Cook v. Loew

MacLean, J. Insurance, pursuant to the contract or policy herein, was placed upon lumber, etc., “ in yard,” which, by common and current acceptation, is “ an inclosure within which any work or business is carried on.” The agreement was entered! into in this city, with the meaning ordinarily attaching to such' expression, for the fair import of the words and the intention of the parties as expressed in the terms of their agreement must guide our construction. To hold that “ yard ” is a clearing in a forest, and was so used and understood by the parties to this contract, is apparently not discoverable from the agreement itself. ■It would seem that this brief expression, to the common understanding, and when used in connection with an insurance against fire, conveys quite unmistakably the meaning expressed, within the intention of the contracting parties. But the plaintiffs contend that the expression has other and more comprehensive meaning in the locality where the property destroyed was situated, and, with the introduction of extrinsic evidence, urge that there it may and does mean a clearing in a forest. “ It would seem however, that fipon principle, for a party to be bound by a local usage, * * * he must be shown to have knowledge or notice of its existence. * * * Usage is engrafted upon a contract or invoked to give it a meaning, on the assumption that the parties contracted in reference to it; that is to say, that it was their intention that it should be a part of their contract wherever their contract in that regard was silent or obscure. But could intention [278] run in that way unless there was knowledge of the way to guide it? Ho usage is admissible to influence the construction of a contract unless it appears that it be so well settled, so uniformly acted upon, and so long continued, as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference thereto. There must be some proof that the contract had reference to it, or proof arising out of the position of the parties, their knowledge of the course of business, or other circumstance from which it may be inferred or presumed that they had reference to it.” Walls v. Bailey, 49 N. Y. 464, 473. The defendants, moreover, insist that the damages are excessive. The policy in suit was written for .$1,500. The verdiet awards $177.50 against each of the ten defendants, with interest from January 15, 1895, to the date of the trial. But the plaintiffs contend that “ the only provision in the policy with reference to contribution or coinsurance is the rider attached, as follows: ‘ Percentage coinsurance clause. If at the time of fire the whole amount of insurance on the property covered by this policy shall be less than 80 per cent, of the actual cash value' thereof, this company shall, in case of loss or damage, be liable for only such portion of such loss or damage as the amount insured by this policy shall bear to the said 80 pep cent, of the actual cash value of such property.’ The condition was not pleaded, but upon the defendants’ own proof, made by offering the proofs of loss in evidence, it appears that the property was insured for $27,500, an amount in excess of the 8 0 per cent, of the cash value. The plaintiffs have therefore complied with the requirements of the clause.” In Lucas v. Jefferson Ins. Co., 6 Cow. 635, 637, it is said “ that upon a double insurance, though the insured is not entitled to two satisfactions, yet in the first action, he may recover the whole sum insured, leaving the defendant to recover a ratable satisfaction from the other insurers.” According to a copy of the policy attached to the pleadings “ the underwriters shall not be liable under this policy for a greater proportion of any loss on the described property, * * * than the amount hereby insured shall bear to the whole insurance.” Here seems to be an express stipulation running contrary to the contention of the plaintiffs, and if the defendants now pay the full amount of their subscription, they will not be able to recover “ a ratable satisfaction from the other insurers,” for “ the principle of contribu [279] tion can only be enforced where the party paying was under a legal obligation to pay.” Lucas v. Jefferson Ins. Co., supra, 638. Wherefore the verdict will be set aside and a new trial ordered. Yerdiet set aside and new trial ordered.