Hewill, 56 Cal., 118; People v. Crane, 60 Cal., 279. There was no such laches as precluded a resort to this remedy on the part of the defendant. OLNEY V. WESKE. Department Two. Filed January 16, 1885. RECORD HELD TO PRESENT NO ERROR and judgment and order affirmed. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial. R. Percy Wright, for the appellant. Robinson, Olney & Byrne, for the respondent. THE COURT. We find no error in this record. It does not present a case of dependent covenants. If plaintiff failed to perform his contract in the action of Leet et al. v. The Weske Gravel Mining Company, he was responsible in damages for such breach, but no damages are asked for herein. This contract was pleaded as a defense to the action, which it clearly is not. The court properly directed the jury as to the issues in the cause. Judgment and order affirmed. No. 9,590. LANG v. SPECHT. Department Two. Filed January 16, 1885. FINDING THAT THE NOTE SUED ON HAD NEVER BEEN PAID or discharged, held supported by the evidence. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial. T. C. Van Ness, for the appellant. John C. Burch, for the respondent. THE COURT. The court found that the note in suit was never paid or discharged. The evidence sustains the finding. There is no error in the record. Judgment and order affirmed. No. 8,503. CALLENDAR V. PATTERSON ET AL. Department Two. Filed January 16, 1885. STREET ASSESSMENT ASSIGNMENT OF ESTOPPEL.-A party who has assigned a contract and assessment for street work, for a valuable consideration, is estopped to deny the validity of such contract and assessment. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendants a new trial. The opinion states the facts. Tully R. Wise and Edward Fitzpatrick, for the appellants. THORNTON, J. It appears in this cause, which was an action to enforce the lien of a street assessment, that the property owners took the contract for doing the work, and that after the work was done and the assessment made by the proper officer, the contractors assigned for value received to the plaintiff all their right, title and interest in said contract and in the assessment, warrant and diagram and all the moneys due and to grow due thereon. Patterson, one of the contracting property owners and assignors, was a party defendant, and the court rendered judgment against him. It is contended that Patterson, the appellant, is estopped to deny the validity of the contract and of the assessment. We are of opinion that this point is well taken. A party cannot for value assign a contract and assessment and then set up the defense that they are invalid, because not in compliance with the street law. The law does not tolerate such a procedure. Having accepted a benefit under it he cannot be heard to say that it is invalid. Judgment and order affirmed. MYRICK, J., and SHARPSTEIN, J., concurred. No. 9,324.* BOYD v. DODSON, Guardian of Silas A. Boyd, an Insane Person. Department Two. Filed January 17, 1885. GUARDIAN AD LITEM OF INSANE PERSON-APPOINTMENT OF.-The superior court has no jurisdiction to appoint a guardian ad litem of an insane person in an action in which he is not a party. DEMURRER TO THE COMPLAINT HELD PROPERLY SUSTAINED. APPEAL from a judgment of the superior court of Modoc county, entered in favor of the defendant. The opinion states the facts. F. W. Ewing, for the appellant. THE COURT. The foregoing is the title of the action as appears throughout the transcript. The allegations of the complaint concern the plaintiff, as guardian of the person and estate of the insane person, and the said insane person, and in no way concern the defendant Dodson. It appears that Dodson was appointed guardian ad litem of the insane person, but it does not appear that the latter was ever a party to the action. It is only when an insane person is a party that the court has jurisdiction to appoint a guardian ad litem: Secs. 372 and 373, C. C. P. We do not think the complaint states facts sufficient to show that the superior court, sitting in probate, had not jurisdiction to settle the account of plaintiff as guardian, and does not show sufficient reason why she did not present her account to that court. It does not appear that an inventory cannot, even at this late day, be filed. The demurrer was properly sustained. Judgment affirmed. No. 9,417. MCCORMICK ET AL. v. SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY. Department One. Filed January 19, 1885. FIRE INSURANCE-INTEREST OF INSURED INCORRECT STATEMENT OF IN POLICY-ESTOPPEL.-An insurance was affected by the plaintiffs on a stock of goods, the property of a corporation in which they were stockholders, and which goods they were holding as security for advances; their application described the property as their own; the policy referred to the application, and made it a part thereof, and all statements therein warranties, and provided that if the assured were not the sole, absolute and unconditional owner of the property insured, and such interest were not truly stated in the policy, then, and in every such case, the policy should be void. Held, that the policy was void, and that the insurers were not estopped to deny its invalidity, because they did not assert the same immediately after the fire, when they discovered the true nature of the plaintiff's interest. APPEAL from a judgment of the superior county of San Francisco, entered in favor of an order denying the defendant a new trial. facts. William M. Pierson, for the appellant. court of the city and the plaintiff, and from The opinion states the MCKINSTRY, J. The policy of insurance on which this action was brought, contains the covenants: * * * "If the assured is not the sole, absolute and unconditional owner of the property insured, and the interest of the assured be not truly stated in the policy * * every such case this policy shall be void. * * then, and in "If an application * * is referred to in this policy * * such application * * shall be considered a part of this policy and a warranty by the assured, and