text:
    The Watertown Fire Insurance Co. versus Simons.
    1. One of the objects of the Act of Assembly requiring soliciting agents or surveyors of insurance companies, doing business in this state, to have a certificate of authority to act from the insurance commissioner, is the protection of the, people against worthless foreign insurance companies, and as the insured is not required to see that the laws have been observed, before making a contract of insurance, there is no reason founded on public policy that will enable a company which fas violated our laws in making a contract and received its consideration from an innocent citizen, to escape liability for non-performance, by setting up its own turpitude.
    2. An insurance contract is fair and reasonable when it expresses that representations affecting the risk are warranted, and if its meaning is doubtful, a court will not construe the language so as to avoid the policy for trifling and immaterial matters which neither party probably considered at the making of the contract.
    3. If the insured is the absolute owner of the property destroyed a dry trust of the legal title in another will not prevent a recovery.
    November 27th 1879.
    Refore Sharswood, C, J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ\, absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 178.
    Debt by John W. Simons against the Watertown Eire Insurance Company.
    On the 14th day of September 1876, the Watertown Fire. Insurance Company issued a policy of insurance to John W. Simons on a farm-house and a bam and contents in Crawford county, Pa., for the sum of $1900, for the term of three years from that date. In the policy the house was insured for $1400. The policy was written and countersigned by E. J. Smith, agent of the company at Williamsfield in Ohio, duly constituted and appointed agent according to the laws of the state of Ohio. The application upon which the policy was issued was taken and written . by E. D. Cole, a sub-agent under Smith, and. countersigned by Smith as agent and Cole sub-agent. The company alleged that in the application for this insurance the assured stated that his house was a two-story frame dwelling-house worth $2000; that it was thirteen years old; that the dimensions given were 20x25 feet for the main building, west wing 16x16 feet, east wing 14x25 feet, and that the absolute ownership of the property was in him ; that upon these representations and statements the company was induced to insure the house for the sum of $1400, about two-thirds of the valuation; that by the terms of the policy the application was made part of the contract, and all the statements and representations therein made were taken and deemed warranties on the part of the assured. On November 22d 1877, the house was burned. The company having heard of the loss, Henry Kraber, the state agent, called upon Simons to ascertain the facts concerning the fire. From Simons he took a sworn statement, wherein, as defendant alleged, the company learned for the first time that the larger part of the house was only one story, and a low story at that, one wing being only eight feet in height, and the other nine feet, and the main building a story and a half; that it was also ascertained by Simons’s estimate, that the property had been largely overvalued, he estimating the building in his statement at $1000, when in the application it had been estimated at $2000; that the further discovery was made that the building, instead of being thirteen years old, as stated in the application, was some twenty-one years old at least. It also was alleged that the title was in his wife, and that Simons’s interest was at most an equitable one, the legal title being vested in his wife. Other facts will be found stated in the opinion of this court.
    At the trial before Church, P. J., the defendant submitted the following points, to which are appended the answers of the court.
    1. That Cole, who solicited the risk and filled up the application for insurance upon the property alleged to be the property of Simons — which application forms part of the contract sued upon in this case — was not an agent of the Watertown Fire Insurance Company, nor authorized by said company, nor by the laws of this state, to act as such agent to solicit risks or do any business whatsoever for or to bind the said company ; and that in filling up of said application so far as the company is concerned, he acted solely and only as the agent of Simons, and that the statements and representations therein made are to be taken as the statements and representations of Simons.
    Ans. “ That we refuse to answer as requested. E. D. Cole was sub-agent of Smith, who was the agent at Williamsfield, Ohio. This policy seems to have been dated, so far as we can see, at Williamsfield, Ohio, which is right across the state line from Shenango township, where this property was situated. The Act of 1876 is not applicable to a case of this kind ; and if it was, it is not in this case, because neither Cole - nor Smith were agents or sub-agents- in the state -of Pennsylvania. They were agents in Ohio.”
    3. That the application being referred to in the policy, and by the express' words of the policy made part thereof, and the policy in a subsequent clause thereof, providing that all statements and representations contained therein should be taken and deemed to be warranties on the part of the insured, all the representations contained in the application were thereby made warranties on the part of Simons; arid the said representations so made warranties must be literally and strictly true, whether material or immaterial, or the plaintiff cannot recover.
    Ans. “Affirmed, if the representations were material.”
    4. That the valuation of the dwelling-house, as set forth in the application at the sum of $2000, was a representation or statement of the actual value, which, according to the terms of the contract, was made a warranty on the part of the assured, and if the jury find from the testimony of Simons himself, and his sworn statement in his proof of loss, that it was worth only $1000, this over-valuation was a breach of the warranty, and the plaintiff cannot recover in this case.
    Ans. “ We refuse that as not being warranted by the evidence; and the jury will judge of the evidence given in court, and in the proof of loss, as to contrary statements the plaintiff may have made at different times.”
    5. That by the terms of the contract, as set forth in the policy, it is provided that if the interest of the assured in the property be any other than the entire unconditional and sole ownership at the time of effecting the insurance, and be not so stated to the company and so expressed in the application, and if the jury believe from the evidence that the title to the premises was not, at the time of effecting the insurance, in the plaintiff, and that he was not the unconditional and sole owner thereof, this misrepresentation was a breach of the warranty, and avoids the policy, and the plaintiff cannot recover in this case.
    Ans. “Affirmed.”
    6. That there is no sufficient evidence of the title of Simons to the premises upon which the dwelling described in the policy was erected, and that he having represented in his contract that he was the entire, unconditional and sole owner of the premises, such statement was a condition precedent, and is to be deemed a warranty, and in the absence of proof of his title to the premises, there was a breach of said warranty and condition precedent, such as avoids the policy, and the verdict of the jury should be for the defendant.

      Ans. “ That we answer in the negative; as to some of the statements we answer in the affirmative, as an abstract proposition.”
    7. There is no evidence that immediate notice of the loss was communicated to the company, according to the requirements of the policy, and if notice was given to either Cole or Smith, they, under the laws of this state, were not agents of the company in the state of Pennsylvania, not having been licensed by the said state as insurance brokers. Notice to them, if any there was, was not notice to the company, and no notice of the said loss having been communicated by the plaintiff, or any one for him, for more than twenty days after the fire, such notice, if any, was too late, and the plaintiff cannot recover.
    Ans. “ Refused.”
    8. That the giving notice to the company in accordance with the requirements of the policy and proof thereof, is a condition precedent to the plaintiffs’ recovery [and no such notice or proof having been shown in this case, the plaintiff cannot recover.]
    Ans. “ The first portion of tbe point we affirm. The portion in brackets we refuse.”
    9. That when the contract of insurance required that the insured should give the company immediate notice of any loss that occurred, and which was annexed as a condition to the policy, notice given .of the loss twenty days after it occurred, as in this case, was too late, when no sufficient excuse was shown for the delay, and that if the evidence shows that twenty days had elapsed before giving the required notice, such notice was too late, and the plaintiff cannot recover.
    Ans. “ Affirmed as an abstract statement. The evidence does not show the fact as alleged. We will submit to you as to whether the notice was given as testified by Smith and Simons himself.”
    11. If the court should be of opinion and should so find the points submitted, that Cole, in the filling up of the application, acted as the agent of the company, and not of the assured, and that the statements and misrepresentations contained in the application, to the effect that the building was a two-story building, when, by the sworn statement of the plaintiff, it was not a two-story building; that the value of said building was $2000, when, by said affidavit, it is only $1000 ; that-the building was then ten years old, and by said affidavit it is twenty-one years old, and by the evidence in' this case, much older than that, that he was the owner of said premises, when, in fact, his wife was the owner thereof, and that all these misrepresentations were therefore of no binding force against Simons, the court is, nevertheless, requested to charge the jury that the existence of these facts were matters which he, by the policy, was bound to disclose, and his failure to disclose them to the company at the time of effecting the insuranee rendered the policy null and void, and further, that these statements by the terms of the policy and application, were warranties, and that the knowledge of said agent that these statements were not true, will not avail against a warranty, and that the materiality of the thing warranted to the 'risk is of no consequence. Compliance with it is a condition precedent to any recovery on the contract, and the plaintiff cannot recover.
    Ans. “ We decline to charge you as requested. It has been sufficiently covered. The allegation on the part of the defendant’s counsel has been fully answered in other points and in our general charge.”
    12. That in no event can the plaintiff in this case recover more than two-thirds of the value of the property, that being all allowed by the contract, and if the jury believes the sworn statement of the plaintiff, that the value was $1000, the plaintiff can in no case recover more than two-thirds of that sum.
    Ans. “ We say to you that the plaintiff is entitled to recover the loss of two-thirds the value of the property, as found by you under the evidence. It is alleged that $1400 is two-thirds the value ; that is for you. If you believe the theory of the plaintiff’s case as developed by the evidence as contradistinguished from the theory of the defendant, your verdict will be for the plaintiff. If not, it will be for the defendant.”
    In the general charge the court, inter alia, said : “ It is alleged that this is a story and a half building instead of a two-story frame building. That is a misdescription not warranted on the part of the insured; and if you find it to be untrue, the defendants are not liable on this policy of insurance. . The evidence of what kind of a building it was is for you. It is described as a two-story frame dwelling-house, and Simons certifies upon the stand that it was; but that in the upper story the studding was not as tall as in the lower story. What constitutes a two-story building may or may not be important in this case. If you believe the evidence of John W. Simons, it was a two-story building. * * *
    “ The sworn statement of loss in this case is not evidence except it is used as a sworn statement to show that at some other time and under some other circumstances he told another story from what he told you. * * * The defendants called the attention of the court and jury to this point of it (statement of loss.) ‘ Deponent offered sixty-three acres for $3500 before the house was burned, and places the "value of that property now at $2500.’ These words are an interlineation. When or under what circumstances they were interlined we do not know.”
    "Verdict for plaintiff for $1579, and after judgment thereon defendant took this writ; and alleged that the court er.red in their answers to • the first, third, fourth, sixth, seventh, eighth, ninth, eleventh and twelfth points and in the portions of the charge noted above.

      F. P. Pay, for plaintiff in error.
    Cole could not legally act as a soliciting agent or surveyor for this company, he having no certificate of authority so to act from the insurance commissioner: 44th section Act of May 1st 1876, Pamph. L. 65; Act of April 11th 1868, Pamph. L. 831, sect. 10. Smith and he could not be agents of the company because contrary to public policy. Whatever plaintiff represented in his application he is bound to make good before he can resort to the defendants on the policy: Insurance Co. v. Arthur, 6 Casey 315; Cooper v. Insurance Co., 14 Wright 305; Gottsman v. Insurance Co., 6 P. F. Smith 212; Eilenberger v. Insurance Co., 8 Norris 464. The representations as to the age of the house and the number of the stories were certainly material.

      Bole & Frey, for defendant in error.
    If this foreign, insurance company solicited risks in this state through agents not authorized by our statutes to act, and thereby enriched themselves, we know of no rule -of law or decision of our courts that would enable them to set up their own violation of law as a ground of defence. Where the agent of the insurance company examines the premises and makes out the description, the representations of the assured are wholly immaterial, unless he in bad faith withholds information of a fact tending to increase the risk: Cumberland Valley Mutual Protection Co. v. Schell, 5 Casey 31. Again under the express conditions of the policy in question only erroneous representations materially affecting the risk avoided the policy. The testimony fully established the fact that notice of the loss was immediately given to the agent of the company, and that the agent at once informed the company.
   Mr. Justice Trunkey

delivered the opinion of the court, January 5th 1880.

Smith testifies that in 1872 he was employed by the company’s state agent in Ohio, to take risks in Pennsylvania ; that soon after he employed Cole to solicit applications, which were signed by himself and by Cole as sub-agent or surveyor ; that he' wrote and countersigned the policies on said applications; that a copy of each was sent to the company, and in that way they had notice of such sub-agency; and that soon after the loss of Simons’s property he received orders to discharge Cole. Simons’s application was signed “E. J. Smith, agent, by E. D. Cole, sub-agent.” The evidence is ample that, in fact, the agency of Smith and sub-agency of Cole were recognised by the company. They were located and resided in Ohio, the company was chartered and located in New York. The. company, defendants below, contend that Smith and Cole were not their agents, and cannot be so considered, becausé the laws of Pennsylvania, relative to foreign insurance companies, had not been observed by the company nor their said agents. That Simons knew the company and their agents were violating the laws, is not pretended; nor is it alleged the contract, aside from the statutory prohibition, was immoral. One of the objects of the statutes is protection of the people against worthless foreign companies, and as the insured is not required to see that the laws have been observed, before making a contract, we discover no reason, founded on public policy, which will enable a solvent foreign company, which has violated our laws in making a contract and receiving its consideration from an innocent citizen, to escape liability for non-performance, by setting up its own turpitude. Such defence will not avail for merit of him who pleads it. Against an innocent party, “ no man shall set up his own iniquity as a defence any more than as a cause of action.” The defendants’ first point was rightly refused.

Complaint is made of the answer to defendants’ third point, which was “affirmed if representations were material.” The paper signed by the applicant contains no warranty, but in the policy “ it is covenanted as a condition of this contract that all statements and representations contained in any written or verbal. application, survey, plan or description of the property herein insured, shall be taken and deemed warranties on the part of the assured.” In a preceding paragraph it is stipulated that “ if the assured, in the written or verbal application for insurance, makes an erroneous representation materially affecting the risk, or omits to make known any fact material to the risk, * * * this policy shall be null and void.” These covenants both are of representations in “ the written or verbal application,” and the common understanding would be that the warranty was of all representations material to the risk. Certainly a contract is fair and reasonable when it expresses that representations affecting the risk arc warranted; and, if its meaning were doubtful, a court will not construe the language so as to avoid the policy for trifling and immaterial matters which neither party probably considered at the making of the contract. The learned judge held that the warranties in this policy related to material representations, and in this there is no error. This case is not ruled by Cooper v. Farmers’ M. F. Ins. Co., 14 Wright 305, and other kindred cases, where the warranties were unqualified, and neither court nor jury could inquire of the materiality of the representations, but merely if the warranties were broken.

The defendants’ fourth point was carefully worded so as to confine the jury to the testimony of John W. Simons and his sworn statement in the proof of loss, in arriving at the value of the house ■ — another witness said it was worth $1500 or $1600 at least. We think the answer and remarks in the charge fairly submitted the question of value to the jury.

There was sufficient evidence of Simons’s ownership of the land —if he was the absolute owner, a dry trust of the legal title in another, was of no consequence. The unqualified affirmance of defendants’ fifth point and the remarks on same subject in the charge, leave no cause for complaint of the instructions respecting the title.

In pursuance of an arrangement, made on the second day after the fire, between Simons and Smith, the defendants’ agent, the latter immediately notified the company of the loss, and they sent Kraber, an adjuster, to the premises, who wrote the proofs of loss which were signed and sworn to by Simons, produced at the trial, and given in evidence without objection. With testimony of these facts before the jury, there was no error in the answers to defendants’ seventh, eighth and ninth points.

The eleventh point was so constructed that it was rightly refused ; and the twelfth was well answered in the charge where the question of value was discussed and submitted. Those parts of the charge assigned- as erroneous, in their appropriate place, with the contract, could not have misled the jury. They were'told if the house was a story and a half instead of a t-wo-story building, there was a misdescription on part of the plaintiff, and defendants were not liable on the policy. Simons testified he would “ consider it a two-story house; some considered it a story and a half house.” “ The building was two stories, and the wings one story.” It is a mistake to say there was no evidence that it was a two-story building.

In examination of this case we note that the fire was but little more than two months after the date of the 'policy ; that the defendants called no witness to prove the value of the house at the date of insurance, or loss; nor did they to rebut any part of the plaintiff’s testimony respecting the contract, notice or proofs of loss; that they relied almost entirely on the statements of value of the land, before and after the fire, set forth in the proofs of loss, which were written by the defendants’ agent and adjuster; and that said proofs do not directly state the value of the house, but say “ deponent has no value of the said house or what it would take to build a new one.” A considerable part of the proofs could not be read by the plaintiff, nor the justice before whom he was sworn. Erasures and interlineations were noted at the foot without stating what they were. Instructions to the jury in every case should be with some reference to the state of the evidence before them. We are not convinced of any error, having reference to the evidence which requires this cause to be sent back for another trial.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Overseers of the Poor of Cherry Township versus Overseers of the Poor of Marion Township.
    1. A term of court is a fixed period of time, and where under the authority given by the Act of March 18th 1875, a court has ordered the several courts of the county ‘‘ to continue two weeks, or so long as is necessary to dispose of the business,” the court thus convened is an adjourned court and not a regular term.
    2. The regular December term of a court had expired and a special term was ordered and by adjournments was continued until December 29th. The Act of June 13th 1836 requires an appeal for an order of removal of a pauper to be taken to the next Court of Quarter Sessions: Held, that the court in session on the 29th of December was no part of the previous regular term and an appeal thereto was too late.
    3. It seems, that overseers of the poor have no power to bind their townships by an agreement of submission.
    November 18th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Quarter Sessions of Butler county: Of October and November Term 1880, No. 278.
    In the court below this was the petition of John Smith and H. C. McCoy, overseers of the poor of the poor district of Cherry township, Butler county, for an appeal nunc pro tunc, and for an order upon two justices who issued an order of removal of a pauper to return a certified transcript of the proceedings had before 'them.
    On the 29th of October 1879, John K. Gilghrist and William Murrin, overseers of the poor of Marion township, Butler county, obtained an order of removal removing one Kate McClinchy, a pauper chargeable upon them, to the poor district of the township of Cherry, said county. Gilghrist, on the 21st November 1879, presented the said Kate McClinchy, and the order of removal, to H. C. McCoy, Esq., one of the overseers of Cherry township, at his place of business in said township. ^EcCoy protested against receiving the said pauper; and insisted that the order of removal was irregular, and that the said pauper was not rightfully chargeable upon Cherry township, she never having obtained a residence therein, &c.
    Gilghrist then agreed with McCoy, each for his township respectively,' that in order to avoid expenses of litigation they would.amicably submit all matters at variance between them to two justices of the peace — one to be chosen by an overseer of each township, and whose decision should be final. Accordingly, Gilghrist selected William Black, Esq., and McCoy selected Robert McElhaney, Esq., and the 10th of December then next, at 10 o’clock A. M., was fixed as the time, and the office of William Black, Esq., as the place of meeting for the hearing before the said justices. , Gilghrist until after the hearing retained the pauper and the order of removal; and the said William Black, Esq., at the request of the parties, entered a record of their agreement and submission on his docket.
    On the 10th of December 1879, the parties, with their witnesses, met at the time and place stipulated, the overseers of Cherry township ready to proceed with the submission as per agreement, but the overseers of Marion township, having discovered (as they believed) that the time for an appeal from said order of removal had expired, and that the overseers of Cherry township, in consequence, had no other alternative than to accept the pauper, refused to go on with the hearing, and demanded that the overseers of Cherry township submit without further contention. This the overseers of Cherry township refused to do, whereupon the' overseers of Marion, a few days thereafter, petitioned the Court of Common Pleas for a mandamus to compel the overseers of Cherry to accept the said pauper, and were awarded a rule to show cause. Before answering this rule the overseers of Cherry township, apprehending that they were not entitled to an appeal, as of right, on the 29th of December 1879, presented a petition to the Court of Quarter Sessions (containing in detail the facts as above stated) praying the court to grant an appeal “nunc pro tame” as of the last day of last term, and to make an order on the justices who granted the order of removal to return á certified transcript of the proceedings had before them, and to give such other and further relief as the cause might require.
    The court granted a rule to show cause returnable to 2d Monday of January, and on the-same day respondents accepted service of said rule, and in lieu of and answer thereto, filed an agreement between the attorneys for the respective townships as follows:
    “Whereas,in the Court of Common Pleas of Butler county, Pa., on petition of the overseers of Marion township, Butler county, Pa., a rule was granted on the overseers of the poor of Cherry township, said county, to sh$w cause why a mandamus should not issue to said overseers of Cherry township to receive and maintain one Kate McOlinchy on an order of removal issued by James McGill and 0. M. Brown, two justices of the peace of said county; and also, whereas, on the 29th day of December 1879, on petition of the overseers of the poor of Cherry township, a rule was granted by the Court of Quarter Sessions of said county to show cause why an appeal should not be granted from said order of removal, &e.
    “ Therefore, it is hereby agreed, that depositions may be taken on this last-mentioned rule, on the questions that would come up on an appeal, to wit, the place of last settlement of the pauper and the amount expended by Marion township after order of maintenance in support of and caring for said pauper. And if the court be of opinion from said proofs that the last place of legal settlement of said pauper is in Cherry township, then the overseers of Cherry township to take and maintain said Kate McClinchy, and pay costs of this proceeding and of the proceedings in the Common*Pleas for mandamus, and to pay to the overseers of Marion township the moneys expended by them, as proven, for support, &c., of said pauper, after order of maintenance and to date of decision ; and in case the court be of opinion that said pauper’s last place of legal residence is not in Cherry township, then the overseers of Marion township to discontinue the proceedings for mandamus on their part; and the court to make this rule absolute, and decree according to the proofs as though appeal were in time. The court- to order and decree in accordance with this agreement after hearing the proofs.
    (Signed) ' Walker, Reed and Bredin,
    Attorneys for Cherry Township.”
    George A. Black, Attorney for respondents.
    Under this agreement all subsequent proceedings in the case were based, and depositions were taken sustaining the petition that the pauper’s last place of settlement was not in Cherry township. On the 8th of September 1880, the cause having come on to be heard and argued, the court made the following order: “ Case called and argued, and same day on due consideration rule discharged at costs of party obtaining it.”
    To this the petitioners filed the following exceptions-, which the court overruled, viz.:
    1. In 'ruling that the petition for the appeal was not presented to the next Court of Quarter Sessions. after the order of removal. 2. In ruling that the petition was not filed in time to entitle petitioners to their appeal as of right. 3. In ruling that the agreement between the overseers of the respective townships on file in this case was not binding on the said overseers but void. 4. In discharging the rule to show cause why the appeal should not be allowed mine pro tuno, the rule having been made absolute by the said agreement of the overseers of the respective townships. 5.. In discharging the rule to show cause aforesaid because respondents had never filed an answer thereto. 6. In discharging said rule at costs of petitioners.
    The Act of 13th. June 1836, Pamph. L. 546, pi. 19, requires an appeal from an order of removal to be taken to the next Court of Quarter Sessions, and not elsewhere. The order of removal in this case was obtained 29th October 1879, during the December term of court, and the petition for an appeal and the agreement aforesaid were filed on 29th December as alleged, at the next Court of Quarter Sessions, to wit, March term 1880. The December term began on the 1st of September 1879, and ended on the 30th day of November 1879. The next Court of Quarter Sessions was March term 1880, which commenced on the 1st day of De> cember 1879, and ended, as petitioners alleged, 28th February 1880.
    The overseers of Cherry township took this writ, alleging that the court erred in refusing to make an order on the justices, who granted the order of removal, to return a certified transcript of the proceedings had before them, and in ignoring the above recited written agreement and refusing to hear the cause on its merits.

      Charles McCandless and James W. Reed, for plaintiffs in error.
    —The only question in this case in regard to the time of appeal is, whether or not, under the Act of Assembly, the next Court of Quarter Sessions and the next term of the Court of Quarter Sessions is identical in meaning. If the next Court of Quarter Sessions means the next term of the Court of Quarter Sessions, then, undoubtedly, the petition for an appeal and the order upon the justices, as aforesaid, was within' this Act of Assembly. The clerk of the Court of Quarter Sessions for Butler county, Pa., has certified that the March Term of the Court of Quarter Sessions, in and for the county of Butler, began on the 1st day of December 1879, and continued until the 28th day of February 1880, and that the said court was in session at the time this petition was presented and the rule granted thereon, to wit: the 29th of December 1879. If it were otherwise, and any specific day or time was fixed for an appeal to be entered to the next Court of Quarter Sessions, for instance, the first week or two weeks that the court would be in session, for the trial of causes, great injustice might be done.
    In the case of Sugar Creek Overseers v. Washington Overseers, 12 P. F. Smith 479, the next Court of Quarter Sessions and the next term of Quarter Sessions are used synonymously, the court evidently regarding the terms to be interchangeable. Also, in the Directors of the Poor of Westmoreland County v. Overseers of Conemaugh Township, 10 Casey 232, the court referring to the session said: “ When the next term of the sessions had gone by.” A session or term is always considered as one day: 2 P. A. Browne’s Reports 258.

      George & A. T. Black and L. Z. Mitchell, for defendants in error.
    The “ next court" in the Act of Assembly is plainly intended to mean an actual sitting or session of the court, as the only mode of appealing to that court seems to be. by a petition to it, and, of course, it must be in'session. See Directors of the Poor, &e., of Northampton v. Limestone, 18 P. F. Smith 386. Even if the word “ term ” had been used, it would still, we contend, mean the same thing, an actual session of the court, as by analogy to road cases where viewers are required to report to the next term.
    The next regular term, or next Court of Quarter Sessions in and for the county of Butler, after the order of removal in this case commenced on the first Monday of December 1879, “to continue two weeks, or so long as necessary to dispose of the business.”
    The records and minutes of the Quarter Sessions Court show that the business fixed for this regular term closed and the court adjourned on Friday, December 12th-1879, at 11.45 A. m.
    If the plaintiffs in error had presented their appeal immediately after their alleged disappointment on December 10th 1879, they had time enough during the sitting of the court until noon of December 12th, and possibly might then have been in time, but they made no move until December 29rh, a week after they had notice of an application for a mandamus, by a rule accepted by their attorney. A special court had been ordered to meet on December 15th 1879, and did meet and continue in session for jury trials during that week.
   Mr. Justice Mercur

delivered the opinion of the court, November 26th 1880.

The overseers had no power to bind the townships by the agreement of submission. The defendant in error had an undoubted right to refuse to ratify it. There was nothing in the agreement, nor in the refusal to ratify it, that extended the time within which an appeal might be taken. The statute fixed the next Court of Quarter Sessions as the time. The next term, after the order of removal,, commenced on the first Monday of December. The court actually remained in session until Friday of the second week, being the 12th day of the month. On the morning of the 10th the agreement was repudiated, and notice thereof given. There was, after this, ample time to apply for or take an appeal from the order of removal before the court adjourned.

A term of court is a fixed period of time: Horton et al. v. Miller, 2 Wright 270.' Under authority given by the Act of 18th March 1875, the court had ordered the several courts of the county “to continue two weeks, or so long as is necessary to dispose of the business.” It is true, any business commenced within the term of two weeks, might be prosecuted and completed beyond that time, or the court might by adjournment meet on some day thereafter to dispose of pending business, or other business, not required to be done at a regular term. A court, however, thus convened, would be an adjourned court, and not a regular term.

