author: Johnson, J.

text:
    Good v. Buckeye Mutual Fire Insurance Co.

      Fire insurance — Election to rebuild by several companies— Whether liability joint or several — Effect of compromise with portion of companies upon liability of others.

    A policy of insurance on a building against loss or damage by fire, reserved to the insurer the right to repair or rebuild upon giving notice of such intention within ninety days after proof of loss. After such proof the insurer served notice of its intention to rebuild, “ acting jointly with other insurance companies claiming to be interested.” At the time of the fire and of this notice, there were ten separate policies, in as many different companies, upon the same building; eight of which served like notices, severally signed by the company serving them. Before the time expired to rebuild, but while these insurers were taking steps for that purpose, the plaintiff compromised and settled with all said companies so electing to rebuild, except defendant, and released each of them from all liability, receiving for such release an amount of money in the aggregate much less than the amount of these policies. The defendant’s policy had this condition: “ In no case shall the claim be for a greater sum than the actual damages to or cash value of the property at the time of the fire; nor shall the assured be entitled to recover of this company in a greater proportion of the loss or damage than the amount hereby insured bears to the whole sum insured on said property, whether such other insurance he by specific, or by general, or floating policies, and without reference to the solvency or liability of other insurance.” Held:

    1. That the liability of the defendant on its policy as a money indemnity for loss or damage by fire was by above quoted condition in its policy, several and not joint.

    2. That the service by defendant of its intention to rebuild, acting jointly with the other companies, having like concurrent insurance, and serving like notices, converted the respective policies from contracts for a money indemnity into contracts of indemnity, payable in repairing or rebuilding, to be performed in the time named in the policy, but if no time is specified, then within a reasonable time.
    3. Upon such conversion by the election of the insurers, their'liability for failure to rebuild is several, and not joint, unless this several liability was, by agreement with plaintiff, converted into a joint liability. The service of the notices did not operate to change the terms of this policy. Hence the plaintiff may recover on this policy such share of the whole damage as the sum insured bears to the whole amount insured without reference to the solvency or liability of other insurance.
    4. That after the policy has been thus converted into a building contract, the insured might settle and compromise with any of the companies thus bound to rebuild without releasing the others from such proportionate share of such loss as their policies bore to the aggregate insurance.
    5. That in ascertaining defendant’s proportionate share of the entire loss, reference must be had to the aggregate insurance without regard to the fact that some of the companies had been settled with for a less sum than they were liable for, or that others did not elect to rebuild, or were insolvent or not liable.
    Error. Reserved in the District Court of Summit county.
    THe action below was brought by Good to recover upon a policy of fire insurance of $1,000, issued by defendant, which it had converted into a building contract by the following clause in its policy;
    “ Eor further particulars see application and survey, No. 20,451, which is hereby made part of this policy, and a warranty on the part of the assured, on file in the office of the Buckeye Mutual Eire Insurance Company.

      “Against all such immediate loss or damage sustained by the assured and his legal’ representatives, as may occur by fire, to the property specified not exceeding the sum insured, nor the interest of the assured in the property, except as hereinafter provided; from the fifth day of May, eighteen hundred and seventy-eight, at 12 o’clock, noon, to the fifth day of May, eighteeu hundred and eighty-three, at 12 o’clock, noon; to be paid ninety days after due notice and satisfactory proof of the same, made by the assured, are received at the office of this company, in Shelby, Ohio; it being covenanted as conditions of this contract, that this company may repair, restore, or replace the property lost or damaged, on giving notice of such intention within ninety days after receipt of proofs herein required, in which case the assured shall furnish plans and specifications of the property so lost or damaged.”
    The petition avers a total loss by fire on the 18th of June, 1878, due notice thereof on the 5th of July thereafter, and notice by the defendant on the 24th of J uly of its intention to repair and rebuild within a reasonable time, and that plaintiff, as required by the policy, furnished the necessary plans and specifications therefor, on the first day of September, 1878, whereby the defendant was bound to rebuild said building, and plaintiff was prevented and hindered from rebuilding. Although a reasonable time had elapsed, nothing whatever was done toward performing such contract, and on October 23, 1878, it notified the plaintiff that it did not intend to, and would not rebuild.
    On the same day the parties mutually agreed that certain persons named “ should appraise and estimate at the true cash value the damages by fire to said property which appraisement and estimate in writing by them, or any two of them, should be binding on both parties so far as regards such appraisement of loss or damage to said building.”
    On the 24th of October, these appraisers made their report that such damage amounted to f32,990, of which defendant had due notice, but has failed to pay the same on any part thereof.
    Wherefore he prays judgment for $10,000, with interest from October 24, 1878.
    The answer admits a partial loss not exceeding $20,000, of which it had due notice; that it served upon plaintiff as alleged notice of its intention to repair, but has not done so by reason of the following state of facts: That at the time the fire occurred, plaintiff had other insurance in nine other companies, aggregating $32,000, making the total insurance $33,000; that eight of said companies, including this defendant, having $29,000 of insurance, gave notice of their intention to repair the building; that two companies which gave no such notice, and which had $4,000 insurance, did not elect to rebuild; that the several companies representing $29,000 of insurance, including this defendant, advertised for bids, and let the same, and were about to enter into a contract with the successful bidder, when the plaintiff, without the knowledge or consent of the defendant, compromised and settled with said several companies, except the two who had not elected to rebuild, for about $20,650, and released said companies from all claims upon them to rebuild and restore said building; that when this settlement came to the knowledge of defendant, this defendant and plaintiff “ waiving all acts done or rights accruing under said notice to rebuild and repair ” (except as to defendant’s share of expense to plaintiff for preparing plans and specifications for rebuilding, amounting to $37.50, which it has always been ready and willing to pay), the parties entered into an agreement in writing, to submit the amount of loss and damage according to the provisions of said policy to appraisers, as stated in the petition.
    The reply admits that there was $33,000 of insurance, but that $3,000 thereof was in favor of one Hall, a mortgagee, to secure his interest in said property. It admits that the eight companies carrying insurance to the amount of $29,000 did, on July 24, 1878, give notices which were several and not joint of their intention to repair and rebuild, each of which notices was severally signed by -the respective companies so electing. He admits settling with all the companies so electing to rebuild, except defendant, for about $20,500, which was $7,500 less than the amount due from said companies.
    He avers that defendant had notice of this settlement before, at the time and after the same was made, and made no objection thereto.
    On trial to a jury the issues were found for the defendant, followed by motion for a new trial, the overruling of the same, prosecution of error to the district court, the reversal of the judgment by that court, the remanding of the case for a new trial, the second trial to a jury, a like verdict, the overruling of a -motion for a new trial, with another bill of exceptions, error again to the district court, and a reservation to this court.
    The errors assigned are that the court erred in its instructions to the jury in refusing to charge as requested, in overruling the motion for a new trial, and in giving judgment against plaintiff. On the trial plaintiff admitted that he had $29,000 of concurrent insurance in the several companies electing to rebuild, and $4,000 not included in said $29,000; that each of said companies so electing served upon him a notice, of which the following is a copy:
    “Akron, O., July 24, 1878.
    “Jacob Good, Esq. — Dear Sir: This company is in receipt ■of papers purporting to be proofs of loss under policy No. 20,451, issued by this company and held by you. Tour attention is respectfully directed to the general conditions of said policy, and you are hereby notified that it is the intention of this company, acting jointly with other insurance companies claimed to be interested, to repair and rebuild the premises claimed to have beeu damaged, with other of like kind and quality, wdthin a reasonable time, and you are hereby required to furnish plans and specifications of the building destroyed. Any communication you may have to make in reference to the matter please direct to the office of this company at Shelby, Ohio. Respectfully.”
    Each of said notices being signed by the company giving it.
    That on October 12, 1878, plaintiff settled with each of the companies so electing to rebuild, except this defendant, carrying $28,000, and received from them $20,500, and released each one of them from all claim which he may have had upon their respective policies or arising under said contract to rebuild or repair.
    The evidence of witnesses in the case relate chiefly to the loss or damage. It appears that after the settlement and compromise with the seven companies, which, with the plaintiff, had elected to rebuild, the parties to this action attempted to compromise. Upon this point Eoust, the general agent of the company, testifies as follows :
    “On the 19th day of October, 1878, S. 8. Bloom, president of the company, received a letter from J. J. Hall, requesting the company to settle the loss ; Bloom answered that I would be there Tuesday or Wednesday following; Tuesday, October 22, 1878, at five o’clock p. m., I arrived at Akron for the purpose of settling Good’s loss; soon after coming there I went from the Sumner House to Good’s building, where the fire occurred ; I saw that they had already commenced preparatory work for rebuilding the same. Wednesday, October 23, 1878, p. m., I met Messrs. Upson and Hall, attorneys for Good, in Hall’s office; they claimed one thousand dollars and damages of the Buckeye; I refused to settle in- this way, and made them two propositions : first, to compromise on same basis as other companies; or, second, to have an appraisement by two or three disinterested competent persons; they said they would consult with Good. October 23d, in the evening, I met J. J. Hall and Jacob Good, in the office of the former, and we then entered into an agreement in writing. The following persons were selected as appraisers: Frank Lukesh, D. W. Thomas, and William H. Smith, architects, who were to appraise the damage by fire to the property insured under the policy. Before Good consented to sign said agreement he wanted me to pay our share of damages for not rebuilding; this I had first refused to do. We finally, agreed that the company would pay the sum of thirty-seven and 50-100 dollars as its proportion of the cost of the plans and specifications. Good then signed the agreement to leave it to appraisers. At Shelby, Ohio, Tuesday, October 29, 1878, report of appraisers on the Good loss came to hand from Akron. The appraisement was not satisfactory to me for several reasons, one of which was, they counted in plate-glass, not covered by our policy, and on which I understood Good had separate insurance. I ordered the secretary to say to Good that we would pay him ($834.83) eight hundred and thirty-four and 83-100 dollars, including thirty-seven and 50-100 dollars, the amount of damages for not rebuilding, as agreed upon; also, dis'count for ninety days at ten per cent per annum. Good refused to accept said draft.”
    [Above answer objected to by plaintiff’s attorney.]

