author: Mercur, J.

text:
    The Farmers’ Mutual Insurance Co. versus Taylor for the use of Grow.
    1. An application was made to the agent of an insurance company for a risk of $4000 ; the agent in forwarding the application said if the company would not take $4000, he would place $1000 in another company of which he was agent; the secretary said he would take but $3000, which was placed in the first company and $1000 in the other, both policies being issued at the same time: the conditions of first company avoided the policy unless other insurance were immediately notified to the secretary and endorsed on the policy; eight months after and before any loss, the agents endorsed the other insurance on the policy and notified the company, who made no objection ; the agents wrote policies for the company, to be countersigned by the agents. Held, in an action to recover for a loss, there was evidence for the j ury that the company had notice of the additional insurance when their policy was issued.
    2. The company could not with knowledge of the facts retain the premium and withhold their objections till after a loss.
    3. A policy was to be void if assigned without the written approval of the secretary. It was assigned and an approval signed by the agent “for secretary,” the agent was accustomed to approve assignments and report monthly to the company on blanks furnished for that purpose by the company ; this assignment was immediately reported in addition to the monthly reports. Held, that the policy was not avoided after loss, by the assignment.
    4. The agent informed the secretary the next day after the loss. This was sufficient notice.
    5. A statement of loss may be waived by the company, and if there be evidence from which a waiver may be inferred it is for the jury. Evidence of waiver in this case sufficient to go to the jury.
    6. If a company expressly gives an agent powers outside his written authority, or encourages him to exercise them for a long time and ratifies them, so as to induce the public to rely on his enlarged agency, they cannot after a loss fall back upon his written authority to avoid acts done by their encouragement in the general scope of the business.
    7. The public is justified in presuming that such continued acts are within the agent’s authority.
    8. The acts and declarations of the general agent and adjuster of an insurance company in the scope of his employment communicated to the insured, are admissible in evidence.
    March 11th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Susquehanna county: No. 133, to January Term 1873.
    This .was an action of covenant on a policy of insurance brought July 20th 1870, by David Taylor to the use of E. P. Grow against the Farmers’ Mutual Fire Insurance Company, to recover for loss sustained by the plaintiff by the burning of his property insured by the defendants.
    1 The cause was tried April 16th 1872, before Morrow, J.
    C. L. Brown testified that he and Billings Stroud were agents for the defendants in 1868, and had been for some years.
    Stroud testified that he had been their agent for some years before Brown was united with him.

      Both witnesses then proved the policy which was issued October 8th 1868, from the defendants to D. Taylor, Jr., and which was given in- evidence, to wit:—
    “ The Farmers’ Mutual Fire Insurance Company oe Pennsylvania, by this policy of insurance, in consideration of seventy dollars, &c., do insure David Taylor, Jr., of Owego, &c., against loss or damage by fire, to the amount of three thousand five hundred dollars, on the following property as described in application and survey No. 34,618, which is hereby declared to be part of this policy and a warranty on the part of the assured, viz.: On his frame hotel building, with hall, woodhouse and kitchen attached, situate detached in Glenwood, Susquehanna county, Penn., $3000. On, his frame hotel barn, &c. 4 Other insurance in Lycoming of $1000, in Imperial of London $1000.’
    Stroud & Brown.”
    44 And the said company do hereby promise and agree to make good, &c., all such immediate loss or damage, &c., to be paid within three months after notice, proof and adjustment thereof, in conformity to the conditions annexed to this policy: Provided always, that in case the assured shall already have any other insurance against loss by fire on the property hereby insured, not notified to this company, and mentioned in or endorsed upon this policy, then this insurance shall be void and of no effect; and the assured hereby covenants and engages that the representation given in the application for this insurance is a warranty on the part of the assured, &c.
    44 And that if any fact or circumstance shall not have been fairly represented; or if the said assured, or his assigns, shall hereafter make any other insurance on the same property, and shall not give immediate notice thereof to the secretary and have the same endorsed on this instrument, or otherwise acknowledged by him in writing, then this policy shall cease and be of no effect. * * *
    44 And it is moreover agreed and declared, that this policy is made and accepted in reference to the application, also the conditions hereto annexed, which are hereby made a part of this policy, and to be used and resorted to, in order to explain the rights and obligations of the parties hereto.
    44 This policy shall not be valid until countersigned by the duly authorized agent at Montrose, Pa.
    44 In witness whereof, the said Farmers’ Mutual Fire Insurance Company have caused these presents to be sealed with their seal, „ and signed by their President and Secretary, at their office, in York, Pennsylvania. H. Kraber, D. Stickler,
    [l. s.] President. Secretary.
    44 Countersigned at this day of A. D. 186 Agent.”,

