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properly he would have separated his defense-histiff iusave. If you justify the statement, and say be
it is right in substance. The real ground however of from any indebtedness the company migbt have on my opinion is that this expression, “reasonable and account of this contract, within ninety days after noprobable cause,” is immaterial; and that therefore tice and proofs of death. there ought to be no particulars at all in this action. On the 31st day of October, 1884, Edmund Phinney They are not wanted. I think it is an extremely upfor- died, leaving the four children surviving him, of tuuate pbrase in this action. Why it was introduced whom the defendant is one. Thereafter within the I do not know. I suppose for some reason. It has time named for the payment of said insurance, this created a discussion which turns out after all to be of action was commenced. The plaintiff alleges that the very little use to anybody. The allegation in the defendant is owing him, and has summoned the ingur. pleadings being immaterial, it is one upon which, inance company as trustee. The only question presented my judgmeut, no particulars at all ought to be given. is whether this company can be legally held in this suit. Upon that ground I think the order was wrong. I An administratrix has been appointed upon the esquite agree about the costs, and that the costs must tate of the deceased. The defendant, since the combe the defendant's in any event.
mencement of this action, has assigned all his interest LOPES, L. J. It seems to me impossible to support in the policy, and his claim upon the administratrix of this order. It is an order for particulars of reason the estate to the fund, to a third party, who claims able and probable cause in an action where reasonable that the fund cannot be legally attached in this process, and probable cause, so far as I can see, has nothing and that it is payable from the company to the adminwhatever to do with the action. I propose only to | istratrix and not to this defendant. deal with one of the causes of action-that is, the If the administratrix is the only party who could cause of action which the plaintiff sets up in respect maintain this action at law upon this contract, it neto a libel. It appears that the defendant thinks he has cessarily follows that a payment by the company to two defenses to that cause of action, one “justifica any other party would not be justifiable, and consetion"and the other“ privileged communication.” The quently this suit could not be maintained as against justification, it proved, would be a complete answer. The the alleged trustee. It should be understood that we privileged communication also might be a completo are not speaking of the rights of these parties otheranswer. The effect of a plea of that kind would be this: wise than in an action at law. Whatever might be At the end of the plaintiff's case it would be submit- our decision, were this in its nature an equitable trusted to the judge that the occasion was a privileged one. tee process, as pow provided by Rev. Stat., ch. 77, $ 6, If the judge so thought, the burden would then lie par. 10, where the remedy is more elastic and equitupon the plaintiff to establish malice in fact. If he | able than in suits at law, it is unnecessary now to dedid not succeed in establishing malice in fact the ac termine. tion would fail. Therefore so far as I can see, reason
Upon a careful consideration of the case, and from able and probable cause has nothing whatever to do an examination of the authorities, we feel confident with the matter. The defendant winds up, in this that the company is not chargeable in this proparagraph of his defense, that he had reasonable and cess. It is the established general rule that a party is probable cause for believing the plaintiff to be a luna
not chargeable in trustee process with respect to credtic. Particulars of that reasonable and probable cause its, unless he is liable in an action to the principal deare now asked for by the plaintitf. I think it an ab fendant. This test, it is true, is not always decisive, solutely immaterial averment. Being an absolutely for there are exceptions to rule. The facts in this immaterial averment, it would be highly improper | case however do not bring it within any of those exthat particulars should be directed. I also agree with ceptions. The question then is, who is the party that what has been said with regard to the costs.
can maintain an action upon this contract?
