author: Rice, P. J.,

text:
    Fry, Appellant v. Keiter.

      Appeals—Quashing appeals—Beport of borough auditors—Exceptions —Act of May 11, 1901, P. L. 185.

    On an appeal from a judgment of the court of common pleas upon an appeal from a report of borough auditors, the appellate court can only take into consideration some fatal defect or irregularity in the proceedings apparent on the face of the record proper, or some “ruling or decision” of the court below upon some “question or point of law” which was duly excepted to. Where in such a case the assignments of error all go to conclusions of fact or of law based on the evidence, and are not supported by any general or specific exceptions whatever, the appeal will be quashed.
    Argued Nov. 23, 1910.
    Appeal, No. 217, Oct. T., 1910, by plaintiffs, from order of C. P. Chester Co., Aug. T., 1909, No. 32, sustaining exceptions to report of borough directors in case of J. Harry Fry et al. v. Hosea B. Keiter.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Appeal quashed.

      Exceptions to report of A. T. Parke, Esq., auditor. Before Hemphill, P. J.

      Errors assigned were in sustaining various exceptions to the report of the auditor.

      J. Frank E. Hause, for appellants.

      Harry I. Hiestand, with him Joseph H, Baldwin, and Walter S. Talbot, for appellee.
    March 3, 1911:
   Opinion by

Rice, P. J.,

This case had its origin in the audit, by the borough auditors, of the accounts of the appellee as borough treasurer. From this report three taxpayers appealed to the common pleas, and, in support of their appeal, specified error in the allowance of a credit of $525, which it is conceded was paid by the treasurer on three warrants, regular on their face, which were drawn, by order of council, in favor of the Methodist Church, Esther Kugler and William Winner, in consideration of releases of damages to their respective properties, occasioned by the opening of certain streets. The court appointed an auditor “to report on the matters and things referred to in said appeal,” who, upon consideration of the evidence adduced before him, filed a report restating the treasurer’s account, surcharging him with the credit item above referred to, and directing him to pay the costs. Exceptions were filed to the report by the appellee, and, after argument, the court, in an opinion filed, reinstated the credit which had been approved by the borough auditors and imposed the costs on the appellants. From that order they took this appeal.

One of the reasons assigned by the appellee, in support of his motion to quash the appeal, is that the appellants’ paper-book does not contain any of the evidence taken before the auditor appointed by the court. Appellants’ counsel urges “that the action of the council in thus opening the streets and directing payment of damages without any attempt to reimburse the treasury by assessments for contributions was' illegal; that the treasurer had full knowledge and cannot therefore screen himself behind properly drawn and signed orders.” On the other hand, counsel for appellee assert that the evidence taken before the auditor appointed by the court “does not show that the treasurer knew the consideration for warrants paid by him to have been illegal. On the contrary, the evidence shows affirmatively that so far as he knéw all payments made by him were for legal purposes.” It is thus seen that if the case were before us for review on the merits there would be much force in the appellee’s contention that the evidence ought to have been printed. But the case is not before us for review on the merits. Prior to the Act of May 11, 1901, P. L. 185, which, except as to county officers, was re-enacted in sec. 4 of the Act of May 3, 1909, P. L. 392, no appeal lay to the Supreme Court or the Superior Court from the judgment of the common pleas on an appeal from township or borough auditors: Gangewere’s App., 61 Pa. 342; Spring Brook v. Thomas, 8 Luz. Leg. Reg. 112; Mohney v. Redbank Twp. School Dist., 2 Mona. 345; s. c., 15 Atl. Rep. 891; Thomas v. Upper Merion Twp., 148 Pa. 116. In Dunmore Borough School Dist. v. Wahlers, 28 Pa. Superior Ct. 35, we had occasion to determine in what particular and to what extent the law was changed by the act of 1901. We there held that on an appeal from a judgment of the court of common pleas, upon an appeal from a report of borough auditors, the appellate court can only take into consideration some fatal defect or irregularity in the proceedings apparent on the face of the record proper, or some "ruling or decision” of the court below upon some "question or point of law” which was duly excepted to. We also held that in such a case a general exception to the judgment is not sufficient to entitle the appellant to a review of the entire case upon the merits, or to a review of the judge’s findings of fact and. his conclusions of law based thereon which were not specifically excepted to. These conclusions were in accordance with the construction which was placed on the provisions of the Act of March 16/ 1868, P. L. 46, relating to appeals in pauper cases. That subject was fully considered in Lower Augusta v. Selinsgrove, 64 Pa. 166, and the principles there enunciated have been followed ever since. They are applicable here. None of the assignments of error raises any question as to the regularity of the proceedings. They all go to conclusions of fact or of law based on the evidence, and are not supported by any general or specific exception whatever. It follows that the case is in the same .condition as it would have been if the act of 1901 or 1909 had not been passed. No reversible error appearing in the record properly before us for review, the appeal will be quashed..

The appeal is quashed at the costs of the appellants.


source: Caselaw Access Project

author: Fanning, P. J., Morrison, J.,

license: Public Domain

text:
    Moore v. Farmers’ Mutual Fire Insurance Company, Appellant.

      Insurance—Fire insurance—Void policy—Other insurance—Settlement of claim.

    1. Where a person procures policies of fire insurance in two different companies and both policies contain provisions to the effect that other insurance will render the policy void, the first policy is valid and the second void; and a compromise of the second policy, although it is void, will not defeat the rights of the insured to recover on the first policy.
    2. A person took out a policy of fire insurance which provided that “all policies in this company shall be null and void whenever buildings or their contents are insured in other companies.” He thereafter took from a second company a policy which provided that “the entire policy, unless otherwise provided by agreement indorsed hereon or added thereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not, on property covered in whole or in part by this policy.” No reference was made in the second policy to the prior insurance. After the property insured was destroyed by fire, the insured compromised and settled with the second company, and received a payment from it on account of his loss. Held, (1) that the first policy was not rendered void by the taking out of the second policy; and (2) that the settlement with the second company did not render the first policy void.
    Argued Nov. 25, 1910.
    Appeal, No. 229, Oct. T., 1910, by defendant, from judgment of C. P. Bradford Co., Sept. Term, 1909, No. 320, on case tried by the court without a jury in case of L. L. Moore v. Farmers’ Mutual Fire Insurance Company of Tuscarora.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit upon a policy of fire insurance.
   Fanning, P. J.,

filed the following opinion:

This case came on for trial December, 1909. At the conclusion of the testimony, it being conceded that legal questions only were involved, an agreement was made that a juror be withdrawn, the case continued and submitted to the court for disposition.

FACTS FOUND

1. L. L. Moore was the owner of a farm in Rome township purchased of John E. Gillett. He effected an insurance, policy No. 2927, March 14, 1908, of $800 upon his barn there situate and $500 upon grain, stock and farming tools in the Farmers’ Mutual Fire Insurance Company of Tuscarora, a domestic corporation.

2. Said barn and contents were totally destroyed by fire November 9, 1908, of which due and timely proof was given to the defendant company.

3. November 23, 1908, the value of the barn was fixed by the appraisers at $1,200, and the personalty at $653.35, or a total of $1,853.35, and two-thirds of said amount, which was the extent of the liability of the company under the policy, was fixed and agreed upon at $1,235.57, to which by the terms of the policy and adjustment made pursuant thereto plaintiff was entitled.

4. At the time proofs of loss were prepared in accord^anee with the adjustment, L. L. Moore made oath to a statement that he had no other insurance on the property burned.

5. Three days prior to that adjustment, to wit, November 20,1910, plaintiff made proof of loss to the Liverpool & London Globe Insurance Company, which said company had written a policy on the same property about thirty days after the issuance of the policy in the Farmers’ Mutual Fire Insurance Company Of Tuscarora, the same bearing date April 13, 1908. These proofs of loss also contained a statement under oath that L. L. Moore had no other insurance upon the property burned. The loss was also adjusted by the said Liverpool & London & Globe Insurance Company and an agreement made to pay, less 1 per cent discount, $1,154.18.

6. Neither company had knowledge at the time of the adjustment of the loss that plaintiff carried insurance in the other, but an affidavit was made as stated to each company that there was no other insurance on the property.

7. The history of the case so far as relates to the Liverpool & London & Globe Insurance Company is in brief as follows, that L. L. Moore when he purchased his farm upon which said barn was located, took out a policy of insurance in said company payable to JohnE. Gillett in case of fire as his interest might appear to secure balance of purchase money. This policy expired March 12, 1908. Two days later plaintiff took out his policy in the defendant company, although application had been made therefor about the first of the same month. A contract of insurance could not be made by the defendant company according to the by-laws on property insured in another company.

8. April 13, as stated, a policy was issued to him on the same property by the Liverpool & London & Globe Insurance Company. This was doubtless procured for the benefit of the judgment creditor, Mr. Gillett, as the defendant company has no provision authorizing payment to a creditor of the assured. The said company without knowledge of any other insurance adjusted the loss and paid to John E. Gillett, the judgment creditor, the sum of $1,154.16. Upon receipt of information that the plaintiff was insured or had a policy in the defendant company, the Liverpool & London & Globe Insurance Company 'demanded repayment of said sum which was refused by said Gillett and the matter was finally adjusted by said Moore paying or refunding to said company the sum of $520.18. The amount retained being $634.

9. The total value of plaintiff’s property destroyed was estimated at $1,853.35. The defendant company adjusted the loss at two-thirds of its value or $1,235.57, and the Liverpool & London & Globe Insurance Company at $1,154.18 or a total of $2,389.75 or $536.45 more than the property was worth in case of payment of both companies.

10. A clause in the Liverpool & London & Globe Insurance Company policy reads as follows: "The .entire policy, unless otherwise provided by agreement indorsed hereon or added thereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not, on property covered in whole or in part by this policy.”

11. Article 8 of the by-laws of the Farmers’ Mutual Fire Insurance Company of Tuscarora provides, “All policies in this company shall be null and void whenever buildings or their contents are insured in other companies.” The defendant company is composed wholly of farmers and declines to assume the risk of property upon which there is other insurance.

