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A PRE ALWby defendant from a judgment of 240; Bradley ni Marshall, 54 mi. 173; Smith v.

Marietta HELLER

puts an end to the contract according to the

rules of the civil law. ROYAL INSURANCE COMPANY OF Viterbo v. Friedlander, 120 C. S. 707, 30 L. LIVERPOOL, Appt.

ed. 776.

An agreement not to avail himself of the (177 Pa. 262.)

right which the law gives the tenant to be re

lieved of rent while the landlord is in posses1. Insurance against loss by reason of sion for the purpose of rebuilding is a volunhaving to pay rent for a building un- tary concession, and not a liability within the der a lease while it is untenantable by reason meaning of the policy of insurance, for which of fire will cover the time during wbich the land- indemnity can be claimed from one who stands lord is in possession for the purpose of rebuild in the secondary position of an insurer. Such ing the burned building, under an agreement a concession cannot increase the loss to the with the tenant that such possession shall not af. tenant's insurers. fect the tenant's linbility for rent under the lease

Atlantic Ins. Co. v. Storrow, supra. until the completion of the new building.

Liability for rent, continued by voluntary 2. An insurer against loss by reason of agreement of the tenant beyond the time when it liability for rent under a lease while the otherwise would have ceased is not a liability building is untenantable because of fire is not re- in the meaning of the contract of insurance. lieved from any part of his liability by the fact that the tenant receives from his landlord a sum tenant to continue this liability, which under

It required an additional agreement by the derived from a policy insuring the landlord against loss of rent because of fire, at least if the the lease would have ceased. The rent became combined amounts will not wholly reimburse to collectible by virtue of the new agreement, and the tenant the rent he is compelled to pay under not of the original lease. The old lease became his contract while the building is untenantable. a part of the new agreement as if incorporated

in it. (Mitchell,'J., dissents.)

Ex parte Vitale, 47 L. T. N. S. 480; Re Ap

plication of Washington Park Comrs. 52 N. Y. (October 5, 1896.)

131; Bradstreet v. Rich, 74 Me. 303; Sewall v.

Henry, 9 Ala. 24; Pillou v. Brown, 26 Ark. the Court of Common , No. 4, for Philadelphia County in favor of plaintiff in an action brought to recover the amount alleged not bound to rebuild and could bave continued

It is no answer to say that the landlord was to be due on a policy of fire insurance. Af- to exact rent after the building was destroyed. firmed. The facts are stated in the opinion. See also A. 411; Porter, Ins. p. 10.

Heller v. Royal Ins. Co. 133 Pa. 152, 7 L. R. Royal Ins. Co. v. Helier (Pa.) 7 L. R. A. 411.

Double indemnity cannot be recovered. Messrs. Francis H. Bohlen and M. P.

Darrell v. Tibbitts, L. R. 5 Q. B. Div. 560; Henry, for appellant:

Castellain v. Preston, L. R. 11 Q. B. Div. 380; The entry of the landlord to rebuild, even Smith v. Columbia Ins. Co. 17 Pa. 253, 55 Am. with the consent of the tenant, suspends the Dec. 546; Thornton v. Enterprise Ins. Co. 71 rent.

Pa. 234; Hall v. Nashville & C. R. Co. 80 U.. Magar v. Lambert, 3 Pa. 444; Briggs v: S. 13 Wall. 367, 20 L. ed. 594. Thompson, 9 Pa. 340; Hoeveler 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, so, and in so doing she did not discharge the the rent is thereby suspended.

defendant for rent accruing after the date of Upton v. Tornend, 17 C. B. 30.

entry from liability to her on its covenant to Fire insurance is purely a contract of indem- indemnify her for loss arising from having nity which does not differ essentially from a to pay rent for the destroyed premises. bond of indemnity or the guaranty of a debt. 2 Wood, Fire Ins. p. 1056, § 492. 1 Phillips, Ins. $ 4; Wood, Fire Ins, note 2,

Mrs. Heller was bound to pay her rent p. 14; Porter, Ins. p. 2.

whether the premises were rebuilt or not. If the insured parts with any right of recla

