debited with the previous balance, and interest thereon to date, and with commissions and other expenses of the sale of the stock, amounting to $15.50, and in which he was credited with the proceeds of the sale, showing a balance of $1,722.80. The account was inclosed in a letter, in which they wrote that, unless the balance was paid by the 31st of December, they would bring suit for the same. To that letter the defendant made no response, and this action was thereafter commenced, on the 14th day of January, 1885.

The last account was mailed to the defendant, and must have reached him about 19 days before the suit was commenced. The

mand, to put up more margin, and they sold | per cent. of the par value thereof; and on the the stock, and the amount claimed in the same day they sent him a formal statement complaint is the balance due them resulting of their account, in which the defendant was from the transactions. The facts alleged in the complaint are sufficient to entitle the plaintiffs to recover for moneys advanced to the defendant, and for commissions and expenses, and also upon an account stated. The evidence shows that the plaintiffs bought for the defendant 100 shares of Erie stock on the 3d day of January, 1883, and sold the same on the 6th day of January at a profit, which they remitted to him. On the 9th day of February, 1883, they again bought for him 100 shares of Erie stock at 37 per cent. of the par value thereof, and this stock they held until December 26, 1884, when they sold it at 139 per cent. of the par value. About the 30th day of June, 1883, they rendered to defendant was a witness upon the trial, and the defendant a statement of their account with him, which debited him with all the money they had advanced for him, and with the interest thereon and their commissions, and credited him with the money received by them from him, showing a balance due them of $2,807.06. On or about December 31st of the same year they sent him another statement of their account, which consisted of the precise balance, with interest to date. showing a balance due them of $2,893.14, and the 100 shares of Erie stock in their hands. Upon that account was written a request of the defendant for addițional margin. To that request, on the 7th day of January, 1884, the defendant replied by letter, saying that he did not have cash on hand, and wished them to accept a bond and mortgage as collateral, and allow him to buy more stock on that security. To that letter they replied, declining to take the bond and mortgage, and requesting him to send his check for enough to make the Erie stock "to the market price, and keep it up so from time to time." On the 19th day of April they again wrote him, saying that, unless he sent $1,000 by return mail "to margin Erie stock" they were carrying for him, they would sell at the market, and hold him responsible for any loss. On the 30th day of June they sent him a statement of their account, containing the previous balance, with the addition of interest, and showing a new balance of $2,980.90. On the 4th day of December they wrote him a letter, in which they said they had repeatedly called upon him for margins to make good his account, and notified him that unless the margins were made good within five days they would sell the 100 shares of Erie stock at public auction to the highest bidder, and, after crediting his account with the proceeds of the sale, would look to him for the payment of the balance. On the 8th day of December he wrote them, apparently in reply to the last letter, that he would be in the city the first of the next week. He did not call upon them, and did not respond with further margin; and on the 26th day of December they sold the stock at public auction, and obtained therefor the market price, to-wit, 13ğ

did not deny that he received the account; and he retained it without making any objection, although the letter in which it was inclosed fairly challenged him to dispute it if inaccurate. He must therefore be deemed to have assented to its accuracy; and the plaintiffs, therefore, rightly contend that it became a stated account. Lock wood v. Thorne, 18 N. Y. 285; Champion v. Joslyn, 44 N. Y. 653; Stenton v. Jerome, 54 N. Y. 480; Quincey v. White, 63 N. Y. 370; Guernsey v. Rexford, Id. 631. But the plaintiffs are not obliged wholly to rely upon the last account rendered as an account stated. All the prior accounts, which were clearly assented to, contain all the money advanced by the plaintiffs, as well as the money received by them from the defendant. The only new items in the last account are the interest on the prior balances, and the expenses of the sale of the stock, amounting only to $15.50 upon the debit side, and the proceeds of the sale upon the credit side. It was proved by undisputed evidence that the stock was sold at public auction for the market price. So that all the items of the account are thoroughly established without any reference to or reliance upon the last account, except the sum of $15.50, composed of three small items, and to these items the defendant made no kind of objection upon the trial; in fact, no item in the account has ever been in any way disputed.