if the assured, in a written or verbal application, makes any erroneous representation and in every such case this policy shall be void." * * then The plaintiff's application for the insurance was "on their stock of manufactured manilla paper, while contained in the round, brick warehouse in the rear of their paper-mill building," etc. The evidence showed that the insured property was the property of the "Lick Paper Company," a corporation; that the plaintiffs were stock-holders of the Lick Paper Company to the extent of onehalf of the capital stock, and that they held a power of attorney representing the other half; that plaintiff McCormick was president, and plaintiff Delanoy was secretary of the corporation; that the plaintiffs were commission merchants, and sold the product of the corporation on a commission of five per cent., and that they held such product as security for advances made by them to the corporation, which advances varied from time to time, and at the time of the loss they amounted to about twenty thousand dollars. And it further appeared that the corporation at the time of the loss was solvent, and plaintiffs had other security for their advances. On this evidence the defendant moved for a non-suit, on the ground that the evidence showed "that plaintiffs were not the sole or absolute or unconditional owners of the property insured, and the nature of their interest did not appear either in their application for insurance nor in the policy itself." The court below erred in denying the motion for non-suit. The most that can be claimed on the part of the respondents is, that they were stockholders in the corporation that owned the insured property, and that they were also commission merchants holding the property as security for advances. Under neither of these aspects nor both combined, were they the "sole, absolute and unconditional owners of the property insured." Their application and the policy, however, represented them to be such owners. The contract between the appellant and respondents provided, that if they were not such owners, and their interest should not be truly stated in the policy, then the policy should be void. The civil code provides, sec. 2,611: "A policy may declare that a violation of specified provisions thereof shall avoid it, otherwise, the breach of an immaterial provision does not avoid the policy." The same code, sec. 2,607, provides that "a statement in a policy of a matter relating to the person or thing insured, or to the risk as a fact, is an express warranty thereof." The policy makes the representation as to the ownership of the property a warranty. If it should be conceded that plaintiffs had an insurable interest, that fact would have no effect upon the determination of the question here presented. The statement in the application of plaintiffs that the property was "their" property, is a statement that they were the only, absolute and unconditional owners of it: Southwick v. Atlantic F. and M. Ins. Co., 133 Mass., 457; Lasker v. St. Joseph F. and M. Co., 86 N. Y., 424; Mers v. Franklin Ins. Co., 68 Mo., 127; Rohrback v. Germania F. Ins. Co., 62 N. Y., 47. It is contended by respondents that the defendant "waived the warranty, or is estopped from asserting that plaintiffs were not the only, absolute and unconditional owners of the property, by reason of facts occurring after the fire. The facts, claimed to be established by the evidence, on which respondents rely as proving such "waiver" or estoppel, may be stated as follows: On the day after the fire Mr. Easton, of Jacobs & Easton (general agents of defendant), and Mr. Fenn, their adjuster, called at the office of plaintiffs and looked over the inventory of what stock they bad on hand. On the day following, the plaintiff, McCormick, gave to Fenn a memorandum of property destroyed, and assisted him in ascertaining the loss. Easton and Fenn were told the exact conditions under which plaintiffs held the paper, and that the Lick Paper Company at that time owed plaintiffs twenty thousand dollars. They were told that the property was held on consignment. Fenn, who was authorized to act for J. & E., afterwards asked one of plaintiffs to come to the office of Jacobs & Easton to be settled with. The only question in dispute, before the commencement of the action, was the amount of the loss-appellant claiming it was not bound to pay for "paper bags," but offering to pay all else, and respondents claiming that paper bags were covered by the policy. An affidavit, prepared by appellant's agents, was at their request signed and sworn to by plaintiff, McCormick, on July 11th, four days after defendant knew the nature of plaintiff's interest in the property, which stated: That he and his partner were stockholders in the Lick Paper Mill Company, one being its president and the other its secretary. That they were the agents of the company, making advances to it and receiving, as security therefor, the manufactured article; that the manufactured paper was stored in the company's warehouse (where the fire took place), until such time as McCormick & Delanoy could place it in the market; that such advances were made upon the report of the superintendent of said mill; that the quantity of paper was manufactured and is contained in said warehouse, etc., (proceeding with a full statement of plaintiffs' interest in and relation to the property). The facts above recited did not constitute an estoppel upon defendant. To constitute an estoppel there must be such conduct on the part of the insurers as wonld, if they were not estopped, operate as a fraud on the party who has taken, or neglected to take, some action to his own prejudice in reliance * it. Where no act has been done or left undone by the insured in reliance upon the action or non-action of the insurer there can be no estoppel:" May on Ins., 507; Security Ins. Co. v. Fay, 22 Mich., 467. upon * * The facts above recited could not and did not, induce the plaintiffs to take any action to their own prejudice. As to waiver, the |