Phillips v. Beene, 38 Ala. 248. default of the insured worked a forfeiture | tody, on the part of the party charged with did not constitute fraud and deception on the duty of filing it, and in the making of the ground that it was a misrepresentation the appropriate indorsement by the officer. of foreign law, and therefore a misrepresentation of fact. That a foreign law is to be proved as a fact is a proposition not to be disputed; but that is another and quite a different thing from the construction of a foreign statute. Cathcart v. Robinson, 5 Pet. 264, 8 L. ed. 120; Kline v. Baker, 99 Mass. 255. Whether the statute of New York applied to work a forfeiture was merely a matter of opinion. Sturm v. Boker, 150 U. S. 312, 37 L. ed. 1093, 14 Sup. Ct. Rep. 99; Latham v. Smith, 45 Ill. 25. Messrs. Robert Sewell, E. Lyman Short, and John B. Allen filed a brief in support of petition for certiorari. Mr. Stanton Warburton argued the cause and, with Mr. A. F. Burleigh, filed a brief for respondent: A writ of error, then, is not brought or sued out, in the legal meaning of the term until filed in the court which rendered the judgment. It is the filing of the writ which removes the record from the inferior to the appellate court, and gives that court jurisdiction of the case. Brooks v. Norris, 11 How. 204, 13 L. ed. 665; Mussina v. Cavazos, 6 Wall. 355, 18 L. ed. 810; Cummings v. Jones, 104 U. S. 419. 20 L. ed. 824; Scarborough v. Pargoud, 108 U. S. 567, 27 L. ed. 824, 2 Sup. Ct. Rep. 877; Polleys v. Black River Improv. Co. 113 U. S. 81, 28 L. ed. 938, 5 Sup. Ct. Rep. 369; Credit Co. v. Arkansas C. R. Co. 128 U. S. 258, 32 L. ed. 448, 9 Sup. Ct. Rep. 107; Farrar v. Churchill, 135 U. S. 609, 34 L. ed. 246, 10 Sup. Ct. Rep. 771; United States v. Baxter, 10 U. S. App. 241, 51 Fed. Rep. 624, 2 C. C. A. 410; Union P. R. Co. v. Colorado Eastern R. Co. 12 U. S. App. 110, 54 Fed. Rep. 22, 4 C. C. A. 161; Warner v. Texas & P. R. Co. 2 U. S. App. 647, 54 Fed. Rep. 920, 4 C. C. A. 670; Stephens v. Clark, 18 U. S. App. 584, 62 Fed. Rep. 321, 10 C. C. A. 379; Threadgill v. Platt, 71 Fed. Rep. 1; Crippen V. Livingston, 12 Fla. 638; Wright v. Hughes, 2 G. Greene, 142. To file a paper on the part of a party is to place it in the official custody of the clerk. To file, on the part of the clerk, is to indorse upon the paper the act of its reception, and retain it in his office subject to inspection by whomsoever it may concern. The act of filing has these two branches, and a full and proper definition of filing embraces them both. Burill, Law Dict.; Black, Law Dict.; Webster, Int. Dict.; Standard Dict.; 1 Foster, Fed. Prac. 598; Amy v. Shelby County, 1 Flipp. 104, Fed. Cas. No. 345; Erwin V. United States, 37 Fed. Rep. 470, 2 L. R. A. 229. Filing imports more than a mere reception into the custody of the clerk of the court; his indorsement is necessary. Pinders v. Yager, 29 Iowa, 468; Moyer ▼. Preston (Wyo.) 44 Pac. 850. The fact that neither clerk nor counsel deemed it necessary to file certain papers, or knew how to file them properly, would be no excuse for their not being properly filed. Florida v. Charlotte Harbor Phosphate Co. 30 U. S. App. 535, 70 Fed. Rep. 883, 17 C. C. A. 472; Warner v. Texas & P. R. Co. 2 U. S. App. 647, 54 Fed. Rep. 920, 4 C. C. A. 670. The only legitimate presumption that may be indulged in from the fact that the writ accompanied the record to the circuit court of appeals is that the writ was issued by the clerk of the lower court. The whole record bears out this presumption, and this alone. Credit Co. v. Arkansas C. R. Co. 128 U. S. 258, 32 L. ed. 448, 9 Sup. Ct. Rep. 107; Farrar v. Churchill, 135 U. S. 609, 34 L. ed. 246, 10 Sup. Ct. Rep. 771. The affidavit of the clerk in the lower court, the recital in the citation that the writ had been filed, and the return of the clerk that the fees for transcribing the record had been paid, cannot supply the failure of the record to show that the writ had been filed. Hudgins v. Kemp, 18 How. 530, 15 L. ed. 511, 514; Edmonson v. Bloomshire, 7 Wall, 306, 19 L. ed. 91; Lonkey v. Keyes Silver Min. Co. 21 Nev. 312, 17 L. R. A. 351, 31 Pac. 57; The Lindrup, 70 Fed. Rep. 718; 3 Enc. Pl. & Pr. pp. 292 et seq. The statute of New York prescribes the condition on which a policy may be forfeited for the nonpayment of a premium. The statute is mandatory and controls the contract. Its provisions are not liable to be set aside or waived by the company, or