      “Q. Before going to Akron, as stated above, on the 22d day of October, had you learned that Good had settled with the other companies, and did you also learn this fact after reaching there, from them ?

      A. I learned it before I left Shelby, and I talked it over with Good and his attorneys after reaching Akron.”
    The agreement for submission to arbitrators mentioned in the pleadings and referred to in Foust’s testimony, is as follows:
    “ Agreement for submission to appraisers.

    “ It is hereby agreed by Jacob Good, of the first part, and the Buckeye Mutual Fire Insurance Company, of Shelby, Ohio, of the second part, that David W. Thomas, William H. Smith, and Frank Lukesh, of Akron, Ohio, shall appraise and estimate at the true cash value the damage by fire to the property belonging to Jacob Good, as specified below, which appraisement and estimate by them or any two of them, in writing, as to the amount of such loss or damage, as per the accompanying schedule, shall be binding on both parties, so far as regards such appaisement; it being understood that this appointment is without reference to any other question or matters of difference within the terms and conditions of the insurance, and is of binding effect only so far as regards the actual cash value of or damage to such property as may be found to have been saved in a damaged condition, which was insured and covered by policy No. 20,451 of said company, issued at the Akron agency.
    “ The property on which damage is to be estimated and appraised is the threerstory brick and stone mansard and tin roof building, situate on north side of East Market street, between Main and High streets, Akron, Summit county, Ohio.
    “And it is expressly understood and agreed, that said appraisers are to take into consideration the age, condition, and location of said premises previous to the fire, and also the value of the walls, materials, or any portion of said building saved, and after making an estimate of the cost of replacing said building, a proper deduction shall be made by them for the difference (if any) between the value of a new or replaced building and the one insured; and in case the company shall be unable to reinstate or repair the building because of any provision, of law to the contrary, it shall be liable to pay only such sum as would be required to reinstate or repair the building, if the same could be lawfully rebuilt or repaired; and it is furthermore expressly understood and agreed that in estimating the damage to stock, machinery, or other property, the said appraisers are to take into consideration the age, condition, and location of said property previous to the fire, and also the cash value of said property or any portion thereof which may have been saved in a damaged condition, and after making an estimate of the cash cost of replacing said property, a proper deduction shall be made by them for the difference (if any) between the value of the said property replaced 'new and the said property insured. Said appraisers are hereby directed to exclude from the amount of damage any sum for previous depreciation from age, location, ordinary use, or cause whatever, and simply to arrive at the damage actually caused by said fire.
    “ Witness our hands at Akron, Ohio, this 28d day of October, 1878. Jacob Good.
    " D. I. Eoust, for company.”
    J. J. Hall, Esq., one of the attorneys for plaintiff, testifies as follows touching the negotiations for a compromise and the circumstances under which the agreement to arbitrate was signed:
    “ Q. You may state to the jury whether, as attorney for Good, you were present at the meeting with Good in your office.

      A. I was present.

      Q. Who was present beside yourself?

      A. Good, Eoust, and I think Mr. Motz.

      Q. State to the jury the conversation that occurred at that time.

      A. Eoust, I think had been to see Good before this; when Good came to the office Eoust was in there; Eoust said, 41 came to see about that loss, to see if it could be arranged ; ’ it is impossible for me to give you all the conversation ; he said to me he was very much dissatisfied with Mr. Pattison, because he had not settled as we wanted him to; I said, Mr. Eoust, we have no claim against you on the policy, our claim is against you for not rebuilding the building, after you served the notice upon us to rebuild;’ he then said, We can not put up that building;’ we had considerable conversation about it; then he said, We will not put up the building, but we will pay what these three men determine the damage is; whatever they find it to be we will pay;’ I said, There will be additional expense making out these plans and specifications;’ he said, We will pay our share of that, too.’ I am very certain that there was not one word said about $37.50. They agreed to pay whatever these three men agreed the damage was; if it was $10,000, they would pay it; if it was-$40,000, they would pay it. It was understood between us that this was to be the amount they were to pay.

      Q. You may state if any thing was said with reference to waiving the contract to rebuild.

      A. Nothing was said; nothing of that kind was thought. If they paid us the amount these men would find, we would be satisfied.

      Q. At any time, kso far as you know, was there any negotiation about waiving the contract to rebuild ?

      A. None, whatever.”
    Good, the plaintiff, on the same subject, testifies :
    “ Q. Were you present at the time referred to by Mr. Hall, when this agreement was signed ?

      A. Yes, sir.

      Q. You may state whether you talked the matter over with them or Mr. Hall, for you ?

      A. Mr. Hall did most all of the talking.

      Q. You may state whether at-that time, or any other, you have made any agreement with this company, or any of its agents, with regard to waiving the contract to rebuild.

      A. No, sir.”
    On cross-examination said witness further testified:

      “Q. Mr. Hall did the talking, did he?

      A. Yes, sir.

      Q. When he told you to sign that paper, you signed it ?

      A. Yes, sir.”
    Henry Motz, who was present with Foust in the office of Hall when this arbitration agreement was signed, and who was at the time an agent of the defendant, gave the following testimony upon this point:

      “Q. Do you recollect of going with Mr. Foust after the fire, and after the settlement with the other companies, to Mr. Hall’s office?

      A. Yes, sir.
    <2. Who was present ?

      A. Mr. Hall, Mr. Good, Mr. Foust, and myself.

      Q. What was done and said by Mr. Foust to Mr. Hall and Good as to the notice they had given plaintiff as to rebuilding ?

      A. Mr. Foust of course came over here to pay his loss on the building.

      Q. What occurred there in regard to that question, as to the agreement to rebuild ?

      A. When they came together to make the agreement, Mr. Good said that he had additional expenses to get up the plans and specifications; Mr. Foust said that he would pay his share of the additional expense; we then agreed to have these appraisers estimate the loss and damage to the building by the fire, which amount we agreed to pay.

      Q. Hid they agree what the Buckeye Insurance Company’s expenses should be for the plans and specifications ?

      A. The full amount was $37.50.

      Q. After that agreement, did they agree upon the appraisers ?

      A. Yes, sir.

      Q. Do you know who the appraisers were ?

      A. Yes, sir; D. W. Thomas, Frank Lukesh, and W. H. Smith.”
    On cross-examination said witness further testified:

      “Q. At what time was that conversation had?

      A. In Mr. Hall’s office, the same fall after the fire.

      Q. At what date ?

      A. I think it was the latter part of October; it was the same day this agreement was signed for the appraisers.

      Q. Who did you say were present ?

      A. Mr. Hall, Mr. Foust, Mr. Good, and myself.”
    That part of the charge of the court to which plaintiff excepted, will be found stated in the opinion.
    So much of the policy as bears upon the questio'n involved is as follows:
    “ In case of loss, the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath, stating the time, origin, and circumstances of the fire, the occupancy of the building insured or containing the property insured, other insurance, if any, and copies of all policies,'the whole value and ownership of the property, and the amount of loss or damage, and shall produce the certificate, under seal of a magistrate, notary public, or commissioner of deeds nearest the place of the fire, and not concerned in the loss or related to the assured, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount claimed by the said assured. In no case shall the claim be for a greater sum than the actual damage to or cash value of the property at the time of the fire; nor shall the assured be entitled to recover of this company any greater proportion of the loss or damage than the amount hereby insicred bears to the whole sum insured on said property, whether such' other insurance be by specific, or by general or floating policies, and without reference to the solvency or the liability of other insurance .”
    Also, “ damage to property not totally destroyed, unless the amount of said damage is agreed upon between the assured and the company, shall be appraised by disinterested and competent persons, mutually agreed upon by the parties.”

