Manker v. Sine. tion is not fulfilled, has a right to repossess himself of the goods against the vendee; and in this case the court instructs you that by the terms and conditions contained in said bill of sale or lease the title and ownership of the property in controversy did not pass until the payment of the purchase price." Conceding that the above request is correct as a legal proposition, yet there was no error in refusing to so charge the jury, for the reason that it was not applicable to the facts proven. The evidence shows that the transaction was not a conditional sale, but that the instrument given by defendant to plaintiff was, in effect, a chattel mortgage to secure the payment of the money borrowed by the former of the latter. Defendant did not purchase the property of plaintiff, but from Sine, so that we are unable to perceive upon what the plaintiff bases his claim that the property was sold and delivered by him to defendant upon conditions that the title and ownership thereof should not pass until the purchase price was paid. The only inference that can be drawn from the evidence is that the property was pledged to the plaintiff as security. The judgment is erroneous because it was rendered for money absolutely, and was not in the alternative, for a return of the property, or the value thereof in case a return could not be had, as required by section 191a of the Cole. The statute is imperative, that where the property has been delivered to the plaintiff in replevin, in case a verdict is returned for the defendant, the judgment must be for the return of the property, or its value in case it cannot be returned, or the value of the defendant's possession. This statutory provision is mandatory. (Hooker v. Hammill, 7 Neb., 231; Lee v. Hastings, 13 Id., 508.) In the last case cited there was a stipulation that the property could not be returned, and yet the court held that it did not preclude the necessity of an alternative judgment. It is argued by counsel for defendant that the statutory provision for alternative judgment is for the benefit of the Manker v. Sine. defendant alone, and that he has the right to waive a return, and take judgment for the value. Even if this were the true interpretation of the statute, which we do not concede, the record does not disclose that the defendant waived in the court below a return of the property, while it appears that he did pray a return of the property in his answer. Having requested that, the plaintiff had a right t expect, in case the verdict was against him, that the judgment would be in the statutory form. It does not appear that the property replevied cannot be returned. We cannot say that the judgment in the case at bar was to plaintiff's benefit. For aught that appears it might be to his injury to pay for the property instead of returning it. We think the plaintiff has the right to insist that the judgment shall be in the alternative. (Singer Mfg. Co. v. Dunham, 33 Neb., 686, 690; Glann v. Younglove, 27 Barb. [N. Y.], 484; Fitzhugh v. Wiman, 9 N. Y., 559; Wood v. Orser, 25 Id., 348; Hall v. Jenness, 6 Kan., 356.) We are aware that there are cases in other states which hold that the provisions of the statutes requiring a judgment in the alternative in replevin are exclusive for the benefit of the defendant, and that he may waive a return of the property and take judgment merely for the value thereof if he chooses; but such decisions are based upon statutory provisions materially different from our own, and are therefore not entitled to weight as authorities in this state. The error in the form of the judgment in the case at bar will not necessitate a new trial, but a proper judgment may be rendered upon the verdict. The judgment is therefore reversed and the cause remanded with instructions to the court below to enter a judgment in the alternative for a return of the property or the value thereof found by the jury, in case no return can be had, and for the damages assessed by the jury for the unlawful detention, with costs. REVERSED AND REMANDED. THE other judges concur. 35 752 44 582 35 752 f59 454 German Ins. Co. v. Rounds. GERMAN INSURANCE COMPANY OF FREEPORT, ILLI- [FILED NOVEMBER 23, 1892.] 1. Fire Insurance: AUTHORITY OF AGENT: AGENT'S CLERK. An agent for an insurance company, possessing the power to contract for risks, write and deliver policies, collect premiums, and make indorsements upon policies, employed a clerk and authorized him to transact the business for him in the agent's name. The clerk, in the line of his employment, wrote the policy in suit, signing the agent's name thereto, and the risk was reported to and approved by the company. Afterwards the agent indorsed upon the policy his approval of the assignment thereof by the insured to the purchaser of the property. Subsequently the clerk indorsed upon the policy, permission for additional concurrent insurance, for the discontinuance of the night watchman and watchman's clock, and any loss under the policy was made payable to the mortgagees, which indorsement was reported to the company in the agent's name, and the attention of the latter was called thereto, who acquiesced in the same. In an action on the policy it was held, that the act of the clerk in making the indorsement was the act of the agent and was binding upon the company to the same extent as if the same had been made by the agent personally. 