text:
    Royal League v. Alvina Kasey, Appellant, Annie J. Straw and Cynthia A. Kasey, Appellees.
    Gen. No. 13,986.
    Fraternal benefit society—who entitled to proceeds of certificate. Assuming that if a member of a fraternal benefit society dies leaving a certificate payable to a beneficiary designated as wife such person is not entitled to the proceeds of such certificate if before the death of such member she has become divorced from him and has ceased to be a “dependent;” nevertheless, the wife of such member who has become such since his divorce, is not entitled to the proceeds of such certificate without having been made a beneficiary thereof, but where the by-laws of the society contain a provision as follows: “If at the time” (of the member’s death) “the dependency has ceased, then such benefit shall be paid to the heirs of the member,” the proceeds of the certificate will pass according to such by-law.
    Bill of interpleader. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    Statement by the Court. The decree from which this appeal was taken finds the facts and applies the law to them in its ordering clauses and in certain conclusions of law. There is no dispute concerning the facts in the cause, which was tried on a stipulated statement. Therefore an abstract of the decree will substantially serve the purpose of a complete statement of the pleadings and the certificate of evidence, as well as of the action of the court.
    The findings of fact in the decree are these:
    That the Boyal League, complainant, is a fraternal benefit society, organized and doing business under and by virtue of the laws of the State of Illinois, and that on April 5, 1890, it issued its benefit certificate to one Frank J. Kasey, a member of said order, and agreed thereby to pay out of its Widows’ and Orphans’ Benefit Fund to “Annie J. Kasey, wife,” a sum not exceeding four thousand dollars, in accordance with the laws governing said fund, upon the death of said member; that prior to said Frank J. Kasey becoming a member of said Boyal League there was born of the marriage of said Frank J. Kasey and the defendant, Annie J. Straw, then Annie J. Kasey, during July, 1887, a daughter, the defendant, Cynthia A. Kasey, who is now living, and who was the only child of said Frank J. Kasey living at the time of his death.
    That on or about July 19, 1902, the said Annie J. Kasey was divorced from said Frank J. Kasey.
    That on January 21, 1906, the said Frank J. Kasey married the defendant, Alvina Kasey, who lived thereafter with him as his wife until his death.
    That upon the death of said Frank J. Kasey the said defendants, Annie J. Kasey (now Annie J. Straw), the beneficiary named in said benefit certificate, Cynthia A. Kasey, daughter and the heir at law of said Frank J. Kasey, deceased, and Alvina Kasey, the widow of said Frank J. Kasey, deceased, respectively, made claim upon said Boyal League for the amount of money owing under said benefit certificate; and, thereupon, the said Boyal League filed its bill of inter-pleader herein, making said claimants parties defendant thereto, and each of said parties appeared and answered said bill and laid claim to the amount of money secured by said benefit certificate; that on June 20, 1907, a decree was duly entered by the court, in favor of the complainant in said bill of interpleader, and directing it to pay to the clerk of the Circuit Court the sum of $4,000, admitted to be owing by it under said benefit certificate, and that said sum was thereupon deposited with the clerk of said court; that upon said deposit being made, an order was duly entered, by consent of all said parties, directing the clerk of said court to pay to the complainant, Boyal League, the sum of $15.85, being the amount expended by said complainant for court costs in filing its said bill of interpleader and for the service of summons upon said defendants.
    That at the date, April 5, 1900, on which the Boyal League issued its benefit certificate to Frank J. Kasey, in which the defendant, Annie J. Straw, then Annie J. Kasey, was named as beneficiary, she was the lawful wife of said Frank J. Kasey, and that there was born of said marriage during the month of July, 1887, a daughter, the defendant, Cynthia A. Kasey, who is the only heir at law of said Frank J. Kasey, deceased. That on July 19, 1902, the defendant, Annie J. Straw, formerly Annie J. Kasey, and prior to that time wife of said Frank J. Kasey, was divorced from said Frank J. Kasey, upon her bill of complaint, and solely on account of the fault of said Frank J. Kasey; and that since the death of said Frank J. Kasey and the bringing of this suit the said defendant, Annie J. Straw, has assigned all her interest in said benefit certificate and fund to the defendant, Cynthia A. Kasey.
    That the said Frank J. Kasey was lawfully married to the defendant Alvina Kasey on January 21, 1906, and thereafter they lived together as husband and wife until the death of said Frank J. Kasey on December 5, 1906; and that his widow, Alvina Kasey, his daughter, Cynthia A. Kasey, and his divorced wife, Annie J. Straw, survive him.
    That at no time has there been a by-law or rule in force in said Boyal League relating to the payment of the benefit in the event of the beneficiary named in the benefit certificate becoming divorced from the insured member. That the by-laws of said Royal League, during the entire period of the membership of said Frank J. Kasey, did provide that a benefit certificate might be made payable to a member’s wife, children, father, mother, brother, sister, affianced wife, uncle, aunt, niece, nephew or grandchildren, in which class of beneficiaries no proof of dependence should be required. That a member might, at any time, surrender, in writing, his benefit certificate, and have a new one issued, payable to a different beneficiary of the eligible classes, upon the payment of a certificate fee of fifty cents; and that in the event of the death of the designated beneficiary before the death of the member, and no other beneficiary being named by the member, the benefit should be paid to the heirs at law of the member.
    That the defendant, Annie J. Straw, is the same person mentioned in said certificate as Annie J. Kasey. That at the time of the death of said Frank J. Kasey said Annie J. Straw was not actually dependent upon him for support.
    The conclusions of law found in the decree are:
    That A vina Casey was never designated by said Frank J. Kasey as a beneficiary and has no right to said fund.
    That Cynthia A. Kasey was never designated by said Frank J. Kasey as beneficiary. (Note: We call this a conclusion of law only out of greater caution, in the view that it may be considered tantamount to a finding that Cynthia A. Kasey could have no claim to the fund except as the assignee of Annie J. Straw, which, as will hereafter be seen, is contrary to a contention of said Cynthia A. Kasey. There is no dispute, however, of the proposition that no direction or order of Frank J. Kasey ever made Cynthia A. Kasey the beneficiary or changed in any way the original terms of the certificate.)
    That at the time of the death of said Frank J. Kasey, although said Annie J. Straw was not actually dependent upon him for support, she was entitled to support from him. That by securing a divorce from said Frank J. Kasey, she did not preclude herself from taking the fund mentioned in said certificate. That therefore she, as the designated beneficiary mentioned in said certificate, was entitled, from and after the death of said Frank J. Kasey, to receive and dispose of the fund in said benefit certificate mentioned.
    The ordering clause of the decree adjudges and decrees that Alvina Kasey is not entitled to said benefit fund or any portion thereof; that said Cynthia A. Kasey is entitled to said fund, and that the clerk of the court pay to her or to her solicitor the sum of three thousand nine hundred and eighty-four dollars and fifteen cents ($3,984.15) so paid over to him by the Boyal League under the terms of the decree heretofore entered, and that the defendant Alvina Kasey take nothing by this suit.
    It seems only necessary to add to this abstract of the decree, as a basis for the discussion of the contentions of the respective parties, a statement of the claim of Cynthia A. Kasey as made by her answer to the bill of interpleader, and of the circumstances of the assignment to her and of its proof.
    The answer of Cynthia A. Kasey, filed March 16, 1907, after admitting the facts which were recited in the bill of interpleader substantially as found by the decree, avers that by operation of law under the provisions of the by-laws of the complainant, the amount of the benefit certificate was payable to her, Cynthia A. Kasey, as the only heir of the deceased, Frank A. Kasey.
    Annie J. Straw and Alvina Kasey each claimed the fund for herself by her answer. Annie J. Straw’s answer was filed contemporaneously with her daughter’s on March 16, 1907; Alvina Kasey’s two days later, on March 18, 1907.
    The order allowing the Boyal League to pay the fund into court was made with the consent of all the parties on June 20,1907, after which, on the same day, the cause proceeded to hearing before the chancellor on the respective claims of Annie J. Straw, Alvina Kasey and Cynthia A. Kasey, who were each represented by counsel.
    A stipulation of facts signed by the respective solicitors for the three claimants was read to the court, and thereupon, after argument of counsel, the court continued the cause for further hearing.
    On July 11, 1907, both Annie J. Straw and Cynthia A. Kasey amended their answers, each amendment setting up the fact that on June 28, 1907, Annie J. Straw assigned her right, title and interest in the certificate in question and all rights and benefits that might accrue under any decree in the suit to Cynthia A. Kasey, and containing a copy of said assignment signed by Annie J. Straw, and expressed to be for the consideration of $1 and other good and valuable consideration.
    On the 13th of July, 1907, leave was given to the solicitor of Alvina Kasey to file the written stipulation of facts which had been read at the hearing nunc pro tunc as of the date of that hearing, June 20, 1907, which was accordingly done.
    The stipulation begins with the agreement that ‘' all proper pleadings necessary to present the claims of the respective parties are and shall be considered as now on file, and that on the trial of the issues presented by the pleadings the following facts are admitted to be true and shall be received and considered as if testified to by competent witnesses.”
    September 16, 1907, Alvina Kasey filed “answers to the amendments” of Annie J. Straw and Cynthia A. Kasey, which were filed July 11, 1907. These “answers” first denied the assignment and the execution of the same by Annie J. Straw, and then alleged “that on the 20th day of June, 1907, the said Annie J. Straw, Cynthia A. Kasey and this defendant, Alvina Kasey, stipulated with each other in writing that only thosq facts which were contained in said stipulation should be presented to the court for its decision; that said stipulation was filed in said cause on the 20th day of June, 1907; * * * that upon the said stipulation and the facts therein contained, the cause was argued and partly presented to the court for its decision, and that the facts alleged in the amendment filed by said Annie J. Straw on July 11, 1907, are not contained in or referred to by said stipulation. By reason whereof, the defendant, Alvina Kasey, alleges the said Annie J. Straw is estopped from setting up or proving the facts alleged in her said amendment of July 11, 1907, and the defendant, Alvina Kasey, claims the same benefit of the answer as if she had demurred to the amendment.”
    After these answers, the cause coming on again for a continuance of the hearing, the assignment in question was offered in evidence and the signature proven. Whereupon it was objected to by counsel for Alvina Kasey on the ground that by the stipulation of facts on file it was agreed that all the pleadings necessary to present the facts and issues in the case should be considered on file as of the date of that stipulation, and that the hearing of the cause should be on the facts submitted in that written stipulation.
    The court admitted the assignment in evidence over objection. No other evidence than that pertaining to the assignment and that contained in the stipulation of facts was heard.
    The final decree here appealed from was entered on said 16th day of September, 1907.
    The appeal is taken by Alvina Kasey, Cynthia A. Kasey being named as appellee in the appeal bond, and the assignments of error contain these points:
    That the decree is contrary to the evidence; that it is based on evidence improperly admitted and considered; that it is erroneous in finding that at the time of the death of Frank J. Kasey his divorced wife, Annie J. Straw, was entitled to support from him; that it is erroneous in finding that, by securing a divorce from Frank J. Kasey, Annie J. Straw did not preclude herself from taking the fund mentioned in said certificate, and was therefore, as the designated beneficiary in said certificate, entitled to receive and dispose of the said fund; that it is erroneous in finding that since the death of said Frank J. Kasey, and the bringing of the suit, Annie J. Straw had assigned all her interest in the certificate and fund to Cynthia A. Kasey; that it is erroneous in finding that Alvina Kasey was never designated by said Frank J. Kasey as benéficiary, and erroneous in finding that Cynthia A. Kasey was and Alvina Kasey was not entitled to the fund, and adjudging that the amount of it should be paid to Cynthia A. Kasey, and that Alvina Kasey should take nothing by the suit.
    Burton & Kannally, for appellant.
    J. L. Bailey, J. B. Guilliams and Millard B. Powers, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