DISCUSSION

That the contract of insurance with the Farmers’ Mutual Fire Insurance Company was valid when written and up to the time of taking out a policy in the Liverpool & London & Globe Insurance Company is not questioned.

If the policy in the last-named company was valid, the defendant is relieved from all liability because it was provided and made one of the conditions of the contract with the former, and subject to which it was accepted that insurance in any other companies would render the policy null and void. Whether the plaintiff had insurance in-the Liverpool & London & Globe Insurance Company becomes a question important for consideration.

Cases have frequently arisen where the insured procured policies in two companies, both containing provisions to the effect that other insurance must be noted on the policy or the same would be void.

Although not in entire harmony, the rule deducible from the authorities where conditions as in this case have not been complied with, appears to be that the first policy is valid and the second void.

In order to relieve the first company from liability the second contract must be one that is valid and enforcible.

Flanders on Fire Insurance, 57, sec. 9, states the rule as follows: “It is well settled that, if the second policy against which the contract stipulates is itself a void one, or one that cannot be enforced, it does not void the first, notwithstanding the clause of forfeiture.”

The following is from 2 Wood on Fire Insurance (2d ed.), sec. 372, “A condition that if other insurance shall be obtained without the consent of the company, the policies shall be void, only related to other valid insurance, and the policy is not voided by the procurement of other policies, that, for any cause, are invalid, but the entire invalidity of such other insurance must be established. The other policy or policies must at the time of the loss have been inoperative, so that no action could be maintained to enforce them. It is not necessary that they should have been absolutely void. It is sufficient if they were voidable. 'There is an intrinsic absurdity,’ says Bell, J., 'in holding that to be an insurance by which another is bound to make good another’s loss, only in case he pleases to do it. ’ ”

That the principle above stated is recognized as law' in Pennsylvania appears from the case of Stacey v. Franklin Fire Insurance Co., 2 W. & S. 506, decided in 1841, where it was said by Rogers, J. (544), “If the plaintiffs have failed to perfect their contract with a subsequent underwriter, by omitting to have the prior insurance allowed of and specified as is required, it is difficult to imagine in what way thé prior insurance can be invalidated or affected. It is a vain, nugatory and void act. . . . The assurance to avoid the policy must be a valid and legal policy and effectual and binding upon the assurers.”

The same principle is recognized in Mitchell v. Ins. Co., 51 Pa. 402, and decisions of other states.

It is contended on the part of defendant, that the mere act of taking a policy in the Liverpool & London & Globe Insurance Company voided the contract with the Farmers' Mutual Fire Insurance Company; that immediately this was done it became lifeless and of no effect. To have this effect the second contract of insurance must have been valid and enforcible. Some contracts provide in effect that the taking out of a policy of insurance in another company, even though invalid, relieves the company from liability. This is not one of the conditions of defendant company’s policy.

The difference between a policy and a valid, effectual contract of insurance is tersely stated by Scudder, J., in Jersey City Ins. Co. v. Nichol, 35 N. J. Eq. 291, as follows: 'We are also justified in holding that the word 'insurance' used in'the first policy, is not equivalent to the word 'policy,’ and that the subsequent policy obtained, being no insurance, creates no forfeiture. There can be no other reasonable conclusion; for a contract of insurance is a contract of indemnity, and if there be no indemnity by its terms, and the contract is void, then there is no insurance, though there may be a policy of insurance in form. The call for an insurance, in fact, is not met by the formal execution of a contract for insurance which is defeated as soon as it is made, by one or more of the provisions or conditions contained in it.”

In the case of Marshall v. Ins. Co., 28 W. N. C. 283, cited by defendant the first policy contained a provision that it should be “sunk” if other insurance was obtained on the property. Other policies were taken out some of which contained no clause against additional insurance. The same being valid worked a forfeiture of the first policy.

As before stated the Liverpool & London & Globe Insurance Company contained the provision “The entire policy, unless otherwise provided by agreement indorsed hereon or added thereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not, on property covered in whole or in part by this policy.” Giving this language its ordinary effect, this company was not liable because of the omission to make the proper indorsement upon or in addition to the policy.

We are forced to the conclusion that when Moore took out this policy he did not obtain any other insurance for the reason that the policy so issued was void from the beginning and imposed no liability which could be enforced against the company.

If this conclusion is correct the plaintiff is entitled to recover from the Farmers’ Mutual Fire Insurance Company unless precluded by some other reason. Had the Liverpool & London & Globe Insurance Company waived compliance with the provisions of its policy then a contract of insurance would have been in force and the defendant company relieved from liability. It cannot be successfully urged that there was a waiver prior to the fire because the company under the undisputed evidence had no knowledge of any prior insurance whether valid or not until after the adjustment and payment of the loss. This company was in no way liable to Moore.

From the testimony the conduct of Moore is difficult to understand. The fact, however, that after being apprised of the situation the Liverpool & London & Globe Insurance Company demanded the return of the amount paid under a supposed liability and compromised with the plaintiff, Moore, instead of resorting to legal proceedings in no way affected the liability of the defendant company.

Thus in Firman’s Insurance Company v. Holt, 35 Ohio St. 189, it was held, “Compromise, settlement and payment on a subsequent void policy, is not a matter of defense to an action on a prior policy. A policy procured by assured which is invalid by reason of breach of some condition contained therein is not other insurance. Nor does the fact that the other company compromised with and paid the assured, avail the defendant in a suit upon the prior policy wherein such defense is set up:” Clement’s Insurance Digest, 202, secs. 78, 79, etc.; 7 Am. & Eng. Ency. of Law, 1013; Hardy v. Ins. Co., 86 Mass. 217.

If correct in our conclusion that the second policy was invalid, that it was not a subsisting enforcible contract, then the statement made and sworn to by plaintiff in making out proofs of loss against the defendant company, to the effect that he had no other insurance, was in a legal sense true. Whatever the effect of his statement and liability incurred, civil or criminal, in making proof of loss to the London & Liverpool & Globe Insurance Company in no Way relieved the defendant company.

In the case of Jersey City Ins. Co. v. Nichol, 35 N. J. Eq. 291, where two policies were issued on the same property each containing a provision that if the assured shall have, or shall thereafter make, any other insurance on the property, without the consent of the company written thereon, then the policy shall be void, it was held that although there was a second policy, there was no fraud in the statement in proof of loss, that there was no other insurance, if the second policy was never effected. The same general principle is recognized in Woodard v. Pittsburg Underwriters, 40 Pa. Superior Ct. 143.

There is no provision invalidating defendant’s contract in case the assured takes out a policy in another company which may be invalid as provided by some companies, nor is there in the policy any allusions to misrepresentation by the assured after the loss touching the subject-matter of insurance.

Error assigned was the judgment of the court in favor of the plaintiff.

D. C. DeWitt, with him William Maxwell, for appellant,

cited: Mitchell v. Ins. Co., 51 Pa. 402; Lancaster Silver Plate Co. v. Fire Ins. Co., 170 Pa. 151; Suggs v; Ins. Co., 9 Ins. L. J. 657; David v. Ins. Co., 13 Iowa, 69. Bahner v. Ins. Co., 127 Pa. 464.

J. B. Lilley, of Lilley & Wilson, for appellee,

cited: Stacey v. Fire Ins. Co., 2 W. & S. 506; Mitchell v. Lycoming Mut. Ins. Co., 51 Pa. 402; Knapp v. North Wales Live Stock Ins. Co., 11 Montgomery County Reps. 119; Jackson v. Ins. Co., 40 Mass. 418; Clark v. Ins. Co. 60 Mass. 342; Sweeting v. Ins. Co., 32 L. R. A. 570; Thomas v. Ins. Co., 119 Mass. 121; Firman’s Ins. Co. v. Holt, 53 Ohio St. 189; Hardy v. Ins. Co., 86 Mass. 217.

March 3, 1911:

Under the facts disclosed we are of the opinion that plaintiff is entitled to recover.

And now, September 12, 1910, judgment is directed to be entered in favor of the plaintiff and against the defendant company for $1,357.06, and costs.

Opinion by

Morrison, J.,

This is an action of assumpsit brought on a policy of insurance issued by appellant, to recover loss sustained by the destruction of the insured property by fire. After the case was at issue, the parties, by writing filed, waived a jury trial and submitted the case to the court below, who found the facts and filed an opinion directing judgment to be entered in favor of the appellee and against the appellant for $1,357.06.

A careful examination of the pleadings, testimony, findings of fact, opinion and judgment of the court, and the assignments of error and the arguments of the learned counsel, lead us to the conclusion that the judgment is correct. Upon the findings of fact, which are not excepted to, and the opinion of the court and the authorities therein cited, we think the judgment fully vindicated and we cannot profitably add anything to what has been so well said by the court below.

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


author: Orlad y, J.,

text:
    Essington Enamel Company v. Granite State Fire Insurance Company, Appellant.

      Insurance—Fire insurance—Agents—Scope of authority—Secret limitations—Custom—Notice.

    1. In an action upon a policy of insurance, private instructions and secret rules that are known only to the company and its agent cannot be invoked to defeat the very contract it ostensibly holds the agent out with apparent power to make, the liability of the principal being coextensive with the agent’s ostensible authority; and where a company has certified an agent to the state insurance department as a general agent with state-wide authority, a policy holder should be given notice of any limitation upon that apparent authority by appropriate words written in the policy.
    2. When there is nothing in the record to indicate that insurance was effected in any other method than that in which such contracts are ordinarily made, or that the agent acted in excess or violation of his general authority, evidence to establish a custom among agents of writing fire insurance only in the neighborhood of their residence so as to bind the plaintiff must establish clearly and convincingly such a usage as can fairly be presumed to have entered into the intention of the parties, the true test being that it has existed a .sufficient length of time not only to have become generally known to the persons who are to be affected by it, but also to warrant the presumption that contracts were made in reference to such usage or custom.
    3. In an action against a foreign insurance company to recover on a policy of fire insurance where it appears that the plaintiff company sought insurance upon the stock and machinery in its plant located in Delaware county, this state, through a firm of insurance brokers in New York city, that the brokers wired a well-known agent in Warren, Pennsylvania, to bind the risk and received a wire reply accepting the amount asked for, that the agent transmitted to the brokers and the brokers transmitted to the plaintiff certain policies, including the one in suit, covering the insurance, that the representative of the plaintiff company in the transaction did not know, at the time the insurance was placed, the names of the companies in which it would be placed and did not know the agent at Warren, that the defendant company supplied blank policies signed by their president and secretary to the agent and that he was their legally authorized agent at Warren, and there is no evidence that the insurance was effected in any other method than the ordinary, or that there was any deceit or bad faith practiced by the plaintiff or its broker, or that the agent acted in excess or in violation of his authority except only that the written request of the insurance company to the insurance commissioner for the appointment of the agent at Warren among others as their agent for the transaction of business in this state contained the words “in accordance with the powers and instructions given to them by this company,” and the private commission of the insurance company to the agent limited his agency to Warren, Warren county, and vicinity, the question of liability on the policy is properly left with the jury and a verdict for plaintiff will be sustained.

      Insurance—Fire insurance—Payment of premiums—Credit—Presumption of payment.

    4. When the usual course of dealing between an insurance company and its agent is for the company to treat the agent as its debtor for the premiums on policies written by him, payment of the premium by the insured to the agent is payment to the company; and when a policy is delivered by a general agent to the broker of the insured and by the broker to the insured without exacting the payment of the premium, the presumption is raised that a credit is extended and this is a waiver of a condition of prepayment. Delivery of a policy properly countersigned by the agent estops the company from saying that the premium was not paid.
    Argued Nov. 25, 1910.
    Appeal, No. 236, Oct. T., 1910, by defendant, from judgment of C. P. Delaware Co., March T., 1909, No. 382, on verdict for plaintiff in case of Essington Enamel Company, Inc., v. The Granite State Fire Insurance Company, of Portsmouth, N. H.
    Before Rice, P. J., Henderson, Morrison, Orladt, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Broom-all, J.

      In addition to the facts stated in the opinion of the Superior Court it appears that the certificate of authority from the defendant company to their agent at Warren read in part as follows:
    “Be it known, That W. F. Henry, of Warren, in the ■County of Warren and State of Pennsylvania, is appointed, and by these presents duly constituted agent of the Granite State Fire Insurance Company of Portsmouth, New Hampshire, with full power to receive proposals for insurance against loss or damage by fire in Warren, Warren County, Pennsylvania, and vicinity, to receive moneys, and to countersign, renew and consent to the transfer of policies of insurance, signed by the President and attested by the Secretary of the said Granite State Fire Insurance Company, subject to the rules and regulations of said company, and to such further instructions as may from time to time be given by its officers.”
    The defendant at the trial offered certain points, the sixth of which with the court’s answer thereto, was as follows:
    If the jury find that Henry was only a local agent of the defendant company and that the territory within which he was authorized to represent said defendant was limited to Warren county and its vicinity, such authority did not vest him with powers of a general agent or authorize him to transact business for defendant company outside of the territorial limits designated. Answer: That is true if he was appointed agent as between him and the company only for a territory which did not include Delaware county. His authority, then, so far as the paper here has bearing upon that question, limits him to the district of his appointment. But, as I have said before, if he acted within the scope of his authority and there was no custom which prevented, then so far as this plaintiff is concerned, this contract became a binding contract.
    Verdict and judgment for plaintiff for $803.39. Defendant appealed.

      Errors assigned were (-1, 2) in discharging rule for judgment for defendant n. o. v.; (3, 4) in refusing binding instructions for defendant; (6) in qualifying defendant’s sixth point, as above; (7) in admitting certificate of the insurance department.

      Arthur S. Arnold, with him O. B. Dickinson, Thomas 0. Pierce, and Frank R. Shattuck, for appellant.
    The local agent was without authority to bind the insurance company: Quinlan v. Ins. Co., 133 N. Y. 356; Gibson Co. v. Carlisle, 3 Ohio Decisions, 27; American Car & Foundry Co. v. Water Co., 221 Pa. 529; Interstate Securities Co. v. Natl. Bank, 35 Pa. Superior Ct. 277; Insurance Co. of No. America v. Thornton, 130 Ala. 222 (30 So. Repr. 614).
    The presence of benzine avoided the policy, whether the benzine caused the loss or not: Heron v. Ins. Co., 180 Pa. 257; Whitmarsh v. Ins. Co., 84 Mass. 581.
    Failure to pay the premium rendered the contract a nudum pactum: Gosch v. Ins. Co., 33 Pa. Superior Ct. 496.
    The overvaluation in this case was so grossly excessive that the court should have set aside the verdict: Furlong v. Ins. Co., 64 Hun, 632 (18 N. Y. Supp. 844); Sternfeld v. Ins. Co., 50 Hun, 262 (2 N. Y. Supp. 766).

      William I. Schaffer, with him W. U. Hensel, for appellee.
    —A practice among agents, as distinguished from a custom among insurance companies, cannot affect a policy. The usages of a particular trade or a particular place or of a particular individual, must be known to both parties to a contract; and must be certain, uniform and general: Chicago & Alton R. R. Co. v. Harrington, 192 Ill. 9 (61 N. E. Repr: 622); Adams v. Pittsburg Ins. Co., 76 Pa. 411.
    An insurance company is bound by the acts of a general agent in the absence of knowledge by the insured of limitations of his authority: Continental Ins. Co. v. Ruckman, 127 Ill. 364 (20 N. E. Repr. 77); German Fire Ins. Co. v. Columbia Tile Co., 15 Ind. App. 623 (43 N. E. Repr. 41); American Employers’ Liability Ins. Co. v. Barr, 68 Fed. Repr. 873.
    Where an agent is authorized to take a risk in one place, it is presumed that he has authority to take them anywhere, and a risk taken by him outside of his real jurisdiction will be binding upon the company: Hahn v. Guardian Assur. Co., 23 Oregon, 576 (37 Am. St. Rep. 709); Walker v. Lion Fire Ins. Co., 175 Pa. 345.
    As to the alleged presence of benzine the case is ruled by Lancaster Silver Plate Co. v. National Fire Ins. Co., 170 Pa. 151, and Citizens’ Ins. Co. v. McLaughlin, 53 Pa. 485.
    Payment for the premium was not a condition precedent to the validity of the contract and the countersigning agent may extend credit to the insured or not as he chooses: Lebanon Mutual Ins. Co. v. Hoover, 113 Pa. 591; Healy v. Ins. Co., 50 N. Y. App. Div. 327 (63 N. Y. Supp. 1055); Weisman v. Commercial Fire Ins. Co., 3 Penn. (Del.) 224 (50 Atl. Repr. 93); Elkins v. Susquehanna Mut. Fire Ins. Co., 113 Pa. 386; Arthurholt v. Susquehanna Mutual Fire Ins. Co., 159 Pa. 1; Universal Fire Ins. Co. v. Block, 109 Pa. 535; Snyder v. Life Ins. Co., 202 Pa. 161; Gosch v. Ins. Co., 33 Pa. Superior Ct. 496.
    A mere discrepancy in valuation will not in itself constitute sufficient evidence to establish fraud: Insurance Co. of No. America v. Melvin, 1 Walker (Pa.), 362; Huchberger v. Ins. Co., 12 Fed. Cas. No. 6821; Commercial Ins. Co. v. Friedlander, 156 Ill. 595 (41 N. E. Repr. 183).
    March 3, 1911:
   Opinion by

Orlad y, J.,

The plaintiff was engaged, at North Essington, Delaware county, Pennsylvania, in the business of enameling leather for its own use, and for trade purposes. It applied for insurance on its stock, machinery and byproducts, to Clarke & Cortis, insurance agents and brokers of New York city, and employed them as its brokers to place $17,000 of insurance on the named property. These brokers made a specialty of lumber and tannery insuranee; and after placing $á,000 of the amount in New York city, on May 13, 1908, wired to William T. Henry (who was a well-known insurance agent and broker at Warren, Penna.) to bind $10,000 on the machinery and stock of the plaintiff company at Essington, Delaware county, in this state, and the same day received a wire reply binding the risk, and asking for a diagram and amount of other insurance. After some correspondence between these parties, the amount was increased to $13,000 and Henry sent to Clarke & Cortis the policy in suit, which policy, with others, Clarke & Cortis transmitted, on May 27, 1908, to the plaintiff at Essington. On June 9, following, the plant was entirely destroyed by fire, and so far as the defendant’s rights are concerned, it was a total loss.

It clearly appears that when Mr. Adams, who represented the plaintiff, solicited the insurance through Clarke & Cortis, he did not know the names of the companies in which it would be placed; he did not know Henry, the defendant’s agent at Warren, nor did he know of any custom, trade relation or business understanding between insurance agents or brokers in regard to the time when premiums were to be paid; he only knew that Clarke & Cortis, his brokers, extended to him a credit of thirty days, within which he was to pay his premiums to them, and it as clearly appears, that between Clarke & Cortis and Henry there was a business understanding and agreement, that had been in force for quite a while previous to issuing this policy, by which Clarke & Cortis had a credit of sixty days in their settlements with him. The defendant company supplied blank policies to Henry, which were signed by the president and secretary of the company, on which, immediately preceding their signatures, was the printed statement, “This policy shall not be valid until countersigned by the duly authorized agent of the company at Warren, Penna.” The concluding statement on the policy as delivered to the plaintiff being, “Countersigned- by W. F. Henry, Agent.” It is admitted that W. F. Henry was the legally authorized agent of the defendant at Warren, Penna., to solicit insurance, transact business, deliver policies and collect premiums. The policy is dated May 14, 1908, for $1,000, the term mentioned being for one year from May 13, 1908.

