text:
    M. W. Wise v. E. Fred Vosburg and J. L. Vosburg. Appeal of R. V. Spackman.

      Execution — Special fi. fa. against partnership interest.

    The Act of April 8, 1878, P. L. 65 authorizing a writ of fieri facias for the sale of the interest of the defendant in a copartnership of which he is a member, did not provide a new remedy but recognized, enlarged and rendered more effective a remedy theretofore existing.

      Execution — Priority of liens.

    Where an actual levy has been made on defendant’s interest in a copartnership under an ordinary writ of fieri facias, such levy will prevail over a subsequent levy made under a special writ of fieri facias issued under the act of Ap>ril 8, 1878.

      Argued Feb. 9, 1897.
    Appeal, No. 24, Feb. T., 1897, by R. V. Spackman, from decree of C. P. Clearfield Co., Feb. T., 1895, Nos. 161 and 162, distributing money arising from sheriff’s sale. ■
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orladt and Smith, JJ.
    Affirmed.
    Exceptions to auditor’s report distributing a fund arising from sheriff’s sale. Before Gordon, P. J.
    The following facts are found by the auditor :
    1. That judgment was entered upon single bill in favor of R. V. Spackman versus E. Fred Vosburg on the 2d day of January, 1895, in the sum of $2,000, and that a writ of fieri facias in the ordinary common form was issued to No. 55, February term, 1895, and lodged with the sheriff, F. M. Cardón, at 10:18 o’clock A. M, on the 2d of January, A. D. 1895; and also that a writ in the special form, commanding the sheriff, “ To levy the sum of said judgment, with interest, and costs of suit upon the interest of the said defendant in any personal, mixed, or real property rights, claim and credit in all partnership property consisting of the firm of Vosburg & Play, said partnership property situate in DuBois, Clearfield county, Pa.,” was issued to No. 56, February term, 1895, and lodged with the sheriff at 10:18 o’clock A. M. January 2, 1895, was issued to No. 56, February term, 1895.
    On both these writs is the following indorsement: “Levy made December 28,1894,” and the same is indorsed on the writ, see schedule attached to fi. fa., No. 41, E'ebruary term, 1895. F. M. Cardón, sheriff.
    The special writ issued to No. 56, February term, 1895, above mentioned was in pursuance of a precipe, filed with the prothonotary requesting and directing the same.
    2. That judgments were entered upon single bills given to M. W. Wise, then cashier of the Bank of DuBois, versus E. Fred Vosburg and J. L. Vosburg to Nos. 161,162, February term, 1895, on the 27th day of December, 1894, as follows:
    “No. 161," February term, 1895, amount debt and attorney commission, $1,995 and interest.”
    No. 162, February term, debt, attorney’s commission, $2,100 and interest, and on the same day a judgment upon single bill was also entered against E. Fred Yosburg and R. Y. Spade-man in the sum of $2,200, debt and attorney’s commission, with interest, to No. 163, February term, 1895. That writs of fieri facias were issued on judgments Nos. 161 and 162, February term, 1895, on 27th December, 1894, and lodged with the sheriff at 5 o’clock and 19 minutes P. M. of said day. These writs of fi. fa. were both in the common or ordinary form, and neither purported to be special writs under the act of 8th of April, 1873. They are docketed to Nos. 40 and 41, February term, 1895. ■
    3. That a writ of fi. fa. was also issued on judgment No. 163, February term, 1895, on the 2d of January, 1895, and lodged with the sheriff at 10 o’clock and 27 minutes A. M.; on this writ is also indorsed the following, viz: “Now December 28th, 1894, levy made and same is indorsed on this writ, see schedule attached to fi. fa., No. 41, February term, 1895. F. M. Cardón, Sheriff.”
    This indorsement and the indorsements on writs of fi. fa., Nos. 55 and 56, February term, 1895, mentioned in*paragraph 1, can only be read as stating the fact that the sheriff had on the 28th of December, 1894, levied on the property, a schedule of which was attached to fi. fa., No. 41, February term, 1895, for it will be observed that the fi. fa., Nos. 55 and 56, and also the fi. fa., No. 58, February term, 1895, did not reach the sheriff until 2nd January, 1895, and that he therefore intended to refer to the former writs for the levy made.
    4. That the sheriff returns the following indorsement on fi. fa., No. 41, February term, 1895, “ By virtue of within writ of fi. fa., issued out of the Court of Common Pleas of Clearfield County, and to me directed I have levied upon all the following described goods: 9 show cases and contents, drugs of all descriptions, cigars, stationery, and all defendant’s personal property, consisting of a first-class drug store,” seized, taken in execution as the property of E. Fred Yosburg.
    “ Also all defendant’s undivided interest in the drug store in the third ward of DuBois, doing business under the firm name of Yosburg and Hay as partners in partnership, seized, taken in execution as the interest of E. Fred Yosburg. F. M. Car-don, Sheriff.”
    Dec. 28, 1894. There is also indorsed on the writ these words: “ Store 8 P. M., Int. Store, 9 p. M.”

      April 12, 1897:
    5. Daniel Wisotzkey, who was deputy sheriff at the time of the issue of these writs on judgments Nos. 161 and 162, February term, 1895, testifies “that when he went to DuBois with the writs he was instructed by Mr. Pentz, attorney for the bank of DuBois to levy on all the personal property of E. Fred Vosburg, and upon his interest in the store in the Third ward, conducted in the firm name of Vosburg & Hay, and that he did so.”
    The auditor awarded the balance, after deducting costs of the audit, etc. to writs of fi. fa., Nos. 40 and 41, February term, 1895, pro rata. Exceptions were filed to the auditor’s report, which were dismissed by the court.

      Error assigned was in overruling the 2d exception of appellant which exception was as follows: “ 2d. The auditor erred in not awarding the money arising from the sale of the partnership interest in the firm of Vosburg & Hay to the special fi. fa. on the judgment of R. V. Spademan instead of awarding it to the general or common fi. fa. on the judgment of the Bank of DuBois.”

      A. L. Cole, with him E. A. Moore, for appellant.
    — This case is controlled by Piare v. Com., 92 Pa. 141, and Kaine’s Appeal, 92 Pa. 273.

      W. C. Pentz, for appellee, relied on Dengler’s Appeal, 125 Pa. 12.
   Opinion by

Rice, P. J.,

The appellee issued a fi. fa. in the ordinary form, and, on December 28, 1894, by direction of his attorney, the sheriff levied upon the defendant’s partnership interest in a drug store. On January 2, 1895, the appellant issued a fi. fa. in the special form prescribed by the Act of April 8, 1873, P. L. 65, upon which the sheriff indorsed the levy made on the prior writ as follows: “Now December 28, 1894, levy made and same is indorsed on this writ, see schedule attached to fi. fa. No. 41, February term, 1895,” (the appellee’s writ). This brief summary of the facts, which are fully set out in the auditor’s report, is sufficient to show the precise question for our determination. The appellant’s contention is that, although prior in time, the first-mentioned writ acquired no lien upon the defendant’s partnership interest, because it was not in the form prescribed by the act of 1873. The auditor and the court below held that the levy on the special fi. fa. was subject to the levy made on the prior writ, and, upon the authority of Dengler’s Appeal, 125 Pa. 12, awarded the fund to the writ first levied. We do not see how they could have done otherwise. The cases are exactly parallel, as the following concise statement of the present chief justice will show: “In the case at bar, the sheriff, acting under verbal directions, did make an actual levy on the defendant’s interest in the partnership .... at least one day before the appellee’s writ was issued. The levy thus made was good, as against the subsequent special execution and levy, subject to the first levy, and the fund raised by the sale is applicable to appellant’s execution. In any view that can be taken of the sheriff’s returns, whether we regard them as returning the money made out of the sale of defendant’s individual personal property, or out of the sale of his interest in the partnership of which he was then a member, the appellee is not entitled to the fund in controversy.” We need not take time to point out the distinction between this case and Hare v. Commonwealth, 92 Pa. 141, and Kaine’s App., 92 Pa. 273. This was done in Dengler’s Appeal.

The decree is affirmed and the appellant is directed to pay the costs.


source: Caselaw Access Project

author: Reeder, J.,

license: Public Domain

text:
    John Dennis v. The Citizens Insurance Co., of Pittsburg, Pa., Appellant.

      Contract — Compromise agreement — Binding effect of.

    A compromise fairly entered into discharges the original cause of action which cannot be recurred to by either party. The settlement of the controversy imports a consideration.

      Insurance — Adequate notice of total loss.

    A notice in writing of the total loss of an insured building is sufficient proof of loss if followed by a denial of any liability by the company, coupled with the assertion that the company would pay all that they would be obliged to pay if they recognized the validity of the policy as a settlement of loss.

      Question for jury — Insurance—Compromise settlement — Misrepresentations.

    A notice of total loss having been given an insurance company and a compromise settlement having been agreed upon, in an action on the policy the question is properly for the jury when the evidence, though conflicting, tends to show that the plaintiff has been induced to agree to the settlement by reason of misrepresentations made by the representative of the insurance company.
    Argued Jan. 20, 1897.
    Appeal, No. 21, Jan. T., 1897, by-defendant, from judgment of C. P. Luzerne Co., Oct. T., 1893, No. 893, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit on policy of insurance. Before Lynch, P. J.
    It appeared from the evidence that plaintiff was the owner of an old frame house purchased by him in 1891 for $100. He insured it with defendant company for $400, and during the term of the policy it was totally destroyed'by fire. Notice of the loss was given to the agent of the company in writing. It was alleged by the defendant and evidence given tending to prove the allegation that in an interview with the adjuster plaintiff conceded that the house cost originally $100 and that he had spent from $60.00 to $90.00 in repairs, that it rented for from $10.00 to $12.00 per month, that after some discussion as to the value of the house the insured agreed to accept $154 as its present valuation, whereupon an affidavit of proof of loss and settlement was made and sworn to. Subsequently a check was sent for the $154 which plaintiff refused to accept, demanding the full amount of the insurance. The plaintiff’s testimony, which was contradicted, tended to show that the compromise settlement was obtained from him upon misrepresentations as to the status of the policy and his rights under it, plaintiff stating that the company’s agent, Mr. Paine, had told him: “ That $154 was all the company would pay.” “ I says, why, Mr. Paine ? ” and he said “ A boy insured that house of yours, a boy in Pittston, Lance’s office boy insured that house of yours, and for that matter you would not get one cent.” He said: “You might as well take this, take this or 'take none. He just sSid that right out.”
    The trial judge left the question to the jury to determine whether the settlement, otherwise binding, had been effected by misrepresentations or deceit.
    Verdict and judgment for plaintiff for $456. Plaintiff appealed.

