author: Mr. Justice Gordon

text:
    Hepler versus Mount Carmel Savings Bank.
    1. Although any material alterations in a promissory note, after its endorsement, will invalidate it as to the endorser, yet if it be without date when endorsed, the law will imply that the endorser authorizes the filling in of the date. And such filling in, therefore, by the, maker, will not relieve the endorser from liability.
    2. Where a witness is called to testify to a previous examination of a deceased witness, he may, where he cannot recollect the very words of the deceased witness, state in his own language the facts detailed by that witness as they were impressed on his mind at the time.
    3. Such witness, in order to be competent, must have a reasonably clear recollection of the testimony of the deceased witness, both on the examination in chief and on cross-examination. And if he has the same general recollection of one as of the other, without special verbal recollection of either, this is sufficient.
    4. Cornell v. Green, 10 S. & R. 14, and Wolf v. Wyeth, 11 Id. 150, followed.
    March 15th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1881, No. 24.
    This was an action of assumpsit brought by the Mt. Carmel Savings Bank against Daniel M. Hepler, on the following promissory note.
    May $2500. Ashland, 4, 1875.
    Sixty days after date I promise to pay to the order of Daniel M. Hepler, twenty-five hundred dollars, at Mt. Carmel Savings Bank, with defalcation value received.
    Credit the drawer, Daniel M. Hepler. Nathan Bolich.
    Endorsed, Daniel M. Hepler.
    Pleas, non assumpsit, payment, with leave, &e.
    On the trial, before Walker, A. J., the plaintiff offered in evidence the promissory note, to which the defendant objected, on the ground that it shows upon its face an alteration of the date from April 4th to May 4th 1875.
    The plaintiff thereupon called A. M. Montelius to explain the alteration, who testified in his preliminary examination substantially as follows: “I am cashier of the bank plaintiff. In April and May 1875, H. D. Rothermel was cashier; he is now dead. Upon the trial of this case before arbitrators, Mr. Rothermel testified as a witness as to the circumstances of the alteration. I was present. I cannot give the words used by him, but can give the substance of what he said as to who wrote the words April and May 4th. There was a long cross-examination which I cannot recall, but I remember that he did not contradict himself on cross-examination relating to the date of the note and the attending circumstances. The evidence was the same on cross-examination as it was on the examination in chief, on this subject.” The defendants objected to the admission of the witness’ testimony of his recollection of Rothermel’s evidence, because it did not propose to connect Ilepler, the defendant, with the alteration, and having been given before arbitrators was inadmissible in this action. The objection was overruled, and the witness testified substantially as follows : “ I was a director of the bank in 1875. .The bank held a note of Bolich, endorsed by Ilepler for $2500, due May 4th 1875. That note was not paid at maturity, but was renewed by another note for the same amount. The renewal note was presented to the board on May 11th, the first meeting day after May 4th. When presented the date of the note was entirely blank. I called Mr. Rothonnel’s attention to the blank and left the note in his hands, previously filling in the figure 4 in lead pencil as a memorandum.
    “ Mr. Rothermel testified before the arbitrators, in substance, that the blank had escaped his notice when he received the note, and as soon as he discovered the omission he wrote to Mr. Bolich, who afterwards came to Mt. Carmel; that Mr. Bolich, in proceeding to fill in the date, began writing April by mistake and discovering the error drew his pen over ‘ Apr.’ and wrote ‘ May ’ instead of it. The bank discounted the note.”
    The defendant called Nathan Bolich, the maker of the note, who swore that he filled out the note at his house in Ashland, and that he wrote' “Apr.” for April at the same time and before Ilepler endorsed it. That after getting it endorsed he took it to Mr. Rothormel for discount and got the proceeds; that on receipt of a letter from Mr. Rothermel he went to Mount Carmel and saw Rothermel. “ Mr. Rothermel then brought out the note and said, you made a mistake in the month, it should be May instead of April; he (Rothermel) took his pen and crossed out Apr. and I wrote May 4th above it.”
    The defendant, Hepler, testified: “ April was written there when I endorsed the note. Bolich’s boy brought the note to mo and I noticed the word April there; I am sure of it. Bolich’s son read the note, he read it April; I did not know of the alteration.”
    John McClellan testified, as an expert: “The word ‘Apr.’ is written in the same ink that the body of the note is written in. The ‘ May’ appears to be written in darker ink. The marks striking out ‘Apr.’ appear to be in the same ink as that in which ‘May’ is written.”
    Verdict and judgment for the plaintiff for $8055.41. The defendant took this writ of error, assigning for error the admission of the note in evidence and the admission of Mr. Montelius to testify as to his recollection of Rothermel’s evidence before the arbitrators.

      William A. Marr, for the plaintiff in error.
    Although the English rule, which requires the exact words of a deceased witness to be given, has been modified in Pennsylvania, it is still requisite that the witness called to testify from recollection must have a full and exact recollection of the substance of the testimony of the deceased witness, not only to his examination in chief, but also as to his cross-examination. To give the former and omit the latter would be to deprive the opposite party of the benefit of his cross-examination. Evidence of this kind is dangerous at best, and is not to be admitted unless the substance of the whole of it is given: 1 Greenleaf on Evidence, sect. 165; Watson v. Gilday, 11 S. & R. 342; Wolf v. Wyeth, 11 S. & R. 150; Bemus v. Howard, 3 Watts 250. The recollection of the witness Montelius fell far •short of this standard.

      D. C. Henning, for the defendant in error,
    cited, Cornell v. Green, 11 S. & R. 14; Chess v. Chess, 17 Id. 411; Cox v. Norton, 1 P. & W. 412; Insurance Company v. Johnson, 11 Harris 72.
   Mr. Justice Gordon

delivered the opinion of the court, March 28th 1881.

The promissory note, the subject of this suit, was drawn by Nathan Bolich to the order of Daniel M. Hepler, in the sum of $2500, payable sixty days after date, at the Mt. Carmel Savings Bank. By Hepler it was endorsed for the accommodation of Bolich, and by him, Bolich, transferred to the bank. When this note was presented on the trial of this case, it was discovered that the date had been altered by striking out the word “ Apr.,” and substituting the word “May” in its place. On objection by the defendant, Hepler, the court below properly refused to admit the note in evidence until the alteration was explained. The bank then offered proof to show that when Bolich presented the note for discount it was altogether without date, and that Bolich afterwards had himself filled in the date “Apr. 4,” and immediately, on his attention being called to the mistake, had stricken out the word “Apr.” and inserted “May.” We think the admission of this evidence and its submission to the jury was proper. Whilst it is admitted that any material alteration in a note, after its endorsement, will invalidate it as to the endorser, yet, where it is endorsed without date, the presumption necessarily is that the drawer or endorsee is authorized to fill in the date. This is undoubtedly the rule where the sum is left blank : Worral v. Gheen, 3 Wright 496. And no good reason can be urged why the same rule should not apply to the date. This note was drawn for the renewal of a former one, and as the parties may not have known the exact time when the former fell due, the reason for its being endorsed without date would, in that event, bo obvious. We think, then, that, under the circumstances, this testimony was rightly admitted; hence the first exception of the plaintiff in error is dismissed.

The second exception relates to the admission of the evidence of H. D. Rothermel, a deceased witness, given at a previous trial of this same case, before a board of arbitrators. To prove what that evidence had been, a Mr. Montelius was called, who, on preliminary examination, said he could not give the words that had been used by the witness, but could give the substance of his evidence on some points, and those points were as to the date and condition of the note when presented for discount. On cross-examination, he said he could not recall to recollection any of the cross-examination of Rothermel, except that, as to the date of the note and circumstances attending it, he did not contradict himself. Under such a want of recollection of what the dead witness had sworn on cross-examination, this -testimony would not be , admissible, for there ought to have been such a recollection of the cross-examination, that the witness could give at least the substance of it, otherwise, as was said in Wolf v. Wyeth, 11 S. & R. 156, “to give what he swore on his examination in chief and omit his cross-examination would be to deprive the opposite party of his cross-examination.”

Such testimony would be altogether one-sided, and for that reason inadmissible. Montelius, however, upon further interrogation, says “ the evidence was the same on the cross-examination as it was on the examination in chief, relating to the date of the note and the attending circumstances.” From this we must understand that his recollection of the cross-examination was substantially the same as that of the examination in chief; that is, he had the same general recollection of the one as of the other, but no special, verbal recollection of either. But we are inclined to think that, under our own authorities, this general, or, as it is sometimes called, substantial, recollection of what the deceased witness said, was sufficient to warrant its reception.

