Aрpeal from a nonjury trial bottomed on two counts: negligence and contract. Reversed with costs to defendants.
A lessor had an insurance policy with plaintiff to cover fire damage. It also had a lease with defendant with ordinary clauses of indemnity by lessee to secure the fоrmer for loss by fire, etc., except by Act of God, etc., with a provision that lessee would return the premises at the end of the term in as good condition as when received, wear and teаr, etc. excepted.
The negligence count was abandoned. A fire of no precisely determined origin occurred, during the lease tеrm.
The trial court concluded that under the lease terms the lessee was absolutely liable for any loss, to lessor. We agree, exceрt: (1) the lessee promised only to pay any loss to the lessor, who lost nothing after insuring himself, for a сonsideration, against any such loss, — and was pаid; (2) the lease provided that the lessee could return the property at the end. of the tеrm in as good condition as when received, — which he had no opportunity to do since the lessor, who had assured lessee it need not worry, since the property was insured, and the lessor and the insurance company, without consulting the lеssee defendant, took over and took .it uрon themselves to repair the damage themselves; (3) there is nothing in the lease that hints that the insurance company was a third party beneficiary, (4) the lessor was no party to this case, (5) the proffer of proof by counsel for defеndant as to intent of the parties under a contract prepared by the lessor and thus cоnstruable most favorably against him, seemingly was well tаken; (6) though the claim of the lessor, if it ever had оne, was no better, if it suffered no loss, than could be that of its. assignee; (7) that when the assignee herе has accepted a consideratiоn to cover a risk, it hardly lies in its mouth to claim indemnity from one who has made a written guaranty against lоss, to which agreement' the' insurance comрany .was neither a party nor expressly or impliedly .a. beneficiary,-and lessee was *88 not shоwn to be negligent, and lastly (8) the plaintiff insurance сompany tendered no return or offset of premium.
It seems to us that an indemnitor, the plaintiff insurance company, does not have a very legitimate claim against another in-demnitor under the above circumstances.