Page images

company (Insurance Co. v. Wolff, 95 U. S. his acts and conduct had waived the iron326, 24 L. Ed. 387; Bennecke v. Insurance safe clause in the policy, it is not denied by Co., 105 U. S. 355, 26 L. Ed. 990), this is true the defendant in its answer that the adjuster only of such facts as are peculiarly within had the power and authority to waive such the knowledge of the assured. If the com- clause, but it is alleged that the plaintiffs pany ought to have known of the facts, or signed a nonwaiver agreement, and deliverwith proper attention to its own business ed to the adjuster. The matter of securing would have been apprised of them, it has invoices was clearly within the scope of the no right to set up its ignorance as an ex- agent's authority in determining the amount cuse."

of the loss, and where an agent acts within In the case of Jennings v. Chenango Ins. the scope of his authority, he will bind his Co., 2 Denio (N. Y.) 75, in the opinion by principal; but we need not rest our concluJudge Depue, cited in the case of Northern sion in this case upon the question of the Assurance Co. v. Grand View Building Ass'n, authority of the adjuster or agent, for we 183 U. S. 329, 22 Sup. Ct. 140, 46 L. Ed. 213, must presume that in the due and ordinary and of which it is said by Justice Shiras: course of business, and within a reasonable “ "In the opinion by the court given by Judge time, the adjuster reported the facts to the Depue, there was a full examination of cases defendant. In fact the answer of the deon the subject of the admissibility of parol fendant admits that, and the undisputed evievidence in actions on policies of insurance, dence is that the plaintiffs paid the premium and some of his observations are so weighty, due some days after the fire. Mr. Perry tesand so applicable to the case before us, that tified that he remitted the premium to the we shall quote from them at length"—it is defendant on the 10th day of September, said by Judge Depue: "If strict compliance more than 30 days after the adjuster was with the conditions of insurance with re- at Anadarko, and that while he had no perspect to matters to be done by the insured sonal recollection as to whether at the time after the contract has been concluded has of making the remittance he reported to the been waived, such waiver may, in general, company the particular policy upon which it be shown by extrinsic evidence by parol.” should apply, it was his usual custom to do And later, in the opinion by Justice Shiras so, and it is admitted in the record that the in the case of Northern Assurance Co. v. defendant received the remittance of the Grand View Bldg. Ass'n, supra, after citing premium made by Perry & Farmer, and that and quoting from numerous authorities, is it has never returned the premium, or offerthe following: “What, then, are the princi- ed to do so; so that, in view of the allegaples sustained by the authorities, and appli- tions in defendant's answer and the facts cable to the case in hand? They may be and circumstances in existence, we must conbriefly stated thus: * * * That where clude that the defendant was fully informed waiver is relied on, the plaintiff must show as to the loss and as to the facts by reason that the company, with knowledge of the of which it claimed a forfeiture of the right facts that occasioned the forfeiture, dispensed of the plaintiffs to recover at the time that with the observance of the condition; that, it received the premium, and with full knowl. where the waiver relied on is an act of an edge thereof retains the same. Having reagent, it must be shown either that the ceived and retained the benefits of the conagent had express authority from the com- tract, and having required the plaintiffs to pany to make the waiver, or that the com- incur the expense of procuring the bills and pany subsequently, with knowledge of the invoices, and having obtained whatever benefacts, ratified the action of the agent."

fits there were to be obtained from them, and Other authorities might be cited, but we it being for their information alone, it would think it unnecessary. The record discloses manifestly be unjust to permit the defendthat the trial court held to the view that, un- ant to now take advantage of the forfeiture. less the plaintiffs could show that the ad- It is contended by defendant that, by signjuster had express authority from the board ing what is called the "nonwaiver agreeof directors or of the company, through some ment," the plaintiffs cut themselves off from one who had the power to delegate that au- relying upon the acts of the adjuster as conthority, the adjuster could not waive any of stituting a waiver of the forfeiture. This the conditions of the policy by any act of his. was an instrument without consideration, and

