text:
    Home Insurance Company versus Davis.
    1. A. effected a policy of insurance against five upon liis house and the personalty therein, which policy contained, inter alia, a clause providing that persons sustaining a loss should forthwith give notice thereof in -writing to the company and as soon thereafter as possible render a particular account of such loss signed and sworn to by them. A total loss having occurred under the policy, the local agents at A.’s request at once notified the company. About a month later a special agent of the company inspected the ruins and got from A. statement under oath of the origin of the fire and the extent of the loss. A month later still, criminal proceedings were, at the instance of the company, instituted against A. on the charge of having himself set fire to his house. These terminated in A.’s acquittal. Afterwards, three months having elapsed since the fire, A. forwarded to the company proofs of loss, which were returned to him as unsatisfactory, but accompanied by proper blanks which he was requested to fill out and transmit. He did so, and received in reply a letter from the general adjuster of thecompany acknowledging their receipt. Suit being subsequently brought by A. against the company upon the policy, the court left it to the jury to say whether proofs of loss were made as soon after the fire as possible under all the circumstances of the case, and a verdict was rendered for the plaintiff. Held, that the company could not complain of this instruction, as it was more favorable than they were entitled to.
    2. Semble, that as far as the house was concerned, the loss being total, the original notice sent by fhe local agents was of itself a sufficient compliance with the terms of the policy without other or further statement of loss, but aliter as to the personalty.
    S. Semble, moreover, that the facts of the case showed an unqualified acceptance by the company of the proofs of loss, and that the court might have so instructed the jury.
    4. Whether the sworn statement obtained from A., by the special agent of thecompany as lo the origin of the fire and extent of the loss was a sufficient compliance with the provisions of the policy as to proofs of loss, without more, not decided.
    June 7th 1881. Before Sharswood, C. J., Meecur, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Clinton county: Of May Term 1881, No. 167.
    Debt, by Thomas Davis, against the Home Insurance Co. of the City of New York, on a policy of fire insurance.
    On the trial, before Orvis, A. L. J., the following facts appeared : — On July 31st 1877, Thomas Davis obtained, through Chapman & O’Connor, local agents of the insurance company defendant, a policy of insurance of $1,000 upon his dwelling-house and contents, situated in Lockhaven, Pennsylvania.

      The policy contained, inter alia, the following clause:
    “ 9. Persons sustaining loss or damage by fire shall forthwith give notice of said loss in writing, to the company, and, as soon thereafter as possible, render a particular account of such loss, signed and sworn to by them.”
    On the night of duly 7th 1878, the house and its contents were totally destroyed by fire. Immediately after the fire, Davis had a conversation with Chapman, the local agent, in which the latter stated that he would send the company notice of the fire, and such a notice was in fact -sent by Chapman & O’Connor, the local agents.
    On October 4th 1878, a sworn statement and proof of loss was forwarded by Davis to the home office of the company, to which the special agent of the conrpany replied that it was not made out in due form and could not be accepted. He enclosed blanks to be filled up and returned, stating that upon receipt thereof, the same would have due attention. On December 12th 1878, amended proofs of loss were forwarded to and received by the company, to which the general adjuster replied that the same had been forwarded to the special agent, who had the matter in charge, and if he should require any further information touching the loss, he would call for it in due time. No further communication was received by Davis from’ the company or its agents. "The defendant objected to the admission in evidence of the above proofs of loss, on the ground that they were not made in time. Objection overruled; exception.
    Prior to the furnishing by Davis of the first proofs of loss, viz., on August 15th 1878, the company by its agent, Chapman, caused Davis to be arrested on the charge of burning his house, witli intent to defraud the insurance company, on which charge he was tried in the Quarter Sessions and found not guilty.
    Upon the tri'al of this cause, the company defendant introduced evidence, which they claimed tended to show that Davis set fire to the property.
    The court submitted to the jury the questions whether the proofs of loss were made as soon after the fire as .possible under all the circumstances of the case; and whether the property was fraudulently destroyed.
    Verdict and judgment for the plaintiff for $819.83. The defendant company took this writ of error, assigning for error the'admission in evidence of the proofs of loss, and the submission to the jury of the question whether they were made in time.

      H. T. Harvey, for the plaintiff in error.
    The condition in the policy that the insured should send preliminary notice of the fire forthwith and formal proofs of loss “as soon as possible” after the fire, was a condition precedent, with which the plaintiff; did not comply. He was not excused from sending the preliminary notice of loss by the fact that the company’s local agents notified the company of the fire in the usual course of business. The fact was undisputed that no proofs of loss were forwarded until more than three months after the fire, and in such case the question whether they were forwarded as soon as possible, or within a reasonable time, was for the court and not for the jury: Bennett v. Young, 6 Harris 261; Smith v. Fisher, 12 Harris 223 ; Haly v. Brown, 5 Barr 181; Brenger v. Wightman, 7 W. & S. 264 ; Jones v. Wardell, 6 W. & S. 399; Learning v. Wise, 23 P. F. Smith 173; Commonwealth Ins. Co. v. Scnnett, 5 Wright 161; Trask v. Ins. Co., 5 Casey 198. It is argued that the letter of the special agent, objecting to the sufficiency of the proofs, and enclosing blanks to be filled up and returned, was a waiver of the delay. We answer, first, the authority of the agent to b’ind the company was not shown; and secondly, the doctrine of waiver is applicable only during the currency, of the contract; after the loss, and after such default as would render the policy forfeited, it cannot be revivified except by an express agreement of the insurers : Beatty v. Lycoming Ins. Co., 16 P. F. Smith 9 ; Trask v. Ins. Co., 5 Casey 198 ; Barclay v. Weaver, 7 Harris 401; Carroll v. Ins. Co., 38 Barb. 402 ; Mentz v. Lancaster Fire Ins. Co., 29 P. I. Smith 475 ; Hays and Wick v. Lynn, 7 Watts 524; Moore’s Executors v. Patterson, 4 Casey 505; Union Refining Co. v. Bushnell, 7 Norris 89 ; Inland Ins. Co. v. Stauffer, 9 Casey 397.

