author: Mr. Justice Trunkey

text:
    Mueller, for use, versus South Side Fire Ins. Co.
    1. Where notice of the cancellation of a policy of insurance is given to the mortgagee of the insured premises, to whom by the terms of the policy the loss is made payable, such notice is sufficient, and it is not necessary to also notify the owner. The cancellation takes effect from the time of service on the mortgagee.
    2. Where a policy reserves the right to cancel the policy at any time, on giving notice and refunding a rateable portion of the premium, an insured is not entitled to claim this rateable portion, who, at the time of notice of cancellation, had not paid his note given for the premium, which note had matured and been protested.
    3. Where the policy requires the production of a certificate of an officer, before the loss is payable, and no word or act has been done by the assurer to mislead the insured or throw him off his guard, mere silence is not enough from which to infer a waiver of this condition of the policy.
    October 17th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1878, No. 158.
    Covenant by John F. Mueller, for use of the Rochester Building Association, against the South Side Fire Insurance Company upon a policy of insurance.
    The South Side Fire Insurance Company was a corporation, doing business in the city of Pittsburgh, under the laws of the Commonwealth of Pennsylvania. On September 17th 1874, it issued its policy for the term of three years from that date, in the sum of $2000. The policy insured a two-story flour mill in Freedom, Beaver county, Penna., belonging to John F. Mueller, but by him mortgaged to the Rochester Building Association, No. 2. By the terms of the policy, it was provided: “ Loss, if any, payable to the Rochester Building Association, No. 2, as their interest may appear.” The premium Avas $180; but instead of paying it in cash, Mueller, by an arrangement with an agent of the insurance company, gave his promissory note for $180, dated September 22d 1874, payable at ninety days after date to the order of the agent. The company received the note and issued the policy. The note, hoAvever, was not paid at maturity, and Avas protested for non-payment. By the terms of the policy, it was provided, inter alia: “ Article 1. * * * If, during the insurance, the risk be increased by the erection of buildings, or by use or occupation of neighboring premises or otherwise, or if, for any other cause, the company shall so elect, it shall be optional with the company to terminate the insurance, after notice given to the assured, or his representative, of their intention to do so; in which case the company will refund a rateable proportion of the premium.” Availing itself of this provision, the company, on March 19th 1875, resolved to and did cancel the policy, and forthwith gave notice of such cancellation to the Rochester Building Association, No. 2, which duly received such notice. No further negotiations or business with relation to the policy took place between any of the parties thereto until after December 13th 1875. At that date the mill described in the policy was totally destroyed by fire. In the meantime, in the Court of Common Pleas of Allegheny county, the insurance company, upon the petition of its stockholders, was dissolved, on August 7th 1875. No trustee, however, was appointed by the court until May 13th 1876. The plaintiff, however, claiming a right to recover under the policy, prepared what purported to be a proof of loss and left it at the private residence of Hugh Lafferty, who, prior to the dissolution, had been the president of the company. It was not denied that he received, but there was no evidence from which a waiver could be implied except Ms silence.
    The plaintiff’s first and third points were as follows, both of which the court, Kirkpatrick, A. L. J., affirmed:
    That if the proofs of loss offered in evidence by the plaintiff were received without objection by Mr. Lafferty, who was then the sole executive officer of the insurance company, it is now too late for the defendant to allege want of compliance by the plaintiff with the ninth condition or covenant of the policy ; and if the jury,so find, they may further find a waiver of all objections to the proofs of loss, and in that event need give them no further consideration.
    An insurance company has no right to deprive a party of his insurance simply because the premium is unpaid. And when a policy, as is the case with the policy sued on, has in it a condition reserving to the insurers the right to terminate the risk at any time on giving notice and refunding a rateable portion of the premium, the return of the premium is an essential part of the condition to be performed and a pre-requisite to the right to terminate the risk. And where there has been a note given for the premium instead of the payment thereof in money, there must either be an absolute tender of the note by the insurer to the insured or a tender upon the terms of paying the insurer the earned part of the premium, or the company must otherwise provide for the return of the unearned premium before any attempted cancellation of the risk will be operative. And if the jury find that no such tender, either absolute or qualified was made by the company, defendant in this suit, to either the legal or equitable plaintiff, and that the note was accepted by the company as payment of the premium, then the alleged cancellation of the policy by the defendant was ineffectual and does not bar the plaintiff’s recovery.
    The first, third and fourth points of defendant, with the answer of the court, were as follows :
    1. That if they believe that the defendant corporation was dissolved at No. 566, Sept. Term 1875, by the Court of Common Pleas, No. 1, of Allegheny county, Pa., on August 7th 1875, and that no trustee was appointed by the court aforesaid to settle up the business of said corporation until May 13th 1876, then between the said dates there was in contemplation of law no person having authority to waive any of the provisions of any contract or policy of insurance then in existence; nor under the facts aforesaid could any waiver be implied from the silence of said corporation.
    Ans. “ Refused as presented; for although he may not have been appointed by the court as a trustee to settle up the business of the corporation, yet if Hugh Lafferty was appointed by the proper authorities of the company as the person to settle up its affairs by whatever name he might have been called, he had authority to do any act or acts within the scope of his authority even to the extent of wmiving any of the provisions of any contract or policy of insurance as fully and entirely as the company itself could have done; and if he in the lawful exercise of such deputed power and authority waived any contracts in the policy of insurance, the defendant company would be bound by his acts.”
    3. That if they believe the facts stated in the first point to be true, then there is no evidence in the case from which the jury would be justified in finding that the defendant corporation had either expressly or by implication waived compliance on the part of the plaintiff with the requirements of article 9 of the conditions of the policy sued on.
    Ans. “ Affirmed. The jury, however, will say from all the evidence in the case, that of R. B. Brown, the former president, and a continuing director and others, whether or not Hugh Lafferty was the proper representative of the company, duly authorized to represent it, and if so, a waiver by him would be a waiver by the company, and find accordingly.”
    4. That if they believe that the defendant corporation, on or about March 19th 1875,‘resolved to and did cancel the policy in suit and gave notice of such cancellation to the Rochester Building Association, No. 2, and that said association received said notice of cancellation prior to the date of the fire, then plaintiff cannot recover.
    Ans. “Refused as presented. We are of opinion that notice to John F. Mueller v'as also necessary, and a refunding or tender to refund to him or the Rochester Building Association, No. 2, of a rateable proportion of the premium unearned, essential to a proper and legal cancellation of the policy.”

      In the general charge the court, inter alia, said:
    “It was in the power of the company, as it is in the power of any company, to accept a note as cash in payment of a premium; or, as I have already intimated, if they see proper in the exercise of their discretion, they may insure without any payment at all; or they can certainly, in our judgment, receive a note as cash for a premium. If, therefore, they receive it, it was essential to their proper cancellation of this policy that they should, in accordance with the terms of one of their own articles alluding to this possibility of cancellation, have returned or tendered to one or the other of these plaintiffs a rateable amount of the unearned premiums. If, therefore, they have not so done, there is no bar in this regard to the plaintiff’s recovery.
    “ So, too, touching again the question of proofs of loss (we have already answered it in detail in the points), it is enough to say that this insurance company may waive any informality either by long silence or by an agreement to waive the informality, and if the jury find that by any act of this company or its accredited agent and representative, if Mr. Lafferty was such, it waived this alleged informality, then that would not be any bar to a recovery; and if so finding, they find that the fire did occur (which does not seem to be disputed), that the loss did occur, and that the loss was to the full extent of the policy, there ought to be a recovery by the plaintiff in this case to the full amount of the policy, with interest.”
    Verdict for plaintiff for $2054.09. After a motion for a new trial had been argued and overruled, defendant took this writ and assigned for error, inter alia, the answers to the above points.

      Cfeorge Iff. Monro and J. S. Ferguson, for plaintiff in error.
    If this company is to be held liable, the reason of its liability must be found either in the fact that no notice of the cancellation was given to Mueller, or because it could not cancel until after notice to the assured of its intention to cancel, or in the fact that it did not refund a rateable proportion of the premium. All of these reasons were urged in the court below by the plaintiff’s counsel. As to the first reason, the association was primarily interested in the policy. Mueller himself had appointed it to take the fruits of the policy. It was his representative, and as such, a proper party under the conditions of the policy. He had no interest until it was paid. The second reason has already been decided against the plaintiff; in Carr v. The Lancashire Ins. Co., 27 U. C. Q. B. 217 and 458, cited in Bates’ Eire Ins. Cases, 159, sect. 13.
    As to the third reason, the loss was payable to the Rochester Association. It was the beneficiary. It had paid neither money nor note for the insurance. If money had been paid, the company would not have been bound to refund it, although, in that event, of course, it would have been bound to refund to Mueller. The notice then terminated the rights of the association in the policy. No money was refunded to Mueller because he had paid none. It is true that the note remained in the hands of the company. But the note was no debt. It was the mere evidence of a debt.
    The silence of Lafferty cannot be construed into a waiver by the company: Bumstead v. Dividend Ins. Co., 2 Kernan 81; Beatty v. Lycoming Ins. Co., 16 P. F. Smith 9; Inland Ins. Co. v. Stauffer, 9 Casey 397. As trustee he could not waive any informality or dispense with any conditions of the policy: McEvers v. Lawrence, 1 Hoff. Ch. Rep. 172.

