text:
    Greiner to use v. Central Mutual Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Application—Daily report — Evidence.
    In actions on policies of fire insurance against three insurance companies, tried together, where it appears that no application was attached to the policy of one of the companies, an agent of such company will not be permitted to refresh his memory from a daily report, where it appears that the daily report was taken from a lost memorandum of the answers of the insured, that the report did not in any way indicate the misrepresentations alleged by the agent in his testimony, and that the daily report differed from the applications attached to the other policies, made up from the same memorandum.
    Argued Nov. 13, 1908.
    Appeal, No. 153, Oct. T., 1908, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1904, No. 149, on verdict for plaintiff in case of H. N. Greiner, now to use of The Elizabethtown National Bank, v. Central Mutual Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Landis, P. J.,
    At the trial the defendant set up as a defense certain alleged misrepresentations as to the ownership of the property, and as to a previous fire.
    When Joseph Krause, the secretary of the defendant company at the time the policy was issued, testified as to such misrepresentation and in order to refresh his memory a paper designated as a daily report was produced and presented to the witness as follows:
    “ Q. Witness shown paper marked 'C. I. L. No. 32 ’ and asked whether or not that is the paper on which he reduced Greiner’s answer to writing.”
    Mr. Hensel: Objected to as immaterial.
    The Court: That is disallowed because if that is so then it is an application and is not attached to the policy.
    Defendant excepts. Bill of exceptions signed and sealed.

      The paper “C. I. L. No. 32” is as follows:
    “Daily Report from Elizabethtown, Pa., Agency: Policy No. 290291. Owner of Property. H. N. Greiner. Cancelled.
    “to
    “CENTRAL MUTUAL EIRE INSURANCE COMPANY
    “Principal office at No. 220, North Duke Street, Lancaster, Pa.
    “Residence of insured, Elizabethtown, Pa.
    “Commencement of Risk, February 4, 1904.
    “Term, Expiration, Perpetual.
    “Amount insured, $1000.
    “Rate.
    “Amount of Premium, $3.00.
    “Report every policy, Renewal, Certificate, Endorsement or
    “Entry, on the date it is made.
    “In the Sum of One Thousand Dollars as follows:
    “$900. On fixed and movable machinery and parts thereof, shafting, belting, pulleys and hangers, tools, implements, sewing machines, fixtures and furniture, and office furniture.
    “$100. On stock of shirts, trimmings, boxes, materials and supplies.
    “All while contained in two-story frame shingle roof building with basement and brick engine and boiler-house attached, occupied for shirt factory.
    “ Situated on north side of Bainbridge Street, Elizabethtown, Pa. Other concurrent insurance permitted.
    “Fire February 25, 1904.
    “AGENTS WILL PLEASE ANSWER ALL THESE QUESTIONS.
    “1. Material of building? Frame. Of roof? Shingle.
    ■ “2. When built? A few years. Is it in good repair? Good repair.
    “3. How many stories high? Two story and basement.
    “4. Heating and lighting? Steam heat, electric light.
    “5. Size? .... x ....
    “6. Does it stand on leased land? No. When will lease expire?
    “7. Are stoves, pipes, flues and chimneys secure? Yes.
    “8. Have you personally inspected the risk?... .When?....

      “9. How far is risk from agency? In agency.
    “ 10. What is the present cash value of building?
    “11. What is the present cash value of stock?
    “12. Is the property encumbered? If so, how? Amount?
    “13. How long has the assured resided in your place? A number of years.
    “ 14. Is assured doing a profitable business? Yes.
    “ 15. Does the assured keep merchandise and cash account?
    “16. Do you fully recommend both risk and assured? Yes.
    “ Occupancy: Basement, first story, second story, third story, fourth story. Shirt factory.
    “ Other insurance, State Companies, amount and rates, and if concurrent: $1500, Lawn; $1200, Safety; $1000, Commercial.
    “This Company has on or in the same building.
    “Pol. No.....for $. .. . Pol. No.....for $.... And at risk within 100 feet. Pol. No.....for $.... Pol. No.....for $.... Pol. No.....for $... .
    “EXPOSURES WITHIN a RADIUS OF 100 FEET.
    “North. South. East. West. Vacant.
    “Please make diagram stating character and purpose of buildings within radius of 500 feet. Red for bricks or stone. Blue for frames.
    “Jos. Krause, Agent.
    “ DO NOT WRITE BELOW THIS LINE.
    “At the foot, separated by a heavy black line, of the front or outside of the paper is the following obligation :
    “Policy No. 290291. Feb. 4, 1904.
    “For value received, and in consideration of a Policy of Insurance issued to me by the Central Mutual Fire Insurance Company, of even date I promise to pay to the said Company such sum or sums of money, and at such time or times as may be required by the Board of Directors for the purpose of paying losses and the necessary expenses of said Company, payable within thirty (30) days after notice at the Company’s office at Lancaster, Pa., or to any authorized agent. If not paid at the expiration of said notice, 10 per cent, may be added for costs of collection; or, at its option, the Company may declare the aforesaid Policy void without further notice to me.

      “ H. N. Greiner.
    “Witness: H. F. Shultz.”
    Verdict and judgment for plaintiff for $1,173.25. Defendant appealed.

      Error assigned was ruling on evidence, quoting the bill of exceptions.

      John A. Coyle, of Coyle & Keller, for appellant.
    If the witness had been allowed to examine his report, he could have answered the questions. Without that examination he was unable to answer it, and the material question, therefore, as to the insured’s ownership of the building, was not submitted to nor considered by the jury, and the appellant, therefore, was not able to show the material misrepresentation which by the terms of the policy would have avoided it: Bobb v. Clemson, 12 S. & R. 328; First National Bank of DuBois City v. First National Bank of Williamsport, 114 Pa. 1; Gilmore v. Wilson, 53 Pa. 194; King v. Faber & Co., 51 Pa. 387; Dodge v. Bache, 57 Pa. 421.

      W. U. Hensel, for appellee.
    October 11, 1909:
   Opinion by

Beaver, J.,

The agent of the defendant company issued to the plaintiff a policy of this and two other insurance companies at the same time. The agent was called as a witness for the defendant company, and when the question, “What statements or representations, if any, did he [plaintiff] make as to the ownership of the property at the building in which the machinery and contents were located?” it was objected to, the plaintiff’s counsel inquiring: “Q. Were those representations reduced to writing that you now speak of?” to which he replied, “His answers were reduced to writing,” and to the further question, “Q.- Were they reduced to writiug for this company?” the witness said, “ I must say the applications were taken for the three companies at the same time and written down at the same time.” The Court: “Q. Do you mean there was any answer written as an application for this policy in this particular company? A. As far as the application calls for.”

The three cases were tried together, the facts in the present case differing to some extent from the other two cases, in which there were regular written applications for the insurance.

In this case it appears that the so-called daily report was made by the agent to the company, the representations therein contained being made by him from the answers which were embodied in the other cases in regular applications, the daily report and the applications being made up, as the witness said, from the same paper, which he destroyed. The witness was asked to refresh his recollection as to what the answers of the insured were to certain questions and this, upon objection by the plaintiff, was refused, which refusal constitutes the only assignment of error.

The offer was brought about in this way: “Q. Witness shown paper marked C. I. L. No. 32 and asked whether or not that is the paper on which he reduced Greiner’s answers to writing. Objected to as immaterial. The Court: That is disallowed, because, if that is so, then it is an application and is not attached to the policy. (Defendant excepts. Bills of exceptions signed and sealed.)”

