should not be heard to adopt the agent's | others takes the risk of his dishonesty in acts where they make for him, and disclaim such dealings. And it should not be forthem where they are to his prejudice. It is gotten that if these fraudulent bills had he, and not the insurance company, who not been discovered, the companies would reposes the confidence in the agent; and probably if not certainly have been mulcted when that confidence is abused, especially in some $5,000 in excess of the real liability. by acts of fraud that if successful will be It will not do to say that plaintiff should greatly to his pecuniary advantage at the recover the real loss and lose the false claim; expense of the company, he that reposes the for this would throw wide open a door to confidence should pay the penalty. We do wholesale fraud, and deprive the provisions not overlook the wording of the forfeiture under consideration of much of their pracclause, nor the rule, relied on by plaintiff, tical value. The forfeiture provision should that forfeitures are not favored, and will not be regarded as based on the maxim falsus be enforced unless they come within the in uno, falsus in omnibus; and amounts to strict words of the policy. That rule has a declaration that where there is any fraud been more than once enunciated by this court or false swearing, the whole claim is tainted as well as by the Supreme Court. Carson v. thereby. The justice of so regarding it in Insurance Co., 43 N. J. Law, 300, 39 Am. Rep. cases where the insured personally commits 584; Snyder v. Insurance Co., 59 N. J. Law, the fraud is manifest; and a fair interpre544, 37 Atl. 1022, 59 Am. St. Rep. 625; Hamp- tation of the clause in the light of its recogton v. Hartford Fire Insurance Co., 65 N. J. nition by the state as a matter of public Law, 265, 47 Atl. 433, 52 L. R. A. 344. We policy requires its application also to cases do not deem our present decision to be a de- where the responsible party undertakes to parture from that rule. The question is shift the entire responsibility to an agent as whether in a case where forfeiture is invoked his alter ego. for the most meritorious cause on which it can be rested, viz., fraud, which the law abhors, and that fraud has been committed by an agent vested with the most complete and ample powers by a principal who is entirely passive and looks to the agent for the performance of every act relating to settlement of the loss, the fundamental maxim, "Qui facit per alium facit per se," shall be applied, or the court shall declare the clause futile for not having added to the phrase, "fraud or false swearing by the insured" the words "or his agent." Of the two alternatives, we consider that justice requires the adoption of the former, and that no violence is done thereby to the terms of the policy. This is not a case of agency ex necessitate. It is not the case of an insured relying necessarily upon a subordinate or agent for the information required to make up a proof of loss, revising and supervising it as best he may. Where the insured, though exercising due care, is himself deceived by his own agent, and in good faith presents a statement which turns out to be untrue in respect to matters which could not reasonably have been discovered by the insured in the exercise of due care, there is no fraud, for he has been himself deceived. But where he undertakes to wash his hands of the entire matter, and without question or supervision of any kind delegates to an agent the contractual duty of making a true statement, he cannot be heard to say, where fraud is committed by the agent in the exercise of his general powers, the consequences of that fraud should not be visited on him. We do not overlook the fact that an honest loss may be thus defeated by a dishonest agent. The answer is that he who employs and relies entirely on an agent to deal with We hold therefore that there was error in refusing the eighteenth and nineteenth requests to charge, although in view of the outside authorities cited, and of the absence of controlling decisions in this state on the precise point, the trial judge acted judiciously in ruling as he did. Our consideration of the case after full argument leading us to a different result, the judgment below will be reversed, to the end that a venire de novo be awarded. GARRISON, J. (dissenting). My vote for the affirmance of these judgments is based upon two fundamental propositions of law, the soundness of neither of which has ever been questioned. The first of these is that a verdict upon a material issue made by the pleadings and submitted to the jury establishes the fact in the appellate court; and the other is that language in a contract imposing a forfeiture will be construed in a manner as favorable to the party whose property is to be forfeited as is consistent with fair principles of interpretation. Citation of authority for these common-law maxims is surely unnecessary. Applying the first of these propositions to the question whether the respondent was guilty of fraud in the production of the vouchers or had conspired or attempted to conspire with any one for their fraudulent production, we find that these material facts were directly placed in issue by two of the defendant's pleas, and that such issues were submitted to the jury, whose verdict was that the respondent was not guilty of fraud in either respect. Assuming that this verdict is binding upon this court, it follows that, if false vouchers were produced produced without the respondent's fraud, the most