Robinson, J.,
delivered the opinion of the Court.
C. G. de Garmendia effected insurances with the appellee at various times, on sundry cargoes, and at different premiums, from February 11th, 1868, to July 21st, 1868, inclusive, under Policy No. 183, entered in what is known as a policy book, — loss, if any, payable to Johnston Brothers & Co., the appellants.
On the 12th of February, 1868, the appellants agreed with the appellee to guarantee the payment at maturity of all notes given by Garmendia, for premiums on marine risks, under policies issued by the appellee, wherein the loss was made payable to them.
On the 1st of July, 1868, Garmendia passed to the appellee, his promissory note for one thousand and four dollars, being the balance due by him for unpaid premiums on policies, in which the loss if any, was pay-aide to the appellants. Prior to the maturity of this note, Garmendia failed, and suit was brought by the appellee to .recover of the appellants as guarantors, the’ amount due on said note. In this suit, the appellants claim a set-off against said note under the following state of facts: On the 26th of September, 1868, Garmendia effected an insurance with the appellee on a cargo of shooks, under Policy No. 176, the loss, if any, payable to Garmendia himself. The shooks were valued at $2376.06, and the premium charged on account of same was $17.86.
The shooks arrived in Baltimore in a damaged condition, and Garmendia and the appellee agreed they should be sold at auction to ascertain whether there was a loss, and if so, whether there was a claim against the company under the policy. The shooks were sold at auction on the 15th of October, and the nett proceeds of sale amounting to $1471.46, were paid by the appellee to [239]*239the appellants in pursuance of the following letter and endorsement:
“Office of Johnston Brothers & Co.
Bankers and Brokers,
Baltimore, October 12, 1868.
“James Carey Ooale, Present.
“ Dear Sir: — I have received from Messrs. Johnston Brothers & Co. two thousand ds. on account of the 6000 pair of headings insured by you for $2400, and I hereby transfer to said gentlemen, the settlement of the insurance, which you told me would be done as soon as you made arrangements with Mr. Bennett to sell them at auction on Thursday next.
Respectfully,
C. G. be Garmendia.”
Endorsed:—
“ Gents: — The nett proceeds of sales of the within named shooks wd. come in the usual course to Mr. Garmendia, but in accordance with his request I will arrange with Messrs. Bennett & Co. to hold the amount for your account.
Respy. yours,
James Carey Goale, Agt.
Messrs. Johnston Bros. &s Co.”
In December, 1868, Garmendia exhibited to Coale the agent, a statement by an insurance adjuster and proofs of loss, showing a partial loss of $905.16, on the said cargo of shooks. In the meantime Garmendia failed, owing the appellee a note of $1341.87, dated July 1st, 1868, payable four months after date, and the further sum of $891.85, the whole amount of said indebtedness being on [240]*240account of unpaid premiums under Policy No. 176, and for the payment of which the appellants were not liable under their guarantee, the loss on account of said policies being payable to Garmendia.
The appellants contend, that in the suit against them on the note of Garmendia for one thousand and four dollars, their liability on account of which is admitted, they have a right to set off the adjusted loss of $905.16, under Policy 176, and which they claim was assigned to them by Garmendia by his letter of October 12th, 1868, and to which the appellee by their endorsement assented.
The appellee on the other hand insists that the letter of October 12th, together with its indorsement, operated as an assignment to the appellants of the net proceeds only, and further, conceding it to be an assignment of the entire interest of Garmendia of the insurance on the cargo of shoots, the appellee claims the right to deduct from the said adjusted loss of $905.16, the amount due by Garmendia, on account of unpaid premiums under Policy No. 176.
We take the law to be well settled, that by an assign-' ment of a policy of insurance, the assignee takes it subject to all the equities which attach to it in the hands of the insured, and that in a suit by the assignee, the insurer has the right to claim any set-off or make any defence he could have made against the insured at the time of notice of the assignment. Phillips on Insurance, vol. 1, sec. 82, and cases cited. In a suit then by Garmendia himself to recover this adjusted loss, there could be no doubt as to the right of the appellee to set-off against such claim not only the premium owing on the Policy No 176, but also all premiums owing by him on other policies issued by. the appellee. If so, the same right exists as against the appellants unless it has been expressly or impliedly waived by the appellee. What will amount to such waiver, must of course depend upon the circumstances sorrounding each particular case.
[241]*241We may safely say however, that if the insurer assents to the assignment; or by its act or conduct induces the assignee to take the same under the belief that no claim exists against the insured, then no such defence or set-off could be relied on in a suit by the assignee.