      “ Conditions on Insurance. — * ********
    “ 6. This policy shall not be assignable in whole or in part, without the written approval of the secretary, and in case of any transfer of interest in this policy, or any part thereof, either by sale or otherwise; or if the property herein insured, or any part of it, shall be transferred by any contract, or any change of partnership or ownership, whether prior or subsequent to any loss or damage to the property insured, without the written consent of the secretary, this policy shall thenceforth be void. * * *
    “ 9. In any case where the consent of this company is granted to a transfer of the policy as collateral security, then in case of loss or damage by fire to the subject insured, the assured party, and not the mortgagee or assignee, is required to make the requisite proofs of loss.
    “ 10. Persons sustaining loss or damage by fire, shall forthwith give notice thereof, in writing, to the secretary of the company, and as soon after as possible shall deliver a true copy of the written part of the policy, with the endorsements thereon (if any) and a particular account of the loss or damage; and they shall accompany the same with their oath or affirmation; declaring the said account to be true and just; showing also whát other insurances (if any) have been made on the same property, and giving a copy of the written portion of the policy of each company with the endorsements thereon. * * *
    “ And said company shall in no case be deemed to have waived a full, literal and strict compliance with, and performance of each and every of the terms, provisions, conditions and stipulations in this policy contained, and hereto annexed, to be performed and observed by and on the part of the insured, and every person claiming by, through or under them, unless such waiver be express, and manifested in writing, under the signature of the secretary of said company.”
    This assignment, endorsed on policy, was admitted by the court after objection by defendants that it was without the approval of the secretary, after hearing the evidence on the subject, as hereafter stated, and sealing a bill of exceptions :—
    “ Eor value received, I hereby transfer, assign and set over unto E. P. Grow and his assigns, all my title and interest in this policy, and all advantage to be derived therefrom.
    “ Witness my hand and seal this 14th day of November 1866.
    “ David Taylor, Jr. [seal.] “ Sealed and delivered in presence of Approved.
    “David Taylor. Stroud & Brown, for Secretary.”
    Stroud testified: “ We had authority to make transfers and inform the company of what we had done in our monthly reports— made first of each month. We made these transfers for three or four years and reported to the company, and our reports were approved. If not, they called our attention to such matters as they would not approve. I think I signed assent of secretary, to policy before this. We reported this to the company the day of the date of this assignment, our books will show. Think it was written authority to make these assignments.”
    C. L. Brown testified: “ This is my signature, approving this assignment. They sent us blanks to fill out, making reports of such assignments as this. This assignment was reported and no objection made until after the fire. We were in the habit of making such assignments as this, and report to the company. They were not blanks for making monthly reports, but for reports of cases where we approve assignments. This case was reported to the company. I notified the company the same day I approved of the assignment. It was the 21st of November 1868. The notice was by mail.”
    The agents’ certificate of appointment was as follows:—
    “No. 92. Stroud & Brown, Agents.
    “ The Farmers’ Mutual Life Insurance Co., of York, Penn’a.
    “ This certifies, That Messrs. Stroud and Brown, of Montrose, county of Susquehanna, and state of Pennsylvania, have been duly appointed as agents of The Farmers’ Mutual Fire Insurance Company, of York, Pa., and are authorized to receive applications, premium-notes and cash premiums for said company, agreeably to the by-laws and instructions given and furnished to them by said company, from time to time, through their secretary or general agent. This authority of the said Stroud & Brown, nevertheless, is subject at all times to be revoked by the president or secretary of the said company.”
    The application for the insurance described the property as set out in the policy.
    To the 12th interrogatory accompanying the application, to wit, “ Is the property insured?” the answer was, “No.” Following the application are these clauses:—
    “ And the undersigned applicant for the proposed insurance hereby covenants and agrees with this company, in case of loss, to adjust the same in accordance with the by-laws of the company, and the conditions of the policy and application. * * * Dated Grlenwood, September 22d 1868. David Taylor, Applicant,
    “ Stroud & Brown, Agent. per Oafferty.
    “ The following questions must be answered fully and definitely by the agent, and when this is not done the application will be declined.
    “1. Has this company any other insurance in this building ? If so, for whom and what amount ? No.
    * * * Stroud & Brown, Agent.”
    The plaintiff then gave evidence of the destruction of the property by-fire on the 18th of March 1870, and that the property destroyed was worth about $8000.
    F. P. Grow the use-plaintiff testified, that E. R. and F. P. Grow built the buildings and sold the premises to A. F. Snover. They took a judgment for $3599.80, part of the purchase-money, to April Term 1856, which was revived against Snover October 9th 1865. Snover sold to J. Cafferty and wife; the deed was dated October 23d 1865; he took a judgment-note from them payable in instalments, for $4815, “in part payment of Glenwood hotel, on which E. R. and F. P. Grow had judgment, and defendant in Snover’s judgment had a right to pay Grows;” judgment was entered on the note October 23d 1865.
    On the 20th of February 1867, this judgment was assigned by Snover to E. R. and F.. P. Grow. About the same time Cafferty and wife sold to D. Taylor, Jr. By an amicable scire facias between the Grows plaintiffs, and Cafferty and wife and D. Taylor, Jr., defendants; the Cafferty judgment to Snover was revived September 29th 1870.
    The policy was assigned by Taylor to Grow to secure the judgment to E. R. and F. P. Grow, and whatever the parties owed them; at the time of the assignment Taylor owed them $5500.
    The plaintiff gave evidence that B. F. Walker was in 1870 the agent and general adjuster of the defendants.
    Plaintiff offered to prove, by C. L. Brown the agent for defenddant and others, that Grow informed him of the fire immediately after it occurred; that he accepted the information, and communicated the fact at once, by letter, to the secretary of the company; that soon after, and in consequence of said information, the company sent Walker, who was their general adjusting agent (having power to settle and pay losses), to Glenwood. That he examined the premises, the parties, &c., and informed plaintiff that he was satisfied, and would pay the policy. Then he (Walker) went to Owego, and there made up the formal-proofs, for and with Taylor (the assured), and then he informed the Montrose agent (Stroud) that Taylor had made all the necessary proofs. That he would pay it. Stroud at once informed plaintiff of this, and that no further proofs were necessary: plaintiff rested upon this.
    Defendant objects to the offer, on the ground that the notice of loss and preliminary proofs, being in writing, are the best evidence, and it is within the power of the plaintiff to offer the written notices and proofs.
    The offer was admitted, and a bill of exceptions sealed for defendants.
    Brown testified that he received from Grow notice of the loss, and notified the company of it by letter by the next mail, addressed to the secretary, and that on the 31st of March Walker came to the office of Stroud & Brown, and said they had received the notice and that he came to adjust the loss; he went next day with a letter of introduction from witness to Grow; witness showed the policy to Walker when he came to their office.
    F. P. Grow testified that Walker came to their place April 5th and made inquiries about the property; after witness had answered his inquiries he said he did not see why the loss should not be paid; told witness to get the policy from Stroud & Brown, and when he received the check to endorse the payment on the policy; he asked witness to deduct the interest; he consented to deduct six per cent. Walker said he was the defendants’ general agent, and had come to adjust and pay the loss.
    Stroud testified that Walker told him that he had got the proofs of Taylor’s loss, that they were all satisfactory, and they would pay the loss immediately ; witness told Grow of this. Walker previously to that time had settled and adjusted other losses in connection with the agency of Stroud & Brown, who were the agents of the defendants, and had made the contract of insurance; took the application, fixed the rates, forwarded to the company and received this policy.
    For the defendants, Brown testified that an application for $4000 was first sent to defendant!, with a suggestion that, if they would not carry so much, $1000 might be put into another company; the $1000 was put into the Lycoming, and the policy for $3000 by defendants and $1000 by the Lycoming took effect the same day. On the 10th of July 1869, Cafferty wanted more insurance; witness then took the risk for $1000 in the Imperial, and notified the defendants and the Lycoming; the words “ other insurance in the Lycoming” were then written on this policy; Stroud & Brown had letters recognising acts done by them beyond the authority in their certificate of appointment; the application was forwarded to the defendants before the policy issued; it was to take effect October 23d, when all previous policies expired; when the words were added on July 10th 1869, Stroud & Brown wrote policies for the defendants, and had for several months previously; Walker knew what had been written on the policy when he was at Stroud & Brown’s after the fire; the application was first for $4000 ; when returned, and the secretary said they would take but $3000, witness struck out “ $4000,” and wrote “$3000.” The “Imperial” policy was issued by Stroud & Brown ; the Lycoming issued their policy.
    Stroud testified for the plaintiff in rebuttal, that he had knowledge of Grow’8 encumbrance from the time that Snover had insured down; and that the property was insured for the purpose of having the insurance assigned for Grow’s benefit.
    The following were points of defendants:—
    2. The plaintiff having stated in his application that there was no other insurance on the property, and the undisputed evidence being that there was other insurance, the policy issued on that application was void, and the plaintiff cannot recover.
    3. The clause in the policy relative to the delivery of preliminary proofs of loss must be strictly complied with, and the declaration of Walker, the travelling agent or adjuster, that he had received the proofs, and they were all right, is not sufficient evidence of compliance with that clause of the policy nor a waiver of the same on the part of the company.
    4. Stroud & Brown had no authority to endorse on the policy an approval of subsequent insurance, nor assent to a transfer of the policy to Grow.
    5. Subsequent insurance, or insurance obtaine.d upon the same day upon the property, having been obtained without the written consent of the defendants, the policy is void; and the memorandum endorsement of Stroud & Brown on the face of the policy after it was delivered to Taylor, and nearly one year after the date of the Lycoming policy, did not cure this defect.
    The court after giving a synopsis of the evidence said:—
    “ 1. [If the jury believe the evidence of F. P. Grow as to the fact that he took the assignment of the policy to secure the payment of the judgment which he and his brother held against Cafferty and wife, and that Taylor, the owner of the property, was to pay it, he and his brother had such an interest in the property, that the policy in their hands as assignees was not made void, but was good and valid, and a recovery in this case can be had, if at all, in the name of F. P. Grow, the equitable plaintiff.]
    “ 2. [If the jury believe that Stroud & Brown had authority to make transfers of policies for this company and inform the company thereof in their monthly reports, as testified to by Stroud, and did approve of this assignment and report the same to the company, and the company acquiesced in it, the assignment was binding upon the company, for the reason that what the company did by its authorized agents was the act of the company itself.]
    “ 3. [If the jury believe that Mr. Brown, agent of the defendants, received notice of the loss by fire from Mr. Grow at the time mentioned by him, and communicated it to the company by next mail, and B. F. Walker was general agent or adjuster for the company, and that he called on Brown about the 31st March 1870, examined the policies, afterwards examined the premises, and then went to Owego, and took the proofs of loss of Taylor, as testified to by Stroud, it was a waiver on the part of the company, of what was required of the assured by item 10 of the ‘conditions of insurance,’ as printed on the policy. In other words it had the same effect in law as if Grow or Taylor, or both, had done all that is required in said 10th item.]
    “4. [The application and the policy must be considered together. They form but one contract, and hence if the jury beHeve the evidence of Brown, that at the time the application was made and forwarded, he informed the company that Taylor would like to be insured in the sum of $4000, but if they were unwilling to carry that amount, he would put $1000 in another company, that the application was returned to him, with the information that they would take $3000, and it was changed accordingly, and sent back, and the policy was issued in pursuance of the amended application, and an insurance of $1000 was placed upon the property in another company, viz.: the Lycoming —this last insurance did not invalidate the policy of the defendants. It cannot be said that it was a prior insurance, neither was it a subsequent one, Both took effect at the same time, and in pursuance of an understanding to that] effect. If the defendants had. notice that the sum of $1000 was to be put upon the property in another company, it would not be necessary to give immediate notice thereof to the secretary, and have the same endorsed on the policy, or otherwise acknowledged by him in writing, in order to keep the policy issued by the defendants in full force and effect. It would be useless to give the defendants notice of what had been done, when they knew beforehand it was to be done.]
    “5. [If the jury believe that Stroud & Brown on the 10th of July 1869, were the agents of the defendants, and had authority to write policies for the defendants, and at that time took in good faith a risk in the Imperial of London for $1000, and wrote upon the face of the policy issued to Taylor, as follows:
    “ ‘ Other insurance in the Lycoming, $1000
    “ “ Imperial of London, $1000’
    and notified the defendants of what they had done, it did not invalidate and made void the policy in question. If they had authority to write policies, their act in this case bound the company, and it was not necessary for the assured to give ‘ immediate notice ’ to the secretary of the subsequent insurance.
    “Finally, if all the evidence in the case is believed, the jury would be justified in finding for the plaintiff under these instructions ; but if the evidence fail to establish each and all the points to which your attention has been specifically called, then the verdict should be for the defendants.
    “ If you find for the plaintiff, your verdict should be for $3000, with interest for three months after ‘notice, proof and adjustment of loss.’]
    “We refuse to affirm the defendants’ 2d point, for the reasons given in the general charge.
    “ The 3d point is denied, provided the jury find that the notice, proof and adjustment of loss were made as claimed by the plaintiff; otherwise the point is affirmed. The plaintiff does not rely on the declaration of Walker alone, and the jury should take into consideration all the evidence as to whether he was the agent for the adjustment of this loss. If the jury find he was, the plaintiff was relieved from that clause in the policy relative to the delivery of preliminary proofs of loss. If tibe jury find he was not the agent, this point is affirmed, and the plaintiff cannot recover.
    “ The 5th point depends upon questions of fact submitted to the jury in our general charge. If the jury find that Stroud & Brown had authority to write policies for this company, also to approve of the assignment of policies, and did approve of this assignment, and give notice to the company, &c., this point is denied —otherwise it is affirmed.
    “We refuse to charge you as requested in the defendants’ 6th point, for the reasons that the question whether the subsequent insurance, or insurance obtained the same day without the written consent of the defendants, and the effect of the memorandum by Stroud & Brown on the face of the policy, depends upon questions of fact, which we have submitted to you in our general charge.”
    The verdict was for the plaintiff for $3329.50.
    The defendants took a writ of error and assigned 11 errors.
    1. Admitting the assignment of Taylor to Grow in evidence.
    2. Admitting the testimony of Brown in relation to notice to the company, the acts of Walker, &c.
    3-7. The parts of the charge in brackets.
    8-11. The answers to the points.