the assured, or by both together. Equitable L. Assur. Soc. v. Clements, 140 U. S. 226, 35 L. ed. 497, 11 Sup. Ct. Rep. 822; Hicks v. National L. Ins. Co. 20 U. S. App. 410, 60 Fed. Rep. 690, 9 C. C. A. 215; Griffith v. New York L. Ins. Co. 101 Cal. 627, 36 Pac. 113; Warner v. National Life Asso. 100 Mich. 157, 58 N. W. 667; Equitable L. Assur. Soc. v. Nixon, 48 U. S. App. 4S2, 81 Fed. Rep. 796, 26 C. C. A. 620; Mullen v. Mutual L. Ins. Co. 89 Tex. 259, 34 S. W. 605; Rowe v. Brooklyn L. Ins. Co. 16 Misc. 323, 38 N. Y. Supp. 625; Phelan v. Northwestern Mut. L. Ins. Co. 113 N. Y. 147, 20 N. E. 827; Carter v. Brooklyn L. Ins. Co. 110 N. Y. 15, 17 N. E. 396; Baxter v. Brooklyn L. Ins. Co. 119 N. Y. 450, 7 L. R. A. 293, 23 N. E. 1048; McDougall v. Provident Sav. Life Assur. Soc. 135 N. Y. Filing signifies more than mere indorse-551, 32 N. E. 251; De Frece v. National L. ment to that effect, and comprehends en-Ins. Co. 136 N. Y. 144, 32 N. E. 556; New tries made by the clerk on the record. York I. Ins. Co. v. Smith (Tex. Civ. App.) Johnson v. Hodges, 65 Mo. 589. 41 S. W. 680. Filing a paper is now understood to consist in placing it in the proper official cus No party to a contract can rescind until he has returned, or offered to return, all consideration he has received under the contract. Blackburn v. Smith, 2 Exch. 783, 18 L. J. Exch. N. S. 187; Beed v. Blandford, 2 Younge & J. 278; Pharr v. Bachelor, 3 Ála. 245; State v. McCauley, 15 Cal. 458; Christy v. Arnold (Ariz.) 36 Pac. 918; Shively v. Semi-Tropic Land & Water Co. 99 Cal. 259, 33 Pac. 848; Cleary v. Folger, 84 Cal. 316, 24 Pac. 280; Moore v. Bare, 11 Iowa, 198; Murphy v. Lockwood, 21 Ill. 611; Gehr v. Hagerman, 26 Ill. 441; Wheeler v. Mather, 56 Ill. 241, 8 Am. Rep. 683; Wolf v. Dietsch, 75 Ill. 205; Colson v. Smith, 9 Ind. 12; Chance v. Clay County Comrs. 5 Blackf. 441, 35 Am. Dec. 131; Hendrickson v. Hendrickson, 51 Iowa, 68, 50 N. W. 287; Johnson v. Jackson, 27 Miss. 498, 61 Am. Dec. 522; Randlet v. Herren, 20 N. H. 102; Getchell v. Chase, 37 N. H. 110; Ayer v. Hawkes, 11 N. H. 148; Doughten v. Camden Bldg. & L. Asso. 41 N. J. Eq. 556, 7 Atl. 479; Pittsburgh & N. A. Turnpk. Road Co. v. Com. 2 Watts, 433. The act of the company through its agent, in convincing the insured that his policy was forfeited, and in obtaining an admission of that fact from him, with the knowl edge that it was false, clearly constitutes fraud. Berry v. American Cent. Ins. Co. 132 N. Y. 58, 30 N. E. 254. [334] *Mr. Justice Brewer delivered the opinion of the court: The first question naturally is in respect to the jurisdiction of the circuit court of appeals. The transcript filed in that court, in addition to the record of the proceedings on the trial, which trial culminated in a judgment on October 17, 1895, contained: First, a petition for a writ of error filed by counsel for the insurance company, on December 14, 1895; then an order by the trial judge, allowing the writ of error and fixing the supersedeas bond at $125,000; an assign ment of errors; a supersedeas bond, approved by the trial judge; a citation signed by him, and service admitted by counsel for the plaintiff, all these on the same day. In addition, a return by the marshal, showing personal service on the plaintiff of the citation; the writ of error allowed by the trial judge, and an indorsement thereon by the clerk of the trial court (by deputy) in the following language: "Received a true copy of the foregoing writ of error for defendant in error. Dated this 14th day of December, 1895. A. Reeves Ayres, Clerk of the United States Circuit Court for the Ninth Circuit, District of Washington. By R. M. Hopkins, Deputy Clerk." On the hearing in the court of appeals an affidavit of the deputy clerk of the trial court was filed, which, after averring that the petition and assignment of errors, the orders granting the writ of error, and fixing the amount of the bond, and the bond, were each on file in his office and all bore the following indorsement: "Filed December 14, 1895. In the U. S. Circuit Court. A. Reeves Ayres, Clerk. By R. M. Hopkins, Deputy Clerk," stated that upon the filing of these papers he prepared a writ of error, issued and delivered it to R. C. Strudwick, one of the attorneys of the insurance company, who took the same from his office, and added: "That a few minutes thereafter the said Strudwick returned to my office, and delivered to and lodged and filed with me said writ of error, with the allowance thereof indorsed thereon by the before-mentioned judge, and at the same time delivered to *and lodged and filed with me a copy of[335] said writ for the use of defendant in error. "That said original writ of error remained in my office and in my custody from said 14th day of December, 1895, until the 4th day of January, 1896, at which time I transmitted the same, with my return thereto, to this honorable court. "That the original citation herein, a copy of which appears on pages 395 and 396 of the printed record herein, was returned to and led with me by a deputy marshal of the United States for the district of Washington, on the 18th day of December, 1895, and the same remained in my office and in my custody and control from said date until the same was transmitted to this honorable court, together with the writ of error and return thereto on the 4th day of January, 1896. It has not been my custom to indorse original citations and writs of error at the time they are filed with or served upon me, for the reason that I have deemed the same as writs of the circuit court of appeals to be indorsed by the clerk of said court upon his receipt of the same with my return thereto; but, as a matter of fact, the writ of error and citation herein were actually delivered to and filed and lodged with me as above stated." Upon these facts we are clearly of opinion that jurisdiction was vested in the court of appeals. The majority of that court, in sustaining the motion to dismiss, relied on the following decisions of this court: Brooks v. Norris, 11 How. 204-207, 13 L. ed. 665. 666; Mussina v. Cavazos, 6 Wall. 355, 18 L. ed. 810; Scarborough v. Pargoud, 108 U. S. 567, 27 L. ed. 824, 2 Sup. Ct. Rep. 877; Polleys v. Black River Improv. Co. 113 U. S. 81, 28 L. ed. 938, 5 Sup. Ct. Rep. 369; Credit Co. v. Arkansas C. R. Co. 128 U. S. 258, 32 L. ed. 448, 9 Sup. Ct. Rep. 107; in the first of which it was said by Chief Justice Taney: "It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of Congress must be calculated accordingly. The day on which the writ may have been issued by the clerk or the day on which it is tested are not material in deciding the question." In that case the question presented was one of limitations, and not what was necessary to constitute a filing. The statute requiring writs of error to be brought within a certain time, the *question determined[336] was whether the mere allowance or issue of the writ constituted a bringing of the writ | in brief and argument. One is, to what ex- By the insurance company it is contended that it does not apply; that it operates only upon contracts of insurance consummated within the state of New York; that it commences, "No life insurance company doing business in the state of New York shall have as well as local insurance companies, and, as it confessedly cannot control the operations or modify the contracts of foreign insurance companies made outside the state, the true construction is that it applies to both foreign and local companies only as to business done within the state; that as the application was signed by the insured in the state of Washington, and when received by the company in New York was there accepted only conditionally, and as the policy which was prepared and forwarded to an agent of the company in Washington contained an express stipulation that it should "not take effect until the first premium shall have been paid and the policy shall have been delivered," and as the premium was in fact paid and the policy delivered in the state of Washington, the contract was a Washington contract, and governed by the laws of that of error within the meaning of the statute, or whether, as was held, it was not brought, had not performed its office, until it had been filed with the clerk of the trial court. In this case there is no question of time. All the proceedings, with a view of taking the case to the appellate court, were had within less than three months from the date of the judgment. The transcript filed in the court of appeals made it clear that every-power," etc.; that it thus includes foreign thing which the trial judge was required to do was done, the writ of error was allowed, the citation signed and bond approved, and also that the citation was duly served upon the counsel for the plaintiff, and service accepted. It also showed that a copy of the writ of error was received and filed by