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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) online

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at one time between the plaintiff and the defendant, under an
*iflr-i express written ""contract, creating the same, is admitted;
J and the only question raised on the trial of the cause
was, whether that had not been terminated by the acts of the
parties merely, without any express agreement between them, or
declarations made by either snowing distinctly that it was so,
or even that they wished it to be so. Manley, the plaintiff in
error, by his agreement in writing, dated the 4th of March 1830,
promised to pay Dupuy, the defendant in error, or his legal rep-
164



1836.] OF PENNSYLVANIA. 165

[Manley . Dupuy.]

resentatives, fifty dollars per quarter of a year, for the rent of
his house No. 106 Cedar street ; rent to commence on the 26th
of February 1830. Now admitting this, as contended for by
the plaintiff in error's counsel, to be only a letting by the quarter,
and not for the year, still it gave to him such an interest in
the premises as enabled him to underlet them if he chose ; and
the testimony certainly does go to show, that he did so to Mon-
tegu ; and that Montegu was his tenant as much as four years
after the commencement of his lease from the defendant in
error. This would seem to have been so ; because in March 1834,
when the first distress was made by the defendant in error, for
arrear in rent, it is not easy to account for the conduct and decla-
rations of the plaintiff in error to Montegu, upon any other
ground than that the latter was his tenant, and being in posses-
sion of the house, was bound to pay rent to him for it, which
then had not become payable, as Montegu said, though the plain-
tiff in error's rent, it would seem had, as he did not complain
of the defendant in error's distraining, nor deny his right to do so
for rent then claimed to be due to him ; but on the contrary,
promised Montegu that he would exonerate him and his goods
from the payment of it ; thus plainly intimating that he would
settle or pay it himself, it being justly due to the defendant in
error, but not from Montegu. If the plaintiff in error then, as
the testimony would seem to show was the case, at the time he
quitted the actual occupation of the house himself, leased it to
Montegu, it would have been clearly wrong in the court to have
charged the jury as requested by his counsel, that his removal
therefrom was sufficient proof of the termination of his tenancy,
or in other words, of his lease, under the defendant in error. The
evidence undoubtedly rather went to show that Montegu was in the
possession of the house under a contract with the plaintiff in error,
and that there was no privity of contract between Montegu and
the defendant in error ; but that the privity of contract for the
occupation of the house still continued between the plaintiff in
error and the defendant in error, upon which the former might be
rendered liable to the latter for the rent, as it became due, accord-
ing to the terms of their original agreement.

But it has been argued, that because the defendant in error, as
it is alleged, received four or five consecutive quarter's rent sub-
sequently from Montegu, he thereby recognised him as his ten-
ant, and discharged the plaintiff in error from all liability to pay
any subsequent accruing rent ; and that the court below ought
to have given *it so in charge to the jury. From the r*}gg
testimony, however, it does not appear that the defendant
in error ever demanded his rent from Montegu, but on the con-
trary made out his bills for it as it became due against the plain-
3 165



lb'6 SUPREME COURT [Dec. Term,

[Manley c. Dupuy.]

tiff in error, which he placed in the hands of his bailiff, accom-
panied by a warrant of distress ; that the bailiff called upon the
plaintiff in error for the payment of these subsequent rents,
when he told the bailiff " you know where there are plenty of
goods go and get the money there." The bailiff accordingly,
it would seem, went to the leased premises, the only place to
which he could go for a distress, where he found goods which he
distrained for the rent; upon which Montegu, claiming the goods,
paid the rent in order to relieve them from the distress, but
never paid rent to the defendant in error otherwise. So far the
evidence would rather go to show that the defendant in error
always looked to the plaintiff in error as his tenant for the rent,
as often as it fell due ; and that the plaintiff in error when called
on thus to pay it, never seems to have denied his liability as such
to pay it ; but merely intimated to the defendant in error or his
bailiff, that he must go and collect it by distress, without even
saying that Montegu ought to pay it. Seeing then the rent
was to be collected by distress, the defendant in error had no choice
of goods to distrain on, other than among those to be found upon
the leased premises; and if sufficient were there to answer the
amount of the rent due, it was not necessary that he should know,
nor that he should inquire whose goods they were ; whether they
were the goods of the plaintiff in error, of Montegu, or of a
third person who had never been in possession, nor occupied the
leased premises for a moment, he had the right to distrain them
for his rent, without knowing or being bound to know who was
the owner of them. It would not therefore be reasonable that
the mere circumstance ef the defendant in error's having dis-
trained upon goods that belonged to Montegu, for the rent that
fell due while Montegu was in possession of the house, should per
%e, without its being so intended, have the effect of destroying
the relation of landlord and tenant thereafter between the defend-
ant in error and plaintiff in error, that had previously thereto
existed between them ; nor does it necessarily go to establish
privity of contract between the defendant in error and Montegu,
in regard to the occupation of the house ; but merely to prove
that Montegu, if he occupied the house during the time the rent
distrained for was claimed, was not a trespasser on the rights of
the defendant in error, by his having occupied the house, and
that he could not be so thereafter considered by the defendant
in error ; and this is the utmost extent to which the authorities
cited by the counsel for the plaintiff in error go. It is there-
fore a misapprehension of the law, to suppose that the distress
of the goods of a sub-lessee, or even of the asignee of the first
lessee, by the first lessor for rent due to him from his immediate
166



