Effect of Payment of Partial Loss.

15th day of October, 1875. Fire occurred fire. Schroeder v. Traders' Ins. Co., 13 before term expired, but assured had Ins. L. J. 492; 109 Ill. 157.

8. The agreement that insurance should determine at a time when the insurer might elect that it should end, and to insert the date left blank for that pur-Co., 10 Pick. 535 (Mass.) pose, is sufficient, since they agree to the mode and manner of fixing the time. *Imboden v. Detroit F. & M. Ins. Co., 31 Mo. App. 321.

General Rules.

1. General rules. The specific lan- may originate in the theatre proper," the guage as to location and description now burden of proof is on the plaintiff to show contained in the standard form, would a loss not originating in the theatre seem to render inapplicable the reasoning proper. Sohier v. Norwich Fire Ins. Co., of the court in Lyon v. Providence Wash. 11 Allen, 336 (Mass.) Ins. Co., 10 Ins. L. J. 733; 12 Id. 188; 13 R. I. 347; subseq. decision, 14 R. I. 109; Wildey v. Farmers' Ins. Co., 13 Ins. L. J. 306; 52 Mich. 446; Lond. and Lancash. Ins. Co. v. Graves, 12 Ins. L. J. 308 (Ky.)

2. It is for the jury to determine, as a question of fact from the evidence, whether the merchandise insured was destroyed in the "building" described in the policy. Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350.

7.- Where there was an application and insurance on goods in a house described, and another application and insurance on a house also described, which latter house was burned; there being some evidence as to goods being insured in the latter house; held, that it was a question for the jury whether the goods burned were or not covered by the policy. Beatty v. Lycoming County Ins. Co., 52 Pa. 456. 8. But the policy on stock in the twostory frame building occupied as a chair factory, &c., covers only the stock in that

ing two-story this referred to the main building, not the engine building. Liebenstein v. Etna Ins. Co., 45 Ill. 303.

3.- If merchandise situate in a building containing several storerooms be insured, and upon the policy there is an uncer-specific building, and both buildings betainty as to whether it was intended to cover merchandise in all the store rooms, the insurers will be liable for a loss occuring in any one of them. The language of the policy is the insurers', and must be taken most strongly against them. Id.

9.- Policy on an acid factory, and on stock, machinery and apparatus in and out of the factory building, and connected therewith. Held, to cover all apparatus, &c., used on the premises for the manufacture, actual connection not being essential, but only a connection in purpose, application and use. Washington Ins. Co., v. Davison et al., 30 Md. 91.

4. If a policy on personal property is endorsed with an agreement for the removal of the property to another building, and for the continuance of the policy in force as to the property after removal, it becomes in effect a new contract between the parties, and a new risk taken by the company. And where some elements of the new risk existed which were forbidden by the original policy, but which were known to the company when the new risk was taken, their existence does not affect the validity of the new insurance. Rath-dorsed the policy, "transferred to cover bone v. City Fire Ins. Co., 31 Conn. 193.

5. A policy of insurance upon goods "contained in the third story of a fourstory building," over two specified numbers of a certain street, will cover such goods after their removal into another room subsequently hired and occupied by the insured in the same story of the same building; although the policy provides that it shall be void if the property insured shall be removed without necessity, to any other place. West v. Old Colony Ins. Co., 9 Allen, 316 (Mass.)

6.- In an action upon a policy of insurance on a theatre, which contains, in connection with the description of the property insured, this clause, This policy not to cover any loss or damage by fire which

10. Plaintiff, having a policy on his goods in a store, desiring to move them to another store, applied to the company to have "the policy transferred to cover goods in the new building," as they were to be moved that day. The company in

similar property in the new building, which was not seen by plaintiff, the policy remaining in the company's hands. Held, the object was to continue the insurance after removal, and a loss having occurred before removal, the company was still liable. The terms of the transfer had not been assented to or delivered so as to bind the plaintiff. Kunzze v. American Exch. F. Ins. Co., 41 N. Y. 412; below 2 Robt. 443.

11.- A policy issued to a railroad company contained the following: "provided all the property hereby insured is on the premises owned or occupied by the Providence and Worcester Railroad Co., in Mass. and R. I." Held, to render company liable, that the property must be at the time of the loss upon the premises owned

General Rules.

or occupied by the plaintiff at the date of in the storehouse. Held, that the words the contract of insurance. Providence &"contained in said building," &c., applied Worcester R. R. Co. v. Yonkers Fire Ins. Co., 10 R. I. 74.

12.- Policy insured $8,350 "on all or either of the freight buildings at Charlestown." One of them being burnt, held, that company was liable for full amount of the loss not exceeding the amount insured. Commonwealth V. Hide and Leather Ins. Co., 112 Mass. 136.

to the machinery and stock as well as to the furniture; and that nothing was covered by the policy but the "pottery building' and its contents; that the storehouse was not included, the bill of exceptions admitting that the storehouse was a distinct building. Hews v. Atlas Ins. Co., 126 Mass. 389.

