requested the court to instruct the jury that, if the company had notice in fact of the other insurance, this was a compliance with the provision in the policy. The request was refused, and an instruction was given to the effect that notice to the company of the other insurance was not sufficient, but that the same should have been mentioned in or indorsed upon the policy; otherwise the policy became void. Of this it was said by Mr. Justice Story, who delivered the opinion of the court:

"We think this instruction was perfectly correct. It merely expresses the very language and sense of the stipulation of the policy; and it can never be properly said that the stipulation in the policy is complied with when there has been no such mention or indorsement as it positively requires, and without which it declares the policy shall henceforth be void and of no effect."

The subject was again considered and the authorities exhaustively examined in Northern Assurance Co. v. Grand View Building Association, 183 U. S. 308, 22 Sup. Ct. 133, 46 L. Ed. 213, where the ruling in Carpenter v. Providence Washington Insurance Co. was affirmed and applied.

Forbes v. Agawam Mutual Fire Insurance Co., 9 Cush. 470, was an action upon a policy of fire insurance containing a provision to the effect that, if other insurance was had or obtained upon the same property, the policy should be void, unless the other insurance was consented to by the directors, and their consent signified by a statement thereof in the policy, or by an indorsement thereon signed by the secretary. Other insurance was obtained, but the same was not consented to in the manner prescribed in the policy. It appeared by the evidence that in the application for the policy the insured had requested that consent to obtaining other insurance be signified in the policy, and that this application bore an indorsement of approval by one of the directors. Of this it was said by Chief Justice Shaw:

"But we think this evidence is far from warranting the inference sought to be drawn from it. It certainly proves notice of the applicant's desire to have leave to make further insurance, and that this permission might be expressed in the policy. But it was not so expressed, and the noncompliance with such an explicit request is almost as significant as a refusal. And the assent and approval of the director was an approval only of the application, and did not constitute the contract, or any part of it."

Worcester Bank v. Hartford Fire Insurance Co., 11 Cush. 265, 59 Am. Dec. 145, was an action upon a policy of fire insurance containing a provision to the effect that, if the insured should obtain subsequent insurance without giving the company notice thereof, and having the same indorsed on the policy or otherwise acknowledged in writing, the policy should cease, and be of no further effect. The insured obtained subsequent insurance, and exhibited a memorandum thereof to the agent of the company. The agent took the memorandum to make entry of the subsequent insurance upon his book of policies, and returned it to the insured, saying that he had made the entry, and that it would be the same as if indorsed upon the policy. In fact, the agent did not enter on his book all the subsequent insurance mentioned in the memorandum. Upon the au

thority of Forbes v. Agawam Mutual Fire Insurance Co., supra, it was held that the stipulation in the policy was not complied with, and that the policy was void.

Walsh v. Hartford Fire Insurance Co., 73 N. Y. 5, was an action upon a policy of fire insurance containing a provision to the effect that, if the premises insured should become vacant by the removal of the owner or occupant, and so remain for more than 15 days without notice to the company and consent indorsed upon the policy, the same should become void; and that no officer, agent, or representative of the company should be held to have waived any of the terms and conditions of the policy unless the waiver should be indorsed thereon in writing. The premises became vacant, and remained so for more than 15 days. The insured notified the company's agent that the premises had become vacant, requested him. to consent to their remaining so, and inquired if it was necessary that the consent be indorsed on the policy. The agent gave his consent, and made a memorandum thereof in his register, but stated that it was not necessary to indorse the same upon the policy, and no such indorsement was made. The court, referring to the provision in the policy, said:

"This is a plain limitation upon the power of agents, and can mean nothing less than that agents shall not have the power to waive conditions except in one mode, viz., by an indorsement on the policy. The plaintiff is presumed to have known what the contract contained, and the proof tends to the conclusion that this provision was brought to his notice. He saw fit, however, to accept the assurance of the agent that an entry in the register was sufficient. It is difficult to see how, upon the law of contracts and agency, the plaintiff can recover. The entry in the register was not an indorsement on the policy. The oral consent was an act in excess of the known authority of the agent. The provision was designed to protect the company against collusion and fraud, and the dangers and uncertainty of oral testimony. The case seems to be a hard one for the plaintiff; but courts cannot make contracts for parties, nor can they dispense with their provisions."

