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Among the items of loss allowed by the jury, were the advances made by the plaintiff on certain piano fortes, watches, &c. The judge charged the jury, that the plaintiff, had a right to recover to the extent of his advances on those articles, and the defendants insist, that the charge was in this respect er

roneous.

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"The third condition annexed to the policy, declares, that " goods held in trust or on commission," shall not be covered, unless they are insured as such. The articles in question, were not the property of the plaintiff; they were held by him" in trust or on commission." He had a lien upon them for advances, which could have been defeated, by a repayment of the money advanced. His interest was not absolute, but conditional; and it could not be covered by a mere insurance upon his own property If the goods in question were to be covered by the policy, they should have been specified in it as goods held in trust or on commission, and it would be violating the plain terms of the third condition annexed to the policy, if this claim were to be allowed. The Judge's charge was, therefore, in this respect erroneous, and there must be a new trial, unless the plaintiff will strike from the amount of his verdict, the advances upon the property deposited with him. In that case, the verdict for the residue may stand, and the plaintiff can enter up his judgment for that

amount.

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The form adopted say the court in De Forest v. The Fulton Fire Ins. Co. supra, seems appropriate to the factor's employment, and renders an insurance by him in any other form, not only inconvenient, but impracticable; or extremely difficult in practice. He holds himself out to the world as a commission merchant, and solicits the consignment of all who may have goods for sale. The purpose of the consignments is the sale of the goods, and the merchandise of different employers, passes in succession under his operations and agency. The goods of A., which occupy a place in his warehouse, at the present moment, may be sold before the close of the day, and the goods of B. take their place to-morrow; and in the course of thirty days, as many different lots of merchandise may have had the shelter of his warehouse, and been exposed for different periods of time, to the risk of loss or damage by fire therein.

How is the factor to protect these different interests by insurance? If he is bound to specify each, he must either open a separate policy on each, or cause a specification of each to be endorsed on a general policy covering the goods of whomsoever it may concern: either of which methods would be attended, in an extensive establishment, with insuperable difficulties, and neither of them fully accomplish the object.

"These considerations may have led to the form of insurance now in use, by a general policy like the present, in the name of the commission merchant, on all goods that may be in his warehouse, at any time within a given period, to a specified amount, whether held by him as owner, or in trust, or on commission. Such a contract meets the exigencies of the case; for under it the insurers will be answerable for loss or damage by fire, within the terms of the insurance, to whatever merchandise or property may happen to be in the

warehouse at the time of the fire, and be then held by the assured, as general or special owner, without regard to the time of his receipt of the goods in store, or the persons who may be interested in them.

It insures the

"The policy effected by the insured in this case, was manifestly intended for such a contract, to which it seems to us, fitly adapted. plaintiffs for one year upon all goods, wares and merchandise, in the warehouse which it describes, which shall belong to them, or be held by them in trust, or on commission, to the amount of $10,000 and it is admitted, that the surable interest of the assured in their own goods, and the goods of their principals, which were in the warehouse at the time of the fire, was covered by the policy. And if the plaintiffs, as consignees, had an insurable interest in the goods held by them on commission, to the extent of the value of the consignments, they were undeniably protected by the policy, and a more particular specification of the interest of the consignees, if otherwise necessary, was dispensed with by the parties to the contract.

In the case of De Forest v. The Fulton Fire Ins. Co. 1 Hall, 84, 136, Mr. Justice Oakley makes the following observations.

"In the policies now before us, it is stipulated, that the assured shall notify to the company, any other insurance, which they had effected, or should effect, on the property insured. The defendants have provided, as far as they deemed it expedient, against double insurance. They were apprized that other persons, than the assured, were insured in the property insured: and they might have guarded against the acts of the consignors of the 'goods held on commission,' by requiring the assured to disclose the names of such consignors, from time to time, as their consignments came under the protection of the policies.

"There is another view of this case, which will also result in establishing the liability of the defendants, to the full value of the 'goods held on commission' by the plaintiffs. In marine policies, effected in the name of a particular person, where it is intended to cover the interest of other parties, it is usual to insert the clause 'for whom it may concern.' And it seems well established, that a policy containing such a clause, or other equivalent ones, will protect the interest of any person in the property insured, in whose behalf the assured has a right to act as agent.