      W. T>. Lush, for plaintiffs in error.
    The authority of Stroud & Brown could not be shown by parol: Jordan v. Stewart, 11 Harris 248. Secondary evidence cannot be given of contents of papers without proving their loss: Carland v. Cunningham, 1 Wright 228. There must be knowledge to establish a waiver: Diehl v. Adams Co. M. Ins. Co., 8 P. F. Smith 443 ; Elliott v. Lycoming Ins. Co., 16 Id. 22. As to 3d error, a judgment-creditor has no interest in his debtor’s estate: Grevemeyer v. Southern M. Ins. Co., 12 P. F. Smith 340. The right to recover is in the legal party, not in those entitled to the money: Irish v. Johnston, 1 Jones 487 ; Armstrong v. Lancaster, 5 Watts 68; Pierce v. McKeehan, 3 Barr 136. The assignment being without the consent of the company was void: Smith v. Saratoga M. Ins. Co., 1 Hill 497; s. c. 3 Id. 508; Ferree v. Oxford Ins. Co., 17 P. F. Smith 373; Carpenter v. Washington Ins. Co., 16 Peters 495. Notice of loss should have been given to the secretary in writing: Lycoming Ins. Co. v. Updegraff, 4 Wright 311. The application is a warranty that its statements are correct: Sayles v. N. W. Ins. Co., 2 Curtis 612. Parol notice does not fulfil a condition, requiring additional insurance to be endorsed in writing on the policy: Levitt v. Western M. & F. Ins. Co., 7 Rob. (La.) 351; Barrett v. Union M. Ins. Co., 7 Cush. 175: Forbes v. Agawam M. Ins. Co., 9 Id. 470; Pendar v. American Ins. Co., 12 Id. 469; Lehigh Co. v. Harlan, 3 Casey 430. Stroud & Brown had no authority to note the insurance of the Imperial and the Lycoming on the policy: Brander v. Cola. Ins. Co., 2 Grant 470; Wilson v. Genesee Mut. Ins. Co., 4 Kernan 418; Insurance Co. v. Johnson, 11 Harris 72; Mitchell v. Lycoming Ins. Co., 1 P. F. Smith 402.

      JR. B. Little, for defendant in error.
    The presumption is that the company ratified the acts of their agent: 3 Phillips Ev. 185 ; Ackland v. Pearson, 2 Campb. 601. The authority to the agents need not be in writing: Story on Agency 52, 55; Conover v. Mutual Ins. Co., 3 Denio 254; Insurance Co. v. Smith, 1 Jones 120. The acts of the company, &c., were a waiver: Inland Ins. Co. v. Stauffer, 9 Casey 404; Com. Ins. Co. v. Sennett, 5 Wright 164; Franklin F. Ins. Co. v. Updegraff, 7 Id. 350; Flanders on Ins. 541, 542. Waiver maybe by the adjusting agent: Post v. Ætna Ins. Co., 43 Barb. 351; Taylor v. Merchants’ Ins. Co., 9 Howard 390; Lycoming Ins. Co. v. Schreffler, 6 Wright 188; Buckley v. Garrett, 11 Wright 212. A general agent for effecting insurances has full power to insure, to renew and to receive notice of other insurances: Carroll v. Charter Oak Ins. Co., 40 Barb. N. Y. 292; Post v. Ætna Ins. Co., 43 Id. 351; Beal v. Park Fire Ins. Co., 16 Wis. 241; Gloucester Man. Co. v. Howard F. Ins. Co., 5 Gray 497.
   The opinion of the court was delivered, May 17th 1873, by

Mercur, J.

A question 'as to the validity of the policy is raised at the threshold of this action. It is contended that it is void by reason of the omission of the assured to give notice in his written application, of another - insurance upon the same property, and to have it endorsed upon the policy. If this notice was not given to, or waived by, the company, such would be the effect. What are the facts ?

Stroud and Brown, who resided at Montrose, were the agents of the company at the time this risk was taken, and had been for some three years prior; they made the contracts of insurance, fixed rates, took applications, and forwarded the same to the company. Stroud had also been an agent for the company for three or four years preceding their joint agency. They were also agents for the Lycoming Insurance Company. There was an existing insurance upon the same property in each, the Farmers’ Mutual and the Lycoming, which was to expire the 23d of October 1868; for what sum does not appear. September 22d 1868, Taylor, by his agent Cafferty, applied to Stroud & Brown for an insurance of $4000 upon the property in the Farmers’ Mutual, to take effect upon the said 23d of October. Stroud & Brown forwarded the application to the secretary of the company, at the same time saying, if the company would not like to carry $4000, they could place $1000 or $1500 in the Lycoming, and would do so. The secretary replied, that he would not take the $4000, but would take the $3000. Thereupon the $4000 was changed by Stroud & Brown to $3000 in the application, and this policy was issued to Taylor for $3000, and another by the Lycoming for $1000, both to take effect upon the 23d of October 1868. The $1000 taken in the Lycoming was not mentioned in the policy, upon which this suit is brought, at the time it was issued. Strictly speaking, this insurance of $1000 was neither prior, nor subsequent, to the one taken by the plaintiff, but was concurrent. It took effect and became operative at the same time. Thus the company was notified by its own agents, that they would, if desired, take $1000 or $1500 in the Lycoming; but the reply of the secretary was in effect requesting it to be $1000, and that the plaintiff would take the residue of the $4000. The risks were both taken in accordance therewith. Subsequently, but more than eight months prior to the loss, “ other insurance in the Lycoming of $1000” was written in the policy by Stroud & Brown, as agents for the company, and they notified the company of it. The defendant then made no allegation of the absence of the previous notice, nor any objection to this addition to the policy. Besides, at the time of this addition, and for several months previous, these agents wrote the policies for the company; and a clause in the policy stipulated that it should not be valid until countersigned by its only authorized agents at Montrose.