      J. J. Hall, for plaintiff in error.
    The action was properly brought to recover damages for failure to comply with the terms of the contract to rebuild. Wood Fire Ins. 262; Morrell v. Irving Fire Ins. Co., 38 N. Y. 429; Beals v. Home Ins. Co., 36 N. Y. 522; Heilmann v. Westchester Fire Ins. Co., 75 N. Y. 12; Wynkoop v. Niagara, Ins. Co., 91 N. Y. 478; 3 Am. Law Reg. (N. S.) 414; Fland. Fire Ins: 628, § 28.
    The plaintiff did not waive his rights by submitting his claim to arbitrators. All that was agreed to be submitted to them was the determination of the amount the defendant should pay in money as damages for not rebuilding. But even if the contract was evidence tending to prove a waiver by the plaintiff, it should have been, left to the jury to determine whether it was a waiver or not. Short v. Home Ins. Co., 90 N. Y. 16; Carrigan v. Lycoming Fire Ins. Co., 53 Vt. 418. The court refused to permit the jury to pass upon this question.
    The contract to rebuild was not a joint contract upon the part of all the insurance companies who had insurance upon the building. Morrell v. Irving Fire Ins. Co., supra; 3 Am. Law Reg. (N. S.) 414. The court, in substantially charging the jury that the plaintiff, by a settlement with the other companies, released his claim upon the defendant, based its theory upon the form of the notice served by the defendant declaring its intention to rebuild. But the plaintiff had nothing to do with either the form or the substance of the notice served upon him. The notice is signed by the defendant. The defendant gives notice that it intends to rebuild — it demands plans and specifications of the destroyed building.
    The plaintiff neither directly nor indirectly interfered with the defendant executing its contract to rebuild. By the settlement with the other companies they were not released from their obligation to the defendant, if there were any. There was no privity of contract between the plaintiff and the defendant jointly with the other companies.

      S. S. Bloom and A. T. Brewer, for defendant in error.
    1. After the several notices of intention jointly to rebuild, the companies became jointly liable to the plaintiff to replace the injured property, irrespective of cost.
    Here are eight companies undertaking, with $29,000, to erect a building which may cost more or less than that sum. So far as the assured is concerned it makes no difference to him. He is entitled to have the building restored for which he has paid the contractors in advauce. He can not sue the companies separately on their contract to rebuild, because each one has agreed with him “jointly with the others ” to do the work. Each one is liable to do the whole work in the sense in which each partner is liable for the obligations of the firm, and as between the plaintiff and any one of the companies there is no measure of liability short of the cost of the entire job. The amount óf the policy would furnish no guide, because the policy, by the notice to rebuild, has been converted into a building contract, where the consideration is all paid in advance. Morrell v. Irving Fire Ins. Co., 33 N. Y. 429, 449, 453; Wood Fire Ins. 257; May Ins. 525, 534; Fland. Fire Ins. 628.
    2. The release of seven of the eight companies, liable jointly to rebuild, discharged the defendant from all obligation to rebuild.
    “If two or more are jointly bound, or jointly and severally bound, and the obligee releases to one Of them, all are discharged.” Par. Con. *27; Milliken v. Brown, 1 Rawle 391.
    3. By making the appraisement agreement after the release to the other companies, and after the assured had actually began to rebuild himself, the plaintiff thereby waived and abandoned his right, if he had any, to require the defendant to rebuild.
    Considering the time and circumstances under which the appraisement contract was made, together with the contract itself, and what was done under it, the parties clearly meant to settle their rights by some way other than by rebuilding. As there could, in the nature of the case, be no other way than to pay in money, that method of indemnity was contemplated. The appraisers were directed, not to find what a new building would cost, but were “ hereby directed to exclude from the amount of damages any sum for previous depreciation from age, location, ordinary use, or cause whatever, and simply arrive at the damage actually caused by said fire.” If replacing the old building by a new one was intended, why get at “ the actual damage,” making the deductions specified.
    4. The plaintiff made no case to recover on the policy, indemnity in money, as if there had been no notice to rebuild.

      W. li. Upson, for plaintiff in error, in reply.
    1. The original obligation of the defendant under the policy of insurance was several and entirely independent of any other. The preliminary negotiations were with the defendant, and not with any meeting or coalition of companies. The premium was paid to the defendant individually, and not as a member of any association. No other company derived any benefit from that premium, directly or indirectly. The policy was a separate instrument; its stipulations were, on the one side, those of the plaintiff alone, and on the other, those of the defendant alone, and it was signed by no other party. No provision contemplated making any one else a party, or allowing any other person to be brought in to share the burdens or benefits of the contract.
    On the contrary, the defendant took special care effectually to exclude even those mutual relations and duties which the law would otherwise have implied, by limiting its liability to its pro rata share of the loss. It has been held, and it is clearly the law, that when the policy contains that clause, the company must look out for itself. If it pays more than its share of the loss, it can call for no contribution; nor, on the other hand, can it shield itself from responsibility by alleging that others have already paid more than their portion, or even that the plaintiff has been fully indemnified. It is to be presumed, also, in the absence of proof, that all the policies contained the same provisions.
    In the case of Lucas v. Jefferson Ins. Co., 6 Cowen, 685, it was held that the defendants have no concern with the amounts paid by the other insurers, and to constitute a defense it must be shown “ that the companies in fact paid a sum of money, which was received in full satisfaction of all the insurance.”
    In this case, the several amounts paid by the other companies were received in satisfaction of the plaintiff’s claims against these companies only.

      2. It is claimed that the notice given by the defendant to rebuild changed its several obligation into a joint obligation with others, who are not however, named in the notice.
    The notice of an election to rebuild has, according to the best authorities, the effect of changing an agreement to indemnify in money, subject to the conditions of the policy, into a building contract, subject to no conditions. Morrell v. Irving Fire Ins. Co., 33 N. Y. 429-449.
    It is true that the learned judge in Morrell v. Irving Fire Ins. Co. says, that in his opinion the assured might have an action against both insurers jointly, but the point did not arise, for the action was brought against one alone, and it was held to have been well brought. It may also be observed that the two companies united in one notice of their intention to rebuild. See, upon this point, the reasoning of the eminent jurist Prof. Theo. W. Dwight, 3 Am. Law Reg. (N. S.) 414.
    The defendant relies upon the words in the notice* “ acting jointly with other insurance companies claimed to be interested.” ■ But it takes” two make a bargain, and the plaintiff never agreed to enter into a contract with the defendant and any other company. The notice refers to the general conditions of the policy as the authority for giving the notice, and those conditions give the absolute right of election to rebuild. The consent of the plaintiff was neither required nor requested, but the notice was given as a matter of right. The claim that the building contract is a joint contract can not in any view of the case be sustained.
    If the other insurance companies violated any agreement made by them with the defendant, it has a plain and adequate remedy for such violation.
    3. Was the agreement to submit to an estimate and appraisal of the damages to the insured property by arbitrators a waiver of any claim against the defendant for not rebuilding ?
    As this agreement, which was in the usual printed form used by insurance companies, did not mention or refer to any claim against the defendant upon a contract to rebuild, it certainly did not expressly waive such claim, or rescind such contract. The most that can be claimed is that the making of such an agreement, if unexplained, would tend to prove that the parties regarded the policy as still in force. It did not, as matter of law, rescind the building contract, and the other evidence showed clearly that it was not in fact so intended, but was signed by the plaintiff under a mistake as to its terms and object. This question should have been left to the jury.
   Johnson, J.

Two questions are presented as grounds for reversal of this judgment: First, as to the construction by the court below of the agreement to appraise the damages made on October 23, 1878; second, as to so much of the charge of the court as relates to the effect of the several notices given by the eight different companies to restore the building, and the effect of the compromise with seven of the companies electing to z’ebuild upon plaintiff’s right to recover.

1. As to the effect of the agreement to arbitrate the value of the loss or damage sustained by the fire: upon this point the charge is as follows:

“ In this connection I will say to you that, under the provisions of the policy, it was optional with the insuz’ance company to indemnify the plaintiff for his loss, either in money or by rebuilding the building.

“If this agreement had been entered into prior to the notice to rebuild, I should Bay to you that it related to any subsequent acts of the parties, and that is so because its provisions relate to both modes of indemnifying the loss.

