tion dangerous to travelers in this, that | inadvertence in the preparation of the nothere was in said sidewalk a certain water tice "Elm street" was substituted for "Eli, cap which projected above the level of the street." sidewalk about an inch and a half, of which defect said town of Cumberland had reasonable notice, or might have had reasonable notice by the exercise of proper care and diligence on its part; that your said petitioner, Ernest Foxwell, while in the exercise of due and reasonable care, struck with his foot said obstruction, and was thereby thrown to the sidewalk with great force and violence; that by reason of being thrown in this manner, through the defect and obstruction in said sidewalk, said claimant's knee and back were injured; that said injury to claimant's knee is a traumatic synovitis of the knee joint; that the injuries thus received are permanent, and said claimant is now confined to his bed under the care of a doctor; that he has been rendered absolutely unable to follow his usual employment, and has been and will be put to great expense for doctor's bills, medicine, care, and attendance; that his damages in all amount to the sum of four thousand ($4,000) dollars, for which sum he now presents his claim to this honorable body and requests that the same be allowed. Ernest Foxwell, by His Attorney, P. E. Dillon." The portion of the notice referred to as insufficiently describing the place of the accident is "that on the said easterly sideIwalk of said Broad street, a public highway of said town, at a point about 10 feet south of the southwesterly corner of the building numbered 263 on said Broad street, and directly opposite the intersection of the northerly sidewalk of Elm street with the westerly side of said Broad street, there was an obstruction dangerous to travelers in this, that there was in said sidewalk a certain water cap which projected above the level of the sidewalk about an inch and a half." It appears that in the general locality where this accident is supposed to have occurred there are two streets running at right angles with Broad street, viz., Elm street and Eli street. Elm street is some 350 feet south of Eli street, and opposite its intersection with Broad street there are no houses, and consequently no water gates or caps. It is vacant land. There are no water gates or caps within 200 feet of such intersection. On the easterly side of Broad street, near the intersection of Eli street, from 11 to 13 feet south of the southwesterly corner of the house numbered 263 on said Broad street, otherwise referred to as the "Keefe" house, there is a water cap or gate, and there is no other water cap on the easterly side of Broad street so located that it could be confused with the one referred to in the notice as "about 10 feet south of the southwesterly corner of the building numbered 263 on Broad street." It is quite apparent from these facts that through some [3] The town is entitled to such notice as would inform its officers with reasonable certainty as to the time and place of the injury, and as to the character and nature of the defect which caused it, so as to aid them in their investigation of the question of liability. It is not every error, however, that amounts to a substantial defect sufficient to invalidate the notice. Perry v. Sheldon, 30 R. I. 426, 75 Atl. 690. The error or defect must be one through which the notice fails to convey to the town the information required by the statute with reasonable certainty. If, on the other hand, the notice is sufficient, notwithstanding the defect, to apprise the officers of the town with reasonable certainty as to the time, place, etc., of the accident, it must be held to be a good and valid notice. In the case at bar the notice first described the place of the accident as the easterly sidewalk of Broad street, about 10 feet south of the southwesterly corner of the building numbered 263 on said Broad street. Had the plaintiff stopped there, no question could have arisen, as that description of the place was definite and sufficient; but he continued on, adding the words "and directly opposite the intersection of the northerly sidewalk of Elm street with the westerly side of said Broad street." The addition was erroneous, as Elm street is some 350 feet south. If we take into consideration the accuracy with which the notice first describes the place, together with the fact that at the intersection of Elm street there is only a vacant lot, and no water gates or caps whatever, it at once becomes apparent that the place of the injury was at or near the intersection of Eli street, about 10 feet south of the southwesterly corner of the building numbered 263 on Broad street, and that the town was advised thereof with reasonable certainty. The plaintiff's exceptions are sustained, and the case is remitted to the superior court, with direction to grant the plaintiff a new trial. (34 R. I. 567) HERBO-PHOSA CO. v. PHILADELPHIA (Supreme Court of Rhode Island. Nov. 25, An employer's liability policy provided that no action shall lie against the company as respects any loss under the policy, unless brought by the assured to reimburse himself for loss actually sustained and paid in money by him after the trial of the