It is true, the contrary is held by English authorities, and these authorities have been followed by Chief Justice Siiaw in Warren v. Nichols, 6 Met. 261; but, on the other hand, Mr. Greenleaf favors the more liberal rule as adopted in Pennsylvania. And we, whatever our private opinions might be, must be governed by the cases of Cornell v. Green, 10 S. & R. 14, and Wolf v. Wyeth, supra. Furthermore, by attention to the language of Chief Justice Gibsojt, in the case of Cornell v. Green, we may readily formulate the rule governing cases of this kind. “I take it,” he says, “ that wherever the facts from which a witness received an impression are too evanescent in their nature to be recollected, or are too complicated to be separately and distinctly narrated, his impressions from these facts become evidence; and this on the ground that it is the best evidence of which the nature of the case is susceptible. * * * I cannot, therefore, see why the same necessity which opens the way for secondary evidence of the very words of a deceased witness, should not also open the way for the substance of his testimony when his very words cannot be recollected; or discover the policy of a rule which would shut out the little light that is left, merely because it may not be sufficient to remove everything like obscurity.” From this .1 take the rule to be, where the witness on the stand cannot recollect the very words of the deceased witness, he may state in his own language the facts as detailed by that witness, as they were impressed on his mind at ■the time; and this applies as well to the cross-examination as to the examination in chief. All that is required is that the recollection of the witness be reasonably clear as to the fact testified to, and how, if at all, such testimony was affected by the cross-examination. As a rule, this is all that can be required of ordinary witnesses, and the adoption of a greater degree of strictness would result in the total exclusion of such evidence, for the exception is rare where a conscientious witness will undertake to do more than this. Judging, by this rule, we think the evidence complained of in this case was well admitted.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Susquehanna Mutual Fire Insurance Company versus Tunkhannock Toy Company, Limited.
    1. Where a policy of fire insurance contains a provision that persons sustaining loss shall forthwith give notice of said loss to the secretary of the company,’' and shall subsequently by within a given time deliver to the secretary a particular account of such loss, the sending of the preliminary notice of loss by mail, properly addressed, is prima facie evidence of service of such notice, and in the absence of denial of its receipt, the jury may infer actual notice therefrom.
    2. A certificate of the levying of an assessment, signed by the president and secretary, under the company’s seal, as provided for by the Act of May 1st 1876, Parnph. L. 67, is admissible in evidence on behalf of the defendant in a suit upon the policy, as prima facie evidence of the fact of such assessment. 'f hat the certificate was dated after suit brought is immaterial, where the assessment was levied prior to the cause of action.
    3. Where a by-law of a mutual insurance company, in force at the date of the policy, provided that five directors out of thirteen should be a quorum, it is error in a suit on the policy, to exclude evidence of the levying of an assessment at a meeting at which only five directors were present.
    March 17th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Wyoming county: Of January Term 1881, No. 192.

      Covenant, by S. Judson Stark etal., liquidating trustees of the Tunkhannock Toy Company (Limited), against the Susquehanna Mutual Fire Insurance Company of Harrisburg, Pa., on a policy of fire insurance, dated May 8th 1877, for $1500, issued by the company defendant, on a factory and machinery belonging to the Tunkhannock Toy Company (Limited).
    On the trial, the plaintiff put the policy in evidence, and proved that the insured premises were totally destroyed by fire on December 16th 1877. Plaintiff’s counsel offered to prove, by the secretary of the company plaintiff, that, on December 19th 1877, he (the witness) deposited in the post-office at Tunkhannock, Pa., a preliminary notice of the fire, addressed to the company defendant at Harrisburg, Pa., the place of their principal office. Objected to; admitted; exception. A copy of this notice, proved by the same witness, was admitted under objection and exception. Formal proofs of loss were delivered to the insurance company on December 29th 1877, and being produced on'call, were read in evidence.
    On behalf of the defendant, it was shown that the Susquehanna Mutual Fire Insurance Company was incorporated April 28th 1878, under the Act of April 2d 1856, and its several supplements. That the by-laws, adopted Juno 6th 1876, provided as follows:
    “ Sect. 3. Thirteen persons shall constitute a full board of directors, all of whom shall be male members of the company, above the age of twenty-one years, who shall manage the affairs of the company; five of whom shall constitute a quorum, and be fully competent to transact business at any of its meetings, which shall be binding upon the members, as if a full board had been in session. They shall determine the rates and terms of insurance, and limit the amount to be insured. * * *
    “ Sect. 26. If any assessment, that may hereafter be levied on a premium note, be and remain unpaid on the day fixed by the secretary for the payment of the same, shall render absolutely void all policies on which the assessment may remain unpaid as above, and be a full bar against such defaulting member for all losses that may occur during the time the assessment may so remain unpaid, and the directors shall retain such premium note or notes, and collect thereon all such sum or sums as may be due or become due thereon during the term for wffiich it has originally been given.
    “Sect. 35. Persons sustaining loss or damage by fire, shall forthwith give notice of said loss to the secretary of the company, and within thirty days after said loss shall deliver to the secretary a particular account of such loss, signed and sworn to by them.” The policy in suit expressly provided that it was made and accepted with reference to the by-laws and the conditions endorsed, which were made part of the policy, which conditions provided, inter alia, as follows :
    “ 5. No insurance shall be considered as binding until the actual cash payment of the premium; and should the annual interest, or any assessment that may be levied on the premium note given for this insurance, be in arrears and unpaid for the space of thirty days after notice and demand, then, and in every such case, this policy shall cease.”
    The defendant gave in evidence the premium note signed by the assured, for $536.25, in the usual form, and then offered in evidence a certificate signed by the president and secretary, with the seal of the company attached, dated January 17th 1881, certifying that a certain “ assessment, No. 1 extra,” was made July 13th 1877, and the sum of $48.75 was levied on the premium note of the plaintiff, which amount remains unpaid. Objected to, on the ground, inter alia, that the certificate is dated subsequently to suit-brought. Objection sustained; exception. Defendant offered in evidence the following minutes of a special meeting of the board of directors, held July 13th 1877 :—
    “ Special meeting of the board, President Steever presiding. Directors present: Robinson, Garman, Bolender and Huntzinger. 1. The minutes of the last meeting were read and adopted. 2. The object of this meeting having been stated, the board considered the propriety of borrowing money, or so making an extra assessment upon the members’ notes to meet existing losses, whereupon it was on motion Resolved, that the secretary be empowered and he hereby is authorized and directed to levy an assessment, extra No. 1, upon all the members’ notes of the company, realizing an amount sufficient to cover all existing claims against the company, six per cent, pro rata, as per basis of assessment, as fixed by or under the company’s tariff of rates, rules and by-laws, and to attach the penalty of suspension of any and all policies upon which the assessment is not paid on or before the day fixed for the payment of the same. * * *
    “ Whereupon, the business for which the special meeting was called having been disposed of, the board adjourned.”
    Objected to on the ground, inter alia, that there were only five directors present at the meeting. Objection sustained. (Third assignment of error.)
    The defendant presented, inter alia, the following points :
    2. That if the jury believe a notice was deposited in the post-office, addressed to the company, it tvould not be a compliance with the terms of the policy. Ans. “ To this wrn answer that there is a presumption that a letter containing a notice of a loss by fire, directed to the home office of an insurance company, and duly mailed, is received by the company, and the jury may infer actual notice therefrom.”
    3. That the law does not presume a notice mailed to the secretary of the company, addressed to him at the place where he usually receives his letters and. transacts his business, was received by him. Ans. “A letter addressed to the secretary of an insurance company at the home office is the samo as if directed to the company ; if directed to him at any other place, it is not notice to the company.”
    Verdict and judgment for the plaintiff for §51633.74. The defendant took this writ of error, assigning for error (1, 4, 5) the answers to the above points and the admission in evidence of a copy of the preliminary notice of loss; (2), the rejection of the certificate of “assessment No. 1 extra,” and (3), the rejection of the minutes of the special meeting of the board of directors on July 13th 1877.

