and on the security of the policy, a sum, up policy for a certain term, without action equal to the cash value of the policy at the on the part of the insured, and in absence of end of the current year, and it is provided an election by him to the contrary. We there that failure to repay such loan with in- said (243 Pa. 390, 90 Atl. 208): terest "shall not avoid this policy unless the total indebtedness hereon to the company shall equal or exceed such loan value at the time of such failure and until 31 days after notice shall have been mailed by the company to the last known address of the insured." We find nothing in the wording of the policy indicating an intention in case of default after granting a loan to apply the proceeds of the policy to the payment of the indebtedness. The only provision referring to the effect of failure to pay having a bearing on the question is that failure to repay shall not avoid the policy "unless the total indebtedness to the company shall equal or exceed such loan value at the time of such failure and until 31 days after notice shall have been mailed by the company to the last known address of the insured." That the indebtedness of the insured equaled or exceeded the loan value is conceded, and defendant's right to forfeit the policy for that reason cannot be denied. Before doing so, however, something more than mere equality of indebtedness and cash value of the policy is required. Affirmative action on the part of the company must be taken by giving 31 days' notice of intention to avoid the policy by reason of nonpayment of the loan. In absence of such notice, forfeiture does not occur, and there is nothing to prevent the operation of the provision for extended insurance, whereby the policy remains in force for the full period of the extended insurance. Had the insurer intended that, in case of default, the cash value of the policy should be applied to cancel the indebtedness, and the policy thereby terminate if the latter equaled the former, it would have been a simple matter to have said so. In absence of such provision, the court will not read into the policy a requirement it does not contain. If "We cannot agree that the term of extended insurance is affected by the loan provisions of the policy, which do not in terms, nor as we view it by necessary implication, have reference to the table of extended insurance. appellant [the insurance company] intended to reduce the term of extended insurance on account of loans to the insured, it would have been an easy matter to have so provided in the policy, and the inference from its failure to do so is that it did not so intend. The policy is in the language of the insurance company, and the presumption is that its express provisions contain all the conditions intended to be imposed. Certainly the insured had the right to assume that the policy meant what it said, and that conditions not expressed did not exist. As to the loans, appellant safeguarded its interests by provisions for forfeiture and for the deduction of indebtedness, together with interest accumulated and accrued upon payment of the amount otherwise due the insured under the terms of the policy. There is no provision in the policy for the reduction of the term of extended insurance on account of indebtedness to the insurer, and, in absence of such a provision, courts are not at liberty to read into the contract what it does not contain. Again, the rule that insurance contracts shall be taken most strongly against the inloans are read in the light of this rule the arsurer applies, and when the provisions as to gument of appellant on this branch of the case fails." In the case in hand no formal notice of intent to cancel was sent the insured, and the policy, consequently, remained in force, subject to the assignment to the company as collateral for repayment of the loan. Salig v. United States Life Ins. Co., 236 Pa. 460, 84 Atl. 826, cited by appellant, is distinguishable from the present case, in that the policy there contained an express provision whereby it became void in case of nonpayment of the loan when due. In that case notices were sent the insured, calling his attention to the terms under which the loan was made, and advising him the policy would be forfeited unless payments were forthcoming on or before a time stated. The case of McDonald v. Columbia N. L. Ins. Co., 253 Pa. 239, 97 Atl. 1086, L. R. A. 1916F, 1244, also differs from the present, since there the state [2] That an existing doubt as to the construction of the different parts of a policy of insurance must be resolved in favor of the insured is familiar law, and under this rule the action of the court below in entering judgment for plaintiff non obstante veredicto was proper, and fully supported by the decision of this court in Francis v. Prudential law provided automatically for a paid-up Ins. Co., 243 Pa. 380, 90 Atl. 205, where a question arose as to whether an existing indebtedness of the policy holder to the company should be deducted from the cash value of the policy, so as to reduce the term of extended insurance under a provision whereby a forfeited policy should become a paid life insurance policy for a certain amount in case of forfeiture for nonpayment of premium, without action by either of the parties, and the effort of the insured there was to have the policy reinstated under an option clause he had failed to exercise. The judgment is affirmed. (118 Me. 269) GORDON v. KEENE. (Supreme Judicial Court of Maine. 