The defendant, as a witness, testified that he met Knickerbocker, one of the plaintiffs, at Saratoga Springs in July or August, 1884; that Knickerbocker said to him, "What are you going to do about the stock?" that he replied, "I don't consider myself responsible for it after the margin was used up," and told him that he did not consider himself responsible; that when he put up 10 per cent. margin, if he did not make up his mind that he "wanted to continue, it would be sold out;" and this was the substance of all his evidence, and it was wholly immaterial and inconsequential. His mere statement that he did not consider himself responsible did not establish the fact that he was not responsible. If he had shown that, by the contract

between him and the plaintiffs, they were he entered into possession. Becker's possesto sell out the stock when his margin was sion and title have been the subjects of some used up, and that he was to incur no respon- discussion in a prior decision by us in the sibility beyond the margin he put up, he case of Becker v. Church. The premises would have had a defense. But this he did originally formed a part of lands leased by not show. He did not dispute the accuracy Stephen Van Rensselaer to Jacob Post for a of the accounts which had long before been term of 16 years from the year 1795. From rendered to him, and, upon the proofs, they 1811, when the term expired, the occupation were accurate, and he was bound by them. was continued without any further lease in There was nothing, therefore, for submission writing. Becker became possessed of the to the jury, and the court did not err in di- premises by a conveyance from one Edward recting a verdict for the plaintiffs. Settle in 1860, subject to the rents, etc., reThe defendant now claims that the sale of served in the Post lease. The referee has his stock was illegal because he was not noti- found that Schoonmaker took possession of fied of the time and place of the sale. But the land conveyed to him by Becker, and has no such point was made at the trial. There he occupied it ever since, under his deed, in good simply asked to go to the jury "on the ques-faith, and claiming to be the owner in fee. tion of whether or not the account was stat- No rent was ever paid on the land since the ed." If he had made this point, then the time of Becker's acquisition of it, either by plaintiffs might have shown that he actually him or by Schoonmaker, and none was dehad the proper notice, or that by the con-manded until in 1883, when Church, this tract with them he was not entitled to such plaintiff, made a claim upon Becker for arnotice. We therefore conclude that the judg-rearages of rent, and succeeded in obtaining ment should be affirmed. All concur. from him a sum of money on account. Of this settlement Schoonmaker knew nothing, and he had no part in it. Church acquired the interest of the Van Rensselaers in the land through a conveyance by them to him in 1882. The referee concluded that this conveyance was void for champerty as to the defendants, and dismissed the complaint, which decision the general term have sus

(115 N. Y. 570)

CHURCH v. SCHOONMAKER et al.1 (Court of Appeals of New York. Oct. 8, 1889.)

EJECTMENT ADVERSE POSSESSION.

Code Civil Proc. N. Y. § 373, provides that the possession of the tenant is the possession of the landlord till the expiration of 20 years after the termination of the lease, or, where the lease is not in writing, 20 years after the last payment of rent.. 1 Rev. St. p. 739, § 147, declares that "every grant of lands shall be absolutely void if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor." In an action of ejectment it appeared that defendants were put in possession by a warranty deed from one B., who had paid rent the year before, and they continued in possession for 21 years, when the owner of the fee conveyed to plaintiff, who demanded and received rent from B. without the knowledge of defendants, who had never paid rent. Held, that the payment of rents by B. did not affect the title of defendants, and that, as against them, the conveyance to plaintiff was absolutely void.

Appeal from supreme court, general term, third department.

tained.

I think the judgment was right. By section 373 of the Code of Civil Procedure it is provided that, "where the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord until the expiration of twenty years after the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years after the last payment of rent." The effect of that section is to prevent the running of a claim to an adverse possession in favor of a tenant for the period prescribed, whether he has acquired another title, or whether he Action of ejectment by Walter S. Church has claimed to hold adversely. For the 20 against De Witt C. Schoonmaker and oth-years the landlord has the benefit and the The case was referred. The report protection of the statutory presumption of the referee was in favor of defendants, against the consequences of his fault, or misand judgment was entered accordingly, which take, or accident, and against the acts of his on appeal to the general term, was affirmed, tenant. The 20 years, in this case, would and plaintiff again appeals. 1 Rev. St. N. commence running from the last payment of Y. p. 739. § 147, declares that "every grant rent in 1860, because the premises had been of lands shall be absolutely void if, at the occupied from year to year, since the expiratime of the delivery thereof, such lands shalition of the term of the original lease. Schoonbe in the actual possession of a person claim-source of title adverse to the legal title, in the maker's possession was under a specific ing under a title adverse to that of the gran- warranty deed of Becker, under which he

ers.

tor."

Geo. L. Stedman, for appellant. Youmans, for respondents.

Wm.

went into possession and has occupied until now. He took his deed in good faith, and paid a valuable consideration, and had the

GRAY, J. This was an action of eject-grantor not been under the infirmity of the

ment. The defendant Schoonmaker

ас

quired his title to the premises by a warranty deed from one Becker, in 1861, under which

'Affirming 42 Hun, 225.

statute (Code, § 373) his conveyance would have carried the fee. But, notwithstanding that it did not carry the fee, as to the grantee, he went into actual possession under a claim of a specific title. It may be true that

until 20 years had expired after the last pay- | notes annually shall forfeit the policy, is not unment of rent his possession was made by stat-conscionable, and there is no reason for equitable relief against the forfeiture without some element ute subordinate to the possession of the Van of fraud, accident, or mistake.

Rensselaers. That may follow, because Becker could not, notwithstanding his warranty deed, convey any greater right than he possessed in the subject of the grant; and, if his possession as a tenant was made by statute the possession of Van Rensselaer till 1880, during that time the title of Schoonmaker was subject to the legal rights of Van Rensselaer as his grantor's landlord. But, after the period of 20 years had expired, in the year 1880, Schoonmaker was in the possession of the lands, claiming under a title adverse to the Van Rensselaers. Nothing interposed then as a shield to the landlord's possession. He was distinctly out of possession of his lands, and was in no position to exercise acts of ownership over them until he had regained their possession. It follows that the subsequent conveyance by the Van Rensselaers to Church, in 1882, was contrary to the provisions of the statute, and absolutely void. 1 Rev. St. p. 739, § 147. It needs no argument to show that any settlement with, or even attornment of, his grantor, Becker, in 1883, to the plaintiff could have any effect upon Schoonmaker's title. He had no knowledge of it, and did nothing in the way of assent, and, of course, Becker could do nothing then to prejudice the title he had warranted to his grantee. The judgment should be affirmed, with costs. All concur, except PECKHAM, J., not sitting.

Appeal from supreme court, general term, first department.

The action was upon a policy of insurance dated September 12, 1872, issued by the defendant upon the life of Lindly H. Fowler, for the sum of $1,500. A prior policy had been issued by the defendant upon the life of the same person for $10,000, dated March 6, 1869, and numbered 2,046, which contained a provision that if, after receiving three or more annual premiums, the assured should fail to make payment of any further premium when due, upon a surrender of the policy within 30 days after such unpaid premium was due, said company would, in exchange therefor, issue a paid-up policy for the proportion of the amount of insurance paid for, and it further provided that one-third of the annual premium might be indorsed as a loan. The policy in suit recited that it was issued in consideration of the surrender of policy No. 2,046, and of the annual payment in advance of the sum of $30.18, being for interest on premium notes amounting to $431.24, given in part payment of the premium on policy No. 2,046, and provided that this payment should be made on or before the 12th day of September in every year during the continuance of the policy, and in default thereof the policy was to be void. It further provided that the amount of all unpaid notes given for loans on the policy in suit, or on policy No. 2,046,should be deducted from the amount specified in the policy when the same should be payable by the defendant. The interest on the notes was paid in 1873. In 1874 the insured, about the time the interest matured, 1. An assured owed defendant certain notes for was residing in Wisconsin, and remitted the premiums on a policy, which he surrendered, and amount necessary to make the payment to took a paid-up policy, which provided that failure his father, who resided in the city of New to pay interest on the premium notes on a given York. The father testified that he received day of each year should avoid the policy. About the time the first policy was issued, and about the remittance about noon of September 12th, three years before the surrender and exchange were and on the following day went to the commade, defendant published a pamphlet recommend-pany's office to make the payment, but was ing its policies as preferable to those of other com- told by the cashier that the policy had lapsed, panies, saying that its policies were non-forfeitable and incontestable, and that it allowed 30 days' and the payinent could not be received. grace for payment of premiums after the first one, few days later a formal tender of the interest which was for the benefit of persons so situated was made and refused. In each succeeding that they could not pay when their premiums were due. The original policy was substantially accord-year the interest was tendered to the defending to these representations. A copy of the pam-ant and refused. A copy of the pam- ant and refused. The assured died in April, phiet was sent to assured, and was found in his 1880. In November, 1877, the policy was aspossession, with the policy, at his death. Assured signed by the assured to the plaintiff, and nopaid the interest promptly the next year after the second policy was issued, and was only prevented tice thereof given to the defendant. from paying the next installment by the fault of was alleged in the complaint, and the evihis agent. Held that, as there was no evidence dence showed, that in the years 1868 and 1869 that the assured was induced by the pamphlet to the defendant caused to be published and cir believe that he had 30 days within which to pay the interest, but, on the contrary, his promptness in-culated a pamphlet setting forth certain readicated a contrary belief, sending him the pamphlet would not estop defendant from insisting on the

(116 N. Y. 389)

FOWLER v. METROPOLITAN LIFE INS. Co.1 (Court of Appeals of New York, Second Divis

ion. Oct. 29, 1889.)

LIFE INSURANCE-FORFEITURE OF POLICY.

forfeiture.

2. A provision in a paid-up policy that the amount of notes due the company for premiums on a policy taken up in exchange for the paid-up policy shall be deducted when the insurance money is paid, and that failure to pay the interest on the

1Reversing 41 Hun, 357.

A

It

sons why it should be preferred over other life insurance companies by those desiring insurance, and among such were the following: "All its policies are non-forfeitable." "All its policies are incontestable." "It allows 30 days' grace in payment of premiums." "Thirty days' grace will be allowed on all payments after the first, thus afford

ing the absent, the unfortunate, or the em- | company, or was misinformed or mistaken as barrassed member an opportunity to keep to the condition of the policy, or that he did his policy in force without the necessity of not fully understand the effect of a failure to changing it to a prepaid policy for a smaller pay the interest on the day named. He had amount. During these thirty days the policy paid the interest promptly in 1873, and in is held good and valid." A copy of this 1874 remitted it in ample season to his father pamphlet was found with the policy of insur-to have been paid to the company and the ance after the death of the assured, and there was evidence that the insured received it from the company. At the close of the evidence the court directed a verdict for the sum of $1,074.44. The judgment entered on such direction was sustained by the general term, and defendant appeals.

policy preserved. The father was the son's agent to pay the interest, and in the absence of any evidence that the son did not fully understand his obligation under the contract, it is difficult to perceive how any information derived by the father from a pamphlet issued by the company before the contract was en

William H. Arnoux, for appellant. L. H. tered into could be said, as was held by the Rowan, for respondent.

general term, to be a fraud upon him, and upon the assured, and have the effect to BROWN, J., (after stating the facts as estop the company from asserting the forfeit above.) We are unable to find any ground ure, or be deemed a waiver by it of the conupon which to sustain the judgment in this dition of the policy. The original policy apaction. The interest upon the note was not pears to have substantially complied with the tendered to the defendant until the day fol- representations contained in the pamphlet islowing that upon which, by the terms of the sued by the company. It was made inconpolicy, it was made payable, and by the ex- testable after five years on account of any erpress condition of the contract the policy was rors in the application except as to age. It forfeited. A long line of authorities has allowed 30 days' grace in the payment of presettled the law to be that when it is express- miums, and it provided for a paid-up policy ly provided that the premium on a life insur-after the receipt of two or more annual preance policy shall be paid on or before a certain day, and in default thereof the policy shall be void, the non-payment of the premium upon the day named works a forfeiture. Robertson v. Insurance Co., 88 N. Y. 541; Insurance Co. v. Statham, 93 U. S. 24; Attorney General v. Insurance Co., 93 N. Y. 70; Holly v. Insurance Co., 105 N. Y. 437, 11 N. E. Rep. 507.

The record before us does not show precisely what principle the trial court applied in directing a verdict for the plaintiff. The general term, however, appear to have affirmed the judgment upon the ground that the father of the assured, to whom the money to pay the interest had been remitted, was induced by the statements contained in the pamphlet which the company had issued to believe that 30 days' grace was allowed for the payment of the premium, and that he was misled by that representation, and induced to act as he did, and not pay the interest on the day he received it from his son. This view of the case has no support in the testimony. The father, who was a witness upon the trial, nowhere says that he believed that 30 days' grace was allowed in payment of the interest, or that his actions were controlled to any extent by any information obtained from the pamphlet, nor was such a fact alleged in the complaint.

miums. It also allowed one-third of the premium as a loan. The policy in suit was issued after the payment of three premiums. The assured had, however, not paid all the premiums in cash, but was indebted to the company in the sum of $431.24. If this debt had been paid, the assured would have been entitled to an unconditional paid-up policy for $1,500, and no further payments would have been necessary. But for some reason not disclosed in the evidence, but presumably satisfactory and advantageous to the assured, he chose not to pay the debt; and, as the original policy provided that any indebtedness to the company was to be deducted from the insurance money when paid, it was proper, with the assured's consent, to make a like provision in the paid-up policy, and to provide that the non-payment of the interest on that debt should render the policy void. People v. Insurance Co., 103 N. Y. 485, 9 N. E. Rep. 35.

The claim that such a provision in a paidup policy is unconscionable and oppressive, and presents a case in which a court of equity should relieve from the forfeiture incurred by omission to make prompt payment of premium, is not a new one. It has frequently been presented to the courts, and has recently received very full consideration in this court in Attorney General v. Insurance The right to recover is there claimed upon Co., 82 N. Y. 190, and People v. Insurance the ground that the assured, "relying on the Co., supra. It was decided in these cases liberality and fairness promised by said com- that provisions in paid-up policies issued in pany" in the pamphlet issued by it, "through lieu of other policies, on which notes had been inadvertence and by mistake * ** failed given for premiums, that they should be void to pay, or cause to be paid," the interest as in case the interest on such notes was not required by the terms of the contract. There paid, are not unconscionable, oppressive, or was no proof offered to sustain this allegation, and there is no evidence that the assured had been misled by any representation of the v.22N.E.no.18-37

usurious. In the first case cited Judge EARL said: "There are doubtless some decided cases which hold that such forfeiture should

not be enforced, but I think the better rule | a written agreement may be set aside or reis to uphold and enforce such contracts when formed, fraud or mistake must be shown to free from fraud or mistake, just as the par- entitle a party to such relief. And it is nevties have made them." And in Douglas v. er competent, in an action upon a written Insurance Co., 83 N. Y. 503, it was said: "It contract, to show that it was executed on the has generally been found most conducive to faith of a preceding parol stipulation not the general welfare to leave parties to make embraced in it. The judgment must be retheir own contracts, and then enforce them versed, and a new trial granted, costs to as made, unless, on the grounds of fraud, ac- abide event. All concur. cident, or mistake, ignorance, impossibility, or necessity, relief can be granted against them." As has already been pointed out, there is no evidence in this case to show that the assured did not accept the policy in suit with perfect knowledge of all its conditions, and, in the absence of all evidence on that subject, the presumption is that such was the fact. No case was made, therefore, for any equitable relief, and none is asked for in the complaint.

(117 N. Y. 103)

JONES v. HOWARD INSURANCE CO.1
(Court of Appeals of New York. Oct. 29, 1889.)
FIRE INSURANCE-PROOFS OF LOSS-CONDITIONS OF
POLICY-WAIVER.