      Wm. M. Piatt (with whom were Fleming & McCarrell), for plaintiff in error.
    Under the by-law and condition of the policy requiring the assured to forthwith give notice of loss, the company was entitled to actual, not presumptive notice. The plaintiff, in order to recover, must prove its delivery to the company, not to the post-office. The rule that notice by mail is sufficient is restricted to notice of protest of commercial paper. No such presumption of notice arises in other business relations: Tanner v. Hughes, 3 P. F. Smith 289; First Nat. Bank of Bellefonte v. McManigle, 19 Id. 156; Callan v. Gaylord, 3 Watts 324; Hodgkins v. Montgomery Co. Ins. Co., 34 Barb. 213; Patrick v. Farmers’ Ins. Co., 43 N. H. 621; Kenney v. Altwater, 27 P. F. Smith 334.
    Our chief defence was that the policy was forfeited or suspended at the time of the fire by reason of the non-payment of an assessment long overdue. The Act of May 1st 1876, Purd. Dig. 2025, provides that a certificate, properly authenticated, that the assessment was duly levied and remains unpaid shall be prima facie evidence of such facts. Yet the court excluded such certificate, on the interpretation that the Act of May 1st 1876 applies exclusively to suits brought by mutual insurance companies to recover assessments, and because it was dated subsequently to suit brought. No such limitation is to be found in the statute; and, as the assessment was made long before the fire, the date of the certificate was immaterial. The exclusion of the minutes of the resolution levying the assessment, on the ground that only five directors were present, was error. The by-laws in force at the date of the policy, by which the plaintiff as a member was bound, expressly provided that five directors should constitute a quorum. The court denied the power of the company to enact that a less number than a majority of the entire board of thirteen should be a quorum. But there is no such prohibition in the Act of April 2d 1856, Purd. Dig. 793, and its supplements, under which the company was organized. The general Act of April 10th 1868, Pamph. L. 80, relating to corporation's fixes the number of directors at not less than five nor more than fifteen, but does not prohibit less than a majority from being a quorum. The Act.of April 15th 1869, Pamph. L. 29, by its terms only applies to corporations which may have increased the number of directors after their original organization. The Act of May 1st 1876, Purd. Dig. 2020, sects. 15 and 16, applies only to corporations organized under its provisions. The by-law fixing five as a quorum was within the power of the directors to make: Hoyt v. Thompson’s Ex’r, 19 N. Y. 207. The plaintiff, being in default, could not recover, and the evidence of his default was improperly excluded: Washington Mut. Fire Ins. Co. v. Rosenberger, 3 Norris 373.

      S. W. Little and W. E. & C. A. Little, for the defendant in error.
    The proof of mailing a preliminary notice of loss to the secretary of the insurance company is prima facie evidence that it was received, which becomes conclusive when that officer is in court on the trial (as in this case), and does not deny its receipt. The same reasons which apply to commercial paper apply to notice of loss under a policy of fire insurance. While the point has not been expressly decided in Pennsylvania, notice by letter has been held good: West Branch Ins. Co. v. Helfenstein, 4 Wright 289; Lycoming Ins. Co. v. Bedford, 2 W. N. C. 529; Ins. Co. v. Monninger, 18 Ind. 352. But the company waived notice of loss by declaring the policy void for non-payment of assessment: Girard Life Ins. Co. v. Mutual Life Ins. Co., 9 W. N. C. 425 (ante, p. 15.) The certificate of assessment was properly excluded; it was secondary evidence at best, and was manufactured for the trial after suit brought. The resolution fixing the assessment was void because passed by only five directors out of thirteen. The by-law making five a quorum was not passed by the stockholders, but by the directors themselves, and was illegal, By the charter the «power to make by-laws was vested in the corporators and their successors. By the common, law where a corporate act is to be done by a definite number, a majority constitutes a quorum, and this is not changed by any statute applicable to this corporation. The plaintiff was seeking to enforce his contract as a party insured, not his rights as a member. In a mutual insurance company the rights and liabilities of the insured on his contract, and as a member, are dual and distinct: Rosenberger v. Washington Ins. Co., 6 Norris 207; Ins. Co. v. Connor, 5 Harris 136; Bradfield v. Union Mut. Ins. Co., 9 W. N. C. 436. If, therefore, the by-law was illegal, the insured, as a contracting party with the company, was not bound by it, even though he might be bound as a member.
   Mr. Justice Trunkey

delivered the opinion of the court, May 2d 1881.

Notice of dishonor of bills or non-payment of notes where the parties do not live in the same town is usually sent by mail. This usage has settled into law, so that the legal presumption is conclusive that the notice was received from the fact that the sender duly delivered it in the post-office properly addressed. And when it may he sent by mail, if sent by a messenger, it must be delivered within the time that the mail would have taken it. Necessity and convenience led to the usage and legal presumption. Unless notice of dishonor be promptly given, the drawer of a bill and endorsers of a bill or note will be discharged from liability, and where the parties live at considerable distance the employment of a messenger would be burdensome.

Where a policy requires notice of loss to be given forthwith by the assured to the assurer, and is silent as to mode of service, is not the necessity equally great for adopting as a legal presumption, prima faeie till disproved, that the assured received the notice from the fact that it was properly addressed and delivered in the post-office ? It is common to send by mail the policies, the notices of loss, proofs of loss, and, in case of mutual companies, the notices of assessment. In a valuable work (Wood on Ins. 702), it is remarked, that in the construction of the policy and its various conditions, the evident intent and purpose of the parties is to be looked to, and as is the case with insurance companies, that they are generally located at great distance from the insured, it cannot reasonably be supposed that they expected or intended that the assured should, in person or by agent, deliver tb© proofs of loss, but that he should execute them with due diligence, and with equal diligence send them to the company by mail, which is now the principal medium through which the commercial business of the world is transacted. A contrary rule gives undue force to arbitrary conditions and jeopardizes too seriously the interests of the assured. This view seems correct with reference to notice of loss required to be sent forthwith. With respeet to proofs of loss, where time is allowed for delivery, there is not the same necessity and possibly not the same intent of the parties. Considering the widely extended and peculiar business of insurance, the evident general understanding of the parties as to service of notices, as well as the well-known usage when a notice is required to be sent immediately to a company, not in the same town where the insured lives, hut located considerable distance therefrom, the sending of it by mail is prima facie evidence of service. It may not be conclusive, as in case of commercial paper, but the reason is quite as strong that it should bo prima facie sufficient. The usage and the rule of evidence arise from the intent and purpose of the contracting parties as well as their convenience or necessity. It is not necessary to remark on the doctrine in Kinney v. Altvater, 27 P. F. Smith 34; Bank v. McManigle, 19 Id. 156, and like cases, which are within the general rule that there is no presumption of law that a letter, mailed to one at the place he usually receives his letters, was received by him.

The policy in this case covered property at Tunkhannock, and the company is located at Harrisburg. It is stipulated that notice of loss shall be given forthwith to the secretary of the company ; and proofs of loss delivered to said secretary within thirty days after said loss. The assured was required at once to send notice to the secretary at Harrisburg, which he did. by mail, if the testimony is believed. There was no attempt to disprove the receipt of the notice. The court charged that there is a presumption that a letter containing a notice of loss by fire, addressed to the secretary of the company at the home office of the company, and duly mailed, is received by the company, and the jury may infer actual notice therefrom. We discover no error in the first, fourth and fifth specifications.

It appears in the argument on behalf of the plaintiff in error that its fourth point was intended to refer to notice, as implied, when the proofs of loss were delivered, but the court very properly answered the point as it was written. That it was rightly answered is apparent by reference to the next point, the -fifth, which was affirmed. The sixth specification of error is not sustained.

Section 56, Act of May 1st 1876, Pamph. L. 67, provides: “ That the certificate of any mutual fire insurance company, now in existence or hereafter incorporated, signed by the president and attested by the secretary of such company, with the seal affixed, setting forth that an assessment had been made upon the premium note or notes of any member, and the amount due by such member upon such note' or notes, shall be prima facie evidence thereof in all the counts of this Commonwealth.” The remaining part of the section expressly relates to suits by the company against a member, and provides that upon the defendant filing an affidavit within the prescribed time, setting forth certain facts, such certificate shall cease to be evidence of anything. Prior to its enactment it was often a useless burden upon the company to adduce legal proof of an assessment and -of the defendant’s liability, in order to recover a sum to which there was no defence. Now, when a mutual company sues a member for an assessment, the certificate establishes the case unless a defence is averred under oath, and then it establishes nothing. The first part of the section refers to other cases, and in them the certificate is prima facie evidence of the amount due. It is not here a question whether the company ought to be relieved of the burden of producing books and witnesses to show the validity of an assessment which has not been paid, when sued upon the policy; it is enough that every member alike shares the benefit of the statute. And in all eases where the assessment is valid, it is a real benefit to all parties in the saving of useless costs. The certificate is not conclusive. When the opposite party has a defence against the assessment he may show it. For that purpose he may demand that the company’s books be produced at the trial, and call the officers as well as other persons to testify.

We are of opinion that it was error to reject the certificate showing the amount of the assessment, and the amount due, upon the premium note given for the policy in suit, and the second assignment of error must be sustained.

