47 Ala. 387 | Ala. | 1872
Tbe suit was by tbe appellees, against tbe appellant, to recoyer tbe amount for wbicb certain property bad been insured that was destroyed by fire.
The application was as follows :
“James River Ins. Co., Mobile, March 12, 1868, C. W. Dorrance, agent, No. 39 St. Nicholas street, Mobile, Ala.: Insurance is wanted against fire by Merritt & Robertson, for account of themselves, loss, if any, payable to them, on the frame steam saw mill covered with sheet iron, situated on the east side of Water street, between Augusta and Savannah streets, $400. On boiler, engine, machinery and belting contained therein, $1,000. It is understood and agreed that the premises are at no time to be left without a watchman, for one year.
“$700 on building, Jefferson Ins. Co.
“$700 on machinery, Jefferson Ins. Co.
“Your obedient servants,
Merritt & Robertson.
“ $1,400, at 5 per cent. - 70
“Policy, - - 1
“Stamp, - 11.”
It was proved that the planing machine was in the building-in a sort of shed, on the same floor with the machinery proper of the saw-mill, about twenty-five or thirty feet distant from it, but connected with it by the belting, and plainly visible. The agent, Dorrance, saw it, and inquired about it before the written application was made, but on his inspection with the view of insuring. Upon the evi
But if there be ambiguity, and we resort to the parol evidence introduced, for its explanation, the substance of the proof is as follows: The plaintiff, Eobertson, stated verbally to defendant’s agent that he desired insurance on his saw-mill and machinery, and told him where it was. The agent visited it for the purpose of examination, and inspected it to his satisfaction. He saw the planing machine, and made inquiries about it. Afterwards, he wrote the application which the plaintiffs made. He insured other planing mills at the same rate, because other companies had done so, though the rate of insurance on them was one per cent, higher.
Upon this evidence, the charge excepted to was, in effect, that if the defendant’s agent wrote the application, and did so in such form as to include the planing machine, and such was the intention of the plaintiff, Eobertson, and the agent, the defendant was liable for the insurance on the machinery, including the planing machine. There is no error in this charge of which the defendant can complain. The burden of his defense was, that he did not insure the planing machine, and that he was imposed on by its presence in, or about, the building. The construction of the writing was not necessarily left to the jury, but they were to say, from all the evidence, whether the planing machine was insured or not.
The judgment is affirmed.