text:
    Hosie versus Gray. Same versus Same.
    1. Where recognisance of bail in error is defectively taken in the court below, the prothonotary of the Supreme Court may correct it by taking a new recognisance in the form prescribed by the Act of Assembly.
    2. Where the proceedings were by scire facias on a mortgage, the amount of bail need not be in double the amount of the verdict, but in a sum sufficient to cover the costs.
    Error to the Court of Common Pleas of Sehuyllcill county: No. 290, to January Term 1871.
    This was a question under a recognisance of bail in error in the case of Hosie v. Gray, reported in 21 P. F. Smith 198. It was heard, February 21st 1871, before J. Ross Snowden, LL.D., the prothonotary of the Supreme Court for the Eastern District, upon exceptions to the recognisances, and is here reported at the request of members of the bar as deciding an interesting question of practice.
    The report has been prepared by Mr. Snowden.

      Cf. B. Barquhar, for plaintiffs in error,
    cited Wickersham v. Fetrow, 5 Barr 260.

      Gr. I)e B. Keim, for defendants in error.
    The Prothonotary filed the following opinion:—
    The exceptions in these cases are of a twofold character. 1st, As to the form of the recognisances which are alleged to be defective; 2d, As to the sum named in the recognisances which exceptants contend should be in double the amounts of the verdicts and judgments in the court below.
    1. On an examination of the. recognisances taken by the prothonotary of the court below, I find that they are not in the precise form prescribed by the Act of Assembly; but as the plaintiffs in error propose to correct the mistake by entering into new recognisances before me in the form prescribed by law, I will allow the same to be done.
    2. The proceedings in the court below were founded on mortgages, and were commenced by writs of scire facias. The proceedings are in rem and not in personam. Moreover, in the mortgages there is an express agreement between the parties that there shall be no personal liability on the part of the' mortgagors, and that “ the lien and collection of the purchase-money shall be ‘limited and restricted to the property covered by and included in the mortgages.” The property therein mentioned must be responsive to the judgments. I am therefore of opinion that the recognisances need not be in sums double the amount of the money judgments, but only in sums sufficient to pay the costs which may accrue, or be adjudged as accruing in these cases; and for this responsibility I deem the sum of $200 amply sufficient. I have therefore permitted recognisances in the form prescribed by law (sect.'7, Act of June 16th 1836, Pamph. L. 762), to be entered intp, with sureties who have justified before me in each case in the sum above named.
    February 21st 1871. On motion of L. Hakes and Gf. Be . B. Heim, Esqs., for defendants in error, a rule was granted on plaintiff in error to show cause why the bail in the recognisances in these cases, should not be increased so as to conform to the Act of Assembly and the rules of the Supreme Court, or in default thereof that the said defendants in error may issue an alias levari facias. Rule returnable March 11th 1871.
    March 11th 1871.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Sur motion to increase bail in error, argued by L. Hakes and Hon. Gf. W. Woodward, for the rule; and by Gfeo. H. Farquhar and Hon. F. W. Hughes, contó.
   Per Curiam.

The motion is refused, and the decision of the prothonotary sustained.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Pennsylvania Railroad Co. versus Beale.
    1. The approach by a public road crossing a railroad was particularly dangerous, because the railroad from natural and other obstructions could not be seen nor the whistle heard. The deceased in approaching the railroad did not stop to listen, &c.; in crossing the railroad he was killed by the locomotive. Held, that the deceased was guilty of negligence and his family could not recover damages for his death. *
    2. The duty of the traveller to stop is more obligatory when an approaching train cannot be seen, &c., than when it can.
    3. If the traveller cannot see the track by looking out from his carriage, he should get out and lead his horse.
    4. The failure to stop immediately before crossing a railroad track is negligence .per se, and this is for the court. The rule is unbending.
    5. Hanover R. R. v. Coyle, 5 P. F. Smith 396; N. Penna. R. R. v. Heileman, 13 Wright 60, approved.
    May 24th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Juniata county: No. 22, to May Term 1873.
    This was an action on the case brought to December Term 1871, by Elizabeth Beale, widow and others, children of Thomas Beale, deceased. It was to recover damages for the death of Thomas Beale, occasioned as the plaintiffs alleged, by the negligence of the defendants.
    The cause was tried September 3d 1872, before Bucher, P. J., of the Twentieth District.
    On the 2d of September 1871, the deceased was driving with his son in a “spring wagon,” near the borough of Patterson, in Juniata county; the road on which he was travelling crossed the Pennsylvania Eailroad at right angles at the east end of the borough; in passing over the railroad, the carriage of the deceased was struck by the locomotive engine of the fast line going east, and he was killed.
    The single question considered in the Supreme Court, was as to the concurrent negligence of the deceased.
    James Beale, son of the deceased, testified: “We left home early, in a spring-wagon.' I drove. We came down the hill on a very slow walk, so that we could hear if any trains were coming. When we came to opposite the cave we stopped almost a dead stop. We both listened, and we could hear no train. Father told me to go on. We went on, and could see nothing until we got on to the track that the train was to go down on. Just as we got on the track we both looked up and saw the train. He told me to hit the horse a cut quick and go on. Just as I raised the whip the train struck the wagon, and that is the last I remember. Could not see up the road on account of the trains and the fog. There is a turn just above the cave. The hill is just above the cave. I did not measure from the cave to railroad. We did not stop entirely. Neither of us got out and went to the railroad. I was driving. The hill obstructs the view from the cave, so we could not see the railroad except right straight before us. The first time after we left the cave and looked up the track, was right when we were on the track and train was coming. Then I was alarmed and did not see much else. We did not drive from cave to the track on a trot. When he saw the cars he told me to give the horse a cut. I did so, and the horse jumped forward on the track. Just then the train struck, and that is all I know. Could not see up the track till I got on it.”
    George W. Jacobs testified: “ Am acquainted with the crossing. In approaching it from the west we first come in sight of it seventy yards from south siding. From this point can see only a few steps up the road above crossing — that is, when the track is clear. At thirty-five yards from rail on south siding can see about seven yards above crossing, except through a small opening between the high bank extending along railroad and the watch-box. Through this can see fifteen yards above crossing. At sixteen yards from same track can see ten yards above crossing, past south end of watch-box, and twenty yards up through the opening before mentioned. At ten yards from south crossing can see up the track eighteen yards on down track, and about eighteen yards to the small aperture at watch-box. At seven yards from same crossing can see above crossing twenty-eight yards on east track. At three yards from same track cannot see up to the curve at upper end of Patterson on account of wood-shed covering the view. Wood-shed now removed. Can’t say liow far I could see up from three yards point. • From the crossing on railroad I could see up to curve — about five hundred yards. If cars are on south siding you would have to pass it to see up the track. I have tested that. I measured distance from crossing to tool-house; it is fourteen hundred feet. Standing in the road near the cave, nothing can be seen but the hill. There is a space of about ten feet from foot of bluff between it and watch-box. I could not see up through that space west along the track if there was a train on the south siding, unless I could see between the cars. I am not prepared to say whether, if sitting in open wagon on this open space and looking west towards the Patterson House, I could see stack of locomotive coming east. I don’t think I ever- did stand on level ground between track and bluff and look west to see cars coming.”
    There was evidence in. the case bearing on the questions of negligence by the deceased and by the defendants ; what has been given, with the charge of the court below and the opinion of the Supreme Court, will sufficiently present the case.
    The plaintiffs’ second point which was affirmed, was:—
    “ It is not the duty of one lawfully attempting to cross a railroad to stop and look both ways and listen for approaching trains, where, by reason of the nature of the ground and permanent or temporary obstructions and noises by the railroad company, the approach of trains to the crossing could not be discovered in time to avoid danger by stopping, looking and listening.”
    The defendants’ 'points which were denied, were:—
    1. Before there can be a recovery in this case, the plaintiffs must show that Thomas Beale stopped before he reached the track and looked along the same and saw no approaching train; and, as there is no evidence whatever to sustain a finding that he so stopped, it is in law negligence on his part, and the verdict must be for the defendant.
    2. As the uncontradicted evidence in the case shows that Beale did not stop before driving on the track, the verdict must be for the defendant.
    3. Beale was bound, as every man crossing a railroad, in ordinary prudence, is bound, to look in all directions in which trains may approach, and to pause until he found he could cross with safety; and, as the evidence here shows he did not do so, there can be no recovery, and the court is requested to give binding instruction to that effect to the jury.
    4. Upon the whole evidence of this cause the law of the case is with the defendant, and the plaintiffs cannot recover.
    Judge Bucher having spoken of the evidence and law as bearing upon the question of the defendants’ negligence, said:—
    “ The second question, then, is, was the deceased guilty of any negligence or carelessness that in any manner contributed to his death ? If he was, there is an end of the case, and the plaintiffs cannot recover; for then he was not injured by the defendant, but the accident would be laid to the door of the deceased, and would be his own misfortune or fault. The duty of a traveller, in passing along a public road or highway where the same crosses or intersects a railroad, has been declared by the Supreme Court in numerous decisions. It has been held that it is the duty of one lawfully attempting to cross a railroad, to stop and look both ways, and listen for approaching trains, before he ventures upon the track, and that the omission to do this is negligence. Did the deceased do that in this case ? The only evidence in the cause bearing upon this point, as to how the deceased approached the crossing, that I remember of, is the evidence of James Beale, the boy who was with the deceased at the time of the accident. He testified as follows:— * * *
    “From this evidence it is manifest, that deceased did not come to a full or complete stop, and, although he listened for the approach of cars whilst he was slowly going in the direction of the crossing, yet he did not look for any approaching train, save immediately in front and in the direction he was travelling. You will remember, the proof is, there was a high bluff or hill that intercepted or shut out the view of the cars in approaching the crossing from the west, at the cave, the point where the deceased slackened the pace of his horse and listened. This point was about seventy-five feet from the track. It is manifest, that if deceased had looked from this point for a train approaching the crossing, that it would have done him no good, for the bluff or hill obscured it from view. Whilst the law is fixed and settled, that it is the duty of the traveller, in crossing a railroad along a highway, to stop, look and listen before he goes upon the track, yet we do not understand the rule to be of such universal application as to control a case where stopping, listening and looking would have been in vain. The law does not demand vain and impossible things. Cases of this kind must necessarily rest upon the peculiar facts and circumstances. If you are satisfied, from the evidence, that there was any point along the public road upon which deceased was travelling, before he struck the railroad, from which he could have seen or heard the approach of this train, if he had stopped, looked and listened, we instruct you that it was his imperative duty to do so, and if he did not so stop, look and listen, there can be no recovery. On this branch of the case, then, to wit, the negligence of the deceased, we submit to you this question : Was there any point along the highway, upon which deceased was travelling, from which, if he had stopped, looked and listened, he might have heard or seen the approach of the train. If there was, there is an end of the case, and plaintiffs cannot recover ; for it was the manifest duty of the deceased to stop, look and listen before he went upon the track, if the ground and situation of the place allowed him to do so. The evidence is uncontradicted, that there was a level space of ground, about ten feet wide, between the hill or bluff and the first track or siding, on the approach to the track from the valley, upon which deceased was travelling. It was the plain duty of the deceased to have stopped there, and to have looked and listened for the approach of the train, if you find, from the evidence, that the approach of the train might have been seen or heard from there. Now, how is this ? Plaintiffs contend that deceased could not have seen or heard the train from this point, if he had stopped, looked and listened. This the defendant denies. The plaintiffs have called witnesses who have described the situation on the morning of the accident, and who state that the train could not have been seen or heard from this point, and the defendant has called witnesses to prove the opposite. You will bear in mind all the evidence upon this point upon the one side and the other — that of Mr. Jacobs and others for plaintiffs, and Mr. Black and others for defendant. Are you satisfied, from all the evidence in the cause, that the deceased, in approaching the crossing, acted as a prudent and careful man would have done under all the circumstances? It is conceded that the crossing was a dangerous one. The effect of this was to quielcen the diligence of both parties to avoid doing injury to each other. If you find that deceased did all a prudent, careful man could do, under all the circumstances, to inform himself of the whereabouts of the train before going upon the track, then he would not be guilty of negligence in going upon, the same, and your verdict should be for the plaintiffs, provided you find the defendant was guilty of negligence.” * * *
    The verdict was for the plaintiffs for $1000.
    The defendants sued out a writ of error. They assigned for error the denial of their points, the affirmance of the plaintiffs’ second point and the charge of the court.