Bussman v. Ganster, 72 Pa. 285. mation for the loss to which he is entitled, from another party, the insurer is pro tanto Dean, J., delivered the opinion of the discharged.

court: Niagara F. Ins. Co. v. Fidelity Title & T. Five adjoining buildings forming a sin. Co. 123 Pa. 516; Atlantic Ins. Co. v. Storrow, gle store, 'at corner of Arch and Eighth 5 Paige, 285.

streets, Philadelphia, were destroyed by fire, The right to be relieved of the payment of January 23, 1888. They were owned by the rent by the landlord's entry to rebuild is Thomas K. Peterson, trustee, etc., who, by one of the advantages of the tenant's position, lease dated June 15, 1887, rented them to by which his liability may be relieved or re- Marietta Heller, this plaintiff, for the term duced, under the rule of ienancy in Pennsyl; of three years from the 1st of January, vania, which treats the lease as giving an es- 1888, at an annual rental of $8,500, payable tate in the land, and not as a contract for the monthly, and she was in possession at the date use of a building, the destruction of which of the fire. The Royal Insurance Company,

NOTE.—On the question, What constitutes double loss?—see Clarke v, Western Assur. Co. (Pa.) 15 L insurance for the purpose of apportionment of R. A. 127, and note.

ment.

this defendant, on the 26th of January, 1887, 1 year, the time the premises were untenantable, issued to plaintiff a policy of indemnity against and claimed that defendant was liable on its damage to her interest as lessee of the build-policy to her for a balance of $3,000, with inings, by fire, in the sum of $6,000. In the pol. terest, payment of which being refused, she icy is this stipulation: “It being understood brought suit. The defendant filed an affidavit that this policy is to indemnify the assured for of defense averring that the agreement to reany loss accruing to her by reason of having build was a collusive arrangement between to pay rent for the within described building the parties at the suggestion of the landlord's (during] such time or times as the building insurance company, by which that company may be untenantable by reason of fire or tires was to escape any payment on account of the occurring during the continuance of this pol- loss. The court below entered judgment for icy; loss not to be limited by date of expiration want of a sufficient affidavit of defense. On of the policy; it being understood that the sum appeal this judgment was reversed, this court insured is the annual rental of the property, holding that the facts tending to show colluand the amount of loss is to be computed on sion would, if proved, not relieve the landlord's that basis.” Peterson, the landlord,also took out insurance company from payment of its proin the Pennsylvania Fire Insurance Company portion of the loss, and the evidence tenda policy covering the term of the lease, indem- ing to show fraud was for the jury. This case nifying him against loss of rents by fire in the is reported in 133 Pa. 152, 1 L. R. A. 411. sum of $8,500, in which was this clause: When the record was remitted the defendant, It is understood and agreed that in case the demurrer to plaintiff's statement of facts, as

instead of pleading and going to trial, filed a above-damed building, or any part thereof, shall be rendered untenantable by fire, this not being sufficient in law to warrant judg

The court below sustained the demur. company sball be liable to the assured for the actual loss of rent ensuing therefrom, not ex

rer, and plaintiff appealed. This court, in an ceeding the sum insured, which shall be taken opinion by the chief justice (see 151 Pa. 101),

held that under the circumstances as averred as the yearly rent of the premises, and this by plaintiff, the averment of fraud in the atticompany shall be liable only for such propor: davit having dropped out of the case, she was tion of any loss as the sum hereby insured entitled to recover on her claim set out of recbears to the annual rent of the building; the ord; that the facts neither constituted an evicassured agreeing to rebuild or repair said prem- tion by the landlord, nor a rescission of the ises in as short à time as the nature of the case contract under

which the plaintiff was answerwill permit

. Loss to be computed from the able for rent, and for aught that appeared the date of the occurrence of said fire, and cease transaction was a perfectly honest one. So on said building being rendered tenantable. Note. In case the assured shall elect pot to awarded. On the trial of the case in the court

the judgment was reversed and a procedendo rebuild or repair said premises in as short a time as the nature of the case will admit, then below, considerable evidence was given

tending the loss of rent shall be determined by the time tween the parties and the insurance companies,

to show correspondence and negotiations bewhich would have been required for such pur principally with a view to adjustment without pose. Pennsylvania Fire Insurance Company.

suit of their respective rights; but the court be

ing of opinion that no available defense had After the fire the property was unoccu- been proved, at the close of the evidence di. pied for any purpose until the 24th of July rected a verdict for the plaintiff for $3,000 and following, a period of six months, when plain interest. We now have this appeal, assigning tiff entered into an agreement with her land- six errors. It is unnecessary to discuss them in lord that he would within seven months detail. When the case was last here Chief Justice erect a new and better building on the lots Sterrett says, with this agreement before him: covered by the old buildings, and make it "It neither constituted an eviction by the landlarger, by extending it over three adjoining lord nor a rescission of the lease under which lots. Further, plaintiff agreed that she would plaintiff was liable for the rent as to which she accept a lease of the new building for a term was insured by defendant company.” There of five years at an annual rental of $17,000, is nothing new in the case now to affect the payable monthly. There were further stipu- correctness of this conclusion. The parties in lations that nothing in the agreement was to open court abandoned any averment of fraud in affect plaintiff's liability for rent under the old the making of this agreement. That being the lease until the completion of the new building, case, defendant's liability remains according to and that the entry of the landlord for the pur- its contract. That stipulates that it was to inpose of rebuilding was not to be deemed an demnify the assured for any loss accruing to eviction by him or a surrender by her. It was her by reason of having to pay rent for the further stipulated that nothing in the agree within-described building (during] such time ment was to affect the right of either on poli. or times as the building may be untenantable cies of insurance which each held for rent. by reason of fire.” It was untenantable durAfter the fire this defendant denied any liabil- ing the entire period covered by her claim, by ity, except a proportionate one on loss of rent reason of the tire. The occupation of the lot under both policies, which was, with interest, by the landlord for seven months, in rebuild$3,096.50, and wbich it paid to plaintiff with-ing, in no reasonable construction of this. out prejudice to her alleged right to claim her clause rendered the premises tenantable, while entire loss. The Pennsylvania Company, al. the agreement with the landlord expressly though disclaiming all liability, paid the land- stipulated her liability for rent was to continue lord $2,000 for the benefit of Mrs. Heller. during this period. Therefore what rent she The plaintiff paid the landlord the rent for one paid was her loss, and this the defendant contracted should be made good. Nor does the $2,000, leaving her still a loser for the year the fact that the landlord paid over to her $2,000 building was not tenantable, $500. As is well received by bim from the Pennsylvania Com- said by the learned judge of the court below: pany affect her contract right against this de--Its (defendant's) burden has not been in. fendant. She received that from a source out-creased, por bas it been deprived of any right side of, and independent of, her contract for it possessed.

The landlord and teoindemnity, just as she might have received a ani had a lawful right to make the agreement gift of that amount from any friend who de. they did make, and, the risk and loss of the sired to aid her. Defendant lost nothing, and defendant company not having been increased the $2,000 did not even reimburse her in full thereby, it is liable for the amount due on its for her loss. She paid rent for unoccupied policy.” premises, $8,500. She claims from this de- The judgment is affirmed. fendant $6,000, less the $3,000 already paid her. She has received from ber landlord | Mitchell, J., dissents.

NEVADA SUPREME COCRT.

R. SCHWEISS, Petitioner, complaint upon the grounds that it did not 0.

state facts sufficient to constitute a cause of DISTRICT COURT OF FIRST JUDICIAL action against him, and that the court had no DISTRICT.

jurisdiction of the offense charged, was over.

ruled, and the case set for trial. Thereupon (........Nev.........)

be filed his petition herein, setting out the

above facts, and asking that the court be pro*1. A county is not a municipal corpo-hibited from proceeding further in the trial

ration, in the full sense of the term. It is only thereof. The defendant demurs upon the a quasi corporation, and possesses such powers ground, among others, that the petition does and is subjected to such liabilities only as are not state facts sufficient to constitute a proper specially provided for by law.

ground for the issuance of the writ. 2. Section 25, art. 4, Nev. Const., which requires the legislature to establish a

Mr. F. M. Huffaker, for petitioner: system of county governments which shall be

The legislature bas complete control of the uniform throughout the state. means that all entire subject of counties, etc., except where county governments must, in all essential partic- limited by the Constitution. ulars, be alike. 3. The act of the legislature of March

Hess v. Pegg, 7 Nev. 23.