The counsel for the appellant in this case, Alvina Kasey, in an able and ingenious argument, first address themselves to the proposition that Annie J. Straw is ineligible to take the fund which is the proceeds of the benefit certificate involved, and is now in the hands of the court. They then proceed, having, as they claim, disposed of the pretentions of Annie J. Straw, to inquire whether Alvina Kasey should not be held entitled to it.

But we think the proper consideration of this case requires a reversal of this order of discussion.

The fund has been paid into court by the Boyal League in accordance with an order based on the prayer of its bill. Whether the interpleading proceedings proceeded in the most artificial manner according to the formerly recognized rule of equity practice and procedure, may be doubted; but no question was made of this, and indeed we regard the preface to the stipulated statement of facts to have been intended to provide that the answers of the respective parties to the bill of interpleader should be considered and taken as their affirmative pleadings or bills demanding against the other claimants, as defendants, the fund in question. Alvina Kasey’s answer, then, was in essence her bill against the Boyal League, Annie J. Straw and Cynthia A. Kasey. The essential findings of the decree, so far as she was concerned, except the preliminary ones about the issuance of the certificate, were only that Frank J. Kasey was lawfully married to her on January 21, 1906, that they lived together as husband and wife until the death of Frank J. Kasey on December 5, 1906, that she as his widow survives him, that she was made a party to the bill of interpleader, that she answered the bill, claiming the money involved, that the by-laws of the Boyal League provided a method of changing the designated beneficiary, and that she was never designated by Frank J. Kasey as a beneficiary and has no right to the fund.

The ordering part of the decree which affects her, is “that Alvina Kasey is not entitled to said benefit fund or any portion thereof,” “and that the defendant Alvina Kasey take nothing by this suit.”

In other words., the situation made by the decree is tantamount to a dismissal of an original bill by her for want of equity, and relief against other persons granted to a defendant in that bill who had filed a cross-bill. Each answer to the bill of interpleader was equivalent not only to an original bill, but also to an answer to bills of the other defendants and a cross-bill in behalf of the defendant who signed it.

Alvina Kasey having been thus dismissed out of court has appealed. Manifestly, the only question with which she is concerned is whether her claim was properly disposed of by the decree. If it was, she has no longer any interest in the fund or the litigation.

If between the other claimants to the fund, or between any one of them and the original party who asked for an order of interpleader, there was error committed by the decree, it was error immaterial to her.

