McCall v. Phoenix Mutual Life Ins. Co. corporation; all its officers reside at the city of Wheeling, and its (plaintiff's) chief office was also at said city during all the time for which said taxes were levied and collected. The city was also the home port of the steamboats taxed, and the steamboats became incorporated into the property of the city, and were justly and properly liable to be taxed according to their value, as any other property in the city. The taxes assessed and collected upon said steamboats, according to their value as property, as was done in this case, were legally and properly assessed and collected by the city, under the laws of this State; and the assessing and collecting the same is not prohibited by the Constitution of the United States. Upon the whole, it seems to me that the finding and judgment of the municipal court of Wheeling, upon the facts agreed in this case, were right and proper, and not erroneous. For the foregoing reasons, the judgment of the said municipal court of Wheeling, rendered in this cause on the 17th day of November, 1875, is affirmed by this court, with costs and $30 damages. MOORE and GREEN, JJ., concurred. EDMISTON, J., absent. Judgment affirmed. MCCALL V. PHOENIX MUTUAL LIFE INS. Co. (9 W. Va. 237.) Life insurance - application — mistake of agent — recovery by insurer of pre miums paid on lapsed policy. An applicant for life insurance, having correctly stated the date of his birth to the agent, is not prejudiced by the agent's mistake in writing the same in the application.* If a life insurance company wrongfully refuses to accept a premium and determines the policy, the insured may treat the policy as determined, and recover all the premiums he has paid. (See note, p. 561.) A CTION to recover insurance premiums. The opinion states the facts. * See Commercial Ins. Co. v. Spankneble (52 Ill. 53), 4 Am. Rep. 582. McCall v. Phoenix Mutual Life Ins. Co. Taylor & Barr, for plaintiff in error. John E. McKennan, for defendant in error. HAYMOND, President. This is an action of trespass in the case in assumpsit, brought in the municipal court of Wheeling, by the plaintiff against the defendant, to recover $495.85, money paid to defendant by plaintiff, as first premium on policy No. 78355, on the life of plaintiff. After the suit was brought, and on the 20th day of November, 1875, the defendant, appeared to the action and plead non-assumpsit, on which plea issue was regularly joined. Afterward, a trial by jury was had in the cause, on the issue joined, and the jury found a verdict in favor of the plaintiff for $564.12 damages. Whereupon the defendant, by its attorney, moved the court to set aside the verdict and grant a new trial, but the court afterward overruled said motion, and rendered judgment against the defendant, upon the verdict of the jury, with interest, and also for costs. To the opinion of the court, in refusing a new trial, the defendant excepted and filed his bill of exceptions, which was duly signed. [Omitting statement of facts immaterial to the point.] The case has been brought before us by supersedeas, and the only question for us to determine is, did the court err in refusing to grant the defendant a new trial? Without entering into a full analysis of the facts or evidence in this cause, it seems to me, on examination of the same, that the jury might well have inferred, from the facts and evidence, that the plaintiff made no substantial mistake in giving his age to the agent, Tift, at the time he signed the application. True, he said to Tift that he was 65 years old, but he then and there told him, he was born the 10th of July, 180%, and that he could, from that, ascertain his age. And it is clear that the agent, Tift, did, at the time plaintiff signed the application, understand that plaintiff was born the 10th of July, 1807; at least the jury were justified in so considering. It further appears that, after said agent, Tift, had inserted in the application 1807 as the year of plaintiff's birth, he changed it to 1808, and I think it otherwise sufficiently appears that said agent, Tift, knew when he inserted the age in the application of plaintiff at 65 years, that he was, in fact, 66 years old; at least the jury was justified in so considering. The insertion of the birth of plaintiff in said McCall v. Phoenix Mutual Life Ins. Co. policy, by said agent, Tift, as being in the year 1808, was evidently done without authority from the plaintiff, and without his knowledge or consent. It was done by said agent for some purpose. It was certainly the fault, or negligence, of said agent; but it does not appear to me, from the evidence, that it was a mere innocent mistake. An insurance agent, acting within the scope of his authority, binds his principal in making the survey and filling up the application; and if the applicant truly represents the facts, and, by the fault or negligence of the agent, the application contains a material misstatement, the company are estopped to take advantage of it. Flanders on Fire Ins. 180-181; Simmons v. Ins. Co., 8 W. Va. 474, and cases there cited: "Knowledge by the agent, with whom the agreement to insure is made, and who takes and fills out the application, of the existence of incumbrances upon the title, or of prior insurance, is knowledge on the part of the insurer. He is chargeable with knowledge of all the facts stated by the applicant for insurance to the agent; and he, having truly stated to the agent the real condition of the property, cannot be held to have made any misstatement, or practiced any concealment toward the insurer, although the written application, as drawn up by the agent, does not correspond with the verbal statement made by the assured to the agent." Flanders on Fire Ins. 303-4; Simmons v. Ins. Co., supra. So it seems to me, upon principle and authority, that a life insurance company is chargeable with