      L. W. Hall (with whom was JE. J. Doty), for plaintiffs in error.
    A traveller crossing a railroad must stop and look up and down, because the presumption is that a train may be approaching : Penna. Canal Co. v. Bentley, 16 P. F. Smith 30. Where, as in this case, the negligence of the deceased is clear, the court should so determine as matter of law: Pittsburg & C. R. R. v. McClurg, 6 P. F. Smith 294; West Chester & Ph. R. R. v. McElwee, 17 Id. 311; Catawissa R. R. v. Armstrong, 2 Id. 286; Pennsa. R. R. v. Ogier, 11 Casey 71. Not looking for a train is an entire failure of performance of duty’: Penna. R. R. v. Heileman, 13 Wright 64; Hanover R. R. v. Coyle, 5 P. F. Smith 396; Reeves v. Del., L. & W. R. R., 6 Casey 464.

      J. W. Parker and P: P. Parker, for defendants in error.
    The obstructions to vision and hearing being such as that the stopping of the deceased would have been of no avail, there was no obligation on him to do so ; the question of negligence was for the jury : Philada. & Trenton R. R. Co. v. Hagan, 11 Wright 244; Hanover R. R. Co. v. Coyle, 5 P. F. Smith 396; Pa. R. R. Co. v. Goodman, 12 Id. 329; West Chester & Philada. R. R. Co. v. McElwee, 17 Id. 311.
   The opinion of the court was delivered, July 2d 1873, by

Sharswood, J.

The evidence of the plaintiffs below showed a clear case of contributory negligence in the deceased. The crossing at which he met with the injury which resulted in his death, was a dangerous one, and as he was well acquainted with it, there was the greater reason that he should exercise the utmost care and caution, by stopping at the railroad before undertaking to pass over. It is very clear that if he had done so but for a few minutes the accident would not have happened. “This evidence,” said the learned judge in his charge, “is uncontradicted, that there was a level piece of ground, about ten feet wide, between the hill or bluff and the first track or siding on the approach to the track from the valley upon which the deceased was travelling.” It was his plain duty to have stopped at that place, and so the learned judge instructed the jury, but he qualified this instruction by adding, “if you find from the evidence that the approach of the train might have been seen or heard from there. This in fact left the question of negligence to the jury, upon a point not material. Indeed, the duty of stopping is more manifest when an approaching train cannot be seen or heard than where it can. If the view of a track is unobstructed, and no train is near or heard approaching, it might, perhaps, be asked, why stop ? In such a case there is no danger, of collision — none takes place — and the sooner the traveller is across the track the better. But the fact of collision shows the necessity there was of stopping; and therefore in every case of collision the rule must be an unbending one. If the traveller cannot s.ee the track by looking out, whether from fog or other cause, he should get out, and if necessary lead his horse and wagon. A prudent and careful man would always do this at such a place. In The Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, the plaintiff, a pedlar, in the depth of winter, was driving inside of his covered wTagon, with his head muffled up in a thick overcoat, and it appeared that a traveller passing in the direction he was going could not see up and down the track until within sixteen feet of it. Yet these circumstances were not allowed to form any excuse for his negligence in omitting to stop. There never was a more important principle settled than that the fact of the failure to stop immediately before crossing a railroad track, is not merely evidence of negligence for the jury, but negligence per se, and a question for the court: North Pennsylvania Railroad Co. v. Heileman, 13 Wright 60. It was important not so much to railroad companies as to the travelling public. Collisions of this character have often resulted in the loss of hundreds of valuable lives, of passengers on trains, and they will do so again, if travellers crossing railroads are not taught their simple duty, not to themselves only but to others. The error of submitting the question to the jury whether if the deceased had stopped, he could have seen or heard the approaching train, runs through the entire charge and answers of the learned judge below. He should upon the uncontradicted evidence have directed a verdict for the defendants.

Judgment reversed.

Williams and Mercur, JJ., dissented.


author: Mercur, J.

text:
    The Imperial Fire Insurance Co. versus Murray et al.

    1. Where a party-applying for insurance, without fraud, made an inaccurate representation (not a warranty), which he believed to be true, this would not defeat his action on the policy.
    2. An insurance was effected on a coal-breaker, &c., by the lessee of a colliery, being the “ working interestthe lessee having the right to renew his lease, and being bound to return the property in good order at the end of the lease. The slope fell in and afterwards the breaker, &c., were burned. The insured could-recover the value of the property although by the falling in of the slope his working interest was of less value than the amount insured.
    3. The insurable interest of the lessee was the value of the property which he was bound to replace.
    January 27th 1873.
    Before Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Writs of error to the Court of Common Pleas of Columbia county: Of September Term 1872, No. 2 and 5.
    The cases in which these writs of error were taken, were tried together in the court below, and heard together on error in the Supreme Court.
    Both actions were brought to September Term 1870 of the court below, by William Murray, Richard. Winlack and Walter Randall, trading as Murray, Winlack & Randall, on two policies of insurance: the first against The Imperial Eire Insurance Company; the second against The North British and Mercantile Insurance Company. They were tried June 13th 1871, before Elwell, P. J.

