on fire insurance policies issued by the respective defendants on the tug Osprey, owned by plaintiff. The trial resulted in a verdict for the amount of the policy and interest against each defendant, and each appealed to this court from an order denying its motion for judgment notwithstanding the verdict or for a new trial. The facts are not in dispute, and are as follows: On February 5, 1915, plaintiff was the owner of the steam tug Osprey, then lying in a slip in the harbor of Duluth. He applied to Duluth insurance brokers for $10,000 insurance on the tug. The brokers placed the order for insurance with a firm in Toronto, Can., who secured a policy for $5,000 from each of the defendant companies. The policies were "dated at Toronto, February 5, 1915," and insured the tug against loss or damage by fire for the term of one year. Each provided that it should not be valid unless countersigned by the duly authorized agent of the insurer at Toronto, and each was so countersigned. The policies were in the Ontario standard form. Each contained the following conditions: "Any change material to the risk and within the control or knowledge of the assured shall avoid the policy as to the part affected thereby, unless the change is promptly notified in writing to the company or its local agent." "If the property insured is assigned without a written permission indorsed thereon by an agent of the company duly authorized for such purpose, the policy shall thereby become void, but this condition does not apply to change of title by succession, or by operation of the law, or by reason of death.” On March 9, 1915, without the consent of or notice to the insurers, plaintiff executed and delivered to F. K. Randall a bill of sale of the tug; this bill of sale was absolute on its face, and was duly recorded in the office of the collector of customs at Duluth. The tug remained in plaintiff's possession. The insurers did not know that a bill of sale of the tug had been given until after the tug was destroyed by fire, on April 15, 1915. The answers of defendants set up the sale of the tug without their consent or knowledge, alleging that such sale and transfer was in violation of the conditions above set out. The reply alleged that the bill of sale was given as collateral security only, and that the risk was not materially increased thereby. The only issues on the trial related to this bill of sale, as to whether it constituted an "assignment" of the insured property, and whether it constituted a "change material to the risk." The evidence, admitted over defendants' objection, showed without contradiction that the bill of sale was given only as collateral security for an indebtedness of plaintiff to the City National Bank of Duluth; Randall, who was an employee of the bank, acting as trustee. The court instructed the jury that the bill of sale was in legal effect a chattel mortgage only, and did not constitute an assign ment of the property in violation of the conditions of the policy. The question of increase of risk was submitted to the jury under proper instructions, and was necessarily determined by the verdicts against the defendants. The assignments of error are directed to various rulings of the trial court, but really present but two questions, which may be thus stated: (1) Was the insured property "assigned" by the giving of the bill of sale? (2) Was there a material increase of risk, as a matter of law, and is the verdict that there was not sustained by the evidence? [1] 1. There can be no doubt that it was permissible to prove by parol that the bill of sale was a chattel mortgage, and that the evidence conclusively so proves. The question is then: Was the tug "assigned," within the meaning of the condition of the policy, when the owner gave to a creditor a chattel mortgage thereon? Plaintiff contends that these are Ontario contracts; defendants, that the law of Minnesota governs. The policies were in the Ontario standard form, were so labeled, and were dated and countersigned at Toronto. But we need not decide what law governs, further than to remark that defendants should not complain if we follow the decisions, of the Canadian courts hereinafter referred to, finding nothing conflicting with them in the decisions in this state or in this country. Defendants rely strongly upon the definition of the words "assignment" and "assign" as given in dictionaries and in decided cases, asserting that an "assignment" of property is a transfer by one person to another of the whole of any property, "or of any estate or right therein." The argument is that a chattel mortgage, as between the