So far as we can gather from the questions asked the witness, the policy was proposed to be attacked upon two grounds: first, that the insured misrepresented the ownership of the building and that he made a false answer to the question as to whether or not he had ever had a fire previously to the time of the insurance. Although he was not allowed to refresh his recollection, he said, in answer to the question, “What, if anything, did he say with regard to the ownership of the building in which this machinery and contents were contained? A. He owned the building. Q. What did he say? A. At this time I couldn’t recollect. It is four years ago. I couldn’t recollect whether he said he owned the building or whether anybody else owned it, because at that time of taking the application I put the answer down to the question." Then occurs the offer to have the witness refresh his recollection from the so-called daily report.

In reference to the question of a previous fire, this is what occurred: “Q. What, if anything, did he say with regard to his having had a fire before or not? Mr. Hensel: I object to that. The Court: That is disallowed. He can ask what he stated at the time. (Defendant excepts. Bill of exceptions signed and sealed.) Q. What did he say about a previous fire? Mr. Hensel: That is objected to as leading. The Court: That is leading. It is suggestive. You can state just exactly what took place there at that time. Q. Did you or not ask him anything with regard to his having had a previous fire? A. In answer to the question, have you had fire before, he said, ‘No.’ Q. Did you or not ask him that question and what was his answer? A. I asked him, did you have a fire before? and he said, ‘ No.’ ”

If these were the material questions concerning which the defendant wished information, the witness answered them both, although he qualifies the first by a statement of a lack of recollection. As to the previous fire, however, the answer is definite, emphatic and repeated.

The original paper called the daily report, marked “C. I. L. No. 32” is before us, and it is a significant fact that there is no allusion whatever therein, either as to the ownership of the property, except the question, “Does it stand on leased land?” and the answer, “No,” or as to any interrogation or answer as to a previous fire. It is difficult to understand, therefore, how the witness could have refreshed his recollection from a paper which has no allusion specifically to either of the questions concerning which information was sought.

Whether the defendant seeks to avoid the provisions of the Act of May 11, 1881, P. L. 20, which provides: “That all life and fire insurance policies upon the lives or property of persons within this commonwealth, whether issued by companies organized under the laws of this state, or by foreign companies doing business therein, which contain any reference to the application of the insured or the constitution, by-laws or other rules of the company, either as forming part of the policy or contract between the parties thereto, or having any bearing on said contract, shall contain or have attached to said policies, correct copies of the application, as signed by the applicant, and the by-laws referred to, and, unless so attached and accompanying the policy, no such application, constitution or by-laws shall be received in evidence, in any controversy between the parties to, or interested in, the said policy, nor shall such application or by-laws be considered a part of the policy or contract between such parties," by the use of this daily report instead of a regular application such as was made in each of the other cases, we cannot determine. The result, however, is the same, whether intended or not. The agent took from the plaintiff, on a paper which the agent himself prepared, based upon the verbal answers of the plaintiff, a statement of the facts necessary to secure insurance. From this paper, he, the agent, made two applications in two other companies, signed by the plaintiff, and from the same paper made answer himself to the defendant company in what was called a daily report. Nothing purporting to be a copy of the answers of the insured, as made through the agent in this report, appears in the policy. If the answers of the agent in regard to the defendant's representations were taken as an application for the insurance, and the plaintiff (the insured) was to be held to their truthfulness, this was, as the court held, in a sense, an application for insurance, and should have been copied in the policy. The defendant secured answers from the witness to the questions propounded, although the force of one of them was subsequently affected by his lack of specific recollection in regard thereto. There was no necessity, therefore, for the witness to refresh his recollection from the paper offered for that purpose and, as already stated, an examination of the paper and the copy of it in the assignment of error shows that he would have acquired no information which could have refreshed his recollection in regard to the specific inquiries made.

It is to be remarked further that the paper from which the witness was asked to refresh his recollection was not the paper containing the answers of the plaintiff in regard to the ownership of the property and a previous fire; indeed, it was not even a copy of the paper containing the answers to the questions which the witness alleged he had propounded to the plaintiff and which were answered by him. Indeed, the original paper, from which the applications in the other two cases, which were tried with this, and from which the so-called daily report with which the witness was asked to refresh his recollection, were prepared, was destroyed, and a comparison of the daily report and the applications signed by the plaintiff shows that they differ from each other, the applications containing questions and answers which do not appear in the daily report, so that the latter was in no sense a copy of the paper which contained the memoranda upon which the applications in the other cases were based and which were alleged to be the basis of the daily report by which the witness was asked to refresh his recollection. Moreover, it does not appear when the daily report was made up from the contents of the original memorandum, which was destroyed. The witness’s recollection was to be refreshed by a paper which was to be the standard by which it was to be tried, but by what standard was the so-called daily report to be tried? It had been destroyed, and there was no evidence before the court that the daily report was a correct representation of the facts contained therein. It seems to us, therefore, that by all the authorities, the so-called daily report, differing as it does materially in the information contained therein from that which is contained in the applications in the other cases, was too remote and uncertain to serve as a memorandum by which the witness could be allowed to refresh his recollection.

From every point of view, therefore, we cannot see how the defendant was in any way injured by the refusal of the court to allow the so-called daily report to be used by the witness, as proposed by the defendant. Even if we should hold that the reason given by the court for refusing the offer was not a good one, the fact, nevertheless, remains that the offer of the defendant was properly refused.

Judgment affirmed.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Greiner to use v. The Safety Mutual Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Application—Copy of application — Evidence — Act of May 11, 1881, P. L. 20.
    In an action on a policy of fire insurance where it appears that the original application was not attached to the policy but what purported to be the application was copied therein, the application itself, and any questions relating to the answers in the application are properly excluded, where it appears that in the blank for a description of the property in the copy in the policy occurred the statement: “ Same as body of policy,” and that the only description of the property was upon a slip pasted on the policy.
    Argued Nov. 13,1908.
    Appeal, No. 155, Oct. T., 1908, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1904, No. 151, on verdict for plaintiff in case of H. N. Greiner to use of The Elizabethtown National Bank v. The Safety Mutual Fire Insurance Company.
    Before Rice, P. J., Porter,, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit upon a policy of fire insurance. Before Landis, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the defendant offered in evidence the original application.
    Mr. Hensel: That is objected to upon the ground'that an exact copy of it is not attached to the policy as it requires.
    Disallowed. Defendant excepts. Bill of exceptions signed and séaled. [1]
    Defendant desires to renew the application, offering it in evidence for the purpose of proving subsequently that said application was false in two particulars, both of which are exactly and correctly set forth in the application annexed to the policy — Question 3, By whom and for what purpose occupied? State fully. A. Applicant. Shirt factory.”
    And Question 9, “Have you ever suffered loss of property by fire? A. No.”

      To be followed by proof that both these answers were false, and the application would therefore vitiate and void the policy.
    Mr. Hensel: That is objected to for the reason that appears from an inspection of the purported copy of the application affixed to the policy, and the paper offered as the original application; that the copy affixed to the policy is not a correct copy as signed by the applicant and required by the act of assembly.
    The Court: Disallowed. We think it forms no part of the policy and therefore cannot be used.
    Defendant excepts. Bill of exceptions signed and sealed. [2]
    Verdict and judgment for plaintiff for SI,235. Defendant appealed.

      Errors assigned were (1, 2) ruling on evidence, quoting the bill of exceptions.

      John A. Coyle, of Coyle & Keller, for appellant, cited:
    Morris v. Life Assurance Co., 183 Pa. 563; Collier v. Collier, 49 N. E. Repr. 1063; Wiley v. Forsee, 6 Black. (Ind.) 246; Yeager v. Davis, 13 N. E. Repr. 707; Gordon v. South Fork Canal Co., 10 Fed. Cases, 817; Timothy v. Chambers, 11 S. E. Repr. 598.