1836.] OF PENNSYLVANIA. 166

[Manley v. Dupuy.]

lessee, destroys all future privity of contract between r*-i-> 7
them, *and consequently releases the first lessee from *
his future liability to his lessor for the rent, which may become
due thereafter according to the terms of his lease. See Mills v.
Auriol, 1 Hen. Bl. 433; s. c. 4 Term Rep. 94; Boot v. Wilson,
8 East 311. As well might it be said that the distress of the
goods of a third person found upon the leased premises, where
the lessee had quitted the actual possession of them, but the owner
of the goods distrained on for the rent, had never been in the pos-
session nor had any connection with them whatever, should have
the effect of releasing the lessee from his liability to the payment
of subsequently-accruing rent ; but this I apprehend will not be
contended for.

Upon a careful examination of the evidence given on the trial
of the cause, and the instruction of the court to the jury, contained
as well in its charge as in its answers to the points submitted by
the counsel for the plaintiff in error, we are of opinion that he has
no good reason to complain, and that he was dealt with quite as
favorably as he had any right to demand. The judgment is there-
fore affirmed.

Judgment affirmed.

Cited by Counsel, 5 Whart. 11.

See also 2 W. & S. 556 ; 8 Barr 120 ; 11 Harris 20. || Smith v. Clark, 1 W.
N. C. 445 (C. P.). A landlord may receipt to an actual occupant without dis-
charging the lessee. Per Thayer, J.



[PHILADELPHIA, JANUARY 28, 1837.]

Luciani against The American Fire Insurance
Company.

1. A policy of insurance executed by the defendants, an incorporated com-
pany, under their seal, for the term of one year, contained a clause that per-
sons desirous of continuing their insurances, might do so by a timely pay-
ment of the premium, without being subject to any charge for the policy,
insurance was accordingly continued from year to year by endorsements
the policy, which were not under seal : Held, that these endorsements
continue the instrument as a specialty ; and therefore, that the action of cpv
enant would not lie to recover for a loss incurred after the expiratio

2. The plaintiff might have demanded a policy in conformity with the
clause, and have maintained an action for the breach of it ; or he might per
haps, maintain assumpsit on the contract remaining in parol.

(, C. J.



167 SUPREME COURT [Dec. Ttrm,

[Luciam r. American Fire Ins. Co..]

Tins was an action of covenant brought in the Supreme Court
to March term, 1836, by John Luciani against the American Fire
Insurance Company, on a policy of insurance against fire.
*lfi81 *The policy was dated the 14th day of November, A. D.
' 1833, and was limited to one year; but the insurance had
been continued by successive annual renewals endorsed on the
policy, but without any seal affixed to the endorsements, and with
variations as to the amount insured and the premium ; the last
renewal having been on the 14th of November 1835. The loss
happened on the 10th of January 1836.

The following declaration was filed.