In fact, on the 11th of October preceding, it had been ordered that a special term, for trial of both civil and criminal causes, be held, commencing on the third Monday of December, being the 15th; and that a venire issue for jurors for said week. That court met and continued in-session during the week. It adjourned to the'22d, then to the 23d, and further, to the 29th December. On this last day the petition was presented praying the court to grant the appeal. Thus, it clearly appears, the regular December term had expired. A special term had intervened and by adjournments continued. The court in session on the 29th was no part of the previous regular term, but was an extension of the special term. The learned judge was clearly right in holding the application for an appeal came too late.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Mizner versus Spier.
    1. A judgment note was endorsed as follows: “ I guarantee the payment of the within note, for value received, L. H. Mizner.’-’ In an action by the payee of the note,‘Seld (reversing the court below), that this was a contract of guaranty; that Mizner’s undertaking was an agreement to pay only in case of the insolvency of the makers, or after due diligence had been used to collect the note from them.
    2. The fact that this guaranty was made at the time of the execution of the note did not affect its character but only the consideration by which it was supported.
    3. If the makers of the note, or either of them, were solvent when the note fell due, it was the duty of the payee to have used proper diligence in the collection of his claim, and failing in this the guarantor was discharged.
    4. Amsbaugh v. Gearhart, 1 Jones 482; Campbell v. Baker, 10 Wright 243, and Roberts v. Riddle, 29 P. F. Smith 468, distinguished.
    November 26th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Mercer county: Of October and November Term 1880, No. 164.
    Assumpsit by Seth Spier against L. H. Mizner, founded on a contract of guaranty or surety.
    At the trial, before Taylor, P. J., it appeared that Spier, on August 19th 1872, took from M. R. Kerney, Hugh Montgomery and William Corll three judgment notes for $266.66 each, due at three, six and nine months, making them fall due on November 19th 1872, February 19th 1873 and May 19th 1873, respectively. These notes were all signed by Kerney, Montgomery and Corll, and on the back of each of them was the following: “ I guarantee the payment of the within note, for value received. L. H. Mizner.” Judgment was entered on all three of the notes on August 23d 1872. The first note became due on November 19th 1872, and on the next day the plaintiff issued a fi. fa., on which, however, there was no levy, the writ having been stayed at the instance of plaintiff’s attorney. No further effort to collect the amounts of the judgments was made until December 9th 1874. During this time Montgomery lived in Mercer county, and it was alleged the notes could have been collected from him at any time during that period. In a deposition read at the trial, S. R. Mason deposed as follows :—
    “ I was attorney for M- R- Kerney, who was indicted for obtaining goods by false pretences from the .plaintiff in this suit. The case was compromised before it came to trial in the Court of Quarter Sessions of Mercer county, Pa., by the three notes signed M. R. Kerney, Hugh Montgomery and William Corll, and guaranteed on the back thereof by the defendant, L. H. Mizner. I, with the counsel for the Commonwealth, assisted in making the settlement. The parties to the note and the defendant in this case all being present, I drew the notes with the guarantees thereon, and they "were signed in the presence of the plaintiff, Gr. W. Carskadden and myself, and perhaps others. After the notes were signed and delivered to the plaintiff; the case of the Commonwealth was settled on the docket of the justice, signed by the attorneys of the parties. Kerney and Corll are non-residents of this state and Montgomery is insolvent. This suit was brought on the guarantee on the notes filed.
    After the case was settled, I applied to Judge Trunkey for a writ of habeas corpus for the discharge of Kerney, who -was then in prison. He suggested that as it was a case to be settled under the Act of Assembly that the settlement be made on the docket of the justice, which was accordingly done. The making of the notes, the guarantee thereon and the'signatures of the parties were all one transaction, made at the same time and place, and in my presence, and in the presence of the witnesses above referred to; the guarantee was written on the note before Mizner signed it.”
    The verdict was for plaintiff for $1150.10.
    A rule to show cause why a new trial should not be granted was taken, which the court discharged in' an opinion, saying :
    “ This is an action of assumpsit against L. H. Mizner, founded upon a contract of guaranty or surety, and as the right of the plaintiff to recover turns upon the construction to be given to this contract, it is unnecessary to detail particularly all the circumstances or to discuss other questions raised.
    “ The consideration for the execution of the three several judgment notes by the parties was a good one, and the uncontradicted evidence upon the trial shows clearly that the contract of Mizner was contemporaneously executed, and further, that the execution of the contract by Mizner was the inducing cause which led the plaintiff to part with his property, for he says he knew the parties signing upon the face of the notes were worthless, and he would not have made the sale to them but for the guaranty'of Mizner, known to him to be responsible. Upon the trial-we were of the opinion that the contract of Mizner was a general guaranty, and, being a collateral undertaking to entitle the plaintiff to recover, he must have shown, due diligence in his. efforts to collect the indebtedness from the principal debtor. If we were córrect in the view then taken, a new trial should be granted, for under an erroneous-view of the facts in evidence the jury were not instructed as they should have been upon some material points. The v.erdict was for the plaintiff, and,'if upon the uncontroverted facts in evidence, the verdict of the jury is right, it should not be disturbed for an error which could work no injustice. Upon a more careful examination of the question of law raised, we are forced to the conclusion that we were in error in our construction of the contract. It is in these words: ‘ For value received I hereby guarantee the payment of this note. (Signed) L. II. Mizner.’ Bearing in mind that this undertaking of Mizner’s was entered into at the time of the execution of the notes, and was the real consideration for .the transfer of the property,-we are satisfied that it was an original undertaking upon the part of Mizner, and being so, under th-e evidence in the cause, it was unnecessary to.first pursue the parties executing the note as principals, of show their insolvency. In Snevily v. Johnston, 1 W. & S. 307, the guaranty was in these words: ‘ I guarantee the within note to John Johnston;’ and in the opinion the broad principle that ‘ when the guaranty or promise, though collateral to the principal contract, is made at the same time with the principal contract, and becomes an essential ground of the credit given to the principal debtor, the whole is one original and entire transaction.’ In Amsbaugh v. Gearhart et al., 1 Jones 482, in a-Per Curiam opinion, it is held that when one endorsed without date upon a note ‘I will see the within paid,’ he is liable as an’original promisor, and not as a guarantor. The same principle is enunciated in Campbell v. Baker, 10 Wright 243; Reigart v. White, 2 P. F. Smith 483; Roberts v. Riddle, 29 Id. 468. In the light of these authorities it would seem that the contract of Mizner was not a contract of guaranty in the technical sense, but rather that of surety. For these reasons the rule for a new trial must be discharged.”
    Judgment was then entered on the verdict, when defendant took this writ and made the following assignments of error:—
    1. The court erred in not affirming, without qualification, the defendant’s second point: “That the plaintiff, in order to recover against the defendant in this case, must prove that he used due diligence in his efforts to collect the debt from the principal debtors at the maturity of said notes, or. excuse himself by showing that they were insolvent at such maturity,” but answering as follows: “Affirmed, if you further find that the collection of the indebtedness from the principals was not delayed at the request of the guarantor, Mizner.”
    2. In not affirming, without qualification, the defendant’s third point, which is in these words: “ That if the jury believe from the evidence that the notes guaranteed fell due November 19th 1872, February 19th 1873 and May 19th 1873, and the plaintiff made no • effort to collect said notes from the defendants, or any of them who resided in Mercer county, where the notes were entered and the plaintiff resided, except to issue a writ on one of them in December 1872, which was stayed by the plaintiff, and issue writs in December 1874 on said judgments, which were all stayed by the plaintiff without an effort to make the money, then the plaintiff did not use due diligence to collect the same from the principal debtors, but was guilty of negligence and cannot recover,” but answering as follows: “ Affirmed, if you find that the writs were not stayed at the request of Mizner.”
    3. In not affirming, without qualification, the defendant’s fourth point: “ That if the jury believe from the evidence that, at the time the notes guaranteed by the defendant fell due, ■ the principal debtors, or any one of them, residing in Mercer county, were solvent and of sufficient ability to pay said notes, it was the duty of the creditor at the maturity of the said notes to proceed to collect his money, and if he failed to make such effort for a period of eighteen months, then he was guilty of such negligence and want of due diligence as would release the defendant from his guaranty, and the plaintiff cannot recover,” but answering as follows : “ Affirmed, if such delay was not at the request of Mizner.”
    4. In not affirming, without qualification, the defendant’s fifth point, which is in these words : “ That, if the jury believe from the evidence, that in December 1874, when the plaintiff issued his writs against the principal debtors, they, or any of them, had sufficient property in Mercer county which could have been levied on and sold to satisfy said writs, and the plaintiff had thus actually or potentially the means of satisfaction in his hands or within his reach, and he failed to do so, especially when told by the defendant to make his money out of the principal debtors, but stayed his writs, and thus lost the means of satisfaction, and the property has since been removed and disposed of, and the principal debtors have since become insolvent, then the plaintiff was guilty of such negligence as would release the defendant from his obligation under the paper in this suit, whether the same be regarded as a guaranty or surety, and cannot recover,” but answering as follows : “ Affirmed, with the same qualification as the answer to the last point.”
    5. The court erred in that part of the general charge which is in the words following : “ There is no evidence that the principal had changed in any manner as to his solvency — that his status had become changed in any manner after the note became due prior to the issuing of the executions. And if, when those executions were in the sheriff’s hands, the parties got together, and at Mizner’s request those writs were stayed and returned, and if you believe the evidence of Carskadden that Mizner said it should not affect him, that it was at his request that the writs were stayéd, he would now be estopped from coming in and saying that the plaintiff was guilty of laches in not collecting of the principals at that time, if afterwards the principals became insolvent and he could not collect it.”
    6. The court erred in that part of the general charge which is in these words : “ And that will probably be the turning point, we think, in the case. Was it at the request, and with the knowledge of Mizner, that those executions were returned ? If so, under the evidence in the case — all the evidence — your verdict should be for the plaintiff.”

