In the performance of this duty the adjuster was engaged for two, and perhaps three, days, and while so engaged he subjected plaintiff to a rigid examination as to the quantity of goods he had, from whom he purchased them, what he paid for them, the quantity thereof, their value before and after the fire, etc., making extensive memoranda of the facts elicited. He several times offered plaintiff $300 in settlement of the loss, and urged him to take it, saying to him: "You cannot afford to fight this case. We represent more capital than you do, and you are a poor man, and had better compromise." The only difficulty in the way of a settlement of the loss seems, from the testimony, to be owing to the fact that the plaintiff and the adjuster did not arrive at an agreement as to the amount of the loss. No other reason of any kind, for delay, was assigned by the adjuster, than doubt as to the amount of plaintiff's loss. After a few days spent in the endeavor to make a settlement, the adjuster told plaintiff that he had to go away, and would be back again in a few days, and he hoped the matter would be settled up; to which plaintiff replied, to quote his own language: "Mr. Norton, I don't know anything about a fire; never had any experience about it. I want you to tell me what I have to do. Mr. Baird said I have to have some papers, and I don't know what to do.' He said: 'You don't need anything at all; don't need any papers. I have got all the company needs in this book. That's all they want. You don't need to make out any papers at all.'" At the commencement of these attempts at adjustment, the plaintiff handed both the policies to the adjuster, he representing both the defendant and the Hartford Fire Insurance Company. The adjuster left, and, not returning, the plaintiff, in person and through his attorney, during the next two or three weeks, had frequent and repeated interviews with the agent Stitzer, in the endeavor to get the matter settled, and to ascertain what the defendant intended doing about it; but all that Stitzer could say was that he was constantly expecting another adjuster, and that the matter would be speedily settled. Nothing further seems to have been done until, on February 7, 1891, the plaintiff, through his attorney, sent by mail to the defendant at Chicago, Ill., a schedule of the property destroyed, setting opposite the description of each item the cost price thereof. This was attached to an affidavit of plaintiff in which he stated that he was the person named in the policy sued on; that the insured property was burned up and destroyed by fire on December 26, 1890; that he believed the fire to have been of incendiary origin; that he was the owner of the goods; that attached thereto was a statement of each article of property burned up, and the cost price thereof; that on October 13, 1890, he obtained, through the

agency of Stitzer, $1,000 additional insurance in the Hartford Fire Insurance Company upon said stock of goods; that Stitzer received immediate notice of the fire, and at once made an examination thereof; that Stitzer, a few days thereafter, brought with him an adjuster of the defendant, and they together made several examinations of all things connected with the fire; that Stitzer had several times represented that the adjuster would settle the matter, but he had failed to appear; that the statement attached had been prepared for a long time for the examination of the defendant's agents, but that, inasmuch as they had not appeared, he (plaintiff) sent it direct to the company. Accompanying this affidavit was a letter under date February 7, 1891, from plaintiff's attorney to defendant, in which, after reiterating some of the statements in the affidavit, it is stated: "For the information of the adjuster, the list hereto attached has been made out and held in readiness. Mr. Kahn has held himself in readiness to give such information as might be desired at all times, and, owing to the failure of the adjuster to be here in accordance with the information conveyed to us by Mr. Stitzer, we have at last decided to send the list direct to the company. Owing to the unsatisfactory status of the case, I hope you will kindly respond, and inform us whether the insured is going to be paid or not. If you wish any information in addition to what is contained in the inclosed, it will be gladly furnished you." This letter, with accompanying statement and affidavit, was duly received by defendant, and forwarded by it to its general agents, Cobb, Wilson & Benedict, at Denver, Colo., who on February 28, 1891, wrote to plaintiff, acknowledging receipt, and further saying: "These notices, we presume, are sent in compliance with the terms of your contract, in which it is covenanted that, if a fire occur, the assured shall give immediate notice of any loss thereby in writing to this company,' and they are accepted as such notice. We respectfully refer you to the conditions of your policies, wherein it states that you must first give immediate notice in writing to this company, and then give minute instructions as to your course in presenting the claim. We must insist upon a full and complete compliance in every particular with all the terms and conditions of your policy. which is the contract. Until a full and complete compliance on your part with all the conditions and requirements therein contained, we cannot give consideration to the questions which you present."

With respect to the foregoing facts there seems to be no sort of conflict in the evidence. All the evidence introduced upon the trial was on behalf of the plaintiff; the defendant offering none, and contenting itself with the cross-examination of the plaintiff's witnesses.

