and the crew ?" Answer. 66 Yes." Now it seems to us that this finding is quite inconsistent with those just referred to; for if the master was a seaman of ordinary courage, judgment and experience, and thought the danger of remaining on the tug was so great as to justify him in abandoning it, then surely he was guilty of no negligence in not remaining on the tug to attend to the cable. Certainly it was not his duty if exposed to imminent peril to risk his life, or the life of any one of his crew for the purpose of saving the vessel. Hence it seems to us the several findings of the jury cannot well stand together. In one breath the jury say the master did not leave the boat until in his judgment to stay longer would endanger the life of himself and crew; and in the next, that it was his duty to have remained on board the tug, or have left a man there to attend to the cable. The case comes within the ruling in Haas, Adm'r. vs. the C. & N. W. R. R., 41 Wis., 64, and Kearney, Adm'r. vs. the C., M. & S. P. R. R., 47 Wis., 144, where a new trial was ordered on account of the inconsistency of the special findings. Before leaving the case we deem it proper to make a remark on the sixth question, submitted on the part of the defendant. That finding is that the tug was anchored in a place that was safe in any storm if she had sufficient ground tackle. There was considerable evidence given on the trial which tended to show that a tug of the size of the one in question, which was used in towing logs on the waters of Green Bay de Nocque, in order to be seaworthy, should always have a chain cable. In this case the cable was a rope two inches in diameter, which the witnesses agree in saying was liable to chafe and separate in great stress of weather, unless it was kept parcelled. The above finding would warrant the inference that if the tug had a good chain cable, or had been furnished with sufficient ground tackle to encounter the dangers of the waters she was employed in navigating, she might not have been lost. To render a ship seaworthy for the service or use intended by the insurance, she must not only be sufficiently staunch and sound, and adequately constructed, but be sufficiently furnished with the necessary cables and anchors. 1 Kay's Law of Ship-Masters, 90.

In Wilkie vs. Geddes, 3 Daw., 57, a ship was held to be seaworthy where it appeared that the best bower anchor and the cable of the small bower anchor were defective. Lord Eldon in giving his opinion in the House of Lords, says nothing is more clear than that there is an implied warranty in every contract of marine insurance, that the ship is seaworthy at the commencement of the risk, or at the time of her sailing on the voyage insured, and is provided with

sufficient ground tackle to encounter the ordinary perils of the sea. Indeed, the law seems to be perfectly well settled on this point as a reference to works on insurance will show. The Merchants' Mut. Ins. Co. vs. Sweet, 6 Wis., 670, and cases cited. The evidence on another trial may satisfy the jury that the tug was furnished with a proper and sufficient cable, and was seaworthy in that respect; but we infer the jury seemed to have thought from the evidence given, that she was not provided with suitable and sufficient ground tackle, in finding as they did in answer to the sixth question. But we will not dwell longer upon the point, as the evidence upon another trial may be different.

Judgment of the Circuit Court is reversed, and a new trial ordered.

SUPREME COURT OF PENNSYLVANIA.

Error to the Common Pleas of Bedford County.

J. C. ACKER, RECEIVER,

vs.

HITE, ET AL.*

A policy of insurance and the premium note given therefor, constitute a contract between the company and the insured, and the parties usually have the same power to rescind it by mutual agreement as they had to make it. The right of a company to cancel policies and thus terminate the contract, for various acts of the insured, has constantly been recognized.

An agreement made in good faith between the parties to a contract of insurance to annul it is valid.

When the insured surrenders his policy, and it is marked canceled, from that moment he ceases to be a member, though he continues liable to assessments for losses which accrued while he was a member.

Three actions of debt by J. C. Acker, receiver of the Union Horse

Decision rendered May 31, 1880. From Weekly Notes.

Insurance Company, of Blair County, against Albert Hite, Joseph Brunner, and John Dicken, upon policies of insurance, to recover two assessments on premium notes. The three cases were tried as one, the material facts being as follows:

The above-named company was chartered, on the mutual plan, June 17, 1872, by the Court of Common Pleas of Blair County. The value of each animal insured was considered capital stock, and was, in case of loss, subject to assessment. On November 5, 1874, John Dicken insured four horses for five years to the value of $525. Joseph M. Brunner insured two horses October 6, 1874, for five years, to the value of $275. In 1876-7 the company, from numerous and severe losses, became heavily involved, and judgments to a large amounts were rendered against it. The directors of said company, on October 20, 1876, passed resolutions allowing "all dissatisfied members to withdraw from the company after paying all assessments or dues, if their policies be handed to the directors." An assess

ment of three per centum was made by the directors on the premium notes January 1, 1878, and another of fifteen per cent was made by the receiver March 29, 1878. Numerous parties availed themselves of the resolution of the directors to withdraw, and so had their policies canceled. The defendants, Hite, Dicken, and Brunner, handed their policies to Samuel Whip, one of the directors, in accordance with the resolution. On investigation, it was discovered that Albert Hite, on previous assessments, was debtor to the company in the sum of $1.50, Brunner nothing, Dicken $4.58, and these three policies were not canceled by the company, but treated as in full force, and in January, 1878, when the secretary made out the assessment lists, he assessed these defendants. After due process of law, J. C. Acker was appointed receiver of the company. He then, under direction of the court, laid an assessment of fifteen per cent on all premium notes in his possession.