knowledge of all the facts stated by the applicant for insurance to the agent as to the time of his birth; and he, having truly stated to the agent the time of his birth, cannot be held to have made a misstatement toward the insurer, although the written application, as drawn up by the agent, does not correspond with the verbal statement made by the assured to the agent. Under this view, the policy, under the circumstances, was binding upon the defendant. The agents of the company, at the end of the year, when plaintiff desired a renewal, and paid to the agent his money therefor for the next year, obtained from the plaintiff his policy, by expressing to him their opinion that the defendant ought to, and, likely, would, continue to carry the risk or refund the premium. And when defendant thus, through his agents, procured said policy, it refused to further carry the risk, and retained the policy from plaintiff, and lapsed it on its books, and refused to return the premium paid. This conduct on the part of the defendant, it McCall v. Phoenix Mutual Life Ins. Co. seems to me, was wrongful and unjust. The company, it seems to me, under the circumstances of this case, should have received the premium tendered by the plaintiff, at the end of the first year, and if it declined to do this, certainly it ought to have returned the premium paid for the first year. In McKee v. Phoenix Insurance Company, 28 Mo. 383, it was held that "should an insurance company wrongfully refuse to receive premiums due on a life policy, the assured may treat the policy as at an end, and may recover back the premium paid under it." I would remark here that defendant failed to give the policy in evidence, and I, therefore, cannot determine what powers the company had, under its provisions, as to lapsing or annulling the policy. This policy was in the possession of the defendant, and if it desired the benefit of any of its provisions authorizing the lapsing or annulling of the policy, it should have produced it. Upon the whole, it seems to me that the defendant wrongfully determined the contract of insurance, by refusing to receive a premium when it was due, at the end of the first year, for the second year, and lapsed the policy issued, and that upon the defendant so doing the plaintiff had the right to treat the policy as at an end, and to recover all the money he had paid under it. Courts are not ordinarily authorized to set aside the verdict of a jury, except where it is clearly against the law and evidence. And I confess that I am unable to ascertain or determine that the verdict of the jury in this case is clearly contrary to the law and evidence. For these reasons the judgment of the municipal court of Wheeling, rendered in this cause, must be affirmed, with costs and damages to defendant in error, according to law. The other judges concurred. Judgment affirmed. NOTE BY THE REPORTER.-In Day v. Connecticut General Life Ins. Co., 19 Alb. Law Jour. 195, the Supreme Court of Connecticut held that where a life insurance company refused to accept the annual premium on a policy theretofore issued and declared such policy void and determined because of the acts of the insured, an action would not lie to recover the sum insured or the premiums paid upon an implied undertaking to receive the premiums and keep the policy in force; and that where an insurance company refuses to receive premiums and to recognize a life policy as in force, semble that the insured has two remedies: (1) to elect to consider the policy at an end and sue for the equitable value thereof; (2) to bring a suit to have the policy adjudged to be in force; and perhaps a third remedy, to tender the premiums and test the forfeiture in an action on the policy where by its terms it becomes payable. VOL. XXVII — 71 Huling v. Cabell. HULING V. CABELL. (9 W. Va. 522.) Assignment of prospective profits — rights of prior judgment creditor. An agricultural society assigned for the benefit of their creditors the proceeds of a fair about to take place on their grounds. Held, that such assignment was void as against the lien of an execution issuing before the payment of such proceeds to the creditors. ROCEEDING'S to determine conflicting rights to moneys. PROCEED W. H. Hogeman, for plaintiff in error. Geore S. Couch and William A. Quarrier, for defendants in error. GREEN, J. [After stating the facts.] The principal question in controversy is, whether the resolution, passed by the West Virginia State Agricultural Society, on September 26, 1874, operated as an assignment in law, or equity, of the proceeds arising from the agricultural fair held several days afterward, on their fair gound, and under their direction. It cannot, of course, so operate, unless the proceeds of a fair, to be held at a future time, are capable of assignment. The authorities have, I think, settled that neither choses in action nor property can be assigned, unless they have either actual or potential existence at the time of the assignment. Property has been said to have a potential existence, when it is the natural product or expected increase of something belonging to the vendor at the time of the assignment or sale. It has been contended that non-existing property may be the subject of assignment, but most of the decisions, relied upon to establish this proposition, are, when properly understood, consistent with the law as I have above stated it. Thus in Gardner v. Hoeg, 18 Pick. 168, and in Tripp v. Brownell, 12 Cush. 376, it was held that "the lay, that is the share of the oil, which a sailor in a whaling ship receives in lieu of wages, may be assigned before the commencement of the voyage.' But this ought not to be regarded as a sale of the oil, but rather as an assignment by the sailor of his claim against the owner of the ship for his share of the oil which may arise from the intended voyage. As this claim has an actual |