1. It appears from the record that, at the

close of the examination of witnesses, the defendant extracted from the testimony a defense additional to the five distinct defenses set forth in its answer, viz. one based upon the arbitration clause in the policy, and requested the court to give to the jury five separate and distinct instructions, and to submit four specific questions, based upon this clause. Four of these instructions were given by the court to the jury, to each of which plaintiff objected, and excepted to the ruling of the court. One of said instructions was refused by the court, and defendant preserved its exception thereto. The questions were submitted to the jury, and to this plaintiff preserved his exception. The 1st, 10th, 11th, 12th, and 13th, and one branch of the 8th and 9th, grounds of defendant's motion for a new trial, were based upon this clause in the policy, and the testimony which was deemed to apply to it. At the argument and in briefs of counsel this question was discussed from every conceivable point of view, and every phase of the law relating. thereto exhaustively presented to the court; but from the view we take of the matter it is not necessary to enter upon any very extended consideration of this particular matter. It is sufficient to say that this defense was not pleaded by the defendant, and hence no question based upon this arbitration clause should have been submitted to the jury. Matter in defense cannot be availed of unless pleaded. 2 May, Ins. § 591; Dyer v. Insurance Co., 53 Me. 119; New York Cent. Ins. Co. v. National Protection Ins. Co., 20 Barb. 468; Cassacia v. Insurance Co., 28 Cal. 629; Coburn v. Insurance Co., 145 Mass. 226, 13 N. E. 604; Insurance Co. v. Curtis, 32 Mich. 403; Minnock v. Insurance Co., 90 Mich. 240, 51 N. W. 367; Insurance Co. v. Woodruff, 26 N. J. Law, 541; Northrup v. Insurance Co., 47 Mo. 435; 2 Wood, Ins. p. 1141, § 522, and cases cited. But it is contended with very considerable force that the clause providing for arbitration, coupled with the additional clause that "until sixty days after the proofs, certificates, plans, and specifications, and award of appraisers, herein required, shall have been rendered, and examinations perfected by assured, the loss shall not be payable," makes an award by appraisers or arbitrators absolutely essential to plaintiff's cause of action, and that plaintiff should have either pleaded a submission of the amount of loss to appraisers, and an award by them, or else such facts as showed that the defendant committed a breach of the agreement to arbitrate. I am unable to acquiesce in this view. Assuming, for the purposes of this question, that the agreement was not a mere collateral agreement to refer, but valid, and such a one as the courts will enforce, it is beyond question that it did not become effective and in force at all events. By its terms it only became so up

on the happening of a contingency, to wit, the failure of the insured and the assured to mutually agree upon the amount of the loss, and hence, until the happening of this contingency, it was wholly without force or effect. And in the absence of some allegation in plaintiff's petition or defendant's answer to the effect that there had been, within the meaning of the language of the policy, failure between plaintiff and defendant to agree upon the amount of the loss, how could the court say from the pleadings that a submission to and award of appraisers, or else some breach of the agreement on part of defendant, was an essential element of plaintiff's right to recover of defendant? In this case the conditions of the policy were not set forth as they should have been in plaintiff's petition. But many of them were set forth in defendant's answer, and plaintiff's failure to comply therewith alleged as defenses. In plaintiff's reply, facts tending to show a waiver of such conditions were alleged. Looking at all the pleadings, a complete cause of action and defense thereto were stated, whatever may have been the case looking only at plaintiff's petition. Yet, in all the pleadings there was no approach to an allegation with respect to the arbitration clause of the policy, and for the purpose of this case it must be treated as though there was no such clause. But, even though this defense had been set up by defendant with its other defenses, I am of opinion that it would not have availed the defendant. In this case the defendant denies its liability to pay any loss whatever under this policy in suit. It asserts that the policy has become absolutely void, and there is no provision in the policy in suit that the arbitration shall be had regardless of the question of defendant's liability on other grounds; and I am of opinion that in such cases the condition for arbitration does not have effect.

In Mentz v. Insurance Co., 79 Pa. St. 478, the condition in the policy was very much more direct and certain than in the policy sued on here. It provided as follows: "In case any difference or dispute shall arise between the assured and this company touching the amount of any loss or damage sustained by him, such difference shall be submitted to the judgment of arbitrators, one to be appointed by each party, with power to select a third in case of disagreement, whose decision thereupon shall be final and conclusive; and no action, suit, or proceedings at law or in equity shall be maintained on this policy unless the amount of loss or damage, in case of difference or dispute, shall be first thus ascertained." On the trial the defendants moved for a nonsuit because the section above required the parties to the policy to submit to a referee, etc. The mo tion for a nonsuit was allowed. Upon error In the supreme court it was held that, in

tration." 1 Exch. Div. 260. Testing the arbitration clause in the policy by this rule, it would seem that the agreement to arbitrate is collateral to the agreement to pay. On this branch of the case I am of opinion that the court below erred in giving the four instructions referred to, which were based upon the arbitration clause in the policy, and in submitting the general questions to the jury; that it did not err in refusing the instruction assigned by defendant as its first cause for a new trial, and set forth in its motion therefor; and that the 1st, 10th, 11th, 12th, and 13th, and so much of the 8th and 9th grounds of defendant's motion for a new trial as relates to this question of arbitration, did not justify the court in vacating the verdict and granting a new trial.

