author: Mr. Justice Skarswood

text:
    Chandler versus The Commerce Fire Insurance Company of New York.
    1. Whether there is any evidence of a fact which ought to bo submitted to the jury, is a question of law, which may be reserved ; but whether the evidence is sufficient, is a question of fact which cannot be reserved. Wilde v. Trainor, 9 P. P. Smith 439, followed.
    2. A policy of insurance provided, that if the premises were vacant at the time of the fire, the policy should be void. In an action upon the policy for a loss, the assured testified, that his son was occupying the house, keeping bachelor’s hall, and the son testified, he occupied the house after his father moved, but was not at home the night of the fire. Two witnesses for defendant testified, that they had seen no signs of life in the house for several weeks before the fire. The court reserved the question whether there was sufficient evidence that the house was unoccupied. The verdict was for plaintiff, and the court afterwards entered judgment for the defendant on the reserved point, non obstante veredicto. Held, that this was error ; that certainly there was a question of fact for the jury, and the court had no right to withdraw the case from them by such a reservation.
    3. A condition of a policy of insurance provided, that the assured at the time the insurance was effected should have the “ entire, unconditional and sole ownership of the property.” The assured had the equitable ownership of the property, subject to the payment of the purchase-money. Held, that he had such an ownership as entitled him to recover upon the policy : Insurance Co. v. Wilgus, ante 107, followed.
    4. A. made a contract with B. for the purchase of a lot of ground. A. subsequently assigned this contract, a small balance of the purchase-money remaining unpaid, to 0. The latter at the same time made a declaration in writing, that he held said assignment as security for a debt and for future advances. Held, that this assignment of the contract did not deprive A. of such ownership of the property as would preclude him from recovery on a policy containing this “ entire, unconditional and sole ownership” clause.
    5. The insurance company alleged that the plaintiff’s proof of loss did not contain a particular account thereof. The property insured was a frame dwelling-house; the account of loss was, that the property insured was totally destroyed by fire. Held, that this account under the circumstances could not have been more particular, and at all events it was prima facie sufficient, and if the schedules and papers annexed to the affidavit of loss were insufficient, it was incumbent upon the defendant to produce them.
    6. Whore a verdict was rendered in favor of the plaintiff, subject to the opinion of the court on a point reserved, on which the court afterwards entered judgment for the defendant non obstante veredicto, and the Supreme Court on error reverses the judgment, the latter court may enter judgment for the plaintiff.

      November 25th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, No. 12.
    Assumpsit by G. H. Chandler against the Commerce Eire Insurance Company of New York.
    On the 1st of October 1869, the plaintiff, George H. Chandler, . made a contract.with Joseph L. Chase and wife for the purchase of a lot of land in the city of Titusville, sixty feet on Elm street, by one hundred and eighty feet on Monroe street for $600 and the taxes, $120, to be paid 1st of May 1870, and $120 annually, on the 1st of October thereafter, with interest at the date of each payment. The last payment came due 1st October 1873. September 29th 1870, Chase and wife received on said contract $210, and conveyed, with plaintiff’s consent, to Amanda D. Birdsall forty by sixty feet, being the north end of the lot. April 15th 1871, Chase and wife received on said contract $200, and conveyed, with plaintiff’s consent, to John K. Peterson forty feet next adjoining lot conveyed to Birdsall, so that April 15th 1871, there remained unpaid only $190 of the purchase-money, and plaintiff had remaining the lot sixty by one hundred feet.
    On December 17th 1870, plaintiff assigned said contract to Gurdon S. Berry. This assignment was unqualified in terms as endorsed on contract, but at the same date Berry made and delivered an agreement or certificate to the effect that he held the assignment as security for a balance of account, stated as $75 due Berry, more or less; as further collateral security for any risks assumed by Berry in the postponement of claims due from plaintiff to others, in the event of Berry paying the same; and as further collateral and continuing security for any sums Berry might be thereafter called upon or induced to advance for plaintiff or his family. There was no evidence that after that date Berry ever assumed any risk or liability or advanced any money whatever for plaintiff, directly or indirectly. On April 19th 1872, plaintiff procured of the defendant the policy of insurance upon which this action is brought, by which defendant, for a premium of $10, insured the frame dwelling-house upon the remainder of the lot above mentioned for a period of one year, in the sum of $1000. Erom the time of insurance down to a few days before the fire the house was occupied by tenants. When they moved out plaintiff's son remained in occupancy with a lot of plaintiff’s goods. The fire occurred on the 30th of June, the house being totally destroyed. Due notice was given defendant’s agent, and August 19th, within the sixty days provided by the policy, proofs of loss were made out and sworn to before a notary and forwarded to the defendant. No objection or exception was made or taken by the defendant to the character or sufficiency of the proofs of loss. These proofs came to hands of defendant August 22d 1872, as is shown bv the office stamp thereon in these words: “ Commerce Fire Ins.' Co., August 22d 1872, N. Y.”
    On July 3d 1872, after the house was burned, plaintiff gave Berry a power of attorney to sell the remainder of the lot as above. September 27th, Berry, in his own behalf and as attorney in fact for plaintiff, made an assignment of all their interest in the old contract from Chase, and the lot to A. J. Fox for §1000, and authorized Chase to make conveyance to Fox. Said §1000 was to be paid by Fox by discharge of certain liens and claims against the property, amounting in the aggregate to §322.98, which included §89.59 for a mechanic’s lien held by Fox himself; he was to pay §261.89 balance purchase-money to Chase. Fox did pay to Berry at the time of assignment §413.89 ; §263.89 by surrender of Berry’s overdue note to him, and §150 in two checks. Before receiving the power of attorney above mentioned, Berry never had nor claimed to exercise any control over the property in question. October 18th 1872, Berry gave plaintiff his judgment-bond for §1000, conditioned to pay and clear from record all liens against the real estate in question, estimated at that date at §587; the remaining §413, after receipting Chandler’s indebtedness, to be paid in four equal payments, at intervals of sixty days, with interest. This bond was satisfied June 27th 1873. October 22d 1872, Chase and wife conveyed to Fox, as shown by receipt of latter’s attorney, endorsed upon the original contract. This action was begun April 15th 1873. It was tried January 22d 1875, and the jury rendered a verdict for plaintiff for §1140.41, subject to the opinion of the court on certain points presented by defendant and reserved.
    May 19th 1875, the case was heard on the reserved points, being Nos. 2, 4, 5, 7, 8, 9, and June 7th, the court decided the same in favor of the defendant, and rendered judgment in his favor non olstante veredicto, to which plaintiff excepted.
    These points, and the manner in which they were reserved by the court, Lowrie, P. J., will be seen by the following specifications of error by Chandler, who took this writ.
    1. The court erred in the answer to defendant’s second point, which was as follows :
    If plaintiffs premises became vacant or unoccupied by tenants, or a change of use of the same took place after the issuing of the policy in this case, and such vacancy, unoccupation or change remained for three or four weeks prior to and at the time of the loss, without the consent of the company endorsed on the policy, the policy was rendered void and plaintiff cannot recover in this suit.
    Ans. “Affirmed. Reserving, as with point No. 8, whether there is sufficient evidence of such vacancy or change of use. If not, judgment to be for defendant.” Reserved point decided in favor of defendant.

