Page:Federal Reporter, 1st Series, Volume 4.djvu/771

 PUTNAM ». COMMONWBALTH INS. CO. 757 �S. Putnam gave an orcler for $2,000 insurance on the goods. Carr says that he issued the two policies for $1,000 each, and delivered them to Putnam. He adds : "I don't remember any- thing being said as to the amount of other insurance at that time." Carr further says that \vhen the policy in suit was issued he asked Putnam "how much other insurance he had; he said $2,000 with one agent named Symonds, and $1,000 with Hoyt & Butler, and I wrcte the policy aocordingly, " The fact ■was that there was one poliey of $1,000 with Hoyt & Butler and two policies of $2,500 each with Symonds, and that Carr, instead of writing the $3,000 in the $2,000 policy for the first time, had written it before in the $1,000 poliey. Carr further says : "I consented to the amount of insurance. He did not at that time, or at any other time, inform me that he had $6,000 insurance; nothing of the kind was said. I did not say, on his telling me that he had $6,000 insurance, that I would give him $2,000 more; nothing of the kind. What I have testified to is ail that was said." "I did not know that Putnam had $6,000 other insurance. I first knew that fact after the fire." On his cross-examination Carr says : "When these first two policies were issued I do not remember cer- tainly whether anything was said as to the amount of the insurance. Mr. Putnam did not say in the second conversa^ tion that he had one policy with Hoyt & Butler and two with Symonds; no such thing. He said he had $2,000 with Mr. Symonds. This was previous to the second policy having been delivered." In rebuttal Putnam says: "I did not say to Mr. Carr, at the time the two policies were surrendered and the one in suit given, that I had $1,000 with Hoyt & Butler and $2,000 with Symonds; did not say that at any time." �It is a well-settled rule that the report of a referee as to the facts is, like the verdict of a jury, conclusive, as a gen- erai rule, in a case of conflict of evidence, and is, like such verdict, to be set aside only where the finding of fact ia clearly against the weight of evidence. There is here one witness un each side. The burden is on the defendant to set aside the finding of the referee. The referee had the wit- nesses before him. On the part of the defendant it is urged ����