56 N.H. 326 | N.H. | 1876
FROM BELKNAP CIRCUIT COURT. I have come to the conclusion that there is no legal reason why the plaintiffs should not have judgment on the verdict, provided they remit the sum of $25, and interest thereon from April 8, 1871, to September 25, 1873.
Without the assistance of an argument or brief from the plaintiffs' counsel, I think the case shows an answer to all the defendants' objections.
Their first point is, that the true state of the title was not disclosed by the plaintiff at the time of procuring the insurance; but that they stated that they were the owners when they were not. It is certain they had an equitable and insurable interest of some amount in the premises by virtue of the assignee's sale, and the written contract made in pursuance of that sale with Guion, the assignee in bankruptcy of *331 Petrie Co. They may be said to have been the equitable owners to the extent of that interest.
But the jury were instructed that under the statute (Gen. Stats., ch. 157, sec. 2) the plaintiffs' omission to state the facts as to this matter would not avoid the policy, unless such omission was intentional and fraudulent. The verdict under these instructions settles the fact that the omission was not intentional and fraudulent, and I am of opinion that this brings the case within the saving effect of the statute. The forfeiture of a policy for such a cause, that is, an innocent mistake or misrepresentation in making the contract, is clearly the very mischief against which the statute was intended to guard.
The second point is, that there were no proper instructions as to a reduction of the amount recoverable on the policy by reason of the risk being greater in fact than it would have been in case these mistaken representations of the plaintiffs had been true.
The answer to this is, that the case does not show that such instructions were not given, and it is to be presumed they were given. Besides, no such exception appears in the case; and it is in accordance with the uniform and familiar practice in this state to hold that if the defendants wanted more specific instructions on this point than were given, they should have asked for them at the trial.
The third point is, that the policy provides that the insured shall be entitled to recover, in case of loss, only the proportion which the sum insured bears to the whole amount of all the insurances which were on the property; that there were in fact three policies, two besides that of the defendants; and yet the jury were directed to assess the plaintiffs' damages on the basis that there was but one other policy, — that in the North American company, — leaving out of the account entirely the policy in the AEtna company for $2,500, obtained by Petrie Co., payable in case of loss to Sleeper Roby, mortgagees, and indorsed by that company, payable to Guion, assignee for Petrie Co., mortgagees.
The answer to this is, the policy in the AEtna company was upon a distinct and separate interest in the property from that upon which the defendants' policy was written. That insurance was on the interest of the mortgagees, while this was on the equity of redemption. The jury were properly directed to apportion the loss between the two companies which had insurances on the same interest according to the amount of the respective policies, taking as a basis, not the whole value of the property, but the value of the plaintiffs' insurable interest, that is, of their interest as owners of the equity of redemption. There was certainly no injustice in this, and I see no legal objection to the course pursued.
The fourth point is, that inasmuch as the special finding of the jury shows the actual loss on the boiler, shafting, and steam-pipe to have been $700, the jury were wrong in assessing the damages at $375, or one half the value of the property, instead of one half of the loss on that property, which would be $350. But the case provides that *332 the plaintiffs may enter a remittitur; and I think they must remit this $25 and interest before judgment can be entered on the verdict.
The fifth point relates to the execution of the deed from Guion to the plaintiffs. If I correctly understand the case, one complete answer to this objection is, that the deed was immaterial, for the reason that it was not delivered until after the date of the policy in suit. If I am right in this, it is not necessary to inquire whether the proof of its execution was sufficient.
CUSHING, C.J. I have nothing to add to what has been said by my brother LADD.
SMITH, J., concurred.
If the plaintiff remit $25 and interest, they will be entitled to
Judgment on the verdict.