as if the policy had been simply to reinstate the premises, in case of fire; because, where a contract provides for an election, the party making the election is in the same position as if he had originally contracted to do the act which he has elected to do. The premises, then, having suffered this damage by fire, and the defendant not having reinstated them, do these pleas furnish an excuse for not reinstating? I am of opinion that they do not. The defendants undertook to do what was lawful at the time, and has continued to be lawful. That being so, the fact that performance has become impossible is no legal excuse for their not performing it, and they are liable in damages. That is the doctrine to be deduced from a class of cases to which I referred' in Hall v. Wright. If any one undertakes to do a particular, lawful act, and does not do it, it is no excuse that he cannot do it if the law has not since rendered it unlawful. There was nothing unlawful in this contract; and if it is impossible for the defendants to perform it, they must pay for that impossibility." 3 In Illinois, it has been held that an election by the insurer to rebuild, and notice thereof to the assured, does not convert the contract into a building contract, and that, in case of their failure to rebuild within a reasonable time, the assured is merely entitled to recover the amount of his actual loss, not exceeding the sum insured with interest thereon, 1 The cases referred to by the learned judge are Hall v. Wright, 1 El. Bl. & El. 746; Parradine v. Jane, Aleyn, 27; Hadley v. Clark, 8 T. R. 267. See also, similar in principle, cases decided in the courts of this country, Harmony v. Bingham, 12 N. Y. 99; Adams v. Nichols, 19 Pick. (Mass.) 275; School District v. Dauchy, 25 Conn. 530; Trustees, etc., v. Bennett, 27 N. J. 514; Tompkins v. Dudley, 25 N. Y. 272. See very able note of Hon. THEO. W. DWIGHT to Morrell v. Irving Ins. Co., ante, in 3 Am. Law Reg. (N. S.) 415. 21 El. Bl. & El. 746, 758. 66 'See, similar in its facts, Brady v. N. W. Ins. Co., 11 Mich. 425, in which a policy was issued on a wooden building in Detroit for $2,000, containing a condition that, the insurers shall have the right to rebuild or repair within a reasonable time after damage or loss." Subsequently to the making of the contract, a city ordinance was passed which prohibited, without the consent of the proper authorities, any rebuilding or repairs upon wooden buildings within the limits of the city. The roof of the building insured being completely burned away, insurers offered to repair it, but the authorities refused their consent. Before the fire the building was worth $4,000; it was now not worth $100. The contract of insurance was renewed after the adoption of the city ordinances. It was held by the court that, by renewing the policy, the parties consented to be bound by the laws and ordinances existing at that time, and contracted with reference to them; whether the city authorities would permit the building to be repaired was a risk assurer assumed, for it was optional with insurers whether they would or would not repair; and, if for any cause they could not exercise that option, they must bear the loss, hence the amount that the plaintiff was entitled to recover would be the sum insured, because the value immediately preceding the fire exceeded that sum. It will be seen that in this case the court restrict the recovery to the sum insured. and the rental value of the ground during the delay.' But in this case, the charter of the company provided, that the company might rebuild, provided no more than the sum insured was expended therein. When the insurer elects to reinstate the property, and gives notice thereof to the assured, it is held that he is not excused from doing so, because performance has become impossible. Nor will he be excused from paying the entire amount of the loss. An election to rebuild operates as a waiver of all defenses except fraud or mistake.* In any event where a policy contains a provision that the insurer may, if he elects to do so, rebuild or repair the property, the service of a notice of an intention to rebuild, if it does not operate as an absolute contract to do so, so that the insured may sue for a breach thereof, yet it does bind the insurer to rebuild within a reasonable time, or upon failure to do so, the insured may sue for and recover the amount of the policy and interest, and the fair rental value of the land during the time of the delay caused by the act of the company, upon the ground that, during the period, the insured is prevented from building, and thus deprived of the beneficial use of the ground,' he is entitled to indemnity. The right is a condition subsequent, and the assured, in his declaration, need not negative the performance of it. Renewals. SEC. 131. When a policy of insurance is renewed, the renewal stands upon the same ground as the original policy, and subject to the same defenses. Not only is the policy, but all the elements upon which it was predicated, are continued in force, and it is treated as having been made upon the same grounds, representations and considerations that dictated the issue of the policy,' and if any change is agreed upon or intended, it must be expressed in the renewal receipt, or it cannot be relied upon without a reformation of the receipt, as a renewal receipt is a contract and receipt, and is only open to parol proof, except so far as it fills the office of a receipt. So far as it relates to the continuance of the policy, it is a contract, not a new contract of Home Mut. Ins. Co. v. Garfield, 60 Ill. 124. See also, Brady v. N. W. Ins. Co., ante. 