“ But having beezz entered into after serving the notice to rebuild, it must be considered as having reference to that provision of the policy relating to paying money as indemnity for paying the loss, and as waiving the contract to rebuild. Such portion of it as relates to other acts of the parties must be considered as irrelevant in the construction of the contract. The proper construction to be given to this agreement is, that it relates to the question of the loss under the policy originally, and the payment of that loss in money. This is the view in which I feel compelled to require you to consider this agreement.”

To which charge, commencing with the word “ But,” at the beginning of the last paragraph, the plaintiff' then and there excepted.

2. As to the effect of the notices to rebuild, the duties and obligations created by the parties, and also the effect of the settlement with seven of the eight companies upon the right of the plaintiff to maintain an action against the eighth, the charge is as follows :

“ Under the policy the defendant had the right to indemnify the plaintiff by paying in money the damages by reason of the fire to the extent of the amount of its policy, or by electing to rebuild and repair the building, in which latter case it must give notice of its intention to repair and rebuild, in which event, on giving such notice, the relation of the parties changed, and it becomes the privilege and duty of the company to reconstruct the building substantially in the same condition as it was when destroyed, and this without reference to the amount of the policy, and the measure of damages for the breach of such a contract would be the cost of restoring the building to its former value and condition.

“ If there was but one policy, and consequently but one notice to rebuild, there would be but little difficulty in determining the rights and liabilities of the company; but iu this case there were several companies which gave notice of their intention to repair, and those notices were not independent of each other, but were all to the effect that the companies, acting jointly with the others, intended to repair and rebuild the building. This defendant gave no notice of its intention, alone and independent of the other companies, to rebuild. It did not say, with its $1,000 policy, it alone would restore the building that would cost more than $30,000, and upon which there was other insurance to an amount of some $30,000 or more, wfithout the assistance of such, other companies. But its notice was that it is the intention of this company, acting jointly with other insurance companies claimed to be interested, to repair and rebuild the premises. Its undertaking was to rebuild jointly with the other companies representing $28,000 of insurance on the damaged building, which companies had served like notices.

There being no objection to the form or substance of those notices, the plaintiff must be held to have accepted them with all the obligations they imposed upon him, and all the rights they gave the defendant, and duties they imposed upon it and the other companies acting jointly with the defendant. Among these were the duty and liability of each and all of these companies to aid in and contribute ■to the repairing of this building, and in the event that the defendant should be compelled to rebuild alone, it could compel contribution proportionately from all the other companies joining in the enterprise.

“ It imposed upon the plaintiff the duty of not interfering with these obligations and rights of the defendant, and thereby preventing it from performing its obligations to him. He was not authorized to settle with the other companies and take from them the money which they had pledged. Both the defendant and plaintiff should be used jointly with that of the defendant in repairing the building, and to keep the money without offering it to defendant, as the companies were bound to do in furtherance of the common object, and in doing which to prevent the defendant from the right of enforcing contribution from such other companies. It was his duty to permit the defendant to repair the building pursuant to its notice, and not by his act to put it beyond its power to do so. The defendant claims he did this; the plaintiff denies it.”

To which charge, commencing with the words, “ If there was but one policy,” etc., the plaintiff then and there excepted.

The court, by request of defendant, further charged the jury on the same point as follows:

“ The plaintiff in this action, not claiming the right to recover upon the policy, but solely upon the notice of the intention of the defendant to rebuild and for damages resulting from defendant’s failure to rebuild under and pursuant to its notice, I say to you, if you find from the evidence the fact to be that other companies, having concurrent insurance with the defendant upon said building to the amount of twenty-eight thousand dollars, served upon the plaintiff notices, the same as served by the defendant, of their intention, acting jointly with this defendant and other insurance companies having such insurance on said building, to repair and rebuild the same, and that after such notices were so served, the plaintiff settled with those.other companies and released them from all claim he had upon them or either of them, and also from all right to any claim he had upon them or either of them, and also from all right to any claim under said notice to rebuild, 'and retained the money thus received, without offering to aid the defendant with the same to the extent that such companies were bound to aid it in rebuilding; then I say to you, the plaintiff forfeited his right to require the defendant to rebuild under its notice, and he can not maintain this action, and your verdict should be for the defendant.”

To which charge, as so given, the plaintiff excepted.

The court, by the request of the defendant, further charged the jury as follows:

“ If you find from the evidence the facts to be that other insurance companies than the defendant had, with the defendant, concurrent insurance on said building to the amount of twenty-eight thousand dollars, and the said companies served upon the plaintiff like notices of that served by the defendant, of their intention acting jointly with the defendant and the other companies, they intended to rebuild and repair said building, and that after such notices were served, the plaintiff settled with all of said companies, except the defendant, and released said companies and each of them from all obligation or claim of the plaintiff upon them, or either of them, to repair or rebuild said building by reason of said notices or otherwise, and this defendant, after such settlement and release, notified the plaintiff that it could not and would not alone rebuild because of such settlement and release by him, and he then proceeded to repair and rebuild it himself, and then entered into an agreement in pursuance of the conditions of said policy, to have an appraisement of the damages to said building by reason of the fire, and said appraisement in pursuance of said policy and agreement was had, I say to you that such facts would constitute a waiver of any claim against the defendant for not repairing or rebuilding said building, and he could not sustain this action, and your verdict should be for the defendant.”

To which charge the plaintiff then and there excepted.

The plaintiff requested the following charge touching the agreement submitting the loss and damage to appraisers :

“ That, in determining whether the plaintiff waived his claim under the agreement to rebuild, the jury may consider any testimony that has been given to them tending to show that the plaintiff, on signing the agreement which has been offered in evidence appointing David W. Thomas, William H. Smith, and Frank Lukesh as appraisers, understood it to be an agreement submitting to said appraisers to determine the amount of damages to be paid by the defendant to the plaintiff on account of the defendant’s failure to comply with its agreement to rebuild.” Which request the court refused to give; to which refusal to so charge the jury, as requested, the plaintiff excépted.”

As the conclusion we have reached upon the second point above stated will aid in determining the first, we will consider these questions in the reverse order of their statement. Upon this point the charge of the court was, in substance, that though the several notices to rebuild, were severally signed by the respective companies, yet the contract to rebuild was a j oint contract with respect to the rights of the plaintiff, and that the settlement by plaintiff with seven of the eight companies so electing to rebuild, and releasing them from all liability, defeated plaintiff’s right of action against the other electing companies. Independent of statute, and of the provisions contained in this policy, this result, upon common-law principles, would follow; but, in determining whether this election by defendant to rebuild, acting jointly with other companies, created a joint obligation as respects the plaintiff’s rights, reference must be had to the terms of the policy itself.

This policy was but one of several covering the same property. It contemplated other insurance: it stipulated that, in case of such insurance, the assured should not “ be entitled to recover of this company any greater portion of the loss or damage than the amount hereby insured bears to the wholé sum insured on said property . . . without reference to the solvency or liability of other insurance.” This stipulation is one in favor of the insurer, and makes its liability several and not joint. It gave to the plaintiff, in case of loss or damage, a right of action against this company for its proportionate share of the damages sustained for not rebuilding, prorated with reference to the amount of concurrent insurance.

The words of the condition are: “In no case” can the insured recover more than said pro rata share. There is another limitation to the amount of the recovery: the assured can not recover beyond his actual loss. After the insured has elected to rebuild, and has entered upon the performance of his contract, the contract of indemnity may be discharged by rebuilding. If there is a failure to rebuild, the insurer becomes liable for the damages sustained by the plaintiff for such failure. Whether the plaintiff, in case of such failure, is restricted to his action for damages for not rebuilding, or may elect to treat this electiou to rebuild as abandoned, and may sue upon the policy as an indemnity contract payable in money: that is, whether the right to treat it as a money indemity, the same as if no election had been made to rebuild, was merely suspended until such failure, as is held in some states, or became extinguished, leaving a right of action on the building contract as plaintiffs sole remedy, we need not now determine. As a contract of indemnity payable in money, it was clearly several in its nature, though there was concurrent insurance. We think that the same provisions of the policy,'which requires several actions thereon to recover a money indemnity, are equally applicable to the liability of this company for damages for failure to rebuild. Each company would, in such case, be severally liable for its fro rata share of the loss and damage, not exceeding the ¡interest of the assured in the property. In case of concurrent insurance, and no election to rebuild, the action must be against each for its pro rata share of the loss, not exceeding plaintiffs loss. If any of the companies are insolvent, this loss must fall on the insured. Defendant did not undertake to share any loss to the plaintiff, whether arising from insolvency, or non-liability of other insurance, or by compromise on other policies.