      Errors assigned were (1) in charging the jury as folloAvs: “ The contract is in the policy (unless there was a new one made at another time) and by it these parties must be judged unless the terms of it were waived or a new one entered into. The proof of loss is for the purpose of giving information to the company in order that it may be advised of the nature and character of the loss and it may not be imposed upon. It is not a contract or agreement between the parties. If a contract in one sense of the word it is not a solemn agreement entered into and signed by both parties stipulating what each party shall do; it is merely an endeavor on the part of the assured in accordance with the terms of the policy to carry out the directions laid down in the policy which requires he shall make proof of loss, but it also provides that the company shall not be bound by the amount of money named by the assured in the proof of loss nor the quality or number of articles named in the list. If these parties had entered into and signed a solemn agreement in order to set such agreement aside or alter or vary its terms it would be necessary that plaintiff prove it Avas signed on his part by means of fraud, accident or mistake. The proof of loss is more in the nature of a receipt or a declaration made by the party, and if the jury is satisfied he was deceived or made the statement in ignorance of his legal rights concerning the matter he may change or correct the statement. For instance, if a man gÍAres a receipt in full in settlement of a claim and states in the receipt that he received but a part or that he received the whole sum due he may after-wards in court prove that at the time he gave the receipt he was deceived or mistaken or misled.”
    (2) In charging the jury as follows: — “ But it is not upon the written paper, as I understand counsel for the defense, defendant relies, but upon an alleged agreement made between the adjuster of the company and Mr. Dennis when, they say, Mr. Dennis fully understood his legal rights under the terms of the policy. If this position is correct Mr. Dennis should be compelled to stand by it. If without mistake, deceit or fraud, and understanding fully his legal rights under the contract of insurance, he settled or agreed to settle with the insurance company, he should be compelled to standby it. You will consider the circumstances of the parties as they existed at the time,— Mr. Dennis’occupation; apparent intelligence; business opportunities for understanding his rights ; where he was, and the circumstances under which he went there; the business ability of the adjuster. Mr. Dennis contends that the adjuster said to him the true basis upon which the loss must be settled was what he paid for the property, the amount expended for repairs, minus the depreciation, which left $154, and if he didn’t take that he would get nothing, because a boy, a minor, made the policy. What is the truth of this? If it be true such was not the actual cash value of the building at the time it was destroyed then it was not the true basis of value. The policy sets out an ascertainment or estimate according to the actual cash value at the time of the loss. If such value and the actual cash value as shown were the same it would not matter. It is not so much that in the ordinary sense of the word he was deceived or tricked, as that he was misinformed as to his legal rights in this particular, and relying upon this made the settlement. The defendant contends that while it did settle or adjust the loss Mr. Dennis agreed to accept the amount on the basis of what he paid for the property plus amount paid for repairs less depreciation ; that he was advised and fully understood the terms of the settlement, and it was not at the solicitation of the adjuster; the adjuster advised him fully of his rights, and said go home, consider this matter for a few days, advise with your friends and if not satisfactory we will have appraisers appointed and appraise the loss. If you accept this view Mr. Dennis should be compelled to stand by his bargain. Whether a good or a bad one, it was his business affair, and he should receive $154 with interest from about the first of July, 1898. But suppose you base your verdict upon the version given by the plaintiff. The alleged agreement could be set aside and you should try the case precisely as if they had not attempted to agree at all.” (3) In not affirming defendant’s first point: — “ Upon all the evidence adduced, the plaintiff is not entitled to maintain this action and the verdict should be for the defendant. Answer: I decline to so charge.”

      (4) In not affirming defendant’s second point: — “ The undisputed evidence being that the defendant, by its adjuster, H. E. Paine, agreed to, and in accordance with the conditions of the policy of insurance, met the plaintiff on the 29th day of April, 1893, and attempted to agree upon the amount of loss or damage suffered by the insured, and in the afternoon of that day did agree, and in pursuance of the agreement so made the plain tiff made his proof of loss in which he said, ‘ the total amount I claim and expressly agree to accept from said insurance company, in full satisfaction and discharge of said loss or damage is $154’ — and swore to the same April 29, 1893, and it also being undisputed that the defendant agreed to pay said $154— by a draft in about a week from the 29th day of April, 1893, and the defendant did pay the same by delivery of said draft to the plaintiff within the time agreed, or offered to deliver the same, the terms of the settlement were complete and binding upon the parties and the plaintiff is not entitled to a verdict in this action, at any rate he is not entitled to more than $154. Answer: I decline to so charge.”
    (5) In its answer to defendant’s third point: — “ That a contract or agreement cannot be avoided or set aside on the ground of duress or undue influence unless the duress or undue influence was operating on the mind of the party at the time the agreement was made. The constraint which takes away free agency and destroys the power of withholding assent to a contract must be one which is imminent and without means of prevention, and be such as would operate on the mind of a person of reasonable firmness of purpose. And a threat to withhold payment of a debt or to refuse performance of a contract which may be redressed by legal proceeding will not amount to duress per minas. Ansioer: That I believe is the law, but it does not apply to this case. If the plaintiff is entitled to recover more than the $154, it is because he made the alleged agreement by reason of his ignorance of his legal rights under the circumstances, and not because he was forced or because of duress.”
    (6) In not affirming defendant’s fourth point: “That to overturn or set aside a written agreement or settlement duly signed and sworn to by the party on the allegation of fraud or mistake, the evidence must be clear, precise and satisfactory, and the evidence must preponderate in favor of such allegation, and as there .is no such evidence or preponderan ce of testimony the settlement made by the defendant in company with the plaintiff, John Dennis, on April 29, 1898, must stand. Answer : I decline to so charge. If this were an agreement between the parties binding both of them, the point would be well taken.”
    (7) In not affirming defendant’s sixth point: “ That under the conditions of the policy it was the duty of the insurer and the insured to ascertain and estimate the amount of loss or damage ; it was therefore the duty of the company to do what its adjuster did to reach an agreement as to the amount of loss or damage suffered by the plaintiff, and not until an effort to agree fails can either party demand the submission of the dispute' as to damage to arbitrators, and not till a disagreement exists between the insured and the insurer can the insured disregard the provision providing for arbitration. The first remedy is to attempt to agree. Second, if a disagreement result, then arbitrators are to be chosen. These remedies are not optional to either party, and if an agreement be reached and the insured attempts to repudiate the agreement he cannot sue upon his policy until the first expresses his willingness to give the company an opportunity to submit the question of amount of loss or damage to arbitration. Answer : I decline to affirm the point, and for this reason: It is their first duty to attempt to settle. They did so according to the evidence of both parties. The plaintiff claims he afterwards repudiated the agreement, or the alleged agreement, and that as far as he could notified the company first by going himself with Mr. Hollister to the office and subsequently sending a notice to the company before suit was brought. If the company had then seen fit to ask for arbitration it could have done so. It stood upon the alleged agreement and cannot how repudiate it and ask for arbitration.”

      W. W. Watson, with him Gr. L. Halsey, for appellant.
    — The plaintiff is bound by the agreement of compromise and settlement: Wagner v. Ins. Co., 143 Pa. 351; Turnpike Co. v. Hendel, 11 S. & R. 122; McGonigle v. Ins. Co., 167 Pa. 364; Wood on Fire Ins., 2d ed. sec. 482.
    If there were a failure to settle by- agreement then the next step by the terms of the policy was to submit the matter to arbitrators: Boyle’s Sons v. Ins. Co., 169 Pa. 357.

      April 12, 1897:
    A promise by a creditor whose claim is unliquidated or contingent to accept a certain sum in satisfaction thereof is sufficient consideration to support the debtor’s promise to pay said specified sum: Chamberlain v. McClurg, 8 W. & S. 31; Laird v. Campbell, 92 Pa. 470; Brockley v. Brockley, 122 Pa. 1.
    The company had laid itself open to new liability by agreeing to the settlement: Wagner v. Ins. Co., 143 Pa. 350; McGonigle v. Ins. Co., 167 Pa. 364.
    There is no evidence by Dennis or anybody else- that he was deceived or tricked, and.that he was misinformed as to his legal rights or that he relied upon any such information in making the settlement.

      P. A. O’Boyle, with him John McGahren, for appellee. — •
    Independently of the legal construction of the paper of settlement which appears to us conclusive in favor of the plaintiff’s right to recover his full demand, we think the court was clearly justified in submitting the case to the jury on the question of deceit and misrepresentation on the part of the adjuster.
   Opinion by

Reeder, J.,

The plaintiff had his house insured in the defendant company for $400. It was destroyed by fire. After the loss the plaintiff and the defendant’s agents met in Scranton where a proposition was made to the plaintiff to settle for $154, which was agreed to by the plaintiff and a writing executed as follows: “ The total amount I claim and expressly agree to accept from said Insurance Company in full satisfaction and discharge of said loss or damage is $154.” An affidavit was made to the above writing by the plaintiff and it was appended to the plaintiff’s proof of loss. The defendant sent a draft about a week after the execution of the above writing for $154 which the plaintiff refused to accept, and brought suit for the recovery of the entire amount of the insurance. The plaintiff claimed upon the trial that although he had made an agreement to settle for $150 such agreement was procured from him by the misrepresentation and fraud of defendant’s agents and he was therefore not bound by it. This and the actual value of the building destroyed were the only two questions at issue at the trial in the court below, the latter question being one purely of fact was properly submitted to the jury and passed upon by them. The only question for our determination here is whether the evidence of the plaintiff as to fraud, misrepresentation and mistake was sufficient to enable him to avoid his agreement of settlement if believed by the jury. If without mistake, fraud, or deceit he agreed to settle he is compelled to abide by it.