After rejection of the certificate the defendant offered to prove the assessment by its books, and that the meeting was called in accordance with the by-laws, that the assessment on the plaintiff’s note was for losses which occurred during the existence of the policy and note, and did not include any prior losses. This was overruled for the reason that five directors, less than a majority of the whole number, acted in making the assessment. It is necessary to pass on the correctness of this ruling for the cause is to be tried again, and, although the certificate will be prima facie evidence for the defendant, the plaintiff’s case may be put on the invalidity of the assessment, for no other cause than that it was laid by less than a majority of the directors. Section 3 of the by-laws provides that thirteen directors shall manage the affairs of the company, “ five of whom shall constitute a quorum, and be fully competent to transact business at any of its meetings, which shall be binding upon the members as if a full board had been in session.” This was in force when the plaintiff became a member of the company gnd gave the premium note payable in such portions and at such times as the directors of said company may require for the purpose of paying losses by fire or lightning and necessary expenses, agreeably to the statutes governing insurance companies, and the by-laws of said company. The plaintiff is a party to the mutual agreement between the members that five directors may act as if a full hoard were present. This question does not concern strangers to the company, nor persons who were members before the by-law was enacted, nor those who, being members at the time it was adopted, refused to be bound by it. It was on the books of the company as a by-law, the company was acting under it, and the plaintiff is presumed to have known of its existence from the date of its membership. It still claims the policy is valid— that the contract is binding on the part of the company to pay the loss, but not binding on the part of the assured to pay the consideration, though five directors have as full power over entering into contracts of insurance as over assessments. Had the plaintiff promptly refused to abide by such by-law, and, if continued, tendered back his policy and demanded return of the note, it could have raised the question whether less than a majority of the board shall be a quorum to transact business. And a member of the company may raise the question in a proper .proceeding. But the plaintiff held its policy and was bound to pay proper assessments for its proportion of the losses which occurred after its date. It made no objection to the by-law,-or to action under it. If the assessment was made in accordance with the by-laws, is not in itself a violation of the statutes, was proper for the purposes for which the premium-note was given, and was just, it will not be held invalid as respects the plaintiff in its suit upon the policy.

The seventh and eighth assignments cannot be considered, for no evidence of the assessments was admitted.

Judgment reversed, and a venire faeias de novo awarded.


author: Mr. Justice Mercur,

text:
    Jones versus Bomberger.
    1. A recognisance for stay of execution is, so far as the bail is concerned, an original undertaking on his part to pay a certain sum of money to the plaintiff, on the occurrence of a certain contingency, without any reference to the suit in which it is entered, other than can be inferred from the recognition by it of the amount found thereby to be due from defendant to plaintiff.
    2. A. furnished certain goods to B., a married woman, and received her check in payment therefor. Subsequently he obtained judgment against B. upon her check. O. thereupon, entered into a recognizance for stay of execution, conditioned for the payment of the “judgment debt with interest and costs.” B. having failed to pay the amount of the judgment within the specified time, A. issued a scire facias sur recognisance against O. Afterwards the court, on application of B., set aside the judgment against her, on the ground that she was under coverture when the goods were furnished, and therefore incompetent to contract. Held, that notwithstanding the opening of the judgment, O. remained liable to A. upon his recognizance, the extension of time obtained constituting sufficient consideration to support his express promise to pay.
    3. Quere, whether the same doctrine, will apply in a case where the judgment is founded upon no just or equitable claim.
    March 17th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, J. J.
    Error to the Court of Common Pleas of Schuyllcill county: Of July Term 1880. No. 65.
    This was a scire facias sur recognizance of bail for stay of execution, brought by E. B. Bomberger against Stephen Jones. Pleas, Nul tiel record, nil debet, payment with leave, &c.
    On the trial, before Pershing, P. J., the plaintiff gave in evidence, under objection, the record of a judgment obtained by him against Barbara Wadlinger, in an action of assumpsit upon three checks signed “B. Wadlinger per John Wadlinger, atty.” Judgment against Mrs. Wadlinger was entered July 3d 1876, by default for want of an affidavit of defence, and damages assessed at $441.71.
    On July 8th 1876, Stephen Jones was approved as bail for stay of execution, and executed the following recognizance, viz :

      “ I do hereby acknowledge to owe and to be indebted to the plaintiff above named in the sum of eight hundred and eighty-four dollars ($884), to be levied of my goods and chattels, lands and tenements, conditioned for the above judgment debt, with interest and costs, to obtain a stay of execution for the defendant according to law.”
    After the expiration of the stay of execution, to wit, on July 2d 1877, Barbara Wadlinger presented her petition and affidavit to the court, setting forth that at the time the cause of action accrued, and at the time suit was brought and judgment obtained, she was a married woman living with her husband John Wadlinger, and that the checks upon which suit vras brought were not given for necessaries furnished for the support of herself and family, nor for other consideration for which she as a married woman could be held liable. That she was not a feme sole trader, under the Act of May 4th 1855, but she had filed her petition to have the control of her own earnings under the Act of April 3d 1872. She therefore prayed that the judgment against her and all proceedings thereunder be stricken from the record. The court granted a rule to show cause, and after hearing made the rule absolute on August 20th 1877, and set aside the judgment.
    The defendant, in several points, requested the court to charge substantially as follows : that the judgment against Mrs. Wadlinger was void ab initio, and having been set aside as such by the court, was a nullity, that the recognizance of bail for stay of execution was unauthorized and void; that even if the recognizance were originally valid it was conditioned for the payment of the “judgment debt, interest and costs ” in a void judgment, and the setting aside of the judgment barred the plaintiff’s right of recovery in this action with like effect as if the original judgment had been paid ; that there being now no “judgment debt ” in existence the condition of the recognizance is satisfied and the verdict should be for the defendant.
    The court declined to affirm the defendant’s points (except that the judgment against Barbara Wadlinger was void and had been set aside by the court), and instructed the jury to find for the plaintiff.
    Verdict accordingly for the plaintiff for $540.35, and judgment thereon.
    The defendant took this w'rit of error, assigning for error the admission in evidence of the record of the judgment against Barbara Wadlinger, the refusal of his points and the instruction to find for the plaintiff.

      David A. Jones (with him Seth W. Geer), for the plaintiff in error.
    The effect of the order of the court making absolute the rule “to show why the judgment and all proceedings thereunder
      should not be set aside and stricken from the record,” was to set aside and strike from the record the recognizance as well as the judgment. The judgment having been absolutely void, the act of the prothonotary in taking the recognizance was unauthorized, and the recognizance was a nullity: Dorrance v. Scott, 3 Whart. 309; Caldwell v. Walters, 6 Harris 79; Stone v. Bird, 1 Leg. Chron. 388. The proceeding on the recognizance by scire facias is in the nature of execution process on the judgment: Bac. Abr., tit. Scire Facias; Respublica v. Cobbet, 2 Yeates 362; Bodine v. Commonwealth, 12 Harris 71. This is apparent from the writ itself, which recites the judgment against the principal, that “she hath not satisfied the said plaintiff,” and “because we are willing that those things which, in our said court, are rightly done, should be demanded by due execution, we command you,” &c.
    Upon a scire facias against the bail, the bail can plead payment by, or a release to, the principal, and “a reversal of the original judgment against the principal is a good plea:” Brightly’s Tr. & H. Pract., vol. 2, 262, sect. 2031; Ranck et al. v. Becker, 12 S. & R. 427; Eldred v. Haslett’s Adm’r., 2 Wright 32; Marsh v. Consolidation Bank, 12 Id. 510; Bac. Abr., tit. Scire Facias.

    The law of principal and surety applies, and the discharge of the principal from liability operates as a discharge of the bail: Patterson v. Swan et al., 9 S. & R. 16; 1 Tr. & H. Pract., sect. 1040; Morrison v. Hartman, 2 Harris 55.
    The authorities relied on by the other side were cases where there was either a valid subsisting judgment against the principal, or where persons sui juris had joined with married women in obligations, either as principals or sureties, and they are not applicable to this case.
    If the plaintiff claimed to recover on a premise made by the defendant in consideration of the moral obligation of the married woman to pay her debt, he should have so declared, and have given some evidence of a debt due by her. He contented himself, however, by giving in evidence the record of the void judgment alone.

      J. W. Roseberry, for defendant in error.
    The obligation of the surety for stay of execution was an agreement with the court, that if the court would give the defendant nine months’ time to pay the debt, as ascertained by the judgment, and if at the expiration of that time she failed to pay the debt, interest and costs, he would pay the same. The Act- of March 20th 1845, relating to bail for stay of execution provides that the bail shall be “ in double the amount of debt or damages, interest and costs recovered, conditioned for the payment thereof, in the event that the defendant fails to pay the same at the expiration of the stay of execution.” The law and the obligation demand the payment of the debt not
      the judgment. The surety confessed the validity of the judgment, and the fact that it has since been held void as to the married woman defendant on a technical ground, does not release him. The debt remains unpaid, and the moral obligation of a married woman to pay her debt is a sufficient consideration to support the promise of a third person to secure the same: Leonard v. Duffin, 9 W. N. C. 155; Sballcross v. Smith, 31 P. F. Smith 132; Unangst v. Fitler, 3 Norris 135; Rank v. Becker, 12 S. & R. 426. The discharge of the principal by operation of law, and not by the act of the creditor, does not discharge the surety: Be Colvar on Principal and Surety 401.
    But the bail for stay of execution is not a surety in the ordinary acceptation of the word. The recognizance is an absolute, original and independent contract with the court, irrespective of any proceedings against the principal debtor. The process to enforce it is not a continuation of the proceedings on the judgment, but is a collateral and independent action by scire facias, which is original process: Gould v. Breese, 2 Luz. Leg. Obs. 186; King v. Blackmore, 22 P. F. Smith 350. Jones having voluntarily entered into his recognizance, whereby he obtained time for the defendant and hindered and delayed the plaintiff, cannot now deny his obligation.
   Mr. Justice Mercur,

delivered the opinion of the court, May 2d 1881.