It is admitted by the answer of the defend- could be only received in evidence for the ant that it sent the adjuster to Anadarko for purpose of determining what the intentions the purpose of adjusting this loss, and that he of the parties were at the time. It is alleged

. had the power to investigate and examine in plaintiffs' reply that he signed the same into all of the facts and circumstances with

upon the false and fraudulent representations reference to the loss, and that he had au- of the adjuster, and when the same should thority to make a full and complete settle- be received in evidence it would be competent ment with the plaintiffs. We may reason- for the plaintiffs to show the circumstances ably conclude, from our general knowledge under which it was signed, that the jury as to such matters, in fact, although it is might determine what the facts were. Howalleged in the petition that the adjuster by ever, the fact that the instrument was writ


ten up at the time by the adjuster, and that , v. Insurance Co., or any other case decided the defendant in its answer seeks to take ad- | by this court.” vantage of the provisions thereof, if not a The trial court erred in excluding the tesclear admission that the adjuster had the au- timony offered, and in sustaining the demurthority to waive the forfeiture conditioned in

rer to the evidence. The jury should have the policy, is a circumstance tending strongly been permitted to say, under proper instructo sustain the position of the plaintiffs that tions, whether the defendant, after full knowlhe had such authority. In the case of Thomp- edge of all the facts upon which it claims son v. Insurance Co., 104 U. S. 260, 26 L. Ed. a forfeiture, had received and retained the 705, in the opinion of the court by Mr. Jus- premium, the consideration for which the tice' Bradley, it is said: “It is always open . policy was issued, and whether, with knowlfor the insured to show a waiver of the edge of the facts, the defendant had ratified condition, or a course of conduct on the part the actions of its adjuster and agents. of the insurer which gave him just and rea- It is argued by defendant that this case sonable ground to infer that a forfeiture

cannot be reversed except by overruling the would not be exacted.” In the case of Hart- previous decision of this court in the case ford Life Ins. Co. v. Unsell, 144 U. S. 448, of Liverpool & L. & G. Ins. Co. v. Richard12 Sup. Ct. 671, 36 L. Ed. 496, the question son Lumber Co., supra. The question upon involved was whether under the circumstan

which this case must be reversed was not ces, the defendant waived a strict compli- involved in that case. There a waiver of ance with the stipulation in the contract as

the conditions in the policy was claimed by to the payment at the time specified of the

reason of a parol contemporaneous agreepremiums or dues on the certificate of in

ment with the agent of the company, and the The trial court instructed the jury: knowledge of such agent, at the time that the "But the plaintiff says that, beyond these policy was issued, of facts as were in plain receipts of money after the day specified, violation of the express stipulations and conthere were instances in which money was re- ditions in the policy. In this case the alleged ceived without any such notice. Now the ques

acts which constitute the waiver of the stipution comes up in respect to that, was there

lations and conditions in the policy occurred such a continuance of business, was the whole

after the contract of insurance was fully con. course of business, from the commencement to

summated, and after the loss occurred and a the close, such that from this and that, and liability upon the policy was claimed; and in from all the receipts and all the transactions,

that case it is held: “Where the waiver rehe had a right to believe, and did believe,

lied on is the act of the agent of the comthat the question of health even would not pany, it must be shown that the agent had be considered, and that it would be willing

express authority from the company to make to take his money shortly after it had become

the waiver, or that the company subsequentdue without inquiry as to his health? If so, ly, with knowledge of the facts, ratified the that makes a waiver. If the company by its unauthorized action of the agent." All of conduct led him, as a reasonable and prudent which can be established by proof of such business man, to believe that he could make facts and circumstances as would necessarily payments a few days after, sick or well, it result in that conclusion, and, under the cannot turn around now and say, “You did pleadings and circumstances of this case, are not pay at the time. I cannot say to you,

questions of fact to be determined by the jury as a matter of law, that one receipt after the

under proper instructions. time specified would make a waiver, or that

Our attention is called by defendant in erfifty would. It is not in the numbers. The

ror to the case of Smith et al. v. Insurance question is for you to consider and deter

Co. (Dak.) 43 N. W. 810, and Burner's Adm'r mine from all of them, and from the whole

v. German-American Ins. Co. (Ky.) 45 S. W. course of business, whether, as a prudent