      C. 8. MoQorrnich, for the defendant in error.
    June 22nd 1881.
   Mr. Justice Gordon

delivered the opinion of the court,

By a policy dated on the 31st of July 1877, the defendant below, plaintiff in error, insured the dwelling-house of Thomas Davis, the plaintiff below, in the sum of $900, and his furniture and clothes, in the south end of the same, in the further sum of $100. On the 7th day of J uly 1878, there was a total loss of this property by fire. At the instance of the assured, as the jury have found, notice of the loss was immediately forwarded to the home office, by the resident agent of the company, through whom the insurance, had been effected. So far as the house was concerned, the loss being total, as was held in the case of the Lycoming Mutual Insurance Co. v. Schollenberger, 8 Wr. 259, and very recently in the Farmer’s Mutual Insurance Co. of Schuylkill County v. Moyer, 1 Outerbridge Ml, this notice was of itself, a sufficient compliance with the terms of the policy without other or further statement of loss. This rule, however, does not apply to the personal property; if, as to it, proofs of loss were riot furnished to the company, in accordance with the terms of the policy, the plaintiff ought not to have been permitted to recover. Whether such proofs were so furnished was one of the questions submitted to the jury for determination, <md the chief complaint made against the rulings of the court below has its foundation in this submission.

The policy required that proofs of loss should be made and forwarded to the company as soon as possible after the happening of the fire by which the loss occurred. The fact was that the proofs thus required were not furnished until nearly three months after the ñre. The defendant contends that this was too late, and that the court should so have instraeted the jury. We agree, that, without evidence explanatory of the delay, this contention would have irresistible force. We think, however, that there was such evidence and that of a character that warranted the submission ; that it did account for the delay, as the jury have found. As we have before said, the policy requires the proofs of losses to be furnished as soon as possible after the fire, but this language must bo constraed to mean that the assured is, for this purpose, to have a reasonable time ; but what is such reasonable time must depend largely upon circumstances, and, as a rule, a question of this kind must, for its solution, be referred to a jury.

From the conduct of the company, the jury, in this case, might well have inferred an entire waiver of these proofs, had that question been submitted to them, but as it was not submitted to them we can take no notice of a point of this kind, though in effect, precisely the same principles were applicable to the question raised in the tidal of the case.

In the Lycoming County Mutual Insurance Co. v. Schollenberger, supra, the policy required proofs of loss to be made within thirty days from the time of the fire, but it was held that an agent authorized to settle the loss might waive that requirement and bind the company by the acceptance of such proofs after that time. So in the Inland Insurance Co. v. Stauffer, 9 Ca. 397, it was announced as sound law that such waiver may be inferred from acts evincing a recognition of liability, or even from a refusal to pay for some other reason than a want of preliminary notice or statement of loss.

But why may not the plaintiff’s delay be accounted for on similar principles? Was his delay reasonable under all the circumstances ? This was the question submitted by the court to the jury. ITis preliminary notice of the fire was in time; and why were not his proofs of loss ? Prima facie, even to the officers of the company, they were in time. ■ Davis made and forwarded his statement on the 4th of October 1878, but Morgan, the special agent of the defendant, pronounced it informal and returned to him the company’s blanks with instructions to fill them up and return; this was done, and under date of December 13th, Mr. Bigelow, the general adjuster of the company, writes to Esq; McCormick, the plaintiff’s attorney, acknowledging the receipt of the amended statement, and saying that the papers had been forwarded to Morgan, and if he required further information touching the loss he would call for it. Now one would naturally suppose that this was the end of the matter, and that nothing remained to be done but to pay over the money. Clearly, up to this time the officers of the defendant had not regarded the delay of the assured as unreasonable, or they would have so intimated.

In fact, here was an unqualified acceptance of the proofs of loss, and so the court might have instructed the jury, instead of leaving that body to puzzle over the question of reasonable time. The mistake, however, was one favorable to the defendant, and of which it has no right to complain. But again, the 9th section of the policy, the same which requires the statement of loss, and directs how it shall be made out, reads thus: “ The assured shall, if required, submit to an examination or examinations under oath, by any person appointed by the company, and subscribe to such examinations when reduced to writing; and shall also produce their books of account and other vouchers, and exhibit the same at the office of the company,” &c.

"Was this intended as an equivalent of the statement of loss directed by the preceding part of this section ? It is probable that the officers of the corporation so understood it, otherwise they would hardly have furnished Davis blanks for his statement, at a date so late as the 4th of November, or afterwards have accepted it without hesitation or demur. However this may be, this much must be conceded, that an ordinary layman, uninformed to the contrary, might well suppose that, having given his statement under oath, to an agent sent from the home office for that purpose, every question having been fully and unhesitatingly answered, put down in writing, and that writing subscribed and delivered, he had done and performed all that could possibly be required of him. Now, it may be that this man was mistaken ; that it was his duty to make another paper of like import, swear to it, and place it in the hands of this same agent. There is, however, this one thing of which we have no doubt, and that is, if it were necessary to go through so useless a ceremony in order to get wliat tbo defendant bad agreed to pay, an unlettered and unskilled man, like Davis, must be allowed a reasonable time to recover lrimself from the delusion into which he had been drawn by the company, and to learn, if possible, that something more was required of him.

