.TONES, tl. SOUTHERN INS. CO"
claimant is hurt by the conduct of the school-district, so that he feels like insisting upon his (, pound of flesh;" Well, all I can say is that this court is the poorest place on the .continiOmt for any·" pOllnd of flesh" transactions, and if there was ,not a precedent or authority for such a ruling I would make one in this case. I never would put myselfonrecord as saying that a man; un,der the circumstances, could compel the public to pay $40,000. If there is any law for such a claim somebody else has to affirm it before it can be allowed here. These various, instructions will all be refused, except the last, which I presume is in ae-: cordance with the language of the statute. GelltJemen of the jury, you are instructed that the form of yourverdict will as follows: "We, the jury, find, first that the accurate description of the property sOllght to be condemned in thia action is lots 812, 811, 816, 818, and the llorth 13.6 feet and the east 35 feet ofJot 810, North Poplar street, and lots 211 and 213 East Ninth street, in Cooper's subdivision of the surface of the Sizer placer,United States survey,No. 388, situate in the county of Lake and sta.te of Colorado, together with the improvements thereon. Second, that the vlllue of said properLy"t this date is $3,000."
al.". SOUTHERN INS. Co.
Oourt,E. D. A'I'ka1i8a8. February 3,1889.)
A policy cOlltained covenants that the assured was to keep a Bet of books showing a record of all business transacted, and to keep them locked in a safe at night and at all times when the store was not actually .open such books to be produced incase of loss; and"on failure to produce them. the policy to be null and void. In a suit on the policy the evidence showed that itwal\ customary for merchants to keep their stores open forbusin'ess as late as 9 or 11 o'clock at night, and the loss occurred about 9 o'<)lock at night, while the store was open for businesllI. and while plaintiff was writin¥ up his books. Held, th\'t the covenaut did not require the books to be keptlD a safe from sunset to sunrise, but from the time the business of the day was ended. and the store closed for the night. B. SAME. The covenant to keep books, aIld the covenant to keep them in a safe, mnst be construed together, and. in the absence of au express stipulation to the contrary, the covenant to keep books should be construed to mean that they shall be kept in the time and. manner customary with merchants.
!NSt1RANCE,-CONDITIONS m POLIOy-ltEEl'INGBoOKS.
At Law. Action on a policy .of fire insurance. 1st day of October, 1887, the to tpe plaintifls On a policy of insurance for $3,000, against loss by fire general merqhandise in their store-house at Riverside. Thel$tore:house and goods, and moat of the plaintiffs' mercantile. books, were destroyed by fire,an.d this is a 8\lit to recover the amountoftq\.'l policy. The pc;>licy contains this clause:
"The assured, under this policy, hereby covenants and agrees to keep a set of books, showing a complete record of all business transacted, induding all purchases and sales, both ,tor cash and credit, together with the last inventory of said business; and further covenants and agret's to keep such books and in. and at all times when the ventory securely locked in a fire-proof safe at store mentioned in the within pulicy is not actually open for business, or in some secure place, not exposed to a fire which would destroy the house where such business is carried on; and, in case of loss, the assured agrees and covenants to produce such books and inventory, and, in the event of the failure to produce the same, this policy shall be deemed null and void, and no suit or action at law shall be maintained thereun for any such loss." Two grol}nds of defense are (1) That the fire occurred "at night," and that the plaintiff's mercantile books were in the store and burned, and were not, as required by the terms of the policy, in a fire-proof safe, or other place secure from destruction by a fire which would destroy the store-house. ' (2) That the fire occurred at a time when the was "not actually open for business," and that the books were in the and not in a fire-proof safe, and weie· burned. The facts are that the fireocclirred about 9 o'clock P, M. on the 9th day of December, 1887; that the plaintiffs had house, in which their mercantile books were kept when not in use; that it was the plaintiffs' custom, upon opening the store in the morning, to take the books out of the safe, and lay them on the counter for use during business hours, and they were kept out until the business of the day was closed, and the boob posted and written up, 'lfhen they were put in the safe, which was then locked; that the books were written up during the eVenil)g of each day, after the rush of business was over. The store was kept open for customers and business transacted until 8 or 9 o'.clock, and on opcasionsas late tl.S 11 o'clock at night; and customers comIng dUring these hours were always admitted and waited upon, though at times during these hours the front door was locked to prevent the intrusion ofimproper characters who might depredateOn the stock without detection owing to the cpnstruction of the store-room, and the imperfect method of lighting it at night, but the door was always .opened to customers knocking for admission, and business was carried on until 8 and 9,and sometimes as late as11, o'clock at ,night. This mcde of conducting the mercantile business was common with merchants in the town and in that region of the country, and wall essential to their success in trade. When the fire broke out, the front of the storeehouse was locked, but the business of the day was not closed, and the door would have been opened to anyone knocking for The clerk was engaged in writing up the day's business in the books, and had not completed his work, when, upon invitation, he stepped into a store next ,door to eat a plate of oystersjand while in there he' discovered the· fire. When the fire broke out oneef the plaIntiffs, who carried the key to the Mfe.was in his family room,which connected with the store-room, waite ing to put the books in the safe, according 'to cust\ln:l, as soon as they wer.ewritteri up alia the business of the day over; and the store closed for the night.
