lightning unless ignition resulted, but a lightning clause may be attached to the policy.1 Fire originating in spontaneous combustion is within the risk. Damage caused by concussion caused by an explosion of gunpowder in another building is not within the risk. But the special provisions of the contract govern. The policy includes loss by the incendiary act of the insured if insane, and includes the unintentional or careless acts of third persons, whether his agents or not, as well as their criminal acts; but if the fire is caused by the willful act of the insured himself, or of some one acting with his privity or consent, the insurer will be exonerated. Arson by the wife of the insured without his connivance would be no defence to the company.3 Arson by an officer of an insured corporation, unless something like a conspiracy could be shown among those interested in the corporation, would be no defence to the insurer, because a corporation does not impliedly authorize its representatives to commit a crime.4 The word "direct" is not in the corresponding clause of the Massachusetts policy. § 129. The Following Described Property.-The description of the property is written into the printed form, usually in brief but comprehensive terms. Hence, if the language of the description leaves it doubtful what goods or buildings or other property it was intended to cover, the courts construe the ambiguity liberally in favor of the insured, with a view to give a full indemnity for all that might reasonably be considered included in the description. Accordingly, the description of the policy covers not only what is specifically Lowell Mut. Fire Ins. Co., 10 Cush. 356; s. c., 67 Am. Dec. 111. Brown v. St. Nicholas Ins. Co., 61 N. Y. 332. Millandon v. New Orleans Ins. Co., 4 La. Ann. 15; s. c., 50 Am. Dec. 550. Transatlantic Fire Ins. Co. v. Dorsey, 56 Md. 70; s. c., 40 Am. Rep. 403. Everett v. The London Assurance, 19 C. B. N. S. 126. Babcock v. Mont gomery Co. Mut. Ins. Co., 4 N. Y. 326. Everett v. The London Assurance, 19 C. B. N. S. 126. Caballero v. Home Mut. Ins. Co., 15 La. Ann. 217. 3 Midland Ins. Co. v. Smith, 6 Q. B. D. 568. Karow v. Cont. Ins. Co., 57 Wis. 56; s. c., 46 Am. Rep. 17. • Commonwealth v. Wachendorf, 141 Mass. 270. enumerated but also whatever is necessarily appurtenant to it or included in it.1 As we have had occasion to notice, evidence of usage is admissible to show the meaning of ambiguous words as employed in any trade. Thus, in an action upon a fire policy described to cover a junk dealer's stock of "rags" and "old metals," evidence was admitted to show that by trade custom those terms had acquired a broader signification than belongs to them in common usage.2 A policy upon merchandise in a store applies to the stock successively in the store from time and time.3 § 130. Location.- While located and contained as de scribed herein and not elsewhere. Place is ordinarily material to the contract and of the very essence of the risk, and a change of locality without consent of the insurers removes the goods from the protection of the policy, though it contain no special provision to that effect. With varying location the risk is apt to vary, and whether it does or not is immaterial, for the insurers have the right to know what risk they are assuming, and often decline an insurance because of the amount of risk already placed by themselves or others upon the same building or property. If consent to removal is obtained, goods are not protected in transit unless the policy so provides, but are protected in the old place until removed." But it has been held that where the clause in the policy is 1 Buchanan v. Exchange Fire Ins. Co., 61 N. Y. 26. Lovewell v. Westchester Fire Ins. Co., 124 Mass. 418; s. c., 26 Am. Rep. 671. Phoenix Ins. Co. v. Favorite, 49 Ill. 259. Medina v. Builders' Mut. Fire Ins. Co. 120 Mass. 225. Clarke v. Firemen's Ins. Co., 18 La. 431. Hannan v. Williamsburgh City Fire Ins. Co., 81 Mich. 560. 9 Mooney v. Howard Ins. Co., 138 Mass. 375; s. c., 52 Am. Rep. 377. Hooper v. Hudson River Fire Ins. Co., 17 N. Y. 424. Am. Cent. Ins. Co. v. Rothchild, 82 Ill. 166. Hoffman v. Etna Ins. Co., 32 N. Y. 405. 4 Lyons v. Providence Washington Kunzze v. Amer. Exch. Fire Ins. simply in the words, "the following described property contained in" a certain building, the location is not material, if the nature of the property makes it clear that it must have been the intention of the parties to protect it by the policy whether in the particular place or not. In that event a designation of place is looked upon as merely descriptive and to be controlled by the necessary use of the thing insured. For example, where a horse, described as in a barn, was insured against fire or lightning, the court was of opinion that it was not the intention of the parties to retain the protection of the policy only in the event that the horse was kept in the barn all the time waiting for a fire or a stroke of lightning.1 Where an oil-tank was carried away by a flood to another part of the tract named in the policy and took fire there, the company was held.2 But in the case of furniture or stock described as contained in a certain building, the designated location is without doubt an essential element of the contract.3 The form of the standard policy eliminates all ground for contention. This clause is not a part of the Massachusetts standard policy. § 131. Held in Trust.