Bryce v. Lorillard Fire Insurance — 35 N.Y. Super. Ct. 394

Majority

p. 394

CHARLES S. BRYCE, Plaintiff and Appellant, v. THE LORILLARD FIRE INSURANCE COMPANY, Defendant and Respondent.

Headnote

The designation of the precise place of deposit or storage of the merchandise insured in a policy, is an essential and material part of the contract. An insurance company having issued its policy, containing a precise description of the locality of deposit or storage, and the insured party having received and accepted it in that form, he cannot afterwards say that the contract was or should have been otherwise. In such a case, it will be assumed that the insured agreed to the description in the policy, and is as much bound by it as by any other part of the instrument.—See the opinion of the court, Mqnell, J., for authorities cited on this point.

Tn an action upon a policy, where amendment to its conditions because of mutual mistake is sought (as well as recovery for a loss by fire), mere contradiction in the evidence is not conclusive that a mistalie was not mutual; but upon the weight of evidence the court decides, as a question of fact, whether or not the mistake was mutual, and by deciding in the negative, virtually determines that the contract was of the precise terms, tenor, and effect as contained in the written policy.

Before Monell, Freedman, and Curtis, JJ.

Decided April 5, 1873.

Appeal from a judgment.

The action was upon a policy of insurance to recover for a loss "by fire.

The policy contained the following description : “Four thousand dollars on merchandise . . . contained in letter “ C,” Patterson Stores, So. Front, "below Pine Street, Philadelphia.”

The complaint alleged that the merchandise, consisting of twenty-seven barrels of whiskey, was at the time of the issuing and delivery of the policy, and up to the time of the loss, “in letter ‘A’ of the said Patterson Stores ; ” and that, nevertheless, the same was intended, "both "by the insured and insurers, to be insured as mer

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chandise, then kept and thereafter to be kept in said section “A” in said building, and was in fact there insured ; and the statement that the same was in section letter “ C,” in said building, as in the description clause stated, was wholly through inadvertence and mistake, and was not, in fact, according to the contract of insurance made.

The relief sought a reformation of the policy, correcting the alleged mistake and a recovery for the loss.

The defendant denied there was any mistake in the policy, and alleged that the insured, at the time of the insurance, represented to the defendants that the merchandise was contained in building known as letter “ C,” Patterson Stores, and that such representation was written on the face of the contract and formed a part thereof, and that such representation was false.

The action was tried by the court without a jury.

Brown, the agent for the insured, testified that he applied for the insurance, that he had a memorandum which he had received from the insured, and which he handed to the defendant’s agent, and from which such agent took the particulars of the insurance. The memorandum was a storage receipt as follows:

C. Mb. 51. Warehouse Certificate. W. B. 4.

Pg. 81.

The Penn Warehouse Company, of Philadelphia, hereby acknowledge to have received on the 18th day of December, 1868, from John Lavens, twenty-seven barrels whiskey, and will deliver the same upon payment of storage and other charges, and the surrender of this certificate, which is transferable by delivery. Five Cent Internal Revenue Stamp Cancelled.

It is expressly agreed that the Penn Warehouse Company have no knowledge of the contents of said packages, and are not responsible that they are as stated, and that said company shall not be liable for, or for

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injury to, or destruction of, said merchandise, unless caused by the gross neglect of the said company or their agents.

By the Penn Warehouse Company.

Philadelphia, Dec. 22d, 1868.

:............•: (Signed) J. M. Collingwood, Treasurer.

(Signed) W. C. Patterson, Jr.,

for W. C. Patterson, President.

[Memorandum: Extra Monon., Jno. Lavens, Phila., 27 bbls. whiskey.]

Lavens the insured, and the plaintiff’s assignor of the policy, testified, that he was the owner of the whiskey, and that he had no other whiskey in the warehouse.

The treasurer of the warehouse company, being shown the storage receipt, testified as follows:

We had three kinds of certificates. ■ One kind was used to be given for receipts for goods in foreign bonds or under charge of the custom-house officers. Those certificates in that book were not lettered. We called it the “ A ” book, to distinguish it from these other two books entitled “B” and “0.” The “B” certificates were for such goods as had not paid the internal revenue tax. The “0” certificate book was for such goods as entered our warehouse in bond after the tax had been paid, or released from tax, or such goods as entered our warehouse free from tax.

Q. That “ C ” refers to the book ?

A. That “C” refers to the book from which the certificate was taken.

Q. And the “ C ” 511

A. “ 51 ” was the number of the certificate taken from the book.

Q. This was taken from the stub and cut off as in a check book %

A. Yes, sir.

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Q. Were these two letters “B” and “C” used to indicate clear whiskey and Bonded whiskey ?

