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reason why neither should be adopted. Even if it should be conceded that in such case the owner of the land over which both lines pass has a right to determine which of the two shall be adopted, there is no pleading or evidence in the transcript before us indicating the defendant's selection of one route rather than another.
It is, however, contended by appellants that there is no certain or sufficient description of the land sought to be taken from them for a way, in the complaint, findings, or judgment.
The Code of Civil Procedure, section 1242, provides that the agent of the state may survey and locate the land sought to be condemned, and that the complaint shall contain a description of each piece of land sought to be taken, and whether the same includes the whole or only a part of an entire parcel. (Sec. 1244.) The value of each piece taken is to be fixed by the court, as well as the amount of injury done to the remainder of a tract when a part is taken. The judgment must be so far certain as that the parties, and any ministerial officer who may be called on to enforce the judgment, may know what land is to be taken and paid for.
The complaint herein avers that there is needed land for the right of way, “upon and over Atlantic Street, from the end of said wharf to Spring Avenue, curving easterly, and passing upon and across lots A, B, C, and D of block fifty (50) of said Gray and John's map; thence crossing Spring Street or Avenue, upon and across block 302, in Middletown, as delineated on the map filed herewith, and marked ‘Exhibit A,” in the office of the clerk of this court, and more particularly known as the Gardner and Bleeker tract, taking a strip of one hundred feet wide, fifty feet on each side of the center line of said railroad track, as shown on said exhibit A,” etc. The findings and judgment refer to the complaint, and contain no further description.
The map brought here is certified by the clerk of the superior court to be a copy of the original on file in his
office. The following is a portion of the map accurately trans
NotE—The figures “752” appear on the map in red. No part of the map in the transcript is designated as “Middletown.” No scale of measurements appears upon it; the points of the compass are not indicated; neither the width of the streets nor the size of the lots or blocks can be ascertained from it; and with respect to land sought to be taken from appellants, no certainty can be arrived at, by an examination of the map, as to its area, limits, or quantity. The complaint, independent of the map, contains no description of the land to be taken from appellants, out of block 302, and by reference to the map it is impossible to determine at what point on Spring or California Street the line of the railroad enters or leaves the block 302 as laid down thereon.
Judgment and order reversed, and cause remanded for further proceedings.
SEARLs, C. J., THoRNTon, J., McFARLAND, J., PATERson, J., and SHARPSTEIN, J., concurred.
[No. 9029. Department One.—June 7, 1888.]
ALBERT F. WHEATON, REspoRDENT, v. NORTH BRITISH AND MERCANTILE INSURANCE COMPANY, APPELLANT.
INs (11:ANCE—APPLICATION MADE OUT BY AGENT OF INSURER—MISs TATEMENTs—WARRANTIES.–Insurance companies who do business through the medium of agents are responsible for their acts within the general scope of the business intrusted to their care, and no limitations of their authority will be binding on parties with whom they deal, which are not brought to their notice. Hence, when the agent undertakes to prepare the application for the in}. sured, he will be regarded in doing so as the agent of the insurance company, and not of the insured, and any misstatements therein contained, of which the insured is ignorant, will not be fatal to the policy, although by the terms of the policy the statements contained in the application are made warranties. ID.—STATEMENT's As to VALUATION–FRAUDULENT INTENT—QUESTION OF FACT.-A provision in the policy that the application shall be consid red a warranty, and if the property insured is over-valued in it the policy shall be void, applies only where the statements as to value are intentionally false; and the question of fraud is one of fact. ID.—DISCREPANCY BETweeN ACTUAL AND STATED VALUATION.—The fact of a considerable discrepancy between the actual value of the property insured and the value as stated in the application, although unexplained by other evidence, is not conclusive that the application was intentionally fraudulent. ID.—STATEMENTs wil EN NOT WARRANTIES.—Even when the statements in the application are declared to be warranties, they will not be regarded as such, if qualified by other stipulations which afford a fair inference that the parties themselves did not so intend them. ID.—VALUATION IN APPLICATION.—WILLFUL MISREPRESENTATIONSCoNstruction of Policy.—A statement made in the application as to the value of the property will not be construed as a warranty. although by a general provision all statements therein are declared to be warranties, when the other stipulations of the policy show that it was the intention of the parties that only willful misrepresentations should avoid the policy. ID.