      2. In the answer to defendant’s fourth point, as follows :
    If, at the time of the issuing of the policy, the interest of the plaintiff in the property was other than the entire, unconditional and sole ownership thereof, and the same was not truthfully represented to the company, and so expressed in the written part of the policy, the policy is void and plaintiff cannot recover.
    Ans. “ Affirmed. Reserving the question of the sufficiency of the evidence to show such an interest. If not, then judgment' for the defendant.” Reserved point decided in favor of defendant.
    3. In the answer to defendant’s fifth point, as follows:
    The assignment of the Chase contract by plaintiff to Grurdon S. Berry, under date of 17th December 1870, including the land described therein, and the appurtenances, deprived the plaintiff of the entire, unconditional and sole ownership thereof, and unless the true facts were represented to the company and expressed in the •written part of the policy, at the time of the issuing thereof, the policy was void and plaintiff cannot recover in this suit.
    Ans. “Reserved with the foregoing point No. 4.” Reserved point .decided in favor of the defendant.
    4. In the answer to defendant’s seventh point, as follows:
    The proofs of loss furnished by plaintiff in this case to the defendant do not contain such a particular account of the loss, or such an account of the interest of the insured or the true owner in the premises, as is required by the terms of the policy, and unless the neglect of the insured to state the same’accurately, has been waived by the defendant, the plaintiff cannot recover in this suit.
    Ans. “Reserved. If not sufficient, then judgment to be for defendant.” Reserved point decided in favor of defendant.
    5. In the answer to defendant’s eighth point, as follows :
    Under all the evidence in this case, the premises were vacant and unoccupied at the time of the fire, under the definitions of these words as given in the policy, and at the time of the fire the insurance was suspended, and the plaintiff cannot recover.
    Ans. “Reserved. Is there sufficient evidence of such vacancy? If so, then judgment to be for defendant.” Reserved point decided in favor of defendant.
    6. In the answer to defendant’s ninth point, as follows:
    The proofs of loss furnished to defendant are not sufficient to enable plaintiff to recover.
    Ans. “Reserved. If not, then judgment to be for defendant.” Reserved point decided in favor of defendant.
    7. The court erred in rendering judgment for defendant nonobstante veredicto.

    8. The court erred in not rendering judgment in favor of the plaintiff upon the verdict for the sum of $1140.

      Q-uthne Byles, for plaintiff in error.
    By the affirmance of tbe defendant’s points, the plaintiff was deprived of the expression of the jury as to the facts, as the court, in effect, said there were no facts for the jury. In view of the evidence, this was an extraordinary and dangerous proceeding. The sufficiency of the evidence could not be reserved in the manner it was by the court.
    By affirming the defendant’s eighth point, the judge left aside entirely the question of tenancy and himself held that the premises were vacant and unoccupied at the time of the fire, under the definition of these words as given in the policy, and that at the time of the lire, the insurance was suspended and plaintiff could not recover. The only evidence before the court and jury proved that the tenants had left the house a few days before the fire, but that it was at the time occupied by plaintiff’s son and by his household goods, and to be occupied by tenants again on the next Monday. The fact was for the jury, and they must have found for the plaintiff that the house was occupied, not vacant: Grant v. Howard Insurance Co., 5 Hill 10; McEnally v. Somerset County Mutual Insurance Co., 2 Pittsburgh Rep. 189; Power v. City Fire Insurance Co., 8 Phila. 566.
    The ownership of the property by plaintiff was of such character as to entitle him to recover upon the policy : Perry County Insurance Co. v. Stewart, 7 Harris 45; Insurance Co. v. Updegraff, 9 Id. 513; Reed v. Lukens, 8 Wright 200; Hill v. Cumberland Valley Mutual Protection Co., 9 P. F. Smith 474; Holbrook v. Am. Ins. Co., 1 C. C. Rep. 193; Wood v. N. W. Insurance Co., 46 N. Y. 421; 2 Am. Leading Cases 618, and cases cited; Columbia Insurance Co. v. Cooper, 14 Wright 331.
    The question as to the sufficiency of the proofs of loss should have been submitted to the jury: Lycoming County Mutual Insurance Co. v. Schollenberger, 8 Wright 259; Talcot v. Insurance Co., 2 Johns. 136.

      Alfred G. Church, for defendant in error.
    The assignment of plaintiff to Berry of date December 17th 1870, and the defeasance from the latter to the former, which expired June 1st 1871, created an encumbrance in law ? Was not the undisputed fact, that the purchase-money was not paid to Chase and wife, the plaintiff’s vendors, until September 27th 1872, three mouths after the fire occurred, an encumbrance in law sufficient to defeat plaintiff’s recovery on the policy?
    The fourth clause of the policy of insurance says that “ if the interest of the assured in the property be other than the entire, unconditional and sole ownership of the property, * * * it must be so represented to the company and so expressed in the written part of this policy; otherwise the policy shall be void.”
    Plaintiff had no insurable interest: Reynolds v. State Mutual Insurance Co., 2 Grant 329; Sweeny v. Franklin Fire Insurance Co., 8 Harris 342; Columbia Insurance Co. v. Lawrence, 2 Pet. 25, 46-50; Same case, 10 Id. 515; Carpenter v. Providence Washington Insurance Co., 16 Id. 505; Hinman v. Hartford Fire Insurance Co., 14 Am. L. Reg., N. S. 321; Graves v. Boston Mutual Insurance Co., 2 Cranch 419; May on Insurance 270.
    The house was not occupied: Harrison v. City Fire Insurance Co., 9 Allen 231; Frisbie v. Fayette Insurance Co., 3 Casey 327. The question of preliminary proof, whether sufficient or not, is for the court and not for the jury. Klein v. Franklin Insurance Co., 1 Harris 247; Commonwealth Insurance Co. v. Sennett et al., 5 Wright 161.
   Mr. Justice Skarswood

delivered the opinion of the court, January 6th 1879.

The several reservations in this case were contrary to a well-settled rule on that subject. They were without exception of the sufficiency of the evidence. Whether there is any evidence of a fact which ought to be submitted to the jury is a question of law which may be reserved; but whether the evidence is sufficient is a question of fact which cannot be reserved: Wilde v. Trainor, 9 P. F. Smith 439. The first specification of error is to the judgment of the court below upon the reservation of the defendants’ second point, which was substantially the same as the eighth point and fifth specification, whether there was sufficient evidence that the premises wmre vacant and unoccupied at the time of the fire. Though the jury found for the plaintiff, judgment for the defendants was entered non obstante veredicto. The plaintiff testified, “ my son was occupying it, keeping bachelor’s hall.” The son testified that he occupied the house after his father moved, but was not at home the night of the fire. There were indeed two witnesses examined on the part of the defendants, who said that they saw no signs,of life about the house for several weeks before the fire. Here was certainly a question of fact for the jury, something more than a scintilla, and the court had no right to withdraw the case from that tribunal by such a reservation. An occasional absence for a single night, even though it, should so chance as to be the night of the fire, would certainly not make it a vacant or unoccupied house.

