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obligation to account to the defendants for the price at which they might be sold, less one-half of the profits in excess of the invoice price, and if not sold, he was to return the specific articles to the defendants free of expense. This agreement to return the goods, in the event they should not be sold, it is urged, imposed upon him the risk of their destruction before he had an opportunity to sell or dispose of them under or in accordance with the terms of the consignment. We cannot accede to the correctness of this proposition. The destruction of the goods, without fault or negligence on his part, terminated his obligation to make either a return thereof, or pay for their loss. Such a liability could only be imposed upon him by a contract clearly expressing his assumption of the risk of destruction, or his liability for the loss.

In the case of Hunt v. Wyman, 100 Mass. 198, the bailee was to return the property (a horse) in as good condition as he received it by a designated time. The property was so injured without fault on his part that it could not be returned within the time agreed upon, and no attempt was made to return it; still it was held that he was not responsible for the property. The court said: "A mere failure to return the horse within the time agreed may be a breach of contract, upon which the plaintiff is entitled to an appropriate remedy; but has no such legal effect as to convert the bailment into a sale. It might be an evidence of a determination by the defendant of his option to purchase. But it would be only evidence. In this case the accident to the horse, before an opportunity was had for trial in order to determine the option, deprives it of all force, even as evidence."

In Walker v. Butterick, 105 Mass. 237, the following contract was presented:

"BOSTON, November 25th, 1868.

"Alexander & Company of the first part are to take goods from Walker & Company of the second part, and to return to them, the said Walker & Company, every thirty days, the amount of sales, at the prices charged by the said Walker & Company, who will furnish Alexander & Company all goods

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in their line. Alexander & Company are worth in real estate and money $5000, of which they hereby certify.

"We agree to the conditions of the within instrument.

It appears that some months after the date of this contract, Alexander & Co. absconded, and one of their creditors levied upon goods which had been furnished by Walker & Co. The court held that the contract under which Walker & Co. claimed title to the goods levied upon, imported a consignment of the goods for sale, and not a sale of them by Walker & Co. to Alexander & Co., so that the title remained in Walker & Co.

In Middleton v. Stone, 111 Penn. St. 589, A delivered to B two colts, under a contract that B should safely keep and sell them, if possible, before a certain date for A, he fixing a minimum price to be received by him, and in addition thereto onehalf of all money obtained above that price to the extent of $25; and, if not sold, to return the animals in good condition. Held, that this was not a sale but a bailment, and it was error, therefore, to overrule the offer of B to show that the colts. were sick when they were delivered to him; that one of them died, and that he then offered to return the other to A, who refused to receive it. It was held that the horses were at the risk of A.

It is next urged, on behalf of the defendants, that the taking of the insurance in the name of complainant was a recognition of his responsibility for the loss of the goods, and that the policies of insurance were turned over to them to secure this liability of the complainant. This position cannot be sustained, for the reason that defendants, through their partner, Funke, directed that all the insurance should be taken out together in the name of Sturm; and also instructed the insurance broker to select for them the policies which they wished appropriated to secure their interest. The act of taking out the insurance, in the manner in which it was done, was their act as much as it was the act of Sturm, and the in

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surance having been thus effected in no way tends to establish the contention that it was a recognition of Sturm's liability for the loss of the goods.

It is not material to determine whether the complainant ever endorsed and transferred these four policies to the defendants, or, if so, whether it was done at the time of their delivery or subsequently, for no such assignment or transfer thereof was necessary to have enabled the defendants to recover on the policies for the loss of cargo to the extent of their interest in the same, it being well settled that under a policy running to Sturm, "for account of whom it might concern," the defendants could show and recover their interest, in the event of loss. It was so ruled by this court in Hooper v. Robinson, 98 U. S. 528, where it was said that "a policy upon a cargo in the name of A, 'on account of whom it may concern,' or with other equivalent terms, will inure to the interest of the party for whom it was intended by A, provided he, at the time of effecting the insurance, had the requisite authority from such party, or the latter subsequently adopted it."

In the present case, Sturm had the requisite authority of the defendants to make the insurance on the consigned goods, as was testified to by the insurance broker, and as shown in their letter of September 18, 1867, in which they say: "As you have insured these goods, as well as other merchandise, we should be pleased to have the amount of $40,000 transferred to us." It is clear that the insurance to the extent of $40,000 was intended to cover the interest of the defendants in the consignment of September 18, 1867, and, in the absence of any delivery or transfer of policies representing that interest, this could have been shown by them so as to entitle them to the benefits of such insurance.

