author: Orlady, J.,

text:
    Tidball’s Estate.

      Trusts and trustees — Conditions—Compensation.
    The question of what is a reasonable compensation to trustees depends largely upon the circumstances of each particular ease, and cannot be determined by an inflexible rule; while in practice it is usually claimed and awarded as a commission, the rate is not determined by an established rule. It may be graduated according to the responsibility incurred, the amount of the estate, and the extent of the services necessarily performed.
    Where a trustee has received five per cent on $20,000 of income from real estate held in trust and valued at $80,000, and $75.00 counsel fee, he will not be entitled to receive an additional compensation of $800 commissions and $200 counsel fee for the mere act of executing deeds under a decree of the court to the persons entitled to the corpus of the estate. In such a case $200 commissions and $200 counsel fee are sufficient.
    Argued May 11,1905.
    Appeal, No. 202, April T., 1905, by Frank Tidball et al., from judgment of O. C. Lawrence Co., Sept. T. 1904, No. 24, for defendant on case stated in estate of
    David Tidball.
    Before Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Decree modified.
    Case stated to determine compensation of trustee. Before Wallace, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court.

      J Norman Martin, with him S. W. Dana, for appellant.

      H. K. Gregory, with him T. W. Hickey, for appellee,
    cited: Montgomery’s App., 86 Pa. 230; McElhenny’s App., 46 Pa. 347; Perkins’s App., 108 Pa. 314; Casely’s Estate, 23 Pa. Superior Ct. 646; Woods’ App., 86 Pa. 346; Biddle’s App., 83 Pa. 340; Bosler’s Estate, 161 Pa. 457; Twaddell’s App., 81* Pa. 221; McKown’s Est., 17 Pa. Superior Ct. 253; Kalbfell’s Est., 17 Pa. Superior Ct. 255.
    November 20, 1905:
   Opinion by

Orlady, J.,

The only controversy in this appeal is in regard to the amount the trustee is entitled to receive as compensation for himself and his counsel. During the time he rendered active service in the care and management of the property he filed four separate accounts, embracing all the rentals coming to his hands as trustee from April 14, 1900 (the date of David Tidball’s death), to September 8, 1904, which aggregated $19,621.43, and reserved a commission thereon of five per centum, and in addition thereto the sum of $75.00 for services rendered by his attorneys.

The trustee had general supervision of the property which consisted of “ The Leslie House,” — which was occupied as a hotel — and by eight several tenants. After paying the taxes, insurance and for repairs to the premises, he distributed the balances in his hands to the persons entitled to receive the ' same.

On September 7,1904, all the persons interested in the property and estate of David Tidball, deceased, agreed among themselves that they owned the Leslie House property in certain specified proportions, and elected each for himself and jointly with all the others to take that property as land; to have -and to hold the same to themselves, their heirs and assigns forever in lieu of any legacy or provision given or made under the will of David Tidball, deceased. These facts were presented to the orphans’ court by a petition signed by all the parties, and it appearing to the court to be for the best interest of the petitioners that the arrangement should be carried into effect, it was decreed that the trustee should make, execute and deliver a deed for the property to the parties, and in the proportions mentioned, which deed was subsequently prepared by the attorneys for the trustee, who then executed and delivered it in compliance with the decree. The property was valued at $80,000, and the trustee claimed as compensation for his services as trustee and for his attorneys out of the corpus of the estate. The court below fixed the compensation at one per . centum, or $800, and the sum of $200 as attorney’s fees. The case stated does not allege that the trustee rendered service of any kind in effecting the family settlement of this estate, which result was secured by the efforts of the petitioners, and neither time nor money was expended, nor was any responsibility incurred by the trustee. He was fully protected by the decree ,.of the court, to which he assented, and it would have .been futile for him to have resisted its enforcement. For the services rendered by him under the decree of the court he is entitled to a reasonable compensation, but for these alone, but we cannot agree with the learned court below that one per cent on $80,000 for executing and delivering the deed and surrendering the trust property to the real owners under the circumstances is a reasonable allowance. The termination of the trust by the change of the title was at the request of the petitioners and was in their interest, so that the reasonable expenses incurred in effecting this should be paid by them. ■

The question of what is a reasonable compensation to trustees depends largely upon the circumstances of each particular case, and cannot be determined by any inflexible rule, while in practice it is usually claimed and awarded as a commission, the rate is not determined by any established rule. , It may be graduated according to the responsibility incurred, the amount of the estate, and the extent of the services necessarily performed: Perkins’s Appeal, 108 Pa. 314. The facts necessary to fix the trustee’s compensation are as fully before this court as they were before the court below, and in dealing with the case stated as presented we conclude that the sum of $200 is a reasonable compensation for the trustee, and the further sum of $200 to Gregory and Dickey, Esqrs., as his counsel and attorney fees, in all the sum of $400, which should be paid from the corpus of the estate. As thus modified the decree is affirmed. The costs of this appeal to be paid by the trustee.


source: Caselaw Access Project

license: Public Domain

text:
    Mays, Appellant, v. Melat.

      Equity — Equity practice — Accountants—Assessors—Partnerships.
    Where on a bill in equity for a partnership accounting, the trial judge calls to his assistance, a competent accountant as an assessor, and reaches a decree after a painstaking investigation of complicated and obscure accounts, and the result reached is as nearly correct as it is possible to secure from the books of the parties, the appellate court will not interfere with the decree.
    Argued May 15, 1905.
    Appeal, No. 242, April T., 1905, by plaintiff, from decree of C. P. Venango Co., Aug. T., 1903, No. 5, on bill in equity in case of William H. Mays v. B. Frank Melat.
    Before Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Bill in equity for a partnership accounting. Before Criswell, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court.

      Thomas Matthews, for appellant.

      F. A. Sayers, for appellee.
    November 20,1905:
   Opinion by

Orlady, J.,

These partners kept their accounts in so complicated and untrustworthy a manner that it is not possible to determine their respective rights with certainty .or accuracy upon the dissolution of their partnership. As stated by the court below, “ Neither of the partners were familiar with bookkeeping or able to keep accurate or even intelligent accounts of their transaction. No accounts were kept except very crude ones which were not self-explanatory and which did not pretend to embrace in detail the relations of the firm to those with whom they had transactions, or the status of the members toward the firm or towards each other.” To aid in adjusting their differences the court below called to its assistance a competent accountant as an assessor, and after a painstaking investigation reached a result which is as nearly correct as it is possible to secure from the books of the parties. An examination of the whole record has convinced us that the decree made by the court below is substantially correct.

The assignments of error are overruled and the decree is affirmed.


author: Oklady, J.,

text:
    King v. Grannis, Appellant.

      Ejectment — Possession—Affidavit—Act of July 9, 1901, P. L. 614.
    In an action of ejectment, defendants, who were duly served entered a plea, and permitted the case to be tried upon the merits, cannot subsequently object to the action of the court in permitting the plaintiff to file nunc pro tunc before the trial, an affidavit setting forth who were the claimants of the premises, where such affidavit had not been filed with the praecipe as required by the 10th clause of sec. 1 of the Act of July 9, 1901, P. L. 614.

      Ejectment — Fraud—Evidence—Fraudulent conveyance.

    In an action of ejectment where the issue is upon the alleged fraudulent character of a deed to hinder creditors, great liberality will be exercised in the admission of evidence which has a tendency to show the fraud; and the party alleging the fraud is entitled to have the jury consider the united force of items of testimony having this tendency.
    Argued May 16, 1905.
    Appeal, No. 107, April T., 1905, by defendants, from judgment of C. P. Warren Co., Deo. T., 1902, No. 13, on verdict for plaintiff in case of Blanche S. King v. Myra Grannis, Lewis H. Grannis and H. J. Muse.
    Before Beaveb, Oelady, Pobteb, Mobbison and Hendeeson, JJ.
    Affirmed.
    Ejectment for land in Corydon Township. Before Lindsey, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff. Defendants appealed.

      Errors assigned were (1) refusing to quash the writ; (2-4) admission of various offers of evidence tending to sbow fraud; (5, 6) answers to points quoted in the opinion of the Superior Court.

      W. W. Wilbur, for appellant.
    It was error to permit the affidavit to be filed nunc pro tunc: Bladen v. Phila., 60 Pa. 464 ; Harris v. Mercur, 202 Pa. 313 ; Crider v. McCafferty, 13 Pa. Dist. Rep. 638; Walter v. Powell, 13 Pa. Dist. Rep. 667; Shumway v. Webster, 24 W. N. C. 336.

      A creditor may take a conveyance to secure an actual debt, and the transaction will be valid as against other creditors, although he knew that the effect would' be to postpone others, that the debtor intended it to have that effect, and although he took it to aid that effect to protect himself : Snayberger v. Fahl, 195 Pa. 336; Shibler v. Hartley, 201 Pa. 286; Werner v. Zierfuss, 162 Pa. 360.
    An alleged fraud must be established by direct proof, or by facts sufficient to warrant a presumption of its existence, clearly proved. It is not enough to charge fraud and prove, in support thereof, slight circumstances of suspicion only : Jones v. Lewis, 148 Pa. 234.

      J). U. Arird, with him T). I. Ball, for appellee.
    Defendants’ objection to the jurisdiction is too late: Lytle v. M’Cune, 20 Pa. Superior Ct. 594 ; Jeannette Boro. v. Roehme, 197 Pa. 230 ; Lycoming Fire Ins. Co. v. Storrs, 97 Pa. 354; Philadelphia v. Adams, 15 Pa. Superior Ct. 483; Schober v. Mather, 49 Pa. 21.
    We may not differ from the appellants as to the rule, that fraud is not to be presumed, but must be proven; but we do differ from them in that it may be inferred from competent, proven facts : Brinks v. Heise, 84 Pa. 246; Lowe v. Dalrymple, 117 Pa. 564; Kaine v. Weigley, 22 Pa. 179.
    A conveyance of all the property before an impending judgment or execution, has been held to be a circumstance indicating a purpose to hinder and delay creditors : Redfield & Rice Mfg. Co. v. Dysart, 62 Pa. 62; Babb v. Clemson, 10 S. & R. 419; Streeper v. Eckart, 2 Wharton, 302.
    If the intent of the conveyance be to hinder and delay a creditor, the deed is void, although made for a full consideration : Ashmead v. Hean, 13 Pa. 584; Dean v. Connelly, 6 Pa. 239; Zerbe v. Miller, 16 Pa. 488 ; Ferris v. Irons, 83 Pa. 179.
    The circumstances to be submitted to the jury in this case are far more numerous, stronger and persuasive than were those in Painter v. Drum, 40 Pa. 467; Graham v. Smith, 25 Pa. 323; Stewart v. Wilson, 42 Pa. 450; Donaldson v. West Branch Bank, 1 Pa. 286 ; Rogers v. Hall, 4 Watts, 359.
    A great latitude of evidence is to be allowed in the trial of questions of fraud: Stauffer v. Young, 39 Pa. 455; Zerbe v. Miller, 16 Pa. 488; Painter v. Drum, 40 Pa. 467; Lowe v. Dalrymple, 117 Pa. 564.
    November 20,1905:
   Opinion by

Oklady, J.,

This action of ejectment was brought September 26,1902, by Blanche S. King against Myra Grannis and Lewis H. Grannis. The writ alleged them to be in the actual possession of the premises, and they were duly served by the sheriff. Four months afterwards the defendants by H. J. Muse, their attorney, obtained a rule to show cause why the’service of the summons should not be set aside for the reason that the plaintiff had not filed with her prsecipe an affidavit setting forth who were the claimants of the premises, as required by the tenth clause of section 1, of the Act of July 9, 1901, P. L. 614. At the same time a rule was granted at the instance of the plaintiff to show cause why she should not file, nunc pro tunc, the affidavit required by the act. The first rule was discharged and the second made absolute with an exception noted for the defendants. This act of assembly, as stated in the seventeenth clause, was intended to furnish a complete and exclusive system in itself re-lativé to the service of certain process in actions at law, but fails to impose any penalty for not following the direction, as set out in the tenth clause, in regard to practice. The purpose was to make the real owner and claimant of the property, and not a mere tenant or trespasser, the defendant in the action; but, the omission to file the required affidavit would not necessarily abate the action. The court in its discretion was justified in allowing the affidavit to be filed subsequently, as the defendants, as then in court, having been served with the process while in possession of the premises, did not disclose any other parties in interest.

The Act of April 20, 1905, P. L. 233, was passed to relieve the doubt created by this tenth clause and provided that said clause “ shall not be deemed or considered as applying to, or affecting in any manner, any and all suit or suits which had been commenced prior to the twenty-third day of April, A. d. 1903, and which said suit or suits were then pending and undetermined.” The omission to file the affidavit with the prsecipe when there was a valid service was but an irregularity in practice over which the court had full discretionary power. The two named defendants entered a general appearance, and, on March 18, H. J. Muse was permitted on his own petition to intervene and become a defendant to plead and make defense to the action. Each of the three defendants entered a plea of not guilty. On the trial they offered testimony in support of the title which at that time was claimed to be in H. J. Muse through conveyances from the other two defendants. On such a record it is too late now to question the regularity of the service of the writ or the jurisdiction of the court : Philadelphia v. Adams, 15 Pa. Superior Ct. 483; Lytle, v. McCune, 20 Pa. Superior Ct. 594. The first and second assignments of error are overruled.

The contest was clearly defined in the points submitted for instructions to the jury. The defendants’ third one was as follows: “Said plaintiff must clearly prove that both Myra Grannis and H. J. Muse each executed said conveyance to hinder and delay said John King in the collection of his debt, and that each knew the purpose of the other in executing said conveyance at the time it was executed and delivered,” which was affirmed. The plaintiff’s second point was, “ The jury may infer the fact of a purpose to hinder and delay John King in the collection of his debt against Myra Grannis from the facts and circumstances given in evidence by the plaintiff, if the jury believe the testimony.” To this fhe court answered, “This we affirm. We say to you in connection with this point, because we have not so said in our general charge, that while you may infer from the circumstances, it is not from slight circumstances, but the circumstances should be such as to point to the fact and lead you to the conclusion that the deed was given and received with the intention of hindering King in the collection of his mortgage. Fraud we say to you is never inferred. It must be proven, but that may be by circumstances, providing the circumstances, as we have said, lead vou to the conclusion that that was the intention of the parties.”

Myra Grannis was the owner of the land in dispute in 1896, when she borrowed $360 for four years from John King, to secure the payment of which she executed a mortgage on her home' property, and gave an accompanying bond. She was a married woman at the time but her husband did not join in the mortgage. On July 20,1900, a few days before the King debt matured, Mrs. Grannis and her husband executed and delivered a deed for this property, inter alia, to H. J. Muse, the attorney of the husband. On October 15,1900, King caused judgment to be entered upon his bond with a statement showing the lien to relate back to the date of the lien of the mortgage and issued an execution thereon, whereupon the property now in controversy was sold by the sheriff to John King, who subsequently conveyed it to the plaintiff. The transaction between Grannis and his wife with H. J. Muse involved many dealings, conversations and declarations which were admitted without objections and which could only be disposed of by a jury. The plaintiff assumed the burden imposed by the law and established to the satisfaction of the jury the fact of a fraudulent intent to hinder and delay King in the collection of his debt by the concerted action of Grannis and his wife with H. J. Muse, their attorney. It is not necessary to review the facts upon which the verdict was founded. The whole proceeding was fully investigated on the trial and two juries have sustained the plaintiff’s contention. There is no room for doubt as to the law applicable to such an issue. The legal right of H. J. Muse to take such a conveyance for a past or prospective debt is conceded. As stated in Shibler v. Hartley, 201 Pa. 286, “. . . . It may be considered as the established result of our cases that if a creditor takes a judgment, or conveyance, or payment in any form, to secure an actual debt, the transaction will be valid against other creditors, although he knew (1) that the effect would be to postpone the others; (2) that the debtor intended it to' have that effect; (8) and although he took it to aid that intent as well as to protect himself. The criterion is not the effect but the fraudulent intent. Without that the transaction cannot be impeached. A corollary of the foregoing rule is that where there is an actual debt the jury cannot be permitted to infer a fraudulent intent by the mere fact of payment or preference given.” The facts in this case, as found by the jury, went far in advance of the protecting standard fixed in the decisions. The absence of any present consideration for the deed; the speculative character of the dealings between Grannis and Muse which related to the future services of the attorney in proposed bankrupt proceedings; the oral understanding in regard to a reconveyance of the property, and the reserved benefits to the grantors; the lack of any assertion of title by Muse and the continued occupancy of the premises by Grannis and his wife without payment of adequate rent; the record notice of the mortgage to King are but some of a number of facts which, when combined, would justify the verdict rendered.

Nor was the evidence adduced confined to inferences to be drawn from proven facts alone, and the degree of proof fixed by the trial judge was fully warranted by many cases. As fraud can rarely be proved by direct and positive testimony, great liberality is always exercised in the admission of evidence which has a tendency to show it, and the party alleging it is entitled to have the jury consider the united force of items of testimony having this tendency: Montgomery Web Co. v. Dienelt, 138 Pa. 585.

The rule declared by Black, C. J., in Kaine v. Weigley, 22 Pa. 179, has not been modified, and is to-day in full force: “ The jury must weigh on one hand the facts which are adduced to prove it (fraud), and on the other the nature of the accusation and the improbability of its truth arising from reasons a priori, together with exculpatory facts, and then decide according as they find the preponderance to be. The proposition that fraud must be proved, and is never to be presumed, can be admitted only in a qualified and very limited sense. It amounts to but this : that a contract, honest and lawful on its face, must be treated as such until it is shown to be otherwise by evidence of some kind, either positive or circumstantial. It is not true that fraud can never be presumed. Presumptions are of two kinds, legal and natural. Allegations of fraud are sometimes supported by one and sometimes by the other, and are seldom, almost never, sustained by that direct and plenary proof which excludes all presumption.”

In stating that, “ Fraud is never inferred; it must be proved, but that may be by circumstances provided the circumstances lead you to the conclusion that that was the intention of the parties,” the trial judge was announcing a lenient interpretation of the rule, which must have been in the defendants’ favor: Jackson v. Summerville, 13 Pa. 359 ; Lasher v. Medical Press Co., 203 Pa. 313; Weber v. Aschbacker, 205 Pa. 558 ; Waterhouse v. Waterhouse, 206 Pa. 433.

This case has been fully presented to two juries, and the last verdict is approved by the court below in refusing .to grant another trial. On review of the whole record we do not find any substantial error to justify a. reversal of the judgment, and it is now affirmed.


author: Morrison, J.,

text:
    Commonwealth, Appellant, v. Beilstein.

      Fish laws — Wall-eyed pike — Criminal law — Act of May 29, 1901, P. L. 302, and May 29, 1901, P. L. 335.
    A person cannot be convicted under the Act of May 29, 1901, sec. 3, P. L. 302, for having in his possession for sale wall-eyed pike, in the city of Allegheny, between Pebruaiy 15 and June 15, where it appears that the fish in question were lawfully caught ifx the waters of Lake Erie under the permission granted by the Act of May 29, 1901, P. L. 335. In a prosecution on such a charge the burden is upon the defendant to prove that the fish were lawfully caught and killed in Lake Erie.
    Argued Oct. 2, 1905.
    Appeal, No. 37, April T., 1906, by ■plaintiff, from judgment of Q. S. Allegheny Co., March T., 1905, No. 37, reversing judgment of justice of the peace in case of Commonwealth v. Charles Beilstein.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Appeal from summary conviction. Before Shafer, J.
    The facts are stated in the opinion of the Superior Court.

      JError assigned was the judgment of the court.

      John W. Hague, for appellant.
    The very fact that a party has in his possession, killed game fish, during the close season, has always been recognized as pointing to a violation of the close season, and has always been considered an effective police regulation. To permit wall-eyed pike and other game fish, to ■be sold by fishermen, of the boundary lakes, throughout this commonwealth • during the close season, is at once to destroy the effect of the having possession of killed game fish as a police regulation; and to occasion such a condition as will shut the door against the discovery of violations of the fishing laws.

      J. M. Shields, for appellee,
    cited: Com. v. Wilkinson, 139 Pa. 298.
    November 20,1905 :
   Opinion by

Morrison, J.,

The defendant was charged and convicted before an aider-man of the city of Pittsburg with having in his possession, the same being killed, ten wall-eyed pike, between February 15 and June 15, contrary to section 3 of the Act of May 29,1901, P. L. 302. After the conviction of the defendant he appealed to the court of quarter sessions of Allegheny county.

At the hearing in court it was proved and admitted that on April 14, 1905, the defendant had in his possession, for sale, in the city of Allegheny, ten blue pike which fish had been caught in the waters of Lake Erie by a boat and fisherman having a license from the state of Pennsylvania to fish in those waters. For the purpose of trial and decision it was agreed that the fish in question were blue dr wall-eyed pike and within the meaning of the acts of assembly in regard thereto.

The defendant, appellee, contended that the provisions of the act of May 29, 1901, did not make it unlawful to have killed wall-eyed pike in his possession in Allegheny county; they having been caught in Lake Erie, and that the thirty-second section of the act expressly provides that the act shall not apply to any lake partly within the boundaries of this state nor to any fish caught in the same.

The learned court below adopted the appellee’s theory of the law and reversed the judgment of the magistrate and ordered restitution of the fine and costs. From this judgment the commonwealth appealed and filed the following assignments of error: 1. The court below erred in making the following order for judgment, namely, “The judgment of the magistrate is therefore reversed and-restitution of fine and costs is awarded.” 2. “ The court below erred in holding that the appellee had not violated the third and seventeenth sections of the Act of May 29, 1901, P. L. 302, although the court found that the appellee had in his possession and for sale ten killed wall-eyed pike on April 14,1905, in the city of Allegheny, which fish had been caught in the waters of Lake Erie by a boat having a license from the state of Pennsylvania to fish in those waters.” 8. “ The court erred that the burden of proof was on the commonwealth to show not merely the possession of the forbidden fish, after it had been killed, but that it was in fact killed contrary to law.” 4. “ The court erred in not sustaining the judgment of the alderman.” 5. “ The court erred in not holding the right to fish in Lake Erie did not give the right to sell killed wall-eyed pike in Allegheny county, during the closed season, in which it was unlawful to fish in Allegheny county, and in the interior waters of the state for wall-eyed pike.”

Careful consideration of the conceded facts in this case and the provisions of law applicable thereto does not convince us that the court erred in reversing the judgment of the magistrate and awarding restitution. The third section of the act of 1901, supra, as to its prohibition and penalty, must be read and considered in connection with the title of the act. By the title the prohibition and penalty is clearly limited to the public waters within the state. The thirty-second section of the same act reads: “ The prohibition and penalties provided in this act shall not be construed or held to apply to any waters forming the boundary line between this and any other state, over which this state has concurrent jurisdiction with such state, so far as such waters form such boundary line; nor to any lake partly within the boundaries of this state, nor to waters on any peninsula or of any bay adjacent to or connected with such lake, nor to any fish caught in any of the waters in this section mentioned,”

Section seventeen of the act reads : “ That from and after the passage of this act, it shall be unlawful to purchase, sell or offer for sale, or have in possession, the same having been caught in this commonwealth, any dead game or food fish, except during the lawful period for catching the same and the space of six days after such period has expired.”

The legislature also passed on May 29, 1901, P. L. 335, an act “ for the protection and increase of fish in such parts of boundary lakes, of more than five thousand acres, as this commonwealth has jurisdiction over, and in waters of any peninsula or in any bay adjacent to or connected with such lakes; to declare the species of fish in said waters which are game fish and those which are commercially valuable for food; to regulate and provide for the payment of license fees for the catching of the same; to provide penalties and punishments for the violation of any of the provisions of this act, and to repeal all laws inconsistent herewith.”

An examination of this act makes it clear that a licensed fisherman may catch and kill the fish in question in the present case, during the closed season as to the waters described in the Act of May 29, 1901, P. L. 302, and, therefore, in our opinion, the legislative intent is clear that the penalty provided in the last mentioned act cannot be made to apply to a person having in his possession and for sale, fish caught in Lake Erie 'by a boat and fishermen licensed under the provisions of the Act of May 29, 1901, P. L. 335. We think this is made clear by the plain reading of the thirty-second section of the Act of 1901, P. L. 302. In our opinion, it is manifestly unreasonable to suppose that the legislature made it lawful to catch and kill the fish in question in Lake Erie, during the closed season as to the interior waters of the state, and then provided a severe penalty against citizens of Pennsylvania purchasing and having in their possession for sale fish lawfully caught in Lake Erie by duly licensed fishermen. If this is not the correct construction of the acts in question, then what is the meaning of the said thirty-second section ? It plainly provides that the prohibition and penalties therein shall not be construed or held to apply to any lake partly within the boundaries of this state nor to any fish caught within the waters in this section mentioned. Manifestly Lake Erie is one of the waters referred to in this section and if the prohibition and penalties do not apply to any fish caught therein, it is absurd to say that the prohibition and penalties apply to a fish dealer in Allegheny county who had in his possession for sale some of the fish, lawfully caught in Lake Erie, to which the said prohibition and penalties do not apply.

We think the question here raised is in principle ruled by Commonwealth v. Wilkinson, 139 Pa. 298. That case arose under the ninth section of the Act of June 3, 1878, P. L. 160, which, as amended by section 1, Act of April 25,1889, P. L. 53, enacts that “ No person shall kill or expose for sale, or have in his or her possession after the same has been killed, any quail or Virginia partridge between the 15th day of December in any year and the first day of November next following under a penalty of $10.00 for each bird so killed, exposed for sale or had in possession.” By the thirty-third section of said act it is provided : “ In all cases of arrests made for the violation of each or any of the foregoing sections of this act, the possession of the game, fishes, birds, animals, fowls, nets, or other devices provided for or so mentioned, shall be prima facie evidence of the violation of said act.”

The defendant in that case was convicted and fined for having in his possession, within the state of Pennsylvania, some of the prohibited game within the closed season, which had been killed outside of the commonwealth. The Supreme Court, in an opinion by Mr. Chief Justice Paxson, held : “ The meaning of the act, as we view it, is that no quail shall be killed, in this state, between the dates specified, and no,person shall have in his possession or offer for sale any quail so killed in this state.” The court clearly decided that the prohibition and penalty did not apply to a person in this state having in his possession and offering for sale, within the closed season, quail which had been killed in another state.

We are unable to distinguish the principle involved in that case from the one under consideration. Under the two acts of assembly referred to, the fish caught in Lake Erie lawfully, may be held in possession and sold in Allegheny county precisely on the same ground that the quail killed in another state were lawfully held in possession and offered for sale in this state.

This conclusion requires us to dismiss the assignments of error because none of them require the reversal of the judgment. But before closing we desire to refer to the third assignment. It is not well drawn but it raises the question as to where the burden of proof lay. At the trial the defendant assumed the burden and proved that the fish were lawfully caught and killed in Lake Erie. This we think was correct. The fish being found in the possession of the defendant during the closed season and his defense resting upon the exceptional provisions of the acts of assembly, the burden rested upon him of showing ■that the fish were caught in Lake Erie. To hold otherwise would have the effect in many cases of making it impossible for the commonwealth to convict a defendant who has in his possession fish unlawfully caught in the inland waters of the state, during the closed season. We think the facts shown by the commonwealth in the present case called upon the defendant to show where the fish were caught, if he desired to make a defense. We, therefore, sustain the third assignment of error but in view of the way in which the case was tried, this does not in any manner impeach the correctness of the judgment. The case was correctly tried and a proper conclusion reached and we sustain this assignment for the reason that we do not wish it to be understood that this court adopts the theory that in such a case the burden rests on the commonwealth of showing where the fish were caught.

The judgment is affirmed.


text:
    Commonwealth v. D’Angelo, Appellant.

      Appeals — Assignments of error — Excerpts from, charge — Charge as a whole —Criminal law.

    On the trial of an indictment for a crime, the trial judge cannot be convicted of error by excerpts taken from his charge, which were not complete paragraphs or represented separate and entire instructions on essential phases of the case, where the charge considered as a whole fully and fairly presented the defendant’s case in an adequate manner.

      Criminal law — Assault and battery — Charge of court — Reasonable doubt.

    On the trial of an indictment for assault and battery where the first count charges an aggravated assault and battery, and the second a simple assault and battery, the trial judge fulfills his duty if he defines the offense of aggravated assault and battery by reading the statutory definition given to it in the crimes act, and describes the offense charged in the second count by a plain and comprehensive explanation. No further repetition is required of him.
    Where the defendant in a criminal trial makes no request for particular instructions as to the definition of the term “reasonable doubt,” and the court in the course of the charge several times brings to the attention of the jury the question of reasonable doubt, the defendant, on appeal, cannot complain of the inadequacy of the instruction given on the subject.
    Argued Oct. 2, 1905.
    Appeal, No. 24, Jan. T., 1906, by defendant, from judgment of Q. S. Luzerne Co., June T., 1905, No. 40, on verdict of guilty in case of Commonwealth v. Raphael D’Angelo and William Danes.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment'for assault and battery. Before Ferris, J.
    The opinion of the Superior Court states the case.
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were various excerpts from the charge, and that the court erred in failing to define the meaning of the term “ reasonable doubt.”

      James L. Lenahan, with him Andrew Eourigan, for appellant.
    The charge was inadequate: Rice v. Com., 100 Pa. 28; Kelchner v. Nanticoke Borough, 209 Pa. 412; Com. v. Goldberg, 4 Pa. Superior Ct. 142.

      Abran Salsburg, assistant district attorney, with him B. B. Jones, district attorney, for appellee.
    The charge was sufficient: Alexander v. Com., 105 Pa. 1; Fowler v. Smith, 153 Pa. 639 ; Com. v. Orr, 138 Pa. 276; Com. v. Johnson, 133 Pa. 293; Com. v. Warner, 13 Pa. Superior Ct. 461.
    November 20,1905
   Opinion by

Orlady, J.,

This defendant (with William Danes) was convicted of an aggravated assault and battery.

If the assignments of error, which are excerpts taken from the charge, were complete paragraphs or represented separate and entire instructions on essential phases of the case, they would undoubtedly be erroneous. However, after an examination of the testimony and the whole charge, it is- clear that the defendant had his case fully and fairly presented in an adequate manner. It was rather the weight of the case that pressed heavily upon him than the manner in which it was presented to the juiy. The first count in the indictment was for an aggravated assault and battery; the second simple assault and battery. At the outset, the trial judge defined the offense of aggravated assault and battery by reading the statutory definition given to it in our crimes act, and described the offense charged in the second count by a plain and comprehensive explanation. This was immediately followed b}r the further elucidation, “ It is to be noted that in the offense charged in the first count of the indictment the violence used or the wound given shall have been first unlawful, and second, maliciously inflicted.” The defendants were constables having warrants for the arrest of the prosecutor in this case and if their testimony was to be believed they were not guilty of any offense. On the other hand, if the facts as detailed by the witnesses for the commonwealth were to be accepted as the true version of the struggle they were properly convicted. The testimony of each side was succinctly summarized by the court. The excerpt quoted in the first assignment of error, is immediately preceded by a sentence which was intended to explain the conduct of this appellant, viz.: “ You will remember the testimony bearing upon the animus and malicious character of the assault, or the malice that actuated D’Angelo in making the assault, if you believe the testimony.” Directly following this the court stated: “ For we say to you gentlemen that under the testimony in this case, these two defendants were within their duty in arresting and taking this man upon the commitment. The question is whether they exceeded their duty in doing it in an unlawful manner, .... was it necessary for him to use that violence, which he admits doing ? If not, then he was guilty of an assault and battery upon this prosecutor; whether it would be an aggravated, or a simple assault would be for you to decide. After they succeeded in getting him in the buggy, the testimony on behalf of the defense is that while they were driving off the prosecutor seized the lines and interfered with the driver, the driver being Danes. That D’Angelo in order to cause him to release his hold of the lines, beat him over the arms with a ‘billy’ or with a club. Was- it necessary? Was it reasonably necessary under all the facts and circumstances of the case, that he should use this violence in order to release the hold of the man upon the lines ? If it was not such an assault, that alone would justify a conviction. If it was not, it was such an assault as would justify a conviction of assault and battery of the one grade or the other, as you may find the injury to be serious or not. ... If you believe that the defendants were not guilty of aggravated assault and battery, as we have tried to explain that to you, but were guilty of a simple assault, of course you will so find. If you bélieve thát they were not guilty you will acquit them generally.” It was not necessary for the judge to explain more than once the distinctive difference between the grades of the offense, and it was so distinctly done in his opening of the ease and finally impressed upon the jury in the conclusion of the charge that it would be a dull jury indeed that would not fully understand thát they were to apply the evidence, with the definitions of the grades of the offense as given by the court. That they so did comprehend it is shown by the verdict rendered — “ guilty of aggravated assault and battery and recommend them to the mercy of the court.” The appellant urges by the fourth assignment that the charge was inadequate for the reason that the judge did not define the term “reasonable doubt.” Four different times in the charge this question is brought to the attention of the jury as follows : “ But where after a full and fair consideration of all the testimony in the case, you believe from the evidence, beyond a reasonable doubt, that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which flows from that state of the ease. ... We say to you that the defendants are-to be presumed innocent until they have been proved guilty to your satisfaction, beyond a reasonable doubt. ... If you believe from the evidence, beyond a reasonable doubt, that these defendants are guilty of a brutal assault upon the prosecutor,- as has been testified to by the commonwealth’s witnesses, and you believe that it was unnecessary in performing the duty of taking this man into custody, to inflict that injury upon him, and if you believe that serious bodily injury was done him thus unnecessarily, you would be justified and it would be your duty to find the defendants guilty as charged in the first count of the indictment of' aggravated assault and battery. If you believe from the evidence, beyond a reasonable doubt, that one of the defendants was so guilty and the other not, you would have a right to bring in a verdict of guilty as to that one and not guilty upon that count as to the other.”

The nature of the controversy, the distinctive difference between .the two counts of the indictment, the contention of each side, the burden of proof, and the province of the jury were fully explained in a comprehensive and clear manner. The defendants did not make any requests for instructions as to any special signification of the term “ reasonable doubt.” Evidently they relied upon the common sense and everyday application by the jury of the words which are of common usage and have no uncertain or extraordinary meaning. Had they thought otherwise the question could have been relieved of all doubt by a request for particular instruction on that subject : Rudy v. Commonwealth, 128 Pa. 500; Commonwealth v. Boschino, 176 Pa. 103; Commonwealth v. Morrison, 193 Pa. 613. The court below who heard the testimony and saw the witnesses was satisfied that the verdict was a proper one, and refused to grant a new trial.

Neither of the assignments of error is sustained and the judgment is affirmed, and it is ordered that the record be remitted to the court below that the sentence imposed shall be fully carried into effect.


author: Henderson, J.,

text:
    Harp Building and Loan Association v. Sheehan, Appellant.

      Affidavit of defense — Building and loan association — Contract—Compensation of treasurer — Interest on deposits.

    In an action by a building and loan association against its treasurer to recover a balance alleged to be due the association from interest on moneys of the association deposited in bank, it appeared that the bond upon which the suit was brought provided that the treasurer should submit his books and accounts to the auditors of the association and pay over to his successor any balance found to be due. The affidavit of defense averred that the defendant had submitted his books and accounts to the auditors, and that the latter had found them to be correct; and that it was agreed that money from interest on deposits should be retained by the defendant as compensation for his services; and that a part of the credit for interest was not derived from funds of the association, but from private funds of the deponent. The affidavit did not suggest that the auditors had knowledge of the credit of interest on the books of the bank; nor did it show the time when, and the persons with whom the alleged agreement was made, or whether it was oral or written, or whether it was based on a resolution of the association or the verbal promise of one of its officers; nor did it show what amount of interest was derived from the treasurer’s private funds. Held, that the affidavit was insufficient to prevent judgment.

      Argued Oct. 3,1905.
    Appeal, No. 226, Oct. T., 1904, by defendant, from order of O. P. No. 1, Phila. Co., March T., 1897, No. 1178, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Harp Building and Loan Association v. Joseph Sheehan and John Muldoon.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit on a bond.
    Rule for judgment for want of a sufficient affidavit of defense.
    The material averments of the affidavit of defense are set forth in the opinion of the Superior Court.

      Error assigned was the order of the court.

      William Q-orman, for appellants.
    The affidavit of defense was sufficient: Deacon v. Smaltz, 10 Pa. Superior Ct. 151; Williams v. Myers, 3 Pa. Superior Ct. 481; Leo v. R. R. Co., 9 Pa. Superior Ct. 196; Johnston v. Callery, 173 Pa. 129; Knerr v. Bradley, 105 Pa. 190.

      William F. Brennan, for appellee,
    cited: Kyler v. Christman, 23 Pa. Superior Ct. 548; McKay v. McKenna, 173 Pa. 581; Andrews v. Packing Co., 206 Pa. 370; Kilpatrick v. Bridge Co., 49 Pa. 118 ; Martindale v. Wilson-Cass Co., 134 Pa. 348; Lucas Coal Co. v. Hunt. 8 Atl. Repr. 860 ; Brophy v. Brewing Co., 211 Pa. 596.
    November 20,1905 :
   Opinion by

Henderson, J.,

The plaintiff’s action was brought on the defendant’s bond as treasurer of the plaintiff company. The default alleged was that during his incumbency as treasurer the funds of the association were deposited by him in the Continental Title & Trust Company ; that the Trust Company allowed to the association credits of interest from time to time on the deposits of the association amounting in the aggregate to $838.61, as specifically set forth in the statement of claim, and that the treasurer had failed to account for and pay over any part of that amount, by reason whereof he became liable to the plaintiff under the obligation of the bond that he “ make and give unto such auditor or auditors as shall be appointed by the said association a just and true account of all such sum or sums of money, bonds and mortgages, goods and chattels and other things as have come into his hands, charge or possession as treasurer aforesaid,” and the further obligation that he “ pay and deliver over to his successors in office .... all such balances or sums of money, bonds and mortgages, goods and chattels which shall appear to be in his hands and due from him to said association.” It is not denied in the affidavit of defense that the amount claimed was credited to the plaintiff association by the trust company and received by the defendant Sheehan. The defense set up is that Sheehan submitted all his and the association’s books, papers, receipts and orders to the auditors annually appointed by the association, and that the auditors examined them and found them to be correct; that it was agreed that whatever money accrued from interest on the account in the trust company should be compensation for services rendered by the deponent as treasurer, and was to be applied and appropriated in payment for services instead of a salary, and that a part of the credit for interest was not derived from funds of the association but from private funds of the deponent.