2. 3. 4. : A local agent of an insurance company, who has the power to make a contract of insurance, has authority to consent to additional insurance and to accept notice of a change in the risk and of the placing of incumbrances on the property, unless there is some provision in the policy to the contrary. -: ASSIGNMENT OF POLICY. The indorsement upon a policy by such an agent of his approval of the assignment of a policy is binding upon the company, where the policy contains a clause that "no assignment thereof shall be valid unless the same is indorsed thereon and approved by the company, or its regular agent, in writing." -: CANCELLATION OF INSURANCE. In an action on an insurance policy which contained a stipulation reserving to the company the right to cancel the risk at any time by returning the premium pro rata for the unexpired term, or tendering it to the representative of the insured, it was held, that to rescind the policy the company must notify the assured of the cancellation, and pay or tender to him the amount of the unearned premium. German Ins. Co. v. Rounds. ERROR to the district court for Adams county. Tried below before GASLIN, J. James R. Wash, Adams & Scott, and I. W. Lansing, for plaintiff in error: Local agent is without authority to waive conditions of insurance policy after issue, when he is simply empowered to fix rates, countersign and deliver policies, and collect premiums. (Bowlin v. Hekla Fire Ins. Co., 31 N. W. Rep. [Minn.], 859; Kyte v. Commercial Union Assurance Co., 10 N. E. Rep. [Mass.], 518; Hankins v. Rockford Ins. Co., 35 N. W. Rep. [Ill.], 34; Strickland v. Council Bluffs Ins. Co., 66 Ia., 466; Gladding v. California, etc., Ins. Co., 66 Cal., 6; Enos v. Sun Ins. Co., 67 Id., 621; Hamilton v. Aurora Ins. Co., 15 Mo. App., 59; Leonard v. Michigan Ins. Co., 97 Ind., 299.) Company is not required, on being informed of insurance without its consent in another company contrary to policy, to return the premium. (Phoenix Ins. Co. v. Stevenson, 8 Ky., 150.) Tibbets, Morey & Ferris, and S. S. Parks, contra: General agents of insurance companies, authorized to contract for risks, receive and collect premiums, and deliver policies, may confer upon a clerk, or subordinate, authority to exercise the same powers. (Duluth Nat. Bank v. Fire Ins. Co., 85 Tenn., 76; Bodine v. Ins. Co., 51 N. Y., 117; Eclectic Life Ins. Co. v. Fahrenkrug, 68 Ill., 463; Cont. Ins. Co. v. Ruckman, 127 Ill., 364.) Notice of the intention to cancel must be given by the insurer to the insured. (Chadbourne v. German Ins. Co., 31 Fed. Rep., 533; Farnum v. Phenix Ins. Co., 23 Pac. Rep. [Cal.], 872.) Until proportionate part of the premium be returned or tendered to the insured, the policy remains in force. (May, Insurance [3d ed.], sec. 67; Franklin Ins. Co. v. Massey, 33 Pa. St., 221; Peoria, etc., Ins. Co. v. Botto, 47 Ill., 516; German Ins. Co. v. Rounds. White v. Conn. Ins. Co., 120 Mass., 330; Lattan v. Royal Ins. Co., 45 N. J. L., 453; Home Ins. Co. v. Curtis, 32 Mich., 402; Albany City Ins. Co. v. Keating, 46 Ill., 395; Van Valkenburgh v. Lenox Ins. Co., 51 N. Y., 465; Griffey v. N. Y. Cent. Ins. Co., 100 Id., 417.) NORVAL, J. This action was brought upon a fire insurance policy issued by the plaintiff in error, April 16, 1889, to the Gazette-Journal Company, of Hastings, whereby it insured said company to the amount of $1,000 on its printing outfit for the term of one year. After the issuing of the policy the property was sold to S. P. Rounds, Jr., and the policy was assigned to him on June 1, 1889. The property was destroyed by fire on the 29th day of July, 1889. The defense was that the insured had violated certain conditions of the policy, whereby the policy became void. Plaintiff below recovered a judgment for $650, and the defendant company prosecutes a petition in error to this court. It is conceded that the judgment is for the proper amount, if plaintiff below is entitled to recover anything. The policy contained, among others, the following stipulations: "1. If the insured shall cause the building, goods, or other property, to be described in this policy otherwise than as they really are, or make any false representations as to the character of the hazard, this policy shall be void; or if the risk shall be increased from any cause whatever within the knowledge of the insured during the continuance of this policy, unless notice thereof be given to this company, and consent to such increased hazard be indorsed hereon upon the payment of proper additional premium therefor, this policy shall be of no force. "3. No assignment of this policy shall be valid until the assignment is indorsed hereon and approved by this company, or its regular agent, in writing, and this company |