·.TONE:S V. SOUTHERN INS. Co.
J. M. Moore, for plaintiffs·. U. M'. &: G. B. Rose, for defendant.
CALDWELL, J., (after stating thefacts a8 above.) Literally, night is that part of the day between sunset and sunrise. Are the words" at night," in the policy in suit, to be given that meaning? The nbject of this hy fire. The clause is to provide against the loss of the merchants' loss of the books by fire in the day-time is just as injurious m; their destruction at night. Why, then, did not the insure; stipulate that the books should be kept secure fr9m destruction by fire at all times? For the obvious reason that the books must be used during the time that the business is carried on, and to that end they must be kept on the desk or counter of the store. But after the business of the day is over, and there is no longer occasion to use the books, and the store is closed for the night, there is no, hardship in requiring that they shall not be left to the hazard of destruction byfire. Besides, as long as there is some one in the store, transacting or conducting any of the necessary business operations of the store. there is the chance that in case of fire the books may be saved; but that chance-.is gone when the store is closed for the night. In the «:.onstr\lction of contracts the customary signification of words prevails Qver the literal, grammatical,·or classical The situation oftha parties, the subject-matter of the contract, and the customs andnsages .of trade, to which it relates, will all be considered. It is a canon of con:atruction that all words, "if they be general,and not expressand'precise, shall be restrained unto the fitness of the matter or person;" Numerous illustratioijsof this rule are to be found in insurance cases. In a policy ·()f insurance against "restraint of kings, princes, and people of what na- uon, conditibn.Ol' quality soever," the rule was applied, and "people" was construeii to mean ruling powers, and not individual marauders. 2 Whart. Cont. § 667. A policy covered a ship, and tackle,apparel, and furniture "of and in the said ship," and the tackle, apparel, and furniture -were taken out Of the ship, aud put in a warehouse to keep them dry while the ship was heeled and cleaned; and while so in the warehouse they were destroyed by fire. The insurers insisted they were not liable, obbecause the::articles were not destroyed "in the ship." It will served that the requirement. that the articles should be "in the ship" was as explicit as the requirement in the policy in suit that· the books ;shall be "in It fire-proof safe at night." It was found in that case, as it is in this, that the course pursued by the insured was according to the and usual course of. business, and the courf held the loss was -«overed by the policy. "It is certain, lJ said one of the judges, "that in the construction of policies the strictumjua or apex juriS is not ,to be laid h.old on; but they are to be' construed largely for the benefit of trade. *. * * The constr.uction should be according .to the course of trade." BOfLd..v.. Gonsales,2 SallL 445; Wood, Ins. § 59. The iend.ed for by the insurer in this case is not according to the' course of 'butso contrary to it, that it would irJevitably ruin any country ,merch,8Qt attempt.to conform to ,:. The proof' shows::that
at some seasons of the year, merchants in the country and villages do un .active business till a late hour of the night. Goods are sold for cash, and on credit, payments are made, commoditif''1 purchased, accounts deted, and settlements made, until 8 or 9 o'clock at night, the same as in the day-time.. No merchant could sustain himself in ,business who closed at sunset. Thefbusiness transacted during the early hours of the night is identicaUythesame as that. transacted in day-light, and the necessityfor the presence of the books, and their constant use, the same. Merchants cannot conduct their business without books. The I>olicy in suit makes the assured covenant "to keep a set of. books showing a complete record of all business transacted, including all purchases and sales, both for cash and credit." This covenant cail only be kept by having the . books at the desk and counter,open and accessible at all times when the business is going on..' If the defendant's construction of the policy in suit is the true one, then merchants such policies must absolutely cease to do business at sunset; for the policy obliges the insured to keep a set of bookssbowing a complete record of all business transacted; and if the insured must keep such books securely locked in a safe :Worn sunset to sunrise, it is obvious no business can be transacted between these hours. Suppose the policy had contained a stipulation that "some person shall sleep in the store-house at night. " Would such a clause becoristrued to require some person to go to bed, and go to sleep, at sunset,and sleep continuously till sunrise? Thll clause, construed literally, would require this. The law rejects such literal and hypercritical interpretation of words in It contract. A contract will not be construed as demanding unreasonable things, or things contrary to the known · necessities, custom, and usageof,trade, or of the ,parties, if it is flusceptibIe of any other construction. And "in all cases the words of a policy are to be taken most strongly agahlst the insurer," (Wood, Ins. § 57,) alld "are to be construed in cases ofdoubt against the insurer," (Id., and 2Whart. Cant. § 670, and note 4;) and, "when of two meanings, that meaning is to be adopted most favorable to the insured," (Id.) "The courts will not permit the assured to be misled, or cheated, where there is any of justification, fllom the language used, for the interpretation placed by him tiponthe} instrument. A contract drawn by