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“Now, whatever doubt may be raised as to the extent of the insurable interest of a factor; it cannot be questioned, that as agent of his principal, he may effect insurance, for his benefit. The words 'goods held on commission' in these policies, are equivalent to the clause, 'for whom it may concern,' usually inserted in marine policies. They contain a distinct declaration to the insurers, that the assured were acting for the benefit of their consignors: and that other interests, than their own, were to be protected by the policies. "In this view of the policies, it would be necessary to consider, how far the plaintiffs could recover upon the pleadings in this case, beyond the extent of their own absolute interest; or how far the averment of interest in themselves is supported by proof of interest in their consignors. In Bell v. Ainsley, [16, East, 141.] it is said, that since the statute 19 Geo. 2. c. 27. (which declared in

surances without interest, by way of gaming, void,) 'the constant practice has been to state in whom the interest is, and for 'whom the policy was made, and to make that statement according to real fact.' And in that case it was held, that joint owners of property, insured for their joint use, cannot recover on a count, averring the interest to be in one of them.

"In Cohen v. Hannam, [5 Taunt. 107.] the same rule, as to the averment of interest, was laid down.

"If the present case was governed by the rule above referred to, it would follow, that upon the declaration, as it now stands, there could be no evidence admitted, of any interest in the goods insured, other than that of the plaintiffs. If the cause turned upon this view of the policies, it would be necessary to consider, how far the rule, as to the averment of interest above alluded to, has its origin in the English statute in restraint of gaming insurances. I prefer, however, that my opinion should rest on the broad ground, that the plaintiff had an insurable interest in the 'goods held on commission,' to their full value, without regard to their lien; and if I am correct in this, there can be no question as to the pleadings in the case.

"The result of our opinion is, that there must be judgment for the plaintiffs for the amount of the entire loss sustained on the goods."

In the case of the Columbian Ins. Co. v. Lawrence, 2 Pet. R 25, the application was in these words: "What premium will you ask to insure the following property, belonging to Lawrence & Poindexter, for one year, against loss or damage by fire, on their stone mill." It appeared on the trial that Lawrence & Poindexter held one third of the property in fee, and the other two thirds as assignees of a mortgagee, and a moiety of the whole of the title was held under a contract which had expired. The court decided that the plaintiff had an insurable interest, but that the description of their interest in the property was material to the risk, and not truly stated.

A contract of insurance respecting one subject matter cannot be enforced as comprising another subject matter not within the intent of the parties. Goods, the property of the plaintiff, were expected, and these were insured. No goods of that description, were shipped, and although goods of another description, the property of other persons, were shipped, and in which the plaintiff might have acquired a special interest and control; yet of these the plaintiff had no knowledge; nor had he any intention to insure them, either for the shippers or on his own account: Held, that the plaintiff was not entitled to recover. Toppan v. Atkinson, 2 Mass. 365; Martin v. Sitwell, 1 Show. 156, cited in Park 368, and in Marsh. 99; Hughes, (Am ed.) p. 335. Yet it is every day's practice, to insure goods before the goods are bought; consequently, an averment in a declaration on a policy of insurance, that the plaintiff was interested at the time of effecting the policy, and also at the time of the loss is satisfied by proof of interest at the time of the loss; the other part of the allegation being immaterial, and consequently, not necessary to be established by proof. Hughes, (Am ed. p. 42.)

4. General Construction of a Policy.

Where the written clause in a policy, is inconsistent with the printed parts of it, the former will be deemed and taken as the contract of the parties. Coster v. Phoenix Ins. Co., 2 Wash. R. 51; 16 Mart. Lou. R. 681.

