3 Pennsylvania that, where A and B were insured as partners, and A sold out to B, no action would lie in the name of A and B for the benefit of B. And, in general, upon the death of the insured, the policy will go with the property insured, either to a legatee or the next of kin, and will be held by the executor or administrator as a trustée until distribution; 2 nor will this clause prevent the 16 Barb. 511, have affected the policy. But as it is, the company are called upon to litigate with a party with whom they had not contracted, and which their policy protected them against." In Tennessee it is held that if two partners effect insurance, and one sells out to the other, an action in the name of both will lie to recover the original share of the vendee, but the interest of the vendor cannot be recovered. Hobbs v. Memphis Ins. Co., 1 Sneed, 444. In Dreher v. Ætna Ins. Co., 18 Mo. 128, it was held that a dissolution of partnership before loss, and a division of the goods, so that each partner owned a distinct portion, was a change of title within the meaning of the clause, "any transfer or change of title in the property insured shall avoid the policy." The argument used in favor of not considering the sale by one partner to another as an alienation, is chiefly that no new party is introduced into the contract, and as the insurer was willing to trust the partnership, and to insure their property, he is not prejudiced in any way by such a sale. But the answer to this is obvious. The presence of one or more particular persons in the firm may be the reason why the insurer was will ing to take the risk. He may have said, "A is an honest, trustworthy man, the other members of the firm I have my doubts about, but as long as A remains in the firm I am willing to trust it." Can it be said, then, that if A sells out to B and C, the insurer is not prejudiced? Again, if one partner sells out to the others, the partnership is by operation of law dissolved; and, admitting that the insurer did not, as in the case just supposed, rely upon one partner, yet it must then be said that he insured the firm, and as this has ceased to exist, he is no longer liable. On principle, if A & B are insured, and A assigns his interest to B, no action should lie in the name of A & B, for A has no interest, and the assignment has not been by consent, which is the evidence of a new contract by the insurer to pay the loss; and, except in New York, an assignee cannot sue in his own name. Finley v. Lycoming Co. Mut. Ins. Co., 30 Penn. State, 311. The policy in this case contained the clause that if the property "shall be alienated by sale or otherwise, the policy shall be void.” If the insured dies intestate, his death works no alienation, because his heirs take by descent, and not by any act of his. Burbank v. Rockingham M. F. Ins. Co., 4 Foster, 550. The question has arisen whether, in case of a devise of real estate, the policy goes to the devisee, or to the administrator as personal estate. The latter seems to be the more correct view. This is shown by the case of Haxall v. Shippen, 10 Leigh, 536. The testator insured his house against fire by a policy to himself, his heirs, and assigns. He then devised the tenement to his wife for life, remainder to his two daughters in fee. After his death the house was destroyed by. fire. The wife received the money, and, without the concurrence of the other de insured from making a valid assignment of his claim after a loss has happened. But whether the parties may, if they see fit, stipulate that such an assignment shall invalidate the policy, is, on the authorities, a matter of doubt.2 If the property insured is admitted to have been owned by the insured when the policy was issued, the burden of proof is upon the insurer to show a subsequent alienation of the property, although generally the burden of proof is on the insured to show that at the time of the loss he had an insurable interest in the property covered by the policy. The policy may provide that not only must the insurers be notified of a change of ownership, but that they must be informed of a change of masters. And if the vessel, in such a case, is lost while under the charge of a master, of whose appointment the insurers have not been informed, the insured cannot recover, although it does not appear that there was any negligence on the part of such captain.