The averment as to the action of the auditors is not responsive to the plaintiff’s demand. It is not suggested that the auditors had knowledge of the credit of interest on the books of the bank, nor, if they had such knowledge, that the treasurer charged the association with that amount as compensation or claimed it from the association as such. The affidavit contains no information from which it could be inferred that officers of the association having authority so to do had approved the claim now set up.

The averment as to the agreement for compensation is clearly insufficient. The time when, and the persons with whom, the alleged agreement was made are not stated, nor are we advised whether the agreement was oral or in writing, a resolution of the association accepted by the deponent, or the verbal promise of one of its officers. If we assume that such an agreement would be binding on the plaintiff, the defendant has failed to allege such facts' with reference to it as are necessary in an affidavit of defense.

Nor can the averment that part of the credit for interest was derived from private funds of the defendant avail him as a defense. He admits that his private funds were mingled with those of .the association in the account referred to, but he fails to state what amount of private funds he. had, or what portion of interest credited to the association was received from such funds. Having exclusive knowledge on that point he should have set forth in his affidavit what amount of interest was derived from funds of the association and what amount from his own funds. The affidavit is wholly insufficient to set up a valid defense.

The judgment is affirmed.


text:
    Cochran v. Slomkowski, Appellant.

      Contract — Payment—Check—Banks and hanking.

    Where a creditor receives from his debtor a check and accepts the same as an absolute payment and satisfaction of his claim, he cannot thereafter sue upon his original cause of action.
    Argued Oct. 4, 1905.
    Appeal, No. 246, Oct. T., 1904, by defendant, from order of O. P. No. 5, Phila. Co., June T., 1905, No. 3160, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Andrew Cochran v. Joseph Slomkowski.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for balance alleged to be due on a contract.
    Rule for judgment for want of a sufficient affidavit of defense.
    The averments of the affidavit of defense are set forth in the opinion of the Superior Court.

      Error assigned was the order of the court.

      K. W. Kirby, with him Robert J. Byron, for appellant. — •
    Where the parties agree that checks given shall be in full payment and satisfaction of a balance due under a contract, the plaintiff cannot subsequently sue on the contract: Hunter v. Moul, 98 Pa. 13; League v. Waring & Co., 85 Pa. 244; McCartney v. Kipp, 171 Pa. 644; Farmers’ Nat. Bank v. Marshall, 9 Pa. Superior Ct. 621; McIntyre v. Kennedy, 29 Pa. 448 ; Kilpatrick v. Home B. & L. Assn., 119 Pa. 30; s. c. 140 Pa. 405.

      Alfred Tennyson Steinmetz, with him George Wentworth Oarr, for appellee.
    A check which has not been paid, upon due presentation cannot be considered as satisfaction of an antecedent indebtedness: Hecla Card and Paper Co. v. Potsdamer, 16 W. N. C. 195; Totman v. Gunnis, 16 W. N. C. 98; Bernheimer v.Herrman, 44 Hun (N. Y.), 110.
    November 20,1905:
   Opinion by

Henderson, J.,

The plaintiff declared on a contract in writing for a balance due on the price of the personal property described in the contract. The defendant alleges in the affidavit of defense that he delivered to the plaintiff two checks on the National Security Bank of Philadelphia for filOO and $250 respectively, “ which said checks the plaintiff then and there accepted in full payment and satisfaction of all claims and demands of the defendant for the balance due on the articles mentioned in the incorrect copy of the agreement attached to plaintiff’s statement.” This is a clear averment that the checks were received by the plaintiff as an absolute payment and satisfaction of his claim. It is an allegation that the debt was extinguished. The acceptance from the debtor of his check to be applied to the discharge of an antecedent indebtedness does not amount to payment; it is considered merely as a conditional payment. The creditor may agree, however, to accept it in satisfaction of the original liability, and, such special agreement being established, the creditor must look to the new security for satisfaction of his claim. The burden is on him who alleges such an agreement to prove it, but if established by evidence such a defense is available to him : League v. Waring & Co., 85 Pa. 244; Hunter v. Moul, 98 Pa. 13; Farmers’ Nat. Bank v. Marshall, 9 Pa. Superior Ct. 621.

The defendant’s unequivocal assertion that the checks referred to in his affidavit were given and accepted in full payment and satisfaction of all the plaintiff’s claims and demands on account of the contract sued upon, brings his case within the doctrine of the cases referred to and many others upon the same point. He was therefore entitled to be heard on the defense presented.

The judgment is reversed and the record remitted for further proceeding.


text:
    Beeman v. Supreme Lodge, Shield of Honor, Appellant.

      Beneficial associations — Payment of dues — Forfeiture of membership.

    Where the by-laws of a beneficial-association provide that “each member shall pay the amount according to age, as per table, and any member failing to pay same on or before the last meeting night of each month shall stand suspended from the order and all benefits therefrom,” payment by cash mailed on the last day of the month but not received by the association until the following day, is not a payment within the meaning of the by-law, and failure to make the payment within the time prescribed works a suspension of the member without any action on the -part of the association.
    The words “shall stand suspended,” when used in respect to policies of insurance and death benefit certificates would seem to be equivalent in their legal effect, to “cease and determine” and “null and void.”
    Where the by-laws of a beneficial association provide that in case of a dispute about suspension or expulsion, no suit shall be brought against the association until “the remedies and means of redress” provided by the association shall be exhausted, a beneficiary cannot maintain a suit against the association where it appears that neither the member nor the beneficiary sought in any way to avail himself of the remedies and means of redress provided by the association. Such by-laws are binding upon the association and its members.
    Argued Oct. 4, 1905.
    Appeal, No. 77, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 3054, on verdict for plaintiff in case of Diana Bee-man v. Supreme Lodge, Shield of Honor.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for death benefits.
    The opinion of the Superior Court states the case.
    The court charged in part as follows:
    It appears that in the month of March, 1903, Mr. Beeman received a notice telling him what moneys were to be made up, and what his share was of the sum required. The notice was a printed form, with blanks for the filling in of the necessary special matter, and it instructed him that he owed $1.26, and that payment should be made on or before March 30, to Edward F. Whaley,'financial secretary. It appears that on the morning of March 30, the date named, Mrs. Beeman posted a letter addressed to the financial secretary, and with respect to the address she followed, as you will observe, the instructions given her on the notice, which notice you will have out with you. She inclosed more money than enough to answer the demand. She inclosed $1.50, when all her husband owed was $1.26, and it would seem to be conceded that it was proper that she should do this in behalf of her husband because of the then condition of his health. She says expressly that that letter was posted at 9:30 A. m. [It turns out that it reached the financial secretary, but it reached him something less than eight hours after midnight of March 30 at the latest, if it did not reach him earlier, because assuming that we put a strict interpretation upon this notice, she had until midnight to send in that money and it did reach him by the first delivery in the morning, so you will observe it was just about eight hours, perhaps a little more and perhaps a little less, after the limit of time imposed upon her.] [1] [The notice does not state to Mr. Beeman that there will be a meeting held on March 30 in the evening, and that the money must get to the lodge before or at the time of the meeting. It simply says to him, send the money to Whaley on or before the 30th. There was, however, a meeting held, and at that meeting, among others, Mr. Beeman was reported as delinquent. That was, and must have been necessarily under the notice, the first moment when the point came up, because, as you rvill remember, he had until the end of the 30th. Accordingly, he could not have been delinquent until the end of the 30th, and accordingly when they made that investigation, some little time before the end of the 30th, it must have been the first time when they found he was delinquent.] [2] What do they do ? [They immediately call him brother and suspend him. That seems to be a severe course to pursue. Here was a sick man, who had, it is not denied, posted his money that morning, whose money, as it turns out, was lying there waiting for Mr. Whaley, whose money reached Mr. Whaley within ten hours of the end of the day.] [3] Here was a sick man not given all of the time of the 30th to pay up, but cut short in the matter at that meeting. They appear, according to the testimony of these gentlemen, to have put to the meeting the question, Is anybody here present willing to pay up for Mr. Beeman ? and the reply was either silence, which amounted to a negation, or else an active vote of no, of which there is no record whatever on their minutes. Then, according to another form, they put to the meeting the question, shall we pay this $1.26 out of the fund in behalf of Mr. Beeman, find it has been stated that it was not an unusual thing for the gentleman who had control of the fund to do that for delinquent members, in order that there might later be some negotiation or arrangement by which the fund should be made whole and the gentlemen thus delinquent be continued in membership, and indeed it has been said that it had been done in Mr. Beeman’s case on other occasions. The matter was put to a vote, and it was either negatived like the other by absolute silence, or else there was a negative vote of which there is no record whatever in the book. [Now, if you take the book as evidence, and if you consider that he was entitled to have the question put, will any man here pay for him, and later to have the question put, shall the fund pay for him, then the book shows you no evidence of their having complied with those two provisions, and it will be for you to say whether you credit the witness who testifies that those two matters of practice were on this occasion duly observed.] [4]
    It appears that Mr. Whaley, having gone home that night, left his house the next morning without-waiting for the post, and when he returned to his house from work on the night of March 31, 1903, he found the lady’s letter with the money inclosed, $1.50, and on April 3 he sent it back to her. He sent her the money, and informed her that her husband had been suspended. When the husband was thus apprised, he deputized his son to call on Mr. Whaley to ascertain about the position of things, and whether or not there should be or could be a reinstatement, and you have heard what was said by both gentlemen, Mr. Beenmn’s son and Mr. Whaley, the financial secretary of the association. It would seem that whether or not Beeman was informed that he could not be reinstated on account of his bad health, certainly something was said in that connection which produced on the part of Mrs. Beeman some degree of indignation, and which appears to have impressed Beeman perhaps more than it should. Beeman seems to have considered that he could not be reinstated. It is now said to you that he could have been reinstated if he had paid a dollar, but whilst that is substantially correct, and counsel is always correct, yet the rule is somewhat more than that. He could not have been reinstated merely upon payment of a dollar. However that may have been, he was not reinstated, and the last transaction of which we have evidence having taken place early in April, he remained ill and survived up to August 26 of the same year, when he died.
    There is a case here of some hardship. This is not an effort to take money from widows and children, worthy members, and so on. It is a case in which it is desired, if it is lawful, to collect money from an association, that has promised to pay it, and the collection will injure nobody. If it is due it will be a proper thing for the association to pay it. The first point of inquiry is as to the effect of the mailing of the letter by Mrs. Beeman on the morning of March 30, 1903. [It had not occurred to me until I examined the notice which has been handed to me just now, the precise exigency indicated by the demand, and I have stated to you what it was, to wit, a necessity to pay moneys for certain people in order to make up a fund to go to their survivors, a statement of the proportion due by Mr. Beeman, and an intimation that he must pay on or before March .30. I fail to find any indication that if he did not so pay, this association could lawfully suspend him. You turn to the by-laws for that. You will have them out with you, and will read them, I have no doubt, with care, but I instruct you as matter of law that he had until the end of March 30, in which to make his payment.] [6] [Was there a payment made before the end of March 30 ? The posting of this letter may .perhaps be regarded as a delivery of the money to Mr. Whaley at the moment the letter was put in the letterbox. It then passed from the assured and was put on its way to the financial secretary, and all that happened on March 30. I instruct you that if you find it was so deposited (and you may not find it, the credibility of the witnesses is entirely for you), by Mrs. Beeman on the morning of March 30, at or about 9:30 o’clock, in one of the regular post office boxes of the city, and was thus put in the course of a regular and orderly transmission to the financial secretary within the limits of the city, you may find that it was a delivery of the money to the financial secretary. If I am wrong in this the learned counsel will have the benefit of the attention which the court in banc will give to him and give to anything he may say on the subject. It is a question which is not free from doubt in my mind.
    Mr. Byron: Delivery as of what date?
    The Court: The morning of March 30.
    Mr. Byron : It will be considered delivery as of what date?] [7]
    The Court: Delivery of that date, of course. More than this, however, if you find that this association suspended this man before the end of March 30, you must find that it did what it had no right to do under the law, and he was not lawfully suspended. If he was not lawfully suspended, any action taken by the association which is shown by the proofs here would not be adequate to deprive him, or his widow, of the right to the money for which he had paid, and accordingly should you resolve these two points, or one only of them, in favor of the plaintiff’s contention, you will find a verdict for the plaintiff. [But if, on the other hand, you find that the lady did not make that deposit as she has testified she did, and did not put that letter in the course of transmission, then you will find that she had not practically or legally on behalf of her husband paid the money on March 30, but that will leave you to consider the action of the association itself at that meeting and I confess it appears to me rather difficult to get over the point that they did then and there, before they had a right to do it, before the day had run out which they had given, suspend him unlawfully.] [8]
    Verdict and judgment for plaintiff for $1,088. Defendant appealed.