      W. U. Hensel, for appellee, cited:
    Susquehanna Mut. Fire Ins. Co. v. Hallock, 22 W. N. C. 151; Hebb v. Ins. Co., 138 Pa. 174; Pfaltzgraff v. Ins. Co., 10 York, 57; Dickinson v. Ancient Order of United Workmen, 159 Pa. 258; Morris v. Ins. Co., 183 Pa. 563; Acme Co. v. Reed, 181 Pa. 382; Lee, Holland & Co. v. Cooper, 8 Pa. C. C. Rep. 481; Lenox v. Greenwich Ins. Co. of N. Y., 165 Pa. 575; Fisher v. Fidelity Mut. Life Assn., 188 Pa. 1; Imp. Fire Ins. Co. v. Dunham, 117 Pa. 460.
    February 26, 1909:
   Opinion by

Beaver, J.,

This case, with another in which an opinion will follow (post, p. 391), was tried at the same time with Greiner, use of, v. Central Mutual Fire Ins. Co., in which an opinion has been this day filed, ante, p. 379. This case differs from the previous one, in that there was a regular written application, which purports to be copied in the policy. The original application was twice offered in evidence, the offer in both instances being rejected. In the first instance, the offer was made without giving any specific reason. The second time this was the offer: “Defendant desires to renew the application, offering it in evidence for the purpose of proving subsequently that said application was false in two particulars, both of which are exactly and correctly set forth in the application annexed to the policy: Question 3, By whom and for what purposes occupied? State fully. -Answer, applicant; shirt factory. And Question 9, Have you ever suffered loss of property by fire? Answer, No. To be followed by proof that both these answers were false, and the application would therefore vitiate and void the policy.” Upon objection, the court said, “Disallowed. We think it forms no part of the policy, and therefore cannot be used.”

In the application, as copied in the policy, in the blank for a description of the property, occurs this statement: “Same as body of policy.” In the policy the description of the property upon which the insurance was effected is contained upon a slip pasted thereon. There is no description of the property in the body of the policy, except as contained upon this pasted slip. Hence the importance of the description of the property in the copy, as contained in the application.

The court rejected both offers on the ground that they were not a compliance with the provisions of the Act of May 11,1881, P. L. 20, which requires that in such case the policy shall contain, or have attached thereto, correct copies of the application, as signed by the applicant.

It requires but a glimpse at the copy of the paper, purporting to be a copy of the application, as made to the defendant company, by the plaintiff, to reach the conclusion that this is not only not a correct copy but is not a copy at all. One essential part of the application is the property to be insured. Instead of describing it, it says, “Same as body of policy.” When the policy is referred to, there is no description in the body of the policy, but the same is contained upon a detached bit of paper, typewritten, which is pasted to the policy. When the offer was first made, therefore, in general terms, we think it was properly excluded by the court. See Morris v. State Mutual Life Assurance Co., 183 Pa. 563; Zimmer v. Central Accident Insurance Co., 207 Pa. 472; Moore v. Bestline, 23 Pa. Superior Ct. 6.

As to the second offer, although confined to the answers by the plaintiff to two specific questions, which the defendant proposed in the second offer to show were false, we cannot see that the mere fact that these particular questions and the answers thereto were correctly stated in the so-called copy of the application, in any way strengthened the offer. The evident intent and plain meaning of the act of assembly is to require a correct copy of the application, taken as a whole, to be attached to the policy, so as to give the insured complete notice of his application and enable him, if it is in any respect incorrect, to take steps to have it corrected. We are all of the opinion that the writing upon the policy, purporting to be a copy of the application, is not a correct copy thereof, within the meaning of the act of assembly, and that, therefore, the court in both instances was correct in refusing to allow the original to be offered in evidence.

As already stated, this case was tried with Greiner, use of, v. The Safety Mutual Fire Ins. Co., ante, p. 379, in which the defendant secured answers from the agent as to the representations made by the plaintiff in his application, both as to the ownership of the property and previous fire.

The appellee argues that the appellant secured the benefit of misstatements in the application by this testimony, but we do not so understand it. Both the cases were tried together, and the court in the charge indicated the applicability of the testimony to the several cases, so that the jury could distinguish between them. Although this fact might have influenced the jury, if any question had been submitted to them in this case; we do not see that this was at all necessary, inasmuch as, with the application properly shut out from their consideration, there was nothing upon which they could predicate falsity on the part of the plaintiff’s application and, therefore, invalidity of the insurance.

Being satisfied that the court correctly refused the defendant’s offer of the original application, there is nothing in the case which could properly affect the verdict of the jury and the judgment entered thereon.

Judgment affirmed.


text:
    Greiner to use v. The Commercial Mutual Fire Insurance Company, Appellant.
    Argued Nov. 13,1908.
    Appeal, No. 154, Oct. T., 1908, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1904, No. 150, on verdict for plaintiff in case of H. N. Greiner, now to use of The Elizabethtown National Bank, v. The Commercial Mutual Fire Insurance Company of Lebanon, Pa.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    February 26, 1909:
   Opinion by

Beaver, J.,

In this case is the following stipulation: “ This case was tried at the same time with the case of Greiner v. The Safety Mutual Fire Insurance Co. (October Term, 1908, No. 155). The same assignments of error have been filed as in that case, and it is hereby stipulated, that the same order which will be entered in the case of H. N. Greiner, now the use of the Elizabethtown National Bank, Plaintiff and Appellee, v. The Safety Mutual Fire Insurance Co., of Lebanon, Pa., Defendant and Appellant (October Term, 1908, No. 155), shall be entered in this case."

An opinion in Greiner v. The Safety Mutual Fire Ins. Co., No. 155, October Term, 1908, has this day been filed ante, p. 387. For the reasons therein stated, the same judgment is entered herein.

Judgment affirmed.


author: Orlady, J.,

text:
    Mikesell, Appellant, v. Mikesell.

      Beneficial associations — Beneficiaries—Right to death benefits — Foreign corporation — Foreign statute — Interpleader.
    1. Where a foreign beneficial association pays death benefits into court iri an interpleader for the use of such party as the law shall declare to be entitled to the benefits, it is an essential rule to look to the law of the state where the beneficial society was created, and to read it into the contract, in determining the validity of the designation of the beneficiary in the beneficial certificate.
    2. Under the Ohio statute relating to beneficial associations it is provided that “beneficiaries who take death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife, or to a person or persons dependent on the member.” A member directed the certificate for death benefits to be made payable to a woman named as his wife, “or his legal heirs.” After the death of the member the association discovered for the first time that the woman named as beneficiary although she had lived with the member apparently as his wife, was in fact the undivorced wife of another man then living. The member's father was his legal heir. The association paid the fund into court in an interpleader proceeding. Held, that the father and not the alleged wife was entitled to the fund.
    Argued April 28, 1909.
    Appeal, No. 178, April T., 1909, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 554, for defendant on case tried by the court without a jury in suit of Ada B. Mikesell v. George A. Mikesell.
    Before Bice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Feigned issue and interpleader to determine right to death benefits.
    The case was tried by Cohen, J., under the Act of April 22, 1874, P. L. 108.
    The court entered judgment for defendant on feigned issue.

      Error assigned was in entering judgment for defendant on the feigned issue.