It is urged that the authority of Henry was limited to Warren and vicinity, but there is nothing in the request of the defendant to the insurance commissioner, by which Henry had been appointed its agent for the transaction of business in this state, to qualify or limit his authority as to the amount, locality or character of risk, save in the words, “in accordance with the powers and instructions given to them (him) by this company.”

This request to the insurance commissioner embraced a list of seventy-four other persons, as agents of the defendant in this state, who were indicated by name and the place of their residences, but none of whom resided in Delaware county. In some counties there is named one person, in others two, three, four, five and seven. If Henry had been known to be a local agent, with authority limited to Warren and vicinity, it is strange that so effective a defense would not have been urged by direct proof rather than by inference and construction of an alleged custom. But there is nothing to indicate that he was a local agent with limited authority. . He was certified by the defendant (and so far as the plaintiff could have knowledge on that subject), as a general agent with statewide authority. By the company’s certificate he was appointed its agent, “for the Commonwealth of Pennsylvania,” which was ratified by the insurance commissioner, who designated Henry “as an agent to solicit risks in this state.” Had the company intended tó inform a policy holder of a limitation of that apparent authority, it could and should have done so by appropriate words in the policy. The private instructions and secret rules that are known only by the company and its agent cannot be invoked to defeat the very contract it ostensibly holds the agent out with apparent power to make. Such rules may be effective in their personal transactions, but should not be extended to third parties who would not be informed of them, even if inquiry had been made. It is true that in the circular issued by the insurance department the word "agents ” is used and not "agent,” but there is nothing in the Act of April 4, 1873, P. L. 20, 26, that requires a foreign insurance company to name more than one agent for this state, or in any county in it. That matter is left with the company and it may name as many as it thinks proper.

This policy was issued in the regular course of business and the credit extended to the plaintiff of thirty days by the brokers, and the credit of sixty days by the agent of defendant to the brokers, was not contrary to any rule, instructions or custom shown to be in force between the parties so as to affect this plaintiff. The course of dealing as to credit and payment of premiums, was well established, so that the policy became a binding contract upon its delivery at the latest: Scott v. Sun Fire Office 133 Pa. 322; Susq. Mut. Ins. Co. v. Elkins, 124 Pa. 484.

When the usual course of dealing between an insurance company and its agent is for the company to treat the agent as its debtor for the premiums on policies delivered to him, and to render bills periodically for them, the payment of the premium by the assured to the agent is payment to the company: Penna. Ins. Co. v. Carter, 8 Sadler, 191; Elkins v. Ins. Co., 113 Pa. 386, and when a policy is delivered without exacting the payment of the premium, the presumption is raised that a credit is extended and is a waiver of a condition of prepayment: May on Insurance, sec. 360; Universal Fire Ins. Co. v. Block, 109 Pa. 535; Riley v. Ins. Co., 110 Pa. 144; Gosch v. Ins. Co., 33 Pa. Superior Ct. 496; Snyder v. Ins. Co., 202 Pa. 161.

If an agent extends credit for the premium to the assured, and pays the amount to or is charged with it by the company, such payment inures to the benefit of the assured and consummates the contract: 16 Am. & Eng. Ency. of Law (2d ed.), 859; 19 Cyc. 776. This policy recites that “in consideration of the stipulations herein named and of fifty dollars premium” does insure, etc., which in connection with the concluding clause, that the policy shall not be valid until countersigned by the duly authorized agent at Warren, and the countersigning of the policy and delivery of it by the specified agent, estops the company from now saying that the premium was not paid.

It has been held many times that even if the policy provides that it should not take effect until the premium is paid in cash, the general agent has power to give a credit, and will be held to have waived it, if he delivered the policy without enforcing payment of the premium, and that the countersigning agent is such an agent: Richards on Insurance, 205, 206; Hagan v. Ins. Co., 186 U. S. 423; Lebanon Mutual Ins. Co. v. Hoover, 113 Pa. 591; Elkins v. Ins. Co., 113 Pa. 386; Gosch v. Ins. Co., 33 Pa. Superior Ct. 496; Universal Fire Ins. Co. v. Block, 109 Pa. 535.

The liability of the principal is coextensive with the agent’s ostensible authority: Farmers’ Mutual Ins. Co. v. Taylor, 73 Pa. 342; Hoge v. Ins. Co., 138 Pa. 66. The question is not so much what authority the agent had in point of fact, as it is what powers a third party dealing with him had the right to suppose he possessed, judging from his acts and the acts of his principal. If the agent is apparently exercising general powers in respect to insurance, the principal cannot discharge himself from liability upon a contract made by the agent by setting up private instructions, which are wholly unknown to the insured: 16 Am. & Eng. Ency. of Law (2d ed.), 916; Walker v. Lion Fire Ins. Co., 175 Pa. 345; Standard Leather Co. v. Ins. Co., 224 Pa. 186.

There is nothing in this record to indicate that this insurance was effected in any other method than that in which such contracts are ordinarily made, or that there was any deceit or bad faith practiced by the plaintiff or his broker, or that Henry acted in excess or in violation of his general authority. He had issued policies outside of Warren county, and his acts in so doing were ratified by the company. The testimony relied on to establish a custom among agents to bind this plaintiff fell far short of what is required by the decisions. To establish a custom the evidence must establish clearly and convincingly such a usage as can fairly be presumed to have entered into the intention of the parties: Adams v. Ins. Co., 76 Pa. 411. The true test is, that it has existed a sufficient length of time, not only to have become generally known to the dealers who are to be affected by it, but also to' warrant the presumption that contracts are made in reference to such usage or custom: Adams v. Ins. Co., 95 Pa. 348. Particular usages and customs of trade or business must be known by the party to be affected by them or they will not be binding, unless they are so notorious, universal and well established that his knowledge of them will be conclusively presumed: Collins v. Mechling, 1 Pa. Superior Ct. 594.

The sixth point presented (sixth assignment) substantially concedes that the extent and character of Henry’s agency was for the jury, and that question was carefully submitted to that tribunal.

The insured property was stock and machinery in buildings of the plaintiff, one of which was known as the benzine house. Its relation to the others was not shown, but it does appear, that it was not covered by this policy, and the proof is not clear that it was burned. There is no evidence that there was any of the interdicted thing (benzine) in the building bearing its name at the time the policy was issued or at the time of the fire, and the trial judge was not asked to instruct the jury in regard to it. See Fire Assn. v. Williamson, 26 Pa. 196; Lancaster Silver Plate Co. v. Ins. Co., 170 Pa. 151; Citizens’ Ins. Co. v. McLaughlin, 53 Pa. 485.

The alleged overvaluation of the property was satfactorily explained by witnesses, who were evidently believed by the jury, and the true value of the property destroyed was clearly fixed. There was no error in the-manner in which that question was submitted to them.

The trial in the court below was fairly conducted, and the defendant had no ground for complaint as to the manner of its submission to the jury as it withdrew its motion for a new trial. We find no reversible error in this record and the judgment is affirmed.


author: Fanning, P. J., Rice, P. J.,

text:
    Kaufman, Appellant, v. National Protective Legion.

      Beneficial associations—Benefits—Change of by-laws.

    1. Where a beneficial association agrees to pay a member after five years from the date of his certificate “an amount not exceeding $300 according to the laws of the order,” and there is nothing in the constitution or by-laws, or in the member’s contract fixing any stated or definite sum to which he would be entitled at the expiration of the five-year period, he cannot complain of a payment of $250 merely because the association during the running of the five years, amended its bylaws so as to change the method of apportionment so as to secure greater accuracy without, however, changing the contractual relations of the association and its members.
    2. Where the laws of a beneficial association provide for the payment of a benefit after five years from the date of a member’s certificate, and such time expires on January 1, of a particular year, the member cannot claim the benefit as apportioned for the year prior to January 1.
    Argued Nov. 25, 1910.
    Appeal, No. 249, Oct. T., 1910, by plaintiff, from judgment of C. P. Bradford Co., Sept. Term, 1908, No. 204, for defendant on case tried by the court without a jury in suit of Joseph Kaufman v. The National Protective Legion.
    Before Rice, P. J., Henderson, Morrison, Orlad y, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for benefits.
   Fanning, P. J.,

filed the following opinion:

At the close of the testimony by consent of counsel a juror was withdrawn, and the case left to the court, under the following agreement: “And now to wit, December 23d, 1909, it is agreed that trial by jury in the above case be waived, and that the testimony taken before the jury be submitted to the Hon. A. C. Fanning, President Judge of the said Court, for findings of fact, conclusions of law and judgment, saving however the right of appeal by either party.” Subsequently the testimony was transcribed and the case argued orally July 11, 1910, followed by requests for findings of facts and law, and submission of briefs of argument, the last having been presented July 29, 1910.

findings of fact

The defendant company was duly incorporated August 17, 1891, under art. VII of the insurance law of the state of New York, known as the “Fraternal Beneficiary Law,” with its principal office and place of business at Waverly, New York. The society is also doing business in the state of Pennsylvania.

2. The plaintiff, a member of Legion No. 4 of the order, located at Towanda, Pa., made application January 24, 1903, for a certificate in class B, pursuant to which a benefit fund certificate, No. 76,733, bearing date of January 1, 1903, was regularly issued by defendant company, by which it was provided that Joseph Kaufman “is entitled to all the disability and death benefits of a membership in class B, and to participate in the funds of the order according to the laws governing said class. Upon satisfactory proof of the death of the member named*' herein, together with the surrender of this certificate, provided that such member shall have in every particular complied with the laws of the order now in force, or that may hereafter be adopted, and has not obtained his membership by fraud or misrepresentation as to his age, family history, physical condition or occupation when admitted to membership, as shown by his application, which is hereby made a part of this certificate, there shall be paid to Marks Kaufman, bearing the relation of father to the member written therein, an amount not exceeding Three hundred dollars, according to the laws of the order.” Attached to this certificate were ten coupons maturing at intervals of five years from date. The first one to fall due, and for the collection of which this suit is brought, reads as follows: “Within (90) ninety days after 5 years from date of Certificate Number 76,733, of which this coupon forms a part, The National Protective Legion will make to the member whose name is written thereon a payment from its Benefit Fund in accordance with the laws of the order;” which at the time plaintiff’s certificate was issued (constitution of 1901, art. 24, sec. 129) provided as follows: “During the month of January, in each year, the executive board shall meet and apportion to all the coupons maturing during that year such amounts as are warranted by the financial condition of the Order and the laws thereof and are deemed consistent with the principles of justice and equity in the best interests of the entire membership.”

3. Later, to wit, in 1907, an amendment was adopted, of which the following is a copy: “During the month of January, in each year, the Executive Board shall meet, and after an accurate audit has been made of the affairs of the Order, and the correct surplus ascertained, shall apportion to holders of certificates in class B, issued the year five years previous thereto, such amounts by way of dividends as are determined by mathematical calculations to be due members holding such certificates.

“Such mathematical calculations to be arrived at by determination of excess accumulations arising from certificates in class B issued during the year five years previous to the maturity of the certificates upon which payment is to be made; provided, however, this section, as amended, shall not apply to any certificates in class B maturing a dividend prior to January 1st, 1908.”

4. The executive committee of the company met Jan-nary 10, 11 and 19, 1907, and passed the following resolution: “That the amount to be distributed to the class B members whose coupons shall mature during the year 1907 be fixed at the sum of $250 on full rate and $125 on half rate certificates, less the amount of disability, with interest.”

5. January 30, 1908, the executive board of defendant company met and fixed and declared the amount to be paid to members of class B, whose coupons should mature during the year 1908 at $113.58, and made apportionment accordingly.

6. Plaintiff’s benefit fund certificate matured January 1, 1908, payable within ninety days thereafter.

7. At the date of its maturity, January 1, 1908, no apportionment had been made to plaintiff’s certificate.

8. Plaintiff paid all assessments and dues levied against him during the five year period, and thereby became entitled to the amount payable according to the laws governing class B. .

9. Prior to the bringing of this suit, to wit, February 1, 1908, plaintiff was paid $80.35, which with a benefit of $30.00 on account of sickness, paid March 14, 1906, with interest thereon, amounts to $113.58, which defendant contends is the full amount to which he is entitled.

. 10. Plaintiff claims $186.42, with interest from March 31, 1908, being $300 less the credits above indicated.

LEGAL DISCUSSION

The defendant company was incorporated under the laws of the state of New York. Plaintiff’s certificate was issued and made payable at the home office in Waverly, N. Y. It was at first contended that the coupon upon which suit was brought in this case matured December 31, 1907. It is now conceded that under the laws of the state of New York, which must govern in the disposition of the questions involved, the coupon did not fall due until the following day, January 1, 1908, and that the apportionment made in the month of January, 1907, to all certificates in class B, maturing that year, is not applicable to plaintiff’s coupon.

The contention of the plaintiff is that his rights were fixed at the date of the maturity of the coupon upon which suit was brought; that he is in no way affected by the rate fixed January 30, 1908; that no apportionment to his claim has at any time been made; and that by reason of this omission there is due him the sum of $300 and interest, less payments.

In the determination of these questions consideration of the nature and extent of defendant’s contract with plaintiff becomes important. The benefits provided by the certificate are divided into three classes: first, a mortuary, or death benefit; second, a disability benefit; and third, to the beneficiary at the expiration of five years, if in good standing, a payment from the benefit fund in accordance with the laws of the order.

The plaintiff’s claim for $300 cannot be sustained.

There is nothing in the certificate or matured coupon which can be construed into an agreement to pay a specific, fixed sum at the expiration of the five year period. A payment, however, was agreed to be made at that time from its benefit fund “in accordance with the laws of the order.”

The provisions of 1901 relating to the method of ascertainment and the amendment of 1907 are hereinbefore quoted (findings of fact, 5 and 6):

Whether the amount decreed to be distributed by the executive board, January 30, 1908, is applicable to certificates maturing January 1 of the same year is the pivotal question. That the board should meet in the month of January in each year and apportion the amount to be paid upon coupons maturing the same year was expressly provided by the laws of the order, in force in 1903. This was not changed by the amendment of 1907. Plaintiff’s coupon matured in 1908. Apportionment was made at the time provided, and if valid in other respects, is applicable to plaintiff’s certificate. No authorities of this or any other state have been cited holding or indicating that an apportionment to which a beneficiary is entitled cannot be lawfully made after the maturity of his certificate.

The plaintiff as a member agreed to be governed by the constitution and by-laws of the order then existing, or that might thereafter be enacted. It is, however, most earnestly contended that the amendment of 1907 cannot affect plaintiff’s certificate or contract made in 1903. A number of cases have been cited in support of this position, but in each there was a definite or ascertainable amount fixed by the contract, and it was held that the same could not be reduced or the rights of the beneficiary affected by subsequently enacted amendments to the bylaws.

In Hayes v. German Beneficial Union, 35 Pa. Superior Ct. 142, a beneficiary entered a class where the contract provided for the payment of $1,000 in ten years; and an amendment materially reducing the amount was held to be prospective only, and that the rights of the beneficiary were not affected thereby.

In Hale v. Equitable Aid Union, 168 Pa. 377, a fixed amount was agreed to be paid at the end of a certain period, and it was decided that the plaintiff was not subject to an amendment reducing the amount: Becker v. Berlin Beneficial Society, 144 Pa. 232; also Hipple v. Supreme Ruling of Fraternal Mystic Circle, 10 Pa. Dist. Rep. 317; Marshall v. Pilots’ Association, 206 Pa. 182, and other cases are to the same effect. The principle fairly deducible from the authorities is that the power to make by-laws carries with it the authority to amend the same in conformity with the constitution and rules of the order, and such amendments, if reasonable, are binding; but where a member acquires special rights by his contract, or the by-laws as they stood at the time he became a member, these become fixed and "cannot thereafter be changed to his prejudice except by consent. In Chambers v. Supreme Tent of Knights of Maccabees, 200 Pa. 244, the Supreme Court with reference to the subject under consideration used the following language: "An association can enact alterations in the by-laws of a mere regulative kind, or which are not inconsistent with the fundamental scheme of the incorporation, but in the line of its original purpose, conducive to perfect equality of benefits and burdens, though they affect (without destroying) vested rights, so long as the alterations relate to the duties and rights springing from the contract of membership, and not from other purely contract relations; because, on all questions of the rights and duties incident to membership, every member, by his fundamental contract of membership pledges his assent in advance to every lawful rule adopted by the majority in furtherance of the common objects.” So far as cited the decisions of the state of New York are in accord with our own. In Shipman v. Protected Home Circle of New York, 174 N. Y. 398, it was said, "under an express agreement by a member of a mutual benefit association to comply with 'all the laws, rules, regulations and requirements now in force and that may be hereafter enacted,’ by-laws thereafter regularly adopted become retrospective as well as prospective in their operation, except as to the rights that have become fixed or vested by the terms of the original contract.” This principle is also recognized in People v. Ancient Order United Workmen, 32 Misc. 528, and numerous other cases.

In the case at bar there was nothing in the constitution and by-laws or in the contract fixing any stated or definite sum to which plaintiff would be entitled at the expiration of the five year period. The status of the plaintiff had not been definitely fixed before the amendment; his rights were not vested until the maturity of his certificate. The amount of the benefit was determinable only by the audit of the executive board in the manner provided by the laws of the order. This was the method of ascertainment fixed and agreed upon by the society under the by-laws in force not only in 1901 but in 1907. The amendment does not, we think, materially alter the method of apportionment from that which obtained in 1903, and no change having been made in the contractual relations of the parties the plaintiff, we think, is bound thereby.

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

Rodney A. Mereur, with him David E. Kaufman, for appellant,

cited: Hayes v. German Beneficial Union, 35 Superior Ct. 142; Hale v. Equitable Aid Union, 168 Pa. 377; Hipple v. Supreme Ruling of Fraternal Mystic Circle, 10 Pa. Dist. Rep. 317; Becker v. Berlin Beneficial Society, 144 Pa. 232; Marshall v. Pilots’ Assn., 206 Pa. 182.

After careful consideration we are of the opinion, and so find, as a conclusion of law that the plaintiff has not established in this proceeding his right to recover an amount in excess of that already paid. That the apportionment is disappointing to certificate holders in class B is clearly apparent, but this is a matter the court is powerless to remedy. If the executive board did not apportion to certificates in class B maturing in 1908, the amount to which they were entitled “consistent with the principles of justice and the best interests of the entire membership,” the remedy was by other proceedings.

The questions involved in this suit have been recently decided by the supreme court of the state of New York in the case of Thomas Rich against this same defendant The National Protective Legion, where it was held by Justice George F. Lyon that the plaintiff’s coupon in glass B did not mature during the year 1907, and that he was only entitled to the amount determined and decreed by the executive board in January, 1908.

In view of the fact that the contract in question was made in the state of New York and where, by its terms, it was to be carried out, we feel that the adjudication of the courts of that state, upon identically the same state of facts, should have great weight in the determination of the case at bar.

And now, September 12, 1910, judgment directed to be entered in favor of defendant, with costs.

Wm. Maxwell, with him F. L. Howard, for appellee,

cited: Chambers v. Supreme Tent of Knights of Maccabees, 200 Pa. 244; Suckling v. Artisans’ Order of Mutual Protection, 35 Pa. Superior Ct. 199; Marshall v. Pilots’ Assn., 18 Pa. Superior Ct. 644; Becker v. Berlin Ben. Society, 144 Pa. 232; Marshall v. Pilots’ Assn., 206 Pa. 182; Hipple v. Supreme Ruling of Fraternal Mystic Circle, 10 Pa. Dist. Rep. 317.

