text:
    TITLE TO PROPERTY DEVISED CONDITIONALLY.
    Court of Appeals for Stark County.
    John Leroy Parthe and Anna Parthe v. William L. Parthe et al.
    Decided, March 22, 1917.

      Devise — Dependent upon a Condition Which Did Not Occur During the Lifetime of the Devisee — Dower Not Assignable to Wife of Devisee —Sale by Sim of Sis Prospective Interest — Wills—Partition.
    1. The surviving spouse of one who departed this life before the happening of the event which was made a condition of a devise in his favor going into effect, is not entitled to dower in the property so conditionally devised.
    2. The sale by a contingent devisee of his prospective interest in the estate does not defeat the claim of a son to whom one-half of the said interest was devised in the event of the death of the contingent devisee preventing the interest vesting in him.

      Pomerene, Ambler & Pomerene, for plaintiffs in error.
    - Diehl & Brotvn and Amerman & Mills, contra.
   Houck, J.

This is a proceeding in error. The parties here stand in the same position as to each other that they stood in the court of common pleas.

The action below was one in partition, wherein the plaintiffs sought to partition certain real estate described in the petition. John Leroy Parthe claimed to be the owner of the undivided one-twelfth part thereof, and Anna Parthe claimed a dower interest in the undivided one-sixth part of said real estate. An accounting for rents and profits was also prayed for in the petition.

The amended answer of the defendants alleged as a defense a general denial, and further set forth that by the terms and conditions of a certain' written contract which was entered into between Charles Parthe, prior to his death, and the defendants, Robert I. Partbe and Edward J. Partbe, by the terms of which they had purchased the interest of said Charles Parthe in and to the real estate sought to be partitioned, and that they, the said Robert I. Parthe and Edward J. Parthe, had fully complied with all of the terms and conditions of said written contract, and that Charles Parthe and the plaintiffs had received and accepted the benefits thereunder, and that by reason thereof they are now estopped from claiming any interest in and to the real estate set out and described in plaintiff’s petition. They also aver in their amended answer that if plaintiffs have any remedy and any rights under the terms of the will of William L. Parthe, Sr., that-such are under the jurisdiction of the probate court, and that the common pleas court is without jurisdiction in the premises.

The plaintiffs filed a reply in the nature of a general denial to all of the material allegations contained in the amended answer of the defendants.

Upon the issues thus raised by the pleadings, and by agreement of all the parties to the suit, a jury was waived, and the cause was submitted to the trial judge upon an agreed statement of facts. The court below found for the defendants and dismissed the petition of the plaintiffs and entered judgment accordingly.

Did the trial court err in so doing, to the prejudice of plaintiffs in error, or either of them? This court must answer this inquiry from the agreed facts in the case, the correct application of the law pertaining to them, and the proper interpretation to be placed upon Item 4 of the will of William L. Parthe, Sr.

So much of the agreed statement of facts as we deem necessary for the proper consideration of this controversy is as follows:

“William L. Parthe, Sr., and his wife, Minnie L. Parthe, lived in the city of Alliance, Ohio. William L. Parthe, Sr., owned what is known as the Parthe Block, being the property in dispute herein. William L. Parthe, Sr., had the following children: Charles, Edward J., Robert I. and William Parthe; Mary P. Moore and Lilian Bowen. On the 25th day of November, 1900, William L. Parthe, Sr., died, leaving a will. Item 4 of this will is as follows:
“ ‘I give, devise and bequeath to my sons, Charles Parthe, Edward J. Parthe, Robert I. Parthe and William L. Parthe, Jr., and to my daughters, Mary P. Moore and Lilian Bowen, the brick block situate on lot 518 in the city of Alliance and known as the Parthe Block, subject to their mother’s use thereof during her lifetime, and subject to the'further conditions that should my said wife die within ten years from the date of my ' death said brick block and the grounds on which it is situate shall be rented, and the proceeds thereof during the remainder of the said ten years from the date of my death be divided equally between my said children, subject to the payment of taxes and the necessary repairs of said block. At the expiration of the said ten years from the date of my death, if my said wife is then deceased, or at the time of her death should she survive me more than ten years, the said block on lot No. 518 shall be sold by my executors and the proceeds thereof divided equally between my said children, subject, however, to this further provision .- that if my son Charles should die before the sale of said block, and before the division of the proceeds thereof, leaving a child or children, then one-half of the said one-sixth which would go to him if living shall go to his child or children that may survive him, and the other one-half of the said one-sixth which would have gone to him if living shall go to his brothers and sisters in equal proportions. ’ '
* ‘ Some time after the death of William L. Parthe, Sr., to-wit, December 14th, 1904, Minnie E. Parthe, his wife, died. Ten years after the death of William L. Parthe, Sr.; Charles Parthe attempted to secure his share of the Parthe estate given him in Item 4 of the will of William L. Parthe, Sr., and to do this he began partition proceedings which were started some time after one of the plaintiffs in this case, Anna Parthe, had secured her divorce from Charles Parthe. As a result of Charles Par-the’s demands and the institution of the partition proceedings, Robert I. Parthe and Edward J. Parthe purchased this interest for the sum of $5,000 for his share of the estate and his interest in that block, and at that time Charles Parthe, the husband of Anna Parthe and the father of John Leroy Parthe, the plaintiffs herein, signed a contract to deliver to Robert I. Parthe and Edward J. Parthe a warranty deed for his interest in the Parthe estate and the property in question. A short time after this contract was made a supplemental contract was made which changed the time of payment and provided for the payment of so much per week. Shortly thereafter Charles Parthe died, and his divorced wife, Anna Parthe, the plaintiff, was appointed administratrix of his estate, and collected from Robert I. Parthe and Edward J. Parthe the balance due under Charles Parthe "s contract, amounting to approximately $3,850. Anna Parthe and John Leroy Parthe then instituted the partition proceedings herein. That the real estate described in the petition was not sold by the executors of the estate of "William L. Parthe, Sr., and has not been sought to be sold by them. That on December 9th, 1902, they filed their final account and were discharged as such ■ executors, and that no administrators with the will annexed have since been appointed.”

The first question that presents itself for determination is, what interest in the real estate in question did Charles Parthe take under Item 4 of the will of his father, William L. Parthe, Sr. ? This inquiry leads us to determine the proper construction to be placed upon Item 4 of said will.

The object and aim sought in the construction of the language and terms used in a will is for the sole and only purpose of ascertaining the intent of the testator. It is the intention of the maker of a will as is indicated by the words, language, expressions and terms employed therein, that must be found, by a court in its judicial interpretation, and this should be obtained from giving to them their plain, ordinary and generally accepted use and meaning. The plain and unambiguous words of the will must prevail, and can not be controlled or "qualified by any imaginary or seeming unwarranted construction placed upon them which might appear to grow out of the peculiar surroundings of the testator at the time of the execution of his will.

We find the language of the will under consideration clear) plain, explicit, and in no way ambiguous, so far as ascertaining the rights and interest of Charles Parthe in and to the real estate now in controversy. That part of the will necessary to be interpreted, and from which we must determine the extent of the estate devised to Charles Parthe, and the interest, if any, he had at the time of his death, is as follows:

“At the expiration of said ten years from the date of my death, if my said wife is then deceased, or at the time of her death should she survive me more than ten years, the said block on lot No. .518 shall be sold by my executors and the proceeds thereof divided equally between my said children, subject, however, to this further provision: that if my son Charles should die before the sale of said block, and before the division of the proceeds thereof, leaving a child or children, then one-half of the said one-sixth which would go to him if living shall go to the. child or children that may survive him, and the other one-half of the said one-sixth which would have gone to him if living shall go to his brothers and sisters in equal proportions.”

' If we apply the rule of law as to the construction and interpretation of wills as herein laid down to the above language, which taken in connection with the conceded fact that Charles Parthe departed this life before the sale of the Parthe Block and before the division of the proceeds therefrom, we can not see how counsel for defendants in error are entitled to maintain their defenses as to the claim of the plaintiff in error, John Leroy Parthe.

Under the provisions of the will as contained in Item 4, Charles Parthe had certain rights in the real estate as to the income therefrom until it was sold and the proceeds from said sale distributed; but if he were not iiving at the time of such sale and the distribution of the proceeds, then and in that event the one-half of his interest should go to and vest in his child or children, and the other half in his brothers and sisters.

We are bound to hold and do hold under the facts and law in this case that upon the death of Charles Parthe one-half of all of the interest in and to the real estate in question went to and vested in John Leroy Parthe, the surviving son of Charles Parthe, deceased, and the other one-half to the brothers and sisters of said Charles Parthe, as clearly provided for in the will of William L. Parthe, Sr.

. It will be noticed that the interest in the real estate now vested- in John Leroy Parthe came to him not from his father, Charles Parthe, but under and by the terms of the will of his grandfather, William L. Parthe, Sr.

: Coming now to the second question presented for our consideration : Is Anna Parthe entitled to dower in any part of said real estate? This must be determined from the agreed facts and the provisions of Section 8606, General Code, which reads as follows:

“A widow or widower, who has not relinquished or been barred of it, shall be endowed of an estate for life in one-third of all the real property of which the deceased consort was seized as an estate of inheritance at any time during the marriage, in one-third of all the real property of which the deceased consort at decease held in fee simple in reversion or remainder, and one-third of all the title or interest that the deceased consort had at decease in any real property held, by article, bond, or other evidence of claim.”

It must be conceded that whatever dower right, if any, Anna Parthe has in this real estate, comes to her by operation of law, and not otherwise.

What interest did Charles Parthe have in said real estate at the time of his death ? Not any. Anna Parthe received no interest in it under the will of William L. Parthe, Sr., who by his will devised the share of Charles Parthe to him subject only to the happening of a certain event, namely, that he be living at the time of the sale and distribution of the proceeds; and having departed this life before such occurred, then by operation of the will of said testator the interest that would have gone to Charles Parthe had he been living at the time of the sale and distribution of the proceeds thereof, went- to and vested in John'Leroy Parthe and the brothers and'sisters of Charles Parthe. Thus it must and does necessarily follow that Anna Parthe, the surviving spouse of Charles Parthe, is not entitled to dower in the real estate which was devised to John Leroy Parthe and to the brothers and sisters of Charles Parthe.

In the face of the conceded facts, the provisions of Section 8606, General Code, and our holding as to the devise in question under the will before us for consideration, we must hold that the claims made by Anna Parthe as to her dower rights are not well taken.

Are the defenses or either of them, as stated in the amended answer of the defendants below, who are also the defendants in error here, a bar to the rights of the plaintiff John Leroy Par-the to the relief prayed for in his petition? We must answer this in the negative.

The contract relied upon by the parties no doubt was entered into in good faith between the parties thereto, and would have been binding upon them had Charles Parthe been in full life at the time of the sale of the Parthe Bloch and the distribution of the proceeds of such sale. This contract was not signed by John Leroy Parthe, and therefore he can not be barred from his legal right to hold real estate devised to him under the will of his grandfather, William L. Parthe, Sr.

In passing let us say, in view of the facts contained in the agreed statement of facts, and from all the surrounding circumstances of this case, it is apparent to us that a seeming hardship will be east upon some of the defendants in error; yet we know of no rule of law or equity that can change that well-known maxim, “An owner of real estate can only convey to the grantee to the extent of his own title and interest therein. ’’

Viewing this case as we do, we are of the opinion that the judgment below should be reversed as to the plaintiff in error John Leroy Parthe, and affirmed as to the plaintiff in error Anna Parthe.

The court coming now to render the judgment that the common pleas court should have rendered in this case, it is hereby ordered, adjudged and decreed that John Leroy Parthe, plaintiff in error, one of the plaintiffs below, is entitled to have partition of the real estate described in the petition, and an accounting for rents and profits as prayed for; that the petition be dismissed as to the other plaintiff therein, Anna Parthe.

The amended answer of Edward J. Parthe and Robert I. Parthe, who filed same for themselves and others, is hereby dismissed.

This cause is remanded to the common pleas court with instruction to carry into execution the judgment of this court.

Powell, J., and Shields, J., concur.


source: Caselaw Access Project

author:
Jones (O. B.),’ J.
      Gorman, J.,

license: Public Domain

text:
    INJURY TO THE GUEST OF A MOTORCYCLIST.
    Court of Appeals for Hamilton County.
    Zumstein Taxicab Co. v. Dorothy Rummel.
    Decided, July 6, 1916.

      Negligence — Collision Between Motorcycle and Taxicab — Young Lady on Tandem Seat Injured — Taxicab Attempts to Pass on Left Side of Standing Street Oar.

    While the negligence of a driver of a motorcycle can not be imputed to bis guest riding on the tandem seat, yet no recovery can be bad against tbe owner óf a taxicab, for injuries caused by a collision between tbe motorcycle and a- taxicab at a street intersection . where tbe only negligence of tbe latter consisted in its being driven arpund a standing street car on tbe left side, the right side of tbe street being obstructed by a voting booth on tbe corner, and tbe collision was caused by tbe failure of tbe motorcycle driver • to observe traffic ordinance and not by any fault of tbe driver of tbe taxicab.

      Clore, Dicherson & Clayton, for plaintiff in error.

      Jones & Hoover and G. A. Bummell, contra.
   Jones (O. B.),’ J.

This cáse grows out of a collision between a motorcycle and a taxicab on Reading road, opposite the end of East Ridgeway avenue. It occurred about 8 o’clock on the evening of July 24, 1913. The plaintiff was occupying the rear or tandem seat of the motorcycle as the guest of its driver. The occupants of the motorcycle were taking a pleasure trip and were proceeding southwardly on Reading road. The operator testified that for some distance north of East Ridegway avenue he ran upon the dummy-track in the center of the street between the two tracks of the street railway, until just before he reached the north line of East Ridgeway avenue, when he made a detour to the east line of Reading road with the intention of turning into East Ridge-way avenue to stop and blow up his tire. At about the continuation of the south line of East Ridgeway avenue near the east curb of Reading road stood a closed voting booth, which had been placed there by the election officers, and with its north end directly in line with the north end of this voting booth stood a northbound street car upon the east track of Reading road. The operator of the motorcycle after turning toward East Ridgeway reached almost the east line of Reading road when he changed his mind and made a loop westward, passing north of the voting booth and street car, to proceed to the west side of Reading road. A taxicab of the defendant company had been traveling along the street car track in Reading road behind the street car, and being unable to pass to the right when the car stopped, because of the obstruction caused by the voting booth, passed to the left of the street car along the center of Reading road, and as it reached a point about opposite the south side of East Ridge-way avenue and the north end of the street car it collided with the motorcycle.

As a result of this collision plaintiff was cut upon the foot and received what she claims to be a permanent injury. Plaintiff recovered a verdict and judgment below, and proceedings in error are prosecuted here for its reversal.

The record shows but little dispute in the evidence as to the respective positions of the vehicles upon the street. The plaintiff herself testified, contrary to the operator of the motorcycle, that for some distance north of East Ridgeway avenue the motorcycle traveled on the east side of the street not far from the curb; but she agreed with the operator of the motorcycle that just before reaching the south line of East Ridgeway avenue they turned westwardly to the place where the accident occurred.

A portion of the traffic ordinance of the city of Cincinnati was introduced in evidence, being in part as follows:

“Every person-using any vehicle on any street shall operate, drive or ride such vehicle on the portion to the right of the center of the street, except the right side of the street is in such condition as to be impassable. A vehicle meeting another shall pass on the right. * # * All vehicles when overtaking street cars or interurban earsshall pass to the right and not to the left when the car tracks occupy the middle of the street; provided that street cars may be passed on the left when the space to the right is occupied and the space to the left is reasonably clear.”

A careful consideration of the evidence shows that the driver of the taxicab operated his vehicle in accordance with the rules laid down in this traffic ordinance, while the operator of the motorcycle violated these provisions in that his vehicle was upon the east side of Reading road, being the left side to him, where under the traffic rules it should have been upon the west side, which was to him the right side of the road. And in undertaking to go from the east to the west side of Reading road, treating East Ridgeway avenue (which was not a continuous line across Reading road) as an intersection, he should have kept upon the right of the center line of East Ridgeway avenue; and had he done so he would have been a sufficient distance from the voting booth and the street car to have seen the taxicab and to have permitted its driver to see him, and thus the collision would have been averted.

While under the law of Ohio the negligence of the operator of the motorcycle can not be imputed to the plaintiff, who was his guest, still the injury having been caused, in our view, purely by his negligence and not by any negligence on the part of the driver of the taxicab, the defendant can not be held liable.

In the general charge the court, after stating the ordinary care required of all persons using the street, both as pedestrians and with all kinds of vehicles, used the following language:

“Now when an automobile is upon the street, under the traffic ordinance it has to follow a certain line of conduct. It must drive upon the right-hand side of the street. It must stop when street cars stop. If street cars stop it has the right to pass to the right of the street car and to the left of the driver of the automobile. In passing the street car it must exercise ordinary care under the circumstances.”

In this language the court undertook to lay down the requirements .of the traffic ordinance so far as they apply to an automobile. Nothing is said in the charge as to the application of the requirements of the traffic ordinance to the operation of a motorcycle, although they apply equally to automobiles and motorcycles.

It will be observed, from the words quoted in the charge that the court inadvertently failed to state the terms of the traffic ordinance applicable to the movement of the taxicab just prior to the accident. It lays down the rule that the taxicab “must stop when the street car stops.” There is nothing in the traffic ordinance introduced in evidence, or in the record, to show that requirement. It also states: “if street cars stop it has a right to pass to the right of the street car and to the left of the driver of the automobile.” It' is not clear just what is meant by this language. But the court omits in its charge to refer to the provision of the ordinance “that street ears may be passed on the left when the space to the right is occupied and the space to the left is reasonably clear. ’ ’ The record shows that such was the condition at the time under consideration; the space to the right of the street car was occupied by the .voting booth, and the space to the left of the street car was reasonably clear. It was important that this condition should be referred to in the general charge and the defendant’s rights thereunder stated. This part of the charge, therefore, did not clearly and properly state the law to the jury, but tended rather to confuse and mislead them, and constituted error to the prejudice of the defendant.

At the close of the general charge counsel for defendant called the attention of the court to the rights of the parties where there was an obstruction upon the right-hand side of the road and asked for a charge upon that point. The court, however, did not amend its charge or give any further charge as requested; to which counsel for defendant excepted. In this we find that the court committed error to the prejudice of the defendant below.

For the reasons stated the judgment is reversed and the cause is remanded for further proceedings.

Jones (E. H.), J., concurs.

Gorman, J.,

concurs.

For tbe reason that the trial court in its charge to the jury apparently said in failing to properly state the rule of the road with reference to the taxicab, and also, in failing to charge the jury properly with reference to the rule of the road applicable to the motorcycle, which errors in the Charge were prejudicial to the plaintiff in error, I concur with my associates in holding that the judgment should be reversed and the cause remanded.

But I do not concur in the conclusion of my associates that plaintiff’s injuries were due solely to the negligence of the operator of the motorcycle. I think the record discloses that there was negligence on the part of the driver of the taxicab and also negligence on the part of the operator of the motorcycle, both of which negligences proximately conduced to cause the plaintiff’s injuries, and under such circumstances plaintiff would be entitled to recover if it were not for error in the charge of the court.

Giving the evidence that aspect most favorable to the plaintiff in error, it appears to me that the injuries of the defendant in error were the result of the concurrent negligence of the driver of the taxicab and the operator of the motorcycle; and since the negligence of the operator of motorcycle can not be imputed to the defendant in error, his negligence would not be a bar to. her right to recover.


author: Houck J.

text:
    CHARACTER. OF EVIDENCE REQUIRED TO ESTABLISH A TRUST IN LAND.
    Court of Appeals for Stark County.
    Rose Wagner v. Mahala Wagner et al.
    Decided, March 22, 1917.

      Trust — Gan he Established in Land Only hy Olear and Convincing Evidence, When — Claim as to Funds Advanced for Purchase of Land Jointly Held.

    A trust can be grafted on land, held by a deed absolute on its face, only by evidence which is clear and of the most convincing character, and a claim of a lien on the proceeds arising from the sale in partition of land so held, on account of money advanced for its purchase, will be denied where the evidence as to the claim falls short of being of a clear and convincing character.

      C. G. TJpham, for plaintiff.

      8. F. Bowman and Amerman & Mills contra.
   Houck J.

This case is here on appeal from the common pleas court of this county, and was-submitted to this court on the pleadings and the evidence as contained in the transcript of same taken in the court below. The pleadings in substance are as follows:

The plaintiff, Rose Wagner, filed her petition in the Common Pleas Court of Stark County, Ohio, on April 11th, 1916, alleging that she had a legal right and was seized in fee simple of certain real estate described in the petition; that the defendant, Mahala Wagner, was the owner of the other undivided half of said premises, and that the defendant, John S. Wagner, was the husband of said Mahala Wagner, and that the defendant, James Hindman, claimed to hold a mortgage on said premises. The prayer of the petition was that the defendant Hindman be required to set up his mortgage or be forever barred from doing so, and that said premises be partitioned and plaintiff’s share set off to. her, or said premises be sold and her share be awarded to her in money, subject to a certain lease of said premises which was excluded, and still exists, but in no way interferes with the partition proceedings in this case.

The defendant, James ITindman, filed an answer and cross-petition setting up his mortgage on said premises, amounting to $2,884.37, with interest, which he claimed was the first and best lien on said premises, and prayed judgment for the same and the sale of said premises, and that the proceeds of said sale be applied on his mortgage.

The'defendants, Mahala Wagner and John S. Wagner, filed a joint answer and cross-petition in which they admitted that plaintiff held the legal title to 'the one-half of said premises, and that the defendant, Mahala Wagner, held the legal title to the other undivided one-half of said premises, and that the defendant, John S. Wagner, was the husband of said Mahala Wagner and had an inchoate right of dower in said premises, and further admitted that the mortgage of the defendant, James Hindman, was a good and valid lien against the premises, and, further answering, denied each and every other allegation in plaintiff’s petition not expressly admitted to be true. In their cross-petition the said Mahala Wagner and John S. Wagner averred that at the time said premises sought to be partitioned were purchased that the only consideration that was paid at said time was $1,000, which was paid by the defendants, Mahala Wagner and John S. Wagner; that on April 21st, 1907, said defendants further paid the sum of $800 on the purchase price of said premises, and since the 23d day of March, 1905, at which time the premises were purchased, they paid all the taxes', which amounted to $273.30; that ever since said 23d day of March, 1905, the plaintiff, Eose Wagner, occupied said premises as her home, and had not accounted to these answering defendants for any of the rents and profits of the same, and prayed for an accounting between said parties, and that these defendants recover out of the proceeds of the sale of said premises the amounts they paid on the-purchase price, together with the taxes and interest at six per cent., and that they be decreed their interest in said property in money, and for such other relief as they be entitled to in the premises.

The plaintiff filed a reply to the cross-petition of the defendants, John S. Wagner and Mahala Wagner, the same being in the nature of a general denial as to all the material allegations contained therein.

Upon the issues raised by these pleadings and the evidence, the case was submitted to this court for its determination.

The contention of the defendants is that they paid all the money that had been paid on the lands in question, saving and excepting possibly the sum of about $500; that they also paid the taxes; and asked that out of the proceeds of the sale of said lands that they be reimbursed, as an accounting between the parties hereto shall show and be determined by the court. In other words, they seek to have impressed upon the fund arising from the sale of said premises a trust in their favor to the amount claimed to have been paid by them on said lands and for the taxes.

We think the law is well settled in this state as to what constitutes an express trust, as well as an implied trust, and the evidence necessary to sustain such. It will be seen that from the issues raised by the pleadings and the evidence submitted in support of same that it is attempted to engraft a trust on lands held by a deed absolute on its face.

A trust can not be established by mere conjecture or from the mere circumstances and surroundings of any particular case or state of facts, but must be established by clear, certain, definite and positive evidence, in proof not only of the existence of the trust at the time of the conveyance, but also of its terms and conditions. Therefore, the evidence necessary to engraft a trust on lands held by deed which is absolute on its face, or the proceeds arising from their sale, as claimed in the present case, must be clear and of the most convincing character. This rule of law is laid down in the case of Boughman et al v. Boughman et al, 69 Ohio State, page 273, the Syllabus being as follows:

“Equity requires that parol evidence, to engraft an express trust in lands upon a deed absolute, shall clearly and convincingly show that contemporaneously with the execution of the deed the terms of the trust were declared and the beneficiaries designated. ’ ’

Applying the rule of law as herein laid down to the proven facts of the case at bar we are bound to find that the claim of the defendants is not well founded as to their being entitled to recover for the moneys alleged to have been paid by them on the real estate in question. We are bound to arrive at this conclusion after a careful examination of all the testimony and evidence offered in this case, and we have no hesitancy in saying that it is not of that clear, positive character and nature as to warrant a court to find that a trust had been created in the lands in question or in the proceeds arising therefrom.

But how stand the issues in this case as to the taxes and rents and profits? Without discussing these questions further than to say that we are of the opinion from the evidence in the case and the law governing the facts so established by the evidence, we find that Rose Wagner should account for her share of the taxes to John S. Wagner from April 18, 1912, to November 13, 1913, and to account to Mahala Wagner for one-half of the rents and profits from said lands from the date of the deed from John S. Wagner and Mahala Wagner to Rose Wagner, being November 13, 1913.

We further find that the claim of James Hindman as to the amount due him on his notes and mortgage, as set forth in his answer and cross-petition, are undisputed, and therefore find that he is entitled to a decree in his favor as prayed for in his cross-petition. We further find that the plaintiff is entitled to a decree in her favor for partition of the real estate described in her petition as prayed for therein.

A decree and judgment accordingly, and an entry may be drawn by counsel in accordance with the findings herein.

Powell, J., and Shields, J., concur.


text:
    CONTRACTS OF NOVATION.
    [Circuit Court of Cuyahoga County.]
    Edward Jarmusch v. Otis Iron & Steel Co.

    Decided, December 16, 1901.

      Novation — Requisites of Contract of — Evidence Establishing That Employe Became Party to — Pleading Construed in Harmony With Theory Upon Which Trial Proceeded — Obligation Not Within Statute of Frauds — General Verdict — All Defenses Need Not Be Sustained.

    1 A contract of novation becomes binding, when based upon: (1) a previous valid obligation; (2) an agreement by the old parties and the new party to the new contract; (3) that the new contract shall be complete and extinguish the old; and (4) the making of a valid new contract.
    2. In a sale by one corporation to another of its entire property and business, one condition being that the new company shall carry out a contract previously entered into by the old company, the obligation of the new company is a new obligation, founded upon a sufficient consideration, and it is not necessary that it be in writing as required by the statute of frauds.
    3. An employe of the old company under a specified contract, who has conversations with the officers of the new company regarding his contract, and in conformity therewith is placed on the pay-roll at stipulated wages, is estopped from complaining that the finding of the jury that he was a party to the novation was warranted and that he is without a claim against the old company.
    4. Where an answer fails from a technical point of view to set up a novation, but the case was tried on that theory, and there was evidence supporting such a theory, it is not reversible error for the court in its charge to the jury to construe the contract as setting up such a defense.
    5. In a case where there were numerous defenses and the verdict was a general one, if there was sufficient evidence to sustain any one of the defenses, the judgment will not be reversed.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
    Heard on error.

       Affirmed by the Supreme Court of Ohio, May 12, 1903.

   The plaintiff brought his action in the common pleas court to recover damages from the Otis Iron & Steel Company for the violation of a contract that he had with the defendant. The plaintiff was injured while in the employ of the defendant and he settled with the defendant the damages he claimed by reason of such injury by a contract in which he was to have services as a crane-boy at certain wages, and at any time that the defendant thought him capable of doing other work more remunerative, it would give him such work.

In about a year after this contract was made and entered into, the Otis Iron & Steel Company sold out to the Otis Iron & Steel Company, Limited, an English corporation. The plaintiff continued to work for the new company for a number of years when he left its employ, claiming that he left by reason of the fact that the work that he was doing, which was the same work he entered upon after the making of the contract, had become dangerous to him in his crippled condition, by reason of new appliances put in, whereby the cranes were operated by electricity; and then brought this action to recover of the original company.

The original company made an attempt to plead a novation, and undertook to say in its answer that the plaintiff had, under this contract, worked for the defendant, and that there was an agreement to the effect that he should be continued under his contract by the new company.

The plaintiff claims that he did not know there was any change in the company; that he supposed,' for all the years that he was working there, that he was still working for the Otis Iron & Steel Company.

The plaintiff failed to recover in the common pleas court, and he prosecutes his petition in error here, and alleges numerous errors, and desires to have the judgment of the court of common pleas reversed by reason of such errors.

Among other things set up in the answer is a denial of the making of the contract on which suit is brought; and it is claimed that the verdict, being a general one in favor of the defendant, that that means that all the defenses of the defendant are sustained; and that the jury were not warranted in so finding, for the reason that there was no evidence tending to show that the defendant did not enter into the contract; but the law in such ease, as established in this state, is that where there are numerous defenses and the verdict is a general one, if there is sufficient evidence to sustain any one defense the case should not be reversed, and the ground taken by counsel that the case should be reversed for this reason is not well founded.

The plaintiff claims that he was prejudiced in the charge of the court in that the court stated in substance to the jury that the answer was to the effect that a contract of novation had been entered into between the old and new company and the plaintiff, and it is claimed that the answer is not to that effect, but is only to the effect that the plaintiff entered into a new contract with the new company, and that the old company was not a party to that new contract.