'Brown v. Royal Ins. Co., ante; Brady v. N. W. Ins. Co., ante. 3 Brady v. N. W. Ins. Co., ante. Bersche v. Globe Mut. Ins. Co., 31 Mo. 546. Home Mut. Ins. Co. v. Garfield, 60 Ill. 124; 14 Am. Rep. 27. Ætna Ins. Co. v. Phelps, 27 Ill. 71; 4 Ben. F. I. C. 581. *State, etc., Ins. Co. v. Porter, 3 Grant's Cas. (Penn.) 123; Witherell v. Maine Ins. Co., 49 Me. 200; Lancey v. Phanix F. Ins. Co., 56 Me. 562. insurance, but a contract for continuing in force the former contract, and under such contract the original contract is kept on foot, and in case of loss, is the basis of the action, in connection with the contract of renewal, and the matter is not changed, because the renewal is procured by an assignee of the policy, as the parties are not thereby changed.' But it so far a new contract, that any change in the law, relating either to the risk or the liability of the parties, made after the issue of the policy and before the renewal, enters into and becomes a part of the renewed policy." When it is intended to change the original contract, it must be expressed in the renewal receipt, and if any change is made therein it will prevail over the original policy. Thus, where the risk was distributed in the policy as follows: $1,800 on grist mill, and $700 on machinery, but upon renewal the receipt was in general terms for the sum of $2,500, it was held that it was the intention of the parties that the insurance should thereafter be without any distribution of the · risk, and should apply generally to the machinery and building.' A policy under seal, renewed by a receipt, not under seal, becomes a simple contract, and assumpsit, and not covenant, is the proper remedy." Void policy not vitalized by consent of insurer to transfer. SEC. 132. A policy, void in its inception, either by reason of a want of insurable interest in, or fraud on the part of the original holder, or for any cause, is not vitalized and rendered valid and operative by a subsequent assignment thereof with the assent of the company. In order to render such a policy valid, something must be shown which establishes a new valid contract between the parties, or which amounts to a waiver, with knowledge of the facts rendering the policy invalid." Cancellation without authority. SEC. 133. Where a policy is assigned by the insured to another as security for a debt or other obligation, the company has no authority to cancel such policy and issue a new one to the assignee, without the consent of the assured, and the fact that it was done at the request of the agent of the assured, will not relieve the company from liability to Driggs v. Albany Ins. Co., 10 Barb. (N. Y.) 440; 3 Ben. F. I. C. 183. Luciani v. American F. Ins. Co., 2 Whart. (Penn.) 167; 1 Ben. F. I. C. 626. *Shearman v. Niagara F. Ins. Co., 46 N. Y. the assured, unless he is affected with notice or knowledge of such change,' and the retention of the policy by the person to whom it was assigned for a long time in this case, seven months does not, as a matter of law, constitute an acceptance of the new policy by the assured. Equitable lien upon insurance money. SEC. 134. Where the owner of real estate has contracted with another to sell him a lot of ground, and permits him to go on and erect a building thereon, under a contract that he shall procure the buildings to be insured for the benefit of the vendor, and the vendee procures insurance thereon in his own name, and without any reference in the policy to the interest of the vendor therein, the vendor, in case of loss, by notice to the insurers of his equitable interest therein, makes them his trustees of the fund to the extent of his interest therein, and either he or his assignee of the contract, may recover the same of the insurers, even though they, after such notice, have paid the loss to the. vendee.' 1 Bennett v. City Ins. Co., 115 Mass. 241. This question arose and was passed upon in Cromwell v. The Brooklyn F. Ins. Co., 44 N. Y. 52. The opinion of EARL, C., contains a statement of the facts in the case. He said: "Chesley held a written contract for the purchase from Beach of the lot in question, and under the contract took possession of the lot. He then made the parol agreement with Eichenlaube, to sell the lot to him, and build a house upon it for the sum of $1,600. In pursuance of this agreement, he went on and built the house, and completed it in April, 1854. Not being able then to procure his title, and Eichenlaube being desirons to take possession, it was arranged that he should take possession, and pay the taxes and interest, and keep the house insured for the benefit of Chesley, and that Chesley should give the deed as soon as he could get the title from Beach. The original parol agreement was not repudiated or abandoned, but simply modified as to the time and manner of performance. There was clearly such a part performance of this agreement, as to take it out of the statute of frauds, and make it enforceable in a court of equity. As between Chesley and Beach, the former was the equitable owner of the lot, and, as such, had rights and interests therein. He agreed to perfect his title to this lot, and convey the same to Eichenlaube, and that created between them the relation of vendor and vendee, and according to well settled principles of law, Chesley had an equitable lien upon the lot for the balance of the purchase-money due from Eichenlaube, occupying the relation to Eichenlaube of equitable mortgagee. If Eichenlaube had procured the insurance for his own benefit without any agreement to insure for the benefit of Chesley, the latter could not have claimed any benefit from the insurance. A contract of insurance against fire, as a general rule, is a mere