The record in this case is quite voluminous. There are seven bills of exception — six signed at the request of the defendant, and one at the instance of the plaintiffs. The plaintiffs offered five prayers, four of which were rejected. The defendant presented sixty-nine prayers, three of which were granted. The Court gave six instructions drawn by the plaintiffs in accordance with the trial Court's views. There are fourteen special exceptions to these instructions; and there are twenty-five motions to strike out evidence admitted subject to exception. It will be simply impossible to treat separately each of these one hundred and twenty-six questions; and we must accordingly content ourselves with a general discussion of the controlling legal principles applicable to the whole case, and then reduce to appropriate groups these numerous points and in that way dispose of them.
The suit was instituted by Strouse Brothers against the American Credit-Indemnity Company, of New York, upon a bond of indemnity. The American Credit-Indemnity Company is a company which for a stipulated premium guarantees a creditor, to a specified amount, against losses resulting from the insolvency of his debtors. It furnishes a species of insurance. The bond which it issued is coupled with many conditions. On the fifth day of June, 1893, this company, in consideration of a written and printed application, which was made part of the contract of idemnity, and upon the payment of five hundred and eighty dollars, and *Page 259 in further consideration of the acceptance of the terms and conditions embodied in the bond, bargained and sold to Strouse Brothers a bond of indemnity guaranteeing them against loss, to the extent of and not exceeding twenty thousand dollars, resulting from the insolvency of debtors, over and above a net loss of seven thousand five hundred dollars first to be borne by the indemnified, on total gross sales and deliveries of goods, wares and merchandise amounting to one million six hundred thousand dollars, and made between June the first, 1893 and May thirty-first, 1894, to firms, corporations or individuals actually engaged in commercial and mercantile pursuits in the United States. Most of the conditions consist of descriptions of what are provable debts and of directions as to the mode of proving them. Some of these must be stated, because upon their construction much of the controversy depends. The Indemnity Company is not liable for any debts unless the debtor had a certain rating in Dun Company's mercantile agency book; and its liability is limited as respects any one insolvent debtor to thirty-five per cent of the lowest amount of the capital rating given such debtor by that agency; and no account against any one insolvent debtor can be proved for more than ten thousand dollars. Proof of loss must be furnished within twenty days after knowledge of the insolvency of any debtor shall have been received by the indemnified; and final proof of loss must be forwarded within twenty days after the expiration of the bond; and the amount due by the company must be adjusted and is made payable within sixty days after the receipt of the final proof of loss. Both the preliminary and the final proofs of loss are required to be made on blanks provided by the company. This scheme of indemnity includes two classes of losses. The one, an initial loss, which must be borne by the indemnified; the other, a loss in excess of the initial loss, which must be borne by the indemnitor. Both kinds of losses are such as result from the insolvency of the debtors who owe the indemnified. Obviously, *Page 260 the inquiries which first suggest themselves are these: What is meant by the term "insolvency" as used in the body of the bond? Which are the losses that belong to the two classes respectively? What is the period of time at which the initial loss must be ascertained, as upon the location of that time the extent of the liability of the indemnitor in a large measure depends.
