rules and regulations. His subsequent appli- | made. And, when those terms are clear, excation for a loan was entitled "Application for plicit, involved in no doubt whatever, they Loan from the Eastern Building & Loan Asso- must prevail; and it is the duty of the courts ciation of Syracuse, N. Y." He afterwards signed an application for an advance, addressed as follows: "To the Board of Directors of the Eastern Building & Loan Association of Syracuse, N. Y.;" requesting the advance to be made, and again agreeing to comply with the charter and by-laws of the association, and all requirements defined by the committee of the board of directors. Thereupon sixty-seven notes were prepared, sent to him for signature, and signed by him, in the following words: On or before the last Saturday of March, 1893, I promise to pay three and dollars to the order of the Eastern Building & Loan Association of Syracuse, N. Y., at its office in Syracuse, N. Y. Value received.

Williamsport, Jan. 2, 1893.

Joseph C. Bennett.

When he gave his bond for the money loaned he obligated himself as follows: "I, Joseph C. Bennett, am held and firmly bound unto the Eastern Building & Loan Association | of Syracuse, N. Y., in the sum of $400, lawful money of the United States of America, to be paid to said Eastern Building & Loan Association of Syracuse, N. Y.," etc. In the condition of the bond it is provided that if he pays to the association, repeat ing its name and place, $207.89 in sixtyseven equal payments, of $3.17 each, except three of $1.67 each, "payable monthly to said association, at its office in Syracuse, N. Y., on or before the last Saturday of this and each and every month," etc. The mortgage also executed by the plaintiff repeats the name and designation of the defendant, and its place;

to enforce them according to their literal mean-
ing. Nor is there the slightest ground for an
allegation that the contract was made for the
purpose of evading the usury laws of Pennsyl-
vania. Who had such a purpose, and what is
the evidence of it? Did the plaintiff have it,
and, if so, did he communicate it to the de-
fendant? If so, where is the evidence of it?
There is none whatever. The defendant's
business was transacted at its proper place of
business in the state of New York. This busi
ness was a part of its regular business, done in
its usual way; and, as a matter of course, the
mere fact that this loan was made to a citizen
that it was done with an intent to evade the
of Pennsylvania cannot justify an inference
laws of Pennsylvania. This business was done
just as all its other business was done.
defendant had a lawful right to loan money
wherever it pleased, and it would be most
absurd to say that, because it lent money to a
Pennsylvanian, it therefore intended to evade
the laws of Pennsylvania. The Pennsylvanian
had a right to borrow money in the state of
New York if he chose to do so, and, if he
contracted to pay it in the state of New York,
he must be conclusively presumed to know that
his contract would be governed by the law of
that state. In all this there is not a shadow of
an unlawful intent to evade the law of Penn-
sylvania. There was therefore nothing to sub-
mit to the jury on that question.
Judgment affirmed.

v.

Elizabeth Reily BRADSHAW.

The

recites the bond, with its condition for making HARRISBURG NATIONAL BANK, Appt., all the payments at the office of the company, at Syracuse, New York; and then grants to the defendant, repeating its name and place, certain described land of the plaintiff, situate in Lycoming county, Pennsylvania, with the usual proviso that, if the payments are all made to the defendant, the bond and mortgage 1. A statute excepting accommodation

should become void.

Thus, it will be seen that in every possible way in which the English language could express it the plaintiff entered into a written contract with the defendant to pay it, in sixtyseven different payments, every one of which was to be made at the office of the defendant in Syracuse, New York, a designated aggregate sum of money. What is the use of discussing the question whether this was a contract to pay money in the state of New York? What is there to discuss? Nothing. No other place of payment is mentioned or can possibly be implied. This one place is positively expressed over and over again, and many times over, in solemn instruments, signed and sealed by the plaintiff himself, and in sixty-seven different notes, also signed by the plaintiff. It is a waste of time to discuss so plain a matter. The fact that the plaintiff lived in Pennsylvania, and negotiated there with an agent of the defendant either for the membership or for the loan, is not of the slightest significance. The contract must be adjudged by its express terms, no matter where the parties were when it was

(178 Pa. 180.)

indorsement from the contracts which may be made by a married woman does not render invalid a renewal after marriage of such an indorsement made before marriage.

