Hanover Fire Insurance Co., Plaintiff in Error, vs. B. C. Lewis & Sons, Defendant in Error, 28 Fla. 209

Tayloe, J. : On the 15th of August, 1885, George Lewis, Edward Lewis and William C. Lewis, styling themselves as partners under the firm name of B. C.

Lewis & Sons, instituted their action in assumpsit in the Circuit Court of Leon county against the Hanover Fire Insurance Company, a Corporation of the State of New York, having an agency at Tallahassee, in Leon county, for the recovery of one-half of the amount of a policy of insurance for $5,000, issued to them on April 18th, 1882, by the Germania Fire Insurance Company and the Hanover Fire Insurance Company, as underwriters, wherein each of said companies, severally, each for itself, and not one lor the other, became the insurers, for one hall the amount of said policy, for a term of three years.

The said policy containing a covenant that in the event the assured had to resort to judicial proceedings to enforce their chumo under said policy, it should not be nccerrary to proceed against each of the insurers; but that snob nal-ion might bo brought against either of said compmvog and tint the other should be bound and concluded by the remit of such action in the same mnnacu* and to the samo effect as if it had been prosecuted against each of them separately with the like result. To the declaration in the cause the defendant company interposed rive pleas as follows.: 1st. Non-assumpsit; 2nd. Nil debit; 3rd.

That the plain tilts did not before the institution of their suit make and furnish to the defendant proofs of their alleged loss in accordance wjth the requirements of the policy of insurance sued upon; 4th. That subsequent to the issuance of the said policy of insurance, and before the occurrence of the said fire, there took place a change in the title and possession of the sail property described in the said policy of insurance, in that the phiintiif William C.

Lewis, who had no interest therein when the said policy was issued, became in part an owner thereof with the plaintiffs George Lewis and Edward Lewis, and entered into possession thereof with them before the said tire; 5th. That if the plaintiffs are entitled to recover from the defendant, they are entitled to recover only the sum of $2,080.37 -J, with interest thereon, because the said plaintiffs and defendant on the 10th day of April, A. I). 1885, submitted to an arbitration consisting of B. P. Langley and T. J.

Rawls, together with a third person to be chosen by the said arbitrators if necessary, the appraisal and estimate, at the then cash value, of the damage by the said lire to said property, which appraisal and estimate by them or any two of them in writing was to be binding on both parties, as to the actual cash value of, or damage to, the said properly, but without reference to any other question or matters of difference within the terms and conditions of the insurance, a copy of which said submission to arbitrators is hereto annexed marked “A,” and made a part of this plea, and thereupon to-wit: On the' 11th day of .April, A.

D. 1885, the said Langley and J. M. Wilson, the third party chosen by the said arbitrators to determine with them the-said question, did make, write and deliver to the said plaintiffs and the defendant their award and appraisal in the premises, and by such award and appraisal did appraise and arbitrate the damage done by the said lire, at the sum of $4,172.75. To the first and second of these pleas the plaintiffs joined issue. To the third and fifth pleas the plaintiff demurred, which demurrer upon subsequent argument was overruled.

To the defendant’s fourth plea the plaintiffs interposed a replication in avoidance of the. defense of a change of title in the property insured anterior to the fire that is set up in the defendant’s fourth plea. After the overruling of their demurrer to the third and fifth pleas of the defendant, the plaintiffs replied to the said pleas as follows: “ The plaintiffs, as to the third plea, say that they did make and furnish to defendants proofs of their loss on blank forms furnished to plaintiffs by defendant for that purpose, and not therefore required to furnish other.

The plaintiffs, as to the fifth plea, say that the so-called arbitration was not in accordance with the statutes of this State in such cases made and provided, nor in accordance with the terms of the policy of assurance between plaintiffs and defondant, nor with the “special agreement” for sub-in ism on to two builders. That the said two builders, nor either one of same, with a properly constituted umpire have made “no” award in accordance with said agreements; that the so-called award has not been accepted nor acted upon by either party, but was promptly repudiated by plaintiffs, and defendants so advised.

That said agreement of submission was in no sense legal, just or equitable, and had no binding-force,. in that its effect was to bind one party only to-the prospective award. That one arbitrator -was committed in favor of one party, and the umpire relied wholly upon the statements of the arbitrator or arbitrators, without personal knowledge and without testimony.” To this replication to the third plea the defendant demurred and at the same time moved to strike out the replication to the fifth plea.

