respondent to reinstate the item, claiming to be entitled thereto under How. Stat. §§ 8967, 9004, the practice prevailing in that circuit of taxing a trial fee of $15 in an action of assumpsit; while respondent contends that under How. Stat. § 7026, the question of costs was discretionary. W. D. Fuller, for relator.

W. D. Leonardson, for respondent.

PER CURIAM. The writ will be granted requiring the respondent to tax an attorney fee of $10 as for the trial of an issue of fact, the trial having been commenced, testimony taken, and argument begun before nonsuit. The court having awarded full costs to relator, its power to exercise a discretion was at an end, and it became the duty of the clerk to tax the same at the amount provided by statute; and on appeal from his taxation the power of the court was limited to a correction of the clerk's errors, if any.

Under How. Stat. § 9004, the fee fixed for the issue of fact in an action of assumpsit is $10.

trial of an

The term

"issue of fact" is to be construed in its ordinary sense. It cannot be said that, as a trial of an issue of fact may, as it generally does, involve the consideration by the court of questions of law, therefore the prevailing party is entitled to tax a $15 trial fee in an action of assumpsit. The issue of law named in the statute is an issue framed upon the record.

THE MICHIGAN PIPE COMPANY V. THE NORTH BRITISH & MERCANTILE INSURANCE COMPANY.

Fire insurance-Terms of contract-Witness-Impeachment— Charge to jury.

1. The opinions in Michigan Pipe Co. v. Insurance Co., 92 Mich. 482, dispose of several of the questions raised in this case.

2. The contention of the defendant that there is no evidence to support a contract of insurance to begin at a future date is without force, the testimony tending to show that plaintiff's agent ordered the agent who wrote the policy sued upon to write up an aggregate amount of insurance, no particular companies being mentioned, and was informed by the agent that he desired to place the insurance in companies which he represented; that some of his lines were full, but that some of the existing policies would expire at a given date, and that he expected to secure the agency for other companies, and to place a portion of the insurance in said companies; and that, on account of its being so near the end of the month (two days), he wished to get the insurance into his next month's reports, and would not write any until the first of the month; which insurance was written on the 2d, 3d, and 5th of said month.

3. Neither is the contention tenable that the rate of premium and the term of the policy were not fixed, it appearing that the rate was a fixed annual rate for that class of property, the location and description of which was given, and that plaintiff's agent knew the rate of premium, and that the usual term was one year, and that he had for five years prior to that time dealt with the insurance agent for the parties interested in the plaintiff company, and had insured with him for them to the extent of from $50,000 to $100,000 annually.

4. The credit of a witness may be impeached by exhibiting the improbabilities of his story on cross-examination, or by showing conduct inconsistent therewith, or by showing statements made by the witness inconsistent with his testimony, or by direct testimony affecting his reputation for veracity.

5. Where a party avails himself of all of these modes of impeachment, the credit to be given to the witness depends upon a consideration of the entire testimony on that subject; and it is

error to instruct the jury that if, after considering the testimony of the impeaching witnesses, and of those who have been brought to contradict them, they do not believe that the general reputation of the witness in the community is that of an untruthful man, they should dismiss the whole attempted impeachment from their minds.

Error to Bay. (Cobb, J.) Argued October 12, 1893. Decided November 10, 1893.

Assumpsit. Defendant brings error. Reversed. The facts are stated in the opinion.

Hanchett, Stark & Hanchett (Thomas Bates, of counsel), for appellant, contended:

1. The duration or term of the risk-that is, the date when it begins and the date when it ends-is an essential part of the contract of insurance, so that, unless the parties have agreed upon that subject, there is no insurance; citing Michigan Pipe Co. v. Insurance Co., 92 Mich. 482, 490; Kimball v. Insurance Co., 17 Fed. Rep. 625; Insurance Co. v. Young, 5 Ins. Law J. 17; Insurance Co. v. Jenkins, Id. 514; Tyler v. Insurance Co., 4 Rob. (N. Y.) 151; Strohn v. Insurance Co., 37 Wis. 625; Manufacturing Co. v. Insurance Co., 69 Id. 573; 1 Wood, Ins. §§ 5, 6. 2. As the terms of the insurance contained in the policy had not been agreed upon before the loss, the policy could not be binding upon the defendant. Its acceptance by the plaintiff was necessary to make it a valid contract; citing Michigan Pipe Co. v. Insurance Co., 92 Mich. 482, 491; Faughner v. Insurance Co., 86 Id. 536; Hartshorn v. Insurance Co., 15 Gray, 240, 244. Hatch & Cooley, for plaintiff.

MCGRATH, J. This is an action upon a policy of insurance. The policy was one of a number ordered at the same time, a suit upon one of which was before us in Michigan Pipe Co. v. Insurance Co., 92 Mich. 482. The opinions in that case dispose of several of the questions raised here, and it is unnecessary again to discuss them.

The insurance was ordered June 28, and the policy was not written until July 3, and it is insisted that there was no evidence to support a contract of insurance to begin

at a future day. There is no force in this contention. The testimony clearly tended to show that Moulthrop, plaintiff's agent, on June 28, ordered Schmeck, the insurance agent, to write up insurance for plaintiff aggregating $45,000; that no companies were mentioned; that Schmeck informed Moulthrop that he desired to place the insurance in companies which he (Schmeck) represented; that some of his lines were full, but that some of the existing policies would expire July 1; that he expected to get the agency for other companies, and expected to place some of the insurance in these new companies; that, on account of its being so near the end of the month, he wished to get the insurance into his next month's reports, and that he would not write up any until the first of the month. The insurance was distributed between a number of different companies. Schmeck testifies that he made memoranda selecting the companies, but that he afterwards made a new apportionment, and finally changed this apportionment after July 1 had passed. The policies were written, five on July 2, ten July 3, and one July 5. It was not expected that the risk should be taken by any one company. It appears that insurance companies place a limit upon the amount of risk taken upon given property. It was held in the case above referred to that, as between plaintiff and any one of the companies, no contract liability existed until the distribution had taken place, and that, for the purpose of such distribution, Schmeck was the agent of the plaintiff. It cannot be contended that, in view of this situation and these negotiations, the fact that the policies had not been written up until the 3d of July would have been conclusive as a defense in an action for the premium. The testimony of Moulthrop is clearly susceptible of the conclusion that no definite time was fixed; that the time was dependent, somewhat, upon a change of conditions then existing. The nature of the contract in

this respect is to be gathered from what was said, and not from what Moulthrop "thought" or "supposed," or what his "expectation" or "intention" was, so long as neither was expressed.

It is next contended that the rate of premium was not fixed, nor was the time which the insurance was to run determined. It appeared that the rate of premium was a fixed rate for that class of insurance, the location and description of which was given; that the usual term was one year; that Moulthrop had for five years prior to that time dealt with Schmeck for the parties interested in the plaintiff company, and had insured with Schmeck, for said parties, to the extent of from $50,000 to $100,000 annually. Moulthrop knew the rate of premium, and that one year was the usual term. The rate of premium was an annual rate, In parol contracts for the exchange of commodities, incidents frequently enter which rest alone in custom and usage known to the parties, which go without saying. Moulthrop's knowledge in this respect was that of his principal.

Several extracts from the charge of the court to the jury are assigned as erroneous, but, as a whole, we think the charge correctly states the law, except in one particular, which will be noticed hereafter. The plaintiff made no claim that it had received the policy before the fire occurred. It insisted that the policy had been written up on July 3, and that Schmeck had retained it in accordance with the usual practice. The court instructed the jury that, if the policy was not made out until after the fire, plaintiff could not recover. Schmeck was the only witness who testified as to the date upon which the policy was made out. His testimony was commented upon by Mr. Justice GRANT in Michigan Pipe Co. v. Insurance Co., supra, and it is not necessary here to recapitulate. The court instructed the jury as follows: