Hough v. President of the People's Fire Insurance

Parol testimony inadmissible to Explain the terms of a Policy of Insurance — Specific Policies — Measure of Damages in an Action on a Policy of Insurance — Double Insurances — Contribution — Bight of a Consignee of goods, or Factor to Insure in his own ■ name — Meaning of the words, 11 Held in Trustf used in a Policy of Insurance. Where a policy of insurance states that “ the company insures the Baltimore Warehouse Company against loss or damage by fire to the amount of $20,000 on merchandise their own, or held by them in trust, or in which they have an interest or liability,” parol proof is not admissible to show that the policy does not cover 11 merhandise their own,” &c., as therein stated; but was intended to cover the merchandise, only under certain circumstances; and if the said merchandise was insured by the owners thereof in other companies, that the interest of the warehouse company in said policy was not insured at all. Where a policy of insurance is couched in plain and unambiguous language, resort to it alone must be had to determine the intention and meaning of the parties thereto; parol proof is inadmissible for such purpose. Between the 5th of Pebruary, 1870, and the 15th of July, 1870, both days inclusive, the appellants deposited on storage in a certain warehouse, occupied by the Baltimore Warehouse Company, sundry lots of cotton in bales. Por each lot deposited, the appellants received from the Warehouse Company a receipt, warrant or certificate which specified the number of bales, and the date of the deposit, and also the mark on the bales, the letters X. Q. being marked on each bale so deposited. These receipts or certificates were all numbered. On the 20th of June, 1870, the appellants deposited fifteen bales and took a receipt therefor, numbered 1221, and on the following day a policy of insurance was taken out to cover the particular number of bales thus deposited. On the 27th of June, the appellants deposited thirteen bales, and took a like receipt therefor, numbered 1238, and on the same day effected an insurance for the particular number of bales thus deposited. On the face of each policy the loss, if any, was made payable to the Warehouse Company; and the policies and receipts were delivered to the Warehouse Company, to secure advances made by it. On the policy on the fifteen bales there was endorsed in pencil in figures the number 1221, corresponding with the number of the warehouse receipt given therefor; and on the policy on the thirteen bales there was endorsed also in pencil 1238, corresponding with the number of the receipt for the cotton. At the time of each deposit, the depositor reserved a sample of the particular lot deposited. Held : That the policies wore specific and not general; that each covered and was intended to cover the specific number of bales in each deposit, and the insurance on which was effected at the time of the deposit; the policy of the 21st of June, 1870, covering only the fifteen bales deposited on the day previous, and the policy of the 27th of June the thirteen bales deposited on that day. H, having deposited a large amount of cotton on storage with the Baltimore Warehouse Company, effected, among others, an insurance against fire on two particular lots; at one time on fifteen bales, and at another on thirteen bales. The warehouse containing the cotton of II, with that of others, was destroyed by fire. A portion of the cotton was saved and sold at auction by instructioni of a committee of the insurance companies interested. The net proceeds of sale were distributed under the direction of the committee among the assured. In an action by H, to recover on his two policies, it was Held : , That in ascertaining the amount of loss or damage which the plaintiff should recover, the jury ought to deduct such sum as they might find from the evidence was the proportion due to twenty-eight bales, in the distribution of the proceeds of sale of the cotton saved. The Baltimore Warehouse Company, which received goods on storage, and issued receipts or certificates therefor to the depositors, effected an insurance in the Associated Fireman’s Company for $10,000, against loss by fire for one year, “on merchandize generally, hazardous or extra hazardous, held by them, or in trust, contained” in a particular warehouse ; they also took out a policy in the Home Insurance Company, to the amount of $20,000, “ on merchandise, hazardous or extra hazardous, their own, or held by them in trust, or in which they had an interest or liability, ’ ’ contained in the same warehouse. The appellants, on the 20th of June, 1870, deposited fifteen bales of cotton in the same warehouse, and received a receipt or certificate therefor from the “Warehouse Company, and on the same day procured a policy of insurance on the cotton so deposited from the appellee. On the 27th of June they deposited thirteen bales, for which a like receipt was given, and on the same day they effected an insurance for the cotton with the appellee. Under the policies issued to the appellants, the loss, if any, was payable to the Baltimore Warehouse Company. The appellants had other cotton to a large amount stored with the Warehouse Company. The Warehouse Company advanced to the appellants over $48,000 upon the cotton belonging to them, and stored in the warehouse. In the policies to the appellants, as well as in those to the Warehouse Company, it was stipulated that in case of loss the assured should not be entitled to recover on such policy any greater proportion of the loss or damage sustained to the subject insured, than the amount thereby insured should bear to the whole amount of the several insurances thereon. On the 18th of July, 1870, the warehouse was burned, and of the cotton stored therein, some of the bales were saved, some wore partially destroyed, and others totally destroyed. In an action by the appellants, for the use of the Warehouse Company, on the policies of insurance issued by the appellee, it was Held : That the policies sued on having been made payable to the Warehouse Company, inured to the benefit of the company, and may be considered as in favor of the same assured, on the samejnterest, in the same subject, and against the same risks as the policies which were issued directly to the Warehouse Company; and with the latter policies constituted a double insurance; and the companies therefore issuing the policies were bound to contribute their respective proportions of the loss. A person having goods in his possession as consignee, or on commission, may insure them in his own name, and, in the 'event of loss, recover the full amount of the insurance, and, after satisfying his own claim, hold the balance as trustee for the owner. The words “held in trust,” applied to goods insured, mean goods with which the assured is intrusted; not goods held in trust in the strict technical sense, so hold that there is only an equitable obligation in the assured, enforciblo by subpoena in chancery, but goods with which they are intrusted in the ordinary sense of the word.

Appeal from the Superior Court of Baltimore City. Two actions of covenant, consolidated by consent, were instituted by tho appellants, Hough, Clendening & Co., for the use of their assignee, the Baltimore Warehouse Company, against the appellees: the first to recover on a policy issued by the appellees, dated the 21st of June, 1870, whereby the company insured Hough, Clendening & Co., during thirty-five days, from the date of the policy, against loss or damage by fire to the amount of $1,400, on fifteen bales of cotton stored in Tobacco Warehouse Ho. 2, O’Donnell’s wharf, then occupied by the Baltimore Warehouse Company; the second to recover on a policy dated the 27th of June, 1870, whereby the appellees insured the appellants in exactly similar words of description, during thirty-four days, to the amount of $1,100 on thirteen bales of cotton. The defendants pleaded : 1st. That they were not indebted as alleged. 2d. That they did not promise and covenant as alleged. 3d. That the plaintiffs did not furnish preliminary proofs of loss to the defendants according to the terms of the policy sued on, and the defendants had not waived their rights to except to the insufficiency of the same. 4th. That during the time when said cotton was alleged to have been insured by the said policy of insurance, there were other insurances thereon, and by the terms of said policy the defendants were only responsible for such proportion of such alleged losses, as the amount of its insurance should bear to the whole amount of such other insurance. The plaintiffs joined issue on the first, second and third pleas, and replied to the fourth as follows : That during the time when said cotton was insured by the said policy of insurance, there were not other insurances thereon; such that by the terms of said policy, the defendants were only responsible for such proportion of the losses as the amount of their insurance bore to the whole amount of such insurance. Issue was joined on the replication. First Exception: At the trial of this cause, the plaintiffs, to maintain the issues on their part, proved, by the introduction of the Act of Assembly of 1887, ch. 232, in the printed volume, the incorporation of the defendant, and adduced two policies of insurance against fire, issued by the defendant under its corporate seal, the execution of each of which by the defendant, was admitted. The particulars of these policies, material to the issues, are these: In the one dated June 21st, 1870: “The President and Directors of The People’s Fire Insurance Company of Baltimore, in consideration of one Xg% dollars, to them paid by the insured hereinafter named, the receipt of which is hereby acknowledged, do insure Hough, Clendening & Co., against