The second specification of error is to the judgment upon the defendants’ fourth point reserved, which was in substance the same as the fifth, complained of in the third specification. The judgment denies the plaintiff’s right to recover on the ground of want of title under the terms of the policy. If the court meant to hold broadly that because the interest of the plaintiff was equitable, subject to the payment of a balance of purchase-money, it was not the entire, unconditional and sole ownership of the property, it was an error, as has just been decided in the Insurance Company v. Wilgus, ante 107. There was in this policy, as in those cases, no condition requiring a disclosure of encumbrances. But if it was meant to decide that the assignment of the Chase contract by the plaintiff to Berry deprived him of such ownership, it was equally wrong. The declaration of Berry as to that assignment was in evidence, in writing, and made it a mortgage merely, held as collateral security for a debt then owing to him and for further advances, and the power of sale did not change its character. The provision of the policy is, “ When property has been sold and delivered, or otherwise disposed of, so that all interest or liability on the part of the assured herein named has ceased, this insurance on such property shall immediately terminate.” It is clear then, we think, that the judgment for defendants on these two points, non obstante veredicto, was wrong.

The fourth specification of error is to the judgment on the reservation of the defendants’ seventh point. This is based upon the alleged insufficiency of the account of the loss furnished by the plaintiff to the defendants. The property insured was a two-and-a-half story frame dwelling-house. The account of loss was that the property insured was totally destroyed by the fire. It is not easy to see how the account under the circumstances could have been more particular. At all events, it was prima facie sufficient. If the schedules and papers annexed to the affidavit were insufficient, it was incumbent on the defendants to produce them. The same question was raised by the answer to the ninth point of the defendants, upon which there was a similar reservation and judgment.

Judgment reversed, and venire facias de novo awarded.

On January 29th 1879, Thomas Hart, Jr., Esq., obtained a rule to show cause why the above judgment, to wit, “Judgment reversed and venire facias de novo awarded,” should not be modified so as to be “Judgment reversed, and now, February 1879, judgment is entered for the plaintiff in error, and below upon the verdict.”

On February 8th 1879, the rule was argued by Thomas Hart, Jr., and O. B. Guthrie, for plaintiff, who contended that where a verdict was rendered in favor of plaintiff subject to the opinion of the court on a point reserved on which the court afterwards entered judgment for the defendant, the Supreme Court in reversing the judgment, may enter judgment for the plaintiff, and cited the following authorities: Klett v. Claridge, 7 Casey 106; Swearingen v. Pendleton, 4 S. & R. 396; Harper v. Keely, 5 Harris 234; Savage v. Everman, 20 P. F. Smith 315; Stephens v. Cowan, 6 Watts 511.

George Biddle, for defendant.

On February 10th 1879, the Supreme Court made the rule absolute.


source: Caselaw Access Project

author: Mr. Justice Murcur

license: Public Domain

text:
    Crawford County Mutual Insurance Company versus Cochran et ux.
    1. Althougn a condition be attached to a policy in a mutual insurance company, declaring it void on a failure to pay an assessment on a premium-note within a specified time, yet the policy does not thereby become ipso facto voicL The company may waive the right of avoidance and then the contract relation is not wholly dissolved; but the protection of the policy is suspended until the default of non-payment is removed. No recovery can, therefore, be had for a loss sustained during the continuance of such default.
    . 2. By levying a second assessment, during a default in the payment of a former one, such a company does not waive its right to demand the latter, nor does it thereby remove the disabling consequences flowing from the neglect to pay said assessment.
    3. Whether a company, by the language and acts of its secretary, has waived formal proofs of a loss, is a question for the jury.
    4. Where the powers of the agent of such a company are limited, with no authority to collect assessments, the fact that the policy was procured by him created no legal presumption that he was authorized to receive assessments subsequently made. And even if said agent was authorized to receive assessments in money, a payment in work, done for the personal benefit of said agent, would not be payment to the company.
    November 27th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1878, No. 123.
    Covenant by John Cochran and his wife, in right of said wife, against the Crawford County Mutual Insurance Company, upon a policy of insurance issued by the defendant company.
    Cochran and wife took a policy in the defendant company in November 1871, in the sum of $300, for five years, and gave their premium-note for $18 theiefor. In March 1873 an assessment was made by the company on all premium-notes, and a notice was sent plaintiffs that their assessment was ninety cents. This notice was dated April 1st 1873, and required payment thereof within thirty days, in accordance with the thirteenth condition of the policy, as follows: “That the policy shall be null and void if any assessment shall not be paid within thirty days after notice to the assured.” The notice also contained this direction : “ Remit by draft or post-office order and receipts will be returned, or pay at the office of the company.” About April 1st 1874, the assured received a notice of another assessment levied on the 12th of March preceding. The property insured was destroyed by fire on April 12th 1874.
    The policy was obtained from one Bemis, an agent, who was authorized “ to take insurance; receive fees for the same ; ■ collect six per cent, of the premium-no.te at the time it is given and receipt therefor.” The tenth condition of the policy was as follows : “That the assured shall forthwith give formal notice in writing to the company of the loss sustained.”

      At the trial, before Church, P. J., Cochran testified that a few days after the fire he went to the office of the company and told Mr. Adams, the secretary of the company, that he wanted to get the money for his loss, and Adams replied that he could not and would not do anything for him, and did not want him to bother him. That witness subsequently, on the same day, went back, accompanied by Mr. Ilampson, and tendered the money for whatever was due on the policy, and that Adams would not take it; that he showed Adams the 1874 notice, and ofl’ered to pay whatever the claim of the company was ; that witness had received notice of assessment dated April 1st 1873, while working in the employ of the agent Bemis, and that he gave it to Bemis and asked him if he would fix it, who said he would, and that witness loft it with him for that purpose; that witness was doing work for Bemis, and the understanding was that the ninety cents were to be deducted in the settlement and Bemis was to pay the assessment therewith; witness did not know whether Bemis had done so or not.
    Ilampson, who accompanied Cochran to see Adams, testified that the latter got angry, and would not talk about the matter; said there was no use coming; that he would not look at the money; would not look at the assessment; that the policy was forfeited and the company would not pay it, and there was no use bothering about it. These witnesses were both contradicted by Adams and Bemis for the defence.
    The defendant submitted the following points, which the court refused:
    1. There is no evidence to submit to the jury that the plaintiff ever gave the notice of the loss or made the proof's of the loss as required by the tenth condition of the policy, nor that the defendant has waived said condition, and therefore the plaintiff cannot recover, and the verdict must be for the defendant.
    2. There is no evidence to submit to the jury that the plaintiff ever paid the assessment of 1873, nor that the defendant has waived the forfeiture resulting from its non-payment, and therefore the plaintiff cannot recover, and the verdict must be for the defendant.
    In the general charge, the court, in substance, said that the facts as testified to by Cochran constituted a waiver of the condition of the policy requiring proofs of loss, and further charged as follows:
    “It is claimed that the policy was forfeited by reason of the nonpayment of the 1873 assessment. That might be waived by the insurance company. You will note the facts in evidence, whether it was paid or whether it was waived. * * *
    “Wo.understand insurance companies must act by their officers and agents. And so far as Cochran was aware he had a right to believe he had a policy in this company in full life, because in April 1874, the company, acting through Adams, the only one they could act through in their ordinary routine of business, sent him notice of assessment. It is some evidence that Cochran, this insured, had a right to suppose his policy had not been forfeited by the company. It gave thirty days in which that 1874 assessment might have been paid. The loss at that time would not excuse the company from receiving that assessment, nor would it excuse them from paying the loss. Hence we say these points defendant asks us to charge you on we deny. We refuse to take the case away from the jury. We submit it upon these two matters. You will take notice you will not find a verdict against the evidence. Take into consideration this 1873 assessment. If Cochran, at this interview in the summer of 1873, simply told Bemis to go and pay this ninety cents to the insurance company — in other words, made him his agent of transfer to pay this money to the insurance company— that is not a good payment, and Cochran must suffer for submitting his business to Mr. Bemis. But if Cochran paid Bemis anything, even paid by work, as I understand this payment of ninety cents, if Bemis was the agent of the company, well known, Cochran having got this policy from him, we say that was a good payment, and the waiver, if you believe that, does not enter into the case.”
    The verdict was for plaintiffs, whereupon defendants took this writ, and assigned for error the refusal of the above points, which constituted the first and second assignments and the portions of the charge noted, which were the third and fourth assignments of error.