1919.) (107 A.) Oct. 7, Mere evidence of uncashed check from intestate to plaintiff will not support a claim against the estate for money loaned. 4. PAYMENT 21-ACCEPTANCE NOT PAYMENT OF DEBT. OF CHECK Taking a check for existing debt is not ipso facto payment of the debt, and where check is not cashed an action may be maintained for recovery of the original debt. 5. Appeal anD ERROR 1050(2)—ADMISSION OF IMMATERIAL EVIDENCE HARMLESS ERROR. In action against administrator for services rendered intestate as housekeeper, admission of evidence as to plaintiff's experience in raising hens, and as to whether she kept boarding house prior to working for intestate, and as to how many calves she raised while working for intestate, and as to whether she furnished eggs for cooking and table while so employed, held harmless, being immaterial. grower. In March, 1904, he obtained a di- of cattle out of the 25 head of cattle on the On August 21, 1918, she brought this action to recover the sum of $2,190 for her services during 6 years prior to Mr. Keene's death, being at the rate of $1 per day; the declaration contains two other counts, one to recover $260.50 for money loaned, another upon a note for $65, dated December 7, 1916; liability on the note is conceded. The plaintiff has a verdict for $1,836.33. The case is before us upon a motion for a new trial in the usual form and upon exceptions to certain rulings of the justice of the superior court. [1] We will first consider the motion. The record does not disclose convincing evidence of an express contract by the deceased to pay the plaintiff $1 per day, or any stipulated sum, for her services at Mr. Keene's house. Judging by the amount of the verdict, the jury must have so found. The conversations between the plaintiff and Mr. Keene related by Mrs. Aubin, a sister of Exceptions from Superior Court, Andros- the plaintiff, which constitute the only evicoggin County. Action by Althea M. Gordon against Alton A. Keene, administrator of the Estate of Benjamin C. Keene. Verdict for plaintiff, and defendant excepts, and moves for a new trial. Exceptions overruled, and motion sustained, and new trial granted, unless plaintiff remits verdict above certain amount. Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ. dence of an express contract, fail to show any completed contract; they show proposals made by Mr. Keene not accepted by the plaintiff; the final arrangement between the parties is not disclosed. It was therefore "incumbent on the plaintiff to prove that the services were rendered by the plaintiff either in pursuance of a mutual understanding between the parties that she was to receive payment, or in the expectation and belief that she was to receive payment and that the circumstances of the case and the conduct of the defendant justi Harry Manser, of Auburn, for plaintiff. Frederick R. Dyer, of Buckfield, for de-fied such expectation and belief. It is not fendant. MORRILL, J. In his lifetime Benjamin C. Keene was a prosperous farmer residing in Hebron, Oxford county; he was a large owner of farm lands and an extensive apple enough to show that valuable service was ren- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tial and must be proved." Leighton v. Nash, charged in the book with the grain and in111 Me. 525, 528, 90 Atl. 385, 386. It clearly appears, and in fact is undisputed, that, beginning about two years after going to Hebron, the plaintiff engaged in poultry raising on a large scale; that she had the assistance of Mr. Keene's hired man to do the rough work; that she regularly in corroboration. cluded in the monthly settlements. We find We find three Another class of checks is more significant a check for $9.62, dated June 12, 1912, indorsed to A. N. Despins Company, appears, as to which Mrs. Gordon says: "Q. I call your attention to two checks, one dated June 12, 1912, $9.62, indorsed by yourself and A. N. Despins Company. Can you explain that? A. Well, Mr. Despins' checks were for boots for Mr. Keene and myself. It appears that the plaintiff kept a book showing her transactions in poultry raising. This book was put in evidence. It begins January 2, 1911; the last entries are October 1, 1917. The book is kept month by month; on the right-hand page, in Mrs. Gordon's handwriting, the receipts are entered; on the Keene paid you? A. Yes; he gave me checks "Q. And did that represent money which Mr. left-hand page, usually in Mr. Keene's hand-to get boots at different times for himself, and writing, are the charges for grain and feed my own boots I paid for." furnished by Mr. Keene, items of other expense, and sometimes checks given by Mr. Keene to her for use in paying her bills. That these accounts were invariably settled every month is conceded; Mrs. Gordon paying Mr. Keene for his charges against her during the month. So unfailing was this course of business that on October 2, 1917, 11 days before he died, Mr. Keene, unable to be fully dressed, sat up at