108, which holds that "acceptance of the business man, he had a right to believe that

premium on a forfeited policy after loss of the it was immaterial whether he paid on the day property by fire does not waive the forfeiture or a few days later. If the course of con

where the premium was due and a part thereduct was such that he had a right to believe

of earned before the forfeiture.” The case that he could pay only in good health, then of Smith v. Insurance Co., supra, was a case there was no waiver applicable to the case at in which the violation of the conditions in bar. It must have been such a course of

the policy of insurance relied upon as a forconduct as would lead a reasonably prudent | feiture was the giving of a chattel mortgage man to believe that the company was willing and the taking of an additional insurance to take payment, sick or well.” Justice Har

upon the property by the insured. In the lan, who wrote the opinion of the court, with opinion it is said: “It must be borne in mind reference to this instruction says: "The law

that the policy had been in force more than applicable to the case was stated to the jury

one year when the chattel mortgage was with substantial accuracy. It is a mistake given, and over two years when the additionto suppose that the charge was inconsistent al insurance was obtained. The risk had at. with the principles announced in Thompson tached, the note and interest were past due.

* The whole premium was earned, al- Commission Company on these same catthough the full term fixed for the running of tle to secure the payment of $8,316.66. the policy had not elapsed. The risk had The commission company took the catterminated through no fault of the insurer, tle from the pasture for the purpose of and the defendant was legally entitled to foreclosing its mortgage; there being a balcollect and retain the premium. Had the ance due thereon. Stribling, through uis policy in this case been voidable in its in

agent, J. M. Moody, commenced suit in the disception, and no risk had ever attached, coun- trict court of Pawnee county against Palmsel's position would have been tenable." er & Brigham, claiming that there was due

The judgment of the district court of Caddo him, for pasturing these cattle, the sum of county is reversed and remanded, with costs $2,000, and alleging that there existed in his to defendant in error, and with directions to favor a lien under sections 108 and 110 of that court to grant a new trial, overruling chapter 3 of Wilson's Rev. & Ann. St. 1903 of the demurrer to the evidence, and to pro- Oklahoma, which provides as follows: (eed in accordance with the views herein "Sec. 108. That any person or persons expressed

employed in feeding, grazing, or herding any

domestic animals, whether in pasture or othBURWELL, J., who presided in the court erwise, shall for the amount due for such below, not sitting; all the other Justices con- feeding, grazing or herding, have a lien on curring.

said animals."

"Sec. 110. All liens, not to exceed in the

aggregate twenty-five per cent. of the value (17 Okl. 117)

of such animals, against any domestic aniCRISMON, Sheriff of Pawnee County, v.

mal or animals for labor, grazing, herding or BIRSE LIVE STOCK COMMISSION CO.

feeding, or for corn, feed, forage or hay, fur(Supreme Court of Oklahoma. Sept. 5, 1906.) nished the owner of such domestic animals 1. ANIMALS-AGISTMENT-LIEX-WAIVER. as herein provided, and actually used for One who has a lien on cattle for pasturing

such purpose, shall be prior to all other liens ihem, under the terms of sections 108, 110, c. 3, Wilson's Rev. & Ann. St. 1903 of Okla

thereon, and no recital or stipulation in any homa, waives such lien by suing for the amount mortgage or other incumbrance on any cattle of the debt and causing the property covered so fed shall be held to supersede or vitiate by such lien to be attached in such suit, as

the lien here provided for." she lien under the statute and the lien under the attachment are inconsistent, and cannot coex

At the time of the commencement of that ist in favor of the same person.

action an affidavit of attachment was filed [Ed. Note.--For cases in point, see Cent. Dig. by Moody (Stribling's agent) on the ground vol. 2, Animals, $ 61.]