If the fund should have been given to her, she has just cause of complaint; if not, it is no concern of her’s to whom the court below decreed it as between the other claimants, and in the absence of any appeal or cross-error by any one of the other parties, no concern of this court.

Such being our view, the question before us is whether the benefit certificate in question can be held payable to “Alvina Kasey, wife,” when by its terms it is payable to “Annie J. Kasey, wife.” Counsel for Alvina Kasey insist that it can and should be so held because the word “wife” must be considered the essential and abiding part of «the certificate, which is to speak as at the time of the death of the member. The name, they say, should be considered as the' mere designative description, which may and should be held of lesser and uncontrolling importance. That this is so, they claim, is shown by inference from the intentions which can be gathered from the object and purposes of the League as shown by its certificate of incorporation and the changes made in. its objects after its institution, by its constitution and laws, and by the order in which the allowed beneficiaries are enumerated, and also by the form of the application of Frank J. Kasey for the privileges of membership, and the order in which he therein placed the words. The certificate is payable to “Annie J. Kasey, wife;” the application, however, orders the benefit paid to “wife, Annie J; Kasey;” and counsel argue “Annie J. Kasey” is “in apposition to ‘wife’ ”—the relation being the essential thing, and the use of the words “Annie J. Kasey” being merely a description of that relation. This is confirmed, they say, by the fact that the laws of the state and of the order which allow and indeed prefer the actual wife or widow as a beneficiary, do not allow a divorced wife who is not dependent (that being the status of “Annie J. Straw” formerly “Kasey”) at the time of the death of the member— when the certificate speaks—to be such a beneficiary.

The argument is well and strongly put, but it does not convince us. If the name were a mistake, if there had been no such person as Annie J. Kasey occupying the relation of wife to Frank J. Kasey when the certificate was applied for and issued, or even had the deceased after the divorce shown in any manner an intention or wish to change the provision and alter the beneficiary, the question would have been different. But his intention to name as his beneficiary not merely his “wife,” but the particular person who was his wife at the time he made the application, and to order the benefit paid to “Annie J. Kasey, wife,” seems clear; and the facts that the divorce was for his fault, that he had an infant daughter whom he allowed his divorced wife to support entirely after four months from the divorce, never contributing anything to the support of either mother or daughter after that time, but, as it would appear, retaining his membership in the Order, although his former wife, for whose benefit the certificate was issued, had possession of it (for although the stipulation only admits that at the time of making it Annie J. Straw had possession of it, there is no suggestion that this possession did not date from before the divorce), would seem to ns to point strongly to the inference that he preferred to leave this fund for the benefit at least indirectly of the child for whom he was responsible, than to his second wife, whom it was easy to have made the beneficiary had he been so disposed.

Whether, however, this be so or not, and whether he could, by any intention, action or want of action of his, have enabled Annie J. Straw to remain a beneficiary after she had ceased to be of any one of the classes from which beneficiaries could be named, are really immaterial questions, when the issue is whether Alvina Kasey is such beneficiary.

If she be not, she cannot take this fund, and the decree as to her is correct, and it is not necessary to discuss the conflict of authority as to whether the validity of the original designation of the beneficiary as Annie J. Kasey, now Straw, resulted in its continuing valid after the divorce. We may, in such case, assume that the doctrine of Tyler v. Odd Fellows, etc., 145 Mass. 134, is correct, and that it is adopted in this state by the decision and opinion in Murphy v. Nowak, 223 Ill. 311, “that a person cannot take as beneficiary unless he falls within one of the designated classes at the time of the death of the member,” without its affecting the proper disposition of the case at bar.

We think that Alvina Kasey was not the beneficiary at any time; that the court below rightly so held, and that she could take nothing by her claim on the funds set forth in her answer to the bill of interpleader, nor by her appeal here.

As before noted, it is our opinion that this disposes of the contentions in which she had any interest, and that it is not necessary to pass on the assignments of error on the decree, which simply question the correctness of the findings concerning the right of Annie J. Straw to support from her former husband at the time of his death, or her right to dispose of the fund in question, or the right of Cynthia A. Kasey to the same. If those findings are erroneous, the errors do not concern appellant.

It may, however, be more satisfactory to the parties if we briefly state our view of them. Assuming that Annie J. Straw, as counsel claim, withdrew herself from the class of possible beneficiaries when she procured the divorce, and that she was not entitled to receive the- fund, and that the doctrine of Tyler v. Odd Fellows Assn., 145 Mass. 134, and Order of Kailway Conductors v. Foster, 55 Mo. App. 186, goes to the full extent claimed by appellant and that it was adopted in Murphy v. Nowak, 223 Ill. 301, we do not think that Cynthia A. Kasey’s right to this fund thereby falls.

It is true that the court below by its findings appears to rest the adjudication of the fund to Cynthia A. Kasey on the assignment of it to her by Annie J. Straw, but the ordering portion of the decree makes no mention of the capacity in which Cynthia A. Kasey is entitled to the fund; and, as we have indicated, our opinion is that in the absence of any appeal or cross errors or objection of any kind from Cynthia A. Kasey, she is entitled to an affirmance of the decree, whatever error immaterial to the appellant is found therein in its findings or in its reasons given for the ordering portion.

Assuming that neither Alvina Kasey nor Annie J. Straw was entitled to the fund at the time of Frank J. Kasey’s decease, we think Cynthia A. Kasey was.

The certificate was made payable to Annie J. Kasey when she was not only the wife, but, as his wife, a dependent of Frank J. Kasey. There is no doubt that if she had remained a dependent she would have been an eligible beneficiary at the time of Frank J. Kasey’s death. The court found that she was entitled to support from him at the time of his death, and presumably meant to imply that this made her a “dependent. ’ ’ But assume that she was not, that the stipulation of facts foreclosed the hypothesis that she was, and that the laws of the order that “no benefit shall be payable to any person upon the ground of dependency alone unless the dependency exists at the time of the member’s death,” is conclusive against her right to take as a dependent—what then becomes of the fund? The immediately succeeding words in the laws of the order seem to us to furnish the answer: “If at the time” (of the member’s death) “the dependency has ceased, then such benefit shall be paid to the heirs of the member. ’ ’ Annie J. Straw at the time of her designation under the name of Annie J. Kasey, was a dependent of the member; she ceased to be so before his death; the benefit should therefore be “paid to the heir of such member.” Cynthia A. Kasey is the daughter and only heir of the member. Gauch v. St. Louis Mutual Life Ins. Co., 88 Ill. 251.

She belongs to a class eligible as beneficiaries. There is no reason why the fund should not be paid to her. It is by analogy certainly in accordance with the law of the state that it should he. Knights of Honor v. Menkhausen, 209 Ill. 277; Baldwin v. Begley, 185 Ill. 180; Alexander v. Parker, 144 Ill. 355; Palmer v. Welch, 132 Ill. 141.