18. When the insurance is upon a stock of goods, their removal without consent from their place of deposit speci

13.- A description of the place of deposit of personal property inserted in the policy is a warranty, and a condition pre-fied in the policy, terminates the insurcedent, not to be avoided by the fact that ance. Harris v. Royal Canadian Ins. Co., the truth of the description is not essential 53 Iowa, 236. to the risk, nor an inducement for company to enter into contract. Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240.

14. The terms "contained in" a particular building limit the risk to the time the goods remained in the same building in which they were when policy was is sued. Maryland Fire Ins. Co. v. Gusdorf, 43 Md. 506.

15. If there is enough of the description true to correct a mistake in the number of the block insured by construction it does not affect the validity of the contract. Ins. Co. v. Lewis, 48 Texas, 622; Texas Ins. Co. v. Stone, 49 Id. 4.

16.- Declaration must contain an averment that property destroyed was in the place described in the policy, otherwise it is bad on demurrer. Todd v. Germania Fire Ins. Co., 1 Mo. App. 472.

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19. When locality is specified policy cannot be extended to cover in an adjoining building; nor can the contract be changed on the ground of mistake, company supposing property to be located in place specified; nor upon the assumption that the risk would have been taken had the facts been known. Severance v. Continental Ins. Co., 5 Biss. 156 (U. S. Cir.)

20.- Location is material to the risk, and there can be no liability incurred for a loss in any other place than specified. London and Lancashire Fire Ins. Co. v. Lycoming Fire Ins. Co., 13 Ins. L. J. 845; 14 Id. 530 (Pa.)

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21. Mere knowledge of company that property has been removed from its location as described in the policy, does not operate as a waiver, nor is the company obliged to cancel the policy on obtaining such knowledge, to avoid liability. English v. Franklin Fire Ins. Co., 14 Ins. L.

22.- Property to be covered must be in place designated by the policy. First National Bank v. Lancashire Ins. Co., 14 Ins. L. J. 278; 62 Tex. 461.

17.- Policy insured as follows: $500 on their brick pottery building and ells, three stories with basement and flat roof; $500 | J. 377; 55 Mich. 273. on machinery, shafting, belting, machines, and all implements used in their business; $950 on stock in trade, consisting principally of earthenware, and on materials for manufacturing the same; $50 on office 23.- When property is described as in furniture, including safe, contained in said "warehouse No. 1 on the corner of T. and building, situate, &c. The factory con- K. streets," when in fact it is No. 2, No. sisted of two large three-story brick build-1 being forty-six feet distant from the corings, connected by a three-story wooden ner, the figure 1 should be rejected as corridor six feet wide and fifteen feet long. One of these buildings was generally known as the pottery, and had three ells; the other was generally known as the storehouse. In course of manufacture the stock went to and fro from each of the buildings to the others several times. 24. The locality in which goods are Some part of the process was conducted kept is an important element in a con

false, the subject of the insurance being sufficiently identified and described by the rest of the description. Hatch v. New Zealand Ins. Co., 15 Ins. L. J. 70; 67 Cal. 122; S. P. Stillman v. Agricultural Ins Co., 16 Ont. 145 (Can.)

Admissibility of Parol Evidence.

tract of insurance, and ordinarily it must fixtures, with a cellar underneath which be made to appear that the property was was used by the plaintiffs for storing at the place designated in the policy large quantities of lignum vitæ. The when it was destroyed. Authorities other building was occupied as a block cited. Phoenix Ins. Co. v. Allen, 7 West. factory and not as a cordage factory, Rep. 407; 109 Ind. 273. with what is called a basement under it, and no cellar. Both buildings were on the westerly corners of South Eighth and First streets, the block factory being on the northwesterly, and the cordage factory on southwesterly corner. The building on the southwesterly corner was destroyed by fire, and assured brought suit to recover for the loss, whilst defendants claimed that the policy covered the building on the northwest corner, and

25. Where a misdescription of the locality of goods insured is written into the application, without the knowledge or consent of insured, this fact may be proved in an action for a loss, without asking a reformation either of the application or the policy. The company will be estopped from setting up such misdescription as a defense. Id.

26. It is not necessary that a policy misdescribing the place where the prop-not that on the southwest corner. Held, erty insured is situated shall be reformed before bringing an action upon it, where the mistake was that of the agent who examined the property and knew its situation, and where the assured continually resided on the premises during the entire time covered by the policy. *State Ins. Co. v. Schreck, 6 L. R. A. 524; 43 N. W. Rep. 340; 27 Neb. 527.

that the policy was plain enough; but an ambiguity arose in consequence of the extrinsic fact that there were two buildings on the west corners of First and South Eighth streets, of the same height and alike, except the cellar, belonging to the plaintiffs; that this was a latent ambiguity raised by extrinsic evidence and that plaintiffs might introduce evidence to show which was the building intended to be insured; that even supposing the abbreviation No." meant north, the remainder of the description as to occupancy would be inaccurate as applied to that building, but entirely correct as applied to the building on the southwest corner; and as, notwithstanding the mistake, the intent was clear that the building on the southwest corner was the one intended to be insured, the mistake must be disregarded, even at law, without recourse to equity for correction. Burr v. Broadway Ins. Co., 16 N. Y. 267.

