116 N.Y.S. 934 | N.Y. App. Div. | 1909
The material facts are not in dispute and are stated in the opinion. In August, 1907, Lewis De Groff & Son, wholesale grocers, jobbers and warehousemen, doing business in the city of Hew York, entered into contracts with the plaintiff for the purchase of all the Ho. 1 and Ho. 2 Refugee beans which the plaintiff had packed or would pack up to and including August"16 and 17, 1907, the date when shipment was agreed to be made, and De Groff & Son agreed to pay therefor $1.75 a dozen for the Ho. l's and $1.40 a dozen for the Ho. 2’s, f. o. b., Hew York. The Sauquoit Canning Company, made a party defendant upon the ■ trial (it being agreed that the complaint and answer should be amended accordingly), was engaged in the same business and was under the same management as the plaintiff, and the contract of purchase made by De Groff & Son was understood to include the beans owned by the Sauquoit Company as well as those owned by the plaintiff, although the title to-the same was separate and distinct. The sale was not made by sample, but was a sale of a well-known trade article by a trade name. Pursuant to the agreement of purchase so made between De Groff & Son and the plaintiff, beans belonging to the plaintiff of the value of $816.20, and beans belonging to the Sauquoit Company of the value of $621.80, were shipped to De Groff &. Son under such contract of purchase, where they arrived prior to August' twenty-
At the time of the fire Lewis De Groff & Son were inéured against loss by fire in the amount of $140,000 by policies issued by sixteen different insurance companies, defendant being one of them. The defendant had issued to De Groff & Son two policies of $5,000 each. All of the policies so issued and in force at the time of the fire were the standard Hew York policies, and were exactly alike, except a$ to the names of insurers and amounts, and each' had a
“ $3,154.47. “ New York, Dec. 30, 1907.
“ Received of the Home Insurance Company of Hew York Three Thousand One Hundred Fifty-four and 47/100 Dollars in full for loss and damage by tire of 23rd September, 1907, to the property covered by this policy, and policy is hereby canceled from this date.
“ LEWIS De GROFF & SON.
“ A. R. Pierson.”
As we have seen, such settlement and cancellation of the policies issued by the said insurance company was made with De Groff & Son with full knowledge on the part of said insurance company of plaintiff’s loss and of the loss of the Sauquoit Canning Company, proofs of loss having been served by the plaintiff and the Sauquoit Canning Company on all of said insurance companies on Hovember 18, 1907, and the settlement with De Groff & Son and the assumed cancellation of such policies did. not occur until December 30,1907
The plaintiff and the defendant Sauquoit Company made demand on De Groff & Son that they include the value of the goods of plaintiff and of the Sauquoit Canning Company, destroyed by the fire, in their proofs of loss and collect the same from the insurance companies for their benefit, but De Groff & Son refused so to do. Prior to the bringing of this action plaintiff made demand upon said De Groff & Son to bring a suit on said policies for the plaintiff’s benefit, or; in lieu thereof, to permit the plaintiff to sue in the name of said De Groff & Son on said policies, and said De Groff & Son refused to bring such suit or to allow, the use of its name. Thereupon this action was brought by. the plaintiff against the defen d-ant insurance company to recover the proportionate share of the loss sustained by the plaintiff, which the defendant became obligated to bay, assuming plaintiff’s goods were protected against loss by fire under the policy issued by the defendant.
The learned trial court has found, upon competent and sufficient evidence, that the sound value of both lots, of beans, at the time of the fire,, was $1,437.80 ; that the value of the salvage- of both lots was $151.71, which should be divided equally'between both owners, and that the net loss to the plaintiff occasioned by the fire was $737.43, and that the share of such loss which should be paid, by the defendant insurance company, because of the two policies issued by it of $5,000 each, is ten one-hundred-fortieths of said $737.43, plaintiff’s net loss, with interest from September 23,1907, or $52:67, with interest thereon from the date of the fire, for which amount judgment was rendered against the defendant, with costs.
Under the facts disclosed we think it clear that Lewis De Groff & Son weye bailees for hire as to the plaintiff’s goods, and that under the slip attached to defendant’s policies it had insured plaintiff’s goods and was liable to it for the damages sustained by reason of the fire.
The general rule of laiv is stated in American and English Encyclopaedia of Law (Vol. 13 [2d ed.], p. 216) as follows“This form of policy (on goods in trust or on commission)' is .similar in.its legal effect to the policy for whom it may concern, and arises in much the same way. The insurance is taken out by an agent, consignee or third party, and inures to the benefit of the real owner Of the
The rule thus stated is amply supported by authority. (De Forest v. Fulton Fire Ins. Co., 1 Hall, 94; Lee v. Adsit, 37 N. Y. 78 ; Waring v. Indemnity Fire Ins. Co., 45 id. 606;. Home Ins, Co. v. Baltimore Warehouse Co., 93 U. S. 527.)
We think the case of Burke v. Continental Ins. Co. (184 N. Y. 77) is not in conflict with the decisions to which attention has been called. In that case the assured held goods for the owner and by special contract Was to be liable for their safe storage^ etc., except loss by fire, and while the 'court approved the earlier decisions on the subject, it held that the goods were not protected against loss by fire owing to the limitation clause in the policy and in plaintiff’s, own contract with the assured.
In the- case at bar we think it clear that ’ under the terms of the policy it was intended by the defendant that everything which De Groff & Son should have in their warehouse in 'the course of their business was to be insured, and this would seem to-be the only purpose of the slip or clause which was added to the policy. Such slip was added to obviate the necessity of covering all sorts of different bailments with separate policies. We think that the fair interpretation and meaning of the policies was that they were intended to cover whatever property De Groff & Son had in their warehouse in the course of their business. Plaintiff’s goods were there in the course of such business, the.goods were lost and the plaintiff is now entitled to the protection of the policies. De Groff & Son were bailees of plaintiff’s goods for hire, and Under the authorities to which we have called attention, we think it clear that the defendant was liable to the owners of such goods for the loss which occurred to them by reason of the fire against which they were insured by the policies issued to De Groff & Son.
We, therefore, reach the conclusion that the judgment appealed from should be affirmed, with costs.
All concurred, except Spring, J., who dissented.
Judgment affirmed, with costs.