It is true that the answer does claim that'there was a novation, and, in stating the facts, does not state that the old company was a party to the contract that would work the novation, and', that the court perhaps gave a very liberal construction to the' answer; but the case was tried upon the theory that both the: old and the new company and the plaintiff were parties to the; new contract, and it seems that on the trial the answer was treated as setting np the defense fully as stated to the jury, while a literal construction of the answer, it might be said, does not show that the defendant averred that it was a party to the new contract. However, it being so treated on the trial, and evidence being offered tending to show that the old company was a party to the contract, we do not think it reversible error that the court to the jury construed the answer as it did.

It is claimed as error that the court did not charge upon the statute of frauds. The plaintiff contended that if the new company had agreed to carry out this contract with the plaintiff and at the request of the old company, that it was not a contract that would warrant the plaintiff in bringing suit upon it in case of a breach of the same; that it was a mere promise to pay the debt of another, and not in writing, and hence, under Section 4199, Revised Statutes, was not a valid contract and could not take the place of the old contract in law.

The record is silent in a large measure as to what the consideration was that passed from the old company to the new, that induced it to assume liability under this contract; but the entire evidence, taken as a whole, makes it clear that in the sale that was made by the old company of its property to the new company, one consideration was that the new company should obligate itself to carry out and entirely fulfill the obligations of the old company under the contract; if so there would be no statute of frauds applying to the matter at all, as in such case the obligation of the new company would be a new obligation founded upon a sufficient consideration, and it would not be necessary to have it in writing, nor cohld there be any defense to the same when sued upon the new contract.

It is contended that the new company had no power to make such a contract; that it was outside of the business that it was created to do. ¥e see nothing to this point. It was entirely legitimate for the new company to agree to carry out the contract of the old company with the plaintiff as a part consideration of the purchase of the property of the old company.

The attorneys in the case are in contention as to what constitutes a novation, and also as to whether or not there was sufficient evidence in the ease to establish a novation.

As we -understand it, the requisites of a contract of novation are: (1), A previous valid obligation; (2), An agreement of the old parties to the new contract; that is, of the two parties to the old contract and the party to the new contract; (3), That the new contract shall be so complete as to extinguish the old contract; (4), The making of a valid new contract.

When this is done a substitution is accomplished, which may be in the debt, the debtor or creditor. When it results in the substitution of a new debtor, the creditor has his cause of action for the violation of the contract against the new debtor only.

It is claimed that these requisites of a contract of novation are not established by the evidence, in this:

First. There is no evidence showing that the old company entered into any such agreement. The evidence on this question is not very voluminous, but there appears in the bill, we think, sufficient to warrant the jury in finding that the old company did take part in the agreement and was instrumental, perhaps wholly, in having the new company assume its liability to the plaintiff.

Second. It is claimed that the evidence does not show that the plaintiff was a party to the agreement of novation. There is no evidence showing that the plaintiff entered into negotiations with the two companies by which a contract of novation was made. The evidence consists in showing that he continued to work, and he claims that his continuing to work was, as he supposed all the while, for the old company, and that he was ignorant of any • change being made by which one company retired and another was substituted. But the facts are such that we think the jury were warranted in concluding that he must have known that he was not working for the company with which he made his first contract. And the evidence further consists of the fact thát he went at one time, when he had been laid off or the works were idle, to the officers of the new company and claimed that he had a contract by which they were to give him work, and, after two interviews upon t.Tiig matter, he was placed upon the pay roll by reason of his contract, at a stipulated rate of wages, whether he worked or not.

The jury were warranted in finding that he was urging with the new company that he had a contract with it, which could only have been the contract of novation, and that the new company after the officers had made the proper inquiry as to the obligation of it, acquiesced and proceeded to continue to carry out the contract of novation; which was sufficient evidence to warrant the jury in finding the verdict it did.

Preusser & Wenneman, for plaintiff in error.

If the jury were right thus far in its consideration of the case, it would then necessarily follow that the plaintiff would have no cause of action against the old company, for the old contract woud be canceled, and his cause of action, if any, would be upon the new contract. So that the result below would be the proper one, whether he -had quit work with sufficient excuse or not, and the question of damages as laid down by the court would be a matter of no consideration in determining the correct result of the case in the court of common pleas.

If this verdict was founded upon the charge of the court as to damages and as to whether the plaintiff had any reasonable excuse for quitting his employment, we find no error in the direction of the court upon that question, and we think the jury was warranted in finding that the plaintiff was not justified in quitting his employment under the circumstances.

So that, under whichever proposition these questions are considered, the verdict was justified by the jury, and the judgment of the court of common pleas is affirmed.


author: Parker, J.,

text:
    INSURANCE.
    [Circuit Court of Lucas County.]
    Charles A. Herbert v. Standard Life & Accident Ins. Co.

    Decided, October 26, 1901.

      Accident Policy — Taken by a Railway Employe — Premiums Payable on the Installment Plan — Insured Assigns Part of His Wages to Meet Premium — Afterward Collects All the Wages Hue Him — And is Injured Before the Insurance Company Would Have Received Its Premium Under the Assignment — When Did the Premium Become Due.

      1. Where a railway employe assigns a part of his wages for a given month to an insurance company, to pay the premium on an accident policy, which premium would become due in the regular course during that month, and the insurance company accepts the assignment, and the wages so assigned by a custom of the railway company are not payable until the 15th of the following month, and the employe leaves the service of the railway company during the month in question and draws all the wages due him, and before the end of the month meets with an accident, he can not maintain a suit on the policy on the theory that the unpaid premium was not payable until the 15th of the following month. [To this holding Judge Parker dissents, his view being that it was the privilege of the insured to have paid the premium with other money than the wages earned in the service of the railway company, and at any time on or before the 15th.day of the following month.]
    2. An accident insurance company can not avail itself of a provision in an application for insurance that the applicant has no other insurance, when it is in evidence that the insured told the agent of the company with whom he dealt that he had another policy, and the application was made out by the agent in his own handwriting. •
    Haynes, J.; Parker, J., and Hull, J., concur.
    This suit was brought upon a policy of insurance issued by the defendant company to Charles A. Herbert, and the case was tried and submitted to a jury in the court of common pleas, and a verdict was rendered for the defendant. Thereupon the plaintiff prosecutes this proceeding in error.

       Affirmed by the Supreme Court, March 24, J.903.

   The policy is a peculiar one, and was issued on the installment plan. The leading facts of the case are that Herbert was an engineer on a railroad in the state of Minnesota, and on March 28, 1900, he met an agent of that company whom he had met- before, at a hotel, and the agent renewed the subject of accident insurance and the issuing of a policy of accident insurance to him, and it was finally agreed that Herbert would take one. Thereupon the plaintiff wrote out the application, which was signed by the assured, and the agent then filled out the policy of insurance and delivered it to the assured on that same day. That policy was to commence on March 28, 1900, at noon. An assignment was made of the wages of the assured upon the railroad company, for four months, being $14.40 a month, which would pay the amount of the premiums, $57.60, under the terms of the policy, to which I will refer later.

The plaintiff continued in the employ of the company during the balance of March, the month of April, and until May 17, at which time he drew the money that was due him for the month of May, the money that was due the insurance copipany for the month of April having been paid to it by the railway company. On May 17 he drew the whole of his money, left the employ of the company, came to Toledo, Ohio, where he remained for some time, and on May 29 he was injured by a fall, breaking his leg. He then brought suit against the insurance company for the amount of certain monthly payments that he claims are due him under the terms of the policy.