loss or damage by fire, to the amount of fourteen hundred dollars, on fifteen bales of cotton stored in Tobacco Warehouse No. 2, O’Donnell’s wharf, now occupied by the Baltimore "Warehouse Company; other insurance permitted without notice until required. Loss, if any, payable to the Baltimore Warehouse Company.” “And the said company do hereby promise and agree to make good unto the said insured, their executors, administrators or assigns, all such loss or damage, not exceeding in amount the sum hereby insured, as shall happen by fire to the property as above specified, during thirty-five. days, to wit, from the 21st day of June, 1870, (at 12 o’clock at noon,) until the 26th day of July, 1870, (at 12 o’clock at noon) — the said loss or damage to be estimated according to the actual cash value of the said property at the time the same shall happen.” On this policy there is endorsed in pencil the number in figures, “1221.” In the other policy, dated June 27th, 1870, the corresponding portion of the contract is the same, except that the premium is “ one X-0A dollars;” the amount of insurance is “ eleven hundred dollars;” the number of bales is “ thirteen;” the time “ thirty-four days,” from 27th day of June, 1870, (at 12 o’clock at noon,) until the 31st day of July, 1870, (at 12 o’clock at noon.) On this policy there is endorsed in pencil then umber in figures, “ 1238.” In the body of the contract in each jiolicy jg this stipulation : “ In case of loss the insured shall not be entitled to recover oil this policy any greater proportion of the loss or damage sustained to the subject insured, than the amount hereby insured shall bear to the whole amount insured thereon, whether such insurance be by specific or by general or floating policies.” And also this: “If any other insurance has been or shall hereafter he made upon the said property, and not consented to by this company in writing hereon, then this policy shall be null and void.” Among the “ conditions of this insurance,” annexed to each policy, are the following, to wit: III. “ If the property to be insured be held in trust or on commission, or be a leasehold interest or equity of redemption, or if the interest of the insured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the insured, it must be so represented to the company and so expressed in the written part of this policy, otherwise the policy shall be void,” &c. IV. “ Goods held on storage must be separately and specifically insured.” X. “ In case of any loss or damage to the property insured, it shall be optional with the company ” “ to take the goods at their appraised value,” “ giving notice of their intention to do so within thirty days after having received the preliminary proofs of loss,” &c. The plaintiffs further proved by James Godwin: That he was in the employment of the plaintiffs during the years 1869 and 1870; the business of the plaintiffs was that of cotton factors chiefly; that the cotton sent to them was from a large number of different persons, and in lots of various sizes, from one bale upwards, and was to be sold at a time limited, or at the discretion of the factors, or at such time as should be afterwards directed by the shipper, as the instructions happened to be; that the cotton market was declining in the summer of 1870; that the plaintiffs had six hundred and seventy-five bales of cotton in the warehouse described in the policies sued on — which warehouse was destroyed by fire on July 18th, 1870;'none of it was returned to them after the fire; that Albert Rhett had weighed the cotton, lot by lot, before it was stored; that samples of each lot had been taken out and retained in the office of the plaintiffs; at the time of the fire there was there a sample of each bale that was in the warehouse; that the plaintiffs had, at the time of the fire, insurance on six hundred and seventy-six bales of cotton in this"warehouse — one more than the number in store, there; that in each of the policies held by them the insurance was on a specific number of bales. On cross-examination, the witness said: He spoke from the books of the house, not from his own knowledge, as to the number of bales; he saw the fire and knew that the cotton of the plaintiffs was there; the doss on this was not total; some bales were burned, some saved; how many were saved witness does not know, nor how many absolutely lost. The plaintiffs further proved by William B. Hooper: That he was the storekeeper of the Baltimore Warehouse Company in July, 1870; that this warehouse was burned on the 18th July, 1870; the plaintiffs had therein six hundred and seventy-five bales of cotton; there were in all, 1,452 bales of cotton in the warehouse at the time of the fire; also some tobacco arid bárk; the other cotton belonged to different parties. They further proved by Albert Rhett, that he was a public weigher; that he weighed .nearly all Hough, Clendening & Co/s cotton; was under