2. The 2d, 3d, 5th, and 7th grounds of defendant's motion for a new trial are all based upon the provision in the policy providing that it should be void in the event that assured should procure additional assurance without defendant's written consent being indorsed upon its policy. There is no controversy between the parties as to the facts relating to this particular matter, and it may be well to briefly restate them. The only controversy between the parties is as to the conclusion of law to be drawn from the facts. Frank A. Stitzer, on the 5th day of May, 1890, and continuously until after the loss herein mentioned occurred, was the agent of the defendant, and also of the Hartford Fire Insurance Company. As agent of the defendant he was authorized to receive applications for insurance, moneys for premiums, and to countersign, issue, and renew policies of insurance signed by the president and attested by the secretary of the defendant company, for the territory of Cheyenne and vicinity, etc., and for the purpose of carrying out such authority he was intrusted with blank policies of insurance, signed by the president and attested by the secretary. In the conduct of the business he received applications for insurance, acted upon them without consultation with any other officer or agent of the company, received the premium, and made the contract of insurance,-that is, filled up, countersigned, and issued the policy. On the 5th day of May, 1890, he issued the policy sued on. Thereafter, on October 13, 1890, at request of plaintiff he issued a policy in the Hartford Fire Insurance Company for additional insurance upon the stock of groceries, provisions, etc., covered by defendant's policy of May 5, 1890. The Hartford policy was indorsed by him thus: "$1,200 other concurrent insurance." He did not indorse upon defendant's policy consent to the additional insurance, nor did he notify the defendant thereof. He says that his failure to so notify defendant was through an oversight. Loss occurred December 26th following. Early in January, 1891, an adjuster representing defendant was sent to Cheyenne, with authori

ty to adjust and settle this loss. He had interviews with plaintiff, extending over two or three days, in the attempt to make a mutual agreement as to the loss. At the first interview, plaintiff handed him both policies, which he carefully examined. On February 7, 1891, plaintiff forwarded to defendant at Chicago an affidavit setting forth the loss, and mentioning the additional insurance, to which was attached a schedule of the property burned. This affidavit and schedule was sent by the company to its general agents in Denver, and they, under date of February 28, 1891, acknowledged receipt to plaintiff, stating that they accepted it as notice of loss, and calling upon plaintiff to fully and completely comply with all the conditions and requirements of the policy here sued on. At no time was any objection made to settlement or any complaint on account of the additional insurance until after suit was brought, and it was interposed as a defense to this action. The sole question, then, is, does the fact of this additional insurance, under the circumstances, constitute a defense to this action? The determination of this question is purely a question of law, and the jury should have been peremptorily instructed either one way or the other,—which way depending upon the answer given by the court to the question of law. The facts were plain, simple, and undisputed, and there was no question of fact to be determined by the jury. When the evidence to a fact is positive, and not disputed or questioned, it ought to be taken as an established fact, and the charge of the court should proceed upon this basis. Wintz v. Morrison, 17 Tex. 372. The fact that the agent Stitzer indorsed upon the Hartford policy the words "$1,200 other concurrent insurance" convinces me that at the time of issuing that policy there was then actually present in his mind the knowledge of the existence of the policy here sued on; the policy in suit being the only other policy upon the property covered by the Hartford policy, and being for the sum of $1,200. There is no room to doubt that the indorsement referred to, and was intended to refer to, the policy in suit. This being so, it must be assumed that the agent Stitzer actually consented to the additional insurance; otherwise, we would have to assume that he intended to perpetrate a fraud upon the plaintiff, and that assumption, of course, ought not to be made if it can be avoided. But these facts of actual knowledge and consent seem to be conceded. The question to be determined is by no means free from difficulty, and has been determined in both ways by the courts of the different states of the Union. By the great weight of authority it seems to me to be reasonably clear that the agent Stitzer must be deemed to be the general agent of the defendant, and not simply a local, special agent, with limited power. He was clothed with authority to make contracts of insurance, to issue poli

