Shotwell v. The Jefferson Insurance Co. 4. By force of the agreement between the insured and S., the latter is entitled to the benefit of the sum recovered; and becomes equitable assignee of the right of action accruing from the loss by fire; the policy in force at the time of the loss having been obtained by the insured pursuant to the said contract between her and S., and the latter having paid to the insured the premium thereon. (Before HOFFMAN, WOODRUFF and PIERREPONT, J. J.) Heard, May 10th; decided, July 28th, 1859. THIS case comes before the Court on an appeal by the defendant from a judgment entered in favor of the plaintiff for the sum of $2245, with costs. The action was tried before Mr. Justice PIERREPONT without a jury on the 4th of November, 1858, a trial by jury having been waived. The action was commenced March 21st, 1857, and is brought upon a policy of insurance executed by the defendants, to indemnify one William Shotwell against damage by fire, to certain buildings situated at Macon, in the State of Georgia, and alleged to have been damaged by fire to the amount of $2,000, while the policy was in force. The policy was produced at the trial, and is dated the 2d of November, 1844; its material portions are as follows: "No. 45,098. "The Jefferson Insurance Company in the city of New York. By this policy of insurance, the Jefferson Insurance Company, in consideration of $55, to them paid by the assured hereinafter named, the receipt whereof is hereby acknowledged, do insure William Shotwell, loss, if any, payable to Henry R. Shotwell, against loss or damage by fire to the amount of two thousand dollars on his frame buildings, situated at the corner of Third and Mulberry streets, in Macon, Georgia, and marked Nos. 1, 2, 3 and 4, on plan and application filed, No. 8,000, in this office; said buildings privileged as extra hazardous stores and dwellings. $2,000 one year at 23 per cent, $55." "May 29th, 1854. "This Company recognize H. R. Shotwell as owner. "J. MILTON SMITH, Secretary." Shotwell v. The Jefferson Insurance Co. "November 14th, 1854. "This Company recognizes Louisa Shotwell as owner. “M. TUCKER, President." "And the Jefferson Insurance Company above named, for the consideration aforesaid, do hereby promise and agree to make good unto the said assured, his executors, administrators and assignees, all such loss or damage not exceeding the amount insured, as shall happen by fire to the property above specified, from the 2d day of November, 1844, at twelve o'clock at noon, unto the full end and term of one year thence next ensuing, which term will expire on the 2d day of November, 1845, at twelve at noon, the said loss or damage to be estimated according to the true and actual cash value of the said property at the time the same shall happen, and to be paid within sixty days after due notice and proof thereof made by the assured, in conformity to the conditions annexed to this policy. The plaintiff also gave in evidence certain renewal receipts, continuing the said insurance, in the name of William Shotwell, down to January 12, 1855, and in the name of the plaintiff (who had become the owner of the insured premises) from that time, the last three of which receipts are as follows: "No. 92,627. "Received, New York, January 12th, 1854, of William Shotwell, sixty dollars, being the premium on two thousand dollars insured under Policy No. 45,098, which is hereby continued in force for one year, to wit, from the 12th day of January, 1854, until the 12th day of January, 1855, at noon. "MACON, GEO. "(Attest,) "MOSES TUCKER, President. J. MILTON SMITH, Secretary." "Received, New York, January 12, 1855, of Louisa Shotwell, sixty dollars, being the premium on two thousand dollars insured under Policy No. 45,098, which is hereby continued in force for one year, to wit, from the 12th day of January, 1855, until the 12th day of January, 1856, at noon. Shotwell v. The Jefferson Insurance Co. "No. 102,607. "Received, New York, February 5, 1856, of Louisa Shotwell sixty dollars, being the premium on two thousand dollars insured under Policy No. 45,098, which is hereby continued in force for nine months, to wit, from the 12th day of January, 1856, until the 12th day of October, 1856, at noon. "MACON, Geo. "MOSES TUCKER, President. "(Attest,) J. MILTON SMITH, Secretary." The Policy contained the following clauses: "And this Policy is made and accepted in reference to the proposals and conditions hereto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for. "The interest of the assured in this Policy is not assignable, unless by consent of this corporation manifested in writing; and in case of any transfer or termination of the interest of the insured, either by sale or otherwise, without such consent, this Policy shall from thenceforth be void and of none effect." Among the conditions annexed or attached to the Policy, were the following: "Property held in trust or on commission must be insured as such, otherwise the Policy will not cover such property; and in case of loss, the names of the respective owners shall be set forth in the preliminary proofs of such loss, together with their respective interests therein. "The interest