time to time drew money from these bank accounts (there were two of them) without the knowledge or consent of claimant, and for his own personal use and transactions, "with the result that no accounting of said items so collected was ever made to said com. pany"; and (7) that by reason of the matters set forth in said paragraph 2 "said Losee and his estate has been and is now indebted to the company" in the sum of $29,203.03. It is clear that these statements made in the amended claim do not contemplate a general accounting between principal and agent. The original claim did contemplate an accounting of all moneyed transactions between them, and the ascertainment of the true status of account, claimed by claimant to be $30,465.45 in its favor. A peculiar feature of paragraph 2 of the amended claim is that it limits the investigation to a period from April 15, 1913, to October 27, 1915, and tries to limit it to 130 items of account, described generally, but not particularly. The evidence discloses these 130 items, described in general terms, and in character they are of the kind described in the general terms. That is to say, they come from the sources as set out in the amended claim. Upon motion claimant could have been made to set out in terms and particulars these 130 items. But this defect of statement does not change the character of the claim. The character must be judged by the statement if it has been correctly made. In other words, it must be judged as if these 130 items were stated in detail, as they are in the evidence upon which the judgment is entered. Claimant cannot take advantage of its own fault in not setting out these items, that it described generally. The case was tried (so far as the claim in paragraph 2 is concerned) on the theory that the measure of the recovery was the sum of these 130 items. This is the construction placed upon its petition (paragraph 2) by claimant as indicated by the whole trial. In other words, the trial was to establish the sum of these 130 items, just as if they had been specifically pleaded. This sum was shown, and judgment rendered for it. So, as we view the case from one angle, the action in the amended claim is one at law for the recovery of an amount equal to the aggregate of those 130 items, but this does not make it the same legal action as that stated in the original claim. It must be borne in mind that books were kept at the home office at Sandwich, Ill., which would have to be considered in an actual accounting between the parties, because those books cover some matters of account between them not kept in the branch office books. The original claim was one for a complete accounting, and a judgment for the amount found due. It was not a suit upon particular items. The amended claim (from one angle and from one viewpoint) is an action to recover these particular, individual items. The claim says, "with the result that no accounting of said items so collected was ever made to said company." This strongly tends to show that the recovery was sought upon these items only, and the judgment as a fact was for the total of these items. The same proof would not sustain both claims. The amended claim, on this theory or angle of the case, was filed out of time, and the 130 items claimed is barred. R. S. 1919, §§ 74 and 182. From another angle or viewpoint this paragraph 2 of the amended claim would seem to bottom plaintiff's right of recovery upon the fact of Losee's neglect of duty in not reporting these 129 or 130 collections (items sued for in this amended claim) to claimant. The evidence discloses that Losee made weekly reports, and from this it may be assumed that he was obligated to so do. We say that from this one angle of the claim it would seem that the right to recover was bottomed on this neglect of duty, for Losee never reported these items in the weekly reports. This we say, because the amended claim says that these items were collected, and were placed to claimant's credit, in the bank accounts of claimant in Kansas City, but that Losee checked out from these bank accounts money for his own uses and transactions (without knowledge or consent of claimant), and thus by Losee's failure to report the collections, claimant had no accounting of the items, and lost them. These are fair deductions from this very indefinite pleading, but this is not the same cause of action stated in the original claim. The referee says the amended claim is but an elaboration of the original claim. As a fact it very much limited the scope of the claim first filed, from any angle from which you view paragraph 2 of the amended claim. We conclude that this second paragraph is an action to recover for some 129 or 130 particular items collected by Losee, and not reported to claimant, or, if not, then it is an action to recover the aggregate of these collections because of the neglect of Losee to report the collections, by reason of which neglect the claimant lost the items. In either event there has been a change in the cause of action, and this amended claim having been filed more than a year after notice to creditors had been given, it is and was barred. So, too, paragraphs 3 and 4 are actions to recover for specific items, and fall within the same category as the claims in paragraph 2. We reiterate as to the action covered by paragraph 2 of the amended claim. It does not contemplate an accounting as is contemplated by the original claim, but throughout the measure of recovery sought is the aggregate of these 129 or 130 specific collections. Either item could have been sued for and collected without an accounting, and the 129 (298 S.W.) of Appeals to Supreme Court because of conflict in opinions must be determined as if presented by direct appeal (Const. Amend 1884, § 6). the Supreme Court because of a conflict in opinWhere Court of Appeals certifies a case to ions of the Court of Appeals, the Supreme Court must hear and determine the case as if it were presented by direct appeal, under Const. Amend. 