It is next urged, and the court below seems to have taken the same view of the matter, that the complainant is estopped from denying his responsibility for the loss of the goods, because of alleged statements made by him as a witness in the suits upon the insurance policies. It is claimed that in those suits he testified under oath that he was the owner of the goods, and thereby precluded himself from asserting anything

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to the contrary in this case, under the wise and salutary doctrine which binds a party to his judicial declarations, and forbids him from subsequently contradicting his statements thus made. We do not controvert the soundness of this general rule as laid down in the cases cited by the defendants. Dent v. Ferguson, 132 U. S. 50; Creath's Administrators v. Sims, 5 How. 192; Wheeler v. Sage, 1 Wall. 518; Selz v. Unna, 6 Wall. 327; Kitchen v. Rayburn, 19 Wall. 254; Bartle v. Coleman, 4 Pet. 184; Sample v. Barnes, 4 How. 70; Hanauer v. Woodruff, 15 Wall. 439; Higgins v. McCrea, 116 U. S. 671; Cragin v. Powell, 128 U. S. 691; Prince Mfg. Co. v. Prince Metallic Paint Co., 135 N. Y. 24; Stephens v. Robinson, 2 Cr. & Jer. 209; Ilarmer v. Westmacott, 6 Sim. 284; De Metton v. De Mello, 12 East, 234; Post v. Marsh, 16 Ch. D. 395; In re Great Berlin Steamboat Co., 26 Ch. D. 616. But the question here is whether the statements made by the complainant in the insurance suits bring him within the operation of this wholesome rule? We think not, for it would be pressing his language too far to hold that he made any positive statement to the effect that he was the absolute owner of the goods, or that he admitted as a matter of fact, rather than of opinion, that he was responsible for their loss. What he did state, when his testimony is read as a whole, was that he was the owner on consignment, for when the direct question was put to him, "What do you mean by being the owner for the time being?" his reply was, "That they were delivered to me by Hermann Boker & Company under that agreement, and I was responsible for those goods until they were returned, or until I delivered the money to them. This is what I mean." And in reply to another question, he stated that "the terms on which I was the owner were expressed in the papers I furnished," referring to the letters of September 18 and October 24, 1867.

And to the further question whether he understood that those contracts made the goods his property, his answer was, "I understood so at the time, certainly, and I believe so yet."1

1 In the trial of the Great Western case, Sturm's complaint therein was placed in his hands, and he was asked whether he knew it contained this

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This language did not mislead or induce either the defendants or the insurance companies to alter or change their posi

clause," that at the time said policy was so effected, and all the time down to the said loss, the plaintiff was the owner of said cargo?" and he answered, "Yes, sir."

"Question. Was that true?

"Answer. Yes, sir.

"Q. Was it true in respect to the goods consigned to you by H. B. & Co.?

"A. Yes, sir."

Asked in the present case whether he so answered in the Great Western case, he answered:

"A. Those questions were put to me and I answered them in that way, and at the time, by advice of counsel, I was correct."

In the same case he was questioned and made answer as follows, referring to the Boker goods:

"Q. When did you become the owner of them?

"A. I had the whole responsibility.

"Q. When did you become the owner of the goods?

"A. The moment they were delivered on board the Keese."

In the same case he was questioned and made answer as follows:

"Q. What do you mean by being the owner for the time being? "A. They were delivered to me by H. B. & Co. under that agreement, and I was responsible for those goods until they were returned or until I had delivered the money to them. That is what I mean."

Sturm in 1876, in the trial of the case of Funke v. The New York Mutual, referring to the Boker goods, was questioned and made answer as follows: "Q. Was this entire cargo your property?

A. I was responsible for the whole of it—in the event of loss I had to pay for it.

Q. That is not an answer to my question.

"A. At the time I signed that paper — (paper referred to was his complaint against the Lloyds).

"Q. Was it true, as you swore in those pleadings, that these goods were all your property?

"A. Yes, I believed that the whole of that property was mine at that time.

"Q. Were the Boker goods yours which were consigned to you?

A. That is true; the terms on which I was the owner were expressed in the papers I furnished.

"Q. Do you understand that that made them your property?— Did you understand that these letters made these consigned goods your property? "A. I understood so at the time, certainly, and I believe so yet."

On page 503, Sturm's attention was called to his testimony in this same case where he testified in 1876 as follows, referring to the September consignment from Funke: