Other Special Cases. tually owned by another. Assured was showed sufficient title to sustain his achis general agent having custody and con- tion. David v. Williamsburg City Ins. trol of the property, with full power to Co., 83 N. Y. 265. preserve and dispose of it according to his discretion, and was liable to account for it and the proceeds when sold. Held, that assured had sufficient insurable interest to entitle him to be insured in his Own name. Kline v. Queen Ins. Co., 7 Hun, 267. Aff'd (without opinion) 69 N. Y. 614. 141.- Liability for tax on whiskey lost while stored in warehouse is sufficient to create an insurable interest. Ins. Co. v. Thompson, 5 Otto, 547 (U. S.) 142.- Party who has transferred to a bank warehouse receipts as collateral security retains an insurable interest in the property. Parsons v. Queen Ins. Co., 29 Up. Can. C. P. 188. 143.- Warehousemen as bailees have an insurable interest. Richmond v. Niagara Fire Ins. Co., 79 N. Y. 230; Pelzer Mfg. Co. v. Sun Fire Office et al., 15 S. E. Rep. 562, (So. Car.) 144.— A. having made advances to B. upon a vessel in course of construction, upon faith of a verbal agreement that when finished vessel should be put in former's hands for sale and that he should be repaid out of proceeds, and fire occurring before work was completed, held, | that A. had an equitable interest and that it was insurable. Clark v. Scottish Imp. Ins. Co., 4 Duval, 192 (Can. Sup.); Rev'g 2 Pugsley and B. 240. 146.- When a life interest is insured its value depends, treating it as an unqualified life estate on age and expectation of life. If estate is qualified by provision that party is to use and occupy so long as he chooses to make property his home, the interest is still less valuable. The insurable interest of such a party is the value of the use to him. In case of a man sixtyfive years of age, value of his life would be worth, according to usual tables, fortyfive per cent. of the whole value of the property. If right is entirely personal and not alienable, its value would be still less. Farmers' Ins. Co. v. Archer, 10 Ins. L. J. 370; 36 Ohio St. 608. 147.- While a judgment creditor has such an insurable interest as will permit insuring himself against loss by fire to the property upon which his judgment is a lien, yet before he can recover it must be averred and proved that at time of the fire the amount of the judgment could not have otherwise been made on an execution against the property of the judgment debtor. Spave v. Home Mutual Ins. Co., 12 Ins. L. J. 365; 17 Fed. Rep. 568. 148.-Assignee of an insolvent has an insurable interest and may be insured as such. Sibley v. Prescott Ins. Co., 14 Ins. L. J. 770; 57 Mich. 14. 149.- A builder who has contracted to furnish materials and build a house, to be paid for in installments, a certain amount being reserved until after full completion of the building, until it is finished and delivered, its destruction is the builder's loss and he therefore has an insurable interest in the same. Commercial Fire Ins. Co. v. Capital City Ins. Co., 16 Ins. L. J. 81; 81 Ala. 320. 145.- Defense was that the assured had no interest as owner. Policy covered both real and personal property which was in premises of plaintiff. Evidence tended to prove that the property was conveyed by one Henry J. David, who then owned the same, to Marx David, who was a fictitious person, and then, that in the name of Marx David he conveyed same property to plaintiff. Court charged jury that if they believed that Marx David was a myth, or that there was no such real person, or that he never executed the deed or bill of sale, it was an end of 151.- A patentee may insure his royalplaintiff's case and they must find for de- ties against damage to the business premfendant." Held, error. That Henry J. ises of the exclusive licensee of the patent David was bound, even although he used by fire, and the policy is not a wager policy. an assumed name. That the title was National Filtering Oil Co. v. Citizens' good as against him, and there being no Ins. Co., 9 Cent. Rep. 177; 106 N. Y. 535; evidence of any other claimant, plaintiff | 13 N. East. Rep. 337. 150.- An insured taking conveyances in good faith, and going into possession, has an insurable interest in the property. Home Ins. Co. v. Gilman, 10 West. Rep. 842; 112 Ind. 7; 13 N. East. Rep. 118. General Rules. 160.— One who agrees for a consideration to take possession of a building, care for it, rent it and keep it insured, incurs a possible liability which gives him an insurable interest in the building to the extent of its value. *Cross v. National F. Ins. Co., 43 N. Y. S. Rep. 482; 30 N. East. Rep. 390; 132 N. Y. 133. 152.— A turnpike company which has A. Pipe Lines v. Home Ins. Co., 28 W. N. contributed to the expense of building a C. 347; 48 Phila. Leg. Int. 440; 22 Atl. Rep. county bridge has no insurable interest | 665; 21 Ins. L. J. 24 (Pa.) therein on that account. Farmers' Mut. Ins. Co. v. New Holland Turnp. Road Co., 22 W. N. C. 363; 15 Atl. Rep. 563; 122 Pa. 37. | 153.