1884, § 6. 4. Insurance 236-Mortgagee could not recover under fire policy making loss due assured payable to assured and mortgagee, where policy was canceled as to assured. or 130 can likewise be sued for and collected | 3. Courts 231 (4)-Case certified from Court without an accounting. For some reason the claimant by the amended claim seems to have been dodging a complete accounting. It appears in the evidence that claimant would borrow money upon notes which it gave to its two banks in Kansas City, in $5,000 and $10,000 amounts, and the cash would go direct to Sandwich, Ill. But when these notes were about to come due, Losee was directed to care for them out of money at Kansas City. The twine business is a complicated affair. In the wind-up it is claimed that Losee was denied recovery for what he paid out for twine, but charged with all that he sold, or should have had on hand. But this is adrift, with the views we have expressed above. A very pretty question grows out of the fact that claimant admits that these 129 or 130 items went to its credit in the two Kansas City banks, and the status of the bank accounts, the collections, and disbursements during the 21⁄2 years covered by this amended claim. But with the views we have above expressed a discussion would be but obiter, although it demonstrated the error of the present judgment. In accordance with our views as to a change of the cause of action, and the statute of limitations as to the time in which claims should be filed, after publication of notice, this judgment is simply reversed. All concur. In action against fire insurer for damage to automobile, mortgagee held not entitled to recover, where policy provided that any loss under the policy that may be proved due to the assured shall be payable to the assured and mortgagee, and policy had been canceled as to assured. 5. Pleading 36(2)— Mortgagee, admitting cancellation of fire policy as to assured in petition and reply, might not attack cancellation, because of failure to return unearned premium. Where mortgagee admitted that fire insurer duly canceled policy covering automobile, as to assured, in his petition and reply, he might not attack cancellation, because insurer failed to return unearned premium to assured. 6. Insurance 230-Fire policy might be can celed as to assured without return of unearned premium to him, where mortgagee paid premium. Policy of fire insurance covering automobile and authorizing cancellation on five days' written notice with or without return of excess premium might be canceled as to assured without return of unearned portion of premium to BERRY v. EQUITABLE FIRE & MARINE him, where loss was payable to assured and INS. CO. (No. 25965.) mortgagee, and mortgagee had paid premium. Supreme Court of Missouri, Division No. 1. 7. Insurance 236-Liability under fire policy Sept. 16, 1927. 1. Appeal and error 532-Briefs in Court of Appeals are part of record forwarded to Supreme Court when case is certified because of conflict in opinions (Const. Amend. 1884, § 6). Where Court of Appeals certifies case to Supreme Court on ground of conflict between opinions of Courts of Appeals, as required by Const. Amend. 1884, § 6, it is not necessary to ask leave to file briefs as amici curiæ in Supreme Court which are filed in the Court of Appeals, since the briefs are part of the record forwarded to the Supreme Court. 2. Appeal and error 781 (7)-Case was not moot, where judgment was paid under execu tion. Case certified to Supreme Court because of conflict of opinions, as required by Const. Amend 1884, § 6, was not moot because judgment therein had been paid, where payment was under execution rather than voluntary, as sum paid could be recovered back on reversal. which insurer claimed to have canceled was not affected by tender of premium after fire occurred. Right of mortgagee to recover under fire policy covering automobile which insurer claimed to have canceled to insured was not affected by tender of unearned portion of premium after fire occurred. 8. Insurance 580(1)-Cause of fire policy, making loss payable to assured and B., did not make B. insured person, but at most joint agent to receive payment for loss. Clause in fire policy covering automobile, providing that any loss under policy that may be proved due to the assured shall be payable to assured and B., did not make B. an insured person, but at most a mere joint agent to receive payment for loss suffered by the assured. 