This case was tried in the court below on the following facts agreed:
I. Plaintiffs are now, and were at all times hereinafter mentioned, partners, doing business as Armour Packing Company, and were owners of the property hereinafter mentioned as insured and damaged by fire.
II. That on the eleventh day of December, 1891, the defendant, by its duly authorized agents at Kansas City, Missouri, issued its policy of insurance to plaintiffs, and that the portions of said policy material to the issues in this case read as follows:
“The Eeading Eire Insurance Company of Eeading, in consideration of the stipulatiоns herein named, and of $15 premium, does insure the Armour Packing*218 Company for the term of one year from the eleventh day of December, 1891, at nоon, to the eleventh day of December, 1892, at noon, against all direct loss or damage by fire, except as hereinafter provided, tо an amount not exceeding $1,000, on the following described property, while located and contained as described herein, and not elsеwhere, to wit: On their cattle and hog viaduct extending from their yard adjacent to their packing establishment, to their stock yards in Kansas-City, Kansas. '* * * Other insurance permitted. * * * This company shall not be liable under this policy for a greater proportion of any loss on the described property * * * than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property.”
III. It is furthеr agreed that on the eleventh day of December, 1891, the Knoxville Insurance Company issued to plaintiff its policy of insurance covering the same property, and that so far as the issues in this case are involved, the said Knoxville policy is in all respects concurrent with the pоlicy of defendant, the material portions of the policy being as follows:
“The Knoxville Fire Insurance Company of Knoxville, Tennessee, in consideration of $15, hereby insures Armour Packing Company against loss or damage by fire to the amount of $1,000, as follows: '* '* * In no case shall the claim be for a greater sum than the actual damage to or cash value of the property at the time of the fire, nor shall the insured be entitled tо recover of this company any greater portion of the loss or damage than the amount hereby insured bears to the whole sum insured on sаid property,, whether such insurance be by specific or by general or floating policies, and without reference to the solvency1 оr liability of other insurers.”
“By this policy of insurance the Phoenix Insurance Company of Brooklyn,New York,in consideration of the conditions, limitations, and requirements оf this policy hereinafter mentioned, and of the receipt by said company of $60, will indemnify Armour Packing Company against loss, or damage by fire, to the following specified and located property only, to an amount not exceeding the actual cash value of the property herein described, at the time of such loss, and in no event to exceed $3,000. * * * It is part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that the assured shall maintain insurance on the property covered by each item of this policy to the extent of at least eighty (80) per cent of the actual cash value thereof, and that failing so to do, the assured shall be an insurer to the extent of such deficit, and to that extent shall bear their proportion of any loss. * * * In case of other insurance upon the property herein described, whether made prior or subsequent to the date of this policy (whether valid or not) the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon.”
Y. It is further agreed thаt on or about the twenty-seventh day of August, 1892, and while all of the aforesaid policies were in full force, the said property covered was damaged by fire without the fault of plaintiff to the amount of $2,200, and this was the amount of loss by said fire; and that prior to and up to
VI. After making proofs in proper form, on September 21, 1892, plaintiffs demanded the sum of $687.50 as the sum it claimed as due, and defеndant paid as aforesaid the sum of $440.
VII. It is agreed that the only question to be determined by the court in this cause is the amount of defendant’s liability under its sаid policy, by reason of said fire, under the above statement of facts.
It is thus seen that the agreement with the Phoenix Company was that it would insure рlaintiffs’ property to the amount of $3,000, provided plaintiffs should place $5,000 more insurance elsewhere and thus carry a total insurance оf $8,000. Had these conditions been carried out, the Phoenix Company would have been bound to pay three eighths of the actual loss, $2,200, and the other companies the remaining five eighths. But plaintiffs failed to secure the $5,000 additional insurance, necessary to make the total amount $8,000, but only succeeded in placing $2,000 of the required $5,000. Now the question is, under these altered conditions, for how much were the plaintiffs actually insured in the Phоenix Company, and what was the whole insurance? If the Phoenix was to assume $3,000
It therefore appears that the judgment of the circuit court was correct and must be affirmed.