The case then resolves itself into this, is there any thing in the letter of October 12th, taken in connection with the endorsement thereon by Coale, the agent, and the circumstances surrounding the same, from which it can be inferred that the appellee assented to the assignment of G-armendia’s entire interest in the policy to the appellants, or induced them to take it under the belief that there was no claim or set-off against it? Now if it be conceded that the language of the letter of October 12th, is sufficiently broad to operate as an assignment of Garmendia’s entire interest, yet unless the appellee assented in some way to the same, or by its acts or conduct mislead the assignee, it is clear, the mere assignment could not in any manner interfere with any defence which the appellee could have made, if the suit had been brought by Garmendia himself. Was there then any such assent on the part of the appellee, or was the conduct of the latter such as was calculated under the circumstances, to mislead or deceive the appellants ? To these inquiries, the indorsement of Ooale, the agent, is we think' a sufficient answer. By it he says in express terms: “ The nett proceeds of sales of the within named shooks would come" in the usual course to Mr. Garmendia, but in accordance" with his request I will arrange with Messrs. Bennett & Co. to hold the amount for your account.” Not one word is here said about assenting to the assignment of Garmendia’s entire interest in the policy, or that the appellee would consent to be liable under the letter of October 12th, for one dollar beyond the sale of the shooks, then in the hands of the auctioneers.
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Robinson, J.,
delivered the opinion of the Court.
C. G. de Garmendia effected insurances with the appellee at various times, on sundry cargoes, and at different premiums, from February 11th, 1868, to July 21st, 1868, inclusive, under Policy No. 183, entered in what is known as a policy book, — loss, if any, payable to Johnston Brothers & Co., the appellants.
On the 12th of February, 1868, the appellants agreed with the appellee to guarantee the payment at maturity of all notes given by Garmendia, for premiums on marine risks, under policies issued by the appellee, wherein the loss was made payable to them.
On the 1st of July, 1868, Garmendia passed to the appellee, his promissory note for one thousand and four dollars, being the balance due by him for unpaid premiums on policies, in which the loss if any, was pay-aide to the appellants. Prior to the maturity of this note, Garmendia failed, and suit was brought by the appellee to .recover of the appellants as guarantors, the’ amount due on said note. In this suit, the appellants claim a set-off against said note under the following state of facts: On the 26th of September, 1868, Garmendia effected an insurance with the appellee on a cargo of shooks, under Policy No. 176, the loss, if any, payable to Garmendia himself. The shooks were valued at $2376.06, and the premium charged on account of same was $17.86.
The shooks arrived in Baltimore in a damaged condition, and Garmendia and the appellee agreed they should be sold at auction to ascertain whether there was a loss, and if so, whether there was a claim against the company under the policy. The shooks were sold at auction on the 15th of October, and the nett proceeds of sale amounting to $1471.46, were paid by the appellee to [239]*239the appellants in pursuance of the following letter and endorsement:
“Office of Johnston Brothers & Co.
Bankers and Brokers,
Baltimore, October 12, 1868.
“James Carey Ooale, Present.
“ Dear Sir: — I have received from Messrs. Johnston Brothers & Co. two thousand ds. on account of the 6000 pair of headings insured by you for $2400, and I hereby transfer to said gentlemen, the settlement of the insurance, which you told me would be done as soon as you made arrangements with Mr. Bennett to sell them at auction on Thursday next.
Respectfully,
C. G. be Garmendia.”
Endorsed:—
“ Gents: — The nett proceeds of sales of the within named shooks wd. come in the usual course to Mr. Garmendia, but in accordance with his request I will arrange with Messrs. Bennett & Co. to hold the amount for your account.
Respy. yours,
James Carey Goale, Agt.
Messrs. Johnston Bros. &s Co.”
In December, 1868, Garmendia exhibited to Coale the agent, a statement by an insurance adjuster and proofs of loss, showing a partial loss of $905.16, on the said cargo of shooks. In the meantime Garmendia failed, owing the appellee a note of $1341.87, dated July 1st, 1868, payable four months after date, and the further sum of $891.85, the whole amount of said indebtedness being on [240]*240account of unpaid premiums under Policy No. 176, and for the payment of which the appellants were not liable under their guarantee, the loss on account of said policies being payable to Garmendia.
The appellants contend, that in the suit against them on the note of Garmendia for one thousand and four dollars, their liability on account of which is admitted, they have a right to set off the adjusted loss of $905.16, under Policy 176, and which they claim was assigned to them by Garmendia by his letter of October 12th, 1868, and to which the appellee by their endorsement assented.