      John U. Mueller and J. M. Stoner, for defendant in error.—
    The note was made by a solvent and responsible person, and the company confessedly accepted it as cash. Its dishonor gave them a right of action against the maker, but no equitable or legal right to avoid the contract of insurance. If they proposed that such default should operate as an avoidance of the contract, there should have been an appropriate provision in the policy: New England Mutual Life Insurance Co. v. Hasbrook, Administratrix, 32 Ind. 447. The return of the premium is a pre-requisite to the right to terminate the risk: Hathorn v. Germania Insurance Co., 55 Barb. 28; Franklin Fire Insurance Co. v. Massey, 9 Casey 221. The acceptance of the note as payment, would certainly operate as a satisfaction of the company’s claim for the premium, and be followed by all the legal consequences of an actual payment in cash. It has been held, as matter of law, to be payment: Barker v. North Brit. Ins. Co., 8 S. & D. 869. The proofs were received by Mr. Lafferty without objection, retained by him afterwards and produced by the company’s counsel on the trial. There was no intimation of the alleged defect until after suit was brought. That Mr. Lafferty had plenary powers in the management of the business of the company, cannot be successfully denied. The testimony of R. B. Brown, Esq., fully warranted the finding suggested in the plaintiff’s point, that Mr. Lafferty vras the sole executive officer of the company. These facts justified the court in submitting to the jury the question of waiver: McMasters v. Westchester Co., 25 Wend. 379; O’Neil v. Buffalo Fire Ins. Co., 3 N. Y. 122; Vandeusen v. Charter Oak Ins. Co., 1 Rob. (N. Y.) 55; Bilbrough v. Metropolis Ins. Co., 5 Duer 587; Bailey v. Hope Ins. Co., 56 Me. 474; Firemen’s Ins. Co., v. Crandall, 33 Ala. 9.
    November 11th 1878.
   Mr. Justice Trunkey

delivered the opinion of the court,

Mueller’s policy was for the term of three years from the 15th September 1874, for a premium of $180. It contained a stipulation that for any cause “ it shall be optional with the company to terminate the insurance after notice given to the assured or his representative, of their intention to do so; in which case the company will refund a rateable proportion of the premium.” This provision was also inserted, to wit: “Loss, if any, payable to the Rochester Building Association, No. 2, as theirinterest may appear.” The said association took and retained possession of the policy until after the fire. Mueller gave his note, dated September 22d 1874, at three months, for the premium, which was protested for non-payment. On the 19th March 1875, the company cancelled the policy and served notice on its holder as follows : “You are hereby notified that policy No. 1644, issued to John Mueller by this company, on the 15th of September, is hereby cancelled for non-payment of premium.” To this no response was made. The property insured was destroyed on the 14th of December 1875.

Notice of cancellation was requisite upon Mueller or his representative, not on both. No one could better answer as representative than he who had the custody of the policy and would be entitled to the money in case of loss. The notice was sufficient, and the cancellation took effect from the service. Had the premium been tendered and refused, within a reasonable time, a question might exist which is not now in the case. There was no offer to pay. It is said the policy remained valid because the company did not refund a rateable proportion of the premium. Non-payment of the premium was the very cause of cancellation. Refund what ? The evidence of a broken promise to pay ? The company had received no money. No legerdemain could make that protested note appear as cash. Mueller had no right to the note until payment of the proportionate part due-when the policy ended. It was his paper, received and held by the company, between them a mere contract subject to any legal or equitable defence. The insured has no just ground for complaint. Eor three months his note stood as if a payment of the premium; for three months longer the policy was permitted to continue in force; and for nine months after the cancellation he was content. At no time did he tender or offer to pay a dollar for restoration of the policy. Too often insurance companies set up technical and trifling defences against payment of losses; but that is no reason for holding a policy valid after its cancellation according to the terms of the contract, and a long neglect by the insured to pay the stipulated price for the insurance.

Another point may be noticed. The ninth condition of the insurance provided that the loss should not be payable until the production of a certificate of an officer as therein directed. It is alleged that production of the certificate was waived. Let it be conceded that Lafferty was duly authorized to act for the company. Also that silence under many circumstances may be evidence of a waiver. As where payment is refused for a specified cause; or where a defect is pointed out in proofs and certificates; or where, after receipt of proofs, the company act upon them as if correct in treating with the insured; or where the company resort to and agree upon another mode of ascertaining the loss; waiver as to a defect, not the ground of objection, refusal or action, may well be inferred from silence. But where no word or act has been said or done by the assurer to mislead the insured or throw him off his guard, mere silence is not enough to infer waiver: Beatty v. Lycoming Co. M. Ins. Co., 16 P. F. Smith 9. Mueller left the papers with Lafferty’s wife, and he received them from her. There was no communication between them, orally or in writing. Lafferty did nothing. There was no evidence of waiver to submit.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Pittsburgh, Fort Wayne & Chicago Railway, &c., Co. versus Collins.
    1. Where a person, without right, with a full knowledge of the location, voluntarily places himself upon a railroad track, at a place where there is no crossing, and which is a known place of danger, and is killed by a passing train, it is negligence per se, and no damages can be recovered for his death, except for wanton injury.
    2. Railroad Co. v. Norton, 12 Harris 465, and Mulherrin v. Railroad Co., 31 P. F. Smith 367, followed.
    October 17th 1878.
    Before Agnbw, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 207.
    Case by Mary Collins and her children against the Pittsburgh, Ft. Wayne and Chicago Railway, and the Pennsylvania Railroad Company, operating said railroad, to recover damages for the death of their husband and father, James Collins, who, it was alleged, was killed by the defendant’s cars.
    Collins was found dead on the tracks of the defendants’ railroad. The point at which the body was found was not a public crossing, A train had just passed before it was found, and it was evident it had been run over by the train. At the place of the accident the railroad is parallel with and north of Preble avenue, a street forty feet wide. There were three tracks, and from the one on the south a switch ran to a mill at which Collins worked and where he lived. His usual way when going home was to leave Preble avenue at the switch. The body was found beyond the switch. The track was unballasted, and between the second and third tracks there were piles of cinder. There was conflicting evidence as to whether Collins was sober. A city ordinance, which authorized the running of cars along Preble avenue, required that it should be fenced, which had not been done by the railroad company. The other material facts will be found stated in the opinion of this court.

      The court, Ewing, P. J., in answer to points, and in their general charge, inter alia, said :
    “Aside from the failure to fence there is no evidence of any negligence or wrong on part of the defendants or their employees that is relevant in this case. If this railroad track was laid down and operated by the company under and by virtue of the license given by the ordinance in evidence, on a public street in a populous part of the city, and the street and track graded up by the company to the same level, the provision of the ordinance requiring a substantial fence to be built separating the railroad track from the other part of the street is to be considered a reasonable police regulation for the safety and protection of travellers on the street by day or night. By the acceptance of the benefits of the ordinance a duty was imposed on the railroad company to erect this protection, the neglect of which was negligence. If this negligence naturally, directly and materially contributed to the death of James Collins, the plaintiffs are entitled to recover, unless the deceased was guilty of negligence which contributed to the accident. * * *
    “ The deceased had a right to travel along Preble avenue — not on the railroad track. If at or near the point at which he was killed, he was passing along the street, and in the darkness of the night casually and unintentionally got on the railroad track because of the want of a fence, and at the same time exercising that reasonable care and prudence which a man of ordinary prudence and intelligence in the possession of his faculties (I mean sober, for it requires a sober man to exercise reasonable care and prudence as a general rule), and knowing the situation, as Collins did, would have exercised, and after finding himself on the track was unable to get off until struck by the train, he did all that the law required of him and was not guilty of negligence which would prevent a recovery.”
    Verdict for the plaintiffs for $3000, and a motion for a new trial having been refused, judgment was entered on the verdict. The defendant then took this writ, assigning for error, inter alia, the foregoing instruction of the court.

      Hampton £ Dalzell, for plaintiff in error.
    Where a person places himself on the track of a railroad company, he can only recover for wanton injury : Railroad Co. v. Norton, 12 Harris 465. Except at crossings: Mulherrin v. D., L. & W. Railroad, 31 P. F. Smith 367. The ordinance requiring the railroad to fence was a part of a contract, and if violated the city of Allegheny had the right of action and not plaintiffs. The court had no power to declare a breach of this contract negligence per se: Drake v. Railroad, 1 P. F. Smith 240. Whether the neglect to fence was the proximate cause of the injury should have been submitted to the jury : Milwaukee, St. Paul Railway Co. v. Kellogg, 94 U. S. 469.