It is insisted by the company that the term "insolvency" is limited and defined by Conditions 11A and 11B indorsed upon the bond. These clauses are as follows: "11A. General assignments of, or attachments against insolvent debtors, the absconding of the debtors, or executions returned nulla bona, shall constitute insolvency." "11B. The appointment of a receiver, a `sell-out,' or the death of a debtor does not establish insolvency, but the indemnified may prove such claim during the term of this bond or renewal thereof, provided legal proof shall be given establishing the insolvency of the debtor." These bonds of indemnity and certificates are contracts confined to the business affairs of merchants, and relate exclusively to the insolvency of merchants. Naturally, then, it must follow that the insolvency against which they afford indemnity is insolvency as understood by merchants and as defined in bankrupt and insolvent laws relating to merchants and mercantile transactions; unless a contrary or different purpose is clearly and unequivocally manifested by some term of the contract. On the face of the bond protection against loss "resulting from the insolvency of debtors" is afforded. The insolvency designated is the usual, legally defined insolvency — which is an inability of the debtor to pay his debts as they fall due in the ordinary course of business, and this is dependent neither upon a formal adjudication nor on an actual insufficiency of assets to meet liabilities. Castleberg v. Wheeler,68 Md. 266. As a defeasance clause limiting the liability of the indemnitor must be clearly expressed and strictly construed (Credit Ind. Co. v. Cassard, 83 Md. 272), conditions 11A and B cannot be held to *Page 261 narrow the meaning of the term insolvency as used in the body of the instrument. "General assignments of, or attachments against,insolvent debtors * * * shall constitute insolvency." "The absconding of debtors, or executions returned nulla bona shall constitute insolvency." Obviously, this means that these things shall constitute evidence of insolvency. It is not every general assignment, or every attachment that is declared to constitute insolvency; but such an assignment made by, or an attachment issued against, an insolvent debtor. But who is an insolvent debtor? Unless you reason in a vicious circle the answer must be one who is unable to meet his obligations as they fall due in the ordinary course of business. An execution returned nulla bona cannot constitute insolvency. The return is the act of the officer and not of the party, and no act of a third person can constitute a debtor's insolvency. Insolvency is a status. Brown v. Smart, 69 Md. 332; s.c. affirmed,145 U.S. 457. The return on an execution may be evidence of thatstatus, but is not the status itself. These four things named in Clause 11A do not create the status or condition of insolvency — they are simply results which flow from the antecedent, pre-existing insolvency. They are therefore evidence of the thing from which they proceed, they are not the thing itself. Section 11B makes this demonstrably clear. "The appointment of a receiver, a sell-out, c., does notestablish," that is, does not prove insolvency; but "legal proof" may be given "establishing the insolvency of the debtor," that is, establishing his inability to pay his debts as they fall due in the ordinary course of business. Now, if nothing but the things named in 11A constituted insolvency there could be no "legal proof" of insolvency under 11B, because there could be no insolvency to be proved unless there was a general assignment, an attachment, an absconding, or a return of nulla bona. A thing which in its very nature cannot constitute insolvency, though it may constitute evidence of insolvency, cannot, by beingcalled insolvency, be other than it intrinsically is; namely, *Page 262 a means of proving the existence of insolvency. This must be so unless the thing to be proved is identical with the thing that proves it — unless insolvency as a fact, and the evidence which proves that it is a fact, are one and the same thing. But the two are manifestly different.
In Am. Cr. Ind. Co. v. Carrollton Co., 95 Fed. Rep. 114, there was a suit against this same defendant on a bond issued in 1895. In bonds issued by it after 1893, Clause 11A was materially modified. Insolvency was limited and defined by the modified clause, thus indicating that the defendant did not itself consider that the precise clause now before us imposed a limitation as it stood prior to the change.
One of the difficulties with respect to the ascertainment of what losses are to be included in the initial loss of seven thousand five hundred dollars is alleged to arise out of Condition 12A, which is in these words: "To simplify adjustment and to avoid disputes, it is agreed that such sum of gross loss shall be the limit to be borne by the indemnified, as less twenty-five per cent will equal the agreed amount of annual net loss; all claims making up such said sum of gross loss to remain the property of the indemnified, the company relinquishing its claims except as hereinbefore provided." The face of the bond having limited the liability of the indemnitor to losses in excess of a net loss which the indemnified was required to sustain in the first instance, it obviously became necessary to prescribe some method by which the net loss should be ascertained. The very term net loss implies a resultant, remaining loss after credits or collections are deducted. But what credits or collections are to be deducted? It might in many, if not in most cases, be impossible to estimate in advance of their actual receipt what these credits or collections would aggregate, and yet until ascertained or estimated a net loss could not be determined; and thus there would be a wide field for controversy left open perhaps long after the period for adjustment had passed. To preclude just such controversies this Clause 12A, which fixes by agreement an amount that *Page 263 the parties stipulate shall be the equivalent of the net loss, and shall be considered the indemnified's initial loss, was inserted. It was not possible to express the amount in dollars and cents, because the net loss of $7,500 was fixed at fifteen thirty-seconds of one per cent upon a basis of sales amounting to $1,600,000, and was to increase, under the provisions of Clause five, in the same ratio if the sales exceeded the basis just named. An equation was substituted for the specified net loss, and this was done avowedly to avoid disputes and to simplify adjustment; and this equivalent statement simply declares that agross loss which, after twenty-five per cent of it shall be deducted from it, will equal the net loss, shall be the measure of the initial loss. In this case it is the sum of ten thousand dollars, because the sum of ten thousand dollars, less twenty-five per cent of $10,000, or $2,500, is equal to seven thousand five hundred dollars. All sums collected on the debts forming this gross loss are to be retained by the indemnified and go to reduce the amount of the initial loss; and all sums collected on the debts which make up the liability of the indemnitor belong to the latter and diminish the total of its loss. But at what period of time is the adjustment of the gross initial loss and therefore the ascertainment of the Indemnity Company's proportion of the whole loss to be determined? Is it when and as each loss occurs, or is it only when the bond expires? The answer to these questions will settle another issue upon which the parties differ most radically.
On the part of the plaintiffs it is insisted that the initial gross loss of ten thousand dollars is to be determined as of the dates of the failures which first occur, and that the sums due at the date of the failure are alone to be reckoned without abatement on account of payments subsequently made; whilst the company contends that the time for computing this gross loss is the time when the liability under the bond is to be adjusted, that is, as of the date of the expiration of its term, and that the sums then due are the amounts to be considered. There are two proofs of *Page 264 loss required to be submitted. One, under Clause four, within twenty days after knowledge of the insolvency of any debtor has been received by the indemnified; the other, a final proof of loss under Clause C, within twenty days after the expiration of the bond. It is declared in Clause C that "the amount due by this company under final proof of loss shall be adjusted and paid within sixty days after receipt by the company of such final proof of loss." The amount due by the company is the amount ascertained under the final proof of loss. That amount is dependent on the amount of the initial gross loss sustained. If the initial gross loss sustained is less than the initial gross loss named in the bond, then there is no loss in excess of the initial gross loss, and, consequently, no loss for which the company is liable. So the company's liability can only be ascertained when the initial gross loss has been reached, and as the company's liability is referable to the final proof of loss, necessarily the ascertainment of the initial gross loss, which fixes that of the company, must be also referable to the same period. This is made so clear by the learned Judge who heard the case below, that we quote from his opinion as follows:
"In the preliminary proof the whole amount due on any claim at the time of failure is to be stated; in the final proof, which covers all claims, the indemnified is required, both as to claims which go to make up the initial gross loss, and those which make up the loss which the company must bear; to state again the whole original indebtedness and also all amounts paid since the date of failure on each claim. The requirements of proof apply to each class of claim. See Jaeckel v. Am. Cr. Co., 54 N.Y. Supp. 505.
"It is conceded that the liability of the company on the excess over the initial loss borne by the indemnified, is reduced by payments made between the date of insolvency and the expiration of the bond, and I think the same rule should apply in ascertaining the initial gross loss. If not, why is the indemnified required to make a statement in his *Page 265 final proof of all payments made on claims which go to make up his initial gross loss. The condition relied on by plaintiffs, which provides that the claims "making up" the initial gross loss shall remain the property of the indemnified, does not help us to dispose of the point now considered. The question still remains, what claims make up the initial gross loss? The loss must be made up of claims as they exist when it is made up, and so we come back to the question, when is it to be made up?
"If the plaintiffs be right, such a case as this may easily be imagined; for instance, early in the year some debtor fails owing the indemnified party $10,000; by the end of the year the whole debt has been paid off; in such a case, under the construction of the plaintiffs, the indemnified would have the right to hold the company for losses in excess of this $10,000 without having himself borne an initial loss of one dollar.
"The case put for illustration is not altogether imaginary, nor at all impossible. The very facts suggested hypothetically have actually occurred in the case of one claim involved in this suit. The whole debt due by McMurray at the time of his failure was paid off before the bond expired, and yet the plaintiffs claim that the full amount of this debt should be counted in making up their initial loss, although nothing has been lost on it. I cannot accept a construction that would lead to such a result, nor can I see how Condition 12A operates to fix one time for computing the initial gross loss, when Condition 12C provides another for adjusting the company's liability.
"The time for computing the initial gross loss is, in my opinion, the time when the liability under the bond is to be adjusted, that is, as of the date of the expiration of its term, and therefore all these intermediate payments must be deducted."
As the company's liability does not begin until the initial gross loss has been sustained it would seem to follow necessarily that this gross loss, which is the first to be borne, *Page 266 should be made up of those losses that first occur, and it equally follows that those payments which the indemnified is entitled to retain in reduction of his initial gross loss are those which are made after the time for adjustment, upon claims included in the initial loss; whilst the payments which the company is entitled to receive in reduction of its loss are those made after the same period on debts which form the basis of its liability.
