64 Iowa 229 | Iowa | 1884
The policy of insurance in question was issued //,to' Hathaway & Smith, a partnership composed of plaintiff ' and E. P. Smith. They were merchants, and the policy covered the stock of goods kept by them in their store. Before the loss occurred the partnership was dissolved, and plaintiff bought the interest of Smith in the firm property, and continued to carry on the business. He alleges in his petition that Smith wholly transferred to him his interest in the policy, and that defendant had notice of such transfer, and consented to it. The policy contains the following provision. “If the title of the property is transferred, incumbered or changed, or if, without written consent hereon, the policy is assigned, then, and in every such case, the policy shall be void.”
The principal matter of defense relied on by defendant is the sale and transfer by Smith to plaintiff of his interest in the insured j>roj)erty, — the claim being that, under the pi’ovision quoted, the policy is rendered void by such sale and transfer.
The allegation that defendant had notice of the sale and transfer, and consented to it, was not proved on the trial, and the circuit court held, in effect, that it was not essential to plaintiff’s right to recover that it should be proven. Defendant presented a number of instructions to the court, and asked that they be given to the jury. These instructions present, in various forms, the proposition that the sale by Smith to plaintiff of his interest in the insured property, before the loss, was such a change of the title to the property as avoided the policy. The court refused to give these instructions, and told the jury that
This latter word was deliberately used by the parties, and we cannot reject it in construing- the contract, and, as it neither limits or qualifies those which precede it, we are bound to presume that the parties intended by its use to express some provision or condition of their contract which was not otherwise expressed.
The effect of the provision is, then, that the policy would be avoided, either by a transfer of the title of the property insured to a stranger, or by a change of the title to it. This
The case turns, then, upon the question whether a change of the title of the property occurred upon the dissolution of the partnership, and the sale by Smith to plaintiff of all of his interest in the property, and it seems to us there can be but one answer to this question. During the existence of the partnership it cannot be said that plaintiff had title to any specific share or interest in the property. Ilis claim was to the proportion of the residue which should be found to be due to him upon the final balance of the accounts of the firm, after the conversion of the assets and the liquidation of its debts. But, upon the dissolution of the partnership, and the purchase by him of Smith’s interest, he was vested with the absolute title to the whole of the property. We think, therefore, that the circuit court erred in refusing to give the instructions asked by defendant.
The conclusion we reach is sustained by the following authorities: Keeler v. Niagara Ins. Co., 16 Wis. 523; Hartford Fire Ins. Co. v. Ross, 23 Ind. 179; Dix v. Mercantile Ins. Co., 22 Ill. 272; Wood v. Rutland Ins. Co., 31 Vt. 552.
Reversed.