7. Where a policy provides that notice shall be given of any prior or subse-
quent insurance, otherwise the policy to be void, such a provision is
reasonable, and constitutes a condition, the breach of which will avoid
the policy.
8. Where the policy provides that notice of prior or subsequent insurance
must be given by indorsement upon the policy, or by other writing,
such provision is reasonable and one competent for the parties to agree
upon, and constitutes a condition, the breach of which will avoid the
policy. Ib.
9. Contracts in writing, if in unambiguous terms, must be permitted to
speak for themselves, and cannot, by the courts at the instance of one
of the parties, be altered or contradicted by parol evidence, unless in
case of fraud or mutual mistake of facts, and this principle is applicable
to cases of insurance contracts. Ib.
10. Provisions contained in fire insurance policies that such a policy shall
be void and of no effect if other insurance is placed on the property in
other companies without the knowledge and consent of the insuring
company, are usual and reasonable. Ib.
11. It is reasonable and competent for the parties to agree that such knowl-
edge and consent shall be manifested in writing, either by indorsement
upon the policy, or by other writing. Ib.
12. It is competent and reasonable for insurance companies to make it mat-
ter of condition in their policies that their agents shall not be deemed
to have authority to alter or contradict the express terms of the poli-
cies as executed and delivered. Ib.
13. Where fire insurance policies contain provisions whereby agents may,
by writing indorsed upon the policy or by writing attached thereto,
express the company's assent to other insurance, such limited grant
of authority is the measure of the agent's power. Ib.
14. Where such limitation is expressed in the policy, the assured is pre-
sumed to be aware of such limitation. Ib.
15. Insurance companies may waive forfeiture caused by non-observance of
such conditions. Ib.
16. Where waiver is relied upon, the plaintiff must show that the company,
with knowledge of the facts that occasioned the forfeiture, dispensed
with the observance of the condition. Ib.
17. Where the waiver relied on is the act of an agent, it must be shown
either that the agent had express authority from the company, to make
the waiver, or that the company, subsequently, with knowledge of the
facts, ratified the action of the agent. Ib.
The policies sued on provided for forfeiture on nonpayment of premiums,
and as to payments subsequent to the first, which were payable in ad-
vance, for a grace of one month, the unpaid premiums to bear interest
and to be deducted from the amount of the insurance if death ensued
during the month. The applications, which were part of the policies,
were dated December 12, 1893, and by them McMaster applied, in the
customary way, for insurance on the ordinary life table, the premiums
to be paid annually; the company assented and fixed the annual pre-
mium at $21, on payment of which, and not before, the policies were to
go into effect. After the applications were filled out and signed, and
without McMaster's knowledge or assent, the company's agent inserted
therein: "Please date policy same as application;" the policies were
issued and dated December 18, 1893, and recited that their pecuniary
consideration was the payment in advance of the first annual premiums,
"and of the payment of a like sum on the twelfth day of December in
every year thereafter during the continuance of this policy." They
were tendered to McMaster by the company's agent, December 26,
1893, but McMaster's attention was not called to the terms of this pro-
vision, and on the contrary he "asked the agent if the policies were as
represented, and if they would insure him for the period of thirteen
months, to which the agent replied that they did so insure him and
thereupon McMaster paid the agent the full first annual premium or the
sum of twenty-one dollars on each policy and without reading the poli-
cies he received them and placed them away." McMaster died Janu-
ary 18, 1895, not having paid any further premiums, and the company
defended on the ground that the policies became forfeited January 12,
1895, being twelve months from December 12, 1893, with the month of
grace added. Held that, (1) the statutes of Iowa where the insurance
was solicited, the applications signed, the premiums paid and the
policies delivered, govern the relation of the solicitor to the parties.
(2) Under the circumstances plaintiff was not estopped to deny that
McMaster requested that the policies should be in force December 12,
1893, or, by accepting the policies, agreed that the insurance might be
forfeited within thirteen months from December 12, 1893. (3) The rule
in respect of forfeiture that if policies of insurance are so framed as to
be fairly open to construction that view should be adopted, if possi-
ble, which will sustain rather than forfeit the contract is applicable.
(4) Tested by that rule these policies were not in force earlier than
December 18, 1893, and as the annual premiums had been paid up to
December 18, 1894, forfeiture could not be insisted on for any part of
that year or of the month of grace also secured by the contracts. Mc-
Master v. New York Life Insurance Co., 25.