      Horace J. Miller, for appellant.
    Only the' beneficiary designated in the policy has standing to claim death benefits; if the designated beneficiary cannot take, the benefit lapses: Solis v. Blank, 199 Pa. 600; Hamill v. Supreme Council of Royal Arcanum, 152 Pa. 537; Beers v. Robinson, 9 Pa. 229; Hind v. Holdship, 2 Watts, 104; Kountz v. Holthouse, 85 Pa. 235; Adams v. Kuehn, 119 Pa. 76; Delp v. Brewing Co., 123 Pa. 42.
    The association having paid the fund in controversy into court, in the common domicile of the claimants for adjudication, the question depends not upon whether the- lex fori or the lex loci should prevail, upon the construction of the policy itself under which the parties claim: Brown's App., 125 Pa. 303; Com. v. National Mut. Aid Assn., 94 Pa. 481; Hamilton v. Ins. Co., 5 Pa. 339; Equitable Life Assurance Society v. Clements, 140 U. S. 226 (11 Sup. Ct. Repr. 882); National Mut. Aid Society v. Lupold, 101 Pa. 111.
    Although the beneficiary designated in the policy is the only person who can claim death benefits, yet in this case, as between the designated beneficiary and the association, the right is defeasible: Smith v. B. & O. R. R. Co., 81 Md. 412. (32 Atl. Repr. 181).
    The right to defeat the claim of Ada B. Mikesell belongs only to the association, and it can waive its right. Payment of the money into court constitutes a complete waiver of the fraud and of the noncompliance with the regulations: Brown's App., 125 Pa. 303; Johnson v. Knights of Honor, 53 Ark. 255 (13 S. W. Repr. 794); Maguire v. Supreme Council, 59 App. Div. 143; Markey v. Supreme Council, 74 N. Y. Supp. 1069; Bacon v. Charlton, 61 Mass. 581; Dyer v. Ashton, 1 B. & C. 4; Huntington v. American Bank, 23 Mass. 340; White v. Turner, 217 Pa. 25; Taylor v. Hair, 112 Fed. Repr. 913.

      Ernest C. Irwin, with him Watson & Freeman, for appellee.
    The law of the state where a beneficial organization is incorporated must be read in connection with and as a part of the contract ; and in deciding who is a proper beneficiary, we must look to the constitution and by-laws of the association and interpret them by the statutes under which the association had its origin: Harton's Est., 213 Pa. 499; Masonic Aid Assn. v. Jones, 154 Pa. 99; Parke v. Welch, 33 Ill. App. 188; American Legion of Honor v. Perry, 140 Mass. 580; Supreme Lodge Knights of Honor v. Nairn, 60 Mich. 44 (26 N. W. Repr. 826); Rose v. Wilkins, 78 Miss. 401 (29 So. Repr. 397); Masonic Benevolent Assn. v. Bunch, 109 Mo. 560 (19 S. W. Repr. 25).
    The decision of the Ohio courts puts the question out of doubt that one who sustains no relation to a deceased member other than that of mistress has no right to the fund which the insurance company admits to be due: State v. Relief Assn., 29 Ohio, 399; State v. Standard Life Assn., 38 Ohio, 281; State v. People’s Mut. Benefit Assn., 42 Ohio, 579.
    Where the beneficiaries are limited to a certain class and a member goes outside of the designated class and names someone not entitled to take, the benefits will be paid to the persons within the prescribed class and not to the person improperly named as beneficiary: Fodell v. Miller, 193 Pa. 570; Harton’s Est., 213 Pa. 499; Burst v. Weisenborn, 1 Pa. Superior Ct. 276.
    The payment of the money into court on an interpleader by the beneficial association was not an acknowledgment of the right of the plaintiff to recover: B. & O. R. R. Co. v. Veltri, 37 Pa. Superior Ct. 399; Keener v. Grand Lodge A. O. U. W., 38 Mo. App. 543.
    The certificate is not made payable to plaintiff only, but to her or the lawful heirs of the deceased. Since she is not competent to take, the alternative provision operates, and the lawful heir of the deceased, that is, the defendant, is entitled.
    July 14, 1909:
   Opinion by

Orlady, J.,

John B. Mikesell was, at the time of his death, a member in good standing of the Locomotive Engineers Mutual Life and Accident Insurance Company, a corporation regularly incorporated under the provisions of secs. 3631-16 of the annotated statutes of Ohio. Its declared object being “to transact a business of life and accident insurance on the assessment plan, for the purpose of mutual protection and relief of its members; and for the payment to the family, heirs, relatives by blood, marriage or lawful adoption, affianced wife, or to person or persons dependent upon the member of said association.”

At the time of the death of John B. Mikesell, which occurred March 13, 1907, the policy in suit, which was in the sum of $1,500, became due and payable by its very terms. Ada B. Mikesell was named as beneficiary, and is therein designated, as the wife of John B. Mikesell. On July 3, 1907, she brought an action of assumpsit against the association based upon this insurance policy, and on August 2, 1907, a petition was presented on behalf of the association, and a rule was granted on the plaintiff to show cause why she and George A. Mikesell should not interplead, as to the subject-matter of the action, and why the insurance company, defendant, should not have leave to pay the money or fund into court. This rule was finally made absolute, and by direction of the court, Ada B. Mikesell and George A. Mikesell having appeared in answer to the rule, and the court having fully considered the case, it was ordered that Ada B. Mikesell and George A. Mikesell interplead and that the insurance association have leave to pay the money into court, and further it was ordered that a feigned issue be awarded, in which Ada B. Mikesell .should be plaintiff, and George A. Mikesell the defendant to determine the right of property in said fund.

When the case was called for trial, the parties agreed in writing to waive a trial by jury, and to have it heard by the judge of the court, under the act of assembly in such case made and provided. Certain facts were submitted as being agreed to and no oral testimony was offered. Among the important ones were the following, in addition to those above stated; 5. That the said John B. Mikesell was never married; that his mother is dead; that George A. Mikesell is the father of said John B. Mikesell. 6. That Ada B. Mikesell never was the wife of John B. Mikesell, either by marriage performed or by common law marriage, and that she was at the time of the death of John B. Mikesell, and at all times while living with him, the lawful, undivorced wife of another man then living. 7. It is further agreed, that the insurance company did not know at the time the policy was issued that Ada B. Mikesell was not the wife of John B. Mikesell, but became cognizant of the fact for the first time, when the interpleader was asked for and the money paid into court.

After hearing, the court below ordered, and directed that the fund in court, less the legal costs of the prothonotary, be paid to the defendant in the case, George A. Mikesell, and entered a judgment in his favor therefor.

The designation of Ada B. Mikesell as wife, was a violation of the fundamental laws and rules of the insurance company, and could only have resulted through a fraud perpetrated on it. While the association is not a party to this issue, it having paid into court the amount admitted to be due on the certificate of membership, for the use of such party as the law shall declare to be entitled to it, it is an essential rule to look to the law of the state where the beneficial society was created and to read it into the contract, in determining the validity of the designation in the beneficial certificate. This rule has been followed in Parke v. Welch, 132 Ill. App. 188; American Legion of Honor v. Perry, 140 Mass. 580; Supreme Lodge v. Nairn, 60 Mich. 44; Rose v. Wilkins, 78 Miss. 401; Masonic Benevolent Assn. v. Bunch, 109 Mo. 560; and in our own state, in Masonic Aid Assn. v. Jones, 154 Pa. 99; Fodell v. Miller, 193 Pa. 570; Harton’s Est., 213 Pa. 499. In this last case the court states that it is clear the object of the assured was to conceal the real nature of the transaction, in the belief that a full disclosure of it would result in a refusal of the company to sanction it. The relation between Hartón and the association was contractual, and the contract is to be interpreted in the light of conditions existing when it was entered into. The association was a beneficial society organized under the laws of the state of Ohio. The act authorizing associations of this character expressly indicated the purposes and objects of the same, and to this extent places a limitation upon their powers and privileges. The purpose and objects as expressed by the act are for the mutual protection and relief of the members, and for the payment (as in this case) to the family, heirs, relatives by blood, marriage or legal adoption, affianced wife or to a person or persons dependent upon the member of said association, stipulated amounts, etc.