issue. Plaintiff employer executed its note in a sum sufficient to pay a judgment, with costs, rendered against it in an to pay anything to its insured. action for injuries to an employé, and the note | amount of the said judgment and costs the was discounted at a bank and the proceeds paid casualty company was under no obligation to satisfy the judgment. Held, that the payment to satisfy the judgment for the employe's injuries was sufficient, though not in money, so that the employer could recover over against the insurance company on the policy. VINCENT, J. This is an action on the case in assumpsit against a liability insurance company to recover, under the terms of its policy, for a loss sustained by the plaintiff as defendant in an action at law, including costs and expenses. Ann E. Congdon, administratrix upon the estate of her father, John E. Whipple, brought a suit against the Herbo-Phosa Company to recover damages for the death of said Whipple, which, as alleged, was brought about by the negligence of said company, or its predecessor, the Modox Company. The Herbo-Phosa Company was insured against accident in the defendant casualty company. The casualty company having refused or failed to assume the defense of the Whipple suit, the same was de fended by the Herbo-Phosa Company. The plaintiff in the Whipple suit recovered a judgment for the sum of $2,548.95 damages and costs. Later the Herbo-Phosa Company, claiming that it had paid the amount of this judgment and costs, and that it had been put to other and further expense in the defense thereof, requested reimbursement from the defendant casualty company for the losses thus sustained, in accordance with the terms of the policy contract. The defendant casualty company refused to comply with this request of the plaintiff, on the ground that the latter had not actually suffered any loss, and that its pretended payment of the judgment and costs aforesaid was nothing more than a mere subterfuge designed, in collusion with other parties in interest, for the purpose of enabling the Herbo-Phosa Company to avoid the terms of the policy providing only for indemnity against actual loss, and therefore that until there had been a bona fide payment of the The case comes before the court on certification of the superior court, under the provisions of section 4, c. 298, of the General Laws of 1909, upon the following agreed statement of facts. "(1) That the defendant issued to the plaintiff the policy of insurance, as set forth in the declaration. "(2) That the accident to John E. Whipple happened as set forth in the declaration, and was covered by the policy. “(3) That Ann E. Congdon, administratrix of said John E. Whipple, by Lewis A. Waterman, attorney, brought suit against the plaintiff in the case at bar on account of said accident, as set forth in the declaration, and recovered judgment therein against said plaintiff in the case at bar on the 6th day of May, 1911, as of April 4th, 1911, for the sum of twenty-five hundred ($2,500) dollars damages and forty-eight dollars and ninety-five cents ($48.95) costs. That execution upon said judgment was issued from the superior court on the 9th day of May, 1911, for the sum of twenty-five hundred and forty-eight dollars and ninety-five cents ($2,548.95) judgment and costs, together with fifteen dollars and twenty-nine cents ($15.29) interest thereon, amounting in the whole to two thousand five hundred and sixty-four dollars and twenty-four cents ($2,564.24). "(4) That said execution was returned to the superior court on February 17, 1912, with the following indorsement thereon: 'Having received full payment and satisfaction of the within execution the same is hereby canceled and discharged. Providence, May 17, 1911. Waterman, Curran & Hunt, Plaintiff's Attorneys.' "(5) That on the 17th day of May, 1911, the Herbo-Phosa Company gave to the Westminster Bank of Providence, Rhode Island, the note of said Herbo-Phosa Company for two thousand five hundred and sixty-four dollars and twenty-four cents ($2,564.24), payable six (6) months after date, of which the following is a copy: '$2564.24. Providence, R. I. May 17, 1911. Six months after date, with interest at the rate of 51⁄2 per cent. per annum, for value received we promise to pay to Westminster Bank, or order at said bank, in the city of Providence twenty-five hundred sixty-four 24/100 dollars, having deposited herewith and pledged as collateral security for the payment hereof Certif. of Deposit Westminster Bank No. 814, with authority to sell the same, or any part thereof, or any collaterals substituted for or added to the above, without notice, either at public or private sale or otherwise, at the option, of the holder, on the nonperformance of this promise, the said .... holder applying the net proceeds to the transaction with said bank was entered uppayment of this note and accounting to on to furnish security for the payment of for the surplus, if any; and said note. That all the above described in this paragraph occurred at one and the same visit of the parties aforesaid at said Westminster Bank on the 17th day of May, 1911. .... .... ..... .... it is hereby agreed that such surplus, or "(6) That at the time of the transactions described in paragraph 5 above the