cies, and to receive the premiums therefor, and, possessing such powers, he stood towards the plaintiff in the stead of the company. In short, he was the insurance company to the assured. The defendant was bound not only by notice to him, but his knowledge of matters relating to the contract must be held to be the knowledge of his principal, (May, Ins. § 125; Rivara v. Insurance Co., 62 Miss. 728; Insurance Co. v. Munger, [Kan.] 30 Pac. 123; Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637; Walsh v. Insurance Co., 73 N. Y. 5; Farnum v. Insurance Co., 83 Cal. 246, at page 261, 23 Pac. 869; Walsh v. Insurance Co., 9 Hun, 421;) and there can be no question but that he had authority to indorse the defendant's consent to additional insurance upon the policy here sued on, (Warner v. Insurance Co., 14 Wis. 318; Walsh v. Insurance Co., 73 N. Y. 5; 2 Wood, Ins. § 382.) This being so, it seems to me that under the facts of this case the defendant ought not now to be heard to complain because the consent to additional insurance was not indorsed upon its policy by its agent.

In 2 May on Insurance, (section 370,) in discussing this question, the author says: "But the courts have become more liberal in favor of the assured in their construction of this sort of provision, whether it be contained in the charter or in the policy. While, as we have seen, the old rule required the consent to be in writing and indorsed on the policy, it is the decided tendency of the modern cases to hold that if the notice of the additional insurance be duly given to the company or its agent, and no objection is made, the company will be estopped from insisting on a forfeiture of the policy because their consent thereto was not indorsed as literally required by the stipulation. * * An office which issues a subsequent policy will be presumed to have notice of the prior one, and where both policies are negotiated through the same person, who is agent for both companies, his knowledge is the knowledge of both companies." In Association v. Griffin, 66 Tex. 235, 18 S. W. 505, in discussing this question, the court use this language: "The fact is that the majority of men contracting fire insurance know little of the contents of the policy until a clause in fine print is presented as a defense in adjusting the loss. The agent, however, is generally familiar with all the conditions of the contract. For this reason the agent, upon the commonest principles of honesty, encouraged and enforced by the courts as universally as practicable, is required to do what the policy prescribes shall be done to preserve the contract, when notified of the facts. * * * It would be unfair if the agent has not done his duty. It was the duty of the agent to consent and make the indorsement, or to refuse to do so, if he was informed of the plaintiff's purpose." In Von Bories v. Insurance Co., 8 Bush, 136, the facts were as here.

The subsequent insurance was issued by the person who issued the prior policy. Consent was not indorsed upon defendant's prior policy, nor did the agent give notice to his principal. The court held that the defendant had notice from the very moment its general agent issued the second policy, and that "good conscience and fair dealing required the company, in case it was intended to enforce the forfeiture, to take the necessary steps within a reasonable time after notice of the second insurance. * * * Much stress is laid upon the fact that Moore did not notify the officers of the company of the second insurance. His failure to do so was a violation of his duty to his principal, which cannot and ought not to prejudice the rights of the insured." In Insurance Co. v. McCrea, 8 Lea, 513, the policy provided that, if the assured should procure additional insurance without the written consent of the insurer indorsed upon it, it should become void, and also contained this condition: "The use of general terms, or anything less than a distinct specific agreement, clearly expressed and indorsed upon this policy, shall not be construed as a waiver of any printed or written condition or restriction." In the case at bar the provision is that "neither the agent who issued the policy, nor any other person except its secretary in the city of Chicago, has authority to waive, modify, or strike from the policy any of its terms and conditions." I am of opinion that the language used in the case cited is, so far as it affects the question under consideration, viz. the necessity of written consent to additional insurance, stronger than in the policy here sued on, because that condition, literally taken, provided that no one could waive it, while here it provides that no one except the secretary could waive it. Gladding v. Association, 66 Cal. 6, 4 Pac. 764. The rule of law with reference to this matter is so clearly stated in the case just cited from 8 Lea that I quote from the opinion at pages 522, 523, and 524: "What acts or declarations,' say the learned editors of the American Leading Cases, 'will operate as waiver of the warranties or conditions which play a large and important part in most modern policies of insurance on life or against fire, is a question about which the authorities differ too much to be easily reduced to order and method; for while the courts have been desirous, on the one hand, to carry out the general purpose of the contract as one of indemnity, they have been fettered on the other by stipulations introduced as safeguards against fraud or mal practice, and the conflict has arisen between the general design and the incongruity or unfitness of the means employed, which has at all periods formed one of the difficulties of the law.' 2 Amer. Lead. Cas. (5th Ed.) 911. The struggle on the part of the courts has been to protect the innocent policy holder from the literal operation of condi