Mortgagor and Mortgagee. 69. Where mortgagor took out policy in his own name, "made payable in case of loss to mortgagee," and afterwards sold all his interest in the property; it was held that the contract was with the mortgagor, and not with the mortgagee; and that the sale of the property divested mortgagor of all insurable interest, and mortgagee could not recover. Grosvenor v. "Atlantic Ins. Co., 17 N. Y. 391; Overruling Traders' Ins. Co. v. Robert, 9 Wend. 404 (N. Y.); Tillou v. Kingston Mut. Ins. Co., 5 N. Y. 405. And reversing, 5 Duer 517; and see 1 Bosw. 469. -- 70. The policy was filled up in the name of A. Rex, mortgagee, of Philadelphia. The mortgage was made to him, but long before the insurance had been assigned to A. Rex, of Lebanon county. The application produced was A. Rex, of county, in the handwriting of an agent of the insurers. The preliminary proofs were by A. Rex, of Lebanon county, and were received by the company without objection. The referee, in making his award, decided that the intention was to insure A. Rex, of Lebanon, and that the addition of Philadelphia ” was a clerical error that might be rejected. Held, that there was no such plain mistake of fact or law, in such finding of referee, as to justify the setting aside the award. Rex v. Insurance Co., 2 Phil. 357 (Pa.) 72.— An insurance policy purported to insure S. upon certain property described as "his;" the amount, in case of loss, payable to W. In an action of assumpsit on the policy, brought by W. against the company; Held, that parol evidence was not admissible to show that W. was the real party to the contract; that the defendants had agreed to insure a mortgage interest held by him, and undertook to do so by making out the policy in the name of S., the mortgagor. Woodbury Savings Bank v. Charter Oak Fire & Marine Ins. Co., 29 Conn. 374. 73.— An assignment of a policy by the insured to a mortgagee is not necessary where the company writes across its face "Loss, if any, payable to C., mortgagee.” Keeler v. Niagara Fire Ins. Co., 16 Wis. 523. 74.- Policy was issued to one Palmer, the owner, "loss, if any, payable to plaintiff," an encumbrancer. Held, insurance was upon interest of former, and that it was the loss sustained by that interest which was to be paid to latter, and that it was not necessary to join the owner as a party. That if he had made claim defendant could have had interpleader. That plaintiff had a right to recover the whole loss sustained by the owner's insurable interest, and the balance, if any, over the extent of his lien he would hold as trustee for the owner. Cone v. Niagara Fire Ins. Co., 60 N. Y. 619. 75.- When policy is issued to a mortgagor of personal property, loss, if any, payable to mortgagee, after title of latter has become absolute at law by terms of the mortgage, and notice of amount due is filed as prescribed by the statute, the insurance is not limited to value of the equity of redemption, but covers the entire property. Smith v. Exchange Fire Ins. Co., 8 Jones & Sp. 492 (N. Y.) 71. The insertion in the policy of the words "loss, if any, payable to E. B. G., mortgagee," operates to give the mortgagee the same rights and interest in the policy which he would have, if, without such words in the body of the policy, the mortgagor had assigned the policy to E. B. G., with the express assent of the company. In an action on such policy, there being no averment that E. B. G., the mortgagee, had been paid; held, that the 76. Where loss is made payable to mortgagor alone could not recover the third party, a mortgagee, the owner and amount of the loss, so long as the mort-assured cannot maintain an action to regagee remains unpaid; and that the pay-cover a loss, while the mortgagee is unpaid. ment by the company to the mortgagor, Roussel v. St. Nicholas Ins. Co., 9 Jones & without the assent of the mortgagee, Sp. 279 (N. Y.) would not discharge the liability of the 77. Where loss is made payable to company to the mortgagee, and that mort-mortgagee, the owner and assured is not a gagee, therefore, so long as the mortgage necessary party to an action. Id. remained unsatisfied, was a necessary party to the action. Ennis v. Harmony Fire Ins. Co., 3 Bosw. 516 (N. Y.) 78.- Where loss is made payable to a mortgagee who brings suit upon the policy, evidence of admissions made by the owner - Partners and assured after the fire is not admissible. Browning v. Home Ins. Co., 71 N. Y. 508. 78a. For other cases relating to mortgagor and mortgagee, see "Mortgagor and Mortgagee," under section thirteen. 