Upon subsequent argument. the demurrer to the replication to the third plea was overruled, but the motion to strike out the replication was granted. At this state of the proceeding, by leave of the court, the plaintiffs amended their declaration by striking out the name of William C. Lewis, as a party plaintiff,, and by styling their suit “George Lewis and Edward. Lewis, formerly partners under the firm name of 15. C. Lewis & lions,” as plaintiffs. Upon this amendment of the declaration, the defendant withdrew its firm plea of non-assumpsit and plead the others over to the declaration as amended.

The plaintiffs then filed a replication to the defendant’s third plea,, substantially the same that they before interposed to same, which replication was demurred to again by the defendant, and the demurrer again overruled, which ruling was erroneous.

The demurrer of the defendant to the replication to defendant’s third plea should have-been sustained for the obvious reason that the replication demurred to does not allege that proper proofs of loss were made by the plaintiffs and furnished to the defendant, or that proofs were thus made and furnished in compliance with the provisions for such proofs in the policy contained as one of the covenants therein ;but simply alleges that ‘ ‘proofs of their loss were furnished to defendant by plaintiffs on blank form furnished to plaintiffs by defendant for that purpose,” when the pith of the third plea to which it was_ intended as a reply, was that no proofs “in accordance with the' requirements of the policy sued upon” had been furnished.

The replication, does not dispute or take issue upon this assertion in the plea, but undertakes to sidetrack the defense tendered by the pica, by substituting proofs made on a. blank form, for the proofs called for by the provisions of the policy. The proofs furnished as alleged in tins replication Uioi’gli filling up the blanks in a dozen sol; forme, nay f till have fallen far alunt of filling the requiremenTi of the policy sued upon. Upon defendant’f? fourth plea the plaintiffs joined issue. To the fifth plea the plaintiffs interposed a replica ¡ ion containing twenty-six numbered grounds of objection.

Upon the filing of tills replication the defendant, moved the court to require the plaintiffs to elect the ground therein upon which they would rely, and to strike out the others. This motion seems, from tile record, to have been “granted,” and then by a subsequent order of t he court, it was specifically ordered that the ground of the replication “ contending* for a tender of the amount of the award set up in the fifth plea,” should be stricken out. Afterwards the plaintiffs seemed to have abandoned their replication to the fifth plea-, and filed a general rejoinder of issue the - eon.

This disposes of the pleadings in the case. On the 20th of January, 1888, the cause was tried before a jury and resulted in a verdict for the plaintiffs in the sum. of three thousand dollars. Motion for new trial was made and denied, and judgment for three thousand dollars entered against the defendant company, and from this judgment the case is brought here upon writ of error. Tlie errors assigned are as follows: 1st. The overruling of defendant’s demurrer to plaintiffs’ replication to the third plea; 2nd. The admission in evidence of the papers denied to be proofs of loss; 3rd.

The admission of the testimony of Edward Lewis as to William C. Lewis’ interest in the property insured; 4th. The admission in evidence of the letters between plaintiffs and defendant; 5th. The admission of the testimony of Edward Lewis as to the whereabouts of T. J. Rawls; 6th. The refusing to admit in evidence the arbitration and award between plaintiffs and defendant; 7th. The giving of each and every of the special charges asked by the plaintiffs; 8feh. The refusing of each and every of the special charges asked by the defendants; 9th. The refusing of defendant’s motion for a new trial.

These assignments will be considered in the order in which they come. The first assignment has already been disposed of, and held to be error. The 2d, 3d and 4th assignments will be discussed together, as they raise the same or closely kindred questions. It seems that when the policy of insurance sued upon was issued, George Lewis and Ed ward Lewis alone composed the firm of B. C. Lewis & Sons, to whom the policy was issued, and that they alone, as such partners, at the time of the issuance of the policy, owned- and held the legal title to the property covered by the policy.

As testified to by Edward Lewis, subsequent to the issuance of the policy, but prior to the loss by fire, William C. Lewis was taken into the firm as a member thereof, to share in the profits alone to a certain limited extent. It is contended for the plaintiff in error that this worked a change in the title, possession, interest and ownership in the assured property, giving to the new partner, William C.