      A. M. Watson, for defendants in error.
    The erection of the fence was intended to avoid such accidents. It is to be proved that Collins exercised due care: Railroad v. Rowan, 16 P. F. Smith 393; Railroad v. Weber, 22 Id. 27; Weiss v. Railroad, 29 Id. 387. While persons on railroad tracks may be trespassers, regard must be had to the habits of the people living along the line of the road: Penna. Railroad v. Lewis, 29 P. F. Smith 33 ; Railroad Co. v. McElwee, 17 Id. 311; Penna. Railroad Co. v. James, 22 Pitts. L. J. 54.
    November 11th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

On the evening of November 9th 1876, James Collins was found dead on the tracks of the Pittsburgh, Fort Wayne & Chicago Railway Company, in the city of Allegheny. An engine and two cars had just passed when he was found, and it seems clear from the evidence that one or both of the cars, and possibly the engine, had passed over him and inflicted injuries of which he died the same evening. This suit was brought in the court below by the widow and minor children of the deceased to recover damages for his death, upon the ground that it was occasioned by the negligence of the railway company.

We are saved the discussion of the question as to how far negligence on the part of the company or its employees was established by the fact that, conceding all that was claimed on behalf of the plaintiffs below in this respect, the deceased was clearly chargeable with contributory negligence. This will appear from a brief statement of the undisputed facts. He had lived for years m the immediate neighborhood of the spot where he was killed; was necessarily familiar with the track at that point, and must have known that it was a place of danger. There was no public crossing at or near the place where he was injured. The last time he was seen before the accident was about seven o’clock in the evening, passing along Wilkins street towards Preble avenue. The witness says he was under the influence of liquor. - He was probably on his way home. Preble avenue is forty feet in width, and runs parallel with and by the side of the track for a short distance. There was a sidewalk on the side of Preble avenue furthest from the track, along which he might have walked in safety to the point where he would naturally turn to go home. This was a switch connecting his employer’s mill with the railroad, and which ran across Preble avenue. Instead of turning off at the switch and going towards home he appears to have crossed the switch and continued on along the avenue, or else upon the railroad track, in a direction contrary to his home, to the spot where he W'as killed. It was undisputed that from that point the locomotive could be seen for a considerable distance; that it was running at a moderate rate of speed, with a bright head-light. There were three tracks. The track next the avenue was unballasted, and between that and the next track were large piles of cinders. The deceased was found lying on the track next to the avenue, which was a side track. In the immediate vicinity were piles of cinders of considerable size. The night was unusually dark. Notwithstanding this he could hardly have crossed the switch without knowing it, and being thus warned that he was deviating from his course. If, however, he had passed the switch, and had inadvertently or by reason of the darkness stepped upon the track, the ties and rails and piles of cinders must have instantly warned him of his danger. It is thus the case of a man who without right, with a full knowledge of the location, voluntarily places himself upon a railroad track, at a place where there is no crossing, and which was a known point of danger. He was a mere trespasser, and the case comes directly within the ruling in The Railroad Co. v. Norton, 12 Harris 465, that “where a person places himself on the tracks of a railroad he can claim no damages, except for wanton injury, and not for injury sustained in the pursuit of the company’s lawful business in the ordinary manner, even though the negligence, of the company’s agents contributed to the result.” In Mulherrin v. The Railroad Co., 81 P. F. Smith 367, it was said: Except at crossings where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company has not only a right of way, but such right is exclusive at all times and for all purposes.” It may be the deceased was so far under the influence of liquor as not to know precisely where he was going. But the plaintiffs'dn error are not responsible for that. They did not furnish the liquor. If, as was strongly contended at bar on behalf of the defendants in error, the deceased was not affected by liquor at all, there was still less excuse for his being on the track. It was negligence per se to go there, knowing as he did the locality and its danger.

Much as we deplore the loss which this unfortunate family have sustained, the law compels us to say that it is one for which the plaintiffs in error are not responsible. This renders it unnecessary to discuss any of the other points raised by this record.

Judgment reversed.


author: Mr. Justice Gordon

text:
    Northwestern Mutual Life Ins. Co. versus Roth.
    1. Where a life insurance company has paid over the proceeds of a policy to its agent on the faith of an assignment, and it is alleged such assignment was a fraud upon the estate of the assured practised by said agent, before a recovery can be had against the company, it must be shown that it had notice of the fraud before payment to the assignee. (
    2. It was erroneous to admit the declarations of the agent, through whom the risk was taken, that the assignment had been executed in blank, and that subsequently to the death of the assured he had inserted therein the name of the assignee, when these declarations were made some time after he had ceased to be the agent of the company.
    3. These declarations as to his own act, committed for his own purposes, not in the line of his agency, were the declarations of a third party, and could not affect the company,
    October 17th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, JJ. Woodward J., absent. Trunkey, J., did not sit in this case.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 7.
    This was an action by Magdalena Both, administratrix of John Roth, deceased, against The Northwestern Mutual Life Insurance Company, of Milwaukee, to recover the amount of a policy of insurance on the life of said John Roth.
    John Roth, who resided in Pittsburgh, insured his life in the defendant company for $3000 on the 1st of December 1870. The insurance was effected through Adam Becker, a sub-agent, who held his appointment from George Dart, who was the general agent of the company in this state. Roth died May 12th 1871, and on the 4th of October 1871 his wife took out letters of administration and brought this suit, which came on for trial in 1874.
    At the trial, before White, A. L. J., as matter of defence, the company produced the following assignment and receipt:
    “Birmingham, February 24th 1871.
    For a valuable consideration, the receipt whereof is hereby acknowledged, I hereby assign and transfer to John Spieler all my right, title and interest in and to the within policy, No. 58,714, for his sole use and benefit. In case of the death of said assignee before the policy becomes due, then in that case it shall be payable to the heirs or assigns of John Spieler.
    Johann Roth.”
    “Received, September 5th 1871, of the Northwestern Mutual Insurance Company, three thousand dollars in full of all claims on the within policy. John Spieler.
    Attest—
    Adam Becker.”

      The money was transmitted by the company to Dart, who, on the .written order of Spieler, paid the money to Becker, tvho delivered the policy to Dart, with the foregoing assignment and receipt endorsed thereon.
    There was evidence tending to show that Becker and Spieler were guilty of a fraud upon the estate of Roth by appropriating to their own use the proceeds, of the policy ; that Spieler was a tool in the hands of Becker; that he was not a bona fide assignee, but signed all the papers Becker presented to him, with the understanding that he was to share in the proceeds, and that he received some three or four hundred dollars of the proceeds of this policy. Spieler also testified that the assignment was originally in blank, and was filled out by Becker after the death of Roth.
    A. Weidman, a witness for the plaintiff, being on the stand, plaintiff’s counsel offered to prove by the witness that Adam Becker, upon examination as a witness on the 30th of October 1873, in the trial of the case of the Commonwealth v. Adam Becker and John Spieler, testified that the writing in the body of the alleged assignment was inserted not at the date at which it purports to be, but a considerable time after the death of Roth.
    Defendant’s counsel objected to the offer as incompetent and irrelevant generally; and that what Adam Becker might have testified to in October 1873, in the case referred to, cannot affect the' defendant company.
    The court admitted the evidence, saying: “It will be received as evidence bearing on the question of fraud on the part of Becker and Spieler, but will not affect the defendant unless notice or knowledge of the fraud in some way shall be brought home to them prior to their payment of the money.
    The witness then proceeded to state that, at a hearing in court, Becker had testified that the assignment was made in blank, and that it was his habit to do so in policies, and that subsequently to Roth’s death he had inserted the name of Spieler.
    Another witness, Gilmore, who was present at the trial of Commonwealth v. Becker and Spieler, and heard what Becker testified on that occasion, about the assignment of the policy, and who also had had a conversation with Becker on the subject out of court, being on the stand, plaintiff’s counsel proposed to ask him, as to what Becker testified, and to examine him as to said conversation. The defendant’s counsel objected, and the court admitted the testimony for the reason given for admitting that of the former witness.
    The witness then proceeded to state what in substance was testified to by the preceding witness, Weidman.
    The court, inter alia, charged:—
    “ You will probably be satisfied from the evidence that Adam Becker and John Spieler were guilty of a fraud upon the estate of John Roth, by receiving and appropriating to their own use the proceeds of the policy; and also guilty of a fraud upon the defendant company, by pretending that John Spieler was a bona fide assignee for value of the policy. The evidence would indicate that John Spieler was a tool in the hands of Becker; that he was not a bona fide assignee, hut signed all the papers Becker presented him, with an understanding that he was to be paid a part of the proceeds. * * *
    “ But if the defendant company, or its general agent, Dart, had not actual knowledge that the assignment to Spieler was fraudulent, but had knowledge of such suspicious facts and circumstances as would have put a man of ordinary prudence upon inquiry, when the fraud might have been discovered, and they did not inquire into the matter, the payment to Spieler, or Becker for him, will not protect the company. If the facts and circumstances known to the company, or to Dart, their general agent, created a reasonable suspicion that something was fraudulent or wrong about the assignment, such a suspicion that a man of ordinary prudence would have refused to pay the money until he had satisfied himself it was right, it would have been the duty of the company, before paying over the money to the assignee, to have inquired into the facts of the case; and if they paid over the money without such inquiry when, if made, the fraud might have been discovered, they cannot now set up such payment as a defence to the plaintiff’s claim. * * *
    “ The plaintiff cannot recover unless, 1. You are satisfied from the evidence that the defendant company, or their general agent, Geo. Dart, had knowledge of the fraud, or of such facts as should have put them upon inquiry, as before explained; or, 2. That notice was given before the payment of this money to Dart not to pay it. If you find either of these points in favor of the plaintiff she is entitled to recover.”
    Verdict for plaintiff for $4034.47, and after judgment thereon, plaintiff took this writ and assigned for error, inter alia, the admission of the above testimony and the portions of the charge noted.

