Ca. 35 la. 174; Danielsv. Hudson River F. Ins. No violation of the policy by the drawing of Williamsy. Mechanics and Traders Fire Ins. Co. 54 N. Y. 577 579. liquids, prohibited by said policies, and that It is true that the answer does not specifically set out as part of the defense that kerosene was kept on the premises to be used for lights, but that, in breach of the condition which permitted such use, it was drawn after dark and with a lighted lamp near; but the right to keep it and use it in the manner specified in the condition is an exception from the general prohibition, which forbids the mere keeping of it without written permission; so that, strictly speaking, Defendant made no application to amend; an averment that the article was kept and used was not pleaded nor made on the premises, in violation of the condition, and as the defense available by amendment or a motion to amend, includes the use of it, otherwise than for lights, the question was not in the case whether or not and the drawing of it otherwise than by day. light. Under the allegations of the answer, any such defense actually existed. although not so definite and certain as might have been required, upon motion made in due time, it seems to us it was competent for the defendant to prove and rely upon any keeping and use of burning fluid prohibited by the con Huntv. Hudson Dimon v. Dunne, bone, 19 N. Y. 87; Y. 266. River F. Ins. Co. 2 Duer, 481: 15 N. Y. 498; Codd v. RathWright v. Delafield, 25 N. The defendant insured a frame hotel and gave 3 written privilege to use gasoline gas, gasom-ditions set out. eter, blower and generator. This permission Whatever obscurity there was in pleading the defense, considered apart from the facts subsequently disclosed in evidence, nevertheless, all the testimony necessary to its establishment was offered and admitted without objection. It was offered and admitted as tending to prove that there had been a breach of the conditions of the policy; and the whole matter of the de fense was covered by the testimony, on examination and cross examination of the witnesses, both on the part of the defendant in chief and on that of the plaintiff in rebuttal. On the conclusion of the testimony on both sides the Home Ins. Co.. Balt. Warehouse Co. 93 U. matter now insisted on was specially called to 8. 542 (Bk. 23, L. ed. 869); Bayley v. London the attention of the court by a request on the and L. Ins. Co. 4 Ins. L. J. 503; Putnam v. part of the defendant's counsel to direct a ver Commonwealth Ins. Co. 18 Blatchf. 368. dict for the defendant on that ground alone, when, if it was a matter of surprise to the opMr. Justice Matthews delivered the opin-posite party, opportunity for meeting it might fon of the court: still have been given; or if the pleadings were The first question to be examined is whether considered not to be sufficiently explicit, an the circuit court erred in withdrawing from the amendment might have been required and ry the right to consider the facts proven as made. The request was refused, and it does to the drawing of the oil in the oil room after not appear from the record to have been on the dark in the vicinity of a lighted lamp, which ground that the defense was not within the was the admitted cause of the fire, as constitut- issues; but the refusal was absolute and ung a defense to the action under the plead-qualified. We refer to it, not for the purpose involved the right to bring gasoline to the premises and store it in a proper place. It was proper for the court to charge the jury as it did, as to what weight was to be given that clause, and what right was given under that privilege to the storage of gasoline. The court properly construed the policy and the written persion; and that construction is to be based upon what the privilege authorized and not on Its exercise or nonexercise, to a greater or less extent, during part of the time after the policy was issued. of intimating that the court was bound to grant The tenth paragraph in the answer, setting the request, but because we think the matter up a separate and distinct defense, recited two ought to have then been either submitted to the editions in the policy; the first, that the as-jury or put in shape for such submission, if the cred should not keep any burning fluid with- rights of the adverse party required any change or written permission in the policy; the second, in the pleadings, or opportunity for the proat kerosene, carbon oils of any description, duction of other evidence. By the course actsther crude or refined, or any other inflamEse liquid, are not to be stored, used, kept or owed on the above premises, temporarily or permanently, for sale or otherwise, unless written permission indorsed on this policy, the se of refined coal, kerosene or Carbon Oil for lights, if the same is drawn the lamps filled by daylight; otherwise this shall be null and void." It then alleged reach of these conditions, in substance, as iams v. Peoples Fire Ins. Co. 57 N. Y. 274. that without the written permission of defendants, indorsed on said policies or sere, there were stored, used, kept