the impression he weighed every bale of their cotton that went into this warehouse; he gave certificates of these weights; identified certificates shown to him as his, from which it appeared that the fifteen bales of the plaintiffs, embraced in the policy of the 21st of June, weighed six thousand two hundred and sixty-one pounds, and the thirteen bales, covered by the policy of the 27th of June, weighed five thousand four hundred and eighty-two pounds. The plaintiffs further proved by Charles Rhett, that he was' a cotton-broker in 1870; it was very often part of his business to determine the grade of cotton; was called upon by Hough, Clendening & Co. after this fire; went to their office, examined a number of bundles of samples; there were six hundred and seventy-five samples; his partner, Mr. Smith, assisted him; examined them minutely; graded from “ good middling” to “low middling” and “ordinary;” made an average of the various bundles; the whole averaged a fail-class of “ low- middling ” cotton; estimated its value, at the time of the fire, at 18£ cents per pound. They proved further by James Hooper, that he was President of “The Baltimore Warehouse Company;” gave receipts for cotton deposited on storage; for this purpose a printed blank was used — -the date, subject matter and particular place of deposit, and the name of the depositor being filled in, and the mark inserted in an appropriate place in the margin, in manuscript. In every instance of deposit by the plaintiffs, between the 5th of February, 1870, and the 15th of July, 1870, the mark in the margin of the corresponding certificate was X. Q. The witness produced the receipts given to the plaintiffs for cotton stored, which were put in evidence. The receipt issued to the plaintiffs on each deposit of cotton contained the printed notice that “the property mentioned therein was held by the corporation as bailees only, and was not insured by the corporation. They further proved by this witness, that the cotton that w-as saved from the fire was sold at auction, by instruction of a committee of the insurance companies; Hough, Clendening & Co. had insurance on six hundred and seventy-five bales of cotton in this warehouse, to the amount of about $60,000. The -warehouse company had advanced Hough, Clendening & Co., on the whole number of bales, to about $48,720.- On cross-examination this witness said, the warehouse company did not insure all the cotton in their warehouse; kept $30,000 insurance to cover, in case insurance by the depositors was not sufficient; did not insure except where advances had been made. It was the course of business of the warehouse company, on receiving cotton, to give a warehouse receipt, such as those already introduced in evidence; and if advances were asked, one of the conditions of the advance was, that the depositor should insure in the form adopted in the policy sued on, and deliver such policy to the company, together with the warehouse receipt; the insurance to be for an amount sufficient to cover the advance. The defendant proved by this witness, and put in evidence two policies of insurance held by “the Baltimore Warehouse Company,” and outstanding at the time of the fire, as follows: 1st. Policy No. 1542, Home Insurance Company of the city of New York, for $20,000, bearing date December 7th, 1869, of which the parts material to this issue arc- contained in the following extracts, to wit; in the body of the contract it is stipulated thus: “By this policy the Home Insurance Company, in consideration of one hundred dollars to them paid by the insured, hereinafter named, the receipt whereof is hereby acknowledged, do insure The Baltimore Warehouse Company against loss or damage by fire, to the amount of twenty thousand dollars, on merchandize, hazardous or extra hazardous, their own, or held by them in trust, or in which they have an interest or liability, contained in that part of State Tobacco Warehouse, No. 2, used by them, lying between Frederick Street Dock and Long Dock, separated by a street from the south end of the Maryland Sugar Refinery; other insurance permitted without notice,.unless required; to cover whilst on the street and pavement around said warehouse, as per application. And the Home Insurance Company, above named, for the consideration aforesaid, do hereby promise and agree to make'good unto the said assured, their executors, administrators or assigns, all such loss or damage not exceeding in amount the sum insured, as shall happen by fire to the property as above specified during one year, to wit: from the 7th day of December, 1869, (at 12 o’clock at noon,) until the 7th day of December, 1870, (at 12 o’clock at noon) — the loss or damage to be estimated according to the actual cash value of the said property at the time the same shall happen,” &c. “ If any other insurance has been, or shall hereafter be made upon the said property, and not consented to by this company in writing hereon,” “ this policy shall be null and void. In case of loss, the insured shall not be entitled to demand or recover on this policy any greater proportion of the loss or damage sustained to the subject insured, than the amount hereby insured shall bear to the whole amount insured on the said property.” And among the “conditions of insurance” annexed were the following: 4. “ If the property to be insured be held in trust, or on commission, or be a leasehold or other interest not absolute, it must be so represented to the company, and expressed in the policy in writing, otherwise the insurance as to such property shall be void,” &c. “Goods held on storage must be separately and specifically insured.” 