      A. S. Davis and J. W. Smith, for plaintiff in error.
    The proof of loss was a condition precedent and necessary to a recovery: Inland Ins. Co. v. Stauffer, 9 Casey 397 ; West Branch Ins. Co. v. Helfenstein, 4 Wright 289; Bradley v. Lycoming Ins. Co., 16 P. F. Smith 9; Desilver v. State Ins. Co., 2 Wright 130. Estoppel is the true ground of waiver: Diehl v. Adams County Mutual Ins. Co., 8 P. F. Smith 444; Insurance Co. v. Slockbower, 2 Casey 199. Adams had no authority to waive a condition of the policy: Mentz v. Lancaster Fire Insurance Co., 29 P. F. Smith 475; Mitchell v. Lycoming Insurance Co., 1 Id. 402; Brewer v. Chelsea Mutual Fire Insurance Co., 14 Gray 203. There was no evidence to go to the jury that the company had waived the forfeiture resulting from the non-payment of the assessment. The court seemed to think the sending the notice of the second assessment was such waiver. The evidence was that it was sent by mistake, an,d this clearly could not be interpreted as a waiver: Diehl v. Adams County Mutual Ins. Co., supra. Nor did the transaction with Bemis bind the company. He had no authority to make any arrangement on behalf of the company: Hackney v. Allegheny Mutual Ins. Co., 4 Barr 185; Mitchell v. Lycoming Mutual Ins. Co., supra; Susquehanna Ins. Co. v. Perrine, 7 W. & S. 351; Columbia Ins. Co. v. Buckley, 2 Norris 293; Hummel & Co.’s Appeal, 28 P. F. Smith 320; Washington Mutual Fire Ins. Co. v. Rosenberger, 3 Norris 373.

      H. J. Humes and D. G. McGoy $ Son, for defendant in error. — ?
    Conditions, being for tbe benefit of the company, may be waived by' tbe acts of its officers and agents, and where there is evidence of such acts, from which the jury may infer the waiver, it is for the jury and not for the court: Coursin v. The Penn. Ins. Co., 10 Wright 323; Farmers’ Ins. Co. v. Taylor, 23 P. F. Smith 342; Inland Ins. Co. v. Stauffer, supra ; Commonwealth Ins. Co. v. Sennett, 5 Wright 161. The company having denied its liability, it was not necessary to make formal proofs of loss : Ætna Ins. Co. v. Tyler, 16 Wend. 401; Heath et al. v. Franklin Ins. Co., 1 Cush. 257 ; Clark v. New England Mutual Fire Ins. Co., 6 Id. 342; Underhill v. Agawam Mutual Fire Ins. Co., Id. 440; Taylor v. Merchants’ Fire Ins. Co., 9 How. 390.
    Bemis was in the habit of receiving assessments from policy-holders and paying them to the company and returning receipts. Such custom binds the company: Girard Life Ins. Co., Administrators of Megarge, v. Mutual Life Ins. Co. of New York, 5 W. N. C. 173; Lycoming Mutual Fire Ins. Co. v. Bedford, 2 Id. 529.
   Mr. Justice Murcur

delivered the opinion of the court, January 6th 1879.

The evidence of a waiver of specific proof of loss was sufficient to submit to the jury. Within two or three days after the fire, the defendant in error went to the office of the company, and informed the secretary of the loss, and offered to pay some previous assessment. The evidence is conflicting as to whether it was to pay both the previous assessments, or the earlier one only. The secretary refused to accept the sum offered. Hampson, a witness on the part of the defendant in error, testified that the secretary “ said the policy had been forfeited; there was no use in coming there; would not look at the money ; would not look at the assessment; said the policy was forfeited, and the company would not pay it, and there was no use bothering anything about it.” This interview was at the office of the company and with its principal officer. If this evidence is believed, there was a distinct declaration that the company would not pay the loss, by reason of the forfeiture of the policy. It was fairly within the province of the jury to say whether the declaration, “ there was no use bothering anything about it,” did not reasonably import that it was useless to make any proofs of loss. The company already had notice of the fire, the only remaining act was to make the formal proofs. A jury might well find that both parties underderstood the language used referred to proofs of loss. If the objection to pay was then put solely on the ground of forfeiture, and the defendant in error induced to make no formal proofs of loss, the company could not, afterwards, successfully plead the absence of such proof. The first and third assignments cover no error: Inland Ins. & Dep. Co. v. Stauffer, 9 Casey 397 ; Commonwealth Ins. Co. v. Sennett, 5 Wright 161; Coursin v. Pennsylvania Ins. Co., 10 Id. 323 ; Buckley v. Garrett, 11 Id. 204; Farmers’ Ins. Co. v. Taylor, 23 P. F. Smith 343; State Ins. Co. of Missouri v. Todd, 2 Norris 272.

The policy was made and accepted, subject to the terms and conditions of the by-laws. The thirteenth declared “ whenever an assessment shall have been made upon a premium-note, and the same is not paid within thirty days after notice * * * the policy of insurance given upon such note shall be null and void, and the directors shall retain such premium-notes, and collect thereon such sum or sums so assessed.” -It is well settled that although a condition be attached to a policy declaring it void, on a failure to pay an assessment on a premium-note within a specified time, yet the policy does not thereby become, ipso facto, void. The company may waive the right of avoidance, and then the contract relation is not wholly dissolved ; but the protection of the policy is suspended until the default of non-payment is removed. No recovery can, therefore, be had for a loss sustained during the continuance of such default: Hummel & Co.’s Appeal, 28 P. F. Smith 320; Columbia Ins. Co. v. Buckley, 2 Norris 293; Washington Mutual Fire Ins. Co. v. Rosenberger, 3 Id. 373.

