1 May on Insurance, sec. 138, et seq., the questions here presented are elaborately discussed, but the statements of different conclusions from different courts are so confusing and conflicting as to be of slight aid to the examiner, until section 144g is reached, where the following clear and logical conclusion is stated: "There being no usage or special evidence to the contrary, the very fact that his signature to the paper is required is notice to him that the company does not rely upon the agent, but requires the applicant's own authority.' Under the circumstances and the employment of solicitors, it is safe and proper to hold that the agent, in writing the answers of the applicant, is not doing the work of the company but of the applicant, and that the company are no more responsible for it than if done by a stranger. A solicitor working for commissions comes nearer being a broker than an agent. Their interests are often adverse to the company, making false statements to secure commissions; nor can the assured avoid responsibility by neglecting to read the paper, when by so doing the misstatements could have been corrected. In the same section of May on Insurance (sec. 144g) it is said: "It seems clear that if (the insurer) is honest and fair, it should not be held for an omission or error of a really substantial nature, whether made by the insured, or by the agent, through mistake or otherwise, in filling up an application from his answers, and which the assured might have discovered if he had taken the trouble to read the statement he signed."

There is no reason, in contracts of insurance, that a party should be, by law, relieved from the duty of exercising the same ordinary care and prudence that is required in every other business transaction. It is the duty of every man to read what he signs. His failure to do so will or should not relieve him, or allow him to avoid the contract.

In New York L. Ins. Co. v. Fletcher, 117 U. S. 519, the agent set down false answers, and the applicant signed the application without reading it. The policy issued upon it was conditioned that the answers were part of it, and that VOL. VI-8

no statement to the agent not thus transmitted should be binding on the principal. These conditions, conspicuously printed upon it, accompanied the policy. The policy was held void. The court said: "It was the duty of the applicant to read the application he signed. He knew that upon it the policy would be issued if at all. It would introduce great confusion in all business transactions, if a party making written proposals for a contract, with representations to induce its execution, could be allowed to show, after it had been obtained, that he did not know the contents of his proposals, and to enforce it, notwithstanding their falsity as to matters essential to its obligation and validity. Contracts could not be made, or business fairly conducted, if such a rule should prevail." See Lewis v. Ins. Co., 39 Conn. 100; Ryan v. Ins. Co., 41 Conn. 168; Richardson v. Ins. Co., 46 Me. 394.

In 1 Wood on Insurance, sec. 150, it is said: "When the policy refers to the application or other papers connected with the risk, and adopts them as part of the contract of insurance, all the statements of the assured contained therein relative to the situation, use, care, or character of the property are warranties on his part, and must be strictly complied with, whether material to the risk or not."

In Marshall v. Ins. Co., 27 N. H. 157, it is said: "The application in such cases must truly represent the risk, and must be true in all respects, whether material or not."

In New York the same conclusions as above are stated as the law. See First Nat. Bank v. Ins. Co., 50 N. Y. 47; Leroy v. Ins. Co., 39 N. Y. 91, also 45 N. Y. 80; Ripley v. Ins. Co., 39 N. Y. 136. See, also, Garcelon v. Hampden Co., 50 Me. 580; Battles v. York Ins. Co., 41 Me. 208; Kelsey v. Ins. Co., 35 Conn. 225; Gahagan v. Ins. Co., 43 N. H. 176; Tebbetts v. Ins. Co., 1 Allen (Mass.), 305; Draper v. Ins. Co., 2 Allen, 569; Brown v. Ins. Co., 11 Cush. (Mass.) 280; Bersche v. Ins. Co., 31 Mo. 555; Edwards v. Ins. Co., 74 Ill. 84.

That such has been the line of decision in England, see Newcastle etc. Co. v. Macmorran, 3 Dow, 255; Bufe v. Tasner, 2 Marsh. 46; Britton v. Royal Ins. Co., 4 Foster & F.

905; Macdonald v. Fire etc. Ins. Co., 8 Q. B. 328; Thompson v. Weems, 9 App. Cas. 671.

The testimony clearly establishes the fact that the title to the property was misstated to the insurers, the deed having been made by the grantor, McCandless, to appellee, Herman Ell, Gottlieb Hess, and Paul Voght. There was no such corporation or association as The Arkansas Brewing Company to take title. 2d. That in the application appellee stated the value of the insured property to be $25,000, and such application contains the following clause: "The value of the property being fixed and warranted by applicant;"when in fact the greatest valuation warrantable, including betterments made by the owners, was less than $14,000, some $1,500 of which was not covered by insurance, showing overvaluation of 100 per cent, and insurance exceeding the entire value nearly $2,500.

