and a land contract was given back to Higginbotham for the expressed consideration of $3,008.54, which represented the amount of the mortgage, and $800 more. the same time a supplementary agreement was indorsed on the contract as follows:

At

"DETROIT, MICH., April 30, 1896. "As a part of the consideration of the land contract hereto attached, the said first party agrees to furnish a sum of money, not to exceed eight hundred dollars, to be used in completing the building on said premises. Said money to be advanced as the work progresses, except that twenty per cent. thereof shall be retained until the building is fully completed. Said second party to pay all expenses, including a reasonable charge for inspection, if desired by said first party.

"THE DETROIT LOAN & BUILDING Ass'n, "DARIUS D. THORP, Prest., "J. G. BATTELLE, Sec'y."

At the time this contract was made, a house had already been erected upon the premises, which was incomplete. The complainant, subsequently, under a contract with Higginbotham, furnished labor and material towards finishing the house. Higginbotham failed to pay, and complainant filed his lien. The bill treats the association as owner and Higginbotham as contractor, and proceeds upon the theory that Fuller is a subcontractor. Section 1 of the mechanic's lien law provides:

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"Every person who shall, in pursuance of any contract, express or implied, written or unwritten, existing between himself as contractor and the owner, part owner, or lessee of any interest in real estate, build, alter, improve, repair, erect, ornament, or put in, or who shall furnish any labor or materials in or for building, altering, improving, repairing, any house, building, or structure, and every person who shall, as subcontractor, laborer, or material man, perform any labor or furnish materials, * * * shall have a lien * * * to the extent of the right, title, and interest of such owner, part owner, or lessee at the time work was commenced or materials were begun to be furnished by the contractor under the original contract." Act No. 199, Pub. Acts 1893.

Was Higginbotham an original contractor, within the meaning of the section? If so, he would, by the terms of the statute, be entitled to a lien as against the loan and building association, and the complainant is entitled to a lien as subcontractor. But we think such was not the relation of the parties. The loan and building association was not entering upon the construction or completion of this building in its own interest. The money which it undertook to advance was to be repaid by Higginbotham, and was in the nature of a loan. The money was withheld, and advanced from time to time as the work progressed, it is true; but this was no more than prudence dictated to insure the safety of the loan. Higginbotham was not the agent of the loan and building association, but contracted on his own behalf and in his own interest. The expenditures might greatly have exceeded the $800 which the association agreed to advance, and the association would have been powerless to prevent it. See Loonie v. Hogan, 9 N. Y. 435 (61 Am. Dec. 683); Knapp v. Brown, 45 N. Y. 207, 211; Pinkerton v. Le Beau, 3 S. Dak. 440; Burbridge v. Marcy, 54 How. Prac. 446. Cases will be found which indicate a different view, but it will, we think, be found that the statutes of the States in which these cases were decided differ materially from ours. These cases hold, in effect, that, where the construction of a building by a contract purchaser is authorized by the vendor, the lien attaches to the entire land. See Bohn Manfg. Co. v. Kountze, 30 Neb. 719 (12 L. R. A. 33). We do not think our statute can be construed as creating a lien in such cases, particularly in view of section 3, which reads:

"Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title shall have a lien therefor upon such [building] buildings or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as

aforesaid. In case the property covered by the lien is held by the vendee in a land contract, and he surrenders or forfeits his rights thereunder, the person or persons holding such liens may be subrogated to the rights of such vendee, as his rights existed immediately before such surrender or forfeiture, by performing the covenants contained in such contract within thirty days after such forfeiture or surrender is made." Act No. 179, Pub. Acts 1891.

It appears that the defendant in this case offered to subrogate complainant to the rights of the contract purchaser, but the offer was not acted on. The case does not fall within the provisions of section 3, for the reason that these contracts did not relate to the construction of a new building.

The decree below is reversed, and the bill dismissed, with costs of both courts to the defendant loan and building association.

The other Justices concurred.

CRONIN v. FIRE ASSOCIATION OF PHILADELPHIA.

1. FIRE INSURANCE-CONDITIONS OF POLICY-FORECLOSURE CLAUSE -WAIVER.

A provision in a fire-insurance policy that it shall be void if, with knowledge of the insured, foreclosure proceedings be instituted against the property without permission of the company indorsed on the policy, is waived where the company's agent, who, at the time the policy issued, was informed by the mortgagee, whose interest is covered by the policy, that he would soon foreclose the mortgage, upon being requested by the mortgagee to make the required indorsement, advises him that it is all right for him to proceed without it.

2. SAME-INSTRUCTIONS.

An instruction in an action on a fire-insurance policy, that if

the defendant's adjuster assigned some special reason for

denying liability, and the plaintiff acted thereon, employed counsel, and incurred expenses, the company would be held to have waived all other grounds of forfeiture, is misleading and erroneous, where it appears that another defense was insisted on, concerning which there is no evidence of waiver. 3. SAME-MANUFACTURING PLANT-FAILURE TO OPERATE.

A condition in a fire-insurance policy that it shall be void if the manufacturing establishment insured ceases to be operated for more than 10 consecutive days is a reasonable and proper one, and failure to comply with it invalidates the policy.

Error to Shiawassee; Smith, J. Submitted October 5, 1898. Decided December 28, 1898.

Assumpsit by Michael B. Cronin and Thomas Cronin, for the use and benefit of Milton M. Rose, against the Fire Association of Philadelphia, on a policy of insurance. From a judgment for plaintiffs, defendant brings error. Reversed.

Crane, Norris & Stevens, for appellant.

Walter McBride (Watson & Chapman, of counsel), for appellees.

LONG, J. This case was in this court at the January term, 1897. 112 Mich. 106. In the trial in the court below in the first instance, plaintiffs had recovered a judgment by the direction of the court for $1,449.30. The case was reversed and remanded for a new trial. The principal defenses then attempted were:

1. That the policy was issued upon a written application, containing representations of facts material to the risk, which were violated.

2. That the insured ceased to operate the creamery for more than 10 days before the fire.

3. That foreclosure proceedings were commenced, to the knowledge of the insured.

4. That the building insured was unoccupied, and so remained for 10 days prior to the fire, without the consent of the company indorsed upon the policy.

It was held that none of these defenses, except that based upon the representations contained in the application for the policy, was set up in the pleadings by defendant, and that only such as were set up could be considered, under the pleadings. The case was reversed upon the ground that the questions should have been submitted to the jury whether the written application offered in evidence was the basis of the insurance, or whether the policy was issued upon a distinct oral application; and whether there was a material misrepresentation. The facts are set out in the former opinion, and need not be again stated, except so far as they become necessary in the determination of the questions raised upon the record now before us. The case has been again tried, and plaintiffs had verdict for $1,682.75. The plea now contains notices of the several defenses referred to in the former opinion, and apparently has been amended since the former trial.

1. The policy provides:

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, * * * if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed."

It appears that on January 9, 1895, Milton M. Rose, as mortgagee, filed a bill to foreclose this mortgage. It was the mortgage mentioned in the policy, and the interest of Mr. Rose as mortgagee was covered by the policy. A subpoena was issued in the case on the filing of the bill, and served on the Cronins. No permit to foreclose was ever indorsed on the policy. It is therefore contended by counsel for defendant that there was a breach of that condition of the policy. It was shown, however, that on December 7, 1894, when the policy was issued, the agent of the insurance company, Mr. W. S. Cooper, was informed that the mortgage would be foreclosed in a short time. Mr. Rose testified that, when he was ready to foreclose, he went to see Mr. Cooper; that he had the policy