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loss by fire had occurred. Heild,\hMX the company was liable, a parol contract
of insurance being valid under the New York decisions. 1871. Fitk v. Cottenct
(44 N. Y. 588) IV, 715. See supra, pL 6.

34. Application — pleading. A policy of fire insurance was indorsed with
the following condition : ** The basis of this contract is the application of the
insured, and if such application does not truly describe the property, this pel-

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Icj shall be null and Toid/' The application concluded as follows : '* And the
■aid applicant hereby covenants and decrees * * * that the foregoing is a just,
full and true exposition of * * * the condition, situation and risk of the prop-
erty to be insured, so far as the same are known to the applicant and are mate-
rial to the risk." In an action on the policy, hM, that the application was a
part of the contract, and in the nature of a warranty or condition precedent ;
also, that it was necessary for the plaintiff to set out the application in his
complaint, and aver and prove the observance of the warranty or condition.
1872. BoblfUt V. 7he Liverpool and London and Qlcbe Imuranee Company (66
N.C.70), Vin,494.

36. What polioy avera. The Baltimore Fire Insurance Co. issued a policy
of insurance to railway company, insuring " two Murphy & Allison passenger
cars, contained in car house No. 1, and engine, J. H. Nicholson, contained in
engine house No. 2." One of the cars and the engine, described in the policy,
having been subsequently damaged by fire while making a regular trip on the
line of the railway, in an action on the policy, held, that the words " contained
in," were designed to restrict the risk to the property, while actually inside of the
car and engine houses, specified in the policy ; and that the railway company
could not recover for the loss. 1869. AnnapoUs, etc., B, B, Co. v. BaUimore
F%re Ineuranee Co. (82 Md. 87), HI, 112.

36. What polioy oorera — evidence of intent. A policy of insurance on a
building, and " the stock, lumber and goods manufactured, and in process of
manufacture in said building," will not cover lumber and stock piled in the
adjoining yard, nor is parol evidence admissible to show the intent of the parties
to include such lumber and stock. 1871. Iforth Ameriean lire Ineuranee
Company v. Throop (22 Mich. 146), VU, 638.

37. A renewal of a policy of fire insurance is, in effect, a new contract of
insurance, and, unless otherwise expressed, on the same terms and conditions
as the original policy ; and a notice that the insured premises had become
vacant, required and given under the original policy, should be given again
under the renewed policy, the same state of vacancy continuing. 1870. Mori-
ford Five Ins. Co, v. Walsh (54 UL 164), V, 115.

38. Indorsements — efiect of. A obtained a policy of fire insurance on his
museum building and collections, and, before the expiration of the policy, he
sold the insured property to B. The acting secretary of the insurance company
then indorsed on the policy the words " loss. If any, payable to B." Afterward
B sold the museum collections, and the president of the company made an addi-
tional indorsement on the policy in the words " this policy is hereby changed
to cover chairs, benches and furnaces, instead of museum collection, which is
removed." Meld, that the indorsements constituted valid contracts of insur
ance and that the company were liable thereon. 1871. Northrup v. The Mie-
sisHpvi VaUey Ins. Co. (47 Mo. 485), IV, 887.

39. Promise to pay — mutuality. A policy of insurance on a cargo did not
cover the loss on cider frozen in the vessel ; but the company promised the
insured if he would go and take charge of it, and sell it to the best advantage,
they would pay the deficiency, whereupon the insured complied, but the com

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panj decAned to -paj. Held, ih»A the insared ooold xeoover the deiciencj bj
action. 1871. WtlUts ▼. Sun Mutual Ins. Go, (45 N. Y. 45), VI. 81.

40. Partncnblp property — refonnliig policy. Where a policy of insanmee,
negotiated on behalf of a firm hy an IndiTidoal partner, ie made oat by mistake
in the name of the partner applying instead of the partnership, a oonrt of equity
will decree its reform so as to cover the partnemhip interest, even after loss.
1869. Eeith v. Globe In$, Co, (52 IlL 618), IV. 684.

41* Policy — enor In. The partnership property of A & B, partners, was
insured by defendants. A, haying purchased B's interest in the property,
applied to defendants' agent for re insurance. The agent, knowing of the sale
from B to A, promised to have the property re-insured in A's name. Subse-
quently he gave to A a paper, which the latter supposed to be a new policy,
and for whidi he paid the regular premium and laid away without examining.
The paper was in reality only a renewal of the old policy to A & B. Loss hav-
ing occurred, held, that the company was liable in a suit in A*s name. 1870.
Fierce v. ITaehua Ine, Co. (60 N. H. 297), IX, 285.