      Each policy was dated September 18th 1869, for “ $2500 on frame coal-breaker structure, schutes, plane, trestling, engine and boiler-house, and all wood work connected ; $2500 on breaker engine, rollers, screens, belts, plates, pulleys, shafting and all connected machinery contained in breaker structure, situate in Locust Mountain, in Conyngham township, Columbia county. This to insure all their working interest. Rate 3 per cent.; premium $150 ; term one year from September 17th 1869. Also another policy of $5000.” The foregoing was written in the blank of the printed policy.
    Richard Winlack, one of the plaintiffs, testified: “ Mr. Silly-man represented the defendants, and came to me to get the insurances; the office was in Pottsville; E. E. Bodey represented both companies; the fire occurred January 19th 1870, in the night; I didn’t know it till the 20th, and on the morning of the 21st I went up to the breaker; on the same day I notified Mr. Bodey; I told him the property was destroyed, and he should notify his companies at once; he said he would; I took the notices to Mr. Bodey, he read them over, and said ‘ The papers are all right.’ This was the date of first paper; I executed the paper in duplicate, one copy to Mr. Bodey, and one to be forwarded to the company. About sixty days after the first, I received a letter from Mr. Bodey. I took the letter to Mr. Kaercher, and he and I went to Mr. Bodey, to see what papers in addition he wanted; he gave a memorandum of what he wanted; the papers were made out, and I took them to Mr. Bodey, and he said he would forward them to the company the same day. Duplicates were mailed to the company the same day. The first notice was a verbal notice; the first written notice was on January 24th 1870 ; gave no other notice until March; Bodey requested that the notice of March be given; he said the papers were all right; he told me he was agent for both companies to effect insurances. I made my application to Bodey, and got the policies; they were handed to me by Mr. Sillyman; I had nothing direct to do with Bodey in effecting the insurances.”
    The following letters were given in evidence by the plaintiffs:—
    “Pottsville, January,25th 1870.
    “ Imperial Eire Insurance Company of London; Office No. 40
    Pine street, New York.
    “ E. M. Archibald, Esq.
    “ Dear Sir: — Please, find enclosed ;a copy of the notice and proof of loss this day served upon the agent of the company, E. E. Bodey, by the insured, Messrs. Murray, Winlack & Randall, with instructions to forward the same to the company. Should any further notice or proof be required the insured will cheerfully furnish the same if desired by the company. Please acknowledge receipt of this and enclosure and oblige
    “ Yours respectfully,
    “ Geo. R. Kaercher,
    “ Att’y for Murray, Winlack & Randall.”
    A letter precisely similar was addressed to the New York agent of the North British and Mercantile Insurance Company.
    “Pottsville, Pa., March 15th 1870.
    “ Messrs. Murray, Winlack & Randall:
    “ Gentlemen: — Your papers purporting to be proofs of loss under policy No. 36 in the Imperial Eire Insurance Company of London, and No. 506 in the North British and Mercantile Insurance Company, are entirely incorrect and insufficient, and are not in pursuance of your policies, and are not in accordance with the conditions thereof. We call your attention to said policies, and to the printed conditions in relation to loss, &c. Until you comply with such conditions in this respect I can give you no answer as to what our course of action will be. Yours truly,
    “ E. E. Bodey,
    “ Agent for N. Bt. Mercantile and Imp. Eire Ins. Cos.”
    “Pottsville, March 19th 1870.
    “Bear Sir: — We have this day furnished Mr. E. E. Bodey, agent of the company at Pottsville, additional information concerning our loss by fire of our working interest insured under policy No. 506, with directions to forward the same to the company. It was only yesterday that we ascertained, through Mr. Bodey’s letter to us, that the company desired any further information to determine ‘ its course of action,’ though we signified our willingness to comply with any requirements the company might desire, in our communication of January 25th 1870; besides, the same statement was made to Mr. Bodey, the agent, at the time the proofs were handed to him, when he, after examination of them, replied that they were sufficient and correct. Hoping that in justice to all parties concerned the company will speedily determine upon its course of action, we are very respectfully,
    Murray, Winlack & Randall.”
    Addressed to each of the New York agents.
    Conrad Sillyman testified: “ I was canvasser for insurance for Mr. Bodey; he was agent for the companies; I procured Murray, Winlack & Randall necessary papers; they were executed by Bodey; he filled the policies; the applications were filed in his office; kept them as references; were not sent abroad as I know of; Bodey paid the losses when they occurred, but not in this case.”
    Richard Winlack further testified: “ I called with Mr. Kaercher on Mr. Bodey, before tbe first notice, and asked for tbe printed form of the policies, to put it in the notice; he said it was not necessary to put it in only the written portion of the policies, and after they were made out showed them to Bodey. He said they were al'1 right.”
    The plaintiffs, under objection and exception, gave in evidence the following written notices, being those referred to in the testimony of Richard Winlack.
    The notice was addressed to each of the insurance companies.
    It set out the issuing of the policy in each case to the plaintiffs by the company, “ countersigned by their agent at Pottsville; the written body of said policy, with its immediate context, is as below specified, said insurance terminating on the 17th day of September, A. D. 1870, at 12 o’clock, noon.” * * *
    “ By this policy of insurance the North British and Mercantile Insurance Company, in consideration of the receipt of one hundred and fifty dollars, do insure Murray, Winlack & Randall to the'amount of five thousand dollars, as follows, viz.: $2500 on frame coal-breaker structure, schutes, plane, trestling, engine and boiler-house, and all wood work connected; $2500 on breaker engine, rollers, screens, belts,. plates, pulleys, shafting, and all connected machinery, all contained in breaker structure, situate at the Locust Mountain Colliery, Conyngham township, Columbia county, Penna. This insurance to cover their working interest in the above-insured property. $5000, similar insurance.”
    “That in addition to the amount covered by the above policy there was other insurance made thereon to the amount of $5000, as specified in the accompanying schedule, showing the name of such company and the written portion of said policy, besides which deponents had no insurance thereon. That on the 19th day of January, A. d. 1870, a fire occurred by which the property insured was injured and destroyed to the amount of ten thousand dollars and upwards, which deponents declare to be a faithful and just and true account of their loss as far as they have been able to ascertain the same.
    “ That the actual cash value of the property so insured amounted to the sum of ten thousand dollars and upwards at the time immediately preceding the fire. That the character and nature of the property so destroyed is set forth in the above-mentioned part of said policy.
    “ That the property insured belonged and was leased to said Murray, Winlack & Randall, and that the property above insured, and which was destroyed, was used in the mining and preparation of anthracite coal for market, and for no other purpose whatever.
    “ That the fire originated from causes unknown to deponents, and, after diligent inquiry, they have been unable to ascertain the cause of said fire.

      “ That the amount of their claims against The North British and Mercantile Insurance Company is five thousand dollars each, and the said deponents further declare that the said fire did not originate by any act, design or procurement on their part, or in consequence of any fraud, or evil practice, done, or suffered by them, and nothing has been done by or with their privity or consent, to violate the conditions of insurance, or render void the policy aforesaid.
    Sworn and subscribed before me, the 1 William Murray, 24th day of January A. D. 1870. j R. Winlack.” * * * *