* visees, expended it in a new house. She then died, leaving the new house standing, which went with the estate to the devisees in remainder. Held, that the tenant for life had a right only to the use of the money during her life, it being but personal estate, and that she had no right to convert it into real estate, and that on her death the husbands of the devisees in remainder had a right to call for the whole insurance money, without any deduction being made for the value of the new building. But in cases where a trust existed, or was presumed to exist, the proceeds have been considered, not as personal estate, but as "affected with a trust for the benefit of the parties interested in the real estate." Parry v. Ashley, 3 Sim. 97; Norris v. Harrison, 2 Madd. Ch. 268. See also Mildmay v. Folgham, 3 Ves. 471. Sparkes v. Marshall, 2 Bing. N. C. 761; Brichta v. N. Y. La Fayette Ins. Co., 2 Hall, 372; Dadmun Manuf. Co. v. Worcester Mut. F. Ins. Co., 11 Met. 429, 435; Mellen v. Hamilton F. Ins. Co., 5 Duer, 101. 1 2 In Goit v. National Protection Ins. Co., 25 Barb. 189, decided in April, 1855, this question came before the Supreme Court of New York, Allen, J., Pratt, J., Hubbard, J., and Bacon, J., being upon the bench, and it was held that the clause, so far as it affected the right of the assured to transfer his interest after a loss, was void as against public policy. In March, 1857, the same question came before the same court, Strong, J., Welles, J., and Smith, J., being upon the bench, and the clause was held to be valid, no notice being taken of the preceding case. Dey v. Poughkeepsie Mut. Ins. Co., 23 Barb. 623. It will appear, from the numbers of the volumes above cited, that the case of 1857, which held this clause to be valid, was published some time before the case in 1855, which declared it to be void. Orrell v. Hampden Ins. Co., 13 Gray, 431. * Tennessee Marine & Fire Ins. Co. v. Scott, 14 Mo. 46. CHAPTER IV. ON CONSTRUCTION. SECTION I. What is subject to Construction. THE Construction of mercantile contracts is always important and sometimes difficult; and there is no class of contracts which have given rise to more questions of construction, and have caused more litigation on this ground, than policies of insurance. They were originally bargains between merchants, and there is no reason to suppose that they were written under professional advice; and they certainly were not written with technical accuracy. It has been often remarked, that if read for the first time, and without the aid of custom or adjudication, their meaning and purpose could hardly be discovered.2 Much of their language has been repeated for several generations; and of many of the phrases the meaning and effect are fully determined by adjudication. But 1" Policies of insurance are generally the most informal instruments which are brought into courts of justice." C. J. Marshall, Yeaton v. Fry, 5 Cranch, 342. Lawrence, J., Marsden v. Reid, 3 East. 579: "It is wonderful, considering how much property is at stake upon instruments of this description, that they should be drawn up with so much laxity as they are." And see per Lord Mansfield, Wilson v. Smith, 3 Burr. 1550, Park, 246; Maryland Ins. Co. v. Woods, 6 Cranch, 45. "The contract of insurance is certainly very loosely drawn." See Buller, J., in Brough v. Whitmore, 4 T. R. 210, "an absurd and incoherent instrument." Relly v. Royal Ex. Ass. Co., 1 Burr. 347. The instrument is conceived in an ancient and inaccurate form of words. See also opinion of Story, J., Palmer v. Warren Ins. Co., 1 Story, 365; Symond v. Boydell, Dougl. 270, Lord Mansfield. The ancient form of a policy of insurance which is still retained is, in itself, very inaccurate. And per Dutton, J., Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Com. 826. Lord Kenyon, in Brough v. Whitimore, 4 Term R. 208, said: “It was said many years ago that if Lombard Street had not given a construction to policies of insurance, a declaration on a policy would have been had on a general demurrer; but that the uniform practice of merchants and underwriters had rendered them intelligible." Lord Mansfield, in Relly v. Royal Ex. Ass. Co., 1 Burr. 347: "From the nature, object, and utility of this kind of contract, consequences have been drawn and a system of construction es changes in this phraseology are continually made to meet the varying needs of commerce, and every new phrase gives rise to new questions. Words Printed or Written. What All our policies are in part printed and in part written. What is printed is supposed to belong to all policies, or at least to all the policies issued by the underwriters who use that form. is written expresses the particulars of that individual bargain. From this follows one obvious rule: that if what is written conflicts with what is printed, it controls what is printed. The reason is obvious; for what is written contains the particulars of that very contract, and may be supposed to come under especial consideration.1 tablished." But length of time, and a variety of discussions and decisions, have reduced it to a certainty. By Lord Mansfield, in Symond v. Boydell, Doug. 270. See also Maryl. Ins. Co. v. Woods, 6 Cranch, 45. In Taunton Copper Co. v. Merchants' Ins. Co., 22 Pick. 111, the court say: "It