As Applied to Buildings.

situated

for loss of lumber destroyed by fire is the the jury in this shape: "How much **actual cash value" at time of the fire, would a stranger having no engagements and not the cost of manufacturing at in- or contracts pending, have given for the sured's mill a like quantity of lumber unexpired lease when the fire occurred?” from his own timber. This notwith- | Niblo v. North American Ins. Co., 1 Sandf. standing it appears that the actual cost 551 (N. Y.) of replacing or reproducing would be 51. When the value of property at much less. *Mitchell v. St. Paul German the time of fire is put in issue by the pleadFire Ins. Co., 52 N. W. Rep. 1,017 (Mich.) ings, evidence of such value is relevant at 48. As applied to buildings. The the trial; nor is evidence of the rent of the building insured stood upon leased building insured too remotely circumground, with a condition of renewal in the stantial. Cumberland Valley Mut. Prolease or of removal of the building. Fif-tection Co. v. Schell, 29 Pa. 31. teen days before the expiration of the 52.- A wooden building lease, the building was destroyed by fire, the lease not having then been renewed. The evidence showed that the building was worth $1,000, as it stood, but if it were necessary to remove it, would not be worth over $200. The insurance was for $800. The policy agreed to pay the true and actual value of the property at the time the fire should happen. Held, 1st, that the policy was not a valued policy, and that assured could not recover any greater satisfaction for the loss than the actual value of the building destroyed; 2d, that such loss and damage was to be determined, without any reference to extraneous circumstances, whereby the value of the building might be increased or diminished, and that the intrinsic value of the building, therefore, as it stood at time of the fire, was the true criterion for determining the value of the same, and for such amount, not exceeding the sum insured, the assured might recover. Laurent v. Chatham Fire Ins. Co., 1 Hall, 41 (N. Y.)

within the fire limits of Detroit was injured by fire, and by the ordinances of that city could not be repaired without the consent of the common council, which was refused. The building was insured for $2,000, and the policy contained a clause that in case of loss or damage to the property, it should be optional with the company to rebuild or repair the building within a reasonable time. The cost of repairing the building would be much less than the amount of the insurance, but without leave to repair, the building which before the fire was worth $4,000, would be worth less than $100. Held, that the insured was entitled to recover the whole insurance, and was not limited to such sum as would cover the cost of repair. Brady v. North Western Ins. Co., 11 Mich. 425.

53. The cash value of building destroyed is the value as it stood day of destruction, as compared with a new building of same kind and dimensions. If building was old and dilapidated from 49.- When a building insured is totally use and decay, its value in that condition destroyed by fire, the cost of rebuilding is what assured is entitled to recover. does not furnish the true rule of damages. Assured is not entitled to original cost of Under such a rule the amount recovered building, or to a sum sufficient to erect a would be more than a fair indemnity. new one; nor is it proper to fix value by There is no rule of damages applicable to ascertaining difference in value of lot with such cases; and where no rule of damages building upon it, and its value with buildis established by law, the jury are to de-ing destroyed. Etna Ins. Co. v. Johncide the question, and to their decision son, 11 Bush, 587 (Ky.)

there can be no legal exception. Brinley 54. A heater, bricked in, is properly v. National Ins. Co., 11 Met. 195 (Mass.) included in estimate of value of a build50.- Where building was leased and ing. Adams v. Greenwich Ins. Co., 9 destroyed by fire, after lessee had insured | Hun, 45; affi'd, 70 N. Y. 166.

it; held, that he could only recover for 55.- Property insured was occupied as the value of the tenements for occupation, a homestead. Held, that the destruction subject to rent, and that to determine by fire actually damaged the assured to that value the question should be put to the amount it would cost to restore the

As Applied to Buildings.

62.- Jury having found that no por- 66. The age of a building is not an tion of the brick walls of the building essential element of the criterion for daminsured remaining after the fire could be ages. The actual detriment, if any, should used in rebuilding, that the foundations be shown by the company, before a deso remaining were not sufficient to sup-duction for depreciation should be alport a building of the weight and dimen- | lowed. Id.

As Applied to Buildings.

67.— Under the operation of the Texas making the amount stated in the policy statute and an ordinance prohibiting the measure of damages, and does not operate to limit the recovery on the policy to the award of the arbitrators. Id.

frame buildings injured to the extent of one-third of their value from being repaired or rebuilt, when injured to such extent the loss becomes total, and the 73.- A person injured cannot waive policy evidences a liquidated demand the benefit of Ohio Rev. Stat. § 3,643, for its full amount as issued. HamburgBremen Fire Ins. Co. v. Garlington, 15 Ins. L. J. 509; 66 Tex. 103.

66

Leslie, 9 L. R. A. 45; 19 Ins. L. J. 673; 47
Ohio St. 409; 24 N. East. Rep. 1072.