The Ohio statute in regard to beneficiaries entitled to take, reads as follows: “Beneficiaries who take death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife, or to a person or persons dependent on the member,” 2 Bates’s Anno. Stat., 2004, and, printed on the back of the constitution and statute of the association, of which John B. Mikesell was a member, it is declared, “Beneficiaries must be limited to the classes named in sec. 1 of the by-laws, which is a verbatim copy of the laws of Ohio, under which we are incorporated.”

A special designation may be invalid, but the benefit will not lapse. Naming a person outside of any class is the same in legal effect as selecting no particular person, and when the fund is payable to one of the classes named by the association it must go to the person of the class for whom it was created, for the reason that it is not in the power of the member to divert it to a person not within the specified class. The wording of the certificate in this case is as follows “All payments or benefits that may accrue or become due by virtue of this policy will be payable to Mrs. Ada B. Mikesell, wife, or his legal heirs.” The plain meaning of which is, that if Ada B. Mikesell should be dead or incapacitated for any reason whatever, then the money should go to the legal heir or heirs of the deceased. Inasmuch as she is incompetent to take, by reason of not being in any of the classes suggested, and is not the wife of John B. Mikesell, but admittedly the wife of another man, the alternative provision operates, and the lawful heir of the deceased, that is, the father as the legal heir, is entitled to the fund. The certificate as plainly directs payment to him in case Ada B. Mikesell is not entitled to take, as if his name had been mentioned in it.

The appellant, however, contends, independent of this phase of the case, that the right to defeat the claim of Ada B. Mike-sell can be asserted only by the association, and that the payment of the money into court constituted a complete waiver of fraud and noncompliance with the regulations. The question was before the court in B. & O. R. R. Co. v. Veltri, 37 Pa. Superior Ct. 399, in which we held that the fund was properly in court to be distributed in accordance with the law. In Brown’s App., 125 Pa. 303, the principle was announced that where a company comes into this state and pays money into court for the benefit of the parties entitled to it, and both parties claiming it are residents of this commonwealth, the fund being in the possession of the court of common domicile, the construction of the contract under which both parties claim, is to determine the distribution of the fund.

In Hall v. Blackburn, 173 Pa. 310, in referring to the effect to be given the payment of money into court, it was argued that it was an acknowledgment of the plaintiff’s right of action, but it was held that whatever may have been the legal consequences of such payment in ancient pleading, no such effect as is claimed here is given it, as is said by Sharswood, J., in Elliott v. Ins. Co., 66 Pa. 22. It waives the benefit of no defense, even if such defense be to the whole. It seems, therefore, that after the payment of money into court, there may be nonsuit, a judgment as in case of nonsuit, a demurrer to evidence, or a plea of puis darrein continuance, in short, that the cause goes on substantially in the same manner as if the money had not been paid in at all; in other words, the defendant is not precluded by it from taking a defense which goes to the whole cause of action.

In White v. Turner, 217 Pa. 25, a feigned issue was framed to determine the right to a fund in court, where a number of preferences were alleged, and the Supreme Court held, “The board by payment into court declined to raise them, and the appellant is not in position to do so. And the evidence as to litigation against the school board was irrelevant for the same reason. At the trial, therefore, there was nothing but the alleged illegal preference. That depended on whether the contractors were insolvent when they gave the order, and whether plaintiff knew it at that time.” In Penna. R. R. Co. v. Wolfe, 203 Pa. 269, a member of a relief association designated his wife as beneficiary, but her death occurring close after, he substituted his sister, and her name was put into the certificate as such under the rules of the association. Soon thereafter he married a second time, and left to survive bim a widow, who claimed to be the beneficiary of the fund payable according to the rules of the relief association. In this case the money was paid into court, and an issue was framed between the sister and widow to determine their rights to it. It was ascertained on the trial, that prior to his marriage to the widow, the claimant, had informed her of his relief insurance, and that upon the death of his first wife he had her name as beneficiary changed to that of his sister, and, that upon their marriage he would have her, Emma E. Wolfe, made beneficiary instead of his sister, and further that this was one of the considerations upon which the said Emma E. Wolfe agreed to become the wife of said Wolfe; that after the marriage he repeatedly promised to have her made the beneficiary in pursuance to this agreement before their marriage. The fund was awarded to the widow, for the reason that the moment the marriage contract was completed, the wife had an equitable claim to the certificate or to the benefit it represented, and when she married him she had a vested right in the benefit, a right not dependent on his will or whim, but one no longer in his power as between him and her, to confer or withdraw; she could not take back the consideration she gave; he could not give it back to her; he could only formally transfer to her that which by the consummation of the contract was hers. He ought, in form, the day of the marriage or immediately after to have done that. Equity will now treat that as done which ought to have been done: Broadrick v. Broadrick, 25 Pa. Superior Ct. 225.

In Barner v. Lyter, 31 Pa. Superior Ct. 435, this court stated, “Without undertaking to establish a general rule, that will apply to all cases, we think it safe to say that where the provision, as to such formalities is exclusively for the benefit of the company, and the company waiving its right to raise the objection, takes the position of a stakeholder, such noncompliance is not necessarily fatal in the claim of the new beneficiary in an: issue between him and the original beneficiary, who was a mere volunteer.”

In strict law, the right to the fund is in the beneficiary, and in this case, Ada B. Mikesell, falsely designated as wife, is not' entitled to take by reason of her not being in any of the classes designated as proper in the certificate; hence the other provision becomes operative, and George B. Mikesell, the father, is entitled, as was found by the court below.

The assignment of error is overruled. The judgment is affirmed.


text:
    Clewer v. Shields, Appellant.

      Deed, — Husband and wife — Acknowledgment—Defective , acknowledgment — Act of February 24, 1770, sec. 2, 1 Sm. L. 307.
    The certificate of acknowledgment of a deed of a wife's real estate recited that there came before the notary “the above named .... and acknowledged the foregoing indenture to be their act and deed and desired the same to be recorded as such.'' The certificate also recited that the wife had been “examined separate and apart from her said husband .... without any coercion or compulsion of her said husband. ” Held, that the certificate showed on its face that the husband had acknowledged the deed, and that the deed passed a good title as to his interest in the property conveyed.
    Argued April 29, 1909.
    Appeal, No. 182, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1904, No. 844, on verdict for plaintiff in case of William H. Clewer v. Daniel Shields.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover back money paid under articles of sale of real estate. Before Shaper, J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $134.50. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Denis E. Behen, for appellant.
    The description of the grantors is sufficiently certain, if their identity can be worked out through, and by reference to the conveyances and certificates of acknowledgment thereto, the identity of the parties being clearly shown by reference the one to the other, and this, on the maxim, Id certum est quod certum reddi potest: Madden v. Floyd, 69 Ala. 221; Frederick v. Wilcox, 119 Ala. 355.

      J. F. Calhoun, for appellee, cited:
    Cressona Saving Fund, etc., Assn. v. Sowers, 134 Pa. 354; Myers v. Boyd, 96 Pa. 427.
    July 14, 1909:
   Opinion by

Beaver, J.,

By an agreement in writing, dated February 9, 1903, the defendant covenanted to convey to the plaintiff a certain lot, therein described, for the consideration of $950, $100 of the purchase money being paid and the receipt thereof acknowledged at the time. The agreement contained this covenant: “If said title is not good and marketable, said Shields agrees to make same good or money to be refunded.” As set forth in the plaintiff’s statement and affidavit of claim, which'was in evidence and is not denied, “Plaintiff had the title examined and is informed and believes that the same is not good and marketable. That among other defects in the chain of said title, in the deed of Elizabeth Bell and John S. Bell, her husband, to The McKeesport & Wilmerding Land Company, dated May 6, 1897, recorded in the recorder’s office of Allegheny county in Deed Book, vol. 968, p. 272, the certificate of the notary fails to show or cite that John S. Bell appeared before him or acknowledged the deed at all.”

