Phoenix Ins. Co. v. Hamilton

Mr. Justice BRADLEY delivered the opinion of the court.

The principal question is whether insurance can be effected in the name of a nominal partnership where the business is carried on by and for the use of one of the partners.

Hamilton was a nominal partner, held out to the world as a member of the firm by his own consent, and affected with every liability of a partner — to consignors, creditors, and all persons dealing with the concern. The plaintiffs contended that this was a sufficient iuterest to support the policy, at least, in a commission business where insurance was effected for the benefit of the real owners of the goods. It is objected that a nominal partner is only held such, adversely, for the purpose of subjecting him to liability as-a partner, and not for the purpose of giving him the benefits and advantages of a partner. But whilst this is generally true, the interest of a nominal partner in the liabilities of the firm is such as should entitle him, in the absence of any attempt to defraud, to join with the other members of the firm in effecting insurance on the property of the concern. As Chief Justice Jones remarked in De Forest v. Fulton Insurance Co., * “It does not always require either the legal title or beneficial iuterest in the property to entitle a party otherwise connected w ith it to effect a valid insurance upon it. A carrier may insure goods he contracts to convey, yet he has neither the *508 legal title nor the beneficial interest in them, but he is responsible for their loss.”

But the case of a nominal partnership carried on for the benefit of one or more members of the firm seems to be still stronger. For it may be said that the legal interest in the business is in the firm, whilst the beneficial interest is in the member or members for whose use it is carried on. , In the case before us, as to all the world except themselves, the legal interest of the business was in the firm, of Hamilton & Cook, the beneficial interest in Cook alone. And as it is well settled that a trustee or agent may insure the property held in that capacity for the benefit of all concerned, there seems to be no valid reason why persons constituting a nominal partnership should not be competent to effect insurance as well as transact the other business in the partnership name. In this case the intimate connection of Hamilton with the business, and the fact that as between him and the consignors of the grain insured, the railroad company with whom it was stored, and all other persons dealing with it, he was actually a partner, and incurred all the responsibility and risk attaching to that relation, constituted, in our judgment, a sufficient basis of interest for effecting insurance in the name of the firm. The doctrine, established by a number of cases, that nominal partners are proper plaintiffs, as well as proper defendants, in actions by and against the firm, lends support to this view.

* The case before us is an- especially strong one, from the fact that the policy was effected mainly for the benefit of the owners of grain held by Hamilton & Cook on commission. The action was prosecuted solely for their benefit. The plaintiffs, on the trial, expressly waived any claim for grain belonging to themselves, individually, and asked a verdict only for the value of the grain which was received on commission, .claiming to recover this amount for the use and *509 benefit of the owners. The liberality with which policies of this character, issued to trustees and agents for the benefit of parties really interested, are sustained by the courts, is stated and illustrated in the case of The Insurance Company v. Chase, * decided by this court in December Term, 1866. As looking in the same direction, we may refer to the cases in New York which decide that a sale by a retiring partner to his copartners of his interest in the firm, is hot a breach of the condition that the policy shall be void if the property is conveyed without the consent of the insurance company.

† The other ground of defence was, that there was misrepresentation . and concealment, as to thé interest, which vitiated the policy. It is laid down by this court in The Columbian Ins. Co.

v. Lawrence, ‡ that an applicant for insurance is bound to fair dealing with the underwriters, and, in his representations, should omit nothing which it is material for them to know; nothing which would probably influence the mind of the underwriter .in forming or declining the contract. This doctrine is repeated- in several subsequent cases, and is undoubtedly the well-established lav/. But its application will depend upon the circumstances of each ease. Generally-speaking it is undoubtedly true that any misrepresentation with regard to the ownership of the property insured will suffice to vitiate the policy. But policies are constantly applied for and granted on general stocks of goods, held in trust or on consignment for numerous and unknown parties. In such cases it is not expected, nor would it be. possible, that the iusurers should be informed as to the ownership. They are content to insure for the benefit of whom it may concern. Of course, an omission to disclose the ownership in such cases cannot be i’egarded as an improper concealment. In some cases it is important to the insurers to know who is interested in the property, in oi’der that they may form a judgment as to the probable *510 care which will be bestowed in' its custody and preservation. In other cases this knowledge may be a matter of little importance. Iu the base before us the grain insured was in the sole custody and care of the railroad company, and the. insurers were little concerned, as, in fact, their- agent made no inquiry,who were the owners or interested therein; and no -representation was made on the subject, farther than to make the application in the name of Hamilton & Cook, and to ask for a general insurance on the grain iu the elevator, whether their own-, or held by them in trust, or on commission,, &c. Under the circumstances of the case we do not see that anything material for the insurers to know, or that would have had a bearing on taking the risk or fixing the 'premium, was concealed or withheld; On this subject the court, at the request of the plaintiffs’ counsel, charged the jury that if no representations were made with regard to the individuals who composed the firm of Hamilton & Cook, there was no misrepresentation which could avoid the policy, and that'if Hamilton & -Cook had no actual care pr custody of the grain, but that so far as regards its preservation from ,fire, it was entirely in the control of the railroad company, and so understood by the defendant’s agent when the policy was- .effected, the omission tó notify the defendant of the agreement of dissolution could not be considered a concealment which would avoid the policy. Under the circumstances of the case, we do not think there.-was any error in this charge.

Judgment affirmed.

Mr. Justice CLIFFORD dissented.

* 1 Hall, 110 .

* See Parsons on Partnership, 134; Story on Partnership, §§ 241, 242; 1 Smith’s Leading Cases, 1190.

* 5 Wallace, 509.

† See Hoffman v. Ætna Insurance Company, 32 New York, 405, and cases there reviewed ‡ 2 Peters, 49 .