parties, passes not only an estate or right in the property to the mortgagee, but the legal title, leaving only a right of redemption in the mortgagor. This is all true, but it does not determine that the parties to the contracts involved in the cases at bar intended by the language used to provide that the giving of a chattel mortgage on the insured property avoided the policies. Notwithstanding the chattel mortgage, plaintiff still had possession of the insured property and an interest therein to protect by insurance; he still had an insurable interest. The cases hold quite generally that what such a provision as the one under discussion is intended to provide against is a transfer or assignment of the insured's entire interest in the property, so that he does not retain an insurable interest, and that a chattel mortgage is not such a transfer or assignment. The Canadian cases interpreting the identical provision, which is a part of the form required by the Canadian law, are uniformly to the above effect. Sands vs. Standard Fire Ins. Co., 26 Grant, Ch. 113, 27 Grant, Ch. 167; McQueen vs. Phoenix Mutual Life Ins. Co., 4 Sup. Ct. Rep. 33; Wade vs. Rochester German Ins. Co., 23 Ontario Law Reports, 636; Pritchard vs. Merchants' Marine Ins. Co., 26 N. B. 232. The American cases, while not so directly in point because not involving a construction of the precise language used in the Canadian form, are not in conflict, but, on the contrary, are in accord, generally speaking, on the proposition that giving a chattel mortgage does not divest the insured of all insurable interest in the property, and is not an "assignment" of the property within the meaning of conditions providing for forfeiture if the interest of the insured be "assigned" without the consent of the insurer. Holbrook vs. American Ins. Co., 12 Fed. Cas. 319, 1 Curtis, 193; Hitchcock vs. Insurance Co., 26 N. Y. 68; Griffey vs. Insurance Co., 100 N. Y. 417, 3 N. E. 309, 53 Am. Rep. 202; Bryan vs. Traders' Ins. Co., 145 Mass. 389, 14 N. E. 454; Loy vs. Home Ins. Co., 24 Minn. 315, 31 Am. Rep. 346. Many other cases might be cited to the same purport, but it is not necessary. The authorities relied on by defendant do not hold the contrary; they are cases either where there was an absolute transfer by the insured of his entire interest, or where the policy contained an express provision against mortgaging the property. We hold that by giving this chattel mortgage the insured property was not "assigned" within the meaning of that word as used in the policies sued upon. [2] 2. We are unable to hold that as a matter of law the risk was materially increased by giving the bill of sale, or chattel mortgage, or that the finding of the jury on this question is not supported by the evidence. Increase of risk is always a question for the jury, unless in a particular case the evidence is so conclusive that reasonable minds cannot differ. The question was for the jury in the case at bar, and its decision must stand. We find no other points that require mention. The order in each case is affirmed. SUPREME COURT OF NEW YORK. POTOMAC INS. CO. OF DISTRICT OF COLUMBIA US. KELLY.* 1. INSURANCE-ACCOUNTING BY AGENT-FOUNDATION OF RIGHT OF ACTION-FIDUCIARY RELATION. A fiduciary relation existed between a fire insurance company and the party who contracted with it to act as its general agent for the United States and Canada, to establish an agency, maintain a field and office force, give his personal attention to the management, and render the * Decision rendered, July 10, 1916. 160 N. Y. Supp. 161. insurance company monthly statements or accounts, and an action lay against him by the company for an accounting. (For other cases, see Insurance, Cent. Dig. §§ 107, 108; Dec. Dig. § 82.) 2. INSURANCE-ACCOUNTING BY AGENT-EQUITABLE AC TION-BURDEN OF PROOF. In an action by a fire insurance company against its general agent for an accounting, the burden was on the agent to show he had turned over to plaintiff all the moneys collected by him and to which it was entitled. (For other cases, see Insurance, Cent. Dig. §§ 107, 108; Dec. Dig. § 82.) 3. INSURANCE-ACCOUNTING BY AGENT-RIGHT OF ACTION -RENDITION OF STATEMENTS. The fact that the general agent of a fire insurance company rendered statements from time to time, which were retained without objection, did not deprive the company of its right to have a full and complete account of the agent's dealings, if it so desired. (For other cases, see Insurance, Cent. Dig. §§ 107, 108; Dec. Dig. § 82.) 