Steinwender v. Philadelphia Casualty Co.

141 A.D. 432, 126 N.Y.S. 271, 1910 N.Y. App. Div. LEXIS 3882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1910
• Status: Published

Opinions

Scott, J.:

This is an action upon what is described as a credit indemnity bond, being in effect a policy of insurance against losses in business resulting from bad debts. The contract between the parties is evidenced by a number of papers, including the application, the bond and several riders or schedules. It would seem that the terms of the contract must have been the result of negotiations, for what appears to be the regular printed forms ordinarily used by defendant are much interlined and otherwise modified by the attached riders, so that the precise contract is to be ascertained only by careful reading. The application signed by the plaintiffs is for a credit indemnity bond to commence oil the 1st day of January, 1903, and to terminate at the end of one year therefrom. It provided for what is called an initial loss to be borne by the insured before any liability should attach to the insurer in the following terms: “ When the losses covered under the terms and conditions of said bond shall exceed $5,000 on sales and shipments not exceeding $1,500,000, and thé samé proportion for sales and shipments in excess thereof, the bond is to cover such excess losses not exceeding $20,000.” The amount of initial loss was afterwards fixed at $5,100 on sales and shipments not exceeding $1,750,000. Then followed the following clause,.which, with the corresponding and relevant clauses in the bond and attached riders, has raised one of the questions to be determined upon this appeal, viz., “ Experience shall be the basis for credit under the bond as specified oh Schedule A, with a single account limit not exceeding $10,000, shall be covered by said bond.” Then followed a statement, said to be made to enable defendant to determine as to whether the amount of loss to be first borne by plaintiff,. before defendant’s liability commences,, is a sufficient sum, that plaintiffs’ “ net losses for the past five years have not exceeded an average of $5,000.” There was exhibited to plaintiffs at the time the application was signed a paper, called Schedule A, which contained a list of some thirteen acts on the part of or with reference to.a debtor which will be accepted as evidence of insolvency upon the part of a debtor.. The schedule containing this list does not appear to have been physically attached to either the application or the bond, but it is signed by defendant, and undoubtedly is one of the papers constituting the contract between the parties. It is provided in this schedule that the fact indicating insolvency shall be mentioned on the preliminary proof of loss.