2. A married woman may confirm the act of her attorney in renewing, in excess of his authority, her indorsement on a note given before marriage, if she could have conferred the power on him in the first instance.

her marriage and the renewals are in pursuance of a general understanding that they shall be made, and there was no intention that they should be new contracts.

(October 5, 1896.)

A the Court of Common Pleas for Dauphin PPEAL by plaintiff from a judgment of County in favor of defendant in an action brought to enforce defendant's alleged liability as indorser on a promissory note. Reversed. The facts found by the trial court were as follows:

(2) After

Inst. § 1266; Ritter v. Singmaster, 73 Pa. 400;
Brown v. Scott, 51 Pa. 357.

If, then, the renewals in question were not payments, but operated simply as a suspension of the right of action, the obligation evidenced by the contract remained, and necessarily related back to the origin of the debt.

Stephens. Monongahela Bat. Bank, 88 Pa. 157, 32 Am. Rep. 438.

Overholt v. First Nat. Bank, 82 Pa. 490;

The true test of liability in the present case must depend upon the question whether or not an antenuptial contract of indorsement falls within the prohibition of the acts of 1887 and 1893. Their plain import is to enlarge the powers of married women, and to confer upon them all the powers of a feme sole except in certain specified particulars.

Real Estate Invest. Co. v. Roop, 132 Pa. 496, 7 L. R. A. 211; Koechling v. Henkel, 144 Pa. 215.

Glyde v. Keister, 32 Pa. 87; Finley's Ap peal, 67 Pa. 453.

Since the acts of 1887 and 1893 she can confess a judgment, or do any other act in recognition of her liability in such cases, to the same extent as if she were a feme sole.

Adams v. Grey, 154 Pa. 258; McCormick v. Bottorf, 155 Pa. 331; Mitchell v. Richmond, 164 Pa. 566.

The notes given before marriage are not separable from the renewals made after marriage, but the liability of the defendant is to be drawn from the transaction as a whole, and not from any single part of it.

(1) In July, 1889, Miss Elizabeth Reily indorsed a note for $10,000 for the accommodation of her brother, John W. Reily, which was discounted for him by the Harrisburg National Bank, with knowledge that she was an accommodation indorser, and when this note matured on November 4, 1889, she in like manner indorsed a like note in renewal of the Antenuptial contracts are substantially in first. Before the second note matured, she be the same position as before, except that they came the wife of Walter J. Bradshaw, and may recognize such contracts, and bind themexecuted, jointly with him, a power of attor-selves in relation thereto, more effectually than ney to G. M. McCauley. they could under previous laws. her marriage and the execution and delivery of this power of attorney, she removed to Helena, Montana, where she resided when the second note matured on March 7, 1890. On that day the attention of her attorney was called to this note by the president of the bank, who asked him to indorse a note in renewal. Mr. McCauley expressed doubt whether he had authority so to do, and the president said, if he would indorse it, it would be satisfactory, which he then did. He had no knowledge of the execution of the note until this time, and Mrs. Bradshaw had not mentioned it to him, nor given him any authority to act for her, except the power of attorney above referred to. No protest or notice of nonpayment was made or given as to the note which then matured. At this time the balance to the credit of John W. Reily on the books of the bank was $2,558.06. (3) Thereafter, at intervals of four months, until August 17, 1894, notes, each in renewal of the preceding one, were given to the bank with the accommodation indorsement of Elizabeth R. Bradshaw, the defendant. None of these renewal notes were protested, and there were intervals of, in some cases, two or three days, and in others as many weeks, between the maturity of a given note and the indorsement and delivery of the renewal. Most of the notes, when matured and renewed, were delivered to the attorney of John W. Reily and Mrs. Bradshaw, and the renewal interest was paid by him on account of John W. Reily. (4) When the last note matured, on December 20, 1894, it amounted, with interest, to $10,817, and it was duly protested, and notice of nonpayment was sent to the defendant." Messrs. Robert Snodgrass and Wolfe & Bailey, for appellant:

All of the notes, subsequent to the original, were renewals and were so marked. They were not payments in any sense, nor were they shown to have been tendered or accepted as such. They could not have been considered as payments unless it was clearly shown that they were so intended.