" The American Fire Insurance Company of Philadelphia were
summoned to answer John Luciani of a plea, that the said company
keep with him the covenants made by the said company with the
said L., according to the force, form and effect of a certain policy
of insurance, betweeen them made, &c. And thereupon the said
J. L., by I. H. his attorney, complains, for that whereas heretofore,
to wit : on the fourteenth day of November one thousand eight
hundred and thirty-five, at Philadelphia in the state of Pennsylva-
nia, by a certain instrument, or policy of insurance, sealed with
the common seal of the company aforesaid, which the said L. now
here into court brings, the date whereof is the same day and year
aforesaid, reciting, that whereas, the said company had received
of the said L. the sum of $24.50, premium for insuring on mer-
chandise, six thousand four hundred dollars, on furniture, five hun-
dred dollars, and on fixtures, one hundred dollars, the capital stock,
estate, and securities of the said company should be subject and
liable to pay, make good, and satisfy unto the said J. L., his heirs,
executors, administrators or assigns, all such damage or loss which
should or might happen by fire to the property above mentioned,
from the date thereof to the full end and term of one year, not
exceeding in the whole the sum of seven thousand dollars, according
to the amounts as above mentioned ; unless the said company shall
within thirty days after the proof of such damage to, or loss of the
merchandise, furniture and fixtures aforesaid insured, furnish the
said insured with the like quantity of any or all of the said goods,
and of the same quality as those so injured by fire, or should make
good the damage or loss by paying therefor.

And the said J. L. further says, that during the continuance of
the said policy, the aforesaid goods specified in the said policy,
happened to be, and were set on fire, and were much burnt, dam-
nified and hurt by the said fire, and that the loss and damage
which happened to the said goods by the said fire, amounted to a
large sum of money, to wit, to the sum of ten thousand dollars,
whereof the said The American Fire Insurance Company then and
there had notice and full and sufficient proof. And yet the said
168



1836.] OF PENNSYLVANIA. 168

[Luciani v. American Fire Ins. Co.]

company or their officers, workmen or assistants, or any of them,
did not after proof of said loss and damage so happened to the said
goods, give direction for putting the same in as good a condition as
the same *were before, by the fire, or make good the loss or r*i^q
damage by paying therefor. Neither did the said company '
within thirty days, or at any time since, after proof of the damage,
or loss aforesaid, to the aforesaid goods, furnish the said J. L. with
the like quantity of all or any of the said goods, or of the same
quality of those so injured by the said fire, nor make good the
damage or loss aforesaid, by paying therefor, which they ought to
have done, according to the form and effect of the said covenant
in that behalf made ; and that the said American Fire Insurance
Company, though often requested, have not kept their said cove-
nant with the said J. L., whereby the said J. L. says he is damni-
fied to the value of ten thousand dollars, and therefore he brings
suit, &c."

The defendants craved oyer of the instrument, and demurred
generally.

On a former day, Mr. Hazlehurst, for the plaintiff, obtained a
rule to show cause why the declaration on the record should not be
withdrawn, and the following substituted :

" The American Fire Insurance Company, a body politic and
corporate in law, were summoned to answer John Luciani of the
county aforesaid, of a plea that they keep with him the covenants
made between them, according to the force, form and effect of a
certain deed made by the said The American Fire Insurance Com-
pany to the said J. L., and so forth, Whereupon the said J. L., by
I. H., his attorney, complains, for that whereas by a certain deed
commonly called a policy of insurance, made by the said The
American Fire Insurance Company, and by them sealed with their
common seal, on the fourteenth day of November, in the year of
our Lord, one thousand eight hundred and thirty-three, at Phila-
delphia, to wit, at the county aforesaid, which said deed sealed as
aforesaid, the said plaintiff now into court brings, bearing date the
day and year aforesaid ; reciting that the said The American Fire
Insurance Company had received of the said plaintiff seven dollars
premium for making insurance, according to the tenor of their
printed proposals and conditions thereunto annexed, upon mer-
chandise generally, wholesale and retail, composing the stock of a
confectioner, in a brick building, No. 205 North Second street,
namely, on merchandise, sixteen hundred dollars, fixtures one hun-
dred dollars, and household goods, three hundred dollars they,
the said The American Fire Insurance Company, did then and
there covenant, promise and agree, to and with the said plaintiff,
that in consideration thereof the capital stock of five hundred thou-
sand dollars, estate and securities of The American Fire Insur-

169



169 SUPREME COURT [Dec. Term,

[Luciani v. American Fire Ins. Co.]