42. Insurance on agent's property. A fire insurance company issued a pol-
icy of insurance on the goods of its agent who, on the day of its receipt, made
an entry in his book of accounts with the company of the amount chargeable
against him for the premium. He forwarded no letter of acceptance nor any
part of the premium, inasmuch as it was not the custom to forward remittances
pertaining to his agency until the end of the month. The next day the goods
were destroyed by fire, whereupon he immediately announced the loss to the
company. Held, that the company was liable on the policy. 1871. Lunggtraee
V. German Insurance Co, (48 Mo. 201), VIII, 100.

8. Powers of agents,

43. When company bonnd by knowledge and acts of agents. The defend-
ants issued a policy of insurance on plaintiff's factory upon a written applica-
tion, signed by him, wherein it was set forth, in answer to printed interroga
tories, that the premises were worked during certain hours, that a night-
watchmar was always on duty, and that there was a force pump on the
premises for putting out fires, and that it was always in condition for imme-
diate use. The defendant's agent who effected the insurance was informed by
the plaintiff at the time, that the factory was not run during the winter season,
and that there was watchman kept, nor pump ready for use. The
agent himself filled up the application, and wrote down such portion of plain-
tiff's answers as he considered material. The policy provided that *' the com-
pany will be responsible for the accuracy of surveys made by its agents." The
factory having been burned during the winter season, the company denied its
liability on the ground that the undertaking of the plaintiff regarding watch-
man and pump had not been complied with. Held, tl^at the defendants were
liable. 1870. May y. Buckeye Mutual Ins. Co, (26 WiB.^l),m, 7^,

44L The .Stna Insurance Company issued its policy of fire insurance to A,
containing a provision that the " application • • • should be considered a
part of this policy and a warranty bv the insurfd." The application contained

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the following interrogatory and corresponding answer: 9. Incumbrances, if
any, state the amoant. Is there any insarance by the mortgagees ? State the
amount 9. '^Jfo" It appeared that there were then two mortgages on the
premises ; that A told the agent of the company who negotiated the insurance
of these incumbrances, and that the answer ** no " was given by the advice and
consent of the agent, because the mortgagees had no insurance. Held, that the
acts of the agent bound the company, and the policy was valid. 1870. .JStna
LiM Stock V. (HmaUad (21 Mich. 246), IV, 488. See tupra, pi. 1.

46. Knowledge oommonioated to agent A policy of insurance was issued
on an application filled out by the agent. In it was the statement that the
property was incumbered for a certain sum only and it was provided that the
statements should be regarded as warrantees. The property was incumbered
beyond the sum named. HM, that parol evidence was admissible to prove
that the agent was correctly informed concerning the incumbrances at the time
of taking the risk, and that he prepared the application after such information
was given him. 1871. North American Insurance Co, v. Throop (22 Blich.
146), Vn, 688.

4. Inmrable interests.

46. A qoalified interest in property, or any interest which would be recog-
nized by a court of law or equity, is an insurable interest. 1871. Warren v.
Davenport Fire Insurance Co, (31 Iowa, 464), VII, 160..

47. The owner of stook in a corporation, oiganlzed for pecuniary profit, has
an Insurable interest in the corporate property. lb,

48. On porqpezty " sold bat not removed." A policy of fire insurance was
issued on property " sold but not removed." A loss having occurred, in an
action by the insured, held, that property, the legal title to which had passed
to the vendee, but which had been left in the possession of the insured by
consent of the vendee, free of charge, was covered by the policy ; and that the
insured could recover, in trust for the vendee. 1871 . Waring v. 7 he Indemnity
Fire Insurance Co. (46 N. Y. 606), YI, 146.

49. Judgment oreditort. A judgment is a general and not a specific lien,
and the Judgment creditor has no insurable interest in specific property of
his debtor. 1869. Orevemeyerv, Southern Mutual F^e Insurance Co. {fi2Peun.
St 840), 1,420.

