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    Bush v. Hartford Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Conditions of policy — Waiver—Parol waiver — Proofs of loss.

    An insurance company may waive a compliance with any condition of a policy to be performed and observed by the insured, except when the insured by the act loses his insurable interest. The condition is inserted in the policy for the benefit of the insurer, and hence there is nothing to prevent the company from waiving it whenever it may desire. This may be done expressly or by implication; and in either case the company thereafter cannot insist upon a performance of the condition. The law will not permit it to mislead or deceive the holder of its policy by any act or conduct on its part, and thereafter, to his detriment, insist upon full performance of a condition which it has waived.
    An insurance company may waive a condition in a policy by parol although it contains a stipulation that there shall be no waiver of any condition except by an express agreement indorsed on the policy.
    When an insured in good faith transmits to the insurer what he terms sufficient proofs of loss within the time required in the policy, it is the duty of the insurer, if such proofs for any reason are unsatisfactory, to promptly notify the insured, setting forth wherein the proofs do not comply with the conditions of the policy, and thereby give the insured an opportunity to rectify his mistake. Silence on the part of the insurer for any considerable time after the receipt of such proofs of loss, will be taken to be a waiver of the necessity for any further proofs of loss, and such proofs furnished by the insured will be held to be a compliance with the condition of the policy.
    Where an insured sends his proofs of loss in due time and they remain in the possession of the company, and he receives no notice from the company of any objections to the proof nor that they are not in due form and in strict compliance with the policy, and he writes to the company asking if further proofs are desired, without receiving a reply, and interviews are had with the adjusters at which nothing is said about proofs of loss, a jury is justified in finding that the silence of the company until the bringing of the suit constitutes a waiver of the right to demand other or further proofs of loss.
    Where an insured and the insurance company signed a nonwaiver agreement fifty days before the expiration of the sixty days within which proofs of loss were required to be filed, and the insured filed proofs of loss subsequent to the nonwaiver agreement and within sixty days of the fire, and the insurance company by its conduct showed that it does not require other proofs of loss to be filed, the nonwaiver agreement cannot be used to defeat the insured’s allegation of waiver. In such a case as either party could waive his rights under the policy so he could do so under the contract.

      Insurance — Fire insurance — Stock of goods — Sale—Sole ownership.

    Where it appears that a person insuring a stock of goods obtained sole possession of them from their owner under an agreement under which he was required to replace them, if he sold them, or to pay the owner for them at a time specified in the agreement, and the previous owner had under the agreement no control whatever over the goods, and no right to repossess himself of them, the insured has an “unconditional sole ownership ” within the meaning of such words as used in a policy of fire insurance.
    Argued Oct. 6, 1908.
    Appeal, No. 112, Oct. T., 1908, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1907, No. 150, on verdict for plaintiff in case of M. E. Bush v. The Hartford Fire Insurance Company of Hartford, Connecticut.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Patton, P. J.
    The court charged in part as follows:
    The dispute in this case arises, in the first place,, under the sixty-seventh, sixty-eighth and sixty-ninth lines of the policy, where these words are found:
    “If fire occur the insured shall give immediate notice of and loss thereby in writing to this company, protect the property from further damages, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quality and cost of each article and the amount ■ claimed thereon.”
    It was incumbent upon the plaintiff in this case to do that, and to show that he did comply with that requirement he testifies that on the day of the fire he gave notice to young Mr. McLaughlin, the son of the insurance agent, and that he visited the fire on the very day of the fire, and also that Mr. R. M. McLaughlin knew of the fire. Mr. R. M. McLaughlin, the old gentleman, testified that he knew of the fire the day it occurred. There is an act of assembly passed in Pennsylvania in 1883 for the benefit of the insured which simplifies the matter somewhat. That act of assembly sets forth that all that is necessary for the insured to do is to give notice to the local agent' of the company within ten days of the fire, so that that was complied with in this case. We instruct you, first, that after the fire, the insured had to give immediate notice thereof in writing to this company. That, we instruct you, has been complied with in the manner as we have stated. It was also his duty to protect the property from further damage, and separate the damaged from the undamaged property, but under the facts as shown in this case that could not be done, because it was a total destruction of the property. Then he was to make a complete inventory of the same, stating the amount and cost of each article and the amount claimed thereon. That he has attempted to do, as we will directly call your attention to.
    It is not materially objected to that the plaintiff did not comply with that provision of the policy. The serious controversy here arises out of the provision beginning at line sixty-nine in the policy, which is as follows:
    “And within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company signed and sworn to by said insured, stating the -knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of loss thereon, all encumbrances thereon, all other insurance, whether valid or not, covering any of said property, and a copy of all descriptions and schedules in all policies.”
    The. policy provides for a number of other matters which we need not read to you. We instruct you, gentlemen, that the plaintiff, under the law, did not literally comply with that provision of the policy, that he did not comply with it according to law, and if there was nothing else in the case it would be your duty to render a verdict in favor of the defendant, because we instruct you as a matter of law that he did not comply with that provision of the policy which we have read to you.
    The matter which will be for your consideration is this: Did this company, acting through its agents and representatives, so mislead and lull into security this plaintiff from making a strict compliance with the terms of the policy, that on account of being misled and being lulled to sleep by the conduct and actions of these agents, he failed to comply with this provision? If you believe from the testimony and under the instruction that we will give you that they waived a compliance of this part of the policy, then the plaintiff could recover, notwithstanding the fact that he did not comply with the written terms.
    In regard to that you have, first, the meeting on February 13. That was ten days after the fire. Mr. Chapman, who was special agent of the Hartford Fire Insurance Company for Western Pennsylvania, with a certain Mr. Young, came there upon the premises and visited the ruins. They had a talk there with Mr. Bush, in which they asked him in regard to this fire. He told them about this agreement with Mr. Beighley, and they said to him that that would ball up the whole affair. Bush says they requested him to send that agreement and they would adjust the loss; that they would come back as soon as they got the article, and that no complaint was made at that time about no proofs of loss being furnished, and that he was not asked to furnish any other. You have also the testimony of Mr. R. M. McLaughlin at that time, if I recollect the testimony, I believe it was with Mr. Chapman, but that is entirely for the jury, that Mr. Chapman said to Mr. McLaughlin that there would be nothing else to do but pay the loss, and Mr. McLaughlin says that he told Bush that, that he communicated that to Bush.
    At that conversation it is also in evidence that after Mr. Bush had communicated to these agents the fact of this agreement with Beighley, what is called a nonwaiver agreement was entered into. That agreement reads as follows:
    “It is hereby mutually understood and agreed by and between M. E. Bush, of the first part, and the American Fire Insurance Company, of Philadelphia, Penna., and other companies signing this agreement, parties of the second part, that any action taken by said parties of the second part in investigating the cause of the fire or investigating and ascertaining the amount of loss and damage to the property of the party of the first part, caused by fire alleged to have occurred on February 3d, 1907, shall not waive or invalidate any of the conditions of the policies of the parties of the second Dart, held by- the party of the first part, and shall not waive or invalidate any rights whatever of either of the parties to this agreement. The intent of this agreement is to preserve the rights of all parties hereto and provide for an investigation of the fire and the determination of the amount of the loss or damage, without regard to the liability of the parties of the second part. Signed in duplicate this 13th day of February, 1907. M. E. Bush, American Fire Insurance Co., by W. D. Strobe!, Jr., Adjuster, per J. M. Young; Hartford Fire Insurance Co., by Hubert W. Chapman, Special Agent.”
    Then during that same conversation the testimony is that Mr. Young, who was with Mr. Chapman, appeared to do some talking and told Bush that when they got a copy of the Beighley agreement that they would proceed, but- that without it they could not proceed with the adjustment. Gentlemen, you can take into consideration everything that occurred there that day between Mr. Bush on the one side, and Mr. Chapman representing the defendant corporation, and what was said by him, and what was said by Mr. Young in the presence of Mr. Chapman, and determine from that whether or not there was anything there to mislead Mr. Bush or to lull him into a sense of security in not furnishing those proofs of loss.
    The next question that comes is this: There is some dispute in the testimony in regard to the date when these so-called proofs of loss were furnished to the defendant corporation. There is some testimony here that they were forwarded on March 15. There is an envelope offered in evidence which is postmarked on March 15. Mr. McLaughlin says that he mailed these so-called proofs of loss within a month or six weeks. Mr. Strobel, the agent, I believe, testifies that they' were not received until March 24. Now, as we have instructed you, these so-called proofs of loss were not sufficient, and the jury can take this into consideration, that this defendant corporation, if it received those proofs of loss and retained them without making any objection to them, or saying that they were not complete, you can consider that with the other evidence in the case in determining whether or not the plaintiff in this case was lulled into a feeling of security.

