The times. [volume] (Richmond, Va.) 1890-1903, 1898-04-08


court should have retained control OF
SUFFICIENT sum until II were determined
whether ultimate liability as surety
would accrue.
Another objection taken by appellant'
Is an .allowe@ce OF 500 fee 10 counsel FOL
II. NJ. S. & c.. and extra compensation
70 the trustee.
Held. There are cases which Justify
courts for allowance OF counsel fees ou'
OF funds under their control-a power
susceptible o. great abuse. and which
should be exercised with the most zeal
Gus caution and regard 20 the rights OF
the lliigants. In most cases II Is better
to leave those concerned TO make theif
own. contracts. but where parties unre-
presented by counsel reap the beneht oil
services rendered in the progress OF a
cause II Is right and proper that they
make compensation. There being rea-
son TO believe. however. that the decTe'
was rendered with the assent OF those
affected BY Il. and as the case has TO 80
tack Tor further proceeding in the Cir
cult Court. no opinion is expressed as u
the fees OF counsel and allowance 70
trustee bat these items are left TO be
further considered and disposed OF II
that court
AS TO PLEADING.
METROPOLITAN Life Insurance Company
sc Rutherford Reversed. Opinion by
Judge Buchanan.
Action OF debt Two special counts
end common counts for money lent. paid.
h7J and received. and on an account
yfaseI Demurrer sustained as TO spe-
cial counts. ovcrrJ'ed as IN common pea
OF nIl debit ard issue ioired on common
counts. FIaintih offered as evidence two
po,lrie9 ~ Insurance. defendant OBJECT
lrr to same On tic ground that they con
tanned conditions. &C" not admissauie
under the common counts. and calming
I, was nccosri ~ 10 declare upon them
snecioiiy and Sc: olt fully each contract
nnd tie prrfni nance OF the conditions
nv the rlaintiff aud those she claimed
under.
Held: The general rule is that where
~ o~t IS 20 he done nv n parry -
condition precedent 10 his light 10 claim
performance by another. he cannot claim
such Performance without averring The
doing of such act or Swing some excuse
for its non-performance. Ch. Pl 80;
4 Rob. Prac. 3. 4s2: Id. 51. ISL; B. & o.
r. R. Co. VS. Mccullough & Co. ~ Graft,
595-'s7. and cases cited; Roach VS.. Dick
enson. Graft. 154.
II money due upon such policies could
re recovered under the common counts
then section 1851 Of the Code 10 simplify
celebrations IN actions against Insurance
comranies was wholly unnecessary.
2 When demurrer Is sus aimed TO
count issue TONED on The other counts.
trial hnd ard verdict snd Judgment for
plaintiff or writ Of error TO ctfendant
does not bring up the action of The tlia'
court upon the demurrer. nor can that
court be looked to In this court TO sus-
tain the Judgment complained Of.
wAIvER-ESToPPEL.
Georgia Home Insurance Company VS..
Goode e. Co. Affirmed. Opinion by Judge
RELY.
This Is the SEQUEL 10 Goode &, Co.. VS.
Georgia Home Insurance Company, 81
Va. go and comes here upon writ of
error o a Judgment rendered on de-
murrer 10 evidence The policy was Is
sued 10 w B. Coode & Co. and the suit
Instituted In the names OF W. B. Goode
and A. n. Wright. partners. &c, under
The firm name. The objection was made
that Wright was not proved a partner
when policy was issued, and consequent
rance between alterations and proc.
Held: Under the circumstances this was
Tho y a question Of fact. The jury by
the court approved. and the testimony
was sufficient to prove their finding.
The damages were lail at 5000 the
vcroict for $500. with interest making
the aggregate recovery S2.lH.
Held: This was not error. Greater
damages" cannot be recovered than are
laid in the declaration. but the restric-
ton Is confined TO damages the prln-
cipal OF the recovcry--and does not affect
the interest that jury may allow. Cahill
VS. lintoney. 4 Mimi, 81
. Where there is any valid objection 10
proof Of loss. insured should be notified
n reasonable time or objection will
be deemed as waived. Proof OF loss COM
plying subs tan .ial,y with the require
ments Of the policy is all that can be
exacted and is all that the
aw requires. Home ms Co. VS.. Cohen,
20 Graft. So.
s. The existence of a lien having been
fully made known 70 the soliciting agent
~ the company. and his knowledge being
imputable 10 the company. IL was estop-
ped 10 interpose the fact Of the encum-
brance as a defence. Mutual Fire Ins Co.
VS. Ward, Is s. T. r. 200, and many other
cases,
In this case there was a lien on the
FOODS for $500. The agent. when the APP
plication was being filled up, was Inform
I'd OF 1t, AMI stated the amount was TOO
small TO be noted, and at his dictstion
il was stated In the application that there
was no encum0rance. This fact being
proved created an estoppel. and the com
pany could not rely on the existence Of
the lien as ground Of forfeiture.
While It was commended that the agent
had no power to waive any condition o.
he policy, II was not pretended tina, there
was any express limitation In the appii-
cation on his powers. but 1t was insisted
hat the questions therein were in them
elves noucc Of his limited powers, and
so TO bring the case within the decision
Df Fletchers case, III u. S. SO. This case
s easily distinguishable from that. There
assured had only TO read the. printed lines
of the application; 1T stipulated that the
rish,s Of the company could in no respect
be affected by his verbal statements OF
hose OF its agents unless reduced to writ
ng and forwarded with his application &c
he home Office" The printed application
here contained no Limitation upon the
powers CT the agent, and insured had the
right 10 D. resume that his powers were
commensurate with the business entrust-
"a 70 him, and rely upon him as the full
md complete representative OF the com
Dany in all thai was said and done In
making the contract. And knowledge OF
acts communicated TO him ty insured
was binding on the company unless spe-
.ial limitations on his powers were known
% the Insured; or plainly appeared from
he nature OF his employment.
J. Only on the theory that policy was