14   FEDERAL REPORTER. _
without performance, or an offer to perform.! In such a case an engineers
award or finding may be conclusive on a sub-contractor? But where an
agreement was made between a land-owner, through whose land a railway
was about to be laid, and the company, whereby it was agreed that an esti-
mate should be made by the eompany’s. engineer as to the damages, which
should be submited to A., the land-owner’s agent, "for approval," "the
amount, when agreed upon or determined," to be paid to the 1and—owner in
discharge of all obligations as to the road. A. died before the engineers esti-
mate was sent in. Held, that submission to A. for approval was of the es-
sence of the contract, and that inasmuch as by A.’s death the contract could not
be performed in the manner agreed, the court refused specific enforcement}
And the courts have refused to appoint arbitrators to value works, erections,
buildings, or the damage caused thereby! ·
· Exceptions. Although a court of equity will not in general decree specific
performance of an agreement to refer to arbitration, or, on the death of an
arbitrator, substitute the master for the arbitrator, yet the party who refuses
to supply the deliciency by naming a new arbitrator may be denied relief
from a court of equity except upon the terms of his doing equity, which may
consist in his consenting to the accounts being taken by the masteri And
although equity will not decree specific performance of a contract to arbi·
trate, yet where a question of damages arises it is· not error for the court, by
consent of parties, to permit the amount to be ascertained by arbitrators and
to decree the amount thus found! ADELBERT HAMILTON.
Chicago.
*See Monongahela Nav. Co. v. Fenlon, Hag art v. Morgan, 1 Seid. 422; Gibbons
4 Watts. do SL 205. , v. Edwards, 2 Dru. &. War. S0.
’Faunce v. Burke, 4Ha.rris, 469. °Chislyn v. Dalby, 2 Youngc & C.
'Firth v. Midland Ry. Co. L. R. 20 Eq. Exch. 170.
100. ‘ °Conner v. Drake, 1 Ohio Bt. 186. ·
*Haggart v. Morgan, 4 Sandi`. 198; . . ·
Bunn v. Hom: Mor. Ins. Co.
(Uircuit Court. D. Oregon., January 21, 1884.)
1. Aeimr Anvmnsmm Inrnunsrnn T0 Pnmcrrsn.
The law will not allow a person to act as agent when he has an interest ad-
verse to his principal; and therefore an agent of an insurance companly to re-
ceive and transmit applications for insurance, wheumaking an app ication
therefor on his own property, directly or indirectly, for his own benefit, i.s act-
ing for himself, and cannot be considered-the agent of the insurance company.
2. Burr ·ro Rnronu A Courmor.
The evidence necessnri to support a bill to reform a contract must show cer-
tainly in what the mista e consists, and that it was mutual.
3. Cass: m Junemnxr. . ‘ .
‘ · The owners of a warehouse applied to an insurance company, of which they
‘ weresgents, to receive and transmit applications for insurance for s policy
‘ on the same, as the property of their ‘udgment creditor, and the company,
knowing, nothing to the contrary, issued the policy accordingly, and upon the
destructron of the property by fire refused to pay the insurance, on the ground
that the assured had no insurable interest therein, the assured having failed
' in an action on the policy to recover the insurance, on the ground that it did
»· notappear but tha.t_his debt could be otherwise made out of the remaining
property of his debtors,—8 Sawy. 618,.[B. Q. 15 Fun. Rm-. 707,]—brought e