W. H. Runkle, the agent who purchased the property for Wich and others, testified in regard to its value, at the time of purchase, December 12, 1888, as follows: "I made the investigation, and found that the building and real estate, machinery, fixtures, barn, and all other property, personal or real, belonging to said company, could be bought for $12,500;"-and he bought it at that price. After the purchase he, as agent, expended in improvements and for necessary articles $1,026.95, making the whole amount $13,876.95.

Appellee testified: "I lost $15,000 by the fire. * made improvements to the extent of about $1,600. * (Runkle, the agent, made it $1,126.95.) The $15,000 I spoke about represents the amount paid in running the brewery. The total amount I paid out of my pocket I do not know, as it was a losing business." He also testified that the notes of McCandless for the purchase of the property had not been paid at the time of the trial. According to the testimony of appellee and Runkle, it will be seen that the verdict and judgment not only covered the full value of the property, but the losses sustained in carrying on the business.

3d. By a provision in the policy, it was to become void in case there was any change of title, unless the fact was communicated to the company. About the 15th of August the other parties conveyed their interests to appellee, and he became sole owner. The fact was not communicated. The property was destroyed by fire September 5th.

In the application appellee stated the business was profitable. That it never had been profitable was shown by the testimony of appellee and others. It was also shown that business was suspended for a long time, and there had been no watchman, the reason being that the men were driven away by the ghost of some poor fellow that chose the place for the purpose of suicide.

The instructions given by the court, 1 to 7, both inclusive, are correct statements of the law, with the exception that in the second and third the court said: "If you find him (John Wich) the legal or equitable owner of the property," etc.

There was no evidence whatever of equitable ownership. The title as shown was purely legal; vested, first, in the four, and later in appellee, as sole owner. To submit the question of equitable ownership was error.

The ninth instruction is correct, a clear statement of the law of the case. The 8th, 10th and 11th were faulty, and at variance with others given, allowing the jury to relieve the appellee from the force or effect of his contract if they found he signed it at the suggestion of the solicitor, and did not know what it contained, etc. The 14th was particularly faulty, in effect allowing the jury to find the entire title in appellee by virtue of some alleged verbal arrangement, whereby their title was to fail in the future, on failure to pay their respective shares of the purchase.

The judgment will be reversed, and cause remanded for a new trial.

ON REHEARING.

Reversed.

PER CURIAM. The property covered by the policy on which this suit is based was insured in other companies for

various sums. One of the policies was the subject-matter of another suit, which came to this court by appeal, and is reported in 2 Colo. App., p. 484. The apparent diversity in the opinion of the court in the two cases has been made the subject of much argument. Counsel also urged with apparent sincerity and unusual insistence two propositions which we regard as of vital consequence in the settlement of the issues. These things have moved the court to a practical reconsideration of the case, and have led us to supplement the principal opinion. To make the present discussion plain, a little fuller statement must be made of some of the elements of the case. The brewery property was bought on the 20th of December, 1888, from one James McCandless. The consideration was $12,150, of which $4,000 was paid in cash, and the balance by the notes of the purchasers. The abstract does not show how many notes were executed, nor the time for which they ran. They were made by John Wich, Herman Ell, Gottlieb Hess and Paul Voght. The cash was paid by Wich. There is evidence tending to show that the proportionate interests of the respective parties were to be two fifths to Wich, and one fifth to each of the others. No cash was paid save by Wich. What, if at all, the others were of necessity to contribute, otherwise than as to these proportionate interests, is not clear. Some of the parties testified the contributions were to be in these stated proportions, while Wich says each was to put up $3,000, and to advance it within two months. There must be some mistake about this, because a contribution of $9,000 by the other three would be a larger sum than they were bound to pay, according to the testimony of the copartners. However this may be, the testimony is not as definite as it ought to be concerning the terms of the agreement. If these parties went in * together to buy the brewery and run it on some antecedently settled plan, which is highly probable, they ought to be and probably are able to state the exact terms of the agreement, both in respect to the amount to be contributed by each, the time within which it was to be paid, and the conditions which