Opinion of the Court.

In some of the cases it is held that, where one of several joint owners in whose names the property is insured, transfers his interest in the property to the other joint owners, so as to retain in himself no insurable interest, no recovery can be had on the policy, but this is not because of the forfeiture imposed by the condition against alienation, but because, at common law, the suit must be brought in the joint names of the insured, and as the assigning plaintiff would have no insurable interest, no recovery could be had in his name. This seems to have been the real ground upon which the decision of this court was based in Dix v. Mercantile Ins. Co. 22 Ill. 272, although the court, after sustaining the judgment of the court below on this ground, went further and held, that the assignment by a partner to his copartners of all his interest in the property insured was a breach of the condition of the policy in that case. It should be observed, however, that said condition provided that the policy should be void in case of "any transfer or change of title of the property insured, or of any undivided interest therein," a condition which may well be construed as applying even to a sale by one partner to the other partners of his interest in the partnership property. It is not inconsistent with the rule established in that case, therefore, to hold that a sale by one partner to another of his interest in the property insured in the firm name, is not a breach of a condition merely providing generally against alienation by sale, so long, at least, as the party selling retains an insurable interest in the property insured.

Upon substantially the same grounds, it must be held, that the contract to sell contemplated by the condition of the policy in this case, was a contract between the insured or some of them and some third party. The actual interests of partners in the firm property are necessarily fluctuating, and there seems to be no particular reason why the insurers should wish to keep the ownership unchanged as between them, so long as all retain an insurable interest. The effect of the contract in

Opinion of the Court.

this case was merely to modify the relative rights of the partners to a certain extent, leaving them all interested in the firm and its property, and admitting no stranger to the possession or control of the property insured.

The instructions to the jury upon this branch of the case were in harmony with the views above expressed, and we are of the opinion that they are subject to no just criticism.

It is further objected that there was such change in the possession of the property insured as should be held to be a breach of the condition which provided that the policy should be void and of no effect if there should be any change in the possession of the property insured. The change of possession here referred to clearly must be some change during the term of the policy, and it is sufficient to say, that there is no evidence tending to show any such change of possession. Little and Simonds were in possession at the date of the policy, and their possession continued without interruption or change down to the time of the fire. There was no condition or stipulation in the policy that Peck, the other member of the firm insured, should be in possession, but merely that the possession should remain during the term of the insurance as it was at its commencement. Those conditions of the policy relating to misrepresentations or concealments as to the situation or occupancy of the property or the interest of the insured therein, are in that clause which refers to an application, plan, survey or description, and assumes to make such paper a part of the policy and a warranty by the insured. The record, however, fails to disclose. the existence of any such paper, and so the clause which refers to it and attempts to prescribe its place and effect as a part of the contract, and to determine the consequences of misstatements or omissions therein, must be regarded as inapplicable to the facts in the case, and therefore nugatory.

After a patient investigation, we are unable to find any material errors in the record. The judgment of the Appellate Court will therefore be affirmed. Judgment affirmed.

Syllabus.

133 234 42a 354

133 234 50a 403

133 234

48a 588

133 234 63a 96

643 296

133 234

167 489

WILLIAM HALL et al.

v.

THE FIRST NATIONAL BANK OF EMPORIA.

Filed at Ottawa May 14, 1890.

1. CONSTRUCTION OF CONTRACT—us viewed by the parties-attendant` circumstances-subject matter, etc. The construction which the parties put upon their contract, if not inconsistent with its terms, will be adopted in its interpretation by the courts.

2. In order to ascertain what parties intend by the use of language employed, it is frequently quite important to consider the subject matter to which it relates, the position of the parties, and the objects they may have sought to attain. The contract may be viewed in the light in which the parties viewed it, and as nearly as practicable from their standpoint.

3. Stock brokers at the Chicago Union Stock Yards telegraphed to a banker: "We will honor G. & W.'s draft for cost of cattle and hogs consigned to us." Quite a number of such drafts were honored, but acceptance of the last draft drawn and discounted was refused: Held, that for the purpose of showing whether the promise of the brokers was for one draft, only, or for all such drafts as might be drawn, the jury had the right to consider the arrangement or contract between G. & W. and the brokers, for the shipping to the latter of live stock, and all the facts and circumstances proven, and the construction the parties themselves put upon their contract.

