Johnson v. Campbell

120 Mass. 449 | Mass. | 1876

Ames, J.

The circular issued by the firm of Johnson & Co., inviting consignments of goods, does not import that they personally were to be the insurers of such goods against fire. It is merely a promise that the goods shall be insured, or, in the language of the circular, “ shall be covered by insurance as soon as received in store.” A promise to insure is fulfilled by obtaining reasonable and proper security against a contingent loss. The commission which they were to charge upon sales was to compensate them for all their charges for guaranty, for effecting and maintaining insurance, and for certain incidental expenses and services attending the reception and care of the property that should be consigned to them.

There can be no doubt that the policy which they obtained purported to cover not only goods which belonged to them, but also such as they held in trust or on commission. That is, the insurance was not limited merely to their proprietary interest. It was to make good the damage to the goods, and would enure to the benefit of the consignor. Whatever the consignees might recover on such policies in excess of their own claims, they would hold in trust for the consignor. Waters v. Monarch Assurance Co. 5 El. & Bl. 870. De Forest v. Fulton Fire Ins. Co. 1 Hall, 84. Stillwell v. Staples, 19 N. Y. 401. It follows, therefore, that the consignors were in fact insured, and there is nothing in the contract that imports that the insurance was to be effected in their name, or that the policy should be in their possession or control. The consignees have only undertaken that the goods shall be stored, and kept insured, until they are sold and delivered, and this promise they have fulfilled.

We see nothing in the evidence reported to sustain the position that the consignees were confined to the goods themselves as the means of recovering their advances. To the owner of those goods they stood in the relation of creditors, and if from any cause, without their fault, the proceeds of the goods proved insufficient to repay their advances, they would have a valid claim against the consignors for the amount found deficient on settle* ment. The insurance was general upon the entire mass of goods in which Johnson & Co. had any insurable interest, and no attempt was made in any of the policies to distinguish the property of Campbell & Co. from the rest. As between Johnson & Co. and the various insurance companies, the former were treated as if they were the owners of all the property insured, and as to all the world except the respective consignors, they might properly be so considered. De Forest v. Fulton Fire Ins. Co., ubi supra. As the insurance money fell short of the loss, it is difficult to see any other mode in which the amount recovered could be equitably apportioned among the parties in interest than that which the consignees have adopted. The goods of Campbell & Co., so long as they remained in the hands of the consignees, were security for the advances made by the latter; and when the goods were destroyed by fire, the amount recovered upon their loss was substituted in their place, and was held subject to the same lien. The rulings at the trial upon this point were therefore correct. The exceptions of Johnson & Co. have been waived, and the exceptions of Campbell & Co. are

Overruled.