The bond itself is stated to be made in consideration of the application and of the payment of the premium, and by its terms the defendant agrees to indemnify plaintiffs to an amount not exceeding $20,000, “ subject to the following limitations, agreements and conditions.” The term of the bond and the amount of the initial loss to be borne in the "first instance by defendants follow the terms of the application. The indemnity is said to be made subject to two provisos designated “ a ” and “ b.” The proviso designated “ b ” has to do with what shall be deemed evidence of insolvency and. /was superseded by the “ Schedule. A ” above referred to, arid is not important upon this appeal. The proviso designated “a” réads as follows: “ That such losses shall have been sustained on claims ■ against debtors covered by Schedule A, attached hereto signed-by - the Company and which is made a part hereof.” Then follows a clause of the bond denominated .“ Second,” which evidentlyrefers to the above-quoted proviso “ a,” and which reads as follows : “ The amount set opposite a rating on said Schedule ‘A,’ shall be the largest sum for which a debtor possessing such rating is covered, but in no event shall such sum exceed $10,000, hereinafter called the Single Account Limit. Should the claim of the indemnified against a debtor exceed the sum covered by said Schedule ‘ A ’ only a pro rata part of any amount collected or made secure on such claim shall be deducted from the amount covered by this bond.” Some apparent confusion has arisen because several of the riders going to make up the contract are denominated “ Schedule A,” but it is quite, evident that the paper referred to by that designation is one attached to the bond, and which consists of a printed form on which most of the printed matter has been stricken out, and written of typewritten matter filled in. The' paper is headed with the name of a well-known mercantile agency,, below which is the legend “ Eatings of First and Second Grades with the amount of credit for each respective rating.” After the statement that no single account shall be covered for more than $10,000, there appeared in print, but was stricken out, a list of nineteen ratings with a sum of money opposite each. It is not difficult to understand how and why these ratings came to be erased. It- is apparent from the printed forms used for the application, bond and Schedule A attached that they were prepared with a view-to basing the defendant’s liability, as to any debtor who might default, upon that debtor’s rating with one of the mercantile agencies. In the case of these plaintiffs it was agreed that'“ experience ” should be the test instead of rating, and it was attempted by erasure and interlineation to adapt the forms appropriate to a limitation of liability by “ rating,” to a limitation by “ experience.” It is unnecessary to go in detail into the changes which were made to effect this purpose. That has been carefully done by- the learned referee. The result is that the defendant undertook to indemnify or insure plaintiffs against loss by a customer to “an amount not exceeding the highest previous indebtedness for goods shipped by the indemnified to the debtor within 24 months prior to shipping the first item of the goods included in the account upon which the loss occurred,' not exceeding, however, $10,000.” The defendant’s appeal raises the question as to the. proper construction and true intent of this limitation of liability. It arises with respect to a loss caused by the insolvency of one of plaintiffs’ customers named the Consumers Coffee Company, which the referee has- held to be a recoverable claim under the terms of the bond. The Consumers Coffee Company had been purchasing goods from plaintiffs since December, Í901, on sixty days’* credit. Almost from the beginning tins company had fallen behindhand in its payments and on March 2, 1902, it owed a balance of $4,554.50 which was afterwards paid, and which was the highest indebtedness previous to the'issuance of the indemnity bond which had been paid when that bond was taken out. Between- September 1, 1902, and January 1,1903, when the bond .was issued, the. plaintiffs sold goods to the Consumers Coffee Company amounting to $11,21L40, all of which remained unpaid on said January 1,1903. Other sales were made after January 1, 1903, bringing the amount up to a figure which realized, a loss of $14,102.91. If the “ highest previous indebtedness.” specified in the contract as the limit of defendant’s liability' means the highest'indebtedness which had been paid previous to taking out the bond the* plaintiffs can recover nothing on account of the Consumers Coffee Company loss, for- as already said;that indebtedness was $4,554.50, which was less than the initial loss which, by the terms of the contract, was .to be borne by plaintiffs before any liability attached to defendant. The plaintiffs claim,.however, and- so the referee has held, that the highest previous indebtedness as used in the contract .means the largest amount for which the customer was ever indebted prior to taking out the bond, whether that indebtedness was ever paid or. not. It will be observed that in this particular instance the defendant at plaintiffs’ request, substituted “ experience ” as the test of the liability for any customer, in place of the arbitrary, but certain liability based upon the customer’s rating with the commercial agencies. This of course means the plaintiffs’ experience 'with the several customers. In other words, the defendant was willing to insure the credit of each of plaintiffs’ customers to an amount that plaintiffs’ experience with such-customers indicated would- be a reasonably safe credit. Experience, as commonly. understood, means the ..knowledge gained by observation or trial, and it is in that sense that it must be deemed to have been used in the present instance. When, therefore, the contract made the plaintiffs’ experience with their customers the test of defendant’s liability,- it meant the plaintiffs’ knowledge of the financial responsibility of these customers gained by actual trial. The only experience that would' be valuable upon such a subject would be that derived from a knowledge of the financial responsibility of the customers proven by the amount of indebtedness that they had shown themselves able to meet and pay. The amount that they had incurred and not paid would afford no guide to a knowledge of their financial ability. The words in the application,, “Experience shall be the basis for credit under the bond as specified on Schedule A,’’.and the words in Sched.ule A: “An amount not exceeding- the highest previous indebtedness for goods shipped by the indemnified to the debtor within 24 months prior to shipping the first item of the goods included in the account upon which the loss occurred,” must be read together, as meaning that defendant would insure' plaintiffs against such an amount as their previous experience with each customer indicated was an amount for which the customer could probably be allowed to become indebted with a reasonable assurance that he would be able to-pay. The best test of this was the amount that he had previously proven himself able to' pay. Furthermore, the language speaks of the past, and refers to a “ previous ” indebtedness, while, strictly speaking, an indebtedness which was still unpaid when the bond was issued was a “present,” and not a “previous” indebtedness. An experience which would justify a prudent creditor in again extending credit to a debtor must be a satisfactory experience, and an experience cannot be said to be satisfactory which simply indicates the extent of a debtor’s willingness to incur debts, and does not show his ability to pay. (Philadelphia Casualty Co. v. Cannon & Byers Millinery Co., 133 Ky. 745; 118 S. W. Rep. 1004.) Our conclusion, therefore, is that the “highest previous indebtedness” referred to in the contract means the highest indebtedness which any debtor had' paid before the execution of the bond.

There is still another reason why the plaintiffs may not recover' for their loss by the failure of the Consumers Coffee Company. As has been-said, more than $11,000 of this indebtedness was incurred after September 1, 1902,- and before January 1, 1903. ' The bond as originally drawn covered only losses-incurred between January 1,1903, and December 31,1903,' and applied only to goods shipped after January 1,1903. Under this provision' 'the defendant would not have been liable for the loss on the goods shipped to the Consumers Coffee Company between September 1, 1902, and January 1, 1903. By one of the riders, however, it was provided that “ Outstandings on the books of the indemnified January 1st, 1903, shipped since September 1st, 1902, shall be covered upon the same conditions and shall be included in the same manner as. if the goods had been shipped since January 1st, 1903.”. The- effect of this clause was to stretch the'bond, backward and make it effective as if it had been executed September 1, 1902. When, we refer back to the clause limiting liability we find that the highest previous indebtedness therein referred to is to be one within twenty-four months “ prior to shipping the first item of the goods included in the account' upon which the loss occurred.” The account upon which the loss occurred obviously means the account cove’red by the. bond, so that the clause last quoted must be read as meaning the highest" previous indebtedness within twenty-four, months prior to the first item of the account covered by this bond. .As originally drawn the period was twenty-four months prior to January 1, ,1903. When the liability upon the bond was stretched backward so as to cover shipments after September 1, 1902, the twenty-fo.ur months were also pushed back and the limit of indebtedness was fixed at the highest previous indebtedness within twenty-four months prior to September 1, 1902. This, as has been said, was only $4,554.50, which was less than the initial indebtedness agreed to be borne by plaintiffs. On the defendant’s appeal, therefore, we are constrained to overrule the referee and to hold that no liability attached to the defendant in respect of the loss by reason of the insolvency of the Consumers Coffee Company.

The plaintiffs’ appeal calls in question the disallowance by the referee of certain claims, based upon losses arising from the insol vency of James P. Bennett, Edward G-. Byrnes'and Samuel Wilde’s Sons. The reason for rejecting these claims was that to'none of the preliminary notices of loss by these debtors was there attached any copy of the account of the plaintiffs showing their prior experience with the debtor. In thus rejecting these claims the referee kept strictly within the lines of the contract. The rider, Schedule A, attached to the bond, and which contains most of the special clauses rendered necessary by the substitution of experience for rating as the limit of defendant’s liability, contains this provision: “Blit the loss on any such customer [that is one with whom plaintiffs had had previous experience], shall not he covered unless the preliminary notice thereof has attached to it a copy of the account showing the prior experience with such debtor.” hiothing can be more specific than this language and the reason for its insertion is manifest. Defendant was about making a contract rendering itself liable for losses incurred by plaintiffs, limiting its liability, however, to what might be deemed a reasonably safe limit of Credit based upon plaintiffs’ previous experience with its several customers and limited as to each customer by his highest previous indebtedness. It was' clearly within defendant’s rights, aiid to its interest, to require that, with a notice of loss, should be supplied a copy of the defaulting customer’s account to the end that defendant could at once determine to what extent it had become liable. The referee has dealt satisfactorily with the questions raised by plaintiffs’ appeal, and we find no reason to differ from the conclusions he has reached on this subject. All the necessary facts are found by the referee to enable ns to modify the judgment in accordance with the foregoing opinion, and it will, therefore, be unnecessary to put the parties to the delay and expense of a new trial.

The judgment will accordingly be modified by deducting therefrom the sum allowed on account of the loss by reason of the Consumers Coffee Company’s insolvency, being $3,664.55, with interest from February 19, 1904. The extra allowance must also be stricken out, as there is no longer a basis for estimating it. As so modified the judgment will be affirmed, with costs to the defendant appellant.

McLaughlin, Clabke and Dowling, JJ., concurred; Ingeaham, P. J., dissented in part.