Our attention has been called to the various decis
ions, not only in this but in other States, bearing upon INSURANCE-LIFE-ACTION.
the question, whether when a promise is made to one party for the benefit of a third, the latter can main
tain an action upon such promise. We do not howMAINE SUPREME JUDICIAL COURT.
ever consider it necessary, in arriving at a proper de. MAY 17, 1886.
cision in this case, to enter upon that question, nor to
extend the doctrine as laid down in Mellen v. Whipple, STOWE V. PHINNEY.*
1 Gray, 317, to a case like this, where the express terms Where a policy of life insurance is made payable to the as
of the contract and the intention of the parties as er. sured, his executors, administrators and assigns, for the
idenced by those terms must be the rule by which we sole use and benefit of the children of the assured, the
are to be governed in our decision. beneficiaries cannot maintain an action at law against the
The contract in this case was made by the company company, but it can only be maintained by the legal
with Edmund Phinney, the deceased. By that conrepresentatives; and the company will not be charged as
tract the amount was made payable to him, his executrustees in an action at law against one of the beneficiar
tors, administrators or assigns, for the sole use and ies after the death of the assured, where there had been
benefit of big four children. At his decease the adno assignment and the insured died intestate.
ministratrix of his estate was the only party who
could legally enforce that contract. The insurance, $. C. Strout, H. W. Gage and F. S. Strout, for plain although for the sole use and benefit of the children, tiff.
was payable, not to them, but by the terms of that Drummond & Drummond, for trustee.
contract to his own legal representative. The comFOSTER, J. The Union Mutual Life Insurance Com
pany as well as the deceased was party to that conpany issued a policy of insurance to Edmund Phinney
tract. It is unlike those cases where, by the terms of for the sum of $4,000. By the terms of that policy the
the contraot, it was expressly promised that the company expressly promised “to pay to Edmund
amount was to be paid, either absolutely or upon the Pbinney * * * his executors, administrators or
happening of some expressed contingency to the beneassigns, for the sole use and benefit of" his four chil
ficiaries themselves instead of the legal representative dren therein named, and the survivor or survivors of
of the assured. them, the amount above named, after deducting there
Thus in Martin v. Ætna Ins. Co., 73 Me. 25, the pol
icy was in the name of the wife on the life of her hus*5 East. Rep'r, 325.
| band, the amount was made payable to her, her execu
tors, administrators or assigns, if she survived her trators or assigns, for the benefit of his widow, if any,
it was squarely met in Bailey v. New England Ins. Co., Another illustration from our own court is the case | 114 Mass. 177. In this case the assured procured a polof Cragin v. Cragin, 66 Me. 517, where the deceased | icy upou his life payable to him, his executors, admin. procured a policy of insurance upon his life “ for the istrators and assigns, for the benefit of his widow. benefit of his wife and children," and the same was Suit was brought in the name of the beneficiary made payable to them, the beneficiaries, their execu- against the company, and judgment was rendered in tors, administrators or assigns; aud it was held that favor of the defendants. The court in referring to the insurance could not have been collected in the the previous decisions of Burroughs v. State Assur. name of the administrator of the deceased, but that it Co., and Gould v. Emerson, make use of the following was the property of the widow and children by virtue language: “The principle upon which these decisof the express terms of the contract. So in Knicker ions rest is, that in policies of this kind the executor, bocker Ins. Co. v. Weitz, 99 Mass. 139, the contract was administrator or assign becomes a trustee uuder an between the company and the wife of the assured, and express trust, and the legal title being in him, he can the amount was made payable to her, her executors, maintain an action in his own name againɛt the com. administrators or assigns, and in case of her death pany. It therefore necessarily follows that the cestuis before that of the assured, it was payable to her chil. que trust cannot maintain such action, but must have dren “for their sole use or to their guardian, if under their rights determined between themselves and the age.” On a bill of interpleader by the company the trustee in other forms of proceeding. This brings this court say: “She having died before the termination class of trusts within the general rules governing all of the policy, and her husband having also died within trusts, and renders the practice simple and uniform. the term, the policy, by its express provisions, was not To allow cestuis que trust to maintain actions in their payable to her representatives or assigns, but to the owu names might subject insurers to several suits on child or his guardian;" and that the latter was en the same policy, or call upon them to determine who titled to recover the amount.