The appellee on the other hand insists that the letter of October 12th, together with its indorsement, operated as an assignment to the appellants of the net proceeds only, and further, conceding it to be an assignment of the entire interest of Garmendia of the insurance on the cargo of shoots, the appellee claims the right to deduct from the said adjusted loss of $905.16, the amount due by Garmendia, on account of unpaid premiums under Policy No. 176.
We take the law to be well settled, that by an assign-' ment of a policy of insurance, the assignee takes it subject to all the equities which attach to it in the hands of the insured, and that in a suit by the assignee, the insurer has the right to claim any set-off or make any defence he could have made against the insured at the time of notice of the assignment. Phillips on Insurance, vol. 1, sec. 82, and cases cited. In a suit then by Garmendia himself to recover this adjusted loss, there could be no doubt as to the right of the appellee to set-off against such claim not only the premium owing on the Policy No 176, but also all premiums owing by him on other policies issued by. the appellee. If so, the same right exists as against the appellants unless it has been expressly or impliedly waived by the appellee. What will amount to such waiver, must of course depend upon the circumstances sorrounding each particular case.
[241]*241We may safely say however, that if the insurer assents to the assignment; or by its act or conduct induces the assignee to take the same under the belief that no claim exists against the insured, then no such defence or set-off could be relied on in a suit by the assignee.
The case then resolves itself into this, is there any thing in the letter of October 12th, taken in connection with the endorsement thereon by Coale, the agent, and the circumstances surrounding the same, from which it can be inferred that the appellee assented to the assignment of G-armendia’s entire interest in the policy to the appellants, or induced them to take it under the belief that there was no claim or set-off against it? Now if it be conceded that the language of the letter of October 12th, is sufficiently broad to operate as an assignment of Garmendia’s entire interest, yet unless the appellee assented in some way to the same, or by its acts or conduct mislead the assignee, it is clear, the mere assignment could not in any manner interfere with any defence which the appellee could have made, if the suit had been brought by Garmendia himself. Was there then any such assent on the part of the appellee, or was the conduct of the latter such as was calculated under the circumstances, to mislead or deceive the appellants ? To these inquiries, the indorsement of Ooale, the agent, is we think' a sufficient answer. By it he says in express terms: “ The nett proceeds of sales of the within named shooks would come" in the usual course to Mr. Garmendia, but in accordance" with his request I will arrange with Messrs. Bennett & Co. to hold the amount for your account.” Not one word is here said about assenting to the assignment of Garmendia’s entire interest in the policy, or that the appellee would consent to be liable under the letter of October 12th, for one dollar beyond the sale of the shooks, then in the hands of the auctioneers. On the contrary, its liability is expressly limited to the proceeds arising from said sale. [242]*242If this endorsement was pot satisfactory, if the appellants desired the-assent of the appellee to the assignment of Gtarmendia’s entire interest, including not only'the proceeds from the .sale ofcth,e shooks, but-■ the Jos’s’also,’ if any., to ,be thqpeaftqr. ¡ascertained) under the'policy’, it'wás in' their ppypr to hayq refused--the .qualified indorsement of the appellee, and, fo , h.a.ve- insisted ¡that it ' should “tie '. made to cover .the exdir.e, Iqss. Under,the1 policy.- 'We know of no rule of, construptionv by which the' agreement oh the part pf Ooqle, the /agent; of - the1 appellee, to' pay to the appellants the,nett proceeds- •arisibg-froth'fhb balé'óf t.he shooks by Bennett, the; auctioneer, can-'he- Construed as an assent on the part. of .-the -appellee1 -tiPthef assignment of .G-armendi,a’s entire, .interest,in "the" policy1,''including not only -the proceeds; arising from the shlé' of’the shooks, but, also the. adjusted .loss,-1 if -any',' u'tidé'r - the insurance,^ Frona what .we have..said, -it dbll'o'w's," that ¿tie appellants being, assignees of. Garfnendia, 'tliey' wére entitled to set-off,against the.note sued- oti by-thb'appellee, such sum only as may. have -been, payable Under"t'lie policy to G-armendia., on account- of the-adjusted"loss'," after deducting therefrom ,t,he amount; of premiUths o'wing' to the appellee by Garmendi-a, for-, insurances .made'prior to the date of said, assignment-,,and; notice'tber'éof' to"the': appellee. , . ......,. , , , ... .. .:r ~
(Decided 16th January, 1874.)
^Finding no error therefore,.in the instruction gratitid1' by the Court, nor in the rejection of the prayers offered by the appellants, tpe. judgment'wilbbé ¡afflfiüed:' -■.....' ''
Judgment'affirmed.