to find the facts, we think the rule in Kimberly v. Arms applies, and, as there is nothing to show that the findings of fact were unsupported by the evidence, we think they must be treated as conclusive." It seems to me to follow from these rules and decisions that whether the occurrence of the conversation upon which Dyke Bros. claim an estoppel is founded is considered as an original question, dependent upon the preponderance of evidence, and upon the interest, character, and demeanor of the witnesses, or as the finding of the referee whom the parties had selected and agreed to constitute a special tribunal to hear and determine their controversies, the finding of the referee that no such conversation took place was both right and conclusive, and should have been sustained by the court below.

Nor is the conclusion of law that if this conversation had taken place the mortgagees would have been estopped thereby from maintaining the superiority of their lien more tenable. An estoppel is a prohibition of one from denying the truth of some statement or representation of fact which he has made and upon which another has rightfully acted. It is nothing more and goes no further. It never prevents one from maintaining the truth concerning any fact relative to which he has made no misstatement or misrepresentation. The truth which Dyke Bros. seek to estop the mortgagees from asserting is that the lien of their mortgage was superior to the mechanic's lien of Dyke Bros. That mortgage was of record, and Dyke Bros. were charged with knowledge of its priority and superiority. The mortgagees never made any statement or representation that it was not or would not be prior or superior to the lien of these materialmen. Kelley had neither power nor authority to discharge the lien of the mortgagees nor to subordinate it to the liens of others, and no statement or representation which he made could have had any such effect or could have been binding upon them.

Again, if Kelley had been the mortgagee and had made the alleged statement to Dyke, still he would not have made any statement or representation that the lien of the mortgagees was not superior to that of Dyke Bros. If he said, "I have about $1,500 belonging to Mr. Matthews, and I will see that you get your money out of it," that statement contained no averment or representation that the lien of the mortgagees was not superior to any lien which Dyke Bros. had or could acquire upon the lot and building. It was nothing but a statement that he had $1,500 of Matthews' money, coupled with a promise that he would pay Dyke Bros. out of it. It would not be a denial of this statement to prove the first lien of the mortgagees upon the lot and building. That fact tends in no way to show that Kelley did not have $1,500, or that he would not see that Dyke Bros were paid. Hence the statement cannot estop or prohibit the mortgagees from establishing and maintaining the fact that their lien is superior to that of Dyke Bros., a truth which is neither directly nor indirectly denied by the terms of Kelley's alleged statement.

Moreover, there is no foundation for an estoppel in the statement. It is not claimed that the averment that Kelley had $1,500 of Matthews' money in his hands was not true. The only part of the conversation which is asserted to be false or to form the basis of an estop.

pel consists in the words, "I will see that you get your money out of it." But this is nothing but a promise, nothing but an executory agreement, and no estoppel can arise upon a promise or upon an executory contract coupled with a failure to perform it. The only remedy for such a failure is an action for specific performance or for damages for breach of the agreement. 2 Pom. Eq. Jur. § 808; Bigelow, Estop. p. 555; White v. Ashton, 51 N. Y. 285; Starry v. Korab, 65 Iowa, 267, 269, 21 N. W. 600; Railroad Co. v. Barnes, 64 Fed. 80, 82, 12 С. С. А. 48, 50.

A false representation or a concealment of an existing or present state of things is a sine qua non of an estoppel. Neither a promise nor a prophecy will sustain it, "for," as Mr. Bigelow well says, "if a party make a representation concerning something in the future it must generally be either a mere statement of intention or opinion, uncertain to the knowledge of both parties, or it will come to a contract with the peculiar consequences of a contract." In Maddison v. Alderson, 52 Law J. Q. B. 737, Lord Selborne said: "The doctrine of estoppel by representation is applicable only to representations as to some state of facts alleged to be at the time actually in existence, and not to promises de futuro, which, if binding at all, must be binding as contracts." So are all the authorities. There was no false statement, no misrepresentation of any fact, of any past or existing state of things, in the alleged conversation of Kelley, and hence it could not have worked an estoppel. The conclusion seems to me to be inevitable that under the evidence and the finding of the referee Dyke Bros. failed to establish the fact that Kelley made the statement upon which they relied, and that, if he had made it, it could not under the law have estopped the mortgagees from asserting the priority and superiority of their lien. No estoppel arose which forbade them from maintaining that the lien of their mortgage was superior in right to the mechanic's lien of Dyke Bros.

In my opinion the decree below should be reversed, with a direction to the court below to enter a decree in accordance with the finding of the referee that the mortgagees are entitled to a first lien upon the premises and the proceeds thereof for the entire amount of their mortgage debt and interest.

