48 Minn. 344 | Minn. | 1892
The cause of action alleged in the complaint is that in January, 1890, the plaintiffs stored with defendants as warehouse-men in their warehouse known as the “Old Security • Warehouse” certain goods, and at the time of storing them informed the defend
Aside from denials of certain allegations in the complaint, the defenses were (1) that the plaintiffs had actual knowledge of the removal of the goods to the “New Security Warehouse” long before the fire; (2) that defendants, long before the fire, notified the agent of the insurance company of such removal, and that he promised to make the necessary changes in the policy to cover the goods in the new warehouse. Upon both these points the evidence was conflicting. Upon the first the court instructed the jury that if the plaintiffs in any way obtained knowledge of the fact of the removal a sufficient time before the fire to enable them to have procured the consent of the insurance company to the removal, or to have procured new insurance, and the plaintiffs neglected, after such knowledge, to protect themselves in that way, they could not claim anything by. reason of the neglect of the defendants to notify them of the removal. This fairly and correctly stated the law. Upon the second point the court instructed the jury that if the defendants notified the agent of the insurance company of the removal of the goods, and the agent thereupon promised to make the necessary changes in the policy, such promise would be binding on the insurance company,
It cropped out incidentally during the trial on cross-examination of one of the witnesses that when these goods were stored.with defendants, and when this, insurance was effected upon them, one Cole-was a member of the plaintiffs’ firm, but that he withdrew from the firm about the 1st of May. It is claimed that this retirement of Cole from the firm to which the policy was issued effected such a change of ownership of the subject of the insurance as, under the terms of the policy, to render it void,'and consequently the plaintiffs could not have been damaged by the failure of defendants to notify them of the removal of the goods. We do not think this question is presented by the record before us. It was stipulated that the original policy might be used as an exhibit in this court, the same as if made a part of the settled case; but it was not produced nor presented to-us, nor is it on file in this court; hence we have no means'of ascertaining what its provisions were, except what counsel state 'in their briefs. But, aside from this, no such issue was raised or suggested in the pleadings. The complaint alleged that the plaintiffs, being the owners of the goods, stored them with defendants, and that plaintiffs made the contract of insurance, etc. The answer admits that the defendants made the contract for the storage of the goods with the,plaintiffs, and that the goods belonged to the plaintiffs; that the-plaintiffs knew of the removal of the goods before the fire, and that-the insurance company with which the plaintiffs were insured also-had notice and knowledge of the fact. In short, in both the complaint and the answer it is everywhere alleged or admitted that the present plaintiffs were the owners of the goods, and made all contracts with reference to both their storage and insurance; and there is nowhere any suggestion that any one else ever had any interest in them, or that there had been any change of ownership, or any forfeiture of the
Order affirmed.
(Opinion published 51 N. W. Rep. 238.)