      Errors assigned, among others, were (2-8) above instructions, quoting them.

      liober.t J. Byron, for appellant.
    The assessment was not paid in time : Shuman v. Fire Ins. Co., 206 Pa. 417 ; McSparran v. Ins. Co., 193 Pa. 184; Black v. Roebuck, 17 Pa. Superior Ct. 324; Bank v. Marshall, 9 Pa. Superior Ct. 621; Thomson v. Ins. Co., 4 Pa. Dist. Rep. 382; Lantz v. Ins. Co., 139 Pa. 546; Duffy v. Alta Friendly Society, 17 Pa. Superior Ct. 531; Hansen v. Supreme Lodge, 40 Ill. App. 216; Knights of Honor v. Keener, 25 S. W. Repr. 1084.
    In the present case there was no appeal by the member because of his suspension, and there was no appeal by his beneficiary, the plaintiff, from the decision of the supreme lodge in refusing payment of death benefits notwithstanding the foregoing section allowed and required such appeal to be taken.
    It is well settled that such by-laws are binding upon the association and its members : Black & White Smiths’ Society v. Van dyke, 2 Wharton, 309; Toram v. Beneficial Ass’n, 4 Pa. 519 ; Visitation Society v. Comm. ex rel. Meiyer, 52 Pa. 125; German Ref. Church v. Comm. ex rel Seibert, 3 Pa. 282; Wick v. Fraternities Acc’t Order, 21 Pa. Superior Ct. 507.

      Borne J. Moorhead, with him Barry A. Ambler, Jr., for appellee.
    If payment by mail is authorized either expressly, by-custom or by the wording of the notice, then mailing the letter containing the money is payment and the time of payment is the moment the letter is deposited properly addressed in the regular course of transmission : Bacon on Benefit Societies & Life Ins., page 724, § 369; Primeau v. Nat. Life Ass’n, 28 N. Y. Supp. 794; Calvin v. U. S. Mut. Acc. Ass’n, 21 N. Y. Supp. 734; Palmer v. Ins. Co., 84 N. Y. 63.
    Beeman had until midnight, March 30, to pay his assessment, and, therefore, his suspension before that time was void: Och v. Homestead Bank & Life Ins. Co., 4 Pitts. L. J. (N. S.) 98; Thomson v. Life Ins. Co., 4 Pa. Dist Rep. 382; Scheu v. Grand Lodge, 17 Fed. Repr. 214; Helme v. Ins. Co., 61 Pa. 107.
    November 20, 1905:
   Opinion by

Morrison, J.,

Silas A. Beeman was a member of the Supreme Lodge, Shield of Honor, appellant, and after his death his wife, appellee, brought suit on his certificate as a beneficiary member of the appellant society, and the ease was so tried in the court below that she recovered a verdict and final judgment for the full amount of her claim. The material facts in the case are practically uncontradicted, and the questions for determination here involve propositions of law and their application to the conceded facts.

It is conceded that the by-laws of the appellant society provide for assessments upon the members and for suspension for nonpayment thereof, and that Silas A. Beeman was properly notified of an assessment to be paid on or before March 30, 1903, and the uncontradicted evidence shows that the assessment did not reach the officer of the appellant, authorized to receive the same, until March 31, 1903. The uncontradicted evidence further shows that Beeman was suspended at the meeting night of March 30 for nonpayment of said assessment, and this was the last meeting night of that month.

We find in the record ten assignments of error, somewhat lengthy, but the view we take of "the case will not require separate discussion of these assignments, and we need not quote them in this opinion. No question is raised as to the validity of the assessment, nor is it contended that it was in fact paid to the proper officer of the appellant society until March 31. All of the assignments of error relate to and bear upon two propositions: 1. Was the assessment paid in time? 2. Was Silas A. Beeman properly and regularly suspended ?

The first assignment of error is : “ The court erred in refusing to direct a verdict for the defendant.” As we understand the law applicable to the facts, this assignment will dispose of the case.

It is conceded that Silas A. Beeman was. a member of the appellant society and that he was bound by its constitution, by-laws, rules and regulations ; that on March 2, 1903, he was duly notified that assessment No. 584 was due and must be paid on or before the last meeting night in March. The amount of the assessment was stated in the notice, and that it was payable to the financial secretary of the order. The notice contained the following: “No second notice will be sent. If not paid when due you will be suspended. Must be paid on or before March 30.” As to notice see Shuman v. Fire Ins. Co., 206 Pa. 417.

Article 10, sec. 333, of the by-laws of the order reads : “ Each member shall pay the amount according to age, as per table, and any member failing to pay same on or before the last meeting night of each month shall stand suspended from the order and all benefits therefrom, and the financial secretary shall notify the worthy master, who shall immediately announce the suspension to the lodge. The financial secretary shall notify the supreme secretary on the monthly remittance notice, giving the member’s name, the date and cause of suspension.” It is further conceded that if the assessment was not in law paid before midnight of March 30, and if the member was legally suspended, then the plaintiff could not recover.

The appellee contends that the money to pay the assessment in question was inclosed in a letter, properly addressed and stamped, and deposited in the post office in Philadelphia on March 30, in time to have reached the financial secretary on that day. But the uncontradicted evidence, corroborated by the date stamped on the envelope, shows that the letter did not reach the financial secretary until the next day. The learned counsel for the appellee then argues that: “ If payment by mail is authorized either expressly, by custom or by the wording of the notice, then mailing the letter containing the money is payment, and the time of payment is the moment the letter is deposited properly addressed in the regular course of transmission.” In support of this proposition he cites a number of authorities which fully support it. Among these authorities are: Bacon on Benefit Societies and Life Insurance, p. 724, sec. 369 ; Primeau v. National Life Assn., 28 N. Y. Supp. 794 ; Calvin v. U. S. Mut. Accident Assn., 21 N. Y. Supp. 734 ; Palmer v. Ins. Co., 84 N. Y. 63. The doctrine of these cases rests on the theory that the money is sent by mail by authority of the creditor. In such, case deposit in the post office, properly addressed and stamped, is at the risk of the creditor, and payment is deemed to have been made at the time of deposit. But the difficulty of the case of the appellee is the lack of evidence showing, or tending to show, that Beeman was authorized either directly or by implication, to mail his assessment to the financial secretary. We fail to find any evidence in the record sufficient to even submit this question to the jury. As to the presumption arising from mailing the letter on March 30, see McSparran v. Ins. Co., 193 Pa. 184, where it is said: “ It is not therefore the sending but the receipt of a letter that will constitute notice, and there is no presumption of law that a letter mailed has been received.” (p. 191.)