and ed on the insured premises, benzine or ble or other inflammable burning fluids or ually taken the defendant was deprived of the The New York Civil Code of Procedure, [127] ulated that it would not be liable. The insured engaged that the prohibited thing should not be done; and when he committed the control of the insured premises to another the latter became his representative, for whom he must answer as for himself. material, unless it has actually misled the ad- policy, it must be held that the insured shall verse party to his prejudice in maintaining his suffer the consequences of Walker's acts in doaction or defense upon the merits. If a partying that which, if done, the Company had stipinsists that he has been misled, the fact and the particulars in which he has been misled must be proved to the satisfaction of the court. Thereupon, the court may in its discretion order the pleading to be amended upon such terms as it deems just." And section 540 declares that "When the variance is not material, as prescribed in the last section, the court may [128] direct the fact to be found according to the evidence, or may order an immediate amendment without costs." There are other errors, however, in the charge to the jury equally fatal to the judgment, which, as the case must be remanded for a new trial, it becomes important to point out. The circuit court charged the jury, in substance, that it was not a breach of the conditions of the policy if they should find a half barrel of benzine was stored by direction of Walker in the oil room, unless they should also find that he acted by the express or implied authority of the assured; that is, unless in doing so he was acting in the management of the property as the agent of his wife, and within the limits of the authority conferred upon him for the purpose of managing the property according to the terms and purposes of her tenancy; and accordingly the jury was told that if he had brought the prohibited article on the premises, not for the legitimate use of the hotel, but for an outside purpose, it constituted no defense. The outside purpose referred to was suggested by some testimony that the benzine was brought for the purpose of being used in lighting an adjacent grove for a picnic. Whether this use was for the entertainment of the guests of the hotel, or to attract custom, does not appear from the evidence; but, in any view, we think the construction of the policy, on which the charge to the jury was based, was erroneous. One of the conditions of the policy is, that if the assured shall keep or use any of the prohibited articles without written permission, it shall be void; another is, that the articles named "are not to be stored, used, kept or allowed on the above premises, temporarily or permanently, for sale or otherwise, unless with written permission indorsed on the policy," etc. A violation of these prohibitions by anyone permitted by the assured to occupy the premises, is a violation by the assured himself. The Company stipulates that it will not assume the risk arising from the presence of the articles prohibited; and if they are brought upon the premises in violation of the policy by one in whose possession and control the latter have been placed by the insured, he assumes the risk which the Company has refused to accept. In our opinion the defendant in errol was chargeable with the acts of Walker if he brought upon [129] the insured premises and stored in the oil room any of the prohibited articles, although they were not intended to be used on the premises, but for lighting a neighboring grove for a picnic. Walker was in no sense a stranger or a trespasser. With his wife he was in the lawful occupation of the premises and, with the implied assent of the insured at least, was intrusted with the control and management of them. And under the terms of the conditions in this This construction of such a condition is well supported by authority. Kelley v. Worcester Mutual Fire Insurance Company, 97 Mass. 284. In this case it was held that "A policy of insurance obtained upon a building by the owner, and containing a proviso that it shall be void if the building shall be occupied or used for unlawful purposes, is avoided by a tenant's use of the building for an unlawful purpose, even if without the owner's knowledge." In distinguishing the case from those cited by counsel adversely, the court said: In some of the cases cited for the plaintiff the prohibited use was not so coustant or habitual or of such a nature as to fall within the terms of the provision, and in the others the knowledge or assent of the assured was expressly required in order to avoid the policy." In New York it has been the settled law since the case of Duncan v. Sun Fire Insurance Company, 6 Wend. 488. In Mead v. Northwestern Ins. Co. 7 N. Y. 530, it was said, in such a case: "It is equally unimportant that the respondent was ignorant that such business was carried on; the question whether a warranty has been broken can never depend upon the knowledge or ignorance or intent of the party making it, touching the acts or