1. In an action on a policy, it appeared that the assured, a few days after the loss, assigned all his property for the benefit of his creditors. The policy provided that the assured, making claim for loss or damage by fire, shall render an account of We are referred to some cases upon the au- said loss, “stating the interest and title of the asau-sured, and of all others, therein." Held, that a thority of which it is claimed that defendant proof of loss stating that at the time of the fire the is estopped from claiming a forfeiture of the assured was the sole owner is a sufficient complipolicy, if the pamphlet induced the assured ance with the requirement of the policy. to believe that a strict compliance with the as the actual cash value of the property destroyed, 2. Where proof of loss states a particular sum terms for paying at specified times would not such statement is not open to objection as contrabe insisted upon. It would be a sufficient dictory because, in explaining the method in which answer to this proposition to say that the the estimate was made, a result somewhat differfact that the assured was induced to believe ent from the amount so stated is obtained. 3. Where a policy provides that the company anything of that nature is not proven in the will not be liable thereunder "for loss or damage case. On the contrary, his acts indicate that caused by the working of mechanics, nor for the he believed prompt payment on the day ing, "a recovery thereon cannot be defeated on the use of kerosene, unless permitted hereon in writnamed in the policy was essential to its va- ground that lamps were filled with kerosene by lidity. But the cases cited do not establish the assured in the evening, and by artificial light, the principle claimed. Ruse v. Insurance unless it appears that the loss was caused thereby. 4. In an action on a policy which provides that Co., 23 N. Y. 516, expressly decided that no the assured must make diligent effort to save his contemporary publication could be imported property, whether any part of the loss was due to into a policy so as to vary its terms. The his neglect to make such efforts is a question for same case (24 N. Y. 653) does not decide oth- the jury, and their determination thereof will not oth-be disturbed on appeal. erwise, although the remarks of Judge DA- 5. When a policy provides that the proof of VIES Somewhat weakened the force of the prior decision. In Howell v. Insurance Co., 44 N. Y. 276, there was an admission of an agreement at the time the insurance was effected, and also thereafter, when the annual premium was paid, that if anything should happen to the assured to prevent his paying the premium on the day named, the policy should continue in force for a reasonable time thereafter; and it was this agreement, thus admitted to have been made, that was held to constitute a waiver of the condition requiring payment of the premium on the day named. The English cases referred to in Ruse v. Insurance Co., 24 N. Y. 654, contain nothing that will aid the plaintiff's case. It would be impossible to sustain the claim that the statements and representations contained in the pamphlet issued by the company were to be regarded as affecting or modifying the strict terms of the policy, without disregarding the established rule of law that a written contract merges all prior and contemporaneous negotiations in reference to the same subject, and that the whole engagement of the parties, and the extent and manner of their undertaking, is embraced in the writing. This rule is the same in equity as at common law, and, although

loss thereunder must set out the written portions quirement is substantially complied with by specof other policies on the same property, such reifying the other policies by name, with the amount of the risks, and describing them as covering the same property, and as concurrent with the policy under which claim is made, the written portions

of which were set out.

6. A condition in a policy that the certificate of the notary nearest the fire must be furnished with the proof of loss, if required, is not violated tificate, unless the insurer formally required such by the neglect of the assured to furnish the cercertificate to be furnished.

7. A statement in the proof of loss that the origin of the fire was unknown is a sufficient compliance with a requirement in a policy that the proof of loss must show when and how the fire originated.

8. In an action on a policy which provided that the assured should, on proof of loss, furnish origquired by any person appointed by the company, inal or certified copies of bills of invoice, if reit appeared that the assured made his proofs of loss, and forwarded them to the company; that, 45 days after, the company notified him his proofs were defective, but made no request for further proof; that subsequently he went to the office of the company with his bills and vouchers, and offered them for examination, or to arrange a day for the examination, which the company refused to do. Held, that this was a waiver of the right to demand such bills of invoice, which could not be cured by a demand made 4 months after the proof of loss was submitted, and fixing no time when such bills should be submitted.

Affirming 45 Hun, 594, mem.