9. “Persons sustaining loss or damage by fire, shall forthwith give notice thereof,” &c., “and as soon after as possible they shall deliver in as particular an account of their loss,” &c. “And they shall accompany the same with their oath,” &e., “ declaring what other insurance, if any, existed on the same property, and giving a copy of the written portion of the policy of each company,” &c., “and until such proof, declaration,” &c., “ are produced,” &c., “ the loss shall not be payable.” 2d. Policy Ho. 11,898, Associated Firemen’s Insurance Company, for $30,000, dated October 29th, 1869, of which the parts material to the issues here joined, are contained in the following extracts. In the body of the contract, which is under the seal of the company, it is covenanted thus: “ This instrument, or policy of insurance, witnesseth, that the president and directors of the Associated Firemen’s Insuranee Company of Baltimore, in consideration of the sum of fifty dollars to the said corporation paid, the receipt whereof is hereby ackowledged, have agreed to insure, and do hereby insure, the Baltimore -Warehouse Company against loss or damage by fire, to the amount of ten thousand dollars, on merchandize generally, hazardous and extra hazardous, held by them or in trust, contained in that part of No. 2 Warehouse used by them, lying between Frederick Street Dock and Long Dock, opposite side of a small street running by south side of Maryland Sugar Refinery; to cover whilst on the street or pavement around said warehouse; other insurance permitted without notice until required, per application. In consideration thereof or of the premises, the president and directors of the Associated Firemen’s Insurance Company of Baltimore, do hereby covenant, promise and agree to, and with the said assured, their executors, administrators and assigns, to pay and satisfy all loss or damage which the assured- or their assigns may or shall sustain by fire upon the property hereby insured, not exceeding in amount the said sum of ten thousand dollars, if such loss or damage shall be sustained within the terms of one year from the day of the date of these presents, which shall be deemed to expire at noon on the 29th day of October, 1870.” “In case the assured shall have already any other insurance made on the hereby insured premises, he shall notify the same to this corporation before or at the time of executing this policy, and cause the same to be endorsed thereon, otherwise this insurance shall be void and of non-effect; and.if the assured or their assigns shall hereafter make any other insurance on the hereby insured premises, he shall, with all reasonable diligence, notify the same to this corporation, and have the same endorsed on this policy, or otherwise acknowledged in writing by this corporation; or in default thereof, this policy shall cease and be of non-effect. And it is further declared and agreed, that in case of any other insurance being made upon the premises hereby insured, either prior or subsequent to the date of these presents, the assured shall not, in case of loss or damage, be entitled to demand or recover on this policy any greater proportion of the loss sustained than the amount hereby insured shall bear to the whole amount of the several insurances made, or to be made, on the premises insured by this policy.” And among the “conditions of insuring,” accompanying the policy, are ihe following, to wit: “3. Goods held in trust or on commission are to be declared as such, otherwise the policy will not extend to cover such property.” “ 4. Every policy of insurance made by this company shall be sealed with its seal, signed by its president and attested by the secretary, and the person for whose interest the insurance is made, must be declared and named therein,” Ac. “ 8. All persons insured by this company, sustaining any loss or damage by fire, are forthwith to give notice,” Ac., “ and as soon after as possible to deliver in as particular account of their loss or damage,” Ac., “and shall make oath,” &c., “whether any and what other insurance is made on the same property.” This witness, on his cross-examination, further said, that the Warehouse Company