20Q

FEDERAL

become impaired.. In .c!lses it is the r,ulethat the filing of the complaint by the state operates as a sequestration. pf corporate property, for the purposes by the statute un¢ler which the proceeding is brought, from th{:lfiling of the complaint, and not merely from the entry of a final decree. Atla8 f3ank v. Nahant-Bank, 23 Pick. 480; Colt y.J)rlYJJin, 12 Gray, 233. . " If had been sued out and in the state of Connectiqllt after the cqmm,enpemtlntof the proceeding t.o wind up the company, nnd .prior to the apP9intmeqt of any receivElJ;', right acquired by:, the state as against corporate. property, by, filing its bilI, would 0v: that. of the!tttaching creditor. Sucb, would clearly r be the property situated in th.estate qf Connecticut; and, in mY, qpinion, the, coinmencement of the proceeding in the home state have thellame effeQt with respect to property located in the state of Missouri, as against this plaintiff, who is a member of the company,aJ;ld, under the terms of its charter, is only entitled to an equitableproportiop of its. assets in the event of If he was a general ,creditor, and not l;l. .lUember of the corporation, the rule )llight be different.. . ' . I j. : ..' . , .' . conclusion is that the,present suit cannot be Plaintiff is a member of the defeUAAntcompany, and as to participate other policy-holders in q,pro rata distribution :of its lj.sset!j; A in the home state to acGomplish that, :result whep .thi/'l action was filed. The plaiptiffin that case all the as well as other ;creditors of the is for th£lirbenefit; and it is only meaus of a suit of .character that the rights of all the the company enn'.be ,secured. .Nothing but coufusion and inequality can nisuIt from entertaining a suit of this ,nature in this jurisdiction. It wiJI accordingly be dismissed,without prejudice to plaintiff'/'! 'right to inter,vene in the proceedingpendiDg in the home forum.

OSHKOSH PACKING & PROVISION Co. 'l1. MERCANTILE INS. Co. OF MOBILE, ALA.
(Circuit Oourt. E. D. Wiaconsin. April 11, 1887.)

1.

mSURANc:,l!l' POLIcy-PROOF OF

The policy ofa fire insurance company contained the following clause: "All fraud or attempt to defraud, hy·false swearing or otherwise, shall cause a forfeitureof alJ. claim on this company under this policy." Held, charging jury. in suit on policy. that is incumbent on the defendant. under this clause, to show that· the insured, knowingly and intentionally, swore ,falsely to the .proofs of loss in some mll,ter.ial respect pertaining to the extent of the loss, III order to maintain the defense of fraud.

Loss-FRAUD.

8. SAME-EvIDENCE. In such cas.e,howe'Ver, a serious discrepancy between the true value of the property and that sworn to in the proofs of loss, or between the quantity

OSHKOSH PACKING &: PROVISION CO. V. MERCANTILE INS. CO.

201

a.

,

of any kinq of personal property actually destroyed and that stated in the proofs. would be evidence bearing upon the issue of fraud. and a fact to be considerell by the jury in determining, whether there was fraud or false swearing. within the meaning of the policy, in the proofs.
lNsURANCjll-"WHOLLY DESTROYED."-"ToTAL Loss."

Rev. St. Wis. 1878. § 1943. provides that "wherever any policy of insurance shall be written to insure any real property. and the property insured be wholly destroyed without criminal fault on the par.t of the insured or hIS assigns, the amount of the insurance written in such· policy shall be taken conclllsivel,y.to be the true value of the property when insured, and the true amount.4f.los8 and measure of damages when deBtroyed. " Held, that the expressio!i'''wn.olly destroyed," in this statute, is equivalent to "totall08s." and that "total loss, " as applicable to a building. does not mean that the terials of. which it is composed are all utterly d\'lstroyed pr obliterated, b.ut that the. bUilding, though soma part of it may replaiIi stlLIitling, has lost identi'ty andspeciflc character as a building, and nas become Il.broken mass; so that it cannot any longer be properly designated as abuilding.·

.

,.. '

4.