But, immediately following this examination, a prosecution was instituted against Davis, on information of the local agent of the company, charging him with having himself burned the insured premises. The result of the prosecution was a verdict of not guilty. After all this consumption of time, produced by tbe action of tbe officers of the underwriters, the plaintiff came to the conclusion that he had better forward regular proofs of loss.. Accordingly they were forwarded; were returned, not as rejected, hut for correction, were corrected, re-forwarded, and, as we have before stated, accepted. After all this, we cannot understand how the company can be heard to complain of the delay as unreasonable.

The foregoing disposes of all the material assignments of efror except the sixth; but this cannot be considered.

The complaint is that the court admitted the preliminary proofs and permitted them to be read to tlie jury without restriction in disregard to the specific objections made by the defendant below.” This assignment is not according to the rule, for tbe specific objections here mentioned are not set out, lienee it should be passed without notice. Passing this, however, whilst the paper was offered in evidence, which was altogether proper, I cannot find where it was read to the jury. I suppose it was not so read, for I find no record -of any exception to such reading, hut only the general one that it was mailed too late to meet the requirements of the policy — an exception already fully disposed of.

Judgment affirmed.

Sharswood, C. J., and Trunkey and Green, JJ., dissent.


source: Caselaw Access Project

author: Mr. Justice Trunket

license: Public Domain

text:
    Rothermel, Sheriff, etc., versus Marr.
    1. Where an attachment is issued under the provisions of the Act of March 17th 1869, Pampb. L. 8, the sheriff is not thereby authorized to attach tbe goods of any person other than the defendant. He may not seize the goods of a garnishee named therein, and if he does so he will be liable in trespass, no matter what the event of the suit may be between the plaintiff and tbe defendant.

      3. The bond required by section 1 of said act to be filed by the plaintiff prior to the issuing of the attachment enures as a security only to the defendant in the attachment and not to the garnishee. Hence the filing thereof does not justify the sheriff in seizing the goods of the garnishee.
    3. Where, in such case, the plaintiff directs the seizure of goods claimed by some person other than the defendant, the proper course for the sheriff to pursue is either to demand a bond of indemnity or to have an order made by’virtue of the provisions of the Act of January 30th 1871, Pamph. L. 13, upon the plaintiff and the claimant of the goods for an interpleader.
    4. A. lived with his sister B., in a dwelling and store belonging to B. He kept shop in the store, and from time to time B. loaned him money for which lie gave her judgment notes which were duly entered up. Subsequently, to secure his indebtedness to B., A. executed a bill of sale of the whole stock of the store to her, an inventory and appraisement being attached. The sign was changed from A.’s name to B.’s and all bills were made out in the name of B. A., however, continued to attend to the store, assisted by B. Certain creditors of A. having issued an attachment against him under the provision of the Act of March 17th 18C9, Pamph. L. 8, the stock of the store was seized upon by the sheriff and sold, whereupon B. brought trespass against him. Held, that the question was properly submitted to the jury whether or not there had been sufficient transfer of possession from A. to' B. to pass the title to B. as against the creditors of A.
    June 9th 1881. Before Shaeswood, O. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Iforihuniberla/nd county: Of May Term 1880, No; 121.
    Trespass, by Margaret Ii. Marr against Samuel H. Bothermel, late sheriff of Northumberland county, for seizing, taking away, and selling personal property belonging to the plaintiff. The defendant pleaded not guilty, and a special plea in confession and avoidance, justifying under the authority of a writ of attachment issued by the Court of Common Pleas under tlie Act of March 17th 1869 (P. L. 8) wherein Wainwriglit & Co. were plaintiffs and A. P. Marr was defendant, and the said Margaret II. Marr (plaintiff herein) was named as garnishee, commanding the sheriff to attach the goods of A. P. Marr in the hands of Margaret II. Marr, and summon the said garnishee, &c.
    On the trial, before Bookefeller, P. J., tbe 'evidence was to the following effect: A. P. Marr resided with bis sister Margaret Ti. Marr, in a dwelling and store belonging to her in tbe borough of Milton. In 1871, A. P. Marr began to keep a grocery in the store. Margaret at that time loaned liim $1,000 and subsequently other sinus amounting to $548.83, for which amounts he gave her his judgment notes, on which she caused judgments to be entered in 1871 and 1873. A. P. Marr subsequently, on December 27th 1873, in order to secure this indebtedness to his sister, executed to her a bill of sale of all the goods in the store, appraised by an inventory annexed at $1,087.30. He continued to attend to the business of the store, assisting his sister. A new sign was put up in front of the store bearing the words, “ Margaret PI. Marr’s grocery store.” After the sale, bills were made out in the name of Margaret PI. Marr, and paid by her.
    On March 2d 1874, an attachment was issued under the Act of 1869, at the suit of Wainwright & Oo., against the said A. P. Marr, with a clause of scire facias against Margaret PI. Marr, garnishee. The usual affidavit and bond were filed, the condition of the latter being “that if the aforesaid Wainwright & Oo., plaintiffs in the attachment to be issued, shall fail to prosecute their action with effect, and shall fail to recover a judgment against the said A. P. Marr, the defendant, that they, the above bounden Wainwright & Go. and Thomas Swenk, shall and will pay to the said A. P. Marr, .th.e defendant, all legal costs and damages which he, the said A. P. Marr, the defendant, may sustain by reason of said attachment.” This attachment was placed in the hands of the defendant, S. PI. Ptothermel, sheriff, who, on March 3d 1874, served it on A. P. and Margaret H. Marr on the premises; they both informed him that the goods were not A. P. Marr’s, but belonged to Margaret II. Marr. The sheriff, notwithstanding, levied on the goods and closed up the store. He suggested to Margaret that she should give him a bond to release the goods. This she de■clined to do, whereupon the sheriff removed the goods, sold under an order of the court such as were perishable, and subsequently, without any other writ than the attachment, sold the whole stock, under the instructions of Wainwright & Co. Margaret PI. Marr did not appear to the suit in attachment.
    Margaret PI. Marr afterwards brought this suit in trespass against the sheriff to recover the value of her goods sold by him. On the trial, the plaintiff gave evidence of the above-mentioned facts, and showed that the attachment suit was suffered to remain without any steps taken to prosecute it to judgment for over five years ; no declaration was filed until November 12th 1879, and on January 1st 1880, the plaintiff was nonprossed under rule of court.
    The plaintiff contended that the sale by A. P. to Margaret II. Marr in December 1873, was without consideration and fraudulent as against the attaching creditor, and' that there was no sufficient change of possession. The court submitted the evidence on these questions to the jury,- and, in reply to numerous points presented by the plaintiff and defendant, charged the jury that the writ of attachment only authorized the sheriff to seize property belonging to the defendant A. P. Marr, and that if they found the sale to Margaret JEL Marr in December 1873, was Iona fide and accompanied by sufficient delivery of possession, and that the property belonged to her at the time of the seizure, the writ was not a justification for the seizure.
    Yerdict and judgment for the plaintiff for $1,352. The plaintiff took this writ, assigning for error, substantially, the instructions of the court to the jury as above.