Plaintiff could insure in as many companies as he chose. By the terms of this policy he could only recover defendant’s pro rata share. This is equally true, whether in an action for failure to rebuild or in one to recover indemnity in money. If the action is for not rebuilding, the damages may exceed those if the suit is for money, where there is no election.

Where the aggregate loss exceeds the insurance, and the insurer elects to rebuild, the damages, unless limited by the terms of the policy, must equal the cost of restoring the building.

In case of concurrent insurance, and some of the companies elect to rebuild and others do not, and there is no prorating clause, there is a separate cause of action against, each for failure to rebuild, when there is no subsequent agreement converting the policies into a joint contract. The giving of these notices was the sole act of the insurers. Plaintiff had no option. This did not operate to convert |a several into & joint obligation as against plaintiff, whatjever its effect as between the insurers themselves. If there was no prorating clause, such as is found in this policy, and no limitation on the amount of liability to rebuild, each of several companies electing to rebuild would be liable to rebuild, and several actions for a failure could be maintained, but there could be but one satisfaction for the amount of actual loss.

Where several elect to rebuild and one only does so, the plaintiff’s claim is satisfied as to all, and the one so performing is left to his right of contribution, whatever that may be, against the others electing or non-electing.

Under this policy, the election to rebuild did not defeat plaintiff’s right to recover.of those not electing, when the building contract was not performed.

If those non-electing paid in money before the building was replaced to plaintiff, it would diminish the amount of recovery for a failure to rebuild, as plaintiff’s right extends only to an indemnity for his actual loss. If paid after the building was replaced as before the fire, it in equity belongs to those rebuilding.

In the policy before us, the liability of defendant is expressly limited' to its pro rata share of the amount lost. Hence, plaintiff’s recovery of other companies by compromise, or otherwise, does not affect the amount to be collected of defendant. And where one of the several policies is for the benefit of a mortgagee of the insured property, upon a mortgage made by the insurer, this is other insurance, to be taken into the account in ascertaining defendant’s pro rata share of the loss. Payment to the mortgagee is payment pro tanto of plaintiff’s loss.

In the case at bar, eight of the ten companies having concurrent insurances, elected to rebuild. This did not defeat the right of plaintiff to recover of those not electing, upon their respective policies, for the amounts for which they were liable; but, as the insured can have but one satisfaction for his actual loss, and as there is a separate contract with this defendant limiting his liability to his pro rata share, without regard to the solvency or liability of any other insurer, this defendant is liable only to prorate with, other insurers for damages resulting from a failure to rebuild. To illustrate: The damages, as found by the appraisers, was $32,990 The aggregate insurance was $33,000; and the defendant’s, policy was $1,000. Prorating this loss according to the terms of the policy, defendant would be liable for $999.69. The option to rebuild was a mode of payment of the damages covered by the policy reserved for the benefit of the insurer. And damages for failure to rebuild is as much indemnity, payable in another form, for the loss covered by the policy, as if the same was payable in money where no election had been made. The terms of the policy are explicit. “ In no case shall the claim be for a greater sum than the actual damages. . . . Nor shall the assured be entitled to recover of this company any greater proportion of the loss or damage than the amount hereby insured bears to the whole sum insured on said property.” This clause follows that which gives the election to rebuild, and in express terms applies to claims for damages arising from a failure to rebuild. It follows, therefore, that while these notices to rebuild, served by the respective companies on July 24, 1878, may, as between such companies, create a joint obligation, yet as to this plaintiff, his right of action and the amount of his recovery for failure to rebuild is several against the several companies who were liable in damages, and the amount of his recovery is to be prorated in each case accordingly, as provided in the policy. In such prorating the aggregate insurance, including the two companies not electing to rebuild, is to be taken into the account in ascertaining defendant’s proportion of such loss. If we assume, however, that the court below was correct in charging that this was a joint building contract, still there was error in charging that the settlement made by the plaintiff with seven of the joint contractors discharged the other. This was so at common law, but is not so under our statute (Revised Statutes, secs, 3162 to 3166). These sections authorize a composition or compromise with one or more joint debtors, without discharging the others, and without impairing the right of action against such others. In such, case, the settlement of the joint debtor is equivalent to a payment of his proportionate share of the debt. It leaves the right of action against the other debtor intact for its proportionate liability on the obligation.

As to the effect of the agreement to arbitrate the damages. This agreement was entered into October 23, 1878. The plaintiff had compromised with seven of the eight companies after they had converted their policies into building contracts. The testimony shows that Foust, the agent of the company, then visited Akron for the purpose of settling the controversy between plaintiff and defendant. He had heard of this release of the other seven companies before he left home, and had been notified to fulfill his contract. He went for the purpose of adjusting his company’s liability. He then did not claim that defendant was dischai’ged from all liability by reason of the release of the other seven companies.

The plaintiff had already resumed possession and had made some preparations to rebuild. He (Foust) made two propositions for a settlement: first, to compromise on the same basis as plaintiff' had compromised with the other seven companies; or second, to have appraisers to assess the actual loss occasioned by the fire. The parties being unable to agree to the first, this agreement of submission to appraisers was entered into. The court charged the jury that this of itself was a waiver of all right to recover in an action for damages for failure to rebuild ; that as matter of law it related solely to au adjustment of the loss under the policy, and did not relate to a loss for failure to rebuild. In this we think the court erred. Before entering into this agreement the company was distinctly informed that the plaintiff was not claiming under the policy for money indemnity, but for not rebuilding. Under these circumstances the parties agreed to submit to appraisers the sole question of the actual cash value of, or damage to such property, and the award of the appraisers was to be binding on both parties so far as regards such appraisement, the other matters of difference between the parties within the terms and conditions of the insurance being left for adjustment by the parties. In view of the matters in difference at the time of the plaintiff’s claiming his right to damages for failure to rebuild, the defendant offering to compromise, and not denying his liability in some amount, this agreement may be regarded as referable to the controversy between the parties, namely, the amount which defendant should pay, whether based upon the contract to rebuild or on the policy as an indemnity. There is nothing in the agreement showing the intention of the parties to limit such appraisement to a claim upon the policy as a contract of indemnity. They were to ascertain the amount of loss or damage to the property. This mode of ascertaining the loss and damage is expressly provided for in the policy, and independent of this provision of the policy it was competent for the parties to refer .this question to arbitrators and make their award binding.

As we have adjudged that at the time this agreement was entered into, there was an existing liability of defendant in damages for failure to rebuild proportionate to its fro rata share of insurance, the appraisement made under the agreement would become a material factor in determining its share of such damage. That amount known, the amount of defendant’s liability would become a mere matter of calculation. The plaintiff by entering into this agreement can not, as a matter of law, therefore be said to have waived an existing right of action. The agreement had the same force and effect as a method of adjusting the loss and of settling that question, whether his suit was on the policy or upon the contract to rebuild. The facts and circumstances clearly show that it was not the intention of plaintiff to waive or abandon his right under the policy as a contract to rebuild. He was simply agreeing to a mode of assessing the loss or damage by fire, which, when settled, would be binding on both parties, unless set aside, leaving all other questions to be determined by the parties themselves or by litigation.

The amount of damages when ascertained, by whatever mode, was a necessary factor in arriving at the pro rata share of defendant’s liability, whether the action was upon the contract regarded as an indemnity payable in money, or as a rebuilding contract. It was error, therefore, in the court to leave out of view the circumstances under which this agreement for an appraisal of damages wa& made, and to charge that it was solely referable to the contract of insurance payable in money, and was therefore a waiver of an existing claim or demand for damages for failure to rebuild.

Judgment reversed.


source: Caselaw Access Project

author: McIlvaine, O. J.

license: Public Domain

text:
    Rhodes v. Mooney.

      Sale — Agreement to pay for goods on delivery — Bight of vendor to recover while retaining possession — Estoppel of creditor voting at election for trustee in insolvency.

    1. A. sold to B. 100 tons of iron at a specified price, to be paid in cash on delivery of C.’s warehouse receipt. The receipt of C. stipulated that he was to deliver the iron on return of such receipt. B. failing, on tender of the receipt to pay, A. brought suit against him for the contract price, alleging that he sold and delivered the iron to B., but A. has retained the receipt at all times.
    2. After verdict in favor of A. for the contract price, B. made an assignment ^ of all his property to D., for the benefit of creditors, and the creditors of B. met and unanimously selected E. as trustee in the matter of the assignment, eighteen creditors being present, and A. representing less than one-third of the debts, voting as an unsecured creditor. ■
    3. Judgment was subsequently rendered oh the verdict, and thereupon D. demanded the iron of C. On refusal, D. brought suit against C. for damages as upon á conversion of the iron. Held: That there was no estoppel by reason of the fact that A. voted as an unsecured creditor for such trustee; and that, the purchase money not having been paid or tendered, the custody of the iron not having been changed, and the receipt not having been produced to C., the lien of A. was effectual, and D. was not entitled to recover.
    Error to the District Court of Cuyahoga county.