. The property insured was of the value of about $8000. So far as it appears, the defendants were entirely satisfied with the acts of their agents. If the company was dissatisfied then was the time to have indicated it. If they desired to repudiate the policy, then was the time to have done so. They could not, after a full knowledge of the facts, retain the money paid for the insurance, and withhold their objections until after the loss, thereby inducing the assured to rely upon the validity of his policy. The evidence then was sufficient to submit to the jury to enable them to find that the company had actual notice of this additional insurance at the time they issued their policy, and that it was entered in writing upon the policy by the agent, and with the knowledge of the company, some eight months prior to the loss.

Next in chronological order wras the assignment of the policy from Taylor to Grow. That there was sufficient consideration between them to support this assignment does not admit of a doubt. It is assailed, however, upon the alleged ground that immediate notice thereof was not given to the secretary, and the same endorsed upon the policy, or otherwise acknowledged by him in writing. What are the facts ? The assignment given in evidence, is written upon the policy, and immediately under the name of the subscribing witnesses thereto is signed “ Stroud & Brown, for secretary.” That was the manner in which they indicated their approval of the assignment. They testified that they were accustomed to make such assignments and report the same to the company, and had done so for three or four years. That the company sent them blanks to fill out to make reports of such assignments as this, executed with their approval. That this assignment was reported by them to the company upon the same day of its approval. This was the 21st of November 1868. The loss was on the 18th of March 1870. The report of this assignment was in addition to the monthly reports, which they made upon the first of each month to the company. We see no error in the third and fourth assignments.

The fifth and ninth assignments of error relate to the notice and proofs of loss. The uncontradicted evidence is, that Grow gave notice to Stroud & Brown, who, by the next mail, informed the company by letter addressed to the secretary. Such notice is sufficient: West Branch Ins. Co. v. Helfenstein, 4 Wright 490. In response to this notice, Walker, who was the general agent and adjuster of the company, came to Montrose, March 31st 1870. He called upon Stroud & Brown, inquired in regard to the fire, and said he came to adjust the loss. Upon the 5th of April he went to the place of the loss, saw Grow, had full conversation with him in regard to the property, insurance and loss. He told Grow that he came as the general agent of the company, to adjust, and to pay the loss, and did not see any reason why it should not be paid. He asked to have the interest deducted, and Grow agreed to deduct six per cent. Walker then left, saying he would go to Owego, see Taylor, and there take the proofs of the loss. A few days thereafter Walker told Stroud that he had gotten the proofs of Taylor, and they were all satisfactory, and they would pay the loss immediately. Stroud informed Grow of all this, and told him not to be uneasy, that the company would settle the loss. Grow relied upon this assurance. No evidence was given to contradict these facts, nor the presumption that the proofs were actually made as stated by the adjuster. If not made, the jury found the company waived them. The evidence justified the finding: Shaw v. Turnpike Co., 2 P. R. 454; Lycoming Ins. Co. v. Schreffler, 6 Wright 188. A particular statement of the loss may be waived by the company, and if there be any evidence from which such a waiver may be inferred it is for the jury: Franklin Fire Insurance Co. v. Updegraff et al., 7 Wright 350; Buckley v. Garrett, 11 Wright 205, and cases there cited. It follows that the court did right in submitting these facts to the jury, and we discover no error in the manner of their so doing.

If an insurance company will confine the business of its agents within the limits of the special written authority given to them, it has a right to ask that it shall not be bound by any act of the agent not warranted thereby. If, however, the company itself ignores that special authority; if, outside and beyond it, it either expressly gives, or encourages an agent, to exercise great additional powers, for several years ; and ratifies and confirms the same, thus holding him out to the world as rightfully exercising all those powers, thereby inducing the public to believe in, and to rely upon, his said enlarged agency, the company cannot, after a loss has occurred, repudiate his action, and fall back upon the written authority for the purpose of avoiding the legal effect of those acts, which he has done by their encouragement in the general scope of the business. The public do not see the written authority, but they do see the acts which the agent does. They know that the company ratifies them. They then have a right to presume such continued acts are within the scope of his authority, and to act upon such presumption. Such a rule is necessary to protect the people, who are obliged to transact business relating to insurance remote from the main offices of insurance companies.

The fact that Walker was the general agent and adjuster of the company, was unquestioned. His acts and declarations connected therewith, in the general scope of his employment, and communicated to Grow, were correctly received in evidence. The non-production of the written proof of loss by the plaintiff below, under the other evidence, was not fatal to his cause of action.

We think the learned judge, upon the whole, submitted the case correctly to the jury.

Judgment affirmed.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Connay versus Halstead.
    1. The Act of February 24th 1806, sect. 28 (Judgments), does not give the prothonotary all the powers of an attorney at law to confess judgment.
    2. The prothonotary can confess judgment on warrant, only when on the instrument the amount due appears, or can be rendered certain by calculation from its face.
    3. A contract was for the sale of land at $10 per acre, the quantity to be ascertained by a survey, with warrant to enter judgment. Meld, that the prothonotary could not enter judgment on the instrument.
    4. On a rule to strike off a judgment entered on the instrument, the court upon plaintiff filing a statement of the survey and affidavit of the amount due, discharged the rule. Held, to be error; such judgment could not be aided by evidence outside the instrument.
    March 12th 1873.
    Before Read, C. J., Agnew, Sharswood and Merour, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Susquehanna county. No. 26, to January Term 1878.

      The proceedings in this case were on a motion in the court below to strike off a judgment H. P. Halstead v. Thomas Connay, entered March 28th 1872, by the prothonotary, on the following instrument: — ” r

      “ This agreement, made,' &e., the 20th day of March 1871, between H. P. Halstead, of; &c., of the one part, and Thomas Con-nay, of, &c., of the second part, witnesseth that the said party of the first part, his, &e., doth hereby covenant, &c., with the said party of the second part, upon payment of the purchase-money hereinafter stipulated, to grant, &c., unto the said Thomas Con-nay, the following described lot of land, situate, &c., bounded as follows: Beginning at north-west corner of land contracted to Martin Milon, running along same in an easterly direction to corner, in line of land contracted to Henry Shick; thence in a northerly direction along said Shick and P. M. Smith to corner, in line of land sold Ellen Mack; thence in a westerly direction along said Mack’s land to corner thirty-two feet east of D. L. & W. R. Road; thence in a southerly direction to place of beginning ; number of acres to be ascertained by survey, reserving, &c. And for the said lot of land, &c., the said party of the second part doth hereby covenant, &c., to pay the sum of ten dollars per acre, in the following instalments, to wit: twenty-five dollars, with interest on whole sum, on the 1st day of May next, 1871, and the balance in yearly payments of twenty-five dollars each, with interest annually, together with interest from the date hereof, payable with each instalment on the whole amount then unpaid. And in default of payment of any instalment of principal or interest more than one month, the entire sum of principal and interest shall become legally due upon the happening of such default, and the payment thereof may be enforced accordingly, by eiectment or other legal remedy.

      “ And the said party of the second part doth hereby authorize any attorney of any court of record in Pennsylvania to appear for me, and after one or more declarations filed as of the last, next, or any subsequent terms, to confess judgment against me for the whole amount due, according to any of the conditions or stipulations in this agreement, with waiver of inquisition and without stay of execution.”
    The order to the prothonotary to enter judgment was: — -
    “ Gr. B. Eldred, Prot.: Enter judgment on this contract for three hundred and twelve 87-100 dollars; and issue fi. fa. to next Term. J. B. & A. H. McCollum,
    “ $312.87. Attorneys for Plaintiffs.
    “March 28th 1872.”
    The paper was filed the same day.
    On the 8th of April 1872, the court granted a rule to show, cause why the judgment should not be stricken off.