4. BILL OF EXCHANGE-promise of acceptance-upon consignment of property-consignment not completed. If one agrees to accept a draft before it is drawn, for the cost of cattle, and the cattle are consigned to him, he will be liable on the draft as fully as if he had formally accepted the same upon its presentation.

5. Where a party agrees beforehand that he will accept a draft to be drawn on him for cost of cattle consigned to him, he will be liable to a bona fide holder of the draft, although the cattle for which it was drawn never reached the consignee, and an inferior lot is by mistake shipped to him.

6. And where the party agrees to accept and pay a draft for cattle bought and consigned to him, without requiring a bill of lading to be attached, he, and not the party who in good faith advances money on the draft, relying on such promise to accept and pay, takes the risk of the stock being diverted while in transit, either by accident or design.

Statement of the case.

7. SAME accepting consignment — as an acceptance of draft. If a broker takes a consignment of a lot of cattle with the knowledge that a draft has been drawn on him for the same by the consignor, he can not retain the cattle, or proceeds, and repudiate the draft, but must pay it.

8. SAME bona fide holder-presumption. The holder of a draft will, in the absence of any evidence tending to show the contrary, be presumed to be a bona fide holder for value.

9. SETTING ASIDE DEFAULT-discretionary. A motion to set aside a judgment rendered on default is addressed to the sound legal discretion of the court, and ordinarily the refusal to grant the same can not be assigned for error.

10. PRACTICE-directing what the verdict shall be. Where there is evidence tending to prove the issues, there will be no error in the court refusing to take the case from the jury.

11. VERDICT-requisites—finding issues, without assessing damages. After judgment by default in assumpsit, and the assessment of the damages by the court, on defendant's motion, the judgment was stayed, and he was allowed to plead, and a trial was had on the issues thus made. The jury, by their verdict, simply found the issues for the plaintiff, making no assessment of damages: Held, that the verdict was not erroneous, in either form or substance.

APPEAL from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. JOHN P. ALTGELD, Judge, presiding.

This is a suit by the First National Bank of Emporia, doing business at Emporia, Kansas, against William and Simeon F. Hall, partners, etc., to recover upon the alleged promise by the Halls to accept and pay drafts drawn on them by Greer & Way, and which had been discounted by the bank. There was evidence that Greer & Way, who were cattle dealers and shippers in Kansas, made arrangements with appellants, who were cattle brokers at the Union Stock Yards at Chicago, by which the latter were to sell the stock shipped them by the former, and were in some way to divide profits or commissions with Greer & Way. Contemplating shipments, Greer & Way, on August 10, 1886, wrote to appellants:

Statement of the case.

"Please write the First National Bank of Emporia that you will pay our draft for any fat cattle we buy. I expect we will ship five or six loads of cattle the first of next week. We think we will get a good many cattle from here. The cattlemen do not like present prices, but the cattle will have to go soon.

Respectfully,

GREER & WAY."

On the receipt of this letter, appellants telegraphed appellee as follows:

"UNION STOCK YARDS, ILL., 8,/13, 1886. "We will honor Greer & Way's draft for cost of cattle and hogs consigned to us. HALL BROS. & Co."

Greer testified, that he made an exact copy of the telegram of the appellants to his firm, the original having been destroyed, which reads: "Have wired First National Bank we will honor your drafts."

Between the date of the telegram and the drawing of the draft in suit, Greer & Way drew seven drafts on appellants, upon which appellee advanced the money, and they were all paid, and accepted by appellants. The evidence tended to show that three of these drafts on their face had the words, "Drawn on tel.-8,/13;" and the draft in suit was drawn in the same way, and appellee advanced money to Greer & Way thereon to pay for cattle consigned to appellants. On September 13 and 15, drafts to the amount of $9500 were drawn against stock shipped which sold for only $8139.16, which, it is claimed, were drafts in excess of the cost of the cattle. On September 29 Greer & Way made a draft for $6350 for a bunch of cattle known as the "Thrawl cattle," which is also claimed to have been overdrawn, the cattle realizing only $5259.15. Appellants having paid these drafts, Greer & Way were liable to them in the sum of $3300 on that account. On September 30 and October 1, two drafts, one for $10,800 and the other for $6200, came to appellants, together with sixteen car-loads of cattle, which Mr. Greer accompanied. The first was ac