Unqerthis statute a fraudulent overestimate in.the . proofs of lOBS' as to tM ;of. ;rllal pr0y,erty would not work a. forfeUure,;althaugJ:Uhe policy,.of . ip.!l.1,lrMQe YProvided that such havMhat . In case, however. fraudulentrepresentation BlJ.s.t<?Jlle an4gWtp.· tltyof t1l.e personal property cov,ered by the same of work a forfejture as to the whole policy, and th<h1ght of the insured to recover anything whatsoever' upon the real property included in ' such policy.·',···;,
__

PRoPERTY. · '. . .·. .,

d. . . "

S.AM:E;L.,REA.L PROPERTY-FRAUDULENT

8.; 8AMlF-EvIDillNCE. Insuehcase, .moreover, fraudulent 'representations as to the value: of the )'eal property may be taken into consideration JW,the.jury in wb,etherthe statements made as to the of personal propdestroyed were or were not fraudulent. where. such were not In fact correct. ' ,

Jilinch and CJha8. ·W. Felker t iorpI8intiif. Gabe Bouck and John W. Hurne, for defendant.
DYER, J., (charging jury.) On thetifteenth day of May, 1885, the 'Mer7 cantil Insurance Company of Mobile, Alabama, the defendant in this : suit, in consideration of the payment to it ofa certain premium, issued to the plaintiff, the Oshkosh Packing & Provision Company , a policy of insurance by which it insured the plaintiff to the atnount of $1,500 against loss of certain property therein specified by fire for the period of one year, extending from May 15, 1885, to May 15, 1886. The specifications of property insured, with the several amounts of insurance on the different classes of property as contained in the policy, are as follows:

"$677.40 on the 2 and 3 story frame packing-house, including dry and chill room, and on on&-story frame boiler and engine house adjoining. inclUding steam heating and hoisting apparatus{ (excepting engine artdboiJer,) situate on the west bank of Lake Winnebago, east of Chicago and N. W. R. R. tracl):!!, Wisconsin. . I ' , "$77.430D engine and. boilers, pumps, and. other connections contained in said i:mgin'e and boiler house. ' .. "$212.91 on fixed and movable .machinery, shafting. bolting, tanks, coolers, piping, tubing, furniture, fixtures, tools, and all other implements used, all contained in said packing-house, and boiler and engine house. ' "$483.87 on hogs, and hog and beef product, lard, and grease rendered anci

202

FEDERAL REPORTER.

in process of rendering, salt, ice, cooperage, boxes, coal, syru!?s, and all material used in packing and curing meats, their own, or held by them in trust or on commission, or sold but not delivered, contained inabova-described packing-house. "$29.04,on one.,story frame beef-house south of premises. "$19.35 on beef product contained therein." -Making ,8 total insurance on these different classes of property of $1,500. The policy also contains certain clauses or conditions which have a bearing upon the defense' here interposed, and which I read to you: "First. "All fraud or attempt to defraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company under this policy. sustaining loss or damage by fire shall forthwith give notice?f said loss to the and,as soon after date as possible, render a partlcularacoount of suchJoss, signed and sworn to by them, stating whether auyand What otherinsurailce has been made on the same property, giVing copies of tlie written portion of allllOlicies thereon ; also th'e actual cash value of the property aJ,ld their interest therein; for what purpose and by whom,the bUilding insured or containing' the property insured, ,and the several parts thtireof,weJ;e, used at the timE\ of the loss; when and how the fire originated: /lndshall Bi,la0PJ:O(1uce a certificate under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, not related to the assured) stating ,that he has examined the circumstances attending the loss, knows theoharacter and circumi'ltanceBof tbe'aslJured; and verily believes that the assured has, without fraud, !iti!ltained 1088 the pl'opertyiDsured to the amount which such magistrate or notary pUblicilhall certify. ', "Third. The cash value of the property destroyed or damaged by fire shall in no case exceed what wou14 be the cos,t to the assured at the time of the fire of replacing the sam&;and,'fn case:of the depreciation of such property by reason of age, wear and tear, location, change in style, lack of adaptation to profitable use, or other causes, from use or otherwise, a suitable deduction fJ:om the cash cost of replacing the same shall be made, to ascertain the actual cash value." . ' The plaintiff. claiming that there was a total loss of the insured propby fire on the thirteenth day ,of September, 1885, seeks to recover ·tbeaInountofthe insurance for which it alleges the defendant is liable under this policy. . ,The defendant alleges, bYway of defense, that the plaintiff, in the proofs of losS furnished to the defendant under one of the provisions of the policy which I have just read, falsely and fraudulently stated and that it had sustained a loss by the fire to the amount of $18,in," ,truth it did on a loss to exceed $10,000. Further, that the plaintiff falsely and fraudulently stated and swore in its .proofs of loss' that it had sustained by the fire loss of its stock in business to the amount of $5,965.90, when in fact its loss of stock did not exceed $1;000. This IS what the defendant alleges by way of defense. In other words, the defense is that the plaintiff knowingly and fraudulently exaggerated and misrepresented its loss, for the purpose of obtaining from the insurance company more money on account of the loss than it was justly entitled to" '
,

OSHXOSH PACKING

&;

PROVISION CO. V. MERCANTILE INS. CO.

203

Underthe conditions of this policy, it became the duty of the plaintiff company, after the fire, to render to the insurance company a particular account of the loss, duly signed and sworn to; iIlshort, to make what has been spoken of as "proofs of loss," which should fully and truthfully exhibit to the company the character, extent, and circumstances of the loss, this being very properly required as a basis of either payment of the insurance, or any other future action of the parties. In due time after the fire, proofs of loss were made in this case, which are in evidence. They appear to have been made and sworn to by Charles G. Baumann, president of the Oshkosh Packing & Provision Company, and' state the losses ae follows: .. On two and three story frame packing.house, including dry and chill room, and on one-story frame boiler and engine house adjoining, inclUding steam heating and hoisting apparatus, (except engine and boiler,) $7,594.92; on onestory frame beef·house, $649.35; on boiler, engine, pump, and other connections, $938.84; on stock in packing-house, consisting of hams, shoUlders, mess pork, mess beef, sausage, lard, tallow, etc., $5,965.90; on machinery and apparatus not part of the building, $3,062.19." -Making the total loss, as claimed and sworn to in the proofs, $18,210.70. As we have seen, the policy in suit provided that all fraud, or attempt at fraud, by false or otherwise, should cause a. forfeiture of all claim on the company under the policy. To maintain this defense of fraud in making the proofs of loss, it is incumbent upon the defendant to show that the insured-that is, some one of-the officers of the plaintiff company-knowingly and intentionally swore falsely in the proofs of loss in some material respect pertaining to the extent of the loss. The clause in the policy, in regard to fraud and false swearing, is to be viewed in connection with the general nature of the contract; and, so viewing it, it is plain that it was intended thereby to require the insured to give the insurer real and reliable information as to the amount of the loss; and that an honest mistake, or unintentional error, or unintentional misstatement in the proofs of loss, would not avoid liability on the part of the insurance company. Hany untruthful statements were made in the proofs of loss in respe<Jt to the value or quantity of the property destroyed, it must appear, in order to defeat a recovery on that ground, that stich false statements were intentionally and willfully made for the purpose of deceiving and defrauding the insurance company. The mere fact, in a case of this kind, that a party who seeks to recover insurance has even largely overstated the value of the property destroyed, will not, of itself and alone, relieve the company from liability. In order to prevail on this ground, the insurer must show that the insured knew it was worth much less than he swore it to be. There may be an honest difference of opinion as to the real value of property. Such a difference of opinion does often exist in the minds of men as to the value of property, because that question may rest largely in opinion. And if the jury find that even though a valuation is largely excessive, yet if it was made by the insured in good faith, his statement in that respect cannot be held to
· I

204

REPORTER.