60. Consignee. In an action on a policy of insurance, the petition alleged
that the plaintiffs, being the owners of a quantity of ice, consigned it to S. &
E. to be sold by them on commission ; that plaintiffs ordered the consignees
to have the ice insured, which they agreed to do, but, instead of insuring it in
the names of plaintiffs, they made the insurance in their own names ; that a
portion of the ice was lost by a peril provided against, and the consignees
assigned the policy to plaintiffs. Defendants demurred, on the ground that
the consignees had ilb insurable interest in the ice, and the demurrer was sus-
tained. EM, error, because when a consignee accepts a consignment, with
instructions from his principal to insure for their benefit, it becomes his duty
to insure, andif he neglects to do so, and a loss occurs, he is liable. 1872.
Show V. jStna Insurance Co, (49 Mo. 678>. VIII, 150, and ttoU, 151.

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61« Mortgages. In a policy of fire inaiiruice, wliioh provides that if the
interest of the insured in the property be any other Uian the entire, uncondi-
tional and sole ownership, it must be so expressed in the policy, the interest
of a moitgagee is sufficiendj described bj calling him " mortgagee." 1871.
WtUiafM V. Eoger WUliams Imurancs Co, (107 Mass. 877), IX, 41.

62. L. & S., the mortgagees of certain premises, assigned the mortgage

and indorsed the mortgage notes to plaintiff, and procured the premises to be
insured in their names as mortga^^eee, loss, if mij, payable to plaintiff. Some
of the notes were not paid at maturity, the others had not matured when loss
occurred. Held, that L. & S. had an insurable interest, and that plaintiff could
recover. lb,

63. proof that the insured was in pos s e ss ion of the premises, claim-
ing and occupying it as owner, is, in the absence of evidence to the contrary
prima facie evidence of title and of an insurable interest. 1873. FrankUn Fire
Ina, Co, V. Chieago Ice Co. (86 Md. lOd), XI, 469.

6. Bepreeentatioiu and eoncealmerUi.

64i A representation in an application for a policy of fire insurance need
not be both fraudulent and false to vitiate the insurance ; it is sufficient that
the representation be false. 1873. BdtbiU v. lAeerpocH^ London «£ QUibe Int,
Co. (66 N. C. 70), VIU, 404.

66. As to interest of the assured. A condition in a policy was that *' if the
interest in property to be insured be a ' leasehold ' interest, or other interest
not absolute," it must be so represented. Held, that the interest of a mort-
gagor in the mortgaged property was absolute within the meaning of the pol-
icy, and no explanation of that interest was required. 1870. Wathington Fire
Ine. Co. V. KeUy (83 Md. 431), HI, 149.

66. A mortgagor of property procured a policy of insurance thereon,

in the name of the mortgagee, in pursuance of an agreement to furnish further
security. No statement of the interest of the assured in the property was
requested when the insurance was effected, but the policy contained a clause
providing that the company should not be liable ** for losp of property owned by
any other party unless the interest of such party be stated in the policy." The
mortgagor paid the premium, and afterward paid the debt. A loss having
occurred, in an action on the policy, held, that the mortgagor could recover in
the name of the mortgagee and that the assured was not bound by the policy
to disclose the nature and extent of his interest. 1809. Nortoich Fire Int,
Co. V. Broomer (53 Dl. 443), IV, 618

57. Where a married woman insures her realty which she acquired

before coverture, the existence of the marriage relation need not be stated in
the application for a policy of insurance, which requires a statement of the
interest of assured when it is " not an absolute ownership." Her estate con-
tinues to be absolute after marriage, although the husband is entitled to a joint
occupany and a contingency by courtesy. 1869. Commercial Ine, Co, v. Spank-
neUe (53 111. 58), IV, 583.

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68. BUnreprMentation — as to interact — atrignmant. A partnership was
formed, onder which D. pat in ** liis mill property, etc., as his part of the capi-
tal of the concern/' The mill property was not conveyed to the partnership,
nor to any person in trust for the partnership. The firm applied to an* Insur-
ance company to have the mill property insared, representing it to he theirs
in their application. A policy was issued to the firm upon the condition that,
if the interest of the assured in the property he other than entire, uncondi-
tioual and sole ownership, it must be so represented to the company and so
expressed in the written part of the policy, or otherwise the policy is void.
Subsequently an assignment of the policy to D. was made with the consent of
the company. A loss by fire having occurred. In an action on the policy, held,
(1) that the policy was void from the beginning, on account of misrepresenta-
tion of the interest of the assured in the application ; and (2) that it was equally
void in the hands of the assignee, the mere assent of the assurers to the assign-
ment giving no force and vitality to the policy which was before void in the
)iands of the assignors. 1871. OUUeji^ Mrs Imuranee Oo, v. DoU (85 Md. 80),
VI, 880. /