he can be charged with is I am requested by Mr. Justice KALISCH and by Judge WHITE to say that they concur in the foregoing views and vote to affirm. negligence (which is not made a ground of my inability to concur in the reversal of forfeiture in the policy) unless such for- these judgments. feiture clause properly construed penalizes him for the fraud of another. This brings us to the established canon for the construction of forfeiture clauses in contracts. Such clause in the contract before us is in these words: (83 N. J. Eq. 257) McCOMB v. McCOMB. "This entire policy shall be void in case of fraud or false swearing by the insured touching (Court of Chancery of New Jersey. May 19, any matter relating to this insurance or the subject thereof whether before or after the loss." The natural construction of the words "fraud or false swearing by the insured," under the maxim noscitur a sociis, is that, as false swearing must be the act of the insured, so the fraud referred to must also be his act, i. e., a fraud perpetrated by him or with his consent or to his knowledge. Carson v. Jersey City Ins. Co., 43 N. J. Law, 300, 39 Am. Rep. 584. This, if it be not the necessary construction, is at least a permissible construction, which is all that is required by the canon stated, viz., that the language of a forfeiture is to be construed as favorably to the party whose property is to be forfeited as is consistent with the fair principles of interpretation, and surely no one will contend that the interpretation of associated words according to the maxim a sociis is not a fair principle of interpretation. The notion that this established canon of construction does not apply to a contract of insurance because the policy is in standard form has no foundation in law or reason. As was said by this court, in Hampton v. Hartford Fire Ins. Co., 65 N. J. Law, 267, 47 Atl. 434, 52 L. R. A. 344: "The court will never seek for a construction of a forfeiture clause in a policy which will sustain it, if one which will defeat it is reasonably deducible from the terms or words used to express it." Yet it is only by ignoring such established canon that the forfeiture of this policy can be visited upon the insured, for the verdict of the jury effectively negatived the only fraud that under the proper interpretation of the contract would work a forfeiture. The failure to observe and apply this familiar canon results, therefore, in the present case, in a forfeiture by the insured of over $25,000 of actual fire losses, for no other fault than his possible negligence in intrusting to a professional insurance adjuster the duty of collecting and transmitting to the insurance companies the mass of bills called for by their notice to him, a fault, if such it be, by which not a penny's worth of harm came to the insurer and not a penny's worth of benefit inured to the insured. 1914.) DIVORCE (8 133*)-DESERTION-EVIDENCE. In a suit for divorce, evidence held insufficient to establish defendant's desertion of complainant for two years prior to the filing of the bill. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 446-448; Dec. Dig. § 133.*] Bill by Aimee Greene McComb against William McComb for divorce. Bill dismissed. Thomas G. Haight, of Jersey City, for petitioner. Marshall Van Winkle, of Jersey City, for defendant. GRIFFIN, V. C. The petition in above cause is filed for a divorce on the ground of desertion. The parties, who were acquainted from childhood, were married October 15, 1907. One child, a son named Galen, now aged about five years, was born of the marriage. At the time of the marriage the defendant was deputy city collector of Jersey City, receiving a salary of $1,500 a year. He was in receipt of no other income, had substantially no property, and relied wholly upon his salary for the maintenance and support of his family. Prior to the marriage the mother of the petitioner (a widow) very properly questioned the defendant as to his ability to support her daughter, and was informed by the defendant of his position and income; he said there was likely to be a change in the Jersey City administration; that he would probably lose his position; but had secured a better one in the health board. The petitioner was also advised of this situation. After returning from their wedding trip, they occupied a house at Hackensack, the rent of which was $40 a month. The petitioner's mother, and son, aged about 13 years, also resided with them and paid board. The defendant paid the first two months' rent, lost his position on the 1st of January, 1908, did not secure the position in the health board, and, after being for some time out of employment, secured a position in the Union Trust Company as a clerk on a salary of first $60 and later $75 a month. In the course of his employment with the Union Trust Company he became acquainted with a business called the "wet wash busiThe fact that this harsh result can be ness," and conceived the idea that it was reached only by ignoring the firmly establish- very profitable. He told his wife that he ed canon evolved by the law for the express was going to engage in it, and here his lack purpose of preventing just such unconscion- of judgment and discretion is made to apable consequences is the plenary ground of pear. He borrowed $600 from the Union For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Trust Company and invested it in the busi- | ham, N. C.; then came back to New Jersey ness, without making a reasonable investi- from Rockingham. He says that from all gation. His