79. Partners. When underwriting for a firm, the insurers are presumed to know, and be satisfied with, each and every one of its members. They are also presumed to know, that on the death of either of two partners, the survivor, for all purposes, becomes the sole legal, and, on a favorable state of the account, the sole equitable owner of the partnership assets. They know too that on a voluntary dissolution of the firm, if one partner has drawn out more than his share, the other will thereby have been made the sole owner of the assets remaining. They therefore agree, in effect, that a transfer of interest from one partner to the other, is within the original understanding, and that it shall form no objection, in case of loss, to the right of recovery. It is an assent necessarily implied from the nature of the contract, and given in advance; and therefore requiring no subsequent notice. Wilson v. Genesee Mut. Ins. Co., 16 Barb. 511 (N. Y.) rev'd on other grounds, 14 N. Y. 418. 80.- Where a policy is issued to two persons jointly, both should join in bringing an action for a breach of the contract, and the omission to join them is a good defense, either in abatement or under the general issue. If the one partner has assigned all his interest in the policy to the other, still he must proceed in the name of the original parties, unless he can show notice of the assignment to the company, and of their assent thereto. Tate v. Citizens' Mut. Fire Ins. Co., 13 Gray, 79 (Mass.) 81.- If one partner insure the partnership property against loss by fire in his own name only, and it does not appear that the insurance was really intended for the benefit of the firm, the premium paid from the partnership funds, and the transaction subsequently ratified by the other partners, the policy will cover only the undivided interest of the partner insuring. Peoria Marine & Fire Ins. Co. v. Hall, 12 Mich. 202. 82.- Where a policy, when made, covers the interest of one partner only, the remaining interest cannot be brought Executors. within it by the partner insured subsequently becoming the owner of the whole. Id. 83.- An insurance prima facie covers only the assured's legal title, not the further equitable rights which he may have on settlement with a partner. Bailey v. Hope Ins. Co., 56 Me. 474. 84.- Where insurance is effected by a member of a firm in the firm's name upon property of the firm, and the premium therefor is paid for from funds of the firm though charged by such member to himself, the insurance will be for the benefit of the firm, though the said member intends it for his private benefit. Tebbetts v. Dearborn, 74 Me. 392. 85.- In an action on a fire insurance policy, it is no defense to show that the plaintiff partnership has not complied with the statute relating to limited partnerships. Clement v. British America Assur. Co., 2 N. Eng. Rep. 57; 141 Mass. 298. 86.- The insured may maintain an action in his own name to recover for injury to his share of the property insured, although he has subsequently taken a partner who owns an interest in the property in the business, but has not assigned or transferred the policy. *Blackwell v. Miami Valley Ins. Co., 14 L. R. A. 431; 48 Ohio St. 533; 26 Ohio L. J. 369; 21 Ins. L. J. 97; 29 N. East. Rep. 278. 86a. For other cases relating to partners, see Partners" under section five. 66 87. Executors. Executors, to whom real property is devised by their testator's will, have an insurable interest therein by virtue of the trust; and where the insurers issue a policy to the testator in his lifetime, which does not require him to show that he was owner in fee, nor forbid an assignment of the property, and after his death they renew the insurance in favor of his executors, without inquiry or representations as to their interest, the executors may recover thereon, although before the renewal their interest has been without the knowledge of the insurers, but in good faith, changed to a mortgage interest, by their selling the property, and taking back, at the same time, a purchase money mortgage. Phelps v. Gebbard Fire Ins. Co., 9 Bosw. 404 (N. Y.) 88.- A contract of insurance, being a mere personal contract, in no way at Tenants Husband and Wife. tached to or running with real property a certain individual, a change of tenants, that may be insured, does not pass with there being no provision in the policy such property either to a grantee or an prohibiting it, will not avoid the policy, heir. The executor or administrator is though the first tenant may be a carethe only one who can take the contract fully prudent and the second a grossly and enforce it. Wyman v. Prosser, 36 negligent one. Gates v. Madison County Barb. 368; aff'd in Wyman v. Wyman, 26 Mut. Ins. Co., 5 N. Y. 469. N. Y. 253. 89.- Where a person who has effected an insurance against fire upon his house, dies, the interest in the policy devolves upon his heirs-at-law, and in case of loss the damages accrue to them. Wyman v. Wyman, 26 N. Y. 253. 90. A policy agrees to make good all loss to the assured, his executors, administrators and assigns. Held, the testator dying intestate, the contract is with the administrator, and on a loss, he is the proper party to sue, notwithstanding the change of title; and he prosecutes for the benefit of those entitled to the money. Lappin v. Charter Oak Fire & M. Ins. Co., 58 Barb. 325 (N. Y.) 91.