the clerk of the trial court, and while it is true that it did not show that the original writ of error was filed in his office, yet the affidavit made by the deputy clerk (which is not disputed) disclosed that it was so filed, and on the same day with the other proceed ings for perfecting the transfer of the case to the court of appeals. Now, while it may be technically true, as said by the majority of the court of appeals, that the indorsement on the copy of the writ of error of its receipt for the benefit of the defendant in error, plaintiff below, was under § 1007 of the Revised Statute, with a view to a super-state, and not by the laws of New York sedeas, and may not itself be sufficient evidence of the filing of the original writ, yet the affidavit of the deputy clerk, who had charge of the office, shows positively that it was left with him and filed. If it was left with him and he failed to indorse it as filed, can it be that his omission defeats the party's right to transfer the case to the appellate court? Is it within the power of a clerk to overrule the action of the judge, and prevent an appeal or writ of error which he has allowed? When the judge has done all that is necessary for him to do to perfect the transmission of the case to the appellate court, and the party seeking review has done all that is required of him, can it be that the omission of a clerk (if there was such an omission) can prevent the jurisdiction attaching to the appellate court? Obviously not. "When deposited with the clerk of the court, to whose judges it is directed, it is [337]served." *Mussina v. Cavazos, 6 Wall. 355, 358, 18 L. ed. 810, 811. While we have always been careful to see that the required order of procedure has been complied with before any case shall be considered as transferred from a lower to a higher court, that the party seeking a review must act in time and must make a substantial compliance with all that the statute prescribes, at the same time we have been equally careful to hold that no mere technical omission which did not prejudice the rights of the defendant in error should be made available to oust the appellate court of jurisdiction. We are clear that upon the showing made the court of appeals had jurisdiction, and should have proceeded to dispose of the case upon its merits. Coming now to the merits, many questions have been exhaustively discussed by counsel (Equitable L. Assur. Soc. v. Clements, 140 On the other hand, it is contended by the executrix that, whatever may be the effect of the statute upon foreign companies which may happen to be doing business within the limits of New York, it is as to local companies practically a modification of their charters and a statutory rule thereafter controlling all contracts made by them, whether within or without the state; that even if this be not true, yet, as the policy refers to the application and makes it a part of the contract, and as there is no law of New York which affects in any way an application as such, the statement therein, that it is made subject to the charter of the company and the laws of New York, must be understood as directly incorporating the laws of New York into the contract, or at least referring to them as containing the rules for its construction and enforcement; and also, inasmuch as, by its terms, final performance (that is, the payment of the policy) is to be made in New York, the law of the place of performance is the law which governs as to the validity and interpretation of the contract. Central Nat. Bank v. Hume, 128 U. S. 195, 197, 206, 32 L. ed. 370, 375, 12 Sup. We are not insensible of the importance, as well as the difficulty, of the question thus presented in these various aspects, but think that the case may properly be disposed of without any consideration or determination thereof. "Now, it is contended that Mr. Phinney and this company, acting through Mr. Stinson as its agent, arrived at an understanding and agreement that the policy should not continue longer in force; Phinney was to We shall assume, without deciding, that pay no more money, and that his rights and the law of New York does control in respect the policy were abrogated. Notwithstandto this contract, and still are of the opinion ing the provision of the statute of New that the judgment must be reversed for er-York, that a provision in the policy itror occurring on the trial, and error of such self waiving notice