.'.' 1'EbERAL REPORTER,
Bonds. Tle'&itllatioIi here is about the same. . The road in question is which connects the Erie system with its coal fields. Over this ,(bie, #ithoutpayment of any freight, itliauls the coal which it uses to'dti1tt!4ts engines on other parts of the system. The same remarklil' apply to' these securities, and the same disposition should be made of them. Untilfurther facts appear, the receivers should pay intere!!!t accruing on both these sets of bonds. No;!>. Funded CoiIpon Bonds of 1885. In the years 1884.a.nd 1885 the defendant· t'allroad defaulted on the payment of four successive coupons of the secondoonsolidated These coupons were deposited by their holders with the Farmers' Loan & Trust Company, as' a trustee, to beheld, "with all the rights, lien, remedies, and security inCident thereto," intrust for the benefit of, and as collatet'al security for, a neW' issue of bonds, known as the ''Funded Coupon Bonds of 1885," a:adtaken by the holders of the coupons in exchange or substitution therefor. The funding coupon indenture, under thesefubded coupon bonds were issued, expressly provides that all the rights;' remedies, lien, and security incident to the coupon shall remain in ·fuHforce for the purpose of obtaining or enforcing pQyment of said funded coupon bonds. The same indebtedness is represented both by coupons and bonds. By the terms of the second consolidated mortgage it is expressly provided that each be paid in full before part payment of any coupon due subsequently maturing. Upon winding·up the affairs. of the defendant railroad company, therefore, these coupons would have to be paid in full before any subsequentinstallment of interest or the principal of the second consolidated bonds; The debt, therefore, represented by these coupons and by the funded coupon bonds, is superior in .point of lien to that represented by subsequent co:upons of the second consolidated bonds, and there is no reason why the receivers should be instructed not to pay them, if there be net income available for that purpose.
ant as to the making of certainpil:yments to petitioner. see 57 Fed. 799.
:NOTE. For pl'1or hearing on motioJ1 of the New York, Pennsylvania & O)lio Railroad Company, as petitioner. to histruct the receivers of the defend-
PAGE et aI. v. SUN INSURANCE OFFICE.
(CirCUit Court, ,D. Minnesota, Fpurth Division. , I,,}
November IS, 1894.)
LQss.: .... , Where .p,ropetty ,is coveted pY1:loth a specific .and a compound policy, . a provision the company shall not be liable .for a 'greater prop<lrtiidn of Ilny loss than theaI110unt Insured bears to the full amount of the compound avallable for i !.lts due PlIoportion. '
'Aetion by Edward s. Page'and others against the Sun Insurance Omcetma fire policy. . ... ' . ' .
In this CllBe plaintiffs, lumber delUers at AnOka, Minn., 'held four policies ot'iJ:nsurance for'$2,500 each,ot' W111Chthe defendant Issued one. on the westerly block of their lumber yards. They also held policies. amounting
SCHERMERHORN tI. DE CHAMnnUN.
to $40,000, covering the lumber on both the easterly and westerly blocks. A loss occurred, solely upon the westerly block, to the amount of $30,982.02; and the only question to be determined is as to the' contribution to be paid under the several policies. It is agreed· that the values before the fire were $42,368.46 on the and $16,727.06 on the easterly block which was not damaged. All the policies were of the Minnesota standard fOITIl, andconmined the following cIa-use: "This company shall not be liable under this policy for a greater proportion of any loss on the described property than the amount hereby insured shall bear to the whole insurance oil oil oil covering such property." Plalntiffs contend that the $40,000 compound policies are available for the payment of the losl'l on the westerly block, only in the proportion that the valuation of the westerly block bears to the combined valuation of both blocks; or, in other words, thatamonnt is to be obtained by adding together the valuations of each block, dividing the $40,000 by that sum, and multiplying the dividend by $42,368.46, which gives the amount of $28,577.95; and it is stipulated that, if this view be correct, defendaJ;lt is liable for $2,002.56. On the other hand, defendant insists that the whole $40,000 is available, and it is agreed that, if this rule is to be applied, the defendant is liable for only $1,549.10, and for this sum it has offered judgment.
Kueffner, Fauntleroy & Searles, for plaintiffs. Kitchel, Cohen & Shaw, for defendant. NELSON, District Judge (after stating the fads). Under this dause in the Minnesota standard policy, which is the contract governing the case, the limitation of liability is for a proportionate part of the whole insurance covering the property; and the stipulati()n exempts the, defendant frop.1 any greater liability than a part of the loss, to be measured by the whole amount insured. This rule, it seems to me, must be applied whether the other insurance is by specific or compound policies. There is no intimation in the ,clause that compound or floating policies covering the same and other property are not to be considered as part of the whole insurance covering such property. Let judgment be entered for plaintiffs in the sum of $1,549.10.
SCHERMERHORN v. DE CHAMBRUN. (CircuIt Court of Appeals, Second Circuit. October 16. 1894.) No. 136.
FRAUD-PARTIES IN PARI DELICTO.
C., who was engaged as agent of certain heirs of one J., in efforts to recover property formerly belonging to J., under an agreement for compensation contingent upon success, made a contract, in 1876, with defendant, a lawyer, for services. C. made the agreed payments, and afterwards paid defendant other sums for further services. During the year 1876, C. made contracts with sundry lawyers and other persons for services and advances, agreeing to pay them out of his share of the J. property, after payment of expenses and counsel fees, making their claims liens upon such share. In August, 1880,C. contracted in writing with defendant to pay him $30,000 in consideration of services rendered, the amount to bea lien upon Co's share of the J.property. Defendant had rendered and continued to render important services throughout the litigation. After i1:lit close, resulting in a comparatively small recovery, C. brought this suit to establish a trust for his benefit in the $30,000 which had been pald to defendant, alleging that the contract of August, 1880, was made upon a secret understanding between C. and defendant