the fact constituting the breach.' Matson v. Farm Buildings Ins. Co. 73 N. Y. 310. In Fire Association v. Williamson, 26 Pa. St. 196, the Supreme Court of Pennsylvania said: "Neither is it material that the landlord did not know that his tenant kept gunpowder. His contract with the insurance company was that it should not be kept without permission, and it was his business to see that his tenants did not violate the contract in this respect." Diehl v. Adams Co. Mutual Ins. Co. 58 Pa. St. 443; Howell's Exrs. v. Baltimore Equitable Society, 16 Md. 377. The circuit court also erred in the charge to the jury that under the circumstances disclosed by the evidence it was no breach of the conditions of the policy to have in the oil room a quantity of gasoline although not intended for use in the gas apparatus, the use of which had in fact been discontinued, if the oil room was a place where such fluid might have been properly stored, when intended for use in the apparatus. The only direct evidence in the case, as to the usual and suitable place for the keeping of gasoline when used in such an apparatus, was, that it should be deposited at once in the appa ratus itself, one part of which is a generator where atmospheric air is carbonized by being forced through the gasoline. But waiving any question on that point, it is clear that the privilege indorsed on the policy, in the following terms: "To use gasoline gas-gasometer, blower and generator being underground about sixty feet from main building, in vault; no heat employed in process," did not sanction the keep [1 131 Ing, using or storing of gasoline or its equiva- a year posely discontinued. And the privilege indorsed | on one of the policies "to use kerosene oil for irhts, lamps to be filled and trimmed by dayhight only" and to keep not exceeding five barrels of kerosene oil on said premises," was dated September 17, 1878, at the time when, according to the testimony of the plaintiff, the use of the apparatus for lighting the premises by means of gas from gasoline ceased at the end of the season of 1878. It is, of course, not to be denied that this did Pet supersede the privilege to use the gasoline paratus, and that this privilege had not been rwise exhausted or withdrawn. The inared had the right at any time to resume its xercise, and in doing so would have been justed in obtaining, keeping, storing and using, in the accustomed manner, the necessary quanty of gasoline for supplying it. This is imped in the grant of the privilege. But if the privilege itself is not actually exercised, no such | The case is sufficiently stated by the court. A citation was necessary because the second Villabolos v. U. 8. 6 How. 90 (47 U. S. bk. 12, L. ed. 356); Dodge v. Knowles, 114 U. S. 430 (Bk. 29, L. ed. 296). In this case it was also necessary because the security was not offered or approved until after the expiration of the term & which the appeal was granted. Sage v. R. R. Co. 96 U. S. 712 (Bk. 24, L. cd. 641); Haskins v. St. L. etc. R. Co. 109 U. S. 106 (Bk. 27, L. ed. 873); R. R. Co.v. Blair, 100 U. S.662 (Bk. 25, L. ed. 587). A citation being necessary, the failure to have one signed and served is fatal to the appeal. Wilson v. Daniel, 2 Dall. 401 (3 U. S. bk. 1, L. ed. 654); Lloyd v. Alexander, 1 Cranch, 365 (5 U. S. bk. 2, L. ed. 137); Ex parte Crenshaw, 15 Pet. 119 (40 U. S. bk. 10, L. ed. 682); Villabolos v. U. S. 6 How. 90 (47 U. S. bk. 12, L. ed. 356); U. S. v. Curry, 6 How. 106 (47 U. S. bk. 12, L. ed. 363); Bacon v. Hart, 1 Black, 38 (66 U. S. bk. 17, L. ed. 52); Castro v. U. S. 3 Wall. 46 (70 U. S. bk. 18, L. ed. 163); Alviso v. U. S. 5 Wall. 824 (72 U. S. bk. 18, L. ed. 492); Washington v. Dennison, 6 Wall. 495 (73 U. S. bk. 18, L. ed. 863); Sage v. R. R. Co. 96 U. S. 712 (Bk. 24, L. ed. 641); R. R. Co. v. Blair, 100 U. S. 661 (Bk. 25, L. ed. 587); Haskins v St. L. etc. R. Co. 109 U. S. 106 (Bk. 27, L. ed. 873); Dodge v. Knowles, 114 U. S. 430 (Bk. 29, L. ed. 296). Mr. S. S. Henkle, for appellant, contra: The issue and service of a citation in cases where it is required by law is not essential to Edmonson v. Bloomshire, 7 Wall. 306 (74 U. cation arises; and the prohibition against asline, according to the terms of the conditon, must have full effect. It was error, there- | fore, in the court to instruct the jury that the sed privilege to use a gas apparatus, not actTi exercised, nor intended to be exercised, bin fact abandoned, justified the insured in king and storing gasoline, in any quantity, of an appeal. iny place, or for any time. The judgment of the Circuit Court is, therefre for these reasons reversed; and the cause is inded, with directions to grant a new trial. True copy. Test: This court has repeatedly held that the giving 188 (72 U. S. bk. 18, L. ed. 676); Seymour v. Citation is merely notice to the opposite party James H. McKenney, Clerk, Sup. Court, U. S. waived by the appellee or his counsel; and it is LEWIS S. FILBERT et al. rved before absolutely waived by the appearance of counsel. U. S. v. Yates, 6 How. 608 (47 U. S. bk. 12, The purpose of the citation is notice. It is Dodge