    Accompanying the foregoing was the affidavit of a resident “most contiguous” to the property insured, that he was not interested as creditor, &c., and that he believed the loss sustained by 'the plaintiffs was “$10,000 and upwards.” Also, a schedule of the additional insurance by the other company.
    ■ The notice of March 18th, referred to in Winlaek’s testimony, set out the insurance, the fire, &c., and stated that full proofs of the loss and circumstances of the fire had been furnished to Bodey January 19th 1870, and a copy forwarded to the company; that on the 17th of March the plaintiffs received a letter from Bodey requiring further information, and the nature of such information “having been this day made .known by the said E. Bodey,” the plaintiffs presented additional proofs, viz.: — “ That the real estate upon which the property insured was erected, is owned by the Locust Mountain Coal and Iron Company, that a leasehold estate therein was conveyed by the said company to the Mammoth Vein Consolidated Coal Company, and that the said leasehold estate became vested in W. W. Goddard and O. Ditson, that the interest of O. Ditson became vested in J. W. Draper, and that a sub-lease was made by the said Goddard & Draper to Murray, Winlack & Randall; that the value of the breaker, engines, improvements (their working interest in which was insured) was between thirty-five and forty thousand dollars; that the estate of Goddard & Draper was to continue until December 31st 1874; that the sublease of Murray, Winlack & Randall was to continue until March 31st 1870, with privilege of renewal for one year from that date, in default of which renewal the said Goddard & Draper were to pay to the said Murray, Winlack & Randall the amount expended by them in and upon said breaker, amounting to $7500; that the said improvements and addition to said breaker had been made at the time of said insurance and are part of the property, the working interest therein of which was insured by said policy ; * * * that the whole of the property mentioned in the above policy (worth between $35,000 and $40,000) was destroyed by said fire, and the entire working interest of the said Murray, Winlack & Randall was destroyed; that the actual cash value of the working interest so insured and destroyed amounted to fifteen thousand dollars and upwards at the time immediately preceding the fire; that the amount of the claim of Murray, Winlack & Randall against the Imperial Eire Insurance Company, of London, is five thousand dollars.”
    The plaintiffs gave in evidence lease dated in 1864, from the Locust Mountain Coal and Iron Company to the Mammoth Vein Consolidated Coal Company, by which the lessors granted, &c., to the lessees “ a certain coal breaker, with its appurtenances, situate at the colliery known as the Big Run Colliery, * * * steam-engine, boilers, pumping and' hoisting machinery and apparatus at the slope known as the ‘Mammoth Vein,’ and the house covering said steam-engine, &c.,” and other colliery improvements; the lessors also leased to the lessees “ for a term commencing at the date of this lease, and terminating on the 31st of December 1874, the right, &c., to mine and take away coal as their own property,” in the manner described in the lease, the lessees to pay 25 cents per ton; the lessees to keep the breaker, including the engine and fixtures, insured for not less than $10,000, and the engine-house and machinery therein insured for not less than $5000, the payment, in case of loss, to be made to the lessors ; the breaker and fixtures belonging to lessees to remain on the premises until the end of the term, and be kept in repair by the lessees ; at the end of the term to be valued, and if not taken at the valuation by the lessors to be removed by the lessees.
    Plaintiffs gave in evidence sheriff’s sale November ■ 25th 1867, under an execution against the Mammoth Vein Company of all their leasehold interest, including fixtures, to William W. Goddard and Oliver W. Ditson. Also, lease W. W. Goddard and John W. Draper to Winlack, Murray & Randall, the plaintiffs, dated April 1st 1868, granting and demising the premises held under the foregoing lease, and sold by the sheriff, as above stated, to Goddard & Ditson, the interest of Oliver Ditson in which has since become vested in the said John W. Draper.. Also, the •right to use the machinery, fixtures, &c., erected at the colliery until March 31st 1870; the plaintiffs to pay the rent reserved by the Locust Mountain Company, and an additional rent of 20 cents per ton on coal mined; to keep the covenants, &c., to be kept by the Mammoth Vein Company; to keep the movable personal property in good condition, and deliver the possession to the lessors at the end of the term in good condition, and if it should “be destroyed by accident, or otherwise, to replace the same with others of equal value,” &e., and to keep the improvements, &c., in good order; with right of re-entry by lessors on breach of condition, &c.
    The plaintiffs gave in evidence, under objection and exception, an agreement dated December 9th 1868, between J. W. Draper and plaintiffs, reciting that plaintiffs were working the colliery under an agreement with Goddard & Ditson, and contemplated putting in a steam-pump, and agreeing that plaintiffs should be allowed 15 cents per ton on all coal mined until the pump should be paid for, “ from after the first of January 1869, the cost not to exceed $5000at the end of the agreement with Goddard & Ditson the plaintiffs to have the privilege of removal for one year, “if not so allowed,” then all permanent improvements by the plaintiffs to be paid for by Goddard & Ditson, who were to have the privilege of selling the colliery at any time by paying the plaintiffs for the improvements.
    Plaintiffs gave evidence tending to show that after the. sheriff’s sale Goddard & Draper had the control of the colliery.
    Winlaek testified that Ditson was never at the colliery, and made no claim on plaintiffs; they had always paid rent either to Draper or to an agent of Draper & Goddard. The plaintiffs shipped coal till December 18th 1869; they were not working the pump when the breaker was burned; the slope had caved in when the machinery was burned.
    Plaintiffs gave evidence that the amount expended by them for improvements was $8200.
    Under objection and exception Winlaek testified: “the market value of our working interest at the time of the fire, with the privilege of removal for one year, was between $20,000 and $30,000and that it would have cost not less than $30,000 to restore it as it was before the fire; the breaker at the time of the fire was worth $18,000 or $20,000 ; plaintiffs did not apply for a renewal of the lease; nor was it renewed; they had possession until the time of the fire; had a watchman there and afterwards, until the 1st of April; plaintiffs were sold out by the sheriff; until then they had houses, &c.
    Before the fire the slope had fallen in; it was not opened; it would cost about $5000 to open it; plaintiffs made no effort to open it; it would be useless to open the slope unless they had a breaker; it would not pay to open it for the property in the mines, unless they could get out the coal.
    Plaintiffs gave evidence also of the character and extent of the injury by the falling in of the slope, and of the expense and time necessary to open it.
    The defendants gave in evidence a judgment against the plaintiffs on January 12th 1870, for $3259, in favor of a trustee for wages, under which their personal property was sold for.$2041.75.
    They gave in evidence the deposition. of Draper, in which he said that the plaintiffs gave up the possession in January 1870; that the permanent improvements belonged to the Locust Mountain Company, having been erected before plaintiffs took possession, including breaker and slope, house and ordinary machinery about it. Plaintiffs did not remain in possession until tlie end of tbeir lease; the slope fell in about the last of December 1869, and that destroyed the colliery; deponent gave up the colliery to the Locust Mountain Company; plaintiffs did not ask to renew the lease under its provisions, and gave as reasons for abandoning it, that they could not put in the money necessary to re-open it. “ The working interest in the breaker and fixtures. after the slope fell in, and before it was re-opened, was worth nothing.” The plaintiffs never surrendered the sublease formally, and did not leave possession till the breaker was burned. Winlack said plaintiffs would have to give up the place, if they could not get money to re-open it. The possession plaintiffs had from the time the slope fell in till the fire was a nominal possession, and they had not given up possession,-nor.had Goddard & Draper given it up.
    The defendants gave evidence that it would cost- $10,000 or more to repair the slope, and that it would occupy twelve months to. open it.
    The defendants offered to prove that in the spring of 1870, before the institution of these suits, The Locust Mountain Company took possession of the demised premises ; had continued in possession since; had cancelled the lease to Mammoth Vein Company with the consent of Goddard & Draper, and promised to release all the covenants in the lease, and any right of action thereon. On objection by the plaintiffs the offer was rejected and a bill of exceptions sealed for defendents.
    The evidence was conflicting as to the cost of repairing the slope and also as to the time that it would take to do the work.
    The defendants submitted a number of 'points, which with their answers follow the charge of the court.
    The court charged:— * * *
    [“ By the terms of the policies it was incumbent upon the assured to give immediate notice of the loss.
    “ Was this condition performed ? If not, was it waived by the defendants? Were the particulars of loss and other matters of which the «plaintiffs were required to give notice, furnished to the defendants, or was more full notice waived by them ? If such notice was not given nor waived the plaintiffs .are not entitled to recover.
    “If, however, you believe from the evidence that the fire occurred at night on the 19th of January 1870, and that the plaintiffs did not hear of if till some time the next day, and that on the 21st one of the plaintiffs went to ascertain the extent of the loss, and that on the next day he notified the local agent of the companies, E. E. Bodey, whose name appears upon the policies as such agent, and if on the 24th of January written notices were served upon him, which he pronounced right, duplicates whereof were forwarded to the general offices of the companies, and if proofs of loss were served upon the agent the next day, and if no notice was given to the plaintiffs Or their attorney of any defect in the notices until the 15th day of March, at which time it was complained that the notices were insufficient, and that action would not be taken until they were made correct, and if the plaintiffs then applied to know wherein they were deficient and what further was required, to which no reply was made, the jury may consider such facts in determining whether the defendants waived further notice than that received.
    “ If the agent informed the plaintiffs that the notices were right, and the companies were silent for nearly two months and complained only in general terms, it is some evidence that they did not insist upon an objection that the notice was not in time.
    “ When the insured is desirous to comply with the contract in regard to notice, fairness towards him required that the companies should not mislead him by declaring that his notices were right, and afterwards be allowed to make defence and refuse to pay because they were wrong or not in time, especially if accompanied with an offer to perfect them at any time on notice of a defect.
    “We refer the question of waiver as to time and particulars of loss to your consideration, under the evidence.]
    “ In order to understand the rights of the parties, it is necessary to ascertain what insurable interest the plaintiffs had in the property insured, at the time of effecting these insurances, and at the time of the fire.
    “ On the 1st of June 1869, the Locust Mountain Coal Company executed a lease to the Mammoth Vein Consolidated Coal Company of this coal breaker and other improvements mentioned, together with the colliery, for the term of ten years. By the terms of this lease' the lessee was bound to keep the demised premises insured to the amount of fifteen thousand dollars, and was also bound to pay a yearly rent upon not less than 40,000 tons of coal, and to keep the improvements, machinery, fixtures, &c., in good repair. On the 25th of November 1867, the title of the lessees passed by sheriff’s sale to W. W. Goddard and 0. W. Ditson. On the 1st of April 1868, W. W. Goddard and J. W. Draper executed a lease to the plaintiffs of this property, until the 31st of March 1870, the lessees agreeing to pay as rent certain sums per ton for all coal mined, and to perform all the covenants of the original lease. [In this lease it is recited that the interest of O. W. Ditson had become vested in J. W. Draper. If he put the plaintiffs in possession, and received rents,'and the other rents were paid to the agent of Goddard & Draper, Ditson having made no claim, the jury may, if they think the facts warrant it, conclude in connection with the testimony of Draper himself, that he had the interest claimed by. him.]
    “ On the 9th of December 1868, J. W. Draper entered into a further agreement with the plaintiffs giving, as we construe the writing, the right to the plaintiffs to require a renewal for another year. Prior to the date of the policies the plaintiffs had, as they allege, made large improvements about the colliery, in trestling, constructing railroads and putting in screens, rolls, &c., to an amount of nearly $8000. Considerable evidence has been' given upon this subject, from which the amount of expenditures, as far as it is material, can be ascertained.
    “ When the insurances in question were applied for and effected the colliery was in working order, and it would seem the plaintiffs intended to have their lease renewed. But on the 29th of December 1869, the slope fell in and the work was stopped, and remained so until the fire on the 19th of January.
    “ Much evidence has been given upon the subject of the condition of the mines and the length of time it would take to restore them to working order. The estimates of the witnesses are wide apart — varying from twenty-five days to one year. It is claimed by the defendants that although the contract of insurance was for one year from the 18th of September 1869, that .the plaintiffs had in fact but the interest of a tenant for a year, and that such interest expired on the 81st of March 1870.; and further, that this interest, at the time of the fife, was of no value. On the part of the plaintiffs it is claimed that the insurance was upon specific property, in which they had an insurable interest, not only merely as tenants, having the right to use the property during their present term, but that they had a right to have it renewed ; that they were bound to keep it insured, and also to maintain and keep the property in good order and condition at their own expense, and also to pay the royalty or rent upon 40,000 tons of coal, and that their interest in the breaker and other property described, was more than equal to the whole amount of insurance in both policies.
    [“ The term ‘working interest,’ used in these policies, does not appear tobe a technical term. What was intended by it? We think the parties intended that it should, and that it does comprehend the entire insurable interest which the plaintiffs had in the property, under the provisions of the lease to them from Goddard & Draper, and the further agreement, signed by Draper, of the 9th of December' 1868. They were liable by the terms of their lease,’ and under the law, to surrender the premises at the end of their lease, having kept and maintained the improvements, machinery and fixtures in good order, and in case of their destruction, to replace them. They were also bound to keep upon it an insurance of $15,000. Their insurable interest in the demised premises was, therefore, to the extent of the value of the property, which they were bound to replace.
    “ The plaintiffs were bound to pay a yearly rent upon not less than 40,000 tons of coal, and were also hound to perform and keep all the covenants of the original lease from the Locust Mountain Coal and Iron Company; they, therefore, had an insurable interest in the demised premises to the extent of their liabilities upon their covenants in these respects.
    “ If, therefore, the jury believe from the evidence that it would have cost the plaintiffs ten thousand dollars, or upwards, to have replaced the insured buildings and property destroyed by fire in as good order and condition as before, at the date of the lease, then the plaintiffs are entitled to recover against each of the defendants the sum of five thousand dollars, with interest from the time the same was payable by the terms of the policies read in your hearing. But if you find their damages would be less than ten thousand dollars, such damage is to be equally divided between the defendants.] You will understand that this is subject to the instructions before given upon the question of notice and the question of fraud hereafter submitted.”
    The defendants’ points and their answers were:—
    1. The plaintiffs in these cases held the leasehold premises under and by virtue of their lease from Goddard & Draper, bearing date the 1st day of April 1868, which expired on the 31st of March 1870 ; their interest in the breaker and machinery belonging thereto, consisted only in the right to occupy and use the same for the purpose of preparing coal, which might be taken from the demised premises.
    Answer: “ We decline to answer as requested.”
    2. The policies of insurance effected on the 17th day of September 1869, to run until the 17th day of September 1870, upon the coal breaker, the breaker engines and machinery mentioned and described in the policies, which were, by the terms thereof, to cover the working interest in the property mentioned in the policies, can only apply to the breaker and machinery mentioned in said policies, and the working interest thereby insured embraces nothing more than the right of the plaintiffs to use the breaker during the unexpired term of their lease in preparing coal mined from the demised premises.
    Answer: “ This point is not affirmed. The term 1 working interest,’ under the circumstances of the case, covers all the interest which the plaintiffs had in the property, including both its use and their liabilities in regard to it as stated in the general charge.”
    3. Under the evidence in the case, the plaintiffs had no insurable interest in the property mentioned in the said policies of insurance, after the 31st day of March 1870, and if the jury believe that the slope fell in on the 24th day of December, A. D. 1869, and by reason thereof the plaintiffs had no use for that breaker, from that time until the 31st day of March 1870, the interest insured was of rio value to them, and the verdicts must be for the defendants.
    4. As the insurances in these cases were effected upon the breaker and the property described in the said policies,, which consisted of only a portion of the property leased to the plaintiffs, the insurance cannot be construed to cover any liability which the plaintiffs were subject to by reason of any of the covenants which they had undertaken to perform. And whatever covenants and obligations they might have been under to rebuild the breaker cannot affect the measure of damages, if any, in ■ these cases, and are to be disregarded by the jury in arriving at their verdict.
    Both, these points were refused..
    5. The improvements put upon the breaker and demised premises, claimed by the plaintiffs to have amounted to $7000 and upwards, and made in pursuance of the contract of December 1868, which contract provided that their landlords should pay the actual value thereof, were, under said agreement, the property of said landlords, and the plaintiffs had no other interest in them except their use thereof, until the expiration of their lease, and the cost to the plaintiffs of said improvements cannot be taken into consideration by the jury in arriving at their verdicts.
    Answer: “ The jury may consider the improvements mentioned in this point in so far as they affect the value of the working interest of plaintiffs, but not as a distinct item, to be compensated for under the policies.”
    6. Inasmuch as the plaintiffs did not renew their lease for an- * other year after the expiration of the term expiring on the 31st day of March 1870, and made no effort so to do, their term as tenants expired on the 31st day of March 1870, and the jury in estimating the damage to the plaintiffs, if any, are to take into, consideration only the working interest of the plaintiffs from the time of the fire until the 31st day of March 1870, and if they find that within that period of time the plaintiffs had no coal to- prepare over that breaker, their verdict must be for the defendants.
    This point was refused.
    7. Where lessees effect an insurance of their working interest in a breaker and the machinery belonging thereto, which are only part of the demised premises, consisting of a colliery and the right to mine coal, held under a lease for a term of years, and the breaker and machinery are destroyed by fire during the term, the measure of damages is not to be ascertained by proof of the value of the unexpired term to the tenant, but by ascertaining what proportion the value of the working interest in the property insured' and destroyed bears to the value of the whole premises devised, and the proportion thus ascertained constitutes the true measure of damages.
    Answer: “ This is correct as a general rule, but is no.t applicable to this case, where there are duties and liabilities beyond the mere use of the structure insured.”
    8. - The plaintiffs having produced no evidence by which the damages can be so assessed by the jury, they are not entitled to recover.
    9. If the jury believe that it would have required several months to rebuild the slope and to remove the water from the mines, and that the expense thereof, together with the rentals at 45 cents per ton for the prepared coal that they might have mined, would have equalled or exceeded the value of thé unexpired term of the lease, the verdict of the jury must be for the defendants.
    10. If the jury believe, under all the evidence of the case, that there was no value in the plaintiffs’ working interest in the property- insured from the time when the slope fell in until the, expiration of the lease on the 31st of March 1870, the verdict of the jury must be for the defendants.
    11. If the jury believe that from the time the slope fell in the plaintiffs did not intend to re-open it and work the colliery, there was no value in the working interest insured, and the plaintiffs are therefore not entitled to recover.
    These four points were refused.
    12. The policies of insurance cover only the working interest of the plaintiffs in the properties described in said policies, and all evidence relating to expenditures made by plaintiffs in improvements, is to be excluded by the jury in their estimate of the plaintiffs’ loss, if any, resulting from the fire.
    Answer: “We have already instructed upon the matters here mentioned. The value of the improvements made by-the plaintiffs is not to be considered otherwise than as forming part of the property which the plaintiffs were bound to keep in repair, and surrender up at the expiration of the term.”
    13. The evidence having shown that a portion of the property insured, consisting of the trestling, the iron thereon, the boilers and engine, screens and rollers, were not destroyed, but only partially injured, the plaintiffs, by the terms of the North British insurance policy, were bound to make an inventory, naming the quantity and cost of each article, and appraise the damage done to each article, and having failed to make such appraisement, there can be no recovery against such company, and the verdict of the jury must be for the said defendants.
    Answer: “If the North British Insurance Company had notice of the fire, as required by the policy, or' if a more particular notice was waived, it was as much the business of the company to move in the matter of an appraisement of the property damaged, but not wholly destroyed, as it was of the plaintiffs.
    “ The insurance was upon specific property, partaking of the character of realty — a coal breaker and fixtures ; the clause in the policy relating to personal property damaged does not apply, and the plaintiffs were not bound to have an inventory and appraisement and furnished, with the truth of loss. Notice that the property was destroyed by fire, if that was substantially correct, was all that was required.”
    14. The plaintiffs having represented in their application that their lease had to run one year from the 1st day of March 1870, such representation being material to the value of the property insured and a warranty, and being shown by the evidence in the case to be a misrepresentation, the policies are void, and the verdicts must be for the defendants.
    Answer: “ The plaintiffs made their agreement on the 9th of December 1869, with Draper, in regard to a renewal of their lease. Did they believe at the time of effecting the insurance that this gave them the right to hold the property for another year ? If they so believed and fairly represented, but were mistaken, it would not defeat their action. It was not such a statement of a material fact as amounted to a warranty. If, however, the representation was fraudulent, it would render the contract void, and there could be no recovery.”
    15. If these policies of insurance cover the liability of the said lessees to repair and renew the property demised, and to mine 40,000 tons of coal during each year of the said term, or to pay therefor, and there being no evidence that said covenants were communicated to the said insurance companies when the said policies were applied for, then, by reason of such non-communication, the plaintiffs cannot recover upon the said policies.
    Answer: “ The entire interest of the plaintiffs in the insured property is covered by the terms used in the policies. The defendants were informed by the application that the plaintiffs held the property as tenants, under a lease. It does not appear that they required to be informed as to the covenants and conditions contained therein. The policies are, therefore, binding, although the defendants did not know the full extent of the interest of plaintiffs under the lease. Bearing in mind the law as we have given it to you in the' general charge, and also in answer to these points, you will ascertain the facts for yourselves, under the testimony. If you find that the plaintiffs have failed to comply with the conditions in- regard to notice, and the defendants did not waive them, or, if the plaintiffs were guilty of a fraudulent representation in regard to the time their lease had to run, the defendants are entitled to your verdict. If, however, upon the principles before laid down, you find that the plaintiffs are entitled to recover, you will ascertain their actual damage within the sum of ten thousand dollars, and divide the amount equally between the defendants, rendering separate verdicts in each case.

