dissenting. Conceding that the policy was in force as secondary insurance on May 7, 1917, and that it was a liability assumed by the Pittsburgh Company, it is my opinion that the Metropolitan Company, under the terms of its contract with the receiver of the Pittsburgh Company, did not assume that liability. It is clearly stated and reiterated again and again in the contract that the Metropolitan Company assumes only those policies of insurance and-annuity contracts of the Pittsburgh Company in force on May 7, 1917, where the owners and holders thereof consent to such assumption, and agree Ihcd the Metropolitan Company may place against his or her policy a lien equal to SS-l/S per cent, of the legal reserve thereon. It is further plainly stated in the contract that the Metropolitan Company assumes only those policies on account of which assets of the Pittsburgh Company are transferred to the Metropolitan Company. The contract of assumption is not ambiguous, and the foregoing construction of it is -the only reasonable and legal one possible. And since the undisputed evidence shows that the owner of the policy in this case never consented to its assumption by the defendant company, and that no assets of the Pittsburgh Company tvere transferred to the defendant company on account of the policy, it is apparent that the policy ivas not among those assumed by the Metropolitan Company. This proposition is so plain that citation of authorities is unnecessary.
It is true that the insured could not consent to the assumption, because he had no notice and knew nothing of the contract between the receiver and the defendant company; and the defendant could *308not give him notice because his name was not on the books of the Pittsburgh Companjq and the defendant company did not know that such a policy existed. But, regardless of the reason for the insured not consenting, the fact remains that the Metropolitan Company assumed liability only on those policies where the owners consented to the assumption; and the assured in the instant case did not so consent. The business of the Union Company (which wrote the policy) was taken over by the Security Company, then by the Pittsburgh Company, then by the receiver, and then by the Metropolitan Company. Since it is agreed that the instant policy was not on the books of the Pittsburgh Company, and that the Pittsburgh Company took over the business of the Security Company, it is probable that the Security Company did not list the instant policy as a policy in force when it turned over its business to the Pittsburgh Company in September, 1906. Since the premium on the policy was approximately seventeen months past due, the Security Company probably considered that the policy was void, and for this reason did not list it as a policy in force. Conceding that the Security Company should have listed it because of the secondary insurance provided for therein, the Metropolitan Company, under its contract with the receiver of the Pittsburgh Company, can not be held responsible for that error; and however unfortunate it may be for the insured, the Metropolitan Company had no knowledge of the existence of such a policy, and could not notify the insured and obtain his consent to its assumption of his policy. And without that consent, and without the transfer of assets on account of the policy, there was .no assumption of the policy by the defendant company. The court erred in rendering judgment for the plaintiff.