      Moore Milligan and M. W. Aeheson, for plaintiff in error.—
    All connection between Adam Becker and the plaintiff in error had ceased long prior to the trial of the case of the Commonwealth v. Becker and Speiler, in October 1873. He was then an entire stranger to the insurance company. His testimony at that trial and his private statements to Mr. Gilmore, shortly before the criminal trial, were merely narratives of a past transaction, and we submit were clearly inadmissible: Huntingdon Railroad v. Decker, 1 Norris 119; Fawcett v. Bigley, 9 P. F. Smith 411; Bigley v. Williams, 30 Id. 107 ; Benford v. Sanner, 4 Wright 10; Tassey v. Church, 4 W. & S. 141; 2 Wharton on Ev., sect. 1206 ; 1 Greenlief on Ev., sect. 111. The primary question in the cause, was whether the alleged fraud had been committed. It was essential to the plaintiff’s case that the fraud should be established, and so the court ultimately charged. The evidence offered was the only evidence which tended to show it.
    The papers made out Spieler’s right to the money, and on their face, were a complete justification of the company’s settlement with him. Every presumption was in the company’s favor, and to negative that presumption, the defect relied on was that when Roth signed his name, the assignment was in blank, and Spieler’s name was written in after Roth’s death, and the evidence to establish this consisted of statements made by Adam Becker two years after the company had settled the loss.
    Had it ever so clearly appeared by competent evidence that Roth executed the assignment in blank, it by no means follows that the assignment would be null and void if Roth delivered to Spieler or to Becker the policy so assigned in blank.
    Instruments signed in blank and having the names afterwards inserted are valid: Stahl v. Berger, 10 S. & R. 170 ; Seigfried v. Levan, 6 Id. 310 ; Wiley v. Moor, 17 Id. 438; Costen’s Appeal, 1 Harris 292; Building Association v. Sendmeyer, 14 Wright 67.

      J. U. Mueller and Bayne Magee, for defendant in error.—
    Collusion by parties in a fraudulent transaction is sufficient to open wide the door and let in the acts of all the parties concerned in it: McDowell v. Rissell, 1 Wright 164 ; Pier v. Duff, 13 P. F. Smith 59; Peterson v. Speer, 5 Casey 478; Bredin v. Bredin, 3 Barr 81; Hartman v. Diller, 12 P. F. Smith 37; Irwin v. Keen, 3 Whart. 347 ; Reitenbach v. Reitenbach, 1 Rawle 362; McCabe v. Burns et al, 16 P. F. Smith 356 ; Rogers v. Hall, 4 Watts 359; McKee v. Gilchrist, 3 Id. 230.
    [Sharswood, J. — You admit the unsworn testimony of Becker to prove a conspiracy when the company had no opportunity to examine him. Plow can this be done ?]
    The power to pay losses rested in Becker. The money was paid to him and he kept it. The claim, therefore, that he is no longer their agent does not release the compfeny. The money in the custody of Becker was in the custody of the company. If the money was paid to him and he was authorized to pay it to the party entitled thereto, and he knew that Spieler had no insurable interest in this contract can the company be relieved of this act of its agent ?
    [Asnbw, C. J. — The question is whether the act of the agent was within the line of his authority.]
    He attested the assignment, and we claim that this fraud brings the case within the ruling of the above authorities cited, and the doors should be thrown open.
    [Sharswood, J. — If his evidence relates to a past transaction.]
    It all relates to a continued transaction. This man still has the money ; he is still the agent. Suppose that it was an individual. This demand three years after would have charged him:
    [Sharswood, J. — But not a demand against a third person.]

      , He is not a third person. He is the company, so far as this transaction is concerned.
    October 28th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

Prima facie the insurance company, defendant, paid to Becker for John Spieler, the money due on the policy covering the life of John Roth, on faith of the assignment of the 24th of February 1871. Without something to show that the case was, in fact, not as it appeared by this paper; that a fraud had been perpetrated upon Roth’s estate by the insertion of Spieler’s name into the assignment after Roth’s death, and that of this the defendant had notice before payment of the money, the plaintiff has no standing to maintain this suit.

In order to the establishment of a condition of affairs, such as above indicated, the court admitted proof of the declarations of Adam Becker, the sub-agent of the defendant, through whom the risk was taken, that the assignment had been executed in blank, and that he had subsequently to Roth’s death inserted Spieler’s name as assignee of the policy.

To this ruling of the court the defendant excepted, and gave as reasons therefor the following: First, these declarations were not made by Becker at a time when he was acting as agent of the company in the execution of the policy, but long after that execution, when testifying as a witness in a case of the Commonwealth v. himself and Spieler. Second, the insertion of Spieler’s name after Roth’s death was an act committed for his own purposes, not in the line of his agency, and, as a consequence, his declarations concerning the same, could not affect the company.

The first of these reasons is supported by the cases of Fawcett v. Bigley, 9 P. F. Smith 411, and Bigley v. Williams, 30 Id. 107, in which it is held that the narrative of an agent of a past transaction cannot be received in proof in a suit against the principal; the second is so obviously sound that authority to support it is unnecessary. As between the parties to this suit, the declarations of Becker are the declarations of a stranger to the issue, and can affect the case no more than those of any other third party.

It is urged that these declarations were legitimately part of the case, inasmuch as they went to establish the fraud of Becker; it is true, they do tend to prove such fraud, and as against himself, they would be relevant; but this proof is to affect, not him, but the company ; it is the prime factor in the plaintiff’s case, without it she cannot recover, and as it is foreign to the company’s transactions, it must be treated as the proof of any other substantive fact, which requires for its establishment direct evidence, not the declarations of a third party.

The remaining exceptions are not sustained.

The judgment is reversed and a venire facias de novo is ordered.