By levying the assessment of 1st April 1874, the company did not wTaive its right to demand payment of the assessment made the year before; nor did it thereby remove the disabling consequences flowing from the neglect to pay that assessment. As long as the assessment remained unpaid beyond thirty days after duly demanded, so long the protection of the policy continued suspended. The assessment of April 1873 was demanded soon after it was made. An acceptance of its payment at any time before the fire would have restored the former efficacy of the policy. If the holder thereof was in default when the loss was sustained, the company was not' bound to afterwards accept payment of the assessment. There was, therefore, no evidence that the company, before the fire, waived any right which it had acquired by reason of default in the payment of the assessment made in April 1873.

The remaining question is, was the assessment paid before the fire occurred? It appears by the evidence that in June 1873, one Keiling was at work on a house for Bemis. Part of the time the defendant in error worked there for Keiling, and afterwards for Bemis. Bemis was authorized to act as agent for the company “in taking insurance in said company; receiving fees for the same; collecting six per cent, of the premium-note at the time it is given, and receipt therefor.”

The learned judge charged the jury substantially, that if it was agreed between Bemis and Cochran that the former should retain out of the wages of the latter the amount of the assessment, it was a good payment, if Bemis was agent for the company, he having procured the policy for Cochran. In this there was error. As already shown, Bemis was an agent with limited powers, having no authority to collect assessments even in money. It does not appear that he ever assumed or exercised any such power. The fact that the policy was procured by him created no legal presumption that he was authorized to receive assessments subsequently made. The notice given of the assessment directed that the money be remitted by draft or post-office order, or paid at the office of the company. This gave no color of excuse to pay to an unauthorized agent. Cochran did no work for the company. It is not pretended that Bemis had any specific authority from the company to receive the payment in that manner. He did not account for it to the company in any maimer. There was no ratification of his agreement. The company never received the money, and there was no offer of payment until after the fire. If Bemis had been authorized to receive payment of assessments in money, an attempted payment in labor to Bemis personally would have been no payment to the company. One partner cannot discharge a debt due to the firm of which he is a member, in consideration of work rendered for his individual benefit. Equally as great mischief, and more confusion, would result from holding that a debtor to an insurance company may pay an assessment levied to pay losses, by an individual trade, exchange or barter with an agent. It cannot be done. The second point of the plaintiff in error should have been affirmed, and the second and fourth assignments are sustained.

Judgment reversed.


author: Mr. Justice Paxson

text:
    Hogeboom, Ex’r, versus Gibbs, Sterrett & Co.
    II. and P. were partners in an oil-well, for which G. furnished supplies. G. brought suit against the executor of II. to recover a balance duo P. was called as a witness, on the part of plaintiff, to prove the partnership and the account. -Hdd, that he was incompetent, and it was error to admit his testimony.
    November 28th 1878.
    Before Agnew, C. J., Shaesjvood, Gordon, Paxson and Teunkey, JJ. Mercur and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Qrawford county: Of. October and November Term 1878, No. 314.
    Assumpsit by Gibbs, Sterrett and others against John 0. Hogeboom, executor of the estate of Henry Hogeboom, deceased, nonresident, impleaded with M. H. Philip and George J. Sherman.
    This was an appeal from a justice of the peace. In the year 1867, Henry Hogeboom, of Now York, purchased with one Martin H. Philip, an interest in some land in Crawford county, Pa., upon which were several oil-wells, operated under lease from the former owner of the land. By virtue of his purchase he became entitled to a royalty from these wells. Philip became interested with these lessees, in some of the wells, and he contracted the debt for which the plaintiffs below brought suit.
    After Henry Hogeboom’s death, suit was brought by Gibbs, Sterrett & Co., against John C. Hogeboom, the executor of Henry Hogeboom, before a justice of the peace, to which the executor appeared. Judgment was rendered for the plaintiffs, and the executor appealed.
    The action was brought against the executor, alleging that the testator was a partner with Philip and George J. Sherman, and a declaration was filed December 13th 1876, with common counts only upon an alleged assumption of the, executor, and not of Henry Hogeboom. . On the 19th of August 1878, the plaintiffs filed another declaration, in which, with the common counts against the executor, and upon his alleged promise to pay, was joined a count upon the assumption of the testator in his lifetime.
    At the trial plaintiff’s counsel offered in evidence the deposition of Philip, taken June 27th 1874. Defendant objected because Philip was a party in interest, and the suit was against an executor.
    The court overruled the objection, and the witness testified that Henry Hogeboom, George J. Sherman and himself were interested together in producing oil on Church run, on the Kerr farm, from about April 1st 1872 until February 1873. That the balance of plaintiff’s account was $182.14, with interest from November 24th 1872. The only other evidence of the copartnership were letters which passed between Hogeboom and Philip.
    The third point of defendant was as follows:.M. H. Philip is an incompetent witness, and his evidence is not sufficient to warrant a verdict for the plaintiffs,” which the court refused.
    Verdict for plaintiffs, when defendant took this writ, his first and second assignments of error being respectively the admission of the testimony of Philip and the refusal of the above point.

      Jtoger Sherman, for plaintiff in error.
    Philip was the surviving partner, as he himself testified. He was not competent prior to the Act of March 27th 1865. He was not made competent by that act, because he was not an adverse party upon the record, nor a person for whose immediate benefit an action was proceeding. He was not made competent by the Act of April 15th 1869, because being a person interested in the event of the suit, he was within the exception to that act, the action being against an executor. He was interested because he confessedly owed the whole debt, and if the plaintiff failed, all could be recovered of him. If the plaintiff succeeded, he was liable for one-half only: Hanna v. Wray, 27 P. F. Smith 27 ; Taylor’s Ex’r v. Kelly, 30 Id. 95; Loomis v. Ruetter, 9 Watts 576; Bellas v. Fagely, 7 Harris 277; Purviance v.
      Dryden, 3 S. & R. 402; Hickut v. Fagely, 6 W. & S. 142; Meason v. Kaine, 13 P. F. Smith 335.
    Brewster’s Adm’rx v. Sterrett, 8 Casey 115, decided in 1858, is distinguishable from this case. In that case the court held that the admission of Mehaffy as a witness was not an essential error, because he testified as to an issue not submitted to the jury.

      Guthrie Byles, for defendants in error.
    This case is expressly ruled by Brewster’s Administratrix v. Sterrett, 8 Casey 115. That action was upon a promissory note given by a firm against the personal representative of a deceased partner. The surviving partner was held to be a competent witness for the plaintiff. The Act of 1869 made a change in the matter of the competency of witnesses. Indeed, that, together with the prior act of 1865, revolutionized the rules of evidence. All the cases, however, since their passage, concur in denominating them as enabling and enlarging, not restraining statutes ; Scheetz v. Hanbest’s Ex’r, 31 P. F. Smith 100 ; Pratt v. Patterson, 31 Id. 114; McFerren v. Mont Alto Iron Co., 26 Id. 180.
   Mr. Justice Paxson

delivered the opinion of the court, January 6th 1879.