      Then we have the meeting, the date of which is disputed. Mr. Bush testifies that some time within the sixty days of the fire he received notice from Mr. McLaughlin, the local agent, to go to Pittsburg and see these people in regard to adjusting the loss. Mr. Bush states that he went to Pittsburg within the sixty days, and that he talked there with Mr. Strobel and Mr. Chapman, and that they said there that the only objection was as to this partnership agreement, and that nothing was said about the proofs of loss. Mr. Nelson was also present at that conversation, and he says that Mr. Strobel, in the presence of Mr. Chapman, said that the company was not liable, and that the policy should have been taken in the name of Beighley, and that there were no objections made as to the proofs of loss.
    Now then, gentlemen of the jury, you can consider that, consider everything that was said by Mr. Bush and Mr. Nelson and Mr. Strobel and Mr. Chapman, and determine whether or not these parties waived a formal proof of loss, or if by their conduct, their actions and their declarations they misled Mr. Bush into believing that it was not necessary to furnish further proofs of loss.
    The next matter we have on the part of the plaintiffs is the construction put upon this contract by their general agent. It seems, from the testimony offered in evidence, that on April 24, Mr. Guthrie, attorney for Mr. Bush, wrote the following letter:
    “George L. Chase, President Hartford Fire Insurance Co., Hartford, Conn.
    “Dear Sir: M. E. Bush, of Paulton, Westmoreland County, was insured in your Company under Policy No. 803 for 12,000 by R. M. McLaughlin and Company, Agents at Apollo, Pa. His store was burned February 3d, 1907, with all its contents. Proofs of loss were furnished by the assured to R. M. McLaughlin, Agent, and by him transmitted to your representative at Pittsburg, George W. Chapman, who visited Paulton several weeks ago for the purpose of adjusting the loss. The matter has not yet been adjusted. If you desire any further information or additional proofs of loss kindly advise me and the same will be furnished.
    “Very truly yours,
    “Walter J. Guthrie,
    “Attorney for M. E. Bush.”
    To that letter an answer was made on April 29, 1907, which is as follows:
    “Walter J. Guthrie, Attorney, Apollo, Penna.
    “Dear Sir: We have your favor of the 24th inst. addressed to President Chase, in reference to claim of M. E. Bush under policy No. 803. We have written to Pittsburg to-day to get further information regarding this matter, and when we do we will advise further.
    “Very truly yours,
    “ Frederick Samson, Gen. Agent.”
    Then again on April 30, 1907, this letter was sent to Mr. Guthrie:
    “Hartford, April 30th, 1907.
    “Walter J. Guthrie, Attorney, Apollo, Penna.
    “Dear Sir: Referring again to your communication of the 24th inst. will say that the claim under our policy No. 803 has been put into the hands of Mr. W. D. Strobel, Jr., No. 309 4th Avenue, Pittsburg, Penna., for answer.
    “Yours very truly,
    “Frederick Samson, Gen. Agent.”
    Then the next communication in relation to this matter is the following:
    “Hartford, May 2d, 1907.
    “W. D. Strobel, Jr., Pittsburg, Pa.
    “Dear Sir: I have your communication of April 30th, in reference to the M. E. Bush claim at Apollo, Pa., agency, and note your remarks in reference to the matter. This is the claim in reference to which we sent a letter from a lawyer within a day or two. I have read very carefully the copy of the contract between Mr. Bush and the owner, Mr. J. H. Beighley. It strikes me after reading the agreement that it is no more or less than the renting of the store. To be sure, there was a valuation of goods which were evidently rented, amounting to $25. We should feel that if this matter should go into court Mr. Bush would be declared owner of the property. Certainly if he has $6,000 to $8,000 involved in this business, and under the contract as between him and the owner of the real estate there is a rental of only $25, I don’t think a jury would consider the question a minute. They would simply say he owns the stock, pay the loss. I" should advise if the loss is straight and honest, making a settlement. I don’t think we have a ghost of a show in court unless you have something else to stand on aside from the contract between these parties. I should advise going on to the ground and settling the loss in some way. If a compromise can be gotten out of it we shall not object to it. If it is an honest loss and the man has the property he claims, it looks to us like a total loss.
    “Yours truly,
    “Frederick Samson, Gen. Agent.”
    [Now, although that letter is written after sixty days had expired you can consider it with the other evidence in the case, in regard to the conduct and actions of the agent in resisting the payment of this loss after receiving that letter from the general agent of the defendant company.] [5]
    On the part of the defendant there is testimony that is for your consideration here of Mr. Strobel. If I understood his testimony, these proofs of loss did not come into his hands until after the sixty days were passed. If that is so, it would not be binding on the defendant corporation. [You will also consider that on February 13, at the time that these men had this conversation with Mr. Bush, that he signed what is known as a nonwaiver agreement. After that was signed, anything said by these men would not be a waiver, but you can consider what was said before this nonwaiver agreement was signed.] [4] In regard to this conversation that occurred in the forepart of April both Mr. Strobel and Mr. Chapman testify that that conversation was on April 15. If that was the case then it would be after the sixty days was up, and anything that was said then would not be binding on this defendant company as a waiver of proofs of loss. There is a dispute in the testimony which the jury will have to reconcile as best you can. Mr. Chapman and Mr. Strobel say that that conversation occurred on April 15, 1907, while Mr. Nelson and Mr. Bush say it took place in the latter part of March or the first of April, or early part of April. If it occurred after the sixty days then the jury could not consider it on the question of waiver. If it occurred within the sixty days then the jury could consider it on the question of waiver.
    [You also have the testimony of Mr. Young and Mr. Chapman as to the conversation that took place with Mr. Bush on February 3. You also have the testimony of Mr. Chapman and Mr. Strobel as to the conversation that took place at this second meeting. The witnesses differ somewhat in details as to what the conversation was, and it will be for the jury to reconcile the testimony as best you can. You will take the testimony as a whole, and determine whether or not by the actions and conduct of the agents of the defendant company they waived a strict compliance with the terms of this policy of insurance, whether or not they so conducted themselves as to lead Mr. Bush into a false belief that a strict compliance with the conditions of this policy would not be required.] [6] Gentlemen of the jury, there is another defense set up by this defendant. In the sixteenth and nineteenth lines of the policy it is set forth as follows:
    “If the interest of the assured be other than the unconditional and sole ownership then this policy shall be void.”
    Now the defendant company alleges that Mr. Bush was not the sole owner of this property, and to substantiate that defense the following agreement was offered in evidence:
    “Article of Agreement made this 1st day of March,. 1904, between J. H. Beighley of the first part and Bush and Crawford of the second part. Witnesseth: That the said party of the first part does hereby, lease and let unto the said parties of the second part from the 1st day of March, 1904, for the term of two years, for the yearly rental, three hundred dollars, payable in monthly installments of twenty-five dollars each, the following described property, namely, the two-story frame store building, including ware room and sheds, situated in the village of Paulton; also his entire stock of goods and fixtures contained in said store building amounting to $2,500, together with horse, harness and wagon valued at $
    The party of the first part agrees to relet the said building and stock unto the said parties of the second part at the expiration of this lease for a term of one, two, three, four or five years at the same rental and on the same terms. The party of the first part agrees to give the party of the second part ninety days’ notice should he wish them to quit at the expiration of this lease, and the said second parties agree to give the said first party ninety days’ notice should they wish to quit at the expiration of the lease. The said second parties agree to leave the building in as good condition as at the time of leasing, .damage by fire and the natural wear of the building excepted. The party of the first part agrees to take the entire invoice and turn over all papers should the said second parties decide to quit at the expiration of this lease. Should the. amount of invoice be less than that .at which it was taken, then the said second parties agree to pay the said first party the difference in cash. The party of the first part agrees to sell at the amount of this invoice to the parties of the second part at any time said second parties decide to buy. In the event of the parties of the second part buying said invoice, then the party of the first part agrees to rent the said building to the parties of the second part for a term of two years at the monthly rental of fifteen dollars. The said second parties are given the privilege of again renting said building for term of one, two, three, four or five years at the expiration, of said term. The party of the first part agrees that he will not engage in the store business during the life of any lease with the parties of the second part within a radius of two miles of Paulton.
    “J. H. Beighley,
    “Bush arid Crawford,
    “M. E. Bush,
    “M. M. Crawford.”

      [Gentlemen of the jury, in regard to that paper we instruct you as a matter of law that Mr. Bush was sole and unconditional owner of the property and comes within the requirements of that part of the contract. Although the parties used the word “lease” and “let,” yet in our opinion that paper did not constitute what is known in law as a bailment, and Mr. Bush was the sole owner of the property at the time he effected the insurance.] [3]
    On the part of the defendant we have been asked to answer the following point:
    1. That under the law and all the evidence in the case the verdict of the jury should be for the defendant.
    ■ That point is refused, but we reserve the question with the privilege of entering judgment non obstante veredicto.
    Gentlemen, the main question before you is this: Did these agents of this insurance company waive a strict compliance with the terms of this policy in regard to the proofs of loss, or did they so conduct themselves as to mislead Mr. Bush into not strictly complying with the terms of the policy. If the jury believes that they did, then your verdict should be in favor of the plaintiff for the sum of $2,000, with interest from sixty days after proofs of loss were waived, say interest from June 3, last. But if you find that these agents did not mislead Mr. Bush, that he was not lulled to sleep by their conduct, and that they did not waive a strict compliance with the terms of the policy, then your verdict should be in favor of the defendant company.
    Verdict and judgment for plaintiff for $2,060. Defendant appealed.

      Errors assigned were (3-6) above instructions, quoting them.

      W. K. Jennings, with him Dale C. Jennings and Ross Reynolds, for appellant.
    If the nonwaiver agreement means anything it means that nothing done by the parties should be considered a waiver: Desilver v. Ins. Co., 38 Pa. 130; Freedman v. Insurance Co., 175 Pa. 350.
    The insured could not have been misled in the present case. If the alleged denial of liability occurred before the expiration of the sixty days the company was protected by the nonwaiver agreement; if it occurred after that time the plaintiff’s day of grace had expired and nothing but the express agreement of the company could renew or revivify the contract.
    The plaintiff did not have the sole and conditional ownership of the goods: Schroedel v. Humboldt Fire Ins. Co., 158 Pa. 459; Bateman v. Lumbermen’s Ins. Co., 189 Pa. 465; Mt. Leonard Milling Co. v. Liverpool & London & Globe Ins. Co., 25 Mo. App. 259; Duda v. Home Ins. Co., 20 Pa. Superior Ct. 244; 2 Clement on Fire Ins. 170; Phœnix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187 (37 S. W. Repr. 959); Ehrsam Machine Co. v. Phœnix Ins. Co., 43 Neb. 554 (61 N. W. Repr. 722); Westchester Fire Ins. Co. v. Weaver, 70 Md. 536 (17 Atl. Repr. 401); Lasher v. St. Joseph Fire, etc., Ins. Co., 86 N. Y. 423; Kompa v. Fire Ins. Co., 28 Pa. Superior Ct. 425; Elliott v. Teutonia Ins. Co., 20 Pa. Superior Ct. 359; Rowe v. Sharp, 51 Pa. 26; Stadtfelt v. Huntsman, 92 Pa. 53.

      J. W. King, with him W. J. Guthrie, for appellee.
    Waiver of proofs of loss is a question for the jury to decide: Oswalt v. Insurance Co., 175 Pa. 427; Southern B. & L. Assn. v. Insurance Co., 23 Pa. Superior Ct. 88; Sutton v. Insurance Co., 188 Pa. 380; Cummins v. Insurance Co., 197 Pa. 61; Davis Shoe Co. v. Insurance Co., 138 Pa. 73; Moyer v. Sun Ins. Office, 176 Pa. 579; Earley v. Insurance Co., 178 Pa. 631; Hower v. Insurance Co., 9 Pa. Superior Ct. 153; Davidson v. Guardian Assn. Co., 176 Pa. 525; Freedman v. Fire Assn., 168 Pa. 249; Snowden v. Insurance Co., 122 Pa. 502.
    Appellee was the sole and unconditional owner of the property: Gillespie v. Iseman, 210 Pa. 1; Kronk v. Insurance Co., 91 Pa. 300; Phila. Tool Co. v. Assurance Co., 132 Pa. 236; McKeesport Machine Co. v. Insurance Co., 173 Pa. 53.
    Possession and acts of ownership are prima facie evidence of ownership: Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102; Winnesheik Ins. Co. v. Schueller, 60 Ill. 465; Swingle v. Sun Ins. Office, 33 Pa. Superior Ct. 261.

      January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

It is well settled that an insurance company may waive a compliance with any condition of a policy to be performed and observed by the insured except, as it has been held, when the insured by the act loses his insurable interest. The condition is inserted in the policy for the benefit of the insurer, and hence there is nothing to prevent the company from waiving it whenever it may desire. This may be done expressly or by implication; and in either case the company thereafter cannot insist upon a performance of the condition. The law will not permit it to mislead or deceive the holder of its policy by any act or conduct on its part, and thereafter, to his detriment, insist upon full performance of a condition which it has waived. As said by Chief Justice Church in Brink v. Hanover Fire Insurance Company, 80 N. Y. 108: “Every consideration of public policy demands that insurance companies should be required to deal with their customers with entire frankness. They may refuse to pay without specifying any ground, and insist upon any available ground; but, if they plant themselves upon a specified defense, and so notify the assured, they should not be permitted to retract after the latter has acted upon their position as announced, and incurred expenses in consequence of it.”

In Freedman v. Fire Association, 168 Pa. 249, this court, in an opinion by our Brother Fell, said (p. 254): “The trend of our decisions has been to hold insurance companies to good faith and frankness in not concealing the ground of defense and thus misleading the insured to his disadvantage. They may remain silent except when it is their duty to speak and the failure to do so would operate as an estoppel; but having specified a ground of defense, very slight evidence has been held sufficient to establish a waiver as to other grounds.”

It is also settled law that an insurance company may waive a condition in a policy by parol although it contains a stipulation that there shall be no waiver of any condition except by an express agreement indorsed on the policy. This rule is stated as follows in 16 Am. & Eng. Ency. of Law (2d ed.), 935, with a citation of authorities sustaining it: “This rule (permitting the waiver of a condition by parol) applies notwithstanding stipulations in the policy that nothing less than an express agreement indorsed on the policy shall be effectual for that purpose, since such a stipulation is itself a condition and is as capable of being waived or dispensed with as any other condition of the instrument, and since parties to contracts cannot so tie their wills as to be unable thereafter to do by consent what the law allows.” And in 19 Cyclopedia of Law & Procedure, 777, it is said: “Even a stipulation that the conditions of a policy cannot be waived, or if waived at all only in a certain manner, may itself be waived.” Nor can an insurance company after alleging or setting up a certain breach of the policy as a forfeiture be permitted subsequently to defend an action on the policy on the ground of different or other breaches of the contract. It has been generally held that if the insurer after a loss has occurred claims a forfeiture for noncompliance with certain conditions of the policy, it cannot be heard afterward to assert further or different breaches as a defense: 19 Cyclopedia of Law & Procedure, 793'; Western, etc., Pipe Lines v. Home Insurance Company, 145 Pa. 346.

Another well-settled principle, applicable to the case in hand, is that when the insured in good faith transmits to the insurer what he terms sufficient proofs of loss within the time required in the policy, it is the duty of the insurer, if such proofs for any reason are unsatisfactory, to promptly notify the insured, setting forth wherein the proofs do not comply with the conditions of the policy, and thereby give the insured an opportunity to rectify his mistake. Silence on the part of the insurer for any considerable time after the receipt of such proofs of loss, will be taken to be a waiver of the necessity for any further proof of loss, and such proofs, furnished by the insured, will be held to be a compliance with the condition of the policy. In Gould v. Dwelling-House Insurance Company, 134 Pa. 570, the present chief justice, delivering the opinion, formulates the rule from our decisions on this subject as follows (p. 588): “ If the insured, in good faith, and within the stipulated time, does what he plainly intends as a compliance with the requirements of his policy, good faith equally requires that the company shall promptly notify him of their objections, so as to give him the opportunity to obviate them; and mere silence may so mislead him to his disadvantage, to suppose the company satisfied, as to be of itself sufficient evidence of waiver by estoppel.” This rule has since been approved and enforced in many cases, the more recent of which are Welsh v. London Assurance Corporation, 151 Pa. 607; Moyer v. Sun Insurance Office, 176 Pa. 579.

Under the facts, as they appeared at the trial, and the law applicable thereto, it was a question for the jury to determine whether the defendant company had by its action and conduct waived any further proofs of loss than those furnished by the plaintiff. It is apparent throughout the case that the plaintiff acted with the utmost good faith towards the defendant company in regard to his loss. Immediately after the fire, he notified the local agent who countersigned the policy of the loss, and at the plaintiff’s suggestion the agent at once notified the company. This notice was on a form furnished by the company for that purpose; and hence was in due form and conveyed to the company the necessary, information concerning the fire. The company evidently acted upon this notice because within a few days thereafter its own special agent, Chapman, with the adjuster of the American Fire Insurance Company, which also had an insurance of $2,000 on the same property, appeared at the scene of the fire. Shortly thereafter, on the same day, these agents of the companies had an interview with the plaintiff in a local hotel. The company’s local agent at Apollo testified that on this occasion Chapman “admitted that it was a total loss; he talked very reasonably about it, and I supposed that there would be nothing else to do but to pay it unless something else turned up.” From the testimony, it is apparent that the loss would have been adjusted then and there had it not been for an incidental remark of the plaintiff that he still owed $2,000 on the goods which had been consumed by the fire. The plaintiff testifies that when the adjusters learned this fact, they declined to proceed further with the adjustment until they had a copy of the contract between the plaintiff and Beighley, from whom he had procured the goods, and that they then said they would “ come back and complete the adjustment.” So far as appears from the evidence, nothing was said at this interview about the proofs of loss or that any would be demanded. The plaintiff, however, in about a month thereafter, had prepared an inventory or statement in detail of the goods destroyed, verified by the affidavits of himself and the clerk who assisted him in making the inventory, and then handed it to the local agent of the defendant company by whom it was, on the same day, sent to one of the adjusters at Pittsburg, where Chapman, the special agent of the defendant company, saw and had access to it. The company failed to notify the plaintiff of any objection to this proof of loss, or in any way to intimate to him that it was not satisfactory and in conformity with the requirements of his policy. So far as he knew, therefore, he had complied with the condition of his contract requiring him to furnish proofs of loss and had no reason to believe that the proofs furnished were in any respect objectionable to the defendant. Again, and within sixty days from the time of the fire, the plaintiff with a friend, at the request of Chapman, met him and Strobel, the adjuster of the American Fire Insurance Company, at the latter’s office in Pittsburg “for the purpose (as stated by Chapman) of ascertaining if Bush would agree to an offer of compromise settlement.” The conversation at this interview related entirely to the plaintiff’s loss and offer of compromise by Chapman. Not a word was said by either of the adjusters in regard to the proofs of loss or that they were insufficient or did not comply with the conditions of the policy. A compromise was suggested on the part of the adjusters on the basis of the satisfaction of the claim on payment of one-half of the amount of the insurance. The plaintiff at once declined to accept the proposition and insisted upon the payment of the full amount of the policy.

On April 24, 1907, Bush’s attorney wrote the defendant company stating that his client held their policy for |2,000 on his goods; that they had been totally destroyed by fire; that proofs of loss had been furnished; that its agent had visited Paulton several weeks prior thereto to adjust the loss, that the matter had not been adjusted, and concluding: “If you desire any further information or additional proofs of loss kindly advise me and the same will be furnished.” The company’s general agent replied on April 29, acknowledging receipt of the letter and saying he had written to Pittsburg for further information and would advise further. The next day, the general agent again wrote in reply that the claim had been put in W. D. Strobel’s hands for answer. No objection to the proofs of loss was made in the replies of the company’s agent nor an intimation of any defense to the claim.

If these several facts were established, of which there was ample proof to go to the jury, the jury was fully justified in finding that the defendant company did not intend to insist upon further proofs of loss than those furnished by the plaintiff. It is manifest, we think, that the loss would have been adjusted at the first interview on February 13, if nothing had been said about the indebtedness of the plaintiff to Beighley and the contract under which he held the goods. A further consideration of the adjustment, if the evidence is believed, was postponed by the adjusters simply because of the doubt arising in their minds of the right of the plaintiff to recover by reason of his not being the sole owner of the goods which were insured. The same objection to the claim, although manifestly not regarded by them as substantial, was in the minds of the adjusters when the plaintiff subsequently met them at their request in Pittsburg to attempt a compromise. At that time the plaintiff had sent his proofs of loss and they were in the possession of the company. He had received no notice from the company of any objections to the proofs nor that they were not in due form and in strict compliance with the policy. The Pittsburg interview also passed off without any intimation on the part of the company or its agent that the proofs were not sufficient. The jury was therefore fully justified in finding that the silence of the company until the bringing of the suit was, under the circumstances, a waiver of the right to demand other or further proofs of loss. Under the authorities cited, the testimony clearly made the question one of fact for the jury, and the court properly submitted it.

It may well be admitted that the counsel for the plaintiff made a mistake when he advised his client to sign the nonwaiver agreement. There was absolutely no necessity for this agreement, if the company intended to carry out in good faith its contract with the plaintiff. The agreement was signed by the plaintiff when the adjusters came to the scene of the fire on February 13, at least fifty days before the expiration of the sixty days within which propfs of loss were required to be filed. The interim was amply sufficient for the company to investigate the cause of the fire and ascertain the amount of loss, and to affirm or deny its liability. There was, therefore, no necessity for an agreement “to preserve the rights of all parties,” and the only effect of such an agreement was to supply the company with evidence to defeat the plaintiff's allegation of waiver.

But the agreement does not necessarily defeat the plaintiff's right to recover in this action. It was simply a part of the evidence which was submitted to the jury to determine whether the defendant company had waived its right to insist upon other and more formal proofs of loss. As pointed out above, aside from this agreement, the evidence was ample to justify the jury in finding that there had been a waiver of the proofs of loss. The nonwaiver agreement was signed by the plaintiff on February 13. It was subsequent to that date and within sixty days of the fire, that he furnished the proofs of loss to the company through the local agent. By its conduct on the various occasions referred to in the evidence, did the defendant intend to waive its rights under the policy to require other proofs of loss, and was the evidence sufficient to warrant the jury in so finding? If this agreement had been inserted in the policy in the first instance, instead of being made part of it by subsequent agreement, the defendant company could undoubtedly have waived all its rights thereunder. This proposition is clearly supported by the authorities we have cited above. The parties to this contract were the parties to the policy, and as either party could waive his rights under the policy, he certainly could do so under the contract. Those who make a contract of insurance can, unless prevented by law, unmake or avoid it, and either party may decline to insist upon the performance of stipulations made for his benefit. We therefore think the learned judge was right, in submitting it as a part of the evidence to the jury to determine the question whether the defendant company had waived its rights to insist upon more formal proofs of loss.

The other defense interposed by the defendant company to the plaintiff’s action is that he was not the sole owner of the property insured. The policy provides that it shall be void “if the interest of the insured shall be other than unconditional and sole ownership.” The plaintiff held this property by a contract with one Beighley. By the terms of that agreement, Beighley leased to Bush the store and also the goods contained in it. The policy involved in this litigation covered the goods. The goods were delivered by Beighley to Bush for a term of two years with the privilege to the latter of retaining them for five years longer or purchasing them if he desired. At the expiration of the lease, Bush was to pay Beighley the difference in the invoices taken at the time he received them and when they were redelivered to Beighley. In the meantime, Bush had sole possession of the goods and the right to sell any or all of them, the difference between the value of the goods in the store at the time he took possession and when he relinquished possession to Beighley, at the end of the lease, being the price he had to pay. Bush, therefore, by this contract between him and Beighley, obtained possession of the goods with the right to sell them, and was required to replace them or pay Beighley for them at the time specified in the agreement. He was required to pay at the end of his lease for the goods which the invoice, then taken, showed to have been sold by the plaintiff, whether it was all or a part of the goods. As testified by Bush: “Mr. Beighley turned the goods over to me and I was to pay for the goods in goods or in cash, it didn’t matter which.” While the goods were in the possession of the plaintiff under the contract, Béighley had no control whatever over them and had no right to repossess himself of them. They were absolutely in the possession and control of the plaintiff and he had the right to dispose of them at any price or any way he saw fit. At the time of issuing the policy insuring the goods and until they were destroyed by fire, it is manifest, we think, that under the contract with Beighley, the plaintiff’s interest in the goods was an “unconditional and sole ownership” within contemplation of the policy. The learned judge was therefore right in so construing the contract.

We may appropriately conclude this opinion by quoting from a letter of the defendant’s general agent to one of the adjusters on May 2, 1907, which shows the interpretation put upon this contract by the defendant company, and further, that if his advice had been taken the company would not now be attempting to defeat an honest claim by the baldest technicality. The letter reads: “ I have read very carefully the copy of the contract between Mr. Bush and the owner, Mr. J. H. Beighley. It strikes me after reading the agreement that it is no more or less than the renting of the store. . . . We should feel that if this matter had to go into court Mr. Bush would be declared owner of the property. Certainly if he has from $6,000.00 to $8,000.00 involved in this business, and under this contract as between him and the owner of the real estate, there is a rental of only $25.00, I don’t think a jury would consider the question a minute. They would simply say he owns the stock — pay the loss. ... I don’t think we have a ghost of a show in court unless you have something else to stand on aside from the contract between these parties. I should advise going on to the ground and settling the loss in some way.”

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Haupt, Appellant, v. Unger.

      Agreement for sale of real estate — Sufficiency of description.

    In an agreement for the sale of real estate the same is sufficiently described as follows: “All of the properties of E. J. Unger, deceased, in Croyle township, together with the Heise and Bertenet additions, including buildings and schoolhouse, and all of the other buildings located on the lands, with the appurtenances thereto, including the coal and minerals of every description.”

      Trusts and trustees — Husband and wife — Title in husband’s name— Vendor and vendee — Evidence.
    On a bill in equity by a vendee against a vendor to compel the conveyance of real estate, where the vendee claims that the vendor purchased the property as his agent, but the vendor’s wife claims that the property was purchased for her with her money and title taken in her husband’s name, the testimony to sustain her claim must be clear, precise, convincing and satisfactory, that the husband took the title for her instead of for himself or his vendee, and that she received from other sources than her husband the moneys with which she paid for the properties.
    Argued Oct. 6, 1908.
    Appeal, No. 92, Oct. T., 1908, by plaintiffs, from decree of C. P. Cambria Co., March T., 1905, No. 3, dismissing bill in equity in case of Herman Haupt and George B. Stineman v. David E. Unger and Catherine M. Unger.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for specific performance. Before O’Con-nor, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Thomas H. Murray, with him James P. O’Lauyhlin and Hazard A. Murray, .for appellants.
    Where a husband takes deed for property, the presumption is that it is his and the burden of proof is on the wife to show the contrary: Dunbach v. Bishop, 183 Pa. 602.
    The testimony for this purpose must be clear, precise, convincing and satisfactory: Olinger v. Shultz, 183 Pa. 469; Hoover v. Hoover, 129 Pa. 201; Lau’s Estate, 176 Pa. 100; Spencer v. Colt, 89 Pa. 314; Cullmans v. Lindsay, 114 Pa. 166.
    The description was sufficient: Ross v. Baker, 72 Pa. 186; Ranney v. Byers, 219 Pa. 332; McKee’s Est., 48 P. L. J. 309; Lulay v. Barnes, 37 W. N. C. 409; Trout v. Trout, 87 Pa. 149; Heppenstall v. O’Donnell, 165 Pa. 434.

      J. Norman Martin, with him F. P. Martin, for appellees.
    The evidence is sufficient to sustain the decree dismissing the bill: Olinger v. Shultz, 183 Pa. 469; Dumbach v. Bishop, 183 Pa. 602; Green v. Brooks, 215 Pa. 492; Callendar v. Kelly, 190 Pa. 455; Burrell Twp. v. Uncapher, 117 Pa. 353; Trickett on Witnesses, p. 57, sec. 63.
    Specific performance is a matter of grace and not of right. The contract is inequitable and the court will withhold its assistance and leave the parties to their legal remedy on the agreement: Pennock v. Freeman, 1 Watts, 401; Brightly’s Equity, sec. 220; Davidson v. Little, 22 Pa. 245; Brightly’s Equity, sec. 218; Chess’s App., 4 Pa. 52; Greenlee v. Greenlee, 22 Pa. 225; Pennock v. Freeman, 1 Walls, 401; Dalzell v. Crawford, 1 Parsons, 37.
    If the land be described, evidence may be admitted in order to apply the description to the land, but the courts will not admit parol evidence, first, to describe the land sold and then to apply the description: Ferguson v. Staver, 33 Pa. 411; Hammer v. McEldowney, 46 Pa. 334; Mellon v. Davison, 123 Pa. 298.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

Nothing could be clearer than that one of these appellees, aided by the other, his wife, has most unconscionably attempted to avoid performance of his agreement with the appellants, and he would succeed but for the decree that has awaited him here since we heard this appeal. On February 23, 1901, David E. Unger, of Croyle township, Cambria county, this state,, entered into an agreement, in writing, with the appellants, the material portion of which is as follows: “For and in consideration of the sum of twenty five ($25) dollars in hand paid, the receipt of which is hereby acknowledged, and for other valuable considerations hereinafter mentioned, said David E. Unger of the first part agrees to option until April 1,1901, to George B. Stineman and Herman Haupt of the second part as above mentioned, all of the properties of E. J. Unger, deceased, in Croyle Township, together with the Heise and Bertenet additions, including buildings and schoolhouse, and all of the other buildings located on the lands, with the appurtenances thereto, includirig the coal and minerals of every description, in fee and sell the same in its entirety, making a good and sufficient deed to the said parties of the second part, as their interests may appear, for the sum or price of seventeen thousand five hundred dollars ($17,500), in payment as follows: Eleven thousand dollars on April 1, 1901, and the balance on April 1,1902. It is further understood and agreed by all parties to this contract that should the parties of the second part fail to make the first payment of April 1, 1901, then this agreement is null and void and not binding upon any of the parties to same.” It may be here noted that the lands are described with sufficient certainty: Ross v. Baker, 72 Pa. 186; Ranney v. Byers, 219 Pa. 332.

On February 23, 1901, Unger was not the owner of the lands which he agreed to convey to the appellants. They belonged to his aunt, Annie C. Unger, having been devised to her by her husband, Elias J. Unger. Immediately after his execution of the agreement to sell the lands to the appellants for $17,000 Unger called to see his aunt in the city of Pittsburg for the purpose of purchasing them from her, evidently that he might be able to carry out his agreement with Haupt and Stineman. With his good faith to her we are not concerned, but the uncontradicted evidence is that he said to her he was unwilling to pay more than $12,000, but finally agreed to pay $14,000, and she executed an agreement to convey the lands to him at that price. Immediately afterwards, on February 27, he reported to the appellants that he had purchased the properties from his aunt, and at his request there was substituted for the agreement of February 21, one executed March 9, 1901, in which the properties are said to contain 216 acres, more or less, and the time for the conveyance of them was extended from April 1, 1901, to October 1, 1901, when the first payment of $9,000 was to be made. The balance was made payable on October 1, 1902. In asking for the extension of the time of the conveyance of the properties from April 1, 1901, to October 1, 1901, Unger said that he did so because his aunt wished him to remain on the farm during the summer of 1901.

On April 1, 1901, Annie C. Unger, in compliance with her agreement with David E. Unger, executed and delivered a deed to him for the properties in controversy, which was recorded on the 16th day of the same month. A distinct finding of fact by the court below is that Unger 'purchased from his aunt “as agent of Herman Haupt and George B. Stine-man.” At the time he entered into the agreement with her he paid' her $25.00, which was the amount of hand money that had been paid to him by Haupt and Stineman. It is true that in its opinion dismissing the bill the court below wandered from its finding that Unger had purchased as agent for Haupt and Stineman, but, as that fact was properly found, it ought to have been consistently followed.

On October 1, 1901, the appellants made a legal tender to Unger, in the presence of his wife, of the sum of $9,000, as required by the option of March -9, 1901, for their purchase of the land. This is another unequivocal finding of the court below. The tender was refused and Unger declined to execute the deed, but not for the reason set up in his answer for trying to repudiate his agreement with the appellants. Not a word was said either by him or his wife at the time of the tender indicating that she claimed to be the owner of the properties. What she then said to him was, “Don’t you dare to sign your name to anything; you know what you have been told.” Another finding of the court is that on October 1, 1902, the appellants went to New Castle, where Unger then resided, prepared to make him a legal tender of the balance required to be paid under the option; that in their effort to make said tender they made two visits to the residence of Unger, and not finding him there, sought him diligently in and about New Castle for the purpose of making the tender, but were unable to locate him, and that the tender was not actually made was not due to any fault on the part of the appellants. Not one of the foregoing facts is contradicted either by Unger or his wife. It is not without significance that he was not called as a witness either in his own behalf or in support of her story. It may be that shame over his bad faith kept him quiet at the hearing.

To avoid conveying to the appellants what Unger has agreed to convey to them, and which he purchased as their agent, the story of the wife is that the land was purchased for her, and her husband holds title to it for her as trustee. She had actual knowledge on October 1, 1901, if not before, that he had agreed t-o sell the land to the appellants, and before that time — on September 20, 1901, — she had constructive notice of this agreement of her husband, for his option to the appellants was on that day recorded in the office of the recorder of deeds for Cambria county. With this knowledge she took a deed from him on September 29, 1902, — just a year after the time he was to have made title to the appellants. Of course all this cannot affect her title, if, as a matter of fact, her husband, on April 1, 1901, actually purchased the properties for her and paid for them with moneys belonging to her; but in this controversy between her and his vendees, in which they ask that he be compelled to convey to them lands in accordance with his agreement, which he purchased as their agent, and the title to which he took in his own name, the testimony must be clear, precise, convincing and satisfactory that he took the title for her instead of for himself or them, and that she received from other sources than her husband the moneys with which she paid for the properties: Olinger v. Shultz, 183 Pa. 469; Dumbach v. Bishop, 183 Pa. 602. Unger paid his aunt $5,000 when he took the deed from her on April 1, 1901, and secured the balance of the purchase money by a mortgage. The payment of $5,000 included four bonds, which Catherine M. Unger, the appellee, testified were her property, having been purchased out of her separate funds. The uncontradicted testimony of George C. Wilson, a most reputable member of the Allegheny county bar, is that he had, several years before, purchased these bonds for David E. Unger, her husband, and that after they were purchased he frequently cut off the coupons due on them and deposited the same to the credit of David E. Unger in the National Bank of Commerce of Pittsburg. Catherine M. Unger testified that she had received $3,000 from her father and $500 from a brother and that this money was' used for the purchase of the bonds which her husband turned over to his aunt in part payment of the purchase money of the property. On cross-examination, however, she was compelled to admit that she had spent about $300 in furnishing her house and had bought five or six horses, varying in price from $75.00 to $150; that she had bought ten -cows, varying in price from $25.00 to $50.00; that she had bought a wagon for $100; that she had loaned a sister $1,000; that she had loaned a brother $300 and had bought two lots in Johns-town, paying for them $600. . She also bought a piano. She further admitted that in 1901 her sister must have owed her part of the loan of $1,000, and that she did not know when her brother paid her back. If she did get $3,000 from her father and $500 from her brother, there was not enough left of these moneys, according to her own testimony, to purchase the bonds. We can recall no case in which a married woman’s claim to property taken by her husband in his own name was sustained on such flimsy testimony as was submitted here. The chancellor ought not to have entertained it for a moment.

The decree of the court below is reversed and the bill is reinstated and it is ordered, adjudged and decreed that the deed from David E. Unger to Catherine M. Unger, dated September 29, 1902, and recorded in the office for the recording of deeds in and for Cambria county in Deed Book, volume 147, page 194, be delivered by the said Catherine M. Unger to the recorder of deeds of the said county, to be by him canceled, with a proper note of the cancellation entered by him in the said Deed Book; and it is further ordered, adjudged and decreed that David E. Unger convey to Herman Haupt and George B. Stineman, the appellants, the lands fully mentioned and described in the deed of Annie C. Unger to him, executed April 1, 1901, as prayed for in the second prayer of the bill, the costs below and on this appeal to be paid by the appellees.


author: Mr. Justice Potter,

text:
    Foster for use v. Allshouse, Appellant.