      William A. Sober, for the plaintiff in error.

    We contend that in default of appearance or defence by Margaret H. Marr to the attachment suit against A. P. Marr, in which suit she was named as garnishee, she is not entitled to bring trespass against the sheriff, but is remitted to her remedy on the bond, which was given according to the requirements of the Act of 1869, “for the use of any party injured.” But even if the action be maintainable, the writ of attachment is a complete justification. The affidavit and bond having been given to the satisfaction of the prothonotary, who issued the writ, directed to the sheriff, the latter officer obeyed the injunction of the writ by serving it on the garnishee, and attached in her hands property believed to belong to the defendant. The sheriff’s duty under the act is ministerial and mandatory. The object of the act is to defeat the fraudulent acts of debtors, and the responsibility of proving fraud rests not with the sheriff. If the property seized does not in fact belong to the defendant but to the garnishee, it is the duty of the latter to appear to the attachment, and make his claim, which will be determined under legal proceedings before the court. A mere verbal statement of the garnishee to the sheriff at the time of the seizure will not supersede the mandate of the writ and the instructions of the plaintiff’s counsel, under which the sheriff acts. The act which authorizes the attachment protects the rights of the defendant and the garnishee by requiring the plaintiff to execute a bond, with surety to be approved by the prothonotary, conditioned for the prosecution of the action with effect, which bond remains in the office of the prothonotary for the use of any party injured. The defendant or the garnishee may move to dissolve the attachment, or may retain possession by giving security to be approved by the court. The very object of the attachment was to determine the question of the alleged fraudulent sale of the goods in dispute, which was a question for the court and not for the sheriff to inquire into. The court could not act until the writ had been served by the sheriff. The garnishee was warned by this proceeding in rem to come in and assert her title, if any she had. Such action by the garnishee is clearly contemplated by the act, which provides for notice to garnishee. The writ of attachment was a complete justification to the sheriff for all acts honestly performed in the line of his duty thereunder. He is liable only for an abuse of his trust, and even then not in an action of trespass, but on the case: Ricketson v. Com’th, 1 P. F. Smith 155; Penna. R. R. Co. v. Pennock, Id. 244 ; 2 Smith’s Lead. Cas. 825, et seq.

      Franklin Bound and S. P. Wolverton, for the defendant in error.
    We do not dispute that the sheriff was bound by the exigency of the writ, but the attachment commanded him to seize only the “ property of said party defendant,” and if said property be found in the hands of another person, to summon such person as garnishee. In this case, the sheriff had full notice that the goods he seized were not the property of the defendant, but belonged to Margaret H. Marr, in whose possession they were. The sheriff could have protected himself from liability by demanding indemnity from the plaintiff, or insisting upon an interpleader. Omitting these precautions, he chose to determine the title of the property himself, and seized the goods of Margaret IT. Marr against her protest. Such action was in excess of the command of the writ, and the writ of attachment in such case furnishes no more justification to an action of trespass by the party aggrieved than if the seizure had been made under a writ of fi. fa. The bond required by the act is not intended for the benefit of the garnishee. Its only condition is that if the plaintiff shall fail to prosecute his action with effect, and recover a judgment against the defendant, the plaintiff or his sureties “ shall pay to said defendant or defendants, all legal costs and damages, which said party defendant may sustain by reason of said attachment, and which said bond shall remain in the office of said prothonotary for use of any party injured as aforesaidP The sheriff not only attached but sold all the goods, -without any further writ, other than an order of the court based on the sheriff’s return, authorizing the sale of a small quantity of said goods as perishable. Such an order of the court was no justification even as to the perishable goods, because the sheriff liad previously rendered himself liable to an action of trespass by his return of “ attached,” which return was conclusive on himself: Paxton v. Steckcl, 2 Barr 93. The only material propositions in this case are two. 1. 'Were the goods in question the property of Margaret H. Marr? 2. If they were, the trespass was clearly a trespass against her by attaching and selling them under the writ issued against A. P. Marr.

