Opinion by
Me. Justice McCollum,. The specifications of error in this case are founded upon the answers to the points submitted by the parties. The first and most material question raised by them is, whether the agreement on December 30, 1887, between the Fidelity Title & Trust Co., as trustee of the Patterson property, and the Peoples Natural Gas Co. appellant, is a bar to this action. In Ins. Co. of North America v. Fidelity Title & Trust Co., 123 Pa. 523, the present appellee unsuccessfully contended that this agreement released the Peoples Natural Gas Co. from liability for fire loss, and consequently constituted a bar to the action against the insurance company to recover its proportion of the same. If this loss was caused by the negligence of the Peoples Natural Gas Co., the liability for it was on such company, and the position of the insurer was that of a surety who is discharged by a settlement or agreement which releases the principal. It became necessary, therefore, in the case cited, to construe the agreement in question, and determine whether it operated as a release of the Peoples Natural Gas Co. from liability for the fire loss. If it did, it also operated as a discharge of the insurance company from its liability upon its covenants in reference to the same. It was held that the rights and obligations of the parties respecting the fire loss were not affected by the agreement. The reasons for this conclusion *15were clearly and forcibly stated by our brother Williams, who delivered the opinion of the court, and it is not necessary to repeat them here. It is sufficient, on this branch of the case, to say that nothing was developed on the trial of the present issue which affords any ground for modifying the written agreement, or suggests any doubt of the correctness of the former construction of it.
The language objected to in the appellee’s point, which was affirmed, was taken from the opinion in Ins. Co. v. Fidelity Co., supra, and, as there used, manifestly means that the gas company, having expressly excepted the fire loss from, could not afterwards be heard to allege that the claim for it was invalidated and extinguished by, the agreement. It is equally manifest that this is the sense in which it was used and understood in the court below, because the instructions to the jury were explicit and emphatic that there could be no recovery unless it was found from the evidence that the loss was caused by the negligence of the appellant company, and that, in ascertaining the amount of the loss, the judgment against the insurance company could not be considered. In the light of these instructions, and the fact that the utmost latitude was allowed for a defence on the merits, the criticism of the affirmance of the appellee’s point seems groundless.
The construction of the written agreement was for the court, and the refusal to allow the jury to find what the parties meant by it was so obviously proper, that no argument or citation of authority is required for its vindication.
An assignment of the claim by the Fidelity Title & Trust Co., or a formal order of subrogation to its rights, is not necessary to the maintenance of the suit in its present form. The facts which entitle the appellee to such subrogation appear in evidence, and are undisputed, and the Fidelity Co. makes no objection to the use of its name in the enforcement of the claim.
There is no evidence in the case which warrants an inference of collusion between the Fidelity Co. and the appellee in the suit on the insurance policy, or that the appellee had any defence to the action which it neglected to make. It did not allege that the policy was void by reason of a violation of its conditions, and it is not apparent now that there was any *16ground for such a defence. Besides, it is not clear that the appellee owed any duty to the appellant to make this defence, if it existed. The liability of the appellant for the loss in question is grounded on its own negligence, and is primarily to the owner of the property damaged thereby. This.liability was not affected by the agreement of Dec. 80, 1887, and the present action is simply in enforcement of it.
We think the evidence was sufficient to enable the jury to find, without difficulty and with reasonable certainty, the amount of the fire loss. It was this loss which was excepted from the agreement, and deducted from the estimate of the total loss, as revised by the president and agents of the appellant company, and it was testified to by James Wherry, one of the appraisers appointed by the Fidelity Co. to ascertain it.
The specifications are overruled.
Judgment affirmed.