did not insure goods deposited by customers, except for amount of goods not insured by party; the notice in the receipt was intended to notify depositors that their goods were not to be insured by the company, nor was the company to get insurance. (The. witness referred to the charter of the company, Act of 1867, oh. 268, sec. 10, last paragraph : “ Every such receipt, warrant or warehouse certificate shall contain on its face, a notice that the property mentioned therein is held by this corporation as bailees only, and is not insured by this corporation.”) Any statement of the witness as to the intention or purpose of the papers offered in evidence, and other than that shown by the papers themselves, was objected to by the counsel for the defendant, as not inquired after by their question, but volunteered by the witness. Two warehouse receipts, to wit, one of June 21st, 1870, numbered “ 1221,” for fifteen bales of cotton, and the other, of June 27th, 1870, numbered “1238,” for .thirteen bales of cotton, being shown to witness, he said he could not say whether these lots, or either of them, was among the cotton saved or lost; the value of the whole goods in the warehouse, at the time of the fire, was from $120,000 to $130,000. Upon proceeding to examine this witness in reply, the question was propounded': “You have stated, in your answer to a question by the counsel for the defendant, that you did not insure all the cotton in the warehouse of the Baltimore Warehouse- Company, but only to cover advances made by the company, in so far as they were not covered by specific insurance of the parties owning the cotton, will you say whose and what interest was it your intention to cover by the policies of insurance taken out by the Baltimore Warehouse Company in ‘The Home/ of New York, and in the Associated Eire-men’s Insurance Company ? ” The defendant’s counsel objected to the admissibility of the evidence sought by the question, and the Court sustained the objection apd refused to permit the witness to answer the question. The plaintiffs then offered to prove, that at the time of applying for and taking out the two policies taken by the Warehouse Company in its own name, the president of the Warehouse Company stated to the agents of the insurance companies applied to, that he desired to obtain insurance to protect the Warehouse Company against any loss or damage not covered by policies taken out by the depositors of cotton or other merchandize in their warehouse, in which the Warehouse Company was interested; and upon objection made the Court refused to admit the evidence proposed. The plaintiffs excepted. Second Exception: The plaintiffs’ counsel then propounded to this witness the question: “ Did you or not, before the issuing of the policies sued on in this case, and before the deposit of the cotton destroyed by fire on July 18th, 1870, notify Hough, Clendening & Co. that the Warehouse Company would not effect insurance on their cotton deposited in its warehouse, and that they must insure it themselves?” Upon objection made on the part of the defendant, the Court refused to permit the witness to answer this question; and the plaintiffs then offered to prove, that before the issuing of the policies sued on in this case, and before the deposit of the cotton destroyed by the fire of July 18th, 1870, the president of the Warehouse Company notified the plaintiffs that the Warehouse Company would not insure their cotton, and that they must insure for themselves, and that this notice was acquiesced in and not objected to by the plaintiffs, and that the plaintiffs did thereupon for themselves insure all their cotton; which proof) upon objection made on the part of the defendant, the Court refused to allow to be admitted. The plaintiffs excepted. Third Exception: The plaintiffs further proved by George B. Coale, a statement, having a certificate appended, signed by witness as for the committee, showing the conditions and expenses of the rescuing and assorting, &c., of the cotton after the fire, the disposition of it and the mode of distribution of the net proceeds. They further proved by this witness that the statement was made up by the direction of the committee, consisting of Snowden, White, Hartman, Andrews and the witness; there were two hundred and eighty-nine bales of cotton in all, identified as belonging to particular owners, less expenses on them; of these, seventy-five belonged to Hough, Clendening & Co.; these brought, at the auction sale, $4,823.35, subject to deduction of $297.25 for special expenses; their missing, and not identified cotton, (six hundred bales,) was entitled, as their proportion of the proceeds of sale, to $8,636.63, subject to deduction of $3,731.75, their proportion of the expenses on the un-identified ; the net proceeds of their cotton of both classes, was $9,427.98 or $13.94, (13.963,) salvage to each bale of Hough, Clendening & Co. They