The judgment of the Supreme Court of a State reversing that of the court
below, and remanding the case for further proceedings to be had there-
in, is not a final judgment, nor is this court at liberty to consider
whether such judgment was an actual final disposition of the merits of
the case.
The face of the judgment is the test of its finality. Hasel-
tine v. Central Bank, 130.
A. JURISDICTION OF THE SUPREME COURT.
1. The act of June 16, 1880, c. 243, gave the Court of Claims jurisdiction of
claims against the District of Columbia like the one which forms the
subject of this action. This case was duly heard by the Court of Claims,
and final judgment was entered in favor of the claimants. The District
of Columbia appealed to this court, and later moved to set aside the
judgment, and to grant a new trial, pending the decision upon which
Congress repealed the act of June 16, 1880, and enacted that all pro-
ceedings under it should be vacated, and that no judgment rendered
in pursuance of that act should be paid. Held, that this appeal must
be dismissed for want of jurisdiction, and without any determination
of the rights of the parties. District of Columbia v. Eslin, 62,
2. Although the certificate of the chief justice of a state supreme court
that a Federal question was raised is insufficient to give this court
jurisdiction, where such question does not appear in the record, it may
be resorted to, in the absence of an opinion, to show that a Federal
question, which is otherwise raised in the record, was actually passed
upon by the court. Gulf & Ship Island Railroad Co. v. Hewes, 66.
3. A charter of a railroad company incorporated by an act of the legisla-
ture of Mississippi, passed in 1882, contained an exemption from all
taxation for twenty years. The state constitution adopted in 1869
provided that the property of all corporations for pecuniary profit,
should be subject to taxation, the same as that of individuals, and that
taxation should be equal and uniform throughout the State. Prior to
the incorporation of the railroad company, the supreme court of the
State had constructed this provision of the constitution as authorizing
exemptions from taxation, but had declared that such exemptions were
repealable. Held, That this court was bound by this construction of
the Constitution, and, therefore, that the railroad company could not
claim an irrepealable exemption in its charter. Held, also, That the
exemption being repealable, the question whether it had in fact been
repealed was a local and not a Federal question. Ib.
4. A ruling of a state supreme court that a repealable exemption has been
in fact repealed by a subsequent statute, is one which turns upon the
construction of a state law, and is not reviewable here, although if
the exemption were irrepealable and thus constituted a contract, it
would be the duty of this court to decide for itself whether the subse-
quent act did repeal it or impair its obligation. Ib.
5. This suit was brought in the Circuit Court of the United States for the
Southern District of Georgia, by citizens of New York against the South-
ern Express Company, a corporation of Georgia, and the Railroad Com-
mission of that State, to prevent the company from applying any of its
moneys to meet the requirements of the War Revenue Act of June 13,
1898, in relation to adhesive stamps to be placed on bills of lading, etc.
The Circuit Court having enjoined the commission from proceedings,
appeal was taken to the Circuit Court of Appeals, which reversed that
decree, and ordered the case to be dismissed. The case was then
brought to this court and submitted here on February 25, 1901. On
the 2d of March, 1901, an act was passed, (to take effect July 1, 1901),
excluding express companies from the operation of the War Revenue
Act of 1898. Held: (1) That no actual controversy now remains or
can arise between the parties. (2) That as the order of the Circuit
Court of Appeals, directing the dismissal of the suit, accomplishes a
result that is appropriate in view of the act of 1901, this court need
not consider the grounds upon which the court below proceeded, nor
any of the questions determined by it or by the Circuit Court, and that
the judgment must be affirmed without costs in this court. Dinsmore
v. Southern Express Co., 115.
6. The rights asserted by the claimants are embraced in three proposi-
tions, stated in the opinion of the court. The first of these proposi-
tions does not involve a Federal question, and is not reviewed in the
opinion of the court. The second and third are as follows: "2. A
claim that in virtue of the sale made in the mechanics' lien suit after
the decision of the Circuit Court of Appeals in the creditors' suit and
the final entry and execution of the mandate, the Pipe Works became
the owner of the Water Works' plant, entitled to the possession of
the same, with a right, however, in the defendant, as a junior lien
holder, to redeem by paying the indebtedness due the Pipe Works;
and, 3. An assertion that if the Pipe Works had not become the owner
of the Water Works' plant in virtue of the sale made as stated in the
opinion of the court, that corporation, in any event, in virtue of its
asserted mechanics' lien, had been vested with a paramount right as
against the Water Supply Company, which it was the duty of a court
of equity to enforce by compelling payment by the defendant," present
Federal questions, which it is the duty of this court to determine.