has no effect, and that a character as in view of the testimony may the company can only forfeit the policy for render it unnecessary ever to consider the nonpayment of premium by mailing the prequestion to which we have referred. Con- scribed notice, still it would be competent, [339]fessedly, the insured did not pay the annual and it was competent, for the parties mupremium due September 24, 1891, nor that tually to agree to the cancelation of a life due September 24, 1892, although he lived insurance policy if they saw fit to do so. until September 12, 1893. It appears from And if the evidence in the case shows that the undisputed testimony that the insured Mr. Phinney did voluntarily, without being knew when the premium became due in Sep- induced by any false representations or detember, 1891. Twice he spoke to the local ceit to give up the policy, rescind the conagent seeking to arrange for the payment of tract and give up the policy rather than to the premium by a note, and some three or continue to pay the premiums provided for four months thereafter he surrendered the in the policy, that agreement would have the policy to such agent. It is true that at the effect to terminate this policy so that it time of the surrender the agent told the in- would no longer be a continuing contract. sured that the policy was forfeited, or words There is testimony in the case tending to to that effect, and that the insured said to prove that Mr. Phinney was unable to meet him that as the policy had lapsed it was no the second payment when it fell due, and by good to him, and the agent might take it reason of his failure to make that payment, if he wanted it. But never thereafter until he voluntarily delivered up the policy to Mr. the time of his death, more than a year and Stinson as an agent of the company, with the a half, was anything done or said by the in- understanding, expressed at the time, that sured in respect to the policy; no suggestion it was lapsed, that it was no longer a conof payment of premium or anything of any tinuing contract in his favor. If there was kind in respect to it. He treated the mat- a full and fair understanding between these ter as abandoned, and gave up to the agent two men in that matter, and they both treatof the company the instrument by which the ed it as an abrogated and annulled contract, contract was evidenced. Further, after his and each relied upon that understanding, it death his widow, the plaintiff, filed an affi- would have the effect to terminate the poldavit that the personal property of her hus- icy, and the company would have the right band's estate amounted only to $50,000, to consider itself absolved from any obligawhich, of course, was not true if she had a tion to give the statutory notice in order to $100,000 policy in the defendant company. forfeit the policy, because it would be unNot only that, she ignored the policy alto- necessary for the company to forfeit by legal gether for nearly ten months, although she proceedings what the opposite party had promptly presented claims under other poli- voluntarily relinquished. It is a question cies. As she testified that she knew of the of fact, therefore, for you to determine from existence of this policy her conduct is ex- the evidence in the case, whether there was plainable only on the theory that she una full, complete understanding and meeting derstood that, which the evidence affirms, of minds between Mr. Phinney and Mr. Stinher husband had abandoned the policy and son, and such an *agreement and understand-[341] surrendered it to the company. Upon these ing entered into between them, whether the facts the defendant asked this instruction, policy was surrendered and delivered up to which the court declined to give: Mr. Stinson, with an understanding, and whether, relying upon that understanding, the defendant company subsequently acted." "If you find from the evidence in this case that the said Guy C. Phinney stated to the representative of the defendant in the state of Washington that he could not pay the premium falling due September 24, 1891, and that he did not pay nor tender the same, and that he thereafter surrendered said policy to the defendant's representative, they mutually believing and understanding that the same was of no force or validity then or thereafter, by reason of the nonpayment of the said premium, this would constitute an abandon In view of the facts