March 3, 1911:

Opinion by

Rice, P. J.,

It is quite clear that the defendant did not agree to pay the plaintiff a specific, fixed sum at the end of five years, as is alleged in the statement of claim. What it agreed to do was, that within ninety days after five years from the date of his certificate it would make to him a payment from its benefit fund “in accordance with the laws of the order.” According to the laws of the order in force when the plaintiff became a member, it was the duty of the executive board to meet during the month of January in each year and apportion to all coupons maturing during that year such amounts as were warranted by the financial condition of the order and the laws thereof and were deemed consistent with the principles of justice and equity in the best interests of the entire membership. The amendment adopted in 1907 did not alter the laws of the association, so far as the authority of the executive board to make the annual apportionment or the time of making it were concerned; but the applicability of the apportionment made on January 30, 1908, is questioned by the plaintiff upon the ground that, under the certificate issued to him in 1903, he had vested contract rights which could not be affected lawfully by the amendment. The amendment, it is true, introduced new regulations, which were calculated and evidently intended to enable the executive board to ascertain more accurately the amount apportionable to each coupon; but the argument of his counsel has not convinced us that it changed prejudicially to the plaintiff the principle upon which the apportionment was to be made. This question as to the validity and reasonableness of the amendment, and its applicability to coupons that matured subsequently, is so fully and satisfactorily considered in the opinion of the learned trial judge that we do not deem it necessary to add anything further in support of his conclusions upon the question, except to say that we all concur in them. Objection is also made on the ground that the plaintiff’s coupon matured on January 1, 1908, and the apportionment was not made until January 30 of that year. But as the laws of the association, both before and after the amendment, contemplated an apportionment in January of each year to all of the coupons maturing during that year, this objection is not well founded. Upon no conceivable theory could the plaintiff recover the sum mentioned in the death benefit clause of the certificate, for that is payable only upon satisfactory proof of the holder’s death, and then to another person. Again, as the coupon upon which suit was brought did not fall due until 1908, it is apparent that the plaintiff could not recover the sum apportioned in January, 1907, to members whose coupons matured in 1907. So that, even if it be conceded, which we do not concede, that the apportionment made in 1908 was for any reason inapplicable to the plaintiff, it would follow that the condition precedent to recovery by him has not been shown. In any view of the case judgment was properly entered for the defendant. But, as already intimated, we are of opinion that the view taken by the learned judge is the correct one.

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


author: Head, J.,

text:
    Shipley’s Estate.

      Taxation—Collateral inheritance tax—License to use real estate—Life estate—Wills.

    1. Where a testator directs that his sister shall have the right to retain the use of a house “free of rent as a family residence as long as she may live and may wish to do so,” but if she may wish to remove from it to another house, the same may be provided for her out of the funds of the estate so that it does nob exceed in value the one removed from, the sister takes merely a personal license or privilege to occupy the house specified, or another at her pleasure, and not an estate therein, from which the commonwealth may collect a collateral inheritance tax,
    2. A license in respect to real estate is defined to be an authority to do a particular act or series of acts on another’s land without possessing any estate therein. It is founded on personal confidence and is not assignable or within the statute of frauds.
    Argued Nov. 25, 1910.
    Appeal, No. 268, Oct. T., 1909, by the Commonwealth, from decree of O. C. Chester Co., sustaining appeal from collateral tax appraisement in estate of Samuel R. Shipley, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from collateral tax appraisement.
    The court in an opinion by Butler, J., sustained the appeal on the ground that the provision in the testator’s will for his sister, quoted in the opinion of the Superior Court, gave the sister merely a license to use the testator’s house, and not an estate therein.

      Error assigned was in sustaining the appeal.

      John R. Scholl, for appellant.
    Provisions similar to the one in question have repeatedly been construed as vesting “estates in land” in the beneficiary and not merely licenses or privileges: Wusthoff v. Dracourt, 3 Watts, 240; Kennedy’s App., 81* Pa. 163; Ringrose v. Ringrose, 170 Pa. 593; Wingett v. Bell, 14 Pa. Superior Ct. 558; Bell v. Fulton, 1 Sadler, 200; France’s Est., 75 Pa. 220; Armstrong v. Michener, 160 Pa. 21; Nevins’s Est., 192 Pa. 258; Clough v. Clough, 71 N. H. 412 (52 Atl. Repr. 449).

      George S. Munson, with him II. Gordon McCouch, for appellee.
    In two other cases in Pennsylvania, language substantially like that used by Mr. Shipley was held to create a license merely in the beneficiary, and not an estate: Calhoun v. Jester, 11 Pa. 474; Callen v. Hilty, 14 Pa. 286.
    March 3, 1911:
   Opinion by

Head, J.,

The sole question raised by this appeal turns upon the construction to be given to the following clause of the will of Samuel R. Shipley, deceased, to wit:

“Fifteenth:—I will and direct that my sister, Catharine M. Shipley, shall have the right to retain the use of my house at 2128 DeLancey street in the city of Philadelphia free of rent as a family residence as long as she may live and may wish to do so. Should she conclude that this house is too large, or should she for any reason wish to remove from it to another, the value of which shall not exceed the value of the one thus removed from, she may have the right to do so, and in that event my said executors and trustees shall have the authority to provide for her out of the funds of my estate such a residence free of rent as she may select. My object in this provision is to furnish to my sister a convenient residence and home for and during the term of her natural life. All taxes, repairs and expenses of maintaining such residence, either at 2128 DeLancey street or any other house which may be selected as above, shall be paid by my executors and trustees out of the income of my estate.”

If Catharine M. Shipley, under the above-recited provision, took an estate for life in the premises described as 2128 DeLancey street, then the commonwealth was entitled to the collateral tax on the value of the property. If, on the other hand, said provision conferred upon her but a personal license or privilege to occupy said house, or another at her pleasure, then the learned court below was right in denying the commonwealth’s claim for such tax.

The language used by the testator in the opening sentence of the provision quoted clearly indicates that he did not intend by his will to create any new estate or interest in the DeLancey street house in favor of his sister. "I will and direct that my sister shall have the right to retain the use of my house,” etc. She was therefore but to continue to enjoy after the testator’s death that which she had during his lifetime, and it is not contended that there existed in her any estate of any kind in the property prior to the death of the testator. It is also clear that there was no intention to incumber the right or privilege thus conferred upon her with any of the incidental obligations that would attach to or flow from the creation of a life estate in her favor. It is expressly provided that the burden of taxes, repairs and expenses of maintenance, ordinarily to be borne by a life tenant, should be paid and discharged out of the revenues of the estate. Moreover, at her election, the will clearly gave to the beneficiary named the privilege of exercising in some other property the same right which she would primarily exercise in the DeLancey street house.

In the event of such election, what would be the nature of her interest in the second property to be provided by the executors? Manifestly it would be the same in character and extent as that which she primarily had in the DeLancey street house, but it is not and it could not well be contended that it was the testator’s intention to give-her a life estate in two properties. If therefore, on the death of the testator, she took a life estate in the DeLancey street house, and if upon her election to remove to another she would thereby acquire a life estate in it, it would seem to follow that the life estate, which it is claimed she had in the first property, must be of an ambulatory nature so that it could be shifted by her from the one property to the other in case she chose to exercise the right of election clearly conferred upon her by the will.

We are unable to reach the conclusion that such a construction of the clause quoted is the true one. On the other hand, if we hold that the testator intended to confer upon his sister but a license or personal privilege to occupy the house designated, or another to be selected by her at her pleasure, we meet every requirement of the language of the will, and, as it seems to us, give effect to the intention of the testator.

In 5 Words and Phrases, Judicially Defined, 4133, “A license in respect to real estate is defined to be an authority to do a particular act or series of acts on another’s land without possessing any estate therein. ... It is founded on personal confidence and is not assignable or within the statute of frauds.” The numerous cases there cited show that this definition is most widely, if not universally, accepted, and it has been expressly adopted in our own state: Baldwin v. Taylor, 166 Pa. 507. In Calhoun v. Jester, 11 Pa. 474, the following provision of a will was before the court for interpretation: “I leave unto my son John’s children, my plantation &c.; providing that my son John have the privilege of living on the place with his children during his life.” Gibson, C. J., construing the proviso quoted, said: “The direction, that the testator’s son John should have the privilege of living on the place with the children during his life, gave him, not an estate, but a license. Had he taken an estate, it would have been liable to judgment and execution by his creditors—the very thing, perhaps, which the testator designed to prevent.” We are not able to perceive any substantial distinction between the language of the will there construed and that now before us. So in Callen v. Hilty, 14 Pa. 286, the language of the agreement which fixed the relations of the parties was the following: “That the said Callen doth let or give the said Hilty privilege of living four years on his farm, from the first day of April next.” It was held that no relation of landlord and tenant was created by that instrument and that no estate of any kind vested in Hilty, the court saying: “A mere license to live upon land, and to do certain acts thereon, may be granted without creating the relation of landlord and tenant, or giving any other rights to the occupant than those conceded or granted by the license; and of this character would seem to be the relation subsisting between the plaintiff and defendant, according to their article of agreement. There is no grant or conveyance of the farm, or of any particular part of it, for any time.”

Nor are we able to perceive that we should be led to the other conclusion by any controlling force in the cases cited and relied on by the able counsel for appellant. For example, the distinction between the present case and Wusthoff v. Dracourt, 3 Watts, 240, we think is exhibited in the following sentence from the opinion of Rogers, J.: “The case at bar is not a legacy but a devise of a freehold during life, and the enjoyment does not depend upon either an express or implied condition that she shall continue to reside in the house.” As we have already seen, we do not think it could be fairly contended under the will now before us that Catharine M. Shipley could retain a life estate in the house in DeLancey street after she had exercised the privilege given her by the testator of occupying another to be provided by his executors. And the same consideration shows that Ringrose v. Ringrose, 170 Pa. 593, cannot be regarded as decisive of the question before us. We find nothing in Kennedy’s Appeal, 81* Pa. 163, that sheds any light on the present controversy.

After an attentive examination of the entire section of the testator’s will, we are of the opinion that the learned court below was right in holding that Catharine M. Shipley had, not a life estate in the DeLancey street property, but a mere license or personal privilege to continue the occupancy of it rent free after the death of the testator, as she had occupied it during his lifetime.

Judgment affirmed.


author: Henderson, J.,

text:
    Beaumont v. Sharpless, Appellant.