The law of the order distinctly required the payment of the assessment on or before March 30, and we are clearly of the opinion that depositing it in the post office on that day was not payment without proof that it actually reached the financial secretary on the same day. The learned counsel further argues that Beeman had until midnight, March 30, to pay his ' assessment, and, therefore, his suspension before that time was void. Let this be conceded and it does not help the appellee. The authorities cited doubtless sustain the proposition that if Beeman had died before midnight of March 30 the lodge would have been liable on his benefit certificate; this because the certificate would not be void until midnight because of the failure to pay the assessment. We think the reasoning of Judge White in Jacob Och v. Homestead Bank and Life Ins. Co., 4 Pitts. Legal Journal (N. S.), 98, and Judge Arnold in Thomson v. Conn. Mut. Life Ins. Co., 4 Pa. Dist. Reps. 382, and the authorities cited by said judges sustain the appellee’s contention that if Beeman had died before midnight of March 30 his benefit certificate would have been in force. But conceding all of this does not sustain the judgment in this case for the plain reasons that Beeman did not die on March 30, nor’ for some time thereafter, and his assessment was not paid before midnight of March 30. The learned court below gave much weight to the fact that Beeman was suspended at the meeting night of March 30 before midnight. But under the facts in this case, we cannot agree with the theory of the court. If Beeman had died before midnight there would be much force in the position taken. If we construe the law to the utmost in favor of the appellee, Beeman was suspended by force of the law of the order, ipso facto, at midnight on March 30, because of the nonpayment of his assessment. Each member shall pay the amount according to age, as per table, and any member failing to pay the same on or before the last meeting night of each month shall stand suspended from the order and all benefits therefrom.” We think it a proper construction of this language, under the law of the order, to say that when the meeting adjourned on the evening of March 30, Bee-man was suspended and not entitled to benefits as a matter of law, without any action on the part of the lodge. It is the member himself, who, by violating the laws of the order, works his own suspension through the nonpayment of his assessment. The words, “ shall stand suspended,” when used in respect to policies of insurance and death benefit certificates, would seem to be equivalent, in their legal effect, to “ cease and determine ” and “ null and void.”

In Lantz v. Insurance Co., 139 Pa. 546, it was held, as fairly stated in the syllabus : A life insurance policy stipulated for the payment of quarterly premiums by the assured, providing that if they should not be paid on the dates named and in the lifetime of the assured, the policy should cease and determine, . . . . the consequence of the default of the assured in not paying said premium at maturity, was, that the policy thereupon ceased to bind the company and protect the assured, without any act or declaration on the part of the former.” In that case Mr. Justice Paxson on page 561 said: “ It declares that, if not paid on the days named and in the lifetime of the insured, the policy should ‘ cease and determine.’ By this I understand that it is suspended ; it ceases to bind the company and to protect the assured, and this without any act or declaration on the part of the former. It does not require a formal forfeiture.” In Duffy v. Alta Friendly Society, 17 Pa. Superior Ct. 531, the language was “ otherwise the certificate should be void,” and in deciding this case we followed the doctrine of Lantz v. Vermont Life Ins. Co., 139 Pa. 546.

In Hansen v. Supreme Lodge, 40 Ill. App. 216, a by-law provided : “ Each member shall pay the amount within thirty days from the date of such notice, failing which he shall stand suspended, and shall not be entitled, etc.” In construing this the court said : “ By force of the law Hansen was, for failure to pay said assessment No. 175, ipso facto, suspended. No act or proceeding of the lodge was necessary to cut him off from any right to the benefit fund.” In Knights of Honor v. Keener, 25 S. W. Repr. 1084, the supreme court of Texas said: “ We are of the opinion that it is immaterial whether there was or was not a suspension affected by the lodge. Keener’s failure to pay his assessment, ipso facto, worked his suspension.”

In the present case there was no appeal by Beeman because of his suspension, nor was there any appeal by his beneficiary, the appellee, from the decision of the supreme lodge in refusing payment of death benefits, notwithstanding that section 165 of the by-laws of the order provides: “ In case any dispute or controversy arises by reason of the admission to membership of any person in the order, or the suspension or expulsion of any member from the order, or the death or the proof of death or the payment of the death benefits of any member, or otherwise however, all rights, remedies and means of redress, now or hereafter allowed or provided by the laws of the order, shall first be exhausted by such member or his family, dependents, beneficiaries, or persons claiming his death benefits, before any proceedings at law or in equity shall be commenced against any subordinate lodge . . . .; and further in case there be a violation of this law, or non-compliance therewith, or a failure within sixty days after such rights, remedies a'nd means of redress are exhausted, to proceed according to law for the adjudication of the matter in dispute or controversy, the decision of the supreme lodge shall be final, binding and conclusive, without right to appeal, any law to the contrary notwithstanding.” Beeman as a member of the lodge was bound to know the law and to comply therewith and his beneficiaiy in maintaining her suit was bound to show a compliance with the provisions of section 165, or that a compliance therewith had been waived or prevented in some way by the lodge. Such by-laws are binding upon the association and its members : Toram v. The Howard Beneficial Ass’n, 4 Pa. 519 ; The Society for the Visitation of the Sick v. The Commonwealth, etc., 52 Pa. 125; Wick v. Fraternities Accident Order, 21 Pa. Superior Ct. 507.

So far as this record shows the appellee resorted to a court of law without making effort to have her alleged grievances righted in accordance with the laws, usages and customs of the order of which her deceased husband had been a member, and for this reason, she did not present a case that entitled her to go to a jury.

We find much in the charge of the learned court below raised by the several assignments of error in conflict with the law as we understand it, applicable to the facts in this case, but feeling compelled to sustain the first assignment of error, the case will thereby be finally disposed of and, therefore, we refrain from commenting upon the other assignments.

The judgment is reversed and judgment directed against the plaintiff.


author: Mobbison, J.,

text:
    Henderson, Appellant, v. Maryland Casualty Company.

      Insurance — Insurance against liability for damages — Employees.
    An insurance company agreed to indemnify the insured for the term of one year “against loss from common law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by any employee or employees of the insured.” The policy further provided that, “No action will lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within sixty days from the date of such judgment and after trial of the issue. . . . This policy shall only cover losses sustained by and liability for any claims against the assured as a result of the risk specified in the contract or contracts hereto attached.” Held, that interest could be collected on the amount of the policy only from the time the insured actually paid a judgment recovered by an employee for personal injuries.
    Argued Oct. 10, 1905.
    Appeal, No. 135, Oct., T., 1905, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1905, No. 4203, for defendant on case stated in suit of Thomas Henderson and William Henderson, trading as Henderson & Brother, v. Maryland Casualty Company of Baltimore.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.

      Case stated to determine liability on a policy of insurance.
    The facts are stated in tbe opinion of the Superior Court.

      Error assigned was in entering judgment for defendant on case stated.

      Alex. Simpson, Jr., with him Francis Skunk Brown, for appellant.
    With us the rule is now firmly settled that a recovery can be had as soon as the liability becomes fixed, whether payment has been made or not: Stroh v. Kimmel, 8 Watts, 157; McAbee v. Cribbs, 194 Pa. 94 ; and the party indemnified may pay a just claim even without suit, and may recover against. his indemnitor: Leber v. Kauffelt, 5 W. & S. 440.
    As the language is the language of the insurer, in cases of doubt the construction must go against it: Pipe Lines v. Ins. Co., 145 Pa. 346.
    The purpose being indemnity, the construction should be such as to advance that purpose : Ins. Co. v. Mund, 102 Pa. 89 ; Kister v. Ins. Co., 128 Pa. 553; Humphreys v. Benefit Ass’n, 139 Pa. 214; Anderson v. Fitzgerald, 4 H. L. Cases, 484.
    Interest follows the debt as a shadow does the substance : Sims v. Willing, 8 S. & R. 103; Troubat v. Hunter, 5 Rawle, 257; Ins. Co. v. Delaunie, 3 Binn. 292; Jones v. Farquhar, 186 Pa. 386.

      Frank Grosnell, with him Maurice W. Sloan, for appellee.—
    There is a clear distinction between a contract against “ liability for damages,” and a contract of indemnity against “ loss from liability for damages.” In the former, an action may be brought, and a recovery had, as soon as the liability is legally imposed; while in the latter, there is no cause of action until there is actual damages by payment of a sum growing out of the liability: Gilbert v. Wiman, 1 N. Y. 550; Frye v. Bath, Gas and Electric Co., 97 Me. 241; 59 L. R. A. 444 (54 Atl. Repr. 395); Moses v. Travellers’ Ins. Co., 63 N. J. Eq. 260 (49 Atl. Repr. 720) ; Stephens v. Pennsylvania Casualty Co., 135 Mich. 189 (97 N. W. Repr. 686) ; Finley v. United States Casualty Co., 83 S. W. Repr. 2; Cushman v. Fuel Co., 122 Iowa, 656 (98 N. W. Repr. 509); Connolly v. Bolster, 72 N. E. Repr. 981; O’Connell v. N. Y., N. H. & H. R. R. Co., 72 N. E. Repr. 979.

      Appellants’ contention, that the appellee is liable for interest from the time it assumed control of the litigation, is unsound, because “ a personal injury never creates a debt, nor becomes one, until it is judicially ascertained and determined, nor 'until that time can it draw interest: ” Emerson v. Schoonmaker, 135 Pa. 437 ; Burrows v. Lownsdale, 133 Fed. Repr. 250.
    November 20, 1905:
   Opinion by

Mobbison, J.,

This was a case stated, in the nature of a special verdict, for the opinion of the court and resulted in a judgment in favor of the defendants, and thereupon the plaintiffs appealed to this court. The assignments of error are as follows:

1. The court below erred in entering judgment for defendants on the case stated. 2. The court below erred in not entering judgment for plaintiffs on the case stated for $590, with interest from March 23,1905. 3. The court below erred in not entering judgment for plaintiffs on the case stated for $260, with interest from March 23, 1905.

The appellant states the questions involved thus : “ Whether under the policy in suit and upon the agreed facts, the defendants are liable to plaintiffs for interest on the amount of insurance: (a) From the time of defendant’s election to defend the suit brought against the insured; or (b) From the time of verdict in that suit; or (o') From the time of actual payment of that verdict by the insured.”

