7 Mo. App. 77 | Mo. Ct. App. | 1879
delivered the opinion of the court.
This action is on a policy of insurance against fire, and is brought by the assignees of the person originally insured. There was a verdict and judgment for plaintiffs, and defendant appealed.
The policy contains a provision that “ any other than
The statement that this property was owned by the National Slipper Company was a warranty, as is any statement upon the literal truth of which the validity of the contract depends. If the statement was untrue, although it might be immaterial to the risk, it avoids the policy.
The custom is universal for all male persons in England and the United States to bear the name of their father ; but
In the absence of fraud, a firm may trade by the name of an individual, and an individual may trade as Smith & Company. In New York, indeed, it is, or was, prohibited by statute to use a fictitious name ; and the word “ company,” when used in trade, must represent a partner. But we have no such law.
In Massachusetts, it has been held that a declaration by F. Charman, on an account stated, may be supported by evidence of an account rendered by defendants to Charman & Co. It is said that Charman & Co. is not necessarily the name of several persons, and it is a matter of evidence who is intended by that designation. Charman v. Henshaw, 15 Gray, 293.
The National Slipper Company is not necessarily the name of a corporation. It may be the name of a firm, or if may be the name of one man trading under that name. Suppose three men build up a trade under the name of the National Slipper Company, and two retire, and the name has a business value. Is the sole remaining trader to give up a valuable name simply because, according to its grammatical meaning, it imports plurality? In the absence of any deceit practised, we see no impropifiety in the sole trader retaining the old trade-name. Of this possibility prudent persons will take notice-; and, if they have a reason for knowing who or what is represented by the name, they will ask. It may be an artificial person, or several natural persons, or one. The name tells nothing as to this ; and what is intended by the designation is matter for inquiry and evidence.
Here, the National Slipper Company was a name assumed
It is not pretended that the interest of the insured was untruly stated, or that he had not an exclusive ownership according to the warranty; but the claim is that the party insured has no existence, that he was supposed to be an artificial person, and that he turns out to be a natural person whose family name was Aldrich, that he had also another name by which he traded, and that he applied for insurance in that name. No inquiry was made as to who were the persons, or who was the person, going by the name in which Aldrich was insured. No fraud, misrepresentation, or concealment is pleaded, and it is not claimed that there was any. The answer is a general denial, and, as to this, merely traverses the allegation that defendant insured Aldrich under the name of the National Slipper Company, by which name he was trading at that time.
Our attention is directed by appellant to the case of Abbott v. Shawmut Insurance Company, 3 Allen, 214, as directly in point, and conclusive against respondents. It does not appear in that case that Abbott was trading as the “Abbott Worsted Company.” The testimony wasthat the property belonged to J. W. Abbott. The application was made, by the terms of the contract, a warranty, and was signed “Abbott Worsted Company, J. W. Abbott, Treasurer,” and said that the property belonged to the Abbott Worsted Company. This was, in effect, a statement that there was a company distinct from Abbott, of which he was the treasurer. As
In the present case, we do not think that the defence was made out. It does not appear that the title and ownership were incorrectly stated.
The judgment is affirmed.