Randolph, Com. Paper, § 1511; Dan. Neg.

Mahon v. Gormley, 24 Pa. 80.

Demand and notice are not parts of the contract, but merely steps in the remedy, which may be waived by the indorser.

Barclay v. Weaver, 19 Pa. 396, 57 Am. Dec. 661.

A subsequent promise to pay the note by an indorser who has full knowledge of all the facts, amounts to a complete waiver of the want of due notice.

Sherer v. Easton Bank, 33 Pa. 134.
Mr. S. J. M. McCarrell for appellee.

1

Fell, J., delivered the opinion of the court: The question presented by this case relates to the power of a married woman to bind herself by the renewal of an accommodation indorsement made before her marriage. The defendant, when single, indorsed a promissory note at four months for $10,000 for the accommodation of the maker, her brother. Once before marriage she renewed her indorsement, and after her marriage she renewed it as the notes became due, at intervals of four months, for the period of nearly five years. The last of the series of notes was protested, and this suit brought upon it. The statement was drawn and the case presented by the plaintiff upon the theory that the notes given before marriage and the renewals after marriage were parts of a continuing transaction, and that the defendant's liability was to be drawn from the whole of it. The marriage of the defendant

1896.

HARRISBURG NATIONAL BANK V. BRADSHAW.

of the act, although the obligation may belong
to the prohibited class. The bank could have
bound the defendant to the payment of the
note absolutely by protest. She could have
bound herself by a waiver of protest. The re-
newal of her indorsement at the maturity of the
note was but the recognition and continuance of
an obligation which she had before assumed,
and which was binding upon her. Whether the
power of attorney given by the defendant to
G. M. McCauley authorized the indorsement
If she had power to renew
made by him of the note of March 7, 1890, is
not material.
the indorsement after marriage, she could do
it by her attorney, and if the power under
which he acted was not broad enough, it was
competent for her to ratify and confirm his
This she did. The indorsement of notes
act.