      June 22d 1881.
   Mr. Justice Trunket

delivered the opinion of the court

This is an action of trespass against a sheriff for taking the plaintiff’s goods. The defendant, plaintiff in error, pleaded not guilty to the declaration, and the issue thus made was tried and all the questions involved were considered. Respecting the special pica it is enough to say, that -if good in form it was bad in substance, and had it been demurred to the plaintiff would have been entitled to judgment. It is insisted upon by the defendant that the controlling question now presented is, whether the sheriff in executing an attachment under the Act of March 17th 1869, relating to fraudulent debtors, issued against one person, may lawfully seize the goods of another. He contends that though it be true that he took the goods of Margaret H. Marr, the writ issued at the suit of Wain wright & Co. against A. P. Marr commanded and authorized such taking.

Section 1 of the Act of 1869 makes it the duty of the prothonotary to issue an attachment against any defendant, upon the application of any plaintiff who makes and files the prescribed affidavit, and also a bond conditioned that if the plaintiff or plaintiffs shall fail to prosecute his, her or their action with effect, and recover a judgment against said defendant or defendants, he, she, or they shall pay to said defendant or defendants, all legal costs and damages which said party defendant may sustain by reason of said attachment.” Section é provides that if the writ be personally served on the defendant, or if he reside in the county, or if he “ shall appear to the action, the court shall proceed in the case in like manner as in case of summons for debt regularly issued and duly served;” and if there shall not be a personal service, residence or appearance as aforesaid, the plaintiff, after the first day of the second term, may proceed in like manner against the defendant and garnishees as is practiced in cases of foreign attachment and execution attachment.

It is obvious that the issuing of an attachment under said act is the commencement of a suit; that when the defendant is a resident of the county, or is personally served with the process, or appears, the action is proceeded in as if commenced by summons, and the judgment is personal and final between the parties as to the subject of the action. In case of service or appearance, even the dissolving of the attachment upon the defendant’s application, as provided in section 6, merely discharges the lien and. releases the goods from the custody of the law; and the action is proceeded in. When there is no service or appearance, and the defendant is a non-resident of the county, the judgment is in rem, as it is in foreign attachment when the defendant does not appear.

Sections 2 and 3 direct the manner of executing the attachment, and provide that when the property attached is in the hands or possession of a person other than the defendant, such person shall bo summoned as garnishee. It is the duty of the officer to take the property attached into his possession where it is capable of manual seizure, and when not, the same shall be bound by the attachment in the hands of such party from whom it is due or owing, or whose duty it is to account for the same, unless the defendant or some one for him shall enter into a bond as the act prescribes. It is plain that the officer is not authorized to attach the property of any person other than the defendant. No one is to be summoned as garnishee, unless he owes the defendant or holds and is liable to account to him for goods or other property. The fact that the officer summons a person as garnishee is no excuse for taking his goods. A garnishee is not a defendant. It is neither directed nor contemplated in the statute that a garnishee’s goods may be seized. The defendant urges that the bond tiled before the issuing of the attachment is for security of the garnishees whose goods may be taken. -But this is contrary to the letter and spirit of the statute. The bond is conditioned for payment of costs and damages to the defendant, if the plaintiff fails to recover a judgment. In the action relied on as a bar to this suit, Wainwright & Co. gave bond to A. P. Marr, with condition that if they failed to prosecute their action with effect and recover judgment against A. P. Marr, they shall and will pay to said Á. P. Marr all legal costs and damages which he may sustain by reason of the attachment. That bond is no security for anybody except A. P. Marr. It is in strict accord with the statute which intends it shall be a security for the defendant in the attachment. When the plaintiff directs the seizure of goods claimed by a person other than the defendant, the sheriff hnay demand a bond of indemnity, and, if the plaintiff neglect, to give it, may refuse to take such goods. This right of tile sheriff to be secured in such cases is at common law: Shriver v. Harbaugh, 1 Wright 399. He may release the goods of a third person if such bond be refused. Or he may have an order upon the plaintiff and the claimant of the goods for inter-pleader : Act of January 30th 1871, P. L. 12. There is no rule of law which compels the real owner of attached property, on notice of the suit, to intervene and defend pro inter esse suo, on pain of forfeiting his right of property or of action : Megee v. Beirne, 3 Wright 50. unless he be called on to make good his claim, by virtue of the statutes relating to interpleader, he may sue the officer and recover damages.

The learned judge of the Common Pleas was entirely right in ruling that the writ of attachment in the suit by Wainwright & Oo. against A. P. Marr was no authority for seizure of the plaintiff’s goods, and that said suit, whether pending or determined, was no bar to her recovery. It mattered not whether that action was tried, or, if tried, which party obtained judgment. Margaret H. Marr was not a party in that action. The original writ was as little authority for taking her goods as, after judgment, an execution would be.

At the trial the real' question of fact in controversy was, whether the plaintiff owned the goods as against creditors of A. P. Marr. This was clearly apprehended by the court, and the instructions to the jury relating thereto need no vindication. If the sale to her by A. P. Marr was void as respects his creditors, she could not recover; but if valid, the evidence on part of the defendant conclusively showed that he was a trespasser in seizing the goods. He seized' them as the property of A. P. Marr, the order of sale followed that seizure, and is no defence against this action. The evidence was ample that the plaintiff bought the goods of A. P. Marr, took and held possession, and was^entitled as owner against all the world. It was rightly submitted, and, if believed, warranted the verdict in favor of the plaintiff, for the value of the property.