A. Yes, sir.

Q. So this “ C” indicated clear whiskey ?

Q. That was in order to distinguish one from the other ?

A. To distinguish the tax paid from the tax due.

Q. Is that No. 51 in your handwriting ?

A. The figures “5” and “1” are. The “C” is printed. The “ 51 ” is my writing.

Q. Look at the Back of that certificate and state whether that is in your handwriting.

A. Yes, sir, the endorsement is in my handwriting. The letter “O” and the figures “ 5” and “1” of the No. 51.

Q. Then this means the same thing as the ££C” in the corner ?

The Building known as “Patterson Stores” was divided into eight apartments or sections of 25 By 130 feet, and designated By the letters A, B, 0, D, etc. The subdivisions were substantial Brick walls, with no communication except a shaft and a separate entrance to each from the street.

Lancaster, the defendants’ agent, testified as follows :

Q. Do you recollect Mr. Brown, who has testified, calling upon you to effect this insurance ?

. A. Yes, sir.

Q. Will you state what occurred at that time Between Mr. Brown and yourself?

A. Mr. Brown, I think, upon the 22d day of December, Brought an order for $4,000 on whiskey in Patterson Stores “ C.”

Q. Did he give you any memorandum at that time ?

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A. I have no recollection of taking or seeing a memorandum.

Q. {By the Court): What did he say %

A. I think he read from a memorandum.

Q. What did he read ?

A. To insure $4,000 on whiskey of Mr. John Lavens in Patterson Stores “ 0.”

Q. He read that to you from the memorandum %

A. Yes, sir.

Q. You did not see that memorandum ?

A. I have no recollection of seeing it; it was of no account; I was so familiar with the locality I would hardly require it. We had thousands of dollars at that time of insurance.

Q. Did you know the Penn warehouse at the time of effecting this insurance ?

Q. How were the different sections separated, the one from the other ?

A. By hrick walls extending above the roof.

There was a 22-inch wall on each side of the sections extending beyond the roof.

He further testified, that in making an insurance, whether he would refuse to take a risk in one section and accept a risk- in another, would depend on the amount of the insurance in any one section.

The entire warehouse was destroyed.

, Another witness testified that he had surveyed the building, and each section as a distinct building.

The court found the following facts:

I. That after the fire and loss alleged in the complaint, and before the commencement of the action, J. A. Lewis, cashier, mentioned in the policy of insurance, made by the defendant to one John Lavens, dated on the 22d day of December, 1868, and numbered 5,450, and sued on in this action, duly assigned and transferred

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to said John Lavens all his right, title, and interest in said policy, and all money due thereon ; and that thereafter and before the commencement of this action, the said John Lavens duly assigned and transferred to this plaintiff the said policy and the claims and demands of said Lavens upon and against the defendant by reason thereof; and that at the time of the commencement of this action, the plaintiff was the owner and holder of said policy, and all claims and demands thereon.

On the same day Lavens employed one James Brown, an insurance broker, to effect insurance for him against loss and damage by fire, to the amount of $4,000, upon said whiskey, and handed to Brown the warehouse certificate for that purpose.

At the time of such application Brown, apparently reading from a memorandum in his hands, instructed Lancaster to insure $4,000 on whiskey in Patterson Stores “ C.”

Lancaster, defendant’s agent, at the time of said application, understood that the letter “ C,” mentioned in the instructions above in the 5th finding found to have been given him, referred to compartment “C” of the warehouse.

The defendant would have insured the whiskey in section “A” as cheerfully as in section “ 0.”

The court by its judgment refused to reform the policy, and held that the insured was not insured against the loss alleged in the complaint. The complaint was dismissed, and the plaintiff appealed.

Mr. A. C. Fransioli and T. Darlington, for appellant.

Mr. C. Norwood, Jr., for respondents.

I think the decision of the court refusing to reform the contract of insurance, was, upon the facts, clearly within the principles governing such relief.

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The evidence of Brown for the plaintiff, and of Lancaster for the defendants, who alone testified to the facts relating to the place where the whiskey was stored, differ so essentially in respect to what was said, and what took place at the time the insurance was effected, that there could not have been such a mutual mistake as is required to authorize the court to correct the contract (Pennell Wilson, 2 Robt. 505 ; Boardman v. Davidson, 7 Abb. [N. S.] 439).

A mere contradiction in the evidence is not conclusive that a mistake was not mutual. The contradiction may be fraudulent, and made for the purpose of preventing a change in the contract, as it was executed by the parties. It therefore became a question of fact, and is to be determined upon the evidence. If it can be seen that notwithstanding the contradiction, the weight of the evidence supports the alleged mistake, it will be determined that the mistake was mutual.