financial condition of the Herbo-Phosa Company was not such as to enable it to meet immediately all its due financial obligations. That it did not have the money to pay said judgment, and that its credit was not such as to enable it to borrow money without security. "(7) That the Lewis A. Waterman last mentioned is the same person who is hereinbefore described attorney for Ann E. Congdon, administratrix, in said case against the Herbo-Phosa Company, and is also one of the attorneys for the plaintiff in the case at bar. in said Westminster Bank and received from "(8) That on May 17, 1911, the HerboPhosa Company gave its check upon its account in the Industrial Trust Company, payable to the Westminster Bank, for the sum of seventy-two dollars and eight cents ($72.08), which check was given and was received by the Westminster Bank as full payment of the interest on said note of HerboPhosa Company for two thousand five hundred and sixty-four dollars and twenty-four cents ($2,564.24), dated May 17, 1911, up to the time of the maturity of said note and upon presentation said check was duly honored and paid. "(9) That at the maturity of said note the Herbo-Phosa Company gave to the Westminster Bank a renewal note, payable six (6) months after date, for the same amount upon the same security and containing in all other respects the same terms and conditions and upon the same terms and conditions as the said original note, and thereupon said original note was marked 'Paid' by said Westminster Bank and by it surrendered to said Herbo-Phosa Company. "(10) That on November 21, 1911, the Herbo-Phosa Company gave its check upon its account in the Industrial Trust Company, payable at the Westminster Bank, for the sum of seventy-one dollars and thirty cents ($71.30), which check was given and was received by the Westminster Bank as full said bank a certificate of deposit in said payment of the interest on said renewal note bank for the same sum as the face value of up to the time of the maturity of said resaid cashier's check, which certificate of de-newal note, and upon presentation said check was duly honored and paid. posit was immediately deposited with said "(11) That said renewal note for two thounote of the Herbo-Phosa Company in said Westminster Bank and pledged to said bank sand five hundred and sixty-four dollars and as collateral security for the payment of twenty-four cents ($2,564.24) of said Herbosaid note, in accordance with an agreement Phosa Company is now held by said Westmade by said Lewis A. Waterman with said minster Bank. That it is not yet due, and bank before any part of the above-described that no part thereof has been paid. "(12) That the following are copies of stubs | ceeds of said note for $300, dated May 17, in the note-book of the Herbo-Phosa Com- 1911, or of payment of the proceeds, or any pany: part thereof, to any person upon the books of the Herbo-Phosa Company, or any other record, except as above stated of the transactions described in this agreed statement of facts upon the books of the Herbo-Phosa Company. $2564.24. Date: May 17, 1911. Time. Acct. of Congdon Suit. "There was also a record made of the payment of interest upon both the principal and renewal notes in the regular books of the company, viz., the cashbook, petty ledger, and checkbook. "That said note for $300 and the renewal thereof is the note hereafter referred to in paragraph No. 17. "There is also no record upon any of the books of the Herbo-Phosa Company of any claim on the part of said Ann E. Congdon, as administratrix as aforesaid, or of any judgment being obtained upon said claim against the Herbo-Phosa Company. This is the first tort action that the Herbo-Phosa Company has ever had and the only judgment that has ever been obtained against it in any tort action. "(13) That said certificate of deposit No. 814, unchanged, and with the consent of said Lewis A. Waterman and said Ann E. Congdon, the administratrix of John E. Whipple aforesaid, still remains on deposit with the Westminster Bank, pledged as collateral security for the payment of said renewal note. "(14) That, except as set forth, no payment of the judgment aforesaid or satisfaction of the execution thereon has been made. Where Payable. When Due. Where Payable. When Due. Where Payable. Westminster Bank. Amount. Where Payable. Amount. On What Account. Remarks. Renewed Nov. 17, 1911. On What Account. Remarks. Renewed Nov. 17, 1911. On What Account. Congdon Case. When Due. On What Account. When Due. "(15) That there has not been, and that there does not now exist, any agreement or understanding between the Herbo-Phosa Company, the Westminster Bank, Lewis A. Waterman, individually or as attorney for "There is no record of the receipt by the any person, Ann E. Congdon, administratrix Herbo-Phosa Company of the proceeds of as aforesaid, or either of them, or any persaid note for $2,564.24, dated May 17, 1911, son on behalf of them, or any of them, or of payment of the proceeds, or any part whereby the payment in full or in part therethereof, to any person, or of the receipt of of said notes, or renewal of them, or sub Phosa Company shall be contingent upon | provision of the policy: 'No action shall any happening whatever, or whereby, in any lie against the company as respects any contingency, the Herbo-Phosa Company shall loss or expense under this policy unless it receive any rebate, discount, payment back, shall be brought by the assured himself to or credit on account of said transaction. reimburse him for loss or expense actually "(16) That the Herbo-Phosa Company paid sustained and paid in money by him after in cash seven dollars and seventy cents ($7.