      The verdict was for the plaintiffs in each case for $5312.50.
    The defendants took out writs of error and assigned twenty-three errors.
    1-5. The rulings on the offers of evidence.
    6-8. The parts of the charge in brackets.
    9-15. The answers to the defendants’ points.

      James Ryon (with whom were J. W. Ryon and Cr. BeB. Heim), for plaintiffs in error.
    (r. R. Kaereher and F. W. Hughes (with whom was Cr. E. Farquhar), for defendants in error.
   The opinion of the court was delivered, May 7th 1873, by

Mercur, J.

These two cases were argued together. The facts and principles of law involved are substantially the same in each. The same property is covered by each policy; each is for one year from the 17th of September 1869. The loss occurred January 19th 1870.

The plaintiffs have filed twenty-three assignments of error. We will not consider them separately. The twenty-second and twenty-third assignments are based upon an alleged false representation in the application. As we are not furnished with a copy of the application, we are unable to determine with certainty how far the facts go towards sustaining the allegation. As we understand the whole evidence bearing upon that branch of the case, we cannot see that the court committed any error in holding, that if the applicants fairly represented what they honestly believed, it would, not defeat the action, and that it was not such a statement of a material fact as amounted to a warranty.

All the other assignments, except the first, sixth and seventh, may be considered together. They relate to the value of the interest insured. That the property was of much greater value than the amount of the insurance, does not admit of a question under the evidence; besides, the jury has so found. It is urged, however, by the plaintiffs, that the interest of the lessees therein was of much less value, and that that lesser value only was covered by the insurance. They claim that the value of the lessees’ interest therein was measured by the value of the use thereof, from the time of the loss until the expiration of their term. In this view we cannot concur. The use of the property for the remainder of the term, by no means fixed or defined its value as to them. They had not only a right to its use and enjoyment, but had also assumed an obligation to return and redeliver it in good order and condition at the expiration of the term. If they failed so to do, they were liable to their lessors for its full value. If they redeliver according to the requirements of their lease, they would be discharged from that obligation. They then had a large value in the property superadded to that of its use. Hence the court was correct in charging that the insurable interest of the lessees was to the extent of the value of the property which they were bound to replace.