3,644, requiring an insurance company to have a personal examination made and full description given of property insured, 68. Under the valued policy statute and its insurable value conclusively fixed of Wisconsin the words wholly de- in the policy, as the measure of recovery stroyed" in the statute, mean "total in case of a total loss. *Queen Ins. Co. v. loss" as applied to a building; "total loss" does not mean absolute extinction, but that the building, though some part of it may remain standing, has become a broken mass or so far in that condition that it cannot be properly called a building; question is not whether all the materials are destroyed, but whether the thing insured still exists as a building. Oshkosh Packing and Provision Co. v. Mercantile Ins. Co., 16 Ins. L. J. 801; 31 Fed. Rep. 200.

74.- Conditions of a policy providing a different measure of liability than that prescribed by statute are without binding force; and a condition of the property which the agent should have discovered if he had made the examination required by the statute, cannot avail to defeat a recovery on the policy. Id.

75.- Where building had been erected for fifteen years, and the testimony was 69.— An insurance policy issued under that a new one like it could be cona statute which requires that the amount structed for $780, and that the old one of insurance written on the policy shall burned had depreciated in value from be conclusive as to the value of the prop- twenty-five to fifty per cent., held that a erty insured cannot avoid the effect of verdict for $700 was excessive, as the insuch statute by any provisions inconsis-sured was not entitled to the value of a tent therewith. Oshkosh Gaslight Co. v. new building but to the value of an old Germania F. Ins. Co., 71 Wis. 454; 5 Am. one. *Guinn v. Phænix Ins. Co., 80 Iowa St. Rep. 233; 37 N. W. Rep. 819. 346.

70.- The provision of Wis. Rev. Stat. §1,943, conclusively establishing the value of insured real property when wholly destroyed, at the amount of insurance written in the policy, applies to contracts made in other states as well as in Wisconsin, where the real property is situated in that state. Seyk v. Millers' Nat. Ins. Co., 74 Wis. 67; 3 L. R. A. 523; 41 N. W. Rep. 443.

76.- A building is wholly destroyed within the meaning of Mo. Rev. Stat. fixing the measure of damage, only when no part of it above ground remains intact and substantially uninjured, so that it can be utilized in effectually restoring the structure in its entirety. *Ampleman v. Citizens' Ins. Co., 35 Mo. App. 308; Ampleman v. North British & M. Ins. Co., 35 Mo. App. 317.

77. A contract for arbitration in an insurance policy, whereby the loss is to be determined by appraisers at a less amount than the statute (Mo. Rev. Stat.

6,009, 6,010) secures, is not available as a defense in a suit on the policy. Id.

71.— A building is entirely destroyed, within the meaning of Wis. Rev. Stat. § 1,943, so as to make the amount stated in the policy the measure of damages for its loss, when all the combustible material in it is destroyed, although portions of the brick walls are left standing, but are use- 78. The rule of damages for the loss less as walls, and many, perhaps most, of of a building insured is the value of the the bricks are spoiled by the heat. Id. property at the time of the loss, to be 72.- Submission to arbitration of the estimated by considering the original cost amount of loss on a building insured is of the building, the cost of constructing not a waiver of the benefits of a statute a like building on the same land at the

In Trust or on Commission.

time of the trial, and the difference in value between the building destroyed by reason of its age and use and a new one. *State Ins. Co. v. Taylor, 24 Pac. Rep. 333; 14 Col. 499.

79.- That assured cannot recover the value of a new building. See Guinn v. Phoenix Ins. Co., supra, No. 75.

other things, on goods in his warehouses, and on “goods in trust or on commission therein." The company covenanted to make good "any damage by fire to the property insured." The assured was a wharfinger and warehouseman; he had in his warehouses goods belonging to his customers, which were deposited with him 80. In trust or on commission. The in that capacity, and on which he had a assured were commission merchants, and lien for the charges, cartage, and waretook out a policy with defendants for house rent, but no further interest of his "$10,000, on merchandise in their store own. No charge was made to customers and by them held in trust." At time of for insurance, nor were they informed of effecting the insurance, they represented the existence of the policy. The assured's to the company that they were in the warehouse was consumed by fire with all habit of receiving goods for sale; that the goods in it. The company paid the they had made advances on some of them, value of the assured's own goods, and the and upon some had not made advances; amount of his lien on his customers' that the goods on hand were constantly goods, but refused to pay the value of the changing by sales and new consignments; customers' interest in the goods beyond and that they wished a policy on such the lien. Held, that the goods of the cusgoods to secure themselves against loss tomers were "in trust," within the meanby fire, as the consignors might not being of the policy, and that the assured able to repay the advances. These representations being, by agreement, made part of the case; held, that the policy covered all the goods which assured held as consignees, but that it must be limited to the interest which they had in the goods at the time of the loss, and could not be extended so as to protect the inter-carrier," held, in an action on the policy, est of any of the consignors. Parks v. General Interest Assurance Co., 5 Pick. 34 (Mass.)

81.- Insurance was upon "goods his own or held by him for others on commission" by a policy stipulating that only three-fourths of the value of the property should be paid. Held, that assured might recover the full three-fourths of the value of the goods, although consignor had not ordered the insurance or known of the policy, and although assured had not made any advances on them. Lee v. Howard Fire Ins. Co., 11 Cush. 324 (Mass.)

