BRYAN, Circuit Judge.
This is a suit on two fire insurance policies issued upon a stock of goods located in a store at Milton, Fla. The policies were attached to the declaration, which in the usual and statutory form alleges loss by fire, and also contains the additional allegation that after the fire it was stipulated between the plaintiffs, on the one hand, and the defendant and other insurance companies, which had issued policies on the same stock of goods, on the other, that the amount of loss and the liability thereon, in the event the insurance companies were Jiable, should be fixed at $25,000, and that under the terms of the policies and the said stipulation the defendant became liable to the plaintiffs in the sum of $10,714.29.
The policies are identical, except that one is for $10,000 and the other for $5,000, and they insure M. Scheuer and C. W. Cpbb, trustees for Scheuer, Wise & Co., Harry Scheuer, J. B. Kleinhauser, C. W. Cobb, and S. N. Cox. Each of them contains the following provision:
“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership.”
The defendant filed two sets of pleas: The first to the effect that the plaintiffs were not, either at the time the policies were issued or at the time of the fire, unconditional and sole owners, but that one H. S.-Bates and his wife were either the sole or part owners of the stock of goods insured; and the second set to the effect that the interest of the plaintiffs was that of creditors, that they held the legal title to the stock of goods to secure the payment of debts due to them, and that the aggregate amount of such debts, at the time of the fire and at the time of the trial, was less than the maximum amount of defendant’s liability under the policies. The court sustained a demurrer to all the first set of pleas except two, and in its charge to the jury withdrew from their consideration these two pleas, and also the entire second set of pleas. The case was submitted to the jury upon other issues which it is not material' to state.
The stock of goods insured formerly was the property of the Bates Drygoods Company, a corporation. That corporation was adjudicated a bankrupt, and on August 13, 1921, the trustees in bankruptcy sold the stock of goods to one Rutherford for $25,100, who on the same day sold it to M. Scfieuer. Again on the same day M. Scheuer and C. W. Cobb executed a declaration of trust, which recites that they had procured the legal title as trustees for the following creditors: C. W. Cobb, J. B. Kleinhauser, H. Scheuer, and Scheuer, Wise & Co. to the extent oF $5,000 each, and S. N. Cox to the extent of $2,000—and provides that [259]*259they will employ H. S. Bates, president of the bankrupt corporation, as their agent to sell the stock of goods at retail, and out of the proceeds repay said sums of money to the beneficiaries of the trust. This instrument is silent as to what should be done thereafter with the trust property, which M. Scheuer estimated was worth $70,000; but other evidence supports the inference that the trustees, M. Scheuer and Cobb, were to receive some compensation, and then were to convey the title to Bates. The several amounts mentioned in the declaration of trust were advanced in pursuance of a plan formed before the stock of goods was sold by the trustees in bankruptcy. On August 9, in a letter to Kleinhauser, Scheuer stated that he would hold the title in his name until Bates should pay the purchase price. Bates was instrumental in inducing Kleinhauser to contribute, or be responsible for, $5,000. Bates’ wife was given a receipt for $5,000, to be returned after all other indebtedness had been paid. After the fire, the trustees, Scheuer and Cobb, assigned all their right and title to Bates, who agreed to pay certain debts, including compensation to the trustees for their services. Bates remained all the time in actual possession.
January 29, 1922, the goods were damaged by fire, and on February 24 following an adjuster, acting for the defendant and other insurance companies, entered into a nonwaiver agreement with the plaintiffs, in which it is provided that any action taken or any information received by the adjuster should not affect the terms, conditions, or requirements of the policies. The intent of the agreement is stated to be to preserve all the rights of the parties, and to permit an investigation of the claim and the determination of the amount of loss without regard to the liability of the insurance companies, and without prejudice to any rights or defenses which they might have. On the same day the adjuster agreed with the plaintiffs as follows:
“Pursuant to the within nonwaiver agreement, if it is determined that liability exists on the part of the insurance companies for the loss by fire on January 29, 1922, to the property insured by the said insurance companies, then that liability and the net amount due by said companies to the said trustees is hereby understood and agreed to be the sum of $26,500.”
The adjuster made a report to the defendant of the agreements he had entered into with the plaintiffs, and, though some question is made as to the adjuster’s authority, his acts appear'to have been acquisced in and ratified, and are therefore to be considered binding upon the defendant.
The defendant offered to prove that the amounts advanced to purchase the stock of goods had been repaid to all the beneficiaries mentioned in the declaration of trust except S. N. Cox, and that at the time of the fire, as well as of the trial', the outstanding indebtedness to the plaintiffs was much less than defendant’s proportionate share of the maximum loss as fixed by the adjuster’s agreement. But the court, upon objection by the plaintiffs, rejected the offer of proof, and the defendant excepted. The jury found for the plaintiffs, and judgment was entered for the full amount sued for, which the defendant con-' cedes would be correct if the plaintiffs were sole and unconditional owners.