author: Mr. Justice Sharswood

text:
    McKelvey versus Jarvis, Halpin & Co.
    ], When the plea in a scire facias on a mechanic’s lien was “ no lien,” no question as to the sufficiency of the lien on its face can arise on the trial of issues of fact. Lee v. Burke, 16 P. F. Smith, followed.
    . 2. In the absence of any appropriation by the parties, the law will appropriate payments to the claim least secure. Foster v. McGraw, 14 P. F. Smith 469, followed.
    3. Where work done under a contract is substantially finished, and accepted more than six months prior to the filing of a mechanic’s lien, and extra work is done thereafter to supply a deficiency in the work done under the contract, this will not extend the time for filing the lien to six months from the time said extra work was finished; but if said extra work was done under an agreement with the owner that it should be done as a substitute for work which was to be done under the original contract, and no additional compensation was to be allowed therefor, the time of the lien will be extended.
    October 18th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 183.
    Two writs of scire facias upon mechanics’ liens, issued by Jarvis, Halpin & Co., against John A. McKelvey, owner and contractor. Defendant pleaded, No lien, nil debet, set-off, payment with leave, &c.
    The lien was filed on the 10th day of November 1876, against two adjoining houses, “for labor, materials, &c., furnished to said house in plumbing and gas-fitting, under a gross contract made by claimants with said John A. McKelvey, owner and contractor, done and furnished within six months last past, for and about the erection and construction of the buildings hereinafter described.”
    The bill of particulars was as follows :
    John A. McKelvey, owner and contractor,
    To Jarvis, Halpin & Co., Dr.
    To work as per contract on Shady avenue, houses finished June 18th 1876, . . . $584.00
    Credited by cash,.......$113.95
    Leaving still due claimant,..... $470.05
    The work was all done and materials furnished in the fall of 1875, or at the latest through the winter of 1875, and prior to the 1st day of April 1876. The lien was not filed until the 10th day of November 1876, so that more than six months had expired from the time of completion of the work until the time of the filing of the lien; but the plaintiffs below showed, by Samuel Jarvis, that, on or about June 18th 1876, he met Mr. McKelvey, the defendant, who called his attention to the fact that the firm had.neglected to put in a street-washer; that he, the witness, then called his attention to the fact that the contract did not call for a street-washer, but for two hose-plates, one for each house, and that they, the contractors, had overlooked them, and forgotten to put them in. That he and the defendant, then and there, made an agreement that the plaintiffs should be released from their undertaking to put in the said hose-plates, and in consideration thereof the plaintiffs agreed to put in a street-washer near the curb on the outside of the sidewalk, and that they did so.
    The defendant contended that this new arrangement in June 1876 did not save the lien and bring the whole claim within the six months prior to the filing of the same. The court below, however, decided against him, and this ruling constituted one of the assignments of error.
    On the trial, when the plaintiffs offered the mechanic’s lien in evidence, the defendant objected to it on the ground that it set forth and averred that the work had been done under a special contract, but did not contain or set forth sufficiently the terms of such contract, also; and that the bill of particulars was a lump charge, and did not specify the nature, kind and amount of work and labor done and material furnished. The court, however, overruled the objection to this, and such ruling constituted defendant’s first assignment of error.
    It appeared by the evidence and by the written proposal that the original contract price for the work was the sum of $584. The defendant below claimed and offered evidence tending to show that at the time he accepted the proposal of plaintiffs they agreed to take in part payment an order on Byers & McCullough, tube manufacturers, for $500 worth of gas-pipe, and it was also admitted that said order was afterwards given by the defendant and received by the plaintiffs below, and that they received the pipe therein called for from Byers & McCullough. The plaintiffs, however, while they admitted that they had received the order and got the pipe upon it, yet denied that they had agreed to take it in part payment of, and at the time they made the contract, for this plumbing work, and claimed the right to apply it to a subsequent running account between them and the defendant, as to some other dealings between them; and the ruling of the court upon this question of appropriation formed the subject-matter of another of defendant’s assignments of error.
    The plaintiffs submitted the following point, which the court, Bailey, A. L. J., affirmed.
    That in the absence of any appropriation by the parties at the time, the law would apply the payments to the claim least secure, and that therefore if they find that the parties made no appropriation at the time of the giving of the order and making payments in this case, then these various orders and payments would apply first upon the general book account, and the balance, if any, would be a credit upon the lien. Second assignment of error.
    Among the points submitted by the defendant were the following, with the answers of the court thereto :
    3. If the $584 contract for plumbing and gas-fitting was substantially completed, and was accepted by defendant as finished before May 10th 1876, the fact that defendant claimed that the work had not been done according to contract, and the fact that plaintiffs agreed to do and did do other outside work to compensate for the deficiency, would not preserve the lien.
    Ans. “ I refuse that point, because there is no evidence to cover the facts presented therein.” Third assignment.
    4. It the jury find that said contract was completed before May 10th 1876, work or materials furnished after that time under any new arrangement, or with any purpose whatever, would not preserve the lien.
    Ans. “Refused.” Fourth assignment.
    5. If the jury find that the said contract for plumbing and gas-fitting was completed before May 10th 1876, the request of defendant that plaintiffs should put in a street-washer in lieu of and to compensate defendant for the plaintiff’s failure to put in hose-plates, and the fact that plaintiffs did put in the street-washer connected with the pipe in the street, but not directly connected with any pipe in the houses, would not preserve the lien.
    Ans. “ I refuse that point, and especially it ought to be refused, because it is based upon an allegation which the plaintiffs proposed to prove, but to which the defendant objected and the court ruled it out, so that certainly he could not base the point upon a piece of evidence which he himself had deprived the plaintiff of an opportunity to offer.” Fifth assignment.
    In the general charge, the court, inter alia, said:
    “ I charge you that the street-washer was a substitute for the hose-plates, and the only questions for you to pass upon are : 1. Whether there was an agreement about this $500 order which would make it applicable to this contract for plumbing and gas-fitting; and 2. Whether in good faith this street-washer was put in under the agreement on contract made between the parties for the plumbing and gas-fitting; or whether it was a mere subterfuge or an effort to do something in addition to the contract in order to cover the time requisite to file this lien.” Seventh assignment.
    "Verdict for plaintiffs, and after judgment defendant took this writ, assigning among others the above errors.

      8. W. Cunningham, John Barton and A. Gr. Cochran, for plaintiff in error.
    The scire facias was in due form, and when upon an inspection of the lien upon which it was founded it appeared that the same did not conform to the requirements of the Acts of Assembly, could defendant not under the rules of evidence object to the offer? He raised this question squarely by his affidavit of defence and by his pleas. True the plea of no lien is held to be no plea, but under the statutory plea of payment the defendant may give in evidence anything which goes to show the plaintiff is not entitled to recover: Act of 1705, Bright. Purd. 487. We submit that there is nothing in the evidence that shows that on the 17th day of April 1876, when this order was given and received, that the defendant was indebted to the plaintiffs on any other account than for the plumbing and gas-fitting in these two houses. And even if there was no specific appropriation of it at the time, the law would apply it to the account due and owing. And therefore it was error in the court below to submit this question to the jury upon a general proposition as contained in the plaintiff’s first point. The street-washer was no part of the original contract. It was something not attached to the house at all. The court had no right, as a matter of law, to decide the question of fact whether or not this street washer was a substitution for the hose-plates, required by the original contract.

      Blakeley $ Bigharn, for defendants in error.
    Advantage of a formal defect in a lien must be taken by demurrer on motion to strike off. Plea of “no lien” raises no question as to sufficiency of lien: Lee v. Burke, 16 P. F. Smith 336. On the plea of payment advantage cannot be taken of the invalidity of the lien: Lewis v. Morgan, 11 S. & R. 234; Shelly’s Appeal, 12 Casey 374. In the absence of any appropriation by the parties at the time, the law will apply the payment to the claim least secure: Pierce v. Sweet, 9 Casey 151; affirmed in Foster v. McGraw, 14 P. F. Smith 470. In Parrish and Hazard’s Appeal, 2 Norris 111, it is expressly ruled that work done in altering mud-drums of the machinery built for use in a furnace, which alteration was necessary to operate the mud-drums, although the mistake was that of the architect and not of the mechanic, and the mechanic was allowed for this work, in addition to his contract price, was such a portion of the original work as to make the date of completing the alteration the date of the finishing of the original contract; and that a lien filed within six months from that day was in time. And our case is stronger in this, that when we were required to do this work, it was as a part of the original contract for which we were to get nothing, and for which we have gotten nothing.
    October 28th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

The objection that the contract was not set out in the claim filed was properly overruled by the learned court below, under the case of Lee v. Burke, 16 P. F. Smith 336, which decides that where the plea in a scire facias on a mechanic’s lien was “no lien,” no question as to the sufficiency of the lien on its face can arise on the trial of issues of fact. This disposes of the first assignment of error.

The second assignment relates to the question of appropriation of payment. There was no error in affirming the plaintiff’s first point: Foster v. McGraw, 14 P. F. Smith 464.

The third assignment, however, must be sustained. There was evidence that the contract for plumbing and gas-fitting was substantially completed, and was accepted by defendant as finished before May 10th 1876, and that defendant claimed that the work had not been done according to contract, and that plaintiffs agreed to do, and did do, other outside work to compensate for the deficiency. There was a street-washer put in June 28th 1876, according to Eailey’s testimony. According to the evidence given by Samuel Jarvis, McKelvey, the defendant, met him and complained about the arrangement he was using for a hose. “ I told him that never was put in for that purpose at all; it was merely a branch put in for the use of the bricklayers to make mortar, and that the street-washer arrangement had been overlooked. He said our arrangement was to put in a hose-plate for each house. I admitted that, and we talked the matter over a little, and he wanted it done right away, and he proposed the street-washer; wanted to know if that would answer in place of the other two. I said it would if he was satisfied, and he says, ‘Go ahead and put it in.’ ” This evidence certainly covered the facts presented in the defendant’s third point, which ought, therefore, to have been affirmed, for if the jury believed on this testimony that the street-washer was outside work, done to compensate the deficiency in the work done under the contract, it ought not to preserve the lien. In like manner we think the refusal to affirm the defendant’s fourth point was error, for certainly if the jury found that the contract was completed before May 10th 1876, the claim having been filed November 10th 1876, work or materials furnished after that time under any new arrangement or with any purpose whatever would not preserve the lien. We are of opinion also that there was error in refusing defendant’s fifth point, which was sufficiently based upon the evidence of Jarvis above stated, independently of any evidence offered and ruled out.

