New Amsterdam Casualty Co. v. Mesker
| Decision Date | 17 December 1907 |
| Parties | NEW AMSTERDAM CASUALTY COMPANY, Respondent, v. MESKER et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Robt. M. Foster Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
R. M Nichols for appellant.
(1) The term "employee" as used in section D, under the rule of norchitur a sociis, is to be construed and limited by the words and phrases as used in section 4, called schedule of "wages;" "trade or kind of business;" "manual classification;" "pay-roll;" "premium per rate of $ 100 for wages;" "galvanized iron cornice and wrought iron work;" and the word "compensation" as used in section D must be construed with the words contained in the schedule, section 4, of: "Manual classification;" "pay-roll;" "number of employees;" "wages;" "trade or kind of business;" and "galvanized iron cornice and wrought iron work including drivers;" and when thus construed the premium can be estimated only upon wages paid to persons engaged in the manual classification embodied in the terms of "galvanized iron cornice and wrought iron work and driving." People v. Buffalo, 57 Hun 577; Wakefield v. Fargo, 90 N.Y. 213; Lewis v. Fisher, 80 Md. 139, 30 A. 608; Johnson v. Barrells, 27 Ore. 251, 41 P. 656; Railroad v. Wilson, 138 U.S. 501, 34 L.Ed. 1023; 21 Am. & Eng. Ency. Law (2 Ed.), p. 555; Pothier on Obligations, p. 59 (and cases cited); County of Johnson v. Wood, 84 Mo. 489; Grambley v. Webb, 44 Mo. 444; Schulenberg v. Maguire, 42 Mo. 391; Garland v. Smith, 164 Mo. 14. (2) The claim for excess premium paid November 16, 1903, was an unliquidated demand and it was disputed as to what wages should be counted. Defendants estimated the excess pay-roll on the number of employees in the trade or business described as "galvanized iron cornice and wrought iron work." Books were open to plaintiff at the time, to determine whether or not the estimated wages were correct. They made no such inquiry, but accepted the defendant's estimate and received the $ 165.40 in settlement. The $ 165.40 was not paid on account but was paid in settlement. A disputed or an unliquidated claim, may be settled by the payment of part in settlement of the whole. Fidelity & Casualty Co. v. Gillette, Herzog Mfg. Co., 92 Minn. 354; 2 Cooley's Brief on Law of Insurance, p. 921; Helling v. United Order of Honor, 29 Mo.App. 309; Lightfoot v. Hurd, 113 Mo.App. 612; Andrews v. Stubbs Con. Co., 100 Mo.App. 600; Pollman Bros. C. & S. Co. v. St. Louis, 145 Mo. 651.
C. P. Ellerbe and Linn R. Brokaw for respondent.
(1) The meaning of a contract is not to be gathered from any isolated term or expression, but depends upon a fair interpretation of the instrument taken as a whole, and in construing the contract words should be given their ordinary meaning. County of Johnson v. Wood, 84 Mo. 509; Schulenberg v. Maguire, 40 Mo. 395; Maguire v. Lancaster, 100 Mo.App. 116; Meyer v. Christopher, 176 Mo. 580; Brown v. Railroad, 102 Wis. 137. (2) If the contract admits of different interpretations it is competent to show the construction put upon it by the acts of the parties themselves and that interpretation will be adopted by the court. Ireland v. Spikard, 95 Mo.App. 53; Construction Co. v. Tie Co., 185 Mo. 25; Lighting Co. v. Hobart, 98 Mo.App. 227; Morton v. Supreme Council, 100 Mo.App. 76; Fuller Bros. v. Fidelity & Casualty Co., 94 Mo.App. 490. (3) The referee's finding that the appellants carried on their business under the terms designated as "galvanized iron workers and wrought iron work" is supported by the testimony of both appellants' and respondent's witnesses, and the policies involved called only for terms generally descriptive of the work or business. Insurance Co. v. Lumber Co., 83 F. 977; Elliott on Insurance, p. 452, par. 411. (4) It was not the intention of either of the parties to the contract, or of the contract itself, to limit the liability to operations in any particular department, or to any particular branch of the business, or to any particular instrumentality used in the business. The policy was designed to cover all of the employees of the assured engaged in each and every department of the assured's business. Hoven v. Employers Assur. Corp., 93 Wis. 201. (5) Accord and satisfaction is the making and performing of a new contract in discharge of the old one and the making of this new contract must be supported by a consideration. If the claim is undisputed a part payment will not extinguish the remainder of the indebtedness, as there is no consideration to validate such a discharge. Griffith v. Creighton, 61 Mo.App. 1; Dry Goods Co. v. Goss, 65 Mo.App. 55; Tompkins v. Hill, 145 Mass. 379; Scase v. Manufacturing Co., 55 Minn. 349; Scully v. Delamater, 28 F. 114.
--The purpose of this action is to recover from the defendants, who are partners, certain sums of money alleged to be due the plaintiff as a portion of premiums earned on six policies of insurance. The insurance was of the Employer's Liability kind and was intended to indemnify the defendants against losses for personal injuries occurring to their employees and other persons, in the course of defendant's business. There were three policies for the year from June 19, 1902, to June 19, 1903, and three other policies for the ensuing year to June 19, 1904. In addition to those six policies, which constitute the subject-matter of plaintiff's petition, there were three other policies of a like sort issued for the year from June 19, 1904, to June 19, 1905, but cancelled by plaintiff pursuant to the terms of the policies, on September 24, 1904. The last three policies form the subject-matter of a counterclaim preferred by the defendants, who allege in their answer that plaintiff is indebted to them in the sum of $ 185.21, which they paid in advance, as premiums in excess of the premiums actually earned while the policies were in force. The answer contains a general denial of all the allegations contained in the petition, and also pleads an accord and satisfaction in defense of the action on the first three policies declared on in the petition, to-wit, those covering the period from June 19, 1902, to June 19, 1903. The facts on which this defense rests will appear from the further statement of the case. The petition is in six counts of which the first three, as indicated, are based on the three policies issued for the first year and the second three counts on the three policies issued for the second year. The gravamen of plaintiff's case is this: the premium to be paid for each policy was stipulated to be based on the total compensation paid by defendants on the whole number of their employees during the period covered by the policy; and as it could not be known when a policy was issued, what would be the total compensation to employees during the ensuing year, an approximate estimate of the amount was made and the premium paid in advance in proportion to such estimate. The policy provided that such estimate should be provisional only, and if it turned out that there was more compensation paid to employees than was estimated, there was to be a proportionate increase of premium paid by defendants whereas if it turned out there was less compensation paid, a proportionate part of the premium already paid should be returned to defendants. The averments in the first count of the petition are that the rate of premium under the policy was sixty-seven and one-half cents for each one hundred dollars of wages paid during the year from June 19, 1902 to June 19, 1903; that the estimated pay-roll for said period was $ 15,000 and the total amount of premium paid $ 101.25; that it turned out defendants actually paid for employees' wages during said term $ 30,000 more than was estimated, and, therefore, defendants became indebted to plaintiff for an additional premium covering said excess of the payroll in the sum of $ 202.50, for which judgment was prayed. In the second count it is stated that the rate of premium declared on in said count was $ 4 for each one hundred dollars of wages paid during the year for manufacturing and erecting galvanized, sheet and wrought iron work in Louisiana, Kansas, Missouri, Minnesota and all States east of the Mississippi river, and the entire premium paid was $ 120; that the wages for said year for said work were estimated to be $ 3,000, but during the period defendants actually paid to employees engaged in the work aforesaid in said territory, $ 20,000 in excess of the estimated amount, and therefore became indebted to plaintiff for an additional premium in the sum of $ 800. The third count states that the policy declared on was issued in consideration of a premium of $ 45, based on a pay-roll of wages for the year estimated to amount to $ 3,000, said premium being at the rate of $ 1.50 for each one hundred dollars of wages actually paid for erecting galvanized, sheet and wrought iron work in the States aforesaid; that during the year covered, defendants actually paid to their employees engaged in said work in said territory, $ 20,000 in excess of the estimate and therefore became indebted to plaintiff for an additional premium in the sum of $ 300. The other three counts contained similar allegations on three policies identical with the first three, except that they were for the year from June 19, 1903 to June 19, 1904. The amount claimed under the fourth count for additional premium is $ 337.50; under the fifth count, $ 1,000, and under the sixth count $ 375. We will now describe the three varieties of policies in suit. The two covered by the first and fourth counts were exactly alike, except as stated, that one was for the year from June 19, 1902 to June 19, 1903,...
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