v. Knowles, supra. eration is one of the necessary elements of an uisite notice has been furnished. Mr. Chief Justice Waite delivered the opin Sed Dec. 7, 1885. Decided Dec. 21, 1885. ion of the court: PPEAL from the Supreme Court of the motion to dismiss for want of a citation. This is a motion to dismiss an appeal for want of a citation. The facts are these: A decree was entered by the Supreme Court of the District of Columbia on the 21st of November, [142] [143] [144] 1882, dismissing the bill in a suit between Except in cases of appeals allowed in open In Dayton v. Lash, 94 U. S 112 [Bk. 24, L. ed. 33], it was held that if a citation was actually issued but not served before the first day of the term to which it was returnable, leave might be granted to make the service during that term. In this way the language of the court in Villabolos v. United States, and United States v. Curry, which seemed to require service as well as issue of the citation before the return day of the appeal or writ of error, was to some extent qualified; but the authority of those cases as to the necessity of an actual issue of the citation and service before the end of the return term was in no way impaired. On the contrary, it was fully recognized. So in Chic. & Pac. R. R. Co. v. Blair, 100 U. S. 661 [Bk. 25, L. ed. 587], where an appeal was allowed in open court at a term subsequent to that in which the decree appealed from was rendered, but when the solicitors of the appellee were present and had actual notice of what was done, leave was granted to issue a citation and have it served during the return term of the appeal. It has since been decided that if the appeal is allowed in open court at the term, but the ap peal bond is not accepted until after the term, a citation will be necessary to bring in the parties. Sage v. Cent. R. R. Co 96 U. S. 715 [Bk. 24, L. ed. 643]. But if an appeal allowed in such a way is docketed in this court at the return term our jurisdiction of the appeal becomes perfect, and what remains to be done to get in the parties is matter of procedure only, and not jurisdictional so far as the bringing of the appeal is concerned. Podge v. Knowles, 114 U. S. 438 [Bk. 29, L. ed. 296]. As was said in that case: "The judicial allowance of an appeal in open court at the term in which the decree has been rendered is sufficient notice of the taking of an appeal. Security is only for the due prosecu tion of the appeal. The citation, if security is taken out of court or after the term, is only necessary to show that the appeal which was allowed in term has not been abandoned by the failure to furnish the security before the adjournment. It is not jurisdictional. Its only purpose is notice. If by accident it has been omitted, a motion to dismiss an appeal, allowed in open court and at the proper term, will never be granted until an opportunity to give the requisite notice has been furnished; and this, whether the motion was made after the expiration of two years from the rendition of the decree or before." The reason of this is that the allowance by the court in session before the end of the term at which the decree was rendered, and when both parties are either actually or constructively present, is in the nature of an adjudication of appeal which, if docketed here in time, gives this court jurisdiction of the subject matter of the appeal, with power to make all such orders, consistent with the practice of courts of equity, as may be appropriate and necessary for the furtherance of justice. In legal effect the judicial allowance of an appeal in this way transfers the cause to this court, if the appellant dockets the appeal here at the proper time. If not docketed, the appeal which has been allowed becomes inoperative for want of due prosecution. Grigsby v. Purcell, 99 U. S. 506 [Bk. 25, L. ed. 354], and cases there cited. But a citation is one of the necessary elements of an appeal taken after the term, and if it is not issued and served before the end of the term to which it must be made returnable the appeal becomes inoperative. The rule is thus stated in Castro v. United States, which was a case of an appeal taken after the term and in which a citation was necessary: "The writ of error, or the allowance of appeal, together with a copy of the record and the citation, when a citation is required, must be returned to the next term of this court after the writ is sued out or the appeal allowed; otherwise the writ of error or the appeal, as the case may be, will become void, and the party desiring to invoke the appellate jurisdiction will be obliged to resort to a new writ of error or a new appeal." There is nothing in any of the cases to the contrary of this. As without a citation or its waiver we cannot take jurisdiction of this appeal, and it is conceded that none has been issued or served, and there is no sufficient evidence of a waiver, the Appeals allowed by the court in session and True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. [] Rapley. The bill was filed May 24, 1869, to re- Absolute conveyance when considered a mort- tenants in common, and