[260]*260The plaintiffs do not question the validity of the clause in the policies requiring unconditional and sole ownership. Their contention in support of the order sustaining the demurrer is that, where the insured is designated as trustee, it is “otherwise provided” in a manner authorized, and that the clause relied on by the defendant is in effect written out of the contract of insurance, because the designation necessarily implies that the insured was not the unconditional and sole owner. Where it appears that the insured is acting in a representative capacity for undisclosed beneficiaries, the rule invoked by the plaintiffs is applicable. Such a case is that of Hagan v. Scottish Insurance Co., 186 U. S. 423, 22 Sup. Ct. 862, 46 L. Ed. 1229,- where the insurance was issued to “Peter Hagan & Co. for account of whom it may_ concern.” But in this case the beneficiaries are named, and the implication is that there are no other beneficiaries. The only reason for naming the trustees is that they held the legal title; but the insurance is not merely of the legal title, but of the entire ownership. The case is not different than it would have been if no trustee had been named and the insurance had been in favor of the beneficiaries only. We are of the opinion therefore that it was error to sustain the demurrer.
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BRYAN, Circuit Judge.
This is a suit on two fire insurance policies issued upon a stock of goods located in a store at Milton, Fla. The policies were attached to the declaration, which in the usual and statutory form alleges loss by fire, and also contains the additional allegation that after the fire it was stipulated between the plaintiffs, on the one hand, and the defendant and other insurance companies, which had issued policies on the same stock of goods, on the other, that the amount of loss and the liability thereon, in the event the insurance companies were Jiable, should be fixed at $25,000, and that under the terms of the policies and the said stipulation the defendant became liable to the plaintiffs in the sum of $10,714.29.
The policies are identical, except that one is for $10,000 and the other for $5,000, and they insure M. Scheuer and C. W. Cpbb, trustees for Scheuer, Wise & Co., Harry Scheuer, J. B. Kleinhauser, C. W. Cobb, and S. N. Cox. Each of them contains the following provision:
“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership.”
The defendant filed two sets of pleas: The first to the effect that the plaintiffs were not, either at the time the policies were issued or at the time of the fire, unconditional and sole owners, but that one H. S.-Bates and his wife were either the sole or part owners of the stock of goods insured; and the second set to the effect that the interest of the plaintiffs was that of creditors, that they held the legal title to the stock of goods to secure the payment of debts due to them, and that the aggregate amount of such debts, at the time of the fire and at the time of the trial, was less than the maximum amount of defendant’s liability under the policies. The court sustained a demurrer to all the first set of pleas except two, and in its charge to the jury withdrew from their consideration these two pleas, and also the entire second set of pleas. The case was submitted to the jury upon other issues which it is not material' to state.
The stock of goods insured formerly was the property of the Bates Drygoods Company, a corporation. That corporation was adjudicated a bankrupt, and on August 13, 1921, the trustees in bankruptcy sold the stock of goods to one Rutherford for $25,100, who on the same day sold it to M. Scfieuer. Again on the same day M. Scheuer and C. W. Cobb executed a declaration of trust, which recites that they had procured the legal title as trustees for the following creditors: C. W. Cobb, J. B. Kleinhauser, H. Scheuer, and Scheuer, Wise & Co. to the extent oF $5,000 each, and S. N. Cox to the extent of $2,000—and provides that [259]*259they will employ H. S. Bates, president of the bankrupt corporation, as their agent to sell the stock of goods at retail, and out of the proceeds repay said sums of money to the beneficiaries of the trust. This instrument is silent as to what should be done thereafter with the trust property, which M. Scheuer estimated was worth $70,000; but other evidence supports the inference that the trustees, M. Scheuer and Cobb, were to receive some compensation, and then were to convey the title to Bates. The several amounts mentioned in the declaration of trust were advanced in pursuance of a plan formed before the stock of goods was sold by the trustees in bankruptcy. On August 9, in a letter to Kleinhauser, Scheuer stated that he would hold the title in his name until Bates should pay the purchase price. Bates was instrumental in inducing Kleinhauser to contribute, or be responsible for, $5,000. Bates’ wife was given a receipt for $5,000, to be returned after all other indebtedness had been paid. After the fire, the trustees, Scheuer and Cobb, assigned all their right and title to Bates, who agreed to pay certain debts, including compensation to the trustees for their services. Bates remained all the time in actual possession.
