four thousand dollars at the time of the fire. His honor charged the jury, on the second issue, that the measure of damages was the fair cash value of goods at the time and place of the fire, and recapitulated the evidence in extenso as to the respective contentions of the parties on the question of damages. The defendant excepted."

The rule laid down in this court is substantially the same as that stated for the court by Justice Reade in Fowler v. Old North State Ins. Co., 74 N. C. 89, and is expressed in almost identical language. In that case, as in ours, a stock of goods had been destroyed by fire, and the court held that "the measure of damages against the defendant is the market value of the goods (within the amount insured) at the time and place of the fire." His honor substituted "fair cash value" for "market value." We can see no material difference between the words used in the opinion referred to and the language of the charge. This court in that case cited May on Insurance, section 424, and the authority fully sustains the rule announced. Wood, in his work on insurance, section 445, says that one who takes out a policy on a stock of goods can recover "only such sum as the goods were actually worth at the time of the loss, not what they cost him, not necessarily what it would cost him to replace the goods, but the sum which the goods were worth when they were destroyed by the casualty insured against." The cost of the property in the market may be shown as one of the elements, but not the test, of its value when destroyed; and on the other hand, it is competent for the insurer to prove that there was a deterioration in the value of the goods after the purchase and before the loss, which, if not resulting merely from temporary depression in the market, will tend to establish the value at the time of the fire. The damage depends upon the ascertainment of the amount for which the property can be sold, and that, in turn, depends upon its actual value at the time and place of the fire: Wood on Insurance, p. 765, sec. 445; Western Ins. Co. v. Norwich etc. Transp. Co., 12 Wall. 201. In Wynne v. Liverpool etc. Ins. Co., 71 N. C. 125, the court construed the statement that the jury had found "the value of the stock on hand to be two thousand six hundred dollars" to mean just the same as if they had found that "the damage on account of the destruction of the goods" was two thousand six hundred dollars, thus indirectly giving sanction to the rule laid down by the judge below in this case.

In Bobbitt v. Liverpool etc. Ins. Co., 66 N. C. 70, 8 Am. Rep. 494, the court said: "The value of the tobacco was what it was worth then and there, what it would have sold for then and there"; and it would seem that there is no material difference between this rule and the charge of the judge that the "measure of damage was the fair cash value at the time and place of the fire." It is not material that the court declared that the value of a staple, like tobacco, at any particular point might be determined as well in another way by ascer taining the price in the usual markets, and deducting stamp duty, the cost of transportation, and other usual and necessary expenses. But it was not in fact necessary to have passed upon the question of the quantum of damages in that case at all.

The fact that Mr. Johnson, who was a witness for the defendant, and who was present in the bar, and aiding the defendant's counsel in the conduct of the case, was not examined to contradict the plaintiff Grubbs as to what occurred when he and Cowper came to adjust the loss, was a legitimate subject of comment; and it was not error to refuse to stop coun sel from using the fact as an argument to show that the testimony of Grubbs should be believed.

We understand that the twelfth exception was abandoned. It was at any rate a waste of time to discuss it.

Upon a review of all the assignments of error, we think that there is not sufficient ground for a new trial, and that the judgment below should be affirmed.

MERRIMON, C. J., dissented, and expressed it as his opinion that, aside from all question as to the power of the agent Ramsey to waive the condition in the policy against additional insurance, the evidence accepted as true did not constitute such waiver. In this connection he said: "The plaintiffs knew of the condition that if they took other further insurance without consent on the part of the defendant written on the policy sued upon, the latter would be void. They did not ask Ramsey, the agent, to waive the condition, to say that further insurance might be taken without consent written on the policy, nor did they give him or the defendant notice that they had taken further insurance, nor did the defendant or its agent have such notice until after the loss; at most, they only suggested their desire and purpose to ob tain more. Nor did Ramsey tell them that they might take other insurance without having consent of the defendant indorsed on the policy sued upon, and that they might do so without notice to him or the defendant. The fair and just interpretation of what and all that was said by the plaintiffs and Ramsey is, that the former suggested their wish and purpose to obtain further insurance, and the latter said, in reply, they might do so, not exceeding two thirds of the value of the property insured, in the way and as

