30 N.Y.S. 508 | N.Y. Sup. Ct. | 1894
Defendant’s testator entered into an agreement with plaintiff on the 16th day nf March, 1889, by which certain premises were leased to him for a period of years,- with the right to purchase upon compliance with the conditions named. In addition to the stipulated sum to be paid as rent, the lessee further covenanted “to keep in force insurance on said property, for the benefit of said bank, in the sum of ten thousand dollars, in such ■companies as said bank shall approve, and also to pay all taxes assessed on said premises and property for the year 1889, and thereafter in the event of his purchasing said property as aforesaid.” In August following, the mill buildings were destroyed by fire, and the plaintiff, ascertaining that the lessee had not taken out a policy of fire insurance in its name or for its benefit, commenced this action. Upon the trial, and immediately after plaintiff’s counsel had opened the case to the jury, “defendant’s counsel admitted that the plaintiff was a national bank, organized under the laws of the United States, and doing business at Great Barrington, in the state of Massachusetts; that on or about March 16, 1889, the plaintiff and Allen F. Hand entered into an agreement, a copy of which is annexed to the complaint; that the said Allen F. Hand entered into and took possession of the lands and property described in the said contract, being certain premises known as the Berkshire Paper Mill property in the village of Mill river, Berkshire county, Mass.; that the said paper mill was destroyed by fire on or about August 14, 1889; that there was no fire insurance existing upon the mill at the time the mill was burned; and that, for the purpose of this case, the mill property was worth ten thousand dollars ($10,000), and that interest on $10,000 from August 14, 1889, to the date of the trial was $2,833.33, and the plaintiff’s total claim $12,833.33. Plaintiff thereupon rested.” Defendant’s counsel then put in evidence a policy of insurance upon the prem
“The agreement was not a contract of insurance, but of sale; and the measure of damages for the breach of it was the value of the thing sold. A sum that would procure a similar policy, and thus place the plaintiff in the position she would have been in had there been no breach of the contract, would indemnify her, and she cannot elect to go without insurance, and hold the defendant as insurer. Damages resulting from the burning of the building are not the direct and natural consequence of the breach of the defendant’s contract, and could not have been contemplated by the parties as included in it. The natural consequence of the failure of the defendant to perform his contract would be that the plaintiff would procure another policy of insurance, and she cannot charge the defendant with the consequences of her neglect to do that.’’
The argument in that case is applicable to this one. Hand’s contract was not one of insurance, but of leasing. The agreement does not contemplate that he should become the insurer of the property,—that the lessor should look to him in case of loss by fire to the extent of $10,000,—but rather that for the use of the premises he should pay the taxes, whatever sum should be assessed against the property, and the insurance premiums necessary to keep in force a $10,000 policy, no matter what the expense of it should be, and in addition, should pay a fixed sum to the lessor, which thus