Acer v. Merchants' Insurance

By the Court, Johnson, P. J. The plaintiff, at the time he procured the policy in question, had an insurable interest in the premises. He held a contract for the purchase from the owner, Mrs. Brown, and had made several payments thereon. Before obtaining the policy, he had contracted to sell the premises to Curtiss, and Curtiss had obtained a conveyance of the fee from Mrs. Brown without the plaintiff’s consent. But this conveyance to Curtiss did not affect Acer’s rights. Curtiss having full knowledge of the plaintiff’s rights, held the title subject thereto, as Mrs. Brown did before such conveyance. The plaintiff still had the equitable title, until his rights were adjusted, as we have held in another case in reference to the same property, under this contract between the plaintiff and Mrs. Brown. It was not a conditional right, but an absolute ■right, to the extent of his ownership, or equitable title. -The plaintiff was not guilty of any fraud, which vitiates-the contract, in representing himself as the owner of the property. He exhibited his contract with Curtiss, and the defendants were fully informed of it. The cases of Chase v. Hamilton Mutual Insurance Co., (22 Barb. 527;) Tyler v. Ætna Insurance Co., (12 Wend. 507; S. C., 16 id. 385, in the Court of Errors,) entirely settle both points, as to the insurable interest, and the absence of fraud by means of the representation. The remaining question is whether the plaintiff’s policy was avoided by the act of Curtiss in taking out a policy on the same property, subsequent to the plaintiff’s. The plaintiff was ignorant that Curtiss had procured an insurance upon the property until after the loss by the fire had occurred. The plaintiff’s insurance was of his own inter 83 est, and that of Curtiss upon his interest in the same property. The plaintiff’s policy has this condition: “If the assured, or any other person or parties interested, shall have existing during the continuance of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage by fire, on the property hereby insured, not consented to by this company,” &c., “then this insurance shall be void and of no effect,” &c. This is a general provision, and the question is, whether the “ other persons or parties interested,” specified in the condition, refers merely to parties interested in the plaintiff’s insurance, or to other parties who. may have a different interest in the property, from that held and owned by the plaintiff, and who may obtain insurance upon their interests in the same property. I am clearly of the opinion that the condition is limited to the former class, and that it was not the understanding or intention that any other person who might have a separate interest in the property, and not connected in interest with the plaintiff, and having no interest in his insurance, might avoid the plaintiff’s contract by obtaining an insurance of his own interest in the property, without the plaintiff’s knowledge or consent. Such a construction would render the contract exceedingly - harsh, unreasonable and oppressive, and the parties will not be deemed to have so contracted, if the language used by them fairly admits of a different interpretation. I think the interpretation I have adopted is not only more in consonance with justice, but with the rules of language. By this rendering, “the parties interested” is construed to mean those interested with the plaintiff in his contract, instead of outside persons who might have some distinct and separate interest imthe property. The same construction was given to similar language in the case in 12th and 16th Wend, before cited, and also in The Mutual Safety Insurance Co. v. Hone, (2 N. Y. Rep. 235.) In that case, such words were held to apply only to a double insurance of 84 the same • interest. I am of the opinion, therefore, that the plaintiff’s policy is entirely valid, and that he is entitled to recover the damages sustained by him, to the amount agreed upon, with his costs of the action. [Monroe General Term, March 7, 1870. This view disposes also of the other case argued with this, that of Acer V. The Narraganset Fire and Marine Insurance Co. Judgment in that case is also ordered in favor of the plaintiff, for the amount of loss and damage agreed upon, with costs of the action. Johnson, P. J,, and J. G. Smith, and Dwight, Justices.]