Waller v. Northern Assur. Co., 10 Fed. Rep. 232. A failure on the part of the insured to state his real interest in the property is such misrepresentation as avoids the policy. Henry C. McCormick, (with him S. T. McCormick and M. E. Olmsted), for appellee. The manner of making the inventories of the lumber was fully explained by the witnesses called in support of these inventories who were men of large experience and testified that the Reithmueller v. Fire Assn., 2 West. Rep. 564; Id. inventory was made according to the usual prac20 Mo. App. 246. The acceptance by plaintiff of the policy without dissent closed the contract and bound him to the agreement tendered by the policy, viz., that every interest of plaintiff but that of unconditional and sole ownership was excluded from the promised indemnity. Syndicate Ins. Co. v. Bohn, 65 Fed. Rep. 165. Diffenbaugh v. Union Fire Ins. Co., 150 Pa. 270. Schroedel v. Humboldt Fire Ins. Co., 158 Id. 458. Pottsville Ins. Co. v. Fromm, ico Id. 347-355Swan v. Watertown Fire Ins. Co., 96 Id 37-43. The contract between the plaintiff and Krea mer was a sale. Bretz v. Diehl, 117 Pa. 589. a The Courts, in determining whether or not contract is one of bailment, or one of sale with an attempt to retain a lien for the price, do not consider what name the parties have given to the contract, but what is its essential character. Ott v. Sweatman, 166 Pa. 217. A contract of insurance is a purely personal engagement and does not move with the property insured. Continental Ins. Co. v. Munns, 120 Ind. 30; 5 L. Cummings Cheshire Co. Mut. Ins. Co., 55 N H. Hone v. Mutual Safety Ins. Co., I Sandf. 137. There should be contribution by the Kreamer policies. If Kreamer was simply the agent, bailee or factor of the plaintiff as plaintiff contends, it is clear he had a right to insure this lumber and if so such insurance inures to the benefit of the exchange. 1 Biddle on Insurance, sec. 171, p O'Connor v. Impl Ins. Co., 14 L. Etna Ins. Co. v. Jackson, 16 B. 242. 160, citingCan. J. 219 Monroe (Ky.) Kline v. Queen Ins. Co., 7 Hun, 267. The phrase "goods held in trust" does not mean in any sense a technical equitable trust, but is to be understood in a loose or mercantile sense, and means goods held by a bailee, trustee or agent, etc. I Biddle on Insurance, sec. 702, p. 646, citing tice prevailing among lumbermen. This Court has expressly decided the point raised in contesting the admissibility of these inventories. Insurance Co. v. O'Hanlon, I Walker, 359. A policy of insurance against fire upon a particular building of a commission and forwarding firm, covering "merchandise generally, and without exception, their own or held in trust or on fire in such building, consisting of household consignment," applies to property destroyed by furniture, wearing apparel and books, received and held in deposit by the said firm, subject to the order of the owner, as well as to the property of the firm, and goods consigned to them on commission; and the owner can recover his the policy and paid over by the insurance comproportionate share of the amount covered by pany to the firm, in an action for money had and received. Siter et al. v. Morrs, 13 Pa 218. Pittsburgh Storage (o. v. Ins. Co., 168 Įd. 522. Beach on Insurance, Vol. 2, pp. 310 to 312, sec. Berry v. Insurance Co, 132 N. Y., 49. Where the policy is in form an insurance upon the buildings and not upon the debt due to the vendor, it is prima facie an insurance upon the whole legal and equitable estate, and not upon the balance of the purchase money remaining unpaid; and the burden of showing that it was upon the latter alone rests upon the underwriters. Insurance Co. v Updegraff, 21 Pa. 513. Welsh v. London Assurance Corp., 151 Id. 607. January 3, 1898. MCCOLLUM, J. We discover no error in the rulings complained of in the first and second assignments. They are in exact accord with the decision of this Court in Alle Home Ins. Co. v. Balto. Warehouse Co., 93 U. S. gheny Insurance Co. v. O'Hanlon, 1 Walker, 527. Hough v. People's Fire Ins. Co., 36 Md. 398. 