that it may, and probably will, be placed on record. He may not have actual knowledge of the time of its entry, but the act is his, and he must be held responsible therefor.' We think the facts of this case entirely different from the facts in the case before us. Here we have an express agreement that the bond shall not be entered, and until the treasurer (the assured) failed in his duty as treasurer, the company had no power to enter the bond without violating their express contract. Might not the assured rest upon the belief that the company would observe the contract, and that until he did some wrongful act in his official duties, or failed to perform the same, the bond could not and would not be entered. Having been entered in violation of this contract, would not the Court have stricken it off, upon the plaintiffs proving the same? And, if so, was it then ever such a lien upon the property as would avoid the policy? "But we think there is another matter well worthy of consideration in determining this question. At the time this property was insured, there were $4000 of liens upon it, the existence of which was disclosed to the company. Ten months before the fire occurred, and eight months before the Hook and Ladder Co.'s judgment was entered, $1000 of this indebtedness was paid, and the bond satisfied of record. Therefore, there was neither at the time of the fire nor at the time the treasurer's bond was entered as much incumbrance upon the property as at the time the policy issued. Hence, whether the treasurer's bond be regarded as a good lien or not, there never was any increase of risk to the company, for the assured had greater interest in his property when his liabilities were $3500 than when they were $4000. "Our attention has been directed to the case of Thierolf v. the Fire Ins. Co. (14 Out. 37), in which it appears that the assured failed to disclose the existence of a judgment which was a lien upon the property insured in his proof of loss, and the company under a clause in the policy claimed that he could not recover. There was no dispute as to the judgment being a lien; but the assured testified he did not know it was Jus a lien upon the property insured, but believed it was a lien upon the other real estate only. tice PAXSON filed the opinion in Seybert v. Penna. Ins. Co., supra, in 1883, and the same learned Justice filed the opinion in this case in 1885. In discussing the effect of the failure to disclose the existence of this judgment, Justice PAXSON says: For the purpose of this case, we must consider it an honest mistake. Does it avoid the policy? If it does, I would be ashamed to sit here and say so. The section of the policy referred to evidently contemplates fraud or wilful misrepresentation. A comparison of the proofs of loss with the policy shows that all requirements have been substantially complied with, excepting in the omission to note the incumbrance. This, as before observed, was an innocent mistake; and as it has not been shown, and doubtless cannot be, that the omission has in any manner prejudiced the company, we see no reason why the proof of loss should not have been submitted to the jury.' Much of this language would seem to be applicable to the case before us. This plaintiff's loss is undoubtedly an honest one. The incumbrances upon his property never were increased after the policy issued, but, upon the contrary, were decreased, and every dollar of the liens has since been discharged. His property was never levied upon or seized by any officer for any debt. The $500 judgment was entered without his knowledge, and in violation of his express contract that it should not be entered. Can it be that the plaintiff must lose his insurance under such cirumstances? We do not believe that such is the meaning of our authorities, and, therefore, refuse a new trial." The defendant thereupon took this writ, assigning for error the admission of plaintiff's offer of evidence, the answer to defendant's point, and the portion of the charge of the Court cited above. James Ryon (George W. Ryon with him), for the plaintiff in error. The amount of incumbrance upon the property was a material element in the risk. May on Insurance, 290. Brown v. Insurance Company, 5 Wright, 187. A condition expressed as such in a fire policy, if not complied with, defeats the insurance, whether it is material to the risk or not, and whether the non-compliance be with or without the act or privity of the assured. 1 Phillips on Insurance, p. 478, sec. 866. Ins. Co. v. Gottsman's Admrs., supra. Woolen Co. v Ins. Co., 21 Conn. 19. Glens v. Lewis, 20 Eng. Law and Eq. 364. The law of the relation between insurers and the insured is the policy of insurance, with its uses, conditions, and stipulations, by which their mutual rights and liabilities are defined and measured. Ins. Co. v. Helfenstein, 4 Wright, 296. Ins. Co. v. Phoenix Oil Co., 7 Casey, 448. Seibert v. Ins. Co. and kindred cases. A. W. Schalck (M. M. L' Velle with him), for defendant in error. It is clear that the condition of the policy was broken only in the event of the plaintiff failing to give notice of an incumbrance after he was aware | the Hook and Ladder Company not to enter it up, of the existence thereof. A construction will and that the company violated said agreement is always be placed upon such clauses most favorable to the insured. Mills v. Ins. Co., 5 Phila. 28; S. C., 44 Pa. St. 43. Runkel v. Ins. Co., 6 Federal Reporter, 140. not to the purpose. It is possible he may have his remedy against that company for any loss he may sustain by reason of their breach of faith, but this act of a third party can in no way affect this contract of insurance. The covenant against incumbrances is a reasonable covenant, and the principle upon which it is founded is a sound one. (Brown v. Fire Ins. Co., 41 Pa. 187.) It goes In analogous cases the knowledge of the party upon the theory of an increased risk by reason of has been held an essential element. Ins. Co. v. McAnally, 46 Penn. St. 41. Mich. 131. The indebtedness of plaintiff being less at the time of the fire than it was at the time he took out his insurance, he, of course had a proportionately greater interest in the property, and his motive for its preservation was therefore so much the greater; and consequently the risk and hazard of the company was so much less at the time of the fire than that which it assumed when it issued the policy. incumbrances. If a man may incumber his property to its full value and then insure it for its full value, it is easy to see how fires may be turned into a source of profit. That the risk was increased by the entry of this judgment is assumed by the terms of the policy. It is not, therefore, an open question. The company has not received the premium for this increase of the risk, and not being itself in default is not bound to indemnify without receiving the consideration for such indemnity. This position is fully sustained by the authorities. It is sufficient to refer to Brown v. The Ins. Co. (supra); Insurance Co. v. Gottman's Adms. (48 Pa. 151); Seybert's Admrs. v. Penn. Mutual Fire Ins. Co. (103 Id. 282). April 2, 1888. THE COURT. The policy of While this case must be reversed for the errors insurance upon which this suit was brought in the referred to, it is a serious question how far another Court below contained a covenant against incum- trial will help the defendant company in view brances. It was in the usual form and need not of the admitted fact that the $500 judgment did be here repeated. During the life of the policy not increase the incumbrances. On the cona judgment of $500 was entered against the in- trary when that judgment was entered one of the sured, which was a lien upon the premises cov-previous judgments of $1000 had been paid and ered by the policy, and remained a lien to the the record satisfied. So that in point of fact time of the fire. No notice was given to the instead of incumbrances to the amount authorcompany of this incumbrance, as was required by the terms of the policy. ized by the company, $4000, there was only Upon the trial below the Court permitted the We think it was error to admit this evidence. The clause in the policy is a covenant against incumbrances. It was therefore immaterial whether the plaintiff had actual knowledge of the judgment or not. He was bound to know it. He had covenanted against it. The judgment was his act; it was entered upon his warrant of attorney, and after the fire he paid it and had it satisfied. That it was given under an agreement of The judgment is reversed, and a venire facias de novo awarded. Opinion by PAXSON, J. L. L., Jr. Jan. '88, 40. March 16, 1888. thirteen hundred dollars of the claim of the plaintiff, and the award includes that sum, notwithstanding it has been paid once. Buckwalter et al. v. Russell. Arbitration-Act of June 16, 1836-Power of Court to set aside award-Revocation of sub mission to arbitrators- When too late. The power exercised by the Court in setting aside an award of arbitrators or entering judgment on the same is analogous to that exercised in granting or refusing a new trial after a verdict; it is largely discretionary, and the action of the Court will not be disturbed unless error appears on the record. Notice of a revocation of a submission to arbitrators must be served before an award has been agreed upon. The fact that the award, if agreed upon, has not been reduced to writing is immaterial. Error to the Common Pleas of Cameron County. This was, in the Court below, a hearing upon exceptions filed to an award of arbitrators alleging defects in the form of the award and a revocation of the power of the arbitrators. The facts are sufficiently stated in the opinion of the Supreme Court, infra. The arbitrators met on May 24, 1886, and found in favor of Russell for $7900. At a subsequent meeting called to correct the form of the award and allow further credits for defendants, they then allowed a credit of $215.29, making their award $7684.71. At this meeting Buckwalter served a notice of revocation on the arbitrators. To the above award the following exceptions were filed : (1) The agreement to arbitrate and the authority of the arbitrators were revoked before the award was made-by the defendants-in writing, duly served on said arbitrators. (2) The arbitrators mistook the law in that they refused to take any notice of an assignment of three thousand dollars of the plaintiff's claim against the defendants made before the agreement to arbitrate, and their award against defendants includes that amount although plaintiff does not own it and Lewis Emery, Jr., does, and thirteen hundred ($1300) dollars of that sum has been paid by defendants to said Emery. (5) The arbitrators had no authority in law to make any award against the defendants. (6) The arbitrators had no authority in fact to make any award against the defendants. (7) The plaintiff misconducted himself before the arbitrators, and took away from them a paper statement produced by the defendants that showed material facts, before the same was considered by the arbitrators. (8) The arbitrators made a mistake in law by pronouncing the deed made by the plaintiff for the defendants a good and sufficient deed, when in truth it was only a rough draft from which both the plaintiff and the defendants have caused good deeds to be prepared. This deed of itself being so imperfectly made that it would not be received in evidence in any Court of law as a valid deed for the conveyance of any land. The Court, MAYER, P. J., dismissed the exceptions, but referred the cause back to the arbitrators to ascertain whether the payment of $1300 