Lewis, an interest therein to snoh an extent as to avoid the policy under the following covenant therein: “If the property bo sold or transferred, or any change take place in title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance it should render the policy void.” In that clause of the policy providing for the furnishing of proofs in case of loss it is further stipulated as follows: ' “If the interest of the assured be other than the entire and sole ownership, the names of the respective owners shall be set forth with their respective interests therein certified to by them.

In the proofs of loss that were furnished to the defendant company after the fire, and that were subsequently, at the trial of the cause, admitted in evidence over the defendant’s objection, we find the following statement sworn to by Edward Lewis and William O. Lewis : “The property insured belonged at the time of the fire to B. O. Lewis & Sons, a firm composed of George, Edward and William O. Lewis; ' and at the time of effecting the insurance it belonged to B. C.

Lewis & Sons) a firm composed of George and Edward Lewis.” After the receipt of this proof of loss by the defendant company, a correspondence by letter of considerable length -was had between the in-silvers and assured, which letters were subsequently admitted in evidence over the defendant’s objection.

In the first oí these letters, dated May 22nd, 1885, from the defendant to the plaintiffs, in which the receipt of the proofs of loss is acknowledged, no objection is raised to the form or sufficiency of the proofs furnished, except that the plaintiffs are asked therein for information as to the “nature and extent of William iJ. Lewis’ interest in the present firm of B. C. Lewis & yons.” To this the plaintiffs replied under date of May 26th, 1885, “W. C.

Lewis, as stated in proof of lows, is a partner in our firm, having been admitted mumary 1st, 1883, with a fixed share of profit's.’' This does not seem to satisfy the defendant company, as they again wrote on May 29th, 1885, to the plaintiffs asking them to “state what share of the ‘Glenwood’ property was owned by William C. Lewis, as a member of the firm, at the time of the fire.” To this the plaintiffs replied on June 2d, “W. C. Lewis had no interest in the Glenwood property, except as stated in our letter of 2Gth May.” In none of this correspondence is the objection urged that the explanation of W. C.

Lewis’ connection with the property should be under oath; and in none of this correspondence is there any other objection or question raised with reference to the proofs of loss, either as to its form or substance. The plaintiffs in reply to the inquiries of the defendant in relation to this matter state distinctly that AN. C. Lewis had no interest in the property, but was limited to a fixed interest in the profits of the firm’s business. What further information couldhavebeen reasonably desired or given on the subject, it is difficult for us to see.

To have demanded, more, presents the appearance on the part of the defendant; of a desire to quibble at straws. It was an error very natural to be made by men not export in the nice distinctions growing out of the ownership of partnership, properties, to stale, as was done in these proofs of loss, that the incoming partner, William G.

Lewis, owned an interest in the insured property; but when th(> matter is drawn pointedly to their attention, the true explanation is at once made showing that he in reality lias no interest in the property of the firm as originally composed, but only a fixed interest in the profits of the business generally. In the light of the explanation given by Edward Lewis in his testimony as to the terms upon which William C. Lewis was admitted into the firm, we are of the opinion that he did not acquire any such interest in the property as would avoid the obligation of the defendant to pay the loss.

In this case, according to the evidence of Edward Lewis, and it is nowhere contradicted, no written contract of partnership was gone into when William G. Lewis entered the firm; nothing was done, except to admit him to membership by a verbal agreement that he was to have a fixed interest only in the profits of the general business, with this testimony, we are of that opinion that he did not acquire any such interest in this property as would defeat the right of George and Edward Lewis to recover upon this policy.

In Linclley on Partnership, vol. 1, p. 329, it is said that “The only true method of determining as between the partners themselves, what belongs to the firm and what not, is to ascertain what agreement has been come to upon the subject. If there is no express agreement, attention must be paid to the source whence the property was .obtained, the purpose for which it was acquired, and the mode in which it has been dealt with.” To the same effect, is Parsons on Partnership, sec. 366. Applying this test by getting from Edward Lewis on the stand the agreement between the partners here, the result is that William C.

Lewis on entering the firm acquired no interest in its properties, but a prospective interest only in the profits of the business generally. Stumph vs. Bauer, 76 Ind., 157. We do not think there was any error in admitting in evidence the proofs of loss furnished to the defendant, nor in admitting the correspondence that passed in reference thereto between the defendant and the plaintiffs, nor in permitting Edward Lewis on the stand to testify fully as to the status of William C. Lewis in the firm.