359. In that case an inventory of goods totally destroyed was admitted, in connection with the testimony of the parties who made it, as tending to show the amount and value thereof. This is' The questions raised by the fifth, sixth, sevprecisely what was done in the case at bar. The enth, eighth, ninth and tenth assignments relate inventories of September 2 and October 28, 1895, to the effect of the contract between the plaintiff were made by persons of large experience in the and Kreamer upon the measure of the defenlumber business, and for the purpose of ascer- dant's liability in this suit. The defendant's containing the amount of lumber in the yard when tention is that under and by force of this contract each inventory was taken. They were based on the title to the logs passed to Kreamer, and conestimates of the lumber in piles. The method sequently the plaintiff's insurable interest is of estimating it was that usually employed by measured by the balance of the purchase money lumbermen and the only practicable method of due under it. This is a construction of the conascertaining the amount of lumber piled in the tract to which we cannot assent. It was not inyard. Every grade and size of lumber piled there tended to, and it did not, transfer the ownership was inventoried separately. The manner of of the logs to Kreamer. "He was employed by making the inventories was fully explained by the plaintiff to saw its logs into lumber, and for the persons who made them, and the inventories, this purpose was entrusted with possession of in connection with their testimony, were clearly the property." The work he was employed to competent for the purpose for which they were do was at all times under the supervision and offered and admitted. direction of the plaintiff's representatives, who The third and fourth assignments relate to the were authorized by the contract to take possesrefusal of the Court to affirm the defendant's sion of the logs and mill in case the work was first and second points. The points denied the not being pushed forward satisfactorily or was liability of the defendant to the plaintiff in the improperly done. It required a supplemental suit and called for an instruction that the latter agreement to authorize Kreamer to ship or sell could not recover anything in it. The first point, the lumber, and for this purpose shipping orders appears to be based on an alleged violation of were given from time to time. The lumber was the condition in the policy in regard to the own to be kept fully insured for plaintiff "as owner." ership of the property insured, and the second The contract was nothing more than an employpoint seems to be founded upon alleged defects ment of Kreamer to do the work specified, with in the proofs of loss. A sufficient answer to the a promise to compensate him for it in the manfirst point is that the policy was issued to the ner stated therein. Certainly, as between the insured "on lumber, lath and pickets, their own, plaintiff and Kreamer there was no transfer of or held by them in trust, or on commission, or the former's interest in the logs to the latter. sold but not delivered, piled in the yard leased The defendant concedes that as "between the by Fred. Kreamer at Dauphin, Dauphin county, parties the contract upon its face would probably Penna.." and that the plaintiff had not parted be held to be a bailment." If this were so the with its interest in or title to any portion of the defendant is not in a position to challenge the property covered by the policy at the time of plaintiff's title. It is only to prevent a fraud on the fire. The insurance was not limited to prop-creditors that a contract on its face a bailment is erty of which the plaintiff was the sole and un-held to be a sale. It has been expressly decided conditional owner. It included property held in in Burson v. Fire Association of Phila., 136 Pa. trust or on commission, or sold but not deliv- 267, that an insurance company in writing a polered. Besides, the part of the policy quoted icy does not thereby become a creditor, that it above is in writing and must prevail against the has no standing to assert that the transaction is printed stipulations or conditions in conflict a legal fraud; that where it is good between the with it: Grandin v. Insurance Co., 107 Pa. 26. parties it is good against all the world except In answer to the second point we may say that creditors intended to be defrauded. the supplemental proof furnishes in detail the To the defendant's contention that the policies circumstances in connection with the collection taken out in the name of Kreamer should conand conversion of the logs into lumber under tribute to the loss, it is sufficient to say that these the contract with Kreamer, and it asserts that policies and the one in suit are not upon the said contract was shown to the adjusters repre- same subjects, and therefore not double insursenting the defendant and other companies, and ance. "Double insurance takes place when the that a copy of it was furnished to them. It also assured makes two or more insurances, either appears by the defendant's "renewed objections simultaneous or successive, on the same subto proof," that a copy of the contract was in its ject, the same risk and the same interest": hands. In view of these facts there is no force Clarke v. Western Assurance Co., 146 Pa. 561. in