2. SAME-ACTION ON POLICY-SUFFICIENCY OF EVIDENCE.

Under the settled rule that, to entitle an insured to recover on a marine policy of insurance, the burden rests, upon him to prove a loss from a cause insured against, and for an amount which renders the insurer liable under the terms of the policy, where a policy provides that the insured shall not have the right to abandon the vessel unless the amount which the company would be liable to pay under an adjustment as a partial loss "shall exceed half the amount hereby insured," and also that no partial loss shall in any event be paid unless amounting to at least 5 per cent. net, the insurer does not meet such burden of proof merely by evidence that the vessel received such injury during a voyage that she was obliged to seek a port of refuge, and that her value when repaired would not equal the cost of the repairs. To establish either a constructive total loss, which gave the insured the right of abandonment, or even a partial loss, under such policy, there must be evidence from which a jury could find that the loss occurred from a peril insured against, and the amount of damage which resulted from such peril, as distinguished from such as may have resulted from the defective condition of the vessel, attributable to wear and tear or other ordinary causes; and this, whether the amount of loss to fix liability or to authorize abandonment is measured by the amount of the insurance or the valuation of the vessel.

8. SAME-ACCEPTANCE OF ABANDONMENT-ACTS DONE UNDER SUE AND LABOR CLAUSE.

Under the sue and labor clause of a marine policy, expressly providing that acts of the insured or insurer in recovering, saving, and preserving the property insured in case of disaster shall not be considered a waiver or an acceptance of an abandonment, where the insurer specifically refused to accept an abandonment of the insured vessel after she became disabled the action of its agent, in co-operating with the master in making temporary repairs, in assuming responsibility for removing the vessel to another port, and in procuring the money to pay the expense of such removal, which was furnished on a bottomry bond executed by the master, did not operate as an acceptance of the abandonment.

4 SAME-ACCEPTANCE OF PREMIUM AFTER NOTICE OF Loss.

The fact that the insurer of a vessel demanded and accepted payment of a premium note after receiving notice of loss and of abandonment does not relieve the insured from the necessity of proving the loss to entitle him to recover on the policy.

In Error to the Circuit Court of the United States for the Northern Division of the District of Washington.

These are actions at law to compel the payment of marine insurance. The parties hereto stipulated as follows: "That these two cases may be heard together; that there be no part of the record of the case against the Thames & Mersey Marine Insurance Company, Limited, printed, save and except the pleadings and bills of exceptions; that the record in both cases be printed as one record, to apply equally to either case; and that only one brief be required, which shall be a discussion of both or either of the cases, as may be applicable."

Plaintiffs in error make the following statement of facts: "A. H. Soelberg, for and as trustee of the Seattle & Alaska Steamship Company, having an insurable interest in the steamship City of Columbia, procured insurance from each of the defendants in error herein. The Western Assurance Company insured $15,000, on account of whom it may concern, in case of loss to be paid to A. H. Soelberg, for one year from August 25, 1898, upon his or their interest in the body, machinery, tackle, apparel, and other furniture of the ship, valued at $70,000. The total premium was $1,500, of which $600 was paid in cash and notes delivered for the deferred premium. The Thames & Mersey Marine Insurance Company insured $5,000 on account of A. H Soelberg for the same period 'upon his or their interest' in the same steamer,

valued at $80,000. The Thames & Mersey policy has on its margin the words, "The insured value shall be taken as the repaired value of the vessel in ascertaining whether there is a constructive total loss under this policy." In other respects the policies are substantially similar. The total premium under this policy was $600, of which $150 was paid in cash, and the balance evidenced by three notes for $150 each, payable, respectively, November 30th, February 30th, and May 30th following. The defendants at the time of issuing the policies were informed of and knew the interest of the Seattle & Alaska Steamship Company in the ship, and of the trust relation of Soelberg, in whose name the policies were issued. August 26, 1898, the vessel being staunch, sound, and seaworthy, having had repairs amounting to $43,000 placed upon her immediately prior thereto, sailed from Seattle on her voyage to Honolulu, and on the 29th of October following, still staunch, sound, and seaworthy, she sailed from Honolulu on her return voyage; and on or about the 30th or 31st day of October she encountered heavy trade winds and cross-seas, which greatly increased in violence as the vessel proceeded on her course, which caused her to strain, pitch, and toss heavily; her seams opened up between her boilers and amidships, and water began to come in through the sleeve of the stern bearing and through her deadwood; her two after boilers on the port side became loose in their saddles; her bulkheads had torn from the starboard side, and worked with the swaying of the ship, leaving a gap about three inches wide between the after bulkhead and side of the ship; the main steam pipe, of about thirteen inches in diameter, leading from the superheater, had torn loose from the stirrups which held it to the beams overhead, and was supported only by the superheater at one end and the engines at the other; the deck seams had opened, and on one side of the vessel oakum was streaming from some of her butts, and in one place her deck had opened across the ship, and the canvas was ruffling up; she was working badly, and was severely strained; not a door in the after cabin could be closed; she was hogged, her stern and bow dropping, thus causing the shaft to press and crowd against the sleeve of the stern bearing, thereby creating friction to such an extent as to cause the water leaking through at this place to come in hot. She was making three feet of water per hour, which was equal to the full capacity of her pumps. She was in danger of breaking up, whereupon the master called a consultation of his officers at 8 a. m. on October 31st, at which consultation Capt. John Barneson, superintendent of marine transportation United States army, who was a passenger on the vessel, was invited to and did take part therein. The result of the consultation was the conclusion that it was impossible for the ship to weather the storm, that the winds and waves were increasing, and that it was necessary to put back. Accordingly, on the same day, the master put back, and about 4 a. m. of November 2d reached the port of Hilo, H. I., in distress. Having dropped anchor in the harbor of Hilo, the master made due and timely protest, and afterwards extended protest. The U. S. consular agent at this port appointed a board of survey, consisting of three competent and experienced master mariners, who reported the vessel totally unfit and unseaworthy and unrepairable, except at a cost in excess of her value when repaired. Thereupon plaintiffs in error abandoned their interest in the vessel to the underwriters, and furnished them with proof of interest and loss. Defendants declined to accept abandonment, but sent an agent to Hilo, who assumed full direction and control of the vessel, and after putting some repairs on her caused her to be taken to Honolulu, avowedly for complete repairs. The expense of the repairs placed on the vessel in Hilo preparatory to taking her to Honolulu was raised by said agent, who caused a bottomry bond to be put on the boat for this purpose. After arriving at Honolulu she was left in charge of the agent aforesaid by the master, who returned without her to Seattle. While at Honolulu she was libeled by the crew for wages, including the amounts accruing subsequent to abandonment, and was never returned to plaintiffs in error. Defendants declining to pay any sum, plaintiffs commenced action against them separately upon their respective policies."