We think that justice has been done, that probably the intention of the deceased has been carried out, and that at all events there is no error in the decree of which appellant can complain. It is accordingly affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Mary Doyle, Appellant, v. John E. Dunne et al., Appellees.
    Gen. No. 13,992.
    1. Landlord and tenant—eifeef of signature of third party to lease with those of lessor and lessee. A third party who opposite a seal affixes his signature following those of the lessor and lessee, does not become a party to the lease if not mentioned therein, nor does such third party assume the obligations thereof or become surety with respect thereto, and parol evidence is not admissible to show a collateral undertaking.
    2. Landlord and tenant—effect of parol reduction of rent. A parol agreement to reduce rent entered into by a lessor without consideration is a mere nudum pactum, not binding, and while the lease remains executory is not susceptible of being enforced, but a reduction accomplished periodically as the rent accrues, by accepting a sum less than the stipulated rent for such period, is valid and constitutes an executed gift.

      Action of debt. Appeal from the Circuit Court of Cook county; the Hon. Gbobqb A. Carpenter, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    Alexander Sullivan and Burtt & Kriete, for appellant.
    Loesch, Scofield & Loesch, Newton Wyeth and H. W. McEwen, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

This appeal is by the plaintiff in an action of debt in the Circuit Court of Cook county, against whom there was a judgment of nil capiat and for costs in favor of one of the defendants to the suit, the Independent Brewing Company, and in favor of whom there was a judgment for only $134.45 against the other defendant, John E. Dunne, although a much larger sum was claimed by the plaintiff against both defendants.

The suit was upon a lease under seal, wherein appellant was lessor and the appellee, John E. Dunne, lessee, and the name of the Independent Brewing Company appears as a signature below the signature of the parties, Mary Doyle and John E. Dunne, who were alone mentioned in the body of the lease as parties thereto.

The lease (which was received in evidence) was of certain real estate, from the first day of May, 1893, until the 30th day of April, 1903, for the aggregate sum of $9,000, payable in quarterly instalments of $225 in advance on the first days of May, August, November and February in each year. The lease also provided that the lessee should pay all taxes and assessments that might be laid, charged or assessed on said demised premises pending the existence of the lease, and that if at any time after any tax should have become due or payable the lessee should neglect to pay the same, it should be lawful for the lessor to pay the same at any time thereafter, and the amount of any and all such payments so made by the lessor should be deemed and taken and were declared to be so much additional rent for the demised premises.

The claim of the appellant was for $134.45 taxes and special assessments -which she proved she paid in August, 1903, after the expiration of the term of the lease, but which were levied and assessed in 1902 and $715, balance of rent, being a sum of $15 which it is claimed was in arrears on and after July 13, 1897, and which sum in arrears increased under the terms of the lease by $40 during the quarter beginning August 1, 1897, and $30 each quarter thereafter during the continuance of the lease.

This calculation of rent due is made this way: Prior to July, 1897, it became the practice of the appellee Dunne to pay monthly, during the respective months of the quarter, one-third of the quarter’s rent, being $75. After that date for seventy months he paid but $65 each month, leaving, as appellant claims, $700 due in addition to the fifteen dollars which was not paid up on July 13, 1897.

This $15 does not seem accounted for by the evidence either oral or documentary which was offered, but we do not think it material that it should be explained, because the distinct admission was made by the counsel for the plaintiff during the hearing below, that if the position of the appellee Dunne concerning the $65 monthly payments was correct, that is, if the rent of the seventy months during which Dunne paid $65 a month, was settled by these payments, there was nothing due the plaintiff but the $134.75 paid for taxes and assessments, for which she recovered judgment. (Eec. p. 96.)

The evidence showed that in July, 1897, appellee Dunne met the appellant, Mary Doyle, and asked her to reduce his rent from $75 a month to $50 a month, to which, after some talk, she replied, “No, I won’t make it $50 a month, but I will make it $65 a month.” Thereafter Dunne paid $65 during each month while the lease continued, and gave up the premises to the appellant a few days before its expiration. He received a receipt each time he made a payment, and the receipts were produced in evidence by him. No further conversation concerning rents appears by the record ever to have taken place between the parties, but on February 29, 1904, ten months after the lease had expired and the premises been surrendered, the present suit was begun.

The receipts which were taken by Dunne varied somewhat in form. That of July 30, 1897, which Dunne said was the first one after the reduction was assented to by appellant, was as follows:

“Chicago, July 30, 1897.
Deceived of John E. Dunne July 29,/97, Seventy-five and no/100 Dollars as follows—Cash $65.00. Allowance for July $10, for Bent of No. 172 Michigan St. from June 30, 1897, to July 31, 1897.
$75.00. Maddeh Bros., Agts.,
Per Armel.”
The next one on September 9, 1897, was substantially in the same form. The third was:
“Chicago, Oct. 1, 1897.
Beceived of John E. Dunne Sixty-five and no/100 dollars for Bent of store No. 172 Michigan St. from Aug. 30, 1897, to September 30, 1897.
$65.00. Maddeh Bros. Agts.,
Per E. H. Doherty.”

Beceipts dated December 24, 1897, and December 31, 1897, were each expressed to be for ‘ ‘ $75—$10 allowed, ’ ’ and one was for rent from October 31,1897, to November 30, 1897, and the other from November 30,1897, to December 31, 1897.

Beceipts dated February 2, 1898, March 2, 1898, and April 7, 1898, were expressed to be for $65 each, but a notation of “$10 allowed” was made on them, and they were stated to be in each case for rent for the preceding month.

The receipt for the payment of $65 which it is admitted was made May 9,1898, is missing. One dated June 8, 1898, reads:

“Chicago, June 8, 1898.
Received of Jno. E. Dunne Sixty-five and no/100
Dollars for acct. Rent of 172 Michigan St. from-
189—- to-of May, 1898.
$65. Madden Bros., Agts.,
Per Armel.”
One dated July 15, 1898, is:
“Chicago, July 15, 1898.
Received of John E. Dunne Sixty-five (65) Dollars for Rent of 172 Michigan St. from June, 1898, to June 30/98.
$65.00 Madden Bros., Agts.,
Per Steve.”

Then follows a series of twelve receipts, each of which is for $65, and one of which was in each month from August, 1898, to July, 1899. The one given in December, 1898, is expressed to be “from Nov. 1, 189— to on acct. Nov. 30, 1898,” and that given in February, 1899, is “from Jan. 1, 189—, to Feb. 1, 189—.” The one dated in July, 1899, also mentions the month of June. They all have somewhere in them the expression “for acct. rent,” or “to on acct.” some date, or simply, “on acct. of rent.”

A receipt dated August 4, 1899, has attached to it the following note:

“Chicago, Aug. 4, 1899.
Mr. Dunne :—•
Mrs. D. wants to go to the country to-morrow and needs the July rent money. Will you please send ck. by hearer and very much oblige us.
Yours, etc.,
Madden Bros.;”
and reads as follows:
“Chicago, Aug. 4, 1899.
Received of Jno. E. Dunne Sixty-five and no/100 Dollars for Rent of 172 Michigan St. Store on account of Rent.
$65.00. Madden Bros., Agents,
Per M.”

Receipts were then produced given in September, 1899, and in each subsequent month up to and including July, 1902, except in October, 1901, and April,

1902, each for $65, all containing some such expression as “on acct.” or “to on acct.” The receipts for admitted payments of $65 on October 10, 1901, and on April 9, 1902, are missing. The next receipt is:

“Chicago, Aug, 9, 1902.
Received of J. E. Dunne Sixty-five Dollars for Rent of 172 Michigan St. From July 1, 190 to July 31, 190 .
$65.00 Maddest Bros., Agents,
Per M. S. M.”