- Where policy insures A., "his executors, administrators and assigns," and assured has died previous to fire, action for the loss is properly brought in name of the administrator. Germania Fire Ins. Co. v. Curran, 8 Kans. 9. 96. A lessee not compelled nor authorized to obtain insurance for the benefit of lessor had obtained insurance, loss payable to lessor, and afterwards assigned his lease to a third party. Held, no recovery could be had on the policy by lessor (nor, it seems, by lessee). Hidden v. Slater Mut. F. Ins. Co., 2 Clifford, 266 (U. S. Cir.) 97. The tenant's violation of the conditions of a policy without the owner's knowledge, avoids the insurance. Steinmetz v. Franklin Fire Ins. Co., 6 Phil. 21 (Pa.) 98. A tenant for years under a valid lease, who has insured the tenements on the property for his own benefit is alone entitled to recover on the policy for loss by fire. Creech v. Richards, 76 Ga. 36. 99. A violation by a tenant of an assured of any of the prohibitions of the policy of fire insurance is a violation by the assured himself, and whether with or without the knowledge or consent of the assured is wholly immaterial. La Force v. Williams City F. Ins. Co., 43 Mo. App. 518. 100. Receiver. If a receiver, without a previous order of the court, applies funds in his hands to insure the property in his 92.- Policy to "E. B., executrix," insured property devised to the executrix and children. Held, that the meaning of "executrix" being ambiguous may be determined by extrinsic evidence; that evidence of the conversation of the assured's agent with the underwriter in relation to the beneficiaries of the policy is admis-custody, the contract of insurance will sible with a view either to the reformation or interpretation of the contract. Globe Ins. Co. v. Boyle, 21 Ohio St. 119. 93. Upon the death of the assured a policy passes as other choses in action to an administrator and he only has a right of action upon it. Georgia Home Ins. Co. v. Kinnier, 28 Grat. 88 (Va.) 94.- Where a policy to S. stipulated that the loss should be payable to the executor of an estate as his interest should appear, and the loss exceeded the debt due the executor, both S. and the executor can unite in an action on the policy. Home Ins. Co. v. Gilman, 10 West. Rep. 842; 112 Ind. 7; 13 N. East. Rep. 118. 95. Tenants. Where a policy described insured property as occupied by not for that reason be void as between him and the insurance company. *Thompson v. Phœnix Ins. Co., 136 U. S. 287; 34 L. ed. 408; 19 Ins. L. J. 481; 10 Sup. Ct. Rep. 1019. 101. Husband and wife. The husband of the owner, at her request, applied for insurance in her name, the company placed half the insurance in the defendant, without saying that the policy should be in the wife's name, and it was accordingly issued in the husband's name. Although it seems no recovery could be had on this policy, yet the husband afterwards explaining the mistake to the defendant's secretary, with a request to have the loss payable to E. and the clerk's making the loss so payable by endorse 247 (N. Y.) ment, although without correcting the was sufficient to sustain the contract. mistake as to the assured, or saying any- | Freeman v. Fulton Fire Ins. Co., 38 Barb. thing thereupon, makes a valid contract with the wife. Solmes v. Rutgers Fire Ins. Co., 3 Keyes, 416 (N. Y.) 102.- It seems when land is owned by wife, and house and other personal property by the husband, it is competent for the parties to treat this as joint property for the purpose of insurance. Kausal v. Minnesota Farmers' Mut. Fire Ins. Assoc., 12 Ins. L. J. 657; 31 Minn. 17. 103. Infants. Company is bound by its contract with infants; their infancy can not be set up as a defense to an action upon the policy. Monaghan v. Agricultural Fire Ins. Co., 13 Ins. L. J. 497; 53 Mich. 238. 108.- A policy issued to "C. Zimmerman, Esq.," referring to an application made a part of it and signed by "Conrad Zimmerman,” neither instrument containing any hint of trusteeship or agency, is not sufficient to sustain an action at law in favor of Caroline Zimmerman. Zimmerman v. Farmers' Ins. Co., 76 Iowa, 352; 41 N. W. Rep. 39. 109.- An agent may take out in his own name a policy on his principal's property for the principal's benefit, and it will be valid if his act be authorized by the principal either before or after the fire. Marts v. Cumberland Ins. Co., 44 N. J. L. 478. 110.- Where a broker or agent has taken insurance for his principal who is undisclosed and the policy is in the name of the agent and not disclosing his agency, and the agent has no insurable interest in the property, a recovery in the name of the principal is sustainable. New Orleans Ins. Co. v. Spruance, 18 Ill. App. 576. 