It follows, as before indicated, that the proper determination of the question whether the incumbrance created by the chattel mortgage was assented to by the company's agents depends entirely upon the true meaning and interpretation of the loss payable indorsement placed by them upon the policy. That indorsement reads: "Subject to all the conditions of this policy, loss, if any, payable to G. B. Dodge and A. M. Stevenson as their interest may appear." Could the insurance company, consistently with a purpose to insist upon and enforce all the conditions of the policy, agree to pay the loss, if any, to Dodge and Stevenson as their interest may appear? If it could, that is plainly what was done. The indorsement does not mention the chattel mortgage, it does not describe Dodge and Stevenson as chattel mortgagees, and it does not show that the attention of the parties was directed to the chattel mortgage. All this is conceded, and the contention of the plaintiffs, as stated in the brief of counsel, is this:

"The language of the indorsement is absolutely broad and embracive. The language is, 'As their interest may appear.' This is limited only by their ability to make their interest appear. Whatever interest they may be able, by proper proofs and in the proper manner, to make it appear that they

possess, necessarily comes within the meaning and terms of this indorsement. The greater includes the less, and if, at the time of the loss, their interest is made to appear to be that of mortgagees, such interest is necessarily inIcluded in the terms of this indorsement."

Doubtless this would be a proper interpretation of the words "as their interest may appear," if they stood alone or were controlling. They are plainly prospective, and refer, not to an interest existing at the time when the indorsement was written, but to such interest as may appear at the time of the loss, if any, without regard to the character of the interest, or the time when it may have arisen. The interest referred to is not an interest in the property insured, but is an interest in the payment of the loss, whether predicated upon an interest in the property or otherwise. In this respect the terms of the indorsement may be properly said to be "broad and embracive."

But the question under consideration is not solved by merely ascertaining the meaning of the words "as their interest may appear." They do not stand alone, and are not controlling. By the plain terms of the indorsement the consent to pay the loss to Dodge and Stevenson was made "subject to all the conditions" of the policy. This qualifying clause means that the consent was given upon the express condition that the conditions of the policy were not thereby abrogated or waived, but that they should have effect and be respected in like manner as if the indorsement had not been made. It means that a loss, to be payable to Dodge and Stevenson under the indorsement, must be one which, under the conditions of the policy, would be payable to the insured, and that whatever, under those conditions, would defeat the insured's right to payment in the absence of the indorsement, will equally defeat it in the presence of the indorsement. True, if the terms of the indorsement were conflicting-that is, if the appointment of Dodge and Stevenson to receive payment of the insured's loss, if any, was necessarily inconsistent with any condition in the policy-a familiar rule would require that, to the extent of the inconsistency, controlling effect should be given to that appointment, rather than to the qualifying clause. But is there any such conflict? If not, effect must be given to both the appointment and the qualifying clause, if it can reasonably be done, as it is not permissible to assume that any of the words of the indorsement were employed carelessly, or to no purpose. In respect of this the contention of the plaintiffs is that by the use of the words "as their interest may appear" it was assumed and recognized that Dodge and Stevenson had or might have an interest in the payment of the loss, if any should occur, and therefore that consent was impliedly given to any act by which an interest had been or should be acquired, even though it be one which otherwise would avoid the policy; in other words, that consent was impliedly given to any sale of the property insured which had been or should be made to Dodge and Stevenson, and to any chattel mortgage of the personalty which had been or should be given to them, and to any sale to them of the property which had been or should be made on legal process, and to any assignment to them.

of the policy which had been or should be made. It is not easily conceivable that an indorsement which so distinctly declared a purpose to insist upon and enforce "all the conditions" of the policy was really intended to abrogate or waive so many of them. Moreover, it was not essential that any act violative of the conditions of the policy should have occurred or should occur to give Dodge and Stevenson an interest in the payment of the loss. They were creditors of the insured and mortgagees of the insured realty, both of which were consistent with the conditions of the policy, and either of which gave them a sufficient interest in the payment of any loss sustained by the insured to support the loss payable indorsement. There was therefore no necessary inconsistency between the assumption and recognition in the indorsement that Dodge and Stevenson had or might have an interest in the payment of such loss, and the express reservation to the company of the right to insist upon and enforce all the conditions of the policy. In these circumstances it cannot be reasonably said that the words "as their interest may appear" impliedly gave consent to any act violative of the conditions of the policy. A more reasonable view of the office performed by these words is that they define the contingency in which and the extent to which-consistently with the conditions of the policy--the insured's loss, if any should be sustained, was intended to be made payable to Dodge and Stevenson. Without these words in the indorsement, the whole loss would be payable absolutely to Dodge and Stevenson without any showing of an interest on their part or of its extent. They are words of restriction, not of enlargement.