But this does not settle by any means all points of difference between the parties. There is a stipulation affixed to the bond, and that stipulation, which is called a rider, has caused much of the controversy. The rider is in these words: "In consideration of the lapsing of certificate No. 1204 in the United States Credit System Company, of Newark, N.J., it is agreed that any losses which occur subsequent to the expiration of said certificate and which would be provable under a renewal of said certificate, may be proved hereunder in accordance with the terms and conditions of this bond, provided that no claim under extension at the time of payment of the premium, shall be included in the protection under this bond." Under certificate No. 1204, The United States Credit System Company agreed to pay Strouse Brothers a sum not exceeding twenty thousand dollars in excess of $6,250, on the total gross sales and shipments of merchandise made between June the first, 1892, and May the thirty-first, 1893, as said Strouse Brothers may actually lose on such shipments on legally ascertained insolvent debtors whose insolvency occurred after the payment of the guarantee fee and who had a certain credit rating in R.G. Dun Company's books, and whose debts did not exceed $5,000 for any one debtor. It was further stipulated that twelve and a half per cent of the amount due, and all amounts procured and procurable shall be deducted from all claims. By a further provision in the certificate it was stipulated that the $6,250 mentioned in the certificate was the amount of the initial loss first to be borne by the indemnified before the liability of the Credit *Page 267 System Company would arise. Now, the question is, does the rider carry into the bond all the terms and conditions of certificate No. 1204?
It will be observed that by the explicit words of the rider any losses which occur subsequent to the expiration of the certificate, that is, subsequent to May the 31st, 1893, and which would be provable under a renewal of the certificate, may be proved under the bond in accordance with the terms and conditions of the bond. The certificate covered sales and shipments from June the 1st, 1892, to May the 31st, 1893; the bond covered sales and shipments from June the 1st, 1893, to May the 31st, 1894. The two together embraced the sales and shipments for two years. If the terms and conditions of the certificate are not carried into the bond then the company would be liable for the losses of two years, though it could not insist upon an allowance of an initial loss for more than one year. The learned Judge below decided that the initial loss of $10,000 fixed by Clause 12A of the bond was the only initial loss which could be charged to the indemnified; and that the initial loss of $6,250 prescribed by the certificate and applicable to sales made during the year preceding the date of the bond, but under the protection of the certificate, was not imported by the rider into the bond at all. In effect, therefore, the ten thousand dollars gross initial loss, which was, according to Clause 12A, "the agreed amount ofannual net loss," becomes, not the equivalent of an annual net loss, but the gross loss for two years. Is this the meaning of the rider? "Losses which occur subsequent to the expiration of said certificate and which would be provable under a renewal of said certificate, may be proved hereunder in accordance with the terms and conditions of this bond." This clause relates to two subjects. First, the thing to be proved; second, the mode of proving it. Now, the thing to be proved is not merely a loss, but a particular loss, that is, a loss which would be a loss provable under a renewal of certificate No. 1204. Then to certificate No. 1204 resort must be had to ascertain what *Page 268 losses occurring subsequent to its expiration, would be provable under a renewal of it. A renewal of it would be simply an extension of it with all of its terms and conditions. Upon turning to it, this provision will be found: "Covered losses occurring after this certificate expires on shipments made during its term are provable under the renewal hereof, as if the goods had been shipped thereunder." If the goods had been shipped under the renewal of certificate No. 1204, that is, under a duplicate of it for another year, the thing to be proved — the loss — would have been a loss in excess of the initial loss of $6,250, and in excess of twelve and a half per cent of the claim and in further excess of all amounts procured and procurable from the debtor, because that residue, and that residue only, would have been the covered loss. The provable debt is the thing to be proved, and under the terms and conditions of the certificate, only such debts as were in excess of the initial loss and of the abatements just named, were losses which the Credit System Company undertook and stipulated to be liable for. There was a further restriction to the effect that no single indebtedness could be proved for a larger amount than $5,000. All these conditions and restrictions were descriptive of the thing that could be proved. In the third instruction given by the Court all of these conditions, save the one respecting an initial loss, are conceded to be imported into the definition of losses covered by the rider. The initial loss condition is just as much a part of the description of the loss, and therefore of the debt to be proved, as is either the twelve and a half per cent deduction or the limit of five thousand dollars upon a single claim. The terms and conditions of the certificate, and not part of them, must determine what are provable losses under the rider, precisely as the terms and conditions of the bond must fix what are provable losses under the bond. Am. Cr. In. Co. v. Athens Woolen Mills, 92 Fed. Rep. 581.
Now, the mode of proving the thing to be proved under the rider, is a mode which is in accordance with the terms *Page 269 and conditions of the bond, that is, in accordance with the mode prescribed by the bond for the proving of a loss under the bond. It is obvious that there is a wide difference between what loss can be proved and the mode of proving that which may be proved; and whilst the mode of proving the loss must be in accordance with the terms and conditions prescribed by the bond for proving a loss under the bond, the loss to be proved under the certificate is such a loss only, as the certificate defines. We think, then, the learned Judge below was in error when he ruled that the renewal losses when brought under the bond are on the footing of other losses, and are not subject to any other initial loss than the one provided for by the bond.
The declaration contains two counts. The first is framed on the indemnity bond, and the second on the rider. A large mass of evidence was adduced, most of which was admitted subject to exception, and at the close of the case twenty-five motions were made for the exclusion of much of it. These, save two, were overruled. The first and second bills of exceptions relate to rulings on the admissibility of evidence. The third was taken to the disallowance of the motions to exclude evidence already admitted. As just stated, there were twenty-five of these motions. One, the first, was withdrawn, the second was granted, the thirteenth, fourteenth and twenty-second have been abandoned, and the remaining twenty are before us. The fourth exceptions assails the granting of the plaintiffs' fifth prayer. The fifth exception relates to the defendants' prayers. The Court granted the defendants' fourteenth, forty-first andforty-firstA prayers and rejected all the others numbered fromone to four, both included, and from six to forty-four, both included, as well as twenty-six numbered fiveA to fiveT, and also twelve A, thirteen A, fifteenA, twentyA andtwenty-one A. Those numbered one, fiveA, six, twenty-three and twenty-four have been abandoned. The sixth exception contains the Court's six instructions, and the fourteen special objections to them. The remaining bill of exceptions was reserved by the plaintiffs, *Page 270 and was taken to the refusal of the Court to grant the plaintiffs' first four prayers, to the granting of the defendant's fourteenth, forty-first and forty-firstA instructions, to the granting of the defendant's second motion excluding evidence, and finally to the granting of the instructions given by the Court. The bill of particulars, specifying the items of the plaintiffs' demands, sets forth eighteen instances of insolvency on the part of that number of debtors who owed the plaintiffs various sums alleged to be within the protection of either the bond or the rider; and the numerous special exceptions, motions and prayers relate to these different claims. We will classify these exceptions, motions and prayers and thus condense them considerably.
The trial resulted in a verdict and judgment for the plaintiffs and both sides have appealed.
The third and fifth bills of exceptions will first be taken up. Treating them together the following contentions are presented.
First. — It is insisted that there is no evidence legally sufficient to show that the debtors named in the bill of particulars were insolvent within the meaning of the bond or certificate No. 1204. This is raised by the 6th, 7th, 11th, 12th, 16th, 17th, 18th, 19th, 21st and 23rd motions, and by the prayers numbered 8 and 5B to 5T.
Second. — It is claimed that there is no evidence legally sufficient to show sales and deliveries of goods, wares and merchandise by Strouse Brothers to the various debtors named in the bill of particulars; and especially that there is no such evidence of sales and deliveries to Goldsmith Company and Marks, Goldsmith Company. These points are raised by the 3rd, 4th and 24th motions, and by the 2d 3rd, 4th, 8th, 16th, 17th, 27th, 28th, 29th, 30th, 31st to 38th, 40th, 42nd and 44th prayers.
Third. — It is contended that the plaintiffs had no authority to compromise any of the claims included in the bill of particulars. The 9th, 10th, 11th, 12th, 12thA, 15th and 15thA, prayers present this contention. *Page 271 Fourth. — It is asserted that the plaintiffs failed to prove that Goldsmith Company and Marks, Goldsmith Company, debtors of the plaintiffs, were rated in Dun Company's Mercantile Agency book as required by the bond and by certificate 1204. This is raised by motions 5 and 5A, and by the 20th, 20thA, 21st and 21stA, prayers.
Fifth. — It is alleged that there is no evidence of the amount of loss sustained by the plaintiffs on the Goldsmith claims. This is involved in motion 9 and in the 18th and 25th prayers.
Sixth. — It is maintained that there is no evidence that Lannon, one of the debtors, died insolvent. The 13th and 13thA, prayers were drawn to present this point.
Seventh. — It is affirmed that sales made prior to June 1st, 1893, would not have been provable under a renewal of certificate No. 1204; and this is the effect of the 7th prayer.
Eighth. — It is declared that promissory notes were taken in payment from Goldsmith Company. Prayer 9 presents this proposition; whilst prayer 22 proceeds upon the hypothesis that the accounts due by Goldsmith Company and by Marks, Goldsmith Company were under extension when the premium on the indemnity bond was paid; and prayer 43 relates to an alleged increase in the length of the credit given these same firms.
Ninth. — The 26th prayer sought to exclude all losses on sales made prior to June 1st, 1892, but it was rejected because in point of fact no sales made before that date were included in any of the claims mentioned in the bill of particulars. The transactions to which the prayer had relation were not sales, for the sales were negotiated and concluded later and clearly fell within the protection of the rider. Nothing more need be said concerning this prayer.
First. — Then, as to the question of insolvency. What has been said in an earlier part of this opinion on that subject need not be repeated. Clauses 11A and 11B indorsed on the bond are not intended, as has been pointed out, to constitute *Page 272 a definition of insolvency, or to restrict insolvency to the acts therein named. As there was ample evidence tending to show that the debtors designated in the prayers and motions grouped under this division were unable to pay their debts as they fell due in the ordinary course of business, there was no error in overruling those motions and in rejecting those prayers.
Second. — With regard to sales and deliveries. It was shown by the salesman who took the orders for goods from the various debtors, that the orders were taken and were then forwarded to the plaintiffs. These orders first went to the stock department, then to the shipping department, where they were entered in the order-book, and then they went to the shipping clerk, who shipped the goods and charged them up in the shipping-book. It was shown by the shipping clerk that he saw the goods which are charged to these debtors, properly packed; that he superintended the men who nailed and strapped the cases; that he saw these cases marked, made out the bills of lading and mailed them to the customers with the invoices attached thereto. He further testified that he made the entries in the sales-book at the same time he made the shipments; that after the goods were packed and marked, he issued the bill of lading and had the drayman take it and bring it back signed, and that the same evening the signed bill of lading with the invoice pinned to it was mailed by himself. These bills of lading with the invoices attached were mailed in envelopes bearing the monogram and residence of the plaintiffs, and though other letters thus enclosed had come back through the mails to the house, none of the bills of lading and invoices thus mailed to the debtors named in the bill of particulars were ever returned. It was further shown that some of the debtors made payments on account of these very shipments, whilst others sent back small articles included in the goods shipped to them. All shipments were made by common carriers. These circumstances were competent evidence to go to the jury, as they tended to prove *Page 273 sales, shipments, deliveries and acceptance. Wharton on Ev., sec. 1140. "Should the contract of purchase be silent as to the person or mode by which the goods are to be sent a delivery by the vendor to a common carrier in the usual and ordinary course of business transfers the property to the vendee." Magruder andBro., v. Gage, 33 Md. 344.
In addition to what has just been said, there must be a more particular reference to the sales made to Goldsmith Company and to Marks, Goldsmith Company. Louis Goldsmith lived in Baltimore. He carried on business in Spokane, Butte and Salt Lake as Goldsmith Company; and with Isidor Marks as a co-partner, he was engaged in business at Ogden. This firm was known as Marks, Goldsmith Company. All the goods purchased from the plaintiffs for these four houses were bought by Louis Goldsmith in Baltimore, and whilst charged to Goldsmith Company the house for which they were designed was designated on the ledger. Marks was not a partner in the Spokane, Butte or Salt Lake business. When Goldsmith Company and Marks, Goldsmith Company failed, Marks executed an assignment in the firm name; and the 23rdmotion of the defendant is to the effect that this was not a valid assignment because only signed by one member of the firm. This objection becomes immaterial since it is founded on the assumption that insolvency can only be proved by a general assignment or in one of the other three ways named in Clause 11A; whereas we hold the contrary and have already ruled that there was sufficient evidence of insolvency to go to the jury independently of any assignment. Whilst there is evidence tending to show that Marks, Goldsmith Company was a distinct concern from Goldsmith Company, there is also evidence from which it might be inferred that they were one and the same debtor. But it is not the province of the Court to decide which contention is correct. That was matter for the jury. Much of the argument in this Court was intended to convince us of the identity of these two concerns; and it was insisted that as Louis Goldsmith *Page 274 was in fact the real debtor and owed the whole amount charged in separate sums in the bill of particulars against Goldsmith Company and Marks, Goldsmith Company, the excess of the total indebtedness over the limit of $5,000 allowed for any one debtor under certificate No. 1204 could not be proved at all. But it is obvious that the question of fact as to whether the two concerns were identical or were independent, is not a question for us to decide, nor was it one for the Court below to determine; for it was exclusively an issue of fact for the jury. Upon appropriate hypotheses these conflicting views could have been referred to the jury, but it is not the province of the Court to say which of two contradictory contentions of fact is true. There was, therefore, no error committed in any of the rulings on the prayers and motions grouped under the second head.