did not affect her relation to obligations into which she had previously entered so as to release her from an antenuptial contract, and it is conceded that the protest of the first note which became due after her marriage would have fixed her liability as to it; but it is claimed that she was without power, after marriage, to renew her indorsement, as she is not permitted by the act of June 8, 1893, to become The learned an accommodation indorser. judge, before whom the case was tried without a jury, held as conclusions of law that the defendant was discharged from liability upon the note indorsed by her before marriage and which matured thereafter by the failure of the bank to protest it for nonpayment; that the failure to protest was not waived by the indorsement of new notes from time to time; and that she was not bound by the indorse-in renewal by the defendant after she had been ments made after marriage, for the reason that released from liability on preceding notes beshe was incompetent to incur liability as an ac- cause of the failure of the bank to protest commodation indorser. The primary question them for nonpayment was not, under the cirAfter her maris whether a married woman is bound by the cumstances, the assumption of a new liability renewal of an existing valid contract, entered as accommodation indorser. into before marriage, when the contract is one riage she resided in Montana. The notes were which the law does not authorize her to make sent to her by her attorney for indorsement. after marriage. The act of 1893 gives a mar- Most of them were returned to the bank beThe bank relied ried woman the same right to acquire, control, fore the maturity of the notes which they and dispose of property and to make contracts were intended to renew. in relation thereto that she possessed before upon her carrying out in good faith the undermarriage. The limitation placed upon the standing which existed between them as to repower conferred is that she "may not become newals. She did carry it out. It was not at accommodation indorser, maker, guarantor, or any time the intention of either party that she surety for another." The purpose of the limi- was assuming a new obligation for her brother, tation is to protect her from contracts not con- but it was the intention of both that the renected with the management of her estate, and newals should be as of the dates of the notes from which she could derive no advantage. renewed; that there should be no gap; and that As to contracts relating to her own estate or she was continuing her own obligation, entered affairs, the existing restraint was removed. It into before marriage, by which she was bound. remains as to a class of contracts into which | While the defendant was not authorized, after she might be induced or constrained to enter marriage, to enter into a new contract as acfor the benefit of others. The defendant was commodation indorser, it was competent for liable on the indorsement of the note which her to continue her valid antenuptial contract. She could became due two months after her marriage. In dealing with this the act of 1893 imposed True, her liability was conditional only, but it no limitation upon her power. would have been fixed and made absolute by have taken advantage, as could any indorser, By the renewal of her in- of the failure of demand and notice by the protest and notice. dorsement she did not enter into a new obliga- holder of the note, or she could overlook the tion for the benefit of another, but she contin- omission and recognize and reassert her liabil ued and extended for her own benefit an existity by a new indorsement. By so doing she By was not entering into a new contract not auing obligation by which she was bound. so doing she did not "become an accommoda-thorized by the act. Substantially the same tion indorser," and enter into a new forbidden principle was asserted in Brunner's Appeal, 47 contract. The contract already existed and its continuance was for the relief and benefit A construction of the act of her estate. which denies a woman, after marriage, the power to continue an antecedent obligation, would in many cases impose a hardship upon her. If she cannot continue, the alternative is to pay, however great may be the loss to her estate. Such a construction is not required by the letter of the act, and would not be in harmony with its spirit. The proviso of the act of 1887, which is incorporated into the act of 1893, is for the protection of women after marriage from a class of contracts in which they have no direct interest, and from which their The renewal estates can derive no advantage. of an obligation contracted before marriage, we think, does not come within the meaning

Pa. 67. Under the act of 1848 a married woman was liable on her antenuptial contract, but was without power to confess judgment for a debt due by her. It was held in the case cited that she could agree to the revival of a judgment entered after marriage by virtue of a power of attorney signed by her before marriage, for the reason that it was not the creation of a new liability by the renewal of one already existing. We are of opinion that under the findings of fact judgment should have been entered for the plaintiff.

The judgment is reversed, and set aside, and now, October 5, 1896, judgment is entered for the plaintiff for the amount of the note of August 17, 1894, with interest and costs of protest, $12,202.06.

puts in end to the contract according to the ries of the civil av

Kterbo 1. Friedlander, 120 S. 797, 30 L ed. 778.

An agreement not to avail himself of the right which the av Eves the tenant to be reGeved of rent while the landlord is in posses

meaning of the policy of insurance, for watch indemnity can be claimed from one who stands in the secondary position of an insurer. Such a concession cannot increase the icss to the

*enant's insurers.

1. Insurance against loss by reason of sion for the purpose of reouiding is a volanhaving to pay rent for a building un-tary concession, and act a latility within the der a lease while it is untenantazie by rească of ire will cover the ame during which he and orts in Jossession for the purpose of rebuildng he burned bulding, ander in agreement wird the tenant that such possession tha.. net iffeet the tenant's instity for rent under the ease intil the completion of the new bulding. 2. An insurer against loss by reason of liability for rent under a ease wane the building & antenantable because of fre's not redevert from any part of his ability by the fact that the tenant receives from his landlord a sum

derived from a policy insuring the andiced against loss of rent because of fre, at least if the ermbined amounts will not wholly reimburse to the tenant the rent he is compelled to pay under his contract while the building is untenantable.

Mitchell, J., dissenta..

October 5, 1896. –

APPEAL by defendant from a judgment of the Court of Common Pleas No. 4. for Philadelphia County in favor of plaintiff in an action brought to recover the amount alleged to be due on a policy of fire insurance. A firmed.

The facts are stated in the opinion. See also Royal Ins. Co. v. Helier (Pa., 7 L. R. A. 411. Messrs. Francis H. Bohlen and M. P.. Henry, for appellant:

The entry of the landlord to rebuild, even with the consent of the tenant, suspends the

rent.

