212 F. 102 | 4th Cir. | 1914
Great importance was attached by the business men of Baltimore to the meeting of the National Democratic Convention in that city on June 25, 1912, and hotel proprietors in anticipation of the convention made contracts for entertainment, from which they expected considerable profit. On February 9, 1912, Frank C. O’Brien, proprietor of the Eutaw House, made a contract with Oscar C. Turner for the Underwood Marching Club to reserve sleeping accommodations for 400 persons for five consecutive days, beginning June 24th and ending June 28th, at $3 a day for each person — $1,000 to be paid on signing the agreement, $1,000 on March 1st, $1,000 on March 15th, and the remaining $3,000 on the day before occupancy of the rooms. An option was given in these words: .
“And it is further agreed — the option to increase the number of persons from four hundred (400) to as many more as desired up to six hundred and fifty (650) persons, is hereby accorded the said Oscar O. Turner, provided application is made for same not later than April 15th, 1912, at the same rate, per person, and length of term, as herein stated, and payment for the increased number to be made — one-half at time of application and the balance before occupancy of rooms.”
The option was extended to May 1st, when O’Brien was notified that the additional accommodations would not be taken. After two of the .payments had been made, the defendant on March 5th issued
“$10,000. On profit due the assured by reason of advanced paid-up contract for use of rooms during convention week, beginning June 24th, 1912. It is a condition of this contract of insurance that if the building shall be destroyed by fire or lightning so as to prevent the assured from fulfilling his contract for the total number of rooms, this company shall be liable at the rate of $1,428.57 per day and in case the building is so damaged that the assured can partially fulfill his contract, this company shall be liable for that portion of $1,428.57 which the reduction bears to the per diem amount.
“This insurance shall reduce in amount at the rate of'$1,428.57 per day, after the first day of convention week.
“On property known as the ‘Eutaw House,’ situate at the northwest corner of Baltimore and Eutaw streets, Baltimore, Maryland, and extending through to Garrett street and to an alley in the rear, and leased for hotel and store purposes.
“It is understood and'agreed that the building stands on leased grounds. Subject to revision of rate.”
The Eutaw House was so damaged by fire on May 25th that it could not be used for the entertainment of guests, and O’Brien was obliged to cancel his contract with Turner above recited and return $3,000, the amount of advance payments made thereon.
On the trial of the action on the policy the District Judge in charging the jury sustained and stated forcibly the position of the insurance company that the “profit due” the insured was the gross sum to be paid on the contract between O’Brien and Turner; that the gross sum which O’Brien would have collected but for the fire was $6,000, and that therefore the recovery must be limited to that sum; that the defendant could not be held liable under the second clause of the contract for $1,428.5'7 a day for seven days because that liability was conditioned on the taking of the “total number of rooms,” which was held to be 650, of which 250 were not taken.
■ Analysis of the contract, we think, will clear away the apparent obscurity, and show that this interpretation is not admissible. When the insurance company issued its policy, and up 'to the time of the fire, it had never seen O’Brien’s contract for rooms, and the evidence gives no intimation that it knew anything more definite of its terms than that he had made a contract for a large number of rooms in anticipation of the Democratic Convention. That the insurer in framing the policy did not have in view a certain number of rooms engaged and a certain number under option is shown by the fact that the policy refers to the contract as “advanced paid-up contract for use of rooms,” when the only contract in existence was not then, nor at any time, paid up in advance; that it did not have in view making the insurance policy coterminous or coincident with the contract as to time is shown by the fact that the contract for rooms calls for five days’ occupancy, while the policy insures for a specific sum for the- week, to be paid for each day of seven days; that it did not mean to measure and limit the amount of insurance by the gross amount that the insured was to receive for the rent of rooms is shown by the fact that the insurance is for $10,000, and it was impossible for the insured to receive that amount for room rent under his contract ; that it did not have in view any options or contingencies or oth
It is true that the word “profit” is sometimes used as synonymous with gross receipts, as in insurance policies on a ship’s freight charges. But the words “on profit due the assured by reason of advanced paid-up contract for use of rooms” would be very inapt to express insurance on gross receipts; and such a strained meaning must be rejected when, as here, it is incompatible with the general terms of the instrument. The only meaning of these words which will make the contract consistent in its parts is the plainest meaning, namely, the gain or benefit which it was expected the assured would derive “by reason of” the contract, not only from room rent but restaurant patronage and other transactions to be expected from hotel guests; this gain or benefit being valued at $1,428.57 a day for seven days. The condition expressed in the second clause of the insurance contract relied on by the defendant strengthens this conclusion; for evidently it is a stipulation as to the contingency of the degree of damage from fire, and not a contingency as to the number of rooms contracted for; and it means that, if the hotel should be so damaged by fire that all or “the total number of rooms” covered by the contract should, for that reason, become unavailable for use, then the loss is valued at $1,428.57 for each day of the week, amounting in the whole to $10,000, and that the valuation of the loss should be reduced in proportion if the contract for rooms should not be entirely defeated by fire, but a part of the rooms covered by the contract should become unavailable on account of fire.
Comparison of the policy and the contract in the light of the correspondence and other circumstances indicates that the insurer did not take the pains to ascertain precisely what contract the insured had. But, however vague the insurance company’s knowledge of the contract may have been, there is no vagueness or uncertainty in the valuation fixed, for it plainly agreed to value the profit on the .contract, whatever it might be, at $1,428.57 a day for seven days, aggregating $10,000.
The defendant strongly relies on cases like Forbes v. Aspinall, 13 Eng. Ruling Cases, 673, 13 East, 323, to bring this case within the rule which the court thus states in “The Main,” supra, as laid down in Forbes v. Aspinall:
“But that case is only an authority for a very well-known proposition, viz., that where both parties contemplate the freight insured to be on a full and complete cargo, and when, in fact, part cargo only is shipped, the freight on the part cargo is all that is‘at risk, so that there must be what is called an opening of the valuation. In strictness it is not an opening of the valuation, but is merely a reduction in proportion to the amount of cargo shipped; the valuation being held binding as a valuation on that portion which is shipped.”
The present case does not fall under this rule, for here the insurance was on the profit derivable from a contract for use of hotel rooms which the insurer agreed to be of the value of $10,000. As we have seen, the insurer in agreeing to this valuation of the profits could not have had in mind nor issued its policy with respect to any options or contingencies expressed in the contract for use of rooms which might increase or reduce the profit, for it had no knowledge of such particulars of the contract.
No attention has been paid to the usual printed clauses pretending to limit liability to the actual value of the property lost, for the case is controlled by the special contract which was written and pasted on a standard policy.
The jury should have been instructed to find a verdict for the plaintiff for $10,000 and interest.
Reversed.