The right of the insured and the liability of the companies,'were fixed at the time of the loss, provided the requisite notices and proofs were furnished. Such being the case, the evidence referred to in the fifth assignment of error is wholly irrelevant. No arrangement made between the Locust Mountain Coal and Iron Company of the one part, and Goddard & Draper of the other part, after the expiration of the term of the defendants in error, relieved them from their obligations to return the leased property to Goddard & Draper, or pay them its value. The coal breaker, engines, boilers, pumping and hoisting machinery, apparatus and improvements, leased to the defendants in error, were the property of Goddard & Draper, and not the property of the Locust Mountain Coal and Iron Company. If the latter took possession of the leased premises, and released the former from all liability, it was for a valuable consideration paid by Goddard & Draper. It in no wise showed the determination of the estate which the assured had in the lgrnd at the time of the loss; nor of their release from liability for failing to restore the property upon which they had the insurance.

The language of the policy, after describing the property, avers, this insurance to cover their working interest in the above-insured property.” The court correctly held this was sufficiently comprehensive to cover the entire insurable interest which the assured had in the property.

The first and sixth assignments relate to the notice and proofs of loss.

We have looked in vain through the testimony to find any evidence of the extent of the powers which the companies gave to their agent Bodey. We find, however, that he was in fact exercising extensive powers. The companies were both foreign corporations, with officers and directors abroad. They also had an office in New York, and this agency in Pottsville. Bodey countersigned these policies; he filled them up; the applications were filed in his office; he kept them as references; they were not sent abroad; he paid losses when they occurred.

There is no evidence that the companies ever questioned his rightful exercise of all those powers. So there was sufficient evidence to submit to the jury to find as to the extent of his agency, and whether it was within the general scope of the business intrusted to his care: Union Mutual Life Ins. Co. of Maine v. Wilkinson, Insurance Reporter, 18th April 1872, No. 16. The question of waiver as to time and particulars of loss, was correctly submitted to the jury: Franklin Fire Ins. Co. v. Updegraff, 7 Wright 350; 5 Id 162; 6 Id. 168; 11 Id. 205.

The seventh assignment was not pressed, and has no merit. We discover no error in the bills of exception, nor in the charge of the learned judge.

Judgment affirmed in each case.

Agnew, J., dissented.


author: Mercur, J. —

text:
    Ernst and Godshalk versus Steckman.
    1. A note was, “ Twelve months after date (or before if made out of the sale of” — a machine — ) “ I promise to pay to J. E. I-Iuston or bearer,” &e. Held to be negotiable.
    2. A note to be negotiable must be for the payment of money at a fixed period or on an event which must inevitably happen.
    3. A note is not negotiable if its payment depends upon a contingency, although that may in fact happen.
    4. A note may be negotiable if payable certainly at a fixed time, although subject to a contingency under which it may become due earlier.
    5. Zimmerman v. Anderson, 17 P. E. Smith 421, approved.
    May 5th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 45, to May Term 1873.
    This was an action of assumpsit, in which the writ was issued June 18th 1870, by J. H. Steckman against J. G. Ernst and John 0. Godshalk.
    The action was founded on the following note, which was partly written and partly printed. The parts written are indicated by italic letters.
    “$375. Paradise, Lancaster Co., Pa., June 11, 1869.

      Twelve months after date (or before, if made out of the sale of W. S. Coffman’s Improved Broadcast Seeding Machine), I promise to pay to J. S. Huston, or bearer, at The First National Bank

      of Lancaster, Three Hundred and Seventy-five Dollars, without defalcation, for value received, with interest.

      J. GEORGE ERNST. JOHN O. GODSHALK."

    There was another similar note given at the same time, and for like amount, payable in six months.
    The plaintiff was the holder of the note at the bringing of the suit.
    The case was tried October 24th 1872, before Livingston, P. J.
    The plaintiff gave the note in evidence, and rested.
    Ernst, one of defendants, testified that a man wished to employ himself and Godshalk a.s agents to sell the machine. Upon witness hesitating, he said they should have no trouble; Mr. Huston lived in Boston, and would attend to all “them things,” and would publish their agency in all the papers. He said, on his return to Massachusetts, where his employer lived, he would send a sample machine without cost. “We were to send for machines as we wanted them, and sell them for $16 each; $6 was to be our share. The $10 on each machine was to go on till the amount of $750 was sold. Then he would not look for anything more off us, and he would give us the patent right.” He further testified that the man showed him a paper, which he said was authority for them to act as agents. He said the note they signed was an agreement to sell machines. There was one note for six months and one for twelve months. They were not to pay the note at all till it was made out of the machines. They never got any machines.
    There ivas evidence that, on the 12th of June 1869, the defendants, by publication in newspapers in Lancaster county, warned the public against taking the note. There was evidence also that inquiry had been made in Boston, and no such man as J. S. Huston could be found. Also, by certificate from the Patent Office, that J. S. Huston had no interest in the patent.
    The plaintiff testified in rebuttal that he had given value for the notes on the 19th of March 1870; that he had never seen any notice in the papers connected with the note in suit.
    The plaintiff submitted this point, which was affirmed: — ■
    “If the jury believe the note was received by plaintiff before its maturity, and that he paid value for it, and had no notice of the circumstances under which the note was obtained from the makers, your verdict must be for the plaintiff.”
    The defendants’ point and its answer were:—
    The paper upon which this suit is brought not being negotiable or commercial paper, the plaintiff cannot maintain this suit in his -own name, and the verdict must be for the defendants.
    Answer: “ The note upon which this suit was brought is a negotiable note, and the plaintiff in this suit can maintain a suit upon it in his own name.”

      The court also charged that there was no proof that the plaintiff had actual notice of fraud in making the note, or of the putting it into circulation, and that therefore he had a right to recover.
    The verdict was for the plaintiff for $45Q.
    The defendants took a writ of error. They assigned for error the answers to their points and the instruction of the court.

      Q-. Nauman and H. M. North (with whom were R. W. Shenh and N. JEllmaher), for plaintiff in error. —
    The contingency as to the source of payment mentioned in the note destroyed its negotiability : Overton v. Tyler, 3 Barr 346. So the contingency as to the time of payment: Alexander v. Thomas, 16 Ad. & E. 333.

      S. R. Reynolds, for defendant in error. —
    The promise to pay in twelve months is positive and unconditional, and is unaffected by the contingency on which it was to be paid sooner: Stevens v. Blunt, 7 Mass. 240; Carter v. Buck, 7 Metc. 588; Jordan v. Tate, 19 Ohio 586; Carlon v. Kenealy, 12 M. & W. 139; Hodges v. Shuler, 22 N. Y. 114; Zimmerman v. Anderson, 17 P. F. Smith 421; Osborn v. Hourly, 19 Ohio 130; Sperry v. Horr, 32 Iowa 134.
   The opinion of the court was delivered, July 2d 1873, by

Mercur, J. —

This case hinges upon whether the instrument is a negotiable promissory note. It contains language sufficient to make it one. That language is a promise to pay twelve months after date, to the payee named, or bearer, a specific sum of money, for value received. It is contended, however, that it contains too much; that the addition of or before, if made out of the sale of W. S. Coffman’s Improved Broadcast Seeding Machine,” changes its character and destroys its negotiability. The addition of some words beyond what are necessary to constitute a negotiable promissory note, does not destroy its character as such. Thus it was held in Zimmerman v. Anderson, 17 P. F. Smith 421, that the addition of “ waiving the right of appeal, and all valuation, appraisement, stay and exemption laws,” did not destroy its negotiability.

It is urged that the character of this instrument is changed by the fact that in the contingency of the sum being sooner realized from the sale of the machinery, it might become payable within the year.

The general rule, to be. extracted from the authorities, undoubtedly requires that, to constitute a valid promissory note, it. must be for the payment of money at some fixed period of time, or upon some event which must inevitably happen; that it is not such a note if it purports to make the note depend upon a contingency or uncertainty. Nor is it sufficient that the contingency does in fact happen afterwards, upon which the payment is to become absolute. Its character as a promissory note cannot depend upon future events, but solely upon its character when created: Story on Prom. Notes, § 22. Yet it is, an equally well-settled rule of commercial law that it may be made payable at sight, or at a fixed period after sight, or at a fixed period after notice, or on request, or on demand, without destroying its negotiable character. The reason for this, said Lord Tenterden, in Clayton v. Gosling, 5 B. & C. 360, is that it “ was made payable at a time wrhich we must suppose would arrive.”

In Jordan v. Tate, 19 Ohio 586, it was ruled that the negotiable character, of a promissory note is not affected by the fact that it is made payable by its terms on or before a future day therein named. Though the maker has the right to pay such note at any time after its date, yet, for all purposes of negotiation, it is to be regarded as a note payable solely on the day therein named.

No case has been cited in which this court has distinctly ruled upon such a form of note, yet we think this decision is in accord with the general sentiment of the legal mind of our state.

In Carter v. Buck, 7 Metc. 588, in addition to language sufficient to give it negotiability, the note proceeded, “ it being for property purchased of him in value at this date, as being payable as soon as can be realized of the above amount for the said property, I have this day purchased of said Pero (the payee), which is to be paid in the course of the season now coming.” The instrument was held to be a negotiable note. In giving the opinion of the court, Shaw, C. J., said, “ we think the meaning was this, that the signer for value received in the purchase of property, promised to pay Pero, or bearer, the sum named as soon as the termination of the coming season, and sooner, if the amount could be sooner realized out of the fund. Such reference to the sale of the property was not to fix the fund from which it was to be paid, but the time of payment. The undertaking to pay was absolute, and did not depend on the fund. So as to the time, whatever time may be understood as the ‘ coming seasonwhether harvest time or the end of the year, it must come by mere lapse of time, and that must be the ultimate limit of the time of payment.”