it was by their mutual gage-parol evidence to fix as. consent deeded to Rapley; that Coyle's share was incumbered by a deed of trust executed as 1 Parol evidence of the existence of a debt and security for a loan made to Coyle by one that a Riggs; that, in order to pay Riggs, Coyle, in warranty and without a defeasance, either in the June, 1866, applied to Davis for a loan of Operate only as a mortgage, $6,000; that Davis had, for a long time, made to secure it and to must be clear, unequivocal and convincing, or the many professions of warm friendship for Presumption that the instrument is what it pur- Coyle, and of willingness and desire to serve parts to be must prevail. Te presumption in favor of the conveyance him, and had acquired Coyle's full confidence; Bergthened when it appears that there is no con- and, upon such application, offered to make to cerable disproportion between the price paid and Coyle such a loan as would both pay Riggs and Le value of the property. settle up all Coyle's accounts with Spalding and Rapley, in respect of the land; and as security for the loan asked a mortgage on Coyle's No.86.] A District of Coluhe Supreme Court of Columbia. the The history and facts of the case appear in the opinion of the court. Mr. Benj. F. Butler and O. D. Barrett, for appellant. Walter D. Davidge and Henry Ahough a deed absolute on its face may be hown by parol to have been intended as a Derrare, it is necessary to show facts and cirCamstances dehors the instrument, raising an equity superior to its terms. "Pierce v. Robinson, 13 Cal. 116. Something more must be established than an Leged verbal agreement controlling the intent s expressed by the instrument. undivided one third of thu land, wind debtthus be free from all incumbrance edness; and suggested that a statement of Coyle's accounts with Spalding and Rapley be furnished to him, Davis; that on or about June 12, 1866, Davis was furnished with a written instrument signed by Spalding and Rapley, fully setting forth Coyle's account in respect of the land; that thereupon Davis, well knowing that one third interest in the land [110] was worth about $30,000, and would increase in value, urged Coyle to take a loan from him of about $17,000, in order to settle his account with Spalding and Rapley as well as pay his debt to Riggs, and to give him, Davis, a mortgage on Coyle's interest, as secur ity; that as inducement to this course, Davis represented that the arrangement proposed by him would be freer from complication than any other, and would give him an independent security for the loan; and that his business as well as his desire to serve Coyle would afford him opportunity to effect, for the benefit of Coyle, a highly advantageous The burden rests upon the moving party of sale of said interest in the premises, from the vero ming the strong presumption arising proceeds of which he could retain the balance from the terms of a written instrument. If the due on his loan and pay over the residue to xts are doubtful and unsatisfactory, if Coyle; and that this arrangement would tend here is a failure to overcome this presump-to the benefit of both parties; that Coyle acby testimony entirely plain and convincing ceded to the proposition, and Davis loaned to beod reasonable controversy, the writing Coyle $17,659.46, by advancing $6,000 to pay ... be beling to express correctly the intention the debt to Riggs, and assuming the payment, to be made as it should fall due, of the unpaid By Blake, 97 Ū. S. 624 (Bk. 24, L. balance on Coyle's one-third interest, viz: 20277, N. Mat. Life Insurance Co. v. Nelson, $11,659.46; that as security for the loan, Davis 130 8. 544 (BK. 26, L. ed. 436); Young v. Du- took a mortgage on Coyle's undivided one third 109 C. 8. 573 (Bk. 27, L. ed. 1036). If Justice Blatchford delivered the opin-veyed to Davis, Coyle's undivided one-third in Emackwell. Overby, 6 Ired. Eq. 38; Kelty v. Bran, 6 Ired. Eq. 283; Brothers v. Harrill, 2 nes, Eq. 209: Glisson v. Hill, 2 Jones, Eq. 234 See also Todd v. Campbell, 32 Pa. St. 250; Erinev. Baird, 41 Pa. St. 263; Haines v. Tam, 70 Pa. St. 434; Sutphen v. Cushman, 25 IN 186. the parties, is of the court: Le ball of of the land, in the manner following, to wit: terest in the land, by a deed absolute in form, Ta is an appeal from a decree of the but the force and operation of which were de Court of the District of Columbia, feated by the understanding, agreement and in General Term, July 6, 1880, dismiss-contract between Coyle and Davis, that the complaint, in a suit in equity deed was executed as security for the loan; and John F. Coyle against Henry S. that between the parties the conveyance should William E. Spalding and William W. have the operation, force and effect of a mortgage, and none other; and that Davis should enter upon and take possession of the mortgaged property, as security for the loan and subject to an account for its rents and profits, and whenever Coyle should offer to redeem the property an account should be had in respect of the rents -Mortonges; construction of absolute con- N of parol evidence in such cases. See |