The jury found a special verdict in effect as above. The special verdict concluded as follows: "That the jury are ignorant, in point of law, upon which side they might, upon these facts, find the issue. If upon the whole matter the court shall be of opinion that the issue is found for the plaintiffs, they find for the plaintiffs accordingly, and assess the damages for the plaintiffs against the defendants—Albert Hite, $24; J. M. Brummer, $33; John Dicken, $69. But if the court is of a contrary opinion, then they find vice versa.”

After argument, the court rendered judgment on the special ver

dict in favor of the defendants; whereupon plaintiffs took this writ, assigning for error the action of the court in entering judgment in favor of the defendant.

FREDERICK JACKEL AND J. M. REYNOLDS, for Plaintiffs in Error. Directors have no power to pass and carry by which some members are relieved from occurred while their policies were in force. Pickering, 66 Me. Rep., 130.

into effect a resolution paying for losses which Maine Mut. Ins. Co. vs.

Neither the surrender, cancellation, nor the expiration of the policy, nor the insolvency of the company, releases the holder of a policy from his liability to assessments for losses which occurred during his membership. May on Insurance, 691; Wilson vs. Trumbull Ins. Co., 7 Har., 372; Sterling vs. Mercantile Mut. Ins. Co., 8 Cas., 75.

The mere handing of a policy by a member of a mutual insurance company to one of the directors, with the request to have it canceled, is not such an action as would, in the eyes of the law, justify the surrender of the premium notes. In this case the policies were not, in fact, canceled, nor the notes returned, because defendants were indebted, not only for losses existing at the time, but also for previous assessments, and as continuing members, they were liable for subsequent assessments. Insurance Co. vs. Connor, 5 H., 136; Columbia Ins. Co. vs. Buckley, 2 N., 294; Upton vs. Hansbrough, 3 Bissell, 417.

The receiver was legally appointed by the court, and he is bound by the charter to the same extent as the directors. Daniels' Ch. Pr., 1714; Safford vs. People, 85 Ill., 558; Wallace vs. Yeager, 4 Phila., 251; Yeager vs. Wallace, 8 Wr., 294; Singerly vs. Fox, 25 Sm., 112.

J. B. CESSNA, for Defendants in Error.

It is clear that the plaintiffs authorized the cancellation of policies of dissatisfied members upon certain conditions, and that those conditions were complied with on the part of the defendants. By the resolutions defendants were required to pay their just dues; but the assessments were illegal, and therefore unjust. Wilson vs. Trumbull Ins. Co,, 7 H., 372; Finley vs. Lycoming Ins. Co., 6 C., 311, 815.

The company kept both the policies and the money which defendants sent them in payment of all demands, and such retention acts

as a waiver, and estops the company. Georgia Mut. Ins. Co. vs. Gibson, 52 Ga., 640.

Directors have full power to cancel policies and surrender notes, and such an agreement discharges the members.

The agreement to cancel policies and surrender notes to defendants was a legal contract, so far consummated on the part of the defendants, as to discharge their liabilities on their notes. It was in law a cancellation. May on Insurance, 690-1; Boland vs. Whitman, 33 Ind., 64; Sands vs. Hill, 55 N. Y., 18; Columbia Ins. Co. vs. Masonheimer, 26 Sm., 138; Cumberland Valley Ins. Co. vs. Herbert, 2 Weekly Notes, 155; Campbell vs. Adams, 38 Barb., 132; Hyde vs. Lynde, 4 N. Y., Comstock, 387; Wadsworth vs. Davis, 13 Ohio St., 123; Columbia Ins. Co. vs. Stone, 3 Allen, Mass., 385; Wood on Insurance, 56; Hamilton vs. Lycoming Mut. Ins. Co., 5 B., 139; Campbell vs. Adams, 38 Barb., 132; Sands, Receiver, vs. Hill, 55 N. Y., 18.

The company

had the right to cancel a policy upon the non-payment of an assessment for thirty days. The company, having accepted payment, promised to cancel the policies of defendants without any conditions or reservations. This they did not do. If defendants had subsequently claimed for a loss, they would have been told, "You have surrendered your policy. It is canceled. We will pay you nothing." Full powers were given the creditors by law and by charter to make the contract they did. Their action in passing the resolution referred to comes within the management of the affairs and business of the company, and is therefore binding on all

its members.

A receiver is in the position of an assignee. The appointment of the receiver only passed to him the assets of the corporation, not its franchises. Schimpf vs. Lehigh Valley Mut. Ins. Co., 6 Weekly Notes, 23; vide Opinion of Judge Blodgett, U. S. District Court, Cincinnati, December 24, 1879, in Cook, Assignee of the Protective Life

Insurance Company.

TRUNKEY, J

The business of an insurance company, whether conducted on the mutual or stock plan, is managed by its officers and agents, and the corporators are bound by the acts of such agents in all matters properly done within the scope of the powers committed to them. policy of insurance, and the premium note given therefor, constitute a contract between the company and the insured, and the par

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