—WAIVER OF CONDITIONs—INSURER MAY WAIVE FoxFEITURE–INSTRUCTION ABSTRACTLY CORRECT NOT DEEMED MISLEADING.-The policy in question contained a provision to the effect that no condition thereof could be waived by an agent, except by a written indorsement on the policy. The court instructed the jury that under certain circumstances the insurance company might waive a forfeiture by parol, or by its acts or conduct. The record contained no specification of insufficiency of evidence to sustain the finding that a forfeiture was waived, nor did the defendant ask for any instruction indicating what facts should appear to make the instruction appropriate. Held, that the instruction was correct as an abstract legal proposition, and would not be deemed to have misled the jury. ID-STIPULATIONs to BE PERFoRMED AFTER Loss—AGENT MAY WArve WITHOUT WHITTEN INDORSEMENT.—A provision in the policy that no waiver of a condition can be made by an agent except by indorsements does not refer to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing preliminary proof. ID.—WAIVER QUESTION of FACT-INstruction—INFERENCE of FACT.The question whether or not the delay of the insured in making proof of loss had been waived is one of fact for the jury. But an instruction that the jury should infer a waiver, if certain acts of the agent were proved to their satisfaction, is without prejudice, when such acts conclusively establish a waiver, and the evidence thereof is uncontroverted. ID.—ICSTOPPEL To CLAIM Forf FITURE–KNow LEDGE of OVER-VALUATION —DEMAND AND RECEIPT OF PRoof OF LOSs.-The fact that the general agent of the insurer, with knowledge that the property insured had been overvalued but without knowledge that such over-valuation was intentional, asked for and received proofs of loss from the insured, will not estop the insurer from claiming a forfeiture of the policy on account of the fraudulent representations of the insured as to the value of the property. Id.—FINDINGs—TROUBLE AND EXPENSE of MAKING PRoof–ABANDONMENT of CLAIM.–The mere fact that the general agent of the insurance company asked the insured to furnish preliminary proofs of loss, which by the terms of the policy he was required to furnish, will not authorize a finding that by reason thereof the insured was put to the trouble and expense of making such proof, or that had such request not been made, he would have abandoned all claim against
APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order.
refusing a new trial.
The action was brought on a policy of fire insurance to recover for a loss by fire. The insured property consisted of certain furniture and fixtures in a bath-house and saloon, and were by the policy insured respectively for six hundred dollars, three hundred dollars, and two hundred dollars. The application for the insurance was made out by the local agent for the company, and stated that the property was respectively valued at nine hundred dollars, five hundred dollars, and four hundred dollars. The actual value of the property at the time of
the insurance was about thirteen hundred dollars. The evidence as to whether the plaintiff knew of the overvaluation in the application was conflicting. He testified that he signed the application without reading it, while the agent testified to the contrary. The action was tried before a jury, who returned a general verdict for the plaintiff. Judgment was rendered accordingly, from which, and from an order refusing a new trial, the defendant appealed. The further facts are stated in the opinion of the court.
T. C. Van Ness, for Appellant.
The truth of all statements made in the application were material, and if in any respect the statements were false, there was a breach of w arranty. (Civ. Code, secs. 2607-2612; May on Insurance, secs. 156, 158, 185.) The plaintiff was bound by the statements in the application whether he read it or not. (New York Life Ins. Co. v. Fletcher, 117 U. S. 519; Hawkins v. Hawkins, 50 Cal. 558; Susquehanna Mut. Fire Ins. Co. v. Swank, 12 Ins. Ilaw J. 627; Maine etc. Ins. Co. v. Hodgkins, 66 Me. 109; New Albany R. R. Co. v. Fields, 10 Ind. 187; Taylor v. Atchinson, 54 Ill. 196; 5 Am. Rep. 118; Elliott v. Lewis, 14 Ill. 213; McCormak v. Molburg, 43 Iowa, 561; Glenn v. Statler, 42 Iowa, 110; Hunter v. Miller, 6 B. Mon. 612; Rogers v. Race, 29 Ind. 577; Foreman v. Great Western Roy Co., 38 L. T., N. S., 85; Commonwealth Fire Ins. Co. v. Huntzinger, 10 Ins. Law J. 618.) The plaintiff, by accepting the policy, ratified the application. (Richardson v. Maine Ins. Co., 46 Me. 394; 74 Am. Dec. 459.) The instruction that if the agent of the company, after knowledge of the over-valuation, called upon the plaintiff to furnish preliminary proofs, the forfeiture by reason of the over-valuation was waived, is erroneous. (Gladding v. Insurance Ass'n, 66 Cal. 6; McCormick v. Springfield F. & M. Ins. Co., 66 Cal. 361; Enos v. Sun
Ins. Co., 8 Pac. Rep. 377; New York L. Ins. Co. v. FletLXXVI. CAL-27