The legislature alone is to say what territory 15, 1895 (Stat. 1895, p. 73), entitled "An Act to

a municipal corporation shall occupy. Incorporate Storey County and Provide for the Government Thereof,” is void because in conflict 14 L. R. A. 755; Winbigler v. Los Angeles, 45

Re Madera Irrig. Dist. Bonds, 92 Cal. 296, with that section of the Constitution, in many Cal. 36; 2 Kent, Com. 275; 1 Dill. Mun. Corp.

particulars. 4. It is also a local and special act regu- $$ 10, 37, 96. lating county business, and consequently is in

A county is a geographical subdivision of conflict with $ 20 of art. 4, which forbids such

the state. legislation.

State, Beach, v. Finn, 4 Mo. App. 350; (June 23, 1896.)

Washer v. Bullitt County, 110 U. S. 564, 28 L.

ed. 251; Vincent v. Lincoln, 30 Fed. Rep. 749; PETITION for a writ of prohibition to pre Faulkneris. Hyman, 142 Mass. 54.

When the act of 1895 leaves the business of of a prosecution against petitioner for the al. Storey county to be as heretofore in all respects leged illegal keeping of a saloon where intox- and the system of county, government un icating liquors were sold. Refused.

touched, how can it be claimed tbat an act

creating a municipal corporation of Storey Statement by Bigelow, J.:

county is either a regulation of county busiOriginal application for a writ" of 'prohibi- pess, or an establishment of a system of county tion. The petitioner was convicted in a jus government? tice's court of the offense of keeping a saloon

The legislature, by the act of 1895, simply in the city of Virginia, wherein liquors were merged said city and town business into the sold by the glass, without having obtained the county business, which the legislature bad a license therefor required) by an ordinance of perfect right to do. said city. From this conviction he appealed

State, Rosenstock, v. Swift, 11 Nev. 128. to the district court of the first judicial district,

By the act of 1881 there were created and Storey County, where his demurrer to the placed under the control of the Storey county

board of commissioners a Virginia city fund, *Headnotes by BIGELOW, Ch. J.

derived from taxation of property within the NOTE.- For the incorporation of a county as a L. R. A. 616; and Kahn v. Sutro (Cal.) 33 L. R. A. municipality, see also State, Walker, v. Bus (Mo.) 33 | 620.

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former corporate limits of said city, and sim- and varied powers.-among them, that of ilarly a Gold Hill fund, and because the act of having a common seal; of holding and enjoy1895 turns these funds over to Storey county, ing both real and personal property, either it has been claimed the act is invalid. The within or without the municipality, and the legislature is sole judge in such matters. same to buy, sell, and mortgage; to receive

i Dill. Mun. Corp. & 34, 35; State v. Savan- bequests, gifts, and donations of property, nah, R. M. Charlt. (Ga.) 250; Police Comrs. v. either in fee simple, or in trust for charitable Louisville, 3 Bush, 597; Diamond v. Cain, 21 or other purposes, with power to manage, sell, La. Anp. 309; State, Belden, v. Leooy, 21 La. lease, or otherwise dispose of the same in acAnn, 538.

cordance with the terms of the trust. Section 2 If the legislature could by general law in- provides that all buildings, lands, and propcorporate all the counties of the state, then it erty, all rights of property and rights of acwould follow, by special act, any county cap tion, all moneys, revenues, and incomes, be. be made a municipality:

longing or appertaining to Storey county State, Clarke, v. Irwin, 5 Nev. 122.