      January 10, 1880, the Jackson Iron Company, by writing, said to E. K. Chamberlain, that.the company “ will sell you one hundred (100) tons of No. 1, Stewart Bessemer iron, delivered in the yard of Rhodes & Co., 2240 lbs. per gross ton at $46 50, cash down, on delivery to you of Rhodes & Co.’s warehouse receipt, Rhodes & Co.’s dockage charges to be paid by you. This offer is open for acceptance until Monday noon, Jan. 12, 1880.”
    Chamberlain proposed the following modification of the proposition: “ The above iron is not to be delivered to me until after the 1st of February, at the rate of about two cars per day, and with this provision in, accept the above.”
    This modification received the assent of the company January 12, 1880, and the contract was then complete.
    The iron was deposited with Rhodes & Co., and that firm issued to the company the following warehouse receipt:
    “ Office of Rhodes & Co.,
    Cleveland, Ohio, Feb. 20, 1880.
    Received into yard, No. 127 West River street, from Jackson Iron Company, shipped on board the--, on bill of lading dated -, for account of Jackson Iron Company, 100 Gro. tons (of 2,240 lbs. each) Stewart pig iron, which we hold subject to the order of Jackson Iron Company, upon the payment of our charges and the surrender of this certificate properly indorsed. No. 48.
    Rhodes & Co.”
    The Jackson Iron Company immediately thereafter tendered the receipt properly indorsed, and demanded the amount due, but no part of it has been paid, and the Jackson Iron Company has at all times retained the receipt.
    Failing to receive the amount for which the iron was sold, or any part of it, the Jackson Iron Company, on May 80, 1880, brought suit in the circuit court of the United States for the northern district of Ohio, against Chamberlain, on the contract, seeking therein to recover the contract price of the iron, and alleging that, “in pursuance of the contract, it delivered to said defendant, in yard of Rhodes & Co., one hundred tons of No. 1, Stewart Bessemer iron, and tendered to said defendant the warehouse receipt of Rhodes & Co. for the same.” The petition contains the further allegation that the purchase money, $4,650, remains unpaid, and there is a prayer for judgment for the amount, with interest from February 20, 1880.
    In the answer of Chamberlain to that action, non-payment of the purchase-money is substantially admitted, matter was set up, which was claimed to be a defense, in which is alleged failure to deliver at the time stipulated, and in connection with such matter, these averments were made:
    “ That said writing from Rhodes & Co., to said Jackson Iron Company, mentioned above, and which is called a warehouse receipt, and without which defendant could not obtain possession or control of said iron, was never received by defendant, or in his possession or control, but the same always has, and still does remain in the exclusive possession and control of the plaintiff, said defendant never having even seen the same.
    “ That said iron or any part thereof was never received by the defendant, and the defendant has never even seen the same, and the said plaintiff'has always and still does retain the exclusive possession and control of the same.”
    The cause was tried in the circuit court, which commenced on the 5th of October, 1880, and there was a verdict in favor of the Jackson Iron Company, and against Chamberlain, upou which judgment was rendered January 4, 1881, for $4,896.73, and costs.
    October 22, 1880, Chamberlain made an assignment to John B. Mooney of all his property for the benefit of his creditors. On December 16,1880, eighteen of the creditors of Chamberlain, including the representative of the Jackson Iron Company, met at the office of the probate judge, in Cleveland, and.elected J. A. Smith trustee in the matter of such assignment. The amount of the claims of creditors so acting was $18,682.34, and the claim of the Jackson Iron Company was stated at $4,800. All the creditors voted for Smith as trustee.
    Rhodes & Co. refusing to deliver to Mooney, as such assignee, such iro,n, without production of the warehouse receipt, and the Jackson Iron Company, refusing to surrender the receipt, the purchase-money remaining unpaid’, Mooney, as such assignee, after demand of and refusal by Rhodes & Co., commenced in the court of common pleas of Cuyahoga couuty, against Rhodes & Co., an action to recover possession of the iron by replevin, but Mooney being unable to give the undertaking required by law, the iron was returned to Rhodes & Co. The Revised Statutes (§ 5827) provide: “ When the property claimed is • • - is returned to the defendant by the sheriff for want of the undertaking required by section 5819, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper.”
    In the answer and reply, all the facts herein mentioned are restated. The cause was tried to a jury on February 15, 1882, and the court charged the jury, in substance, that by the recovery of the judgment in the circuit court, the Jackson Iron Company, and consequently Rhodes & Co., lost the lien upon the iron, although no part of the purchase price was paid. Under such instruction, the jury returned a verdict, in which they say they “ do find the right of property and possession of the property described in the petition, was, at the commencement of this action, in' the plaintiff, and assess his damages at $2,984.86.” Judgment having been rendered on the verdict, and that judgment having been affirmed in the district court, this petition in error was filled in this court to reverse those •judgments.

      F. J. Wing, for plaintiff in error.

      V. P. Kline, J. A. Smith and Arnold Green, for defendants in error.
   McIlvaine, O. J.

On an agreement for the sale of goods to be paid for on delivery, when payment on tender of goods is refused, the vendor can not be deprived of the right of possession against his consent, until payment is made or tendered. Perhaps no one will dispute this proposition.

After tender of the goods and refusal to pay, the vendor may bring his action against the vende.e, and recover the contract price, although the right of possession stiil remains in him.

Granting that the election of the vendor to sue the vendee on the contract for the purchase price, vests in the vendee the right of property, it is nevertheless true, under the 'contract, that the right of possession remains in the vendor in the nature of a pledge to secure the payment of the purchase money, and after judgment, the goods may be seized in execution, as the property of the vendee. I can see no objection to such proceeding by execution at law. J3ut, at all events, if interests be subsequently acquired in the property from the vendee, which would preclude the seizure of the property in the hands of the vendor, as the property of the vendee, it is beyond doubt that equity would take hold of the property, and apply it to the payment of the purchase-money.

Whether the right of the vendor to have the goods sold and remaining in his possession applied to the payment of the purchase-money be at law or in equity, I am satisfied that the right of possession for the purpose of security can not be taken away without his consent.

Beyond doubt, in this case, the vendor, the Jackson Iron Company, did not deliver the goods to the purchaser, Chamberlain. It is true, he tendered the warehouse receipt, according to contract* and demanded payment. Payment being refused, the vendor retained the receipt. The goods were held by Rhodes & Co., warehouse-men, as bailees of the vendor. This relation was not changed.

It is conceded that the Jackson Iron Company recovered a judgment against Chamberlain for the full contract price. After judgment, Chamberlain assigned for the benefit of creditors to Mooney, the plaintiff in the original action, who brought this suit against Rhodes & Co., the bailees of the Jackson Iron Company, for the recovery of the goods. The question in the case was, whether Mooney, as assignee of Chamberlain, or Rhodes & Co., as bailees of the Jackson Iron Company, were entitled to the possession of the goods.

The case below turned upon a single fact. The Jackson Iron Company, in its action against Chamberlain for the purchase price, averred in its petition that the goods had been sold and delivered,. It would undoubtedly have been sufficient to have averred that the goods had been sold and tendered, but, inasmuch as payment was refused by Chamberlain, the possession of the goods had been retained by the plaintiff, who was ready and willing to deliver, upon payment of the price.

In this case, I admit the averment of delivery, in the petition in the former case, was entitled to weight as an admission of the vendor that there had been an actual delivery to the plaintiff’s assignor. But I deny that admission was conclusive between the parties to this suit. Beyond all question it was untrue. I can find no element of estoppel in the admission as against the defendants in this case. Neither the plaintiff nor his assignor was misled by the averment.

On the trial below the case was tried on the theory that in an action by a vendor for full purchase pi’ice, an averment of the delivery of goods is conclusive, and that the subsequent retention of the goods by the vendor as security for the purchase-money is wrongful, although by the contract of sale such retention is stipulated for. In this there was error, for which the judgment below should be reversed.

Judgments reversed, and cause remanded to the court of common pleas for a new trial.


author: Atherton, J.

text:
    Building Association v. Clark.

      Unrecorded mortgage — Subjection of interest of mortgagor — Notice—Rights of judgment creditor — Pleadings— Traverse.

