40 Pa. 311 | Pa. | 1861
The opinion of the court was delivered,
It is quito extraordinary that under a policy of insurance upon merchandise, contained in a building particularly described, a recovery has been permitted for a loss in another building, erected in part upon the site of the one in which the goods were insured. Yet such is the case now before us. The
But even though there was no consent to an alteration of the frame barn, we do not feel prepared to say that the plaintiffs might not recover for the loss on the goods contained in what remained of it, notwithstanding the alteration. The alterations which it was stipulated should avoid the policy, were such as increased the hazard without consent of the company. The court could not say, as a legal deduction from the facts, that the hazard was not increased with the consent of the company. There was a consent to the extension of the storeroom, and the fire commenced in that. The increased hazard was occasioned rather by that extension than by the alteration ; at least whether it was or not was for the jury.
We need say no more respecting the first, second, fifth, and sixth assignments of error.
The third and fourth assignments relate to the particular account of the loss and damage which, according to the conditions of the policy, the assured were under obligations to furnish to' the secretary of the company within thirty days after the loss. - We concur in opinion with the learned judge of the Common' Pleas, that the paper which was furnished to the president of the company, dated April 13th 1858, was not such a particular account of the loss as was required by the policy. It was the only account ever furnished. But we dissent from the opinion of the court that there was any evidence that the'requirements of the policy was ever waived. The memorandum of Dr. Rankin, given to the assured, instead of being a waiver was the opposite. It was in effect a denial of compliance with the terms of the policy. Nor can the examination of the books of Mr. Fulmer, in company with the agent of the Franklin Insurance Company,
Judgment reversed, and a venire de novo awarded.