Cushman v. North-Western Insurance

| Me. | Jul 1, 1852

Tenney, J.

Is the policy in this case, in any respect a valued policy? A contract for insurance like others is to be construed upon an examination of the whole instrument, and therefrom the intention of the parties is to be ascertained. No particular form of words is required to give effect to the intention when discovered. It is proper to see what property was the subject of the policy. The plaintiff held a lease for the term of one year of the mill described, with all the privileges and appurtenances thereto belonging. The whole machinery of the mill both fixed and movable were evidently intended to be embraced. He had at the time of the insurance stock, raw and wrought, and it is apparent, that he expected, that such would continue to be in the mill, though it might change from time to time.

The defendants make insurance for the plaintiff against loss or damage by fire to the amount of $2000; $1700 of which is on the mill and fixed machinery, and $150 on the moveable machinery; the balance of the $2000 was on the raw and wrought stock. The property last referred to, is fully specified, and the policy so far was clearly open. But to prevent any question as to the portions before specified, the policy states that “ the said Cushman being the lessee of said mill for one year from Nov. 1, 1850, and having paid the rent therefor of $2171,01, which interest, diminishing day by day in proportion to the whole for the year, is hereby insured. By natural, and also by the most strict grammatical construction, the “ interest” here referred to, was that which the plaintiff acquired by his lease. The raw and wrought stock could not have been the “ interest,” without a forced construction; and this is not insisted on by the defendants’ counsel. No other interest or right of any kind is previously mentioned in the policy, and the plaintiff is not shown to have had any other right. The sum of $2000, and its subdivisions cannot be regarded as the interest insured, for that is the amount of the value upon which the insurance of the “ interest” is made.

The lease was effectual between the parties thereto; and in an open policy, neither the plaintiff nor defendants would be benefited in any degree, by the insertion therein particularly, of the rent paid by the assured to his lessor; it was wholly immaterial and unnecessary. Again, if the policy was open, there was no occasion that it should recite, that the interest should diminish “ day by day,” ifcc. This would be only one element in the computation of the value of the loss, and one so obvious, especially if the policy was near its expiration, or had run any considerable time, that it could not be expected to be overlooked.

The price paid by the plaintiff for the lease, a few days before the policy was executed, may be presumed to have been in his opinion, the value of that interest, as he paid the consideration therefor in advance. And the defendants, when they executed the policy, which recited the price of the interest, must be understood as assenting to that as the value agreed upon.

1. It is objected, that the clause in the policy which is in the following words, is inconsistent with the construction contended for by the plaintiff; viz. “ the said loss or damage to be estimated according to the true and actual cash value of the said property, at the time such loss or damage shall happen” We cannot suppose that this clause in the printed part of the policy was designed to annul the meaning of previous matter, which was written in the blank. But effect must be given to every part of the instrument if possible. And it is believed that this may be done in the policy now before us, without doing violence to any provision found therein. The policy, so far as it was intended to cover the stock, was such as to require proof of the amount of loss or damage of that portion of the property. And although it was agreed that the loss or damage should be estimated according to the actual value at the time of the loss or damage, still the parties could fix upon a rule to determine this value. And if they had agreed that the actual value of the rent for any given period during the year, should be the same as for a like period at its commencement, such agreement would not be repugnant to the meaning of the clause we are considering. They did fix upon a basis, by which the cash value should be determined, and the value would vary daily by the application of the rule, and was not inconsistent with other parts of the policy.

2. It is insisted for the defendants, that the evidence offered, and rejected, excepting for the purpose of showing a fraud in the plaintiff, should have gone to the jury without restriction. If the representation of the value of the plaintiff’s interest in the mill and machinery was made without fraud, it is not easy to perceive on what principle, the evidence offered was competent. The defendants were so satisfied with the plaintiff’s estimation, that they adopted it, and had the benefit of the premium. And they could not change the value by proving simply, that others would have fixed upon a different estimation. To allow them to introduce the evidence offered for other purposes, than to prove a fraud, would be a permission to vary a written contract by parol testimony. Judgment on the verdict.