has the beneficial interest, or force them to resort to a On the other hand we find that when the contract is bill of interpleader to ascertain the equitable rights of that it is to be paid to the representatives of the as the parties." This case is cited in support of the desured rather than to the beneficiaries, such represen cision in Unity Association v. Dugan, 118 Mass. 221, tatives are the only proper parties to maintain an ac where the policy in that case was taken out by the astion for its recovery. When collected the fund is held sured for the sole use of his wife, and the court held by them as trustees under an express trust for such that “not being a party to the contract, nor named beneficiaries as may be entitled to it. This doctrine therein as payee,she could not maintain an action at law is in harmony with the entire line of decisions upon thereon," and tbat the sole right to sue at law upon this question, and is founded upon reason as well as the policy after the death of the assured would be in authority.
the administratrix of his estate, and that the associaThe question arose in Burroughs v. State Assur. Co., tion might safely have paid the amount of the policy 97 Mass. 359, where the policy was made payable to the to ber. assured, his executors, administrators and assigns, for Stokell v. Kimball, 59 N. H. 14, is in accord with the the use of his wife and children; during his life-time | principles laid down in the foregoing decisions, boldthe assured, with the assent of the company, assigned ing that where the policy is by its terms payable to the tbe policy, and it was held that the assignee might assured, his executors, administrators and assigns, the maintain an action at law to recover the amount due, | executor or administrator is a trustee or depositary to although the policy was expressed to be for the use of | recover the money for the purpose of paying it to the the wife and children, the plaintiff's right to recover beneficiaries. Our own court, in Cables v. Prescott, 67 at law resting upon the express contract between him Me. 583, recognize the same doctrine where it is held and the insurers arising out of the terms of the that the contract vests in the party to whom it is made policies and of the assiguments to which they have as- payable for the benefit of the cestui que trust. sented.
Nor does the case of Norris v. Massachusetts Ins. Co., The next case was that of Campbell v. New England 131 Mass, 294, to which our attention has been called Ins. Co., 98 Mass. 400, in which the policy was made by the learned counsel for the plaintiff, militate pay able to the assured, his executors, administrators | against the conclusions arrived at in this case, or the and assigns, for the benefit of a wife of the brother of other decisions to which we have referred. It will be the assured, who brought an action to recover the in found that the case was a bill in equity, in the nature surance in her name as beneficiary. Objection to the of an equitable trustee process, and not an action at maintenance of the action not having been seasonably law. The remedy there is much broader and often taken, judgment was recovered in her name. Gray, times more efficacious, for while in such a proceeding, J., says: “In the present case the plaintiff, though as in the case last named, even the entire equitable in. not the assured, was the person for whose benefit the terest of the beneficiary may be reached and applied policy was made, and was therefore the owner of the to the payment of his debt (Donnell v. R. Co., 73 Me. entire equitable interest, and might have maintained 570; Phænix Ius. Co. v. Abbott, 127 Mass. 560), yet a an action upon it in the name and without the con: merely equitable right is not attachable by trustee sent of the administrator, or if the latter had collected process in an action at law. Massachusetts Nat. Bk. 1. the amount of the policy, might have sued him for the Bullock, 128 Mass. 88; Drake Attach., $ 457. proceeds. The plaintiff had the equitable interest in We are of opinion that the questions involved in the policy, although not the title to support an action j this case have been so far settled by judicial decisions at law in her own Dame against the insurers."
as to render any further expression of our views une In Gould v. Emerson, 99 Mass. 154, the policy was necessary. Recognizing as a fundamental doctriue of made payable to the assured, bis executors, adminis- trustee process that the plaintiff does not, as a gen
eral rule, acquire any greater rights against the trus- tire contract, and was not divisible. Here there is a tee than the defendant himself possesses, the excep- | breach of the contract at the beginning; a failure to tions to which rule do not apply to the case before us, perform at the outset; and that breach justifies a reour decision is that the entry should be, trustee dis- scission by the vendee. But a rescission of what? charged with costs.