As an exhibit to the affidavit of defense, the acknowledgment referred to is set forth at length and is as follows: "Commonwealth of Pennsylvania. Allegheny County ss. On this sixth day of May, A. D. 1897, before me, a Notary Public in and for said County, came the above named--and acknowledged the foregoing indenture to be their act and deed and desired the same to be recorded as such. And the said Elizabeth Bell being of full age and by me examined separate and apart from her said husband and the contents of said indenture being first made fully known to her, declared that she did voluntarily and of her own free will and accord sign and seal and as her act and deed deliver the same, without any coercion or compulsion of her said husband. Witness my hand and notarial seal the day and year aforesaid. George M. McCleary, Notary Public. (N. P. seal.)”

On the trial in the court below, the defendant moved for binding instructions, which were refused, and, on the contrary, binding instructions were given for the plaintiff. The refusal of binding instructions for the defendant and those in favor of the plaintiff are the only assignments of error before us.

In the opinion of the court below, discharging the rule for judgment, non obstante veredicto, the deed with the alleged defective acknowledgment is spoken of as the deed of John S. Bell and Elizabeth Bell, his wife, but in the statement of claim this deed is referred to as that of Elizabeth Bell and John S. Bell, her husband, and, as the statement was in evidence and this fact is not denied and inasmuch as it seems to have been taken for granted during the trial that the property conveyed by this deed was that of the wife, Elizabeth Bell, it seems to us that the acknowledgment is subject to the provisions of the Act of February 24, 1770, sec. 2, 1 Sm. L. 307, Stewart's Purdon, 1151, PL 24. This section is as follows: “And, in order to establish a mode by which husband and wife may hereafter convey the estate of the wife, be it enacted, That where any husband and wife shall hereafter incline to dispose of and convey the estate of the wife or her right of, in or to any lands, tenements or hereditaments whatsoever, it shall and may be lawful to and for the said husband and wife to make, seal, deliver and execute any grant, bargain and sale, lease, release, feoffment, deed, conveyance or assurance in the law whatsoever for the lands, tenements and hereditaments, intended to be by them passed and conveyed, and, after such execution, to appear before one of the Judges of the Supreme Court of before any Justice of the County Court of Common Pleas of and for the county where such lands, tenements or hereditaments shall lie, and to acknowledge the said deed or conveyance; which Judge or Justice shall, and he is hereby authorized and required to take such acknowledgment, in doing whereof he shall examine the wife separate and apart from her husband, and shall read, or otherwise make known, the full contents of such deed or conveyance to the said wife; and if, upon such separate examination, she shall declare that she did voluntarily, and of her own free will and accord, seal and as her act and deed, deliver the said deed or conveyance, without any coercion or compulsion of her said husband, every such deed or conveyance shall be, and the same is hereby declared to be, good and valid in law, to all intents and purposes, as if the said wife had been sole, and not covert at the time of such sealing and delivery, any law, usage and custom, to the contrary in anywise notwithstanding.”

The second section of the Act of August 10, 1864, P. L. 962, declared “That each notary public of this commonwealth shall have power .... to take and receive the acknowledgment or proof, of all deeds, etc.; and also power to take and receive the separate examination of any feme covert touching, or concerning her right of dower, etc., as fully, to all intents and purposes whatsoever, as any judge of the Supreme Court or president or associate judge of any of the courts of common pleas, or any alderman or justice of the peace within this commonwealth.”

The deed to which the acknowledgment was alleged to be defective does not seem to have been given in evidence and is certainly not printed in the appellant’s paper-book, but the statement of claim, so far as the facts not denied in the affidavit of defense were concerned, was given in evidence. The plaintiff also offered in evidence “Exhibit A to the affidavit of defense, relative to the alleged defective acknowledgment, and calls attention to the facts that the parties are not named in the fore part of the acknowledgment.”

Giving full effect, therefore, to the contents of the statement of claim and affidavit of defense, it seems to be clear that the deed in question was that of Elizabeth Bell and John S. Bell, her husband. That the deed was acknowledged by more than one person seems to be settled by the language of the acknowledgment, which is, that “The above named -acknowledged the foregoing indenture to be their act and deed.” The acknowledgment also is explicit that Elizabeth Bell was examined separate and apart from her said husband, and this it seems to us makes it clear that, if the deed were the act of more than one person, Elizabeth Bell and her husband were the persons who “acknowledged the foregoing indenture to be their act and deed.” If “that is sufficiently certain which can -be made certain,” Broom’s Legal Maxims, 623, we cannot see that the omission of the names of the grantors in the first part of the alleged defective acknowledgment can affect its validity, for if the deed were giveh by more than one person and Elizabeth Bell was one of the persons, as is clearly apparent from the acknowledgment, her “said husband” must have been the other person who made the acknowledgment.

This case is not ruled by Myers v. Boyd, 96 Pa. 427. The question in that case was whether or not a mortgage, containing the certificate “Subscribed and acknowledged before me this 8th day of July, 1872,” was entitled to record, so as to give notice to a purchaser at sheriff’s sale. Mr. Justice Green, who delivered the opinion of the court, said: “A mere inspection of this certificate shows that it is entirely destitute of the chief ingredients essential to constitute a valid acknowledgment. It does not state that the grantor appeared before the officer, though the statute positively requires the personal presence of the grantor before the person who is to take the acknowledgment. It does not state that either the grantor or anyone else made an acknowledgment of any kind of the instrument in question, although the statute distinctly directs that the officer shall certify 'by whom’ the acknowledgment was made.”

There is here a distinct statement that more than one person acknowledged the deed and that one of the grantors was Elizabeth Bell, who was examined separate and apart from her “said husband,” who is thereby clearly designated as the other grantor who is named in the deed. In every respect, save the fact that the blank in the acknowledgment left for the names of the parties acknowledging the deed in the first place is not filled, the acknowledgment is complete under the act of 1770, first above referred to, and, inasmuch as the subsequent part of the acknowledgment makes it certain that the person whose property was conveyed was present and acknowledged the deed to be her act and deed, and the further fact that more than one person made the acknowledgment, and “said husband” makes it certain that the other person who made the acknowledgment was John S. Bell, the husband of Elizabeth Bell, it seems to us that the acknowledgment is of itself a compliance with the act of 1770. It is not necessary, therefore, to invoke the curative acts of May 6,1899, P. L. 257, and May 2, 1901, P. L. 126. The defendant’s point should, therefore, have been affirmed and a verdict directed for the defendant.

Judgment is, therefore, reversed and a judgment now entered for the defendant non obstante veredicto.


author: Morrison, J.,

text:
    Cameron v. Russell, Appellant.

      Practice, C. P. — New trial — Laches—Equitable relief.

    1. Where a court sets aside a verdict and judgment and grants a new trial, it is in the exercise of equitable power, although it may be applied in a case tried on the law side of the court.
    2. The court below will not be reversed for the refusal to set aside a verdict and grant a new trial, except for manifest error, or abuse of discretion.
    3. The defendant in an action of trespass for assault and battery will not be granted a new trial seven months after judgment was entered against him, where he alleges in his application that the plaintiff and his witness swore falsely to a material fact, but the court finds upon investigation that it would not have taken more than a day to ascertain the falseness of the testimony immediately after the judgment was entered.
    Argued April 30, 1909.
    Appeal, No. 44, April T., 1909, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1904, No. 343, refusing new trial in case of James Ii. Cameron v. George Russell.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule for new trial.
    The opinion of the Superior Court states the case.

