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. id.
19. 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 undi-
vided 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.
id.
20. 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 in-
terested as his partner in the stock of
goods, which the policy describes as
"his (the plaintiff's) stock,' for al-
though the description would be lite-
rally untrue, yet in order to carry into
effect the certain intention of the par-
ties it would be construed as applying
not to the whole stock, but to the
plaintiff's undivided share.
28. Hence, when an insurance by gene-
ral words is made for the exclusive be-
nefit of one partner, or part-owner, he
is entitled, in the event of a loss, to re-
cover the whole sum insured, when it
does not exceed the value of his inte-
rest. Hence, also, as the policy be-
longs to him exclusively, he is entitled
to demand its possession from the bro-
ker who effected it, and, when neces-
sary, to maintain an action in his own
name against such broker for its wrong-
ful conversion.
id.
express or implied, to make the com- 14. Whether the sureties under special
promise.
circumstances, such as the insolvency
of the tenant or his collusion with the
landlord, may not be entitled to relief
in a Court of Equity, is a question
which the Court declined to consider,
as in the case before it no facts show-
ing a title to any equitable relief were
set forth in the answer.
Vide DEVISE, 15, 16, 17.
LESSOR and LESSEE, 1; ante,
436.
1. An instrument in writing, by which
one party "agrees to let for one year
from its date" certain premises, and by
which the other party agrees to pay
the stipulated rent quarterly, and de-
claring that the "agreement shall con-
tinue in force and effect for one year
from the date hereof," operates as a
lease, in presenti. Hurlbut v. Post. 28
2, When a lessee, not being permitted to
take possession of the whole of demised
premises, nevertheless enters into pos-
session of the residue, and occupies and
enjoys such residue, and pays full rent
for two quarters without claiming a
deduction, and is sued for the third
quarter's rent, he cannot set up the fact
that he at no time had possession of
the whole, as a bar to the action. Such
a withholding of a part is not an evic-
tion, nor a matter of equivalent effect.
He must pay for the part he has enjoy-
ed, upon the principle of a quantum
meruit.
3. When the lessor, in a lease to two
persons as lessees, agrees to render
services of a stipulated character, for
the lessees during the lease, for a com-
mission, and the lessees, before the ex-
piration of the lease, dissolve their co-
partnership, and thenceforth each prose-
cutes the same business on his own
account and solely for his own benefit,
such lessor is not bound to render the
stipulated services for only one of such
lessees, and his neglect or refusal to do
so is no bar to an action to recover
Vide PRACTICE, APPEAL, 2.
SHERIFF, 7.
PARTNERS, 1, 2, 3, 4.
EXCUSABLE NEGLECT; and ante,
629.
PAPERS OF SAME DATE, BE-
TWEEN SAME PARTIES.
Vide DEBTOR and CREDITOR, 9.
Vide DEBTOR and CREDITOR, 6.
INSURANCE, 2; and ante, 431.
Vide AGREEMENT, 12.
DEVISE, 19, 20.
GUARANTY, 1.
The defendant, owning a stone quarry,
agreed, on the 9th of October, 1854,
with one Edward Hollis, as follows:
Hollis agreed with Bettner to blast
stone in this quarry, and fit them for
market, with men and materials to be
furnished and paid for by himself. Bett-
ner was to procure them to be drawn
to his dock on the Hudson River, pre-
paratory to selling them there, or for-
warding them to New York to be sold.
Hollis's men were to assist Bettner's
teamster in loading the stone at the
quarry, and in loading them on a boat
if sent to New York for sale. Hollis
was to pay half the expense of the
powder, purchased necessarily for the
business. Bettner was to retain pos-
session of the stone and sell them.
And it was further agreed that “the
net proceeds shall be equally divided,
share and share alike, one half to said
Hollis, and the other to belong to said Vide AGREEMENT, 17.
Bettner." Cotter v. Bettner.
4. (2.) That Bettner and Hollis were part-
ners in quarrying the stone, and in the
results of the business, in the sense and
to the extent that the defendants in
the case of Bostwick v. Champion et al.
(11 Wend. 571, and 18 id. 175) were
partners.
id.
5. (3.) One partner is liable to third per-
sons for the negligent acts of his co-
partner in the prosecution of the part-
nership business. And each is liable,
in tort, for the negligence of the ser-
vant employed and paid by one of
them exclusively, by which a third
person is injured, while such servant
is engaged in the due course of his
employment, in transacting the busi-2.
ness of said partnership.
Vide AGREEMENT, 14, 15, 16, 17, 18.
EVIDENCE, 22.
VARIANCE, 1, 2, 3.
Vide AGREEMENT, 14 and 15.
EVIDENCE, 16, 17, 18, 19.
PRACTICE, title COMPLAINT.
3. Counter-claim.
Vide LANDLORD and TENANT, 2.
LESSOR and LESSEE, 2.
BILLS OF EXCHANGE, 9.
1. An assignment by a plaintiff, pendente
lite, of his interest in the subject of the
action, does not abate it. Ford v.
David.
It is discretionary with the Court to
substitute the assignee as plaintiff, or
allow the action to proceed in the name.
of the original plaintiff: when a motion
to so substitute has been made and
denied, and the time to appeal is allow-
ed to expire, the fact of such a transfer
cannot be made available at the trial,
to defeat a recovery, nor does it present
a question which can be considered, on
an appeal from the judgment. id
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