      On the return of the rule the court delivered the following opinion: — ■
    “ The judgment in this case was entered upon a land contract containing a power of attorney authorizing judgment for the amount due, &e. It is objected on the part of the defendant that •the amount cannot be ascertained from the paper itself, and therefore no judgment can be entered upon it. But the writing provides the mode of ascertaining the amount of purchase-money; and that is by a survey of the number of acres, the price per acre being fixed in the contract. The defendant does not allege that the quantity has not been determined by a survey, nor does he allege that the judgment has been entered for too large a sum. The writing authorizes a judgment to be entered for the amount of the purchase-money, and points out the manner of ascertaining the amount due. If the amount due has been ascertained by a correct survey and judgment has been entered for no more than is due, we think the judgment is regular and fully authorized by the writing of the parties.
    “ The plaintiff should file a statement of the survey, with the ' affidavit of the plaintiff, or some one for him, that the sum for which the judgment is entered is actually due. Upon the filing of such statement and affidavit the rule will be discharged.”
    The plaintiff subsequently filed a statement of the survey' showing that the tract contained 30 acres and 102J perches, with the following affidavit:— *
    “ H. P. Halstead, the plaintiff above named, being duly sworn according to law, says that the sum for which judgment is entered in the above case is actually due and unpaid. Said defendant has never paid any part of said judgment. H. P. Halstead.”
    Thereupon, August 12th 1872, the rule to strike off the judgment was discharged.
    This was assigned for error on the removal of the record to the Supreme Court by writ of error.

      R. B. Little, for plaintiff in error.
    The prothonotary can enter judgment on a warrant only for the amount which on the face of the instrument appears to be due: Act of February 24th 1806, sect. 28, 4 Sm. L. 278, 1 Br. Purd. 825, pl. 32. The warrant must contain a clear delegation of authority: Rabe v. Heslip, 4 Barr 139 ; White v. Shriver, 2 Watts 471.

      J. B. $ A. H. MeQollum, for defendant in error.
   The opinion of the court was delivered, May 17th 1873, by

Agnew, J.

By the Act of 24th February 1806, Brightly’s Purdon 577, pl. 32, it is made the duty of the prothonotary upon the application of the holder of a bond or other instrument containing a warrant of attorney to confess judgment, to enter judgment against the person or persons who executed the same for the amount, which on the face of the instrument may appear to be due,” &c. This act does not confer upon the prothonotary all the power of an attorney at law to confess a judgment, but only authorizes him without the agency of an attorney to enter a judgment in the way specified in the act, to wit, for the amount which from the face of the instrument may appear to be due. This would probably embrace a case where the sum due can be ascertained by calculation from the face of the writing, upon the maxim, id cerium est quod cerium reddi potest. But in this case the sum or amount due, could by no possible calculation be made to appear from the face of the instrument. It was an agreement for the sale of a tract of land by loosely-stated boundaries and no quantity stated. The price was to be at the rate of ten dollars an acre, and the number of acres was to be ascertained by a survey. Until the number should be thus determined, a matter wholly outside of the face of the paper, the amount of the purchase-money could not be known. The prothonotary had no guide, therefore, in entering the judgment. In fixing the sum he must rely upon evidence outside of the writing, and this would not be according to the letter or spirit of the act, which intended that a judgment should he entered only on the acknowledgment of the party himself contained in the writing. It is evident the law did not intend to make the prothonotary an arbitrator or umpire to determine uncertain things, and to conclude the party by his act; for by entering the judgment the party is brought into court and the judgment is final and Concludes him, unless set aside or reversed. The filing of a survey and the affidavit of the plaintiff, as permitted by the court on hearing the rule to set the judgment aside, did not mend the matter; for at the bottom lay the want of authority in the prothonotary to bring the defendant into court on this writing. His act must be strictly according to the law, and is not like the general authority of an attorney at law, who may appear and confess judgment and arrange the details of the judgment.

Judgment reversed, and' the writing ordered to be stricken from the file.


author: Merour, J.

text:
    Bowen versus Goranflo.
    1. In an issue, devisavit vel non, the executor who is also a devisee, is a competent witness in support of the will.
    2. Parties claiming an estate under the same decedent, devolved on them by descent or succession, are competent witnesses in the trial of an issue to settle their rights.
    3. Karns v. Tanner, 16 P. F. Smith 297, followed.

      March 17th 1873.
    Before Read, C. J., Agnew, Sharswood and Merour, JJ. Williams, J., at Nisi Prius.
    Error to the court of Common Pleas of Lehigh county: No. 76, to July Term 1872.
    This was a feigned issue to try the validity of a paper writing, purporting to be the will of Hannah E. Bowen, déceased. The issue was framed November 10th 1871; William A. Goranflo, the executor named in the will, was plaintiff, and Thomas Bowen, who was husband of the decedent, was defendant. William Goranflo was brother of the decedent. The will was dated April 19th 1871, and gave all her property “ unto my child or children absolutely and for ever,” to be paid to the child or children at the age of twenty-one years, “but if they should die before they arrive at twenty-one years leaving no issue, then I direct that all my property shall go and be divided to and among my brother and sister,” &c.
    The testatrix left only one child, who survived her about one month; it was dead without issue at the trial of this case.
    On the trial, April 9th 1872, before Longaker, P. J., the plaintiff made the formal proof of the execution of the will.
    In the course of the trial, William Goranflo, the plaintiff, was offered as a witness. He was objected to by the defendant as incompetent, being a devisee under the will.
    The court admitted him to testify and sealed a bill of exceptions.
    There was much evidence given as to undue influence, &c., in order to invalidate the will; the defendant submitted points the answers to which were assigned for error, but the only question considered in the opinion of the Supreme Court was the competency of Goranflo.
    The verdict was for the plaintiff, and amongst other errors, the defendant on the removal of the record to the Supreme Court, assigned for error the admission of Goranflo as a witness.

      J. S. Biery and 0. Albright, for plaintiff in error,
    cited Act of April 15th 1869, sect. 1, Pamph. L. 30, 1 Br. Purd. 624, pl. 16; Karns v. Tanner, 16 P. F. Smith 297; Post v. Avery, 5 W. & S. 509; Phinney v. Tracey, 1 Barr 175; Clover v. Painter, 2 Id. 46 ; Asay v. Hoover, 5 Id. 37; Haus v. Palmer, 9 Harris 298.

      B. B. Wright, Jr., and B. Haney (with whom was B. B. Wright), for defendant in error.
   The opinion of the court was delivered, May 17th 1873, by

Merour, J.

The first error assigned is as to the competency of the party to testify. He was both a devisee and the executor. It was admitted upon the argument, that if he had been the executor only, he would have been competent under the exception to the proviso of the Act of 15th April 1869, Pamph. L. 30; but inasmuch as he was a devisee also, it was argued that he was incompetent. We are not able to see the force of the reasoning nor to adopt the conclusion. The language of the exception to the Act is to make parties competent “in issues and inquiries devisavit vel non and others, respecting the right of such deceased owner, between parties claiming such right by devolution on the death of such owner.”

This is an issue devisavit vel non. It is between parties claiming a right by devolution on the death of the former owner. The subject-matter is respecting the right so acquired. Thus the form of the suit, the parties thereto, and the subject-matter bring it within the exception. We see nothing in it to exclude a party who is either devisee or executor only. A union of two conditions of competency, each unquestioned by itself, will not create incompetency as its joint product. It follows that both parties claiming an estate, under the same decedent, which has devolved on them by descent or succession, are competent witnesses in the trial of an issue to settle their respective rights thereto: Karns v. Tanner, 16 P. F. Smith 297.

No error is assigned to the general charge, but the answers of the court to the specific points submitted are assigned for error.