The authorities cited by the appellant clearly establish this as the law, and also that there was good and sufficient consideration for the defendant’s promise to pay the $154. The plaintiff however testified that when he called at the defendant’s agent’s office the agent being also an adjuster for the company at Scranton he notified the company in writing of the total loss of the building by fire. This in the case of a building totally destroyed by fire was sufficient proof of loss, if followed, as is alleged by the plaintiff in this case, by a denial of any liability by the company on the policy and the statement that the company would pay all they would be obliged to pay if they recognized the validity of the policy, as a payment of loss : Vide Roe v. Dwelling House Ins. Co., 149 Pa. 94 (and cases there cited); Weiss v. American Ins. Co., 148 Pa. 349; Fritz v. Lebanon Ins. Co , 154 Pa. 384; McGonigle v. Susquehanna Ins. Co., 168 Pa. 1; Dowling v. Merchants Ins. Co., 168 Pa. 234. It is claimed however that the loss in figures is stated in this first proof of loss to be but $154, and -that therefore there could be no recovery for any amount in excess of that amount. We do not so understand the law unless the statement as to that being the amount of loss was the voluntary act of the plaintiff, and not procured from him by fraud and deceit. The company was notified in writing of the total destruction of a building insured by it for $400. This was sufficient to protect the defendant, and all that the law required of the plaintiff. If by its own misrepresentation it induced him to declare in the same writing that his loss was but $154, it could not afterward declare that the proof of loss relieved it of all liability upon the policy in excess of that amount. The plaintiff testifies that a few days prior to the time when he made out this proof of loss the agent and adjuster induced him to state his loss at $154 by declaring that his policy was void because written by a boy not yet twenty-one years of age and he therefore could recover nothing upon it, as a minor could not make a contract binding upon the company, but he the agent and adjuster would see that the company would do what was right and just in the matter. He told the plaintiff also that he could recover only what he had paid for the building, it being an old building standing upon leased ground, together with the value of repairs he had put upon it amounting to $190 less the amount of depreciation from wear and tear during the time he owned it, which would make the entire amount he could recover for it $154. He told the adjuster and agent that the building was worth $600, that he rented it for $10.00 a month; but the adjuster said that made no difference, that $154 being the amount he had paid for the property less the depreciation, that was all he could legally recover on the contract even if he could recover anything. This was all of course denied not only by the adjuster but by two to three other witnesses who corroborated him, but it raised a question of fact to be determined by the jury, and the jury decided the question submitted to them in favor of the plaintiff. The finding by the jury is that these figures were inserted in the proofs of loss declaring the total loss of the building by fire and the agreement to settle made, by the misrepresentation and deceit of the defendant. Was there sufficient in the plaintiff’s testimony to justify the submission of that question to the jury ? Of this we have no doubt. The plaintiff’s testimony if believed, and the jury did believe it, was sufficient to relieve him from the effect of his signing the contract to settle, as well as to reform the figures he was induced to insert as the amount of his loss in the proofs of loss. We find no error in this record.

Judgment affirmed.


author: Rice, P. J.,

text:
    Philip Frank, Appellant, v. Samuel Kurtz and Jacob H. Strickler, late copartners as Kurtz & Co., and the Union National Mt. Joy Bank, Garnishee.

      Trusts and trustees — Buie as to property impressed with, a trust.

    If any property in its original state and form is covered with a trust in favor of a principal, no change of that state and form can divest it of such trust or give agents or trustees converting it or those who represent them in right, not being purchasers for value without notice, any more valid claim in respect to it than they respectively had before such change.

      A deposit in bank does not change the property in trust funds deposited by a trustee.

      Banks and banking — Attachment execution — Trust fund.

    The true ownership of a fund deposited in bank may be proved to be in another than the person in whose name the deposit is made, and such deposit does not change the property in a trust fund deposited by a trustee. Such deposit is not applicable to the payment of his debts to a general creditor, and a creditor who attaches the debt due from the bank to him can be in no better condition than the depositor.
    The bank deposit of an agent of an insurance company standing in his individual name, having been attached for a debt due by the agent individually, the agent induced the drawers of a check given in payment of money due to the insurance company to stop payment thereon after it had been deposited and after the attachment had been served. Held, That the bank as garnishee was not liable for the amount of this check which it had never received and which did not belong to the defendant even if the check had been honored.

      Banks and banking — Attachment execution — Disclaimer of interest.

    Where a deposit standing in the name of a defendant is attached, neither he nor the bank can defeat the attachment by setting up title in a third person who disclaims ownership.

      Execution — Exemption when forfeited — Denial of title.

    If a debtor equivocates and dissembles, denies ownership of that which he cannot hide, and embarrasses the officer of the law in the execution of his legal duties, he forfeits his hold on the exemption for honest debtors.
    Argued Nov. 14, 1896.
    Appeal, No. 146, Nov. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1891, No. 52, in favor of defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Attachment ad lev. deb. to satisfy judgment. Before Livingston, P. J.
    The facts sufficiently appear in the,opinion of the Superior Court.

      Errors assigned were (1) In those parts of the charge referred to by the plaintiff below in his exceptions thereto. The first exception is to that part of the charge in which the court says: “ Among all the cases cited there is not a single case like the present, not one, in this: that the money deposited in the bank is alleged by the depositor to have been received by him as the agent of companies which lie named and deposited in this bank; that on the same day, whether before or after the attachment was served is not clear, the same agent telegraphed to the man who had given him one of these checks to stop its payment in bank; it was not paid to the bank, and the bank so says, payment was stopped, protest was entered and suit was afterwards brought by the bank in which it had been deposited and from which it had been removed, which was done before the service of the attachment against the party, who paid it again the second time to the agent.”
    (2) The second exception is to that part of the charge in which the court says : “ Now, gentlemen of the jury, you will have to find, in the first place, from the evidence, remembering it, whether this notice given Kingsley & Son by wire was given them before the service of this attachment on the 3d of September. If it was, then you need not consider anything more in reference to that notice ; because if he ordered the party who gave him the check not to pay it to the bank, then he could not compel the bank to pay it, nor could those who issued the attachment compel the bank to pay it unless it ivas there and unmoved or the order not given to protest it before this attachment was issued. If you find the notice was prior to the service of this attachment upon the bank, then I say you need not consider that any further, because it could not be recovered by him nor the attaching creditor.”
    (3) The third exception is to that part of the charge in which the court says : “ Then there would be $49.00 and some cents, you will remember the amount, which you would still further have to consider; and it will be for you to say then whether that belongs to him or the party for whom he was acting as agent, whether paid him as his own money or paid him as their agent. He says it was paid him as agent, none of it was his, it belonged to these companies, and he shows you the amount, the bank book shows you who the check was from. He tells you that was for insurance; and if you find that belonged to them and not to him, the attachment should not hold it, because they can follow it wherever they find it, there are earmarks sufficient for them to claim it. In that case your verdict would have to be for defendant, the Tanners’ Fire Insurance Company, which has a claim.”

      (4) In answer to the first point submitted by the plaintiff: “ 1. If the jury believe that the check of Kingsley & Son for $361 was accepted by the bank, not only for transmission or collection, but as cash, or treated it as such, then they would be warranted in finding that there was in the hands of the bank the sum of $410.58 at the time of the attachment belonging to Samuel Kurtz or to the insurance companies. Answer: That would be true with everything except the $361. If the jury should find that payment of that had been stopped before the service of the attachment, then the attachment would not bind it. The defendant could not recover it, nor could the attaching creditors if he ordered it stopped before the attachment was served.”
    (5) Answer to the second point submitted by the plaintiff: “ 2. If the jury believe that the bank has credited the defendant with the Kingsley check, has never charged it back and has brought suit as a bona fide holder of the said check against Kingsley, then the bank is estopped from denying or refusing the credit it gave for this check. Answer: That would be subject to the same conditions that I have stated with reference to the first point. Why it was not charged back we cannot tell. They acknowledge receiving notice of protest of nonpayment.”
    (6) Answer to the third point submitted by plaintiff: “ 3. If the jury believe that the bank on this trial disclaims any right to withhold, or does not withhold, the credit given for this check, then the jury would be warranted in finding the amount of $410.58 in the hands of the bank belonging to the defendant, or to him as agent. Answer: We say it would not, under the evidence of the officers of the bank on the stand. This money has not been paid, the note was protested and has not yet been collected. The jury would not be permitted to find a verdict nor the court to enter a judgment against the garnishee in such case. It is not shown the money is in the bank; it is shown it is not. It is in dispute even if correct and not denied for the attachment.”
    (7) Answer to the fourth point submitted by plaintiff: “4. If the jury finds this amount to be in the hands of the bank and believe that the insurance companies, claimants, have since the attachment, been paid, then all of the said amount would belong to Samuel Kurtz, and the verdict should be in favor of the plaintiff. Answer: There is no evidence, as I remember, of the payment of the Tanners Insurance Co. claim; there is evidence of the payment of the Lebanon claim and the Phoenix claim; the Phoenix claim is admitted by the other side to be paid, and a statement was produced, you remember, by, a witness showing he owed Lebanon nothing. It was said there was some commissions of his unsettled, for that might leave him, if paid to him, indebted to them, but that was not stated here; and the evidence so far as shown on the stand in his claim was settled, paid.
    (8) In allowing the following offer of the defendant: “Defendant offers in evidence defendant’s claim for the benefit of the $300 law in this attachment, filed on September 11, 1891, and marked ‘ J. B. L. No. 5.’ ” Objected to by plaintiff. Admitted for the purpose of continuing his claim. Plaintiff excepts. Defendant excepts.
    (9) In not charging the jury that “ the defendant could not disclaim title in the property, and at the same time file his claim for the exemption; and that if the effect of the disclaimer of title to the whole of a fund and a claim of title to a part of the same fund was to hinder, delay, or put the plaintiff to any additional expense, the defendant would not be entitled to the benefit of the exemption.”