      Partnership—Actions—Assumpsit.

    1. An action of assumpsit cannot be maintained by one member of a firm against his copartners or former partners for an account against or a contribution to the firm. No one can be both plaintiff and defendant in the same action.
    2. Where a partner sells his interest to the other partners and the remaining partners agree to pay the debts of the firm for which the retiring partner is liable, and to save the outgoing partner harmless from the firm debts, the latter cannot thereafter maintain an action of assumpsit against the remaining partners for. goods sold to them by the outgoing partner before the dissolution.
    3. After a dissolution of a partnership the partners cannot make a contract in any way binding each other.
    Argued Nov. 25, 1910.
    Appeal, No. 183, Oct. T., 1910, by defendants, from judgment of C. P. Chester .Co., Oct. Term, 1909, No. 6, on verdict for plaintiff in case of Charles 0. Beaumont, trading as Joseph Oat & Son, v. William Sharpless and W. Warren Sharpless, trading as W. W. Sharpless Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for labor and material. Before Butler, J.
    The court charged in part as follows:
    The plaintiff, who is Charles 0. Beaumont, trading as Joseph Oat & Sons, has brought this suit against William Sharpless and Warren Sharpless, trading as the Sharpless Company, Ltd., to recover $772.83, with interest from. August 1, 1908, under these circumstances: Charles Beaumont at one time was a member of the defendant company and, during his partnership, he and the other mem: bers of this firm determined to purchase an automobile and have it converted into an automobile truck for the delivery of milk in Philadelphia. They were engaged in that business. A machine was bought and was converted and improved by the plaintiff. As I have said, he was then a member also of the defendant company as then constituted. The plaintiff expended in the purchase of the automobile, in furnishing the money to buy it and in converting it and repairing it, what amounts, in the aggregate, to $772.83. The machine was delivered, accepted and used by the defendant company. It is contended, however, that, by virtue of the situation that now exists, as a legal proposition the plaintiff cannot recover. It appears that in January—I think January 22—1909, the plaintiff severed his relations with this defendant company.
    Defendants presented these points:
    1. The plaintiff having by writing under seal executed in January, 1909, sold and transferred to William Sharp-less and Warren W. Sharpless, all his right, title and interest in and to the property, real and personal of the partnership known as W. W. Sharpless Company, Limited, of which partnership he was a member, and the claim in suit against said partnership being in existence at the time of such sale and transfer, there can be no recovery and the verdict must be for the defendants. Answer: That point is disaffirmed. [1]
    2. The defendants, having covenanted with the plaintiff, by the written sale and transfer referred to, to “pay and satisfy all the creditors to whom the said Charles 0. Beaumont is chargeable or indebted for and concerning all the affairs and dealings of the said copartnership” and to “indemnify and save harmless” the said Beaumont “from all the debts and liabilities and every of them of said copartnership” such covenant measured the liability of the said William Sharpless and Warren W. Sharp-less and does not extend to the payment of a claim held by the plaintiff against the partnership of which he was a member and the verdict must be for the defendants. Answer: That point is disaffirmed. [2]
    3. The law presumes that when a partner sells and transfers his interest in the assets of a copartnership to the remaining members, such sale and transfer includes the interest of the selling partner as a creditor of the concern, and no evidence having been introduced sufficient to overcome this presumption, the plaintiff cannot recover and the verdict must be for the defendants. Answer: That point is disaffirmed. [3]
    4. Under all the evidence, the verdict must be for the defendants. Answer: That point is disaffirmed. [4]
    [We are going to instruct you to find a verdict for the plaintiff for the amount of his claim with interest.] [5]
    Verdict and judgment for plaintiff for $855.90. Defendants appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      J. Frank E. Hause, with him Daniel C. Donoghue, for appellants.
    It is perfectly clear that such action would not lie were the partnership in existence: Crow v. Green, 111 Pa. 637.
    The fact that at the time of the suit the plaintiff and defendants were not partners is likewise immaterial: Hall v. Logan, 34 Pa. 331.
    The remedy of a partner, who holds a claim against the firm of which he is a member, is by a bill for an accounting on the equity side of the court: Beale v. Jennings, 129 Pa. 619; Elmer v. Hall, 148 Pa. 345; Murray v. Herrick, 171 Pa. 21; Riley v. Eigo, 1 Pa. Superior Ct. 139.
    Taking the agreement as it was executed by the parties and construing it as a whole, the conclusion is irresistible that Beaumont parted with every conceivable interest he had in the partnership for $8,000—and the law presumes that when his copartners agreed to pay him this amount, they knew how much he was entitled to have out of the assets, including the claim for which he now sues, and that they fixed upon the price accordingly: Hamilton v. Wells, 182 Ill. 144 (55 N. E. Repr. 143); Beale v. Jennings, 129 Pa. 619; Milloy v. Hoyt, 123 Ill. App. 568.

      George Quintará' Horwits, with him W. W. MacElree and Alfred P. Reid, for appellee.
    The judgment from which this appeal is taken covers a claim not involving any partnership transactions, and, upon the authority of a long line of cases, there is no doubt of the right of the appellee to have brought the suit: Beale v. Jennings, 129 Pa. 619; Farrell v. Young, 26 Pa. Superior Ct. 135; Welch v. Miller, 210 Pa. 204.
    Where a partner on the dissolution of the partnership, assumes the payment of all the partnership indebtedness, he is liable in assumpsit for goods supplied to the firm by his copartnership, during its existence, with his knowledge and consent: Thropp v. Richardson, 132 Pa. 399; Collins v. Smith, 78 Pa. 423.
    March 3, 1911:
   Opinion by

Henderson, J.,

The basis of the plaintiff’s claim is an account which he held against a firm of which he was a member. In the prosecution of the business of that firm it was deemed advisable to procure a motor truck and this the plaintiff bought. The partnership having been dissolved by an agreement in writing the plaintiff afterward brought this action to recover the price of the truck and some repairs made on it. Two objections are made to the judgment appealed from: first, that an action of assumpsit cannot be maintained by one member of a firm against his copartners or former partners for an account against or a contribution to the firm; and second, that on a sale of the interest of one partner to the other partners there is a presumption that all accounts of the several partners were taken into consideration and settled; that an individual account could only be recovered on an express agreement of such other partners to pay it and that there was no such agreement in this case. On the first proposition the law is clearly with the appellant. The plaintiff’s account was for a contribution to the assets of, or a sale of the truck to, the firm and in either case a compulsory settlement would involve the financial standing of the partners and an ascertainment of the state of the partnership'accounts. The proceeding for this sort of inquiry is a bill in equity or an action of account render. No one can be both plaintiff and defendant in the same action. A reference to Klase v. Bright, 71 Pa. 186; Leidy v. Messinger, 71 Pa. 177; Crow v. Green, 111 Pa. 637 and Murray v. Herrick, 171 Pa. 21, will illustrate the application of this doctrine. In Crow v. Green, the court said: “The case comes within the perfectly familiar rule that one partner cannot sue another partner for a partnership transaction except by bill in equity or action of account render.” Nor is the rule different where the action is brought after the firm is dissolved: McFadden v. Hunt, 5 W. & S. 468; Hall v. Logan, 34 Pa. 331. An exception exists where there is an express agreement of the other members of the firm to pay all the debts due by the partnership or to pay a particular claim or claims of the retiring partner: Beale v. Jennings, 129 Pa. 619. Likewise, an action of assumpsit may be maintained for the purchase money where one partner sells his interest in the firm to the other partners: Draucker v. Arick, 161 Pa. 357; Farrell v. Young, 26 Pa. Superior Ct. 135. But these cases all have their root in the fact of an existing contract which created the liability. To this the appellee replies that there was a contract of dissolution and that the defendants are liable under that contract. The action is not brought, however, on the contract. It is on its face an action by a third person against the defendants for goods sold and delivered and there is nothing in the pleadings to show that the action was on a partnership transaction which is excepted by an agreement to pay from the operation of the principle that one partner may not sue his copartners in assumpsit for a partnership debt.