We have considered and endeavored to express our opinion upon the few points raised by the numerous and voluminous assignments of error. The instructions and rulings were quite as favorable to the defendant as he had a right to demand.

Judgment affirmed.


author: MV. Justice Gordon

text:
    Quigley versus De Haas.
    1. Although any material parol alteration or modification of acontract under seal constitutes the specially part of a new verbal agreement which must be enforced by an action of assumpsit and not by an action of covenant, such is not the effect of a more waiver of a stipulation in said contract. In the latter case títere is no such alteration of the specialty as will constitute a new parol contract; hence, the proper remedy is an action of covenant.
    2. A. agreed by writing under seal to do certain work for B. & C. who by the same instrument agreed to pay him a sum certain therefor. D. was, by the terms of said instrument, to be judge whether the work was done according to contract. A. did the work, and B. on inspecting it, pronouncedifc satisfactory, with the exception of a few defects which he desired A. to remedy. B. then further promised A. that if those defects were remedied he should be paid. A. did remedy the defects, and not receiving his money from B. went to O. who told him he thought that B. would pay, but that he (0.) had sold out his interest in the matter. A. having after-wards brought an action of covenant against B. & C., Held, that defendants had, by promising to pay A. upon his remedying the specified defects, waived the stipulation in theconiract requiring Disapproval of the work, and that therefore plaintiff was entitled to recover without proof of such approval. Held, further, that the action was properly brought iu covenant and not in assumpsit.
    3. What was sufficient evidence to submit to the jury from which such a waiver as has been above described might be inferred, considered and commented on.
    4. A contract under seal to build dams upon a certain creek provided that the dams should be constructed “in a good and substantial manner, as flood dams should be built in such streams, cribbed, sparred, &c.” Held, that parol evidence was admissible to explain the understanding of the parties at the time of the execution of said contract as to how the dams were to be built.
    June 9th 1881. Before Siiaeswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Common Pleas of Clinton county: Of May Term 1880, No. 120.
    This was an action of covenant by John P. De Haas against A. J. Quigley and Joseph H. Bailey, upon a contract under seal, whereby plaintiff undertook1 to clear out for defendants a certain creek known as Young Woman’s Creek, and to erect dams, cribs and a lumber chute thereon, and defendants undertook in consideration of said services to pay to plaintiff the sum of $4,050, and whereby it was further agreed that one John M. Mason should be the judge of whether the work was done according to contract;
    The original narr. set forth the contract at length, and averred a full performance by the plaintiff of his part thereof, arid also a failure by defendants to comply with their part thereof. Defendants pleaded “ non est factum ” and “ covenants performed, absque hoc.”
    On the first trial of the cause a verdict was rendered for Ílaintiff in the sum of $1001.41, and judgment entered thereon. )efendants, however, taking a writ of error, the judgment was reversed by the supreme court and a venire facias de novo awarded (see Quigley v. De Haas, 1 Norris 267). After the record was remitted an amended narr. was, by leave of the court, filed by the plaintiff, which set out, in addition to the averments of the former narr., that on August 23d 1871, defendants had verbally agreed with plaintiff that, upon his taking out certain trees, tin-owing in certain dirt on the top of a dam, and doing certain other work, plaintiff’s work in clearing, damming and cribbing the creek would be satisfactory to defendants, and that they would pay him according to the terms of the contract.
    The amended narr. then further averred that plaintiff had taken out the trees, thrown in the dirt and done the other work stipulated by defendants, but that defendants had, nevertheless, refused to pay him according to the terms of the contract.
    On the trial, before Mayer, P. J., the plaintiff testified that he had done the work stipulated in the contract, and had received therefor on account from defendants between $2,100 and $2,200. That shortly after the compUJon of the job the defendant, Pailey, accompanied by Mason, went with plaintiff down the creek to inspect the work which had been done. That Bailey pointed out a place where he wished an alteration in a chute constructed by plaintiff, and that Mason advised the placing of a little more dirt on a certain dam, and also the cutting down of certain trees. That plaintiff then asked Bailey whether, if those alterations were done, the work would be satisfactory, and that Bailey replied that it would, and that he ■would then settle with plaintiff. That plaintiff accordingly made the desired alterations, but failed to obtain his pay from Bailey. That he thereupon went to defendant, Quigley, and told him that he feared he was going to have trouble, to which Quigley replied that he didn’t think he would have any trouble, but that he (Quigley) had no interest in the matter, having sold his interest to Mason. Plaintiff was corroborated in his story by an employé of his named Williams, who testified that he heal’d defendant, Bailey, say that the job was a good one.
    The contract, which was offered in evidence, provided that the dams should be built “in a good and substantial manner, as flood dams should be built in such streams, cribbed, sparred, puddle-ditched, calked and graveled.” Plaintiff offered to prove what was said at the time of the execution of the contract as to how the dams should be built. Objected to by defendants as incompetent and irrelevant. Objection overruled. Evidence admitted. Plaintiff then gave testimony to show that it had been verbally agreed that just such dams as he had constructed should be placed on the creek.
    Defendants altogether denied the truth of plaintiff’s evidence, and testified that the work done was inferior to that called for by- the contract.
    Defendant Bailey testified that his purpose in going down the creek with plaintiff and Mason was solely to satisfy the latter that the work was not done in accordance with the tei’ms of the contx’act, so that he might px-event the same from being

      taken off plaintiff’s hands. He therefore, he said, pointed out. the defects to Mason only, and made no promise to plaintiff of payment on his remedying of those defects. He had not wished, he said, to get into a controversy with the plaintiff. Mason, being called as a witness, substantially corroborated Bailey in his account of what passed on the creek, stating that no promise of payment was made to plaintiff on condition of his remedying the defects. He testified also that the work done was not in accordance with the terms of the contract. Defendants requested the court to charge, inter alia:
    That there had not been sufficient testimony produced to the jury to submit to them the question whether Bailey and Quigley waived that clause in the contract which proved that Mason should be the judge of whether the work was done according to the terms of the contract. Refused.