This is a scire facias sur recognizance against the plaintiff in error as hail for stay of execution on a judgment against Barbara Wadlinger. It was conditioned for the payment of the “judgment-debt, with interest and costs.” During the time the execution was stayed by virtue of this recognizance no part of the judgment was paid. At the expiration thereof the plaintiff in error, by the condition of his recognizance,, and by force of the Statute, became legally bound for its payment.

The Act of 20th March 1845 declares “the bail in all cases, where bail is now required for the stay of executions, shall be bail absolute, with one or more sufficient sureties, in double the amount of the debt or damages, interest and costs recovered, conditioned for the payment thereof in the event that the defendant fails to pay the same at the expiration of the stay of execution.”

The defence to a recovery on this recognizance is that, after the scire facias issued, Barbara Wadlinger applied to the court, showing she was a married woman when the judgment was recovered against her, and that the claim on which it was founded was not for necessaries, nor for a consideration that would render her liable to suit under the Acts of Assembly, and by reason thereof the judgment and all proceedings thereunder were set aside and stricken from the record. The contention is whether striking off the judgment at the time it was dofie and for the cause stated released the plaintiff in error from all existing liability on. his recognizance.

A recognizance is an obligation of record. When entered into to secure a stay of execution it is a new and distinct agreement to pay on failure of the former debtor. So far as the bail is concerned, it is an original undertaking, independent of all questions considered in the trial or determined thereby, save only a recognition of the amount found due. It is an obligation which the law permits the bail to assume without consent of the creditor, and against his wish. It becomes absolute on the happening of the contingency specified therein. It is so distinct from the judgment that proceedings may then be instituted thereon at once without first resorting to the defendant in the judgment.

It was urged that the obligation is conditioned for the payment of the judgment, and if that be afterwards stricken off or declared to be void, all liability on the recognizance is thereby discharged. It will be observed the Act of 1845, defining the liability of bail for stay of execution, does not declare the bail shall be conditioned for the payment of the judgment, but for “the debt or damages, interest and costs recovered.” So the recognizance taken is conditioned for the payment of the “judgment-debt.” It is a debt, the amount of which has been ascertained and fixed by the judgment, but it is nevertheless a debt. The obligation on the part of the bail is a contract to pay the debt which has thus been ascertained. Eor some purposes a distinction between the debt and the judgment is a narrow one ; yet the Act of Assembly appears to have purposely specified the former and not the latter. In other cases it. is very clear the distinction may be a wide one. The debt may be just and equitable in every respect, yet the judgment may be so defective, by reason of either improper service or errors in trial, that it might be reversed. If the defendant in the judgment is satisfied with its justice and assents to its confirmation, if a third person then steps in and agrees if execution be stayed for a specific time he will pay the debt at the expiration thereof, and' execution be thereupon stayed by reason of his promise, and his liability has become absolute, no principle of equity will relieve.him from his obligation on showing that by reason of personal disability of the defendant the judgment ought not to have been rendered, and that afterwards, on the ground of personal privilege, it was stricken off. It is not alleged that Mrs. Wadlinger did not buy goods to the full value of the debt claimed, nor that she did not receive and enjoy the same. The vendor parted with his property, and she received it under a moral obligation on her part to pay for it. The fact that by reason of her coverture she could not be legally compelled to pay, did not prevent the plaintiff in error from becoming legally bound for its payment. Her moral obligation to pay, and the extension of time obtained constituted a sufficient consideration to support the express promise of the plaintiff in error to pay: Leonard v. Duffin, 9 W. N. C. 155; Unangst v. Fitler, 3 Norris 135. Although the married woman may not be legally bound, yet the .security can be. The rule and the authorities applicable to cases where there is no just or equitable claim, are inapplicable to the facts of this case.

When the judgment was obtained against Mrs. Wadlinger, and she procured bail for stay of execution, she gave the strongest evidence of a liability to pay without objection. Had not die plaintiff in error then intervened, the presumption is, execution would have issued and the money been made. Having thus postponed the exercise of a valuable right, he has shown no equity sufficient to discharge his liability.

Judgment affirmed.


text:
    Jones versus Raiguel.
    1. A person who has become bonnd by recognisance for stay of execution, in a judgment against husband and wife, cannot, after the stay has fully expired, relievo himself from liability, by showing that the judgment has been improperly taken against the wife.
    2. A. sued ‘‘ B. and C., his wife, in right of said wife, doing business as a feme sole trader,” for goods furnished (J., and recovered judgment against both B. and C. J). entered bail for stay of execution in the usual form. At the expiration of the stay, the judgment being unpaid, A. issued a scire facias sur recognizance against I). I). filed an affidavit of defence, averring that the judgment of A. against B. and G. was absolutely void, and that proceedings were being taken by defendant therein to have it set aside. B. also filed a supplemental affidavit to the same effect, averring in addition the coverture of Ü. as the reason for the invalidity of the judgment. Held, that the averment that the judgment was absolutely void amounted merely to the expression of an opinion, and constituted therefore no defence. Held, farther, that even if the judgment were void as against the wife, it would remain in full force against her husband, and that, therefore, the plaintiff was entitled to judgment.
    3. The filing of a copy of a recognizance for stay of execution without a copy of the whole record of the judgment to which it has reference, is sufficient under the law, and rules of court of Schuylkill county, to entitle the plaintiff to judgment, under the Affidavit of Defence Law.
    March 17th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of July Term 1880, No. 66.
    This was a.scire facias sur recognizance of bail for stay of execution, brought April 14th 1877, by Henry R. Raiguel against Stephen Jones. The plaintiff filed a declaration and a copy of the following recognizance:—

      Henry R. Raiguel, )

      v. > 881, June Term 1876.
    John Wadlinger, &c. j
    8th July 1876, I do hereby acknowledge to owe and be indebted to the plaintiff above named in the sum of eight hundred and eighty dollars ($880), to be levied of my goods and chattels, lands and tenements, conditioned for the payment of the above judgment debt with interest and costs, to obtain a stay of execution for the defendant according to law.
    Before me, 1
    Thomas E. Kerns, Proth’y. > Stephen Jones.
    Per Glenn. J
    The record showed that this recognizance was given in the above mentioned suit of' Raiguel v. “ John Wadlinger and Barbara Wad-linger, his wife, in right of said Barbara, doing business as a feme sole trader.” Said suit was brought upon a check given by Barbara Wadlinger and upon a book account, both for goods and merchandise purchased by her from Raiguel, and the declaration charged the said Barbara in her own right. On July 8th 1876, ■judgment was entered against the said defendants by default for want of an affidavit of defence, and damages assessed for $439.20. On the same day, Stephen Jones entered into the above recognizance.
    On July 2d 1877, Stephen Jones filed an affidavit of defence to the sci. fa. on the recognizance, averring “ that the said original judgment against John Wadlingér and Barbara Wadlinger, his wife, is absolutely void, and that plaintiffs are not entitled to recover anything in this action, and that proceedings have been started by the defendant in said original judgment to have the same and all proceedings thereunder set aside and stricken from the record.
    John Wadlinger also filed a “ supplemental affidavit of defence,” averring, inter alia, “That deponent and defendant are informed, believe and expect to be able to prove, upon the trial of the above suit, that the judgment entered 'in the original suit against said Barbara Wadlinger and deponent, and the proceedings - thereunder and the recognizance sued upon are absolutely void, and that plaintiff is not entitled to recover in this suit. The original suit is for store goods sold to said Barbara Wadlinger, who was a married woman at the time of the purchase and delivery of the same, and at the time suit was brought and judgment rendered against her, and that deponent is not liable for the same. That the said Barbara Wadlinger is a married woman, being married to deponent and living with him as such for about twenty-one years. That said goods were purchased to retail in a dry goods and grocery store, and not for necessaries for herself or any of her family, nor for any other purpose which would render her liable in said action against her. That the pleadings do not show that said goods were for necessaries nor for any purpose for which she could be held liable to pay for the same, nor such a state of facts as to give the court jurisdiction over her in said original action.”
    [The records printed in the paper-book showed the following additional facts: A rule was taken in the original case against Wadlinger and wife, “to show cause why the judgment should not he set aside and stricken from the record, and all proceedings thereunder subsequent to the taking of judgment be stricken from the record.” This rule was made absolute as to Barbara Wadlinger, and subsequently, on February 21st 1881, was made absolute as to John Wadlinger to the extent that the judgment was directed to be opened and the defendant John Wadlinger let into a defence.]
    A rule to show cause why judgment should not he entered against the defendant, Stephen Jones, for want of a sufficient affidavit of defence, was made absolute by the court, and judgment was entered for plaintiff May 3d 1880, for $539.73. The defendant took this writ of error, assigning for error the entry of said judgment.

