Burnett & Martin v. Eufaula Home Insurance, 46 Ala. 11

Burnett & Martin v. Eufaula Home Insurance

46 Ala. 11 | Ala. | 1871

B. F. SAFFOLD, J.

The field of inquiry is much narrowed by the definite settlement, long since, of some material propositions independent of the special contract of these parties. Policies of insurance, except marine, are not in their nature assignablenor is the interest in them ever intended to be transferable from one to another, without the express consent of the office. — 3 Brown’s Pari. *14Cases, 497. It is necessary the party insured should have an interest or property at the time of insuring, and at the time the fire happens. — Saddler’s Co. v. Babcock et al., 2 Atkyns, 554; Angell on Fire and Life Ins. §§ 55, 193.

The principle sustaining these adjudications is, that there is a purely personal contract by which the insurer undertakes- a conditional indemnity of the insured alone, dependent upon certain duties to be performed by him into which enter his personal character and fitness. The property insured does not draw with it the contract, because its probable destruction is the foundation of the agreement. The essence of the contract is taken away by the transfer of the proprietary interests to others not parties to it.

It is manifest, however, that some limitation must be imposed on the restriction respecting the change of interest of the parties. Of all the ways by which some change of interest might be effected without the consent or fault of the partners, or a majority of them, some one might almost surely be expected to intervene. By the death of his partners the sole survivor would become the legal, and, in some cases, the equitable owner of all the assets. By the voluntary assignment by one partner of all his right, title and • interest in the partnership property, the interests would be materially changed. If such occurrences were intended to work an entire forfeiture of the policy, the contract would be a mere wager, with all the chances on one side.

Inasmuch as the words of this restriction can not be used in their enlarged sense, and their import is doubtful, their construction must incline against those for whose benefit the restriction was imposed. The interest of each partner in the goods was per my et per tout. The confidence reposed in them was testified only by the issue of the policy, and consequently was equal in each. The commingling of such an interest with such a confidence ought, by the rule above stated, to determine the construction in favor of the plaintiffs. Does this restriction, then, mean nothing ? I do not know what the parties intended by it. *15It is evident that the plaintiffs did not understand it in the same sense as the defendants. As it is susceptible of a meaning more extensive than was contemplated by either, it must be restrained to a reasonable significance consistent with the rights of the promisees. — Hoffman v. Ætna Ins. Co., 32 N. Y. 405; Wilson v. Genesee Mut. Ins. Co., 16 Barb. 511. The authorities referred to are directly in point on the facts of this ease as averred in the complaint. The demurrer ought to have been overruled.

The judgment is reversed and the cause remanded.