contemplated by the policy of the defendant held by the plaintiffs. Ramsey did not say they might do otherwise." This did not furnish any motive or reason on the part of the agent to waive the condition, nor did it furnish any reasonable ground for plaintiffs to believe that he had consented or intended such waiver, especially in the face of the fact that they negligently failed to have defendant's consent indorsed on the policy, and felt apprehensive that the insurer would not consent; citing, in support of this view, Collins v. Farmville Ins. & Banking Co., 79 N. C. 279; 28 Am. Rep. 322; Sugg v. Hartford Fire Ins. Co., 98 N. C. 143; Havens v. Home Ins. Co., 111 Ind. 90; 60 Am. Rep. 689; Healy v. Imperial Fire Ins. Co., 5 Nev. 268; May on Insurance, secs. 369-372; Wood on Insurance, sec. 496.

In regard to the second question, that the defendant, after the loss, by and through its adjuster, waived the condition in question, and is estopped to claim the benefit thereof by taking steps to ascertain the extent of loss, with a view to pay its proportion of liability upon the policy, Judge Merrimon said: "But the defendant's agents did not say their purpose was to waive the condition; nor was there any fair implication that they did, nor was there any consideration for such waiver. The mere fact that such inquiry was made could not reasonably or justly be treated as such waiver or an estoppel. The defendant might, without waiving any right or defense, make such inquiry, in order to learn what it ought, without regard to its legal liability, fairly to pay, if anything. It might, by such inquiry, ascertain whether the loss was fairly sustained, whether the insurance was too great, whether the stock of goods was as great as represented, or whether the same was overvalued, etc. Simply, such inquiry ought not to conclude the defendant as to any proper defense it might have. So far as appears, there are no considerations, valuable or otherwise, that in their nature do or ought to so conclude the defendant. It does not appear that the defendant was not in some way prejudiced by the additional insurance: May on Insurance, 2d ed., sec. 507.” FIRE INSURANCE - WAIVER OF CONDITIONS. - Conditions in a contract of insurance for the benefit of the company may be waived: Kenyon v. K. T. etc. Ass'n, 122 N. Y. 247. As to what is conduct on the part of the company necessary to constitute a waiver, see Weidert v. State Ins. Co., 19 Or. 261: 20 Am. St. Rep. 809; Kenyon v. K. T. etc. Ass'n, 122 N. Y. 247.

A

FIRE INSURANCE - WAIVER OF CONDITIONS, HOW MAY BE MADE. waiver of condition may be made orally by the company's agent: McFarland v. Kittaning Ins. Co., 134 Pa. St. 590; 19 Am. St. Rep. 723, and note; Phenix Ins. Co. v. Bowdre, 67 Miss. 620; 19 Am. St. Rep. 326, and note; Insurance Co. v. Brodie, 52 Ark. 11; Stanhiber v. Mutual Mill Ins. Co., 76 Wis. 285; or may be raised by the acts or conduct of the company's agent: Wachter v. Phoenix Ins. Co., 132 Pa. St. 428; 19 Am. St. Rep. 600; Burson v. Fire Ass'n, 136 Pa. St. 267; 20 Am. St. Rep. 919, and note. As to waivers of forfeitures. incurred by taking additional insurance, see Cleaver v. Traders' Ins. Co., 71 Mich. 414; 15 Am. St. Rep. 275, and note.

11

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FIRE INSURANCE - WAIVER OF FORFEITURE BY COMPANY KNOWLEDGE OF THE FACTS. - After loss, the company, with full knowledge of the facts which might work a forfeiture, may, by its declarations or conduct, waive the right to insist upon a forfeiture: City Planing Co. v. Merchants' etc. F. Ins. Co., 72 Mich. 654; 16 Am. St. Rep. 552. Compare Germania F. Ins. Co. v. Hick, 125 Ill. 351; 8 Am. St. Rep. 384; Phoenix Ins. Co. v. Tomlinson, 125 Ind. 84; 21 Am. St. Rep. 203.

An ordinary insur

FIRE INSURANCE - CLERKS OF AGENTS WAIVER. ance agent has the power to employ clerks to discharge the ordinary busi

ness of his agency, and a waiver by such clerk is the waiver of the agent himself: Arff v. Star Fire Ins. Co., 125 N. Y. 57; 21 Am. St. Rep. 721, and note. Insurance companies are responsible for the acts of clerks or subagents employed by their agents: Indiana Ins. Co. v. Hartwell, 123 Ind. 178. FIRE INSURANCE — MEASURE OF DAMAGES. - The rule for the measure of damages on an insurance policy is the extent of the loss, or the actual damages: Insurance Co. v. Starr, 71 Tex. 733; State Ins. Co. v. Taylor, 14 Col. 499; 20 Am. St. Rep. 281, and note.