It has been repeatedly held that the Act of 15th April 1869 was an enabling, not a restraining statute, and that it makes no witness incompetent who would have been competent prior to its passage: McFerren v. Mont Alto Iron Co., 26 P. F. Smith 180; Scheetz v. Hanbest’s Ex’rs, 31 Id. 100; Pratt v. Patterson, Id. 114. The witness Martin II. Philip would have been incompetent under the law as it stood prior to 1869. He might not have been incompetent for all purposes upon the mere ground of his being a partner. He was called, however, for the purpose of showing the partnership. The effect of his evidence, if received, would be to shift a portion of his responsibility upon some one else. He wTas thus directly interested, and for that reason incompetent under the authority of Bellas v. Fagely, 7 Harris 277; Purviance v. Dryden, 3 S. & R. 402; Heckert v. Fegely, 6 W. & S. 142; Meason v. Kaine, 13 P. F. Smith 335. The case of Brewster’s Adm’x v. Sterrett, 8 Casey 115, was relied upon by the defendant in error as sustaining the opposite view. A careful examination of this case, however, shows that it is not seriously in conflict with the authorities above cited. It is true, Mr. Justice Woodward, in the concluding paragraph of his opinion, does say that the witness Mehaffey would be competent for whatever purpose called. He was not called to prove the partnership, and it is quite possible this point did not even suggest itself to the mind of the learned justice who wrote the opinion. There is nothing in the report of the case to indicate that it did. The testimony of Mehaffey was not furnished in the paper-books. Justice Woodward supposed that the witness had been called to sustain an issue that had been withheld from the jury, which of course was not' an essential error.

The witness Philip being incompetent on the ground of interest, he was not made competent by the Act of 27th March 1865, Pamph. L. 38, Purdon 624, pi. 13, for the reason that he is neither an adverse party on the record, nor a person for whose immediate and adverse benefit such action ivas instituted, prosecuted or defended. Nor was the witness rendered competent by the Act of 15th April 1869, because thé suit in which he was called to testify was brought by an executor. Said act by its express terms does not apply to actions brought by or against executors or administrators.

What has been said covers the first and second assignments of error. The remaining assignments need not be discussed, as the questions involved may not arise upon another trial.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Trunkey

text:
    Hecker versus Haak et al.
    A judgment against a married woman before a justice of the peace, which does not affirmatively show her liability on a contract within the statute, is invalid, and a sheriff's saleon an execution issued upon a transcript of such judgment in the Common Pleas, confers no title upon the vendee.
    November 28th 1878.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and.TRUNKEY, JJ. Mercur and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, No. 186.
    Ejectment by George W. Hecker against John W. Haak, Clemens Haak, William Haak and Charles Haak, for a lot in the city of Meadville.
    Jonas Knauss was the admitted common source of title in this case. In 1851 he died intestate, leaving a son and a daughter. The daughter’s name was Sarah Ann. She was at the time of her father’s death intermarried with Dr. John W. Haak, one of the defendants. Dr. Haak, her husband, was appointed administrator of her father’s estate. In April 1853 Haak, as administrator of the estate, presented his petition to the Orphans’ Court of Ci’awford county, asking leave to sell the premises now in dispute for the payment of the debts of Jonas Knauss. The sale was ordered, made and duly confirmed, and the premises were, in pursuance of said sale, duly conveyed to Isaac Kohn and Abram Adler, trading as Kohn & Adler. Kohn & Adler, by deed dated June 11th 1855, conveyed the same premises to E. W. Kirby, in trust, for the sole and separate use of Sarah Ann Haak, the wife of Dr. J. William Haak, and her heirs and assigns, and so long as she alone, or such persons as she shall appoint, shall take and receive the rents, issues and profits thereof, and so as her said husband should not in anywise intermeddle therewith.
    Shortly after the last-mentioned deed was made Mrs. Haak and her husband separated, Mrs. Haak going to New York, where she afterwards remained. In 1858, some years after Mrs. Haak had left, Kohn & Adler brought suit against Mr. and Mrs. Haak, before a justice of the peace. The transcript of the justice states the plaintiffs’ claim to be for goods sold and delivered, clothing, groceries, provisions, necessaries, but does not state who contracted the debt. The summons is returned “ served upon Wm. Haak personally, and by a copy left with him for Sarah Haak, his wife.” The transcript further states that “ Haak appears, examines the account, says it is right. Sarah does not appear, and thereupon judgment entered for plaintiff for ¡¡¡>90.68.” A transcript of this judgment was filed in the Common Pleas of Crawford county, and judgment entered against Haak and Sarah Ann, his wife. Execution was duly issued on this judgment, and the premises in dispute sold at sheriff’s sale as the property of Mr. and Mrs. Haak, and. on the 8th day of April 1859, was conveyed by the sheriff of Crawford county to Abram Adler. December 8th 1863, Abram Adler conveyed the same premises to Dr. J. W. Haak, in trust for Clemens Haak, William Haak and Charles Haak. Afterwards, John W. Haak brought suit in divorce against his wife, and obtained a decree August 15th 1863. In 1866, Hecker and Trantum brought suit against Sarah Ann Knauss, formerly Haak, and obtained judgment against her. By virtue of this judgment execution was issued, the premises in dispute levied upon and the property sold to the plaintiff as the property of Sarah Ann Knauss, formerly Haak. The plaintiff claimed that the first sale of the property on the judgment against Haak and wife did not divest the title of the wife, the judgment being a nullity as to her, and that he obtained a good title by the second sale.
    At the trial the defendants offered in evidence the record of the Court of Common Pleas at November Term 1858, wherein Kohn & Adler were plaintiff's and John W. Haak and his wife wore defendants, to which the plaintiff’s counsel objected that the record shows no judgment against Sarah Ann Haak, the wife. Also, that the record shows no liability on her part, and that any judgment entered against her or her estate before the justice or in the Common Pleas, by virtue of the justice’s transcript wrns void and a nullity as to her. The court overruled the objections and admitted the evidence. Exception.
    The following points were presented by plaintiff, all of which the court refused:
    1. That the judgment given in evidence of Kohn & Adler v. John W. Haak and Sarah A. Haak, his wife, was void as to Sarah A. Haak, ’the wife, and that the sale of the wife’s property under and by virtue of it was a nullity and conferred no title on the purchaser.
    2. That as the title to the property now in dispute, at the time of the sheriff’s sale of the same to Abram Adler, under and by virtue of said judgment, was vested in E. W. Kirby, in trust nevertheless, and for the uses following, and no other, thatjs to say, for the sole and separate use of Sarah Ann Haak, the wife of Dr. J. William Haak and her heirs and assigns, and so as she alone, or such person as she shall appoint, shall take and receive the rents, issues and profits thereof, and so as her said husband shall not in any wise intermeddle therewith, with power to the said second party (F. W. Kirby), his heirs and assigns, to sell or convey the said lot or piece of land, with the appurtenances, in fee simple to any person or persons, and for such sum or sums of money as the said Sarah Ann Haak in her life,' by writing, under her hand and seal duly acknowledged may appoint and direct; and on failure of such appointment and direction, to hold in trust, as aforesaid, for her heirs, according to law. And as the said Sarah A. Haak at the time of-making said deed was the wife of Dr. John W. Haak, and continued his wife until after the said sale and conveyance of said land to Abram Adler, he (Abram Adler) acquired no title to the same by said sale.
    3. That under all the evidence in the case the verdict should be ■ for the plaintiff.
    In their general charge the court said:
    “It is unnecessary to take up your time further with this case. It is all record evidence. It becomes the duty of the court to decide the law of the case. We have answered the plaintiff’s points in the negative, hence your verdict will be for the defendants.”
    Yerdict for defendants accordingly, and plaintiff took this writ assiging for error the admission of the above evidence, the answer to points and the portion of the charge noted.