- Railroad companies, by acquiring receipts of a bailee and issuing bills of lading for cotton, take only constructive possession of it; and the actual and physical possession of a warehouse company give it the right to effect insurance for its own benefit, and, as bailee or agent, for | under an agreement with the owner, unthe protection of the railroad companies. *California Ins. Co. v. Union Compress Co., 133 U. S. 387; 33 L. ed. 730; 7 R. R. & Corp. L. J. 363; 19 Ins. L. J. 385; 10 Sup. Ct. Rep. 365. 161.- One in possession of a building der which he is to occupy during his life, and keep the building in repair and insured, and pay the taxes, has an insurable interest. Authorities as to insurable interest cited and reviewed. *Berry v. Am J. 455; 30 N. East. Rep. 254; affg, 30 N. Y. 154.- Where a company received cot-erican C. Ins. Co., 132 N. Y. 49; 21 Ins. L. ton to press, and issued receipts therefor, which were exchanged with a railroad company for its bills of lading for the transportation of the cotton, agreeing to deliver it at an address specified in the bill of lading, the railroad company has an insurable interest in the cotton, which may be covered by a policy issued to the former company. ld. 155. Common carriers can insure themselves against loss proceeding from the negligence of their own servants. Id. 156. The words "held by them in trust," in a policy, cannot properly be limited to a holding in trust merely for an absolute owner, when it clearly appears that railroad companies had an insurable interest in the cotton, and the plaintiff held the property in trust exclusively for those companies. Id. 157.- One who occupies the house and the land upon which it is situated, as a homestead, has an insurable interest therein. *Reynolds v. Iowa & N. Ins. Co., 80 Iowa, 563; 46 N. W. Rep. 659. 158.- A contractor engaged in moving a house has an insurable interest therein. *Planters' & M. Ins. Co. v. Thurston, 20 Ins. L. J. 746; 9 So. Rep. 268; 93 Ala. 255. 159. An insurance company which has issued to a pipe line company a policy upon oil is liable to it upon the destruction of such oil by fire to the extent of its interest therein, although the oil is that of its customers, where no representations as to the extent of such interest were made by the pipe line company. *Western & 162.- A managing owner who has made advances on account of a vessel has an individual insurable interest therein to the extent of such advances. *Kinsman v. China Mut. Ins. Co., 49 Fed. Rep. 876. 163. Cross references. Section one. Subd. II. Parties or persons insured. Location and description. 1, et seq. Concealment. No. 45. Misrepresentation. No. 57. Statement of interest. Nos. Subd. V. Fraud and false swearing. 1-173. Interest of insured. Nos. Subd. X. Assignment. No. 64. Subd. III. Statement or proofs of loss. X. USAGE AND CUSTOM. When evidence admissible. 1. General rules. The existence of a custom at one place cannot be inferred When Evidence Admissible. from the practice of an agent at another. Reynolds v. Continental Ins. Co., 36 Mich. 131. 2.- Custom may be established by proper evidence to show true construction of the contract, but not to control, alter and vary it. Farmville Ins. Co. v. Butler, 55 Md. 233. usage of trade; and when they use a term, having a limited meaning in the trade, and in a policy to one engaged in that trade, or in a business closely connected with it, both parties must be assumed to have understood the term in the sense in which the trade usually understand it. Evidence of such usage is always admissible. Wall v. Howard Ins. Co., 14 Barb. 383 (N. Y.) 8.— Assured, in his application for insurance on a factory, in reply to the question, "Are there casks in each loft constantly supplied with water?" stated, 3. If policy embodies in clear and positive terms the intention of the parties it can not be varied by evidence of usage or custom. Usage may be admissible to explain what is doubtful, it is never admissible to contradict what is plain. Grace v. American Central Ins. Co., 13"There is in each room casks of forty-two Ins. L. J. 127; 109 U. S. 278; First Na- gallons each kept constantly full.” It aptional Bank v. Lancashire Ins. Co., 14 peared that one of the stories of the facIns. L. J. 278; 62 Tex. 461. tory was partitioned into apartments, 3a. Whether usage in a given case is and that there was not a cask in each to be taken as part of a contract, de-apartment. Evidence was held to be pends upon knowledge of party sought to admissible to show that by the usage be bound by it. An established custom of manufacturers, the word "room may create a presumption of such knowl-designated an entire loft, whether paredge, but this may be rebutted by direct titioned or not. Insurance companies evidence. *German Amer. Ins. Co. v. in dealing with such manufacturers, are Commercial Fire Ins. Co., 21 Ins. L. J. bound by such usage, and the legal pre626; 11 So. Rep. 117 (Ala.) sumption is that they have knowledge of the same. Daniels v. Hudson River Fire Ins. Co., 12 Cush. 416 (Mass.) 4. When evidence admissible. Proof of usage among commission merchants, to insure the goods consigned to them, is admissible. De Forrest v. Fulton Fire Ins. Co., 1 Hall, 84 (N. Y.) 5. The insurance was on a stock of goods, described as being contained in a "two-story frame house, filled in with brick." Held, that assured might introduce evidence to show a usage, as between assured and insurer, to consider a house, having a brick wall on one side, and a house filled in with brick on the other, and filled in with brick in front and rear, as falling within the description of a house filled in with brick." Fowler v. Etna Ins. Co., 7 Wend. 270 (N. Y.) 6. In the case of an insurance on a shipbuilder's stock of timber, contained in a yard bounded by certain streets and the river: held that evidence to prove a usage of shipbuilders to place their timber on the sides of adjoining streets, as much as in the yard proper, was properly admissible; and if proven, that assured might recover for timber so placed. Webb v. National Fire Ins. Co., 2 Sandf. 497 (N. Y.) 9.- Where there is an established custom relating to the subject matter of a contract, which is known to both parties to it, it may be presumed that contract was made with reference to such custom. Action was brought to recover agent's commissions. Miller v. Ins. Co. of N. A., 1 Abb. N. C. 470 (N. Y.) 10. It is error to exclude evidence tending to show that certain property claimed to be insured by reason of being part of business by custom, is not so insured unless special premium is paid therefor. St. Nicholas Ins. Co. v. Merchants' Ins. Co., 11 Hun, 108 (N. Y.) 11. A policy of reinsurance was to cover such ships or vessels against loss by fire, to extent of £50,000, as might be declared at and from certain ports therein mentioned. It provided that it was to be supplemented by further policies on like terms, should the amount not prove sufficient for the year's transactions. Term, one year from October 1, 1876. Declarations being in excess of the policy on the 9th of July following, defendant issued a 7.- Insurers are assumed to know the second policy for same amount and same When Not Admissible. even the express agreement of the parties, whether made previous to or at the time of the execution of the policy, can be admitted to explain, modify or control the written contract. Illinois Mut. Ins. Co. v. O'Neile, 13 Ill. 89. 15.- Custom cannot be permitted to control language of a warranty; nor can parol evidence be received to control, explain or modify same. Ripley v. Etna Ins. Co., 30 N. Y. 136. -- terms. On the 7th of June plaintiff had 14. No usage of the company, nor insured a ship called the "Hampden," which was destroyed on the 18th of September. On the 25th of October a third policy was issued by defendant, same as pending. On the 2d of November plaintiffs declared the Hampden and claimed a total loss. At time third policy was effected plaintiffs knew that the vessel was lost. It was admitted that the Hampden did not come under the first two policies, which were by previous risks exhausted, when plaintiffs insured it, but must come under the third policy, if any. It was admitted, also, that there was a usage to effect that in case of open policies on ships to be declared, the policy attaches to the goods as soon as and in the order in which they are supplied, in which order the assured is bound to declare them, and in case of mistake as to the order of shipment, assured may rectify the declaration | 14 Hun, 360 (N. Y.) even after a loss. Held, that defendant was bound by such usage, that plaintiff could rectify his declarations, and that defendant was liable. Imperial Marine Ins. Co. v. Fire Ins. Co., L. R. 4 C. P. Div. 166 (Eng.) 12. Upon an insurance of a "stock of rags, old metals, bones and barrels," it is competent for the assured, a junk dealer, to prove that by a usage of the trade the terms "rags" and "old metals" had acquired a broader signification than belongs to these words as commonly used. Knowledge by the company of such usage may be inferred from universality and long existence of the usage. Mooney v. Howard Ins. Co., 14 Ins. L. J. 731; 138 Mass. 375. 12a.- Evidence of usage and custom of a company charged with liability may be competent to show power and authority given to an agent. *Phoenix Ins. Co. v. Munger, 21 Ins. L. J. 682; 30 Pac. Rep. 120 (Kans.) 13. When not admissible. A policy of insurance against fire upon a "barque now being built " in the port of Baltimore, is not controlled in its operations by proof of usage in other ports of the Union. Such usage could not be considered as entering into the views of the parties at the time of making the contract. Mason v. Franklin Fire Ins. Co., 12 Gill & Johns. 