170 Pa. 402 | Pa. | 1895
Opinion by
On June 8, 1874, John Eichman, now the plqintiff, receiver, and ten other citizens of Schuylkill county, secured a charter for the North Schuylkill Mutual Fire Insurance Company of Mahanoy City. They at once organized the company and commenced to solicit insurance, appointing Carl Scheuerman general agent; he, on 15th of July, 1874, called on the defendant, John Hersker, and urged him to take out a policy, representing the company was doing a prosperous business and had then issued about five hundred and twenty-five policies; Hersker made application for a $2,000 policy. The application is as. follows:
“For value received, and in consideration of a policy of insurance to be issued by the North Schuylkill Mutual Fire Insurance Company, of Pennsylvania, upon the approval of my application of insurance in said Company of this date, I promise to pay the said Company such sum or sums of money, and at such time or times, as the Board of Directors of said Company may, for the purpose of paying losses by fire, and the*407 necessary expense of said Company, require, — payable within thirty days after notice and demand.
“ Carl Scheuerman, John Hersker,
“ Agent. Applicant.”
The policy contains this stipulation:
“ In consideration of dollars in hand paid, and hereby acknowledged, and an obligation to pay all such sum or sums of money, and at such time or times, as the Board of Directors may, for the purpose of paying losses by fire, and the necessary expenses of said Company, require, do insure,” &c.
Hersker also delivered to the company his premium note.
It .appeared that Scheuerman, the agent, had falsely represented the number of policies then in force to Hersker; instead of about five hundred and twenty-five, Hersker’s made the twenty-fifth, the first policy having been No. 501 instead of No. 1. Later, on December 8,1874, Scheuerman solicited and obtained an application from Hersker for a second policy in the sum of $2,200; the application and policy being the same in form as the first.
Two assessments were made on these notes, No. 1, October 6, 1875, of \\ per cent, No. 2, May 10, 1876, of a like percentage, and both assessments were paid by Hersker. On May 17, 1876, a destructive fire occurred in Mahanoy City, by which the company was a very heavy loser; but notwithstanding this, a number of policies were taken out after that date, the last being No. 718. Nearly all the losses by fire occurred prior to the issuing of the second policy, No. 628, and a few before the issue of the first, No. 525. The losses, however, were so severe, that property owners were greatly deterred from becoming members; as a result, the managers ■were discouraged, and on 6th of April, 1877, they resolved to issue no more policies, and that all policies issued should terminate the 10th of May, 1877; at the same time they further resolved to surrender to the policy holders all premium notes on payment of all unpaid dues and assessments: So far as the record shows, none of the policy holders accepted this method of ending their relations with the company. On December 21 of same year, the company made an assignment to I. Y. Sollenberger, Esq., for the benefit of creditors; he accepted the trust,
Before the assignment, the board of directors had laid two more assessments, each of 1¿ per cent, the first, No. 8, January 11, 1877; and the second, No. 4, May 8, 1877. These Hersker also paid. But a small part of the last assessment was collected when the assignee assumed his duties. The aggregate of the four assessments was $13,806.33, of which, owing to insolvency of members, only about $6,000 was collected. By the account of assignee Sollenberger, confirmed absolutely, there was a balance in his hands, when he resigned, of only $781.18.
William Krause, the holder of policy No. 533, issued 24th of July, 1874, for $1,200, sustained a loss by fire of all the property insured under it on the 10th of October, 1875 ; being indebted to Solomon Lowenstein, he assigned his policy and claim to him; Lowenstein brought suit against the company, obtained judgment for $1,008.50, and issued execution, which was returned “ no goods,” the company having made assignment before writ came to sheriff’s hands. The company having borrowed money in bank, and being unable to take up its notes when due or when payment was insisted on, made a loan from John Phillips to take up this paper, and then confessed a judgment to him against the company for the amount of the loan, $2,852.16. The company, besides the Lowenstein and Phillips claims, owed some smaller ones at the date of assignee Sollenberger’s resignation; the entire indebtedness then was $4,660.22, to pay which it had in cash the balance due from the assignee, $781.18. Lowenstein, as a judgment creditor, filed a bill for an injunction to restrain the officers from further management of the affairs of the company, and for the appointment of receiver; the company, in answer filed, concurred in the prayer for a receiver, when the court accordingly, on December 1, 1884, appointed John Eichman, this plaintiff.
On January 19, 1885, the receiver presented his petition to the court, setting out the financial condition of the company, as already noticed, and, further, stating that there remained only $500 of the four assessments already made collectible, which added to the $781.18 received from assignee Sollenber
The receiver levied the assessment of 11 per cent in accordance with the order, and Hersker having refused payment, on the 1st of March, 1886, he brought suit in the common pleas; the defendant pleaded non assumpsit, payment, etc., with right to add special pleas. The case came on for trial, and was submitted both as to facts and law to the court, Judge Pershing sitting as trial judge. He found for plaintiff, and defendant appeals, assigning for error sixteen findings of fact and eighteen conclusions of law.