the table, and settled the September account, and receipted it upon the book. But this is not all; 164 checks drawn by Mr. Keene in favor of Mrs. Gordon are produced; the first is for $375, dated November 1, 1911; the last is for $7.44, dated September 24, 1917. Mrs. Gordon denies that any of these checks represent money paid for services, or as gifts. She says that certain of these, for example, 13 checks which bear the indorsement of A. W. Harvey, were given for waste purchased of Mr. Harvey, a fish We do not find any charge corresponding to this check, nor to a previous check, dated November 1, 1911, for $10.90, also indorsed to A. N. Despins Company; but under date of December 6, 1912, is a charge, "CashBoots, $3.50," and a check appears of that date and amount indorsed to A. N. Despins Company; and under date of February 8, 1917, is a charge of "Check to A. N. Despins, $2.25," and a corresponding check is found. This, Mrs. Gordon says, was for a pair of slippers for herself. A check for $5, dated November 10, 1913, collected through the Livermore Falls Trust & Banking Company, is explained as follows: "That was for our fare. Mr. Keene and I visited my nephew at Livermore Falls, and that was for our fares and my hat that I got there at that time." We find the charge on the book: "Liver (107 A.) And similar charges are found under dates, yet we must consider that the jury had opof October 7, 1913, "Due on check, trip to portunity to see the woman, to judge of the Portland, $5.08," and December 18, 1913, weight of her testimony. If they believed "Trip to town, $10.00." her statement they were justified in awarding her the amount of the check; there was no evidence to the contrary. The declaration does not contain a count upon the check; but taking a check for an existing debt is not, ipso facto, payment of the debt, and an action may be maintained for recovery of the original debt. Marrett v. Brackett, 60 Me. 524. A check for $2, dated April 30, 1914, indorsed by W. H. Berry, and another for $5, dated May 1, 1914, indorsed by E. M. Swift and W. H. Berry, are produced; the latter was Mrs. Gordon's contribution to the church; the former her contribution towards a church organ; both are charged to her in her own handwriting. Is it probable that, if Mr. Keene was owing Mrs. Gordon for services, she would have included in her accounts, not only charges for poultry feed and eggs, but also charges for checks furnished for her clothing, church contributions, and vacation expenses, and would have paid such charges to Mr. Keene month after month, during the whole six years? That she did make these monthly settlements and pay him is the positive testimony of the plaintiff and her sister, Mrs. Aubin. Such a course of dealing is not consistent with the ordinary conduct of persons standing in the continuing relation of debtor and creditor. [2] Without further extending this opinion, it is sufficient to say that after a careful examination of the whole record the court is of the opinion that the verdict upon the first count is unmistakably wrong; that the monthly settlements embraced all outstanding claims between the parties, except when evidenced by notes or other writings; that the plaintiff did not expect to receive, nor defendant's intestate to pay, further compensation. The jury must have failed to apply the rules of law to the undisputed facts of the case. [3] In support of the second count the plaintiff introduced a check payable to her for $260.50, dated November 4, 1913, signed by Mr. Keene, which Mrs. Gordon said was not presented for payment either before or after his death; but in this she was mistaken. The bank clerk testified that she did present it for payment after Mr. Keene's death, and payment was refused for that reason. Without further evidence, this check would not support a claim for money loaned. But Mrs. Gordon testified on cross-examination and on redirect examination that this check was given to her for money borrowed for apple picking. She added: [5] The defendant has four exceptions to rulings of the presiding justice admitting answers given by the plaintiff to questions propounded by her counsel. It appears that the defendant testified in his own behalf to certain facts happening before Mr. Keene's death, admissible upon the rules of evidence. He was then cross-examined; the cross-examination was not confined to the facts as to which he had testified on direct examination, but took a wider range; but no exceptions were taken to this method of crossexamination. The plaintiff was called in rebuttal and asked the questions upon which | the exceptions are based. Without expressing an opinion upon the questions of law propounded by defendant's counsel, we think that the questions and answers were not prejudicial to the excepting party. How was it material to the issue, whether or not Mrs. Gordon had any experience in raising hens in 1904, or had kept a boarding house prior to going to Mr. Keene's (a fact which had already appeared), or how many calves she raised while at Mr. Keene's, or whether she furnished eggs for the cooking and table? In their zeal to leave no facts unpresented, the counsel, as frequently happens, seem to have drifted away from the main