There follow this a receipt given in September, 1902, for “Sixty-five & no/100 dollars for Rent of 172 Michigan St. from Aug. 1st to August 31st,” and similar receipts in October, November, December, 1902, and January, February, March, April and May, 1903, for the rent in each case of the preceding month, none of them containing any expression concerning “acct. of” or “on acct.,” except those given March 7th and May 2, 1903, which say “for month ending Feby. on acct. 190—,” and “for month ending on acct. for April rent 1903, ” respectively.

We think that these receipts taken together clearly show that $65 a month was paid by Dunne and received by Mary Doyle’s agents (it is conceded that Madden Bros, were her authorized agents) for July, 1897, and for each month thereafter separately during the continuance of the lease up to and including April, 1903. We attribute no importance to the expression “on acct.,” “for acct. of,” etc., in the receipts. The expression very commonly means “on the score of,” or merely “for,” and sometimes means nothing. The evident fact, shown by this long series of payments of $65 monthly following the conversation which the record shows concerning a reduction of rent, and uninterrupted or followed by any complaint or demand for more money until, almost a year after the lease had expired, this suit was brought, is that these payments were respectively made and accepted as the full rent for the months respectively preceding them.

The note to Dunne of August 4, 1899, although no stronger than all the other indications, would be sufficient in itself to show the situation.

Under the theory that the $65 payments had only been accepted on account, after the formal statement in the receipts of $10 allowance had ceased—which seems now to be the appellant’s claim—there would have been most of the May rent and all of the June rent in arrears and due, as well as the July rent. But the appellant, by her agents, asks for the “July rent” because she is to leave town.

The plaintiff introduced evidence that before the lease was signed Dunne had talked with the Independent Brewing Association officers with reference to it, and afterward, during the term of the lease, bought the beer for a saloon situated in the premises, from the association. Dunne said the secretary of the association was a friend of his, and agreed to go on the lease if he would buy the association’s beer, and did go on it. Mr. Madden, the appellant’s agent, testified that he talked with the president of the association and told him that Mr. Dunne wanted to lease the premises.and the owner wanted security, and had been referred by Dunne to the Independent Brewing Association. The president said that Mr. Dunne had spoken to him and they were willing to go on the lease to secure it. After the lease was drawn, after Mr. Dunne signed it and before Mrs. Doyle signed it, the Independent Brewing Association signature under Mary Doyle’s and John B. Dunne’s was.made as follows:

“Independent Brewing Association,
F. C. Lang, Pres.
J. Henby Zilt, Secy.”

All this testimony was introduced subject to objection as improper against the Brewing Association, and the lease itself was objected to on the ground that the name of the association does not in any manner appear in it nor is mentioned by it except as it is signed at the bottom.

This being the state of the record, it' was claimed by the plaintiff in the court below, and is claimed here by her as appellant under her assignments of error, that the Independent Brewing Association is a guarantor or surety on the lease; that the judgment should have been against both defendants for the balance for rent claimed to be due in addition to the sum of $134.45 paid by appellant for taxes; that the provisions of the lease as to the amount of rent accruing are still in force; that the agreement for reduction relied on by the appellees was without consideration—a nudum pactum—and. in violation of the Statute of Frauds; that the provisions of the lease could not be modified by parol, and that the liquidated and undisputed sum due appellant by the terms of the lease could not be satisfied by the payment of a less sum; that therefore this suit was sustainable for the difference between the amount reserved by the lease and the amount paid, and that the Independent Brewing Association, as well as Dunne, was liable for the same, and that the Association as surety on the lease had not been released.

We do not think that as applied to this case these contentions can be sustained.

The Independent Brewing Association is sued in an action of debt as having undertaken by deed to pay certain money. It has neither signed nor sealed any covenant, contract or deed to do so. It has placed its name under the signatures of the parties to a contract which explicitly and expressly refers to those particular parties and to those particular parties or to one of them, only, in every one of its clauses. It, however, is not pretended that by so placing its name it became either first or second party to the lease—either lessor or lessee. Such a pretention would be absurd and is not made. For aught that appears on the face of the instrument, its signature might be that of a witness. But the contention of the plaintiff amounts to this: That a sealed signature to an instrument may be supplemented by parol testimony to show that the signature constituted a deed of covenant entirely different from but collateral to the instrument signed, the terms of which deed can be supplied by the parol testimony.

This is not a case in which the signer is really a party to the deed signed, his name being omitted by mistake; nor a case of ambiguity in the meaning of terms; nor a question of the obligations under the law merchant of a party to a negotiable instrument; and we think the language of the Supreme Court in Lancaster v. Roberts, 144 Ill. 213, is applicable:

“It would seem * * * upon reason and principle that where a third person merely annexed his name to a contract which in the body of it does not mention him, and which is in itself a complete contract between other parties who sign it and are mentioned in it, such third person does not thereby become a party to the efficient and operative parts of the contract. His signature in such case can only be regarded as an expression of his assent to the act of the parties in making the contract, and may perhaps operate as an estoppel against his assertion in the future of an adverse interest in the subject-matter of the agreement.”

We think, as against the Independent Brewing Association in this action, both the lease and the testimony introduced to explain the signature of the Association to it, were incompetent, and in any event, furnished no ground for holding the Association liable for any part of the claim sued for. Therefore, the judgment, so far as the Independent Brewing Association is concerned, is correct and should be affirmed. But in our view of the matter, this is important only as relieving this defendant from the liability found by the court below to rest on John E. Dunne to repay Mrs. Doyle the amount of the taxes and assessments levied in 1902, but paid by her in 1903. For we think, as did the court below, that this is all for which Dunne is liable.

We do not think it necessary to discuss the question whether, had the Independent Brewing Association been originally liable in an action of debt as surety on the lease, the subsequent action of the parties to it would have released it, for the conditional hypothesis seems to us plainly against the fact.

That Dunne is liable in this action for the difference between the amount he has paid and the amount reserved by the lease, is deduced by the plaintiff’s counsel from the doctrine of such cases as Loach v. Farnum, 90 Ill. 368, and Goldsbrough v. Gable, 140 Ill. 269, which hold that a parol agreement to reduce rent, entered into by a lessor without consideration, is a mere nudum pactum, not binding, and not susceptible of being enforced; from such cases as Chapman v. McGrew, 20 Ill. 101; Alschuler v. Schiff, 164 Ill. 298, and Ryan v. Cooke, 172 Ill. 302, which hold that an instrument under seal cannot be modified by parol, and from those cases which hold that the payment of a less sum where a greater liquidated and undisputed sum is due, is not a satisfaction of the greater sum.

But as the Supreme Court noted in Snow v. Griesheimer, 220 Ill. 106, the rules of law thus laid down, even in executory contracts, defeat the intention of the parties and should not be unduly extended.