ance Company should be subject and liable to pay, make good and
satisfy unto the said insured, his heirs, executors, administrators or
assigns, all such damage or loss which should or might happen by
aci-A-i fire to the property *above mentioned, from the date thereof
' to the full end and term of one year, not exceeding the sum
of two thousand dollars, unless the said company should within
thirty days after the proof of such damage or loss, furnish the said
insured with a like quantity of any or all of the said goods, and. of
the same quality as those so injured by fire, or should make good
the damage or loss by paying therefor, according to an estimate
thereof to be made by arbitrators indifferently chosen, whose award
in writing should be conclusive and binding on all parties. And
it was thereby agreed by the said parties, that the policy should
expire at twelve o'clock at noon, on the fourteenth day of Novem-
ber in the year of our Lord, one thousand eight hundred and
thirty -four. And whereas, also, on the twenty-eighth day of May,
in the year of our Lord, one thousand eight hundred and thirty-
four, the said The American Fire Insurance Company, as appears
by endorsement on the said policy of insurance, received of the said
plaintiff one dollar by way of premium, for an insurance of five
hundred dollars ; namely, on merchandise, three hundred dollars,
and furniture, two hundred dollars, on the terms and conditions
aforesaid, until the fourteenth of November, in the year of our
Lord, one thousand eight hundred and thirty-four, at noon. And
whereas the said The American Fire Insurance Company, on the
fourteenth day of November, eighteen hundred and thirty-four, at
the county aforesaid, in consideration of the sum of ten dollars and
fifty cents, paid to them by the said plaintiff, as appears by
endorsement on the said policy, did agree to continue the said
insurance for one year, ending at noon on the fourteenth day of
November, eighteen hundred and thirty-five, for the sum of three
thousand dollars, namely, on merchandise, two thousand four hun-
dred dollars, on furniture, five hundred dollars, and on fixtures,
one hundred dollars. And whereas, also, on the seventeenth day
of March, eighteen hundred and thirty-five, the said The American
Fire Insurance Company received of the said plaintiff the sum of
five dollars, by way of premium for an additional insurance on the
said merchandise, furniture and fixtures, on the terms and condi-
tions aforesaid, until the fourteenth day of November, eighteen
hundred and thirty-five, at noon. And whereas the said The
American Fire Insurance Company, on the fourteenth day of
November, eighteen hundred and thirty-five, at the county afore-
said, in consideration of the sum of twenty-four dollars and fifty
cents, paid to them by the said plaintiff, by endorsement on the
said policy, did agree to continue the said insurance for one year,
ending at noon on the fourteenth day of November, eighteen hun-
170



1836.] OF PENNSYLVANIA. 170

[Luciani v. American Fire Ins. Co.]

dred and thirty-six, for the sum of seven thousand dollars, that is
to say : on merchandise, six thousand four hundred dollars, on fur-
niture, five hundred dollars, and on fixtures, one hundred dollars.
And the said plaintiff in fact, further says, that at the time of
making the said policy of insurance, he, the said plaintiff, was
interested in the said insured merchandise, *furniture and r* 171
fixtures, in the said policy of insurance mentioned, and L
thereby intended to be insured to a large amount, to wit, to the
amount of seven thousand dollars, to wit, at Philadelphia aforesaid,
and remained, and continued so interested therein, and owner
thereof, from the making of the said policy of insurance till this
time. And the said plaintiff doth aver, that afterwards, to wit, on
the tenth day of January, eighteen hundred and thirty-six, at the
county aforesaid, while the said policy of insurance was in full
force, the said merchandise, furniture and fixtures, now of great
value, to wit, of the value of seven thousand dollars and over, were
then and there injured, and wholly destroyed by fire, whereof
notice and due proof, afterwards, to wit, on the twelfth day of Jan-
uary, in the year last mentioned, was given by the said plaintiff,
to the said The American Fire Insurance Company ; and the said
The American Fire Insurance Company did then and there become
liable to pay the said plaintiff the said sum of money, unless the
said company should within thirty days after the proof of such
damage or loss, furnish the said insured with a like quantity of any
or all of the said goods, and of the same quality as those so injured
by fire, or should make good the damages or loss by paying there-
for, according to an estimate then to be made by arbitrators, indif-
ferently chosen, whose award in writing should be conclusive and
binding on all parties.