      Error assigned was refusing new trial.

      W. C. Gill, with him Diamond & Zacharias, for appellant.
    Defendant’s petition, supported by affidavits, was an appeal to the equitable jurisdiction of the court and appellant contends that in view of the positive proof of plaintiff’s fraud upon the court, in giving such false testimony, the court’s refusal to grant a new trial was an abuse of the discretion vested in it for that purpose: Fisher v. Ry. Co., 185 Pa. 602; Gazzam v. Reading, 202 Pa. 231.

      L. K. Porter, for appellee, filed no printed brief.
    July, 14, 1909:
   Opinion by

Morrison, J.,

This was an action in trespass to recover damages caused by an alleged assault and battery by defendant on the plaintiff. On the trial of the case before the jury a verdict was rendered in favor of the plaintiff for $300 on September 18, 1907. On September 21, 1907, the defendant moved for a new trial, and on argument of this motion, a new trial was refused. On December 5, 1907, judgment was entered on the verdict and defendant took an appeal to the Superior Court which was subsequently abandoned. On April 11, 1908, the defendant presented a petition averring in substance that on the trial of the case the plaintiff and his step-daughter, called as a witness in his behalf, testified falsely to a matter which they knew to be false at the time and which was material to the issue, and which was not in defendant’s power, at the time of trial, to contradict, and that he did not learn of said testimony being false until a considerable length of time after the case had been tried. The false testimony was that plaintiff had been attended for the injuries claimed to have been inflicted on him by defendant, on the night the trouble occurred, December 24, 1903, by a Dr. Burlingame of McKeesport. The stepdaughter testified that the physician attended plaintiff several times. The defendant, by his petition and affidavits in support thereof, and by the widow of Dr. Burlingame, and by O. M. Hunter, the undertaker who buried him, showed that Dr. Burlingame died on November 21, 1903, more than a month before the alleged assault and battery occurred. A rule having been granted by the court on plaintiff to show cause why the verdict and judgment should not be set aside and a new trial granted, he filed an answer in which he set forth that he was mistaken in the name of the physician who attended him on the night the trouble occurred; that it was a Dr. Charles Black, instead of Dr. Burlingame. The court below, however, with these facts before it, refused defendant’s motion for a new trial on account of his laches.

We thus have verdict rendered on September 18, 1907, motion for a new trial on the twenty-first of the same month and this motion argued November 4, 1907, and a new trial refused, and an appeal promptly taken to the Superior Court which was abandoned. The case then rested about seven months from the date of the verdict and four months from the entry of judgment, when the present petition was presented on April 11, 1908. No reasonable excuse is given for defendant’s failure to ascertain the alleged falsity of the testimony for about seven months after the trial. The testimony was that Dr. Burlingame was of McKeesport and it appears that there was only one doctor of that name practicing in McKeesport at that time. It would have required but a very slight effort on the part of the defendant or his counsel to have ascertained in one day’s time whether Dr. Burlingame was dead or alive on December 24, 1903. But it seems to have taken the defendant about seven months to ascertain that fact, or if he ascertained it before, he did not think it worth while to promptly inform the court of the alleged false and fraudulent testimony put before the jury by the plaintiff at the trial.

The learned counsel for appellant cite and rely on two cases in support of their motion. The first is Fisher v. Railway Co., 185 Pa. 602. That case recognizes the power of the court to set aside a judgment and verdict for exceptional reasons after expiration of the term at which the judgment was entered. But such power by the court ought to be exercised with prudence and the reason should appear of record. The other case is Gazzam v. Reading, 202 Pa. 231. In that case the Supreme Court said: “A court of equity will never move, to merely save a party from the consequences of his own laches or negligence. The equity of the complainant must be free from doubt. The result, a judgment reached by litigation, should, unless clearly unjust, be an end of strife. Every suitor in a dispute involving life, liberty, property or reputation is entitled by right to one trial, but not to two; and if he gets more than one, it is of grace, not because of a fundamental right.” The cases make it clear that where a court sets aside a verdict and judgment and grants a new trial, it is in the exercise of equitable power although it may be applied in a case tried on the law side of the court.

It has been often decided, both by the Supreme Court and by this court, that a court below will not be reversed for the refusal to set aside even a verdict and grant a new trial, except for manifest error, or an abuse of discretion.

In the present case, in view of the long lapse of time after the trial and judgment, before the petition was presented to the court, we cannot say that the court erred in holding that the defendant was not entitled to the relief prayed for on account of his own laches.

The judgment is affirmed and the appeal is dismissed at the costs of the appellant.


text:
    Floto v. Christner, Appellant.

      Judgment — Opening judgment — Judgment note — Evidence.
    Where one of two defendants in a judgment entered on a judgment note seeks to have the judgment opened as to himself on the ground that he was not in fact a principal, but only a joint obligor or surety, he must establish his claim by evidence that is clear, precise and indubitable, and if he fails to do so and the plaintiff in his answer denies all of averments in the petition to open, the court commits no error in refusing to open the judgment.
    Argued May 6, 1909.
    Appeal, No. 82, April T., 1909, by defendant, from order of C. P. Somerset Co., May T., 1903, No. 61, discharging rule to open judgment in case of E. R. Floto, Cashier, use of M. Christner use of C. W. Walker, v. Wilson Christner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    Kooser, P. J., filed the following opinion:
    The judgment note upon which said judgment was entered was executed February 3, 1903, payable in “five” — (conceded to be five days). Judgment was entered thereon for use of M. Christner, upon payee's assignment to him, against Wilson Christner, March 17, 1903. The petition to open the judgment was not presented until February 15,1908, the petitioner averring that he never heard of the note after its execution until on or about October 8,1907, about four months before the petition to open judgment was presented.
    The note in form shows joint liability.
    The petition avers in substance that the note was given for $900, borrowed wholly for the use of M. Christner, and that petitioner was surety on the note only, but admits that at the suggestion of M. Christner, petitioner was presented at the bank as principal and M. Christner as surety on the note by reason of the relatively small amount of real estate owned by the former and the larger amount held by the latter.
    It is undisputed that the loan was combined with $1,600 of other money of M. Christner, to his account in the bank, and a New York draft issued and delivered to him, and that both men went together to Chicago, and then to Springfield, Illinois, where the money was again deposited to the credit of M. Christner, several days thereafter was withdrawn in currency and— disappeared. Petitioner's averment is that the money was borrowed for and went wholly to the use of M. Christner, and that petitioner is but surety on the note.
    M. Christner's answer and deposition are in flat contradiction of every material fact alleged by the petitioner. He avers that the money was borrowed for and went wholly to the use of petitioner, Wilson Christner, and that he, M. Christner, is but surety on the note.

      In part of this he is supported by the affidavits and depositions of Wm. I. Hoover and S. P. Burkholder, who testify that in the latter part of January or the beginning of February, 1908, after the sheriff had advertised defendant’s property for sale, he said he had borrowed $900 from the Citizens’ National Bank of Meyersdale, by giving a note, and M. Christner had “ bailed ” 'him; that M. Christner had lifted the note and entered it of record, and he would not pay it.
    These are all the facts that can fairly be considered in the case. The remarkable and contradictory stories told by M. Christner and Wilson Christner as to their trip west and its results, together with their silence as to its purposes, give us little or no light on the case. That defendant knew and before this trip west had met at Garrett, Minard, one of the men who appears finally to have gotten the $2,500, he admits in his deposition, and says Minard went with the Christners to Chicago and Springfield. Besides, he does not contradict M. Christner ’s testimony that he, Wilson, introduced the parties, or some of them, to M. Christner on the train between Chicago and Springfield.
    The evidence as a whole shows that the two makers of the note traveled together with like interests and for a common purpose, whatever it may have been, and we think the court should not exercise its equitable powers as prayed for, under the facts and circumstances of this case.
    And now, September 26, 1903, rule discharged at costs of defendant.