      J. B. Brawle.y, for plaintiff in error.
    The record shows no service, no appearance or judgment against Mrs. Haak, and there is nothing in the transcript which authorized the prothonotary to enter judgment.
    In an action against husband and wife, brought with a view of charging the wife’s separate estate, the plaintiff must set forth in his pleadings such facts as bring the case within some one of the exceptions contained in the Act of April 11th 1848 : Murray et al. v. Keyes et ux., 11 Casey 384; Caldwell v. Walters, 6 Harris 79; Cumming et ux. v. Miller et al., 3 Grant 146; Dorrance v. Scott, 3 Wharton 309 ; Parke et ux. v. Kleeber & Bro., 1 Wright 251; Graham et ux. v. Long, 15 P. F. Smith 383; Swayne v.
      Lyon, 17 Id. 436; Berger et ux. v. Clark, 29 Id. 340; Lloyd et ux. v. Hibbs, 31 Id. 306; Dearie et ux. v. Martin, 28 Id. 55.
    A sheriff sale of the real estate of a married woman on such a defective judgment conveys no title to the purchaser. Caldwell v. Walters, 6 Harris 79; Graham et ux. v. Long, 15 P. F. Smith 383.

      B. Q. McCoy and Q. M. Bough, for defendants in error. —
    The jurisdiction of the justice appears on the face of the record, and is binding until reversed in a legal mode: Buckmyer v. Dubs, 5 Binn. 29; Stewart v. Thompson, 2 Ash. 120 ; Fisher v. Nyce, 10 P. F. Smith 107; Sloan v. McKinstry, 6 Harris 120. A transcript thereof filed in the Common Pleas is in effect a judgment of that court, and as such cannot be treated as a nullity: Walker v. Lyon, 3 P. & W. 98; Sloan v. McKinstry, supra. The acknowledgment of the sheriff’s deed covers all irregularities in the proceedings and process: Shields v. Miltenberger, 2 Harris 76; McFee v. Harris, 1 Casey 102.
    The plaintiff is a stranger to the judgment, and cannot impeach it collaterally: Wood v. Bayard, 13 P. F. Smith 320. No one but the defendant in an irregular execution, can take advantage of its irregularity: Wilkinson’s Appeal, 15 P. F. Smith 189; Drexel’s Appeal, 6 Barr 272; Hauer’s Appeal, 5 W. & S. 473; Yaple v. Titus, 5 Wright 195; Warder v. Tainter, 4 Watts 270.
   Mr. Justice Trunkey

delivered the opinion of the court, January 6th 1879.

Defendants’ counsel urged that the plaintiff is a stranger, and that Sarah A. Haak is not complaining. Both parties claim under her, and as rightly as if each had actually contracted with her for the land. Had she given the defendants a deed in which her husband did not join, it would be useless; hut if, by virtue thereof, they should claim title it would be under her. Her deed lawfully executed to the plaintiff, at a later date, would enable him to recover the land. Like principle governs when each claims under a sheriff’s sale. The holder of real estate upder a valid sheriff’s deed succeeds to all the rights and estates of him for whose debt the same was sold, that the debtor had or could have at and before the taking thereof in execution: Act 1836, sect. 66, Purd. 651, pi. 82.

Conceding for the present that the plaintiff’s second point was well refused, then the defendants’ right depends on the validity of the judgment, as against Mrs. Haak, which is the base of their title. If that judgment is merely voidable their title is good. Its reversal, after the sheriff’s sale, would not prejudice the purchaser: Act 17 05, Purd. 651, pi. 84. But if void her title continued as if there had been no sale. Acknowledgment of a sheriff’s deed cures mere irregularities which do not render the officer powerless, but does not bar the right of any person when there was no judgment or execution whereon to ground the sale: Shields v. Miltenberger, 2 Harris 76. A vend. ex. must be supported by a previous levy or the sale is void: Burd v. Dansdale, 2 Binn. 80. Sale by process on a void judgment vests no title in the purchaser, for it is as if the process were issued without judgment: Caldwell v. Walters, 6 Harris 79.

The transcript shows that Sarah A. Haak was a married woman; that the summons was not served upon her; that she did not appear; that her husband appeared and said the account was right, and upon that the magistrate gave judgment; that the plaintiff’s claim was “ for goods sold and delivered, clothing, groceries, provisions, necessaries.” Hence, it is patent on the face of the record that there was neither claim nor proof of a debt for which she- was liable. Such a judgment against a married woman, at common law, is a nullity. What statute authorizes it? Repeated-adjudications have settled that a judgment cannot be recovered against a married woman under the Act of 1848, unless the pleadings make a case within its provisions. Also that a mechanic’s claim is no lien against her estate when it does not show on its face that the work was done and material furnished upon her contract and for the proper improvement of her property. She cannot give a valid warrant of attorney to confess judgment, even for a debt contracted by herself for necessaries used by herself and family. A judgment on such warrant, though in legal contemplation the judgment of the court, is a nonentity. The only exception is where the warrant and judgment are for purchase-money of real estate conveyed to her, which may be enforced against the land itself, but not against her other lands ' or goods. While a married woman’s property is secured to her by statute and also means provided for her enjoyment and disposition thereof, many of her common-law disabilities, safeguards rather, remain. Her coverture is an absolute protection against every contract not authorized by legislative enactment. When judgments in the Court of Common Pleas, on bonds with warrant of attorney and on defective mechanics’ claims, are void, one before a justice of the peace, which does not affirmatively show her liability on a. contract within the statute, is invalid. In a forum where there is little form there ought to be substance, and the very gist of a judgment on contract of a married woman is its allowance by statute which should appear on the record. To hold the judgment on which defendants’ title rests, valid against Mrs. Haak, would be to strike down a common-law security for married women and wide open the door for sweeping away their estates.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Erie and Pittsburgh Railroad Co. versus Douthet.
    A railroad company agreed to give to D., during his life, a free pass over its road for himself and family. The railroad company subsequently refused to comply with its agreement, and I), brought an action to recover damages for the breach of the agreement. Held, that tho pass, being the principal feature of tho contract was therefore made its chief subject, for it was the document to be furnished as the evidence of the plaintiff’s right, and that no other rule could be applied to tho case but damages for the refusal of the pass as the only cause of action, and this being single, to be compensated by such damages as a pass for life for D. and family would be worth. And that while it was difficult to estimate its value, because of the length of life and the number of passages I), and his family might demand, yet certainty must be approximated to as closely as the nature of the case would admit.
    November 28th 1878.
    Before Agnew, C. J., Siiarswood, Gordon, Paxson and Trunkey, JJ. Mercur and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Orawford county: Of October and November Term 1878, No. 303.
    Case by William Douthet against the Erie and Pittsburgh Bail-road to recover damages for tho breach of an agreement to furnish plaintiff for life with a pass for himself and family over defendants’ railroad. Douthet, by deed, wherein the recited consideration was one dollar, gave to tho defendant company a right of way over his land. The company further agreed, through its president, by parol, as a further consideration therefor, to furnish plaintiff with a pass for himself and family during his life. This agreement was carried out until 1874, when, upon the refusal of tho company to furnish him with the pass as usual Douthet brought this action.
    At the trial before Church, P. J., the second point submitted by plaintiff was as follows, to which is appended the answer of the court:—
    That the measure of damages in this case is the value of a pass for the plaintiff and his family, over the line of the defendant’s road, from the time of the refusal by the defendant during the probable remainder of the plaintiff’s life.
    Ans. “ That we answer in the affirmative. As we have said, the difficulty is in arriving at a proper value, a system or theory upon which to arrive at tho present money value of that pass. That is the difficulty in this case.”
    The fourth point of defendant and the answer thereto, were as follows:—
    The measure of damages, if any, would be the actual amount expended by plaintiff for fares, and he would not be entitled to claim damages because of non-travel.
    Ans. “ The first part of that we answer in the negative. Tho latter part we would affirm as an abstract proposition that he would not be entitled to claim damages because of non-travel, but he is entitled to the pecuniary value of the annual pass. The p.ass may have been used for business or pleasure. You will take into consideration the number and character of his family; whether necessity or desire for pleasure would lead him or his family to go often or less frequently, or for what distance they would, for business or pleasure, be apt to travel.”
    In the general charge, the court, inter alia, said :—
    “You are to take into consideration the surrounding circumstances of Mr. Douthet and his family; whether it would be possible that they would have occasion, for business or pleasure, to use the pass to Jamestown, New Castle and Greenville.” Also, “ In determining the pecuniary value of this annual pass, it is your duty to take into consideration the station in life of Mr. Douthet, and his age, because this was an annual pass during his life,”