January 29, 1922, the goods were damaged by fire, and on February 24 following an adjuster, acting for the defendant and other insurance companies, entered into a nonwaiver agreement with the plaintiffs, in which it is provided that any action taken or any information received by the adjuster should not affect the terms, conditions, or requirements of the policies. The intent of the agreement is stated to be to preserve all the rights of the parties, and to permit an investigation of the claim and the determination of the amount of loss without regard to the liability of the insurance companies, and without prejudice to any rights or defenses which they might have. On the same day the adjuster agreed with the plaintiffs as follows:
“Pursuant to the within nonwaiver agreement, if it is determined that liability exists on the part of the insurance companies for the loss by fire on January 29, 1922, to the property insured by the said insurance companies, then that liability and the net amount due by said companies to the said trustees is hereby understood and agreed to be the sum of $26,500.”
The adjuster made a report to the defendant of the agreements he had entered into with the plaintiffs, and, though some question is made as to the adjuster’s authority, his acts appear'to have been acquisced in and ratified, and are therefore to be considered binding upon the defendant.
The defendant offered to prove that the amounts advanced to purchase the stock of goods had been repaid to all the beneficiaries mentioned in the declaration of trust except S. N. Cox, and that at the time of the fire, as well as of the trial', the outstanding indebtedness to the plaintiffs was much less than defendant’s proportionate share of the maximum loss as fixed by the adjuster’s agreement. But the court, upon objection by the plaintiffs, rejected the offer of proof, and the defendant excepted. The jury found for the plaintiffs, and judgment was entered for the full amount sued for, which the defendant con-' cedes would be correct if the plaintiffs were sole and unconditional owners.
[260]*260The plaintiffs do not question the validity of the clause in the policies requiring unconditional and sole ownership. Their contention in support of the order sustaining the demurrer is that, where the insured is designated as trustee, it is “otherwise provided” in a manner authorized, and that the clause relied on by the defendant is in effect written out of the contract of insurance, because the designation necessarily implies that the insured was not the unconditional and sole owner. Where it appears that the insured is acting in a representative capacity for undisclosed beneficiaries, the rule invoked by the plaintiffs is applicable. Such a case is that of Hagan v. Scottish Insurance Co., 186 U. S. 423, 22 Sup. Ct. 862, 46 L. Ed. 1229,- where the insurance was issued to “Peter Hagan & Co. for account of whom it may_ concern.” But in this case the beneficiaries are named, and the implication is that there are no other beneficiaries. The only reason for naming the trustees is that they held the legal title; but the insurance is not merely of the legal title, but of the entire ownership. The case is not different than it would have been if no trustee had been named and the insurance had been in favor of the beneficiaries only. We are of the opinion therefore that it was error to sustain the demurrer.
It is suggested that the error was harmless, since the evidence discloses that the trustees had no enforceable contract against Bates, and that therefore he was merely an optionee. The defendant need not have introduced any evidence of ownership after its pleas were overruled. However, the evidence which was offered is sufficient to support the inference that Bates had an enforceable interest. He was in possession and took an active part in procuring the purchase of the property by the trustees, who actually transferred whatever title they had to him. What was actually done is persuasive evidence of what the parties had agreed to do. The evidence also indicated that Mrs. Bates had an interest. The trustees obligated themselves in writing to pay back her contribution of $5,000 after all their other indebtedness had been paid.
On the whole, the evidence shows that there were two trust agreements, one in writing, for the benefit of some of those who advanced parts of the purchase price, and the other oral, by which the title was held in trust for Bates. It is not essential in Florida that an express trust of personal property be evidenced by a written instrument. Such a trust may be proved wholly or in part by oral agreement. Bay Biscayne Co. v. Baile, 73 Fla. 1120, 75 South. 860. We are therefore of opinion that the error was not harmless.
On the face of the policies it does not appear that the defendant waived or is estopped to invoke the requirement of unconditional and sole ownership. If it shall appear from the evidence on another trial that the plaintiffs were the unconditional and sole owners, then they would be entitled to recover from the defendant its proportionate share of the amount stated in the adjuster’s agreement. If, on the other hand, the plaintiffs are shown not to have been the unconditional' and sole owners, and if it also appears that defendant has waived or is es- • topped to rely upon this clause regarding unconditional and sole ownership, then the plaintiffs may recover the amount of their actual loss, not exceeding the maximum amount of defendant’s liability under the pol[261]*261icies; for'the insurance policies are only contracts of indemnity. Imperial Fire Insurance Co. v. Coos County, 151 U. S. 452, 14 Sup. Ct. 379, 38 L. Ed. 231. The adjuster’s agreement cannot by any possibility be construed to mean that the insurance company would pay to those having an insurable interest less than the whole interest more than the loss they actually sustained. It follows that in our opinion the court erred in sustaining the demurrer and in withdrawing from the consideration of the jury evidence of the amounts due by the plaintiff trustees under the trust agreement.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.