Cook v. Adams.

justice has the right to say that the words, "or other person," &c., are not just as applicable to commission merchants and factors, to whom goods are entrusted for transportation or storage only, as to any other class or description of persons whatever; and if this be so, there is an end of this controversy. The proof is conclusive that the plaintiff's wool was placed in the custody of Davis & Peabody, and was left in the custody of Tuthill "for storage only." Hence the sale made by Tuthill, as against the plaintiff, was wholly void. It was an unauthorized and fraudulent act, and however innocent the defendants may be, it passed no title which, as against the plaintiff, they can be permitted to allege. Such is the necessary effect of that which we deem to be the necessary construction of the statute.

It follows, that in our opinion, the plaintiff's complaint ought not to have been dismissed upon the trial, but that, upon the contrary, the Jury ought to have been instructed that upon the evidence before them, he was entitled to their verdict.

We must, therefore, order a new trial, with costs to abide the event.

There are a few words which, although not necessary to our decision, I deem it expedient to add.

If, notwithstanding the provisions of the Act "Relative to Principals, and Factors or Agents," which, from some unexplained cause, seem hitherto to have been passed over, the doctrine laid down by Senator Verplanck, in Saltus v. Everett, and to which both Chancellor Kent, in his Commentaries (2 Kent's Com., p. 621), and Mr. Justice STORY in his Treatise upon Agency (§§ 73, 94, 229), seem to have given their sanction, is to be followed as law, it may be seriously doubted, whether the doctrine as understood and explained by these eminent jurists, is applicable to the present case, so as to cover and warrant the defence that has been so confidently relied on. The doctrine thus explained, we understand to be this: That when the owner of goods puts them into the possession of a person whose ordinary and known business it is to sell goods, of the same description, he by this voluntary act holds out such person to the world as clothed with a general authority to sell, and, consequently, if a sale is made by him to an innocent purchaser, is concluded from denying its validity. If, under the doctrine applicable, therefore, it

Irving v. The Excelsior Fire Ins. Co.

is evident that it must appear that the business of the agent was known to his principal, the owner of the goods, when he entrusted them to such agent's charge, and was known to him to embrace the sale of goods of the same description. Now, as I understand the evidence in the present case, the ordinary business of Davis & Peabody, when the plaintiff placed his wool in their custody, did not embrace the sale of wool. The testimony of Baker is express, that at that time they were sellers of provisions and other produce and not of wool, and if their business or that of their successor Tuthill was afterwards so enlarged as to embrace the sale of wool, there is no evidence that this change in the business was known to the plaintiff. There is no evidence, therefore, that by any voluntary act he held out Tuthill to the world as clothed with an authority to sell.

The plaintiff's counsel excepted upon the trial to the ruling of the Judge, in admitting evidence to show that Tuthill, previous to the sale to the defendants, had publicly become a dealer in wool, and if proof of this fact were alone sufficient to establish the defence, we think that the evidence given was properly admitted; but if we are right in the grounds upon which we now place our decision, this evidence upon a future trial will be immaterial and irrelevant, and ought, therefore, to be excluded. It will be irrelevant if the fact that the wool was left with Tuthill for storage only shall be conclusively proved.

Nonsuit set aside, and new trial granted; costs to abide

event.

CHARLES IRVING V. THE EXCELSIOR FIRE INSURANCE

COMPANY.

Under the conditions in a policy of insurance against fire, it is the duty of the assured to deliver to the Company, as a part of the preliminary proofs, a just and true account of his loss; and the delivery of this account is a condition precedent to his maintenance of an action for the recovery of the loss.

The assured is bound by the statement thus delivered, and cannot, upon the trial,

Irving v. The Excelsior Fire Ins. Co.

impeach its truth, and recover upon testimony showing a different state of facts from that which it contains.

A witness, alleged to be a partner of the plaintiff, was examined on the trial to show the nature of the plaintiff's interest in the property insured, and it was insisted on the part of the defendants that his testimony was inconsistent with the statement delivered by the plaintiff to the Company, and, therefore, ought not to have been received.

But the Court held that there was a substantial agreement between the statements and the testimony, and that the latter was rather explanatory than contradictory, and that the necessary result of both was that, the plaintiff, if not the legal, was the equitable owner of all the property insured.

Held, therefore, that the property, on which the loss was claimed, and which was a stock of goods, in a certain store, was properly described in the policy as "his (i. e. the plaintiff's) stock," there being no other goods in the store to which the description could be applied.

Held, that it could not be doubted that the plaintiff meant to cover by an insurance, and the defendants meant to insure the very property destroyed, and this intention the Court was bound to carry into effect, if this could be done without violat ing the rules of law.

The general rule is that the assured is not bound to disclose the nature of his interest, whether legal or equitable, a several or an undivided share, unless the disclosure is material to the risk; and in the case before the Court, whether the property insured was "his" (the plaintiff's) at law or in equity, was plainly immaterial. The nature of his ownership could not possibly alter or affect the character of the risk.