And in the cases cited on leases the doctrine is simply that so long as the contract contained in the lease under seal remained executory, the plaintiff had a right to repudiate the parol agreement and claim the full amount of rent contracted for, while in the Snow case the converse is explicitly recognized, that “If the parties have executed the contract as modified, so that nothing remains to be done by either party, it is no longer executory and the contract as executed will -not be disturbed.” The court in Snow v. Griesheimer follows the words just quoted with a statement which, if we substitute “1903” for “1.898,” exactly conforms to our view of the situation here:

“The lease expired April 30, 1898, before suit was brought, and the evidence tended to show that it had been fully performed on both sides. The fact that it had been so performed could be shown in defense of the suit.”

Counsel for plaintiff seek to distinguish Snow v. Griesheimer from the case at bar, on the ground that the testimony in Snow v._ Greisheimer tended to show a consideration for the reduction of rent, while in the present case no such consideration was even claimed. But the whole tenor of the opinion in Snow v. Greisheimer shows that this was not the test applied. It was the difference between an executed and executory contract which was insisted on. And the opinion in Goldsbrough v. Gable (supra) suggests the difference between that case and the present one, and the ground on which the finality of the settlement of rent charges between the parties in the case at bar should be sustained, when it says: “Nor can it be held that the agreement has the effect of an executed gift as to the difference between the $50 and the $70 per month, because there was executed no receipt or release for the amount, and there was no proof of any action equivalent thereto.”

In Goldsbrough v. Gable it would appear that the amounts paid were paid at random on account, the dif-* ference between the parties being that the defendant claimed that they were paid on account of the reduced amount which he said had been agreed on; the plaintiff that they were paid on account of the original amount reserved by the lease. The question thus was, whether the executory agreement could be supported as a gift—not, as in this case, whether the settlements made, as we have indicated the evidence clearly shows, we think, they were made each month for the rent of the preceding month, involved each month an executed valid gift of the ten dollars “deficit,” if so it may be called. Such a gift was clearly expressed iu each of the receipts dated respectively July 30th, September 9th, November 1st, December 24th, December 31st, 1897, February 2nd, March 2nd, and April 7th, 1898, and we cannot doubt, from the whole course of the dealings, was clearly involved and implied in the intervening one of October 1st, 1897, and all those subsequent to April 1, 1898. It is the actual executed waiver and release of the difference in the rents, not the “agreement” made without consideration, which was thus sustained as a gift by the trial judge when he declined in a suit begun almost a year after the contract of lease had terminated and expired by its terms, and the accordant surrender of the premises, to hold the lessee liable for money from the payment of which the evident intention and understanding of the parties —as understood by both of them—was that he should be and had been released.

We think the decision was correct, and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Patrick Kennedy, Appellant, v. City of Chicago, Appellee.
    Gen. No. 14,003.
    1. Instructions—upon doctrine of assumed risk approved. An instruction with respect to the doctrine of assumed risk as follows, approved:
    “The jury are instructed that the plaintiff in becoming an employe of the defendant as a laborer assumed the ordinary risks, hazards and dangers incident to the work in which he was engaged, and if you believe from the evidence that the plaintiff was injured by reason of the caving in of the earth in a ditch in which he was working, and that the risks, hazard or danger of such caving in was an ordinary one, incident to the work, then plaintiff cannot recover, and the jury must find the defendant * * * not guilty.”
    2. Instructions—upon duty to decide case according to evidence and instructions of court approved. An instruction upon this subject as follows, held subject to some criticism but not a reason for reversal.

      “The court instructs the jury that in considering this case, it is not only your duty to decide the case according to the weight of the evidence, but it is also your duty to decide it according to the law as given you by the court, applied to the evidence. While it is true that the attorneys for the respective parties may state to you what they believe the law to be and base arguments thereon, still under your oaths and under the law you have no right to consider anything as law except the court gives you an instruction in writing to that effect, or in other words, you should consider only that as law which is given you by the court in his written instructions, and decide the case accordingly.”
    Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    Richolson & Levy, for appellant; C. Stuart Beattie, of counsel.
    Edward J. Brundage and John R. Caverly, for appellee; Edward C. Fitch, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of nil capiat and for costs against the appellant, who was plaintiff below, and in favor of the city of Chicago, who was the defendant below.

The action was for personal injuries suffered by the plaintiff while working as a laborer for the city in a ditch on Elburn avenue between Ashland avenue and Laflin street in said city. He was engaged with other laborers in digging a trench five or six feet deep, in which to lay a water-main pipe, and also in finding taps in an old and smaller main laid four or five feet below the new one, so that the house connections would be made with the new pipe.

The plaintiff, under orders, was digging and looking for a tap in this trench, when a portion of its north bank caved in from the top. . The plaintiff was covered by the clay to some point on his body, concerning which the witnesses, differ. The plaintiff, who was confirmed by another witness, says he was covered up to his head. Several of his ribs were broken, and he was at the hospital two weeks and confined to his bed a longer time, and claims to have been permanently injured.

The plaintiff’s claim against the city was based on the proposition that the plaintiff was ordered to work in the trench at a point where it was unsafe and not properly protected against the cave or slide which occurred. The defense, outside of the question as to the extent of the injuries, was based upon the proposition that the conditions showed no negligence in setting the plaintiff to work at this point without shoring or bracing in the trench, and that whatever risk of an accident like this existed was assumed ..by the plaintiff, who had been doing ditch work and making tap connections for the city for six or seven years, and had worked for it altogether seventeen or eighteen years. He had been working in this particular excavation for about two weeks, and within thirty feet of the place of the accident on the last working day before. He was familiar, therefore, with the soil through which the excavation ran.

It is unnecessary to discuss the evidence on these questions involved, for they were plainly for the jury and they were left to the jury. A peremptory instruction for the defendant was denied. It is sufficient to say that a consideration of the evidence does not show that we should be justified, on the ground that it was against the manifest weight of the evidence, in disturbing the verdict rendered by the jury for the defendant.

The only question that remains, therefore, is whether the instructions contained- reversible error. We do not think they did.

The plaintiff tendered two only, which were both given. The defendant tendered nine, which were all given. Three of them are complained of by the plaintiff. The first of these three is the following:

“The jury are instructed that the plaintiff in becoming an employe of the defendant as a laborer assumed the ordinary risks, hazards and dangers incident to the work in which he was engaged, and if you believe from the evidence that the plaintiff was injured by reason of the caving in of the earth in a ditch in which he was working, and that the risks, hazard or danger of such caving in was an ordinary one, incident to the work, then plaintiff cannot recover, and the jury must find the defendant, the city of Chicago, not guilty.”

The appellant says: “This was all the law given in any instruction as- to the duty of the master or the reciprocal duty of the servant during the employment, and of course does not touch our theory of special hazard, so fully declared in the Haenni case.”

The doctrine referred to in the Haenni case, 146 Ill. 626, is thus quoted from that case by the appellant’s counsel:

“As to the master’s duty to give notice, the law is that if there are latent defects or hazards, incident to an occupation, of which the master knows or ought to know, and which the servant from ignorance or inexperience is not capable of understanding and appreciating, it is the duty of the master to warn or inform the servant of them.”

We do not think there is anything in the instruction inconsistent with the doctrine of the Haenni case. It speaks of “ordinary hazards,” not latent or special ones, and compels the jury to find the hazard of “caving in,” “an ordinary one, incident to the work,” before they could find the defendant not guilty under it.