wife advised against this course until he made a proper examination of the business and consulted a lawyer on the subject. This advice he did not heed, with the result that within a very short time the wet wash business became a failure, the money embarked in the enterprise was lost, and he was driven to seek other employment. His next venture was in a corporation which, with Mr. Mason, they formed for conducting the laundry business, called the M. & M. Laundry. He represented to his mother-in-law that it was a very good business; that ample money could be made in it; and borrowed from her $1,200. Afterwards, in the summer of 1909, and while he knew the business was running down and was virtually a failure, he borrowed from her an additional $1,000, on the representation that they were doing a splendid business; that the money was necessary to enable them to properly handle the same; and that he would repay her in a short time. On these representations the money was loaned. At the same time he borrowed $350 from his wife. During his stay in the laundry business he delivered to his wife checks in small amounts, made payable to the order of the M. & M. Laundry, which he, as president of the company, indorsed. She demurred to accepting them, thinking that it was suspicious, and inquired why the money was not put into the account of the company. He, however, allayed her suspicions. The day after Thanksgiving, 1909, he said he was going away, that the laundry business was doing nicely; that he was going with the knowledge and assent of Mr. Mason; that Mr. Mason was to draw $25, and he $15, a week, and let it accumulate for the purpose of paying for the stock or dividends; that he had a good offer of a position at $40 a week at Belle Vernon, Pa. This story was absolutely untrue. It is apparent from the testimony that the creditors were pressing the company for payment; that he had taken those moneys which he gave his wife wrongfully, and, having secured a position at Belle Vernon (not at $40 a week), suddenly departed, and within a few days afterwards his wife learned of the true situation in a conference with Mr. Mason. When defendant reached Pittsburgh he telegraphed his wife, and wrote her, inclosing all the money he had $5. His position at Belle Vernon was that of a solicitor of bank accounts, for which he received $10 a week, and a commission on all over and above a certain sum deposited through his solicita At Belle Vernon he says he averaged $15, $18, and $20 a week, and sent his wife $10, $12, and $15 every week, being all he made, excepting about $4 a week which he paid for his board. He next went to Masontown. From Masontown he went to Rocking these places, down to the time he left Rockingham and returned to Hackensack, he sent his wife from $10 to $15 a week. He returned to Hackensack in March, 1910. He found that during his absence the dining room had been closed up and was used for boarders; and he says that his wife said to him during the night, "You can stay here, if you want, but you can have the room in the attic; that is the best I can do for you;" and he said, "What is the matter with our room?" "Oh," she said, "Mother sleeps with me." He did not stay there that night, but left somewhat offended; he does not recall when he returned to Hackensack. He lived in Jersey City for two weeks after his return, but did not visit at her home during. that time but telephoned that he wanted to see her. They met by appointment on Montgomery street, Jersey City. He did not further communicate with her unless, perhaps, by letter. He says that when he came back from Rockingham, N. C., this time in March, his wife met him, that he looked very shabby. They went to Rogers, Peet & Co. and she bought him a suit of clothes so that he might take a managership. He was next employed as manager by the same company, the Burns Company, in the same business of soliciting bank accounts, at a salary of $25 a week; and he says he sent her $20 a week; that this continued so long as he was a manager. He was next sent to Mt. Jackson, Va., and from there sent her $20 a week; from there to Henderson, N. C., where business was not good; and it appears from the correspondence that his wife was willing to join him there, but he inquired of the Burns Company for assurances about his staying South as manager (because, he says, he did not want to bring her down on a fool's errand), and they could give no assurances; thereupon he advised her not to come. While at Henderson his board cost him $7 a week, the balance he sent to his wife. He returned to Hackensack in July, 1910. He says Mrs. McComb did not object to his going away, and she bought him a suit of clothes to go away as manager. She knew his plans. He says it was on this visit in July that his wife told him he could háve a room in the attic, but his testimony leaves it in doubt whether it was in March or July he was asked to sleep in the attic, and she bought him the clothing. He next entered the service of the Bankers' Corporation, in the same line, at Mt. Vernon, N. Y., where he remained until September 21, 1910. During this period of service he made $12, $15, $18, and $20 a week, and sent it to his wife, outside of what he had to pay for board. During the month of August, 1910, while he was so employed, the petitioner's mother was not at home, and the defendant visited petitioner on week-ends, and they co Exhibit D 1, saying: "The doctor's orders must be obeyed. You must not annoy me further." This last letter, it appears, so incensed him that he