the defendant's contention that the plaintiff's The subjects insured in the Kreamer policies assertion and proof of title was defective. were "lumber of every description, including Court, alleging that B.'s judgment was fraudulent, aud from A's judgment within the twenty days allowed by asking for an issue. Subsequently M. took an appeal law, and on the next day the Court discharged the rule upon the sheriff. Shortly afterwards the Court discharged a rule to strike off A.'s judgment entered on the transcript. standing to take out of Court any part of the proceeds Held, that A.'s lien having ceased to exist, he had no of the sheriff's sale. Held, therefore, that the rule to show cause why an issue should not be granted, was properly discharged. lath, shingles and pickets, their own or held by one in which B., a prior lien creditor, was plaintiff, into them in trust, or sold but not delivered, on ground leased from John Q. Fertig, situate at Dauphin, Dauphin Co." The policy in suit was "on lumber, lath and pickets, their own or held by them in trust or on commission, or sold but not delivered, piled in the yard leased by Fred. Kreamer at Dauphin, Dauphin Co., Penna.' Had the term "lumber" alone been used it would no doubt have included the other items, as it would have been understood then in its broadest. acceptation. But when lath and pickets are Appeal of Mayer Alsberg et al., from the enumerated with the lumber the latter word must action of the Common Pleas No. 3, of Philadelbe understood in its more restricted sense of phia County, in discharging a rule on the sheriff sawed boards or logs. It is not consistent with to pay funds into Court, and for an issue to dethe enumeration contained in the policy in suit termine the material facts in dispute relating to that the term "lumber" should include shingles. the distribution of said fund. If the parties had so understood, it would also The facts of this case were as follows: have included lath and pickets and these latter On November 12, 1896, M. Y. Belber, the terms would not have been used. It follows that plaintiff, entered in the Common Pleas No. 3, as the amount insured in the Kreamer policies of the County of Philadelphia, a judgment note, is not apportioned among the subjects named, and issued execution thereon against M. Belber, the amount of insurance to be placed on the a relative, for the sum of $812.35. shingles is not known and the amount on the On November 16, 1896, four days thereafter, remaining subjects duplicated in the other poli- Mayer and William Alsberg, trading as M. Alscies is not capable of adjustment as double in-berg & Son, recovered judgment by default surance. To what has been said on this branch against the same defendant before a magistrate of the case we may add that the undisputed evi- for $86.78. After a return of nulla bona on the dence shows that the plaintiff did not know of the part of the constable to the execution issued by Kreamer insurance until after the fire, nor con- the magistrate upon the latter judgment, the sent to it at any time. The policy in suit was transcript thereof was removed to Common not, therefore, affected by it. See Wood on Fire Pleas No. 4, of Philadelphia County, and judgInsurance, section 352. The assignments are ment entered therein as of September term, 1896, overruled. Judgment affirmed. No. 1068. Superior Court. Oct. '97, II. Superior Court. W. D. N. October 21, 1897. Belber v. Belber. On November 19, a fi. fa. issued upon the same judgment and a levy was made upon defendant's property, subsequent to the levy made by M. Y. Belber, but prior to the sale made thereunder. On November 20, the sheriff sold under both the writs. On the same day the Court of Common Pleas No. 3, granted, on motion of Alsberg & Son, a rule on the sheriff to pay money realized from the sale into Court, and for an issue between AlsMagistrate's judgments-Appeal from-Effect of berg & Son, and M. Y. Belber. The affidavit in such appeal-Rule on sheriff to pay proceeds of support of the rule averred that there were materexecution into Court-Lien creditor alone enti-ial facts in dispute; and that the judgment of M. tled to rule. Y. Belber against the defendant was fraudulent, being given without consideration, for the purpose of defrauding creditors. No answer was filed and no denial was made of the sworn allegations of the appellant by anyone whatsoever. On November 27, an appeal from the magistrate's judgment in favor of M. Alsberg & Son, was taken by the defendant, and filed in Common Pleas No. 1, on the same day. On November 28, the rule for an issue was discharged. Whereupon the petitioner for the rule took this appeal, assigning for error this action of the Court. Sub- and