    1. The mortgagor in an unrecorded mortgage, who sells and conveys the mortgaged property, and concurrently takes back a mortgage from the purchaser to secure the purchase-money, retains such an interest in the property as may be taken in equity and applied on the debt secured by the unrecorded mortgage.
    2. An assignee from such mortgagor who takes an assignment of the claim of the assignor and mortgagor, with full knowledge of the facts, and after maturity, and during the pendency of a suit in which the rights of the parties appear of record, acquires no better title than his assignor, and such interest, as against the assignee, will be decreed to be taken and applied to the payment of the unrecorded mortgage.
    3. The purchaser from the mortgagor of lands incumbered by an unrecorded mortgage, takes title thereto free from such incumbrance, even if he has full knowledge and notice of its existence, and that it is unpaid at the date of his purchase.
    4. If a judgment creditor procures a judgment against such a purchaser after such unrecorded mortgage has been recorded, his lien thereunder is valid as against such mortgage, and, upon a judicial sale of the mortgaged property, the proceeds of sale will be applied to pay such judgment lien, in preference to the mortgage which was not recorded at the date of such purchase.
    5. An averment in a reply that the pleader can not admit or deny the allegations of the answer, but demands proof of the same, is no traverse of the facts so alleged, and the defendant in such case will not be called on to adduce proof of the truth of his averments.
    Error to the District Court of Franklin county.
    The Home Building and Loan Asssociation of Columbus, Ohio, being the owner of lot No. 36 in R. E. Neil’s addition to the city of Columbus, Ohio, on November 20, 1876, for the consideration of $2,000, sold and conveyed the same to Augustus Johns.
    On the same day Johns executed and delivered to such association his notes for $1,250, being for deferred payments of purchase-money, and a mortgage deed re-conveying the realty to the association to secure the payment of the notes.

      Oil the same day Johns also executed and delivered to the Capital Building and Loan Association his note for $1,000, and secured the same by a mortgage to the latter association upon the same premises.
    The money so procured was used to make the down payment on the premises to the Home Building and Loan Association.
    These mortgages were not filed for record until December 17,1877, and were then both recorded as of the same time.
    On July 25, 1877, Johns, for the consideration of $1,800, as expressed, sold and conveyed to William J. Waters the south half of Lot No. 36, who took such conveyance with full knowledge and' notice of the unrecorded mortgages, and that the same were wholly unpaid. At the same time, and as a part of the same transaction, Waters re-conveyed the premises to Johns, by mortgage deed, to secure the payment of $500, being for so much of the purchase-money of the south half; which mortgage was filed for record July 26, 1877.
    On December 28, 1877, Wesley Royce, assignee, etc., filed, in the clerk’s office of Franklin county, a transcript of a judgment for execution against Waters, for $72.76 debt and $17.10 costs, and, on the same day, a lieu was acquired thereunder on the south-half of lot No. 36 as the property of Waters.
    On July 16, 1878, Waters and wife, by a deed of general warranty, conveyed the south half to Michael Wackerman, for the alleged consideration of $2,500 and, on March 30, 1880, Wackerman, by deed, duly executed, and for the alleged consideration of $25, conveyed the same to Kittie Waters, the wife of William J. Waters.
    Ou August 1, 1878, the Home Building and Loan Association brought suit, in the court of common pleas of Franklin county, against Augustus Johns and wife, the Capital Building and Loan Association, and William J. Waters, to foreclose its mortgage ; and, by an answer and cross-petition, filed August 16, 1878, the Capital Building and Loan Association also sought to foreclose its mortgage on lot No. 36. September 17, 1878, Johns filed his answer, in which, among other things, he alleged that, on or about July 23, 1877, he sold and conveyed, by deed, to William J. Waters, the south half of lot No. 36, and took notes and a mortgage from Waters, as a part of the purchase-money, for $500; that, at the date of such purchase, Waters was fully aware of the two unrecorded mortgages to the building associations, and prayed that if it became necessary to sell the premises to pay the liens, the north half of lot No. 36 be first exhausted, and, if the south half should be sold, then that the amount duo to Johns from Waters, under his mortgage, be applied to pay the amount due the associations.
    After filing that answer and during the pendency of the action, Johns sold and assigned the notes and mortgage to the defendant, Charles T. Clark. The latter, on his own motion, was afterwards made a defendant, and, by leave of the court, on May 9,1881, filed his answer and cross-petition, alleging the execution and delivery of the notes and mortgage from Waters to Johns, and that for a valuable consideration the latter had sold, assigned, indorsed, and delivered the same to himself.
    In his answer he also alleged the recovery of the judgment by Royce, assignee, etc., against Waters, and that in January, 1880, Royce assigned such judgment to him (Clark). Ho averred that at the time Johns convoyed to Waters, and Waters mortgaged the property back to Johns, the mortgages of the associations had not been filed for record, and by reason thereof, as assignee of the Johns notes and mortgage, he had a lien on the south half of lot No. 36, superior to the liens of the associations, and that the lien by reason of the Royce judgment, was superior to the lien of the associations.
    The associations replied to the answer of Clark, and, after certain other averments, recite that they have no means of knowing, except from the allegations of the answer, any thing in regard to the averments in the answer; that “ after the maturity of said note the said Augustus Johns,for a valuable consideration, indorsed and delivered said note to said Charles T. Clark, and he is now the lawful owner and holder thei’eof,” and that they “ can not admit or deny the same, but demand proof thereof.”
    Since the pendency of the proceedings the north half of lot No. 36 has been sold and the money applied to pay the liens of the associations, and the south half has also been sold, and the proceeds thereof are in the custody of the court for distribution.
    On trial in the district court, the court ordered the proceeds of sale to be distributed, first, to pay taxes; second, costs; third, to pay Clark $685.75 on the Johns mortgage; fourth, to pay Clark $113.16 on the Royce judgment; and fifth, the residue, if any, to Kittie Waters; and the court further ordered that the mortgages to the associations be canceled.
    The associations prosecute petitions in error to reverse the judgment of. the district court.

      Gilbert 11. Stewart, for plaintiffs in error.
    The lien of the Home Building and Loan Association is superior to that of Clark, because it is a vendor’s lien of which he had notice.
    The plaintiffs are entitled to the first lien upon the south half of the lot as against both Johns aud his assignee, Clark, because the notes and mortgage were taken by Johns with full knowledge of the amount, existence, and non-recording of the association mortgages. He was not a subsequent bona fide purchaser without notice, but took his notes and mortgage with full knowledge of all the surroundings, and of the existence and non-payment of the association mortgages. Under such circumstances the vendor’s lien is paramount. Williams v. Roberts, 5 Ohio, 39; Perkins v. Gibson, 51 Miss. 699; 1 Hilliard Mort. (3rd ed.) 238, 681; Briscoe v. Bronaugh, 1 Tex. 326; Mounce v. Byars, 11 Ga. 180; Frail v. Ellis, 17 Eng. L. & Eq. 457 ; Toft v. Stephenson, 9 Eng. L. & Eq. 80 ; Pierson
      v. David, 15 Ia. 23; Webb v. Robinson, 14 Ga. 216; 1 Jones Mort. (3rd ed.) §§ 192, 193, 204.
    The vendor’s lien of the Home Building and Loan Association, is not impaired by the fact that notes and a mortgage were taken for the balance of the purchase money. Neil v. Kinney, 11 Ohio St. 58; Anketel v. Converse, 17 Ohio St. 11-20.
    Under the prayer of the petition for general relief, a court of equity may grant any needful and proper relief in the enforcement of the liens and distribution of the proceeds that may be equitable.
    Johns and his assignee, Clark, are estopped to claim a lien superior to the building associations. They are affected with notice, and as to them it was not necessary that the mortgages should be recorded at all. Fosdick v. Barr, 3 Ohio St. 471; Sidle v. Maxwell, 4 Ohio St. 236; Gill v. Pinney, 12 Ohio St. 38-46 ; Stewart v. Hopkins, 30 Ohio St. 502-526; Riley v. Rice, 40 Ohio St. 441.
    The estoppel extends as well to prevent the claim to the proceeds, as it would to the title. Big. Est. (2d ed.) 250, 301, 382; Jones v. King, 25 Ill. 383; Mills v. Catlin, 22 Ver. 98; Steiner v. Baughman, 12 Pa. St. 106; Douglas v. Scott, 5 Ohio, 198; Philly v. Sanders, 11 Ohio St. 490.
    The rights of Clark as a judgment creditor are fixed by statute, and his lien extends only to the lands of the judgment debtor, and to the debtor’s interest in the same, subject to all equities existing against him. Walton v. Hargroves, 42 Miss. 18; Tucker v. Hadley, 52 Miss. 414; Thompson v. McGill, Free. Ch. (Miss.) 401; Lewis v. Caperton, 8 Gratt. 148.