We are of the opinion, however, that if the defendant, being the owner as well as contractor, did agree that the street-washer should be put in as a substitute for the hose-plates provided in the original contract, and that it should be done under that contract, and not to be paid for as extra work, and the plaintiffs assented and did the work, it would have the effect of extending the time for filing the claim in six months from the time such work was done. This was a question for the jury, and ought not to have been assumed as a question for the court, and the seventh assignment of error must therefore be sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    German American Bank versus Auth.
    1. Tire bond of a bank messenger conditioned that it should be his duty “ to account for and pay over all moneys that may come into or pass through his hands as such messenger-, and that he shall in all things conduct himself honestly and faithfully as such messenger.” Held, that the sureties on this bond were liable for moneys stolen from the bank by the messenger, whether he was acting within the scope of his employment or not, as the robbery was a breach of the condition to “ conduct himself honestly and faithfully.”
    2. It was not negligence to intrust such a messenger with the keys of the vault, and the combination of the safe of the bank.
    October 18th 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 87.
    Debt on a bond brought by the German American Bank, for use of O. Seibert, assignee, against John O. Auth, George A. Bannantine and Michael Ward.
    Auth having been appointed messenger of the bank, gave to it his bond in the sum of $10,000, with Bannantine and Ward as sureties, conditioned as follows :
    “Now, if the said John C. Auth shall and do well and truly, during any and all times hereafter, so long as he shall continue to hold the office of such messenger (under this or any future election), account for and pay over any and all moneys that may come into, or pass through, his hands as such messenger — and shall, moreover, attend to all the duties appertaining to said position, and perform the same to the best of his ability, and shall in all things conduct himself honestly and faithfully as such messenger, without any fraud or further delay, then this obligation to be void, otherwise to be and remain in full force and virtue.”
    At the trial it appeared from the testimony of Seibert, the cashier, that the bank intrusted Auth with the combination of the safe-lock ; that on Friday the 28th of May 1875, the cashier had counted the money in the bank, and placed it in a tin box, which was placed in the safe by either the cashier or the messenger; that on Saturday the 29th, being a holiday, the bank was not opened, and remained closed until Monday, when it was discovered that about $3000 had been taken from the safe. The door of .the bank and the safe were both locked, and everything in the bank was as it was left on Friday. It was found also that the messenger had absconded. The officers of the bank consisted of a president, cashier and the messenger. No night watchman was employed. Nothing was heard of Auth after his departure by the bank’s officers.
    The plaintiff having shown the above facts and rested, the defendants moved for a nonsuit, “because the evidence of the plaintiff shows that if the money was taken by John O. Auth at all, it was taken from the safe, and in consequence of his having the combination of the safe, and not in his capacity as messenger; and that there is no evidence that it is within the scope of the employment of a messenger that he should have the combination of the safe and access thereto.”
    The court, Kirkpatrick, J., granted the nonsuit, and the court in banc, having subsequently refused to take it off, the plaintiff took this writ and assigned this action for error.

      J. Ludewig Koethen and Slagle £ Wiley, for plaintiff in error.
    —In granting the nonsuit, the court assumed, as matter of law, that the possession of the combination by Auth was the means whereby the theft was perpetrated. Further, that it was no part of the duty of the messenger to have possession of the keys a,nd access to the safe. Both of these assumptions were clearly erroneous.
    But admitting that the money was taken when he was not in the performance of duty as messenger, would the bank not be liable, nevertheless ? By reason of his employment as messenger he has access to the bank building; he comes to be regarded as a part of the establishment, and, therefore, allowed to pass back and forth without the observation which would be given to a stranger. It would be a narrow construction of the bond which would limit the liability to thefts committed of money intrusted to him to carry to and from other banks, and not to include the theft of money which he only could have the opportunity to commit by reason of his employment as messenger.

      James P. Sterrett, J. M. Kennedy, and J. O. Doty, for defendants in error.
    Auth had been elected messenger of the bank. ,The obligation was to secure the bank for moneys which might come into his hands as messenger. If he conducted himself honestly and faithfully as messenger he fulfilled the condition of the bond.
    The rights of the parties must be determined by the condition of the bond. A surety cannot be held liable beyond the terms of his obligation; Commonwealth v. Simonton, 1 Wright 310 : Building Association v. Benson, 2 W. N. C. 541. Auth had the keys of the bank and the combination of the safe. He left home between ten and eleven o’clock on the night of Sunday May 30th 1875. He must have opened the bank, unlocked the vault and safe and taken the money at night. He was enabled to do this, because the bank allowed him to carry the keys and have the combination of the safe. By so doing, the bank assumed the risk itself. Auth’s sureties are not answerable for the loss. In the absence of evidence it cannot be customary to accord to messengers such extraordinary privileges.
    October 28th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

John O. Auth, the principal in the bond in suit, was messenger for the German American Bank, and as such was, from time to time, trusted to handle the moneys of that institution. On the 28th day of May 1875, according to the statement of Charles Seibert, the cashier, some three thousand and sixty-six dollars were placed in a tin box or till, used for such purpose, and, as he thinks, was delivered to Auth to be put into the safe. This was on Friday evening; the bank-vault and. safe were not opened until the next Monday morning, but when opened, it was found that the above-mentioned sum of money was missing. In the meantime, Auth had eloped. There is not much doubt, if the testimony is to be credited, but that he stole this money; certainly the evidence is sufficient to justify a jury in so finding, especially since, in addition to what has been above stated, it was in proof that he had in his possession duplicate keys of the bank and vault, and had also knowledge of the combination necessary to open the safe-lock. The court, however, on motion of the defendants, sureties of Auth, nonsuited the plaintiff, for the reasons following, viz.: because the evidence of the plaintiff showed that if the money was taken by John C. Auth at all, it was taken from the safe, and in consequence of his having the combination of the safe-lock, and not in his capacity as messenger; that there was no evidence “ that it was within the scope of the duties of a messenger to have the combination of the safe and access thereto.”

From this action of the court we feel obliged to dissent, and as a reason for so doing, it might be sufficient to call attention to the fact, that whether Auth’s duties as a messenger required that he should or should not be intrusted with the bank-keys, it certainly was his duty, as a bank employee, to act honestly. Granting, therefore, that the cashier acted negligently in committing to him the combination, he did not the less violate his duty in stealing the money of the bank.

It is not necessary, however, to look beyond the face of the bond itself, in order to discover the incorrectness of the court’s ruling. The bond recites that it shall be the duty of John C. Auth to account for and pay over all moneys “that may come into or pass through his hands as such messenger, and that he shall in all things conduct himself honestly and faithfully as such messenger.” Here are two things made obvious: (1) he is to be intrusted with the funds of the bank; (2] he is to be honest and faithful in the execution of the trust thus confided to him. Thus it is, that without a discussion of the peculiar duties of a messenger, as defined by dictionaries, the bond itself clearly indicates what the duties of John C. Auth were, and how those duties were to be performed. And if, now, John C. Auth did act honestly and faithfully with reference to the funds of this bank, which passed through his hands, then is the thief an honest man, and then, also, is it true that the condition of the bond remains unbroken.

But .what, after all, was the great impropriety of intrusting to Auth the combination of the safe-lock ? It must needs, in order to avoid accident, be committed to some one or more persons, and who more proper than one who had the handling of the bank funds, and who was held in a heavy bond to act honestly? Besides, if he was to be intrusted with the moneys of the bank, why not with the place in which those moneys were to be kept ?

Be this, however, as it may, the whole matter is summed up in this: Auth availed himself of his position in the bank to rob it, and but for that position he could not have accomplished his purpose. The loss to the plaintiff resulted from the abuse of powers which he, Auth, had acquired as its messenger; and so, .whether he got at this money by fraud and craft, by picking or breaking the locks, or through the confidence placed in him by the cashier, is óf no moment, since, in either case, he- violated his duty as a subordinate officer or servant; he was not an honest and faithful messenger, and therefore the condition of his bond wras broken.

The judgment is reversed, and a venire facias de novo is awarded.


author: Mr. Justice Meruur

text:
    Varner’s Appeal. Robinson’s Estate.
    The testator devised all of his estate to trustees to pay over the income of one-half thereof to his granddaughter until she attained the age of twenty-five years, and then to convey to her in fee the one-half of his estate, “ subject to the payment of its pro rata share of the annuities hereinafter charged on my said estate.” In another clause of his will he directed the income of the other half to be paid to his two nephews and a niece in equal shares, and when the youngest of them attained the age of twenty-one years, their shares should be conveyed to them in fee, “ subject to the payment of the pro rata share of each of the annuities hereinafter charged upon my said estate.” In two separate clauses he created annuities and made them an express charge upon the shares of 'the nephews and niece, but made no mention of the granddaughter in either of these clauses. Commissioners were appointed to make partition of the estate, who divided the same into two purparts, and charged each with the payment of one-half of the annuities, which charge the court sustained, on the ground. that it was the manifest intent of the testator to charge both parts of his estate, and that it was evident that the name of the granddaughter had been omitted by mistake in the clause giving the annuities. Held, reversing the court below, that the name of the granddaughter could not be thus supplied, and that her share was not subject to the burden of the annuities.
    2. Words can only be supplied in a will where they are necessary to give effect to the unquestionable purposes of a testator, but where they will not advance this intent no such change can be made.
    3. The trust to the granddaughter was an active one until she attained the age of twenty-five years, and the court was right in allotting her purpart to the trustees until she reached that age.
    October 18th 1878.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 252.
    Appeal of Matilda C. Varner, guardian of Margaret Blanche Millard, a minor, from the decree of the court dismissing exceptions to the report of commissioners appointed to make partition of the real estate of John D. Robinson, under the will of said decedent.
    By the will of said decedent, he devised all his real estate to his executors, James P. Speer and William D. Moore, for the following purposes, which are herewith briefly stated, but which will be found more fully set forth in the opinion of this court:
    The executors were directed: 1. To annually collect and pay over to Margaret Blanche Millard, the granddaughter of the testator, the one-half of the income and profits of the estate until she attained the age of twenty-five years, and then one-half to be conveyed to her in fee for her sole and separate use, “ subject to its payment of its pro rata share of the annuities hereinafter charged upon my said estate.”
    2. To annually collect and pay over to his nephews, William R. Blair and James A. Robinson, and his niece, Mary A. Blair, each one-third of the remaining one-half of the income and profits of his estate until the youngest should attain the age of twenty-one, when one-third of the one-half of the estate was to be conveyed to each in fee, “subject to the payment of the pro rata share of each of the annuities hereinafter charged upon my said estate.”
    8. To collect and pay over to Mary Hays, the cousin of testator, during her lifetime, the sum of $500 per annum out of the income and profits “of my said estate,” before the payment of the amounts ordered to be paid to the nephews and niece, “and when the estate in fee shall be conveyed by my trustees to the parties last named, it shall be made subject to the payment of this annuity of $500 to the said Mary Hays.”
    4. To collect and pay to Nancy Gallagher, the mother-in-law of testator, during her lifetime, the sum of $200 per annum out of the income and profits of my said estate, before the payment o'f the sums ordered to be paid to his nephews and niece, and providing in the same manner that when the estate was conveyed to them in fee it should be subject to the payment of this annuity of $200.