We have carefully examined the whole testimony. All the points submitted are substantially answered in the general charge. It contains a clear and correct statement of the law as applied to the evidence in the case. The errors are not sustained.

Judgment affirmed.


text:
    Seibert’s Appeal.
    1. At the time of a levy the defendant claimed of the sheriff his exemption ; no appraisement, &c., was made by the sheriff, who shortly afterwards went out of office. At the request of defendant made the day before the sale on the vend, ex., the next sheriff, on the day of sale, had the defendant’s real estate appraised. Held, that the defendant was entitled to his exemption from the proceeds of the real estate.
    2. When the sheriff wrongfully allows an appraisement, the remedy of the plaintiff is to move to set it aside.
    March 18th 1873.
    Before Bead, 0. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Lehigh county: , No. 296, to January Term 1873. In the distribution of the proceeds of the sheriff’s sale of the real estate of Daniel Seibert.
    The distribution was referred to G-eorge EL Rupp, Esq., as auditor, who reported the following facts:—

      On the 23d of September 1871, a fi. fa. was issued at the suit of Reuben Kriebel and others against Daniel Seibert. On the 28th of September, the deputy of Miller the sheriff made a levy and Seibert properly claimed the benefits of the exemption law ; neither sheriff Miller nor his deputy appraised or set apart property to Seibert under his claim nor took any notice of it. A venditioni was issued, and the real estate was advertised for sale on the 8th. of December 1871. Miller’s term of office as. sheriff expired November 11th 1871, and sheriff Faust’s commenced on that day. On the day before the sale, the attorney of Seibert made a written request of Faust to appraise the property which Seibert might elect under the exemption laws; this was the first notice that Faust had of Seibert’s claim for exemption. Appraisers having been appointed, they set apart to him $30.25 of personal property, and December 8th certified that the real estate was of greater value than $269.75, and that it could not be divided without prejudice to, or spoiling the whole. It was agreed on the same day by the attorneys of the respective parties, that “ the above appraisement is made and allowed without prejudice to the plaintiffs.”
    The real estate was sold to the plaintiffs in the execution and $350 paid into court to await the defendant’s claim for the exemption. The auditor in concluding his report said:—
    “It may perhaps be well to say, that the principal objection urged against the claim of Seibert was, that the appraisement was made too late and worked injury to the plaintiff. How did it work injury to the plaintiff, and if it did why was there no exception taken to it ? If there was an irregularity in the appraisement it should at once have been brought to the notice of the court.”
    He awarded to Seibert on his claim for exemption $269.75 of the fund in court.
    The plaintiffs filed exceptions to the report of the auditor.
    The court, Longaker, P. J., in his opinion on the exceptions, amongst other things, said:—
    “ If the demand for exemption was made at the time'of levy (and it is quite probable it was, because the sheriff, it appears, made no levy upon the personalty), then it was the plain duty of the sheriff to make the appraisement and return it with the writ, and he having failed to do so, the incoming sheriff had no authority to make an appraisement which on the 8th day of December 1871, was absolutely void: Bowyer’s Appeal, 9 Harris 210.
    “ For these reasons the distribution of the auditor must be set aside, and the amount distributed to Daniel Seibert must be decreed to the judgment-creditors, in accordance with the priority of their liens, * * * and the report must go back to the auditor for the further distribution.”
    The auditor reported in accordance with the opinion of the court, distributing tbe fund after deducting expenses to tbe plaintiffs in the execution.
    The court confirmed the report of the auditor.
    Seibert appealed to the Supreme Court and assigned the decree of confirmation for error.

      E. Albright, for appellant,
    cited Marks’s Appeal, 10 Casey 37; Weaver’s Appeal, 6 Harris 309; Hammer v. Freese, 7 Id. 257; Shaw’s Appeal, 13 Wright 180; Lauck’s Appeal, 12 Harris 429.

      J. W. Wood and E. J. More, for appellees.
    The remedy of Seibert is against the sheriff: Wilson v. Ellis, 4 Casey 238; Freeman v. Smith, 6 Id. 264; VanDresor v. King, 10 Id. 201; Hammer v. Freese, 7 Harris 255. An appraisement made on the day of sale is too late: Bowyer’s Appeal, 9 Harris 213; Diehl v. Holben, 3 Wright 213.
   The opinion of the court was delivered, May 17th 1873, by

Agnew, J.

The auditor making the distribution of the proceeds of the sheriff’s sale, found the fact distinctly, that on the day of the levy by the deputy sheriff, Daniel Seibert properly claimed the benefit of the exemption law. The sheriff, from some unexplained cause, omitted to make an appraisement; but on the day of sale, the new sheriff, on the application of the defendant, made the day before, set apart $30.25 of the personal property, and $269.75, to come out of the proceeds of sale of the real estate, the appraisers finding that the real estate could not be divided without prejudice. The auditor allowed the exemption, but the court below set it aside on the ground that the request to appraise came too late. In this, we think the court erred. The fact that Daniel Seibert made claim to the exemption on the day of the levy, is not disputed. The sheriff failed to perform his duty in time, but this was no fault of the defendant in the writ. He could do no more than he did. True, if the sheriff had entirely omitted to allow the exemption, the defendant had his remedy against the sheriff: Marks’s Appeal, 10 Casey 36; Freeman v. Smith, 6 Casey 264; Wilson v. Ellis, 4 Casey 238. But when the sheriff finally complied with the claim, and had. an appraisement made, why should we encourage litigation, and suffer the officer to be harassed with a suit, when justice can be so easily done, by allowing the defendant his right in this proceeding ? It does no injury to the plaintiff in the execution, for the defendant had entitled himself to the exemption by his prompt claim. It would be doing a wrong to the defendant and to the officer to turn the defendant round to his action against the sheriff. Where the sheriff mistakenly or wrongfully allows an appraisement, the plaintiff has an easy remedy by moving the court to set aside the appraisement. But here the defendant has entitled himself to an appraisement, and the sheriff had actually had it made, and there is no reason to withhold the money from the defendant. The decree of the court is, therefore, reversed, the defendant is allowed his exemption, to be paid out of the fund in court, and final distribution is ordered to be made, in accordance with this opinion, and the costs of the appeal are ordered to be paid by the executors of the plaintiff in the execution, out of his estate.


author: Read, C. J.

text:
    Swift’s Executors versus The Beneficial Society of the Borough of Easton.
    1. A beneficial society whose benefits and benevolence are confined exclusively to its contributing members is not a charitable use within the 11th sect, of Act of April 26th 1855 (Bequests to Charities).
    2. Babb v. Reed, 5 Rawle 155, approved.
    March 18th 1873.
    Before Read, C. J., Agnew, Sharswood and Merour, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 310, to January Term 1873.
    This was an amicable action, filed February 8th 1873, and case stated, in which The Beneficial Society of the Borough of Easton were plaintiffs, and Edward C. Swift and Robert I. Jones, executors, &c., of Elizabeth L. Swift deceased, were defendants.
    The facts agreed on the case were :—
    Elizabeth L. Swift by her will, dated May 22d 1872, after giving a number of legacies to her relatives and others, bequeathed as follows:—

      “ Should there be any money left after paying the foregoing legacies, I desire that the same may be disposed of in the following manner. One thousand dollars to go to Walter Ross, and after he has been paid, one thousand dollars to go to The Old Easton Beneficial Society, of which my late husband was a member ; and after that has been paid, one thousand dollars to go to Charles Swift, Sr., of Chicago.”
    The testatrix died on the 27th day of the same month of May, being less than thirty days after the execution of her will.
    The constitution and by-laws of the society provide: That the object of the society was for the relief of its members when unable from bodily infirmity to pursue their ordinary avocations. Every member to pay such entrance-money and monthly dues and contributions as the society shall from time to time declare; the benefits to be distributed as should be provided by the by-laws; no person to be entitled to benefits until after one year’s membership; no member in arrears to be in full standing nor entitled to benefits ; a member might be expelled if in arrears ; weekly benefits and the amount to be paid on the death of a member or his wife were specifically fixed and forfeited for misconduct. By the case stated it was agreed that: “ If the court be of opinion that the said The Beneficial Society of the Borough of Easton, is a society for charitable uses, under the Act of the General Assembly of the Commonwealth of Pennsylvania, approved April 26th 1855, then judgment shall be entered for the defendants. But if the said plaintiff is not a society for charitable uses, then judgment to be entered for the plaintiff in the sum of one thousand dollars,’'’ &c. ’
    The court (Longaker, P. J.) entered'judgment for the plaintiff for $1000.
    Section 11 of the Act of April 26th 1855, Pamph. L. 332, 2 Br. Purd. 1477, pi. 22, provides that, “ No estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic or to any person,,, in trust for. religious or charitable uses, except the same be done by deed or will, attested by two credible and at the time disinterested witnesses, at least one calendar month before the decease of the testator or alienor, and all dispositions of property contrary hereto shall be void and go to the residuary legatee or devisee next of kin, or heirs according to law.”
    The defendants took out a writ of error, and assigned for error the entering of judgment for the plaintiffs.