82.- Coach builder took policy on stock, his own, and held in trust and on commission. Held, that out of the insurance money he might pay himself in full, and quære, whether he could be compelled to divide the surplus with his customers. Dalgleish v. Buchanan, 16 Cases in the Court of Sessions, N. S., 332 (Scotland).

83.- Assured was described as a "corn and flour factor; " the policy was, amongst

was entitled to recover the entire value. Waters v. Monarch Fire Ins. Co., 5 Ellis & Black. Q. B., 870 (Eng.); 85 E. C. L. R. 868.

66

84.- Where a policy was issued to a common carrier on goods " in a certain warehouse as "his own and in trust as a

that to the amount named, the whole value of goods in the warehouse in the possession of the plaintiff as carrier was covered by the policy and not merely the plaintiff's interest as carrier in such goods, notwithstanding a condition of the policy that "goods held in trust or on commission were to be insured as such, otherwise the policy should not extend to cover such property." London, etc., Railway Co. v. Glyn, 1 Ell. & Ell. Q. B. 652 (Eng.).

85.- Policy taken by commission merchants on goods, their own, or “sold, but not removed." Held, to cover goods which had been sold and paid for, and technically delivered, on which there was therefore no lien nor any responsibility, and that the risk is intended to follow the property for the benefit of successive owners, though not especially designated nor having given a previous authority; nor is this forbidden by law. It is done to save the expense of a new insurance after sale. It is not the same as sold, but not delivered," which refers to sales,

66

where the ownership has not changed for 481; 47 Phila. Leg. Int. 202; 19 Atl. Rep. want of technical delivery.

349; 133 Pa. 152.

90.- Partners. Upon a loss after a release of his interest by one member of a firm, the other partners to whom the release was given can recover, in their own names, the whole loss under the policy, including not only the interest released, but also any loss of goods bought by them after the release, coming within the description in the policy. Hoffman

86. Mortgagor and mortgagee. A mortgagor, whose equity of redemption has been seized on execution, may recover the entire value of the building, not exceeding the sum insured. Strong v. Man-v. Etna Fire Ins. Co., 1 Robert. 501; 19 ufacturers' Ins. Co., 10 Pick. 40 (Mass.)

Abb. Pr. 325; aff'd 32 N. Y. 405.

been understood to extend to the profits or fruits which the latter was drawing or might have drawn from the thing insured. Leonarda v. Phonix Assurance Co. of London, 2 Rob. 131 (La.)

87.- The plaintiff acquired by deed of 91.- Profits. The general principle quitclaim the equity of redemption of cer- that the assurers are bound to adjust a tain premises on which the mortgagee loss upon the principle of replacing the had entered for condition broken, and in-assured, as near as may be, in the situasured for $1,500, stated by the policy tion they were in before the fire, has never to be not more than three-fourths the value of the property-the land being estimated to be worth $1,000, the buildings $2.050, and the mortgage amounting to $1,650, and the insurance being taken with full knowledge of the premises and mortgage. Held, that though threefourths of the value of the premises, deducting the mortgage, was much less than that, the plaintiff was entitled to recover the whole amount destroyed by fire. Bor-wages of servants which occupant had to den v. Hingham Mut. Ins. Co., 18 Pick. 523 (Mass.)

92. Insurance against fire does not cover consequential damages from loss of occupancy while the buildings are under repair, nor loss of profits that might have been made by occupant by his trade, nor

pay, though, in consequence of the fire he could not employ them. Menzies v. North British Ins. Co., 9 Cas. Court of Sessions, N. S. 694 (Scotland).

88. Landlord and tenant. In an action upon a policy issued upon a lease or leasehold interest it was held that the 93. The assured cannot recover conseinsured was entitled to recover as dam- quential damages; that the only loss or ages the difference between what would damage insured against are those happenhave been received from sub-tenants and ing by fire, and if the company neglect to what former was to pay under his lease. repair or make good the same to the asSo held on motion for judgment on a de-sured, the only compensation to which he murrer as frivolous to a complaint. Carey is entitled is the actual loss by fire and v. London Provincial Fire Ins. Co., 33 interest on that sum from the time it Hun, 315 (N. Y.) was due. Ellmaker v. Franklin Ins. Co., 5 Pa. 183.

89.- An entry by a landlord to rebuild a burned building, under an agreement 94. On an insurance against loss or with the tenant that the latter shall con- damage by fire on a building simply, and tinue to pay rent during the time of the its injury or destruction by the peril inrebuilding, in consideration of the land-sured against, the assured cannot recover lord's promise to grant a new lease of the for his loss occasioned by the interruption improved property on more favorable or destruction of his business carried on terms, will relieve an insurance company of its contract to indemnify the tenant for any loss accruing to him by reason of having to pay rent for the insured building during such time as it should be untenantable by reason of fire. *Royal Ins. | (N. Y.) Co. v. Heller, 7 L. R. A. 411; 25 W. N. C. 95. On a policy of insurance on a

in such building, nor for any gains or profits which were morally certain to inure to him if it had remained uninjured to the expiration of his policy. Niblo v. North American Ins. Co., 1 Sandf. 551