51 Barb. 647 | N.Y. Sup. Ct. | 1868
Objection by the defendants was made to the decision of the judge, holding that the application and survey of 1863, made by Daniel Boss, should not be deemed or taken to be a warranty on the part of the estate of Daniel Boss, deceased, in 1865. There can be no doubt that when an application and survey is made by the insured, to accompany a policy, or is referred to as forming a part of such policy, such application, survey and policy are to be construed together as part of one entire contract. (Ripley v. Ætna Ins. Co., 30 N. Y. Rep. 136.)
In this case three separate surveys of the property in question had been made prior to the issuing of the policy in suit, and were on file in the office of the company’s agent, the earliest bearing date in 1860 and the latest in 1863. All of these were signed by other persons than those insured under this policy. All were made under circumstances wholly different from those existing in February, 1865. Bor is it claimed or pretended that the parties insured under the policy of 1865 had any, even the slightest, knowledge of any of the prior applications or surveys. They knew the property had been and desired it should continue to be insured. They therefore applied
Even if these views be incorrect, it was at most a question of fact to be determined by the jury; and as there was no request that such question be so submitted, no available exception is presented for consideration. (Barnes v. Ferine, 12 N. Y. Rep. 18.)
■ A further objection is taken by the defendants, that this insurance was between the defendants and the “ estate of Daniel Ross;” that the “ estate of Daniel Ross,” means in law “ Mary Ross, administratrix, &c. of Daniel Ross,” &c; and that she, as such administratrix, had no insurable interest in the real estate; wherefore the recovery for loss upon the realty was excessive and unwarranted.
This position can not be maintained either by reason or authority. What has heretofore been said in regard to the principles governing the construction of contracts is-equally applicable here. The intent of the parties, as expressed in the contract, and as understood by them when it was made, should control, and in all cases where the words are equivocal, or of doubtful signification, they should be construed against him who undertakes. (Adams v. Warner, 23 Verm. Rep. 411. Love v. Pares, 13 East, 80, Bailey, J.) It is apparent that both parties proposed and intended by the words used, to insure the building and" fixed machinery, for that is done by the words of the policy.As the heirs had the chief interest in the realty, it can fairly be presumed, without the aid of extrinsic evidence,, that such insurance was effected for their benefit. If, however, there was any doubt about the justness of such presumption, the evidence shows conclusively that such insurance was effected for the benefit of the widow, heirs-at-law and next of kin of the deceased. Extrinsic evidence
Again, it was objected that the property in question had been sold and transferred to the plaintiff before the loss, whereby the policy became void. By the contract of May 29, 1865, the title to this property, real and personal, was to be given to the plaintiff, so soon as the necessary authority could be obtained from the court for the special guardian of the minor heirs to convey, but it was a part of the provisions of the same contract that, until such deed was executed and delivered the plaintiff should hold such property, real and personal, as the tenant of the owners, paying a specific rent therefor. Under this contract the plaintiff went into possession, and was still so in possession when the fire occurred. It is not contended
Hence the plaintiff was in no sense the owner of the property in question. He had no equities, no insurable interest, nothing at risk, and consequently suffered no loss. The estate of Boss by such loss acquired a right of action to recover the amount insured up to the value of the property destroyed.
It is undoubtedly true, as claimed by the defendants, that if the widow and heirs of Boss had contracted to sell and transfer the title to this property to the plaintiff) the loss would have been his, to the extent of the purchase money paid, and if the whole consideration had been paid the policy is at an end. But until the purchase - money is fully paid, the insured still retains an interest in the policy, equivalent to the amount unpaid. (Ætna Ins. Co. v. Tyler, 16 Wend. 385.) It is clear, however, that this principle does not apply unless the defendant’s claim is well founded; that the deed given in November, 1865, operates by relation back to the time when the contract of
If I am so far correct in my reasoning, there can be no principle of subrogation applicable to this case in the interest of the defendants. It also follows that the plaintiff, as assignee of this policy, is entitled to recover the amount of the policy, provided the value of all the property destroyed equals or exceeds the amount insured
Balcom, P. J. and Boardman, Parker and Murray, Justices.]
The conclusion I have reached results in the refusal of the defendant’s motion for a new trial, with costs, and an order for judgment in favor of the plaintiff upon the verdict, with costs.
All the justices concurring, judgment accordingly.