      Evidence — Witness—Party dead — Judgment note — Forgery—Act of May 23, 1887, sec. 5, d. (e), P. L. 158.
    Where the payee of a judgment note who is also one of the makers of the note assigns the note to another, and thereafter dies, another of the makers of the note is incompetent under the Act of May 23, 1887, sec. 5, cl. (e), P. L. 158, to testify that he did not sign the note or authorize it to be signed for him, and that his alleged signature was in fact a forgery.
    Argued Oct. 7, 1908.
    Appeal, No. 20, Oct. T., 1908, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1905, No. 173, on verdict for plaintiff in case of W. H. Foster for use of Merchants’ Trust Company of Greensburg v. John W. Allshouse.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Issue to determine the validity of a judgment. Before McConnell, J.
    . The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in the rejection of the testimony of John W. Allshouse.

      W. S. Byers and A. C. Snively, for appellant,
    cited: Bank v. Henning, 171 Pa. 399; Dickson v. McGraw, 151 Pa. 98; Strause v. Braunreuter, 4 Pa. Superior Ct. 263; Toomey’s Est., 150 Pa. 535; Ilyus v. Buch, 34 Pa. Superior Ct. 43.

      John B. Keenan and John E. Kunkle, for appellee,
    filed no printed brief.
    January 4, 1909:
   Opinion by

Mr. Justice Potter,

This was an issue awarded to determine the genuineness of the signature to a judgment note. The note purported to have been made by W. H. Foster, W. B. Croushore, E. L. Woolsey, and J. W. Allshouse, to the order of W. H. Foster, and was by him sold and assigned to the Merchants’ Trust Company of Greensburg. Judgment was entered in the name of Foster to the use of the trust company. Foster died soon after the judgment was entered. Allshouse petitioned the court to open the judgment and admit him to a defense, averring that he had not signed the note, and that his alleged signature was a forgery. Upon the trial of the issue which was awarded Allshouse offered to testify that he did not write the name J. W. Allshouse” to the note in suit and that he did not authorize any person to write it there for him. He also offered to identify his genuine signature. The trial judge ruled that the defendant was not a competent witness, Foster being dead, and excluded the testimony. The correctness of this ruling is the only question raised by this appeal.

If forgery was committed in this connection it must have been in the lifetime of Foster, the payee of the note. The interest of J. W. Allshouse as one of the makers of the note was clearly adverse to the claim of the payee, and that claim passed into the hands of the trust company in the lifetime of the payee, and is now held by it. The trial judge was entirely right in holding that the case falls literally within the terms of section 5, clause (e) of the Act of May 23, 1887, P. L. 158, which is as follows: “Nor where any party to a thing or contract in action is dead .... and his right thereto or therein has passed either by his own act or by the act of the law to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased .... party be a competent witness to any matter occurring before the death of said party,” etc.

It matters not that Foster, in addition to being the payee, was also one of the makers of the note; this did not in any way change the character of the interest of Allshouse, or render it less adverse to that of Foster, the deceased. The defendant was permitted to testify as to signatures made by him after the death of Foster. But the offers of testimony which were rejected, were to show that defendant did not sign the note; that he did not authorize it to be signed for him; and that certain other signatures were made by him. These were all questions of fact, as to matters occurring before the death of Foster, the payee of the note, and as to any such thing, the surviving party could not testify.

We do not find in the terms of the offers anything to support the suggestion of counsel for appellant that the testimony of defendant would tend to prove as an existing fact at the time of the trial, that the alleged signature was not that of defendant; there was no offer to show any change in the signature, or in the conditions in that respect which existed before the death of Foster, the other party to the contract.

The assignments of error are overruled, and the judgment is affirmed.


author: Mr. Justice Fell,

text:
    Derry Coal & Coke Company to use v. Kerbaugh, Appellant.

      Negligence — Explosion of dynamite — Dynamite—Degree of care — Evidence.

    While the possession of dynamite to be used for lawful purposes is neither unlawful nor negligent, the person in possession of it is, as to third parties, bound to the highest degree of care, and failure to take any reasonable precaution to prevent explosion of it while in storage is negligence.
    In an action to recover damages for injuries to houses caused by the explosion of dynamite, the case is for the jury and a verdict and judgment for plaintiff will be sustained, where the evidence shows that the dynamite was stored in a small building fifteen feet square and seven feet high, that there was a red hot stove in the building within a few inches of the dynamite, that explosive caps were on the floor, and that such a storage of dynamite was unsafe and involved a condition from which an explosion might result.
    Argued Oct. 7, 1908.
    Appeal, No. 207, Oct. T., 1908, by defendant, from judgment of C. P. Westmoreland Co., Feb. T., 1908, No. 648, on verdict for plaintiff in case of Derry Coal & Coke Company to use of E. F. Saxman v. H. S. Kerbaugh, incorporated.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for injuries to houses. Before Van Swearingen, J., specially presiding.
    At the trial the court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $1,600. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      John E. Kunkle, with him Edward E. Robbins, for appellant.
    Where, in an action of negligence, the only evidence as to the cause of the accident is such as is derived by inference from conditions existing after the occurrence, and these conditions suggest several causes, either of which operating by itself would have been adequate to the result, and the defendant is without responsibility except as to one, there can be no recovery unless the conditions point to the cause to which defendant’s responsibility attaches, with such degree of certainty as would justify a jury in finding it to have been the proximate cause: Ott v. Boggs, 219 Pa. 614; Baker v. Irish, 172 Pa. 528; Stringert v. Ross Twp., 179 Pa. 614; Cosulich v. Standard Oil Co., 122 N. Y. 118 (25 N. E. Repr. 259); Donahue v. Kelly, 181 Pa. 93; Tuckachinsky v. Coal Co., 199 Pa. 515; Sowers v. McManus, 214 Pa. 244; Tex. & Pac. Ry. v. Barrett, 166 U. S. 617 (17 Sup. Ct. Repr. 707).
    It is a fundamental principle applicable alike to breaches of contracts and torts, that in order to found a right of action there must be a wrongful act done and a loss resulting from that wrongful act; the wrongful act must be the act of the defendant and the injury suffered by the plaintiff must be the natural and not merely a remote consequence of the defendant’s act. The wrong done and the injury sustained must bear to each other the relation of cause and effect; and the damages whether they arise from withholding a legal right or the breach of a legal duty to be recoverable must be a natural and proximate consequence of the act complained of: McGrew v. Stone, 53 Pa. 436; Worrilow v. Upper Chichester Twp., 149 Pa. 40; Mc-Cauley v. Logan, 152 Pa. 202; Bannon v. Penna. R. R. Co., 29 Pa. Superior Ct. 231; Behling v. Pipe Lines, 160 Pa. 359; Eisenbrey v. Philadelphia, 24 W. N. C. 231; Neal v. Refining Co., 16 Pa. C. C. Rep. 241; Lodge v. United Gas Imp. Co., 209 Pa. 553; Zahniser v. Penna. Torpedo Co., 190 Pa. 350.

      Paul II. Gaither, with him Charles E. Whitten, for appellee.
    Surely there was proof of circumstances which warranted the court in submitting to the jury the question, whether the explosion of the dynamite magazine was due to defendant’s negligence in caring for it on March 5, 1904: Shafer v. Lacock, Hawthorne & Co., 168 Pa. 497; Sowers v. McManus, 214 Pa. 244; Stasch v. Bank, 19 Pa. Superior Ct. 113.
    January 4, 1909:
   Opinion by

Mr. Justice Fell,

A number of houses owned by the plaintiff were injured by the explosion of dynamite and blasting powder that had been stored in two small frame buildings, near each other and within a half mile of the plaintiff’s property. Several tons of dynamite were placed in a building fifteen feet square and seven feet high, in which there was a stove used to heat the building and to thaw dynamite that had frozen. On three sides of the stove there were racks on which the frozen dynamite was placed to thaw it for use. There was testimony tending to show that boxes of dynamite placed on the racks would be from ten inches to two feet from the stove; that twenty minutes before the explosion there were boxes of dynamite on the racks and that the stove was red hot; that dynamite would explode without contact with fire at a temperature of 360 degrees; that it was unsafe to have a fed hot stove in a small building where a large quantity of dynamite was stored; that on the floor of the building there were bundles of wires to which were attached dynamite caps, which would explode if trod upon; that a few seconds before the explosion a fireman in charge of the buildings was seen running from them towards men who were working in a cut nearby, waving his hands as though to warn them of danger.

There was no evidence of negligence in the care of the powder house, and the instruction to the jury was that, if the explosion originated in that house, there could be no recovery. The verdict establishes as a fact that the first explosion was in the dynamite house, and the only question to be considered is whether there was sufficient evidence of negligence in storing and handling the dynamite to warrant the submission of the case to the jury.