The correspondence was directly pertinent to, and explanatory of the only-point in the proofs of loss to which the defendant excepted, and not being- demanded under oath, we think the requisite of being verified by oath must be held to have been waived. Marthinson & White vs. North Brit. & Mer. Ins. Co., 64 Mich., 372; Washington Fire Ins. Co., vs. Kelly, 32 Md., 421; West, Morris & Gorrill v. Citizens Ins. Co., 27 Ohio St., 1; Ayers vs. Hartford Fire Ins. Co., 17 Iowa, 176.

The part of Edward Lewis’ evidence objected to was directly pertinent to the same point, and we think was clearly admissible, it amplified and explained fully William C. Lewis’ status toward the insured property, the only apparent subject of contention between the parties as to the sufficiency of the proofs of loss; which explanation and correction of the proofs of loss we think was propel at the trial and in accordance with law. Commercial Insurance Company of Chicago vs. Huckberger, 52 Ill., 464; Ætna Insurance Co. vs. Stevens, 48 Ill., 31; McMaster vs.

President, etc., of Insurance Company of North America, 55 N. Y., 222; Hubbard & Spencer vs. Hartford Fire Insurance Co., 33 Iowa, 325; Connecticut Mutual Life Insurance Company vs. Scwenk, 94 U. S., 593; Maher vs. Hibernia Insurance Co., 67 N. Y., 288; Moseley vs. Vermont Mutual Fire Insurance Co., 55 Vt., 142; Willis vs. Germania & Hanover Fire Insurance Co.’s., 79 N.

C., 285; May on Insurance, sec. 465; 2 Parsons on Contracts, p. 461/ The cases cited by the defendant's counsel in support of their conten!ion all involved personal property, where the incoming1 partner was admitted to full partnership in the assets of the former firm where those assets consisted entirely of personalty, and have no applicability to the question here. The fifth assignment of error we. think is well la.ken. The whereabouts of T. J.

Rawls, or the question as to Avliether lie was alive or dead, could not have any relevancy to any issue in this case; and we are at a loss to understand tlie object of tlie enquiry as to liis whereabouts, unless it be, as is contended by defendant’s counsel, an effort to make admissible as evidence at the trial an estimate of the items and cost of replacing the destroyed' property, purporting to have been made by T. J. Rawls, deceased.

Even for this purpose we do not think the enquiry as to his whereabouts was pertinent or proper, as the fact of 1ns decease did not render any estimate on the subject made by him admissible evidence. Had he been alive his estimate, to be proper evidence, would have to be verified by his oath; and the fact of his decease did not render his unverified estimate, made while in life, any more competent as evidence than if the same had been offered during his lifetime. The sixth assignment of error is well taken, and is fatal to the verdict and judgment in this cause.

Incorporated in tlie policy sued upon as one of the covenants therein, is the following provision: “In case differences shall arise touching any loss or damage, after proof thereof has been received in due form, the matter shall at the written request of either party be submitted to arbitrators, indifferently chosen, whose award in writing shall be binding on the parties as to the amount of such loss or damage, but shall not decide the liabilities of the companies respectively under this policy ” In pursuance of this provision the insurers and insured, after the loss, entered into the following agreement in writing for submission of the sole question of “amount'' of loss to Iaa'O builders or arbitrators: “New York Underwriters Agency, composed of tlie Germania and llanoA’er Eire Insurance Company of Ne/vv York.

Special agreement for submission to íaa'o builders. It is hereby agreed by B. C. Lewis & Sons, of the first part, and the Germania and Hanover Fire Insurance Companies, of the city of New York, of the second part, (each acting for itself,) that B. F. Langley and T. J. Rawls, together Avith a third party to be c-hosen by them, if necessary, shall appraise and estimate at the true cash value the damage by fire on tlie 2nd day of January, 1885, to the property belonging to B. C.

Lewis & Sons, as specified beloAv, which appraisement and estimate by them or any íavo of them in Avriting as to the amount of such loss or damage shall be binding on both parties; - it being understood that this appointment is without reference to any other question or matters of difference Avithin the terms and conditions of the insurance, and is of binding effect only so far as regards the actual cash value of, or damage to, such property covered by policy No. 20,195 of said companies, issued at the Tallahassee, Fla., agency.

The property on which damage is to be estimated and appraised is the 2i story frame building Avith shingle roof, situate about seven miles northeast from Tallahassee, known as tlie Glenwood property.