that Palmer & Brigham were nonresidents. 2. CITATTEL MORTGAGES-LIEX-PRIORITIES

An order of attachment was issued thereon, ATTACHMENT. The rights of a mortgagee to the posses

placed in the hands of the sheriff, and the sion of personal property covered thereby are cattle in question seized thereunder. They superior to those of a sheriff who claims under were being held by the sheriff under this a writ of attachment, sued out at the instance of another creditor of the mortgagor, and levied

writ when the present suit was commenced on the property after the filing of the mort- by the plaintiff, Barse Live Stock Commission gage for record in the office of the register of

Company, against the sheriff, John II. Crisdeeds of the county ; the attaching creditor not having paid off the mortgage or deposited the

mon, to recover possession of the cattle for amount thereof as required by the statute.

the purpose of foreclosing its chattel mort(Syllabus by the Court.)

gage. Error from District Court, Pawnee County;

The question presented for our considera

tion is, which lien is superior?—the lien of before Justice Bayard T. IIainer.

the Barse Live Stock Commission Company Action by the Barse Live Stock Commis

under its chattel mortgage, or the lien of sion Company against John H. Crismon, sher

the attachment under which the sheriff held iff. Judgment for plaintiff, and defendant

the cattle. This question is easily answered. brings error. Affirmed.

The chattel mortgage was executed and Wrightsman & Fulton and James B. Diggs, | properly filed long prior to the levying of for plaintiff in error. Biddison & Eagleton,

the writ of attachment. There was no confor defendant in error.

tention that the mortgage was not a valid

and subsisting mortgage. The plaintiff in BURWELL, J. One J. C. Stribling control- | the attachment suit never paid off the mortled a certain pasture in the Osage Indian gage or offered to do so, nor did he make a Reservation. Palmer & Brigham, through deposit of the money to pay off the mortgage their representative, J. B. Middlebrook, en- as provided by the statutes. Therefore, not tered into a contract with Stribling for the having complied with the requirements of pasturing of a bunch of cattle. This con- the law, the attachment must fail as against tract was entered into on April 2, 1902. On the chattel mortgage. But the plaintiff in May 17, 1902, Palmer & Brigham executed error contends that he claims under his a chattel mortgage to the Barse Live Stock statutory lien for pasturing the cattle and not under the writ of attachment.

Brooks and Curtis attached the shoes, they It is true that the statute gives a lien on waived their lien." cattle to one who feeds or pastures them for Nor can it be said that the sheriff held the such feed or pasture. However, conceding cattle as the agent of Stribling. He did not that Stribling had a lien for such pasturing, take the cattle by reason of such agency, but he waived it when he caused a writ of at- in obedience to the command of the writ tachment to be issued and levied on the cat- of attachment. Whitaker v. Sumner, 20 tle. The lien given under the statute on Pick. (Mass.) 399. Other authorities might domestic animals for feed or pasture is sim- be cited, which support the rules announced ilar to a lien under a chattel mortgage. It in this opinion, but it is unnecessary, as may be foreclosed and the property sold to this court in the case of Dix v. Smith, supra, satisfy it. Where one by contract or stat- adopted the rule stated, and we are satisutory provisions has a special lien upon prop

fied with the conclusions therein reached. erty to secure the payment of a debt, he must By attaching the cattle Stribling waived his either enforce his lien or he may attach the lien for pasturing them. He had no right property, if legal grounds exist therefor, but to attach the cattle without first paying off he cannot acquire both liens on the same the chattel mortgage. As the mortgage was property to secure the payment of the same duly filed with the register of deeds before debt. They are inconsistent, and cannot co- the levying of the attachment, the mortexist in favor of the same person. The Su- ga gee's lien was superior to the lien of Stribpreme Court of Massachusetts in Evans v. ling under the writ. Warren, 122 Mass. 323, said: "A mortgagee of The judgment is therefore affirmed, at the personal property, by attaching the same in cost of the appellant. All the Justices conan action for the debt, waives his claim un- cur, except HAINER, J., who presided at der the mortgage." See, also, Cobbey on

the trial below, not sitting.
Chattel Mortgages, vol. 2, $ 746, and Jones on
Chattel Mortgages, $ 565. And again Mr.
Cobbey, in the section referred to above,

(17 Okl. 305) says: “The liens created by mortgage and

MOSIER et al. v. WALTER.