In this case the court has determined, as a matter of fact, not only that the alleged mistake was not mutual, but that the contract was of the precise terms, tenor, and effect as contained in the written policy ; and we think the evidence authorized such a conclusion. There is nothing in the case or in the evidence to cast suspicion upon the credibility of Lancaster’s testimony, and the court had the right to assume that he testified truthfully. Besides, there being perhaps some conflict between him and the plaintiff’s witness Brown, we cannot, upon well-settled principles, disturb the conclusions of the court.

I think it must be conceded, that if the words descriptive of the location of the subject insured were put into the policy by or through the representation of the insured, they are in the nature of a warranty, which, under the facts in the case, would avoid the policy.

Warranties of this nature are created by the representations of the insured. To give them binding effect, they

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need not necessarily be fraudulent. That they are received and accepted as true by the insurers, and enter into and form a part of the contract of insurance, and after-wards are found to be untrue, is all that is required to give force and effect to them as a warranty. Nor is it of any importance that the subject of the representation cannot and did not increase the risk. It is a condition precedent, that it shall be absolutely true, and no recovery can be had if it was untrue (O’Neil v. Buffalo Ins. Co., 2 N. Y. R. 122).

The sufficiency of these descriptive words as a warranty is sustained by the following cases.

In De Hahn v. Hartley, 1 Term R. 343, the representation was, that the vessel “ sailed with fifty hands and upwards, 5 ’ and she sailed with forty-six only. Held it was a warranty, and being inserted in the policy, it must literally be complied with.

In Jennings v. Chenango Co. Ins. Co., 2 Denio, 75 , in the printed application for insurance the insured stated “ the mill is bounded by space on all sides.” As this was untrue the' policy was avoided. In that case the distinction between a representation and a warranty is defined. The former is of some matter out of and collateral to the contract, and making no part of it, while the latter is of some matter appearing on its face.

In Kennedy v. St. Lawrence Ins. Co., 10 Barb. 285 , the application required the insured to state the number of buildings within ten rods of that iii which the goods insured were deposited, and he omitted to state all the buildings. This defeated a recovery.

In Wall v. East River Ins. Co., 7 N. Y. R. 370, the goods (a rope-maker’s stock) were described as “contained in a brick building with tin roof, occupied as a storehouse, ” etc. It appeared that a part of the building was used for hackling hemp, and spinning it into rope yarn. It was held that the description was a warranty. See also Chase v. Hamilton Ins. Co., 20 N. Y. R. 52.

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The description in the policy in this case is merchandise “contained in letter 0, Patterson Stores.” These stores consisted of eight distinct divisions or sections, and were respectively designated "by the letters A, B, C, etc., by which designations they were well known, and especially by Lancaster, by whom the risk was taken. The division walls separating the sections were of brick, some twenty-two inches in thickness ; and there was no entrance or means of access to the different compartments, except through or by a separate door to each, from the public streets. The sections, therefore, were in substance separate buildings, and the designation of the precise place "of deposit of the merchandise was as essentially a part of the contract, as if the sections had not been adjacent to each other.

The defendants having issued their policy in the form, and containing the description of locality as now appears upon its face, and the plaintiff’s assignor having received and accepted it in that form, and with those contracts, he cannot now say the contract was or should have been otherwise.

In response to an application for a policy upon a stock of goods “ such as is usually 7cept in a country store” the company sent a policy among goods “hazardous,” and “not hazardous” only, which was accepted by the insured without noticing the change.”

It was shown that1 c extra hazardous ” goods were kept in the store. In an action to recover for a loss, it was held no recovery could be had (Pindar v. Resolute Ins. Co., 48 N. Y. R. 114). The court say, of an offer to prove that the difference between the policy applied for and the policy sent was not discovered until after the fire, that it could not change the construction of the instrument. “ The failure of the insured to read the policy could not enlarge the liability which it imposed upon the defendant.”

Applying the case just cited to the one under exami

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'nation, it must Tbe assumed that the insured agreed to the description in the policy, and is as much bound by it as by any other part of the instrument.

But independently of this. The same evidence, which the court at Special Term found to be insufficient to establish a mistake in the contract, is used to sustain the general finding, that the description as to the location of the merchandise was furnished to the defendants by the assured. And we think the evidence sustains that finding also. Indeed, the allegations in the complaint substantially concede that the assured was responsible for such description. It is averred that at the time of the insurance, the merchandise was in letter A, of the Patterson Stores, and that “the statement that the same was in section C, was wholly through inadvertence and mistake.” •

In the view we have taken of the law of this case, the objections to the admission of evidence were properly overruled; and our decision also covers and disposes of the several exceptions to the findings of the court.

Upon the whole case we think the court below arrived at a correct conclusion, and that the judgment should be affirmed, with costs.

Freedman and Curtis, JJ., concurred.

Cases cited

Kennedy v. St. Lawrence County Mutual Insurance 10 Barb. 285 N.Y. Sup. Ct. p. 401