As to the findings of fact, there was evidence to support each of them; true, some of them were found on the testimony of interested witnesses; as to nearly all there was contradictory testimony, or testimony which warranted inferences more or less antagonistic, the truth depending, in some measure, on the character and appearance of the witness. An examination of the printed testimony, independent of the opinion of the learned judge of the court below, leads us to no certain conclusion; the argument of counsel on both sides is so clouded by accusation, irrelevant matter and acerbity, that it affords us but little
As to the legal conclusions of the court from the facts found, while not passing upon them in the order in which the errors-are assigned, we will notice them briefly in the order in which they stand in our judgment in relation to the issue :
1. As to the nature of the indebtedness, which the receiver sought to pay by the assessment. A large part of it the directors of the company were personally responsible for. The company had borrowed money from banks, which it could not pay; a loan was made from Phillips to pay the banks; judgment was confessed by the company to Phillips, and the directors, also, as individuals, confessed judgment to him as additional security. Appellant seeks to draw a distinction between this-debt and one owing directly by the company to policy holders. We can see none. The debt to the bank was created by borrowing to pay actual losses by fire in anticipation of payments-on assessments. In making themselves individually liable, they are in equity substituted as creditors of the company in place of those who had suffered losses. No frafcid is intimated; it is-nowhere averred the money was not borrowed to pay what the company actually owed, or that every cent of it was not used for that purpose. The debt is a valid one, and the company is-as much bound in morals and law to pay it, as if it represented a policy on a burned barn. As is ruled in Orr v. Insurance Co.,
2. As to the statute of limitations: The assessment was not made within six years from the date of the policies and the premium note, nor within six years from the date of the losses, the payment of which had created tire debt now sought to be satisfied by assessment.
As already indicated, this debt must be treated as if it were the original loss; no assessment was ever laid which paid it. The defendant’s contract is: “I promise to pay the said company- such sum or sums of money and at such time or times as the board of directors of said company may for the purpose of paying losses by fire and the necessary expense of said company require.” The point is directly ruled by Smith v. Bell, 107 Pa. 352, and the many cases therein cited. It is said in that case : “ A sufficient answer to the plea of the statute of limitations is, that the note was not payable at once, or on demand, but is payable by installments, upon the happening of a loss and assessments therefor; and so until an assessment is made, the statute does not begin to run.” Counsel for appellant attempt to draw a distinction between Smith v. Bell and the case in hand, in the facts, which renders the rule inapplicable. It is argued, the company in that case was organized under the act of 1856, which makes all members liable for all losses and expenses ; that the policy holder in that case gave no premium note, but only contracted to comply with the charter and by-laws. But we cannot see that the form of the obligation affects the application of the principle; the contract is the same, whether it be specified in and evidenced by a premium note, or resort must be had to the charter and by-laws to ascertain it. Nor is it any answer to say the company was dilatory in levying the assessment. Mere indulgence in levying the assessment will not bar the right; delay in enforcing collection -after levy and demand would. As the suit was brought within six years from the date of the assessment to pay losses, the plea of the statute will not avail defendant.
Nor does it affect the finality of the decree, that the defendant was not made by name a party to Lowenstein’s bill in equity, and was not notified of the application for authority to lay the assessment. The court below properly decided that making the company a party was sufficient; service on the proper officers of the corporation made every policy holder a party, and the answer of the company, not before decree dissented from, will now, after decree unappealed from, be deemed as concurred in by the policy holder.
4. It is maintained by defendant, the contract cannot be enforced because it was induced by the false representations of
5. There is nothing to convince us the assessment was arbitrary or excessive; the unproductiveness of the preceding four assessments, and the attitude of policy holders, as apparent from this litigation, indicate with reasonable certainty that this one will not more than discharge the existing indebtedness.
We have endeavored to pass upon what we consider the material questions of law and of fact in this issue. Those relating to the illness of the judge, and his physical inability to sufficiently weigh and consider the abundant evidence, both oral and documentary, are not important, and are not borne out by the opinion and judgment before us. He clearly grasped the whole case in all its vexatious details; eliminated therefrom in his findings all irrelevant matter, and has presented to us a concise statement of the facts and law which prompted his decree. It is not improbable that after hearing the witnesses, wading through the papers presented, and hearing arguments of counsel, tinctured with so much acrimony as is present on these paper-books, he was physically and mentally weary; if so, the opinion he filed shows a speedy recovery.
The judgment is affirmed, and the appeal is dismissed at costs of appellant.