9. Insurance 388 (2)-Fire insurer held not estopped by agent's statements to assert that cancellation of policy on automobile as to assured precluded recovery by mortgagee. In action on fire policy covering automobile and providing that any loss proved due the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes assured shall be payable to the assured and B., 280-Misrepresentation in application for fire insurance as to year automobile was made held not to avoid policy, where information in application permitted ascertainment of year (Rev. St. 1919, §§ 6233, 6234). False representation in application for policy of fire insurance on automobile, as to year in which automobile was made, held not to avoid policy, in view of Rev. St. 1919, §§ 6233, 6234, where the application gave the correct serial number of the car from which the insurer could have easily ascertained the year when the car was made. the plaintiff had, and ever since has had, and Plaintiff "Plaintiff further states that on June 23, 1922, and during the life of said policy, the said automobile thereby insured was damaged by fire Error to Circuit Court, Jasper County; to the extent of $275; that the plaintiff has Grant Emerson, Judge. Action by R. W. Berry against the Equitable Fire & Marine Insurance Company. Judgment for plaintiff was affirmed by the Court of Appeals (263 S. W. 884).. Certified to Supreme Court because of conflict of decisions. Judgment of circuit court reversed. D. A. Murphy, of Nevada, Mo., and Fyke, Snider & Hume, of Kansas City, for plaintiff in error. McReynolds & McReynolds and John H. Flanigan, all of Carthage, for defendant in error. GRAVES, P. J. This case reaches this court upon certification by the Springfield Court of Appeals. 263 S. W. 884. Such certification is based upon the ground of conflict of opinions in the Courts of Appeal. The cause originated in the circuit court of Jasper county. Glancing over the brief, we note that the sufficiency of the petition is challenged. The petition is short and we quote in full as follows: "For cause of action plaintiff states that defendant is a fire insurance corporation having and usually keeping in Jasper county, Mo., an office and agent for the transaction of its usual customary business, to wit, the business of writing policies of fire insurance. Plaintiff states that on the 30th day of September, 1921, the defendant issued to one C. Carmack a certain policy of fire insurance upon an automobile, the same being a 1917 model 83 Overland touring car, factory or serial number No. 48747, by the terms of which policy the defendant insured the said Carmack for the space of one year against direct loss or damage by fire, not to exceed $300, to the body, machinery, and equipment of said automobile, while within the limits of the United States. Plaintiff states that there was attached to said policy, at the instance of the plaintiff, a loss payable clause by the terms of which it was and is provided that any loss under said policy should be payable to the assured and R. W. Berry. Plaintiff further states that at the time said policy was issued kept and performed all the terms and conditions of said policy of insurance; and that there is now due the plaintiff under said policy on account of said fire the sum of $275, which sum the defendant has vexatiously refused to pay. tiff states that the said loss occurred and plainalthough payment has been demanded. Plaintiff's cause of action accrued within Jasper county, Mo. Plaintiff states that a reasonable attorney's fee for bringing and prosecuting this suit is $100. Plaintiff files herewith said policy, and makes the same part of this petition. "Wherefore plaintiff prays judgment against the defendant for the said sum of $275, being the amount of his loss under said policy, and in addition thereto, because of defendant's vexatious refusal to pay said loss, the sum of $100 by way of attorney's fees, and 10 per cent. of the amount of plaintiff's said loss, together with his costs." The answer pleads no liability for several reasons, the particulars of which can be noted as occasion may require. Meeting some defenses pleaded in the answer the reply pleads estoppel by acts in pais, and this reply can be noted as occasion requires. Upon trial nisi the plaintiff had judgment for $150, and this writ of error was sued out in the Springfield Court of Appeals. Counsel for plaintiff in error (defendant nisi) say that an appeal was perfected to the Springfield Court of Appeals, but add: "The appeal, by reason of the fact that defendant failed to serve counsel for the plaintiff with abstract of the record and brief as required by the rules of this court, was dismissed at the October term, 1923, of this court, and thereafter on the 18th day of October, 1923, writ of error was sued out by defendant, and this case is now pending in this court upon a writ of error. Due notice of the suing out of this writ was served upon plaintiff's counsel and service thereof acknowledged November 1, 1923, which notice is attached to the record in this cause." Going to the history of the case nisi, it should be said that the cause was tried before the court (without the intervention of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (298 S. W.) from the opposite party the amount collected from it upon the reversed judgment. So, too, defendant did not have to give supersedeas, when it sued out this writ of error, but should this writ be successful, and the judgment be reversed, it can recover back from the plaintiff nisi the amount plaintiff collected. So we conclude that the case is not a moot case. There was no voluntary settlement of the judgment, and nothing done to preclude the prosecution of this writ of error. Neither side makes the