      O. S. Myers, for plaintiffs in error.
    The limitation of benefits to a class does not destroy the charitable character of the society, Mayer v. Society, 2 Brewster’s Rep. 385. He cited also Cresson’s Appeal, 6 Casey 437; Price v. Maxwell, 4 Id. 23; Brendle v. German Congregation, 9 Id. 415; Wright v. Linn, 9 Barr 433; Miller v. Porter, 3 P. F. Smith 292; Taylor v. Mitchell, 7 Id. 209; Yard’s Appeal, 14 Id. 96.

      JE. Allis, for defendants in error.
    A society for the purpose of benevolence amongst its members only, is not a charity: Babb v. Reed, 5 Rawle 151; Beaumont v. Meredith, 2 Vesey & B. 180. To create-a charity there must be a public benefit open to an indefinite number: Perry on Trusts, secs. 697-699, 710.
   The opinion of the court was delivered, May 17th 1873, by

Read, C. J.

The plaintiffs in this case are a beneficial society, both in name and by the provisions of their charter, and their benevolence and benefits are exclusively confined to contributing members of the association. The members must be regularly admitted, must not be infirm, must be citizens and between the ages of twenty-one and forty-five years of age; and no person shall be entitled to any benefits from this society until he shall have been one year a member. Each person, on being admitted a member of their society, shall pay such entrance-money and monthly dues and contributions as the society may by their by-laws from time to time declare. A member is not in full standing if in arrears for fines, contributions or monthly dues; and not entitled to benefits in sickness if in arrears for dues, contributions, or fines, for three .successive stated meetings, and may be expelled for arrears of dues or fines. The amount to be paid in case of death of a member or his wife is fixed. There are other provisions showing that the benevolence is strictly a matter of contract, and may be enforced in a court of justice. The object of this society shall be the relief of its respective members when sick, or disabled by bodily infirmities to pursue their ordinary avocations. Its benevolence begins and ends at home. In Babb v. Reed, 5 Rawle 155, it was held that an association for the purposes of mutual benevolence among its members only, is not an association for charitable uses. This was a lodge of Odd Fellows. In Blenon’s Estate, Brightly’s Reports 338, the beneficial societies who were claimants under the will of the testator, as “institutions of charity and benevolence,” were so considered by the auditors, which decision was reversed by the Orphans’ Court, who decreed “that no friendly or beneficial society is entitled to any share in the bequest of the testator,” which decree was affirmed by the Supreme Court. These decisions are the settled law of this court.

The 11th section of the Act of 20th April 1855, Pamph. L. 332, provides that “ no estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor, and all dispositions of property contrary hereto shall be void and go to the residuary legatee or devisee, next of kin, or heirs according to law: Provided that any disposition of property within said period, bond. fide made for a fair valuable consideration, shall not be hereby avoided.”

No case comes within the English statute, of which this section is a copy in principle, unless the gift be for a charitable use, and the three cases which have been decided in this state under our act, were all charitable uses, and one of them also a religious use. Charitable uses are well understood in Pennsylvania, and the general subject has been largely discussed by Mr. Justice Strong, in The Domestic and Foreign Mission’s Appeal, 6 Casey 433; Cresson’s Appeal, Id. 437; and The Evangelical Association’s Appeal, 11 Casey 316, and clearly fix the meaning of charitable uses in the 11th section of the Act of 1855.

Mrs. Elizabeth L. Swift made her will on the 22dof May 1872, evincing great care in distributing her property, and recollecting friends by various gifts, and towards the close of it gives the legacy of “ one thousand dollars to go to the old Easton Beneficial Society, of which my late husband was a member,” and died on the 27th of the same month of May.

It is clear this is not a religious use, and it seems equally clear it is not a charitable use, and if so it is a perfectly valid legacy, and must be paid by the defendants.

Judgment affirmed.


author: Sharswood, J.

text:
    McHose versus Fulmer.
    1. When a vendor fails to comply with his contract, the general rule for the measure of damages is the difference between the contract and market price at the time of the breach.
    2. When the article cannot be obtained in the market, the measure is the actual loss the vendee sustains.
    3. McHose, a manufacturer, contracted for iron from Eulmer, who failed to comply, and McHose could not supply himself in the market. Held, that the measure of damage was the loss he sustained by having to use an inferior article in his manufacture, or in not receiving the advance on the contract price upon contracts he was to fill relying on Fulmer’s contract.
    4. Bank of Montgomery v. Reese, 2 Casey 143, recognised.
    March 18th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of LeMgh county: Of January Term 1873, No. 165.
    This was an action of assumpsit, brought January 25th 1872, by Henry Pulmer and Peter Uhler, trading as the Eastoli Iron Manufacturing Company, against Samuel McHose and others, trading as Samuel McHose & Co.
    The cause of action was the following note :—
    “$1237.25. Allentown, Oct. 27th 1871.
    Sixty days after date we promise to pay to the order of Easton Iron Manufacturing Co., twelve hundred and thirty-seven dollars and twenty-five cents, at Pirst Nat. Bank of Allentown, Penn., without defalcation, for value received.
    Samuel McHose & Co.”
    The defendants filed an affidavit of defence, to wit:—
    The plaintiffs and defendants entered into a contract about the 20th of October 1871, by which the plaintiffs agreed to furnish defendants with 100 tons of pig iron, to wit: 50 tons at $30 per ton, and 50 tons at $32.50, to be furnished in the months of October and November 1871. In October plaintiffs in pursuance of said contract did furnish to defendants 40 tons of pig iron to wit: 30 tons at $30 per ton, and 10 tons at $32.50, making total of $1225, the amount for which the note in this case was given with interest added.
    The residue of the iron according to said contract was to he furnished in the .month of November, and the defendants being engaged in the manufacture of iron, relying upon the undertaking of plaintiffs, made no other engagement for iron. In the month , of November the defendants gave notice to the plaintiffs that they were in need of said iron to wit, the 60 tons which the plaintiffs neglected and refused to furnish, although often requested so to do, in the months of November and December. The contract for payment was notes at 60 days.
    The defendants therefore say, that by the refusal of the plaintiffs to furnish said iron as per contract, they (the defendants) have suffered damage to an amount exceeding the whole amount of the note in which suit is brought.
    The nature of the damage sustained by defendants is as follows:
    The defendants are the owners of the Hope Rolling Mill, situated in the city of Allentown, and are carrying on the business of making merchant bar iron, and employ about sixty hands, and had heavy contracts for iron to be furnished in November and December. By the neglect and refusal of plaintiffs to furnish said iron, defendants were obliged to get an inferior quality of iron than that which plaintiffs were to furnish, in order to carry on the business of said mill, and being inferior they lost the contract with the parties with whom they had contracted for the sale and delivery of iron, and sustained other serious damage and loss by the breach of said contract on the part of plaintiffs.
    They afterwards made a supplemental affidavit of defence, “ that by reason of the plaintiffs neglecting and refusing to comply with the contract set forth in said affidavit of defence, the defendants were unable to get the same quality of iron, and iron had advanced in price one dollar per ton, which would make $60 damages in price of iron.
    “ The defendants further say, that the loss of contracts and in the sale of manufactured iron greatly exceed the amount of the note on which suit is brought. That defendants not being able to make good iron for the parties with whom they had contracts, they sustained losses as follows: With Brinton & Johnson, of Philadelphia, they sustained losses in iron returned, $639.47, which amount is composed of labor and freight in sending and returning said iron, and the damages for the loss of the contract with said Brinton & Johnson will exceed the sum of $600. Making a total of more than the amount of said note. That they have suffered other damages by reason of the failure of said plaintiffs to comply with their contract.”
    On the 17th of July 1872, the court (Longaker, P. J.) entered judgment for the plaintiffs for $1218.45, the amount of the note and interest, “less $60 claimed as the appreciation of the iron.”
    The defendants removed the record to the Supreme Court and assigned the entering of the judgment for error.