      Error assigned was the order of the court.

      J. A. Berkey, with him C. L. Shaver, for appellant.

      Alexander King, with him C. W. Walker, for appellee.
    July 14, 1909:
   Opinion by

Beaver, J.,

The appellant seeks to have a judgment against him opened, on the ground that on the note upon which it is entered, in which he appears as the principal, or at least a joint maker, he is really the bail of the party who signs it with him, either as apparent joint obligor or surety. He, therefore, assumes the attitude of contradicting the note as it was made, and changing the relation of the parties thereto. To do this, his petition should have been supported by evidence that was clear, precise and indubitable. It was not so to the court below and is not so to us.

The answer of the appellee was the distinct and emphatic denial of every allegation set forth in the petition to open, and the testimony taken on behalf of the appellee is a complete contradiction of all the facts, as alleged and testified to by the appellant.

There was nothing, therefore, either in the petition or testimony of the appellant in the court below, which would move a chancellor to reform the instrument upon which the judgment was entered against him. On the contrary, his own witnesses seem to sustain the character of the note and the real relation of the parties thereto, as claimed by the appellee, rather than the appellant. Under these circumstances, therefore, without going into the rather remarkable experiences testified to by the other maker of the note beside the appellant, we cannot see how the court below, under a proper consideration of the numerous authorities which govern such a transaction, could have made the rule to show cause why the judgment should not be opened absolute. On the contrary, for the reasons stated in the opinion of the court below, there was every reason why the rule should have been discharged, as it was. We are all of the opinion that the rule to show cause was properly discharged.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Head, J.,

text:
    Forcite Powder Company to use, Appellant, v. Howley.

      Promissory notes — Evidence—Parol evidence — Payment out of particular fund.

    In an action upon a promissory note, the defendant may show by parol evidence that it was the distinct understanding of the parties at the time the note was executed, that it should be payable only out of a particular fund, and that this fund had not come into existence. Where the defendant testifies to such an understanding, and he is corroborated by a second witness, and the evidence is clear, precise and indubitable, he is entitled to have his defense submitted to the jury, and he is not deprived of such right by an expression in one of his own letters offered in evidence, contradictory of his parol testimony.
    Argued April 29, 1909.
    Appeal, No. 179, April T., 1909, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. Term, 1904, No. 284, on verdict for plaintiff in case of Forcite Powder Company to use of Eastern Dynamite Company v. W. E. Howley.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    The note was as follows:
    “$292.83 , April 18th, 1904.
    “ Sixty days after date I promise to pay to the order of For-cite Powder Company, Two hundred ninety-two 83-100 Dollars at German National Bank.
    “Without, defalcation for value received.
    “No....... Due 6-17-04.
    “W. E. Howley.”
    The defense set up is stated in the opinion of the Superior Court.
    The court charged in part as follows:
    In connection with the testimony of Mr. O’Donnell, you have a right to consider this letter and give it such weight as you deem proper in determining the credence to be given to the testimony of Mr. Howley.] [2]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) in refusing binding instructions for plaintiff, and (2) portion of charge as above, quoting it.

      Alvin A. Morris, with him William A. Way and Albert J. Walker, for appellant.

      C. A. O’Brien, of O’Brien & Ashley, for appellee.
    July 14, 1909:
   Opinion by

Head, J.,

This action is founded upon a promissory note, the execution of which is not denied. By the production of the note, therefore, and its admission in evidence, the prima facie case of the plaintiff was complete. By way of defense the defendant offered testimony by himself and his witness, from which, if credible, the jury would be warranted in finding the following facts: One O’Donnell had been awarded a contract for building a short branch line of railroad for a railroad company. After he had done a considerable portion of the work he became financially unable to complete it and was forced to abandon his contract. The railroad company arranged with the present defendant to have him take up and complete the unfinished work. At the time he quit, O’Donnell was indebted to various persons, among others to this plaintiff in the amount of the note in suit. Under the terms of his contract, the railroad company withheld from each estimate a certain percentage, and this money, although earned by O’Donnell, was not due and payable to him until the completion of the work. When the defendant took over the contract his understanding was that the amount still owing to O’Donnell by the company would be sufficient, when paid, to liquidate the outstanding debts of the former with the exception of labor claims.

With matters in this condition, a representative of the plaintiff and O’Donnell came to Howley, the defendant, and desired him to so arrange that upon the completion of the work, when the money earned by O’Donnell as well as by himself would be paid over, the claim of the plaintiff should be paid. To this the defendant assented. In order to close the matter up he was requested to sign the note in suit, and this he agreed to do only upon the express understanding that the note should be payable out of the fund earned by O’Donnell, which he, Howley, would receive on the completion of the work, and that payment of it should not be demanded before that time. He distinctly declares that it was because of this agreement he undertook to sign the note and thus pledge himself to pay a debt which he had not contracted. He finally stated that the railroad company had never yet paid, not only the money earned by O’Donnell, but a much larger amount earned by himself; that he had been compelled to sue the company and had recovered a judgment of 115,000 against it; that its affairs were tied up by litigation in the state of West Virginia; and although he expected to receive what was due him, or a considerable portion of it, it had not yet in fact been paid.

To every one of the facts thus stated the defendant himself distinctly testifies, and in every one of them he is clearly corroborated by the testimony of O’Donnell. The third party to the arrangement, to wit: the representative of the plaintiff, was not called as a witness to contradict this testimony, nor did the plaintiff show any inability on its part to produce him. Under these conditions, was the learned court below justified in sending the case to the jury? If he was, it is conceded that the charge in which the case was submitted was free from error.

The learned counsel for the appellant in his careful brief is forced to admit that under the law, as it now stands, there was testimony sufficient in quantity to warrant a submission of the case to the jury. We are earnestly urged to say, however, that because, under the cross-examination of the defendant, some testimony was elicited which the appellant construes to be contradictory of some of the facts testified to in chief, the evidence taken as a whole cannot be said to be of that clear, precise and indubitable character demanded by the law where a contemporaneous parol agreement is set up to affect or reform a written instrument.

Especial weight is placed upon a letter written by the defendant — and this was the sole testimony in rebuttal — which it is alleged contains an admission that the indebtedness evidenced by the note was only in part that of O’Donnell, the remainder being that of the defendant himself. This letter, along with certain expressions taken from the witnesses’ testimony, is said to show such contradictions in that testimony as to rob it of the character it must necessarily have in such cases. To this we cannot assent. The letter, as explained by the defendant’s testimony, is susceptible of a construction different from that put upon it by the appellant. But even construing it as the appellant does, it amounted to nothing more than a contradictory witness, and it is quite certain that the mere fact that the testimony, otherwise sufficient to carry the case to a jury, is contradicted, does not take away a party’s right to have it so submitted.

Had a bill in equity been filed by the defendant to reform this note so as to make its terms agree with the parol agreement testified to, and had the chancellor, hearing such bill, sent to a jury for trial the question of fact whether or not such parol agreement had been made, we know of no authority that would have warranted him in setting aside a verdict, resting on the testimony offered in this case, answering such question in the affirmative.

We are of opinion, therefore, that the learned trial court was right in sending the case to the jury under proper instructions. Many authorities could be cited to support this conclusion, but it seems to us that the principles stated have been so often and so clearly recognized that a citation of the cases is unnecessary. The assignments of error are dismissed.

Judgment affirmed.