The exact cause of the explosion was not shown, but the case was not left to the jury to find negligence from the mere fact of the explosion. A condition, entirely under the control of the defendant, was shown, to which as a producing cause the explosion might be attributed. The presence of a red hot stove in a small building and within a few inches of the dynamite and of explosive caps on the floor was under the testimony an unsafe condition, from which an explosion might result. In the recent case of Sowers v. McManus, 214 Pa. 244, it was said: “While the possession of dynamite to be used for lawful purposes is neither unlawful nor negligent, the person in possession of it is, as to third parties, bound to the highest degree of care, and failure to take any reasonable precaution to prevent explosion of it while in storage is negligence.” No explanation of the cause of the explosion was furnished by the defendant and it was left to the jury to accept the theory of the plaintiff, based on affirmative evidence of negligent acts, or that of an unaccountable accident advanced by the defendant.

The judgment is affirmed.


author: Me. Justice Mesteezat,

text:
    H. C. Frick Coke Company v. Mount Pleasant Township, Appellant.

      Taxation — Road tax — Township—“Last adjusted valuation” — Act of April 12, 1905, P. L. 142 — Equity—Act of April 15, 1834, P. L. 509.
    Under the Act of April 12,1905, P. L. 142, there is no “last adjusted valuation for county purposes ” from which a road tax may be levied by the supervisors of a township, until the county commissioners have examined and corrected the assessor’s return and the board of revision has given the taxpayer an opportunity to be heard. As long as the valuation returned by the assessor is open to correction by the board of revision it cannot be said that the valuation has been adjusted by the board of revision.
    While the Act of April 19, 1889, P. L. 37, authorizes an appeal to the common pleas from the final adjudication of the board of revision, the appeal is not a supersedeas and does not prevent the collection of the tax. If the valuation is reduced, the excess of taxes is returned to the person who paid them.
    Under the facts of this case, a court of equity has jurisdiction to restrain the supervisors of a township from levying a road tax on a valuation of property which is not “the last adjusted valuation for county purposes.” The Act of April 15, 1834, P. L. 509, affords no adequate remedy of law in such a case.
    Argued Oct. 7, 1908.
    Appeal, No. 223, Oct. T., 1908, by defendants, from decree of C. P. Westmoreland Co., No. 627, on bill in equity in case of H. C. Frick Coke Company v. The Township of Mt. Pleasant and J. A. Porch, collector of taxes of said township.
    Before Mitchell, C. ’ J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Doty, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a decree as follows:
    And now, June 27, 1908, this case having been heard on bill, answer and proofs and after argument and due consideration, it is ordered, adjudged and decreed that the road taxes in Mt. Pleasant township for the year 1907 have been paid by the plaintiff company so far as it is legally chargeable therewith; and the said township of Mt. Pleasant and J. A. Porch, collector of said taxes, are hereby enjoined and restrained from the collection of any other road tax from the said plaintiff for the year 1907; that the defendants pay the costs of this proceeding.

      Error assigned was the decree of the court.

      James 8. Beaeom, with him David L. Newill, for appellants.
    It is clear that “adjusted valuation” as used in this act means the valuation returned by the assessor after the correction of errors or deviations. This is the only valuation that is referred to any place in the act as an “ adjusted valuation.” Subsequent sections of the act provide for appeals and how they shall be advertised and conducted and who shall attend them, and gives the commissioners power to regulate the assessments according to the alterations made, but these proceedings are all subsequent to the time that the assessment is made upon the adjusted valuation. The appeals, therefore, must be taken from the adjusted valuations, and not for the purpose of adjusting the valuations: Stewart v. Maple, 70 Pa. 221.
    No matter what the valuation of the specific property may have been at the time the rate was fixed and the assessment made, the assessment reaches forward and grasps the valuation as finally fixed, either by the county commissioners on appeals or by the court of common pleas on appeal from the commissioners to that court: Appeal of William H. Brown, 111 Pa. 72; Hamlin v. Peck, 135 Pa. 493; Moore v. Taylor, 147 Pa. 481; South Strabane Twp. v. Patterson, 55 Pittsburg Leg. Journ. 18.
    A bill in equity for an injunction is not a proper remedy for the redress of the grievance complained of: Carlisle School Dist. v. Hepburn, 79 Pa. 159; Moore v. Taylor, 147 Pa. 481; Van Nort’s Appeal, 121 Pa. 118; Stewart v. Maple, 70 Pa. 221; Clinton School District’s Appeal, 56 Pa. 315; Hughes v. Kline, 30 Pa. 227.

      James S. Moorhead, with, him Robert W. Smith, for appellee.
    Triennial assessments, in large counties, with a diversity of interests are not easily and readily made and adjusted but sometimes they may .be completed early; but as this is an exacting statute in 'point of time and as seasons for making roads are short, if that year’s valuation is not ready, is not adjusted, the supervisors are to take the last one furnished and go ahead in the performance of their duties: Stewart v. Maple, 70 Pa. 221; Canal Co. v. Walsh, 11 Phila. 587; Plains Twp.’s App., 21 Pa. Superior Ct. 68.
    Equity had jurisdiction: Stewart v. Maple, 70 Pa. 221; Moore v. Taylor, 147 Pa. 481; Smith v. Saul, 2 Pearson, 313; Miller v. Gorman, 38 Pa. 309.
    January 4, 1909:
   Opinion by

Me. Justice Mesteezat,

This bill was filed by the plaintiff to restrain the defendants from collecting road taxes for the year 1907. The prayer of the bill was granted and the defendants have appealed.

The township of Mt. Pleasant, one of the defendants, is a township of the second class. The plaintiff company is the owner of property in the township, the valuation of which for county purposes for the year 1906 had been fixed and adjusted at 12,014,545. As required by law, the road supervisors of the township met in March, 1907, and levied a tax on the taxable property therein for road purposes at the rate of four and one-half mills for work tax and two and one-half mills for cash tax, or seven mills in all. On May 31, 1907, the plaintiff company tendered to defendant Porch, the treasurer of the township, $13,397.67, the amount of road tax due upon the valuation of the plaintiff’s jiroperty for the year 1906. The treasurer declined to receive the amount in full satisfaction of the road tax, but did accept it on account of the road taxes due from the plaintiff for the year 1907.

The assessor of the defendant township made and returned a valuation for the purpose of taxation to the county commissioners for the triennial year of 1906, prior to March 1, 1907. This valuation was revised and increased by the county commissioners, sitting as a board of revision, on June 25, 1907. From the valuation thus fixed by the board, the plaintiff company appealed to the common pleas and its valuation was not finally adjudicated by that tribunal until later in the year, 1907. Subsequent to the decree of the common pleas, revising and fixing the valuation, defendant Porch, treasurer of the township, notified the plaintiff company that, on the valuation fixed by the court, there was still due from it for road taxes for the year 1907 the sum of $16,664.38 for work tax, and $11,524.86 for cash tax, to which a penalty of five per centum would be added after November 1, and threatened to levy upon and sell the plaintiff’s personal property in payment of the balanee thus claimed to be due. This bill was then filed to restrain the defendant township and its collector from collecting the additional sum alleged to be due the township for road taxes.

As suggested by the court below, the determination of the cause requires the solution of two questions, viz.: 1. What is meant by “the last adjusted valuation for county purposes” as the phrase is used in the Act of April 12, 1905, P. L. 142? 2. If aggrieved, is plaintiff entitled to equitable relief as prayed for in its bill?

The learned trial judge has correctly answered both questions, and his very clear and full discussion amply sustains his conclusion.

The township of Mt. Pleasant, being a township of the second class, is within the provisions of the Act of April 12, 1905, P. L. 142. The second section of the act requires the supervisors to meet on the first Monday of March, and “proceed immediately to levy a road tax, which shall not exceed ten mills on each dollar of valuation, this valuation shall be the last adjusted valuation for county purposes, and which shall be furnished to said road supervisors by the commissioners of the proper county.” The section also provides that before issuing the duplicate and warrant for the collection of road taxes, the board of supervisors of every township that has not abolished the work tax, shall give all taxables “full opportunity to work out their respective taxes.” By the sixth section of the act, all taxpayers who pay their taxes before June 1 shall receive an abatement of five per centum; all taxes paid to the treasurer between June 1 and November 1 must be paid in full; and taxes paid thereafter must be paid with a penalty of five per centum.

It will be observed that the basis for levying the tax is “the last adjusted valuation for county purposes, and which shall be furnished to said road supervisors by the commissioners of the proper county.” In March, 1907, when the supervisors of Mt. Pleasant township met to levy the tax, pursuant to the act of 1905, what was “the last adjusted valuation for county purposes” furnished to the supervisors of the township by the county commissioners? It was upon that valuation that the statute required the supervisors to make the levy for the year 1907. The plaintiff maintains that it was the valuation of 1906 which, it is conceded, had been adjusted by the proper taxing authorities. The defendants contend that it was the valuation made by the township assessor and returned to the county commissioners in the fall of 1906 for the purposes of taxation for the year 1907. The learned court below sustained the plaintiff’s contention.