TRIAL COMMENTS OF COUNSEL UPON THE FAILURE OF A PARTY TO TESTIFY OR PRODUCE EVIDENCE: See Hunt v. State, 28 Tex. App. 149; 19 Am. St. Rep. 815, and note.

DAVIE V. DAVIS.

[108 NORTH CAROLINA, 501.]

JUSTICE'S JUDGMENT -NONSUIT-RES JUDICATA — EVIDENCE. — A justice's judgment dismissing an action is not necessarily a nonsuit; and under a plea of res judicata to such judgment, evidence as to whether or not the merits were inquired into upon rendering it is admissible. JUSTICE'S JUDGMENT

RES JUDICATA. — A justice's judgment on the merits is conclusive on the parties, not only as to all matters pleaded, but as to all which could or should have been pleaded.

ACTION on a bond. On the trial, plaintiffs introduced a bond signed by one Whitfield and defendant Davis, which had been assigned to them. Defendant Davis admitted his signature, but claimed that the bond was void, as there was no payee or obligee named therein when he signed it. The justice's judgment is set out in the opinion. On appeal from that judgment, the justice, as a witness for defendant, testified that he issued summons against the defendants Davis and Whitfield, and that at the trial, after hearing the evidence, he rendered judgment against Whitfield, and dismissed the case as to Davis; that his judgment was based solely on the ground that no payee was named in the bond when it was executed by Davis, and that he did not consider the fact that though the bond was void, Davis had put it in the power of Whitfield to borrow money thereon. An objection was made and overruled to the witness testifying as to what occurred at the trial, and his intention and reason for rendering the judgment, as the latter spoke for itself. Plaintiffs appealed.

J. W. Graham, for the appellants.

L. C. Edwards and J. B. Batchelor, for the respondent.

CLARK, J. The defendant pleaded that the matter was rea judicata.

The former judgment was as follows: "This cause came on for trial; after hearing the evidence, it is adjudged that this warrant be dismissed as to Jonathan Davis"; and there was further judgment that the plaintiffs recover of the other defendant in that action the amount of the bond sued on, with interest and costs. The plaintiffs insisted that this was, as to Jonathan Davis, merely a judgment of nonsuit, and excepted to the admission of evidence as to the proceedings had before the justice. "Evidence of what a justice meant by the judgment in the former action is improper, for the entry must speak for itself. But it is otherwise as to the fact whether the merits were inquired into upon rendering it": Ferrell v. Underwood, 2 Dev. 111. This was cited and approved in Justice v. Justice, 3 Ired. 58; Massey v. Lemon, 5 Ired. 557; Carr v. Woodleff, 6 Jones, 400; and in other cases.

By consent, the court found the facts. It found "that there had been a trial on the merits upon the issues involved in this action, and a judgment heretofore had and rendered between the parties hereto, to wit, before a justice of the peace, in this county, on the 9th of June, 1890; that said justice rendered his said judgment solely and entirely upon the ground that it was proven to his satisfaction that there was no obligee named in the bond at the time the defendant executed the same; and that said justice did not hear or consider any equitable claim that the plaintiffs had against the defendant on account of his having executed said bond." This is conclusive, nor is the latter part contradictory. Unless the former proceeding was terminated by a nonsuit, the judgment therein is conclusive, and it is not a nonsuit necessarily because in form a judgment against the plaintiffs. It is found that the plaintiff failed on the merits, and though he may have had other merits or an equitable ground of maintaining the action, it was his own fault he did not present it on the trial, nor appeal from the judgment.

The judgment not being a nonsuit, it concludes the parties not only as to all matters pleaded, but as to all which could or should have been.

No error.

JUSTICES' JUDGMENTS - RES JUDICATA. — A judgment rendered by a jus tice of the peace is, until reversed, conclusive, and a complete bar to another proceeding before another justice upon the same cause of action: Marsteller v. Marsteller, 132 Pa. St. 517; 19 Am. St. Rep. 604, and note. The judg ment of a justice is conclusive as to the parties to the controversy: Ludwick