The defense is, that under the peculiar terms of the policy and the action of the plaintiff, the policy had terminated on May 28, and was not in force at the time the plaintiff was injured on May 29.

That brings us to the terms of the policy. It is said to be a policy upon the installment plan; that is to say, it has been conceived and gotten up for the purpose of insuring persons who have no present means of paying the premiums, and who make arrangements to have the payment made from their wages. The policy starts out:

“In considerationo of the warranties in the application for this policy, and of an order which is to be considered an assignment of moneys therein specified on the paymaster of the C., St. P., M. & O. Ry., hereby insures Charles A. Herbert, of St. James, locomotive engineer by occupation, for the period or periods hereinafter specified, beginning at 12 o’clock noon, standard time, of the day this policy is dated, against bodily injuries sustained, through external, violent, and accidental means, and will pay to him, if surviving, or to Mrs. Anna Herbert, his wife, or, in event of her prior death, to the executors, administrators or assigns of the insured, the indemnity provided in the schedule hereinafter contained, styled, death and indemnity. ’ ’

In the application for the policy of insurance, after stating many other things, it is stated:

“Accident premium, $57.60. The premium to be paid by four equal monthly installments as follows: $14.40 from my wages for the month of April, 1900; $14.40 from my wages for the month of May, 1900; $14.40 from my wages for the month of June, 1900; $14.40 from my wages for the month of July, 1900; which shall apply to the respective insurance periods, and that the policy shall be considered binding only for such insurance period as is covered by an installment of premium actually paid, except as to the time fixed for payment of the first installment. ’ ’

Here is the peculiarity of the installment plan: “The payments made in the order of assignment are premiums for separate consecutive periods of two, two, three, and five months; and each is to apply only to its corresponding insurance period. All claims for injuries received during any period for which the respective premium shall not have been actually paid shall be forfeited to the company. Except that in case of a just claim before the first premium is due, if the sum due the insured be less than the sum.of all the payments called for by the order or assignment, the amount of the claim shall be credited thereon ; if greater, the order or assignment shall be receipted in full and the balance paid to the insured. In making settlement for any claim for injuries received during any insurance period for which the premium has been paid, the amount of the premium for later unpaid periods may be deducted from the amount found due.”

It is further provided that “in ease the insured shall fail to leave in the hands of the paymaster any installment of premium as it shall fall due, as agreed in said order or assignment, this policy shall be void.”

Then there is attached to it the written assignment:

“For value received, I hereby assign to the Standard Life & Accident Insurance Company, of Detroit, Michigan, or its authorized agent, four premiums, for separate insurance contracts, as follows:
“First premium, $14.40; to be paid and deducted from my wages, for the month of April, 1900.
“Second premium, $14.40, tO' be paid and deducted from my wages, for the njonth of May, 1900.
“Third premium, $14.40, to be paid and deducted from my wages, for the month of June, 1900.
“Fourth premium, $14.40, to be paid and deducted from my wages, for the month of July, 1900.
“Express Agreement. — The payments named in this assignment are premiums for separate and independent contracts for consecutive periods of two, two, three, and five months; and each shall apply only to’its corresponding insurance period. All claims for injuries received during any period, for which its respective premium shall not have been actually paid, shall be forfeited to the company. Except that, in case of a just claim, before the first premium shall be due, if the sum due the insured be less than the sum of all the payments called for by this assignment, it shall be credited thereon; if greater, the assignment shall be receipted in full and the balance paid to the insured.”

The effect of that policy was to insure him for a year, if the payments were made. The first covered two months, and the next the two months following, and the next three months, and the next five. Under the terms of payment, the policy being issued on March 28, the amount taken out of the earnings of the month of April — $14.40—paid two months, to-wit, to May 28; then the payments taken out of the May earnings would pay two months more, to-wit, to July 28, and the June payment would pay to October 28, and the July payment would pay for the balance of the year, five months. This is the written contract. As a matter of fact, the railway company in the course of its business only made their payments monthly, on the fifteenth day of the following month; that is to say, the earnings for the month of April were paid to the plaintiff on May 15, and so on for each of the succeeding consecutive months.

The first payment of $14.40 in this case was paid on May 15, and on the seventeenth day he left the employ of the company, and took the whole of his May wages, leaving nothing whatever in the hands of the company, and on May 29 he was injured, and the claim is made now on the part of the assured that his policy was still in force at the time he was injured, and that he has a right to recover. The company, on the contrary, claims that inasmuch as he had drawn his money out of the hands of the railway company, and had left nothing there for the payment of the amount due, under the terms of the policy, the policy had ceased to exist and be in force on May 28.

We have examined the pase very fully, but we have not been able to agree entirely upon the rights of the parties, and the opinion that is now delivered will be the opinion of a majority of the court.

It will be observed that nothing whatever is said in the policy or application in regard to any extension of time when the payment of these sums assigned will or -may be made. It is only shown by extraneous evidence that as a matter of custom the railroad company did not make its payments until the fifteenth day of the following month for any month’s wages, and the testimony shows that this was understood by the insurer, because this was not the only policy it held upon employes of this railroad' company similar to the one in controversy. It seems to have been the custom of the insurance company to send a list, prior .to the middle of the following month, of the policies that had been issued and the amounts that were due, to the railway company, and the company had been accustomed to leave in the hands of the paymaster money to a sufficient amount to pay the insurance premiums, and, as we understand, pay it to the insurance company. It amounted in one month that is shown here to something like $460 for that month.

The question here is whether this policy of insurance was in force on May 29. The majority of the court are of the opinion that it was not. In the first place, the assignment of the payments was an absolute assignment: “I hereby assign to the Standard Life & Accident Insurance Co.,' of Detroit, Mich., or its authorized agent, four premiums for separate insurance contracts as follows.” It appears incidentally in the evidence that the assignment was recognized by the railway company. It consented to the separating of plaintiff’s wages, and paid a part to him and a part to the insurance company; so that at least so far as he was able, he had vested in the insurance company those respective sums. It was provided in the tenth clause—

“In case the insured shall fail to leave in the hands of the paymaster any installment of premium as it shall fall due, as agreed in said order or assignment, this policy shall be void.”

Herbert’s wages for the month of May would not, in the course of the business, be paid to him until the middle of June, but it was the right of the company to expect, under this assignment, that so much of that amount that was earned during the month of May would be left in the hands of the railway company to meet the amount of this premium of $14.40. He had assigned it to the insurance company absolutely, on the face of the assignment, and it provided that he should leave this amount with the railway company, or his policy would be void. In this particular month he had earned more than sufficient to pay the $14.40, for at the time he left he drew out about $60 in money, that being all that was due him, and left no sum whatever in the hands of the company with which to meet this assignment that was outstanding. His contention is that he had a credit, by the course of their business, to the middle of the next month to make the payment for that period, and if at the time the money became due, on the fifteenth of the month, he should place that amount with the railroad company, or perhaps tender it to the insurance company in some other form, that then his policy would be good, and would be continued. But it is the opinion of the majority of the court that he had no credit to that time, save and except as he left for the insurance company the amount of money that was earned during the month, to cover the premium for the two months after March 28. Had he left that amount of his earnings in the hands of the railway company, for that month, the majority of the court have no doubt that then the insurance would have continued; that is to say, by the course of dealing of the insurance company, when the money was left with the railroad company, the insurance company was willing to wait until the middle of the month to receive it. But they had expressly agreed that unless the money was left there, the policy would be void. The plaintiff chose not to leave it, thus violating his assignment and his agreement, and his policy became void. The money being earned, it was a payment in advance. And that was anticipated by the insurance company, because there is a special agreement in regard to this month, that is to say, the month of April, the wages for which were unearned at the time the policy was issued, and he was permitted to have his .insurance, although the payment was .not to be made until later on.