one party, who makes his own terms, and imposes his 'own conditions, will not be tolerated as a snare to the unwary; and if the words ernployed, of themselves, or in connection with other language used in the instrument, or in reference to th'esubject-matter to which they relate, are susceptible of the interpretation given them by the assured, although in fact intended otherwise by the insurer, the policy will be construed to· favor the assured." Wood,Ins. § 59. The plaintiffs had every reason to suppose the pdlicy :r>ennitted them to pursue their accustomed modeoE doing business, which was the necessaryand usual mode of doing business in that donntry , and the d'efendant must be presumed·to have so ,understood' it.' " lmurance Co., 12 Cush. 416. The proper, construction of the policy is not that the books shall be kept in the safe from: sunset to'sundse, but that
they shall be so kept from the time the business of the day is ended, and the store closed for It is part of the business day, and not "nigh t," within the meaning of the policy, so long as the store is kept open and busipess transacted, though it be 8, 9, or 10 o'clock at nightj in other words, within the meaning of the policy, night hegins when the disposes of the defense business for the day ends. What has been that the store was "not actually open for business" at the time of the fire. :The fact is found that it was so open. . The circumstance that the door was locked, so that customers' had to knock for admission,' has' no significance in the light of the evidence. When they knocked they were admitted and waited upon. A store is "actually openfor business"when it is lighted up and the merchant or his clerk is there ready, able,and desirous to sell goods, or dQ anything else that constitutes apart of the 'Work or labor of conducting the mercantile business. A store is as much "open for businesss" while the merchant is waiting for customers, during his customary business hours, as it is when the customers are present. An essential ltt'ld· indispensable part of the daily business waS actually in progress when: the fire broke' out. The clerk was writing up the day's business,in the books, in accordance with the custom andusage in country stores, where duty as book-keeper also,-country merchants rarely employing professional book-keepers. This work was going on in strict compliance with the covenant exacted from the plaiIltiffs by· the defendant; and if the defendant desired to prohibit the plain:tiffs from complying with this covenant by doing the work in the store after sunset, in accordance Mththe custom ilnd usage of country merchants, it should have inserted a stipulation in the policy to that effect. .The covenant to keep books, and the covenant to keep them in a safe, must be construed together, and, in the absence ofan express stipulation to the contrary, the covenant to .keep books will be construed to mean that the books shaH be kept in .the time and manner usual and ' customary with merchants. Judgrilenf for plaintiffs for the amount of the policy.
UNlrED SrATEs '11. COSTEN.
(C'ircuit Oourt, D. Oolorado. January 14,1889.)
ATTORNEY AND CLmNT-DrSBARMENT-:-BREACH OF TRUST.
An attorney who. after having been employed by one party to a litigation, and having ceased to be thus employed. seeks employment, by the adverse party, offering to impart to the latter important inforlLation, is guilty of such . a breach of trust as requires his disbarment. 1
Proceeding for Disbarment. Hugh Butler and respondent pro 8e.
BREWER, J., (fYT'a71y.) This is a proceeding to disbar. The facts are ,these: The respondent was counsel for the complainant in certain litigation in this court. After acting as counsel for complainant awhile, he ceased to be thus by reason of a transfer of the, interests on that side; and after he had ceased to act ,as counsel he proposes to the other side employment by it, and advisEls its counsel that importance to that Elide; he desires he is in possession of facts of employment, but that the fact: be concealed. from the letters, which he wrote, as plainly as language can express, he says to the otherside: "I have have acquired knowledge during my employment of facts of great importance. I am no longer employed by the I want to be einployed by you, and I will put you in possession of these· facts, though 1 do not want to be known as under your employment." 'fl:1e letters, whose writing is admitted, are attached to the charges presented by the committee. Now. it is the glory of our profession that its. fidelity to its client can be depended on; that a man may safely go toa lawyer and converse with him upon his rights or supposed r;ghts in any litigation with the absolute agsurance that that lawyer's tongue is tied from ever disclosing it; and any lawyer who proves false to such an ob-ligation, and betrays or seeks to betray any information or any facts that he has attained while employed on the one side, is guilty of the grossest breach of trust. I can tolerate a great many things that a lawyer may do,·-things that in and of themselves may perhaps be criticised or condemned when done in obedience to the interest or supposed interest of bis own client, and when he is seeking simply to protect and uphold those interests. If he goes beyond, perhaps, the limits of propriety, I can tolerate and pass that by; but I cannot tolerate for a moment, neither can the profession, neither can the community, any disloyalty on the part of a lawyer to his client. In all things he must be true to that trust, or, failing it, he must leave the profession. The motion for disbarment will be allowed.
1 Respecting gronnds for the disbarment of attKlleys at law. see State v. Burr, (Neb.). B8 N. W. Rep. 261. and note: In re Stephens, (Cal.) 19 Pac. 646.