SALING v. BOLANDER, 125 F. 701

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is contended that the court erred in sustaining the demurrer to that portion of the answer which alleged that the written application for the change of the policies was intended as an assignment of the interests of the beneficiaries to Henry N. Bolander, his executors, administrators, and assigns, and was delivered after the death of the insured to the administrator, and was by him delivered to the insurance company.

It is not alleged or claimed that the insured himself j’oined in the application, or that it was ever delivered to him, or that all the beneficiaries signed the same before his death. The instrument on its face is not ambiguous, and it requires no

interpretation and no extraneous evidence as to its intent. It is a simple request and application for a change in beneficiaries of the policies. After the death of Bolander, the application could have no efficacy for the purpose for which it was originally intended, or for any purpose. If, indeed, it was the intention of the beneficiaries, by subsequently delivering this instrument to the administrator, to evidence their relinquishment of their rights as beneficiaries, it was

an act done without consideration of any kind, and it was subject to their revocation at any time thereafter. The plaintiff in error insists that because he has pleaded, and it is not denied by the defendant in error, that the instrument was intended as an assignment, it must necessarily operate as such. But the plaintiff in error cannot impute to the instrument an intention which is not fairly deducible from its terms, and he cannot assert that an instrument which on its face is not as assignment was intended as such. The intention is found in the instrument.

It is true that the intention of an instrument may, as between the parties thereto, by virtue of an accompanying agreement, be shown to be other than its terms import. Thus a deed absolute on its face may be shown to have been intended as a mortgage. But it would not be enough in such a case for the grantor to allege that he intended that the deed should operate as a mortgage. So in this case it is of no avail for the plaintiff in error to say that this instrument, the meaning whereof is plain upon its face, was intended by those who signed it to have a meaning different from what its plain words import.

It is unimportant that the defendant in error took no issue upon the averment of the answer that the written application was intended as an assignment. By failing to reply to the answer, he admitted only the facts which were well pleaded. To set forth the written instrument in the answer, and then to plead that it was intended to have a meaning different from what it purports to be, is to proffer averments which the instrument itself contradicts, and which the court will disregard. Dillon v. Barnard, 21 Wall. 437, 22 L. Ed. 673.

It is contended that the defendant in error failed to show that at the commencement of the action the interésts of all the beneficiaries in both the policies had been assigned to him, and that the court erred in admitting in evidence the assignment from one of the beneficiaries, which purported to have been executed on her behalf by her attorney in fact.

The power of attorney which appears in the bill of exceptions describes the policies and recites the death of the insured, and gives power to the agent and attorney in fact in these words: “For me and in my name and for my use and benefit to ask, demand, sue for, and receive of and from the said insurance company all moneys to which I am or may be entitled as one of the surviving children of said Anna M.

Bolander under the policies of insurance above described, and upon receipt thereof by, or the payment thereof to, my said attorney, to make, execute, and deliver a general release or discharge for the same.” We need not discuss the question whether the power thus given is sufficiently broad to sustain an assignment to the defendant in error for the purpose of collecting the amounts due under the policies, for the reason that the bill of exceptions does not purport to contain all of the evidence.

It contains only the evidence offered at the trial “concerning the assignment to the plaintiff or his ownership of the insurance policies in controversy to which any objection was taken by the defendant.” For aught that appears to the contrary in the bill of exceptions, other evidence may have been offered to which no objection was taken by the defendant showing the authority of the attorney in fact to execute the assignment, or showing that before the commencement of the action the beneficiary ratified the action of her attorney in fact, and that both the policies were duly assigned to the defendant in error.

In the absence from the bill of exceptions of proof to the contrary, it will be presumed that such was the fact. The burden is upon the plaintiff in error to show affirmatively that the trial court erred in its ruling. City of Milwaukee v. Shailer & Schniglau Co., 91 Fed. 726, 34 C. C. A. 66; Collier v. United States, 173 U. S. 79, 82, 19 Sup. Ct. 330, 43 L. Ed. 621; United States v. Patrick, 73 Fed. 800, 20 C. C. A. 11, 18; Lincoln Savings Bank v. Allen, 82 Fed. 148, 27 C. C. A. 87; Yates v. United States, 90 Fed. 57, 32 C. C. A. 507; Union Pacific Ry. Co. v. Harris, 63 Fed. 800, 12 C. C. A. 599.

It is assigned as error that the court entered judgment in favor of the defendant in error for the recovery of damages measured by the interest on the amount of the policies from August 28, 1898, at the rate of 8 per cent, per annum.

The assignment does not specify wherein the error of the judgment entry consisted, but it is now said that it was error, first, for the reason that the policies were delivered to the marshal under the writ of replevin on July 2, 1901, and there could be no damages for their detention after that date; and, second, that the rate of interest on such demands, in the absence of an agreement between the parties, was changed by the statute of Oregon on October 14, 1898, from 8 per cent, to 6 per cent. Laws 1898, p. 15. The attention of the trial court was not directed to this alleged error.

We find no merit in the contention that there could be no damages after the date of the surrender of the policies to the marshal. The conduct of the plaintiff in error in continuing to maintain his defense and in insisting on his right, as administrator, to possess the policies, and to receive the amounts payable thereunder, operated as a barrier to the payment of the policies by the insurance company to the defendant in error until the end of the litigation. We think, however, that the judgment should be modified by reducing the interest to 6 per cent, from the date of the change in the interest law.

With that modification, the judgment of the Circuit Court is affirmed, with costs to the defendant in error.