The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-12-12

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cause vacated.
Paul Campbell for appellant
A. r. Coger and I. A. Toner &c. L.
Young Of counscD for respondent. @
Opinion by Fisk ].
First National Bank Of Nome, cor
poration. respondent, VS.. German
American Insurance Co, corporation.
appellant.
4. Action on two fire insurance poll
icies issued by defendant company
covering plaintiffs banking building
and its contents. Such policies were
| issued by one II. who was both plant
ifs cashier, and defendants local
agent. These policies are in the
standard form, containing among
other things. the usual stipulation to
the effect that the policies shall be
void il additional insurance is effected
on the property. without consent there :
to being endorsed on the policy or
If the hazard be increased by any
means within the controI or knowl-
edge of the insured"
Concededly r., as plaintiffs cashier.
effected other and additional insur-
ance on the bank building in another
insurance company, and no endorse
ment or consent thereto was ever
made on the policies in suit, and de-
PENDANT had no actual knowledge
thereof until after the property was
consumed by fire.
Held, that such stipulations are val
id, and hence such other insurance
rendered the policies void in the alb
sence of waiver thereof by defendant.
or in the absence Of facts estopping II
from urging such defense.
2. The knowledge Of T. of facts
avoiding such policies will not. for
reasons stated In the opinion, be i'm
puted to his principal. the defendant.
Leison v. Insurance Co., 20 N. b. s16,
distinguished.
8. Where an agents duty to his
principal Is opposed or conflicts with
MS own interest or that Of another
person for whom he acts, the law will
not impute his knowledge gained in
such transaction to such principal.
4. Knowledge of such additional in
surance acquired by defendants adj
1uster after the fire, did not operate
as a waiver of defendants right to
urge the invalidity of such policies.
8. Held, that no recovery on said
policies for the personal property loss
can he had for the further reason that
the evidence discloses that no proper
diligence on plaintiffs part was ex-
ercised to save the same.
(Syllabus by the court.)
Appeal from district court Barnes
county, Burke, j.
From judgment in plaintiffs favor
and from an order denying defendants
motion for judgment no obstante we're
dicto, or for a new trial, defendant
appeals.
Reversed.
Barnett & Richardson, for appellant.
Page & Englert. for respondent.
Opinion by Fisk, j., Justice Burke.
being disqualified, did not particinafe.
Hon. S. L. Nuchols of the Twelfth
Judicial district sat in his place by
request.
]. j. Murphy and Chas. L. Merrick
plaintiffs and appellants, VS.. The Mis-
souri, and Kansas Loan ana Land "a.
foreign corporation, Jones n. VIII
son, Mary L. Wilson, Anna F. Wilson.
Geo. j. Wilson, John r. Mulvane. eft
al, defendants and respondents.
l. The mailing of summons and
complaint within ten days from the
date of the first publication of the
summons is not personal service
thereof and Is but part of the statu-
tory service OF summons by publica-
eion; and when there is served bv
the defendants at any time before
sixty.six days from the first pubiica-
ton Of the summons. written notice
of appearance and demand for service
of copy of complaint compliance
Herewith must be had, and after such
service the period for answer is ex-
tended thirty days from that time.
accordingly the defendants are held
not to have been in default In answer
(Syllabus by the court.)
Appeal from an order of the district
court Of Logan county, permitting fl
ing OF defendants answer. Burke. j.
Af1rmed
Opinion by Nuchols, district judge.
Justice Burke. being disqualified did
not participate. Hon. $. l.. Nuchols.
judge OF the Twelfth Judicial district.
sitting in hts place by request.
O'Dcnnell & Atkins, attorneys for
appellants.
Miller 4 Costello, attorneys for re-
spondent.