Millaudon v. Atlantic Insurance

Bullard, J., delivered the opinion of the court. The present action is brought upon a policy subscribed by the defendants, by which they undertook to insure the plaintiff from loss by fire, on goods, being stock'in trade, on consignment, or held .in trust, contained in five tenements situated at the corner of'Commerce and Julia streets, twenty thousand dollars, the same sum having been previously insured on the same, at the Mississippi office. The defendants, after setting up an exception, which was overruled, arid which we - will notice afterwards, deny that the plaintiff has sustained any loss or damage covered by the policy'; and aver, that the goods stated by him to have been in the stores, at the time of the fire, were not, in fact, there; that they were neither owned by him nor held bn . . ■* Í ■ consignment, or m trust; and that, even if they were, which is denied, the said policy does not cover them for noncompliance with the first article of the insurance. ■ T • i , » It is shown, that the goods alleged to have been destroyed by fire, were purchased on the joint account of the plaintiff and William T. Thompson, to be sold by Thompson, with the consent of Millaudon, who were to participate in'the profits of the adventure; and that Millaudon Avas largely in [562] advance to the concern, by money paid on .account of the purchases. One-half of the goods must, therefore, be considered as the absolute property of the plaintiff, and he bad an interest in the whole, to cover his advances. It is sufficient, in our opinion, if the plaintiff shows such an interest as will come under the description of either stock in b'ade, or goods on consignment, or goods held in trust, according to the terms of the policy. In this case, we are of . . , 1 . , , . . , opinion, that Millaudon had an insurable interest in the goods, as stock in trade. His direct interest, as part owner, extended to every part and parcel of the goods in the store : and that the assured is entitled to recover the full value oí the g00^s br the store, consumed by'fire. 1 Hall’s Reports, 110. 1 Phillips on Insurance, 41 et seq. The amount of the property destroyed, is, perhaps a matter of more doubt; but that question was left to a jury, whose finding we do not feel at liberty to dispute, unless manifestly wrong. Although the evidence in the record does not make it very clear, yet the verdict was satisfactory to the judge before whom the trial was had, and who refused a new trial, and its correctness depending on the credit to be given to particular witnesses, it must be respected by this court. With respect- to the exception first set up by the defendant, that, according to the ninth condition of insurance, the plaintiff was bound, before instituting suit, to tender an arbitration, we are of opinion, that when the claim was made by the plaintiff for the loss, if the defendants had offered to refer the question to arbitrators, the plaintiff would have been bound to accept it. But, on the refusal of the defendants to pay, without seeking to avail themselves of the right given by that article, the plaintiff might well commence suit without any previous offer to arbitrate, as the defendant must be considered as having waived it. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.