      John A. Coyle, for appellant.
    — The charge of the court was incorrect and misleading: Bughman v. Byers, 21 W. N. C. 494; Com. v. Swayne, 1 Pa. Superior Ct. 547; Collins v. Leafey, 23 W. N. C. 264; Burke v. Maxwell, 81 Pa. 137; Minick v. Gring, 1 Pa. Superior Ct. 484; Reichenbach v. Ruddach, 127 Pa. 564; Herstine v. Railroad, 151 Pa. 245; Tietz v. Traction Co., 169 Pa. 516.
    The plaintiff was entitled to a full and "complete affirmance of his first point: Whitmire’s Exrs. v. Montgomery, 165 Pa. 253; Railway Co. v. Ketcham, 122 Pa. 228; Keeler v. Schott, 1 Pa. Superior Ct. 458.
    The stopping of the payment of the check was collusion: Magee v. Raiguel, 64 Pa. 110; Heath v. Page, 63 Pa. 108.
    The court was in error in refusing the plaintiff’s third point: Bank v. McMichael, 106 Pa. 460.
    Disclaiming title to the whole of a fund and claiming title to $300 of the same fund is calculated to make a plaintiff suppose some dishonesty is being attempted, cause him to proceed to test the matter, and -therefore, he is hindered, delayed and caused expense, which result brings this case within Emerson v. Smith, 51 Pa. 90; McElroy v. Dice, 17 Pa. 163; Imhoff’s Appeal, 119 Pa. 350; Kreider’s Estate, 135 Pa. 578; Gates v. Railroad Co., 150 Pa. 50; Diehl v. Holben, 39 Pa. 217; Strouse’s Executor v. Becker, 38 Pa. 190; Gilleland v. Rhoads, 34 Pa. 187; Huey’s Appeal, 29 Pa. 219.
    April 12, 1897:

      B. McMullen, for defendants and insurance companies, with him, Brown Hensel, for garnishee.
    — Equity will follow a fund through any number of transmutations and preserve it for the owner so long as it can be identified, no matter in whose name the legal right stands: Bank v. King, 57 Pa. 202.
    Where it is satisfactorily shown that money deposited in the name of one person is really the property of another, it cannot be attached as a debt due the depositor: Bank v. Ryan, 64 Pa. 236.
    Credit on books of a bank is only prima facie evidence of ownership; Bank v. Mason, 95 Pa. 117.
    The ownership of the fund can be shown to be different from the apparent ownership imparted by the entry in the book: Stair v. Bank, 55 Pa. 364.
    Money deposited in a bank to the credit of A, may be shown to be the property of B: Hemphill v. Yerkes, 132 Pa. 552.
    In this case neither the bank nor Frank is holder for value of this check.
   Opinion by

Rice, P. J.,

This was an attachment execution in which the Union National Mt. Joy Bank was summoned as garnishee of Samuel Kurtz, who was secretary of the. Tanners’ Mutual Fire Ins. Co., and agent for two other companies. These companies were permitted to become parties to the record and to plead and make defence to the extent of their several interests in the money attached. The plea was nulla bona, and on the trial of the issue evidence was given tending to prove the following facts:

Kurtz received a salary from the Tanners’ Insurance Company and commissions on collections made for the two other companies. He collected premiums and assessments for these compañíes and deposited them in his own name in the garnishee’s bank, in which he opened an account for the purpose. He testified that when he opened the account he informed the teller, Mr. Longenecker, who afterwards became the cashier, that the deposits he would make would belong to the insurance- companies, “ barring, possibly, some commissions and salary.” This was denied by Mr. Longenecker, or, to be more exact, he testified that he had no recollection that such notice was given. The deposits were marked by the teller in Kurtz’s bank book and on the bank’s “scrateher” with the names of the parties who paid the money. At the close of business on August 81, 1891, he had on deposit the sum of $128.39. On the following day he deposited checks amounting to $820.50 which the bank placed to his credit, and on the same day the bank honored his checks to the amount,of $706.39. At the close of business for the day, the balance standing to his credit was $242.50. On the following day (September 2) he deposited $16.8.08, so that on September 3, when the attachment was issued and served, there was an apparent balance to his credit of $410.58. One of the checks deposited on September 2 was drawn by Kingsley & Son on another bank, and given in payment of a premium of $275.50 on a policy issued by the Tanners’ Ins. Co. and of assessments, amounting respectively to $40.50 and $45, on policies in the two other companies. This check Avas marked “ Kingsley ” in Kurtz’s bank book and in the bank’s “ scrateher.” Immediately after Kurtz received notice that the attachment had been served on the bank, he requested Kingsley & Son to stop payment of the check and to pay him the amount. They complied with his request, and he accounted for the amount to the companies. The check spoken of was duly protested and the garnishee bank has brought a suit upon it against Kingsley & Son, which is still pending.

The plaintiff requested instructions to the effect that as the bank credited the defendant with the Kingsley check, never charged it back, and brought suit on it in its own name against the drawers it was estopped from denying or refusing the credit it gave therefor; in other words, it is to be treated as having the money, although as matter of fact the money never came into its hands. If the defendant had been the absolute owner of the check there might be some plausibility in this contention. For, as we read his testimony, he did not notify the drawers of the check to stop payment until after the attachment had been served on the bank; and, obviously, nothing that he said or did after that, with regard to the payment of the check, could affect the attaching creditor’s rights as against his interest in the deposit attached. But we are of opinion that the case does not turn on the question whether payment of the check was stopped before or after the service of the attachment, and that undue prominence was given to that feature of the case. The real issue was as to the beneficial ownership of the check and the credit given upon it. If, as the evidence strongly tended to show, it was in the insurance companies, then it was not subject to attachment for Kurtz’s debt, and the bank was not estopped from proving that collection was prevented by the action of the companies’ agent. For this reason, if for-no other, it would have been error to affirm the points without qualification.

The general doctrine regarding the right to follow trust funds, is thus stated in Story’s Eq. Jur., secs. 1258, 1259 (13th ed.): “ The general proposition which is maintained both at law and in equity upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust or give the agent or trustee converting it or those who represent him in right (not being purchasers for value without notice) any more valid claim in respect to it than they respectively had before such change. ... It matters not in the slightest degree into whatever other form different from the original the change may have been made, whether it be that of promissory notes, or of goods or of stock; for the product of the substitute for the original thing still follows the nature of the thing itself, so long as it can be ascertained to be such. The right ceases only when the means of ascertainment fails.” See also Bisph. Eq., sec. 86 (2d ed.).

Upon this familiar principle it is held that the true ownership of a fund deposited in bank may be proved to be in another than the person in whose name the deposit is made. Whether the bank is chargeable to the true owner must depend upon the circumstances of the case: Stair v. York Nat’l Bank, 55 Pa. 364; Erisman’s Appeal, 1 Pa. Superior Ct. 144. But as a general rule, where the depositor could recover in an action at law if he were the true owner, the latter can recover in his own name in an action for money had and received: Frazier v. Erie Bank, 8 W. & S. 18; Stair v. Bank, supra; Bank v. Bache, 71 Pa. 213; Farmers’ and Mechanics’ National Bank v. King, 57 Pa. 202. In the last cited case Mr. Justice Strong said: “A de posit in bank, then, does not change the property in trust funds deposited by a trustee. The depositor may become a creditor of the bank, but he holds the contract in trust as he held the money before. It is not applicable to the payment of his debts to a general creditor. And a creditor who attaches the debt due from the bank to him can be in no better condition than the depositor. At most he becomes a statutory assignee of a naked legal right, with the beneficial ownership in another.” Applying these principles to the present case the first question is as to the true ownership of the Kingsley check. Was it in Kurtz or in the insurance companies? If the evidence on the part of the defence is to be credited — and that was a question for the jury — it belonged to the insurance companies. Being the true owners of the check they had a right as between themselves and Kurtz, and as between themselves and the attaching creditor, who stands in Kurtz’s shoes, to make any arrangement they saw fit with Kingsley & Son with regard to the payment of the debts for which it was given. The only person who could object would be the bank; but as the bank was only conditionally liable to the depositor or to the true owner of the cheek, it could in no way be prejudiced by the arrangement made. The effect was to discharge Kingsley & Son from liability on the check and the bank from the conditional credit it had given to the depositor. It would be monstrous to hold that the bank must pay money to the attaching creditor which it never received and which, if it had been received, would not have belonged to tire defendant in the attachment, and that it may make itself whole by compelling Kingsley & Son to pay it the money which they have already paid to the parties rightfully entitled to it. Fortunately no legal principle or legal fiction requires this to be done. Much is said in the argument of collusion between Kurtz and Kingsley & Son, but the fact that the arrangement was made by Kurtz can make no difference. He was the agent of the companies and must be regarded as acting in their behalf. Assuming, of course, that they were the true owners of the check, fidelity to his principals dictated that he should omit no legitimate effort to prevent their money being taken to. pay his debt. It follows from what we have said that the-question as to the beneficial ownership of that portion of Kurtz’s deposit represented by the Kingsley check was for the jury; and, the fact being found in favor of the theory of the defence, the legal status of the case is the same as if Kingsley & Son had stopped payment at the request of some other officer or agent of- the companies, and then had paid the money directly to them.

