inure to his benefit; the subsequent adoption of a policy by a party interested and for whose benefit it was intended, being deemed equiv alent to his prior order for insurance. On this principle the cases of Routh v. Thompson, 13 East, 274, and Hagedorn v. Oliverson, 2 Maule & Sel. 485, were decided." Newson v. Douglass, 7 Harris & Johns. (Md.) 417; s. c., 16 Am. Dec. 317.

The note upon this phrase in 16 Am. Dec. 323, treats the matter very fully, as follows: " For whom it may concern' are words often employed in policies of marine insurance. They have received a settled construction in harmony with that placed upon them in this decision [in the previous paragraph]. As is stated in 1 Phillips on Insurance, § 383: 'A policy made in the name of a particular person for whom it may concern," or with any other equivalent clause, will be applied to the interest of the party or parties, and only the party or parties for whom it is intended, by the person who effects or orders it, if such party has authorized its being made beforehand, or subsequently adopts it.' The intention, therefore, of the party effecting the insurance determines the application of this clause, where there has been no previous authority, and the validity of the insurance depends upon the subsequent ratification of the contract by the person intended. Buck v. Chesapeake Ins. Co., 1 Pet. (U. S.) 151; Banday v. Union Ins. Co., 2 Whart C. C. (U. S.) 391; De Bolle v. Pennsylvania Ins. Co., 4 Whart. (Pa.) 68; 1 Parsons on Mar. Ins. 47. Were there a previous authority, the intention of the party ordering the insurance or giving the authority must determine whose interests are concerned. Holmes v. United Ins. Co., 2

Johns. Cas. (N. Y.) 329. The question is vital in deciding upon the plaintiff's right to recover on a policy under the general clause referred to. This point was argued with considerable warmth by the supreme court in De Bolle v. Pennsylvania Ins. Co., 4 Whart. (Pa.) 68. Judge Kennedy, speaking for the court, adverts to the conclusion arrived at by Phillips on Ins., above quoted, and says: This would not only seem to be the fair deduction from the authorities on the subject, but to be supported likewise by reason, principles of sound policy, and natural justice. For if no evidence were required to be given, tending either to show that the plaintiff had, previously to the policy being effected, authorized it, or that it was intended for him, and he permitted to recover without this by merely showing his subsequent adoption of it, the party effecting the policy and having an interest on board of the vessel, which he intended to protect by it, after receiving what he had at stake, in safety, might sell and transfer his policy to others, whose goods on board of the same vessel had been lost by the perils of the sea, without any pol icy having been effected for the purpose of covering them, and thus expose the underwriters to a risk that was never contemplated in making the assurance. The injustice arising from the operation of such a principle is manifest, and there fore ought not to be sanctioned. It tends to destroy or prevent the equal chance of gain or loss to the parties, which is regarded in some measure as requisite to sustain the validity of the contract. Besides, it is obvious that it would tend to promote gambling policies, which are deemed void by the law of this State, Pritchett v. Ins. Co. of North America. 3 Yeates (Pa.), 458-461,—and to render them valid by subsequent events and the agreements of the party procuring them, with third persons, without or even against the consent of the insurers.' Although a policy 'for whom it may concern' cannot be transferred from one to another, so as to cover different objects owned by different persons not within the intention of either party to the contract, yet it is not essential that the party effecting such an assurance should have in mind any specific individual. He may intend it for whatever person should prove to have an insurable interest in the specified subject, in which case it will be applicable to the interest of any one subsequently ascertained to have such an insurable interest who adopts the insurDuncan v. Sun Insurance Co., 12 La. Ann. 486. Nor is it necessary that

ance.

those intended should be known to be so by the broker or by the insurer. Buck v. Chesapeake Ins. Co., 1 Pet. (U. S.) 151. In this case the intention of the court was directed to an instruction given below, that in policies of the description under consideration there can be no undue concealment as to the parties interested in the property to be insured.' The facts furnished a good illustration of the unsoundness of this general statement. The property insured was that of a belligerent. The court, per Johnson, J., said that to affirm the doctrine, as was done below, is obviously going much too far, since the underwriter has an unquestionable right to be informed f he makes inquiry. The assured may be silent, it is true, if he wil', and let the premium be charged accordingly; but if the inquiry then made should be responded to with information contrary to the verity of the case, this obviously gives a conventional signification to the terms of the policy, which may differ materially from the known and received signification in ordinary cases. He, for instance, who should insure for whom it may concern,' under an express assurance that there is no belligerent interest in the cargo, could not, upon any principle, be held to have made assursurance upon belligerent interest. This is no more than an application of the general principle, that assurance is a contract of good faith, and is void whenever imposition is practised.' By this same case it was recognized that a policy for whom it may concern' will, in ordinary cases, cover belligerent prop erty. And a like principle was stated in Seamans v. Loring, 1 Mason C. C. (U. S.) 128. As a general proposition, the clause we are considering, and others of similar import, apply only to those who were contemplated at the time the insurance was made, and who then had an insurable interest in the subject. I Parsons on Marine Ins. 46. citing Routh v. Thompson, II East, 428; Banday v. Union Ins. Co., 2 Wash. C.C. (U.S.) 391; Catlett v. Pacific Ins. Co., 1 Paine C. C. (U. S.) 594; Haynes v. Rowe, 40 Me. 181; Protection Ins. Co. v. Wilson, 6 Ohio St. 553; Seamans v. Loring, I Mason C. C. (U. S.) 127; Lambeth v. Western F. & Mar. Ins, Co., II Rob. (La.) 82; Alliance Mar. Ass. Co. v. Louisiana State Ins. Co., 8 La. 1, 11; Frierson v. Brenham, 5 La., Ann. 540.

"In regard to bringing an action on such a policy, it seems to be the prevailing opinion that either the party named in the policy or the one who proves him