further proved by Bernard Hough, one of the plaintiffs, that the plaintiffs had policies covering six hundred and seventy-six bales of cotton in this warehouse; each policy covered a specific number of bales; the Warehouse Company was in the habit of advancing to Hough, Clendening & Co., from time to time, as they made deposits. On the cross-examination, the witness said, each policy contained the number of bales insured, as they were specifically insured. The Warehouse Company was in the habit of advancing Hough, Clendening & Co., on the various lots deposited from time to time, and Hough, Clendening & Co. insured the various lots as they were deposited. On re-examination by the plaintiffs, the witness stated, it was their habit to take out policies on each additional lot of cotton as it came in; they took out policies whenever they added additional cotton. Thereupon the plaintiffs’ counsel asked the witness to explain whether he meant to say that it was his habit to effect insurance on each specific lot of cotton, or to effect insurance generally on an additional number of bales equal to the lot deposited; the witness said, that while the receipt of the cotton was the occasion of taking out the new policy, it was not meant to cover cotton only. This testimony was objected to by the defendant, as explaining by parol the intention of the party in a wmitten contract, the terms whereof were clear, and it was excluded by the Court; and to this refusal of the Court to admit this testimony, the plaintiffs excepted. Fourth Exception: The defendant, to maintain on its part the issues joined, proved by a witness, whose business in part was to adjust losses in insurance matters, that he Avas employed by the companies to ascertain the loss, and protect their rights in salvage. He produced íavo papers containing the results of his adjustment, and said the general policies were divided up into contributing insurances, in the ratio of the sound value of the property covered by specific insurances, to that covered by general policies; the general insurance should have contributed at the rate of $17.50 per bale to specific insurance. On twenty-eight bales the general insurance would contribute $490; the result would be affected by insurance on the tobacco which was in the warehouse; the salvage is to be credited to the defendant; its proportion of saved cotton — some $400 — to be credited. Witness first applied the general insurance to the cotton not insured; amount of this application, $2,183.32. On cross-examination the witness said the right of contribution arose from the fact that the Warehouse Company had made advances on lots of cotton covered by the specific policies, and by assignment of specific policies to the Warehouse Company had made the general insurance contributory; if there were cotton there not advanced on, it was not included in the assignment; $8,536.71 were allowed to Hough, Clendening & Co. for difference of insurance, to cover one hundred and nine bales not considered as specifically insured. There was cotton not covered, but no claim was made by any company or person. If general policies contribute to pay Warehouse Company’s advances, they would be entitled, in witness’ view, to subrogation. The plaintiffs thereupon submitted to the Court the following prayers: 1. If the jury shall find that the plaintiffs are entitled to recover, then, in ascertaining the amount which the plaintiffs are to recover, the jury are not to make any abatement therefrom on account of the two policies of insurance issued by “The Home Insurance Company” and “The Associated Eiremen’s Insurance Company” to the Baltimore'Warehouse Company, and offered in evidence by the defendant. 2. That by the true construction of the policy of insurance isssued by the defendant to the plaintiffs, bearing date the 27th of June, 1870, and offered in evidence by the plaintiffs, it covered not thirteen specific bales of cotton, but any thirteen bales of cotton which were stored by the plaintiffs in Tobacco Warehouse No. 2, on O’Donnell’s wharf, and were there remaining on the 18th July, 1870. 4. If the jury find from the evidence that the plaintiffs are entitled to recover, then, in ascertaining the amount of loss or damage which the plaintiffs are to recover, the jury ought to deduct such sum as from the evidence in the cause they may find is the proportion due to twenty-eight bales of cotton, in the distribution of the proceeds of sale of the- rescued and saved cotton. The defendant prayed the Court to instruct the jury as follows: That the plaintiffs have offered no proof upon which the jury can allow damages for any injury by fire to the cotton insured by either of the policies of the defendant which are in suit. The Court (Dobbin, J.) refused the prayers of the plaintiffs and granted ^the prayer of the defendant. The plaintiffs excepted, and the verdict and judgment being against them they appealed.