As to the residue of the fund, a different question is presented. Conceding that, at the time of the service of the attachment, although deposited in Kurtz’s name, it really belonged to the insurance companies, yet, if since the attachment he has paid their claims represented by that particular fund, then, to that extent, the fund was freed from the trust, and belonged to him. It is to be treated the same as money coming into the hands of the garnishee after the service of the attachment, and hence was bound by it: Sheetz v. Hobensack, 20 Pa. 412; Mahon v. Kunkle, 50 Pa. 216; Hays v. Lycoming Ins. Co., 99 Pa. 621. Kurtz testified, and as to this there was no dispute, that he had settled with and paid two of the companies after the attachment, and that nothing was coming to them out of the fund, and according to the testimony of the officers of the other company nothing is coming to them. Kurtz, it is true, seemed to think differently, but his assertion goes for naught as against the company’s disclaimer. Where a deposit standing in the name of the defendant is attached, neither he nor the bank can defeat the attachment by setting up title in a third person who disclaims ownership. The fact being practically undisputed that any claim which the insurance companies may have had to the fund, after deducting the Kingsley check, had been extinguished by Kurtz, the plaintiff was entitled to positive instructions that it was bound by the attachment. The third and seventh assignments of error are sustained.

The admission in evidence of the defendant’s exemption claim for the purpose merely of showing that he kept up his claim did the plaintiff no harm, and is not ground for reversal. But as the case must go back for retrial it will be well for the court below to consider, in the final disposition of the case, whether, in view of the defendant’s disclaimer of ownership of any part of the fund, persisted in even up to the trial, he can have it set apart to him under the exemption law. In Strouse v. Becker, 38 Pa. 190, it was said that if the debtor “ equivocates and dissembles, denies the ownership of that which he cannot hide, and embarrasses the officer of the law in the execution of his legal duties, he forfeits, not only his self respect, but his hold on the exemption provided for honest debtors.” This doctrine has been recognized in many later decisions: See Kreider’s Estate, 135 Pa. 578, and cases there cited.

The judgment is reversed, and a venire facias denovo awarded.


author: Willard, J.,

text:
    Assigned Estate of William Zehring. Appeal of Elizabeth Mease.

      Insurance — Insurable interest of widow in her dower estate.

    A widow’s dower being an estate in land the widow has an insurable interest therein.

      Actions — Parties—Insurance of dower interest.

    A widow, having an insurable interest in land sold subject to her dower, can in her own name maintain an action on a policy of insurance taken out for her protection, although such policy was nominally issued to the terre-tenant as the owner of the legal title, and payment to her by the company is a good payment and a protection to the company.

      Insurance of dower interest — Effect of as to arrears due.

    A widow having effected insurance to protect her dower interest a payment of such insurance is not in relief os arrears of dower due her by the terre-tenant prior to the loss, the terre-tenant having no interest in the policy.
    Argued March 9, 1897.
    Appeal, No. 37, March T., 1897, by Elizabeth Mease, from decree of C. P. Lebanon Co., June T., 1895, No. 473, dismissing exceptions to the report of auditor and confirming said auditor’s report absolutely.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder and Orlad x, JJ.
    Reversed.
    Exceptions to auditor’s report. Before Ehrgood, P. J.
    The facts sufficiently appear in the opinion of the Superior Court.

      JErrors assigned were (1) in not holding that the appellant is entitled to hold the proceeds of the insurance policy during her lifetime, and apply principal and interest to make good any deficiencies in the annual income of her dower interest.
    (2) In not holding that Elizabeth Mease should have been paid $360 out of the estate of William Zehring for two years’ interest on her dower.
    (3) In not holding that the evidence submitted in behalf of Elizabeth Mease before the auditor, was sufficient to reform the insurance policy in this case, by striking out the name of Win. Zehring and inserting that of Elizabeth Mease as the party insured.
    (4) In refusing to hold that Elizabeth Mease was entitled to receive the money due for any loss under said policy, without being obliged to account therefor to William Zehring’s assignee or judgment creditors.
    (5) In not holding that Zehring had forfeited all his rights under the policy.
    (6) In not holding that the payment to Elizabeth Mease was voluntary on the part of the insurance company, and that the appellee had no right to inquire into it.

      George B. Woomer, for appellant.
    — That an insurance policy can be reformed, where by mistake, the terms of the policy do not contain the form of the agreement, is decided in Thompson v. Insurance Company, 136 U. S. 287.
    The intention of the parties to a contract of insurance governs the future use of it: Steele v. Ins. Company, 17 Pa. 290.
    Where a mortgagee, at his own expense and without any agreement or understanding with the mortgagor, obtains insurance upon his interest as mortgagee and collects the money from the insurer after a loss, he is not bound to account for it to the mortgagor: Mf’g Co. v. Ins. Co., 135 Mass. 503; Ins. Co. v. Boyden, 91 Mass. 124. Woodbury Savings Bank v. Insurance Company, 31 Conn. 517.
    The evidence does not show that the company had any notice of the assignment, but even if it had, such notice was insufficient as long as the written consent of the company was not given as prescribed in the policy: Insurance Company v. Hebard & Forsmen, 95 Pa. 45.

      April 12, 1897:

      J. G-. Adams, with him Oapp Schoclc, for appellee.
    — Par-
    ties to a written contract are not permitted to testify their unexpressed intent, motive or belief at the time they signed the contract: Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35; Spencer v. Colt, 89 Pa. 314.
    An assignment in bankruptcy does not avoid a policy: Ins. Co. v. Neel, 6 W. N. C. 233.
    An orphans’ court sale, before a confirmation, does not avoid a policy: Ins. Co. v. Graybill, 74 Pa. 17; Hill v. Assurance Co., 165 Pa. 298.
    An assignee for the benefit of creditors is not a purchaser, but the mere agent of the debtor, who is in one sense still the owner of the fee: Fulton’s Est., 51 Pa. 213; Dohner’s Appeal, 1 Pa. 101.
   Opinion by

Willard, J.,

On the 4th of April, 1883, William Zehring received a deed for a farm in East Hanover township, Lebanon county, Pa., from J. H. Mease, executor of Daniel Mease, deceased, in which Elizabeth Mease, the widow of Daniel Mease, had a dower interest amounting to the sum of $3,000, upon which she was to receive the sum of $180 interest per annum during her life, and at her death the principal was to be paid to the legal heirs and representatives of Daniel Mease, deceased. Zehring purchased the farm subject to the dower interest, agreeing to pay the $180 annually during the life of Mrs. Mease, and the principal to the heirs at her death, as provided in the will. Zehring paid the annual interest up to the first dajr of April, 1894, and’ then stopped payment. On May 7, 1895, Mrs. Mease, through her son, Dr. J. H. Mease, applied to the City Mutual Fire Insurance Company of Lebanon, Pennsylvania, for a policy of insurance in the sum of $1,000, to protect her dower interest. The negotiation for the policy was between Mr. S. H. Bentz, secretary of the company, and Dr. Mease acting for his mother. It was thought by Bentz that as the legal title to the farm was in Zehring, he would have to make the application, and at the solicitation of Dr. Mease, Zehring accompanied him to the insurance office and signed the application, with a distinct understanding that he (Zehring) was not to pay the premium, but the premiums and all assessments would be paid by Mrs. Mease. The policy was issued nominally to William Zehring as the assured, which contained the following clause: “ Loss, if any, payable to Elizabeth Mease, widow, as her dower interest may appear.” This policy was delivered to Dr. Mease who paid the premium and policy fee. Mrs. Mease subsequently paid an assessment on the policy on notice to her from the insurance company. On the 21st of May, 1895, William Zehring, joined by his wife made an assignment to Thomas H. Capp in trust for the benefit of creditors.

On the 19th of August, 1895, the barn and several of the outbuildings were destroyed by fire, the insurance thereon being the sum of $500. After the fire, proofs of loss were made out which Zehring signed and swore to after consultation with his counsel. The property was subsequently sold by the assignee to C. Capp for $1,147.63 subject to Mrs. Mease’s dower interest. After the fire the insurance was claimed by Mrs. Mease and T. H. Capp the assignee of William Zehring, the money being paid by the insurance company to Mrs. Mease, the company first requiring her to give a bond of indemnity against all claims by the assignee and other persons. A suit was brought and is now pending in Lebanon county wherein Thomas H. Capp, assignee, is plaintiff, and the City Mutual Fire Insurance Company is defendant, for the $500 insurance paid to Mrs. Mease. Upon the filing of the assignee’s account, Mrs. Mease filed exceptions thereto on the ground that the accountant had applied the moneys in payment of judgments posterior to her claim of $360, which'was for .two years’ interest on her dower from April 1, 1894, to April 1,T896. The account was referred to C. H. Killinger, Esq., as an auditor to make distribution. The auditor disallowed the claim of Mrs. Mease for the reason that she had already received a larger amount from the insurance company. Exceptions were filed to the report of the auditor, which exceptions were overruled by the court in an opinion filed December 9, 1896, and an appeal taken to this court.

The dower interest of the appellant in the farm that belonged to her husband in his lifetime was settled upon her in his last will and testament for her support. It was valued at $3,000, with a proviso that the interest on that sum, to wit $180 per annum, should be paid to her annually on the 1st day of April, and after her death the principal sum to go to the heirs at law of her husband. The annual interest for two years is withheld from her by the report of the auditor and the decree of the court below for the reason that she had received 1500 upon an insurance policy placed by her upon certain buildings upon the farm and destroyed by ñre during the life of the policy. Was the court below right in thus withholding from this appellant her annuity, is the question for our consideration. To properly determine this question it is necessary to ascertain in the first place upon what facts the auditor and court based their legal conclusions. The specific findings of fact by the auditor, numbered two, three and four, are here inserted as found by him :

“ 2. In the spring of 1895, Dr. J. H. Mease, executor of the estate of Daniel Mease, the grantor, acting on behalf of his-mother, Elizabeth Mease, widow of the said Daniel Mease, the person named in said charge, thinking it desirable to protect the interest of his mother by insurance upon the buildings of said farm, approached S. H. Bentz, secretary of the City Mutual Fire Insurance Company to procure such insurance. In the language of the secretary — ‘ Dr. Mease was uncertain whether he would sign this application for his mother or whether Mr. Zehring should sign it, and I thought Mr. Zehring should sign it.’ All dealings in regard to this application and policy except as hereinafter stated, were between the company’s secretary, S. H. Bentz, and Dr. Mease. At the time of the application Dr. Mease informed the secretary that the company should look to him for the payments of assessments.