stopped sending money. The petition was filed within a month thereafter. Aside from the foregoing, other facts appear which shed some light on the case. The petitioner says that on a visit to her about Labor Day, 1910, the first thing he said was: "I will send you some money; I have consulted my lawyer, and you will never get a divorce from me. I will send you some money from time to time, and, if necessary, have it registered.' He told me that." She, in reply, said she did not want a divorce. He denies that he ever spoke to her about a divorce, or that he consulted a lawyer until this suit was brought. Owing to his admitted untruthfulness in dealing with his wife and her mother, and the fact that he did send her a registered letter, which he says was sent so that he could have something to fall back on in case anything happened, which might naturally be taken to mean if his wife applied for a divorce, I am inclined to the belief that the petitioner is telling the truth. Prior to leaving the laundry business, which was in November, 1909, she learned that her husband owed money to the Glen Island Hotel, which she said was a notorious resort, and her suspicions were aroused. Taking these suspicions in 1909 and his statement as to how he would prevent her from obtaining a divorce, made about October, habited and were on friendly relations., would see his child. She then wrote back From August, 1910, down to the date of the filing of the petition the parties had no sexual relations. After leaving the Bankers' Corporation he was employed by the Etna Life Insurance Company on Long Island during the month of September, 1910, receiving $20 a week, and paid it to his wife, excepting what he paid for board; he living with his parents in Jersey City. He next worked for his brother-in-law, Alfred Lewis, in the dairy products business, until December, 1910, receiving $15 a week, all of which he gave to his wife, his compensation being $15 a week and board. He says he left his brother-in-law in December, 1910, obtaining employment in Winston-Salem, N. C., from the Burns Company as solicitor and was there until January 18, 1911, earning $12, $15, $18, $20, and $25 a week, paid his board, and sent the balance to his wife. From WinstonSalem he went to Roxborough, N. C., for the same concern in the same line of business, and earned from $12 to $18 a week, and stayed there until February 10, 1911, and sent the money that he earned to his wife as before. Leaving there he came back to Jersey City, worked for his brother-in-law until the latter end of April, 1911, at $15 a week and board, and sent all of his wages to his wife. About February, 1912, or shortly prior thereto, he went into business for himself. From that time down to January, 1913, he was in the cigar business and milk business. See Exhibits P 31, 32, and 37. In this last letter, which was written in October, 1912, he 1910, into consideration, she consulted a lawsays he is in the cigar business, and was particularly unfortunate "this summer, and did yer some time in July, 1911, and laid the circumstances before him, acting upon whose adnot have any money to send." He did, how-vice, she employed a detective to follow deever, send some money, as appears by the exhibits; and it also appears that he did not visit her from December, 1911, until November, 1912, the visit at this latter time being brought about by a letter to him from his wife saying that she was going to Suffern, and offering to come down to meet him if he should write. He telegraphed, and she returned from Suffern and met him on the 6th or 7th of November. The conversation at this meeting was like most of the others, simply talking about the future and about his earning possibilities, and nothing came of it. About January, 1913, he was in the milk business, and said he was making from $12 to $15 a week, with $200 or $300 invested. He sent some money to his wife during this month, Some of the letters which she offered in and said he ceased sending her money during evidence she says were shown to her lawyer the baby's illness, which was the latter end before they were sent, others were not. of January, or the early part of February, While the defendant was wandering through1913, because he learned that the baby was out the country in an effort to make money, ill, and the doctor had ordered that no one his wife and child, during the summer, be admitted to see him. She had asked the were at Asbury Park, and sometimes, doctor if Mr. McComb could not see the child, in the spring and fall, at Foxwood Inn, and he said: "No; under no circumstances." Suffern, N. Y. It is very apparent that The defendant then wrote to his wife, saying the defendant was practicing a great deal that, regardless of the doctor's orders, he of self-denial, and endured a great deal The fendant, and only discontinued his services because her funds gave out. She kept copies of her letters written to him, as well as his letters to her, after this date, because of her lawyer telling her to be very careful. married life of the petitioner down to this date having been so unsatisfactory, with such little hope of betterment in sight, I am inclined to believe she then conceived the idea of obtaining a divorce if conditions did not improve. The defendant explains that the bill referred to was contracted on the day of the Hudson-Fulton celebration, when he went into the hotel with a number of friends hoping to secure all the laundry work of the hotel. in keeping away from the society of his friends in his travels through