could not be had as against defendants. To prevent litigation, the Royal and Continental agreed that if suit against them be withheld until the liability of the defendants was determined, they would, in the event that defendants be held not liable, pay the balance of plaintiffs' claim against them without suit therefor. The avails of this suit, if successful, will go to the plaintiffs. These companies were interested in the result of the suit, but not parties in interest. They had no claim which they could then have prosecuted against the defendants. We do not think the fact that by the terms of the agreement they were given control of the present suit changed their status in any way. It is true that plaintiffs stood to recover from them perforce of the agreement if defeated in the suit. This, doubtless, was one of the reasons why these companies insisted on having control of the litigation. We do not think these insurance companies are the real parties in interest in this suit.

Neither do we think Marshall & Ilsley Bank v. Mooney, supra, controlling. In that case, certain directors of a corporation paid a note on which they, with the defendant Mooney, were indorsers to the bank to which it was payable. Defendant Mooney had secured his indorsement by a note and mortgage to the bank. On his failure to make contribution, they "turned the note and mortgage over to the bank for collection" and it commenced a foreclosure proceeding. The court said:

"Plaintiff does not pose in the bill of complaint as assignee, nominal party or in a representative capacity, but it does pose as the real party in interest. By the testimony it is disclosed that plaintiff had neither equitable nor legal title to defendant's note and mortgage when the action was commenced, or that it had any lien thereon. It would, therefore, seem that plaintiff has no such interest in the subject-matter of the controversy as would entitle it to relief."

Should a verdict have been directed for any of the other reasons stated?

2. The policies issued by defendants were all standard Michigan fire insurance policies and contained the usual provision as to forfeiture if a transfer of the property should be had without notice. At the date of their issuance, Act No. 128 of the Public Acts of 1911 (2 Comp. Laws 1915, § 9481) was in force and effect. It reads as follows:

"No policy of fire insurance shall hereafter be declared void by the insurer for the breach of any condition of the policy if the insurer has not been injured by such breach, or where a loss has not occurred during such breach, and by reason of such breach of condition."

This act was repealed in 1917 (Act No. 256, Pub. Acts 1917). It was, however, re-enacted in 1921 (Act No. 264, Pub. Acts 1921). It is the claim of the plaintiffs that this statute, being in force at the time the policies were issued, became in legal effect a part of each policy and its repeal prior to the date of the fire in no way affected the rights of the parties to the insurance contracts. We think this claim well founded. The act was in effect at the time the contract was entered into and the parties must be held to have contracted having its provisions in mind. The consideration was paid for a policy of insurance to which defendants could not claim a forfeiture for the reason stated. The rule is plainly stated in 26 C. J. p. 81:

"A contract of insurance is presumed to have been made with reference to existing statutes or ordinances affecting the contract. Such statutes or ordinances are a part of the contract, to be construed with the provisions of the policy, and control in case of a conflict."

Cases cited in the footnote will be found applicable. The contract thus having read into it the statutory provision is not affected by its repeal. As is said by

Justice COOLEY in his work on Constitutional Limitations (7th Ed.), p. 403:

"If any subsequent law affect to diminish the duty or to impair the right, it necessarily bears on the obligation of the contract in favor of one party to the injury of the other; hence is directly obnoxious to the prohibition of the Constitution."

* * *

3. Effect of repairs made. The fire rendered the building unfit for use. The damage was largely to the roof. After adjustment of the loss, the owners were justified in its quick repair. If the insured in these policies had a cause of action on account of the loss due to the fire, it seems clear that she did not lose it by reason of the repairs having been made. The fact that the written assignment of her right to collect from defendants was not executed until after the repairs had been made would not affect the right of recovery. The defendants' contracts provide for payment in case of loss or damage by fire. Unless they choose to make repairs, they have no concern as to who makes them and cannot escape liability because made, as in this case, before suit brought.

4. Plaintiffs' right to recover under the agreement is dependent upon the prosecution while not the result of this suit. Defendants cannot rely on this as a defense.

Counsel for the plaintiffs ask that under the arrangement of counsel relative to the action of the court in directing a verdict we, in reversing, should order judgment entered for the plaintiffs. We find no such specific stipulation nor admission of counsel as will justify us in doing so.

The judgment is reversed and a new trial ordered, with costs to plaintiffs.