point, but moot cases should not take up the time of the appellate courts, and such courts have usually made the point for themselves, and so we have done here. a jury) upon the issues joined and the cause submitted to the court on December 20, 1922. At time of submission, time was given for the filing of briefs by both parties at the January term of the court at Joplin. On the 3d day of February, 1923, at the January term of the court, the judgment aforesaid was entered. This writ of error was sued out October 18, 1923, and returnable to the March term, 1924, of the said Court of Appeals, so that it appears (1) that the writ of error was sued out three days after the appeal had been dismissed, but (2) within one year from date of judgment. We are more elaborate in our statement of the case, because the Constitution says that the Supreme Court "must rehear and determine said cause or proceeding [one certified to the Supreme Court by a Court of Appeals], as in case of jurisdiction obtained by ordinary appellate process." Section 6 of the constitutional amendment of 1884. We shall not state the evidence in detail at this time, but leave such details to the opinion. It suffices to say that the plaintiff introduced evidence which he evi-payable to the assured and R. W. Berry, subdently thought tended to show his right to recover upon the policy of insurance, as well as the estoppel pleaded in his reply. So also the defendant introduced evidence which it thought tended to sustain the defenses pleaded. Such is a general outline of the case. [1] I. At first glance we thought that we had a moot case, as cases sometimes become moot after judgment nisi. In the instant case, we find application of counsel for the plaintiff nisi (defendant in error here), asking leave to file, as amici curiæ, copies of their trial brief in this court. In the application counsel state that, when the appeal was dismissed in the Springfield Court of Appeals, they (counsel) sued out execution and collected the judgment for their client. They aver that their client left the community, and they were unable to find him or to get him to authorize them to appear for him in the present case in the Court of Appeals; that they asked the Court of Appeals to allow them to file copies .of their trial brief, amici curiæ, got permit to, and did file same. In this situation there was no reason to apply to this court, as the briefs on file in the Court of Appeals were a part of the files to be forwarded to this court when the case was certified here. So what counsel ask to file have been filed by leave of the Springfield Court of Appeals. The additional ten copies filed here can do no harm and they are permitted to be filed, as of course. [2] The case is not a moot case, in that the payment of the judgment was a forced one, and upon execution. It was not voluntary. Appellant could have appealed without bond, and in such case the judgment could have been immediately collected on execution; but, if appellant won on appeal (without supersedeas), it could recover back 298 S.W.-5 II. Plaintiffs in error make but four points in their brief. Omitting the long list of authorities cited under point I, they are: "I. The policy sued on was issued to C. Carmack. He was the assured. The loss payable clause which it is alleged in the petition 'was attached to the policy at the instance of plaintiff' was as follows: 'Any loss under this policy that may be proved due the assured shall be ject, nevertheless, to all the terms and conditions of the policy.' Under this clause the plaintiff was not the assured, but was a mere appointee to receive payment of part of the loss that was proved to be due the assured Carmack, and anything that would defeat a recovery by the assured, Carmack, would defeat a recovery by plaintiff. "II. It is alleged in the petition and the reply that the policy as to Carmack was canceled in April, 1922, long before the fire. From that time the policy was of course unenforceable by Carmack, and no loss could be proved to be due him; therefore plaintiff could not recover upon said policy. Authorities supra. "III. The breach of warranty in the policy as to the age of the car would defeat any action by Carmack, even if the policy had not been canceled, and plaintiff is in no better position than Carmack. Smith v. Insurance Co., 188 Mo. App. 297, 175 S. W. 113; Buck v. Insurance Co., 209 Mo. App. 302, 237 S. W. 840. with the provision of sections 7553–7561, R. S. "IV. Neither Carmack nor plaintiff complied 1919: Any sale or transfer of said motorcar without complying with the provisions of this section (7561) shall be fraudulent and void and the vendor and vendee shall each be subject to a penalty of fifty dollars.'" [3] The Court of Appeals, in its opinion, says (263 S. W. 884): Carmack represented the automobile to be a "The only defense of substantial merit is that 1917 model, when in fact it was a 1916 model." This is point III in the brief of plaintiffs in error, supra. The Court of Appeals concludes its opinion thus: "We have, we think, disposed of the only clusion that the judgment rendered below should question of substantial merit, and it is our conbe affirmed, and it is so ordered. But, since our holding here is in conflict with the cases by the Kansas City Court of Appeals as explained above, we order that the instant cause be certi- is it questioned that this policy had been