of the assured in this Policy is assignable, provided the consent of the Company be first obtained to the transfer. Notice of such assignment shall be given before any loss may have happened; and this Company, when so notified, may elect either to continue the insurance, and express the same by indorsements on this Policy, or refund a ratable proportion of the premium for the time of the risk unexpired, and cancel the Policy. "Persons sustaining loss or damage by fire, shall forthwith give notice thereof in writing to the Company, and as soon after as possible they shall deliver as particular an account of their loss and damage as the nature of the case will admit, signed with Shotwell v. The Jefferson Insurance Co. their own hands. And they shall accompany the same with their oath or affirmation, declaring the said account to be true and just. "All fraud or false swearing shall cause a forfeiture of all claims on the insurers, and shall be a full bar to all remedies against the insurers on this Policy." The following agreement was given in evidence: "GEORGIA, BIBB COUNTY: "KNOW ALL MEN BY THESE PRESENTS: That I, Louisa Shotwell, of the State of Illinois, am held and firmly bound by these presents, to Dr. E. L. Strohecker, of said county of Bibb, in the sum of five thousand five hundred dollars, to the true and faithful payment of which sum to him, his heirs, executors, administrators, and assigns, I do hereby bind myself, my heirs, executors, and administrators. "In testimony whereof, I have hereunto set my hand and seal this twelfth day of May, 1855. "Now the condition of this obligation is such that, whereas I have this day sold to the said Strohecker a certain lot or parcel of land in the city of Macon, known and distinguished as 'the Shotwell Lot,' situate on the corner of Mulberry and Third streets it being part of lot No. 8, and square No. 22, according to the plan of said city of Macon-embracing one hundred and five feet front, more or less, on Mulberry street, and running back on the upper line to the small alley or passage running across from Second to Third street, and running back on the line of Third street to the property now owned by the Messrs. Tracy, which lot is the same now occupied by the said Strohecker and S. Day, on Mulberry street, and Binder and Miller, on Third street, and which is actually and fully described in a deed to me made by Henry R. Shotwell, and now of record in the Clerk's Office of the Superior Court of said county of Bibb, for the sum of five thousand and five hundred dollars, in the following payments, to wit: twenty-five hundred dollars in cash, and the remainder, in two equal installments of fifteen hundred dollars each-one due at twelve months from date, and the other at twenty-four months from date; for which said installments, he, the said Strohecker, has made and delivered his two several notes now in my possession-both bearing even date with these Shotwell v. The Jefferson Insurance Co. presents-one due at twelve months, and the other at twentyfour months; the last named bearing interest from date, payable semi-annually; now, therefore, if he, the said Strohecker, shall well and truly pay to me the said several promissory notes at maturity, and upon such payments being so made, I shall make and deliver to him good warranty titles to the property hereinbefore described; then this obligation shall be null and void, else remain in full force and effect. "Signed, sealed and delivered, the day and year above written." The finding of the Judge was as follows: "First. That the said defendants did, on the 5th day of February, 1856, insure the said plaintiff against loss or damage by fire to the said premises in the manner set forth in said Policy and receipts. "Second. That before the said contract of insurance was last renewed as aforesaid, the said plaintiff, by virtue of the said agreement dated May 12th, 1855, contracted to convey the said premises unto Edward L. Strohecker, who thereupon, and by virtue of the said contract, entered into the possession and enjoyment of said premises, and has ever since so continued. "Third. That the said defendants had no notice of such contract of sale, or of any conveyance by the said plaintiff of any interest in the said premises, or of any change of possession thereof, until after the said 4th day of December, 1856. "Fourth. That on the 27th day of September, 1856, the said premises were, without fraud or fault on the part of the insured, damaged by fire to the amount of more than the sum of two thousand dollars, and that the said preliminary proofs of such loss and damage were furnished unto the said defendants as early as the said 4th day of December, 1856. "Fifth. That at the time the said contract of May 12th, 1855, was executed by the plaintiff and delivered unto the said Strohecker, he, in pursuance of the terms thereof, paid unto the said plaintiff the sum of two thousand five hundred dollars in cash, and also his two certain promissory notes, each for the sum of $1,500, by him made payable to his own order, and by him indorsed, both dated the day last aforesaid-one payable twelve months after date, and the other payable twenty-four months |