Marshall & Fraser, for plaintiff in error.

Smith & Baker, for defendant in error.

The question is made as to whether a certain statement was made by the assured in regard to having other insurance, which would avoid his policy, there being no provision in the application that he had no other insurance. The testimony of the plaintiff that he told the agent at the time of filling the application (which was done by the agent himself, in his own handwriting) that he had another policy of $1,000 in a casualty insurance company in Detroit, and the agent'went on and drew the application, had him sign it, wrote the policy and delivered it to him, with full knowledge of that fact, we think under the policy of the law and the decisions, that that should not avoid the policy.

Other questions were made in the case, but inasmuch as the majority of the court are of the opinion that the policy of insurance was not in force at the time the accident occurred, it is unnecessary to discuss those.

The judgment of the court of common pleas will be affirmed.

Parker, J.,

dissenting.

I find myself unable to concur in the conclusions of my associates in this case, and I will undertake to state the grounds of my dissent.

This insurance, like all other insurance of which I have ever had any knowledge, appears to me to have been written in consideration of certain premiums to be paid at certain times, and not in consideration of money to be earned in a certfain way or at certain times, or to be kept on deposit in a certain place. It seems to me, therefore, that the crucial question, the whole question here is: Did the insured fail to pay his premiums or any installment of the premiums at the time agreed upon, whereby the policy lapsed or lost its force ?

It will be observed, as already stated, that this policy, and this application and the so-called assignment, provide that the payments are premiums for separate and independent consecutive periods of two, two, three and five months, and further, that each installment shall apply only to its corresponding insurance period. The sum of these periods is one year, and the sum of thesé installments of premium is $57.60.

The first period of two months began on March 28, and expired May 28. The premium for this period, $14.40, was paid on May 14 from the April wages of the insured. It appears that that was the time agreed upon as the time for the payment of this premium, though another time is expressly stated in the contract. I arrive at this from the circumstances surrounding the transaction. There is no controversy about that; the insured was to receive his April wages from the company on May 14, and he could not receive them before, and the insurance company could not receive those wages before that time upon this so-called assignment. So that the insurance company had agreed to give to the insured a credit of seventeen days for the payment of this first installment of premium. I shall undertake to point out that there was no special arrangement about this particular payment, but that all these payments "stand upon precisely the same footing.

The second period began on May 28 and expired on July 28. The premium for that period was $14.40, to be paid from his May wages, which would become due and payable on June 14; and therefore he was to have a credit of seventeen days for that premium. In other words, his policy was to be in force for a period of seventeen days of that second period without previous payment of anything on account thereof.

The third period began July 28 and expired October 28. The premium for that period was $14.40, to be paid from his June wages, that is, on July 14th. So that on account of this period the company extended him no credit, but required him to pay this installment of premium fourteen days in advance of the beginning thereof. The fourth period began on October 28, 1900, and expired on March 28, 1901. The premium for that period was $14.40, to be paid from his July wages, that is, upon August 14, when his July wages would become due and payable, and would be available to him or to the company. So that the company did not agree to extend to him any credit or time for the payment of the premium on account of that period, but on the other hand they required him to pay for that period seventy-twp days in advance of the beginning thereof.

In order to keep the policy alive as to the third and fourth periods, the payments on account thereof must be made in the one case fourteen days before it began, and in the other case seventy-two days before it began. And that seems to me to be important in view of certain provisions in the policy, the assignment and the application upon the construction whereof we differ. The so-called assignment after providing that the assured assigns to the Standard Life & Accident Insurance Company or its authorized agent, four premiums for. separate insurance contracts, and stating the amounts ‘and the wages from which these installments are to be deducted, this occurs:

“Express Agreement. — The payments made in this assignment are premiums for separate and independent contracts for consecutive periods of two, two, three and five months; and each shall apply only to its corresponding insurance period.”

Then comes this sentence:

“All claims for injuries received during any period, for which its respective premium shall not have been actually paid, shall be forfeited to the company.”

That is followed by this:

“Except that, in case of a just claim, before the first premium shall be due, if the sum due the insured be less than the sum of all the payments called for by this assignment, it shall be credited thereon; if greater, the assignment shall be receipted in full and the balance paid to the insured.”

I have divided this clause to make my meaning more clear. The construction that is put upon this entire clause beginning with the words “express agreement,” by counsel for the insuranee company and by my associates, is this: That all claims for injuries received during any period except the first period, for which its respective premium shall not have been actually paid, shall be forfeited to the company; but as to the first period, if there shall be a just claim before the# premium therefor falls due, the sum due the assured shall be paid to him. I do not put that construction upon this paragraph. It seems to me that the exception set forth here has no application whatever to the , sentence and provision reading as follows: “All claims for injuries received during any period, for which its respective premium shall not have been actually paid, shall be forfeited to the company,” but that the exception applies to the sentence immediately preceding that, and that this sentence which I have just x'ead stands alone and independent of the others, and is general in its tei’ms, applying to. any injury and to any premium. I will read the clause, omitting that sentence, so that the application may be seen:

“The payments named in this assignment are premiums for separate and independent contracts for consecutive periods of two, two, three and five months; and each- shall apply only to its corresponding insurance period. Except that, in case of a just claim, before the first premium shall be due, if the sum due the insured be less than the sum of all the payments called for by this assignment, it shall be credited thereon; if greater, the assignment shall be receipted in full and the balance paid to the insured. ’ ’

In other words, if a loss occurs before May 14, the premium for the whole year, that is, $57.60, may be set off by the company against the amount of such loss; if a loss shall occur after May 14, no more shall be set off by the company than the premium for the period within which the loss occurred. And this stipulation for the set-off for periods subsequent to the first period could apply to the second period only, and shows that it was contemplated that a loss might occur before the premium for the second period had been paid. I say it could apply to the second period only, since with respect to the third and fourth periods it is expressly provided that, in the one case the premium shall be paid fourteen days before the period begins, and in the other case seventy-two days before the period begins. This exception, therefore, as to the first period, in favor of the company, is to the effect that in consideration of their giving this credit of a month and seventeen days, at the expiration of which time the first premium is to be paid, it is provided that in the event of an injury to the insured, or anything happening upon which he .would have a claim against the company, as against such claim ocurring during that period, the company shall have a right to set off the whole premium of $57.60; or, in other words, the premium for the whole year. So that the provision that “All claims for injuries received during any period, for which its respective premium shall not have been actually paid, shall be forfeited to the company,” stands there, ■in my opinion, entirely unaffected by the provisions of this exception, which do not seem to have any pertinency, or any possible application, to that provision. This so-called exception is a provision simply as to the amount of set-off that the company shall have as against claims for losses occurring during the different periods.

It has no influence upon the question as to when the premium is to fall due and be payable. I find in these different instruments which make up the contract between the insured and the company, no provision that a failure to earn the premium at a certain''time, or in a certain way, or to keep it on deposit in a certain place, shall nullify the policy or shall work its forfeiture, or shall cause it to lapse; or that the doing of any of these things is required as a condition precedent to the taking effect of the policy for any period. There is no especial or peculiar value or virtue in the money earned by the insured as wages in working for the railroad company. Any other money is precisely as good to the insurance company. It seems to me that they so regarded it; that all they required was that the premiums should be paid when they fell due.