    Also, that under all the evidence in the cause the plaintiff has not established a right to recover, and the verdict should be for defendants. Refused.

    Tire court charged, inter alia, as follows :
    “ The judgment of Mason was necessary, in order that the plaintiff can recover at all upon the contract. And if De Haas would avoid this stipulation in the agreement and maintain this suit, lie must prove clearly, and to the satisfaction of the jury, that this stipulation was waived by the defendants. We have concluded to submit to the jury for their determination, the evidence upon the question of waiver, and it will be for them to find from that evidence whether any such arrangement was made between De Haas and the defendants, by which the work was to be accepted and the judgment of Mason dispensed with. There is a conflict between the testimony of DeHaas and Bailey which it will be the province of the jury to settle and determine.......Should they determine that there has been such a waiver, it will then be necessary for them to determine from the evidence whether the plaintiff has shown that he fully performed the contract, in accordance with its terms and stipulations. If he has, then the plaintiff is entitled to recover the contract price, deducting from it all payments made by the defendants upon the contract, arid allowing them deductions for any immaterial defects or imperfections in the manner of doing said work. If, however, the plaintiff has not shown a substantial performance of the work, he is not entitled to recover anything, for the law casts upon him the burden of showing that he has fully performed his agreement before he can recover anything.”
    Verdict and judgment for the plaintiff in the sum of $1,518.86. Defendants thereupon took this writ, assigning for error, inter alia,'the admission of plaintiff’s testimony as to the verbal understanding at the time of the execution of the contract as to how the dams were to be constructed, and also the refusal of the defendants ’ points above cited.

      C. S. McCormick, for plaintiff in error.
    The opinion of the Supreme Court in this very case on a former writ of error shows conclusively that plaintiff was not entitled to recover without proving Mason’s approval of the work which had been done: Quigley v. De Haas, 1 Norris 267.
    Plaintiff’s amended narr. sets out an entirely new cause of action founded solely on the parol agreement. The proper form of action is therefore not covenant but assumpsit: Vickary v. Moore, 2 Watts 456; Irwin v. Shultz, 10 Wr. 76; Lehigh Coal and Nav. Co. v Harlan, 3 Cas. 442; Ellmaker v. Franklin Fire Ins. Co., 6 W. & S. 439 ; Lawall v. Rader, 12 Harris, 283; Carrier v. Dilworth, 9 P. F. S. 410; Collins v. Barnes, 2 Norris 15.
    There was no sufficient evidence of a waiver by the defendants to submit to a jury. Parol testimony to change a written contract must be clear, plain and explicit: Martin v. Berens, 17 P. F. S. 462; Battles v. Laudenslager, 3 Norris 452.
    Evidence as to the parol understanding at the time of the execution of the contract was clearly inadmissible. The whole contract of the parties must be presumed to have been committed to writing.

      Seymour D. Ball and Kress and McKee, for the defendant in error.
    One party to a contract under seal may waive a provision introduced into it for his benefit without changing it to a parol contract: McCormick v. McKennan, 2 W. & S. 216 ; Ellmaker v. Franklin F. I. Co., 6 W. & S. 439 ; Monocacy Bridge Co. v. American Iron Bridge Manufacturing Co., 2 Norris 517. The cases cited by plaintiffs in error are those where the nature and scope of the contract had been wholly changed. At any rate, the courts are very liberal in regard to amendments in the form of action, p2’ovided that no nevv cause of action is introduced : Fritz v. Heyl, 8 W. N. C. 375. The plaintiff could therefore maintain covena2it. The evideiice as to waiver was ample, and was clea2'ly admissible: Lippincott v. Whitman, 2 Norris 244; Barnhart v. Riddle, 5 Casey 97. The evide2icc as to the parol agreement contempoi’aneous with the execution of the contract was admissible to show what the parties meant by the terms of that contract.