      S. Hambleton, for Charles T. Clark.
    The liens of mortgages in Ohio take effect from the time of their delivery to the recorder. 1. S. & C. 465, sec. 7; 1 S. & C. 469, sec. 13 ; Revised Statutes, sec. 4133; Magee v. Beatty, 8 Ohio, 396; Stansell v. Roberts, 13 Ohio, 148; Bloom v. Noggle, 4 Ohio St. 45; Mayham v. Coombs, 14 Ohio 428; Astor v. Wells, 4 "Wheat. 466; Jones Mort. §§ 513, 573 ; Bercaw v. Cockerill, 20 Ohio St. 163.
    The judgment creditors of Waters, from whom Clark purchased the judgment, had no notice or information of the claim of the associations. They could not be required to search the record outside of the chain of title. Leiby v. Wolf, 10 Ohio, 83; Calder v. Chapman, 52 Pa. St. 359; Farm. Loan and T. Co. v. Maltby, 8 Paige, 361; Cook v. Tracis, 20 N. T. 402; Losey v. Simpson, 3 Stock. (N. J.), 246.

      J. Wm. Baldwin, for defendant in error, Kittle "Waters.
   Atherton, J.

The principal controversy in this case is between the two building associations on the one side and Charles T. Clark on the other, touching the disposition of the proceeds of the sale of the south half of lot No. 36. The former claim the funds in the hands of the court under their unrecorded mortgages, and the latter under the mortgage made by Waters to Johns, and under the lien of the judgment obtained against Waters by Royce, assignee, etc. What are the relative rights of the associations and Clark to the fund, and which of them is entitled to it?

It is claimed on behalf of the associations that inasmuch as Johns and those claiming under linn, had knowledge of the amount, existence and non-payment of the mortgages, and that one of the mortgages was given to the Home Building and Loan Association for purchase-money, and the other was given to the Capital Building and Loan Association for money borrowed to make the down payment to the former association, their equity is superior to that of Clark, and that Johns and Clark are not bona fide purchasers, and that the unrecorded mortgages are first to be satisfied; and further, that the judgment held by Clark on these premises is confessedly subsequent to the record of these mortgages and so must be postponed to them. It is quite clear that the mortgage to the Capital Building and Loan Association is not a better lien because loaned to enable Johns to make the first payment upon the premises in question or to secure money borrowed to pay for the land. Stansell v. Roberts, 13 Ohio, 148.

As to the Home Building and Loan Association, it does appear that their mortgage was given for purchese-money, and that the subsequent purchasers and incumbrancers took whatever interests they had with full knowledge of that fact. It is, however, claimed on behalf of Clark that the Home Building and Loan Association has not declared upon its supposed vendor’s lien, but relies simply upon its mortgage and has filed a petition the sole object and prayer of which is to foreclose its mortgage. The petition does ■seem to be so framed, and, conceding it to be simply a ease to foreclose the mortgages, how then stand the rights of the parties ?

Both mortgages were made by Johns to the associations at the same time, but were not filed for record for more than a year, and not until long after the conveyance of Johns to "Waters of the south half of lot 36, and his mortgage back to Johns had been executed and recorded. The statute provides, “ Sec. 4133. All mortgages executed agreeably to the provisions of this chapter shall be recorded in the office of the recorder of the county in which the mortgaged premises are situated, and shall take effect from the time the same are delivered to the recorder of the proper county for record.” In construing this statute this court formerly held and announced that “ a mortgage has no effect, either in law or equity, previous to its delivery to the recorder of the county for record.” Holliday v. Franklin Bank, 16 Ohio, 533.

This declaration of the law had reference to third parties who were not parties to the unrecorded mortgage, and when the question of the effect of the unregistered instrument came to be adjudicated between the parties to it, the court, in Sidle v. Maxwell, 4 Ohio St. 236, held that, “ the object of the statute requiring the record of mortgages being notice to persons other than those who are parties to the instrument, a mortgage may be valid and binding without such record as between the parties to the instrument.

. . . The language of the court in the case of Holliday v. The Franklin Bank of Columbus, 16 Ohio, 533, declaring ‘ that the delivery of a mortgage for record is a part of the .execution of the instrument, and that, before the filing for record, a mortgage has no validity either in law or in equity,’ must be received with the qualification that it has exclusive reference to the effect of the instrument as to those not parties to it.” To the same effect are Fosdick v. Barr, 3 Ohio St. 471; Grill v. Finney, 12 Ohio St. 38; Stewart v. Hopkins, 30 Ohio St. 502 ; Riley v. Rice, 40 Ohio St. 441.

It follows from these authorities that, as between the • building associations and Johns, the mortgages were as valid and binding as if recorded. Waters took the land, so far as he acquired an interest, freed from the lien of the mortgages, although he had full notice and knowledge of their existence. As to Waters, the mortgages of the building associations did not take effect, because not recorded, when he acquired his interest in the south half of lot No. 36. Magee v. Beatty, 8 Ohio, 396; Stansell v. Roberts, 13 Ohio, 148; Mayham v. Coombs, 14 Ohio, 428; Bercaw v. Cockerill, 20 Ohio St. 163.

“ The legal rights of such persons can not be displaced at the instance of the holder of a prior unrecorded mortgage or contract for a mortgage, although acquired with notice of such mortgage or of the existence of such contract; the object of the law being to avoid all the vexed questions of notice, actual or constructive, in determining priorities of lien.” Bloom v. Noggle, 4 Ohio St. 46.

After the conveyance of Johns to Waters and his concurrent mortgage back to Johns, Waters owned the south half of lot No. 36, subject to a mortgage lien of $500, and Johns still held and owned an interest in the land, and a lien upon it for $500.

As to Waters, the unrecorded mortgages created no lien on his equity of redemption; but as to Johns he, and the interest he retained, was subject to the unrecorded mortgages, and when the property was sold by j udicial process, • and converted into money, the fund, to the extent of the $500 and interest, was applicable pro rata to the payment of the unrecorded mortgages, unless the sale and transfer of the notes and mortgage to Clark requires the application of a different rule.

As will be observed, on September 17, 1878, Johns filed an answer and cross-petition, in the case, in which he alleged that there was due and to become due to him, on the mortgage from Waters, $500 and interest, and insisted if the south half of lot No. 36 should be sold, that the sum Waters owed him should be applied to pay the unrecorded mortgages to the associations.

After this answer was filed, and long after the suit had been pending, and after the association mortgages had been filed for record, Clark bought, the Johns notes and mortgage. He admits in his answer that he bought after their maturity, but alleges that Johns, for a valuable consideration, indorsed, assigned, and delivered the notes and mortgage to him. The plaintiffs insist that there was no proof offered on the trial of the payment of any consideration for the notes. But Clark alleges directly a full consideration, and the only supposed traverse of that averment of Clai’k in the plaintiffs’ reply is as follows: “ That plaintiffs have no means of knowing, except from the allegations of said answer, any thing in regard to the following allegation therein contained, that, ‘ after the maturity of said note, the said Augustus Johns, for a valuable consideration, indorsed and delivered said note to said Charles T. Clark, and he is now the lawful holder and owner thereof,’ ” and “ therefore can not admit or deny the same, but demands proof thereof.” This was no denial of the facts alleged by Clark, and did not put him on proof, as the averments were admitted by that form of pleading.

But assuming Clark paid a valuable consideration, he purchased the notes and mortgage of a person bound by the unrecorded mortgages; he purchased them after due; he procured them of a person whose answer filed in the ■case admitted substantially the superior equity of the plaintiffs, and sought to have the money otherwise coming to him applied to pay the claims which he admitted himself legally and equitably bound to pay; he purchased pending the suit and long after the association mortgages were recorded, and he takes no better right or title to the Johns notes than Johns himself had; and the proceeds of the Waters mortgage should have been applied to the payment of the association mortgages pro rata according to the amounts secured by them respectively.

Another question remains, whether the lien of the judgment held by Clark or the liens of the unrecorded mortgages are superior. When the sale of the south half of lot No. 36 was made to Waters, he took such interest as he then acquired free from the lien of the unrecorded mortgages. The subsequent, recording of these mortgages could not and did not create or revive their lien against the interest he acquired under his deed.

When the judgment lien was obtained by Royce upon the equity of redemption Waters owned in the land, it was a valid incumbrance subject only to the mortgage to Johns, and was valid against the mortgages to the building associations.

It follows, therefore, that, after satisfying the Johns mortgage (the proceeds of which are to be paid to the associations), the Royce judgment is to be next satisfied, and the residue of the purchase-money, if any, is to be paid to Kittie Waters.

Judgment reversed, and cause remanded.

Johnson, J., dissented.