59. Interest of assured. A person in possession of premises, under a coi|.
tract of purchase, having paid only part of the purchase-money, the rest not
l)eing due, obtained a policy* of fire insurance on the premises, and in his written
application, which was made a part of the policy, answered tlie questions pro-
pounded as follows : Question. " Is the prpperty owned and operated by the
applicant?*' Answer. "Yes." Question. "Is any other person interested in the
property; if so, state the interesfT" Answer. "No." Question. "Incum-
brance ; is there any on tne property ? " Answer. " Held by contract. Held,
that the answers were substantially true, and that the policy was not avoided
for false representations. 1871. LoriUafrd Firs 1m, Oo, v. MeOoUoch (21 Ohio
St. 176), VIU, 52.

60. Valuation when ooncluslTe. A policy of fire insurance was issued to
plaintiff, ** the amount insured being not more than three-fourths of the value
of the property as stated by the applicant." HMt that this valuation was con-
clusive, in the absence of fraud, although a subsequent proviso restricted the
whole amount of insurance, if an additional policy was obtained, to three-fourths
of the actual value of the property at the time of loss," and, although there
was a covenant in the application (but not in the policy), that such valuation
should not be conclusive. 1870. Ltics v. DoreJuster MuttuU Fire Insurance
Co. (105 Mass. 297), VII, 522.

61. proof oL A policy of fire insurance was issued to plaintiff for a sum

'* heing not more than three- fourths of the value of the property described in the
application." A subsequent proviso restricted the liability of the company to
*' three-fuurths of the actual cash value of the property insured at the time of
the loss." Held, that the valuation, which was contained in the application,
was not controlling, and that proof of the actual value at the time of the loss
was admissible. 1870. Brown v. Quiney Muittal Fire Inturanee Company (105
Mass. 896), VII, 588.

62. Statement as tonieb The application for a fire policy contained the ques-
tion, *' for what purpose the building was used," and the answer was ** tobacco

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pressing ; no manufacturing.'* But the evidence showed that in a shed attached
to the main building tobacco hogsheads were manufactured. Meld, that the
question, " whether the preparation of hogsheads was such an incident of the
business as to be included in it," was for the jurj." 1870. Sims v. SkUe Ins,
C^. (47 Mo. 54), IV, 811.

63. A policy of fire insurance was issued " on a four-story warehouse

* * ♦ first floor occupied by machinery used for making barrels, with
privilege of storing barrels on the premises, and other merchandise not more
hazardous." The policy contained a clause requiring a true and accurate de-
scription of the use and occupation of the premises under penalty of forfeiture.
The policy further declared, in printed words, that it was the intention of the
parties that in case the insured premises should be used or appropriated for
the purpose of carrying on or exercising the trade, business or vocation of (a
large number of manufactures specified therein, including) " cooper, carpenter,
cabinetmaker," * . * * "so long as the^said premises shall be wholly or in
part appropriated or used for any or either of the purposes aforesaid, these pre-
mises shall cease and be of no force or effect unless otherwise specially agreed
by this corporation, and such agreement shall be signed in writing in or on
the policy." The premises, at the time the insurance was effected, were used
for making and storing barrels as mentioned in the Vritten portion of the
policy. Subsequently small circular saws and a work-bench were introduced
and boxes were manufactured, but this kind of work had ceased from two to
four months when a loss by fire occurred. The saws and work-bench had
remained in the building and alathehad'beenput up the day preceding the fire,
for the purpose of making broom-handles and brush-blocks. In an action on
the policy, Jield, (1) that the description of property was not a coniinuing war-
ranty, but a warranty inpresenti; (2) that the policy was suspended during
the prohibited use of the premises, but was revived when the use ceased to
exist; and (8) that there was no such "appropriation" of the premises, at the
time of the fire, to a prohibited use as was contemplated in the policy or as
prevented a recovery. 1870. UtUUd SUxUs Fire and Marine Insurance Oo.
V. Kimberly (84 Md. 224), VI, 826.

64. A policy of insurance against fire was issued on a building, upon

the application of an insurance broker, who, without the owner's knowledge
or authority, stated in the application that the building was used as a machine
shop. It was, in fact, used as an organ factory, the risk on which was more
hazardous than on a mactiine shop. The owner accepted the policy, expressed
to be on a machine shop, and paid the premium. In an action on the policy
after loss, hM, that the policy was void, as the minds of the parties never met
on the subject-matter of the contract. 1871. Ooddard v. Monitor Mutual Fire
Ins. Oo, (108 Mass. 66), XI. 807.

66. Location of insured property — charge of. Defendant issued to plaintiff
a policy of fire insurance on goods " contained, in the first story of the five-story
brick building situated at No. 89 Center street." Subsequently plaintiff moved
his goods up stairs, and the agent of defendant received the renewed premium
with knowledge of the change In location of the goods, giving a receipt in the

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words "On stock * * * 89 Center street/' etc A loss by fire having
occurred while the goods were located up stairs, heid, that plaintiff could
recover. 1872. Ludwig v. The Jeraey OUy Inmrance Co. (48 N. Y. 379), VIII, 656.

66. Inoendlarism — fears o£i In an application for a policy of insurance,
the applicant stated that he did not fear and had no reason to fear an incendi-
ary fire, which was untrue. Held, that it was error to submit to the jury the
question whether an attempt to fire the building was material to the risk, it
being material as a matter of law. 1871. North American Im. Co, v. Throop
C32 Mich. 146), VII, 688.

67. Oonoealment of execution sale. A policy of fire insurance provided
that " if the interest of the insured to the property be any other than the
entire, unconditional and sole ownership of the property," it must be so repre-
sented to the company and expressed in the policy. Plaintiff effected an
insurance on property which had at the time been sold on a judgment and
execution against him, but the twelve months allowed to redeem had not
elapsed. Held, that the non-disclosure of the execution sale avoided the policy.
1871. Beaper CUy In$. Co. v. Brennan (58 111. 158), XI, 54.

6. CondUione cmd protirions in poUey.

68. As to ptLjmeiaX of premium. A policy, the premium for which had been
paid by note, contained a provision that in case the note should not be paid at
maturity, the full amount of the premium should be considered as earned, and
the policy become void while said past-due note remained over-due and unpaid ;
a loss occurred after the maturity of the note and before it was paid. HM,
that the company was not liable for any loss which occurred during the con.
tinuance of the default, but that, on the subsequent payment of the note, the
policy revived and was in force from the date of such payment. 1870. WU-
liame ▼. Albany City Ineurance Co. (19 Mich. 451), II, 95.

69. The Potomac Fire Insurance Company issued its policy of insurance

to B., stipulating therein that the company would pay all loss to the property
insured resulting from fire, and not exceeding the amount specified, during
one year from the date of the policy. There were further provisions in the
policy, expressly providing that the company should not be held liable under
the policy until the premium in full was actually paid, and that, if the premium
was not paid within fifteen days from the date of the policy, it should be null
and void. A loss by fire occurred to the property covered by the insurance
after the delivery of the policy, but before the premium was paid and before
the expiration of the " fifteen days." The insured, while the fifteen days were
fltill unexpired, tendered the amount of the premium and claimed indemnity
for the loss. Held, that actual payment of the premium, not only within the
" fifteen days " but before Um, was necessary to render the company liable under
the policy, and that the holder, not having fulfilled the conditions, could not
recover for the loss. 1869. Bradley v. Fotomac Fire Ineurance Co. (82 Md.
108), m, 121.

70. WaiTer. A policy provided that when a premium note was taken for a
cash premium, any default in its payment should operate to suspend the corn-

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panj's liability antil it should be paid. The assored gave such a note, and,
immediately after it was dae, having another policy which he dedied canceled
and the aneamed premium thereon applied to this note, and not knowing how
much would be due the company, he proposed, by letter, to pay, a^ing lor a
statement of the amount, whereupon the company at once applied upon the
note the amount in their hands and directed him, by letter, to remit the balance,
which he did by first mail ; but a loss occurred before the remittance was
mailed. BM, that the forfeiture was waived. 1870. Sim$ v. State Imurance
a>. (47 Mo. 54). IV, 811.

71. Payment. Notwithstanding a condition in a policy of insurance that
reinsurance, whether original or continued, shall not be considered as binding

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 25 of 51)