468 (Md.) 16. When the terms employed are clear and precise in themselves, evidenceof usage and custom cannot be admitted to explain, alter or impair the contract as made. Hearn v. New England Mut. Ins. Co., 3 Cliff. 318 (U. S. Cir.); s. P., Lattomus v. Farmers' Mut. Ins. Co., 3 Houston, 254 (Del.); King v. Enterprise Ins. Co., 45Ind. 43; Van Alstyne v. Ætna Ins. Co., 17. In a suit to recover value of goods. stored in warehouse the custom of other companies in writing policies on goods therein is not admissible. Hartford Fire Ins. Co. v. Tarrish, 73 Ill. 166. 18. In an action upon a policy of insurance, evidence of a local custom amongst insurers, not communicated to the insured, or of such notoriety as to afford any presumption of knowledge on his part, is not admissible. Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 452. 19. The words "standing detached" cannot be limited in number of feetby evidence of custom and understanding among insurance companies, unless it can be also shown that the assured had knowledge or notice of such custom. Hill v. Hibernia Ins. Co., 10 Hun, 26 (N. Y.) 20.-Upon an issue as to authority of company's agent to consent to a transfer of the property insured, evidence of a custom of other companies is inadmissible. It is doubtful whether company could be bound by a custom, but conceding that it would, it is necessary to show that it had knowledge of such custom, or that it was so general that it must be presumed to have known it. Bradford v. Homestead Ins. Co., 54 Iowa, 598; 10 Ins. L. J. 141. 21.- Evidence of custom is inadmissible unless it is shown that contract was made in reference to it. Continental Ins. General Rules. Co. v. Randolph, 10 Ins. L. J. 387 XI. ENTIRETY OR DIVISIBILITY (Ky.) 22.- Usage cannot justify a settlement by company with a broker so as to bind the assured. Sweeting v. Pearce, 7 Com. B. N. S. 449 (Eng.); Scott v. Irving, 1 Barn. & Adol. 605 (Eng.) 23.- Where an elevator has been in operation but a short time, the assured are not bound by any particular usage or rule of insurance companies in respect to risks upon grain therein, in the absence of evidence showing their knowledge of such rule. *Pettit v. State Ins. Co., 41 Minn. 299; 42 Balt. Underwriter, 278; 19 Ins. L. J. 138; 43 N. W. Rep. 378. OF CONTRACT. General rules. When contract divisible. 1. General rules. The policy was on a house and stable, and the over-insurance was on the house; tender and payment into court of a sum as loss on the stable, is no affirmance of the entire contract. Elliott v. Lycoming Co. Mut. Ins. Co., 66 Pa. 22. 2. Case inducing a court to separate contract and hold part good should be free from doubt and clear. Etna Ins. Co. v. Resh, 44 Mich. 55. 24. Where a grain elevator consists of a main elevator building and an annex, the two being connected and operated as 3.- The violation of a stipulation in a one elevator, having passageways or gal-policy which would render it void as to leries between them, the entire building the building would be fatal as to the being known by a certain name, a policy furniture therein included in the insuron the grain in the elevator described by ance. Havens v. Home Ins. Co., 9 West. that name will be held to cover grain in Rep. 635; 111 Ind. 90; 12 N. East. Rep. the annex, as well as that in the main ele- 137. vator. Id. 25. Cross references. Section one. Subd. I. Premium No. 6. Subd. V. Location and description. Nos. 109, 152, 212. Subd. VII. Parol contract. No. 47. Subd. VIII. Consummation of contract. Nos. 5, 32. Subd. XIII. Construction. No. 65. Section five. 4.- Where different properties were insured for separate sums, the contracts are divisible, and the policy holder may recover as to some of the separate items, notwithstanding a violation of some condition which avoided the policy as to other items included in the same policy. Id. 5.- Where the amount of insurance is apportioned to distinct items, but the premium paid is gross, the contract is entire. *McQueeney v. Phonix Ins. Co., Subd. I. Other insurance. Nos. 217,5 L. R. A. 744; 52 Ark. 257; 19 Ins. L. J. 222. 305; 12 S. W. Rep. 498. Subd. II. Operation, manufactory. No. 5. 6. The contract is severable where a separate valuation has been put upon Subd. XI. Inflammable materials. Nos. the different subjects of insurance in a 77, 78, 79, 99, 110. Subd. XII. Vacant or unoccupied. No. and entire by stating the aggregate of 124. policy, and does not become indivisible such sums in the policy, instead of stating the items separately. *Phœnix Ins. Co. v. Grimes, 50 N. W. Rep. 168; 21 Ins. L. J. 9 (Neb.) 7. The mere fact that insured property upon which a single premium is named in the policy belongs in two Subd. III. Statement or proofs of loss. classes, on one of which insurance comNo. 217. Section nineteen. Subd. II. Reinsurance. No. 17. Section twenty-four. Waiver. No. 15. panies charge a higher rate than on the other, does not make the contract indivisible and prevent a recovery for loss upon one because of a breach of condi |