And it is expressly understood and agreed, that said builders are to take into consideration the age, condition and location of said premises previous to the fire, and also the value of the walls, material, or any portion of said building saved; and after making an estimate of the cost of replacing said building, a proper deduction shall be made by them for the difference (if any) between the value of a new or replaced building and the one insured; said builders are hereby directed to exclude from the amount of damage any sum for previous depreciation from age, location, ordinary use or any cause whatever, and simply to arrive at the damage actually caused by said fire.

Witness our hands at Tallahassee, Fla., this 10th day of April, 1885. (Signed) B. C. Lewis & Sons. (Signed) Germania & Hanover Fire Ins. Cos., per Chas. C. Fleming, Special Agt.” Then follows the oath of the said two builders as follows : “Declaration op Builders. County of Leon. State of Florida, We, the nndersigned, do solemnly swear that to will act with strict impartiality in making an appraisement and estimate of the actual damage to the property of B. C.

Lewis & Sons, insured by the Germania & Hanover Fire Insurance Companies of New York, agreeable to the foregoing appointment, and that we will return to said company a true, just and conscientious appraisement and estimate of damage on the same, according to the best of our knowledge, skill and judgment. Witness our hands this 10th day of April, A. D. 1885. (Signed) B. F. Langley, (Signed) T. J. Rawls. Subscribed and sworn before me this 11th day of April, A. D. 1885. (Signed) W. C.

Lewis, Notary Public.” Then follows the findings or award signed by one of said builders and an umpire alleged to have been selected by them, to-wit: “ Award of Builders. To the Germania and Hanover Fire Insurance Companies of New York : Having carefully estimated and appraised the damage by fire to the property of B. C.

Lewis & Sons, agreeably to the foregoing appointment, we hereby report that, after having taken into consideration the age, condition and location of the premises previous to the fire, and making proper deductions for the walls, materials and portions of building saved, we have appraised and determined the damage to be four thousand, one huhdred and seventy-twm 75-100 dollars ($4,172.75). Witness our hands this 11th day of April, 1885. . (Signed) B. F. Langley, (Signed) J. M.

Wilson.” This submission to arbitration and the awrard that followed was' specifically set up as a special defense by the fifth plea of the defendant This plea was demurred to by the plaintiffs and the demurrer was overruled by the court, and the plea sustained as a* valid defense; yet, afterwards, on the trial, when the defendant sought to substantiate their plea by introducing the agreement of submission and the award in evidence, its admission was refused by the court, unless it should also offer to introduce evidence that the amount awarded had been paid or tendered by the defendant to the plaintiffs; and this, too, after a replication to this idea had been held by the court to be bad, that contended for payment or tender of the amount awarded before the award could be available as a defense.

Ever since the decision in 1353 in the House of Lords by Coleridge, J., of Avery vs. Scott, 3 Exch. (8 Welsb., H. & G.), 499, it has been uniformly held in England and in this, country, that provisions like this in a policy of insurance for the ascertainment and settlement of the amount of loss or damage by submission to arbitrators are proper, legal and binding on the parties, and do not fall within that class of arbitraments that undertake to oust the courts of their jurisdiction, and that are, therefore, obnoxious to the law. Wolf vs. Liverpool & London & Globe Ins. Co., 50 N. J., (Law), 453; Gauche vs.

London & Lancashire Ins. Co., 4 Woods (U. S. C. C.), 102; Adams vs. So. Brit. & Natl. Fire & Marine Ins. Co., 70 Cal., 198; Trott vs. City Ins. Co., 1 Clifford (U. S. C. C.), 439; Zallee v. Laclede Mut. Fire and Marine Ins. Co., 44 Mo., 530, in which it is held that such a submission is not, in the accepted legal sense of the term, a submission to arbitration, but merely an appraisal, and that it was not necessary to have the appraisers sworn. Elliott v. Royal Exch. Assurance Co, Law. Reports, 2 Exchequer Cases, 237; Howard vs. P. & A. R. R. Co., 24 Fla., 560, 5 South Rep., 356.

The parties in this case, in pursuance of this valid and binding provision in the policy here sued on entered into a solemn written compact submitting the matter of the “amount'’ of the loss or damage to two arbitrators or apimaisers of their own choosing, with power in them to choose a third as umpire in case of their failure to agree. The appraisers thus chosen have awarded or fixed the amount of the loss at $4,172.75. Why the assuivd are not bound by their agreement of submission, and this award that followed, we cannot comprehend from anything exhibited in the record.