National Foundry & Pipe Works v. Oconto Water Supply Co., 216.
7. It is elementary that if from the decree in a cause there be uncertainty
as to what was really decided, resort may be had to the pleadings and
to the opinion of the court, in order to throw light upon the subject. Ib.
8. Every claim of a Federal right asserted in this case is without merit,
and the court below did not err. Ib.
9. The Circuit Court simply declined, in drawing the decree, to construe
the opinions of the Circuit Court of Appeals, and deemed that it dis-
charged its duty by obeying the mandate to dismiss the bill for want
of equity, without adding any provision which might be construed as
adding to or taking away from either of the parties to the record any
right which had been established in virtue of the judgment of the Cir-
cuit Court of Appeals. Ib.
10. The validity of the title claimed by Andrews & Whitcomb to have
resulted from the sale to them in the mortgage foreclosure suit having
been an issue and decided in the creditors' suit, all other grounds sup-
posed to establish the invalidity of such title should have been pre-
sented in the creditors' suit, and such as were not must be deemed to
have been waived, and were concluded and foreclosed by the judgment
rendered in such issue. Ib.
11. This court, on error to a state court, cannot consider an alleged Fed-
eral question, when it appears that the Federal right thus relied upon
had not been, by adequate specification, called to the attention of the
state court, and had not been considered by it, it not being necessarily
involved in the determination of the cause. Capital City Dairy Co. v.
Ohio, 238.
12. This court cannot interfere with the administration of justice in the
State of Georgia because it is not within the power of the courts of that
State to compel the attendance of witnesses who are beyond the limits
of the State, or because the taking or use of depositions of witnesses so
situated in criminal cases on behalf of defendants is not provided for
by statute and may not be recognized in Georgia. Minder v. Georgia,
559.
See REMOVAL OF CAUSES, 1.
B. JURISDICTION OF UNITED STATES CIRCUIT COURTS.
See ADMIRALTY, 5.
C. JURISDICTION OF STATE COURTS.
The question whether, under a state statute a convicted party has a year
in which to file a motion for a new trial, and that therefore no sentence
can be executed on him until that time, is a question to be determined
by the courts of the State. Storti v. Massachusetts, 138.
LIABILITY OR GUARANTY INSURANCE.
1. Where a bond insuring a bank against such pecuniary loss as it might
sustain by reason of the fraudulent acts of its teller, contained a pro-
vision that the company would notify the insuring company on "be-
coming aware" of the teller "being engaged in speculation or gamb-
ling," it is the duty of the bank to give such notice, when informed
that the teller is speculating, although, while confessing the fact of
speculating, he asserts that he has ceased to do so. Guarantee Com-
pany v. Mechanics' Savings Bank, 402.
2. When the teller is in fact engaged in speculation and the bank is so in-
formed, it cannot recover on such a bond for losses occurring through
his fraudulent acts after the information is received, when it has not
notified the company of what it has heard, or made any investigation,
but has accepted the teller's assurance of present innocence as sufficient,
on the mere ground that it had confidence in his integrity. Ib.
3. When at the time the teller's bond was renewed, the books of the bank
showed that he was a defaulter in the sum of $19,600 understated lia-
bilities, and of $3765.44 abstracted from bills receivable, both of which
could have been detected by the taking of a trial balance or a mere
comparison between the books kept by him and the individual ledger
kept by another person, and by a correct footing of the notes, the bank
is open to the charge of laches, and a certificate that the accounts of
the teller had been examined and verified is not truthful. Ib.
4. Where it is known to the president of the bank that the insuring com-
pany regards engagements in speculation as unfavorable to an em-
ployé's habits, and he is informed that the employé is speculating, a
representation by the president that he has not known or heard any-
thing unfavorable to the employé's habits, past or present, or of any
matters concerning him, about which the president deems it advisable
for the company to make inquiry, is a misrepresentation. Ib.
NEWSPAPERS.
See ADMIRALTY, 6 to 14.
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