New Orleans Insurance v. Holberg

Arnold, J., delivered the opinion of the court. The policy was not forfeited by the sale and assignment from Pollock & Co. to Holberg & Klaus. The written attestation of. the assignment of the policy, indorsed on the policy by the agent of the association who issued the policy, with knowledge of the sale of the goods, was a sufficient compliance with the terms of the policy in reference to sale and assignment. No condition of the policy was violated by the insurance taken on the stock of goods after the policy sued on was issued. There-was insurance to the amount of eleven thousand dollars on the goods at the time the policy in suit was issued, and this concurrent insurance was recognized and allowed by an indorsement in writing on the policy in suit. The subsequent cancellation of one of [58] the policies for a part of the. eleven thousand dollars, and the issuance of a new policy by a different company for the exact amount of the cancelled policy, did not vary the terms of the contract. The sale or transfer by Klaus of his interest in the stock of goods to his partner, Holberg, without the consent of the association indorsed on the policy, was not a breach of the condition of the policy against a change in the title or possession of the property by sale, transfer, or conveyance. Under a literal'construction of this provision of the policy, if the assured in the usual course of business had sold any article of their stock to any person, or if either of the partners had died, and his interest had thereby devolved upon his heirs or the surviving partner, or if in the exigencies of business any variations had occurred in the character and, amounts of the respective interest of the assured in the stock as among themselves, the policy would have become void. It cannot be believed that such was the intention of the parties. If any such result was contemplated, it should have been clearly expressed in the policy. It cannot be fairly implied from the language employed or from the nature and object of the contract. A better view, not inconsistent with the language and purposes of the contract, is to regard the provision as inserted in the policy for the protection of the insured against the risk of having strangers, without its consent, substituted in the place of the original parties with whom it contracted, and to construe the provision as intended not to interdict all sales, transfers, and conveyances, but only such as were made by the parties insured to parties not insured by the •contract. Wood on Fire Ins., § 334, and authorities there cited. The judgment would be unhesitatingly affirmed if it were shown that the stock of goods was burned as alleged, but there is no evidence or proof of loss whatever in the record, and for this reason the Judgment is reversed.