was made by the defendants upon the order of November 28, 1885. Subsequently plaintiff filed a receipt acknowledging the payment of $1300, the Court then entered judgment on the corrected award for $6384.71. Defendants then took this writ, assigning for error the refusal of the eight exceptions and the entry of the judgment. J. C. Johnson and Henry C. Parsons, for plaintiffs in error. A submission to arbitration is revocable before consummation. Power v. Power, 7 Watts, 213. The award was payable in instalments, and B. W. Green and T. C. Hipple, for defendant in error. The dictum of GIBSON, C. J., in Power v. (3) The arbitrators made a mistake in law by Power (7 Watts, 205), relied upon by plaintiffs in ignoring an attachment of the defendants as gar-error, is founded on early English authorities. nishees of the plaintiff and making an award The law is now otherwise in England and the against the defendants in favor of the plaintiff, weight of authority is clearly otherwise in this while a Court of competent jurisdiction and au- country. thority in Kentucky had obtained control over the plaintiff's debt in favor of one of his creditors there, and will compel defendants to pay them, while by this award plaintiff could compel a double payment of the same debt without any fault of defendants. (4) The arbitrators ignored the defendants' undisputed testimony or statement that they paid Dexter v. Young, 40 N. H. 130. Cumberland v. North Yarmouth, 4 Greenleaf, 463. Ferris v. Mum, 2 Zabr. 161. See also Oxley v. Oldden, 1 Dallas, 430. Ruston v. Dunwoody, 1 Binney, 42. An attempted revocation just as the award is about to be announced, and when there is presumptive evidence that the party had substantial knowledge of the conclusions at which the referees had arrived, is not entitled to much favor. It cannot be asserted except under a clear claim of right. Mitchell v. Newman, 4 Penny. 448. The alleged notice of revocation, even if given, was insufficient. The submission in this case was under seal; the alleged notice of revocation, should have likewise been under seal, but it was not. The formality of the revocation must follow and conform to the formality of the submission. If this rule be not complied with, a revocation, which is insufficient under it, will be of no effect. "Thus if the submission be under seal, so also must be the revocation." Morse on Arbitrations and Awards, 232. As a general rule it may be said that the power thus exercised by the Court in setting an award aside or entering judgment upon it is analogous to that exercised in granting or refusing a new trial after a verdict. It is a supervisory control over the proceedings in its presence or upon its records and is largely discretionary. Such action should not be disturbed unless error appears in the record. (Shisler v. Keavy, 75 Pa. 82; Rodgers et al. v. Playford, 2 Jones, 181.) In this case the parties organized their own tribunal, provided their own "code of procedure" and agreed to be bound by the result. There is no consideration of public policy forbidding such an agreement, nor any reason why it should not bind those who enter into it. (McCahan v. Reamy, 33 Pa. 535.) The Court below could only relieve against such an award for clear mistakes or for misconduct on the part of the arbitrators, and as neither of these was made to appear the exceptions were properly dismissed. But it is alleged that the submission was revoked by Buckwalter before the corrected award was signed and that it was for that reason a nullity. The facts appear to be that the award was really made on the 24th May, 1866, after the parties were heard, that April 2, 1888. THE COURT. This was an amicable submission of differences to the decision of three arbitrators under the provisions of the Act of 1836. There was suit pending at the time but the agreement provided that the sub-it was written out and signed, and that the parties mission should be made a rule of the Court of had knowledge both of the fact that the award was Common Pleas of Cameron County. It also made and of its character. The subsequent delay provided that the case should be heard and de- was not for deliberation upon the character of the cided upon the testimony of the parties without award, but for the correction of some supposed other witnesses, without the intervention of at- defects of form. The meeting of the arbitrators torneys and without appeal by the parties. The in November was not for the purpose of re-heararbitrators met on the 24th of May, 1886, heard ing or re-opening the case, but for the preparathe statements of the parties, made an award, re- tion of a better form for their award, and to hear duced it to writing, and signed it on the same | Buckwalter's claim to an additional credit. A day. The parties had knowledge of the fact notice of revocation, served at this time, came that an award had been made and soon after too late. In Mitchell v. Neuman (4 PennyBuckwalter saw and read it. It was not filed packer, 443), the revocation was served after the because it was regarded as wanting in some mat- case had been heard, but before the award was ters of form, but was retained by the arbitrators announced, and it was held to be too late. In with a view of getting together to correct the McGeehan v. Duffield (5 Barr, 497-500), an supposed defects in form. Meantime Buck-award had been sent back for correction by the walter claimed that he should be allowed some further credit and applied to the arbitrators for leave to make this claim before them while the award was yet under their control. On the 24th Nov. 1886, a meeting of the arbitrators was held, the award was corrected and the statement of Buckwalter in support of his claim to additional credit heard and the credit allowed. At this point a notice of revocation was served upon the arbitrators by Buckwalter, but they signed the corrected award and it was subsequently filed in the Court of Common Pleas. Exceptions were filed alleging defects in the form of the award and a revocation of the power of the arbitrators. These were dismissed by the Court below and judgment entered on the award and this action of the Court is assigned for error. Court, and the notice of revocation was served before the corrected award was made, but this also was held too late. In Shisler v. Reamy (75 Pa. 79), the notice of revocation was served on the same day on which the award was made, but whether the award or the revocation was first in time, did not appear. The plaintiff sought to show that the revocation was first, but this Court declined to look into the depositions. The rule in Pennsyl vania seems to be that a notice of revocation to be effective must be served before an award has been agreed upon. While the case is in progress either party may revoke, but where the trial was concluded and the arbitrators have agreed substantially upon their award it is too late. The arbitrators have then discharged the duty put upon them by the parties and nothing remains | declarations made, not at the time of the execu but to reduce their conclusion to form. A party tion of the note, but before and after such execuought not to be permitted to take the chances of tion. Being objected to, the Court propounded a trial and when he finds an award is to be made a question to the defendant's counsel, which, with against him, revoke the power of the arbitrators. the answer and ruling of the Court, was as folThe fact that the award has not been reduced to lows:writing is immaterial. Like a verdict, it may be put in form after its character has been decided upon. The revocation in this case was too late. After an award was made on the 24th May, the power to revoke was gone. There was no general reopening of the case after that date, and Buckwalter was made aware of the character of the award soon after. The allowance of a credit to him at his request by the arbitrators made the award more favorable to him, but it gave him no right of revocation. It did not change the character of their finding or of the basis on which it had been made, but adhering to both it gave him an additional credit. The ruling of the learned Judge of the Court below was right, and Judgment affirmed. Opinion by WILLIAMS, J. TRUNKEY, J., absent. Jan. '88, 173. W. M. S., Jr. February 29, 1888. Heydt v. Frey. "THE COURT: Is it proposed by the defendant that the testimony offered shall be different from that which occurred on the former trial, as contained in the case between the same parties, reported 20 WEEKLY NOTES, 196? Or, is there any addition to their former testimony by this witness? "Mr. Snyder: We reply that we propose to show what we say in the offer. We admit that, in our judgment, it will not be anything new or essentially different from what is in the evidence that was in the case before; there may be one or two points wherein it will differ slightly, but not substantially." "THE COURT: Unless the plaintiffs desire this evidence to go in, with the explanation made by defendant to the question of the Court, the dbjection is sustained. Exception for defendant." Verdict for plaintiffs for $1090.83 and judgment thereon. Defendant took this writ and assigned as error the refusal of the Court to admit his offer of evidence. Jeff Snyder (George F. Baer and Ermentrout & Ruhl with him), for plaintiff in error. The evidence offered would bring this case Instrument in writing-Parol evidence to vary. within former rulings of this Court. Where a note sued upon is an absolute obligation for the payment of a certain sum one year after date with interest, parol proof will not be admitted to prove that the note was a contract to pay interest only to the payee, and the principal sum either not at all, or to a third person upon the footing that it was her money received as an advancement. Such a theory is at war with any conceivable reading of the instrument and a simple destruction of the written contract. Lyon v. Huntingdon Bank, 14 S. & R., distinguished. Where no one was present or has testified as to what took place when the note in suit was executed, it is not known what then transpired, or that anything transpired except the mere signing of the note, and there is no foundation upon which an offer of proof of subsequent declarations can stand. Any verbal agreements or declarations which are to affect the instrument sued upon must be contemporaneous with it. Error to the Common Pleas of Berks County. Debt, by Isaac Frey and Jeremiah Dierolf, executors of Sarah Boyer, deceased, against David Heydt. The facts are fully set forth in the report of Frey v. Heydt (20 WEEKLY NOTES, 196). When the case was called for trial a second time, the plaintiff in error made a long offer of testimony. The said offer was of testimony of Lyon v. Huntingdon Bank, 14 S. & R. 283. There is a class of cases in which parol evi- Stubb v. King, 14 S. & R. 206. Bowman v. Bittenhnden, 4 Watts, 290. Cyrus G. Derr (Henry C. G. Reber with him), for defendants in error. If there was no substantial difference, there was virtually no difference, and all that was said of the testimony of this Court when the case was here before, may with propriety be repeated. April 2, 1888. THE COURT. After a patient examination of the extended offer of proof rejected by the learned Court below, we are unable to discover any material difference in it from the testimony given on the former trial. The note in suit was an absolute obligation for the payment of $850 one year after date with interest at five per cent. It is impossible that this note can be treated as in any manner a contract to pay interest only to the payee, Sarah Boyer, and the principal sum either not at all, or |