“ 3. The application was drawn from information furnished by Dr. Mease. Dr. Mease saw Zehring and said to him, ‘ we want to take out a policy to protect my mother’s interest. Of course we don’t expect you to pay this but it seems that it is necessary for you to sign the application, for you have the legal title, so the insurance'agent says.’ Zehring said ‘all right.’ They crossed the street to the secretary’s office and Zehring signed the application May 4,1895. The application contains, inter alia, the following clause, ‘Forvalue received and in consideration of the policy of insurance to be issued by the City Mutual Fire Insurance Company, of Lebanon, Pa., upon the approval of my application for insurance in said company of this date, I propose to pay the company such sum or sums of money and at such time or times as the board of directors of said company may for the purpose of paying losses by fire and the necessary expenses of said company require, payable within thirty days after notice.’

“4.- The company issued its policy of insurance May T, 1895. It was delivered to Dr. Mease who paid the premium and policy fee of $3.00. Zehring was never asked to pay and never paid anything. The policy insured William Zehring and continued, inter alia, ‘In consideration of the further stipulation (inter alia) that the insured promises to pay the company such sum or sums of money as may be assessed by the board of directors from time to time for the payment of losses and the necessary expenses of the company may require.’ It also contains the following stipulations: ‘ To be void . . . . if any change other than by death of an insured takes place in the interest, title or possession of the subject of insurance .... whether by legal process or judgment or by voluntary act of the insured, or otherwise.’ Also, the following: ‘ If with the consent of this company an interest under this policy shall exist in favor of a mortgagee or of any person or coloration for an interest in the subject of insurance, other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and condition of insurance relating to such interests as shall be written upon, attached or appended hereto.’ Dr. Mease agreed to the issuing of the policy in tins form.”

In addition to the above findings an extract from the uncontradicted testimony of Mr. Bentz, the secretary of the insurance company, is here inserted as throwing light upon the transaction: “ In addition to other reasons for refusing Mr. Zehring insurance, I knew he was involved, and also that he had enemies, and therefore considered the risk undesirable; I knew Mr. Zehring was financially embarrassed for a year previously to his assignment; as a matter of fact I considered Elizabeth Mease the person really insured, to whom we looked for payments; at the time, Dr. Mease did not know whether he could get Zehring to sign the application.”

From the above facts we are forced to the conclusion that the appellant was the real party insured, and that William Zehring was only a nominal party to the contract. The printed and oral arguments of counsel were directed to what appeared to be the vital question in the case, to wit, whether there was sufficient evidence to justify the reformation of the contract of insurance, and to warrant a chancellor in striking the name of William Zehring therefrom.

As we view this case and the well settled principles of law governing it, it is unnecessary to discuss this question. The contract required no reformation in order to afford entire protection to the party entitled thereto.

The first question is, what was the policy issued for? To this there can be but one answer under the facts. It was for che protection of the dower interest of this appellant.

The second question is, bad she an insurable interest in the property insured? That question is answered by Mr. Justice Mer-cub, in Louden v. Waddle, 98 Pa. 242, where it is said : “ A widow’s dower is not merely a lien, but an estate in the land.”

The third question is, could the appellant sustain an action upon this contract in her own name ? If she could, then the payment 4o her by the company was a good payment-and a pro tection to the company.

There is no principle better established than that the person from whom the consideration moves has a direct right of action against the party receiving the consideration and stipulating for indemnity in the contract expressing the consideration. The appellant paid the consideration, the indemnity was payable to her as her interest might appear, and that interest far exceeded the amount of indemnity stipulated and paid for and actually received by her. The right of this appellant to maintain an action in her own name is also supported by most respectable authority. In Biddle on Insurance it is said, “Where the payee, himself alone, as, for example, a mortgagee, in the name of a mortgagor, makes the contract with the insurer, though in another’s name, or becomes, to a certain extent, a contracting party, then the courts seem unanimously to permit a suit in the name of the payee.” In Ostrander on the Law on Fire Insurance at paragraph 385 it is said: “ The rule appears to be, however, that suit should be in the name of the assured, except where the property has been sold and the policy assigned by the consent of the company, or where the insurance is taken with the understanding of the parties that the assignee, payee or mortgagee, is the real party insured, in which case, of course he will be the proper person to sue.”

It is said, also, by the same author at paragraph 390, “ when the owner of the property is only nominally’the insured, the policy being issued in his name, but procured and paid for by the mortgagee, and containing a clause directing, without qualification or restriction, that the loss be paid to the latter, he may recover in a suit brought in his own name.” In Hadley v. New Hampshire Fire Insurance Company, 55 N. H. 110, “ the plaintiff, interested as mortgagee obtained the policy in suit in the name of the general owner, with his consent paying the premium himself; and the policy being made payable to him in case of loss to the extent of his mortgage interest, the whole amount of insurance being less than his mortgage debt, it was held that he might maintain an action in his own name to recover the whole amount.” In Aurora Fire and Marine Insurance Company v. Hopkins Manufacturing Company, (Supreme Court of Michigan) 11 Ins. Law Journal, 341, plaintiffs had a mortgage upon real estate to secure the payment of a certain bond, which among other conditions, provided that the building should be kept insured. The mortgagor having failed to so insure, the mortgagees insured their interest, the policy issued being, in form, to the owner, but paj^able to the mortgagees, as their interest should appear. The consideration passed directly from the mortgagees to the insurance company. The policy was delivered to the mortgagees and covered no more than their interest. Held, that an action thereon was properly brought in the name of the mortgagees. To the same effect is Chamberlain v. New Hampshire Fire Ins. Co., 55 N. H. 249, West Chester Fire Ins. Co. v. Foster, 90 Ill. 121, Meriden Savings Bank v. Home Mutual Fire Ins. Co., 50 Conn. 396, Maxcy v. New Hampshire Fire Ins. Co. of Manchester (Supreme Court of Minnesota), 22 Ins. Law Journal, 830, and Palmer Savings Bank v. The Insurance Company of North America, 166 Mass 189.

The fourth question is, can the third finding of law by the auditor that “ the payment of the insurance to Elizabeth Mease must be treated as a satisfaction of the $360 interest on the dower charged in her favor,” be sustained on principle or-authority ? The assignor of the property had no real interest in the policy. It was merely nominal, and if he had none, Capp, his assignee, had none. On what principle then can this money be appropriated to the payment of appellant’s annuity ? Neither ■Zehring nor his assignee paid or contributed one dollar of the consideration for the indemnity, nor had they any interest in the dower right protected by the contract. It therefore follows that the auditor’s conclusion of law and the decree of the court, which in effect appropriated $360 of the appellant’s insurance money to the payment of her annuity, was erroneous. The appellant attempted to protect her entire dower interest and in this she stood on at least as secure ground as though she had been a mortgagee holding a mortgage of $3,000, and had procured and paid for herself an insurance of $1,000 on the mortgaged premises in the name of Zehring with his consent. Under such circumstances,' in case of loss she could have recovered the insurance in her own name without applying the money to the payment of the mortgage in the absence of an agreement to that effect between the mortgagor and mortgagee, nor could the mortgagor compel its application for that purpose. In Wood on Fire Insurance at page 863, it is said, “ the right of a mortgagee to insure the premises to the amount of his debt, is the lien given upon the property by the conveyance, as security for the payment of the debt, yet the insurance is in no sense the insurance of the debt, but of the mortgagee’s interest in the property as security for the debt. Except where the insurance is effected by the mortgagor, or under an arrangement with him, or he pays for the same, or agrees to do so, payment of a loss under the policy does not operate as a payment of the debt, or relieve the mortgaged premises from the lien, or the mortgagor from liability for the whole sum payable by the terms of the contract, nor does it estop the mortgagee from recovering both the insurance and the debt.”

In an insurance by the mortgagee for his own benefit it has been held that payment of the insurance money does not extinguish the debt as the mortgagor has no interest in the policy: Biddle on Fire Insurance, par. 255. The rule is stated in May on Insurance, par. 456, as follows: “ It may be stated, as a general rule, that no one, except the assured, or his assigns after loss, can claim either from the insurers or from the party to whom the loss has been paid, any part of the proceeds of a policy, unless by express agreement, or unless the policy covered property in which the claimant had an interest, and was intended or effected in part or in whole for his benefit and at his expense.” In Louden v. Waddle, supra, it was said by Mr. Justice Meecue, “the defendants claim that the insurance by a mortgagee of the interest in the premises intended to be for the amount of his debt, is an insurance of his debt, and in case of loss, receipt by him of that amount from the insurance company operates as a satisfaction of the mortgage. To support this view they cite Smith v. Insurance Company, 17 Pa. 253; Insurance Company v. Updegraff, 21 Pa. 513; Reed v. Lukens, 44 Pa. 200. It may well be doubted whether these cases sustain the view on the facts assumed .... The effect claimed from the mere insurance by a mortgagee for the amount of his debt is in conflict with elementary authority and many well considered' cases.”