      David A. Jones (with him Seth W. Greer), for plaintiff in error.
    The judgment against Barbara Wadlinger was absolutely void and has been stricken off the record. The judgment was opened as to John Wadlinger, and if this judgment against the bail be allowed to stand, we may have to pay the amount of our recognizance, while there is no judgment in the original case. This is a clear caso of principal and surety, and payment by the surety ought not to be enforced until the liability of the principal be determined: Patterson v. Swan, 9 S. & R. 16; Morrison v. Hartman, 2 Harris 55; Corson v. McAfee, 8 Wright 288; 1 Tr. & H. Prac., sec. 1040. The recognizance is conditioned for the payment of the “judgment debt,” but there is no judgment debt due by Barbara Wadlinger, and the judgment has been opened as to John Wadlinger, and the question of its validity as to him has not yet been decided.

      A. W. Schalck for defendant in error.
    The Act of 20th March 1845, sec. 1, Purd. Dig. 635, pi. 8, directs that “ the bail in all cases * * * for stay of execution shall be bail absolute * * * in double the amount of the debt or damages, interest and costs recovered, conditioned for the payment thereof, in the event that the defendant fail to pay at the expiration of the stay of execution.”
    This clearly defines the nature of the contract, which is made by the law, and is virtually a bargain between the surety and the court; for the plaintiff below is perfectly powerless in the premises. Jones’s contract was then and there made with the court, and in consideration of the court’s granting the Wadlingers a stay of execution, he (Jones) then and there (in the language of the statute), became “ bail absolute, to pay the debt, interest and costs if the defendants failed' to pay at the expiration of the stay of execution.” The stay expired, and the defendants failed to pay as stipulated, and Stephen Jones’s liability to pay the debt, interest and costs thereby matured; it became absolute, unqualified and unconditional, and justice and equity require that it should be enforced: Leonard v. Duffin, 9 W. N. C. 155.
   Mr. Justice Mercur,

delivered the opinion of the court May 2d 1881.

The main question in contention here is this: When .a person has become bound by recognizance as bail for stay of execution in a judgment against a husband and his wife, and after the stay has fully expired, can he relieve himself from liability by showing the judgment was improperly taken against the wife?

The equitable demand of the plaintiff in the judgment is unquestioned. The defence which it is now alleged the wife might have successfully made rested on her personal privilege, which she did not interpose. She suffered judgment to be entered against herself and her husband jointly. They were satisfied to let it stand. They voluntarily gave security to obtain the benefit of a stay of execution. The bail voluntarily assumed the liability whereby he delayed the plaintiff for nine months in collecting the judgment. At the expiration of that time his liability became fixed. . The terms of his recognizance bound him to pay it. The legal requirements of the statute commanded him to pay it. It has not been reversed or vacated. The naked averment in the affidavit that the judgment is absolutely void, is the expression of an opinion which is wholly insufficient to prevent judgment being entered in this case. No fact is stated showing its invalidity as against the husband. Suppose it should be proved to be void as against the wife by reason of her personal disability, it nevertheless remains in full force against her husband: Unangst v. Fitler, 3 Norris 135; Hope v. Building Association, not yet reported; Leonard v. Duffin, 9 W. N. C. 155. A striking off the judgment against the wife would not impair its validity against her husband.

The probability is the judgment would have been collected long before the nine months expired,’if it had not been prevented by the intervention of the plaintiff in error. He now stands in a very unfavorable position to invoke the aid of any equitable principle to relieve him from his legal obligation: Gibbs & Co. v. Alberti, 4 Yeates 373; Armstrong’s Appeal, 5 W. & S. 352.

The other objection that a copy of the whole record of the judgment should have been filed is without force. This action was on the recognizance. A copy of it was filed. That is all which the law or rule of court required: Keyser et al. v. Dialogue, 4 W. N. C. 11.

Judgment affirmed.


text:
    The Farmers’ Mutual Fire Insurance Company of Schuylkill County versus Moyer.
    1. Where a building is insured under a valued policy of insurance, by the terms of which the insurers undertake to pay the amount of the policy within three months after notice of loss, and a total loss of the building occurs, preliminary notice whereby the company is informed of such loss is sufficient without giving the more formal proofs.
    2. Where in such case the contents of a barn were insured by the same policy as the barn itself, and the directors of the company insuring upon receiving preliminary notice of tho loss of such contents, proceeded to pass a resolution denying the liability of the company on other grounds than tho want of notice: Held, that tho question was properly submitted to the jury whether by this action the directors had not waived the necessity of presenting formal proofs of loss.
    3. The by-laws of an insurance company prohibited the insuring of any building “ situated within fifty yards of a railroad on which steam-power is employed, or of any forges, foundries, furnaces, rolling-mills, powder-mills, paper and oil-mills, cotton-mills, or in general, any mills, factories or machineries driven by steam-power,” and provided that if the owner of any insured building ‘‘should convert it to some other purpose, or should carry on therein any of the trades” therein before set forth, tho policy on his premises should be deemed of no foree or effect. Held, that the use of a portable steam-engine near a barn, for the purpose of threshing grain within the structure, was no such violation of the by-laws of the company as would vitiate a policy of insurance upon the barn aforesaid.
    4. In an action brought upon such policy for a loss occasioned by the burning of the barn in consequence of the explosion of the steam-engine, the court left it to the jury, to say whether the insured had materially increased the risk of fire by using the engine, instructing them that if they were of opinion that he had, they should find for the company defendant. Held, that this instruction was as favorable as the defendant could ask.
    March 17th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to tho Court of Common Pleas of Schuylkill county: Of January Term 1881, No. 164.
    This was an action of covenant, brought February 26th 1876, by George K. Moyer against the Farmers’ Mutual Fire Insurance Company of Schuylkill county, upon a policy of insurance insuring, inter alia, a frame barn for $1500, and the contents for $1000, issued April 5th 1869, for tho term of ten years. Pleas: non est factum, covenants performed, covenants performed absque hoc, with leave to give special matter in evidence.
    Upon the trial, before Pershing, P. J., there was no serious dispute as to the material facts, which were as follows:—