amount to false swearing or fraud, within the meaning of the policy. But the insurance company did not ,agree to pay, if the plaintiff should it really was, alintentionally endeavor to make Qut its loss larger' though the jury may believe, that it did suffer a serious loss. In other words, if the plaint;iff cQmes into court attempting to perpetrate a fraud upon the company I by claiming to recover insurance on losses which it knows it did not sustain, it ought not to succeed in such attempt. While the law allows indulgence for mistakes ponestIy committed, it does not relieve a party if there be a on his part to commit a fraud,., And although, as I have said, thamere fact that you should find the 'actual loss to be less-even much less---:than that stated by the its preliminary proofs of loss, would not of itself be sufficient, tCj) the defense, yet if there is a serious discrepancy between the and that sworn to in the proofs, or between the quantity of allyikindof personal property actually destroyed and that stated in the'proofsofloss, such discrepancy would 'be, evidence bearing upon the issUe of fraud, and a faot to be consideredbYY9u in determining whether there was fraud or false "swearing, within the meaning of the , policy, in the proofs. These are the principles of law governing this branch of the case, and to be borne in ,mind by you as you consider and weigh in passing upon ,this defense of fraud in making the proofs of loss. The question, as you see, is, did Baumann, the president of this company, when he made these proofs oflolilS, intentionally ,designedly, make false statements ,as to ,either the value or quantity of the proPerty destroyed, intending thereby to defraud the insurance company?, In this state we have a statute which provides, that "whenever any policy of insurauce shall be written to insure any real property, and the property insured shall be wholly destroyed without criminal fault on the part of the insured or his assigns, the amount of the ,insul'aI:\ce written in such policy shall be taken conclusively to be the true value of the property when insured, and the true amount of loss Itnd measure of damages when destroy,ed." The expression "wholly destroyed"in this statute is equivalent to total loss; and total loss, as applicable to a building, (for this statute relates only to real property,) means, not· that the materials of wb,ich it is were all utterly destroyed or opliterated, bu.t that the building, though ,Some partofit may remaiJ;l standing, has lost its identity and specific charactef as a building, and instead thereof has peCOJ;lle a broken mass, or so far i.n thatconditio!\ th"lt it: cannot be properly any longer designated as a. building. When that has occurred, then there is a total destruction .01' loss. May., Ins. § 421a;. ·01', as it is said ip.()ne of the which :trelttsof this a tota11oss does 110t mean an absolute extinction. r,I'hequesti.on janot,whether all the parts and material composing the building are aP!lolute1.y OJ: physically destroyed, but whether, after the fire, the thi,ng insured still exists as a .:' building. 1 Wood, Ins. § 107, . Now, applying to the case the definition.of "total loss" thus given, the court must instruct you, upon the undisputed evidence, that the

OSHKOSH PACKING & PROVI8:tON CO.'!'. MERCANTILE INS. CO.

ings covered by this policy were wholly destroyed, within the meaning There is" moreover, no evidence that the fire of the statute referred was caused by the criminal·fault of the' insured. In this connection you will again observe that the. policy secured to the plaintiff insurance to the amount of $677.40 on the packing-honse and boiler and engine honse, and $29.04 on the one-story ·frame beef-house; and as these buildings were wholly destroyed, without ,criminal fault· on' the part of the insured, if you find that there were nO fraudulent Tt>presentations in the proofs of loss touching the quantity or value of the personal property destroyed, it will be your 'duty to acceptthe anlount of insurance on buildings'as stated in the policy as representing the true amount of the plaintiff's loss on the buildings. ' ", . The question upon which !the deterll1inationof this case depends, 'is whether thetewas intentional false swearing or fraud in! the proofs of lOllS as' to either the quantity or value of any of the' personal property by the policy. That is the pivotal point in the case, and that is the questionyouwilltake up in the very beginning' of yourdeliberatitius. If you find .that, in statiilg' the quantity or of' any of the sonalproperty' ,in question in the proofs of the loss,"the plaintiff WitS guilty of designedly false repiesEmtat'ibn,--that is', willful, intehtionlil fraud,-then I am of the opinion that the plaintiff can recover nothing upon the policy, either on account o{thebuildings or personal property, and your verdict in that case will be for' the defendant. At the same time you will understand 'that, even if! 'you' should think there fraudulent overestimate of the value of the buildings, 8uch fraud would not defeat a recovery upon the policy; For instance, suppose you should be of the opinion that there was fraud in the valuation of the buildings in the proofs of loss, but no fraud in the statements of quantity or valuations of personal property. The plaintiff would still be entitled to recover as to both buildings and personal property, for the reason that suoh fraud would not be material because of the statute I have read inrela:. tion to real property which is'insured and wholly destroyed. To defeat a recovery; the alleged fraud must arise out ofand inhere in ·representations as to the personal property, contained in the proofs of loss, . And so you see that it is not fraud in the valuation of the buildings that will defeat the plaintiff's right to'tecover, but only fraud,·if any ,in the rep" resentations in the proofs of loss relating to the personal property. ' Upon this question, I think I must have made myself clearly understood; and .so your inquiry: will be whether Charles G. Baumann, the president of the packing and provision company, did or did not; in the proofs of loss which he sigtied and swore to, willfully and fraudulently misstate or misrepresent either the value or quantity m any of the personal property destroyed··. The question for you to·determine in deciding this issue is not alone whether the values and quantities fixed by the plaintiff in the proofs of loss were the true values and quaniities of the property destroyed, but whether it was an intentionally false estimate and claim. Of this question, which is purely onecf fact, youa1'6 the indeed, it is unsole and exclusive judges, and I cannot

.in.

. / ..·'

·.

.

necessa.ry for to do, to review t11.e evidence. That has been very ,;effectively done hy counsel i.n their arguments, and I have no doubt you ullderstand precisely what the claims of the parties are as to each class ,of ,personal property specified in the policy. Here, as one class, you have the engine and boiler, pumps, and other connections, contain,ed in the engine and boiler house. Then, as another class, you have the fixed and. mo,Vable machinery, shafting, belting, tanks, coolers, piping, tubing, furniture, fixtures,. toolEl, and implements. As another class, the beef and hog product in store, including lard, grease, tallow, etc., in the packing-house; and, fina)ly, the beef product in the beef-house. Now, did Baumann, the representative ,of the plaintiff company, fraudulently misrepresent, in the proofs of loss, either the quantity or value of any of this, property alleged W destroyed by the fire of September,·1885? A.s I havesaili,the question is not merely whether he overestimated ,quantities, or overstated values, but did he designedly, with the purpose of defrauding the insurance company, make ,statements in ,said. proofs of los!! as to the quantity or vaJue. which he knew to be false?, I A.nd, in determilling' this issue, you will consider all the evi,darice upon 'it'Jol<nd all the facts !;lud circumstances which prec oeqed an.d attellded the loss, as they have been developed in the testi'm.ony. . Theburden of proofin establishing the is upon the defendant, .Fraud is not to be presumed.. , It ml,1stbe affirmativelyshown. 'fhe solutionpf the questioJ;lSinvolved, dependtl upon the conviction produced in your minds py' the evidence. I have said that a fraudulent overestimate of the value of the buildings in the proofs 0'£ loss will not of itself vitiate. the policy, or defeat a recovery bytbeplaintiff. .It will be at,the same time understood that, if fraudulent ,representations as to the value of the bulldings are proved, the proofQf such fraud may be, taken into considerlltion by you in determining whether the statements made as to the quantity and value of personal property destroyed, if they were not correct, were or were not frlloudulent., --..Although fraud in stating the value of .the buildings will not of it.&e:lfauthorize a verdict for the defendant,evidence of such fraud may be used in ascertaining the intent with which any misstatements of the quantity 01' value of personal property destroyed were made, if you findaoy,auch misstatements were made. And by this form of expression I do not mean to convey any intimati<mas to whether misstatements were or were. not made, as that. is a que13tion for you alone to determine. gentlemen,. to st1m up concisely this branch of the case, if you find fromthe6.videoce that the witness OharlesG. Baumann, in the proofs of lotll;l which he signed and swore to, designedly misrepresented either. the qqantity or value of any .of the personal property covered by thepoliQY'i AAd destror¢d.: by the fire, then the plaintiff can recover .nothing in;this s1l,it, and, your verdict Iihould in that case be· for the defendll;Dtupon the. entire claim sued 'on; buHf you should find otherwise, Bllollmanndid not,fl'audulently misrepresentin the proofs
i

OSHKOSH PACKING & PROVISION 00. V. MEROANTILE INS. 00.

207

of loss either the quantity or value' of any of the personal property destroyed,-,-then your verdict Should be for. the plaintiff as to both the buildillgssnd personal propertyj.and, if sueh shpuld be your conclusion; then there will remain the question, what should. be the amount of the recovery? Upontbat queEtion I instruct you, first, the plaintiff entitled to a verdict, it will be your duty, so far as the buildings are concerned. to allow the plaintiff just what the policy names as the amounts ofinsurance thereon; namely, $677.40 on the packing-house, boiler and engine house, and the steam heating and hoisting apparatus oonnectOO therewith, and $29.04 on the aU, on. account of the buildings, $706.44. That will dispose ofso much .oIthe case, namely. the buildings. Then, personal property·. I have to call your attention toa clause in policy not yet referred to. I will read it: "In case of any other insurance upon the property hereby insured, whetb& valid or not. or made, prior or, SUbsequent to the date of this policy, the assured 8:!Jlallbeentitledto recover of this company 110 greater proportion o·t the l08s1Sustained than the sum hereby insured bean! Whole amount Ill? thereon." There$ill3 other ,on this total amount of allinsuranee upon it (1 'am speaking now of the personal property) On machinefY u.nd, on $800.06j, on 111 $5,000j on 111 $199.9Q:, It lsagreed that theproportion whi6h ilie sum insured by the policy here in' suit bears to the whole the .this property 'is 9;675 .per cent. ' If dmolInt fol', the plamtlff, If WIll be your dutytoascerta111 the amount of the loss on eacll. Of these classes property. was the total loss 011 account' df"machinery and fixturesr Whalaoy'ou determine tha'uo be? Havingascerttl.ined that, then what will be 9.675 per cent. of the amount of Buchlossr Thus you'willgo through each of these classes of personal property, if you find the plaintiff entitled to recover, and get the percentage on each as I have indicated. If, as to either class, YOJ! should find the loss of such amount that, 9.675 per aIUoupt remaining wo-g,ld exceed6't just equal the· sum named in the policy as the insuratlce on that class of property, then the recoveryllS. to Jhat property would be just the insurance thereon. For illustration, suppose you take the engine,' bOller, and pumps. If you should find the loss on that prop'" erty of such amount that, when you take 9.675 per cent. of it, the amount;remaining would be more than or just eqUal to the amount of the insurance on engine, boiler, and pumps, as named in the policy, thell.tlieplaintiff would be entitled to recover just the amount named in the policy as the insurance thereon. But if, as to either class of the personal property, you should find the loss thereon of such amount take 9.675 per cent. thereof, the amount remaining would he lea!! than the sumnallled in the policyQ.S theJu.aurance thereon, then