By the policy in suit “ defendants hereby agree to indemnify Henderson and Bro. (plaintiffs) .... for the term of one year .... against loss from common law or statutory liability for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of this policy by any employee or employees of the insured.

“ A. The Company’s liability for an accident resulting in injuries to or in the death of one person is limited to $5,000. . . . . This insurance is subject to the following conditions which are-to be construed as conditions precedent of this contract.

“ 1. The assured, upon the occurrence of an accident, shall give immediate written notice thereof, with the fullest information obtainable at the time, to the home office of the company at Baltimore, Maryland, or to the duly authorized agent. He shall give like notice with full particulars of any claim that may be made on account of such accident, and shall at all times render to the company all co-operation and assistance in his power.

“ 2. If thereafter any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy, the assured shall immediately forward to the home office of the company every summons or other process as soon as the same shall have been served on him, and the company will, at its own cost, defend against such proceeding in the name and on behalf of the assured, or settle the same, unless it shall elect to pay to the assured the indemnity provided for in clause ‘ A ’ of special agreements as limited therein.

“ 3. The assured shall not settle any claim except at his own cost, nor incur any expense, nor interfere in any negotiation for settlement or in any legal proceeding without the consent of the company previously given in writing; but he may provide at the time of the accident such immediate surgical relief as is imperative. The assured when requested by this company shall aid in securing information, evidence and the attendance of witnesses and in effecting settlements and in prosecuting appeals.....

“ 7. No action will lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within sixty days from the date of such judgment and after trial of the issue. . . .

“ This policy shall only cover losses sustained by and liability for any claims against the assured as a result of the risk specified in the contract or contracts hereto attached, and is issued and accepted upon the condition that all the provisions printed on the slip or slips attached to this policy are accepted and shall be fulfilled by the assured as part of this contract as fully as if they were recited at length over the signatures hereto affixed.”

The other facts set out in the case stated may be summarized as follows:

March 23, 1902, the above-stated policy was given by defendants to plaintiffs.

December 20, 1902, an employee was injured. Paragraph •two admits that the accident was within the terms and conditions of the policy.

March 24, 1908, the employee sued, and notice at once was given.

April 4, 1903, defendants by their counsel duly appeared for plaintiffs and thereafter conducted and controlled the litigation to its end.

May 11, 1904, the employee recovered a verdict against the assured for $15,000, upon which judgment was entered.

October 7, 1904, plaintiffs at defendants’ request appealed.

March 6, 1905, the Supreme Court affirmed the judgment.

March 23, 1905, plaintiffs paid the judgment with interest from the date of the verdict and costs and have done everything to entitle them to recover from defendants.

Subsequently defendants paid plaintiffs $5,000, with interest from March 23, 1905, the date of the actual payment by plaintiffs to their employee, and the costs. The payment was made and received without prejudice. The sole question is from what date defendants should have paid interest on the $5,000, whether, (a) from the date plaintiffs herein actually paid the other verdict with interest and costs; or (5) from the date defendants took charge of and conducted this litigation; or (e) from the date of the verdict in that case.

If clause (a) fixes the proper date the judgment herein should be affirmed; but if either clause (5) or clause (c) fixes it, the judgment should be reversed and judgment entered for plaintiffs for either $590 under clause (5) or $260 under clause (c), with interest in either case from March 23, 1905.

Thus far we have quoted the position of the learned counsel for the appellants as stated in their printed argument. This, for two reasons: (1) We think their statement is full and accurate ; and (2) We propose to decide the questions raised from the basis of appellants’ own statements of the questions involved.

The learned counsel for the appellants in his printed argument says: “It was argued at great length in the court below that a legal distinction exists between an indemnity against liability for damages and an indemnity against loss arising from a liability for damages ; in the first case the indemnitor become ing immediately chargeable on the happening of the injury, and in the latter not until actual payment, because not until then is there a loss; and it was said that this policy falls into the latter class. It may be assumed that the weight of authority elsewhere is that there is such a distinction, though the only time it was attempted to be made in this state it was not found necessary to consider the question: Fritchie v. Extract Co., 197 Pa. 401.” An examination of the case cited makes it plain why our present question was not considered. The insurance was against all liability for damages, and the policy provided that the assured might bring an action against the insurance company within thirty days after judgment is rendered in favor of an injured employee. Therefore, that case throws no light on our question.

The able counsel for the appellant in conceding the weight of authority in other states to be in favor of the contention of the appellee that interest did not begin to accrue on the $5,000 until March 28, 1905, when appellants paid the judgment in favor of their employee, assumes the burden of satisfying us that the rule in this state is not in accordance with the general doctrine- in other states. Failing in this, then, we must be satisfied that the provisions in the policy take it out of the general rule, and the latter is really the contention of the counsel. The general rule in other states is that upon agreement to indemnify against loss arising from liability for damages, no recovery can be had without proof pf payment: 16 Am. & Eng. Ency. of Law (2d ed.), 178. The counsel contends that the rule is now firmly settled, in this state, that a recovery can be had as soon as the liability becomes fixed, whether payment has been made or not, citing: Stroh v. Kimmel, 8 Watts, 157; McAbee v. Cribbs, 194 Pa. 94, and Leber v. Kauffelt, 5 W. & S. 440. But an examination of these cases does not convince us of an established rule in this state on our question. Stroh v. Kimmel decides that where a promise of general indemnity is broken, by the recovery of a judgment against the person to whom the promise is made, he may maintain an action upon it, without proof of payment of the judgment. But the present case is not general but special indemnity and, therefore, that case is not in point. McAbee v. Cribbs decides: “ As a contract of indeniiiity it was broken as soon as the plaintiff’s liability became fixed, and he could then maintain an action upon it without proof of payment. That on a bond or covenant to indemnify against claims, the obligee is entitled to sue as soon as his obligation to pay becomes absolute, has been settled by a long line of cases.” Then follows citation of cases. That is a decision on indemnity against claims, and of course when such claim is put in judgment, the liability is fixed. In Leber v. Kauffelt, the decision was upon a bond of indemnity to “ save, keep harmless and indemnify the said Nicholas Leber of and from all claims,” etc. We conclude that those cases do not establish the contention that indemnity against loss arising from liability for damages is fixed by the recovery of a judgment against the indemnitor.

In our opinion, proper construction of the clause of the policy where defendants “ hereby agree to indemnify Henderson and Bro.....for the term of one year .... against loss from common law or statutory liability for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of this policy by employee or employees of the insured,” together with section 7 before quoted and the final paragraph of the policy, also quoted, only fixes the appellees for the payment of interest from the time the appellants paid the judgment to their employee, and this is what the court below decided.

It may be conceded that the final paragraph of the policy, standing alone, gives much ground for the constrnction put upon it by counsel for appellants. But construing it in connection with the sections above quoted, we are unable to agree that interest should be charged from either of the dates con-. tended for by appellants.

Having reached the conclusion that we have no rule of law on this question in conflict with the weight of authorities in sister states, we might stop here and affirm the judgment, because the learned counsel, in effect, concedes that if the case falls within the class claimed by appellees, then the judgment may be, under the general trend of decisions elsewhere, affirmed. But it is vigorously contended that the final paragraph of the policy takes this case out of the general rule.

In Gilbert v. Wiman, 1 N. Y. 550, it is said: “ But where the obligation is that the party indemnified shall not sustain damage or molestation by reason of the acts or omissions of another, or by reason of any liability incurred through such acts or omissions, there is no breach until actual damage is sustained.

“ And in such case a judgment recovered against the party indemnified, on account of the acts or neglect of another for which he is answerable, without payment of the judgment, or some part thereof, does not entitle him to sustain an action against the indemnitors.”

In Fry, Admr., v. Bath Gas & Electric Co., 97 Me. 241; s. c. 59 L. R. A. 444, (54 Atl. Repr. 395) the policy of insurance was identical in terms with the one under consideration, except there was no limit as to the time in which the assured should satisfy the judgment, and it was held: “ It was to reimburse, or make whole, the assured against loss on account of such 'liability. There can be no reimbursement when there has been no loss. The contract of insurance contains nothing to show that it was the object or intention of the contracting parties that the insurer should guarantee the gas company’s liability for negligence to its employees. It was not a contract of insurance against liability, but of indemnity against loss by reason of liability.” That case cites numerous authorities fully sustaining the position of the learned chief justice.

In Moses v. Travelers Ins. Co., 63 N. J. Eq. 260; (49 Atlantic Reporter, 720), the policy contained similar language to the one under consideration, and it was there held that not the amount of the employee’s judgment, but the amount paid by the employer thereon, was the sum for which the insurer was responsible. See also Finley v. United States Casualty Co., 83 S. W. Repr. 2; Cushman v. Fuel Co., 122 Iowa, 656 (98 N. W. Repr. 509); Connolly v. Bolster, 72 N. E. Repr. 981 (Mass); also Monroe v. Maryland Casualty Co., N. Y. 1905 not yet officially reported, where the policy was like the one in the present case and the question now before us was considered and determined against the plaintiff.

An able argument is made that the defendant may be liable for interest even though the action could not be brought until after the payment of the judgment by the insured. But in the light of the contract between the parties, especially section 7 of the policy, we are unable to agree with this contention. It provides that “ no action will lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment,” etc.

By the plain terms of the policy the appellees had the right to contest the suit against the insured, by their employee, until final judgment in the Supreme Court, and their liability being “ for loss actually sustained and paid by him in satisfaction of a judgment,” and there being no stipulation or implication arising from the language of the policy that the appellees should be liable for interest prior to the payment of the judgment, we are not convinced of the soundness of the appellant’s contention. We think all of the authorities cited by appellant’s counsel are distinguishable from the present case, on account of the terms of the contract.

' If we are correct in holding that the defendant was only liable for the loss actually paid by the plaintiffs, it follows that interest could not be charged prior to such payment.

■ The assignments of error are dismissed and the judgment is affirmed. >