Burrows v. Turner

24 Wend. 275 | N.Y. Sup. Ct. | 1840

By the Court,

Cowen, J.

The jury found that the defendant agreed with the plaintiff to insure the plaintiff’s interest in one-sixth of the brig, and afterwards informed him that he had done so. The defendant owned five-sixths, and did the business by insuring the whole in his own name; and, on a total loss happening, he exhibited the preliminary proofs and obtained the whole valuation in his own name, and withholds from the plaintiff his share. There can be no doubt that, under such circumstances, the defendant was liable in this action for money had and received for the plaintiff’s use.

It is said to have been held by this court, that the policy in this case was so constructed as not to be capable of covering *Tur- [ *279 ] ner’s interest. That is not so. When the case was here, this court held that the policy did not do so, on its face; but it was conceded that, if the insurance had been in truth on joint account, and the policy had been general, on account of whom it might concern, the fact might have been shown by collateral proof, and the policy then have the effect intended by the joint owners. Turner v. Burrows, 5 Wendell, 541, 546. When the same case was before the court of errors, the chancellor thought the blanki in this policy was equivalent to a general open declaration of interest, and might have been filled up according to the truth in an action on the policy. 8 Wendell, 144, 150, 151. Indeed some of the court thought that, even as the case then stood, there was enough in it to have required this court, instead of directing a nonsuit, to put the question to the jury whether Burrows did not really insure both his own and Turner’s interest. Id. 157, 158, 159. Yet the ease then- stood without the testimony of Charles Turner, which is directed to the agreement of Burrows to insure for Turner, and the declaration that he had insured ; and the jury found his testimony to be true. It is the constant practice to show by proof aliwnde the real owner, when the insurance is general for whom it may concern. The blank here is equivalent. In the language of Senator Westcott, id. 159, I think it might be shown who this blank is. And it was shown, as to one-sixth, to be Turner. The blank left an ambiguity to be filled up by extrinsic proof. It was patent if you please ; but none the less explainable for that reason. Fish, v. Hubbard’s Adm’rs, 21 Wendell, 651, and the cases there cited. Vide also per Parker, C. J. in Brown v. Gilman, 13 Mass. R. 161, and Porter, J. in Penniman v. Banemore, 6 Mart. Lou. R. N. S. 497.

We think the decisions and charge of the court below were correct; and the judgment should therefore be affirmed.

Judgment affirmed.