Neither in the declaration nor in any instruction offered by the plaintiff was there any indication of a theory that the danger of caving in was one which “the master knew or ought to have known,” and which “the servant from ignorance or inexperience was not capable of understanding and appreciating. ’ ’

Ñor in our'opinion did the evidence tend to support any such theory. If the plaintiff relied on it and wanted an instruction on assumption of risk supplemf>nting the one given, which certainly stated the law correctly as far as it went, he should have asked for it. The second instruction complained of is this:

“The court instructs the jury that in considering this case, it is not only your duty to decide the case according to the weight of the evidence, but it is also your duty to decide it according to the law as given you by the court, applied to the evidence. While it is true that the attorneys for the respective parties may state to you what they believe the law to be and base arguments thereon, still under your oaths and under the law you have no right to consider anything as law except the court gives you an instruction in writing to that effect, or in other words, you should consider only that as law which is given you by the court in his written instructions, and decide the case accordingly. ’ ’

We think the last clause in this instruction is unfortunately worded, but we do not think it misled or could have misled the jury as applied to this case at all. It meant to them undoubtedly what the first half of the instruction correctly expressed—that it is to the court and not to the lawyers that they were to look for the law; that they were not, as they would have been in a criminal case, judges of the law as well as of the facts; that they were bound to consider that to be the law which the court told them was the law, and were not bound to believe that to be the law which the counsel in their arguments might assert to be the law. So understood the instruction stated entirely correct principles, and it cannot be presumed that it was understood otherwise, or that the jury believed that the whole field of the law had been covered by the court in his instructions, and that they were not at liberty to ask even for further enlightenment on any subject.

We do not think that the instruction concerning the due care required by the plaintiff was erroneous or so inapplicable as to mislead the jury or prejudice the plaintiff.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    International Salt Company, Appellee, v. Robert G. Tennant, Appellant.
    Gen. No. 14,019.
    1. Insurance—what does not operate as an ipso facto cancelation of a Lloyd’s policy. Held, that the Lloyd’s policy involved in this suit, the going into effect of which was dependent upon the existence of another policy of insurance, did not ipso facto terminate upon the cancelation of such collateral policy.
    2. Contbacts—when custom binding; when not. A custom to bind a party to a contract must be known to the party sought to he bound or be so universally established as to be presumed to be within the knowledge of such party.
    3. Insurance—when proof of notice waived. Proof of notice of a fire within the time allowed by the policy, held waived by the placing of the defense on another ground in the court below.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    William E. Olotes, for appellant.
    Robert S. Iles and Robert D. Martin, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

■ The judgment appealed from in this case was for $144.06, and was rendered by the Circuit Court sitting without a jury and trying de novo an appeal from a justice of the peace in Cook county. Before the justice the plaintiff, the International Salt Company, had recovered a judgment against the defendant, Robert G-. Tennant, for $125.28, and the judgment in the Circuit Court was for the same amount with interest added for the interval between the trials. It is assigned here as error that the judgment was against the law and the evidence, and that the court received improper evidence and excluded proper evidence at the hearing.

The suit was upon a so-called “Lloyd’s” insurance policy, which was produced in evidence, in and by which the defendant, Robert G-. Tennant, with nine other persons, under the name of “Tennant’s Fire Underwriters,” in consideration of a premium of $46.50, bound themselves to pay to the said International Salt Company of Ulinois, all loss or damage by fire between November 17, 1902, and November 17, 1903, on merchandise belonging to or in possession of said company in South Chicago, to the amount of $2,500, within sixty days after such loss was proved. But the liability of any one of the ten underwriters was not to exceed his proportionate part of the entire liability resting on the ten; that is, each underwriter insured for $250; nor in case of partial loss was the liability of any underwriter to exceed a sum which should bear the same proportion to the amount of loss recoverable under the policy as the amount of such underwriter’s subscription should bear to $2,500.

The following provisions are in the policy:

“This policy is issued on the representation and with the warranty by the assured that the Phoenix Insurance Company of New York have a policy or policies in force on the identical property described herein during the existence of this policy to the amount of at least $50,000, in form concurrent herewith on the identical subject-matter, and in identically the same proportion on each separate part thereof.
“It is hereby further warranted and is a condition on which this insurance is based, that this policy is subject to all the clauses, conditions, rates and proportions, and will follow identically the same adjustment and settlement of any loss that may be sustained under this policy, as that made on policy or policies above issued by the Phoenix Insurance Company of New York.
“This policy can be canceled at any time at request of insured by surrender of policy to Robert Gr. Tennant, attorney, said Robert Gr. Tennant retaining for the underwriters the customary short rate, or policy may be canceled by the said Eobert Gr. Tennant, attorney, or either of the underwriters hereto by giving five days’ notice of such cancelation to the insured, and surrendering to the insured the unearned portion of the premium actually paid to said Eobert Gr. Tennant. This policy is made and accepted, subject to the foregoing stipulations and conditions, together with such other provisions or agreements or conditions as may be endorsed hereon or added hereto, and no one shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions, no one shall have power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached.”

There was a policy covering the same property issued by the Phoenix Insurance Company on May 15, 1902, and running from the 24th day of May, 1902, to May 24, 1903, in existence at the time that the Tennant policy was issued on November 18, 1902, and the Tennant Underwriters made no separate investigation of the risk, but issued their policy, as was their custom, on the faith of the previous issue of the Phoenix policy. The Phoenix policy contained, however, the usual provision that it might be canceled at any time by the company on giving five days notice of such cancelation, and on April 20, 1903, the Phoenix Company gave notice of cancelation to the firm of Moore, James, Lyman & Herrick, who were the insurance agents who placed the order of the International Salt Co. for insurance both with the Phoenix Company and the Tennant Underwriters. Mr. Moore of that firm testified:

“We as insurance agents representing a number of insurance companies, receive orders from people desiring insurance. We undertake to fill their orders for insurance—that is, as far as we are agents for them. ’ ’

The custom, he said, was to send cancelation notices to the agents who placed the ihsurance.

Moore, James, Lyman & Herrick received the cancelation notice of the Phoenix policy, which was given as of April 20, 1903, and purported to effect the cancelation of the policy on April 25th. The International Salt Company, unless the knowledge of Moore, James, Lyman & Herrick was its knowledge, did not know of the cancelation of the Phoenix policy on April 28th. On that day a fire occurred which damaged to the extent of $71,534.82 the insured property, which was covered by policies (excluding the Phoenix policy) aggregating $142,750.

Mr. Moore testified: “We, as a matter of fact, knew that the cancelation notice” (of the Phoenix Company) “had been served on the 20th. We had no authority to act for the International Salt Company in receiving that notice of cancelation, but in this case we told them we had accepted notice that the policy was canceled on the 25th, three days before the fire; consequently they gave up the policy at my request the morning after the fire.”

