Lead Opinion

Cooley, Ch. J.:

The facts in this case are stated with sufficient fullness in the opinion delivered when it was before us on a former occasion, and reported in 33 Mich., 138. The case has again been tried with the same result as before, and the question now is, whether any new showing was made on the second trial which will require a different conclusion.

The only new fact which appears to me of importance is, that the renewal policy issued by the Home Insurance Company, was actually issued before the transfer of the property covered by it to the firm of Verdier and Brown, though the premium for it was paid afterwards. But by the former record it appeared that the renewal bore date before the transfer, and no question was made of its having been issued at the time it bore date. The presumption would be that such was the fact. In this particular, therefore, I cannot perceive that the case is changed.

I do not think we are at liberty to go into the question whether the Home Insurance Company waived the forfeiture which might have been insisted upon after the transfer of the Home policy by Verdier to Verdier and Brown, or whether *the Home Company treated its policy as a subsisting one, by joining in the adjustment. The fact is undeniable that Verdier and Brown, after the fire, dealt with the claim against the Horae Company as a valid claim, and sold it as such; and this sale might complicate and per*377haps defeat the right of the plaintiff in error to be subrogated to the original rights,- — -if any existed, — of Yerdier and Brown against the Home Company, in case the plaintiff in error was compelled to pay, without any deduction on account of the policy issued by the Home. But the actual liability of the .last named company appears to be immaterial. The plaintiff in error required the insured to stipulate in their policy that in adjusting a loss other existing policies should be taken into the account, even though forfeited; the plain purpose being to protect the company against the necessity of contesting with the insured any question of the validity or invalidity of other existing policies. This was a competent provision, and not unreasonable.

The judgment, I think, should be reversed, with costs, and a new trial ordered.

Graves, J., concurred.

Concurrence Opinion

Marston, J.:

I concur in the above opinion, upon the ground that the policy in the Home Company was issued to Yerdier, who at the time of the loss had an interest in the goods as a member of the firm of Yerdier and Brown; and because the firm, after the loss, claimed the policy in the Home Company was a valid, subsisting one, and assigned their claim under it, which would have the effect stated in the foregoing opinion. While the clause relied upon in defense, in my opinion, can have no application where the insured has no interest in the goods at the time the owners obtain a new policy and when the loss happens, yet in a case like the present I think it does.

*Campbell, J.:

When this case was last before us, there was evidence in the record from which it seemed probable that the Home Insurance Company had become estopped from questioning the validity of the policy held by Verdier before his partnership with Brown. The terms of the policy prohibiting any change in the ownership of the insured property, are now in evidence, *378showing that by the formation of the partnership agreement the policy was terminated, unless afterwards revived. The evidence now shows that the renewal took place before the partnership, and that the firm of Sinclair Bros, allowed the. amount to fun until paid after the fire to their clerk in their behalf. But, inasmuch as the whole premium was due in advance, and the insured could not claim any portion of it hack after a voluntary relinquishment of the policy, the subsequent retention by the Home Company or their agents of money which in any event belonged to them, was rightful, and had no effect in renewing a void policy.

There is no testimony in the present record showing any other action of the Home Company in the matter; and therefore there is nothing to indicate any waiver or estoppel against, them. This being so, all other questions which might he presented under the rulings are unimportant, as the valid existence of the Home policy is the only ground on which the judgment could be disturbed, and I am of opinion it should be affirmed.

Judgment reversed, with costs, and a new trial ordered.