issue. If exceptions had been presented to the method of cross-examination adopted with defendant, an important question would have been presented. An exception to the refusal to give a requested instruction is presented. The requested instruction seems to have been taken verbatim from the opinion in Spring v. Hulett, 104 Mass. 592, withdrawn from the context. The jury had been fully instructed as to the law of implied contracts; we think that the requested instruction was properly refused. Lunge v. Abbott, 114 Me. 177, 182, 95 Atl. 942. Exceptions overruled. Motion sustained, "Well, he said that I might get it cashed when and new trial granted, unless, within 20 days he had money in the bank to pay." [4] Although her delay in presenting the check is not satisfactorily explained, as Mr. Keene had nearly $1,300 on deposit when the check was given, and not less than $589 at any time during that month of November, after this rescript is received by the clerk in Androscoggin county, plaintiff formally remits all of the verdict above the amount due on the note dated December 7, 1916, and the amount of the check for $260.50, with interest on the latter from date of writ, in which case judgment shall be entered accordingly. (118 Me. 261) ELMS v. CRANE. (Supreme Judicial Court of Maine. Oct. 7, 1919.) 1. LIBEL AND SLANDER 7(1)-WORDS IMPORTING CRIMINAL CHARGE ACTIONABLE. If the defamatory words taken in their natural and ordinary signification fairly import a criminal charge, it is sufficient to render them actionable. law and protecting society by punishing the criminal, but rather the private motive of recovering her lost property, was not privileged. 9. LIBEL AND SLANDER 7(13)-CHARGE of LARCENY LIBELOUS PER SE. Language fairly importing charge of larceny is libelous per se. 10. LIBEL AND LIBELOUS PER SE LEGALLY MALICIOUS. Where language is libelous per se, it is legally malicious, and such damages as naturally, 2. LIBEL AND SLANDER WRITTEN BY DEFENDANT IMPORTING CHARGE proximately, and necessarily result from the publication are presumed. OF LARCENY. 7(13) LETTERS In action for libel, language of letters written by defendant to plaintiff's fellow boarder held to import charge of larceny. 3. LIBEL AND SLANDER 43, 50, 51(4)WHEN ACCUSATION OF CRIME PRIVILEGED. Communications accusing person of crime, to be privileged upon ground that they were made for the purpose of aiding in the investigation and punishment of crime, must have been made in good faith and without actual malice, upon reasonable or probable cause, after a reasonably careful inquiry, and for the public purpose of detecting and bringing a criminal to punishment. 4. LIBEL AND SLANDER 51(1)-CHARGE OF CRIME MALICIOUS AND NOT PRIVILEGED IF MADE WANTONLY. Although "malice," in its popular sense of rancor, personal animosity, or ill will, is not shown, the courts construe the word more broadly; and a charge of crime is malicious, and therefore not privileged, if made wantonly and recklessly, out of an entire disregard of the rights of the person accused. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Malice.] 11. LIBEL AND SLANDER 28 ONE PUBLISHING LIBEL LIABLE FOR ITS REPETITION. One who publishes a libel is responsible for such repetitions of the libel, and such publicity as are fairly within the contemplation of the original publication and are the natural consequence of it. 12. LIBEL AND SLANDER 114-SUBSTANTIAL DAMAGES RECOVERABLE WITHOUT PROOF OF SPECIAL OR ACTUAL DAMAGES. In libel action, substantial damages may be recovered without proof either of special damages or actual damages. 13. LIBEL AND SLANDER 104(1) WHERE WORDS LIBELOUS PER SE ACTUAL MALICE MAY BE SHOWN. In libel action, where language complained of is libelous per se, actual malice or malice in fact may be shown for purpose of enhancing damages. 14. LIBEL AND SLANDER 89(1), 101(1)— SPECIAL DAMAGES RECOVERABLE IF ALLEGED AND PROVED. In libel action, special damages may be recovered, but only if alleged and proved. 15. LIBEL AND SLANDER 120(2)-THE JURY OR THE COURT MAY ASSESS PUNITIVE DAMAGES IF ACTUAL MALICE PROVED. The jury or the court in a case reported may assess punitive damages, but not unless actual malice is proved. 16. LIBEL AND SLANDER 116-DAMAGES NOT RECOVERABLE FOR PUBLICITY OF TRIAL. In action for libel, plaintiff is not entitled to damages for the publicity caused by the trial. 17. LIBEL AND SLANDER 121(1) - $750 AWARDED AS DAMAGES FOR LIBEL. 7. LIBEL AND SLANDER 34-CHARGE OF charging plaintiff with larceny, where writer CRIME ON GROUNDLESS SUSPICION NOT PRIVILEGED. was a woman of high social standing, whose accusation would carry weight, held, that plain A charge of crime based upon groundless tiff's damages should properly be assessed at suspicion can never be privileged. 8. LIBEL AND SLANDER 43-LETTER CHARGING LARCENY WITH MOTIVE TO RECOVER STOLEN PROPERTY NOT PRIVILEGED. Writer of letter charging larceny, to a private person having no duty and responsibility in the premises, whose motive in writing letter was not the public motive of vindicating the $750. Report from Supreme Judicial Court, Knox County, at Law. Action by Frieda L. Elms against Rebecca On report. Judgment for Riggs Crane. plaintiff. See, also, 118 Me. 18, 105 Atl. 385. |