Obviously of the entire contract. It must be that or Peters, C. J., Walton, Virgin, Libbey and Haskell, nothing, since there are not two independent aud sepJJ., concurred.
arate contracts, one of which may be broken without peril to the other, but a single contract which may
be rescinded at the moment of a breach so far as it reNEW YORK COURT OF APPEALS ABSTRACT. maius wholly unperformed on both sides. The cases
which seem to have misled the court below are ACCOUNT STATED-PART PAYMENT - PRESUMPTION. founded upon peculiar equities growing out of the -(1) Defendant immediately after the receipt of an
form of contract. They contemplate and require a account stated, for goods sold to him, and which had performance in separable parts or divisious, and where been under his control and inspection for five months,
the vendor delivers an agreed proportion which the made two part payments thereon, in the last of which vendee accepts and payment therefor becomes imhe acknowledged that there was a balance still due, mediately due, the right to recover is at once com. provided the goods still on band were "up to the con
plete, and is not forfeited by a later default. The tract." Held, that from the facts the law raised an
contract in such case is called divisible or distributive, implied agreement that the account was correct.
and the language is not objectionable if correctly unLockwood v. Thorne, 18 N. Y. 285, 292; Steuton v. derstood and applied. The right of rescission or of Jerome, 54 id. 487; Quincy v. White, 63 id. 370, 377; abandonment where such a contract has been wholly Young v. Hill, 67 id. 162, 172; S. C., 23 Am. Rep. 997; performed on one side as to one of its separable parts, Shackey v. Mansfield, 90 N. Y. 227; S.C., 43 Am. Rep. and that performance accepted on the other, is lost 61. (2) An account thus stated is not conclusive upon and cannot be regained, for the right to the payment the party, but is simply prima facie presumptively | reserved has fully accrued and does not depend upon correct, and may be impeached for any error induced
further conditions. Practically by the divisible form by fraud or mistake. Even by what was said in the
of the contract, and the joint act of the parties in deletter containing the last payment the defendant as
livery and acceptance, the earlier stipulation is out sented that the account was correct, and the only
off and separated from the later, but nothing of the right he reserved was to impeach it if the goods were
kind is possible where the vendor is in default at the not up to the contract. That right he would have had
1 outset. The vendee is not compelled to accept a part if it had not been expressly reserved. If he could
performance in the inverse order of his coutract, but show that upon subsequent examination he discov- only according to its terms; and where at its initial ered for the first time that the goods were not up to 1 point the vendor is in default, the right to rescind or the contract, he could have alleged the facts in his / abaudon belongs to the veudee, and necessarily aud answer and have recovered his damages. The plaintiff's justly must apply to the whole contract remaining undid not place the defendant at a greater disadvantage
performed. Otherwise the one contract is split into by suing bim upon an account stated, than they would two, each independent of the other. Substantially if they had sued him upon an open account for the
this doctrine has been recently decided. Norriugton goods sold, claiming the balance due, because by
r. Wright, 115 U. S. 188. The reasoning of that case Deither form of action could they cut off his counter seems to us accurate and decisive, and we follow it claim for breacb of warranty, which was the only de
without hesitation. June 1, 1886. Pope v. Porter. fense left to him, the goods having been received by Opinion by Finch, J. him. June 1, 1886. Sampson v. Freedman. Opinion by Earl, J.
STATUTE-"ENTERTAINMENT OF THE STAGE"-CON.
CERTS LICENSE.— A statute enacts that "it shall not be PRACTICE-MOTION FOR RESTITUTION-DISCRETION.
| lawful to exhibit to the public in any building, garden ARY ORDER-CODE, & 1292. The court referred to in
or ground,concert room, or other place or room within section 1292 of the Code of Civil Procedure, which pro
the city, any interlude, tragedy, comedy, opera, balvides that when a judgment is set aside upon motion let, play, farce, minstrelsy or dancing, or any other the court may direct restitution, eto., is the court
entertainment of the stage, or any part or parts which sets aside the judgment; and therefore when
therein, or any equestrian, circus or dramatic per: the judgment is set aside by the General Term, the
formance, or any performauce of jugglers, or rope motion for restitution should be made at the Generaj
dancing or acrobats, until a license for the place of Term. (2) Delay in making the motion for restitu
such exhibition for such purpose shall have been first tion is a question which appeals to the discretion of had and obtained." The Eden Musee has been in the the court to which the application is made, and where
habit of giving public concerts, which its counsel dethere has been no abuse of that discretion this court
scribes as “consisting of orchestral selections of a will not review its action on that ground. June , I high character, in a room or alcove which opens at an 1886. Market Nat. Bank v. Pacific Nat. Bank. Opinion
elevation into a larger room or hall, and is on a level by Earl, J.