three days later filed a transcript thereof sequently on December 3, the defendant took a in the Court of Common Pleas No. 4, of Philrule to strike off the judgment of M. Alsberg adelphia county, having first issued an execution & Son in Common Pleas No. 4, which rule was in the magistrate's court, to which there was a discharged. return of nulla bona. The errors assigned were the discharge of the rule to pay money into Court and the refusal of the issue. Charles Hoffman, for appellants. The Act of June 24, 1885, P. L. 160, provides, "That in all cases where a judgment has been obtained before a justice of the peace, city recorder, magistrate or alderman, of this CommonUpon the affidavit of a subsequent lien cred- wealth, and no appeal or certiorari has been taken itor that prior judgments are without consid- to said judgment, and a transcript of said judgeration and for the purpose of hindering, delay- ment has been filed in the office of the prothoing and defrauding creditors, the Court, under the Acts of June 16, 1836, and April 20, 1846, has no discretion, but to award an appeal. Schwartz's Appeal, 21 WEEKLY NOTES, 246. The judgment of the appellants in Common Pleas No. 4, has been sustained by the Court, after argument, and no appeal therefrom has been taken. Although the judgment before the magistrate was by default, the plaintiff has the right to issue execution, where the defendant is not a freeholder, within the twenty days. notary of the county where the said judgment is obtained, such judgment shall thereafter be and have all the force and effect of a judgment originally obtained in the Court of Common Pleas of said county." On the day the transcript was filed a fieri facias issued on the judgment there by created, and a levy was made on personal property of the defendant, subject to the lien of a prior fieri facias for $812.35, issued from Common Pleas No. 3, in favor of M. Y. Belber. The sheriff, a day later, sold this property on both writs and another issued contemporaneously with that of the appellants in favor of a third creditor, realizing $440. The appellants, before the return day of any of the writs, presented a And if the execution and sale under the judg-petition in Common Pleas No. 3, alleging inter ment has taken place before appeal taken, the alia, that the judgment in favor of M. Y. BelCourt will not set aside the execution, or open her was given without consideration to hinder, the judgment. Act of March 20, 1810, par. 6. 1 Brewster's Practice, 628. Patterson v. Peironnet, 7 Watts, 337 delay, and defraud the petitioners and other creditors of M. Belber, and praying that the proceeds of sale should be ordered into Court John Monaghan, (David Phillips with him), for and an issue granted. On this petition the Court appellee. A transcript of the judgment of a justice of the peace filed in the Common Pleas, creates granted a rule on the sheriff and M. Y. Belber to show cause. An appeal, from the judgment of the magisno lien upon the defendant's real estate, if an trate in favor of the appellants, was taken by the appeal be entered before the justice within the defendant, M. Belber, on November 27, 1896, time limited by law. Hastings v. Lolough, 7 Watts, 540. and filed the same day in Common Pleas No. 1. On November 28, 1896, the rule to show cause issued in Common Pleas No. 3 was discharged. The Act of June 24, 1885, applies only to judg-On December 3, 1896, the defendant took a rule, ments of a magistrate from which an appeal or certiorari has not been taken within twenty days from the rendition of such judgment. The transcript of the magistrate's judgment) Weis v Weis, 3 WEEKLY NOTES, 76. Smith v. Reiff, 20 Pa. 364 1 Troubat and Haly, sec. 1162. 2 Brewster's Practice, sec. 3193. January 18, 1898. WICKHAM, J. The appel in Common Pleas No. 4, to strike off the appellants' judgment entered on the transcript, which rule, after hearing, was discharged, for what we know not, nor need we here inquire. It will hardly be seriously contended that the taking and filing the appeal did not ipso facto annul the judgment. The proceedings on the appeal are de novo: Hastings v. Lolough, 7 W. 540; Felton v. Weyman, 10 Pa. 70. A plaintiff cannot prevent this result by hurriedly taking a transcript to the prothonotary's office, provided the defendant, within the time allowed him by law, takes and enters his appeal. lants obtained judgment, before a magistrate, If, by record evidence, the plaintiff in the first against Mary Belber, on November 16, 1896, execution against Mary Belber was able to show Yedinskey v. Strouse. License. that the appellants' judgment had ceased to ex- Oct. '97, 169. Superior Court. December 10, 1897. ist, and this it seems was