      The company defendant was incorporated by a special act of the legislature in 1850, Pamph. L. 45, and was organized and did business upon the mutual plan. Article 26 of the by-laws provides as follows: “ The following property can, under no circumstance, be insured by this company, viz.: All buildings situated within fifty yards of a railroad on which steam-power is employed, as forges, furnaces, rolling-mills, paper and oil-mills, cotton-factories or machineries driven by steam-power,” * * * Article 34 provides: “ If the owner of an insured building should convert it to some other purpose, or should carry on therein any of the trades specified in article 26, the policy of such insured building shall not be considered valid or binding upon the company for such length of time as it shall be appropriated to such purposes; but a man may employ necessary laborers or mechanics of all description in the house or other buildings for the purpose of renewing fir Improving them, without forfeiting any of the advantages guaranteed him by his policy.”
    Section 8 of the charter provides as follows: “ Suits at law may be prosecuted and maintained by any member against the said company for losses and damages by fire, if payment be withheld or refused for more than three months after the company shall have been notified of such losses. Wo member of the company, not being in his individual capacity a party to the suit, shall be incompetent as a witness on account of being a member of the company.”
    Plaintiff’s barn was destroyed by fire Wovember 20th 1875, caused by the explosion of the boiler of a small portable steam-engine which the plaintiff had hired for the purpose of threshing his crops. The engine, boiler and the fire under it were placed at a distance of about thirty-two feet from and outside of the barn, and the machinery threshing the crops was within the barn, driven by a strap or belt communicating with the steam-engine outside. The engineer lighted the fire about six o’clock in the morning, and went to breakfast. In about fifteen minutes afterwards the explosion 'occurred, and in a few minutes the barn and its contents were on fire. The plaintiff testified: “We were sitting at the table at breakfast; the engineer ate but little, and he went out before it exploded, but he did not reach it, I suppose. The engine was on a small wagon, and it tore loose and broke the barn doors in ; the doors were all shut in the evening and everything was in the inside; there was nothing outside. As soon as I came out I saw that the barn was on fire.” The engineer testified: “ Saturday morning I went there and got some chips and one thing and another and started a fire and put on-a couple of shovels of coal, closed the door and went in to breakfast. We often did that, for it would be half an hour, and we would not have steam up then. We went in, took our.breakfast, and when I came out and looked out of the door I found it did not -work as usual, and when I got five or six steps from the porch it exploded. We ran out and saw we could not do anything, but the fire was all through the barn. We got the cattle out, and everything burnt down except the cattle. It may have been twelve or fifteen minutes I was away from the engine.”
    It was in evidence that at the time when the contract of insurance was made, in April 1866, threshing with steam-engines as a motive power was unknown, such mode of threshing having been introduced about the year 1874. Also, that Moyer, the plaintiff, at a meeting of the directors, stated that one Mantz, had put a steam-engine in his tannery, which Moyer said was entirely against the rules of the company, particularly by-law 26. Then he made a motion, aftsr it was fully discussed, and Mr. Ebling was instructed to inform Mr. Mantz that such was the case, that his insurance was to be null and void, as he had violated the laws of the company, and it was so placed on the minutes. Mr. Mantz’s insurance money was subsequently returned to him.
    The policy contained, inter alia, the following provision : “ The loss or damage to be estimated according to the true and actual value of the property at the time the same shall happen, and to be paid within three months after due, and proof thereof made by the insured, in conformity to the charter and by-laws.”
    The plaintiff gave notice of the fire to the secretary of the company on the 23d of November 1875, three days after the fire, and furnished the formal proof of loss December 7th 1875. In the mean time, at a meeting of the directors, on November 27th 1875, the plaintiff appeared, and what then transpired is thus recorded in the minutes r
    “Next in order was to hear the claims of George K. Moyer, whose bam and the contents were totally destroyed by fire on Saturday, November 20th 1875, on account of a steam-engine, which was used for threshing and exploded. Henry S. Kern, one of the viewing committee, was noticed on the 24th inst. to examine the fire, hut did not receive the letter. George K. Moyer affirmed and says that the boiler exploded and that set the barn on fire. On motion of G. S. Ebling it was moved and seconded that the barn and contents of George K. Moyer shall not be paid, except compelled by law.”
    The plaintiff presented, inter alia, the following point: “ That the by-laws 26 and 84 do not contain any prohibition of the use of a steam threshing-machine in the manner it was shown under the uiieontradicted evidence of this caso the same was used.”
    Ans. “ We would so understand the evidence, but it is for your consideration.”
    The defendant presented, inter alia, the following points:
    1. That under the uncontradicted evidence in this ease, no proof of loss was furnished to the company by Moyer till the 7th day of December 1875, and as by the terms of the policy the insurance was not payable till three months after such proof was furnished, and the suit in this case was instituted on 26th day of February 1876, the verdict of the jury must be for the defendant, the suit having been brought prematurely. The court answered this point substantially as follows: The policy of course is the contract between the parties, and they are bound by its terms and conditions. The construction we put upon the clause which provides that the loss is “ to be paid within three months after due, and proof made thereof by the insured in conformity to the charter and by-laws,” is that the evidence of the loss must be furnished three months before the suit is brought, unless the company did something to waive it. The point made on the part of the plaintiff is, that as the barn was a total loss, and the company had notice of the total loss more than three months before the suit was brought, the barn itself cannot be involved in this point. It has been held when the contents have been destroyed, to 'simply say that the barn was destroyed “and its contents,” is not sufficient, but notice must be given of the contents in detail which were in the barn at the time of the fire. It would seem that this was not complied with until in December, by the notice prepared by Mr. Hughes, in which the contents were specified. This would be less than three months before the bringing of this suit, and would prevent a recovery so far as the contents of the barn are concerned, unless the company did something to waive the production of notice at an earlier date, or the production of any notice whatsoever. We think there is a question for your consideration at this point. The board of directors met on the 27th of November, and took into consideration a notice which they had received, as it would appear from their minutes, in reference to the loss sustained by Moyer of this property, under the policy of insurance which the company had issued to him. It would appear from Moyer’s testimony that he was present.
    They adopted a resolution not to pay him, and that they would not recognize any liability whatsoever, upon the ground that he had no right to take the machine upon the premises at all, not upon the ground of want of notice, but because he had violated the agreement by taking the machine upon his premises. What is the objeet of the notice ? plainly to notify the company of the contents, that so much .hay and grain, &c., were destroyed, and the value, so as to enable them to ascertain what they were to pay. But when they said that they would pay nothing, and denied any liability, was it not a waiver of any notice, as to what contents of the barn were ? If you find that by this action they waived the necessity of the notice, as required by the policy, the delay would not prevent the plaintiff from recovering here, if you find he has a right to recover. It is for you to determine whether there was a waiver.
    8. “ That the true construction of the charter, policy and bylatvs prohibits the insurance of any building or barn which is located within fifty yards of any steam-engine, or within which any steam-engine is used.”

    Ans. “We will answer this in the negative, in view of the language employed in the by-laws, although it is a question we are not entirely clear upon as to what construction shall be placed upon it.”
    10. “ That under all the evidence in this case the verdict of the jury must be for the defendant.”
    Ans. “We decline to so instruct you, as it -would be taking the whole case from your consideration.”
    Verdict and judgment for the plaintiff for §2492.47. The defendant took this writ of error assigning for error the answers to the points as above given.

      F. W. Bechtel and George B. Kaercher, for the plaintiff in error.
    This being a mutual company the charter, by-laws and policy constituted the contract, and the construction of these written papers was for the court as a matter of law. Beatty v. Lycoming Ins. Co., 2 P. F. Smith 456; Mitchell v. Lycoming Ins. Co., 1 P. F. Smith 402. The contract is to be construed with reference to its object and spirit, the intention of the parties, the circumstances under which it was made, and by calling in aid the construction the parties themselves put upon it before the alleged breach: Coxe v. Freedley, 9 Cas. 124; Miners Appeal 11 P. F. Smith 283; Foster v. McGraw, 14 P. F. Smith 464; Allison’s Appeal, 27 P. F. Smith 221; Bickford v. Cooper, 5 Wright 142. Can any reasonable man doubt that the introduction of a steam boiler and engine within 32 feet of the barn connected by a belt with the threshing -machinery within the barn, was a violation of the spirit and meaning of the contract that “ under no circumstance” could any building be insured situate within 50 yards of any railroad, as mills, factories, or machineries driven by steam-power. Or that it infringed the provision that “ if the owner of an insured building should convert it to some other purpose * * * the policy of such insured building shall not be considered valid or binding upon the company for such length of time as it shall be appropriated to such purposes.” These provisions are not drawn with the utmost verbal skill, but the farmers who were the members of this company could understand their import. This intent was to prohibit the insuring of any building in or near which steam was used, and to prevent any change in the use of the building which might tend to increase the risk, particularly the proximity to steam factories or machinery, and if such change was made by the assured, to suspend the policy for the time being. Such is the law independent of the by-laws: Diehl v. Adams Co. Mut. Ins. Co., 8 P. F. Smith 443; Franklin Fire Ins. Co. v. Brock, 7 Id. 74; Flanders on Fire Ins. 335, 515, and note. But the act of Moyer was a violation of his express covenant, and an infraction of by-laws 26 and 34. What is the difference between locating a building within fifty yards of machinery driven by steam-power, and locating machinery driven by steam-power within fifty yards of a building. The barn was formerly used for the purpose of threshing by hand or horse power; it was converted by the assured to the “other purpose” of threshing by steam. Moyer knew well that this was in violation of by-law 34, as proved by the fact that he had previously insisted that Mr. Mantz had violated the same provision by introducing steam into his tannery, and Mantz’s policy was therefore cancelled and the premium returned to him. This fire can in no sense be called an accident within the protection of the policy-; it was the direct and natural result of an appropriate cause, viz: a dangerous steam-engine run by an incompetent or careless engineer.
    2. The suit was prematurely brought, within less three months after due proof of loss made by the assured. -The proofs were not served until December 7th 1875, and the writ issued February 26th 1876. It is true that informal notice of the fire was received by the secretary November 23d 1875, but there is a marked distinction between notice of fire and proof of loss. The former is to enable the company to inspect the premises and inquire into the circumstances ; the latter is a sworn statement, in detail, and is a condition precedent to recovery. It is also true that the directors, at a meeting held November 27th 1875, passed a resolution that the loss should not be paid “ except compelled by law.” It is claimed that this action of the directors was a waiver of the proof of loss. But “a waiver never occurs unless intended or where the act relied on ought in equity to estop the party from denying it:” Diehl v. Adams County Mut. Ins. Co., 8 P. F. Smith 443. It will hardly be contended that the company, in passing a resolution not to pay the loss voluntarily or “ except compelled by law,” intended to vraive a valid defence. But, even if it were a waiver of the proofs of loss, such waiver occurred on November 27 th 1875, and the suit was still prematurely brought, February 26th 1876, less than three months from the alleged waiver.
    The question of wrniver as to the barn itself was not even submitted to the jury by the judge, who charged that the barn was not involved in the question of proof of loss; and he- cited Lycoming Mut. Ins. Co. v. Schollenberger, 8 Wright 259; but that decision is predicated upon the fact that the policy was a valued one. In this case the policy provides “ the said loss or damage to be estimated according to the true and actual value of the said property at the time the same shall happen.” The court should have affirmed our points, and directed a verdict for the defendant.