-Their own, or held by them in trust or on commission, or sold but not delivered. Such special phrases are often employed to show that persons holding the property of others may secure the protection of the policy though the title to the property may or may not be in them. Held in trust means simply that the goods or property are in the custody of the insured. The phrase is not used in its strict technical meaning.4 § 132. For Whom it may Concern.-These words, which are seldom used in a fire policy, protect all those who 1 Haws v. Fire Asso., 114 Pa. State 431. Trade Ins. Co. v. Barracliff, 45 N. J. L. 543. Longueville v. West. Ass. Co., 51 Iowa, 553; s. c., 33 Am. Rep. 146. Towne v. Fire Asso., 27 Ill. App. 433. " Western, &c., Pipe Lines v. Home Ins. Co., 21 Ins. L. J. 24 (Penn, 1892). 3 Lyons v. Prov. Wash. Ins. Co., 14 R. I. 109; s.c., 51 Am. Rep. 364. Lucas v. Ins. Co., 23 W. Va. 258; s. c., 48 Am. Rep. 383. Snow v. Carr, 61 Ala. 363. Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527. Hough v. People's Fire Ins. Co., 36 Md. 398. have any insurable interest in the property, but are held, like other general descriptions of the insured, to include only those who are within the contemplation of the parties at the time the contract was made. Who these were may be shown by parol.1 The owners who were intended to be covered may ratify the insurance and take the benefit of it, though ignorant of its existence at the time of the issuance of the policy. It has been held that they may ratify even after loss. If the insured collects the whole amount of the policy, he will hold as trustee the portion of the proceeds belonging to the others. 3 $133. Measure of Damages.-Not liable beyond actual cash value of the property at the time of loss, with proper deduction for depreciation however caused. This in express terms excludes remote damages, such as loss from interruption of business, prospective rent or profit, except as these are specifically insured; it also excludes any pretium affectionis. The market or cash value at the time of the fire rules, and the cost price is relevant, if at all, only as bearing upon that." Experts familiar with property similar to that described or injured may testify as to values." And the difference between the actual cash value of the property just before the fire and its value after the fire is the measure of indemnity where the property has been injured and not destroyed. If, during the pendency of the risk, there has been more than one loss under the policy, the recovery in the aggregate is limited to the face of the policy. 1 Pacific Ins. Co. v. Cattell, 4 Wend. Newson v. Douglass, 7 Har. & J. 417. See 129 N. Y. 237. 76. Selw. 485. Protestant Ins. Co. v. Waynesboro Mut. Fire Ins. Co. v. 2 Waring v. Indemnity Ins. Co., 45 Creaton, 98 Pa. St. 451; s. c., 42 Am. N. Y. 606. Rep. 618. Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329. Snell v. Delaware Ins. Co., 4 Dallas, 430. v. Quincy Ins. Co., 105 Mass. 396. 'Herkimer v. Rice, 27 N. Y. 163. Bobbitt v. Liverpool, &c., Ins. Co., 66 N. C. 70. Hooper v. Robinson, 98 U. S. 528. Fire Ins. Asso. v. Merchants', &c., Trans. Co., 66 Md. 339. 4 Brown Clark v. Baird, 9 N. Y. 183. Teerpenning v. Com. Exch. Ins. Co., 43 N. Y. 279. Reed v. Washington F. & M. • Hagedorn v. Oliverson, 2 Maule & Ins. Co., 138 Mass. 572. In case the insurer exercises its option to rebuild or repair, the rule of damages here defined is superseded by the contract of building, which amounts to a new and independent agreement. But, if the insured refuses to permit the insurer to rebuild, the latter having seasonably elected to do so, the former can maintain no action upon the policy.2 If the policy is valued, and the loss is total, as has been noticed heretofore, the face of the policy fixes the amount.3 The extent of the insurer's liability is often modified by particular clauses; as, for example, one of the various forms of co-insurance clauses or average clauses of which specimens are given in the appendix. The object of the co-insurance clause is to compel the insured to take out insurance to the full value of his property, or else to become a co-insurer to the amount of the deficiency; and the average clause applies where property is insured as an entirety, though located in several places or buildings in proportions unknown to the insurers, and its object is to compel the insured to consider the property as ratably distributed where there is a loss in one place or building, and not in all. The amount of recovery to which different classes of persons are entitled, as dependent upon the extent of their insurable interest, the form of the policy, and whether they insure for themselves alone or for the benefit of others also interested in the property, has been sufficiently explained under the discussion of general principles. The word "cash" is omitted from the Massachusetts form. § 134. Reinstatement Clause.-Optional with company to take all or any part of the articles at ascertained or appraised value, or to rebuild or replace property lost or damaged within reasonable time, on giving notice within thirty days after receipt of proofs, but there can be no abandonment to the company of the property. 1 This option is reserved by the company to protect itself Wynkoop v. Niagara Fire Ins. Co., 91 N. Y. 478. Morell v. Irving Fire Ins. Co., 33 N. Y. 429. 522. Beals v. Home Ins. Co., 36 N. Y. Phoenix Ins. Co. v. McLoon, 100 Mass. 475. |