it was held that "notice to an agent of an insurer that the insured had taken out additional insurance on the insured property is notice to such agent's principal." It was also held in the same case that the failure of an insurer to cancel its policy, after receiving notice of a breach of the condition against additional insurance, is evidence from which a waiver of the right of forfeiture may be inferred. On the authority of these cases, due notice being established, a waiver was the only inference properly to be deduced from the conceded fact that the defendant, more than ten months after being advised of the additional insurance, made an attempt to cancel its policy, based exclusively on the fact that the factory was not in operation.

One of the conditions of the policy is as follows: "If the property be sold or transferred (in whole or in part), . . . or any change takes place in title or possession 628 (except in case of succession by reason of the death of the assured), whether by legal process or judicial decree, or voluntary transfer, assignment, or conveyance; or if the title or possession shall be changed from any cause whatsoever, . . . . without written notice to, and the consent of, the company indorsed herein, this policy shall in each and every instance be void." Under this provision it is claimed that the sale by Reynolds and Beyers to the plaintiff voided the policy. The argument is, that the contract of insurance, being purely a personal one, is broken whenever there is a change in the ownership of the insured property. The question is a vexed one. The adjudged cases are in direct conflict, but undoubtedly the decided numerical preponderance is against the proposition that a sale by one partner to another is within the meaning of an inhibition against a sale, transfer, or alienation of the insured property. The precise question has not been heretofore presented to this court for decision, and in disposing of it we feel at liberty to adopt the rule which will be in harmony with, and follow the trend of, our former adjudications. Heretofore, in actions on policies of insurance, while diligently endeavoring, in every case, to seek out and give effect to the true intention of the parties as expressed in their contract, we have, in construing clauses providing for forfeitures, been disposed to lean somewhat in favor of the insured and resolve questions of doubt and uncertainty against the insurer. So in this case, the proper interpretation of the clause under consideration being a matter of grave doubt, as shown by the diversity of judicial opinion in other jurisdictions, we have determined to adopt the view which will

avoid a forfeiture, and secure to the plaintiff the indemnity for which he contracted. In some cases it has been held that an inhibition against a change of title, interest, or possession would invalidate the policy, although a clause forbidding a sale or alienation might not have that effect: Hathaway v. State Ins. Co., 64 Iowa, 229, 52 Am. Rep. 438; Gibb v. Philadelphia Fire Ins. Co., 59 Minn. 629 267, 50 Am. St. Rep. 405. But a contrary conclusion was reached in Burnett v. Eufaula Ins. Co., 46 Ala. 11, 7 Am. Rep. 581, and in New Orleans Ins. Co. v. Holberg, 64 Miss. 51. In the latter case it was said that the provision in question was inserted for the protection of the insurer against the risk of having strangers substituted for the party with whom the contract was made, and was designed only to interdict a sale by a party who was insured to a party who was not insured. The same conclusion was reached in Virginia Fire etc. Ins. Co. v. Vaughan, 88 Va. 832, under a clause in the policy forbidding any change "in the title or interest of the assured." "The object of such a provision," said Lewis, P., speaking for the court, "is to protect the insurers against the risk of the introduction of a stranger to the contract, perhaps not in any way known to them, or, if known, not deemed worthy of their confidence. But this reason cannot apply where there is simply a transfer of interest by one partner to another." In Powers v. Guardian Fire Ins. Co., 136 Mass. 108, 49 Am. Rep. 20, the reason for the rule is stated to be "that partners, jointly contracted with as such, are to be regarded as so far only one person, and the condition as so far limited to keeping the ownership of the thing insured in some member of the insured body that changes between themselves in the relative amounts, or in the nature of their respective interests, do not fall within the fair meaning of the words used." In the case of Drennen v. London Assur. Corp. (cited in 49 Am. Rep. 24), Miller, J., charging the jury in the United States circuit court (District of Minnesota), used the following pertinent language: "Many changes may take place in the title, and also in the possession, without a sale or transfer of the property to another party; for instance, a sale by one partner to another has been held by the courts not to be such a sale or transfer as is included in this policy, and for the very obvious reason that the possession does not change. . . . The sale or the transmutation of the various interests between the partners 630 themselves, and nobody else having the control, and leaving the possession where it was, does not invalidate the policy." Other cases sustaining the view

that a provision against a change of title does not apply to sales between partners are Pierce v. Nashua etc. Ins. Co., 50 N. H. 297, 9 Am. Rep. 235, and Lockwood v. Middlesex etc. Co., 47 Conn. 553. Without further reviewing the authorities upon this question, our conclusion is that the policy in suit was not invalidated by the sale of the interest of Reynolds and Beyers to Holcombe.

This further condition appears in the policy: "Or if it be a manufacturing establishment, running wholly or in part overtime, or running at night, or if it shall cease to be operated from any cause whatever, except during the night-time, Sundays, and legal holidays, without said written notice to and without special agreement indorsed on this policy, then, and in every such case, this policy shall be void." It was alleged in the answer and proven on the trial that the factory referred to in the policy was not operated more than one day in each month after August 4, 1893, and by reason of this fact it is claimed the policy became null and void. We do not think it did. The insured property was not a manufacturing establishment, and the provision quoted is without force or relevancy. If the thing insured was a manufactory, and the machinery described in the policy was used in connection with the operation of the establishment, the defendant's argument would be unanswerable. But the things insured being exclusively personal property-machinery and merchandise-it needs no citations of cases to show that the claim for a forfeiture on the ground of nonoperation of the plant is entirely baseless. However, we refer to a case decided by the New York court of appeals, Halpin v. Insurance Co. of North America, 120 N. Y. 73, as a direct authority for the conclusion reached upon this point. In that case a policy on mill machinery and apparatus, apart from the building in which it was contained, provided that "if a building covered by this policy shall become vacant or unoccupied, or if a mill or manufactory shall stand idle, without notice to, and consent of, the company clearly stated. herein, all liability hereunder will thereupon cease." It was held that the machinery did not constitute a mill within the meaning of the provision quoted. Vann, J., delivering the opinion, said: "It would not be a natural or ordinary use of language to describe machinery used in milling as a mill, or in manufacturing, as a manufactory." He also remarked that "forfeitures are not favored, and the party claiming a forfeiture will not be permitted, upon equivocal or doubtful clauses or