(evidently referring to the county as it now ex. Messrs. Langan & Knight, for respond- ists), to the city of Virginia, or the town of ent:

Gold Hill, shall be vested in Storey county; The act of March 15, 1895 (Nev. Stat. 1895, meaning, by the name as now used, the new p. 73, chap. 80), is unconstitutional and void, municipality. Section 3, that the new municin so far as it in any way affects the action ipality sbali succeed to all property rights, sought to be restrained.

all books, records, etc., of Storey county, VirInstead of having a county government sim- ginia City, or Gold Hill, and shall become ilar to other county governments of the state subject to all liabilities of those organizations. we have a municipal corporation" known as Section 4, that Storey county (evidently the “Storey county."

municipality) may sue for and recover all Counties are “quasi corporations” in contra- property, etc., belonging to either said county, distinction to “municipal corporations." city, or town, and that all existing suits, ac

Dill. Mun. Corp. $ 23; People, Graves, v. tions, and proceedings to which "said county," Orange County, 81 Cal. 489; 15 Am. & Eng. or the city, or town, is a party, are to be conEnc. Law, pp. 952, 953, and notes; Hamilton tinued by or against "said county.” Section 7, County Comrs. v. Mighels, (1857) 7 Ohio St. 109; that all county moneys are to be kept in one Stermer v. La Plata County Comrs. 5 Colo. fund, to be known as the “County General App. 379.

Fund.” Section 10, that the board of comThe legislature has the right to say all missioners may levy a tax for county purcounties shall be municipal corporations, but poses, not exceeding the sum of $3.50 on each it cannot say one particular county shall be $100 valuation of the property therein. a municipal corporation.

A comparison of this act with the existing State, Perry, v. Arrington, 18 Nev. 412. laws governing all the other counties in the

No law specifying a different governmental state seems to demonstrate that it is in conflict authority for one county from that of the other with $ 20 of art. 4 of the Constitution, which counties of the state, and no local or special forbids local and special laws regulating county law regulating county or township business, business; with § 25 of the same article, which can be passed.

requires the legislature to establish a system of State, Atty. Gen, v. Boyd, 19 Nev. 43; Wil-county governments which shall be uniform liams v. Bidleman, 7 Nev. 68.

throughout the state. Clearly, a county is The subject of the incorporation of a county not a municipal corporation. If it were, there and provision for its government has not, in would bave been no occasion for this act the nature of the thing, any proper or neces. changing Storey county into a municipality. sary coppection with the matter of the creation, It is, at the most, only a quasi corporation, dissolution, government, or existence of the and possesses only such powers, and is subcities or towns within that county.

jected to only such liabilities, as are specially State, Norcross. V. Washoe County Comrs. provided for by law. Mr. Beach, in his work (Nev.) 41 Pac. 145; State v. Humboldt County on Public Corporations, states the distinction Comrs. 21 Nev, 235.

between them as follows: "Municipal corpoThe lower courts may pass upon the consti- rations embrace incorporated cities, villages, tutionality of the statute of 1895.

and towns, which are full-fledged corporations, Meagher v. Storey County, 5 Nev. 244; State with all the powers, duties, and liabilities in v. Trolson, 21 Nev, 419.

cident to such a status, while public quasi

corporations possess only a portion of the Bigelow, Ch. J., delivered the opinion of powers, duties, and liabilities of corporations. the court:

As instances of the latter class may be menThe question involved in this case is the tioned counties, hundreds, townships, overvalidity of the act of the legislature entitled seers of the poor, town supervisors, school dis"An Act to Incorporate Storey County and tricts, and road districts." Beach, Pub. Corp. Provide for the Government Thereof,"approved $ 3. And again, in $ 6, the same author says: March 15, 1895 (Stat. 1895, p. 73). Its con. The preceding sections indicate the essential stitutionality is attacked upon several differ- differences between the municipal and the ent grounds, of which it will be necessary to public quasi corporation. The latter may be notice but one or two. Section 1 of the act defined to be an involuntary political or civil describes Storey county, not by name, but by division of the state, created by general laws metes and bounds, and then creates the terri- to aid in the administration of government. tory so described into a municipal corporation Counties, townships, school districts, by the name of “Storey Couniy,” with large road districts, and like public quasi corporations do not usually possess corporate powers | Without property, without records, without under special charters; but they exist under rights in anything, either in possession or in general laws of the state, which apportion the action, its bones are marrowless, and it bas territory of the state into political divisions for nothing in common with the livingforganizaconvenience of government, and require of the tions in the other counties. It is no answer to people residing within those divisions the per- say that the new municipal corporation bas formance of certain public duties as a part of taken its place, and has all the powers, duties, the machinery of the state, and, in order that and liabilities that the county formerly had; they may be able to perform these duties, vest for it is an entirely different system of governthem with certain corporate powers.' A ment, whereas the Constitution requires them county is certainly very far from being the to be the same. Nor is this true merely in complete corporation that is created by the act matters of form. The municipality has differin question, with all, and probably more than ent and additional powers from those possessed all, the powers that can be vested in a munici. by the counties. No county has a common pal corporation. This, of itself, is sufficient seal; nor can it hold property outside its to destroy the uniformity that the Constitution boundaries, or even inside, except for a few requires to exist in the several county govern. purposes, nor purchase, sell, or mortgage propments. In Singleton v. Eureka County, 22 erty generally, nor hold and manage it in Ney. we had occasion to consider this trust for any purpose, while the municipality clause of the Constitution at some length, and of Storey county is authorized to so hold it for there concluded that it meant that such gov- all purposes. Other counties must have at ernment must, in all essential particulars, be least three funds for county purposes,—a genalike. State, Atty. Gen., v. Boyd, 19 Nev. 43, eral fund, an indigent fund, and a contingent is to the same effect. But Storey county, as fund (Gen. Stat. S 2008), but this municipality created into a municipal corporation by this is to bave but one. Other counties can under act, is not like the other counties, either in no circumstances levy a tax for county purform or substance, and therefore the act is in poses of more than $2 upon each $100 of propconflict with the Constitution. With the law erty valuation (Stat. 1891, p. 22), while the in question in force, it would be an interesting new Storey county can levy $3.50. In fact, study to determine just what position Storey were it pot that the municipality has the same county that used to be, the city of Virginia, name and the same boundaries as Storey and the town of Gold Hill would be in county, it would be fully as difficult to point While there is no provision for their disestab- out wherein the two governments are uniform lishment, there can be little doubt that the as that wherein they differ. In addition, as framers of the law intended that they should the act is confined to Storey county, it is both practically cease to exist. If not totally de- local and special; and, as it unquestionably stroyed, it was certainly intended that the regulates the business of that county, it is also breath of life should be taken from them. All invalid for that reason. property, all rights of action, all revenues and

Writ refused. incomes, all books, records, claims, demands, etc., theretofore belonging to Storey county, Bonnifield and Belknap, JJ., concur. are transferred to the new municipality. I

NEW MEXICO SUPREME COURT.

Re SPITZ BROTHERS' ASSIGNMENT., of Spitz Bros., a copartnership composed of

Edward Spitz and Berthold Spitz, made an (........N. M.........)

assignment for the benefit of their creditors to

M. W. Flourney, as assignee. The firm of Individual partners cannot claim their Spitz Bros. were, and had been for some time

statutory exemption out of the partner previous to the date of the assignment, doing a ship property in case of insolvency, in the ab- general mercantile business at Albuquerque, sence of a statute expressly authorizing them to in Berpalillo county, and at Cerrillos, in Santa do so.

Fé county, New Mexico. The deed of assign(Septeinber 1, 1896.)

ment is in the usual and proper form, and

conveyed to said Flourney, as assignee, in A

the District Court for Bernalillo County (describing the same), “and also all the goods, refusing to recognize their right to exemp- chattels, and effects and property of every tions in certain partnership property which kind-real, personal, and mixed-of said firm they had assigned for the benefit of creditors. of Spitz Brothers, and the said Edward Spitz, Affirmed.

and the said Berthold Spitz, together with all

claims and demands whatsoever and wbereStatement by Laughlin, J.:

soever, including choses in action, suits now On the 8th day of December, 1894, the firm 'pending, and judgments, except, however, so

NOTE.-Ag to tbe assumption by a partnership | Re Edwards & Wigginton's Estate (Mo.) 29 L. R. A of the individual debts of the partners, see note to 1 681.

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