Carlon v. Kenealy, 12 M. & W. (Exch.) 139, was an action brought by an endorsee against'the maker. The note was payable by instalments, subject to a condition that on default being made in payment of the first instalment, the whole amount should become immediately payable. The declaration averred that the payee endorsed the note to plaintiff; that the defendant made default in payment of the first instalment, and that he had not paid the amount of the note. Upon special demurrer, on the ground that the note was not made according to the custom of merchants, and consequently that the right of action thereon could not pass by endorsement; and on joinder in demurrer the court held the instrument to be a negotiable promissory note, and that on default being made by the maker in payment of the first instalment, the endorser was liable for the whole amount. Lord Abinger, C. B., said, “ I think there is no ground for saying the defendant is not liable.” Parke, B., said, “Now, to hold that actions could not be maintained upon such notes as this would be to'impugn all the established practice. Almost every note payable by instalments has such a condition. It is not a contingency; it depends on the act of the maker himself, and on his default it becomes a promissory note for the whole amount.”

To these authorities is interposed the dictum of Lord Campbell, C. J., in Alexander v. Thomas, 71 E. C. L. R. 333; the language of the note, however, in that case failed to declare clearly that the contingency must necessarily precede the ninety days named for the payment. It was “ payable ninety days after sight, or when realized.” So it was at least open to question whether, “ when realized,” might not mark the doing of an act beyond the ninety days. If so, it was such a contingency as to its absolute payment as clearly to destroy the negotiable character of the instrument.

The principle to be deduced from the authorities is this. To constitute a negotiable promissory note, the time, or the event, for its ultimate payment, must be fixed and certain; yet it may be made subject to contingencies, upon the happening of which, prior to the time of its absolute payment, it shall become due. The contingency depends upon some act done or omitted to be done by the maker, or upon the occurrence of some event indicated in the note; and not upon any act of the payee or holder, whereby the note may become due at an earlier day. Hence it is not in conflict with the decision of this court, which declared that if the instrument contained a power under which the payee might enter judgment upon it, its negotiable character was thereby destroyed. We think the learned judge was correct in holding this note to be negotiable. None of the other errors assigned were urged.

Judgment affirmed.


author: Sharswood, J. —

text:
    The Farmers’ Mutual Insurance Company of Lancaster versus Graybill.
    1. Real estate óf a decedent, the buildings on which wore insured, was sold at Orphans’ Court sale; before its confirmation the buildings were burned ; Held, .that the sale was not such alienation as to avoid the policy.
    2. The suit on the policy was properly brought in the name of the administrator to the use of the vendee; who had sufficient interest to give notice of the loss.
    3. By resolution of directors “not more than three-fourths of the value of any buildings shall bo insured members already insured agreed, that in case of loss they would “ only claim three-fourths of the amount of the actual loss, and for the contents of merchant mills (&c.,) only three-fourths of one-half of the actual loss, provided three-fourths of the amount as aforesaid does not amount to more than three-fourths of the amount insured.” Three-fourths of a loss exceeded three-fourths of the amount insured: Held, the insured could recover the whole amount insured.
    4. Hill v. Cumberland Valley Mutual Protection Co., 9 P. F. Smith 474, followed.
    May 6th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 42, to May Term 1873.
    On the 26th of July 1870, Abraham Eorney, administrator, &c., of Graybill B. Eorney to the use of Henry B. Graybill, brought an action of covenant against the Farmers’ Mutual Insurance Company of Lancaster county to recover for the loss by fire of property insured under a policy made April 13th 1857 to G. B. Eorney. The property was a two-storied mansion-house, valued at $3000 and insured for $2000. The company was mutual, and by the charter all persons insuring became members.
    Amongst other by-laws were the following:—

      “ Sect. 8. When any member sustains a loss by fire, it shall be his or her duty immediately to give notice thereof to the president or secretary, who shall furnish him or her withgan order on the appraisers, requiring them to view the premises,®nd after hearing the necessary evidence, to value and determine the amount of loss actually sustained, not exceeding the insured value of the property so destroyed, and make report to the secretary within ten days.

      “ Sect. 12. When any property insured by this company shall be aliened by sale or otherwise, the policy shall therefore be void and shall be surrendered to the directors to be cancelled. But the purchaser or purchasers may have all the advantages of the insurance : Provided, notice to that effect be given to the secretary within thirty days after such sale or transfer, and otherwise complying with the requisitions of the company. ’
    “ Sect. 16. Not more than three-fourths of the actual cash value of any buildings or property shall be insured by this company; and on dry goods and grocery stores, and the contents of merchant mills, only three-fourths of one-half of the actual cash value will be insured.” * * *
    On the 3d day of January 1859, the following resolutions were passed by the directors of the company:—

      “ Resolved, That the intention of the directors is, and has been, that the construction of the policies should be govorned by the 16th section of the by-laws, which provides that, not more than three-fourths of the actual cash value of any building or property shall be insured by this company, and on dry goods and grocery stores, and the contents of merchant mills, only three-fourths of one-half of the actual cash value will he insured, according to the following resolution:
    “ Resolved, That in all policies, hereafter issued, it shall he plainly-stipulated and expressed, that only three-fourths of the actual loss will be paid by the company, and on dry goods and grocery stores, and the contents of merchant mills, only three-fourths of one-half of the actual loss, will be paid by the company. The actual loss to be ascertained by the appraisers; and in case of an appeal, by three disinterested men chosen according to the by-laws.
    “Resolved, That the directors shall take measures to procure the assent of each member of the company to the construction’ expressed in the foregoing resolution, and for that purpose shall provide a book or books, in which such assent shall be fully and fairly expressed and set forth, and shall cause each member of the company to be waited on, and his, her or their signatures obtained for the purpose of expressing their assent to such a construction of their policies.”
    The agreement referred to in the foregoing resolution is dated January 10th 1859, and is as follows:—
    “We, the subscribers whose names are hereto attached, having our respective properties insured in the Farmers’ Mutual Insurance Company of the County of Lancaster, hereby agree that (to avoid all doubt or difficulty) in case any loss should occur to our respective properties by fire, we will only claim and receive three-fourths of the amount of the actual loss, and for the contents of merchant mills, and dry goods and grocery stores, only three-fourths of one-half of the actual loss, provided three-fourths of the amount as aforesaid does not amount to more than three-fourths of the sum insured.”
    This agreement was signed by G. B. Forney. He died on the 12th day of October 1869.
    On the 8th of January 1870, Abraham Forney, under an order of the Orphans’ Court, sold the real estate of the decedent, on which the building insured was erected, for the payment of his debts. The property was struck down to Hiram G. Dysinger, who on the 17th of January assigned his interest in the purchase to H. B. Graybill the use plaintiff in this case. The order of sale was returnable February 14th, and the purchase-money was payable April 1st 1870. On the 7th of February the building was burnt; on March 21st, after exceptions, the sale was confirmed to Dysinger, and deed made April 1st 1870, by the administrator to him. The deed was assigned by Dysinger to H. B. Graybill, and the assignment endorsed on it.
    On the trial, October 25th 1872, before Livingston, P. J., the foregoing facts appeared in evidence. H. B. Graybill testified that the house was destroyed by fire about • midnight on February 7th 1870. In the morning he, with Albert Carpenter, Esq., who was of counsel with the administrator of Gr. B. Forney, and who had the policy in his possession, gave notice of the fire to Andrew M. Frantz, Esq., the secretary of the company. The building was worth about $3200. Witness gave the notice as owner of the property.
    Other witnesses were examined as to value of the building; they fixed the value at $3000. The defendant, amongst other evidence, offered to prove that when the agreement to the resolutions was presented to 0. B. Differ for his signature, “its object and intentions ” were fully explained to him; also, that after the agreement new policies were issued to remedy the defect complained of in the agreement; also, that since the agreement it had been the custom of the company to pay three-fourths of the actual loss provided the amount was not more than three-fourths of the sum insured; also, the general custom of the company since 1859. All these offers were objected to by the plaintiff, rejected by the court, and several biffs 'of exception sealed.
    The defendants submitted a number of points, which are stated and answered in the charge of the court. The charge, after recapitulating the evidence, stating the agreement of January 10th 1859, and referring to clauses in the constitution and by-laws, is as follows:—
    “ * * * These we think are the only portions of the by-laws to which we need at present refer.
    “ [This cause seems to resolve itself into four legal propositions, and to leave but little for a jury to decide:
    “ 1st. Can the plaintiff maintain this action ?
    “ 2d. Was there an alienation of the property in this case at the time of the fire, whereby the policy became void ?
    “ 3d. Was the notice given to the secretary sufficient notice in law? and
    “4th. If the plaintiff is entitled to recover, how much is he to recover under his policy and the agreement of January 10th 1859 ?]
    “ The defendant has presented several points in writing to the court, covering all these propositions, and indeed the whole case. These we will now proceed to answer:
    “ 1st point: ‘ That by the sale of the property insured, as set forth by the plaintiff in his declaration, the policy of insurance was made null and void • under the charter and by-laws of the company.’
    “ Answer: The sale of the property insured (and burned) as shown by the pleadings and evidence in this cause, did not render the policy of insurance null and void under the charter and bylaws of the company, it being merely a contract of sale (not executed), the sale not having at the time of the fire been approved by the court; no purchase-money paid, or deed made: there was no alienation.
    “ The 2d and 3d points will be considered together.