. by attachment on the same property are es- (Supreme Court of Oklahoma. Sept. 5, 1906.) sentially different, and cannot coexist. The

1. CANCELLATION OF DEED PLEADING – effect of an attachment by a mortgagee is to LACK OF LEGAL REMEDY. put the property out of his control, and into In an action to cancel a deed, it is unthe custody of the law. Therefore, where necessary to allege the lack of an adequate

remedy at law; but the facts themselves should the mortgagee attaches the property covered

be pleaded from which that conclusion can be by the mortgage for another debt, not se- drawn. cured, due him from the mortgagor, he waives 2. SAME- NOTICE OF DISAFFIRMANCE. his right under the mortgage, and is estop

In such case, where the acts of the deped to plead his mortgage against subsequent create a "reasonable belief that he has aban

fendant pleaded are of such a nature as to attaching creditors. After thus putting the doned the contract involved, the vendor may property into the custody of the law volun- rescind, and bring his action without notice to tarily it would not be equitable to allow him

the vendee to do so, and without pleading to set up his mortgage to defeat the custody

notice of disaffirmance in his petition.

[Ed. Note.-.For cases in point, see Cent. Dig. of the law.” To the same effect is the case vol. 8, Cancellation of Instruments, $$ 30, 71.] of Dix v. Smith, 9 Okl. 124, 60 Pac. 303, 50

3. SAME-TRIAL-SUBMISSION TO JURY. L. R. A. 714. This identical question was

In an equitable proceeding for the candecided in the case of Legg v. Willard, 17 cellation of a deed, the jury sits merely in an Pick. Mass.) 140, 28 Am. Dec. 282. S. N. advisory capacity to the court, and a party canWarren and L. Eames were copartners.

not complain of the refusal of the court to

submit special interrogatories, as their submisThey made an assignment for the benefit of sion or rejection by a court of equity lies solely creditors. On the day of the assignment one within its sound discretion, and it may adopt Brooks and another party by the name of

or reject such as it deems proper, and no erCurtis had in their possession about 100 pairs

ror can be predicated thereon, unless such dis

cretion has been abused. of shoes, the stock of which had been deliv

[Ed. Yotę.-For cases in point, see Cent. Dig. ered to them by Warren & Eames under a vol. 8. Cancellation of Instruments, $ 106; vol. contract that it should be made up into

19, Equity, 88 788, 789.] such shoes. Under the law Brooks and Cur- (Syllabus by the Court.) tis had a lien on the shoes for the labor

Error from District Court, Comanche Counperformed in manufacturing them, but, when they heard of the assignment they sued War- ty; before Justice F. E. Gillette. ren & Eames for the amount due them for

Action by Minnie E. Walter against W. E. making the shoes, and caused a writ of at

Mosier and the First National Bank of Waltachment to be levied thereon. The court

ter. Judgment for plaintiff, and defendants after holding that Brooks and Curtis were

bring error. Affirmed. entitled to a lien on the shoes for manufac- Parmentor & Myers, for plaintiffs in error. turing them, further stated that, "when McElhoes & Ferris, for defendant in error.

PANCOAST, J. This is an action seeking It is contended that the evidence did not cancellation of a deed from the defendant in justify the verdict and the judgment thereo!. error to the plaintiff in error Mosier. On We have examined the record with much June 9, 1902, the defendant in error was the care, and are satisfied it is sufficient. There owner of lots 29, 30, 31, and 32, in block 76, was evidence offered bearing on all matters in the town of Walter, Okl. In pursuance of essential to be proved, and this court will an attempt to encourage building in that por- not disturb a verdict, where the jury had tion of the town, for the purpose of locating evidence upon which to found it, unless manas nearly as possible at that point the center ifestly wrong; and that is not this case. of business and increasing thereby the value The overruling of the demurrer is also asof the remainder of her property, the defend- signed as error, and the point is made that ant in error, Mrs. Walter, entered into a writ- the petition is defective, in that it fails to ten contract with the Owl Drug Company, | allege that plaintiff has no adequate remedy owned by the plaintiff in error Mosier and at law, and also because notice of disaffirmhis wife, wherein it was agreed that the said ance of the contract is not alleged therein. drug company would move its stock of goods It is not the better practice, we think, to and business from the place then occupied by plead the lack of an adequate remedy at law it to lots owned by Mrs. Walter, in considera- in so many words, particularly where a petition for which Mrs. Walter was to deed the

