6 Wend. 623 | N.Y. Sup. Ct. | 1831
By the Court,
It was an express provision of the policy in this case, that if the building insured should, at any time during the continuance of the policy, be appropriated, applied or used, to or for the purpose of carrying on, or exercising therein, any trade, business or vocation, denominated hazardous, or extra hazardous, or specified in the memorandum ofjpecial rates in the proposals annexed to the policy, or for the purpose of storing therein, any of the articles, goods or merchandise, in the same proposals denominated hazardous or extra hazardous, or included in the memorandum of special rates, the policy should cease, and be of no force or effect. The trade or business of a "grocer is not mentioned or specified in the proposals annexed to the policy. It was not therefore a prohibited trade. Mxpressio unius, ex-clusio est allerius. The enumeration of certain trades, or kinds of business, as prohibited on the ground of being hazardous, is an admission that all other kinds are lawful under the contract. The case of Baker v. Ludlow, 2 Caines, 288, is precisely in point. There dried fish were enumerated in the memorandum clause as free from average, and all other articles perishable in their own nature. It was held that the naming of one description of fish implied that other fish were not intended; and that the subsequent words, c< all other articles perishable in their own naturewere not applicable to the articles previously enumerated, and did not repel the implication arising from the enumeration of them. In Doe ex dem. Pitt, v. Lanning, 4 Campb. 76, 7, Lord Ellenborough held, that a coffee house was not an inn, within the meaning
The only question then is, whether the keeping of oil and spirituous liquors in the store, under the circumstances disclosed in the case, was appropriating or using the building for the purpose of storing those articles within the meaning of the policy. Every thing that was kept, either in the store or cellar, was kept for the purpose of being retailed. The smaller vessels in the store were replenished from the larger ones in the cellar, which consisted at the time of the fire of one cask of oil, one barrel of rum, one cask of Jamaica spirits, and one pipe of gin; from all of which more or less had been drawn for the use of the store. It appears to me that the word storing was used by the parties in this case in the sense contended for by the plaintiff, viz. a keeping for safe custody, to be delivered out in the same condition, substantially, as when received; and applies only where the storing or safe keeping is the sole or principal object of the deposit, and not where it is merely incidental, and the keeping is only for the purpose of consumption. If I send a cask of wine to a ware-house to be kept for me, that is a storing of it; but if I put it into my cellar or my garret to be drawn off and drank, I apprehend the term would not be considered as applying. Suppose all the varieties of wine were denominated hazardous by the various insurance companies, and the storing of them was prohibited in their policies; could it possibly apply to the private stock which a gentleman might keep in his own house, for his own use and consump-" tion 1 It certainly would be perverting the term from its ordinary, and generally received acceptation.
I think the court below ruled correctly, and that their judgment ought to be affirmed.