631

words contained in his own contract, to deprive the other party of the benefit of the right to indemnity for which he contracted."

To prove the value of the property destroyed by the fire, the defendant, on the trial, offered in evidence an affidavit made by plaintiff, and used in the adjustment of his claim against the Aetna Insurance Company. This offer was refused on the ground that the value fixed in the affidavit-being one thousand dollars-was a compromise valuation made, without prejudice, pending negotiations for the settlement of a disputed claim. Upon this ruling error is assigned. It is a conceded rule of procedure that the decision of preliminary issues of fact touching competency of witnesses, or admissibility of evidence, is within the province of the trial judge, and does not belong to the jury. If proffered evidence is prima facie admissible, it is the duty of the court to receive it; otherwise it should be rejected. In this case the defendant was not content with proving the signature of the plaintiff as a basis for the introduction of the affidavit in evidence. It went further, and brought before the court conflicting testimony bearing upon the competency of the document. It thus needlessly presented to the trial judge an issue of fact involving the veracity of witnesses; and we are not prepared to say that the finding of the judge in regard to the competency of the affidavit is unsupported by sufficient evidence.

632 A final ground upon which defendant asks for a reversal of the judgment is that the verdict is not warranted by the evidence. We have carefully considered the evidence and think it sufficient. The judgment is affirmed.

INSURANCE, FIRE-CONDITION AGAINST ALIENATION.A condition in an insurance policy against the sale or transfer of the insured property is not broken by the sale of part of the interest of the insured, as where he takes a partner, and the insured property becomes vested in the partnership, nor by a sale by a retiring partner to his copartners, who continue the partnership business: Blackwell v. Insurance Co., 48 Ohio St. 533, 29 Am. St. Rep. 574, and note.

INSURANCE-KNOWLEDGE OF AGENT.-Knowledge of a local insurance agent is the knowledge of his company. So notice to an agent of facts avoiding a policy may, if not taken advantage of and acted upon, raise a waiver on the part of the company to insist upon the conditions of forfeiture violated: Horton v. Home Ins. Co., 122 N. C. 498, 65 Am. St. Rep. 717, and note. Notice to or knowledge of the general agent of an insurance company is imputed to the company: Schaeffer v. Farmers' etc. Ins. Co., 80 Md. 563, 45 Am. St. Rep. 361, and note. Compare note to Kahn v. Traders' Ins. Co., 62 Am. St. Rep. 82, 83.

INSURANCE-ADDITIONAL INSURANCE-WAIVER.-Procuring additional insurance in violation of the conditions of the first

policy without the consent of the insurer, avoids the policy, unless the company has waived the right to insist upon such forfeiture. Waiver of a forfeiture, though in the nature of an estoppel, may be created by acts, conduct, or declarations insufficient to create a technical estoppel, and the courts, not favoring forfeitures, are inclined to grasp any circumstances which indicate an election to waive a forfeiture: Queen Ins. Co. v. Young, 86 Ala. 424, 11 Am. St. Rep. 51.

PLEADINGS.-AN ANSWER will be liberally construed after verdict: Beels v. Flynn, 28 Neb. 575, 26 Am. St. Rep. 351.

TRIAL. THE COMPETENCY OF EVIDENCE and of witnesses is a question for the court: Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775; Dickson v. Waldron, 135 Ind. 507, 41 Am. St. Rep. 440.

BRISTOL SAVINGS BANK V. FIELD.

[57 NEBRASKA, 670.]

EXECUTIONS AND ORDERS OF SALE.-JUDGMENTS DIRECTING SALE OF LAND by a sheriff need not be supplemented by a formal order of the clerk of court in order to give force and effect to such judgments.

B. O. Hostetler, for the appellants.

Dryden & Main, for the respondents.

670 RYAN, C. This is an appeal from an order of confirmation of a sale made under the authority of a decree of foreclosure entered by the district court of Buffalo county. In this decree there were directions with respect to the enforcement of its provisions as follows: "That said premises be sold, and an order of sale shall be issued to the sheriff of Buffalo county, Nebraska, commanding him to sell the above-described premises as upon execution," and "that he shall execute to the purchaser of said real estate 671 a good and sufficient deed of conveyance therefor and put such purchaser in the actual possession of said premises." It is urged, in argument, that the above-quoted language required that an order of sale issue to authorize the sheriff to act, and that, without a formal order of the character indicated, the sheriff was without authority to sell. The sheriff had a certified copy of the decree upon which he relied as his authority to make the sale, and in this we think he was clearly justified. In McKinley-Lanning Loan etc. Co. v. Hamer, 52 Neb. 709, it was pointed out that the issuance by the clerk of a formal order to supplement the provisions of the decree was entirely unnecessary. The sheriff was acting in this matter merely as the agency of the court, and this