      Guy E. Farquhar (with whom was F. W. Hughes), for the defendant in error.
    1. The use of'the portable engine by the plaintiff certainly did not infringe the letter of any provision in the charter, by-laws or policy, and, we contend, did not violate their spirit. The building was insured as a barn, and as a bam was being used at the time of the fire. It was not converted to any other purpose, for the purpose is the same whether grain bo threshed by flail, horse-power, wind-power or steam-power. The temporary use of a steam-engine outside the barn did not convert it for the time being into a steam-factory or mill within the provisions of by-laws 26 and 34. If the construction of the contract be doubtful, the doubt is to be resolved in favor of the assured, and against the company: Franklin Fire Ins. Co. v. Brock, 7 P. F. Smith 74. The question of increased risk was properly submitted to the jury: Mutual Fire Ins. Co. v. Coatesville Shoe Factory, 30 P. F. Smith 407.
    2. The suit was not prematurely brought. Neither the charter nor the by-laws expressly require any proof of loss in the case of a building, but only in the case of personal property destroyed. The barn was a total loss, and the amount for which it was insured was far less than its actual value. The loss became fixed and due immediately after the fire. Sufficient notice of the total loss was given to the company within three days thereafter — more than three months before suit was brought. The company claimed that the true meaning of the policy was that the loss was not payable until three months after proof of loss made, and the court below sustained that view, but left it to the jury to determine -whether the company had waived proof of loss. In this we think the court erred in favor of the company. This error did not hurt us, because the jury found the question of waiver in our favor. They wore fully justified in so finding, because the resolution of the directors was equivalent to saying to Mr. Moyer, “We have had all the proof of loss we -want. We will not pay you unless compelled to do so by law.” This was final action upon a distinct ground, and was in law and in fact a waiver of all other grounds: Lycoming Insurance Co. v. Schreffler, 6 Wright 188; Franklin Fire Insurance Co. v. Updegraff, 7 Id. 350; Lycoming Mutual Insurance Co. v. Schollenberger, 8 Id. 259; Buckley v. Garrett, 11 Id. 205; Farmers’ Insurance Co. v. Taylor, 23 P. F. Smith 342.
   Mr. Justice Gordon

delivered the opinion of the court, April 1st 1881.

On the 5th of April 1869, George K. Moyer, the plaintiff below, obtained a policy of insurance from the defendant company, covering his barn and its contents. The building was insured in the sum of $1500 and its contents in the sum of $1000. On the 20th of November 1875, it and all it contained were destroyed by fire. The fire which produced this destruction seems from the evidence to have originated from the explosion of the boiler of a portable steam-engine, which had that morning, or the evening before, been stationed within some thirty-two feet of the barn, for the temporary purpose of threshing grain on the barn floor, a strap being used to connect the engine with the threshing machinery. The assignments of error, though numerically four, are substantially but two, and are raised by the defendant’s first and eighth points. They are as follows: 1. “ That as under the uncontradicted evidence in this case, no proof of loss was furnished to the company by Moyer till the 7th of December 1875, and as by the terms of the policy, the insurance was not payable till three months after such proof was furnished, and the suit in this case was instituted on February 26th 1876, the verdict of the jury must be for the defendant, the suit having been brought prematurely.” 2. “ That the true construction of the charter, policy and by-laws in evidence, prohibits the insurance of any building or barn which is located within fifty yards of any steam-engine, or within which any cceamengine is used.”

As to the first of these points, if indeed the uncontradicted evidence supported it, there would have been an end to the case; the plaintiff could not have recovered. But unfortunately for the defendant, such was not the case. I-n the first place, there was the preliminary notice of the total loss of the barn and its contents — that this was in time was admitted — and in the second place, there was the question of waiver, which the couvt submitted to the jury. .As to the first of these, the learned judge held that the preliminary notice, so far as the barn itself was concerned, the loss being total, was sufficient without the more formal proofs.

In this he was undoubtedly correct, if the case of the Lycoming County Mutual Ins. Co. v. Schollenberger, 8 Wright 260, is law, for it is exactly in point. The counsel for the plaintiff in error attempts a distinction, which it seems the court below was unable to comprehend, and we must confess to a similar want of intelligence. He insists that while the policy in the case cited was a valued one, that in the case in hand it is not a valued one. Of course, this distinction, if it exists at all, must be found in some substantial difference of the wording of the two policies. Let us compare them. Schollenberger’s policy covered a coal breaker, including a steam-engine, schute, screens, machinery and trestle-work, in a sum not exceeding $2500, for the term of five years. Moyer’s insurance is, inter alia, upon “'one bank barn of frame, 70 feet by 36 feet, for $1500,” and for the term of ten years. Now as the word “for” in the quotation means “in a sum not exceeding,” to the amount of,” it is impossible for us to discover the difference between the two policies, or that if the one is a valued policy, why the other should not be.

As to the contents of the barn, the court held that special notice of loss was necessary, and if it were not given until December, the suit was premature, and as to them it must abate, unless there was some act of the company which was equivalent to a waiver of such notice.

On this point the learned judge held that if, at the meeting of the board of directors on the 27th of November, determination was had not to pay Moyer, or to recognise any liability whatever, on the ground that he ought not to have allowed the steam-engine to have been brought upon the premises, and that he thereby forfeited his policy, and not upon ground of want of the proofs of loss, the jury might regard such action of the company as evidence of a waiver of such proofs.

This was a correct ruling. Insurers undoubtedly have the power to waive the performance of a condition introduced into a policy for their own benefit, and it is not necessary that such waiver be express; it may be inferred from their acts, and among others of such acts is a denial of the obligation exclusively for some other reason than that of a breach of the condition: Inland Ins. Co. v. Stauffer, 9 Casey 397; State Ins. Co. v. Todd, 2 Norris 272.

As to the answer of the court to the defendant’s eighth point, and the charge relative to the subject-matter covered by that point, we think, if in them there is any error, it is one of which the plaintiff had reason to complain rather than the defendant. It was held that the plaintiff could not recover if the use of the engine increased the risk ; in other words, the jury were left at liberty to find a forfeiture) m the ground stated, but neither in the policy, by-laws nor constitution of the company was the temporary use of a portable engine for grain threshing or other economic use prohibited.

The 26th article of the by-laws prohibits the insuring of any building “ situated within fifty yards of a railroad on which steam-power is employed, or of any forges, foundries, furnaces, rolling-mills, powder-mills, paper and oil mills, cotton-mills, or, in general, any mills, factories or machineries driven by steam-power.” But the property in the case in hand is embraced by neither the letter nor spirit of this prohibition.

Again, art. 84 provides: “ If the owner of an insured building should convert it to some other purpose, or should carry on therein any of the trades specified in art. 26, the policy of such insured building shall not be considered valid or binding upon this company for such length of time as it shall be appropriated to such purpose.”

Neither is the plaintiff’s case taken up by this provision; for this contemplates the conversion of the building to a purpose other than that for which it was used at the time of its insurance; an adaptation of it to some one of the occupations or trades mentioned in art. 26. But the plaintiff’s barn was converted to no such purpose; it was insured as a barn, and as a barn it was burned.

These, however, seem to be all the regulations pf this company which have even a remote bearing upon this subject. But it is only by a strained inference that either of them can be made to bear on the plaintiff’s case, and it certainly would be out of all character to allow a forfeiture to be worked in favor of the company through the operation of a mere inference.

There being, therefore, no express prohibition found in the policy or rules of the company against the use of a machine of this kind in the vicinity of the barn, the question was at most one of increase of risk, and that was properly left to the jury.

There is not much doubt but that the immediate occasion of the fire was the explosion of the boiler by which the machine was driven; but this was one of those pure accidents that is not to be ponsidered any more than the accidental breaking of a glass lantern, had that been the occasion of the fire.

Accidents will -happen, more frequently, perhaps, with steam-engines than some other machines; nevertheless, they are accidents, and as such are beyond human forecast, and if insurance companies desire to prohibit even the temporary use of steam on or near the premises they insure, they should provide against such use in their policies, but it will not do for them to attempt to make rules and regulations, intended for a very different condition of things cover an emergency not previously contemplated.

The judgment is affirmed.