A policy of insurance "is to be construed according to its sense and meaning as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally in respect to the subject matter, as by the known usage of trade or the like acquired a peculiar sense distinct from the popular meaning of the same words; or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special and peculiar sense. The only difference between policies of insurance and other instruments in this respect is, that the greater part of the printed language of them, being invariable and uniform, has acquired from use and practice a known and definite meaning; and that the words superadded in writing (subject indeed always to be governed in point of construction by the language and terms with which they are accompanied) are entitled nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formula, adapted equally to their case and that of all other contracting parties upon similar occasions and subjects.' Per Ld Ellenbo rough in 4 East 135.

Though the representation in the party's application for insurance is not strictly accurate and full, if fairly made, and true in substance, it will not vitiate the policy. Per Wilde, J. in 10 Pick. 535. Although the description in the application may differ very considerably from the actual state of the property, if such variation were not fraudulently intended, and did not in fact effect the rate of insurance, or change the actual risk, it can scarcely be deemed material, and is not a breach of the contract. Per Sutherland, J. in 7 Wend. 72.

Goods insured were described in the policy to be in the dwelling-house of the insured; the insured had only one room, as a lodger, in which the goods were:-Held correctly described within the condition, that "the houses, buildings, or other places, where goods are deposited and kept, shall be truly and accurately described;" such condition relating to the construction of the house, and not to the interest of the parties in it. Friendlander v. London Ass. Co., 1 M. & Rob. 171-Tenderden.

5. Particular Clauses.

The words "a frame house filled in with brick," may be shown by parol

evidence to have acquired by the custom or usage of insurers and insured a particular and technical meaning, different from that which the words might generally be understood to import. They are not definite and unequivocal in themselves; they may apply to the partitions as well as to the external frame of the house. Fowler v. Ætna F. Ins. Co., 7 Wend. 270.

If any terms in a policy have by the known usage, or by use and practice, as between assurers and insured, acquired an appropriate sense, they shall be construed according to that sense and meaning. Coit v. The Commercial Ins. Co., 7 J. R. 385; 8 Wend. 160; 1 Hall, 619; 10 Mass. 26.

The terms "stock in trade" as used in a policy are to have a liberal construction; and the meaning of the terms will vary according to the business to which they are applied. Thus, where the plaintiff was insured $1000, on his stock in trade, as a baker; and Held, that the policy protected every thing which was necessary for the carrying on of the plaintiff's business; and such ought to be the construction in all cases relating to the pursuits of mechanics. Moandinger v. The Mechanic's F. Ins. Co., 2 Hall, 490. The stock of a merchant comprehends articles entirely different from the stock of a farmer; but the terms in all cases, apply to personal property only. ib.

Mem. clause. The effect of the mem. clause in a policy is not to enlarge the perils underwritten against, but to exempt the insurers from certain losses, within those perils. Potter v. The Suffolk Ins. Co., 2 Sum. R. 197.

(a) Usurped power.—The American as well as the English policies usually contain the following exception-"No loss or damage by fire happening by any invasion, foreign enemy, or any military or usurped power whatsoever will be made good by the company."

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By the terms of the London Insurance Co., and some others, it is provided' that they shall not be liable for any loss or damage happening by invasion, foreign enemy, or any military or 'usurped power' whatsoever. The words 'usurped power' would be applicable to an invasion of the kingdom by foreign enemies, or an internal armed force in rebellion pretending to assume the power of government. The terms do not extend to the acts of a mob riotously assembled, and therefore, where a malting-house was burned down by a mob at Norwich who had riotously assembled in consequence of the high price of provisions, the loss was held to be within the policy. Drinkwater v. London Assurance Co., 2 Wils. 363. The Sun Fire Ins. Office has used words of a larger and more extensive import; for the proprietors of that company declare that they will not pay any loss or damage by fire happening by an invasion, foreign enemy, civil commotion, or any military or usurped power whatsoever. The words 'civil commotion' extend to an insurrection of the people for the purposes of general mischief; and on this ground, the firing of the premises of Mr. Langdale, the distiller, during the riots of 1780, was held not to be within the policy. Usurped power, says Lord Mansfield, in this case (Langdale v. Mason, Park, 657. Marsh. Ins. 794,) takes in rebellion, acting by usurped powers amongst themselves. From a foreign enemy the office is secured. But what is a civil

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