| Ind. | May 15, 1866
Suit by the appellant against the insurance company on a policy of insurance of $1,500, against loss or damage hy fire on “ grain and other merchandise, hazardous and not hazardous, contained in each of their two warehouses,” &c., “on the Toledo and Wabash R. R., at Marshfield station, Indiana.” The warehouses and their contents were consumed by fire.
Answer in denial of the complaint. The issue was tried hy the court; finding for the defendant. Motion for a new
The only question presented in the case by the record and assignment of errors, is whether certain articles of property named in the schedule, or bill of particulars, filed with the complaint, under the state of facts shown by the evidence, were covered by the term “other merchandise,” used in the policy?
The following are the items referred to r
1. 1 Fairbanks’ platform scale................................$175
2. 1 Beam scale.................................................. 25
3. 2 Grain carts.................................................. 100
.4. 2 Corn shelters................................................. 200
5* 1 Cleaner...................................................... 75 ~
6. 1 Cob carrier..................................................... 40
7. 100 Feet 6 inch belting..................................... 87
8. 40 “ 5 “ “ .................................... 28
13. 1 Set of Blocks.............................................. 25
14. 1 Stove......................................................... 10
15. 1 "Wheelbarrow............................................... 15
16. 1 Set trucks..................................................... 8
The evidence is all in the record. The only evidence bearing on the question under consideration was that given by Kent, one of the plaintiffs, who testified, in substance, as follows: That the first eight articles embraced in the schedule had been used in the warehouse for the purpose of operating it; they were tools, implement's and fixtures used in the warehouse business, butmost of them had been dispensed with, owing to alterations in the mode of operating the warehouse. Plaintiffs had dispensed with most of them before the policy issued, but he could not tell which they were. The belting, one of the corn shellers and beam scale were the only articles recollected by the witness that had been dispensed with. A set of blocks, the 13th item, did not belong to the warehouse, they were used for raising buildings and were in the warehouse for safe keeping. The wheelbarrow and trucks did not belong to the warehouse,
We are not aware that the term “merchandise” has any fixed and technical legal signification. Webster defines it thus: “ The objects of commerce, wares, goods, commodities, whatever is usually bought or sold in trade.” “ By this term is understood all those things which merchants sell, either wholesale or retail, as dry goods, hardware, groceries, drugs,” &c. Bouvier’s Law Die.
Here the principal business of the appellants, as the evidence shows, was that of purchasing grain, and shipping it to other markets for sale. They were grain merchants, and kept the warehouses for the purpose of receiving and storing grain purchased for market. The appellant’s counsel disclaims "making any question in this court as to the stove, wheelbarrow or trucks. The platform scale was evidently a fixture, and belonged to the realty. All the other articles for which compensation was claimed were tools, implements or articles of property purchased for use in the warehouse, as necessities or conveniences in the transaction of the appellants business, and, with the exception of the belting, one corn sheller and the beam scale, continued so to be used, as occasion required, until they were destroyed by fire: By a change in the mode of doing business, the belting,
It is contended by the appellants that the term “merchandise” may include every species of inanimate, movable property. If we concede the correctness of this proposition, still it does not determine this case, as the sense in which the term is to be understood must, in a great measure, depend upon the connection in which it is used. ‘When applied to the goods of a merchant, it would seem only to relate to his stock in trade, or articles kept for sale. If applied to goods in transit, or in the temporary possession of a commission merchant for delivery to the owner, we see no reason why it should not cover articles of personal property, not designed by the owner for sale.
In the case at bar, we do not think the property in controversy was merchandise, within the meaning of the term as it was used in the policy of insurance.
The judgment is affirmed, with costs.