- trial of the issue.' 70) for witness fees in defending the action of Ann E. Congdon, administratrix, against it as aforesaid. "Herbo-Phosa Company, "By Lewis A. Waterman, "Alfred S. & Arthur P. Johnson, Attys. "Philadelphia Casualty Company, "By Greenough, Easton & Cross, Attys." [1] The policy issued by the defendant company is undoubtedly one of indemnity, under which a payment by the insured is a necessary condition precedent to recovery. The defendant's policy also contains the provision that "no action shall lie against the company as respects any loss or expense under this policy unless it shall be brought by the assured himself to reimburse him for loss or expense actually sustained and paid in money by him after the trial of the issue." The courts have held that a payment in cash is not necessary and may be otherwise made, as, for instance, by a note, provided that the judgment against the insured is extinguished, and the transaction is in good faith. In fact, the two cases relied upon by the defendant in its brief, Kennedy r. "(17) That Alfred S. Johnson and Arthur P. Johnson were employed by the HerboPhosa Company as attorneys at law to defend the action of Ann E. Congdon, administratrix, against it as aforesaid. That said Alfred S. Johnson and Arthur P. Johnson rendered to the Herbo-Phosa Company a bill for $300 for their services therefor, which was a reasonable amount for the services rendered. That on May 17, 1911, the HerboPhosa Company, by James S. Barry, its president and manager, and Byron A. Remington, its treasurer, made its note for three hundred ($300) dollars, payable to said James S. Barry six months after date. Said James S. Barry indorsed said note and delivered it to the Mechanics' National Bank and received therefor from said bank the sum of three hundred ($300) dollars in cash, which he paid to said Alfred S. and Arthur P. Johnson, and the said Alfred S. Johnson and Arthur P. Johnson received it as full | Fidelity & Casualty Co., 100 Minn. 1, 110 N. payment for their services to the HerboPhosa Company aforesaid. That said Alfred S. Johnson guaranteed to the Mechanics' National Bank the payment of said note. That at the maturity of said note it was paid by a renewal note of like tenor in all respects, due six months thereafter, and payment thereof guaranteed to said bank by said Alfred S. Johnson in same manner as in case of the original note. That without such or other adequate security the Mechanics' National Bank would not have taken said note and the renewal thereof and paid over cash upon it as aforesaid. That said renewal note is not yet due, is unpaid, and that there has not been at any time, and is not now, any understanding or agreement between the Herbo-Phosa Company, the Mechanics' National Bank, or said Alfred S. and Arthur P. Johnson, or either of them, whereby the payment in full or in part of said notes, or renewal of them, or substituted obligations for them, by the Herbo-Phosa Company shall be contingent upon any happening whatever, or whereby, in any contingency the Herbo-Phosa Company shall receive any rebate, discount, payment back, or credit on account of said transaction. "(18) That the right of the Herbo-Phosa Company to recover in the case at bar against the Philadelphia Casualty Company the whole or any part of the amounts claimed in the declaration in said case shall depend solely upon whether the Herbo-Phosa W. 97, 9 L. R. A. (N. S.) 478, 117 Am. St. Rep. 658, 10 Ann. Cas. 673, and Stenbom v. Brown-Corliss Engine Co., 137 Wis. 564, 119 N. W. 308, 20 L. R. A. (N. S.) 956, fully recognize the principle that a payment by note. if done in good faith, is sufficient and amounts to a loss to the insured. In the case of Stenbom v. Brown-Corliss Engine Co., the defendant was adjudged a bankrupt, and a receiver in bankruptcy was duly appointed subsequent to the commencement of the suit. and before it had been carried to judgment. The claim could not be proven in bankruptcy before judgment thereon was obtained, and when the judgment was rendered the time within which it might have been filed in the bankruptcy proceedings had expired. After the rendition of judgment, an execution was issued and returned unsatisfied, whereupon, proceedings being instituted, a receiver of the Brown-Corliss Company was appointed by a circuit court commissioner. The receiver then filed a petition in the bankruptcy court and obtained an order upon the trus tee in bankruptcy to turn over to him the indemnity policy. Then the receiver, upon a petition to the circuit court representing that the plaintiff was ready and willing to compromise for $5,000, and would accept the re ceiver's promissory note for that sum in settlement of the judgment, obtained an ex parte order directing the receiver to make the note and begin a suit against the insurance company. After such suit had been |