Held, that this view of the plaintiff's rights was not forbidden or varied by a condition in the policy, that "if the interest in the property be a leasehold interest or other interest not absolute, it must be so represented to the Company, and expressed in the policy in writing, otherwise the insurance shall be void." The plaintiff's interest in the property was not qualified or contingent, but in the fullest sense of the term was absolute. The property belonged to him in his own right, and not as a trustee for another; and if his interest was merely equitable, it was in its nature as absolute as a legal ownership, and hence the condition in the policy did not require it to be disclosed.

Held, that even if the interest of the plaintiff, in the property insured, was that of a partner, still his interest was properly described in the policy, and was insured to its actual extent.

That an insurance made by a partner on partnership property, although made in his own name, and expressed to be on his sole account, protects his undivided share, so as to entitle him in the event of a loss to recover to the extent of that interest, may be regarded as settled and undoubted law.

The conclusion, that the decisions fully justify, is that the plaintiff would be entitled to recover, to the extent of his own interest, even had it been proved that the witness Clark was interested as his partner in the stock of goods, which the policy describes as "his (the plaintiff's) stock," for although the description would be literally untrue, yet in order to carry into effect the certain intention of the parties it would be construed as applying not to the whole stock, but to the plaintiffs undivided share.

Lastly, in the opinion of the Court, the testimony tended to show that the co

Irving v. The Excelsior Fire Ins. Co.

partnership arrangement between the plaintiff & Clark, gave to the latter no interest in the capital stock as owner, but only secured to him a share of the net profits when realized.

If such was the arrangement Clark could assert no title in the property insured, and, consequently, the property was rightly described by the plaintiff in the policy as "his stock." Hence in every possible aspect of the case the plaintiff was entitled to judgment.

Verdict sustained, and reference ordered to ascertain the amount of the loss. (Before BOSWORTH & WOODRUFF, J.J.)

Heard, June 19; decided, July 11, 1857.

THE questions, discussed and decided in this action, arise on a verdict taken, subject to the opinion of the Court at General Term.

The action was brought to recover a loss under a policy of insurance against fire, and the following are the material facts, as proved upon the trial, before OAKLEY, Ch. Justice, and a jury, in March, 1857.

The defendants by their policy dated September 5th, 1855, insured "Charles Irving, (the plaintiff) against loss or damage by fire to the amount of $1,750 on his stock as a cabinet manufacturer, finished and unfinished, and materials for making the same contained in the five-story brick building, with metal roof, situated in the rear of Nos. 110, 112 and 114, East 27th street, in the city of New York."

Among the conditions of the insurance annexed to the policy and by express reference incorporated in it, was the following: "If the interest in property to be insured be a leasehold interest or other interest not absolute, it must be so represented to the Company and expressed in the policy, in writing, otherwise the insurance shall be void."

Another condition required the assured in case of loss to deliver to the Company, as soon as possible, as particular an account of his loss and damage as the nature of the case will admit, which account must be sworn to be true and just.

On the 19th of December, 1855, a fire occurred, which partially destroyed the three buildings, and the stock of cabinet furniture, and materials contained therein, and it is averred that the loss and damage sustained by the plaintiff, by the injury to such stock and materials, amounted to the sum of $8,500.

There were other insurances to the amount of $6,750, making

Irving v. The Excelsior Fire Ins. Co.

the whole amount of insurance $8,500, whereupon the plaintiff claims for a total loss, the amount insured $1,750.

By the plaintiff's statement of loss, sworn to by him, submitted to the defendants, and read as evidence in chief on the trial, it is stated that the stock contained in the buildings at the time of the fire, "belonged to him, as herein-after stated." That is to say, "his ownership of the said property was as follows: He was then, and is now, the principal member of the firm of Irving and Clark, by which firm the said property was manufactured and possessed; that he furnished all the capital of the said firm, and was then, and is now almost its sole creditor, and his interest therein covers and would absorb as he believes not only all the said property, but all the assets of the said firm."

The defence interposed by the Company rests upon the ground that the subject of the insurance is described as the plaintiff's sole property, and that property held under such ownership as is above described in the plaintiff's statement of loss is not covered by the policy, and therefore the plaintiff has sustained no loss or damage by fire "on the subject insured by said policy."

On the trial, Clark, the person whose name is used in the firm name of "Irving & Clark," gave testimony tending to show that in December, 1854, he entered into a negotiation with the plaintiff in respect to forming a partnership. That he went with him. upon the understanding that they were to become partners, and were to share equally in the profits-that he continued with the plaintiff upon that understanding until six weeks before he (Clark) left for California, which was November 20th, 1855, i. e. until early in October, 1855, when he says, that understanding was abandoned, and the plaintiff was to give him a proper remuneration for his services. As the witness expresses it, "Our copartnership here was not consummated, and in September or October, 1855, we agreed to abandon all thoughts of it, and plaintiff agreed to pay me for my services." The witness further says, "the capital in the business here all belonged to the plaintiff the property was all his, and the profits all his." "I sup pose that he and I, are to the world, partners, but between ourselves, we are not, and have never been so." And again

"At the time of the insurance, and at the time of the fire, there was no partnership existing between the plaintiff and