Proofs of loss, conceded to be in due form and adequate, and to be for the proper amount if the Tennant’s policy was in force and the Phoenix policy was not, were under date of May 26, 1903, presented by Moore, James, Lyman & Herrick to the “Tennant’s Fire Underwriters” through Mr. Tennant, who was their “attorney in fact” for this insurance business. They were returned by Mr. Tennant and payment refused on the ground that the Phoenix Company must sign them to show that it had adjusted the loss and paid their pro rata proportion of it, before the Tennant Underwriters would be liable for it. The amount claimed by the proofs of loss from the Tennant Underwriters was $1,252.80, for one-tenth of which each underwriter was liable if the amount of the claim was due on the policy. On account of the refusal to pay, suit was brought against the defendant Tennant for $125.80 on September 14, 1903, before Justice Underwood, with the subsequent results before noted.

The defendant has argued in this court that as there was a provision in the Phoenix Insurance Company policy which must be considered as read into the Tennant policy, that “if fire occur, the insured shall give immediate notice of any loss thereby in writing to this company,” and as no evidence was offered by the plaintiff showing any such notice prior to the execution of the proofs of loss twenty-eight days after the fire, the plaintiff cannot recover on the policy.

There is no merit in this contention. If we were willing to hold—which we are not—that failure to notify the insurer of a fire within twenty-eight days necessarily worked a forefeiture, it would be a matter of defense. There is no evidence here that the insurer was not notified “immediately;” the evidence which defendant must refer to in his argument from which he draws this inference is only that of Mr. Tennant that no “proofs of loss” except that marked plaintiff’s exhibit 2 was ever tendered him—a very different thing.

For the proofs of loss sixty days were allowed; they were given in perfectly regular form within thirty. If proof of notice within some shorter time were otherwise necessary, the plaintiff was certainly excused from making it by the explicit placing of the defense, by the defendant himself and his counsel at the trial below, entirely on the absence of the Phoenix Insurance Company from the list of insurers in the proofs of loss, and on the demand that before settlement an adjustment should have been made by the Phoenix Company.

diving the widest interpretation to this claim, it included only these two points: First, that the Tennant policy requiring an adjustment by the Phoenix Company made, in the language of the defendant’s argument, “the Phoenix Company an arbitrator or umpire between the appellee and the appellant and his associates;” and, second, that the cancelation of the Phoenix policy ipso facto canceled the Tennant policy. We do not think either position tenable.

The Tennant policy did read into itself the “clauses and conditions ’ ’ of the Phoenix policy, and that policy provided a method of appraisement and adjustment in the event of a disagreement “as to the amount of the loss,” “the insured and this company each selecting an appraiser,” etc. Beading this into the Tennant policy, however, does not involve making the Phoenix Company an umpire. There was no disagreement “as to the amount of loss” shown, and if there were, the clause in the Tennant Policy would require the selection of an appraiser by the Tennant Underwriters, not by the Phoenix Company.

But there is a clause in the Tennant policy which provides that “this policy * * * will follow identically the same adjustment and settlement of any loss that may be sustained under this policy as that made on policy or policies above issued by the Phoenix Insurance Company;” and it is insisted that this made an adjustment by the Phoenix Company an indispensable condition of liability under the Tennant policy, and that therefore “upon the cancelation by the Phoenix Insurance Company of its policy it became impossible for the contract between appellant and appellee to be carried out according to its terms, and it therefore ceased.” This is equivalent to saying that the existence of the Tennant policy was dependent on the synchronous coincident existence of a Phoenix policy, and that when the Phoenix policy ceased by its expiration or cancelation, the Tennant policy necessarily did the same. This is in fact the chief defense made in this case, and, as we view it, the only significant one. It is based not only on the clause we have last quoted, but also on the provision of the policy that it “is issued on the representation' and with the warranty by the assured that the Phoenix Insurance Company of New York have a policy or policies in force on the identical property described herein during the existence of this policy to the amount of at least $5,000, in form concurrent herewith, on the identical subject-matter, and in identically the same proportion on each separate part thereof.”

The plaintiff’s claim rests on the proposition that this only requires that at the time the Tennant policy was issued, and for an appreciable time thereafter (“during,” that is, in the sense of “in the time of”) a Phoenix policy should be in existence; the defendant’s answer is based on a different interpretation of “during,” which would make it mean “throughout the whole time of.”

In consideration of the undoubted rule that the terms of an insurance policy must be construed most strongly in favor of the insured, and of the facts that a sufficient reason for the existence of the provision appears, if it is construed only as involving a substitute for a separate investigation of the risk by the insurers, who signify it by their willingness to rely on the investigation that must have been made by the Phoenix Company; that it would have been very easy, had that intention been present, by explicit words to have made the cancelation of the Phoenix policy terminate the Tennant policy; that the Phoenix policy, on which the Tennant policy was based (as might by inquiry have been learned by Mr. Tennant if he did not otherwise know it) expired by its own terms through lapse of time on May 24, 1903, while the Tennant policy ran to November 17, 1903, and was paid for until that time, and that the Tennant Underwriters expressly retained the power formally to cancel on five days notice their own policy (which they might have used, but did not use, when the Phoenix canceled its policy), we must hold that the plaintiff’s and not .the defendant’s construction of the clause in question is correct, and that the cancelation of the Phoenix policy did not ipso facto - terminate the Tennant policy.

Nor do we think that the court erred in rejecting the offer of defendant’s counsel to prove by his client “that there is a well known usage and custom in the insurance world, under which * * * the cancelation of the original insurance policy, the warranty policy * * * —in this case the Phoenix policy—operated as a cancelation and termination of this contract of insurance on which this suit was brought, and that that is a well known usage and custom in this state.”

This falls short of offering to prove a custom or usage known to the insured, or so universal and established as to be presumed to be within its knowledge, which state of things alone, if the custom were otherwise competent, would make it binding on the plaintiff, or read it into the contract between it and the defendant.

But in any event, while custom may explain a contract, it cannot make or break a contract, and we think that here the construction of the policy must be determined from the face of the instrument.

There is raised by the plaintiff a question whether the Phoenix policy was itself validly canceled before the fire. We have assumed that it was, since the plaintiff evidently ratified the action of the insurance agents in accepting service of the necessary notice. We are not deciding, however, that such service on the agents was in itself sufficient; we have had occasion to hold the other way in other cases and under other circumstances.

The position of the defendant that the insurance agents, Moore, James, Lyman & Herrick, bound the plaintiff by receiving and retaining a payment for unearned premiums on the Tennant policy from April 20, 1903, to its stipulated termination in November, and that thereby the claim for loss was waived, is manifestly untenable. Mr. Moore’s testimony shows the situation and is apparently confirmed by an inspection of the receipt—defendant’s exhibit 1 in the record. According to a running account between Moore, James, Lyman & Herrick and the Tennant Underwriters, the former, long after the fire, sent a bill for unearned premiums on cancelled policies to the latter. It did not include an item for this policy. On receipt of the bill Mr. Tennant, or some one for him representing the Underwriters, added an item for the International Salt Company policy and two other items (the three items are in a different handwriting and in different ink), and sent a check for the aggregate amount. Moore, James, Lyman & Herrick, who had no authority to consent to any cancelation of the policy or accept return premiums or waive the claim on the policy, crossed out the “International Salt Co.” item of $26.90, and tendered that amount back to Tennant, who refused, for the Underwriters, to accept it. There was nothing in this affecting the plaintiff’s rights.

The judgment of the Circuit Court is affirmed.

Affirmed.