delivered the opinion of the court:
This suit wаs brought by appellee, in the Superior Court of Cook county, on a certificate or policy of insurance in the sum of $1500, issued by appellant December 20,1890, to appellee. There was a recovery for $1774.50. The judgment has been affirmed by the Appellate Court.
On the trial the court instructed the jury that if they found the plaintiff entitled to recover they should include in their verdict interest at the rate of six per сent per annum from May 28,. 1891, upon the amount they might find due, and this the jury did. There was no stipulation or agreement of parties for the payment of interest, and it was allowable only by virtue of the statute. The plaintiff, if entitlеd to recover, would be allowed to receive interest at the rate therein fixed. (Peoria Marine and Fire Ins. Co. v. Lewis,
The appellee, while contending that the instruction was right, has entered a remittitur in this court for $30.30, (the excess of interest from July 1, 1891,) and has paid into this court the appellant’s costs in the Appellate Court and the costs of this court up to the time of entering the remittitur. By this means the error concerning interest has been obviated.
The following fаcts were proved at the trial and were not in dispute: The plaintiff was in the cold storage business in Chicago, and had several warehouses, among which was one known as “Warehouse C,” situated at 231 and 233 Michigan street, where it received and kept in storage various kinds of perishable merchandise, such as eggs, butter, cheese, fruit, poultry, game and fish. Defendant is a California corporation, and Rumsey, Bliss & Co. are its local agents in Chicago. Defendant issued its open policy to its said agents to the amount of $500,000, under which the agents, on December 20, 1890, issued to plaintiff certificate No. 4467, insuring plaintiff against loss or damagе by fire in the sum of $1500, subject to all the terms and conditions embraced in said open policy, “on merchandise and packages for same, their own or the.property of others, not specifically in-' surеd, contained in the brick building known as the Western Refrigerating Co.’s warehouse C, situate Nos. 231 and 233 Michigan street, Chicago, Ill.,” for the term of four months, to April 20,1891. The building and contents were destroyed by fire January 29,1891. This insurance was on what was called “Form C” furnished by the plaintiff. Plaintiff also had three other policies of insurance under what was called “Form A,” aggregating $3000, “on poultry and packages for same, their own or held by them in trust or on сommission, or sold but not delivered, contained in the brick building known as the Western Refrigerating warehouse C, situate Nos. 231 and 233 Michigan street, Chicago, Ill.” A large amount of poultry was destroyed by the fire, and there was not sufflcient other property to make up the amount of this and other like policies under “Form C.” Evidence was offered of the loss of the poultry, and its value, and the defendant moved to exclude all such evidence on the ground that the poultry was not covered by the policy. The motion was denied and defendant excepted.
It was the province of the court to construe the policy, and the facts being admitted, if the poultry was not embraced within the terms of defendant’s policy the motion should have been sustained and the evidence concerning the poultry and its value excluded. The determinatiоn of that question depends upon the construction to be given to the term “specifically insured.” On the one hand it is contended that the poultry, and packages for same, contained in the warehousе, were specifically insured, while on the other hand it is claimed that the property can only be so insured by designating particular articles, as by describing a lot of poultry bearing a specific mark, and dеsignating the particular lot by packages and marks, as, ‘TOO packages poultry marked X,” or “50 packages marked Y,” or “a lot of geese marked Z.” •The property stored in the warehouse was cоnstantly changing. Merchandise was coming in and going out daily, and the plaintiff had claims against the property while in the warehouse, for advances, storage and other charges. All the insurance taken under bоth forms was intended to cover, and did cover, whatever was in the warehouse from time to time, and insured the interest of the plaintiff in such property. (Peoria Marine and Fire Ins. Co. v. Anapow,
The open policy under which the certificate was issued provided that the right of action should be barred unless suit was brought within six months аfter the happening of the loss. There was evidence that Bliss, of the firm of Rumsey, Bliss & Co., the local agents who held the open policy and wrote the certificate of insurance, stated to an offiсer of plaintiff when suit was ordered unless the claim was paid, shortly before the expiration of the six months, that he did not want suit commenced; that plaintiff should settle with the other companies and defendant would settle accordingly; that if they settled defendant would settle, and that the expiration of the limit of time would make no difference. Negotiations for settlement had been pending from the date when the prоofs of loss were furnished, and the evidence tended to show that in consequence of these representations of Bliss suit was not brought within the time. It is complained that the court gave the third instruction asked by plaintiff, and refused the eighth, ninth and tenth instructions asked by defendant, on that subject. The third instruction, which was given, correctly stated the rule applicable to the evidence. The refused instructions were designed to inform the jury that Bliss had no authority to waive the condition relating to the limitation. This contention is based upon a stipulation in the open policy to the effect that only the manager of the company at Chiсago had authority to waive, modify Or strike from the policy any of its printed conditions. That stipulation has been held to have reference only to the conditions entering into and forming the contract of insurance, and to have no reference to provisions as to what is to be done by the parties after a loss has been incurred. (Dwelling House Ins. Co. v. Dowdall,
For the error in ruling on the evidence concerning poultry lost or destroyed, and its value, the judgments of the Appellate and Superior Courts are reversed and the cause is remanded to the latter court.
Reversed and remanded.