As I have said, it seems to me that a fair construction of the contract, in the light of all the circumstances, is, that the premiums were to fall due at the respective periods or times when the wages for the months of April, May, June and July were to fall due, and that therefore this provision in the assignment that all claims for injuries received during any period for which these respective premiums shall not be actually paid shall be forfeited to the company, must be considered in the light of all the surroundings and the evident intent of the parties; and read in the light of these things, it seems to me that it must be read as follows: That all claims for injuries received during any period for which the premium shall not be actually paid after it becomes due and payable, shall be forfeited to the company, otherwise this agreement would be a delusion and a .snare to the insured. He promised to pay for and supposed he was to be insured during the month and seventeen days intervening between March 28 and May 14, when the first payment is to be made to the company. But he is to pay nothing actually, before May 14. And it seems to me that it would not lie in the mouth of the company to say that the construction to be put upon this provision is that if he suffered a loss during that period— an injury on account of which he supposed he would have a claim against the company — he could not recover, because the premium for the period had not been actually paid.

The same should be true as to the second period after he paid the premium for the first period upon May 14. That payment would carry the insurance up to May 28. The next installment of premium would be payable upon June 14. The time intervening between May 28 and June 14 would be seventeen days. The insured was injured during those seventeen days, to-wit, upon May 29. • And thereupon he is confronted with the proposition that since the premium had not been actually paid for the period beginning upon May 28 and expiring upon June 14, he can recover nothing. In my judgment, the policy was in full force. Credit for those seventeen days had been extended to him; and if upon June 14 he met the requirements — that is to say, paid any premium then due to the company — he would have a right to recover upon his policy.

But stress is laid upon the tenth clause in the certificate which reads as follows:

“In case the insured shall fail to leave in the hands of the paymaster any installment of premium as it shall fall due, as agreed in said order or assignment, this policy shall be void.”

It seems to me that in the light of all the surrounding circumstances that is to be read in connection with the clause in the assignment to which I have referred requiring actual payment, is as follows: “In case the insured shall fail to leave in the hands of the paymaster any installment as it shall fall due, at the time it shall become due and payable to the company, so that the company may avail itself of it; or if he shall fail to pay that amount to the company at the time it shall become due and payable, then this policy shall -be void. ’ ’ That he was’ not required to pay his premiums from this particular source, and was not required to earn the money in this particular way, or leave it on deposit in this manner, in order to keep the policy alive, is, I believe, entirely clear, and is conceded by counsel for the company. Apparently it was so understood, for a notice upon the back of the envelope which was delivered to him, in which his certificate was contained, and which formed a part of the agreement between the parties, reads as follows:

“Notice to Policy Holders: — If your policy is to be paid in installments by orders on a paymaster, it is your duty to make sure that each installment is deducted by the paymaster when due, and to notify him if it is not, that he may make the deductions at once. Should you leave the service of the company in which you were employed when insured, you should, for your own protection, send the unpaid installments to the office as soon as they become due.”

That is all the insured was required to do to keep his policy alive; he was not required absolutely to earn the money at the hands of the railroad company, nor was he required absolutely to leave it on deposit; he was given the option to do that, or failing to do that, to pay the premium to the insurance company when it fell due.

As \I say, it seems to me that the sole question here is: When did this premium for this particular period beginning upon May 28 fall due? Did the insured make default in the payment of that premium ? There is no provision, as I construe this contract, that if he shall pay this premium from his wages in the way arranged by this assignment and not otherwise, he shall have until June 14 in which to pay it; that in that event it shall be due and payable upon June 14; but if he does not pay it in this way from this fund, then it shall fall due earlier, that it shall fall due upon May 28. As I understand it, that is the ground upon which a majority of the court arrive at their conclusion that the insured was in default; that is to say, if he had left this particular money on deposit, so that the insurance company might draw it on the 14th day of June, then he would have until June 14 in which to pay it, but failing to do that, he must pay it at the beginning of that period, i. e., on May 28. I find in these writings which make up the contract no provision that any part of the premium shall in any instance be paid at the beginning of the period, or that it shall then fall due. Let us apply that construction and that course of reasoning to the third and fourth installments. What then would be the effect? The third installment is payable from the June wages, and on July 14, when the June wages would be payable. It seems to me, as the result of that reasoning, if he failed to leave his June wages on deposit so that they might be drawn by the company on July 14, his obligation would be to pay the $14.40 on account of the third period at the beginning of the third period, which would be on July 28, fourteen days later. In other^ words, by withdrawing the money from the hands of the railroad company, he has the time extended for fourteen days in which to pay the premium for the third period and keep the policy alive. Apply it to the fourth period: He withdraws his July wages; the railroad company is without funds to pay for that period upon August 14, and the effect is that it gives him until the beginning at that period, to-wit, October 28, in which to pay the premium for that period and keep the policy alive, postponing the payment to the insurance company forty-four days. I do not think that the insured has ány such right. I think that the agreement is plain that he is to pay for each of the periods at the time fixed for the payment of his wages for the months so to be devoted to the payments for the periods respectively; in other words, the assignment, besides being an assignment, is an agreement that the premiums for the respective periods shall be due and payable at the times that his wages for the respective months become due and payable, and that whether the insured pays the premiums from these wages or from some other source is all the same to the insurance company.

Counsel insist that there is some security to the insurance company through this assignment of wages, but it is quite apparent from the whole record that there is not. The assignment is not recognized by the railroad company unless acquiesced in by the employee at the period when the wages become due and payable. The wages are then on hand, and the insured may or may not permit them to be drawn by the insurance company. They are entirely under the control of the insured during the whole period, as much so as if he had the money in his own pocket. It is simply a convenient arrangement whereby the insured may obtain a certain credit for part of the time, and the insurance company may have its pay far in advance of the insurance period for part of the time, and the insured is not to be troubled with hunting up the insurance company to pay his premium, and the insurance company is not to be troubled hunting up the insured to collect. It is a convenient arrangement for the transfer of this money that shall be due and on hand at the time it shall become due from the railroad to the insured and from him to the insurance company. But if he has other money which he pays to the insurance company it is certainly as valuable to them, and ought to be as effective for the preservation of the life of his policy. They might as well, so far as the assignment, as a matter of security, have provided that the money which he derived from some certain occupation for a certain period he should keep in his left hand trousers pocket until it became due and payable to the company, and if he kept it in his left hand trousers pocket during that period his policy should be kept alive, but if he failed to do it the policy would lapse. The important thing is, that when the money becomes due and payable to the company, it shall be paid to the company.

Long before June 14 the insured had received his injury, and his claim against the company, it is conceded, if the policy were alive, amounted to more than the premium then due. Therefore he was not then called upon to pay anything to the company. The company did not undertake to defeat his claim upon the ground that the premium had become due on May 28, and that he had failed to pay it; the company do not assert the claim that the premium became due at an earlier period in consequence of his having failed to leave his wages with the railroad company, but they assert here the claim that because he did not leave this money in the hands of the railroad company until June 14, which was the time to draw it, his policy had lapsed, notwithstanding the fact that they had no right to draw it, and had no claim upon it, or any part of it for any of this period between May 28 and June 14, even if he had left it there, because he had suffered this injury and had a claim against the insurance company which amounted to more than the premium for this period. I do not believe that is a just, or fair or reasonable conclusion, and therefore I dissent.