    Yerdict for plaintiff for $500, when defendant took this writ, among his assignments of error being'the answers to the above points, and the portion of the charge noted.

      J. Moss Thompson,‘for plaintiff in error.
    The contract was fop the transportation of plaintiff and family, and on failure of defendants the measure of damages, as in all other cases, would be simply what it wmuld cost the party claiming the breach of contract to be put in the same position as if the contract had been canned out. The doctrine of the measure of damages as to failure of common carriers to transport merchandise is well-settled in O’Conner v. Forster, 10 Watts 418; McGovern v. Lewis, 6 P. F. Smith 231; Fessler v. Love, 12 Wright 407; Adams Express Co. v. Egbert, 12 Casey 360; Pennsylvania Railroad v. Titusville & Pitt Hole Plank Road Co., 21 P. E. Smith 350.
    Suppose the railroad company, instead of agreeing to carry the plaintiff and family free during his life, had agreed to carry all the grain raised on his farm free, what would, in case of failure to perform this contract, be the measure of damages ? Clearly just what it would cost him to get his grain transported to the points agreed to be carried to by the railroad. Why should there be any difference ? The question is not one of injury but simply of non-transportation. Suppose, again, that the contract was for grain, and the plaintiff below one season raised no grain, consequently had none for transportation, could he say to the railroad, I had no grain for transportation, and you must pay me at the rate of $150 ? The contract is a continuing one and the defendants would be liable for every breach and the plaintiff could recover for every breach as it occurred, but certainly not for those which are in anticipation or the future. A pass is only of value when used.
    [Chief Justice Asnew. — This is not a- contract to pass plaintiff free but to give Mm that thing which will entitle him to be carried free when presented to the officers of the company. He has the right but no evidence of the right. Suppose this evidence of the right is refused, what then ?]
    Mr. Thompson. — The party pays his litre, rides to his place of destination, and then sues the company for the price of the ride. A pass has no value except that it enables the party to ride. Its value can only be ascertained by the number of times the party is refused a ride. The true measure of damages, therefore, would be the number of times the party had to pay his fare.
    [Chief Justice Agnew. — The question is what is the value or measure of damages for a breach of contract to issue a certain instrument which is a right for a certain thing.]
    Mr. Thompson. — We contend the pass has no value. Could a man recover for the prospective use of the pass ? The value of the pass depends upon its use; if never used it is of no value. It is only valuable because it is evidence of a right to ride.

      J.' S. JBratolep, for defendant in error.
    The contract was to furnish the plaintiff a pass for himself and family during his life. The breach was in refusing to furnish such a pass. The breach was final, and the damages must necessarily be so also. The question then arises whether the action should be for the whole breach and damages be given accordingly. This must depend upon the entirety of the contract: 3 Pars. on Con., p. 187. The contract in this case was entire, both in fact and in contemplation of law. A contract is entire if the consideration be single, whatever the number or variety of items embraced in its subject: Gootsman v. Pennsylvania Ins. Co., 6 P. F. Smith 210; McClurg v. Price and Sims, 9 Id. 420.
    In Shaffer v. Lee, 8 Barb. 412; Royalton v. R. & W. Turnpike Co., 14 Vt. 311, it is evident that but one action could be sustained for a breach of the contract given in evidence. When the claims arise from an entire contract * * * the law will not permit it to be divided into distinct demands and made the subject of separate actions : Carvill v. Garrigues, 5 Barr 153; Logan v. Caffray, 6 Casey 200; Hess v. Heebie, 6 S. & R. 57 ; Smith v. Jones, 15 Johns. 229 ; Farrington v. Payne, Id. 432.
   The judgment of the Supreme Conrt was entered, January 6th 1879,

Per Curiam.

This is rather an uncommon case. The agreement of the defendants was to give the plaintiff a pass over their railroad for himself and his family for his lifetime, as the consideration of his release of the right of way over his land. The pass was given for awhile, and then refused, and this action was to recover damages for their breach of contract.

The contract was not simply for a right to ride free upon the railroad. Possibly if in those terms the plaintiff might recover damages for each refusal, or combine his claims for damages for each refusal in a single action to cover any period, as a quarter or a year. But the contract being for a pass, or in other words a free ticket, this document was the principal feature in the bargain. It is obvious that a mere contract to ride free of charge would subject both parties to inconveniences. The company of necessity must operate its road by agents, viz., conductors of trains, and would be liable to suits through the mistakes or ignorance of their servants. So, too, the plaintiff without the evidence of his right would be liable to be refused often when his business might be most urgent. But a pass or free ticket would relieve both parties from difficulty. The pass being the principal feature of the contract was therefore made its chief subject, for it was the document to be furnished as the evidence of the plaintiff’s right. Hence we see no other rule to be applied to the case but damages for the refusal of the pass, as the only cause of action, and this being single, to be-compensated by such damages, as a pass for life for himself and family would be worth. It is true it is difficult to estimate its value because of two uncertainties — one the length of life, and the other, the number of passages he and his family would probably demand. Still this uncertainty, like many others, must be made to approximate certainty as closely as the nature of the case will admit of. The burthen of proof lay on the plaintiff, who knew the number of his family, and the customary number of trips made by himself and them.

Upon the whole, we see no manifest error in the record.

Judgment affirmed.