done, the appellants had no right to an issue, for they had lost their standing to claim, as against the first execution Real estate brokers-Act of April 10, 1849– creditor, any part of the fund which was still in the grasp of the law. As Justice SHARSWOOD says, in Sheetz et al. v. Hanbest's Executors, 81 Pa. 100, an execution creditor engaged in a contest regarding the distribution of the proceeds of a sheriff's sale may displace another creditor's It is no defence to such a claim that plaintiff had no lien by establishing "any matter of defence, aris-license as a real estate broker, as required by the Act of ing subsequent to the judgment, which the de- April 10, 1849, P. L 573. Where one, not a real estate broker, is employed to sell real estate under a promise of payment of a fixed sum if he finds a purchaser, he is entitled to his compensation upon proof that he has secured such purchaser. Appeal of Felix Strouse, from the judgment of the Common Pleas of Schuylkill County, in an action of assumpsit, brought by Phillip Yedinskey, to recover the amount alleged to be due him for services rendered in securing a pur fendant himself could do in an action of debt or An occasional sale does not make the negotiation scire facias upon it." A scire facias to revive thereof a broker within the meaning of the Act of April may be defeated by proof of a collateral agree- 10, 1849. ment that on the occurring of a certain event, to take place after the entry of the judgment, and which has so taken place, the judgment shall have no further efficacy: Hartzell v. Reiss, I Binn. 289; Bown v. Morange to use, 108 Pa. 69; or a discharge in bankruptcy, where the judgment was a probable debt, at the time of the chaser for Strouse's property. adjudication, may be shown with like effect: On the trial, before BECHTEL, P. J., plaintiff Spring Run Coal Co. v. Tosier, 102 Pa. 342. So gave evidence of a parol contract by which he also release, accord and satisfaction, or payment was to receive $300 if he secured a purchaser for may be successfully set up. defendant's property at a price of $20,000; that In the present case the appellants' judgment he brought this property to the attention of one died on November 27, 1896, and their right to Green, who subsequently purchased the same take out of Court any part of the proceeds, real- from Strouse for the agreed price of $20,000. ized from the sale of the defendant's goods, He admitted on cross-examination that he had could be legally denied by any other creditor having a lien on the fund, the latter being insufficient to pay all the claims. done other "jobs" like this but denied that he was a broker. He further stated that he had $150,000 property "on my hands now." He admitted that he did not have any license as a real estate broker. Decisions to the effect that property, sold on execution under a voidable judgment, or on a judgment appealed from, cannot be reclaimed Defendant denied that he had ever promised from the purchaser, rest on a well known prin- plaintiff any sum for securing a purchaser, or ciple not applicable here. Patterson v. Peironnet, that he had ever placed it in his hands for sale. 7 W. 337, cited for appellants, when analyzed, Defendant requested the Court to charge the does not conflict with the views on which we de- jury as follows: cide the case in hand. All that was actually de- "First. That the testimony of the plaintiff and cided there was that the buyer of goods regularly his witnesses shows that the plaintiff was in the sold on execution by the constable before appeal business of buying and selling real estate and taken, was entitled to retain them. No question that he had no license, and therefore, under all as to the disposition of the proceeds of sale between parties claiming as lien creditors arose or was considered. The case also differs from the present one in other respects. We are of the opinion that had an issue been granted, M. Y. Belber might have successfully resisted the appellants' attempt to take any part of the fund out of Court, hence there was no error in refusing the petition. The order discharging the rule to show cause is affirmed, and appellant directed to pay the costs. S. H. T. the evidence the plaintiff cannot recover." Answer "This we decline to say to you, and have already indicated to you that we leave the matter to you as a question of fact." "Third. That under all the evidence the plaintiff cannot recover." Answer "This we refuse to say to you and leave you to decide what your verdict shall be." Verdict for plaintiff, $325.50, and judgment thereon. Defendant appealed, assigning for error, the answer to the above points. William Wilhelm, for appellant, cited— Johnson Hulings, 103 Pa. 498. |