The taxing system of this state is entirely a creature of statutory law, and the several steps required to.be taken in the assessment and collection of taxes are regulated by statute. The general Act of April 15, 1834, P. L. 509, as supplemented and modified by subsequent legislation, is the present law of the state on the subject. It defines the subjects of taxation and provides the manner of making the assessments and the collection of taxes. The county commissioners issue their precept to the assessor on or before the second Monday of September, and he is required, on or before December 31, to return to the commissioners a list of the names of ail taxable persons, and a list of all property taxable by law within his district, together with a valuation of the same to be made as provided by the statute. The commissioners may raise or reduce the value placed upon the property by the assessor, and after having examined and corrected the assessment or valuation, they are required to send a transcript of the assessment, together with a statement of the rate to the assessor, who is required to notify the taxable of the day fixed for an appeal. If the taxpayer desires, he may appear before the commissioners, who then sit as a board of revision, and ask such relief as he thinks he may be entitled to. Immediately after the conclusion of the appeals, the board of' revision is required “to regulate the assessment according to the alterations made.” By the Act of April 19, 1889, P. L. 37, 2 Purd. (12th ed.) 1984, if dissatisfied with the valuation, any owner of taxable property may appeal from the decision of the board of revision to the common pleas; and, by a subsequent statute, the judgment of the common pleas may be reviewed by the proper appellate court.

By this brief reference to the mode of procedure in the assessment of property for taxation, it is apparent, we think, that the mere return of the township assessor is not an “adjusted valuation” within the meaning of the act of 1905. It is simply one of the several steps to be taken in ascertaining the adjusted valuation of property for the'purposes of taxation. Until the commissioners have examined and corrected the, assessor’s return and the board of revision has given the taxpayer an opportunity to be heard and has thereafter finally adjudicated the valuation, there is no assessment or valuation upon which a tax can be levied for either county or township purposes. Until that time, it is apparent, there has been no “adjusted valuation for county purposes.” As long as the valuation returned by the assessor is open to correction by the board of revision, it certainly cannot be that the valuation has been adjusted within contemplation of the statute. The act of 1905 is specific as to the character of the valuation upon which the tax shall be levied; it -is not simply a valuation returned by the assessor, but, as the act itself declares, “this valuation shall be the last adjusted valuation for county purposes, and which shall be furnished to said road supervisors by the commissioners of the proper county.” The legislature, therefore, has not left open to doubt what the road supervisors shall have before them when they meet on the first Monday of March in each year to levy the road tax. It is “the last adjusted valuation” and not merely the valuation returned by the assessor. While the act of 1889 authorizes an appeal to the common pleas from the final adjudication of the board of revision, the appeal is not a supersedeas and does not prevent the collection of the tax. If the valuation is reduced, the excess of taxes is returned to the person who paid them.

The other and remaining question is whether the plaintiff company can redress its grievances by a bill in equity. While the assessment and collection of taxes are matters of statutory regulation and the taxing officers must strictly pursue the provisions of the acts of assembly in levying and collecting taxes, it is equally true that where there is a remedy at law the owner of taxable property, if aggrieved, must seek redress in the manner pointed out by the statute. If, therefore, the legislature has provided a remedy which will afford the plaintiff company adequate relief for its grievances, it must pursue that remedy, and cannot invoke the assistance of a court of equity to prevent the wrongs with which it is threatened by the taxing officers of the defendant township. But has the legislature provided a remedy for the grievances of which the plaintiff complains in this suit? It is so contended by the defendants, and the remedy relied on is the thirty-sixth section of the Act of April 15, 1834, P. L. 509, 2 Purd. (12th ed.) 1998, which provides as follows: “That it shall be lawful for any person aggrieved by such rate or assessment to apply by petition to the next court of quarter sessions of the respective county, who shall have power to take such order thereupon, as to them shall be thought expedient, and the same shall conclude and bind all parties.” It is conceded by both parties to this litigation that this section of the act of 1834 applies only to township taxes. It is contended by the defendants that the act provides a remedy for any party who is aggrieved by the action of the taxing authorities in fixing an illegal or incorrect rate of assessment of his property for township purposes, that the injury complained of in the bill in this case is that the assessment of the plaintiff's property made by the supervisors is on a wrong valuation or basis, and that therefore the act of assembly affords the plaintiff adequate relief by an appeal to the quarter sessions. It is true, as argued by defendants, it is not alleged in the bill that the supervisors did not have the authority to levy a tax or that the property on which the tax was levied was not taxable for township purposes. Let us examine the facts of the case, as presented by the pleadings and testimony, and see whether the act of assembly furnishes an adequate relief for the injury complained of in the bill filed by the plaintiff.

It is conceded that the supervisors did not levy a tax in March, 1907, on the adjusted valuation for the year 1906. The board of revision did not adjust the valuation of the plaintiff’s property for county purposes for 1907 until June 25 of that year, when they fixed the valuation at 8750 per acre which, on appeal to the common pleas, was finally adjusted, some months thereafter, at $680 per acre. It is apparent, therefore, that the supervisors did not levy a tax in March, 1907, on the valuation of the plaintiff's property returned by the assessor for that year and adjusted by the board of revision, and we think it equally clear that the supervisors did not make the return of the assessor for that year the basis of the tax levied for the year. If the officers had levied the tax on the valuation returned by the assessor for the year 1907, and given the plaintiff company notice of the tax as required by the statute, it is quite probable that the company would have been compelled to go into the quarter sessions for relief. The company would then have had an opportunity to have the basis of the valuation corrected by “the next court of quarter sessions.”

The plaintiff, however, is not threatened with a sale .of its property by the township collector for taxes levied upon the valuation returned by the assessor of the township for 1907. The defendants do not seek to enforce a tax levied upon such basis nor is the plaintiff company resisting the collection of taxes laid upon that basis. The claim of the defendants is made for taxes levied upon a valuation as finally revised by the court in the fall of 1907. This appears by paragraph six of the defendant's answer which, inter alia, is as follows: “This notice (requiring the plaintiff company to pay the taxes in dispute) has been given and this claim is made upon the sa,id plaintiff under the belief that the valuation returned by the assessor for the year 1907, as finally revised by the county commissioners and the court of common pleas, is the basis on which the taxes for 1907 were levied and should be collected.”

It is apparent, we think, that the undisputed facts of the case show that the thirty-sixth section of the act of April 15, 1834, furnishes no adequate remedy for the relief sought by the plaintiff company, and which we hold it is entitled to. We need not discuss or determine the meaning of the words “rate” or “assessment” as used in the act of assembly, as the facts of this case show that the plaintiff company could not avail itself of the statute to afford it redress for the grievances of which it complains. There was no action of the supervisors in March, 1907, in fixing a basis for the levy of that year from which the plaintiff could have appealed to the next court of quarter sessions as required by the act of 1834, which, as stated by the counsel of the defendants, commenced on the second Monday of the following May. So far as the record discloses, there was no attempt on the part of the taxing authorities of the township to comply with the act of 1905, by giving the plaintiff company notice of the levy of any road tax in March, 1907, or by giving it notice and an opportunity to work out its portion of the work tax or to pay the cash tax assessed against it in that month so as to secure the abatement of five per cent and avoid the penalty imposed by the statute. In fact, the action of the supervisors in not levying the tax in March on the last adjusted valuation, prevented a compliance with those provisions of the law.

The conduct of the supervisors in delaying the levying of the tax on the last adjusted valuation and in now seeking to recover the taxes levied on the basis of the valuation fixed by the court in the fall of 1907, deprives the plaintiff of an opportunity to appeal for redress to the next court of quarter sessions within the meaning of the act of 1834. The act of 1905, in its mandatory provisions, requires the supervisors to levy the tax at their session in March. The basis as well as the rate of taxation is then fixed, or should be, if the provisions of the statute are observed. The taxpayer can then determine whether he is aggrieved by the action of the supervisors; and the act of 1834 contemplates that if he is aggrieved “by such rate or assessment” he shall “apply by petition to the next court of quarter sessions of the respective county” for relief. The “next court of quarter sessions” is the court which first convenes in regular session subsequent to the date when the law requires the rate or assessment to be fixed by the supervisors. The purpose of the legislature was to give the taxpayer a speedy and sutnmary remedy for his grievances. It is necessary that the taxing officers act promptly in levying and collecting taxes, and to accomplish the purpose it is necessary that any objection by the taxpayer to the action of the supervisors should be speedily disposed of. This could be done and was intended to be done by requiring the taxpayer to apply to the next court of quarter sessions after the tax was levied. It is absolutely necessary that this interpretation of the act of 1834 should prevail if the taxpayer’s rights are to be protected and enforced under the act of 1905. By that statute, the taxpayer is entitled to an abatement of five per cent if he pays.his taxes before June 1 of the year and is subjected to a penalty of five per cent if they are not paid until after November 1 of the year. The act also requires the super-7 visors to give the taxpayer an opportunity to work out his work tax. It is therefore apparent that “the next court of quarter sessions,” to which a taxpayer may appeal for an alleged incorrect or illegal levy, is the court immediately succeeding the levy of road taxes made in March.

We think it clear that the remedy invoked by the plaintiff company in this proceeding is the only one which can give adequate relief for the injury or wrong threatened it, and therefore the bill must be sustained. If our conclusion deprives the township of a large part of its revenues by permitting the plaintiff company to escape payment of its road taxes on the valuation of 1907, the loss is attributable to the statute, the provisions of which are clear and mandatory. We cannot assume the functions of the legislature, and, by construction, furnish a remedy which lies solely with that department of the government. It is our province to construe and not to make the law.

The decree is affirmed.