Atuate îna, Ca, T. Storrow, supra.

Liability for rent, continued by voluntary agreement of the tenant beyond the time when it ctherwise would have ceased is not a Sability in the meaning of the contract of insurance.

It required an additional agreement by the

ant to continue this liability, which under the lease would have ceased. The rent became collectible by virtue of the new arreement, and not of the original lease. The cid lease became a part of the new agreement as if incorporated in it.

Er parte Vitale, 47 L. T. N. S. 450: Re A piscation of Washington Park Comery, 52 N. Y. 131: Bradstreet v. Rich, 74 Me. 303; Seo T. Heary. 9 Ala 24: Plane v. Brown, 26 Ark.

24). Bradley v. Marshal, 34 Ili. 173; Smith ▼. Turpan, 20 Ohio St. 478.

It is to answer to say that the landlord was not bound to rebuild and could have continued to exact rent after the building was destroyed. Helier v. Royal Ins. Co. 183 Pa. 152, 7 L. R. A. 411: Porter. Ins. p. 10.

Double indemnity cannot be recovered.

Darrell v. Tübita, L. R. 5 Q. B. Div. 560; Casteliain v. Preston, L. R. 11 Q. B. Div. 3-0; Smith v. Columbia Ins. Co. 17 På. 253, 55 Am. Dec. 546; Thornton v. Enterprise Ins. Co. 71 Pa. 234: Hall v. Nashville & C. R. Co. 80 C. S. 13 Wall. 367, 20 L. ed. 594.

Magar v. Lambert, 3 Pa. 444; Briggs v. Thompson, 9 Pa. 340; Hoeceler v. Fleming, 91 Mr. M. Hampton Todd, for appellee: Pa. 324; Auer v. Penn, 92 Pa. 446; Taylor, Not only had the plaintiff a right to agree Land. & T. 380; Gilbert, Rents, 145. with her landlord that he should enter and reIf the tenant loses the benefit of the enjoy-build, but it was her duty to permit him to do ment of any portion of the demised premises., the rent is thereby suspended.

Upton Townend, 17 C. B. 30.

Fire insurance is purely a contract of indem nity which does not differ essentially from a bond of indemnity or the guaranty of a debt. 1 Phillips, Ins. 4; Wood, Fire Ins. note 2, p. 14, Porter, Ins. p. 2.

If the insured parts with any right of recla mation for the loss to which he is entitled, from another party, the insurer is pro tanto discharged.

Niagara F. Ins. Co. v. Fidelity Title & T. Co. 123 Pa. 516; Atlantic Ins. Co. v. Storrow, 5 Paige, 285.

The right to be relieved of the payment of the rent by the landlord's entry to rebuild is one of the advantages of the tenant's position, by which his liability may be relieved or reduced, under the rule of tenancy in Pennsyl vania, which treats the lease as giving an estate in the land, and not as a contract for the use of a building, the destruction of which

NOTE. On the question, What constitutes double insurance for the purpose of apportionment of

so, and in so doing she did not discharge the
defendant for rent accruing after the date of
entry from liability to her on its covenant to
indemnity her for loss arising from having
to pay rent for the destroyed premises.
2 Wood, Fire Ins. p. 1056. § 492.

Mrs. Heller was bound to pay her rent whether the premises were rebuilt or not. Bussman v. Ganster, 72 Pa. 285.

Dean, J., delivered the opinion of the

court:

Five adjoining buildings forming a single store, at corner of Arch and Eighth Streets, Philadelphia, were destroyed by fire, January 23, 1888. They were owned by Thomas K. Peterson, trustee, etc., who, by lease dated June 15, 1887, rented them to Marietta Heller, this plaintiff, for the term of three years from the 1st of January, 1888, at an annual rental of $8,500, payable monthly, and she was in possession at the date of the fire. The Royal Insurance Company, loss?-see Clarke v. Western Assur. Co. (Pa.) 15 L R. A. 127, and note.