      “2d point. That the plaintiff is an entire stranger as regards the defendant, and has no rights either legal or equitable on the policy of insurance granted to Forney.
    “ 3d point. That the policy in this case cannot be made available to Henry B. Graybill, who did not purchase from Forney’s administrators, but bought the right and interest of Dysinger, and that oniy.
    “Answer: The legal plaintiff on the record was not a stranger to the policy or company at the time of the fire, nor was the party for whose use this suit was brought. He was, as shown by the evidence, the vendee at the time, and became the legal owner, and the vendee, the legal plaintiff here, became in law trustee for him, and the policy thus became available for him, and he is entitled to the proceeds of it.
    “4th point. That no notice of the loss was given by or for the member insured as required by the by-laws.
    “Answer: Graybill B. Forney, the member insured, having died previous to the destruction of this property by fire, could scarcely be expected to give notice thereof immediately to the president or secretary of the company, as required by the by-laws before us. If interpreted as they read, literally, no policy issued by this company would be of any value whatever in case of the death of the insured and the destruction of the property by fire, for no notice could be given. The insured member could not give it, and no provision is made for notice by any one else. In the present case Henry B. Graybill, for whose use this suit is brought (the then vendee) took with him (as he thinks), A. E. Carpenter, Esq., a member of the bar, and who is shown by the records of the Orphans’ Court offered in evidence by the defendant, to have been at the time counsel for the estate of Graybill B. Forney, deceased, the insured, and who then had in his possession this policy, and proceeded to the office of the secretary immediately on the morning after the fire, and gave him full notice of the entire destruction off the property insured, by fire, stating to him what property it was and that it was totally destroyed. The secretary received the notice, and we think it sufficient in law. The proceedings to ascertain loss, after notice, were to be instituted by the company, as their by-laws show.
    “5th point. That Graybill B. Forney, being a party to the agreement in 1859 fixing the amount of losses that would be paid, and having ratified the basis for adjusting such losses, he and his administrators are bound by it.
    “Answer: By section 16th of the by-laws, not more than three-fourths of the actual cash value of any buildings or property shall be insured in this company. It seems that after the enactment of this section, a doubt arose in the minds of some of the members of this company as to its exact meaning, and on January 10th 1859, after this policy was issued, they, to avoid all doubt and difficulty, entered into an agreement (and this being a mutual company, and all its members insured, they are all bound by any legal agreement by them made), which, so far as this class of property is concerned, maybe thus read: ‘We, the subscribers whose names are hereto attached, having our respective properties insured in the Farmers’ Mutual Insurance Company of the County of Lancaster, hereby agree that in case any loss should occur to our respective properties by fire, we will only claim and receive three-fourths of the amount of the actual loss; provided three-fourths of the amount aforesaid' does not amount to more than three-fourths of the sum insured.’ By that section of the by-laws, no more than three-fourths of the actual cash value was to be insured, but the company was obliged to pay the whole sum stated in the policy issued, even if it exceeded three-fourths of the actual cash value, or if the actual damage by fire was not half so much as the sum insured. To remedy this they needed an agreement; they made one, and stipulated that in no case would they receive, or pay more than three-fourths of the actual loss; and add, provided three-fourths of the amount does not amount to more than three-fourths of the sum insured. This we take to mean that when the amount of the actual loss does not exceed three-fourths of the actual value of the property insured (three-fourths of the actual cash value being their basis), they were to pay and receive three-fourths of the sum insured. But if the actual loss exceeded three-fourths of the actual cash value of the property insured, they were to pay and receive three-fourths of the actual loss, and not three-fourths of the sum insured. If this construction be proper, and we believe it is, the actual loss here being more than three-fourths of the actual value of the property insured, the company are bound to pay the whole sum insured, it being less than three-fourths of the actual loss shown.
    “ 6th point. That under no circumstances can the plaintiff recover more than three-fourths of $2000, the insured amount.
    “Answer: Under the evidence in the cause the plaintiff is entitled to recover the full amount stated in the policy presented, with interest from the time therein fixed for its payment, or from the time it became due and payable.
    “ This answers all the points, and if the jury believe with us, their verdict should be for plaintiff for the amount stated.”
    The verdict was for plaintiff for $2302.33.
    The defendants took a writ of error. They assigned for error:—
    1-3. Rejecting their offers of evidence.
    5. The clause of the charge in brackets.
    6-9. The answers to the defendants’ 1st, 2d, 3d, 5th and 6th points.
    10. The construction of the agreement of January 10th 1859.

      A. M. Frantz and N. Ellmaker, for plaintiffs in error.

      0. J. Dickey and T. E. Franklin, for defendant in error.
   Tlie opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

It is clear both upon principle and authority, that by sale of the premises insured under the proceedings in the Orphans’ Court, there was no such alienation before confirmation as avoided the policy ; and the loss having occurred between the sale and the confirmation, the legal title was then in the heirs of Forney, and the action on the policy was rightly brought in the name of the administrator to the use of the vendee: Insurance Company v. Updegraff, 9 Harris 513; Reed v. Lukens, 8 Wright 200; Hill v. Cumberland Valley Mutual Protection Co., 9 P. F. Smith 474.

It is equally clear that the vendee had sufficient interest to entitle him to give notice to the company of thp loss. As was well remarked by the learned judge below, if the clause be literally taken, in case the member insured was dead at the time of the fire, no one could give notice.

His personal representative, succeeding to his legal right as covenantee, is a trustee for the heirs of the vendee, and either the trustee or the cestui que trust sufficiently represent the party for that purpose. In the case before us, it appeared that both joined in the notice, which was received by the secretary of the company without objection.

It must he conceded that there is some difficulty as to the legal construction of the agreement given in evidence, signed among others, by the insured member, Graybill B. Forney. This paper was drawn up in pursuance of certain resolutions of the directors of the insurance company, to a copy of which it is attached. The whole must be considered as one instrument, and be construed together. The principle intended to he adopted by the company, was that every member insured, should stand his own insurer to the extent of one-fourth of any loss which should occur. This was for the safety of the company, to induce care as well as honesty on the part of the insured, as he must himself be a loser by every fire, and could not throw- his entire loss upon the insurers. The sixteenth section of the by-laws had declared, that not more than three-fourths of the actual cash value of any building or property should be insured. In all cases of total loss, this accomplished the purpose. But it is evident, that when the loss was only a partial one, the insured might still claim his entire loss, provided it did not exceed the sum insured. This was not their meaning, and it did not secure the result at which they aimed. The directors, therefore, adopted a resolution that, in all policies thereafter issued, it should be plainly stipulated and expressed that only three-fourths of the actual loss should be paid by the company, and also resolved that the assent of the holders of existing policies should be procured to this as the true construction of their contracts. The agreement, however, which was to carry out this last resolution, was not confined to the exact words of the directors, but added a clause which has given rise to the question here. By it the subscribers “ agree that (to avoid all doubt and difficulty) in case any loss should occur to our respective properties by fire, wTe will only claim and receive three-fourths of the amount of the actual loss, provided three-fourths of the amount, as aforesaid, does not amount to more than three-fourths of the sum insured.” It is plain that the insertion of this proviso was altogether unwarranted by the resolutions, and had the directors been so inclined, they might have repudiated the entire agreement in consequence of it. But they have approved it, and now insist that it is to be construed as if it had read “ provided, and it is further agreed, that in no case shall any more than three-fourths of the sum insured be paid.” .That is, if a person having exempli gratia, a property, the cash value of which is $4000, has insured it according to the sixteenth by-law for $3000, if the entire property is consumed by fire, he shall be entitled to receive, not three-fourths of his actual loss, namely, $3000, but only $2250. Yet if he suffers only a partial loss of $3000, he shall still be entitled to recover the same sum of $2250. Instead, then, of the insured being limited to three-fourths of his actual loss when his loss is total, on the construction now contended for, he is entitled only to three-fourths of three-fourths or nine-sixteenths, little more than one-half. This could not have been the intention of the parties, and it is not the proper grammatical construction of the writing. A simple proviso, without other words extending its operation, so as to make it a distinct and independent covenant, is a condition on the performance of which the validity of the deed or writing depends: Wharton’s Law Lexicon, ad verbum. The agreement was not, therefore, to apply where three-fourths of the amount of the actual loss shall exceed three-fourths of the sum insured. In the case before us, three-fourths of the actual loss does amount to more than three-fourths of the sum insured. The agreement then is inapplicable. The insured is entitled to recover the w'hole sum insured, but as, by the sixteenth by-law, this is only three-fourths of the actual value, the spirit of the agreement is maintained. This must be so in every total loss, the sum insured being only three-fourths of the actual cash value, the loss must of necessity be more than three-fourths of the sum insured. We hold the agreement not to have been intended to reach the case of a total loss, already provided for sufficiently by the sixteenth by-law. It is to be observed also, that the agreement was executed to give a construction to the existing contracts, not to make an entirely new rule. It declares that it is “ to avoid doubt or difficulty.” Now, the construction of the contract in connection with the by-laws, was without doubt or difficulty, in case of total loss. The insured bore one-fourth of it, which, upon a fair interpretation of the whole paper, resolutions and agreement, was what we think was intended. What the effect of the proviso may he in case of partial loss, is not now before us for determination. We express no opinion upon the subject. It is not easy to understand what the penman meant; it is certainly obscurely and unhappily expressed so as to convey any clear meaning. If I might hazard a conjecture (which, however, is entirely my own), it would be that by “sum insured,” was meant the sum which was the basis of the insurance, in other words, the valuation of the premises in the policy, a change of phraseology which makes the whole simple and just.. It perhaps occurred to the writer, that the broad words, “ three-fourths of the actual loss,” might entitle the insured to demand more than three-fourths of the valuation.

There can be no question that the offers of parol evidence to explain the writing were rightly rejected.

Judgment affirmed.