In Louden v. Waddle the argument of the appellee was based upon the dictum in Smith v. Insurance Company, 17 Pa. 253, that an insurance by a mortgagee was but the insurance of a debt, a mortgage being but a lien upon and not an interest in land. While it has been held that an owner of a judgment has no insurable interest in the land upon which the judgment is a lien, the rule is otherwise as to the insurable interest of a mortgagee. Both mortgagors and mortgagees have insurable interests. As was said in Palmer’s Savings Bank v. Insurance Company of North America, supra, “Each can insure for his own benefit, the mortgagor for the full value of the property, and the mortgagee for the full value of his interest in the property, and neither can avail himself in any way of the money recovered from insurance by the other, unless there is some contract making it so available.”

In this farm the appellant had an estate ample to support her contract. Under its terms she received the sum of $500, and neither William Zehring nor his assignee or creditors can claim the money thus paid to her, nor compel its application in payment of her annuity, because there was no agreement that it should be so paid or applied, nor did William Zehring or his assignee have any interest in her dower estate, nor is there any evidence in this case that the policy was effected, in part or in whole, for the benefit of Zehring or at his expense.

The sum of $360 arrearages of dower due and unpaid to the appellant from April 1, 1894, to April 1, 1896, should have been distributed and paid to her out of moneys derived from the sale of the farm to C. Capp, in preference to any subsequent lien thereon.

The decree of the court below of December 9th, 1896, is reversed at the cost of the appellee, and the record remitted to the court below with directions that distribution be made in accordance with this opinion.


author: Smith, J.,

text:
    Joseph R. T. Coates v. John A. Wallace and William C. Sproul, Appellants.

      LAbel — Privileged communication — Burden of proof.

      A communication to be privileged, must be made on a proper occasion, from a proper motive and be based upon reasonable or probable cause. The immunity of a privileged communication is an exception, and he who relies upon an exception must prove all the facts necessary to bring himself within it.

      Libel — Probable cause defined.

    Probable cause, which will sustain a privileged communication, is a reasonable ground of suspicion supported by circumstances sufficient to warrant a cautious man in believing that the party is guilty of the offense.
    Knowledge that the plaintiff had neglected to perform certain duties, such .as the collection of certain fees, affords no probable or reasonable ground for belief in the charge that he had violated the law by receiving fees to which he was not entitled, especially when the fees referred to in the charge were the same fees which he was known not to have received.

      Libel — Duty to prove truth or establish probable cause.

      A charge that a candidate “ did violate the law and take fees to which he was not entitled” is libelous per se. The plaintiff at the time being a candidate for a public office it was made on a proper occasion and from a proper motive, but responsibility will not be excused where the defendant not only fails to show the truth of the statement but also to establish that it was based on reasonable or probable cause. It is not sufficient to show that defendant had information which led him to believe it was true, the circumstances leading to the belief must be shown, that it may appear whether or not it was well founded.

      Evidence — Erroneous rejection mired by cross-examination.

    The appellate court will not reverse for error in rejecting competent testimony where the record shows that the very matters to which the offers relate were subsequently brought out in full by the subsequent cross-examination of the witnesses by whom the offer had been made to prove the rejected testimony in chief.

      Argued Nov. 17, 1896.
    Appeal, No. 38, Nov. T., 1896, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1894, No. 125, on verdict for plaintiff.
    Before Bice, P. J., Willard, Wickham, Beaver, Beeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for alleged libelous publication.
    The facts sufficiently appear in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $500. Defendants appealed.

      Errors assigned among others were (6) in overruling the defendants’ offer to prove the sources of the information from which William E. Tribit, the city editor, who inserted the article in the newspaper, derived his information of the truth of the article, as follows: (William E. Tribit, the witness on the stand:)
    Mr. Bobinson: “I propose to prove the statement to the witness by the city controller, for the purpose of showing probable cause for believing the statement to be well-founded.”
    Objected to. Objection sustained.
    Mr. Bobinson: “ I also desire to offer and propose to prove the statement heard by witnesses in public debates of council while it was in session, for the purpose of establishing probable cause for believing that there was a foundation for the statement made in the article.”
    Objected to. Objection sustained. Exception for defendants.
    (7) In sustaining the objection to the testimony of the witness Hawthorne, who was the city controller, that he had given information to William E. Tribit, the city editor, tending to confirm the truth of the allegation in the article complained of as follows : (J. L. Hawthorne, city controller, on witness stand:)
    “ Q. What was the conversation about (with Mr. Tribit) ? What was the subject of the conversation? A. It was in regard to fees. Q. In regard to what fees ? A. The fees that the mayor should have turned into the city. Q. Did you go over the books and the figures in them in that connection ? A. I did, yes. Q. What was the conversation.”
    Objected to. Objection sustained. Exception for defendants.

      “ Q. Was there any talk in the community about the mayor and in regard to his fees at that time ? ”
    Objected to. Objection sustained.
    “ Q. What was said by the members of council in public session of council on this subject ? ”
    Objected to. Objection sustained. Exception for defendants.
    “ Q. What was the result of your investigation in regard to this condition of affairs which you describe involving the mayor ‘ and his fees ? ’ ”
    Objected to. Objection sustained. Exception for defendants.
    (9) In overruling the question addressed to Hon. John B. Robinson, the author of the article complained of, as to his information regarding the statement in reference to ex-mayor Coates, as follows: (John B. Robinson, a witness, on the stand:)
    “ I have asked you whether you had any information upon the subject of the statement made in reference to ex-mayor Coates.”
    The Court: “ Q. Had you information which led you to believe it was true? A. Yes, I had. Q. What was the information? ”
    Objected to. Objection sustained. Exception for defendants.
    (10) In overruling the defendants’ offer of testimony, as follows : (George Weigand, a member of city council, on the witness stand:)
    Mr. Lindsay: “I offer to prove the language used in the debates and discussions that took place in council upon the subject of the mayor and his fees.”
    Objected to. Objection sustained. Exception for defendants.
    (11) In overruling the defendants’ question as follows: (George Weigand, a member of council, on the stand:)
    “ Q. Do you know of any public criticism that the mayor was taking fees or money, and not turning them over to the city treasurer ? ”
    Objected to. Objection sustained. Exception for defendants.
    (12) In overruling the defendants’ proposal as follows:

      Mr. Lindsay: “ Having proved that the city editor was in attendance upon the public session of select council at the time that the subject of Mayor Coates and his fees was under discussion before them, I now offer to prove what the language of that discussion was by a member of council who was present at that time and who participated in it.
    (13) In overruling the offer to prove by Thomas B. Ta3rlor, a reporter on the Times, that he had investigated the charges against the mayor, and reported that they were true to Mr. Tribit, as follows: (Thomas B. Taylor, a reporter of the Times, on the stand: )
    “ Did Mr. Hawthorne, the city controller, make a statement to you about the receipt of fees by the mayor ? What was said by Hawthorne about it ? ”
    Objected to. Objections sustained. Exception for defendants.
    “ Mr. Taylor, had you any reason to believe at the time this article was given to Mr. Tribit for publication that the fact therein contained against the mayor was not true ? ”
    Objected to. Objections sustained. Exception for defendants.
    “ Had you at that time any reason to believe that it was true ? ”
    Objected to. Objections sustained. Exception for defendants. ■

      Geo. B. Lindsay and V. Gilpin Bobinson, for appellants. — ■
    This case turns upon the question whether the article published is a privileged communication, and the ruling of the court below is in direct conflict with Briggs v. Garrett, 111 Pa. 404; Jackson v. Pittsburg Times, 152 Pa. 406, and with the understanding of the profession as to what is the law upon the subject.
    What is probable cause is defined in Smith v. Ege, 52 Pa. 419, which is affirmed in McCarthy v. DeArmit, 99 Pa. 69, and Gilliford v. Windel, 108 Pa. 142.
    A privileged communication is such as one man may make to another without responsibility, where he acts in good faith: Press Co. v. Stewart, 119 Pa. 584; Brett v. Watson, 20 Weekly Rep. 723.

      W. B. Broomall, for appellee.
    — Where the charge is an indictable offense tbe presumption of innocence in itself is a fact from which the prima facie inference of want of probable cause flows: Conroy v. Pittsburg Times, 139 Pa. 334.
    April 12, 1897:
    Tbe inquiry as to tbe probable cause goes back to tbe commencement of the prosecution, and it relates to tbe facts then known and as they then appeared: Grohmann v. Kirschman, 168 Pa. 189.
    “ A newspaper proprietor is liable for tbe republication of a libel published in another paper: 13 Am. & Eng. Ency. of Law, 318.
   Opinion bt

Smith, J.,

A newspaper article, published first in the Media Ledger, and reprinted in the Chester Times, a newspaper published by tbe defendants, contained tbe following passage concerning tbe plaintiff : “ Ex-mayor Coates, bis opponent, when mayor of the city of Chester, did violate the law and take fees to which be was not entitled.” Mr. Coates, contending that this statement was false and libelous, brought this action. The defense is that the publication is privileged.

The essentials of a privileged communication are well settled. “A communication, to be privileged, must be made on a proper occasion, from a proper motive, and based upon reasonable or probable cause: ” Briggs v. Garrett, 111 Pa. 404; Jackson v. Times, 152 Pa. 416. “ Tbe immunity of a privileged communication is

an exception. Tbe general rule is that nothing but proof of its truth is a defense of a libel. That it was privileged, because published on a proper occasion, from a proper motive, and upon probable cause, is the excepted case, and be who relies on an exception must prove all the facts necessary to bring himself within it: ” Conroy v. Times, 139 Pa. 334; Mitchell, J. The probable cause which will give this privilege is thus comprehensively defined in Munns v. Dupont, 3 Wash. C. C. Rep. 31: “ A reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautious man in believing that tbe party is guilty of tbe offense.” This is quoted with approval in Winebiddle v. Porterfield, 9 Pa. 137; Coulter, J.; Chapman v. Calder, 14 Pa. 365; Rogers, J.; Smith v. Ege, 52 Pa. 419; Strong, J. “ Where tbe public conduct of a public man is open to animadversion, and tbe writer- who is commenting upon it makes imputations upon liis motives which arise fairly and. legitimately out of his conduct so that a jury shall say that the criticism is not only honest but well founded, the action is not maintainable. If a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is not therefore justified in assailing his character as dishonest, or charging him with a criminal offense: ” Campbell v. Spottiswoode, 3 Best & S. 769, quoted by Trunkey, J., in Neeb v. Hope, 111 Pa. 145.