To sustain the issues on behalf of plaintiffs, the policy of insurance was admitted in evidence, and also the contract of purchase.

The testimony of plaintiff A. H. Soelberg shows: That the said contract was taken in his name merely as a matter of convenience, and no one else was interested in it besides the Seattle & Alaska Steamship Company; that his position was that of a mere go-between between Alexander Baillie and the Seattle & Alaska Steamship Company; whatever he did he did for the Seattle & Alaska Steamship Company, and as an officer of that company, and not in his own interest in any wise; that he was trustee for said corporation, and as such trustee took out said policy for its sole benefit; that the agents of the defendant, through whom said insurance was procured, were informed and knew at the time of the interest of the said Seattle & Alaska Steamship Company in said vessel, and of the relation of the said Soelberg, and for whose benefit the same was procured.

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The policy, in terms, provides: "(1) In case of loss, same to be paid in sixty days after proof and adjustment of loss and proof of interest in said vessel (the amount of the notes given for premium, if unpaid, being first deducted, and all sums due or coming due to the company from the insured being first paid or secured to the satisfaction of the insurers), but no partial loss or particular average shall in any event be paid under this policy. unless amounting to at least five per cent. net. (3) Touching the adventures and perils which this insurance company is contented to bear and takes upon itself in this policy, they are of the seas; and all other losses and misfortunes that shall come to the hurt or damage of the vessel hereby insured, or any part thereof, to which insurers are liable by the rules and customs of insurance in San Francisco, including the rules for adjustment of losses printed on the back thereof, and the provisions of the Civil Code of California, excepting such losses and misfortunes as are excluded by this policy. (4) Not to use any ports or places on the west coast of the United States of America, south of San Francisco, except *. It shall and may be lawful, however, for said vessel in her voyages to proceed and sail to, touch and stay at, any ports or places, if thereunto obliged by stress of weather or other unavoidable accidents, without prejudice to this insurance. * * (6) This company is not to be held liable, in general average or otherwise, for jettison of deck cargo, unless the vessel is stranded; nor for wages and provisions, except when the same are a general average charge by the custom of the port of destination; nor in case of insurance upon a steamer for any injuries to the machinery or boiler, nor for loss or damage to the vessel itself caused by the explosion of boilers, unless occasioned by stranding, striking the ground, sinking, burning, or collision with another vessel; nor for fuel, wages, or provisions, or expense of delay consequent upon repairs of any kind on any steamer, except in general average for wages and provisions of that portion of the crew absolutely necessary for the navigation of the vessel; nor for any claim for loss or expense arising from capture, seizure, detention, destruction. (7) In case of any loss or misfortune resulting from any peril insured against, the party insured hereby engages, for himself or themselves, his or their factors, servants, and assigns, to sue, labor, and travel, and use all reasonable and proper means for the security, preservation, relief, and recovery of the property insured or any part thereof, and also to use all proper and legal means to recover, through general average or otherwise, from the parties interested in freight or cargo, either or both, any and all sums due to the vessel or its owners on account of sacrifices, losses, or expenses incurred for the general safety or the common good, to the charges whereof this company will contribute in proportion as the sum insured is to the whole sum at risk; nor shall the acts of the insured or insurers in recovering, saving, and preserving the property insured, in case of disaster, be considered a waiver or an acceptance of an abandonment. (8) It is agreed that one-third shall be deducted from the cost of all repairs of injuries and losses on the vessel by the perils insured against (except on anchors, copper, and calking under the copper). as a commutation for the average difference between new and old; the remains of all articles replaced being considered as salvage, and their proceeds deducted from the gross loss. * (9) It is also agreed that the insured shall not have the right to abandon the vessel, unless the amount which this company would be liable to pay under an adjustment, as of partial loss for

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