tion upon its face shows that an action at lots to Mosier or the drug company, provided law will not suffice to restore the complainant such removal was accomplished on or before

to his original position and compensate him July 1, 1902; otherwise, the contract to be

for the injuries he has sustained. The exnull and void. Some time during June of ercise by a trial court of its equitable juristhat year, Mosier represented to Mrs. Walter diction will not be deemed erroneous because that, in order to comply with his contract and

the inadequacy of the legal remedy is not erect a building on the Walter lots, he would specifically pleaded. The jurisdiction to canhave to have title to the tract in question, in

cel an instrument does not depend upon the order to enable him to procure a' loan and

inadequacy of the complainant's legal remwith the proceeds erect a suitable building.

edy, but is a matter of sound discretion in a Thereupon Mrs. Walter executed and deliver

court of equity, to be assumed or refused aced to Mosier a warranty deed to the premises.

cording to its own ideas of what is reasonMosier failed to procure a loan, and made no

able and right. 1 Story, Eq. Jur. Nos. 206, attempt to move his stock of drugs or busi

692; Jones v. Bolles, 9 Wall. (U. S.) 364, 19 ness known as the "Owl Drug Company," as

L. Ed. 734; Pomeroy, Eq. Jur. pars. 221, 911, required of him, to the lots which Mrs. Wal

914, 1377; Gefken v. Graef, 77 Ga. 340; ; ter had conveyed to him, but instead moved

Shaeffer v. Sleade, 7 Blackf. (Ind.) 178. his business to another portion of the town,

Equitable jurisdiction, as a general rule, will and afterwards conveyed a portion of the lots

not be exercised when the remedy at law, by to the First National Bank of Walter, which

way either of action or defense, is adequate joins in this appeal.

and plain; but in such a case as the one at On September 12, 1902, Mrs. Walter com

bar, where from the face of the pleading it menced this action, and later, on May 12, 1903, filed an amended petition, setting up, in

is amply evident that an action at law will

not compensate for injuries sustained, it substance, the above facts, alleging fraud on

would be a highly inequitable rule to require the part of Mosier, and pleading, further,

a plaintiff to plead a conclusion, after having that Mosier entered into the contract refer

pleaded the facts from which the conclusion red to with no intention of complying with its provisions, but for the sole purpose of ac

must necessarily be drawn. In the consideraquiring title to the land described, and that

tion of this question, it should be rememberthe sale to him was without consideration.

ed that the object sought by the defendant in To this petition Mosier demurred, upon the

error in entering into the agreement for the general ground that it did not state facts suf

transfer was solely to encourage building in ficient to constitute a cause of action against

chat part of the town, for the purpose of him in favor of the plaintiff. The demurrer

locating there the business section, and enwas overruled, and exception saved. On

hancing thereby the remainder of her propMarch 10, 1903, the First National Bank of erty. The damages she sustained by reason Walter, also plaintiff in error, made applica

of the default of Mosier, so far as indicatel tion to be made a party defendant, alleging

by the record before us, were not alone the that on January 4, 1904, it purchased from

loss of the property conveyed, an action for Mosier and wife a portion of the lots in con

the value of which might lie, but the decrease troversy. The bank and Mosier denied gen

in value to remaining portions of her properally the allegations of plaintiff's petition, erty, resulting from Mosier's failure to move and upon the issues thus formed a trial was

his business and erect his building, and his had to a jury, which resulted in a verdict for removal to another part of the town. Anticithe plaintiff, and a decree canceling the deed pated increase in the value of her property, to Mosier. From an order overruling motion while entirely proper to be considered by Mrs. for new trial, the bank and Mosier have ap- Walter, in determining her to enter into the pealed.

contract she did, is in its nature speculative,

« PreviousContinue »