But if it be admitted that the action is brought on the contract of dissolution does that contract cover the plaintiff’s claim? It recites that the plaintiff and defendants as partners dealing together under the name of W. W. Sharp-less Company and W. W. Sharpless Company, Ltd., had become possessed of many goods, wares and debts due them and of real, and personal property and had become “indebted to divers other persons” concerning their joint trading and that the plaintiff consented to sever himself from the partnership for the consideration of $8,000 to be paid by his copartners in consideration of which he transferred to them all the right, property and interest which he had or should have or might have in the firm and in “all and singular the goods, wares, merchandise, accounts receivable and all other property real or personal belonging to said co-partnership or in which said co-partnership had any interest.” The contract contains the further covenant that the defendants “will at all times hereafter pay and satisfy all the creditors to whom the said Charles O. Beaumont is chargeable or indebted for and concerning all the affairs and dealings of the said co-partnership and will at all times hereafter indemnify and save harmless the said Charles O. Beaumont, his heirs, executors and administrators from all the debts and liabilities and every of them of the said co-partnership.” It is under this clause of the contract that the plaintiff contends the defendants are hable for his claim. Two obligations are here assumed by the defendants: first, to pay debts; and second, to save the plaintiff harmless from debts. What are the debts which the defendants are to pay? The contract specifies these. They are the claims of all the creditors to whom the said Charles O. Beaumont is chargeable or indebted for and concerning all the affairs and dealings of the copartnership. These debts do not include the claim in suit for it cannot be said with due regard to the language of this clause or the apparent intention of the parties that Beaumont is chargeable with this debt. It is his claim against the firm; not one for which he is liable to creditors. What the parties meant as expressed in this provision was that Beaumont should be relieved from all liability on account of claims which any other creditor might bring against the firm. Does the indemnity clause help the plaintiff out? We think not. That is but a statement in another form of the provision that the defendants will pay all creditors to whom the outgoing partner was liable. After promising to pay that class of creditors the defendants by way of further assurance to the plaintiff agreed to indemnify him and save him harmless from all the debts and liabilities of the copartnership. But he needed no indemnity against his own claim. To include an indebtedness which he and his partners owed himself would be to force a construction on the terms of the contract which the language when reasonably interpreted does not permit. We think this provision is not susceptible of an interpretation which will make it amount to an agreement to pay the Beaumont claim. To indemnify and save harmless means that Beaumont shall be exempted from liability on account of any debts of the firm; not that he is to be paid a claim which he holds. The parties had in mind at the time the payment of debts for they expressly covenanted with reference to obligations for which Beaumont might be sued that they should be paid. We cannot persuade ourselves that the clause with reference to indemnity was intended to cover any other debts of the firm than those for which Beaumont was liable. If this provision had been made applicable to all the debts of the firm the claim of the plaintiff would have been included as was held in Beale v. Jennings, supra, but the contract is not that broad; the creditors to be paid were those who were not the parties to this contract. Moreover, when the parties agreed on a basis of dissolution and the plaintiff retired from the firm for the consideration stated the presumption is that they had in view the assets and liabilities of the firm and that the value of the plaintiff’s interest was agreed on in the light of such assets and liabilities. When, therefore, the plaintiff parted with all his right, property and interest in the partnership it will be assumed that this covered as well his original investment as also his profits still in the business and his right as a creditor to take part of the assets. This is the doctrine of Thompson v. Lowe, 111 Ind. 272, where it was held that it will be presumed that the account of the retiring member of a firm was adjusted in ascertaining the value of his interest and that the value was increased or diminished in proportion as he was found to be the debtor or creditor of the firm, if nothing be shown to the contrary. The same principle is announced in Roberts v. Ripley, 14 Conn. 543; Hamilton v. Wells, 182 Ill. 144 and Lesure v. Norris, 65 Mass. 328. The learned trial judge was influenced in reaching the conclusion excepted to by the appellant by a letter written by one of the defendants about two months after the contract of dissolution in which he expressed an expectation of ability to pay the plaintiff's bill for the “auto truck” about April 1. But the other defendant was not shown to have assented to this letter nor to have had any knowledge with reference thereto and it was not competent to give to the contract of dissolution an interpretation as against him which its terms did not express.

The judgment is reversed.


text:
    Commonwealth v. Layton, Appellant.

      Appeals—Certiorari—Summary conviction—Posting land—Act of April 14, 1906, P. L. 169.

    1. An appeal from a judgment of the quarter sessions on an appeal to it from a summary conviction by a justice of the peace under the Act of April 14, 1905, P. L. 169, relating to the posting of land, is, in effect, but a certiorari and brings up for review nothing but what appears upon the record, without a bill of exceptions.
    2. Where a new jurisdiction is created by statute, and the court or judge exercising it proceeds in a summary method, or in a new course different from the common law, a writ of error does not lie, but a certiorari.
    Argued Dec. 5, 1910.
    Appeal, No. 282, Oct. T., 1909, by defendant, .from judgment of Q. S. Monroe Co., May Term, 1909, affirming summary conviction in case of Commonwealth v. Edward Layton.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from summary conviction by justice of the peace. Before Staples, P. J.
    The opinion of the Superior Court states the case.

      Error assigned among others was the judgment of the court.

      Rogers L. Burnett, for appellant.

      A. Mitchell Palmer, for appellee.
    March 3, 1911:
   Opinion by

Rice, P. J.,

This case came into the quarter sessions by appeal from a summary conviction by a justice of the peace under the Act of April 14, 1905, P. L. 169, making it unlawful to trespass upon land posted as private property, and providing the penalty therefor. After hearing and consideration of the evidence the court set forth at length its findings of fact and conclusions of law, and “in accordance therewith,” as stated in the final order, adjudged and decreed that the defendant pay the sum of $1.00 for the use of the school fund of the district in which the alleged trespass was committed, together with costs. The defendant appealed to this court, and has presented for our consideration twenty-nine assignments of error, which are based on exceptions allowed by the court. Seventeen of the assignments are to the denial of requests for findings of fact and conclusions of law, four to specific findings of fact and conclusions of law, five to certain portions of the opinion, one to the judgment, one to the denial of the defendant’s motion to dismiss the case at the conclusion of the commonwealth’s testimony, and three to the rejection of certain offers of evidence.

The act of 1905 gives no right of appeal from a summary-conviction by a justice of the peace to the quarter sessions, or from the judgment of that court to the Superior Court. The former rests on the provisions of sec. 14, art. V of the constitution, and the Act of April 17, 1876, P. L. 29; and the latter is involved in the revisory jurisdiction of the Supreme Court, which was extended to this court, in certain classes of cases, by the Act of June 24, 1895, P. L. 212, and its supplements. The modes of reviewing cases by writ of error, by appeal, and by writ of certiorari, which were in use prior to the Act of May 9, 1889, P. L. 158, still remain applicable in the same kinds of cases, within the same hmits and with the same effect as before, the only difference being that they now are all called by the name “appeal:” Rand v. King, 134 Pa. 641. It therefore becomes necessary, at the outset, to determine whether the mode of reviewing the action of the quarter sessions in such a proceeding, prior to the act of 1889, was by writ of error or by certiorari, and, if by the latter, then to determine what constitutes the record to be reviewed. It was contended by the defendant in error in Com. v. Burkhart, 23 Pa. 521, that the judgment of the common pleas on certiorari to a summary conviction by a justice of the peace could not be reviewed in the Supreme Court, and, if it could, it must be done on certiorari. The Supreme Court decided against both contentions, and with regard to the latter said that because, though the proceeding before the justice of the peace was out of the course of the common law, yet the certiorari suit in the common pleas was in the course of the common law, it was properly reviewable on writ of error. This was a clear recognition of the general rule, that where a new jurisdiction is created by statute, and the court or judge exercising it proceeds in a summary method, or in a new course different from the common law, a writ of error does not lie, but a certiorari: Ruhlman v. Com., 5 Binn. 24. Accordingly, it was held, in the case last cited, that a writ of error did not lie from the judgment of the quarter sessions upon an appeal (the statute allowed an appeal to the quarter sessions) by supervisors of roads from a summary conviction by a justice of the peace; the proceeding in the quarter sessions in such case not being according to the course of the common law. In the present case the jurisdiction of the quarter sessions was statutory in its origin. Neither the constitutional provision nor the act of 1876, granting and regulating the right of appeal from summary convictions by magistrates, gives the right to have the case tried by a jury: Com. v. Waldman, 140 Pa. 89; Com. v. Eichenberg, 140 Pa. 158. When such a case is brought into the quarter sessions by appeal, the court proceeds in a summary method, and not in the course of the common law. The statute 13 Edw. I, ch. 31, which gave a bill of exceptions to “one that is impleaded before any of the justices,” though reported to be in force in Pennsylvania, Robert’s Dig. 92, has never been construed to extend to criminal cases or summary proceedings not according to the course of the common law: Shortz v. Quigley, 1 Binn. 222; Bell v. Bell, 9 Watts, 47; Penna. R. R. Co. v. German Lutheran Congregation, 53 Pa. 445; Haines v. Com., 99 Pa. 410. That statute “gives a bill of exceptions only in a trial according to the course of the common law, and there is no other mode of putting evidence on a record:” Union Canal Co. v. Keiser, 19 Pa. 134. In Middleton v. Com., 2 Watts, 285, it was declared that though the judge had actually sealed the bill it was not to be considered. Gibson, C. J., said: “It is not pretended that the judges were bound to seal these bills of exceptions; but it is said, that as they have voluntarily done so, we are bound to inspect the matter supposed to be thus put on the record. But the statute sanctions nothing which it does not enjoin; and as it has been held in Sir Harry Vane’s case, according to the report of it in 1 Levinz, 68, and Kelyng, 18, to be inapplicable to any criminal matter whatever, the case before us stands precisely as it would have stood before the statute.” The same was held in Com. v. Superintendent of Prison, 33 Pa. Superior Ct. 594; s. c., 220 Pa. 401. True the Act of May 19, 1874, P. L. 219, authorizes bills of exceptions in criminal cases. But a summary conviction does not belong to the class of criminal cases that were triable according to the course of the common law, in the quarter sessions, at the time of the passage of the act of 1874. Nor do they appear to be within the remedial intention of that act. The context shows that the legislature had in contemplation cases triable before a jury, and not summary proceedings such as this. See Barnes v. Com., 11 W. N. C. 375; Com. v. James, 142 Pa. 32; Com. v. Smith, 200 Pa. 363. Counsel cites Com. v. Burford, 38 Pa. Superior Ct. 201, as authority for the position that on appeal from a summary conviction the Superior Court will consider and be governed by the evidence adduced in the court below. We cannot agree with counsel in this position. There the parties entered into a written agreement as to the facts, in the nature of a case stated, which was filed in the court below, “and upon the facts thus brought upon the record the court adjudged the defendant guilty and affirmed the judgment of the justice.” This brought the case, for purposes of review, within the ruling in Chase v. Miller, 41 Pa. 403, 415, where the court said: “Had the court possessed itself of the facts per testes, whether in the form of oral evidence or by depositions, we could not notice them, simply because there is no mode of certifying to us what the facts were, but, placing them upon the record by the concurrent consent of court, counsel and parties, and then basing the decree most distinctly and exclusively upon the facts so ascertained, it would be hyper-criticism run mad to so construe the statutes under which we sit as to deny a citizen the right of review.” It is thus seen that the case of Com. v. Burford is not authority for the proposition that the evidence, oral or otherwise, given on the hearing in the quarter sessions, is part of the record or can be brought upon the record by a bill of exceptions.

It follows from the foregoing review, that an appeal from a summary conviction by a justice of the peace is, in effect, but a certiorari, and brings up for review nothing but what appears upon the record, without a bill of exceptions. Thus viewing the record properly before us for review, we find no error. There was no irregularity in procedure, certainly none of which the defendant can complain; and the facts found by the court brought the case within the provisions of the act of 1905, and fully warranted the conviction.

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