WHITE et al. v. GERMAN ALLIANCE INS. CO. OF NEW YORK, 103 F. 260

COLT, Circuit Judge. In this case a jury trial was waived, and the court below made a general finding for the defendant. 98 F. 161. Where a case is tried by the court without a jury, the bill of exceptions brings up nothing for revision, except what it would have done had there been a jury trial. Where the finding is general, the parties are concluded by the determination of the court, except in cases where exceptions are taken to the rulings of the court in the progress of the trial.

The rulings of the court in the progress of the trial do not include the general finding of the court, nor the conclusions of the court embodied in such general finding. These propositions are laid down in Insurance Co. v. Folsom, 18 Wall. 237, 248, 250, 253, 254, 21 L. Ed. 827, and Cooper v. Omohundro, 19 Wall. 65, 69, 22 L. Ed. 47. The construction given by the supreme court to the statute relating to jury trial waived cases (Rev. St. §§ 649, 700) confines the questions open for review on this particular writ of error to the exceptions taken in the court below to the admission of certain evidence.

This suit was brought to recover on a policy of fire insurance issued by the defendant upon mill property owned by the plaintiffs. The case turned on the question of cancellation. It appeared that one Tilling-hast, an insurance broker, was authorized by the plaintiffs to procure |40,000 additional insurance on their mill property, and that he placed this insurance in several companies, — the defendant being one, —and sent the policies to the plaintiffs.

Within a few days thereafter Tillinghast was notified by the agent of the companies fiat they did not care to longer continue the risk, and a return of the policies was requested. Thereupon he communicated this to the plaintiffs by letter, and proceded to replace the insurance in other companies. The material issue of fact in the court below was whether Tillinghast was authorized by the plaintiffs to cancel the original policies and substitute new policies.

Although the policy contained the usual provision respecting cancellation by the company, or at the request of the insured, by giving five days’ notice, it was not necessary to prove that personal notice was given the insured, provided it was shown that Tillinghast had authority to cancel the original policies upon taking out other insurance for a like amount.

In support of defendant’s contention on this point, it offered in evidence, against the objection of the plaintiffs, certain letters which passed between Tillinghast and the agent of the companies which issued the first policies, respecting the cancellation of those policies; also, certain letters and a telegram which passed between Tillinghast and the agent of the companies which issued the new policies respecting the placing' of the substituted insurance,- — as bearing upon the authority of Tillinghast to cancel the old policies and to substitute others.

This evidence, standing alone, was not admissible; but, as one link in the chain of proof which was presented on this issue, it was, in our opinion, clearly admissible. In addition to this evidence, the record discloses that there was direct evidence, in the form of letters, that the plaintiffs had knowledge of the acts of Tillinghast, and of their acquiescence in what was being done.

There was also evidence Ihat the plaintiffs had accepted payment of the substituted policies, and had entered into a contract of adjustment with the substituted companies, under which ilie present suit was brought in the name of the plaintiffs to enable (be substituted companies to work out a contribution from the defendant company, all of which tended to prove an adoption by the plaintiffs of the acts of Tillinghast respecting the substitution of new policies for the old. It is not for this court to pass upon the sufficiency or weight of the evidence.

That was for the court below, and we have no power to disturb a general finding by the court on issues of fact, where there is evidence to support the finding. Assuming that the plaintiffs’ requests for certain rulings at the close of the testimony were refused, and that exceptions were duly taken to such refusal, these exceptions cannot be considered by this court, bfeeause they seek to review certain conclusions of the'court below which were necessarily embodied in the general finding by that court. Cooper v. Omohundro, 19 Wall. 65, 69, 22 L. Ed. 47.

Judgment affirmed, with costs of this court for the defendant in error.