heretofore narrated, it is obvious, not only that there was error in the action of the court in declining to give the instruction requested by the insurance company, and giving that which it did, but also that the error was material. The instruction given suggested a matter in respect to which there was no testimony, yet which, in view of other language in the charge, was quite sure to mislead. In ref ly as the insurance company was. Sturm opinion do not operate as an estoppel. If "In Brant v. Virginia Coal & I. Co. 93 U. "So, in Brewster v. Striker, 2 N. Y. 19, and Norton v. Coons, 6 N. Y. 33, and approved in Chatfield v. Simonson, 92 N. Y. 209, 218, where it was ruled 'that the assertion of a legal conclusion, where the facts were all stated, did not operate as an estoppel upon the party making such assertion."" erence to this matter of abandonment and rescission, the court in effect declared that it was binding, unless induced by false representation or deceit. There is not the slightest syllable in the testimony to suggest that the agent deceived the insured, nor that he made a false representation in the sense in which a false representation may avoid a contract. And yet, as the court had already ruled that the law of New York controlled, that there was no forfeiture until the notice prescribed by the statute of that state had been given, the jury must have understood that when the agent said that the policy had lapsed, he made a false rep-known to both parties. Such statements of resentation, and, therefore, that the action of the insured, based upon that false representation, did not amount to an abandonment. But whether that statement of the agent was correct in matter of law is doubtful; whether true or false, or, more accurately, whether correct or not, in its interpretation of the law applicable to this contract, is immaterial. It was merely a statement of what he supposed the law was, and the insured was under the same obligations to know the law that the company, or its agent, was. The jury evidently proceeded upon the supposition that the insurance company, located in New York, knew what the law of that state was; the insured, residing in Washington, did not, and when the agent stated what the condition of the contract was, he misrepresented the law of New York, of which the insured was ignorant, and, being ignorant, was not bound by any act based thereon in the way of abandonment or rescission. But surely no such [342]rule as that obtains. When two parties *enter into a contract, and make it determinable by the law of another state, it is conclusively presumed that each of them knows the law in respect to which they make the contract. There is no presumption of ignorance on the one side and knowledge on the other. Reverse the situation. Suppose the insurance company had made this contract as a Washington contract, and there had been some peculiar provision of that state controlling all contracts made within the state: could the company, a corporation of New York, thereafter be permitted to say that it did not know what the law of Washington was; that the insured, as a resident of that state, must be presumed to have known it; that he did not communicate his information, and therefore it was not bound by that law, and that if he said anything in reference to it, it was a case of false representation or deceit? No one would contend this. And so when these two parties, the insurance company and the insured, dealing, as we are now supposing, in a contract which they mutually agreed should be determinable by the laws of New York, it is an absolute presumption that each knew those laws, and that neither one could be misled by any statement in respect thereto on the part of the other. Whatever opinion either might express in reference to those statutes was a mere matter of opinion. He was chargeable with knowledge, just exact So, whatever the local agent may have said as to the condition of the contract was a mere expression of opinion as to a matter of law in respect to which both parties were equally chargeable with knowledge. It seems to us clear that only because of the inference to be drawn from the rejection of the instruction asked by the defendant, and the giving of the instruction with this suggestion of false representation or deceit, can the verdict of the jury be accounted for. Nor can we think that the action of the defendant in requesting, after the jury had |