personal contract between the assured and the underwriter, to indemnify the former against the loss he may sustain; and in case a mortgagor effects an insurance upon the mortgaged premises, the mortgagee can claim no benefit from it, unless he can base his claim upon some agreement. But where the assured has agreed to insure for the protection and indemnity of another person having an interest in the subject of the insurance, then such third person has an equitable lien, in case of loss, upon the money due upon the policy to the extent of such interest. These are principles of law well settled. Carter v. Rockett, 8 Paige, 437; Thomas, Administrator, v. Van Keft, 6 Gill. & Johnson, 372; Providence Co. Bank v. Benson, 24 Pick. 204; Nichols v. Baxter, 5 R. I. 311; Ellis v. Krentsinger, 27 Mo. 311. In this case, Eichenlaube had agreed to insure for the benefit of Chesley. He did, at first procure an Where the insurance is to be paid for by the mortgagor and the money paid therefor exists as a valid charge against him in favor of the mort insurance in his name, which by the terms of the policy was payable to Chesley. When that policy expired the company refused, for some reason, to renew it. Eichenlaube then took out another policy in his own name, which contained no specification that the loss, if any, was payable to Chesley or the plaintiff. But in the absence of any proof to the contrary, it must be inferred that he made the insurance in pursuance of his agreement, and for the benefit of his vendor. And such, undoubtedly, would have been the legal inference, no matter what may have been his secret intention when he effected the insurance, provided he did it while in possession of the premises, and while the agreement between him and Chesley was binding, either in law or equity. It is claimed, however, that the plaintiff could not have the benefit of this insurance, because he was in default in the performance of the agreement to convey the lot on his part. The proof does not show such default, and the judge who tried this case has not found it. The plaintiff was bound to convey the lot as soon as he could procure the title from Beach. He made efforts from time to time to get the title from Beach, and as soon as he got it, he offered to convey it to Eichenlaube. There does not appear to have been any want of good faith on the part of the plaintiff. It is true that Eichenlaube several times demanded his deed, but he never in any way repudiated or put an end to the agreement, and he retained the undisputed possession of the lot, thus reaping the fruits of the agreement. Under such circumstances it cannot well be claimed that the plaintiff was in default, and that the agreement was not equitably binding at the time of the fire. The plaintiff notified the company of his equitable claim to the insurance money before payment to Eichenlaube. After such notice, the company made the payment at its peril, just as much so as if there had been a regular assignment of the money to the plaintiff, and it had paid it to Eichenlaube after notice of such assignment. While both plaintiff and Fichenlaube were claiming the money, it would doubtless have been unwise for the company to have paid it to either. But it could have waited for suit by one of the claimants and then have paid the money into court and been relieved from all responsibility under section 122 of the Code. These are all the questions raised in the case which I deem it important to consider and I have reached the conclusion that the judgment should be affirmed with costs. LEONARD, C., who also delivered an opinion in the case, said: " Cromwell, as assignee of the contract between Chesley and Eichenlaube, became entitled to its performance. Part of that agreement was, that Eichenlaube should keep the premises to which the contract related, insured for the benefit of Chesley. At the time of the fire, Eichenlaube had a policy with the defendants covering the premises, in his own name and for his own benefit, but none for the benefit of Chesley or Cromwell. Cromwell recovered judgment against Eichenlaube, upon the contract assigned to him by Chesley, for an amount greater than the sum insured The judgment was good evidence in this case, to prove that the contract with Eichenlaube was in full force, and that the obligation to insure still rested on him. As between Cromwell and Eichenlaube there can be no doubt of the right of Cromwell in equity to receive the insurance money upon the happening of a loss. That right arises from Eichenlaube's contract to insure for the benefit of Chesley, and the fact that he had not paid the sum due under the contract. Had there been no judgment, Cromwell must have proven in this action that there was a sum due to him on the contract with Chesley. The judgment established that fact without other proof, as Eichenlaube, the defendant in that action, was the only party interested in contesting the amount due. The plaintiff in due season notified the insurance company of his equitable claim to be paid the amount due under the policy of Eichenlaube, by reason of the loss against which the company had insured. The company have not denied their policy, nor their loss, nor their liability to pay the amount. On the contrary, admitting their liability, the company have paid the loss to Eichenlaube, and insist that such payment is a full discharge of their liability. The company thereby refused to recognize the right of Cromwell to charge them as a trustee of the fund due upon the policy. The company assumed the hazard of resisting the equity claimed by the plaintiff. If the company erred in their interpretation of the law, their payment to Eichen |