The purpose and effect of loss payable indorsements upon policies of insurance have frequently been considered in the courts, and, in the absence of some provision to the contrary, it has been quite uniformly held that such an indorsement is a mere appointment of a payee to receive payment of the insured's loss, and does not create a new contract of insurance with the payee, or abrogate or waive any condition of the policy.

Bates v. Equitable Insurance Co., 10 Wall. 33, 19 L. Ed. 882, was an action upon a policy of fire insurance containing a provision that, if the property insured should be sold or conveyed, or the policy be assigned, without the consent of the company, the policy should become void. Philbrick, the insured, sold the property to Bates, and wrote upon the policy, "Payable, in case of loss, to E. C. Bates." The company then caused an indorsement to be written under that of Philbrick, saying, "Consent is hereby given. to the above indorsement." The defense was that the sale of the property was without the consent of the company, and avoided the policy, and the plaintiff insisted that notice of the sale and consent thereto was implied by the indorsements. It was said by Mr. Justice Miller, who delivered the opinion of the court:

"If Philbrick could not, in law or in fact, have directed the payment of the loss, if one should occur to him, as owner of the property, to another party, with the consent of the company, then it would be a reasonable inference that the indorsement made by him implied a sale of his interest. But if he could

make, with the consent of the company, a valid appointment that any loss covered by the policy should be paid to a third person, though he remained the owner of the goods, and the loss was his loss, then the indorsement of Philbrick does not necessarily convey the idea of a sale, nor the consent of the company imply a consent to a sale. Now, it is a well-known and frequent thing in insurance business for a person to insure his life or his property, and either in the policy itself, or by indorsement at the time it is made, or by subsequent indorsement, to which the consent of the company is generally required, to direct the loss to be paid to some third party. And this is done in language similar, if not identical with that used in this case. It is a mode of appointing that the loss of the party insured shall be paid by the company to such third person. This transaction is a very common mode of furnishing a species of security by a debtor to his creditor, who may be willing to trust to the debtor's honesty, his skill and success in trade, but who requires indemnity against such accidents as loss by fire or the perils of navigation. The property of the debtor at risk being thus insured for the benefit of the creditor, gives him this indemnity. In the face of this frequent use of the two indorsements on the policy, it cannot be held that they imply of themselves a knowledge of the sale or a consent to insure the purchaser."

In Ermentrout v. American Fire Ins. Co., 60 Minn. 418, 62 N. W. 543, it was said:

"In cases where the loss is payable to the mortgagee' it is an absolute appointment of the mortgagee as payee of the whole loss, and a direction to pay it to him. But, where the policy provides that the loss shall be payable to the mortgagee, or, as in this case, to his assignee, 'as his interest may appear,' it is neither an assignment of the policy nor an absolute appointment of the mortgagee as payee of the whole or any part of the loss, but a limited and conditional appointment to receive payment of the loss to the extent of his interest, if any is made to appear."

In Brunswick Savings Institution v. Commercial Union Insurance Co., 68 Me. 313, 28 Am. Rep. 56, it was said:

"The clause in the policy, 'payable in case of loss to the Brunswick Savings Institution to the amount of mortgage held by them,' is not an insurance of the plaintiffs' interest in the property, nor an assignment of the policy to the plaintiffs. It is merely a contingent order or stipulation, assented to by the defendants, for the payment of the loss of the assured, if any, to the plaintiffs. It gives the plaintiffs the same right to recover that the assured would have if no such clause had been inserted in the policy. Any violation of the conditions and stipulations of the policy which would defeat the right of the assured to recover upon it will defeat the right of the plaintiffs."

In Wunderlich v. Palatine Fire Insurance Co., 104 Wis. 395, 402, 80 N. W. 471, it was said of a provision that the loss should be payable to a third person as his interest might appear:

"The rights of a claimant under this familiar clause, where the title and ownership of the property remains in the assured, are no longer open to doubt or debate in this state. They were settled by Chandos v. Am. F. Ins. Co., 84 Wis. 184, 54 N. W. 390, 19 L. R. A. 321; Carberry v. German Ins. Co., 86 Wis. 323, 56 N. W. 920; and Williamson v. Mich. F. & M. Ins. Co., 86 Wis. 393, 57 N. W. 46, 39 Am. St. Rep. 906. The contract is with the assured. To him alone is the insurer liable, and upon his acts will that liability depend. The claimant under such a provision is not an assignee of the poli cy, so as to hold an independent right of recovery, but a mere appointee to receive the whole or a part of the money which the assured is entitled to recover, but to receive it under and in the right of the assured."

Scania Insurance Co. v. Johnson, 22 Colo. 476, 45 Pac. 431, was an action on a policy of fire insurance containing a provision declaring