      J. D. Stiles, for plaintiffs in error.

      M. J. More, for defendants in error.
   The opinion of the court was delivered, March 24th 1873, by

Sharswood, J.

When a vendor fails to comply with his contract the general rule for the measure of damages undoubtedly is, the difference between the contract and the market price of the article at the time of the breach. This is for the evident reason that the vendee can go into the market and obtain the article contracted for at that price. But when the circumstances of the case are such that the vendee cannot thus supply himself the rule does not apply, for the reason of it ceases: Bank of Montgomery v. Reese, 2 Casey 143. “It is manifest,” says Mr. Chief Justice Lewis, “ that this (the ordinary measure) would not remunerate him when the article could not be obtained elsewhere.” If an article of the same quality cannot be procured in the market, its market price cannot be ascertained, and we are without the necessary data for the application of the general rule. This is a contingency which must be considered to have been within the contemplation of the parties, for they must be presumed to know whether such articles are of limited production or not. In such a case the true measure is the actual loss which the vendee- sustains in his own manufacture, by .having to use an inferior article or not receiving the advance on his contract price upon any contracts which he had himself made in reliance upon the fulfilment of the contract by the vendor. We do not mean to say, that if he undertakes to fill his own contracts with an inferior article, and in consequence such article is returned on his hands, he can recover of his vendor, besides the loss sustained on his contracts, all the extraordinary .loss incurred by his attempting what was clearly an unwarrantable experiment. His legitimate loss is the difference between the contract price he was to pay to his vendor and the price he was to receive. This is a loss which springs directly from the non-fulfilment of the contract. The affidavits of defence are not as full and precise upon this point as they might and ought to have been, but they state that the defendants below had entered into such contracts, and that they were unable to get the same quality of iron which the plaintiff had agreed to deliver, and this, we think, was enough to have carried the case to a jury.

Judgment reversed, and a procedendo awarded.


text:
    Meitzler’s Appeal.
    1. The wife or a member of the family of an absent defendant in an execution may claim his exemption for him?.
    2. There was conflicting evidence before an auditor, whether at the time of the levy the wife of an absent defendant had made a claim for the exemption, no appraisement was made under the claim. The auditor holding that if the claim had been made by the wife, the remedy was by action against the sheriff, declined to decide the question of the claim. Held to be error, and the record was remanded with directions to refer the matter to an auditor to determine the facts.
    March 18th 1873.
    Before Read, C. J., Agñew, Sharswood, and Mercur, JJ. Williams, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Lehigh county: Of January Term 1873. No. 261. In the distribution of the proceeds of the sheriff’s sale of the real estate of William Meitzler, under an execution in which Trexler & Meitzler were plaintiffs.
    The distribution was referred to John Rupp, Esquire, as auditor.
    He reported that the fi. fa. was returnable to April Term 1872. On the 5th of April the land was condemned; on the 10th of April the vend. ex. was issued and the property was advertised for sale; on the 25th of April the defendant made a written claim on the sheriff for the benefit of the exemption laws; on the 1st of May, four days before the sale, an appraisement was made, the personal property appraised at $18.25, and the appraisers reported that the real estate could not be divided without spoiling the whole. The property was bought by the plaintiffs at the sheriff’s sale, for '$325, and $255.63 ruled into court.
    He further reported that the wife of the defendant swore positively at the hearing before him, that when the sheriff made the levy, her husband was absent from home, and she made the claim for the benefit of the exemption law; the mother of the defendant testified that she was present when the levy was made, and heard the wife make the claim of the sheriff. The sheriff testified that no such claim was made on him.
    He further said in his report that, in the view he took “ of the case, it is an immaterial question whether any claim at all was made at the time the levy was made. This obviates the necessity of deciding the question of credibility between the witnesses. Whether any claim was made by the wife or not, the sheriff entirely disregarded it, and made no appraisement, but went on to condemn the property. Where a claim for the benefit of the exemption laws is made, and the sheriff disregards it, and neglects to make an appraisement, as he did in this case (if the claim was ever made), the defendant is not entitled to the benefit of the exemption laws out of the proceeds of sale, but his only remedy is against the sheriff in an action for damages. This has frequently been ruled by the courts. The claim made on the 25th of April, after the property had been condemned and a vend. ex. issued, was clearly too late, and was the same as no claim at all. This is so well established that no authorities are needed to sustain it. That the appraisement made in this case on the 1st day of May was void has lately been ruled by this court in the case of Kriebel et al. v. Seibert. He has therefore rejected the claim of defendant for the exemption laws, and has distributed the. fund in court to the lien-creditors, according to their priority, as per the annexed schedule.”
    After exceptions, the court confirmed the report of the auditor, and Meitzler appealed to the Supreme Court, assigning the decree of confirmation for error.

      L. Smoyer and JE. Holben, for appellant,
    cited Wilson v. McElroy, 8 Casey 82; Waugh v. Buckel, 3 Grant 319; McCarthy’s Appeal, 18 P. F. Smith 217.

      G. K. Wilson, for appellees,
    cited Miller’s Appeal, 4 Harris 303; Bowyer’s Appeal, 9 Id. 213; Hammer v. Freese, 7 Id. 255 ; Wilson v. Ellis, 4 Casey 238; Freeman v. Smith, 6 Id. 264.
   The opinion of the court was delivered, May 17th 1873, by

Agnew, J.

It has been held repeatedly by this court that the wife, or a member of the family, of the defendant in an execution who is absent from home at the time of a levy on his property, may claim his exemption for him: Waugh v. Bucket et al., 3 Grant 319; Wilson v. Mellroy, 8 Casey 82 ; McCarthy’s Appeal, 18 P. F. Smith 217. The reason of this is said to be a presumption of agency in such case for the debtor, who is absent, and incapable of protecting his interest, until it might be too late, and interfere with the execution of the writ; and the interest which the family of a debtor has in retaining the property that the law intends to secure to the family, as well as to the debtor himself. Indeed, there are cases where the exemption has been denied to him, when it was manifest the interests of his family would fail to be promoted by its allowance: Hammer v. Freese, 7 Harris 555; Weaver’s Appeal, 6 Harris 307.

In the present case, the demand of the benefit of the exemption made by the wife at the time of the levy, is proved clearly by two witnesses. This was denied by the sheriff, who testified that not finding the defendant at home, he went after him, found him, and explained the object of his visit, and that the defendant made no claim of his exemption. After the vend. ex. had been issued, and the property advertised, the defendant made a written request for the benefit of the exemption law, on the 25th of April, and an appraisement was made on the 1st day of May, four days before the sale; the appraisers having appraised personal property to the value of $18.25, found that the real estate was worth more than the remainder, $281.75, but that the land could not be divided without prejudice. The auditor declined to find the fact, whether the wife of the defendant had made the claim of exemption on the day of the levy, on the ground that the written claim came too late; being governed, as he states, by the decision of the court below in the case of Kriebel v. Seibert. That decision has been reversed in an opinion just read. We think the auditor, acting under this stress, erred in refusing to decide the question of claim. Had he done so, and found the claim of the exemption had been properly made by the wife on the day of levy, it would have brought the case within the principle of the decision just made in Seibert v. Kriebel et al.

' The decree of the court is therefore reversed, and the record remanded, with an order that the case be referred to an auditor to determine the facts necessary to make a final distribution of the fund, and the costs of this appeal are directed to be paid by the appellee.