      October 3d 1881.
   MV. Justice Gordon

delivered the opinion of the court

Any material parol alteration or modification of a contract under seal necessarily constitutes the specialty part of a new verbal agreement that cannot be enforced by an action of covenant : Carrier and Baum v. Dilworth, 9 P. F. S. 406. The reason of this is obvious : the specialty, as such, no longer exists ; it has itself become but an element of the subsequent parol arrangement; but an inducement for the more recent contract, and must, therefore, be enforced by an action of assumpsit. But it by no means follows that the waiver of one or more of the stipulations of a sealed agreement produces such an effect, for in such case, the waiver neither destroys the original contract nor makes a new one, but only affects its execution. If A. should contract in writing, under seal, for a stipulated price, to build a house for B., and paint it, and B. should afterwards agree to release A. from the painting, we apprehend no one would say that there was in this such an altera; * u as would reduce the specialty to parol; for the remedy must be founded on the original agreement, seeing there is none other. There is here no substitution of new terms and conditions for the old. Both parties are held to all the covenants of the specialty, except that one which has been waived, and to' nothing else, hence, the only possible remedy is covenant. If authority for a proposition so plain as this is wanting, it will be found in the cases of McCombs v. McKennan, 2 W. & S. 216, and Ellmaker v. The Insurance Co., 6 W. & S. 439. Now, concerning the amendment made in the plaintiff’s narr., which is complained of as introducing a new cause of action; we find it amounts only to the setting out of the waiver of that part of the contract which required the judgment of John M. Mason upon the work as a condition precedent to the plaintiff’s right of payment. In other words, it sets out what the jury have found to be the fact, that if the plaintiff would do certain items of work, which both Bailey, one of the defendants, and Mason, the arbiter, pointed out as necessary to complete the job, the contract should be regarded as fulfilled and the plaintiff should have his pay. This, certainly, was not a substitution of a new agreement for the old; it was but a waiver of a single condition. So far as the substantial part of the contract was concerned, it altered it not in a single particular. It did not release De Haas from a strict performance of what he had to do about the work which he had undertaken, neither did it impose upon Quigley and Bailey what they had not previously agreed to do. We repeat, therefore, that the amended narr. does not set out a new contract, hence, no new cause of action. That the parties had the power to waive this part of their contract, was intimated in our opinion when the case was here before, but without this, that the parties to a contract may waive any part or the whole of it, if they see fit so to do, is a proposition requiring no discussion.

On this branch of the case the only remaining question is, whether there was evidence sufficient to submit to the jury from which an acceptance of the work might properly bo inferred. Do Haas swears, that at or about the time when, as he considered, the job was finished, or nearly so, Bailey and Mason made an inspection of the work, and pointed out certain things which they thought necessary to perfect the contract — such as the cutting out of some trees and the putting of some more earth on the toe of a ditch. He then asked Bailey whether the job would be.satisfactory to him when the work pointed out was done, and the answer was that it would be. He further says that under this arrangement Bailey left with the understanding that they were to have a settlement in a few days. Immediately afterwards he proceeded to finish what had been pointed out for him to do, but found that he was not able to bring Bailey to the promised settlement. He then spoke to Quigley, and told him he was afraid' there was going to be trouble, but Quigley thought not, but said he no longer had any interest in the matter, as he had sold out to Mason. Then in confirmation of this narration of. De Haas, wm have the testimony of John ’Williams, who says Bailey told him the job was a good one. It is true that this is denied by the defendants, but the jury, as they had. a right to do, believed Do Haas. With this we have nothing to do ; our question is, whether this evidence, with the attendant circumstances, was sufficient, if believed, to support the hypothesis of the plaintiff. We think it was. For why did Bailey, in consideration of the performance by De Haas of certain specific things, pointed out by himself and Mason, agree to accept and settle for the job, if ho intended to insist on the umpiresliip of Mason? He certainly thereby induced Do Haas to believe that ho had waived this part of the contract, and if he did so deliberately he ought to be held to it. His own testimony, if not confirmatory of that of the plaintiff, nevertheless, exhibits so much of unfairness, so great a disposition to prevent an impartial judgment of the umpire, that we are not surprised that the jury gave it no credence. In answer to the question whether he had not pointed out to De Haas the objectionable and unfinished parts of the work at the time he visited them in company with Mason, he says he did not, that he pointed them out to Mason. “I wanted,” he goes on to say, “ to satisfy Mr. Mason that the work was not in accordance with the contract, and went there for that purpose. I had told Mr. Mason before I went there it was not satisfactory.” Then, in answer to the question, “Your purpose was to prevent its being taken off the hands of Be Haas? The answer is, “Yes sir.” The frankness of all this is certainly admirable, but the honesty of the transaction is not so commendable. And what must we think of an umpire who would allow his judgment thus to be forestalled; who would submit to be made the mere tool of either of the parties ? IIow, after this, could the plaintiff expect an impartial judgment from, or how could a court of justice require him to resort to the decision of an umpire who had thus beeii manipulated ? Had De Haas been informed of the purpose for which Mason had brought upon the ground he might have had some slight chance for defence, but care was taken that he should not have this information, for, as Bailey says, “ I did not want to get into a controversy with He Haas.” The design seems to have been simply to post Mason on the defects of the job, and then leave He Haas to the tender mercies of an umpire who had prejudged and condemned his work. That Bailey did accomplish his purpose as to the umpire is obvious, for he says after he and Mason had ridden* over the job he, Mason, informed him that it was impossible for He Haas to crib the creek according to the contract. Under circumstances of this kind, about which there can be no doubt, since they are detailed by one of the defendants, it is idle to talk about requiring He Haas to resort to the judgment of an umpire from whom, in consequence of the manipulations of the defendants, he could obtain nothing but an adverse decision.

This conduct of Bailey forever estops him and his partner from setting up this part of the contract to defeat the plaintiff. When, therefore, the court submitted this part of the ease to the jury on the question of waiver, it not only did that which the evidence justified it in doing, but also that which was the best for the defendants, and of which, therefore, they ought not to complain.

There was exception taken to the ruling of the court in permitting the introduction of parol evidence to explain the unaerderstanding of the parties at the time of the execution of the contract, as to how the dams should bo built; but we think this was proper. By the contract these dams were to be built “in a good and substantial manner, as flood dams should be built in such streams, cribbed, sparred, puddled-ditched, calked and ■graveled.” To us it seems obvious that, in order to make this intelligible to a jury, some explanation was necessary, either from experts or from the understanding of the parties expressed at the time of the making of the contract, but of these two methods of arriving at the meaning of this agreement, the latter was the better, as being the interpretation given to it by those most interested, hence, the one which would be the most likely to express their intention.

¥e have discovered nothing else in the assignments requiring comment.

Judgment affirmed.