Philad. Tool Co. v. British Am. Assurance Co.

(a) A company issued a policy of insurance against loss by fire on brick and frame buildings and the machinery and tools therein, occupied and used by the plaintiff, a manufacturing company, having no title, legal or equitable, to the real estate, and no interest in it except as lessee for a term of years. (b) The policy contained a provision that it should be void, if the assured was not the sole and unconditional owner of the property, or if the buildings stood on ground not owned in fee-simple by the assured, or the interest of the assured was not truly stated, unless consent in writing was indorsed on the policy by the company: 1. No representation of any kind upon the subject of the title of the assured to the real estate having been made, the policy, written upon the knowledge of the company’s agent, was to be interpreted as made in view of the facts of the case, and as intended to cover such interest as the assured had therein. 2. That interest was a leasehold only, but an insurable interest; and presumably it was the interest which an application, if one had been made, would have shown; wherefore, the policy was not void for the alleged reason that an entire premium was paid, and the assured had no title to the buildings, a portion of the property covered by the insurance.

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY. No. 300 January term 1889, Sup. Ct.; court below, No. 358 December term 1886, C. P. No. 1. On January 13,1887, the Philadelphia Tool Company brought debt against the British American Assurance Company. Issue. At the trial on January 5,1888, the plaintiff put in evidence a policy of insurance issued by the defendant company to the plaintiff, for one year from October 5, 1886, to the amount of $2,500; “ $1,000, on brick and frame buildings, situate on Oalcford street.....and occupied in their business as machinists and iron founders; $1,500, on machinery of every description, including boiler and engine and their attachments, shafting, belting, tools, fixtures and furniture, utensils and patterns, used in their business as machinists and iron founders, contained therein.” The plaintiff was a tenant of the real estate for a term of years, with the privilege of purchasing at any time during the term. Having proved a total loss by fire of the property covered by the insurance, on October 5,1886, immediately after the policy had been renewed for another year, the plaintiff rested. The defendant company, offering no testimony, moved the court that a judgment of nonsuit be entered. The motion was refused by the court, Bkisgy, J., and under instructions so to do, the jury rendered a verdict for the plaintiff for the amount claimed as the insurance on the personalty, to wit, $1,590, subject to the question of law reserved, to wit: Whether the plaintiff can recover, notwithstanding it has proved the issuance of the policy in suit, payment of the premium, the fire, the loss to the amount of the insurance on the personalty, and notice and proofs of loss to the company as regards the personalty, but that its evidence has also shown that the policy covered both personal property and real estate, for a single or entire premium, and provided for the insurance of the plaintiff against “ All such immediate loss or damage sustained by the assured as may occur by fire to the property above specified, but not exceeding the interest of the assured in the property, and except as hereinafter provided, ..... subject to the following terms and conditions: “1. Warranty of the assured. The assured, by the acceptance of this policy, hereby warrants that any application, survey, plan, statement or description, connected with procuring this insurance, or contained in, or referred to in this policy, is true, and shall be a part of this policy; that the assured has not over-valued the property herein described, nor omitted to state to this company any information material to the risk; and this company shall not be bound under this policy by any act of, or statement made co, or by, any agent or other person, which is not contained in this policy, or in any written paper above mentioned.” It is also a part of this warranty that if this “ policy shall bo continued by renewal, it shall be considered as continued under the original representations, and that any change in the risk, not made known to this company at the time it is so continued, shall render this policy void.” “ This policy shall become void, unless consent in writing is indorsed by the company hereon, in each of the following instances, viz.: “ 1. If the assured is not the sole and unconditional owner of the property; or, if any building intended to be insured stand on ground not owned in fee-simple by the assured; or, if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, is not truly stated in this policy; or, if any change take place in the title, interest, location or possession of the property (except in case of succession by reason of the death of the assured), whether by sale, transfer or conveyance, in whole or in part, or by legal process, or judicial decree, or the title or possession be now or hereafter become involved in litigation; or if this policy be assigned or transferred before a loss.” —The evidence of the plaintiff disclosing the fact that it was a tenant only of 'the real estate and held under a lease from Matilda Cowan, dated January 24,1882, for a period of ten years, at an annual rent of $900, with the usual covenants as to payment and quiet enjoyment, and the following condition : “ And it is further agreed that the lessee will pay all water-rent, also have the privilege of purchasing the hereby demised premises, at any time during the said term, for the price or sum of thirteen thousand dollars ($18,000).” Said lease being recorded in the office for recording deeds, etc., for Philadelphia, in Deed Book G. G. P., No. 223, page 459; there being no indorsement on said policy as required in the above quoted condition thereof, and no representations were made as to title or estate. The question reserved having been argued before the court in banc, on a motion for judgment for the defendant non obstante veredicto, the rule was made absolute on June 30,1888, without opinion filed, and judgment entered for the defendant. Thereupon the plaintiff took this appeal, assigning the entry of judgment for the defendant, on the question reserved, for error.