104. Agents. Where the agent of a manufacturing company applied for insurance on the building and machinery belonging to the company, and the insurers issued a policy to him as agent on the property of the Lisbon Manufacturing Co.; held, that in case of loss, suit might be maintained by the agent in his own name for the recovery of the whole loss, the members of the company consenting, though the agent was but partially interested. Goodall v. New England Fire Ins.ing claimed on the part of the defendant Co., 5 Fost. 169 (N. H.) 105.- Insurance brokers, holding an open policy for themselves and "whom it may concern," may maintain action in their own name for use of the owners, although the latter are not named in the policy, if it sufficiently appear that the insurance was procured for their benefit. Protection Ins. Co. v. Wilson, 6 Ohio, St. 553. 111. Corporations. Policy was issued to the "Minnesota Land Co.," and it be that the policy was void because the company was not a corporation. Held, that it was immaterial whether it was a corporation or not, the company doing business under a common name, and all its acts not requiring corporate powers were good both for it and against it if it was not a corporation. Holbrook v. St. Paul Ins. Co., 25 Minn. 229. 112.- An individual having insured in 106.- An agent may effect an insurance the name of the " National Slipper Co.," in his own name for the benefit of the held, that in the absence of concealment owner, without giving the name of the or misrepresentation about the matter owner of the goods, but the words of the there was no such misstatement of interest policy must sufficiently indicate such in- or title as to avoid the policy. A mere tention. The word "agent" attached to variance of name cannot prejudice where the name of the person insured, imports the identity of person appears. that he is acting for an undisclosed princi- | German Mut. Fire Ins. Co., 7 Mo. App. pal; and parol evidence is admissible in such case to show for whose benefit the insurance is effected. Plahto v. Merchants' & Manufacturers' Ins. Co., 38 Mo. 248. 107.- A person to whom policy is is sued, if without interest in subject matter of the insurance, may sustain action if he acted as agent of another whose interest 77. Clark v. 113.- A fire insurance company which contracts with and receives money from persons acting as a corporation under an invalid charter granted under a general law, but acting within both charter and general law, cannot, after the property insured has been burned, avoid payment by Subd. XI. Entirety and divisibility of they claim any variation of their original policy. No. 12. responsibility by a new agreement, must Subd. XII. Reformation. Nos. 24, 50, establish it by clear and indubitable evi52, 54. Section two. Subd. I. Measure of damage. No. 80 et. seq. Section three. Subd. I. Repair, rebuild, &c. Section four. dence. Kunzze v. American Exchange Fire Ins. Co., 2 Robert, 443 (N. Y.) 3.- Insurance was procured to fill up an uninsured gap between the landing and reshipment, "on cotton awaiting shipment No. 11. per" a certain vessel, on Oct. 10. It appeared the cotton had been burned on Oct. 6. Held, a fire policy on a distant and unknown subject may be retrospective, if so intended, equivalent to the marine "lost or not lost," and such intent was evident here. Security Fire Ins. Co. v. Kentucky M. & F. Ins. Co., 7 Bush, 81 (Ky.) Subd. IV. Statement of interest. Nos. 13, 15, 30, 36, 37, 39, 40, 44, 45, 46, 47, 49, 58, 60, 66. Section five. No. 261. Subd. I. Other insurance. Subd. V. Interest of insured. Nos. 57, 119, 144, 147 et seq. 155. Subd. IX. Change in interest, &c. Section ten. Agent. Nos. 69, 128, 360. 4.- Policy was applied for and dated the 18th, but was not delivered nor premium paid until the 22d day of the month. Held, that policy must be considered as commencing on the 18th, the day of its date. Hubbard v. Hartford Fire Ins. Co., Section thirteen. Mortgagor and Mort-33 Iowa, 325. gagee and other parties. Nos. 10 et seq. 212a. Section fifteen. 5. When ends. Where insurance runs from one day to another day, both inclusive, the contract does not expire until Subd. III. Statement or proof of loss. midnight on the last day, unless by force No. 49. Section seventeen. Appraisal. No. 61. Subd. I. Apportionment. 32, 33, 34, 61, 62, 63, 69. III. TERM. When commences. Omission to insert. of a clearly established and invariable custom to the contrary. Herald Co. v. Northern Assur. Co., 4 Mont. (Super.) Nos. 30, 31, 254 Can. 1. When commences. Evidence tending to show that a policy was to take effect at some other time than at its date, is not liable to objection as varying a writ 5a. When insurance was for six months "from the 14th day of February, 1868 to until the 14th day of August, 1868," it was held to cover a fire which occurred on the 14th of August, which was included in the term prescribed. Isaacs v. Royal Ins. Co., L. R. 5 Ex. 296 (Eng.) 6.- Policy insured "frame, shingle roof, hop house, while drying hops," and there was the usual clause to effect that company agreed to make good to the assured all loss or damage which should happen "by fire to the property so specified from the 15th day of August to the |