208

FEDERAIiREPORTER.

the plaililtiff's recovery lis to that property would be the proportion or per centage thus ascerta.ined. 'Then it would not be' the amount named in the policy. You thus what your determination shall- be,as to the exact ,amount of loss as t.o each class of the property. The figuring out of this percentage-I presume you understand this already<fromithat the coutit has said-is not necessary as to the buildings,because the total insurance on the buildings was $6,999.84. By virtue of the' statute that I ,have',:referred to, as they were wholly destroyed, tha,t amount is taken ;to be the amo'unt'iof the true loss on the buildings,lind 9.675 per Oeut:,thereofis just the amount of the insurandeon'the buildings specifie<:Hn the policy. That is the reason why the court told 'you a fElw'ffi@mentsago 'that, if I you find for the plaintiff, it will be entitled to recover, as to the buildings, just the amount of the illsul'anue'thereon; In' arriving Jat'thevaluesofpersonal property'destroyed, regard should be had to,olle,of the clauses in,' the policy which I have raad,to namely: d:, " "The cash vllI.:tte of the property 'destroyed or damaged by 'fire shall in no case exceed what 'WC!>uld'be, 'the cost to the assured at the thiieof the fire ofreplacing the' Btuli'Ei; ,and, in case:ottlhed'epreciation of'Sul:lh, property by reason of age, wear and tear, location, change in style, lack of ada'ptation to profitable usel or:,ot\1e.r from ,useqr from the cash cost or replaCIng the same shall be made, 'to ascertll.1'n the actual cash value.:" , ' , , ,,', ' , " i" " , : " ' , :,tQtaJ.,,' of the claim' ,$,1 and, in any event, that IJlust be th'e)iin,it onts recovery, ,ex,<;:ept, If entitled to lecover, thEl shoqld have interest on the sum recovered, at 7 per cent., from DeceIllber 14,1885. .. ' " .If theplail1tifr will aM. together the various aJriounts of lQB,s on the classes of ascertained in' the 'NVftY I havep9inted out, computing interest on ,the aggregate from the time rate named,. anq let your verdict express one Bum as tije....mount of the .,

at

OTTAWA BQTTLE &'

,

"

..

,'

;.

Co.

'V.

. . .

GUNTItER.and others. ,,

,

.

('Oz"rouit

h.»; Wiaoonain.

May,1887.)

TW

1.

I:MPLllro>' WARBANTY,- "EU>Qll.T-Bu1l; BOTTLES"-EvlDENOEOF MEANING

iadmissible, in an S:ction for bra,Reb, hf conti-act, to show what was meallt ill 'the trade by "expor....beer bottles," (which-were the 'subject of the otder to detllrmine 'Whether the.re W8sJtlil'implied warranty, in sucJ:l. be to .the processwlth'91lt breakmg'.' sftet beIng 'filled, III order to destroy the germs of fermentation ill·the beer., ' i , ' . , '
11. SAME-tLKNGUAGE OF CONTRACT.':;

i

In snchC/lse there is nQ lmplilldwarranty.that the bottles will be tit for the use in'teilded by the purchaser, w:heilier known t6 the manufacturer or not, ',unless i suchiwarratrty'sriiles,fromthe language employed in the contract.

;,'.