with a high gallery encircling said hall." This careSALE-DIVISIBLE CONTRACT.-Plaintiff and defend fully drawn circumlocution avoids saying that the enant made an agreement in writing as follows: “Sold tertainment is upon a “stage,” but the difference is to the following named parties Scotch pig iron to ar rather in the language thau the fact. The proof shows rive as specified below: * * * 500 tons of Coltness that the place is one of public amusement to which pig iron at 36 per ton for shipment, to be due bere in visitors are attracted by the entertainment offered, to April next, 500 tons of Caulder pig iron at 34 per ton which an admission is charged, and which anybody for shipment, to be due here in March next, payable may attend upon payment of the price. It is a prion arrival here by four months' note, indorsed by the vate enterprise planned and accomplished for personal above named parties, with interest added at 6 per gain and profit like other places of public amusement cent." Plaintiff made default in the outset as to the seeking the public patronage. Without doubt it bedelivery of the Caulder iron, but claimed to recover | longs to the general class of cases contemplated by the for the Coltness iron, as to which he was not in de statute as needing more or less of government superfault.
it. Held, that the agreement constituted one en. | vision and regulation, and so required to pay a license
fee. It is claimed however that it is neither au "en- | ning of the statute, The law gives a creditor six years tertainment of the stage'' nor an exhibition of “min- continued presence of his debtor within the State strelsy," and thus not within the language of the stat after the cause of action has accrued, and tbat period ute, but is merely a concert not named or included has been deemed ample to enable the creditor to find within the section referred to. The appellant's coun his debtor and to put the machinery of the law in sel traces to their origin what were known as min- force against him. It would lead to great inconvenstrels, insisting that they were “strolling singers and ience and leave the bench and bar without any certain musicians" wandering about the country, and “not rule, if in every case where a debtor has resided and to be confounded with the musical artist or with the continually been within this State for six years after performer in an orchestra having a fixed abode or a cause of action against him accrued, and the statute domicile." Even if the test of difference between of limitations is interposed as a bar to an action to en"minstrelsy" and “musician" was that one strolled force the same, it could be a matter of inquiry and and the other stayed at home, that one was a vagabond litigation upon disputed evidence whether the debtor, and the other a citizen, it is certain that the word during any portion of the time, concealed himself "minstrelsy" bas acquired a much wider meaning fraudulently or otherwise, and whether the creditor and is used in the statute in that broader sense. The used due diligenoe to find him. There are some cases act of 1862 was confined to “negro minstrelsy," a in which what is now the first clause of the section phrase which designated a known and specific kind of above quoted was under consideration, and it became musical entertainment, and so made that and the necessary for the courts to determine what was a reopera the subjects of license regulations to the exclu turn or coming into the State so as to set the statuto sion of what may be called concerts. But by the act of running wherein it was decided that the return must 1872 the word "negro" was dropped and the word min: be open and notorious, and under such circumstances strelsy "purposely left to its broad and general mean- | that the creditor could with reasonable diligence find ing, without any qualifying or restrictive expression. his debtor and serve him with process. Little v. It was as if the Legislature had declared that instead Blunt, 16 Pick. 359; Hill v. Bellows, 15 Vt. 727 ; Hyg. of limiting the regulation to one sort or kind of “min Linger v. Bullzell, 3 Gill. & J. 158; Didier y. Davison, 2 strelsy" it should thereafter apply to all sorts and Barb. Ch. 477; Ford v. Babcock, 2 Sandi. 