4. INSURANCE-ACCOUNTING BY AGENT-RIGHT OF ACTION -SHOWING OF MONEY DUE. To have an accounting against its general agent, it was not necessary for plaintiff fire insurance company to show that anything would be found due it from the agent; it being sufficient that a fiduciary relation existed between the parties, entitling the company to a full statement of the agent's acts as such. (For other cases, see Insurance, Cent. Dig. §§ 107, 108; Dec. Dig. § 82.) Cross-Appeals from Special Term, New York County. Action by the Potomac Insurance Company of the District of Columbia against John A. Kelly. From an interlocutory judgment (91 Misc. Rep. 335, 155 N. Y. Supp. 98), directing defendant to account, both parties appeal. Judgment modified, as indicated in the opinion, and, as modified, affirmed. Argued before Clarke, P. J., and McLaughlin, Scott, Dowling, and Davis, JJ. Stephen P. Anderton, of New York City, for Plaintiff. MCLAUGHLIN, J. Appeal by both parties from an interlocutory judgment directing the defendant to account. Plaintiff is a fire insurance company, with offices in Washington, D. C. Defendant is a resident of New York City. On the 12th of January, 1909, he was appointed by the plaintiff its agent for the United States and Canada, excepting the District of Columbia and its immediate vicinity, for a term of five years, under a written contract which fixed his compensation at 371⁄2 per cent of the net premiums received on policies written through his office. Defendant agreed, for the compensation stated, to establish an agency, to maintain an efficient and capable field and office force, to give his personal attention to the management, and to render to the plaintiff monthly statements or accounts. Immediately following the execution of the contract the plaintiff entered upon the discharge of his duties, and continued to act as plaintiff's agent until February 17, 1913. He issued and canceled policies on behalf of the plaintiff, collected premiums, adjusted and paid losses, and from time to time rendered statements to the plaintiff of the policies written and the amount of moneys collected and disbursed. [1, 4] The evidence clearly established that, acting under this contract, his relation to the plaintiff was a fiduciary one, and the action lies for an accounting. The burden is upon him to show that he has turned over to the plaintiff all of the moneys collected by him and to which it is entitled. Marvin vs. Brooks, 94 N. Y. 71. The fact that he rendered statements from time to time, which were retained without objection, does not deprive the plaintiff of its right to have a full and complete account of defendant's dealings, if it so desires. Jordan vs. Underhill, 91 App. › Div. 124, 86 N. Y. Supp. 620; Frethey vs. Durant, 24 App. Div. 58, 48 N. Y. Supp. 839. To obtain an accounting, it is not necessary for the plaintiff to show that anything will be found due. It is sufficient that the relation exists between the parties, and this entitles the plaintiff to a full and complete statement of his acts as agent. But, from the theory upon which the case was tried and decided, as well as the manner in which it was presented by the plaintiff on appeal, it would seem that the plaintiff does not want an accounting under the contract referred to, but does desire one from May 1, 1911, when it is claimed another contract was entered into. The interlocutory judgment does not direct the defendant to account from January 12, 1909, but only from May 1, 1911, when the alleged second contract was made. [5] About the time the contract was made, January 12, 1909, the defendant purchased a majority of plaintiff's capital stock. Some time in 1909 he became acquainted with one Norie-Miller, the general manager of the Central Accident, Fire & Life Assurance Company of Perth, Scotland, whom he finally interested in the plaintiff's company. Defendant went to Perth in April, 1911, and saw Norie-Miller, with whom he arranged for the sale of his stock in plaintiff to the General Accident Company. The sale of the stock also contemplated that the Accident Company should acquire the balance of the stock in plaintiff, either through the defendant or others. On May 1, 1911, Norie-Miller wrote a letter to the defendant, referring to the purchase of his stock, and saying:— "We are agreeable to appoint you as our manager for that business in the United States on the terms arranged, namely, you to be paid a straight commission of 35 per cent on the net premiums received, this to cover every commission and expense, including taxes and any other special charge, and you to receive also a contingent commission of 10 per cent on the net ascertained profits, such profits to be arrived at after deduction of Vol. XLVIII-20. |