It is true that promptly after the rendition of the award they notified the insurers of their determination not to abide the same, but parties cannot thus arbitrarily rid themselves of the binding force and effect of their solemn contracts. By this award they were bound, and to the amount awarded were they limited in their right to recover, unless they could have shown under proper pleading such fraud or other matter as would in law have avoided the same. Burchell vs. Marsh, Freer & Arbuckle, 17 Howard, 344.

In the record here there is not one scintilla of evidence even tending or attempting to show either irregularity, unfairness or fraud in the procurement of this submission or in its conduct, or result, and we must consequently hold that, in the absence of any such circumstances to avoid it, it is binding as to the extent of the loss on the assured as well as upon the insurers. Such submission does not come within the catalogue of arbitraments provided for in our statute, McClellan’s Digest, p. 105, et seq., and need not have been conducted in accordance with the statute.

Neither was it necessary that the awaird of the appraisers touching such special question submitted to them should have been accepted or acted upon in any way by the respective parties; neither was the agreement to submit such special question to arbitration an unilateral undertaking binding only on one of the parties thereto; because upon the face of that covenant in the policy sued upon that makes provision for the appraisement of the amount of the loss, and also in the subsequent agreement submitting said special question to two builders, it is expressly stipulated that the findings of such arbitrators as to the amount of the damage should be binding on both parties.

Hence, if, after such ascertainment of the amount of the loss, it should be found that the insurers were legally liable for such loss they at once became bound for the “amount” ascertained and awarded by such arbitrators. The fact tiiat the amount thus fixed by the arbitrators -was not paid or tendered, has nothing to do with the question whatever. Both in the policy and in the subsequent submission to the appraisers, the liability of the insusurers ivas expressly excepted and reserved from the consideration of said arbitrators. The naked question submitted to them was: What is the amount of the damage here ?

Whether the insurers were legally liable or obligated to pay that loss, was not submitted to them and did not enter into their sphere of enquiry, nor into their .award; and depended upon the settlement of divers other independent circumstances and conditions growing out of the contract between the parties. As before stated, the refusal of the court below to admit in evidence this agreement for submission to arbitration and the resultant award, under the objection apparently urged, was fatally erroneous.

By that award, until avoided in some legally recognized way, each one of the underwriting companies, in the event of their legal liability for the loss, was obligated for one-half part of the amount thereof, ($4,172.75.) But one of the companies is sued here, and the verdict .against it is for $8,000, which we find tobe considerably in excess of one half part of the amount of the award, by which the parties were bound, and to which they were limited in a recovery.

The seventh assignment of error is the giving of each and every of the instructions given by the court to the jury of the court’s own motion, and those requested by the plaintiffs, but in the briefs of counsel this assignment seems to have been abandoned, except as to the instruction lettered “E,” which is as follows : “The letter of the defendant acknowledging receipt of proofs of loss as of May 20th, 1885.

The interest then in the event of your finding for the plaintiffs begins to run from July 20th, 1885.” This instruction we think was erroneous; it dealt too strongly with the facts, and supplied in reality a fact itself, that is, the exact date from which interest began to accumulate in the event of a recovery by the plaintiffs. The jury a,re the sole judges of facts, and they alone determine the establishment or non-establishment of every material fact in a cause.

Had this instruction directed them that the plaintiffs were entitled to interest, in the event of their recovering, upon the amount of the recovery from a date sixty days after the furnishing of proofs of loss, and left it to the jury to determine whether proofs of loss had been furnished or not, and when, it would have been a proper charge. But in view of the absence of any conflict of evidence as to the time when the defendant received the proofs of loss, we do not think the giving of this charge could be held to be reversible error.

The other instructions given and excepted to, counsel have ignored in their briefs, and consequently we will treat them as abandoned. The eighth assignment of error is the refusal of the court to give nine instructions requested by the defendant. After what has been said upon the various question arising in this case we do not deem it necessary to discuss this assignment further than to say that the court below upon another trial can conform its rulings upon the questions raised by said refused instructions to tlie views and opinions herein expressed.

The ninth assignment- of error, the refusal to grant a new trial, it follows from what has been said, must be sustained. .V new trial should have been grunted. The judgment of the court below is reversed, with instructions that a new trial be awarded.