And the said plaintiff did then and there require them to pay
him the said sum of seven thousand dollars so by them assured in
manner aforesaid, unless they should make good the said damages
as aforesaid, according to the form and effect of the said deed and
of the covenant in that behalf so made as aforesaid. Yet the said
J. L. in fact saith, that the said The American Fire Insurance
Company have not paid to him the said sum of seven thousand
dollars or any part thereof, nor made good the said damage in
manner aforesaid, contrary to the form and effect of the said deed,
and of their covenant so made by them in that behalf as aforesaid.
And so the said John saith, that the said The American Fire
Insurance Company, although often thereto requested, have not
kept with and performed to him their aforesaid covenant, but have
broken the same, and to perform the same "have altogether refused
and still do refuse, to the damage of the said John of ten thousand
dollars, lawful money of the United States, and therefore he brings

suit, &c.

171



171 SUPREME COURT [Dee. Term,

[Luciani r. American Fire Ins. Co. |

Mr. ffazlehurst now contended that the amendments ought to
be admitted, as they set forth no new cause of action ; and accord-
ing to the cases, so long as the plaintiff adheres to the original
ground of his claim, he has a right to amend. Rodrigue v. Cur-
cier, 15 S. & R. 83 ; Coxe v. Tilghman, 1 Whart. 287. Even
after judgment on demurrer, the court will grant leave to amend.
Burke v. Huber, 2 Watts 311. The question then is, whether the
renewal of an insurance is not to be considered as a re-execution
*17<>1 ^ * tne i ns ' rumen t- The instrument is the same, and so are
^ the parties. It is not a substituted agreement, but a con-
tinued one. In Vicary v. Moore, 2 Watts 451, there was an
agreement for an alteration, which resolved the whole into parol.
In the present case, there was no modification. In Gower v. Ster-
ner, at this term (ante, p. 75), it was held that the plaintiff might
delare in covenant upon a specialty amended by parol. In Moliere
v. The Penn. Fire Ins. Co., 5 Rawle 247, covenant was brought
under circumstances like the present, and the exception was not
taken.

Mr. W. B. Reed, and Mr. F. W. Hubbell, for the defendants.
The averments in the two declarations differ materially. This
is not the case of a mere renewal, or continuance from year to
year there was an enlarged risk, and a new premium. By the
policy, he was entitled to a new instrument under seal, upon which
he might have maintainrd covenant ; but upon the parol agreement
for renewal, he can only maintain assumpsit. It is settled that
assumpsit will lie against an insurance company ; 2 Phillips on
Ins. 377. Where a specialty has been varied by parol, the plain-
tiff must sue in assumpsit. Vansant v. Sanford, 12 Johns. 197.
These agreements are not mere renewals, but substantive agree-
ments. The cases on the subject of amendments, show that the
new declaration is not admissible. Farmers' and Mechanics' Bank
v. Israel, 6 S. & R. 294 ; Diehl v. McGlue, 2 Rawle 337 ; Coxe v.
Tilghman, 1 Whart. 289.

The opinion of the court was delivered by

GIBSON, C. J. An alteration which is not an amendment may
be disallowed ; and indeed the parties have put the issue of the
contest on the question whether covenant is maintainable on the
case set out in the new counts ; or, in other words, whether the
insurance laid, was effected by specialty or by parol. The origi-
nal policy covered the stock of a confectioner, valued at $2000 ;
which was, by express stipulation, to expire at the end of a year.
It is not pretended that any new policy was sealed ; but it is sup-
posed that subsequent contracts of insurance were introduced into
the old one, through a clause in the printed conditions annexed to
172



1836.] OF PENNSYLVANIA. 172

[Luciani v. American Fire Ins. Co.]

it, which is undoubtedly a part of it. By this clause, it is pro-
vided that " persons desirous of continuing their insurances, may
do so, by a timely payment of the premium, without being subject
to any charge for the policy ;" and the first step taken by the
assured, was not to continue the original insurance, but to insure
an additional sum by payment and endorsement of an additional
premium within the year, and without a corresponding alteration
of the instrument, or the execution of a new one. The amount
iusured was extended by *payment and endorsement of a r*-i"c>
further premium at the end of the first year, to $3000, and I
swelled during the second to $5000 ; which was further increased
for the third, being that in which the loss occurred, by $2000 more.
Now stripped of the right of renewal, it would not be pretended, that



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) → online text (page 19 of 68)