fied to the Supreme Court." In other words, the Court of Appeals reviewed the cases on misrepresentation of facts, and the facts in the instant case, and concluded that there was no misrepresenta tion as to facts that would defeat a recovery by Carmack, the owner. Such court further found that their opinion in this case conflicted with that of the Kansas City Court of Appeals in other cases. Our duty is to hear and determine the case as if hereby direct appeal to this court. Section 6, amendment to our Constitution adopted in 1884. We shall therefore consider each of the points made, supra. [4] III. The first point is that Carmack could not recover (1) because the policy had been canceled as to him and (2) because of his misrepresentation of facts, made warranties by the terms of the policy. Plaintiff in error urges that in no event can the defendant in error recover on this policy, unless a loss was proved to be due to Carmack. There is a mass of learning upon "mortgage clauses" in the policy, and "loss payable clauses" attached to the policy of in surance. See extended notes on the cases of Brecht v. Law Union & Crown Ins. Co., 18 L. R. A. (N. S.) 197, and of Smith v. Ger. mania Fire Ins. Co. of New York, 19 A. L. R. p. 1444, loc. cit. 1449. If our inquiry requires us to invade this field, then it must be done with well-measured steps, because we have pending in this division another case, Ford et al. v. Iowa State Insurance Company (Mutual), for consideration, in which this particular field of investigation is uppermost. It is a more important case than this one. For this reason we shall be particular as to the facts of this case. The assured was C. Carmack, of Diamond, Mo., R. R. 2, and the term of the policy was from September 30, 1921, to September 30, 1922. If there was a "mortgage clause" in the face of the policy, plaintiff in error has not seen fit to set it out in the abstract. The "loss payable clause" reads: "Uniform Standard Missouri "Loss Payable Clause No. 1. "Any loss under this policy that may be proved due the assured shall be payable to the assured and R. W. Berry, subject, nevertheless, to all the terms and conditions of the policy. Dated October 1, 1921.", | canceled as to Carmack some time before the fire occurred, unless the failure to return unearned premium obviates the cancellademand, and no demand was made. Accordtion. The policy says it must be paid upon ing to Berry, the assured Carmack never paid the premium, but he (Berry) paid it in February, 1922, some time before the fire, but left the policy, at the time, where it always had been, in the hands of Edwards, the agent of the insurance company. The the "loss payable clause" thereon, but there petitioner says Berry ordered the policy, and is no evidence of these facts; in fact, Berry (on cross-examination) says he never saw the policy until June 20, 1922, and knew nothing about the "loss payable clause." Nor was there ever a delivery to Carmack. Berry got the policy from Edwards on June 20, 1922, and took the car from Carmack (who to Berry) on June 21, 1922, and on the road willingly surrendered it under the mortgage from Carmack's to Carthage, Mo., on June 23, 1922, the car took fire and burned. So sion at the time of the fire, if this be maas a fact Berry was a mortgagee in possesterial. The "loss payable clause" says nothing about Berry's interest in the insured car. However, it is stated by Carmack in the policy that he owned the car, and that it was fully paid for, except it was subject to recital by Carmack as to the condition of his a mortgage for $275 to Berry. This is a mere title. Neither the policy nor the "loss payable clause" undertakes to insure Berry as a mortgagee. This "loss payable clause" does not even recite that the loss is payable to Berry as his interest (as mortgagee or otherwise) may appear. On the contrary, the loss which is payable "to the assured and R. W. Berry" must be a "loss under this policy that may be proved due the assured." [5-7] It is clear that, in this case, we will not have to delve into the learning upon "mortgage clauses in the policy" and "loss payable clauses" attached to the policy. There could be no loss proved to be due to Form No. 111. Carmack, the assured. As to him the policy had been canceled, and he had no rights thereunder. This cancellation appears to have been on April 14, 1922, by written letter (notice) to Carmack. The petition pleads its cancellation as to Carmack, and the reply also pleads it and says it was on April 14th. The policy was yet in the hands of Edwards, the agent of the defendant nisi, plaintiff in error here. Carmack had paid no premium, nor was the policy ever delivered to him. This premium was paid by Berry in the February prior to the fire. For this reason (if not for others), no tender of return premium was necessary so far as Carmack is concerned. A sufficient reason is that in both petition and reply plaintiff admits the due cancellation of the policy as The assured was Carmack. The parties to whom the loss is payable are "the assured and R. W. Berry," but the loss which is payable to these two parties is a loss "that may be proved due the assured." It is undisputed in this record that there was a clause in the policy giving the company the right to cancel the policy upon five days' written notice. And this cancellation could be "with or without tender of excess premium." Nor |