FELLOWS, C. J., and WIEST, CLARK, BIRD, MOORE, and STEERE, JJ., concurred.

The late Justice STONE took no part in this decision.

INDEX.

ABSENT WITNESS-See EVIDENCE (1, 8).

ACCEPTANCE-See CONTRACTS (1, 2); MUNICIPAL CORPORATIONS
(12); SPECIFIC PERFORMANCE.

ACCEPTANCE OF CHECK “IN FULL"-See EXECUTORS AND AD-
MINISTRATORS (8, 9).

ACCESSORY-See HOMICIDE (4).

ACCIDENT-See MASTER AND SERVANT (13, 15, 17, 23, 24, 29, 30).

ACCUSED TO BE GIVEN OPPORTUNITY TO AVOID IM-
PRISONMENT-See CRIMINAL LAW (19).

ACQUIESCENCE-See SPECIFIC PERFORMANCE (5).

ACT MAY BE NEGLIGENT INDEPENDENT OF CITY ORDI-
NANCE-See NEGLIGENCE (2).

ACT OF GOD-See CARRIERS (2, 3).

ACTION AT LAW BARRED-See MASTER and Servant (7).

ACTIONS BY OR AGAINST CORPORATIONS-See CORPORATIONS
(6).

ADEQUATE REMEDY AT LAW-See MASTER AND SERVANT (1).
ADOPTING WORDS OF STATUTE-See INDICTMENT AND IN-
FORMATION (2).

AFFIDAVITS-See GARNISHMENT (1-4).

AGENCY-See PRINCIPAL AND AGENT.

AGENT'S AUTHORITY-See PRINCIPAL AND AGENT (2).

AGREEMENT BY EMPLOYEE AND EMPLOYER-See MASTER
AND SERVANT (35).

ALCOHOL-See INTOXICATING LIQUORS (9).

ALCOHOLIC CONTENT QUESTION OF FACT-See INTOXICAT-
ING LIQUORS (3).

AMBIGUITY-See PRINCIPAL AND AGENT (1).

AMENDED INFORMATION-See CRIMINAL LAW (41).

217 Mich.-45.

(705)

AMENDMENTS.

A motion to amend the plea to allow a statutory defense
was properly denied where the statute relied on was not
applicable to the case. Blaty v. Gray, 532.

See APPEAL AND ERROR (2); GARNISHMENT (5); MUNICIPAL
CORPORATIONS (9).

ANNUAL REPORT-See ESTOPPEL.

ANSWER-See MANDAMUS (1).

APPEAL AND ERROR.

1. Where a will was contested on the grounds of mental in-
competency and undue influence, but contestants had
elected to go to the jury solely on the ground of undue
influence, and the jury found in favor of contestants,
error claimed in the refusal of a request to charge and
in the admission of testimony relating to mental capacity
will not be considered, on error. In re Hillman's Estate,
143.

2. Where, on review of a case tried before the court without
a jury, an examination of the record discloses that the
findings of fact are not against the weight of the evidence,
there was no error in refusing proposed amendments to
the findings of fact and conclusions of law. Phoniz
Sprinkler & Heating Co. v. Owen-Ames-Kimball Co., 156.
3. Where defendant offered no evidence, and, at the close of
plaintiff's case, both parties moved for a directed verdict,
defendant is in no position to urge, on error to review
a directed verdict in favor of plaintiff, that the trial court
should have submitted the case to the jury. Brittson &
Smith v. Kroll, 181.

4. Since the case involves issues of fact, the Supreme Court
may not take the affidavits and answer of defendant as
true and enter decree here setting aside plaintiff's deed
on condition that defendant repay plaintiff the taxes which
he has paid, with interest. Schuman v. Schuman, 184.

5. Plaintiff's contention that, the order of the court below
refusing to set aside the default, being a final order,
was appealable, and that it may not be reviewed on
appeal from the decree entered, is without merit, since
the appeal brings the whole matter up for review, in-
cluding the power of the chancery court to declare a for-
feiture of a life lease where the parties have not so
provided in the lease. Id.

6. Removal of a case to the Supreme Court by writ of error,
while a motion for new trial was pending, waived the
motion, and this court cannot pass upon the question
of whether the verdict is against the weight of the evi-
dence. People v. Petropoulapos, 198.

7. The question as to whether the verdict of guilty was
against the weight of the evidence will not be passed