has been often said that the contract of insurance is obscure in its terms, but that by a course of judicial decisions it has been rendered sufficiently certain to answer the valuable purposes for which it was made. The construction which has from time to time been given by courts in judicial decisions, and the ordinances of commercial countries, and the known usages touching this contract, have been introduced and considered as part of the law merchant of the civilized world, and we are not disposed to narrow the view." And in Gordon v. Little, 8 S. & R. 562, Mr. Justice Gibson said: "The relaxation of the common-law rules of evidence, in the case of a policy, arises from the clumsiness of the instrument, which has undergone little or no alteration since it came into use; although the ever-varying circumstances of trade have pro duced a variety of corresponding modifications of its obligation, which is often independent of its terms." 1 Lord Ellenborough, in Robertson et al. v. French, 4 East, 136, says: "The only difference between policies of insurance and other instruments in this respect is, that, the greater part of the printed language of policies of assurance being invariable and uniform, has acquired from use and practice a known and definite meaning, and the words superadded in writing (subject indeed always to be governed in point of construction by the language and terms with which they are accompanied) are entitled, nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case and that of all other contracting parties upon similar occasions and subjects." See 2 Parsons, Contr. (5th ed.) 516, and 1 Greenl. Ev. It is the parts which are written which give rise to the vastly larger number of questions of construction. They have not usually the advantage of ancient usage, or of definite adjudication. They express the meaning of the parties in such words as occurred to them, and as seemed at the time sufficient; but when a loss occurs these words are often found to admit of more than one construction, and to be of doubtful meaning. It must always be remembered that construction does not come in, unless it be made necessary by obscurity or uncertainty.1 § 278. See also Emerigon, c. 2, § 3, vol. 1, p. 33; Wallace v. Ins. Co., 4 La. 289; Cushman v. Northwestern Ins. Co., 34 Maine, 487; Alsager v. St. Katherine's Dock Co., 14 M. & W. 794, 799; Harper v. Albany Mut. Ins. Co., 17 N. Y. 394; Howland v. Comm. Ins. Co., Anthon, N. R. 26. In Goicoechea v. La. State Ins. Co., 18 Mart. La. 51, 55, Porter, J., said: "The rule invoked by this argument, that the written parts of the policy should control those that are printed, is correct, because the written words are the immediate language and terms stated by the parties themselves for the expression of their meaning, and the printed ones a general formula made for all cases that may be presented. But the rule cannot properly receive an application in cases other than those where the written and printed words so contradict each other that the one must yield to the other." In Hunter v. General Mutual Ins. Co. of N. Y. 11 La. Ann. 139, a number of slaves were insured by a written clause," solely against loss by drowning in consequence of the stranding or shipwreck of the vessel, the assurers being warranted against all other risks." There was a printed clause in the policy authorizing the recovery of a general average contribution. It was held that the two clauses would stand together, because a liability for a general average 66. contribution cannot properly be called a risk; it is an obligation incident to a sacrifice made to avert a risk. It is based upon the equitable rule, that no one should enrich himself at another's expense; but it is not itself a risk, according to any proper interpretation of that term." See also Phoenix Ins. Co. v. Taylor, 5 Minn. 492; Benedict v. Ocean Ins. Co., 31 N. Y. 389; Coster v. Phoenix Ins. Co., 2 Wash. C. C. 51; per Oakley, C. J., in Weisser v. Maitland, 3 Sandf. 322; Bargett v. Orient Mut. Ins. Co., 3 Bosw. 385; De Longuemare v.The Tradesmen's Ins. Co., 2 Hall, 622; 1 Emerig. 34. "Il est permis de déroger aux clauses imprimées, et on est censé y déroger, par cela seul que les clauses écrites à la main y sont contraires." Bargett v. Orient Ins. Co., 3 Bosw. (N. Y.) 385. But if the whole contract can be construed together, so that the written words and those printed make an intelligible contract, this construction should be adopted. 2 Pars. Contr. (5th ed.) 516, and cases cited; 1 Emer. 34. This is but a development of the maxim that, "Ubi in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est," with which the rule adopted by Emerigon from Vattel perfectly corresponds: "Qu'il n'est pas permis d'interpreter ce qui n'a pas besoin d'interpretation." 1 Emerig. c. 1, § 7, p. 59. Vattel further re |