518; Cole v. kinds without limitation. So broad was the act, that Jessup, 10 N. Y. 86; Dorr v. Swartwout, 1 Blatchf. C. in 1875 the Legislature deemed it necessary to spec C. 179; 3 Pars. Cont. (6th ed.) 96; Ang. Lim. (2d ed.) ially except from its operation private theatricals and 216. A debtor might return to the State clandestinely church and Sunday school exhibitious and the like. for a few hours, in the night time, or on Sunday, or he The phrase "any other entertainment of the stage” is might be in the State on bis progress through it, and also very broad and comprehensive. Theatrical and a return of such a character which might be concealed operatic performances, minstrelsy and dancing bad from and unknown to the creditor, and which would already been specifically named, and “any other en afford him no opportunity by the use of reasonable tertainment of the stage " implied that there were diligence to serve his debtor with process, is held not others to be included. Was it meant that a boxing | to be a returu to the State within the meaning of the match on the stage of a place of publio amusement did | statute. But it has never before this case, so far as I not need regulation and license, while an opera or a | can discover, been decided that where the debtor was tragedy did? Taking the statute in all its terms it continually in the State for more than six years after evidently meant to include all classes of public ex | the cause of action accrued he was deemed to have hibitions such as are usually conducted upon a stage been without the State, and thus the running of the for the observation aud amusement of the public, and statute defeated because he concealed his abode, and we see no good reasou for narrowing or restricting its thus the creditor was unable to discover him and obvious scope and purpose. June 1, 1886. Mayor, etc., serve him with process. Sleght v. Kane, 1 Johus. Cas. of New York v. Eden Musee. Opiniou by Finch, J. 76, and Poillon v. Lawrence, 77 N. Y. 208, distin
guished. June 1, 1886. Engle y. Fischer. Opinion by STATUTE OF LIMITATIONS - CONCEALED WITHIN
Earl, J. (51 N. Y. Super. 71; 15 Abb. N. C. 72, re. STATE.-Defendant, who resided in Austria in May,
versed.] 1973, there accepted a draft and came to the city of New York, where he has ever since resided. On - CODE, 381 - PARTNERSHIP ACCOUNTING.– reaching New York, for the purpose of concealing Articles of copartnership under sual contained a covhimself from his creditor, he hid himself under an as enant that "all losses happening to said firm, whether sumed name. Plaintiff, in 1882, discovered defendant, from bad debts, depreciation of goods, or any other demanded payment of the draft, and on refusal cause or accident, and all expeuses of the business brought suit. Held, that the statute of limitations shall be borne by the said parties in equal proportion." was a bar to a recovery. It is quite probable that the In an action for an accounting, held, that the action defendant perpetrated a fraud upon the plaintiff by was upon a sealed instrument within the meaning of concealing his residence from him, and that the stat section 381 of the Code of Civil Procedure. The subute is resorted to by him to defeat a just claim. Yet ject was very fully discussed in Peters v. Delaplaine, the statute may have its operation. Ils plain language 49 N. Y. 362, which was an action for specific performcannot be perverted to remedy the hardship of any ance. In such an action equity acts or withholds its particular case. It is a benign statute, and the Legis aid upon grounds peculiar to itself. A covenant to lature has written in it all the exceptions which sound convey does not give an absolute right to a convey. policy dictated to it. It may frequently operate to | auce, and an action seeking that relief depends upon defeat just claims and be used by dishonest debtors other circumstances than the covenant and lies in the to escape the payment of honest debts. A cause of ac equitable discretion of the court. In the present case tion may be barred before it is known to the claim however the covenant and its breach gives the absoant. The debtor may purposely conceal it, and yet | lute right to a recovery of the resultant damages, and the bar of the statute must inexorably be applied. A it is only in the mode of ascertaining them that equitdebtor who has always resided within the State may able aid is found useful. The substance of the action abscond from his home and conceal himself within the is to recover damages for a breach of covenant and is State from his creditors, and yet no one will claim founded upon the sealed instrument. The illustration that such debtors are to be regarded as without the suggested by the learned trial judge of the nature of State, or that such concealment will defeat the run the action between joint obligors in a bond where one