28. It is a reasonable condition that the removal of property insured, to a building upon an adjoining farm, be indorsed on the policy. *Hill v. London Assur. Corp., 34 N. Y. S. Rep. 65; 12 N. Y. Supp. 86; 26 Abb. N. Cas. 203 (N. Y.) 29. Admissibility of parol evidence. The policy insured the plaintiffs to the 30.- On a policy of insurance, covering amount of $3,000, on their three and a a stock of goods in a corner store, was half story brick building, slate roof, this endorsement: "The communication coped, occupied as a patent cordage man-made in the adjoining stores does not prejufactory, situate No. West Corner of udice this insurance." The assured made a First and South Eighth streets, Williams-communication between the two stores, burg, L. I., $1,000; on their main shafting and occupied both. A loss having occurred, and fixtures contained therein. $1,000; on their lignum vitæ in the cellar of said building, $1,000.” At time of effecting the insurance, and at time of the loss, the plaintiffs were the owners of two brick buildings on the opposite corners of South Eighth and First streets, one of which was occupied as a patent cordage factory, and contained main shafting and

and claim made for the loss of goods in both stores. Held, that this endorsement did not of itself extend the insurance over the goods in the adjoining store, and as there was nothing in the language of the policy itself which necessarily embraced the stock in such adjoining store, the admission of parol evidence of what was said at time of application for the

Admissibility of Parol Evidence.

privilege of such communication, was to enlarge the terms, scope, and force of a written contract, and, in effect, to incorporate a new provision into it. Liddle v. Market Fire Ins. Co., 4 Bosw. 179; aff'd, 29 N. Y. 184.

31. Two policies were got out at the same time, one "on crude petroleum contained in three wooden tanks." The other policy was "on refined oil in barrels," etc. Note - This policy does not attach to oil in the tanks." The proposition to show that the Note refers to and means simply the oil in the tanks as insured in the other policy, was held inadmissible on every principle, and even if otherwise, the oil in the tanks is not included by the terms "refined oil in barrels." Held, also, that "refined oil" does not include "lard oil." Weisenberger v. Harmony F. & M. Ins. Co., 56 Pa.

442.

32.- Suit on a policy of insurance. The policy describes the premises as between Mead and Arch streets, when in the original policy Ash is written. As the description was complete without this part, and as extrinsic evidence is admissible to remove the error, the objection of variance is to be overruled. Yonkers Fire Ins. Co. v. Hoffman Fire Ins. Co.,6 Rob. 316 (N. Y.)

ment, in case of mistake (the mutuality of which, moreover, is not a question for the jury, p. 118), is not a rule as to the amount of evidence to explain a latent ambiguity, where preponderance of evidence is sufficient, and where, though if there is no evidence, the instrument is void for uncertainty, yet if there is any evidence, it is for the jury to weigh it. And although, in case of mistake, if the judge thinks the evidence insufficient to justify a reform of the contract, he may withdraw it from the jury; yet in a case of latent ambiguity, his opinion as to its sufficiency does not bind the jury. Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. 108.

34.- Policy on "the stock, lumber and goods, manufactured and in process of manufacture in said building." Held that as the words "in said building" were not ambiguous or equivocal, parol evidence could not be admitted to show the circumstances and conversation in applying for insurance, with a view to show that lumber outside the building. in the yard, was included in the insurance. North American Fire Ins. Co. v. Throof, 22 Mich. 146.

35.- Policy insured merchandise “contained in letter C., Patterson Stores, South Front, below Pine street, Phila33. The policy and application both delphia." Patterson stores was a warestated that the hay and grain insured house, divided into eight sections or were in the hay house in the meadow. buildings, being designated by the letters It appeared that there were two buildings A., B., C., etc. The sections were divided in which hay was kept, one of which was from each other by substantial brick more properly and usually called a barn, walls, with no communication between. and was the one intended. It was held The walls extended twelve inches above that it is a case of latent ambiguity, the roof. At time of issue of policy, and which, being raised by parol, can be ex- at time of fire, the property was in fact plained by parol. That the fact that in letter A. and not in letter C. Held, building contained property such as that description a warranty; that the latent insured, and that the other did not and ambiguity in use of the term "letter C." could not, is evidence as to which build- was removable by testimony; that there ing was intended. That when a latent was a breach and there could be no reambiguity is found to exist, it is for the covery; that assured could not invoke jury to ascertain which property is meant, the aid of the maxim "falsa demonstraas in all cases where evidence dehors a tio non nocet;" there must be in the writing is resorted to to fix identity or description so much that is true, as that, locality. All evidence that the grain, casting out that which is false, there is horses, etc., were in the barn is therefore still enough left to clearly point out the admissible, since the jury may find that place in which is the property. Bryce v. to have been the building intended. | Lorillard Ins. Co., 55 N. Y. 240; S. P., The rule of clearness and precision of Hartford Ins. Co. v. Farish, 73 Ill. 166. evidence required to reform an instru- 36.- A misdescription by company's