      In the event of the granddaughter, Blanche Millard dying before the age of twenty-five, without issue, a subsequent clause of the will gave her share to collateral heirs.
    The executors and the nephews and niece petitioned the Orphans’ Court, setting forth the will and averring that Mary Blair, the youngest of the devisees under the second item of the will, had attained the age of twenty-one, and praying for a partition of the real estate. Commissioners were appointed for that purpose, who made a report dividing the real estate into two purparts, and charging each with the payment of the one-half of the annuities to Mary Hays and Nancy Gallagher. To this report the guardian of Blanche Millard excepted, on the ground that the commissioners erred in charging any part of said annuities on the purpart of Blanche Millard, as by the will of John D. Robinson her share and interest in said estate was not liable to pay any part of said annuities.
    The court, Hawkins, P. J., dismissed these exceptions in an opinion, saying:
    “It is evident from a careful examination.of the will of John D. Robinson, deceased, that the name of Margaret Blanche Millard has been accidentally omitted from the third and fourth items. The intent of the testator was that his whole estate should be subject to the payment of the annuities given to Mary Hays and Nancy Gallagher. This is clearly expressed in the first and second items of the will, and the same idea appears in the first part of the third item. The remaining portion of the latter item is, so far as it goes, consistent with that intent, but the whole intention of the testator is not fully expresséd. It is a repetition by reference of the provisions of the immediately preceding second item of the will, and for the purpose of construction, these two items (two and three) must be read together. The sums devised and ordered to be paid hereinbefore to William Robinson Blair, Mary Blair and James Alexander Robinson, were not in terms, nor intended to be reduced, but postponed, as they had been postponed in the second item of the will; any other view would reduce the will to an absurdity. It would be inconsistent with the general intent of the testator, and make the first and last clauses of the third item inconsistent with each other. The testator directs that the annuities shall be paid out of the income of his “ estate,” not any particular portion of his “estate,” but his “estate” generally, “before payment” of those “sums,” as provided “hereinbefore.” “.Hereinbefore” those “sums” were made fixed and certain, and so far as the Blairs and Robinson were concerned, their payment was postponed, only to payment of one-half of these annuities. How shall the other half of these annuities be paid ? That question is answered by reference to the first item in the will, in which the share of Margaret Blanche Millard is expressly charged therewith. It is evident that the intention of testator is. not fully expressed in the third and fourth items of his will, and that the defect can only be supplied and the will made harmonious, by the insertion therein of the name of Margaret Blanche Millard, along with those of William Robinson Blair, Mary Blair and James Alexander Robinson; that names may be supplied when necessary to effectuate the intention, is settled beyond question : 1 Williams’s Executors 1084; McKeehan et al. v. Wilson, 3 P. F. Smith 74. The exceptions must therefore be dismissed.”
    From this decree this appeal was taken.

      R. S. Woods, for appellant.
    In the first clause of his will the testator evidently intended to give to his granddaughter an estate charged with a pro rata share of the annuities, but he manifestly changed his mind and relieved her share of the burden, and imposed it entirely on the other half devised to his nephews and niece. If two clauses in a will are irreconcilable the latter must prevail: Newbold v. Boone, 2 P. F. Smith 167; Shreiner’s Appeal, 3 Id. 106; Horwitz v. Norris, 10 Id. 261; Snively’s Executors v. Stover, 28 Id. 484. In case of doubt, the court will adhere to the general rules of inheritance: France’s Estate, 25 P. F. Smith 220. The trust was not an active one, and her purpart should have been directly awarded to the granddaughter.

      George Sidras, Jr., and F. M. Magee, for appellees.
    The name of che granddaughter was doubtless omitted by mistake in the third and fourth clauses, and the court had the right to supply the omission: 1 Redfield on Wills 453 ; Carter v. Bloodgood’s Executors, 3 Sanford’s Ch. R. 293; Jesson v. Wright, 2 Bligh’s R. 56; Mc-Keehan v. Wilson, 3 P. F. Smith 76; Sheets’s Estate, 2 Id. 263. The trust is an active one. The power and duty to pay over the income and preserve the estate for the remaindermen, are those of a trustee and not an executor merely: Sheets’s Estate, supra.

    January 6th 1879.
   Mr. Justice Meruur

delivered the opinion of the court,

This contention arises under the will of John D. Robinson. It is whether the portion of the real estate devised to the appellant, is chargeable with the payment of a share of the annuities given to others by the same will ? The court below held her lands so chargeable, and on petition decreed accordingly. From that decree this appeal was taken. After the payment of his debts, the testator devised to trustees named, all his real and personal estate, “ in trust for the following specified purposes, and subject to the charges and annuities hereinafter stated.” He then proceeded to declare: “First, they shall annually collect and pay over to my granddaughter, Margaret Blanche Millard, daughter of Joseph and Clara Millard, the one-half the net income, rents, issues and profits of my said estate until she attains the age of twenty-five years, at which time they shall make over to her by good and sufficient legal conveyances, the one-half of all my said estate for her sole and separate use in fee and in perpetuity, subject to the payment of its pro rata share of the annuities hereinafter charged upon my said estate.” Second, in like manner and by similar language, he directed them to pay over to each, William Robinson Blair, Mary Blair and James Alexander Robinson, his two nephews and niece, the one-third equal portion of the remaining one-half the rents, issues arid profits of his estate until the youngest of them should attain the age of twenty-one years, at which time the trustees should make over to “ each the equal one-third portion of the one-half of my said estate by good and sufficient legal conveyances, in fee and in perpetuity and for the sole and separate use of each one of them, subject to the payment of the pro rata share of each of the annuities hereinafter charged upon my said estate.” Third, they shall annually collect and pay over to my cousin, Mary Hays, during her lifetime, the sum of $500 per annum, out of the income, rents, issues and profits of my said estate, and before the payment of the sums devised and ordered to be paid hereinbefore to William Robinson Blair, Mary Blair and James Alexander Robinson, respectively; and- when the estate in fee shall be conveyed by my trustees to the parties last named, as hereinbefore provided, it shall be made subject to the payment of this annuity of $500 to the said Mary Hays for and during the term of her natural life, for her sole and separate use.” Item fourth in like manner directed them to pay over to his mother-in-law, Nancy Gallagher, annually, during her life, the sum of $200 out of the income, rents, issues and profits of his estate, “ before the payment of the sums hereinbefore devised and ordered to be paid respectively to William Robinson Blair, Mary Blair and James Alexander Robinson, and when the estate in fee shall be conveyed to the last-named parties,” it shall be conveyed “subject to the payment of this annuity of $200 to the said Nancy Gallagher, for and during the term of her natural life.”

No subsequent item imposes any charge on the real estate devised to the appellant. The learned judge, however, thought inasmuch as the first item declared an intention of making her lands chargeable with annuities thereafter to be named, that the true intent of the will should be supplied by inserting the name of the appellant in the third and fourth items respectively. If the law will admit this addition of her name, then the court was correct. It is evident that when the first item was written the testator did intend to make the real estate devised to the appellant chargeable with the payment of a part of the annuities which he then intended to give, but he was wholly silent as to the sums to be given and to whom payable. Whether he had in his mind only the annuitants subsequently named, or whether he contemplated extending his bounty to others, this item fails to disclose. The language in the third and fourth items is so clear and specific in charging the annuities of Mary Hays and Nancy Gallagher, on the lands devised to the collateral heirs, that there is no room for doubt. It expressly declares that' the lands to be conveyed to these collateral heirs, giving their full names, shall be subject to the payment of these annuities. The language in each item being so full, distinct and positive that their lands should be so charged, it would be a forced construction to assume the name of the appellant was omitted in each case through mistake. It is much more reasonable to presume that after the first item was written the testator changed his mind, and then caused the third and .fourth devising clauses to be so written as to impose the annuities on the lands of the collateral heirs only. This presumption is strengthened by the paragraph which follows the fourth. As if to give some equivalent for thus charging their lands, it declares in case of the death of Margaret Blanche Millard before the age of twenty-five years, without lawful issue of her body, then the portion devised to her shall go to and be vested in fee in the said three collateral heirs. The early childhood of the appellant, when the will was made, added to the value of this contingent estate, may have been deemed by the testator a full equivalent for subjecting their lands to the other half of the annuities. The will, however, is not so ambiguous or obscure as to require us to search for the reasons influencing the action of the testator. It is sufficient if a consideration of the whole will reasonably indicates that the testator did not intend to make the land of the appellant subject to the payment of any part of the annuities specified. We think it does so indicate. Nor is this conclusion irreconcilable with the general as well as the particular intent of the will. The language is not so inconsistent as to be incapable of being reconciled. It is true words may, in some eases, be supplied to carry out a defectively-expressed intent, but not to create another intent where one is distinctly expressed, as here, by the language of the will. They can be supplied only in cases necessary to give effect to the most unquestionable purpose of the testator: 1 Red-field on Wills 470. Hence, if a doubt arises that the change would advance the real intent of the testator, it cannot be made : Annable v. Patch, 3 Pick. 360. Besides, in a doubtful case, we should adhere, as closely as the language will permit, to the general rules of inheritance: France’s Estate, 25 P. F. Smith 220. The appellant being the heir at law, every fair intendment of construction should be made in her favor: Bender v. Dietrick, 7 W. & S. 284; Cowles v. Cowles, 3 P. F. Smith 175. The learned judge therefore erred in holding the language of the first item to be sufficient to justify the addition by the court of the name of the appellant to the third and fourth devising clauses, and thereby imposing an additional liability on her.