Third. — There is nothing in the bond or certificate to show that the plaintiffs had no authority to compromise any claim; and there is not the slightest evidence to indicate that any injury was done the defendant by any settlement which was made. The result of the compromises was a diminution of the defendant's liability, and without presenting any evidence to indicate that more money would have or could have been secured from the debtor than was obtained by the compromise, it cannot insist that it is relieved of responsibility merely because some claims were adjusted by compromise. There was no error in rejecting the prayers relating to this subject.
Fourth. — There was no evidence sufficient to go to the jury on the question of the commercial rating of Goldsmith Company and Marks, Goldsmith Company. The record shows that in the R.G. Dun Company Mercantile Agency book, under the head Baltimore, Goldsmith Company were rated C. 2, one of the ratings within both the bond and the certificate. Under the headings Spokane, Butte and Salt Lake, Goldsmith Company appear, and beneath their firm name is entered "See Baltimore, Md." Under the heading, Ogden, is found Marks, Goldsmith *Page 275 Company, and beneath the name is the entry "See Baltimore, Md." These entries, "See Baltimore, Md.," were in fact repetitions of the rating given Goldsmith Company under the Baltimore heading. The motions and prayers raising this objection were properly denied.
Fifth. — There was sufficient evidence to go to the jury upon the question of the amount of the loss sustained by the failure of the Goldsmith concerns, and it would have been error to grant the motion or the prayers which sought to withdraw that question from the jury.
Sixth. — There was evidence that Lannon died July the seventeenth, 1893, and that his estate was settled by the Nashville Trust Company as administrator, and that the estate paid 52.16 1/3 per cent dividend.
Seventh. — By the explicit terms of the rider, losses arising out of sales which were made prior to June the first, 1893, and which would have been provable under a renewal of certificate No. 1204, were provable under the rider; and there were just such claims included in the bill of particulars and established by the evidence.
Eighth. — There is absolutely no evidence that notes were taken by Strouse Brothers in payment of the indebtedness of Goldsmith Company or of Marks, Goldsmith Company. When Goldsmith went to make his purchases for the spring of 1893, he owed the plaintiffs, for goods previously shipped to the four Goldsmith establishments, over eighteen thousand dollars on open accounts which would be due on June the first, 1893. The plaintiffs, wishing the business of each season to be closed, required Goldsmith to give notes maturing in the fall of 1893 for the 1892 indebtedness. This was simply changing the evidence of the indebtedness from an open account to promissory notes; and was not an extension within the meaning of that term as used in the provision of certificate No. 1204, which declares that "Losses on claims under extension at time of payment of the guarantee fee * * * shall not be included in the calculation of losses." Nor was this transaction an *Page 276 extension under a similar provision in the rider. As used in the certificate and in the rider extension signifies "an agreement made between a debtor and his creditors, by which the latter, in order to enable the former, embarrassed in his circumstances, to retrieve his standing, agree to wait for a definite length of time after their several claims should become due and payable, before they will demand payment." Bouvier, Law Dic. 503,"Extensions." Requiring notes to be given as evidence of the antecedent debt and making the notes payable at a later date than the open account would have become due did not constitute an extension and did not transgress any provisions of the bond.
These observations dispose of all the questions raised by the motions to exclude evidence and by the rejected prayers of the defendant; and as we find no errors in the action taken by the Court in regard to these motions and prayers, its rulings in thethird and fifth bills of exceptions are affirmed.
The first and second exceptions relate to the admissibility of evidence. The first is not very clear — that is, the precise ruling excepted to is not made apparent and was not alluded to in the argument. The second challenges the ruling which allowed an examination into matters of account appearing on the ledger, the same subject having been previously gone into on cross-examination by the defendant. The plaintiffs clearly had a right to interrogate the witness on the matter thus developed by the defendant. These rulings are affirmed.
The fourth exception concerns the granting of the plaintiffs'fifth prayer. This prayer defined the right of the plaintiffs to make compromises with their debtors. What has been said in disposing of the defendants 9, 10, 11, 12, 12A, 15 and 15A prayers is sufficient to show that the ruling complained of in this exception is correct.
The sixth exception contains the Court's instructions and the defendant's fourteen special objections to them. The first andsecond instructions would be free from error if *Page 277 they related solely to the bond and did not include losses recoverable under the rider. In so far as they fix the initial gross loss under the bond at ten thousand dollars, and prescribehow and at what time the gross initial loss is to be ascertained, they are right; but the third instruction clearly indicates that the first and second were designed also to establish the ten thousand dollar initial loss as the only initial loss to be borne by the plaintiffs. Reading the three together, as they must be read, because the third is in terms made explanatory of the first and second, an inaccurate rule is laid down, and the inaccuracy consists in the exclusion of an initial loss under certificate No. 1204, which, as we have already pointed out, is brought into the bond by the rider. Had the third instruction further limited the defendant's liability on losses occurring on sales made between June the first, 1892, and May the thirty-first, 1893, by imposing on the plaintiffs the initial loss of $6,250 prescribed in the certificate, all three of these instructions would have been sound. The fourth instruction, whilst right if standing alone, becomes faulty by its connection with the second. The seventh paragraph of thefifth instruction imports into the fifth instruction the erroneous third instruction and thus vitiates the whole. The first, second, third, fourth, fifth, sixth and eighth paragraphs of the fifth instruction are undoubtedly correct. As the ultimate result of these five instructions, taken as a series, is to enlarge the liability of the defendant by excluding the initial loss stipulated for by certificate No. 1204, they ought not to have been granted. If amended to include in an appropriate way that loss they would fairly present the law of the case. Thesixth instruction, which is the converse of the defendants'twenty-second prayer, declares that there was no evidence that the debts due by Goldsmith Company were under extension at the time the premium on the bond was paid. This we hold to be right. As we have decided that the first, second, third, fourth and fifth instructions in the sixth bill of exceptions ought to have been rejected for a *Page 278 reason not named in the special objections we need not consider those objections at all. None of them has relation to the sixth instruction.
The remaining exception is the one taken by the plaintiffs to the refusal of the Court to grant their first four prayers; to the granting of the defendant's 14th, 41st and 41stA prayers; its second motion for the exclusion of evidence, and to the granting of the instructions given by the Court. The plaintiffs' first prayer was wrong because it declared that the initial loss of $10,000 must be made up at the time of the insolvencies, instead of at the date of the expiration of the term of the bond. This has already been considered. The first, second, third and fourth prayers were all founded on the theory that the total initial loss under the bond and under the certificate was confined to $10,000. Besides this the second, third andfourth proceeded upon the erroneous hypothesis of the first as to the time of computing the initial loss.
The granting of the defendant's 14th, 41st and 41stA prayers furnishes no ground for complaint. The 14th instructed the jury that there was no evidence of any loss sustained by the plaintiffs upon sales made to McMurry Brother. The whole debt due by McMurry when he failed was paid off before the bond expired. There was consequently no loss at all. The two other prayers told the jury that the plaintiffs could not recover any amount in excess of that claimed in the bill of particulars. This is certainly sound. The Court on motion struck out the testimony of Rosenthal to the effect that when goods were shipped they were at the risk of the buyer. That was a question of law which depended on the circumstances attending the shipments. The witness could have stated his knowledge as to these circumstances, but not his deduction from them.
In obedience to the requirements of sec. 19, Art. 5 of theCode, we have passed upon all the questions presented save and except the fourteen special exceptions to the Court's *Page 279 instructions and those have not been considered, because upon the instructions being declared erroneous these exceptions became mere moot questions.
Because of the errors we have pointed out in the rulings set forth in the sixth bill of exception the judgment must be reversed and a new trial is awarded.
Judgment reversed and new trial awarded, the costs above andbelow to await and follow the final result.
(Decided April 20th, 1900.)
A motion for a reargument was subsequently made, and in disposing of the same,