      S. Griffith & Son and E. P. Gillespie, for plaintiff in error.—
    We contend that the endorsement of Mizner implies only a general warranty, a secondary or conditional liability : Johnson v. Chapman, 3 Barr 18; Isett v. Hoge, 2 Watts 128 ; Snevily v. Ekel, 1 W. & S. 203. The court misapprehended the import of these decisions and refused a new trial, though admitting at the same time that they had erred in their instructions to the jury if the paper was a guaranty. In the charge to the jury and the answer to our first point, the court affirmed our position, and we could not therefore complain; but in their answers to our 2d, 3d, 4th and 5th points, we contend they erred in that they did not give to each an unqualified affirmative answer, and in charging as they did in that portion of the charge alleged to be error. The assignments of error, though six in number, involve the same principles, the duty of Spier in the premises before he could hold Mizner on his contract of guaranty or recover a verdict against him.

      Mason, Zeigler & Bowser, for defendant in error.
    On the trial of the case the court affirmed every point put by the defendant, and refused to affirm the plaintiff’s first point: “ That if the jury believe from the evidence that the signing of the notes and the guarantee was a part of the same transaction, then the defendant is liable as an original promisor, and the plaintiff was not bound either to pursue the principal or show his insolvency.” This was clearly an error, and the court so says. But the jury found the facts correctly, and their verdict was right, although the court fell into an error in their charge upon this point. A motion was made for a new trial on the part of the defendant, and, after full argument and consideration, was refused by the court in an opinion which clearly enunciates the correct principles of the law governing this case. This writ of error is sued out, not because the court below erred in their charge or answered the defendant’s points negatively, but because a new trial was refused.
    The only question, we think, in this case is, Was the defendant an original promisor in these obligations ? When the guaranty is without date the legal presumption is that it was made at the time the note was made : Snevily v. Johnston, 1 W. & S. 307. Where the guarantee or promise, though collateral to the principal contract, is made at the same time with the principal contract, and becomes an essential ground of the credit given to the principal debtor, the whole is one original and entire transaction, and the consideration extends and sustains the promise of the principal debtor, and also of the guarantor: Leonard v. Vredenburgh, 8 Johns. 29 ; Bailey v. Freeman, 11 Id. 221 ; Nelson v. Dubois, 13 Id. 175 ; De Wolf v. Rabaud, 1 Pet. 501; Amsbaugh v. Gearhart et al., 1 Jones 482; Campbell v. Baker, 10 Wright 243; Roberts et al. v. Riddle, 29 P. F. Smith 468.
   Mr. Justice Gordon

delivered the opinion of the court, January 3d 1881.

The learned judge who tried this case, whilst admitting that his ruling on the facts was wrong, yet refused a new trial because, as he thought, the writing under consideration being, in fact, an original undertaking, and not, as upon its face it purports to be, a guaranty, a re-trial would but result in a verdict the same as that already rendered. Whilst we grant that the arguments leading to this conclusion are not without plausibility, yet, upon a careful review of the authorities, we have been led to a different opinion. The undertaking in 'controversy was appended to three several judgment notes, drawn by M. R. Kerney, Hugh Montgomery and William Oorll, to Seth Spier, the plaintiff, and reads as follows : I guarantee the payment of the within note, for value received. L. H. Mizner.” Without doubt this is technically a guaranty, and unless there is in the case something which we have failed to discover, by which its legal meaning is altered, it must be so treated. In Isett v. Hoge, 2 Watts 128, an undertaking of a like character was held to be a guaranty. The similarity of this case with the one in hand will be apparent when the two agreements are compared ; the one is: “I do hereby guarantee the payment of the above note to said Henry Isett;” the other: “I guarantee the payment of the within note, for value received.” Thus, though there is, between these two contracts, a slight verbal difference, their legal effect and meaning are precisely the same. To attempt to distinguish these two cases would be idle, and unless we overrule Isett v. Hoge it must govern. But, as we would, in its overruling, be supported neither by authority nor reason, we must permit it to stand, and under its authority hold that Mizner’s undertaking was an agreement to pay only in case of the insolvency of the makers, or after due diligence had been used to collect the notes from them.

Nor do we discover anything in the authorities, cited for the plaintiff, which in any degree impugns the doctrine of Isett v. Hoge. In Amsbaugh v. Gearhart, 1 Jones 482, the agreement was: “ I will see the within paid;” there is-in this nothing more or less than an unconditional promise to pay the obligation when due, if, for any reason, the payor is in default. It is a contract of suretyship and not of guaranty. So, in Campbell v. Baker, 10 Wright 243, though the word guaranty was' used, yet as the guaranty was to pay “ when due” the undertaking, obviously, had reference to the liquidation of the note at the time specified and not to the solvency of the maker. A like case is Roberts v. Riddle, 29 P. F. Smith 468, where the guaranty was to pay the bond according to its terms,” and as one of its terms, of course, was its payment when due, the undertaking was, in effect, not different from that in Campbell v. Baker. Some stress seems to be laid on the fact that the guaranty, in the case in hand, was made at the time of the execution of the note; this, however, affects not the character of contract, but only the consideration by which it is supported. As was said in Snevily v. Johnston, 1 W. & S. 309, where the guaranty is made at the same time with the principal contract, it becomes an essential ground of the credit given to the debtor, and supports both the promise of the debtor and of the guarantor. On this point this case is authority, but not so when used to support the main proposition of' the plaintiff. The words of the contract expressed a warranty, and by all parties the case was treated as one of warranty; the insolvency of the maker was proved by the plaintiff as a pre-requisite to his recovery, and the only question was that of consideration, which was settled as above stated.

The disposition of this point leaves nothing further for us to say except that the defendants’ fourth and fifth points should have been affirmed without qualification. If it was true that the principal debtors, or any of them, residing within the county of Mercer, or, for that matter, within the' state of Pennsylvania, were solvent when the notes fell due, it was the duty of the plaintiff to have used proper diligence in the collection of those claims, and failing-in this the guarantor was discharged. Mizner’s assent to the stay of the executions of 1874, was of no force if at that time Montgomery was insolvent, for, in such case, the attempt to make the money on them would be fruitless, and, if he was already released from his undertaking, there would be in this no such new consideration as would serve to rebind him. But if, at that time Montgomery was solvent, able to pay the notes in whole or in part, the stay, if given at Mizner’s instance, would be consideration enough to rebind him to his original contract, or, what comes to the same thing,' to estop him from setting up the previous negligence of the plaintiff by way of release.

The judgment is reversed and a new venire ordered.