The trust is an active one. The appellant has not attained the age when she will be entitled to take the property out of the hands of her trustees. The court, therefore, committed no error in allotting the purpart to her trustees, and not to her personally. The purpart so allotted ought not to be subject to the payment of any part of the annuities. They must be charged wholly on the property allotted to the appellees.

Decree reversed, and record remanded, with instructions to decree conformably with this opinion. The costs of this appeal to be paid by the appellees.


author: Mr. Justice Mercur

text:
    Janes’s Appeal. Janes versus Crowell.
    1. When by a final decree by the Supreme Court, costs are imposed upon either plaintiff or defendant, the court below cannot make a different decree imposing any portion of the costs upon the opposite party.
    2. The fees of a master, are the subject of appeal, and if the question of their payment is not raised on an appeal to the Supreme Court, they are comprehended in the “ costs” and must be paid by the party upon whom the costs are imposed by the decree of said court.
    3. The court below decreed that complainant’s bill should be dismissed with costs. On appeal, the Supreme Court affirmed the decree of the court below, and ordered the appeal dismissed, and that the appellant should pay the costs. The court below, after this decree made an order that the defendant below should pay the fees of the master. Held, that the court could not make such a decree, after the final decree of the Supreme Court, and that the “ costs” directed to be paid by the decree of the latter court, included the fees of the master, and the fact that the specific amount of the costs was not ascertained at the time of the decree, did not change its conclusive effect.
    October 21sfc 1878.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Certiorari to the Court of Common Pleas of Mrie county: Of October and November Term 1877, No. 278.
    Appeal of Heman Janes from the decree of the court directing appellant to pay a master’ fee and other costs in certain proceedings in the court below. The proceedings are fully set forth in the opinion of this court.

      Benson Brainard, for appellant.
    The decree of the Supreme Court was final and conclusive, and no order or decree awarding costs thereafter and contrary to said decree could be made: 1 Barb. Ch. Pr. 326; Travis v. Waters, 12 Johns. 500. Where a party is entitled to costs, he should take care and apply for them at the hearing or before decree, as after the decree the court will not award costs : Daniels’s Ch. Pr. 1487; Gibson v. Cummings, 1 Casey 231. The decree of the court carried all the costs, inclusive of the master’s fees, and if there was error in paying the latter, it should have been assigned and taken advantage of before decree: Persch v. Quiggle, 7 P. F. Smith 247.

      L. S. Norton, for appellee.
    Costs in chancery are within the discretion of the court: Coleman v. Ross, 10 Wright 180; Snyder v. Wolfley et al., 8 S. & R. 328; Gyger’s Appeal, 12 P. F. Smith 73; Totten’s Appeal, 4 Wright 385; Travis v. Waters, supra. The court below had authority to make an additional order in regard to the costs notwithstanding the final decree of this court: Riddle & Co. v. Mandeville & Jameson, 5 Cranch 322; 6 Id. 86; The Sapphire, 18 Wall. 51; Kraut’s Appeal, 21 P. F. Smith 64, and 1 W. N. C. 211; Id. 401; Totten’s Appeal, supra. Costs are an allowance to a party for expenses in conducting his suit; fees are a compensation to an officer for services rendered in the progress of the cause. Costs, as awarded to a party in equity, is not a generic, but a specific term, and means, therefore, only “an allowance to a party for expenses incurred in conducting his suit.”
    January 6th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

The question presented here is as to the power of the court below to make the decree imposing costs on the appellant. A statement of the order in which the proceedings were had, is necessary for a correct understanding of the case.

The appellee filed his' bill against the appellant. After answer, and the evidence taken by an examiner, a master wras appointed. He reported, recommending that the bill be dismissed. Exceptions to his report were filed, argued and overruled. The record then declares, “this cause came on to be heard June 22d 1874, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the complainant's bill be dismissed with costs.” From that decree the complainant appealed to this court. November 1st 1875, we affirmed the decree of the court below, ordered the appeal dismissed, and that the appellant therein pay the costs. In January 1877 the master, by his attorney, moved the court below to fix his compensation, and to make a decree for its payment. This resulted as follows : “ Now, September 18th 1877, it is ordered and decreed that the compensation of the master in this case, G. W. Lathy, Esq., be fixed at the sum of $250, and which shall be paid by the defendant, Hernán Janes, within ten days after notice; and it is further ordered and decreed that all the other costs shall be paid by the plaintiff, W. E. Crow-ell, and the said Heman Janes shall also pay the costs of the rule to show cause, on which this opinion is filed.” From that decree this appeal was taken.

Thus it appears the compensation of the master had not been fixed, nor the amount of the costs ascertained, at the time the court below decreed that the complainant’s bill be dismissed with costs. Nevertheless, that decree imposed all the costs on the complainant. It imposed none on the defendant in the bill. The fact that the specific amount of the costs was not then ascertained did not change the conclusive effect of the decree. It imposed on the complainant all the costs properly chargeable in the case. Subsequent taxation only made the sum certain, which the previous decree had ordered the complainant to pay. His appeal from that decree to this court brought the whole record before us. Then was the time to present all his objections to the decree. Any alleged error imposing costs on him, as well as in dismissing his bill, should then have been assigned. The legal effect of the affirmance of that decree by this court, was to confirm all its parts. A decree in equity is as conclusive as a judgment at law. The judgment of this court not only declared there was no error in dismissing the bill, but also that the costs were justly imposed on the complainant. As against the defendant in the bill, the case was then ended. The decree of the court below had discharged him from all taxable costs. That decree had been affirmed by this court. The whole duty of the court below was to determine the amount of taxable costs, and to enforce their payment out of the complainant in pursuance of the original decree. Due precaution on the part of the complainant would seem to have made it advisable for him to have caused the costs to be taxed before taking his appeal: Gibson v. Cummings, 1 Casey 231. His liability to pay the costs was not an open question, after the affirmance of the decree by this court.

It is not necessary to answer the argument as to the discretionary power of the court below over the costs when it made the original decree. All that may be conceded. The question now is not what disposition it might then have made of the costs; but on whom it did then impose them. That decree was what this court affirmed. The court below could not thereafter change it.

It was contended by the appellee on the argument that compensation to the master is not a part of the costs. The case of Musser v. Good, 11 S. & R. 247, was cited to show the distinction between costs allowed to a party and fees to an officer. Eor some purposes the distinction is well founded; yet we are unable to see how it can avail the appellee in this case.

The court below considered the master’s compensation as costs. After ordering the payment thereof, it ordered “all the other costs” to be paid by the complainant, “except the costs of the rule to show cause” which it imposed on the defendant in the bill. The designation of “ other costs” necessarily implied that the former were costs. The “other costs” and “costs of the rule” must have included the prothonotary’s fees. Hence it follows that all the taxable fees were considered “costs.”

Worcester, adopting the definition given by Burrell, says, “costs are expenses which are incurred either in the prosecution or defence of an action, or of any process at law or in equity, consisting of the fees of attorneys, solicitors or other officers of court, and such disbursements as are allowed by law.”

When a party in a litigated proceeding-is duly adjudged to pay costs, his liability is not restricted to the disbursements and expenses which the opposite party may be entitled to receive, but extends to the fees of the officers .of the court for services rendered therein. When these united sums are taxable in the case they constitute “the costs” for which he is liable. In one gross sum, he pays both.

When the time arrives for the opposite party-and the officers to receive their respective parts, the right of .the officers to their fees must be recognised. The party is not entitled to them. If he collects he holds them in trust for the officers. Between the party claiming his costs and the officers claiming their fees, the distinction is substantial. As against the party compelled to pay them, all the items are costs. The learned judge, therefore erred in decreeing any portion of the costs to be paid by the appellant, and so much of the decree must be reversed.

Decree reversed at the costs of the appellee. And now, January 6th 1879, it is further ordered, adjudged and decreed that the compensation of the master be fixed at $250, and that all the costs be paid by the complainant below, W. E. Crowell.