Pennsylvania, Virginia, North Carolina, and New York, seeking to earn money, all of which, outside of his bare means of support, he sent her. This rather indicates quite some love and affection for his wife and child. Another fact seems to not only demonstrate this, but also that this love was reciprocal, appears in two letters (Exhibits P 33 and P 34) which passed between the parties in April, 1912, less than a year before this petition was filed, the defendant wrote inclosing a receipt for premium on $1,000 policy in the Prudential, and said: "I have taken an additional $2,000 (policy), the quarterly payment of which falls due on July 15th, Galen's birthday. Should anything happen to me, you will collect $3,000, as every thing is payable to you." To which she replied, saying: well." "I sincerely hope that I shall never be the one to profit by it. You know you have many tasks to perform yet, and it is our ambition, or should be, to live until we have done them While before his marriage and for some time afterwards his conduct towards the petitioner was rather reprehensible, he seemed to be filled with a desire to do his best for his family. But he says that the constant talk in the house when he went to Hackensack was "Money, money, money," which was very annoying. I think perhaps he exaggerates this; yet, under the circumstances, it was but natural that there should have been some talk of money matters that made it rather disagreeable to him, considering the large amounts of money of his mother-in-law and wife he had squandered in such a short time, and afterwards finding how difficult it was, in open competition, to earn a livelihood. But it did not excuse his failure to visit his wife while he was in business at North Arlington and living at Jersey City and Nutley for a period beginning with December, 1911, and ending with November, 1912. The whole aspect of the case is peculiar. The petitioner contends that the desertion commenced in October, 1910; that at that time he had a deserting mind; that this is evidenced by the fact that he told her, two weeks after Labor Day of 1910, that she would not get a divorce, because he had consulted a lawyer, and would send her money, which would defeat it. If his intent at that time was to desert his wife and never afterwards resume the marital relation, the mere fact that he sent her money would not of itself prevent a decree being entered against him; the mere sending of money to a wife does not constitute the full measure of duty which a husband owes to his wife. His desertion could be willful, and yet he might support her. The strange part of the case, however, is that while he was with the laundry company he actually took about $300 of the company's funds and gave it to his wife for her support. It is unlikely that he would do this if he was not anxious to care for her. On these various trips he sent her virtually all he earned, less a sufficient sum to pay his board. He did not even have money to buy clothing, and was reduced to such a degree that when he came to New York from Roxborough to become a manager his wife took him to Rogers, Peet & Co. and bought him clothing. If he was carrying out a preconceived design of sending her money for the purpose of defeating a divorce, he certainly punished himself severely to accomplish this end. He might readily have sent less and fully subserved the purpose intended. I can hardly believe this. I think he endeavored to do the best he could, but, by reason of some mental characteristics, which are evidenced a great deal in his letters, he seemed incapable of acquiring a position to properly care for his wife and child. Some of these characteristics appear plainly in his letters. They are filled with the most exaggerated statements as to his earning capacity and the money he was making. They were filled with such expressions as that he was "making a barrel of money," and he explained that the reason why he wrote such things to his wife was that he desired to buoy her up and make her cheerful. Some of his letters, however, are rather harsh. August, 1911, he wrote the letter, Exhibit P 21, in which he told her, after saying that he loved and thought of her all the time, and wanted her to be with him, and that he wished her to come and live with him, he says: About "I will provide the very best I can for you no, as my future actions will depend on your and my baby. Your answer must be 'yes' or reply." her. This letter was registered, and is appar-. ently the only registered letter he ever sent To this letter she replied on August 8, 1911. (Prior to which time, July, 1911, she had consulted a lawyer.) In her reply she pointedly asked him why he registered the letter when it contained no money and he had never sent her a registered letter before, even letters that contained money; his explanations were rather lame, thus provoking comment on the fact in her subsequent letters. that the registry of the letter, taken in connection with his previous statement, as to the manner in which he would prevent her from obtaining a divorce, conveyed to her the idea that the letter was registered with the same end in view. It is apparent On the stand he testified that he determined to write the letter to have something to fall back upon in case anything happened. While it has not been testified to, I am inclined to the belief that the defendant wrote this letter for use in case his wife should sue for divorce; that it must have been in his mind that his absence might amount to a desertion. He says, however, |