It cannot be doubted that the publication in the present case was libelous per se. There is as little doubt that it was made on a proper occasion and from a proper motive, the plaintiff at the time being a candidate for a public office. The only question to be further considered is whether it was based on reasonable or probable cause for believing it true. That the defendants believed it to be true, is not sufficient; the belief must have rested on reasonable and probable cause: Winebiddle v. Porter-field, supra.

Personally, the defendants took no part in the publication complained of, and they had no knowledge of it until after it had been made. The person by whom it was directed was Mr. Tribit, the city editor of the Chester Times. It is contended, on the part of the defendants, that Mr. Tribit had knowledge of facts on which it was based which furnished probable cause for believing it true. In our view of the case, the only assignments of error which it is necessary to consider are those relating to the rejection of evidence offered by the defendant respecting the sources from which Mr. Tribit derived his information, and its character.

The ninth assignment cannot be sustained. It is not sufficient that Mr. Robinson, who published the article in the Media Ledger, “had information which led him to believe it was true.” The circumstances leading to his belief must be shown, that it may appear whether or not it was well founded. Even if the defense here could be based on circumstances known to Mr. Robinson, not communicated to the defendants, the offer falls short of the essential requisites. The offers embraced in the tenth, eleventh and twelfth assignments are too vague, and relate to matters collateral to the alleged source of information, wholly immaterial. As to the thirteenth, the offer does not propose to show that any information obtained by the witness was communicated to the defendants or to Mr. Tribit previous to the publication ; and whether the witness had anjr reason to believe that it was not true is immaterial. These assignments, it may be added, are defective under the rule in embracing more than one point, and even if meritorious we should be justified in disregarding them. This leaves only the sixth and seventh assignments for consideration. In strictness, we might well disregard these, as each violates the rule in embracing more than one point. But on questions involving a matter so important as the freedom of the press, we waive this objection and proceed to examine them.

The defendants had an undoubted right to prove the circumstances on which probable cause for belief was based, with the sources of their information so far as the latter bore on the good faith of their inquiry: Conroy v. Times, 139 Pa. 334; Jackson v. Times, 152 Pa. 406. If the record showed no more on this subject than the offers embraced in these assignments, we should be constrained to regard their rejection as error. But the record shows a great deal more. It shows that the very matters to which the offers relate were subsequently brought out in full by the cross-examination of Mr. Tribit and ex-city controller Hawthorne, the witnesses by whom the defendants offered to prove them. This cured the error of rejecting the offers. It further shows that on the point of probable cause the defense was wholly without foundation. As the information on which the publication was based was thus presented as fully as if on direct examination, and as it constituted no defense, the defendants were not prejudiced by the rejection of the offers.

That it may fully appear what the defendants proposed to show, as probable cause, we give the statement of it presented by their counsel during trial, viz :

“ Mr. Robinson: The foundation of this article was the following state of facts : The city had been paying to the mayor five hundred dollars a year as a salary, and he had been receiving also all the fees which were derived from his office. The city had also been permitting the chief of police and the officers to take all the fees to which they were entitled, which would probably amount to another thousand dollars. The act of 1889 changed the law for the benefit of the city. It provided that hereafter the mayor and the officers of the city should have a fixed salary, and that the fees pertaining to the office should be turned into the city treasury. Our evidence is, as I understand it, that immediately after the election of the mayor and before he took his seat the question of the amount of the mayor’s salary had to be fixed, and an ordinance was passed fixing the amount of the mayor’s salary at fifteen hundred dollars a year. This amount of salary being granted to him on the distinct understanding that the mayor should turn the fees received by the city' into the city treasury. He took his position as alleged on the first Monday of April, and shortly afterward, through some arrangement between alderman Allen and the mayor, as we assume, the mayor ceased to hear the cases which had been formerly heard by him, and alderman Allen was brought into the city hall and placed in the seat of the mayor, and from that time hearing the cases which previously were all heard by the mayor, and alderman Allen took the fees which had previously been received by the mayor, and which ought to have been turned into the city treasury. That was a subject of discussion for a long time. The chief of police likewise continued to take other fees. Under the act of 1889 it was the duty of the mayor to collect the fees and pay them into the treasury. The matter was discussed in council and finally it ended in litigation to ascertain why the money did not go into the public treasury and to compel it to be paid, and this subject then became an issue in the courts. Now it is that state of facts, the fact that the city treasury of the city of Chester was deprived of two thousand dollars, which is the basis of this criticism. And following it further we will show that the city, in order to require him to turn in his fees, through their counsel, for the purpose of compelling the mayor to do so, refused to fix the salary of the committing magistrate in order to compel this to be done, and that was a matter of criticism and of discussion in council. Now this article says : ‘ Ex-mayor Coates, while mayor of Chester, violated the law and took fees to which he was not entitled.’ It was his duty to collect the fees from the officers ; it was his duty, I take it, to see that the fees that came from the committing magistrate be turned into the city treasury. That he did not do. But we have the right to presume that he did his duty and show the fact that during the time he was in office after the first Monday in April, 1890, no fees were turned, into the city, either through the officers through whom it was his duty to collect or likewise through the committing magistrate that performed his duty. We have the right to assume that he collected these fees, and if they were paid over that they went into his pocket. What took place between him and the committing magistrate or what took place between him and the officers of the city we cannot know; we can only show the fact by giving the circumstances leading up to that, that it was his duty to collect and pay over these two thousand dollars into the city treasury and that it didn’t get there. In other words, that the city did not get some two thousand dollars worth of fees which it was legally entitled to receive, and the mayor got one thousand dollars more than he was entitled to by reason of it.”

From the cross-examination of the plaintiff it appeared that for the first two years of his second term, 1890 and 1891, the hearings were at his request held regularly by alderman Allen, a committing magistrate appointed under a city ordinance, the mayor hearing-only exceptional cases; ’that in 1892, the select council having refused to confirm the reappointment of the magistrate, the hearings were held by the mayor and the fees received by him were paid to the city treasurer.

From the testimony of Mr. Hawthorne and Mr. Tribit, it appears that the former, while city controller, made an investigation respecting the fees in question, which he reported to the city councils, and that he also informed Mr. Tribit of its result, and showed him the entries or papers on which it was based. The result of this investigation, and the information thus given to Mr. Tribit, was, not that Mr. Coates had received fees to which he was not entitled, or had retained fees which he should have paid into the city treasury, but that he had failed to hear cases which, in the opinion of Messrs. Hawthorne and Tribit, he should have heard, and to collect fees which in their opinion he should have collected and paid into the city treasury. It was this that Mr. Hawthorne reported to the city councils, with a statement of the amount of fees involved. His testimony shows clearly that he was unable to discover that the mayor had received fees which he should not have received, or had failed to pay into the treasury fees which belonged to the city. And Mr. Tribit, in answer to the question, “ Whether, outside of those papers (shown -by Hawthorne to Tribit) Mr. Hawthorne has ever mentioned, to you the fact or circumstance of mayor Coates ever having taken a fee contrary to law,” replied, “ Well, I don’t know that he did.” His further cross-examination shows that his information was in fact limited to the matters already related: “Q. Well, then, the whole sum and substance of it was that if the mayor had heard the cases the city would have been much richer and have that much more money? A. Yes, sir. Q. And that is the whole sum and substance of your knowledge? A. I believe so.”

The defendant Wallace, who had received from the city controller substantially the same information obtained by Tribit, in answer to the question, “ I want your recollection of what he (Hawthorne) said,” replied, “ that the mayor had not taken-any fees, and that he had not turned them into the city treasury.” Ques. “That the mayor had not taken any fees, and that he had not turned them into the city treasury ? ” Ans. “ Yes.” Again: “ Will you turn to any part of it (the city controller’s report) which says that mayor Coates received any improper fees, and did not turn them over?” Ans. No, sir; he does not say that Coates did, but the city officials.” This defendant further testified repeatedly and “advisedly,” that .what the controller stated to him was practically the same as the matters stated in his report. “ My interpretation of the language,” said he, “is that it amounts to the same thing.” What the report set forth has alreadj^ been shown.

We may properly refer to the definition of probable cause given by Gibson, C. J., in Seibert v. Price, 5 W. & S. 438, an action based on a malicious prosecution for perjury: “ It is a deceptive appearance of guilt, arising from facts and circumstances misapprehended or misunderstood so far as to produce belief.”

Here, however, there was no misunderstanding or misapprehension as to the facts or circumstances; there was no room for any and no allegation of any. The circumstances lay within a narrow compass, and from the testimony of Messrs. Tribit and Wallace were clearly understood by them. The utmost that can be alleged on this point is that their legal import and effect, hi relation to the charge against the plaintiff, may have been misconceived. This, however, contributes nothing to the ground of belief.

The circumstances on which the publication in this case was founded, cannot be recognized as of a character to create a reasonable ground of belief in its truth. Prior publication by another does not of itself create probable cause for belief. Knowledge that the plaintiff had neglected to perform certain duties which the defendants or their representative thought he should have performed, or to collect certain fees which they thought he should have collected, affords no probable or reasonable ground for belief in the charge that he had violated the law by receiving fees to which he was not entitled, especially when the fees referred to in this charge are the same fees which he is known not to have received. Had the evidence indicated by the offers under consideration been given in chief, it could have availed the defendants nothing, since it would have become the duty of the court to rule, that it failed to show a reasonable ground for belief in the charge published by the defendants.

The record showing no error, the judgment is affirmed.