77 F. 818 | 7th Cir. | 1897
Counsel for the appellant in the petition for a rehearing properly criticises the argument of the opinion which is based upon the assumption that the amount of. the insurance upon the buildings, $10,207.01, should be taken to represent
Under such circumstances can the Columbia Straw-Paper Company, or its trustee, — who is chargeable with notice of the covenants of the lease, — properly insist that the lessor shall be limited in his recovery to two-thirds of the sum actually realized for insurance? The lease required that the buildings should be kept insured for two-thirds of their value, and that the proceeds of such insurance should be used in rebuilding, or paid over to the lessor, at the option of the lessee. It also contained a covenant to repair. The provision in the trust deed required like insurance to the amount of two-thirds of the value of the property insured, payable to the trustee, but that money paid to the trustee under any insurance policy may be applied to the reconstruction, replacement, or repair of the property. While it is true that the right of the lessor rests upon the covenant of the lease, is limited and controlled by it, and is not to be extended, it is still true that his contract was for insurance to the extent of two-tliirds of the value of the building in solvent companies; and where, as here, there has been no setting aside of insurance policies for the benefit of the lessor, and no opportunity afforded him to accept of any company as solvent and satisfactory, and where, as here, the lessee effecting the insurance to the full value of the property has caused the loss to be made payable to the trustee under a condition that the insurance may be applied to the reconstruction of the property injured or destroyed by lire, the trustee having notice of the rights of the lessor, we see no reason to disturb the finding of the court below with respect to the approprialion of the total amount collected for insurance upon the buildings. It was the design of all the parties that the insurance should go to the restoration of the structures. The lessor covenanted for effectual insurance in solvent companies, but was without the opportunity of selection. He ought not, as against his lessee, and its successor and trustee with notice, to be bound by the selection of the companies made by the trustee. It could not be tolerated that the lessee or trustee should say to the lessor, “Your two-thirds of the insurance was with the companies that failed; mine, with'the companies that remained solvent.” If the appellant desired to hold
The appellee suggests, in answer to the petition for a rehearing, that, as the decree of reversal gave the appellee a substantial right, denied by the appellant, and which might have been discharged by payment or tender, the costs of the appeal should be borne by the appellant. The court below awarded to the appellee the amount collected of the insurance upon the buildings, $5,203.55, and also the amount collected of the insurance upon the machinery, $6,600. We were constrained to hold shat the latter award was erroneous, but affirmed the court below with respect to the insurance upon the buildings. It is not determined with precision under what circumstances costs of appeal will be denied or apportioned between the parties. Possibly no cast-iron rule could be formulated that would award exact justice in all cases. The question was somewhat considered in Packard v. Lacing-Stud Co., 33 U. S. App. 306, 16 C. C. A. 639, and 70 Fed. 66, and in New England Railroad Co. v. Carnegie Steel Co., 33 U. S. App. 491, 21 C. C. A. 219, and 75 Fed. 54. In the former case the decree was reversed in some substantial particulars, but not in the most important particular, and neither party was allowed costs upon the appeal. In the latter case the; decree was modified in a minor particular, and neither party was allowed to recover costs on the appeal. In Mason v. Graham, 23 Wall. 261, 278, the decree below was modified by abating some $450, and, without any discussion of the question, the court directed that each party should pay his own costs upon the appeal. In Railroad Co. v. Harmon’s Adm’r, 147 U. S. 571, 590, 13 Sup. Ct. 557, the only error found in the judgment below was in the allowance of interest, and the court ordered that, if the interest should be remitted, the judgment should be affirmed, otherwise reversed; but that, in either event, costs should be paid by the defendant in error.
Without undertaking to go further than the case before us requires, we are of opinion that the appellant is entitled to the costs of this appeal. ■ The appellant has succeeded in reversing the decree in the most important part, so far as the amount of money is concerned. It is true the appeal was from the entire decree, and that the appellant contested the right of the appellee to the recovery for any amount. We think, however, it would be a harsh rule that would deprive an appellant of the statutory costs of -an appeal un